The Issue The issue in this case is whether the Orange County Parks Department is entitled to a dredge and fill permit from the Department of Environmental Regulation for the construction and installation of a boat dock on Lake Down.
Findings Of Fact The Application On November 1, 1989, Orange County Parks Department (Orange County) applied for a dredge and fill permit to construct a floating boat dock in the Town of Windermere on Lake Down. The application, which is dated September 7, 1989, describes the proposed project as a "public improvement of an existing boat ramp facility." The application describes a floating dock attached by short hinged sections to fixed docks that would be affixed, at normal water elevations, to upland. The application explains that the purpose of the dock is to accommodate boats and pedestrians in loading and unloading boats at the ramp. The dock would, according to the application, reduce wave and wakedisturbance action on the existing shoreline and thus reduce the current rate of erosion at the site. The application assures that no existing vegetation would be disturbed except in the area of the fixed docks. According to the application, the floating dock and two fixed docks would measure about 420 feet long by 7 feet wide with several wideouts of about 10 1/2 feet. The dock is designed to moor 15-18 boats simultaneously. The location map attached to and a part of the application shows that the dock would be at the southernmost extent of Lake Down. The survey attached to and a part of the application provides submerged and upland elevations in the vicinity of the proposed dock. The survey states that the water elevation of Lake Down is 98.8 feet. Nothing indicates whether 98.8 feet is the average water elevation or the water elevation on the date of the survey on June 28, 1989. Other portions of the application describe the composition of the dock parts. The only parts in contact with the water would be galvanized steel pilings, which would be jetted or driven not more than 15 feet deep into the submerged bottom, and plastic floats attached to the bottom of the dock for floatation. The application also indicates that construction-period turbidity would be controlled through the use of turbidity curtains. Another diagram attached to and a part of the application superimposes the dock over the submerged elevations. A note on the diagram states that, under "Plan 1 and Plan 2, Orange County would excavate existing grade under floating dock to elev 97.0." The applicant proposed excavation under the dock due to the shallowness of the water under and lakeward of the dock. The diagram depicts a dock that would run parallel, rather than perpendicular, to the shore. The diagram discloses that the proposed dock would begin immediately east of the existing boat ramp. The diagram indicates that the floating dock runs about 390 feet. The elevation at the northwest corner of the west fixed dock is about 100 feet. At what the construction drawings call "average lake elevation" of 99.5 feet, the piling at the northwest corner of the west fixed dock would thus not be submerged. About 15 feet to the east of the northwest corner, where a hinge connects the west fixed dock to the floating dock, the elevation is between 98 and 99 feet. At average water elevation, the shoreside of the floating dock generally ranges from five to ten feet from the shoreline, with extremes of one foot at the southeast corner of the west fixed dock and 17 feet about 220 feet east of this point. The submerged elevations change significantlyunder the 390 feet of floating dock. On the lakeside, where boats would dock, the following elevations exist under the dock at 40 Dock interval 40' 80' 120' 160' Lakebottom elevation 95-96' 95' 92' 93' 200' 240' 280' 320' 360' 390' 91-92' 91' 92-93' 93-94' 96' 96' The submerged elevations are higher (and thus water depths shallower) on the shoreside of the dock, which would not be accessible to boats. For the back of the floating dock, the submerged elevations exceed 97 feet for the westernmost 40 feet and a short segment at the eastern end of the floating dock; the remaining elevations are less than 97 feet. Unlike the west fixed dock, which would stand almost entirely in upland even at average water elevation, the east fixed dock would stand almost entirely in water at the same water elevation. Also, the west fixed dock would be relatively small and run parallel to the shore beside the ramp. The east fixed dock would be oriented in a northwesterly direction from, and perpendicular to, the shore. The northwest and northeast faces of the east fixed dock would be accessible by boats. The submerged elevation under the northwest face, which is between 15 and 20 feet offshore from the average shoreline, is between 95 and 96 feet. The water depth adjoining the northeast face is shallower because the northeast face, although accessible to boats, would runupland, past the average shoreline at 99.5 feet, to an upland elevation of about 101 feet. The rate of drop of submerged elevation is uneven along the length of the proposed floating dock. Water depth increases more rapidly from the center of the floating dock. For instance, at the 200-foot interval from the west end, the elevation drops from about 91.5 feet at the front of the dock to 88 feet at a point ten feet lakeward of, and perpendicular to, the dock. In other words, the water becomes 3 1/2 feet deeper in the first ten feet. The lakebottom drops more gradually at the west and east ends of the proposed dock. For instance, at the 40 increase in depth ten feet out is only about 2 1/2 feet. At the north corner of the east fixed dock, the increase in depth ten feet out is only about 1 1/2 feet. The diagram also depicts the existing boat ramp that would be served by the proposed dock. The ramp, which is oriented in an eastnortheasterly direction from the shore, is less than ten feet north of the proposed west fixed dock. The ramp measures about 20 feet wide upland and about ten feet wider farther out into the water. The elevation of the submerged north corner of the lakeward end of the boat ramp is between 94 and 95 feet. The elevation of the submerged south corner of the lakeward end of the boat ramp is between 95 and 96 feet. The lakebottom isfairly flat at the boat ramp. Over its 40-foot length, the elevation of the ramp changes by only about 5 feet. A separate diagram attached to and a part of the application depicts the floats that would be attached to the bottom of the decking. The floats would be about 18 inches high and draw about three inches of water when the dock is supporting no weight. A 40-inch high railing would run along the back of the dock. However, the railing would not extend along the northwest and northeast faces of the east fixed dock. Thus, nothing would deter a boat from docking along these two faces of the east fixed dock. On November 9, 1989, Orange County filed an application amendment, which contains drawings that eliminate all excavation. The amendment states: "Dock will be relocated if conflict with existing shore occurs." This amendment was filed at the urging of a DER representative, who would not have recommended the application for approval without the change. There are other suggestions in the record that Orange County would be willing to amend its application to locate the proposed dock farther from shore and in deeper waters. However, Orange County did not specifically offer an amendment, and the record offers no indication where the dock would be, if Orange County again amended the application. On June 20, 1990, Orange County informed the Department of Environmental Regulation (DER) by letter that the legal description provided with the application was inaccurate. The letter provides a new legal description and a list of adjoining property owners. Mr. Rosser, Ms. Grice, and Mr. Patterson own property adjacent to the proposed project or reside in close proximity to Lake Down so as to be substantially affected by any material degradation of water quality. The new legal description encompasses only 1.46 acres rather than the 12.16 acres set forth in the original application. The land eliminated from the application is west and north of the existing boat ramp. Orange County plans to make considerable improvements to the existing boat ramp, such as by the addition of substantial parking and a septic tank on the land eliminated from the original application. However, the present application does not request any permit for such work. The Intent to Issue On February 26, 1990, DER filed an Intent to Issue the permit for which Orange County had applied. The Intent to Issue indicates that the permit is to construct a floating dock on Lake Down about 420 feet by 7 feet, plus wideouts, and notes that the request to dredge along the dock had been withdrawn. According to the Intent to Issue, the bank between the north side of Conroy-Windermere Road and the shoreline has eroded, probably as a result of boaters pulling their boats onto shore for temporary mooring. Although DER did not determine the water elevation on the date of the inspection, the Intent to Issue reports that water depths range from a few inches alongshore to about three feet at the shoreside of the proposed dock. The Intent to Issue notes that Orange County is currently trying to condemn the land north and west of the boat ramp to upgrade the launching facility with a larger ramp, picnic area, and parking spaces for between 50 and 100 vehicles. The Intent to Issue finds that the proposed docking facility and its associated boat traffic would not result in violations of state water quality standards nor degradation of ambient conditions in Lake Down or the Butler Chain. Except for limited construction-period turbidity, which could be controlled with a siltation barrier, displacement or disruption of the lakebottom would reportedly occur only during piling installation, and shoreline vegetation would be removed only at the fixed docks at either end of the floating dock. Addressing prop dredging, the Intent to Issue notes: It is not anticipated that damage to the lake bottom will result from boats moving into and away from the dock. If water levels fall to particularly low levels, the county can close the ramp until adequate depth is available again. Addressing the possibility of increased boat traffic on the lake, the Intent to Issue states: It is not anticipated that use of ramp will significantly increase as a result of the proposed construction. Those individuals who are seriously interested in accessing the Butler Chain have done so despite the poor facility currently available. The new dock will provide mooring capability without causing shoreline erosion. Furthermore, the dock will provide a safer place for boatersto walk and wait. Presently, because there is no onsite parking nor mooring available, boaters park vehicles to the east of the boat ramp site in an undeveloped parcel. They then walk west along Conroy-Windermere Road while sharing the road shoulder with vehicles and trailers. The dock, in combination with the proposed (upland) sidewalk won't shorten the distance to be walked but will remove pedestrians from the roadway sooner to the relative safety of the mooring area. The Intent to Issue concludes that Orange County has provided reasonable assurance that the project will not result in violations of state water quality standards and that the project is clearly in the public interest. Thus, DER expressed its intent to issue the permit, subject to various conditions, in the absence of a timely filed petition. Specific condition 7 of the Intent to Issue addresses the issue of prop dredging: When the lake level drops to the point where boats entering and leaving the dock cause damage to submerged bottoms in the immediate area, the county shall close the ramp and dock until the water returns to acceptable levels. Specific condition 8 addresses the County's plans for additional improvements for the boat ramp facility: Issuance of a permit for the dock does not guarantee nor infer issuance of a permit orpermits for further improvements to the county boat launching facility. Additional Findings Regarding Upland Orlando and the more densely populated areas are generally to the north and east of the boat ramp; Orlando itself is about 10 miles away. The center of the Town of Windermere, which numbers about 1400 persons, is to the west of the boat ramp. About 80% of the users of the boat ramp approach the ramp from the east. A small vehicle-maneuvering area adjoins the ramp on the west. After unloading the boat into the water, the driver of the trailer-towing vehicle typically drives east on Conroy-Windermere Road about 1600 feet and parks on the south side of the road in a large unimproved lot. The County's permission to use the lot is terminable by the owner without notice. While the vehicle and trailer are being parked, the person or persons with the boat normally start the engine and idle just offshore from the ramp or moor on the sandy beach immediately east of the boat ramp. After parking the vehicle, the driver generally crosses to the north side of Conroy-Windermere Road and walks along a sidewalk running from the parking area to what would be the east end of the proposed dock. The road and the sandy beach are separated by a thin strip of thick vegetation. Pedestrians continuing westalong the road, past a point across from the east end of the beach, must walk in the staging lane designed for vehicles waiting to enter the maneuvering area. An existing sidewalk on the south side of the road, which runs east of the ramp area, is not used as much because the sidewalk ends almost 800 feet east of the parking area. Pedestrians typically rejoin their boat at some point along the sandy beach immediately east of the boat ramp. When the boat is spotted, the pedestrian cuts through the vegetation on one of four or five paths running at intervals between the north side of the road and the beach. Traffic on these paths has worn them down noticeably from the prevailing elevations on either side. The same pattern is repeated upon the return of the boat, which is temporarily moored onshore to allow the driver to disembark, take the nearest path to the road, walk along the north side of the road to the parking area, cross the road, and return with the vehicle to the boat ramp. Normal summertime usage, when the boat ramp is used more frequently, involves a range of 30-65 boat launchings per day from the boat ramp. However, peak usage is much higher; nearly 400 trailers have been in the parking area at one time. Present upland usage of the boat ramp area is risky. The staging lane mixes pedestrians and motor vehicles towing trailers. The speed limit on Conroy-Windermere Road is 35 miles per hour at the parking area and 30 miles per hour at theramp, so westbound traffic is still moving rapidly past the staging lane. Also, Conroy-Windermere Road, which is an urban collector, is heavily travelled with an average daily traffic count of 9400 vehicles. Pedestrians crossing the road at the parking area 1600 feet west of the ramp must cross 22- 24 feet of highway. Pedestrians crossing the road at the boat ramp must cross about 50 feet of highway due to the presence of the staging lane and a painted median. Upland safety would be enhanced by separating pedestrians from the staging lane. However, the addition of the floating dock would not eliminate the risks associated with upland usage of the boat ramp. Persons still would be required to cross Conroy-Windermere Road, although a proposed crosswalk would reduce present risks somewhat. In addition, the existing sidewalk on the north side of the road would be reconfigured to lead to the floating boat dock, which would be incorporated into the sidewalk system leading toward the center of the Town of Windermere. For some persons using the dock segment of the sidewalk, such as young children and the disabled, close proximity with the water and mooring boats might prove unsafe. Conroy-Windermere Road has existed for many years, but the portion of the road parallel to the proposed dock was added only about 30 years ago. Previously, the road had turned south, but, following a serious traffic accident, the curve was straightened. Large amounts of fill were added to form the roadbed across the southern tip of Lake Down, which consequentlywas cut off from the remainder of the lake. This fill forms the bank leading to the shoreline directly parallel to the proposed dock. The boat ramp has also existed for many years. Years ago, grove trucks drove down to the lake in order to take on irrigation water. From time to time, persons would put in canoes at this point. Until the late 1960's, when Orange County paved the ramp, few if any powerboats were launched from the area or even used the lake. Today, the overwhelming majority of boats using the ramp currently are gasoline-powered motorboats. There are no restrictions on Lake Down as to the size of engine permitted on the lake, and the posted speed limit is 36 miles per hour. The area surrounding the boat ramp features few amenities. Apart from the maneuvering area, staging lane, and ramp itself, the only other improvements are an enclosed portable toilet and a dumpster garbage container. The Town of Windermere operates two boat ramps on the Butler Chain-- one on Lake Down and one on Lake Butler. Use of these ramps is reserved for Town residents and their guests. The remaining boat ramps on the chain are owned by corporations or private associations. Some boat traffic on the lake is from the use of private boat docks owned by persons owning lakefront land. Lake Down and the Butler Chain Designation as Outstanding Florida Waters By report dated January, 1984, DER recommended that the Environmental Regulation Commission designate as Outstanding Florida Waters the Butler Chain of Lakes: Lake Down, Lake Butler, Wauseon Bay, Lake Louise, Lake Palmer, Lake Chase, Lake Tibet, Lake Sheen, Pocket Lake, Little Fish Lake, and their connecting waterways. The January, 1984 report (DER Report), states that the Butler Chain drains into the Upper Kissimmee River Basin. Noting that Lake Down is the northernmost lake in the chain, the DER Report states that water flow in the lakes, which are interconnected by a series of man-made navigable canals, runs from north to south. Reviewing Florida and applicable federal anti-degradation policies protecting high quality waters, the DER Report states: This antidegradation policy is predicated on the principle that resources are so precious that degradation should not occur except after full consideration of the consequences and then only to the extent necessitated by important economic and social development. Scientifically, the principle is a valid one in that history has taught that adverse effects are difficult to predict. As scientific knowledge grows, previously unknown effects are discovered, and it is prudent to preserve our natural resources in the face of the unknown. DER Report, January 11, 1984 memorandum from DER to Environmental Regulation Commission, page 4. The Butler Chain covers 4700 acres. The largestlake is Lake Butler, which consists of 1665 acres. Lake Down, which is the third largest, consists of 872 acres. Depths of the lakes range from 15-30 feet. According to the DER Report, the upper seven lakes are oligo-mesotrophic with low productivity, high water clarity, and deeper waters. The lower three lakes (Sheen, Pocket, and Fish Lakes) are mesotrophic, with moderate productivity, high coloration of water, and shallower waters. The DER Report states that the water quality of the lakes is excellent. Lake Down had the highest level of dissolved oxygen: 7.1 mg/l. Biochemical oxygen demand was extremely low, in most cases, including Lake Down, less than 1.0 mg/l. Lake Down also had the lowest presence of chlorophyll a, which is a measure of the presence of algae, and a higher degree of biologically diversity, which is typical of a clean, soft-acid lake, according to the DER Report. The DER Report concludes that: An OFW designation will preserve the present environmental values of the Butler Chain of Lakes without any important environmental costs. The existing ecosystem and recreational use of the lakes is dependent upon the maintenance of sufficiently high levels of water quality, which an OFW designation would help to ensure. Id. at 23. The DER Report also includes a May, 1975 report of the Orange County Pollution Control Department, which concedes that the Butler Chain is: one of the few clean water systems left in the Central Florida area. The balance between available nutrient concentrations and the biotic communities has maintained an ecosystem free from the problems that are associated with more enriched systems. The balance is fragile and not well understood. Any activities which would effect this system will express itself [sic] in the aquatic habitat. May, 1975 report, page 4. At the time of its designation, the proposal received numerous endorsements and no objections. On August 16, 1983, The Orange County Board of County Commissioners passed a resolution urging DER to designate the Butler Chain as Outstanding Florida Waters. The Orange County Property Appraiser also supported the designation. In a letter to DER dated September 30, 1983, the appraiser warns that pollution could decrease surrounding property values and cost taxpayers substantial sums for cleanup. Additional Findings Regarding Lake Down Effect of Addition of Floating Dock 53. Neither the submerged galvanized steel pilings nor the plastic floats would allow materials to leach into the lake so as to affect measurably the composition or quality of the water. The increased turbidity during construction of the proposed floating dock also could be controlled so as not to have a significant effect on Lake Down. 2. Relevant Water Levels Water levels have fluctuated considerably in Lake Down. Since January, 1960, to present, the lowest recorded water elevation was 93.86 feet in February, 1987, and the highestelevation was 101.58 feet in August, 1960. Recorded water elevations were less than 97 feet from October, 1977 through August, 1979 and September, 1980 through November, 1982 (during which time the elevation attained 96 feet only six months). Water elevations were between 97 and 98 feet, inclusive, for an additional 29 months during this 31-year period. From March, 1987 through May, 1989, water levels were between 99 and 100 feet, attaining 100 feet only in December of 1987 and 1989. From June through August, 1989, water levels were between 98 and 99 feet. From September, 1989 through the date of the final hearing, water elevations were below 97.8 feet. From mid-March, 1990 through the date of the hearing, water elevations dropped from 97 feet to 96 feet; at the time of the hearing, the water elevation was about 96 feet. When the water elevation is 97.8 feet or less, the canal to Wauseon Bay and, from there, to Lake Butler is impassable to all but very small flatbottom boats. At these times, boat traffic tends to concentrate on Lake Down. Three witnesses for the County and DER testified as to the relationship between the water level of the lake and the operation of the floating dock. One witness for the County testified that the dock would float at 99.5 feet, which corresponds to ordinary high water. The designer of the dock testified that the east and west ends of the dock would cease floating at 96 feet. The DER representative testified that the dock and, pursuant to Special Condition 7, the ramp should beclosed at depths less than 95 feet. The meaning of Special Condition 7 is unclear. First, it is not clear what is meant by boats causing damage to submerged bottoms in the immediate area. Probably, this phrase means actual contact between the prop and bottom, which is known as prop dredging. Thus, boats cause damage to submerged bottoms when the depth of the water is about one foot or less. Special Condition 7 probably ignores the effect of prop wash, where the prop disturbs the bottom, including vegetation, by turbulence rather than direct contact. The second major ambiguity in Special Condition 7 cannot be resolved on the basis of the present record. The question is whether the ramp and entire dock must be closed whenever the water depth under any part of the dock is one foot or less (recognizing that the floats require about one foot of water). In the alternative, Orange County could close only that part of the dock as to which the underlying water depth is one foot or less. It is likely that DER and Orange County have different opinions on this question, with the County taking the latter position. Regardless how Special Condition 7 is construed, it fails to address the damage to submerged bottom that the"floating" dock will do when parts of it begin to ground. When partly grounded, the floating dock will pound up and down on the lakebottom in response to wave action and traffic on the dock. Over 40 feet of the shoreside of the dock will be grounded at water elevations of 97 feet or less, which, without regard to the effect of dock loading or wave action, is the point at which "dock dredging" commences. Water elevations have been less than 98 feet for a total of nearly seven of the last 31 years. The east and west ends of the lakeside of the floating dock would also begin to ground at a water level of about 97 feet. By the time water elevation falls to 96 feet, which existed at the time of the hearing, at least 80 feet of the west end of the floating dock and at least 30 feet of the east end of the floating dock would be grounded, again assuming no wave action and no load on the dock. Additionally, prop dredging would also take place at water elevations of 97 feet immediately adjacent to the dock, at its east and west ends. These water elevations have been experienced for a total of over four of the last 31 years. Another feature of the design of the proposed dock makes it likely that prop dredging will take place regardless of the water elevation. A popular area of the proposed dock would be the east fixed dock because it would be the closest point, by more than 100 yards in some cases, to the existing parking area. Boats could approach the northeast face of the east fixed dock up to an elevation of 101 feet. In other words, except in periods of unusual high water, some boats could and probably would use a section of the fixed dock in the same manner as temporary moorings are made today: in effect, by running up onto the beach. Prop dredging of the bottom would take place if boats approached the northwest face of the fixed dock when the water level fell to about 96.5 feet. The same is true for at least the first 40 feet of the west end of the floating dock. The resuspension of bottom sediment by prop wash would begin at depths of anywhere from 18 inches to seven feet, according to the testimony of the DER representative. Although important variables, such as the composition of the bottom and size and speed of the prop, affect prop wash, significant prop wash takes place for at least three feet under the prop. If three feet were the minimum depth necessary to avoid prop wash and, thus, lakebottom damage, the east 160 feet and west 70 feet of the floating dock would not be usable at water levels not exceeding 96 feet, such as at the time of the final hearing. The significance of lakebottom damage is great under and lakeward of the proposed dock. A thick carpet of bogmoss begins about ten feet offshore, which is roughly where the dock would begin, and continues out into the lake. Bog moss, which captures and retains sediments, would be damaged by the dredging action of the pounding floating dock when it begins to ground and boats using the floating dock at water elevations described in the preceding paragraphs. The phosphorus-rich sediments would then be resuspended in the water column. 3. Ambient Water Quality One of the key elements to preserving the health of Lake Down is to avoid conditions that can lead to the presence of excessive nutrients in the system. The presence of excessive nutrients, which leads to eutrophication, usually occurs because of the increased availability of a limiting nutrient. The limiting nutrient in Lake Down is phosphorus. Thus, a condition precedent to the eutrophication of Lake Down is an increase in the level of phosphorus in the water. The presence of phosphorus in the water can be detected directly, by measuring the phosphorus itself. The presence of phosphorus can also be detected indirectly, by measuring the effects of the nutrient or conditions that may result in the release into the water of additional phosphorus. Indicators of the nutrient levels of a lake include the presence of chlorophyll a, which, as a measure of the amount of algae in the water, is an indicator of the enrichment process. As a lake proceeds from an oligotrophic to a mesotrophic condition or from a mesotrophic to a eutrophiccondition, the presence of algae and chlorophyll a will increase. Indicators of conditions that may result in the release of additional phosphorus into the water include turbidity measurements and clarity data, such as Secchi depths. The sediment found in the submerged lakebottom contains greater concentrations of phosphorus in various organic and inorganic and soluble and insoluble forms than the water column itself contains. When this sediment is disturbed, part of the previously trapped phosphorus is released into the water column. The phosphorus is thereby made more readily available for supplying the nutrients necessary to contribute to the enrichment process, at least until the phosphorus settles back into the sediment where it can be locked up until redisturbed. As relevant to this case, the ambient water quality of Lake Down in the baseline year can largely be assessed in terms of the following data, which are obtained from Orange County Exhibit 13: chlorophyll a: 1.01 ug/l; turbidity: 1 NTU; total phosphorus: .01 mg/l; Secchi depth: 3.5 meters; and pH: 5.97. In the year ending immediately preceding the filing of the County's application, the following data were collected, according to Orange County Exhibit 13: chlorophyll a: 1.59 ug/l; turbidity: .75 NTU; total phosphorus: .01 mg/l; Secchi depth: over 3.5 meters; and pH: 6.36. In the summer of 1990, when the hearing took place, the County's expert collected from Lake Down the followingaveraged data, which are shown on Orange County Exhibits 15 and 17: chlorophyll a: 1.22 ug/l; total phosphorus: .011 mg/l; Secchi depth: over 4 meters; turbidity: 1.0-1.2 NTU's; and pH: 6.97. In the same summer, the Town of Windermere's expert collected the following data from Lake Down: turbidity: 0.92-1.8 NTU's; pH: up to 7.2; and total phosphate: .04-.05 mg/l. The only finding materially different from the findings of the County's expert is the amount of total phosphate. The findings of both experts are credited. The higher finding is supported by, among other things, the recording in the County's records of .037 mg/l of total phosphorus on May 15, 1990, according to Orange County Exhibit 12. In a phosphate-limited, oligo-mesotrophic lake such as Lake Down, total phosphates of .03-.04 mg/l require serious attention in terms of what may be the beginning of a significant degradation of ambient water quality standards. The increase in chlorophyll a is consistent with a trend toward enrichment of the lake since the baseline year. The record establishes the role of motorboat traffic in degrading ambient water quality. Bottom sedimentsoften contain many times more phosphorus than is found in the water column. In the case of Lake Down, sampled bottom sediment contained 11 mg/l of phosphorus, or over 200 times the amount contained in the water column. The phosphorus is trapped in the sediment, which, if disturbed, releases the phosphorus back into the water column. Prop dredging may resuspend the sediments and release the phosphorus, as well as destroy bottom vegetation that tends to retain the sediments. Prop wash also may resuspend bottom sediments, even to depths of seven feet beneath the churning prop. Ultimate Findings of Fact Impact of Proposed Dock on Boat Traffic The proposed floating dock would substantially increase use of Lake Down by motorboats. The dock would generate increased boat traffic on Lake Down because of improvements in navigability in the vicinity of the boat ramp and convenience for boaters in picking up and dropping off passengers and walking between the existing parking area and mooring area. The dock, which would be longer than a football field, is designed to moor 15-18 boats simultaneously. At typical current launching rates, the dock would be capable of mooring, at one time, one-quarter to one-half of the boats using the boat ramp on a given day. DER reasons in the Intent to Issue that boat usage would not increase significantly because persons seriously interested in accessing the Butler Chain have overcome the limitations of the present facility. This reasoning ignores persons more casually interested in accessing the Butler Chain. The above-described improvements in navigability and upland safety will increase the frequency of their visits, which presently may be limited to peak days, such as holidays. If the ratio of serious to casual users corresponds roughly to the ratio of typical boat launches to peak boat launches, the number of casual users may outnumber their more earnest counterparts by six to one. The large capacity of the proposed boat dock suggests that Orange County was targeting these more casual boaters. In theory, Special Condition 7 could have a substantial effect upon boaters' access to Lake Down if the ramp and dock were closed when water elevations fell to 97 feet, at which point much of the shoreside of the dock would already be grounding and boats could not approach the east or west ends of the dock without prop dredging. The ambiguity of Special Condition 7, whose meaning remains elusive even after DER and Orange County have had opportunities to explain its operation, precludes assigning the condition any significance, except as a clear invitation to litigate in the event the floating dock were constructed under the subject Intent to Issue. 2. Ambient Water Quality 79. As relevant to this case, the relevant ambientwater quality of Lake Down is the baseline year. The value of chlorophyll a was 50% lower in the year ending March, 1984, than in the year ending with the subject application. Total phosphorus was about the same, as were Secchi depths. Turbidity was 25% less in the latter year, but the lake had acidified slightly. 3. Changes in Water Quality The water quality of Lake Down has deteriorated since it was designated an Outstanding Florida Water. The amount of chlorophyll a has increased, which is consistent with increased levels of nutrients in the water column. By the summer of 1990, phosphate readings were as much as four or five times greater than in the baseline year and had reached a level that threatens water quality in a phosphate-limited lake such as Lake Down. The role of motorboat traffic in disturbing phosphate-laden bottom sediments and destroying bottom vegetation has been discussed above. The dock dredging at lower water elevations, which are frequently encountered, as well as prop dredging immediately adjacent to the dock, would be especially harmful in view of the thick carpet of bog moss present underneath and lakeward of the proposed dock. 4. Effect of Proposed Dock on Water Quality Orange County has failed to provide reasonable assurance that the proposed project would not lower ambient water quality standards with respect to the effects of dock dredging, prop dredging in the immediate vicinity of the dock, and prop wash associated with increased powerboat traffic on the entire lake. Boats presently mooring on the south shore undoubtedly dredge the bottom with their props. However, the effects are less destructive than the prop dredging that would be associated with the proposed dock, even ignoring the effects of dock dredging and prop wash from additional powerboats. First, fewer boats are using the area now than would be with the proposed dock. Second, although possibly once vegetated, the lakebottom adjacent to the shore is sandy without much vegetation or sediment, so resuspension of sediment and release of phosphorus is less of a problem presently than it would be with the use associated with the new dock. The record does not support a finding that the water quality of Lake Down has been adversely affected by the erosion of rubble and fill from the bank used to construct the realigned Conroy-Windermere Road 30 years ago. Concerns about unfiltered stormwater runoff bypassing the vegetated strip by pouring down the eroded paths into the lake are misplaced. Some governmental entity has installed a stormwater system along aconsiderable part of Conroy-Windermere Road, and the outfall is directly into Lake Down shoreside of the west end of the proposed dock. 5. Effect of Proposed Project on Public Interest Orange County has failed to provide reasonable assurance that the proposed project would be clearly in the public interest after balancing the statutory criteria. The proposed project would achieve a net gain in upland safety, although not without exposing pedestrians using the sidewalk to new risks. The project would also increase boater safety by improving navigability in the vicinity of the boat ramp. However, degradations in water quality negatively impact the issues of public health, the property of others, the conservation of fish and wildlife, and fishing or recreational values, which ironically may be threatened as Lake Down risks becoming a victim of its well-deserved popularity. The current condition and relative values of the functions performed by the lakebottom also militate against a finding that the proposed project, which would be permanent in nature, is clearly in the public interest. The factors in the preceding paragraph outweigh the statutory factors in favor of a finding that the project is clearly in the public interest. In addition to the gains in upland safety and navigability, the other favorable factors are that the proposed project would not adversely affect the flow of water or cause harmful erosion or shoaling. A neutral factor isthat the proposed project would not help or harm significant historic and archaeologic resources.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order denying the application of the Orange County Parks Department for a dredge and fill permit to construct a floating dock 420 feet by 7 feet. ENTERED this 2nd day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1991. APPENDIX Treatment Accorded Proposed Findings of Orange County Adopted or adopted in substance: 1-7 (except last sentence of Paragraph 6); 9 (except for last two sentences)- 11 (except first sentence); 12 (except that the amendment eliminated all construction-related dredging)-19 (except the railing in Paragraph 14 runs the entire landward side of the floating dock, but not the fixed docks); 20 (except the last sentence); 25; 27 (except last sentence); 29 (first sentence; however, the implication that the erosion is having an adverse effect on water quality is rejected as against the greater weight of the evidence); 30 (except that the implication that wave and wake action are presently eroding the shore is rejected as against the greater weight of the evidence); 32; 33 (in sense of increasing boater usage of lake, but not in sense of maintaining the water conditions on which the lake ultimately depends for its recreational value); 35-36; 39 (third and fourth sentences); 40 (there would be a net increase in upland safety); 42 (the crosswalk would somewhat increase upland user safety); 43; 44 (through the colon); 46; 48 (second and third sentences); 49 (except that the summer, 1990, findings of Windermere's expert are also credited); 51 (except as to the improvement in ambient water quality between baseline year and year immediately preceding the application); 52 (except for characterization of chlorophyll a value as very low) with attendant implication that this value, in conjunction with readings of .04-.05 mg/l of phosphate in the summer of 1990, is not cause for serious concern); 56-57; 59 (all but first sentence); 60 (second and third sentences); and 71 (last sentence). Rejected as irrelevant: 6 (last sentence); 11 (first sentence); 20 (last sentence); 21-22; 26 (second sentence); 28; 44 (following the colon)-45; 47; 54 (first sentence); 55 (there is no safe harbor for proposed projects whoseeffects would degrade ambient water quality, but still leave the waters in good condition); 67; and 74-75. Rejected as subordinate: 8; 9 (last two sentences); 28; 34 (second sentence); 41; 53; 63 (except for first sentence); 64; 69; and 74-75. Rejected as against the greater weight of the evidence: 23; 26 (first sentence); 27 (last sentence); 29 (second sentence); 31; 34 (except second sentence); 37 (except whether the proposed dock is a political "hot potato" is irrelevant); 38 (except that the existing facility is "very mediocre"); 50 (second sentence as to relevant ambient water quality and third sentence); 54; 55 (although the water quality in Lake Down remains generally good, recent readings of phosphorus levels of .04-.05 mg/l are a cause of serious concern); 58; 59 (first sentence, at least as to the bottom beginning around where the dock would be placed); 60 (first sentence); 61 (the County's own survey, which accompanied the application, has been credited over the incidental findings of an expert, who did not carefully establish the exact proposed location of the dock and was preoccupied with water sampling); 62 (strictly speaking, the County has failed to provide reasonable assurance that the boat dock will not lead to degradation in ambient water quality); and 63 (first sentence)-71 (except for last sentence). Rejected as unnecessary: 39 (first two sentences) and 72-73. Rejected as recitation of evidence: 48 (first sentence) and 50 (first and second sentences except for the identification of the baseline year and the year immediately preceding the application). Miscellaneous: 24: first sentence is adopted in substance as the average is probably about 10', although the distance is as much as 17'. The second sentence as to where the boat dock could be built--i.e., further away from theshore to reduce or eliminate dock dredging--is rejected as irrelevant. Orange County did not offer to amend its application, nor even provide a new location for the dock. In any event, the relocation of the dock in deeper water would not reduce the damage done to the lake by the prop wash associated with the additional boat traffic that the new dock would generate. Treatment Accorded Proposed Findings of DER Adopted or adopted in substance: 1-5 (except erosion-protection clause in Paragraph 4); 6 (first sentence, although the elevations have been discussed in detail in the findings and, though the dock probably averages about 10' from normal shoreline, it is as much as 17' offshore); 7-14 (except, as to Paragraph 8, 41-65 launchings represents typical summertime usage and 395 represents peak usage, probably on a holiday); 18; 19 (second sentence); 26-28; 30 (first sentence); 33-34; 37-39 (except, as to Paragraph 38, first sentence and last clause implying the need to control erosion to protect water quality); 41-42; and 46-47. Rejected as against the greater weight of the evidence: 4 (erosion-protection clause); 6 (second sentence because the County's own survey, which accompanied the application, has been credited over the incidental findings of an expert, who did not carefully establish the exact proposed location of the dock and was preoccupied with water sampling); 15 (except second and fourth sentences); 16 (first sentence); 17; 19 (first and second sentences); 25; 29-32 (except first sentence of Paragraph 30); 35; 36 (except first sentence); 38 (first sentence and last clause implying the need to control erosion to protect water quality); 40; and 43-44. Rejected as recitation of evidence: (second and fourth sentences). Rejected as irrelevant: (second through fourth sentences) and 19 (third sentence--there is no safe harbor forproposed projects whose effects would degrade ambient water quality, but still leave the waters in good condition--and last sentence). Rejected as unnecessary: 19 (last sentence as to benzene); 21-23 (except that the facts of this case, such as the quick elimination of benzene from the water and the proximity of sampling to boat periods of numerous boat launches and no rain, suggest that gasoline-powered boats, not stormwater, are responsible for most of the benzene finding its way into Lake Down); 24-25; and 45. Rejected as subordinate: 20. Rejected as repetitious: 36 (first sentence). Treatment Accorded Proposed Findings of Windermere Adopted or adopted in substance: 1-14 (except last sentence of Paragraph 11); 18-19; 26 (first and last sentences); 28 (first three sentences through "not be floating" and third and second to last sentences, although the prospect of either DER or orange County interpreting Special Condition 7 as requiring the closure of the entire facility for significant periods of time is highly remote); 33-34; 35 (as to intention to construct crosswalk); 38; 40 (first three sentences); 42 (first three sentences); 46 (first sentence); 49 (second sentence); 50 (except second sentence); 51 (first sentence); 52 (except last sentence); 54-57; 59 (first two sentences)-61 (except for final sentences in Paragraphs 60, as to benzene, and 61); 62; 65 (last sentence); and 67. Rejected as subordinate: 11 (last sentence); 15-17; 21-25; 27; 28 (all sentences not adopted in whole); 29-32; 35 (except as to intention to construct crosswalk); 36-37; 39; 40 (last sentence); 42 (last three sentences); 43-45; 46 (fourth sentence); 48; 49 (third and fourth sentences); 63; 65 (except last sentence); and 68-71. Rejected as irrelevant: 16; 20; 22; 49 (first sentence); and 53. Rejected as recitation of evidence: 26 (all but first and last sentences); 31; 35 (except as to intention to construct crosswalk); 41; 44-45; and 46 (second and third sentences). Rejected as against the greater weight of the evidence: 28 (portion of third sentence following "not be floating"; Orange County's position as to the meaning of Special Condition 7 did not emerge from the record, largely because of an apparent lack of detailed understanding of the impact upon the submerged bottoms of particular water elevations in terms of dock dredging and prop dredging); 50 (second sentence); 51 (second sentence); 64; and 66. Rejected as unnecessary: 47; 52 (last sentence); 58-59 (last two sentences); 60 (as to benzene); and 61. Treatment Accorded Proposed Findings of Rosser and Grice Adopted or adopted in substance: 1-39 (as to Paragraph 18, the only navigable connection and, as to Paragraph 19, the surface elevation); 45; 51 (at least as to desirability); 57 (except first sentence); 58; 59; 61-64 (except last sentence of Paragraph 64); 66 (second sentence); 68-69; 74 (fourth sentence); 75-76; 80-81; 83; 86; 88; 89 (the specific elevations have been discussed in detail in the order); 94; 96; 97; and 102. Rejected as irrelevant: 40-42; 52-55; 70-72; 74 (third and last sentences); 77-78; 84; 90; 101; and 103. Rejected as subordinate: 43-44; 46-50; 53-55; 57 (first sentence); 60; 73-74 (first and second sentences); 82 (first sentence); 85; 99-100; and 104-05. Rejected as unnecessary: 56; 59; 64 (last sentence)-66 (first sentence); 91-92; 95; and 98. Rejected as against the greater weight of the evidence: 67; 82 (second sentence); 87; and 93. COPIES FURNISHED: Douglas H. Maclaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Joel D. Prinsell, Assistant County Attorney Eugene Legette, Assistant County Attorney Orange County Legal Department P.O. Box 1393 Orlando, FL 32802-1393 J. Christy Wilson, III Brigham, Moore, et al. 111 N. Orange Avenue, Suite 1575 Orlando, FL 32801 J. Stephen McDonald John M. Robertson Robertson, Williams, et al. 538 East Washington Street Orlando, FL 32801 Robert W. Williams P.O. Box 247 Windermere, FL 34786 Carl D. Patterson, Jr. 219 Third Avenue Windermere, FL 34786
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Approximately four years ago, petitioner Howard Meyers purchased an old steel barge for the purpose of using it as a surface to put a crane on for other repair work. The crane work apparently vibrated so much that the deteriorated sides of the barge collapsed. The barge was moved closer to the shoreline, and it sunk. Efforts to remove the whole barge from the water were unsuccessful. Presently only about one-third of the original barge remains in the water. In February of 1979, the petitioner submitted an application to the Department of Environmental Regulation for a permit to move the dismantled sunken barge hull to an adjacent shoreline area, fill the moved barge with fill removed from an excavated shoreline and an upland source and place riprap around the hull. Petitioner had a permit to do maintenance dredging to clean out an existing, channel or basin, and desired the subject permit for the purposes of getting rid of the barge, using it in furtherance of the maintenance dredging work and preventing erosion of the shoreline. Upon receipt of the permit application, the respondent requested further information from the petitioner and conducted an on site inspection. Richard F. Dumas performed the field inspection and recommended that the permit be denied due to the advanced stage of deterioration of the barge, the increase in shoreline discontinuity and the proposed destruction of established marine vegetation in the area. Mr. Dumas was concerned with the adverse impact which would be caused from turbidity as the barge is dragged into place, the continued discharge of rust into the waters, and the alteration and hindrance of established lateral currents. He suggested that the applicant move the barge from the water to an upland area. Thereafter, petitioner unsuccessfully attempted to move the barge out of the water and, in the process, a deteriorated portion of the sunken hull was rolled or folded back on itself, thus reducing the amount resting on the bay bottoms. Revised drawings were submitted to respondent by petitioner. Richard Dumas submitted a modified project appraisal and again concluded that the proposed dragging of the barge to its new site would detach most or all of the vegetation and disturb benthic organisms over a 3,300 square foot area, would increase the prominence of the existing shoreline discontinuity, and could hasten the refilling of the areas for which petitioner holds a maintenance dredging permit. Thereafter, the respondent's branch office gave notice of its intent to deny the application for the subject permit. The grounds for such denial included violations of turbidity standards caused by the physical dragging of the barge and the backfilling operation, the discharge of rust from the deteriorating barge, the destruction and elimination of 3,300 square feet of productive bay bottoms and the entrapment of debris caused by the further protrusion of the shoreline. The water body in question is a Class III body of water which is designated for recreation and the promulgation and maintenance of fish and wildlife. The area through which the barge is to be moved by dragging is vegetated with turtle grasses and brown, green and red algae. The area is one of productivity with types of vegetation that supports important marine organisms. The most remote portion of the barge presently rests approximately 35 feet from the proposed site of placement, thus requiring the dragging of the barge across some 3,300 square feet of a viable, benthic community. This will result in the disturbance or complete elimination of such community. Because the area is one of high energy, it would be quite some time before the area could revegetate itself. The placing and filling of the barge on the adjacent shoreline would displace the benthic community currently present at that site, and the extension of the shoreline would cause further entrapment. The material proposed to be used as fill for the barge is not stable material suitable for fill. Rust would be discharged and thus deteriorate the waters. The applicant has not supplied the Department with any evidence of local approval of the proposed project.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application for a permit to drag the sunken barge across productive bay bottoms to an adjacent shoreline, backfill the barge and place riprap around it be DENIED. Respectfully submitted and entered this 20th day of March, 1980, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Jake Varn, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Howard Meyers Jolly Roger Trailer Park R.D. Number 1, Box 525 Marathon, Florida 33050 H. Ray Allen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent/applicant, The Yachting Arcade (applicant), initiated this matter when it filed an amended application with respondent, Department of Environmental Regulation (DER), on April 27, 1984, seeking a permit authorizing the construction of a docking facility on the eastern shore of Bethel Creek in the City of Vero Beach, Florida.1 Specifically, applicant wished to construct a commercial shoreline dock 530 feet long and six feet wide with four access docks at various locations along the shoreline. The access docks would vary in size from thirteen to sixteen feet in length and from four to ten feet in width. The dock will be situated in front of a two-story commercial structure and parking lot on 1.14 acres owned by applicant which lies between Highway A-1-A and Bethel Creek. That structure will house a restaurant and other retail establishments. A city permit for the dock was previously issued on November 17, 1983, and remains in effect at this time. According to the parties, permit approval is also required from the Department of Natural Resources (DNR). However, DNR is awaiting action by DER before issuing or denying a permit. Bethel Creek is a relatively small navigable U-shaped dead-end canal connected to the Intracoastal Waterway in the Indian River in Indian River County, Florida. It is classified as a Class III water of the State. Because of continued development along the Creek, and poor flushing characteristics, the water has gradually deteriorated over the years. Most of its shoreline is bulkheaded in the vicinity of the proposed project, and it has a depth of around fifteen to twenty feet. The width of the Creek at the site of the project ranges from 120 to 195 feet and represents the most narrow part of the canal. The project is approximately one to two-tenths of a mile from the dead-end of the canal, and less than a half a mile from the opening at Indian River. In addition to applicant's commercial development, there are a number of single family residences on the Creek, a large condominium known as the Riverwalk Condominium, and eight townhouses at the deadend of the Creek. Other development may also exist but was not disclosed at hearing. There are a number of existing private docks with boats on the Creek including a four-dock marina at the end of the canal. Petitioner, Riverwalk Condominium Association, Inc., is an association of condominium owners who reside within 500 feet of the proposed activity. Under the proposal, applicant intends to limit the docking facilities to the private use of The Yachting Arcade." There will be no fuel or maintenance service for boats, and sewage disposal facilities and live-aboards will be prohibited. Shoreline improvement is to be accomplished by excavating an area landward of the dock, backfilling the area with sand and rubble, placing filter fabric over the backfill, laying sand and gravel over the fabric and revegetating the excavated/backfilled area with cordgrass and red mangroves. The theoretical capacity of the docking facility will depend on the size of the boats, but it will allow docking by up to twelve to fifteen boats of the fifty foot category at one time, or up to thirty-six smaller boats simultaneously. At the insistence of DER, the boats will be moored parallel to the Creek in an effort to not impede navigation. After receiving the original and amended applications, DER personnel made three on-site inspections of the property. These were conducted in January and May, 1984 and May,|1985. Although no water quality testing was performed, the Department found the Creek to be a viable habitat for various game and nongame species, including mullet, sheepshead, tarpon, snapper, manatees, great blue herons and egrets. The property along the shoreline was comprised of Australian pines, pepper trees and railroad vines until they were removed in June, 1985 by applicant. There has been severe erosion along the water front but this will diminish through revegetation and excavation of the bank. The construction of the dock will create only minor, short-term turbidity. The quality of the water within the Creek is now poor, but a vegetated shoreline, including mangroves, will assist in cleansing the water and improving its quality. Therefore, applicant has given reasonable assurances that the proposed project will not violate established water quality standards, or constitute a threat to marine life, wildlife or natural resources. According to agency rule an applicant must demonstrate that "the proposed project will not create a navigational hazard, or a serious impediment to navigation. . ." in the affected waters. Even though the dock will be built at the most narrow part of the creek, and may have as many as thirty-six boats moored at any one time, the agency expert concluded that no impediment to navigation would occur.2 However, testimony by residents on the Creek indicate that the actual navigable part of the stream is much smaller, and that boats are frequently "beached" because of the shallow nature of the waters. Since applicant will simultaneously allow as many as fifteen boats in the fifty-foot category, or thirty-six of a smaller variety, to traverse the Creek, there will be a serious impediment to navigation on the narrow navigable part of the Creek. Moreover, it will create a navigational hazard. A restriction on the number of boats to use applicant's dock at one time is not practical, and even DER omitted such a condition because of its inability to enforce this provision. Therefore, the criteria for issuance of a permit have not been met.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of The Yachting Arcade for a permit to construct a shoreline dock on Bethel Creek in Indian River County, Florida be DENIED. DONE and ORDERED this 7th day of August, 1985, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1985.
Findings Of Fact The applicant, Homeport Homeowners Association, represents the property owners of Homeport Development. Homeport Development is a planned unit development consisting of eighty single family lots. The development is located at Navarre Beach, Florida, on the south shore of Santa Rosa Sound. At least six of the development's lots are located on the water. The area surrounding Homeport development is primarily residential in character, with some condominiums adjoining the residential area and a canal leading to a public boat ramp within several hundred feet of the development. The area is fairly pristine. However, there are several piers of varying lengths located in the surrounding area. At least one of those piers is close to 400 feet in length. None of the piers have posed any significant pollution or water quality problems and have not had an adverse impact on the public as a whole. Nor were any of these piers shown to adversely impact the conservation of fish or wildlife and their habitats, cause harmful erosion or shoaling or pose a navigational hazard to boats using the area. Water depths offshore are shallow and do not get over three to four feet for approximately 650 feet. On May 25, 1989, the applicant submitted an application (permit application No. 17-165358-1) to the Department of Environmental Regulation for a dredge and fill permit to construct a 727 foot by five foot pier with a 100 foot by four foot "T", ten boat slips and a hexagonal gazebo. The pier would be constructed out of wood and rest on wooden pilings. The pilings are spaced so as not to impede the flow of water or cause harmful erosion or shoaling. The wood used to construct the pier would be marine treated lumber. The wood would not be treated using creosote. The evidence did not demonstrate that the marine treated wood the applicant intends to use in the construction of the pier would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The proposed pier would be located on property leased to the the Association as part of Homeport Development. The pier would extend from the road adjacent to the lot on which the pier is located, would cross an area of wetlands which is under the jurisdiction of the department and would cross over the adjoining beach to reach the waters of Santa Rosa Sound. The pier would have a stair ingress and egress to the beach and the public may use these stairs to cross over the pier. The water portion of the dock would cross over a sandy bottom; and therefore, would not adversely affect vegetation. The pier is intended to be a permanent amenity of the development. Construction of other piers by lot owners who have waterfront property is limited and this pier is intended to be a substitute for such private docks. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the pier, as it was originally proposed, did not meet departmental standards for water quality and the public interest. Specifically, the Department determined that the 727 foot pier would likely pose a hazard to the navigation of small boats in the area and that the gazebo would have an adverse impact on the salt marsh in which it would be located. On August 8, 1989, the Department issued an Intent to Deny based on its assessment of the proposed project. The Intent to Deny provided that the project could be permitted if the gazebo were moved to an upland location not within the jurisdiction of the Department and the pier shortened to approximately 400 feet to remove the hazard to navigation posed by the 727 foot pier. The applicant took the Department's advice and modified its application. Specifically, the applicant modified the project to relocate the gazebo to an upland site and shorten the pier to 400 feet. The applicant also eliminated the ten boat slips. All other specifics of the original application remained the same. On August 9, 1990, the Department issued an Intent to Issue with a draft permit authorizing the construction of a 400 foot pier subject to several permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other piers in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this pier. For similar reasons, the evidence demonstrated that the proposed pier would not be contrary to the public interest. In essence, the better evidence demonstrated that the pier would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. The evidence demonstrated that some temporary impact on the vegetation of the wetlands would occur in the immediate path of construction of the pier. However, the evidence also demonstrated that the impact would not be significant and would repair itself within a reasonable period of time. The length of the pier does not pose a hazard to navigation of either small or large boats, or motorized or non-mechanized craft. However, the permit does not require the pier to be lighted during periods of darkness or adverse conditions. Given the fact that the location of the proposed pier does not appear to be in a well lit area, and because of the pier's proximity to a canal leading to a public boat ramp that is subject to periodic high use, the pier would likely pose a hazard to navigation should adequate lighting not be required. Therefore, a condition that the pier be constructed with lights sufficient to illuminate it to a person in the water during periods of darkness or poor viewing conditions should be added to the draft permit attached to the Department's Intent to Issue. Subject to the addition of the above condition, permit application NO. 17-165358-1 sought by Homeport Homeowners Association, for a permit to construct a 400 foot pier should be issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order issuing a permit to construct a 400 foot pier as sought by Homeport Homeowners Association in permit application NO. 17-165358-1 and subject to the additional permit condition that lighting be added to the pier. DONE and ENTERED this 4th day of June, 1991, in Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 4th day of June, 1991. APPENDIX TO RECOMMENDED ORDER CASE NO. 90-6184 The facts contained in the third sentence of paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in the first two sentences of paragraph one were not shown by the evidence and are not appropriate facts for official recognition. The facts contained in paragraphs 3, 11, 13, 14 and 19 of Petitioner's Proposed Findings of Facts are subordinate. The facts contained in paragraphs 6, 7, 15, 17 and 18 of Petitioner's Proposed Findings of Facts were not shown by the evidence. The facts contained in paragraphs 5, 12 and 16 of Petitioner's Proposed Findings of Fact are irrelevant or immaterial. The facts contained in the first paragraph of finding number 4 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in the second paragraph of finding 4 are adopted. Paragraph 2 and 9 of Petitioner's Proposed Findings of Fact are legal argument. The facts contained in paragraph 7 of Petitioner's Proposed Findings of Facts are subordinate except for the fact referencing the a navigational hazard which fact was not shown by the evidence. The facts contained in the first sentence of paragraph 8 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the second sentence of paragraph 8 were not shown by the evidence. The facts contained in the second, third and fifth sentences of paragraph 10 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in the first and fourth sentences of paragraph 10 were not shown by the evidence. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 12 and 13 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraph 10 of Respondent's Proposed Findings of Fact are adopted except for the fact relating a navigation hazard which was not shown by the evidence. COPIES FURNISHED: Mary Callaway P.O. Box 36097 Pensacola, Florida 32501 Bruce A. McDonald 700 South Palafox Street Suite 3C Pensacola, Florida 32501 Michael P. Donaldson Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary Twin Tower Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400 Barbara Ownes 113 Riverdale Covington, Louisiana 70433 Daniel H. Thompson, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Fl. 32399-2400
Findings Of Fact The Application On or about November 8, 1994, Raymond and Nancy Swart, Trustees, applied for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043. As proposed, the dock would consist of: 237' of five foot wide access pier; a terminal dock 45' long and 5.5' wide; and eight finger piers 20' long and three feet wide. All of the structures were proposed to be three feet above mean high water (MHW). Normal construction procedures would be used to "jet" pilings into place, including the use of turbidity screens. As proposed, the dock would provide nine slips for the use of the owners of the nine lots in the Swarts' subdivided property, known as Sunset Place. There would be no live-aboards allowed, and there would be no fueling facilities, sewage pump-out facilities or any other boating supplies or services provided on or at the dock. Under the proposal, verti-lifts would be constructed for all of the slips at a later date. (When boat owners use verti- lifts, there is less need to paint boat bottoms with toxic anti-fouling paint.) As part of the application, the Swarts offered to grant a conservation easement encumbering approximately 400' of shoreline. The Intent to Issue Because Little Sarasota Bay is designated as an Outstanding Florida Water (OFW), and because of concerns regarding the maintenance of its environmental quality, the DEP required that the Swarts submit additional information for review in connection with their application. Specifically, the DEP wanted them to perform a hydrographic study to assure adequate flushing at the site and a bathymetric survey to assure adequate water depths and minimal impacts on seagrasses. After review of the additional information, the DEP gave notice of its Intent to Issue the permit, with certain modifications and conditions. The Intent to Issue would require that the "most landward access pier . . . be extended an additional 15 feet to avoid the mooring of watercraft within seagrasses." It also would require the decking of the main access pier (155' long), which would cross seagrass beds, be elevated to a minimum of five feet above mean high water (MHW). (This would reduce shading and minimize impacts on the seagrasses.) The Intent to Issue included specific measures for the protection of manatees during and after construction. The Intent to Issue specifically prohibited hull cleaning, painting or other external maintenance at the facility. The Intent to Issue specified the width of the 400' long conservation easement (30', for an area of approximately 0.27 acres) and required the Swarts to "plant a minimum of 50 planting units of Spartina patens and 50 planting units of Spartina alterniflora at appropriate elevations imediately waterward of the revetment along the northern portion of the property . . . concurrrent with the construction of the permitted structure." It specified planting procedures and included success criteria for the plantings (an 85 percent survival rate). The Objection On or about March 30, 1995, Raymond and Norma Komarek, the owners of property next to the Swart property, objected in writing to the "magnitude" of the proposed dock facility. They complained that the proposed dock facility "will not enhance anyone's view, but it will create disturbance with noise, night lights, wash and erosion on shore, even possible pollution from up to 35 foot boats." They continued: "We prefer not to live next to a Marina. This appears to be a commercial venture tied to the sale of real estate and/or houses . . .." They conceded that their concerns for manatees had been addressed, but they raised questions regarding the impact on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers. They objected to restrictions on "one's personal rights to use the water by obstruction of navigable waters." They also alleged that the proposed dock facility would be a navigation hazard, especially in fog. The Komareks suggest that the three exempt 125' docks to which the Swarts are entitled under Sarasota County regulations, with the two boats allegedly allowed at each, should be adequate and are all the Swarts should be allowed. The Komareks' objections conclude by questioning the alleged results of alleged "turbidity tests" showing that there is "good action" (apparently on the ground that they believe Little Sarasota Bay has "declined") and by expressing concern about the cumulative impact of future dock facilities if granting the Swart application sets a precedent. The Komareks' Evidence The Komareks were able to present little admissible evidence at the final hearing in support of their objections. Much of the environmental evidence they attempted to introduce was hearsay. Moreover, at best, most of it concerned Little Sarasota Bay in general, as opposed to the specific location of the proposed docking facility. The alleged "turbidity tests" called into question in the Komareks' objection apparently refer to the hydrographic study done at the request of the DEP. The evidence the Komareks attempted to utilize on this issue apparently were the kind of general information about Little Sarasota Bay on which the DEP had relied in requesting the hydrographic study. There was no other evidence presented to contradict the results of the Swart study. While the proposed dock facility would project into the view from the Komarek property looking towards the north (and from the property of the neighbors to the north looking towards the south), there was no other evidence that the proposed dock facility "will create disturbance with noise, night lights, wash and erosion on shore . . .." "[P]ollution from up to 35 foot boats" is "possible," but there was no evidence that pollution is probable or, if it occurred, that the kind and amount of pollution would be environmentally significant. The application clearly is a "commercial venture tied to the sale of real estate and/or houses . . .." But the use of the dock facility would be personal to the owners of lots in Sunset Place; the use would not be public. The Komareks presented no evidence "regarding the impact of the dock facility on commercial fishermen running crab trap lines, scullers, jet skis, and water skiers." Clearly, the dock facility would extend approximately 250' into Little Sarasota Bay. But there was no other evidence either that it would restrict "one's personal rights to use the water by obstruction of navigable waters" or that it would be a navigation hazard. (There was no evidence to support the suggestion made at final hearing that an access dock built five feet above MHW would be a dangerous "attractive nuisance" or that it would be more hazardous than one built three feet above MHW.) Evidence Supporting DEP Intent to Issue Very little pollution can be expected from the actual construction of the dock facility. Primarily, there is the potential for temporary turbidity during construction; but the use of turbidity screens will help minimize this temporary impact. The conditions volunteered in the Swart application, together with modification and additional conditions imposed by the DEP Intent to Issue, limit other potential pollutant sources to oil and gas spillage from the boats using the dock facility. The Swarts' hydrographic study demonstrates that, notwithstanding relatively poor circulation in the general area of Little Sarasota Bay in which the proposed dock facility is located, there is adequate flushing at and in the immediate vicinity of the proposed facility, at least to the limited extent to which pollutants may be expected to be introduced into Little Sarasota Bay from construction activities and use of the facility with the conditions volunteered in the Swart application and imposed by the DEP Intent to Issue. A primary goal of the Komareks' objection is to "downsize" their neighbors' proposed dock facility. They object to its length and its height above MHW. Presumably, they believe that "downsizing" the Swart dock facility would improve their view. If it could not be "downsized," they would prefer that the Swart application be denied in its entirety and that three exempt docks, accommodating two boats each, be built in place of the proposed facility. Ironically, the evidence was that if the Komareks' primary goal is realized, more environmental harm would result. The evidence was that a shorter, lower dock would do more harm to seagrasses, and three exempt docks (even if limited to two boats each) would have approximately three times the environmental impact. Indeed, based on environmental considerations, the DEP Intent to Issue required the Swarts to lengthen the access dock proposed in their application by 15 feet and elevate it by two feet. Lengthening the access dock would move the part of the facility where boats would be moored to deeper water with fewer seagrasses. In that way, fewer seagrasses would be impacted by construction, fewer would be shaded by the mooring of boats, and fewer would be subject to the risk of prop scarring. In addition, the risk of scarring would be reduced to the extent that the water was deeper in the mooring area. Finally, DEP studies have shown that elevating the access dock would reduce shading impact on seagrasses under and adjacent to the dock. Besides having more than three times the environmental impact, exempt docks would have none of the conditions included in the DEP Intent to Issue. Verti-lifts would not be required. Methods of construction would not be regulated by the DEP. Measures for the protection of manatees, before and after construction, would not have to be taken. Hull cleaning, painting or other external maintenance would not be prohibited. Live-aboards, fueling facilities, sewage pump-out facilities and other boating supplies and services would not be prohibited (although County regulation may prohibit some of these activities). Finally, there would be no conservation easement and no planting of seagrasses. The Komareks suggest that County regulation may prohibit construction in accordance with the DEP Intent to Issue. But that would be a question for the County to determine in its own proceedings. All things considered, the DEP Intent to Issue is clearly in the public interest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Protection enter a Final Order granting the application of Raymond and Nancy Swart, Trustees, (the Swarts) for a permit to construct a private multislip dock facility at their property on Little Sarasota Bay in Sarasota County, DEP File No. 5826007043, with the modifications and conditions set out in the Notice of Intent. RECOMMENDED this 29th day of September, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 29th day of September, 1995.
Findings Of Fact Permitting History This development was originally known as North Largo Yacht Club and was owned and developed originally by the Largo Brand Corporation. That developer and this development received Development of Regional Impact approval from the county commission of Monroe County in accordance with Chapter 380, Florida Statutes in 1974. In 1975 that developer received various permits and water quality certifications authorizing construction of the "Atlantic Marina" (the existing marina) from both the Florida Board of Trustees of the Internal Improvement Trust Fund and the United States Army Corps of Engineers. The marina was ultimately constructed and no further governmental approvals are required for the present Respondents to make full use of the existing marina which has an authorized boat capacity of 363 boat slips, which are situated around long piers extending from the shore of the marina basin out into the marina basin. Sometime after construction of the marina, the mortgagee, through foreclosure, obtained title to the property from Largo Brand Corporation which has since dissolved, ultimately conveying it to City National Bank as trustee under a Florida land trust. City National Bank filed the present application in its original form but in February, 1984, conveyed the property to Port Bougainville, Inc. and Port Bougainville Enterprises, Inc., the present Applicant/Respondent who succeeded City National Bank as the real parties in interest prosecuting the present permit application, as modified. The permit application as it presently exists is the result of various modifications suggested by the Department of Environmental Regulation and agreed to by the present Applicant/Respondents, which had the effect of causing the Department to change its position from one of denial of the permit to one of approval, by issuance of a Notice of Intent to grant the permit in June of 1984. The Applicant/Respondent's original decision to apply for the new permit was based upon aesthetic considerations and a desire to redesign and change the theme of the development and the marina itself. It is thus proposed that the boat-mooring facilities be moved to the periphery of the basin and the piers or docks extending out into the basin be removed. This would create an open body of water in the basin, more in keeping with the "Mediterranean Village Harbor" theme of the entire development. The original application filed in early 1984, called for realignment of the docks rather than removal, and the creation of various baylets or inlets along the access canal and contained no proposal for shoaling the existing boat basin. The Department used this original proposal as a basis for its Intent to Deny the Permit Application since it considered those modifications unacceptable in terms of the likelihood that it might degrade water quality or at least not improve the ambient water quality then existing in the marina basin and entrance canal. The Respondents acceded to the demands of the Department, employed additional consultants and redesigned the project, including the creation of a sophisticated hydrographic model by which, and through which, the Respondents ultimately proposed (with the Department's agreement) to revise the application as follows: Shoal the entire basin and canal system to no more than -6 Ft. mean low water; widen and sculpt the access canal on the west side and install solid flow baffles on the east side so as to create a sinusoidal or curving configuration in the canal to improve mixing of the water in the canal and basin system; remove the existing docks and construct new docks around the periphery of the basin so as to provide a decreased number of boat slips and capacity for a total of 311 boats; install one bubble screen surrounding the fueling facilities to contain oil and fuel spills and another at the entrance of the access canal where it opens into the Garden Cove Channel so as to prevent organic materials from outside the canal and basin system from being carried into it with tidal currents and wind; installation of "batter boards" along the length of the waterward or easterly and southeasterly side of the access canal so as to protect the mangroves along that side of the canal from the effects of wake energy caused by boats. After further "free-form" review, investigation and negotiation, the Department required, and the Respondents agreed to make the following additional modifications to the marina development plan: Shoal the north end of the basin to -4 ft. mean low water; slightly reconfigure the access canal and install an additional wave baffle on the eastern periphery of the canal in order to improve circulation in the western portion of the boat basin; relocate the proposed fueling facilities more toward the rearward center of the basin in order to further isolate them from the outstanding Florida waters lying at the outward, "seaward" end of the project; provide funds necessary to more adequately mark the Garden Cove Channel in accordance with the requirements specified by the Department of Natural Resources so as to further ensure that boat traffic and possible propeller damage could be prevented to the marine grassbeds and other marine life on either side of the Garden Cove Channel; install tidal level gauges at the mouth of the Garden Cove Channel which would show boaters wishing to use the channel and access canal the current, minimum depths prevalent in the channel and canal; grant to the Department a "conservation easement" binding upon the Respondent which would provide the following: That no hydraulic connection be made from any of the upland lakes on the Respondent's property to the marina, to the canal, to the channel or any other state waters; an agreement not to employ boat lifts that would require a dredge and fill permit from the Department; an agreement not to apply for additional permits so as to increase the number of boat slips in the marina beyond the 311 presently proposed; to develop a reef management plan in conjunction with the Florida Audubon Society to include educational programs for the public as well as underwriting the installation of mooring buoys and adequate channel markers in the John Pennekamp Reef Park, the Outstanding Florida Waters (OFW) involved in this proceeding. During the time of construction of the proposed marina modifications, the entire marina will be closed and isolated from the waters of Garden Cove by the installation of a dam at the entrance to the marina access canal where it opens into Garden Cove. The dam will remain in place until turbidity resulting from the dredging, filling and construction has settled and the waters in the marina have achieved the turbidity standards required by the Department and its rules contained in Chapter 17 3, Florida Administrative Code. All the proposed modification work will be performed landward of the surveyed mean high water line. Additionally, a storm drainage system will be installed which will prevent any stormwater runoff from being deposited into the marina harbor. The stormwater runoff will be routed away from the harbor through the use of a reverse gradient around the periphery of the harbor and runoff from the adjacent real estate development will be thus routed away from the harbor into grass swales to be collected into holding areas for filtration. Ambient Water Quality in the Marina and Garden Cove Respondents tendered Dr. Earl Rich, a professor of Biology at the University of Miami as an expert in ecology and he was accepted without objection. Since 1974 he has conducted extensive studies with attendant sampling, observation and water quality monitoring in the Port Bougainville Marina. Beginning in 1983 he also performed certain chemical analyses on the water samples from the marina. Photographs taken underwater in the marina basin were adduced and placed in evidence, as were the results of the observations and tests. It was thus established that there is a dense growth of macroalgae in the marina at a depth of about six feet, although at the nine-foot level there is much less such growth. Concomitantly, the deeper holes in the marina basin exhibit a low dissolved oxygen reading and are largely responsible for the frequently occurring, low dissolved oxygen reading in the marina system that is lower than acceptable standards embodied in Chapter 17-3, Florida Administrative Code. Garden Cove itself is a shallow embayment open toward the Atlantic Ocean in a generally easterly direction, characterized by a rocky or coarse sediment bottom substrate. It is characteristic of this area that organic materials such as seaweeds and the like, are transported by currents and winds into Garden Cove from other marine areas. The underwater vegetation in Garden Cove is lush. There are extensive shallow-water marine grass beds. These vegetated areas support a large population of marine animals and fish. Dissolved oxygen is, of course, essential to the metabolism of these organisms. The two primary means for oxygen to enter the water are as a result of photosynthetic activity of marine plants and through oxygen entering the surface waters through waves and wind action, with that surface water being distributed and mixed so as to disburse the action throughout the water column. The term biochemical oxygen demand or BOD, refers to the rate at which organisms use oxygen in the water. If there are many active photosynthetic organisms, as in Garden Cove, the production of oxygen during the day, as for instance by the seagrasses in the cove, exceeds the BOD of the plant and animal community in the water body, in which case the plants contribute excess oxygen to the air. During hours of darkness, plant and animal communities in the water body will continue to consume oxygen although there will be no photosynthesis to contribute oxygen. Therefore, in an underwater community rich in plant and animal life, such as Garden Cove, the dissolved oxygen level is typically higher during the daylight hours and BOD readings will be decreased during the night, reaching a low level during the early morning hours. Frequently, dissolved oxygen readings in Garden Cove are below state standards for waters of the State under natural conditions. These low DO readings occur commonly in Garden Cove during conditions of calm wind. Indeed, Dr. Rich has measured dissolved oxygen in Garden Cove below the four-part per million state standard even before the present marina and canal were ever constructed. Since the opening of the marina there have been times when the DO readings in Garden Cove have been lower than those inside the marina itself. Hydrodynamics of the Modified Marina The proposal by the permit applicant calls for widening the access channel into the marina to approximately 130 feet by excavating upland on the western bank of the canal. The access canal will then be reconfigured during the excavation into a winding or curving fashion. That adjustment, along with the solid flow baffles to be installed on the eastern bank of the canal, will set up a winding or sinusoidal flow of tidal currents. The sinusoidal flow will induce secondary helical currents that will move water repeatedly from the top to the bottom of the canal and then back, thereby significantly improving the mixing action. The improved mixing of the waters in the canal and marina will serve two purposes: It will disperse any pollutants so as to reduce pollutant concentrations. It will disperse the oxygen introduced into the surface waters by wave and wind throughout the water column. Dr. Bent Christensen is Chairman of the University of Florida Hydraulics Lab. Using knowledge gained in hydrographic modeling as a result of work he performed in carrying out a "Sea Grant study" under the auspices of the University of Florida, Dr. Christensen designed a computer model of the proposed Port Bougainville marina and access canal by which, in turn, he designed the winding access canal which will emulate nature in producing a turnover of water induced by current velocities and canal configuration, rather than by temperature differences in water. The computer model takes into account tidal flows and wind-induced velocities which are important to mixing of water within the system. Using this model, Dr. Christensen was able to redesign the marina canal so as to improve water quality within that system as well as improving the quality of water leaving the system into Garden Cove. Drs. Lee and Van de Kreeke are ocean engineers who testified as expert witnesses on behalf of Petitioners. They sought to dispute Dr. Christensen's conclusion that the redesign would improve DO levels within the marina based upon their independent determination that a different design would increase flushing times for the system. Flushing, however, is a simplistic way of analyzing water quality. Flushing analysis assumes that the only means to improve water quality is to replace water within the system with water from outside the system. The Christensen model and the resulting proposed design of the marina and canal, on the other hand, improves water quality through internal mixing action. The proposed design actually reduces flushing time, but more importantly, maximizes dispersion of water within the system and along with it, dissolved oxygen. The design introduces dissolved oxygen throughout the water column in the system through internal mixing because of the sinusoidal configuration of the canal and the helical currents the canal configuration sets up. The concentration of pollutants measured by the State Water Quality Standards are, in turn, reduced through the same hydrodynamics. Dr. Van de Kreeke admitted that a key ingredient in his model was the assumption he had regarding BOD in the system, but he had no idea what the BOD extant in the Port Bougainville system might be. He also admitted that his calculations did not take into consideration the factor of wind mixing of the waters in the system and acknowledged that wind can and does play an important role in flushing and mixing the waters in marinas. Finally, Dr. Van de Kreeke admitted that he could not fully analyze Dr. Christensen's assumptions in arriving at his model and design because he did not have the information Dr. Christensen relied upon. Thus, Dr. Christensen's model and design is accepted as more credible than that of Drs. Van de Kreeke and Lee. That model and design establishes that the quality of water exiting the marina into the Outstanding Florida Waters in Garden Cove will be improved by the modifications proposed to be constructed in the marina. Impact on Benthic Communities The northerly end of the marina basin will be sloped from -6 feet to - 4 feet. This widening and shallowing of the marina basin and access channel will have the affect of promoting the growth, regrowth and welfare of the benthic communities in the waters in the marina and access canal by providing greater light penetration to the bottom of the marina. The widening will have the effect of causing a greater portion of the marina bottom to be lighted during the day since at the present time, the bank and surrounding trees shade the marina basin for substantial portions of the day. The increased light penetration will result in more photosynthetic activity by the plant life in the marina and canal such that increased amounts of oxygen will be produced enhancing the dissolved oxygen levels of the marina waters. In that connection, the Respondents' expert, Dr. Rich, has examined a number of marinas and observed very healthy benthic communities in marina harbors more densely populated with boats than will be the proposed marina. Another significant improvement in the ecological status of the present marina will be the placing of a bubble screen device across the mouth of the entrance canal. This will have the effect of preventing floating organic materials such as sargassum, from entering the marina. Marinas typically experience problems related to dissolved oxygen levels in their waters because of an accumulation of floating organic material which tends to settle to the bottom creating excessive biochemical oxygen demand in their decomposition process, thus resulting in decreased dissolved oxygen levels. Thus, the bubble screen will aide in decreasing BOD. Likewise, a bubble screen device is proposed to be placed around the fueling facilities in the rearward portion of the marina basin so as to prevent the spread of pollutants such as spilled oils, greases and fuels, which may occur during routine fueling operations from time to time. Inasmuch as the modifications have been shown to cause some improvement in the dissolved oxygen level in the waters of the marina basin and access canal, it has been demonstrated that the modifications will not interfere with the conservation of marine wildlife and other natural resources. The bodies of water consisting of the marina, the access canal and Garden Cove, at the present time support a diverse marine community that can be expected to continue to flourish. Neither will the proposed activity destroy any oyster or clam beds, as none have been shown to exist in these waters. Dr. Rich has monitored waterways and offshore waters at a nearby, comparable marina, The Ocean Reef Club, for approximately ten years. He has discerned no noticeable impact on the benthic communities within that marina from a very heavy boat traffic during that period of time. The boats using The Ocean Reef Club Marina are typically larger than will use the Port Bougainville facility and boats of over 100 feet in length commonly use The Ocean Reef Club. In terms of impact on offshore benthic communities, he has observed no visible impact by the heavy amount of boat traffic using The Ocean Reef Marina from the standpoint of comparison of the experience with that marina, in terms of biological impacts, with the marina configuration proposed by the Applicant/Respondents. In short, the proposed marina configuration as contrasted to the existing permitted marina, represents an improvement because of the increased surface area providing increased oxygen exchange through wave and wind action, the shoaling which will also be beneficial to dissolved oxygen levels because of its enhancement of photosynthetic processes, and because of the proposed marina management steps designed to prevent floating organic material from entering the marina. Thus, the modified design was shown to provide a meaningful improvement in general ecological conditions within the marina and hence, in the offshore waters of Garden Cove with which the marina waters exchange and mix. Water Quality Dr. Eugene Corcoran is Professor Emeritus of the Rosensteel School of Marine and Atmospheric Sciences. He is a marine chemist and performed a chemical analyses of the samples taken for the water quality report presented by Respondents and in evidence as Respondent's Exhibit 17. Dr. Corcoran also performed the analyses for the ongoing water sampling program conducted by Dr. Renate Skinner, an expert witness for Petitioners. The Petitioners accepted Dr. Corcoran as an expert witness without objection. The proposed marina modifications involved in this permitting application were thus shown to cause no violations of the state standards for dissolved oxygen. The Rio Palenque Water Quality Study in evidence indeed documented a number of instances where dissolved oxygen fell below the state minimum standards of four parts per million in the present marina. Once the modifications are completed there still may be instances when dissolved oxygen falls below that standard, but this can be attributed to natural phenomenon and the same relatively low levels of dissolved oxygen below state standards have been observed in the offshore waters of Garden Cove itself, which is an Outstanding Florida Water. Significantly, however, it was established that concentrations of dissolved oxygen will likely increase as a result of these modifications, the inducement of the helical flow and consequent vertical mixing, the widening of the entrance canal and the shoaling of the bottoms in the marina basin and canal, as well as the measures to be taken to reduce the deposition of organic materials in the marina basin and canal. The only water quality criteria placed in contention by the Petitioners and Intervenors were dissolved oxygen and copper. Although a number of Petitioners' witnesses were qualified to address the impacts of water quality on different marine organisms, only Dr. Curry was qualified as an expert in water quality. Dr. Curry's chief concern was with dissolved oxygen, which is based on the Rio Palenque Study showing present low values for dissolved oxygen in the marina as it now exists. Dr. Curry did not establish that the proposed modifications to the marina would themselves cause dissolved oxygen violations and although he testified in great detail concerning his attempt to compute the amount of copper that might be given off by the bottom paint of boats in the modified marina, he was unable to render an opinion that the modifications would increase copper levels in the waters in the marina. He acknowledged that his calculations were based on the assumption that all the boats in the marina would be using copper anti-fouling paints and his calculations took into account an assumption that all boats in the marina would have been painted within the last six months as a base datum for his calculations. Additionally, he did not take into account dispersion ratio associated with the hydrodynamic forces present in the modified marina. Dr. Curry admitted that he had never studied copper levels in a marina environment and was unable to explain the chemical effects on water quality of copper anti-fouling paints on boats. In all his sampling, he only found one instance of a violation of the Chapter 17-3 copper standard and that occurred within only a few millimeters of the hull of a newly-painted boat. Other fallacies involved in Dr. Curry's analysis, concern the interaction of seawater with copper bottom paint. Since seawater has a high level of carbonates, copper is immediately complexed with organic compounds such as amino acids. These organic complexes are soluble in seawater and indeed, serve as important nutrients to phytoplankton and other beneficial marine organisms. Thus, that portion of the total complex copper precipitated from the water as well as that portion taken up as nutrients would not be included in any concentrations of copper measured in the water column. Additionally, Dr. Curry's computations did not take into account the dispersion of copper concentrations due to mixing or flushing, which has a direct beneficial effect on reducing concentration of copper and other pollutants in the water column. Thus, Dr. Curry's computations are deemed immaterial, inasmuch as he effectively admits that the modifications to the marina would not be detrimental to water quality. The proposed modifications will not lower ambient water quality or significantly degrade the waters in the adjacent John Pennekamp Park, Outstanding Florida Waters. Since it has been established that the marina modifications will likely improve water quality within the marina, logically, the water quality in the park to some degree might be slightly improved, since those waters exchange with the waters in the marina. There will be no increase in concentrations of any pollutants emanating from the Port Bougainville Marina as a result of the proposed modifications. Improved Marking of Garden Cove Channel The Applicant/Respondents are required to provide improved navigational markers in the Garden Cove Channel, pursuant to an amended development order. Additionally, they have agreed to provide additional channel markers delineating the channel from the entrance of the existing marina to the Garden Cove Channel proper. With regard to the Garden Cove Channel, the Respondents proposed to move certain existing channel markers to more clearly identify that channel, which would make certain portions narrower and thereby eliminate boat passage over some shallow areas populated with marine grasses which presently lie within the marked channel. The Respondents also propose to add two more sets of channel markers at the seaward end of Garden Cove Channel, so that boats exiting the channel heading for the open sea will avoid certain shallow marine grass areas. The reason for this is to avoid possible damage to valuable marine grass beds and habitat which might be caused by prop wash of boats crossing over them, as well as actual contact and scouring by propellers or potential grounding of boats navigating these areas. Witness Balfe for the Respondents has personally sounded the entire length of the access canal and Garden Cove Channel. His soundings are admitted in evidence as Respondent's Exhibit 19 and are unrefuted. It was established therefore, that the bottom configuration of that access channel is basically flat or level with only minor irregularities of less than a foot. There are no rock outcroppings or other obstructions which would reduce the controlling depth below -4 feet. Approximately 12 times per year however, during "spring tides", the ambient water depths in Garden Cove could be expected to go below -4 feet mean low water. During these times the tide will be approximately 6 to 8 inches below that normal depth. Perhaps 25 times per year the tide is 5 or 6 inches below that mean low depth. The tide gauge which will be installed will alleviate possible propeller scouring or grounding damage to grass beds and marine habitat, especially during those abnormally low tides, by providing boat operators a current, up-to-date reading on the depths in the channel. Contributions to Park Management Plan and Marina Management Plan The Applicant/Respondents have agreed to a permit condition requiring a financial commitment to assist in the management of the John Pennekamp Park so as to minimize the adverse impacts of human use of the park. This commitment includes the provision of $75,000 to finance a study and preparation of a management plan for the John Pennekamp Coral Reef State Park and Key Largo National Marine Sanctuary, which would include study of the feasibility of inaugurating an entry permit system for the park, a testing and certification program for commercial dive boat operators, possible zoning of the park to allow recovery of the park coral reefs and other resources from the impacts of human visitors, locating central mooring buoys so that visitors' boats could be moored in one restricted area to avoid damage to the delicate coral reefs, and more adequately marking the boundaries of the park. Additionally, the Respondents propose to provide $50,000 for the acquisition of anchor buoys to be placed in selected areas of the park and to provide funds to finance a survey to more adequately identify the boundaries of the park. In order to more adequately protect water quality in the marina itself, the Respondents will inaugurate a marina management program which will include the installation of a sewage pump-out station and a pump-out station for motor oils and lubricants for boats. In addition to the two bubble curtains mentioned above, the Respondents will install containment booms and absorption mats and will permanently maintain a boat equipped with absorption mats and suction equipment for fuel or oil spill removal. The marina will prohibit persons living aboard boats, to prevent attendant sewage effluent problems, and will prohibit maintenance of boats, including painting and oil changes, while boats are in the water. This program will be monitored by an environmental protection officer employed by the condominium association under the auspices of the Respondents. Many of these marina management provisions are already requirements of the Port Bougainville 1982 development order referenced above. Management of Inland Lakes Although the use and management of the inland lakes on the Respondents' property is not directly involved in this permit application proceeding, the Respondents' overall development plan encompassed by the development order anticipates that at a future time a boat lift will be installed on upland so as to allow boats to be transferred from the inland lakes into the marina for access to marine waters. The lakes themselves, however, will not be open to the marina or to outside waters. The inland lakes are anticipated to provide dockage for approximately 200 boats, with restrictions against boats exceeding 20 feet in length and boats powered by combustion engines. The Respondents expect that the inland lakes will be primarily used by small boats such as canoes or sailboats. Dry storage for boats will be maintained on an upland site, for which a DER permit is not required. Neither is a permit for a boat transfer facility required since it would not involve dredging, filling or construction over water. The use of a boat lift, although it itself is not an issue before the Hearing Officer in this proceeding, would involve the potential of 200 or more boats using the marina in addition to those for which the marina is designed. This could occasion substantially greater risk for oil, grease and fuel spills and other potential damage to the water quality within the marina and damage to the marine habitat, grass beds and so forth within the marina, the access canal and the adjacent areas in Garden Cove. Accordingly, the conservation easement which the Respondents have agreed to provide the department as a condition to the grant of this permit should be amended to add a further condition on a grant of this permit so as to preclude placement of boats from the inland lakes into this marina or its access canal. Such a restriction would comport with the proposed uses of the inland lakes established by Mr. Scharenberg, the Respondent's principal. Boating Impacts Boat traffic in the Garden Cove Channel area is significant, with heaviest traffic occurring on the weekends when approximately two to three hundred boats navigate that channel. The boats presently using Garden Cove Channel come from a number of nearby marinas, small fishing docks and dry storage areas, as well as from a marked navigational channel called North Creek that provides access to the Garden Cove area and the Atlantic Ocean from Largo Sound. A small canal cuts through Key Largo into Largo Sound and provides access for boats in the Black Water Sound and other areas on the west side of Key Largo to the Garden Cove area and the Atlantic. The Port Bougainville Marina is expected to attract a mix of boats typical for such a marina, with the majority consisting of boats ranging from 27 to 35 feet in length. Approximately 20 percent of the boats will likely be in the 40-foot range. Larger boats may also use the marina, particularly those with a shallow draft, and "shoal draft" sailboats of 35 to 40 feet can safely navigate in and out of the marina. The marina, as it would be modified, would permit use of boats with a draft of up to three and one-half feet, although deeper draft boats could use the marina by timing arrivals and departures for the high tide, which is a common mode of operation by boat operators in the Florida Keys and other marine areas. The Port Bougainville Marina will contribute approximately 30 to 50 boats to the Garden Cove boat traffic on an average weekend out of the possible 311 boats in the harbor as it is proposed to be constructed. There will be a lesser number of boat arrivals and departures during the weekdays. The primary users of boats in and out of the marina will be people who own condominiums in the attendant real estate development. Temporary visitors, not owning boats moored in the marina, would typically use the dive charter boats and other rental boats in the surrounding areas, such as at the Ocean Reef facility. The existing marina which is already permitted and can be fully used at the present time from a legal standpoint, could accommodate the same reduced number and sizes of boats as the proposed modified marina by simply removing some of the present docks and finger piers. The Respondents propose to maintain approximately 20 slips for boats which are not owned by condominium unit owners, and they anticipate operating six to seven deep-sea charter boats as well as five smaller skiff-type charter boats, and perhaps as many as two dive charter boats with additional demands for charters to be serviced by charter boats in the surrounding areas. Boating adverse impacts on the marine benthic communities inside and outside of the marina will be minimized by the construction configuration of the marina and boat slips, the shoaling and widening of the marina basin and canal, and the channel marking and tidal gauging provisions proposed by the Applicant/Respondents. These safety arrangements would be further enhanced by the above-mentioned restriction on the placing of boats into the waters of the marina and canal from the inland lakes. The configuration of the proposed modified marina and the shoaling will have a beneficial effect in rendering use by extremely large boats, which might cause propeller, wake or grounding damage to the marine benthic communities unlikely because of the inaccessibility caused by the intentional shoaling. Coral Reef Impacts Dr. Peter Glynn is a qualified expert in marine ecology and was accepted as an expert witness in that area with particular emphasis, through his long specialization, in the ecology of corals and coral reefs. He has researched the effects of sediments, herbicides, pesticides, oxygen levels, temperature, salinity, tidal effects and oil pollution on corals. He testified as a rebuttal witness addressing concerns raised by Petitioners' and Intervenor's witnesses with regard to boat traffic, attendant turbidity and possible synergistic effects on coral reefs caused by oils, greases, low oxygen levels and turbidity. Dr. Glynn has studied corals in many areas of the world including the Caribbean and the Florida Keys. The coral reefs in Florida are similar to those in the Caribbean area and belong to the same "biogeographic province." He has dived in and examined the Garden Cove area and found four species of small reef building corals in Garden Cove. These were found in the vicinity of a shipwreck near the channel entrance to Garden Cove and the remainder of the corals observed in Garden Cove were in the bottom of the boat channel running through Garden Cove. There were no corals observed on the grass flats and in shallower areas of Garden Cove. The corals occurring in the boat channel are in isolated colonies of less than a foot in diameter. The Petitioners and Intervenors attempted to raise the possibility of synergistic adverse effects on corals posed by combinations of oils, oxygen levels, temperatures and sedimentation or similar impacts. It was not shown how or at what concentration turbidity might combine with various oxygen levels, temperatures or degrees of light penetration to produce such effects, however. The only type of synergistic effects on corals Drs. Glynn and Corcoran have observed is that between oils and pesticides. Although this effect has been demonstrated in another study area far removed from the Florida Keys, no such pesticide and oil synergistic impact has been observed in the Florida Keys area, chiefly because it is not an agricultural area characterized by significant use of pesticides. Likewise it was not established that suspended sediments in the Garden Cove area could have an adverse effect on corals by reducing light penetration. In tropical areas such as the Keys, light penetration is often saturating or in greater quantities than are really needed for healthy coral growth and indeed, many corals in these areas have pigments that naturally shield them from excess light because these coral species actually can suffer from too much light penetration. Additionally, Dr. Glynn has observed good coral reef health and growth in areas that are highly turbid. It was not established that an increase of sedimentation deposit on corals will necessarily have an adverse impact, particularly because most corals can accept a substantial amount of fine-grain sediment deposition without adverse effect. The manner in which the proposed marina modifications will be accomplished will minimize sedimentation at any rate since the canal will be dammed off from Garden Cove until all work is completed and all sedimentation within the marina and marina access canal has subsided to levels compatible with the state standards for turbidity. In any event, there is no evidence that boat traffic in Garden Cove at the present time influences the distribution and health of live coral, particularly since the main coral abundance in Garden Cove occurs in the heavily-used boat channel at the present time. Likewise, Dr. Glynn established that sediments from any increase in boat traffic in Garden Cove will not likely drift out on the offshore reef tract and be deposited on the reefs to their detriment in any event, since the fine sediments occurring in Hawk Channel and in Garden Cove, are largely precluded from deposition on the offshore reefs because the waters over the reef tract offshore have very different physical characteristics. That is, there is distinct interface between the inshore and oceanic waters caused by the strong wave assault and current action near the reefs, which precludes the fine sediments from the inshore areas remaining in the area of the reefs. Finally, any increase in the number of people visiting the Pennekamp Park attributable to use of the modified marina will not inevitably lead to degradation of the reefs. By way of comparison, studies of Kaneoi Bay in Hawaii where a major pollutant source from human sewage caused degradation of the coral reefs, showed that when sewage effluent was subsequently directed away from the reefs, the reefs rejuvenated and repopulated and are now used extensively for recreational activities without observable biological degradation. These studies are consistent with studies Dr. Glynn referenced with regard to Biscayne Bay National Park, which have shown no significant degradation occasioned by human visitation of the reefs in that park. Those studies have not shown a significant difference between the health of the "controlled reefs" and the reefs which are allowed to be used for recreational purposes. It was thus not established that there will be any degradation of the corals in the near-shore areas of Garden Cove nor in the offshore reef areas occasioned by any increased boat traffic resulting from the modification of the marina. Indeed, it was not demonstrated that the mere modification of the marina, which will actually accommodate fewer boats than are presently permitted, will cause any increase in present boat traffic at all. Dr. Glynn, in the course of his teaching and studies in the field of marine ecology has become familiar with the causes and effects of Ciguatera toxin in marine environments. He recently participated in the study of possible Ciguatera toxin at the grounding site of the freighter Wildwood on Molasses Reef, some miles distant from the marina site. All cases reported of such harmful concentrations of this toxin have originated from open water, outer coral reef environments, and not from near shore areas such as those involved in this case, where seagrasses and mangroves are the dominant marine communities. Ciguatera toxin organisms require clear open ocean water with strong currents and well-developed coral reefs which are found offshore in the Keys and not in the near-shore mangrove-type environments. The cause of Ciguatera is a concentration of toxin in the food chain. Although the bacteria that cause Ciguatera Toxin in fish, and resulting harmful effects in humans, occur everywhere in marine waters, the bacteria are not a hazard because generally, conditions are not appropriate for the bacteria to multiply. The two main species of dinoflagellates, that have been associated with causing Ciguatera poisoning do not occur in an environment such as the Port Bougainville Marina. They are typically concentrated in larger fish such as snapper, grouper and barracudas which cause problems when they are eaten by people. These species are not generally found in the inshore mangrove and grassbed areas such as are involved in the case at bar. Thus, the concerns expressed by Petitioner's witnesses concerning the possibility of Ciguatera poisoning occurring because of possible damage to corals and coral death caused by the dredge and fill operations, and boat operation associated with the marina and Garden Cove are, in reality, only unsubstantiated speculation.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, RECOMMENDED: That the State of Florida, Department of Environmental Regulation, issue the requested permit subject to the conditions incorporated in the agreement or "conservation easement" executed between the Department and the Respondents with the further condition added to that conservation easement such that the deposition of boats from the inland lakes system into the marina and its access canal be prohibited. DONE and ENTERED this 9th day of April, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1985. COPIES FURNISHED: Elizabeth J. Rickenbacker, Esquire 10500 Southwest 108th Avenue Miami, Florida 33176 Michael F. Chenoweth, Esquire 522 Southwest Third Avenue Miami, Florida 33130 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Michael Egan, Esquire, Robert Apgar, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SIERRA CLUB: UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation; PAMELA BERYL PIERCE, and FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Petitioners, and DOAH CASE NOS. 84-2364 84-2365 FRIENDS OF THE EVERGLADES, INC., 84-2385 a non-profit Florida corporation; 84-2827 THE FLORIDA DIVISION OF IZAAK (Not consolidated) WALTON LEAGUE OF AMERICA, INC., a non-profit Florida corporation; UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation, Intervenor-Petitioners, vs. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and PORT BOUGAINVILLE ASSOCIATES, LTD. a Florida limited partnership, and PORT BOUGAINVILLE ENTERPRISE, INC. a Florida corporation, Respondents. /
The Issue Whether Sam Patterson’s proposed dock project is exempt from the need to obtain an Environmental Resource Permit (ERP) from the Department of Environmental Protection (Department) under Florida Administrative Code Rules 40E-4.051(3)(c) and (d).
Findings Of Fact The Parties Mr. Scully resides at 941 Brookdale Drive, Boynton Beach, Florida, Lot 16, adjacent to and south-southeast of Mr. Patterson's residential property. The northern or rear portion of Mr. Scully's lot borders on an artificial canal that is designated a Class III water by Department rule. He does not have a dock per se; he moors his boat against and parallel to a narrow concrete area (and his lot line), separated by buffering material. Mr. Patterson, the applicant, owns the property at 930 Brookdale Drive, Boynton Beach, Florida, Lot 15. Lot 15 is north-northwest and adjacent to Mr. Scully’s property. This residential property is currently leased to others. The residential property (Lot 14) adjacent to and north-northeast of Mr. Patterson's lot is apparently owned by an individual named Meloche. The Department has the jurisdiction to determine whether the proposed project is exempt from ERP requirements. The Proposed Project On or about September 13, 2004, Mr. Patterson filed an application requesting an exemption to replace an existing five- foot by 21-foot (105-square feet) marginal dock in the same location, configuration, and dimensions as the existing dock. He also requested an exemption to install a five-foot by 16-foot (80-square feet) wooden finger pier extending perpendicular to and from the middle of the existing marginal dock. As of the final hearing, the project has been revised such that the wooden finger pier will extend 11.8 feet (rather than 16 feet) and perpendicular from the middle of the marginal dock. Mr. Patterson changed the length of the finger pier to comply with City regulations, which are not at issue in this case. The “Site Plan” is attached to the Department’s Notice of Determination of Exemption. (JE 1). The “Site Plan” shows a one-story residence on Mr. Patterson's Lot 15. The front of the lot measures 100 feet, whereas the rear of the lot (that abuts the canal on the easternmost portion of the lot) is 50 feet in length from south to north. The seawall is one-and-one-half feet in width. The existing marginal dock abuts the seawall running south to north and is 21 feet long and five feet wide. Small concrete platforms abut the marginal dock on the south and north. The Department reviewed the original application and on October 13, 2004, advised Mr. Patterson, in part, that his project was exempt from the need to obtain an ERP under Florida Administrative Code Rules 40E-4.051(3)(c) and (d). The Department had not reviewed the change to the project prior to the final hearing. See Finding of Fact 5. Lots 16, 15, and 14 are situated as a cul-de-sac (semi- circle) with the canal north of Lot 16, east of Lot 15, and south of Lot 14. Lot 14 is across the canal from Mr. Scully's Lot 16. There are five properties on each side of the canal, running west to east. The artificial canal runs directly east from Mr. Patterson’s property for an uncertain distance to the Intracoastal Waterway (ICW). Mr. Patterson’s property (Lot 15) is the western end-point for this canal. Mr. Patterson’s eastern property line (fronting the canal) is 50 feet in width. However, the precise width of the canal between Lots 14 and 16 is unclear. Ms. Smith reports (in her site inspection report of March 3, 2005 (JE 3)) that the canal is approximately 50 feet wide. Mr. Patterson testified that Karen Main with the City of Boynton Beach advised him that the consensus opinion of City employees reviewing the issue was that the canal measured 66 feet in width. There appears to be some widening of the canal east of Mr. Patterson’s property line and then the canal appears to straighten-out as it proceeds to the east to the ICW and past the easterly property lines for Lots 14 and 16. See (JEs 1-site plan; 5-aerial). The weight of the evidence indicates that the canal, between Lots 14 and 16, is approximately 60 to 66 feet wide. See, e.g., id. In the past, the prior owner of Lot 15 (Mr. Patterson's property) moored a boat at and parallel to the marginal dock, which means that the bow, for example, faced Lot 14 and the stern faced Lot 16. Mr. Patterson currently owns a 16-foot boat that he wants to moor at the marginal dock. However, he feels that it is unsafe to do so, particularly if Mr. Scully’s boat drifts. Meloche (Lot 14 to the north) has a fixed boatlift, which allows for the elevation of a boat out of the water, with the bow facing west toward and in front of the northern end of Mr. Patterson’s seawall. (JE 4). Mr. Scully moors his boat parallel to the shoreline of Lot 16 and perpendicular to Mr. Patterson’s 50-foot eastern seawall and property line. (JEs 4 and 6). Mr. Scully’s seawall intersects Mr. Patterson’s seawall such that when Mr. Scully’s 22-foot boat is moored at his seawall, it is also in front of the southern end of Mr. Patterson’s seawall. Id. When Mr. Scully’s boat is tightly moored at his seawall, it does not interfere with or block Mr. Patterson’s marginal dock. (JE 6). However, when Mr. Scully’s boat is loosely moored, it drifts toward the center of the canal in front of Mr. Patterson’s marginal dock. (JE 4). With no boat moored at the marginal dock, Mr. Scully is able to freely maneuver his boat to his seawall with limited “backing” of his boat required (stern first). With a boat consistently moored at Mr. Patterson’s marginal dock, Mr. Scully would have to back into his area beside his seawall in order to avoid colliding with that boat. Mr. Patterson’s finger pier would enable him to safely moor a boat perpendicular to the marginal dock. Centering the finger pier at the marginal dock is likely to make it easier for Mr. Patterson and Mr. Scully to navigate to their respective mooring areas, depending on the size of the boats moored by Mr. Patterson and Mr. Scully. (The Department, in reviewing similar exemption requests, does not consider the type and size of the boat(s) to be moored at the proposed dock or adjacent mooring site.) It is preferable for the boats to be moored, in this location, stern first, with the bow facing down the canal from the wake of the boats traveling in the ICW. Centering the finger pier at the marginal dock and mooring Mr. Patterson’s boat on the north side of the finger pier is likely to enable Meloche, Mr. Patterson, and Mr. Scully to moor their boats parallel to each other and avoid collisions.1 Placement of the finger pier at the northern end of the finger pier, while favored over the proposed location by Mr. Scully, is likely to interfere with Meloche’s use of his property and boatlift. With the finger pier centered on the marginal dock and a boat moored to the north, Mr. Scully can maneuver his boat to his seawall by “backing in” stern first. An experienced boater can accomplish this task in two to three maneuvers. Mr. Scully is an experienced boater and has lived on the canal for approximately eight years. Shortening the finger pier from 16 feet to 11.8 feet will not affect Mr. Patterson’s ability to safely moor a boat on the northern side of the finger pier. The Challenge Mr. Scully contends that the placement of the wooden finger pier and the mooring of a sizable boat on the proposed finger pier will interfere with his ability to navigate in and out of the canal in or around his property, and necessarily interfere with his ability to moor his boat adjacent to his property. He also contends that the marginal dock and the finger pier are two docks, not one. Resolution of the Controversy Replacement of the existing marginal dock will consist of replacing the decking and using the existing pilings. The existing marginal dock is currently functional. Reconstruction of the marginal dock and construction of the finger pier will be done by a licensed marine contractor. The licensed marine contractor will use best management practices to avoid water quality problems in the canal during construction. Construction of the proposed project is not expected to adversely affect flood control or violate water quality standards. The proposed project will not impede navigation. But see Endnote 1.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order concluding that Mr. Patterson’s proposed dock project, as revised, is exempt from the need to obtain an ERP. DONE AND ENTERED this 14th day of April, 2005, in Tallahassee, Leon County, Florida. S CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 2005.
The Issue The issue is whether Terry Carlson's application to construct and install a single-family dock in Lee County, Florida, is exempt from the need for an Environmental Resource Permit.
Findings Of Fact Based on the evidence presented by the parties, the following findings of fact are made: On April 27, 2007, Mr. Carlson filed with the Department an application to modify a single-family dock in a man-altered waterbody in Section 13, Township 46 South, Range 23 East, Lee County (County), Florida. In geographic terms, the property is located at 18570 Deep Passage Lane, which is at the base of a peninsula which extends for around one-half mile south of Siesta Drive, a roadway that appears to be in an unincorporated area of the County between the Cities of Fort Myers and Fort Myers Beach. See Carlson Exhibits 10A and 10B. Although Respondents have not stipulated to the facts necessary to establish Petitioner's standing, that issue is not identified in the parties' Joint Prehearing Stipulation as being in dispute. Because no member of the Association testified at final hearing, the number of members in the Association, the number who operate boats and their size, and the nature and purpose of the organization are not of record.5 It can be inferred from the record at the final hearing, however, that at least one member of the Association, Mr. Kowalski, who lives at 12228 Siesta Drive, operates a boat on the affected waterway. Carlson Exhibits 10A and 10B are maps of the general area and reflect that Siesta Drive begins at an intersection with San Carlos Boulevard (also known as County Road 865) to the east and terminates a few hundred yards to the west. (County Road 865 is a major roadway which connects Fort Myers and Fort Myers Beach.) On the south side of Siesta Drive are three man- made, finger-shaped canals, which extend to the south and provide access for boaters to the Gulf of Mexico. According to one expert, the finger canals are between one-fourth and three- quarters of a mile in length. The canals run in a straight line south for perhaps two-thirds of their length, then bend slightly to the southwest at "elbows" located a few hundred feet north of their outlets. Basins are located at the northern end of each canal. The third canal is the western most of the three canals and is at issue here. Carlson Exhibit 9 (an aerial photograph) reflects that a number of single-family residences, virtually all of whom have docks, are located on both sides of two peninsulas which lie between the three canals. Mr. Carlson owns property on the southern end of the peninsula between the second and third finger canals. It can be inferred from the record that Mr. Kowalski resides in or close to the basin in the third canal. Boaters wishing to depart the third canal must travel south to the end of the canal, make a ninety-degree turn to the east, pass through a channel which lies directly south of Mr. Carlson's proposed dock, head slightly northeast for a short distance, and then make another ninety-degree turn to the south in order to gain access to a channel (directly south of the second finger canal) leading into Pelican Bay and eventually the Gulf of Mexico, approximately one mile away. Boaters entering the third finger canal would travel in a reverse direction. At the point where the dock will be constructed, the channel appears to be around two-hundred fifty feet wide (from the applicant's shoreline to a cluster of mangrove trees to the south), but much of the channel, as well as the three canals themselves, have a soft bottom consisting of sand and silt, which limits the speed and accessibility of vessels. The original application requested authorization to construct a floating dock anchored by concrete pilings at the southern end of the finger canal in front of Mr. Carlson's property. (The proposed dock replaces an older wooden dock which has now been removed.) That application represented that the dock is private and less than 1,000 square feet; it is not located in Outstanding Florida Waters; it will be used for recreational, noncommercial activities associated with the mooring or storage of boats and boat paraphernalia; it is the sole dock constructed pursuant to the requested exemption as measured along the shoreline for a minimum distance of sixty- five feet; no dredging or filling will occur except that which is necessary to install the pilings necessary to secure the dock in place; and based upon the depth of the water shown in accompanying documents and the dock's location, the dock will not substantially impede the flow of water or create a navigational hazard. These representations, if true, qualify the dock for an exemption from permitting by the Department. See § 403.813(2)(b), Fla. Stat.6; Fla. Admin. Code R. 40E- 4.051(3)(b)1.-4. Based upon the information supplied in Mr. Carlson's application, Mark R. Miller, Submerged Lands and Environmental Resource Program Manager in the Department's South District Office (Fort Myers), issued a letter on May 8, 2007, advising Mr. Carlson that his application qualified for an exemption from Department permitting requirements and that the letter was his "authorization to use state owned submerged land (if applicable) for the construction of [his] project." After receiving the Department's first letter, Mr. Carlson elected not to publish notice of the Department's decision or provide notice by certified mail to any third parties.7 Therefore, third parties were not barred from challenging the Department's decision until after they received actual notice. The parties no longer dispute that after the Association received actual notice of the construction activities, it filed a request for a hearing within twenty-one days, or on December 26, 2007. Therefore, the request for a hearing is deemed to be timely. Section 403.813(2)(b)3., Florida Statutes, and Florida Administrative Code Rule 40E-4.051(3)(b)3. are identical in wording and provide that in order to qualify for an exemption, a dock "[s]hall not substantially impede the flow of water or create a navigation hazard." In its Petition, the Association contended that this requirement had not been satisfied. It also contended that the documents used in support of the initial application may not be valid. In the parties' Joint Prehearing Stipulation, the Association clarified this objection by contending that the exemption may have expired because site conditions have materially changed from those initially reviewed by the Department. This allegation is presumably based on the fact that during the course of this proceeding, Respondent submitted two revisions to its original construction plans. Sometime after the first letter was issued, new information came to light and on May 16, 2008, Mr. Miller issued a Revised Letter which stated that the Department had "determined that the proposed project as described in the above referenced application . . . does not involve the use of sovereignty submerged lands[,]" and that "no further authorization will be required from the Submerged lands and Environmental Resources Program." See Department Exhibit 2, which is a disclaimer for the relevant waters issued by the Board of Trustees of the Internal Improvement Trust Fund. The effect of the disclaimer was to render Florida Administrative Code Rule Chapter 18-21 inapplicable to this proceeding. By the time the Revised Letter had been issued, the original application had been revised twice, the last occurring sometime prior to the issuance of the Revised Letter. Among other things, the size of the dock has been increased to 997 square feet, and the dock will be placed nineteen feet landward and westward (or twenty-five feet east of Mr. Carlson's western property boundary) of the initial dock design for the purpose of improving navigation and creating less of an inconvenience to other boaters. The dock will now be located twenty-five feet from the seawall and is approximately seventy feet long and eight feet, five inches wide. A gangplank and floating platforms provide a walkway from the seawall to the proposed dock. On the western edge of the dock, running perpendicular to the seawall, will be pilings that will accommodate a boat lift for one of Mr. Carlson's boats. (The record reflects that Mr. Carlson intends to moor a forty-eight-foot Viking with a width of approximately sixteen feet, six inches, on the outside of the dock, parallel to the seawall, while a second boat will be stored in the boat lift.) A floating platform is located seaward of the main dock to allow access to the boat on the boat lift. After reviewing these changes, Mr. Miller reaffirmed his earlier determination and concluded that all criteria had still been met. In conjunction with the initial application, a Specific Purpose Survey of the channel dimensions was prepared by a professional surveyor, Mr. Timothy Mann, which reflects the bottom elevations of the channel in front of Mr. Carlson's property. The bottom elevations were calculated by taking manual and electronic readings using the national geodetic vertical datum (NGVD) of 1929. This method is accepted in the surveying and mapping industry to calculate bottom elevations. The survey was signed and sealed by Mr. Mann. The updated applications relied upon the same survey. In calculating the water depth, Mr. Mann subtracted the mean low tide in the Pelican Bay area from the bottom elevation survey. Mean low tide is an elevation of the average low tide over a nineteen year period. Mr. Mann obtained these average low tide records from the State. Mean low tide for the Pelican Bay area was determined to be approximately -0.5 NGVD. Therefore, if Mr. Mann's survey showed a depth of -7.77 feet, the water depth would be -7.27 feet. The survey reflects that there is at least a sixty-foot wide area beyond the proposed dock with depths at mean low water of between four and five feet. See Carlson Exhibits 7A and 7B. The mean low water survey adds further justification for the Department's determination because it is not required by the Department, and applicants do not normally submit one. It should be noted that although the Department has no rule for how deep a channel needs to be, a three-foot depth is typically used. To satisfy the navigation concern raised by Petitioner, Mr. Carlson engaged the services of two long-time licensed boat captains, both of whom were accepted as experts. Besides reviewing the dock design, on May 13, 2008, Captain Joe Verdino navigated the entire length of the third finger canal using a thirty-foot boat with a five-foot beam and twenty-four inch draft. The boat was equipped with a GPS sonar calibrated at the hull of the craft to verify the depth of the water shown in the Specific Purpose Survey. Based upon his measurements, Captain Verdino determined that there is at least another sixty feet beyond the proposed dock for other vessels to safely travel through the channel and that vessels with a draft of four to five feet would be able to safely navigate the area. Therefore, he concluded that a fifty-five-foot boat with a sixteen to eighteen-foot beam could safely navigate on the channel. Even though the measurements were taken when the canal was closer to high tide than low tide, the witness stated that this consideration would not alter his conclusions. He further opined that wind is not a major factor in this area because the channel is "well-guarded" by Fort Myers Beach, which essentially serves as a large barrier island to the southwest. He discounted the possibility of navigational concerns during nighttime hours since boats have lights for night travel. Significantly, he noted that the tightest navigable area in the third canal is at an elbow located several hundred feet north of Mr. Carlson's property, where a dock extends into the canal at the bend. Therefore, if vessels could navigate through a narrower passageway further north on the canal, then vessels would have no difficulty navigating safely in front of Mr. Carlson's proposed dock. After reviewing the plans for the proposed dock, Captain Michael Bailey also navigated the third canal and concluded that the canal can be safely traversed by a fifty-two- foot boat. This is the largest boat presently moored on the third canal. After Mr. Carlson's dock is constructed, he opined that there is at least "fifty plus" feet and probably sixty feet of width for other boats to navigate the channel, even if a forty-eight-foot boat is moored at Mr. Carlson's dock. In reaching these conclusions, Captain Bailey used a PVC pipe and staked out depths in the channel beyond the proposed dock to verify the figures reflected in the Specific Purpose Survey. PVC pipes provide the most accurate measurement of the actual distance from the water's surface to the bottom of the channel. Like Captain Verdino, he noted that the narrowest point on the canal was at the elbow several hundred feet north of the proposed dock where boats must navigate between a private dock on one side and mangrove trees on the other. Captain Bailey discounted the possibility of navigational hazards during nighttime hours since a prudent mariner always travels slowly and would not enter a finger canal at nighttime unless he had lights on the boat. Mr. Mark Miller also deemed the navigation issue to be satisfied. He did so after reviewing the Specific Purpose Survey, the aerial photograph, the location of the dock, the results of a site inspection, and other dock applications for that area that had been filed with his office. Based upon all of this information, Mr. Miller concluded that there is an approximate sixty-foot distance to the south, southeast, and southwest beyond Mr. Carlson's dock before the waters turn shallow (less than four to five feet deep), and that the dock would not pose a navigational hazard. In response to Petitioner's contention that the third set of drawings was not signed and sealed by a professional surveyor, Mr. Miller clarified that drawings for dock applications do not have to be signed and sealed. (The third set of drawings was based on the first set submitted to the Department, and which was signed and sealed by a professional surveyor.) He also responded to an objection that the Department's review did not take into account the size of the boat that Mr. Carlson intended to dock at his facility. As to this concern, Mr. Miller pointed out that the Department's inquiry is restricted to the installation of the dock only, and not the size of the boat that the owner may intend to use. Finally, even though the County requires that a building permit be secured before the dock can be constructed, and has its own standards, that issue is not a statutory or rule concern in the Department's exemption process.8 Petitioner further alleged that site conditions have materially changed since the original application was filed and that the exemption determination should automatically expire. (This allegation parrots boilerplate language used in the Rights of Affected Parties portion of the Department's two letters.) As to this contention, the evidence shows that the applicant revised its dock plans twice after its initial submission. The Association does not contend that it was unaware of these changes or that it did not have sufficient time to respond to them prior to final hearing. The third (and final) revision is attached to Respondents' Joint Exhibit 2 (the Revised Letter) and indicates that the dock will be 997 square feet, which is larger than that originally proposed, but is still "1000 square feet or less of surface area," which is within the size limitation allowed by the rule and statute. It will also be further west and closer to Mr. Carlson's seawall. These revisions do not constitute a substantial change in site conditions, as contemplated by the Department in its exemption process. In order to have materially changed site conditions, Mr. Miller explained that there must be an event such as a hurricane that substantially alters the nature of the channel. Therefore, there is no basis to find that a material change in site conditions has occurred and that the original determination of exemption, as revised, should automatically expire. Petitioner presented the testimony of Captain Marcus Carson, a licensed boat captain, who moved to the Fort Myers area in 2000. He noted that the three canals (known as "the three finger area") have always been a "little hazardous" and because of this he cautioned that only residents familiar with the waters should use them. On May 12, 2008, he accompanied Mr. Kowalski on a "brief trip" in Mr. Kowalski's boat up and down the third canal. Using a dock pole to measure depths, he found the deepest areas of the channel below Mr. Carlson's home to be between 4.6 and 5.0 feet. However, he conceded that a dock pole is not as accurate as a PVC pipe, which Captain Bailey used to take the same type of measurements. Based upon the first set of plans, which he used in formulating his opinions, Captain Carson criticized the dock as being "out of place," "overbearing," and not aesthetically pleasing. He also opined that once the dock is constructed, the channel would be too small for two fifty-foot boats to pass through the channel at the same time. However, these conclusions are based upon the assumption that the original dock plans and pilings would be used. The witness agreed that if the original plans have been modified, as they have, and the dock moved further west and closer to the seawall, he would have to reevaluate his opinions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order determining that Mr. Carlson's project is exempt from its permitting requirements. DONE AND ENTERED this 27th day of June, 2008, in Tallahassee, Leon County, Florida. S DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 2008.
The Issue The issue in this case is whether the decision of the Planning and Zoning Board denying Petitioner's application for conditional use approval should be sustained.
Findings Of Fact On or about February 16, 1990, the Petitioner filed an application for conditional use approval with the Respondent seeking permission to operate a personal watercraft rental business at a motel and restaurant located at 601 South Gulf View Boulevard on Clearwater Beach. According to the application, the Petitioner proposes to rent two "Hobie cat" catamaran sailboats, and four to ten "wave runners". The Petitioner proposes that the vessels would be escorted westward, north of and parallel to, the marked boat channel in Clearwater Pass, then northwestward to open waters where, according to Petitioner, a "safewatch and service unit of nonpropeller power" would "monitor" customer activities. The subject property is located between South Gulf View Boulevard and Clearwater Pass, west of the Clearwater Pass Bridge, and is comprised of two zoning districts, an upland portion that is zoned CR-28, or Resort Commercial "Twenty-eight", and a beach front portion that is zoned OS/R, or Open Space/Recreation. Clearwater Pass separates Clearwater Beach and Sand Key Islands, and is the only open access between Clearwater Harbor and the Gulf of Mexico. A convenience store is located north of the property, and hotels are located east and west of the property. At the hearing before the Respondent's Planning and Zoning Board on March 13, 1990, the Planning and Development Department recommended denial of the application. In its written report to the Board, the planning staff based its recommendation upon the recommendations of the City's Harbormaster and Marine Advisory Board, which in turn were based upon concerns for safety due to the heavy boat traffic in the Clearwater Pass channel and at jetties along the southern end of Clearwater Beach and the northern end of Sand Key, all of which are located in the vicinity of the subject property. Based upon the testimony of Harbormaster Bill Held, it is found that state and federal approval of markers to mark off a private corridor in Clearwater Pass to accommodate Petitioner's proposed activities would be unlikely. During the hearing before the Board, the Board heard testimony from several persons in opposition to this application based upon concerns regarding the safety of swimmers due to careless operation of similar types of vessels, and strong currents in Clearwater Pass. At the conclusion of the public hearing, the Board discussed the application prior to voting. Members of the Board expressed concerns regarding public safety due to the dangerous condition of the area. The Board then voted unanimously to deny the application. Subsequently, the Petitioner timely filed a notice of appeal, resulting in this case. During this final hearing, Ronald Hollins, President of Gulf Fun, Inc., and agent for the Petitioner, testified that his proposed business would operate seven days a week, from sunrise to sunset, or approximately twelve hours daily. Petitioner testified that his personal watercraft rental vessels would be escorted during trips both from the subject property westward to the waters of the Gulf of Mexico and also during return trips, and that a "safety service" boat would monitor the rental vessels while in operation, with the escort boat and the "safety service" boat being in radio contact with a base unit at the motel property. The rental vessels would be prohibited from crossing Clearwater Pass to the south side of the boat channel, and would be limited to an area of operation bounded on the south by Clearwater Pass and on the north by Pier 60 on Clearwater Beach. Petitioner proposes to employ only three or possibly four employees to operate the escort boat, the "safety service" boat, and the base location, to rent the personal watercraft vessels, show a video tape and give a safety booklet to customers, as well as to otherwise supervise the rental vessels during the approximately 84 hours per week that his business would be in operation. Petitoner has never operated a similar business. Based upon the testimony of Richard Howard, captain of a charter boat which regularly goes in and out of Clearwater Pass, it is found that personal watercraft vessels frequently present a hazard to navigation due to the manner in which they are customarily operated. Specifically, personal watercraft operators in Clearwater Pass engage in practices such as towing swimmers on inner tubes, purposely spraying water at boats, and jumping the wakes of boats in the Pass. The activities proposed by Petitioner would exacerbate the insufficient clearance between boats in the channel, boats anchored at the beach, and swimmers, and would, therefore, be inappropriate in Clearwater Pass. The currents in Clearwater Pass are found to be dangerous to boaters on a regular basis, based on the testimony of Arnold Abramson, bridge tender at the Clearwater Pass bridge and Harbormaster Bill Held. A significant number of personal watercraft operators do not demonstrate an understanding of the rules of navigation, or of the currents in the Pass. Based on the testimony of Marine Patrol Office Bill Farias, it is found that the lack of apparent common sense which is frequently demonstrated by personal watercraft operators in Clearwater Pass creates a dangerous condition for others. A common practice is to jump the wake of boats, which results in a loss of control in mid-air. The jetty at the western end of Clearwater Pass obscures vision, making it difficult for incoming boaters to see personal watercraft in the vicinity of the motel, and also making it difficult for personal watercraft operators to see incoming boats. There is another boat rental operation in the area of this subject property, located at the Hilton Hotel, but this existing operation predates the adoption of the Clearwater Land Development Code. The Clearwater Pass bridge had 12,000 drawbridge openings in the past year, and is one of the busiest in Florida.
