Findings Of Fact Petitioner James C. Dougherty owns property known as Buccaneer Point, which is a peninsula on the western side of Key Largo, Florida. This property is also known as Buccaneer Point Estates, and is a residential subdivision. On June 26, 1979, the Petitioner individually and as a trustee, applied to the Respondent for a permit to conduct dredging and filling activities at the aforementioned property, in particular, the project contemplated dredging access channels in Florida Bay and Buttonwood Sound and the connection of two existing inland lakes on the property site to those water bodies. After review, the Respondent denied the permit request and asserted permit jurisdiction in keeping with Chapters 253 and 403, Florida Statutes, and associated regulatory provisions found in the Florida Administrative Code. Having been denied the permit, the Petitioner requested a formal hearing to consider the matters in dispute and a hearing was conducted on the dates alluded to in this Recommended Order. The hearing was conducted in keeping with Subsection 120.57(1), Florida Statutes. The denial of the permit request was in the form of a letter of intent to deny dated May 27, 1980. See Petitioner's Exhibit No. 4, admitted into evidence. Following the receipt of the letter of intent to deny, the Petitioner commenced a series of revisions to the project leading to the present permit request which is generally described in Petitioner's Exhibit No. 6, admitted into evidence. If the project were allowed, it would call for the dredging of access channels in Florida Bay and Buttonwood Sound, those channels to be 75 feet long and -5 feet N.G.V.D., with side slopes of 1:3. Additional inland canals would be dredged to connect the access channels with the interior lakes, the north channel being 100 feet wide -6 feet N.G.V.D. and 400 feet long, and the south canal being 62 feet wide -6 feet N.G.V.D., and 225 feet long. Side slopes of the canals would be 1:3. The project also intends the connection of the two interior lakes by the excavation of a 162-foot long by 50-foot wide connection or plug at a depth of -5 feet N.G.V.D. The material from this excavation of the plug would be used as ton soil on the uplands. Finally, the permit proposes the shoaling of the North Lake on the property to -15 feet N.G.V.D. by the use of clean limerock fill. Through its opposition to the project, the Respondent has indicated concerns that bay grass beds would be damaged over the long term by boats as a result of the dredging of proposed channels and canals; a concern about increased BOD demands which would lower water quality following the long-term accumulation of organic materials in the channels. The Department also contends that construction of the south channel would destroy productive grass beds and "vegetated littoral shallows," which now serve as a nursery and feeding ground for numerous invertebrates. Respondent believes that the north channel would eliminate an area of mangrove wetlands which filters nutrients and toxic materials and serves as a nursery and feeding ground for estuarine organisms and wading birds. The Respondent also feels that the north channel would disturb a stable mangrove humus peat band, which now supports large numbers of invertebrates and which band extends along the northern shoreline of Buccaneer Point. The Department, in discussing the acceptability of the permit, has expressed concern that bottoms adjacent to the north channel would be harmed by increased erosion and sedimentation of the disturbed mangrove peat. Respondent has further stated that water in both interior lakes is now in violation of water quality standards and that water quality data shows high oxygen demands. The Respondent has put at issue the Petitioner's hydrographic report on the flow-through lake system, citing what it believes to be errors in the report. The Respondent has expressed specific concern about water quality standards as set forth in the following rules: Rule 17-3.121(5), Florida Administrative Code, Bacteriological Quality; Rule 17-3.121(7), Florida Administrative Code, Biological Integrity; Rule 17-3.061(2)(b) Florida Administrative Code, BOD; Rule 17-3.121(14), Florida Administrative Code, Dissolved Oxygen; Rule 17-3.121(20), Florida Administrative Code, Nutrients; Rule 17-3.061(2)(j) Florida Administrative Code, Oils and Greases; Rule 17- 3.061(2)(1), Florida Administrative Code, Phenolic Compounds; Rule 17-3.121(28), Florida Administrative Code, Transparency; and Rule 17-3.061(2)(a), Florida Administrative Code, Substances. The Respondent indicated that it felt the project would be adverse to the public interest because it would cause erosion, shoaling, or creation of stagnated areas of water, would interfere with the conservation of fish, marine life and wildlife or other natural resources, and would result in the destruction of oyster beds, clam beds or marine productivity, including destruction of natural marine habitats or grass flats suitable as nurseries or feeding grounds for marine life, including established marine soils which are suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. The project was also thought by the Department to be not in the public interest because it would reduce the capability of the habitat to support a well-balanced fish and wildlife population because it would impair the management or feasibility of management of fish and wildlife resources. The Petitioner has employed hydrographic engineers to conduct a study of the flushing characteristics of the system, should the access channels, canals and interior connections be allowed. It is an undertaking on the part of the Petitioner dealing with physical characteristics of the waterway and the forcing conditions in and around the site, which include tidal flow, wind-driven flow and mean sea level changes. The two State water bodies at the site, Buttonwood Sound and Florida Bay, are separated by the project site and other islands at the northern tip of the project. The effects of this separation changes the arrival time of high tide at the northern and southern extremities of the project site promoting a mean sea level surface difference between Buttonwood Sound and Florida Bay. The sea level difference or "head" assists in generating flow in the sense of moving the water from the high to the low elevation. To gain an exact measure of the hydraulic head, tidal gauges were placed at the northern entrance channel and in the southern entrance channel. The use of these gauges over a period of time allowed the determination of the spring and neap tide conditions. The "head" differences finally arrived at by calculations by the Petitioner's experts assisted in the creation of a mathematical model to determine flows in the water system. This lead to an estimate of flushing time of 2 1/2 days. See Petitioner's Exhibits 7-9,admitted into evidence. In turn, an estimation was made that approximately half of the flow which presently flows through Baker Cut, at the project site, would be diverted to the waterway system if constructed and this in conjunction with other calculations led to the conclusion that the flushing time was 3 to 4 days as opposed to the 2 1/2 days arrived at by the mathematical system. See Petitioner's Exhibit 10, admitted into evidence. The estimate of 3 to 4 days was the more current study and was premised upon conditions of an adverse south, southeast wind which would cause the water to move north, absent current conditions, as opposed to this south direction which was the normal direction of movement. The Petitioner also examined the flushing characteristics of similar projects which were not as favorable because of a lack of "head" differences which assisted in the flow of the water. Based upon the results of the studies conducted by Petitioner's experts, the flushing time of the system is found to be 3 to 4 days. While there is some correlation between a short flushing time for a water system and the water quality within that system, examination of other channel systems in the Florida Keys indicates that short flushing times do not always cause the waters to meet State water quality standards. For that reason, water quality considerations must be dealt with bearing in mind the physical characteristics of the system extant and as proposed using flushing time as a part of the equation. Those specific water quality criteria will be addressed in subsequent portions of these findings. Tests conducted by the parties dealt with the amount of dissolved oxygen in waters at the project site, and revealed dissolved oxygen levels of less than 4 parts per million, even when testing at depths less than 15 feet. This condition is one which is not unusual for natural water systems which have remarkable stability and are not the subject of flow or flushing, as example in mangrove forests. If the system were open, dissolved oxygen levels in the interior lakes would improve, though not necessarily to a level which no longer violates State water quality considerations related to dissolved oxygen levels. On the related subject of BOD or biochemical oxygen demand, that demand placed on oxygen in the water biochemicals or organic materials, the system as it exists and as proposed does not appear to cause excessive BOD, notwithstanding an 8 to 12 foot wide band of peat substrate in the area of the North Lake wall. Although the biochemical oxygen demand related to the layer of peat in the lake's system in its present state presents no difficulty, if the water system were open this peat layer would cause a significant amount of loading of biochemical oxygen demand in the lake system and eventually the surrounding water bodies. On the question of nutrients in the marine system, reflected by levels of phosphorus and nitrogen or variations impact the compensation point for the North Lake. In fact, there would be improvement in transparency or clarity for both lakes. Nonetheless, in the short run, the turbidity problems associated with the placement of clean limerock fill over the flocculent peat material would violate the transparency standard in that location. On the subject of toxic substances, meaning synthetic organics or heavy metals in sea water, tests by the Petitioner at the project site and comparison site demonstrated that those substances would not exceed the criterion related to those materials. On the subject of fecal coliform bacteria, water quality samples were taken at the project site and a comparison site. The residences now at the project site and those at a development known as Private Park use septic tanks. In view of the porous nature of the limerock foundation upon which the residences are built and in which the septic tanks are placed, the possibility exists for horizontal movement of the leachate into surrounding waters of the project site and the landlocked lakes; however, this movement is not dependent upon the opening of a flow-through system at the project site. Moreover, tests that were conducted in the comparison site and project site reveal less than one fecal coliform bacterium per 100 milliliters and if the system were open, the circulation in the lakes would lower the residence time of leachate. In describing the habitat afforded by the interior lakes as they now exist, the North Lake does not afford animals or fish the opportunity to colonize, because there are no areas where they may disappear into the lake. This limits the opportunity for habitat to those animals who have their entire life cycle in a landlocked system, and necessarily of those substances in the water, water quality standards for nutrients will not be substantially altered by the proposed project. In other words, the project will not cause an imbalance in natural aquatic flora or fauna population, by way of advent of phytoplankton bloom leading to eutrophy. The nutrient samples taken in the interior lakes demonstrate normal sea water levels and those levels outside the lake were low and the flow-through system is not expected to raise nutrient levels. Sampling for oils and greases in the comparison waterways where residential development had occurred in the lakes and ambient waters at the site, did not indicate problems with those substances in the sense of violation of State water quality standards. Sampling for phenolic compounds at the comparison sites and at the lakes and ambient waters at the project site showed less than .001 micrograms per liter in each instance of the sample. There are no sources or potential sources of phenols at the site. On the question of the State water quality dealing with transparency, that standard requires that the level of the compensation point for photosynthetic activity shall not be reduced by more than ten percent (10 percent) compared to natural background levels. The compensation point for photosynthetic activity is the level at which plant and animal respiration and photosynthetic activity are equal. In static state, the Petitioner's analysis of this criterion revealed that the North Lake compensation point would be below 15 feet and the South Lake would have no compensation point, due to its shallow nature. In the long run, the opening of the proposed connections in the planned development together with the shoaling, would not negatively excludes animals with a long larva stage. Examination of comparison sites pointed out the possibility for colonization at the project site should the waterways be opened. Specific testing that was done related to colonization by fishes, in particular sport and commercial fishes, demonstrated that those species increased in richness, density and diversity if a system was opened by channels and canals. In addition, the comparison of this project site and systems similar to that contemplated by the open waterway indicated that sea grasses would increase after a period of years if the system were open. Sampling was conducted in substrates to gain some understanding of the effect of the proposed project on the Shannon Weaver Index, i.e., whether there would be a reduction by less than 75 percent of established background levels. Although there would be no problem with the biological integrity standard related to South Lake and its waterway, the North Lake and waterway system could be expected to be in violation of that index due to the present circumstance as contrasted with that circumstance at the point when water flowed through. If the waters were opened to the project site, marine biological systems on the outside of the interior lakes would be given an opportunity to use those lakes as a nursery ground or spawning site for fishes, a refuge in cold weather conditions and a site for predators to find prey. If the lakes were opened to the outlying areas, alga, grass populations, mobile invertebra, plankton and other forms of life could utilize the interior lakes. In the area where the north canal or inland canal would be placed are found red mangroves (Rhizophora mangle) and black mangroves (Avicennia germinas) . The mangroves are frequently inundated by tidal waters and are the most mature and productive of the mangroves which are found at the property site. Some of those mangroves are located waterward of the line of mean high water and would be removed if the project is permitted. The mangroves at the project site provide filtration of sediments and nutrients contained in stormwater runoff from adjacent upland areas, as well as from tidal flows. This filtering process is an essential part of the maintenance of water quality in the adjacent open bay estuarine or marine system. Nutrients in the tidal waters, as well as runoff waters, are settled out and in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The root systems of the mangroves and their associated vegetation provide stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. These mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species. The mangroves also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly for food by a variety of marine organisms, including small fish. Commercial and sports fish species feed directly on the mangrove detritous or on the fish or other forms of marine life that feed on that detrital matter. In removing the mangroves, the applicant causes a loss of the function which those plants provide in the way of filtration and the promotion of higher water quality and causes biological impact on marine organisms, to include sports and commercial fishes. In the area of the north access channel, there exists a band of stable mangrove peat which is 50 to 75 feet wide and one to two feet thick. Waterward of this expanse of humus is located a sandy bottom vegetated by turtle grass and other sea grasses and alga. The turtle grass in the area of the proposed north channel serves as a nursery and feeding ground for a rich and diverse aquatic community, including species of oysters, clams and other mollusks, as well as commercial and sports fish. This grass also filters and assimilates contaminants in the water column and serves to stabilize sediments to prevent turbidity. Dredging would destroy the turtle grass beds and their functions. These impacts on mangroves and sea grasses are significant matters, notwithstanding the fact that the possibility exists that mangroves would repopulate in the area of the north channel and North Lake, together with the repopulation of sea grasses in that area after a period of years. The south waterway would cause the removal of certain sea grasses, which could be expected to revegetate. Moreover, at present, the sea grasses in this area are sparse due to the shallow waters in that area, which waters are too warm for sea grasses to thrive. Construction of the access channel would result in increased erosion and sedimentation based upon boat wake wash and in turn allow for adverse impact on the biologically productive bay bottom. Water quality degradation can be anticipated because of the erosion and leaching of dissolved particulate material from the disturbed peat band at the shoreline and into shallow waters in the bay and into the North Lake. Transition from the inland channels to the bay side access channels at the north and south will be box cut at the mean high water line and in view of the fact that the inland channels are 100 feet wide and the bay side access channels are only 50 feet wide, erosion can be expected, causing turbidity.
The Issue The issues to be resolved in this proceeding concern whether the Respondent Gate Petroleum Company (Gate) has provided reasonable assurances that Water Quality Standards will not be violated by the proposed modification of Gate's dredge and fill permit No. 160462149 and whether Gate has provided reasonable assurances that the proposed modification of that permit will not be contrary to the public interest, nor be the occasion of adverse cumulative impacts to water quality or public interest considerations so as to make this project contrary to the public interest.
Findings Of Fact The Respondent Gate Petroleum Company, by and through its wholly-owned subsidiary, Gate Maritime Properties, Inc., proposes to construct a ship- berthing facility for two ships adjacent to Blount Island Channel, along the southeastern portion of Blount Island, in the St. Johns River, in Duval County, Florida. The proposed facility would provide for the berthing of two ships of the United States Navy Military Sea-Lift Command in conjunction with the mission of the Navy's Rapid Deployment Force. The proposed facility would be located along the southeasterly portion of "Cut A" of the Blount Island Channel and will consist of a "T-head Pier", a breasting dolphin and cat walk and two mooring dolphins. The pier would be connected to the land by an approach trestle. The facility involved will be constructed by the insertion of concrete pilings into the bottom of the Blount Island Channel and in the adjacent upland, which would support concrete decks and caps. Removal of dredged material will be necessary to accomplish the project and will be performed by a floating hydraulic dredge with associated "Cutter Head." The resulting dredged material would be disposed of in a diked spoil area on either Blount Island or at the Dayson Spoil Site adjacent to the mouth of Clapboard Creek. The Respondent Gate currently holds a DER dredge and fill permit, No. 160462149, authorizing the removal of approximately 3.4 million cubic yards of dredged spoil and the installation of an associated 5,000 feet of shoreline bulkhead. The proposed installation of the pier and mooring facilities would result in a modification of that permit so that approximately 1,000 feet of shoreline bulkhead and most of the related dredging will be unnecessary and not performed. Instead, approximately 7,100 cubic yards of dredging would be necessary, without the necessity for bulkheading. The remaining shoreline bulkhead and dredging authorized under the above permit would be rendered unnecessary and replaced by the addition of two additional T-head piers and associated dredging at some indefinite time in the future. The additional piers and dredging are not involved in this permit modification application and are not before the Hearing Officer at this time. The Blount Island Channel of the St. Johns River, the St. Johns River and Clapboard Creek are classified as Class III surface waters of the state pursuant to Sections 17-3.081 and 17-3.121, Florida Administrative Code. It has been established by stipulation of the parties that the proposed modification of the dredge and fill permit will not adversely affect navigation nor the flow of water in the Class III state waters involved. It is also stipulated that the proposed modification will not adversely affect historical and archaeological resources pursuant to Section 267.061, Florida Statutes. It is stipulated as well that the discharge of effluent from the Dayson spoil site will not violate water quality standards at the point of discharge in the Fulton-Dames Point Cut. On March 22, 1989, the Florida Department of Environmental Regulation issued its intent to approve the proposed permit modification so as to allow the elimination of the previous requirement in the permit to monitor for copper at the site of the effluent discharge; the relocation of the Blount Island spoil site effluent discharge and the construction of a T-head pier on the southeast side of Blount Island adjacent to the Blount Island Channel. The Department did not initially grant the request to relocate the Dayson spoil site effluent discharge from the Corps of Engineer Channel (Dames Point Cut) to the mouth of Clapboard Creek. On January 31, 1986, Gate was issued permit No. 160462149, pursuant to Chapters 403 and 253, Florida Statutes, with an expiration date of January 31, 1991. It authorizes the dredging and filling on and adjacent to Blount Island referenced above. The permit authorizes those operations in two phases, consisting of new dredging of approximately 300,000 cubic yards in the existing slipway and test area to obtain a project depth of 40.2 feet mean low water. Maintenance dredging was authorized in the amount of approximately 1,850,000 cubic yards in the slipway to maintain the above-noted project depth. New dredging of no more than 3 million cubic yards from the northeastern and southern margins of Blount Island to a depth of 38 feet mean low water (MLW) and 20 feet MLW on the northeastern and southern portions of Blount Island respectively, with attendant maintenance dredging, was authorized. The permit also allowed he construction of shoreline bulkheads along the eastern and southern margins of Blount Island. That 1986 permit also required disposal of dredged material from both phases of the project into diked areas on Blount Island and the existing diked off-site disposal area known as the Dayson Site, near the mouth of Clapboard Creek. Effluent from both sites was to be discharged to the Fulton-Dames Point Cut. Effluent from the Dayson site was to be discharged to the Fulton-Dames Point Cut or routed by pipeline to the Blount Island disposal site for additional treatment prior to discharge. All dredging under the 1986 permit was to be done via a suction, cutter-head dredge apparatus, with the speed of the cutter-head to be controlled so as to prevent excessive turbidity; and with all dredged material to be placed in diked areas, with the effluent discharge being conducted over adjustable weirs. The dredging of the approximately 7,100 cubic yards of material associated with the modification application at issue will be performed with the same type of equipment. Both spoil disposal sites have sufficient capacity for disposal of the material involved with the construction of the T-head pier. The effluent or "de-watering water" generated from the disposal of the dredged material at the Dayson on site will be discharged through a pipe under the St. Johns River to a point near the confluence of the Dames Point Cut and the Old River Channel. That material will consist of approximately 10 percent dredged solid material and 90 percent water. The Dayson disposal site is surrounded by dikes 24 feet high and 120 feet wide at their base. They are so constructed that there will be no discharge of effluent from the Dayson disposal site to Clapboard Creek. Since 1974, over four and one-half million cubic yards of material have been disposed of at the Days on site without any violation of state water quality standards in the creek or the adjacent salt marsh. The entire 7,100 cubic yards of dredged material, together with related water could be placed in the Dayson disposal site without causing any discharge. Gate Maritime Properties, Inc. has a five-year lease agreement with Leadermar, Inc. which will operate the T-head pier as a berthing facility for the two ships. The lease was scheduled to commence July 22, 1989. Under the terms of the contract awarded by the Navy to Leadermar, Inc., Gate, or its lessee, is required to maintain a 110 foot, safe working area surrounding the vessels for operation of tugs, lighterage vessels and fendering operations. The contract with the Navy does not require, however, that the safe working area be maintained at a depth of minus 32 feet "mean lower low water" as shown by Gate Exhibit 6 in evidence. 1/ Given the findings made infra., concerning the lack of adverse water quality or public interest impacts caused by the dredging, and the paucity of any attendant suspension of bottom materials in the operation of the ships to be berthed at the proposed facility, the issue of whether the contract with the Navy requires a depth of minus 32 feet "mean low water" or "mean low low water", a reputed difference of 1.03 inches according to the rebuttal exhibit of Respondent Gate, neither Gate's position nor the Navy's reputed position regarding this apparent contractual dispute item, if carried out, would have any adverse water quality or public interest impact in the context referenced in these findings of fact and conclusions of law. The fact remains that Gate has applied for authority to recede from the massive dredging project presently authorized in the existing permit, to stipulate by this modification application that it only seeks to dredge 7,100 cubic yards of material in the area involved. Based upon the depth established by the marine survey conducted by Bennett, Wattels and Associates, there will be an adequate safe working area for tug boats, fuel barges and lighterage vessels, as well as the ships themselves, for operations involving the berthing facilities. See Gate Exhibit 5 in evidence. If the requested modification is granted, Gate will not dredge more than 7,100 cubic yards of material for construction of the pier and related facilities and in order to provide a safe working area as required under Leadermars contract with the Navy. Indeed the amount of material to be dredged for the construction and operation of the T-head pier was based upon the above- referenced Marine survey, unrefuted evidence in this record. The volume of material was calculated by using the Marine Survey depths and the "average end area method," a widely accepted method of such calculation in the marine engineering and construction field. Further, Gate adduced the only substantial evidence in this record concerning the issue of the amount of dredging involved or the extent of the dredged area, as that relates to the "safe working area" and other issues. Water Quality Gates' consulting experts performed various chemical and sediment analyses in the project area in order to establish a general composition of bottom sediments and to establish the likelihood of suspension of any toxic substances or pollutants in those sediments as a result of the dredging operation or the operation of the ships and berthing facilities. Those analyses, and their results, in evidence in this record, were unrefuted. The bottom sediments in the vicinity of the project area are predominantly fine sand with small fractions of silt. In general, the dredged material is most likely to be free from chemical or biological pollutants where it is composed of sand, gravel or other naturally occurring inert materials, as opposed to large percentages of organic materials, which were not shown to exist in the vicinity of the project site. Based upon the characteristics of the bottom sediments in the project area, there will be no re-entrainment of toxins or pollutants which night presently be sequestered in the sediments due to construction, dredging operations or the operations of the berthing facility and ships involved. An elutriate test was performed to predict the effect on water quality from temporary suspension of the bottom sediments during the dredging operation itself. Elutriate testing is a widely recognized, conservative estimate of contaminant releases, caused by dredging, into a water column. The parameters tested for are those specified in the Department's rules for Class III waters and include cyanide, mercury, silver cadmium, selenium, barium, beryllium, nitrogen, (unionized NH3, NO2, total TKN), fluoride, copper, iron, nickel, zinc, aluminum, pesticides, herbicides and PCBs (polychlorinated biphenyls). The elutriate test results did not reveal any excess ion of any of these parameters in terms of the state water quality standards or as to prevailing natural background levels. There are no PCBs, hydrocarbons, heavy metals or pesticides shown to be sequestered in the bottom sediments of the Blount Island Channel in the vicinity of the proposed project. The chemical analyses was performed on composite elutriate samples of sediments which came from the area of the T- head pier location and the area north of the pier, where the propellers of the ships will be located and operated during test trials, after the ships are berthed at the site. Site specific chemical analyses and core borings were taken and compared with historical data or studies for these sites and found to be consistent with them. There is no likelihood of sequestered contaminants in the bottom sediments which would be released, with deleterious effect on water quality, as a result of the action of the dredge equipment or the operation of the ships after the facility is installed. Cutter-head, hydraulic pipeline dredges are not significant generators of turbidity. They are an efficient means of performing dredging and are designed to loosen and remove material from the bottom substrate, without disturbing or redistributing the dredged material around the dredge apparatus in the water column. The use of the hydraulic pipeline dredge will result in minimal water quality disturbance and any dredge-induced turbidity will be of a transitory, short-term nature. It would be localized in the immediate vicinity of the dredge's cutterhead in any event. Ambient water quality conditions can be expected to return to normal background levels in a matter of hours following cessation of the dredging activity. It is estimated by Gate's consultant witnesses that the dredging activity might be accomplished in approximately one day. It has thus been established that the relevant stage water quality standards will not be violated by the action of the dredging equipment and the dredging operation itself. Water Quality Impacts of Facility Operation The two ships of the military sealift command which are to be berthed at the proposed T-head pier are 948 feet in length and approximately 105 feet in beam. They are equipped with two main engines and two propellers. The propellers are 22 feet, 11 and 9/16 inches in diameter. The ships will be in what is known as "reserved operating status". The ships will go through a dry- docking procedure at a local shipyard approximately every two years for major overhauls, repairs and painting. Such maintenance work will not be performed at the project site. The ships will, however, undergo periodic "dock trials" while berthed at the facility. The dock trials will be conducted on a quarterly basis if the vessels have not been out on a mission in that quarter of the year. The dock trial procedure calls for the main propulsion powerplants of the ships to be put into operation and evaluated. Both main engines are tested under this procedure for approximately one hour, at ten revolutions per minute (rpm) ahead and astern. The tests are to be conducted by civilian personnel retained by the Navy or its contractor, with all appropriate safety precaution being taken. These include, but are not limited to, the manning of the bridge during tests by a master or chief mate and by rotating one engine ahead simultaneously with the other engine being rotated astern. The ships are also equipped with onboard, internal sewage treatment plants so as to prevent the discharge of pollutants to state waters. Only routine maintenance or repair work will be performed on the ships at the lay birth facility. The ships will be refueled at the facility from time to time with "bunker c" or diesel fuel brought in by barges. The barges will be conveyed by tugboats of no more than 16 feet draft. The fueling operation will be governed by the U.S. Coast Guard regulations and are performed by Coast Guard certified and licensed personnel. Dr. Neal Boehnke was accepted as an expert in the field of chemical analysis of water and testified on behalf of the Petitioner. In his opinion, water quality in the facility of the proposed project is poor and may contain elevated hydrocarbon levels. His opinions, however, are based upon 1982 and 1983 reports of sampling results allegedly obtained by the City of Jacksonville Bioenvironmental Services Division and the DER, as well as the study entitled "Survey of Hydrocarbons and the Lower St. Johns River in Jacksonville." These documents were not introduced into evidence. While it is true that an expert may base his opinion on facts and data made known to him in the normal course of his practice at or before trial and that those facts or data may be relied upon by him in formulating his opinions, it must be demonstrated that those facts and data are "of a type reasonably relied upon by experts in the subject to support the opinions expressed." See Section 90.704, Florida Statutes. In this proceeding, it was not established by competent evidence or testimony at hearing that the facts or data derived from these documents were of such a type as to be encompassed by this statutory section and thus they cannot serve as a legitimate basis for Dr. Boehnke's opinion. They otherwise constitute inadmissible hearsay, not sufficient to support a finding of fact on the water quality impacts from the proposed project and they do not constitute corroborative or explanatory hearsay related to any accepted, competent, substantial evidence in this record for purposes of the hearsay admissibility provision in Section 120.58, Florida Statutes. Therefore, Dr. Loehnke's opinion concerning alleged elevated levels of hydrocarbons in the water at the project site is not credited and is rejected. Dr. Allan Niedororda was accepted as an expert in the fields of oceanography, hydrology and hydrologic assessment. He conducted a study on the potential impact to water quality in the Blount Island Channel which might result from the dock trials to be carried out as a part of the routine maintenance and testing of the ships. His study evaluated the degree to which the propeller wash from the dock trials might entrain and transport bottom sediments, any related pollutants and the effect of this entrainment on water quality in the surrounding water column. His study consisted of field sampling and measurements of currents in the area, laboratory analysis and related data analysis. Bottom sediment samples from the project area were analyzed for particle size and grain size distribution according to standard, scientifically accepted procedures. The bottom sediments in the area of the project site are characterized by a sandy sediment of a fine to medium particle size characteristic. The bottom sediments largely consist of clean sand and small gravels, with some silt composition. The propeller wash which will be generated by the testing of the ships engines was computed to have a speed of approximately one half foot per second. Maximum speed will occur about three propeller diameters behind the plane of the propeller itself or about 72 feet behind the propellers. The bottom tip of the propeller with which the ships are equipped will be six feet off the bottom of the channel at low tide. At the point the propeller wash contacts the bottom, its speed will be approximately two tenths of a foot per second. Such a velocity will not be of sufficient force to produce such sheer stress on the bottom sediments as to entrain them or, that is, to displace them upward into the water column. Dr. Niedororda established that, even if the propeller wash is added to the natural velocity of the water currents at the project site, there would be no entrainment of the bottom sediments which he sampled in the project area. It has also been established that the routine, minor maintenance of the ships and dockage facilities involved in the permit application and the fueling and other operations associated with the berthing, testing, entry and egress of the ships from the proposed berthing facility will occasion no water quality violations, so long as appropriate Coast Guard regulations attendant to fueling and the prevention of the deposition of refuse and other wastes into the waters involved are observed. Any grant of the proposed permit modifications should be conditioned upon the strict observance of those regulations and procedures, especially with regard to the potential for spillage during fueling operations. Public Interest Standards Section 403.918(2), Florida Statutes provides that a permit may not be issued unless the applicant provides the department with reasonable assurances that the project is not contrary to the public interest. In determining whether this is the case, the Department must consider and balance the following criteria: Whether the project will adversely affect the public health safety or welfare or the property of others; Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project; Whether the project will be of a temporary or permanent nature; Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of Section 267.061; The current condition and relative value of functions being performed by areas affected by the proposed activity. It has been established by stipulation that the project will not adversely affect navigation or the flow of water and that the project will not adversely affect significant historical or archaeological resources. Unrefuted evidence adduced by Gate and the Department have established that the project will not adversely affect the public, health, safety, welfare or the property of others, if the project is constructed, installed and operated as proposed in the modification application and as proved in this case. The conservation of fish and wildlife, including endangered or threatened species, or their habitats, as well as fishing and recreational values and marine productivity in the project area will not be adversely affected. No harmful erosion or shoaling will be caused by the installation or operation of the project facility. In this connection, Dr. A. Quinton White, a member of the Board of Directors of the Petitioner, C.E.S., acknowledged in his testimony that the Manatee Protection Plan and Manatee Watch Program proposed to be inaugurated by Gate will adequately protect any Manatees frequenting the area. Manatees are an endangered species, but it has been established that the permit modification proposed, if installed and operated, will not adversely affect the conservation of Manatees or their habitat. The Petitioner adduced no evidence on this issue or any of the public interest criteria enumerated above. The area at the project site is characterized by fairly firm consolidated bottom substrata, characterized by very few submerged grasses. Due to the sandy, hard bottom in the project vicinity, there is a paucity of marine grass upon which Manatee could feed. Consequently, Manatees do not and are not likely to frequent the area involved at the project site as that might reflect on the likelihood of their injury or destruction due to operation of the ships and any attendant vessels. Dr. Niedoroda established that the project and the attendant operations of the ships will not cause harmful erosion or shoaling and witness Gary Tourtellotte, testifying for Gate, established that the effects of the construction and operation of the T-head pier on the benthic community and marine productivity in the vicinity of the project will not induce any adverse effect on those elements of the public interest standards involved. The Petitioner offered no credible or credited evidence of equivalent value which could contradict the evidence adduced by Gate on this aspect of the public interest standards. It is true that dredging of the bottom substrata will temporarily eliminate the benthic community within the dredged area itself. It was established by expert testimony, however, that the benthic community will rapidly re-colonize itself with similar organisms to a naturally occurring degree within approximately 6-12 months. The benthic community in the project vicinity is of a low density nature, with a low diversity of organisms. Those organisms occurring in the project site area are estuarine, marine benthic species commonly associated with sandy or silty bottom substrates. Because the area to be dredged is quite small or approximately .25 acres, and the dredging operations will be of short duration, approximately one day, the dredging operations will not have a significant adverse effect on the benthic communities occurring in the project area or in the adjacent St. Johns River. The dredging associated with the project will likewise not have a significant long-term adverse impact on fisheries resources or marine productivity of the Blount Island Channel or the St. Johns River. This is because the area to be dredged is minimal in size and does not contain critical marine benthic habitat. The turbidity generated will be minimal because the sediments are predominantly coarse sands and gravels. Because of this, any turbidity occasioned by the installation and operation of the proposed facility will be very brief and not of a sufficient significance as to violate water quality standards. In view of the hydrologic analysis in evidence concerning propeller wash effects, the bottom sediments at the ship mooring area will not be entrained or suspended in the water column to any significant degree due to propeller operation of the ships. Thus the benthic community in the mooring area for the ships will not be disturbed due to currents created by the operation of the propellers. In a similar vein, it has been shown that the dredging and operation of the T-head pier and mooring facilities, including the attendant conduct of periodic dock trials and the entry and egress of the ships will not violate the water quality criteria for biological integrity. Indeed, the periodic dock trials are shown to have no impact on the benthic community, the fisheries or marine habitat involved at the project site. It was neither shown that the dredging associated with the construction of the pier and berthing facilities will have any adverse impact on fin fish or shellfish in the project area. It has been established that the project will be of a permanent nature, but it has not been established that the current condition and relative value of the functions being performed by the areas affected by the proposed activity in terms of their functions as productive marine habitat, as furnishing fishing or recreational values and the like, will be adversely affected by the proposed project and attendant activity. Deletion of Copper Monitoring Requirement The 1986 permit authorizing the removal of approximately 3.4 million yards of dredged material with attendant extensive bulkheading in the Blount Island Channel requires also that Gate Monitor for copper every two weeks during discharges at the downstream boundary of the mixing zone for each point of a effluent discharge. Effluent from both the Blount Island and Dayson Disposal Sites is discharged into the Fulton Dames Point Cut. The Petitioner has stipulated that the discharge of effluent from the Dayson Spoils Site will not violate any water quality standard at that discharge point. Elutriate testing and other analyses submitted in support of the permit modification request to delete the copper monitoring requirement in the present permit have shown that there will be no violation of water quality standards as to copper, or any of the other water quality parameters involved due to any re-suspenions of bottom sediment during dredging. There will be no violation of water quality standards for copper, caused by the deposition of spoil, consisting of those bottom sediments, and the draining of effluent from the spoils site into the Dames Point Cut. The Department has independently verified the data submitted by Gate as a result of this testing and it has been established that there is no occurrence of any man induced pollutants in the sediments at the project site which will be deposited in the spoil site, (from which the effluent will be disposed of in the Dames Point Cut) which represents any elevation over natural background levels. The sediments to be dredged from the berthing area are not distinguishable from naturally occurring sediments and the copper values in the sediments to be dredged are no higher than those naturally occurring throughout the area. Thus there will be no adverse impact on the water quality occasioned by discharge of the effluent from the spoil site to the Dames Point Cut area due to copper occurring in the sediments or as to any of the other pollutants enumerated above. Thus, there has been no demonstrated necessity to continue monitoring the effluent from the spoil site for copper. In this regard, the Petitioner presented no evidence at hearing concerning the issue of whether copper monitoring should be continued or not. Cumulative Impact Blount Island was created in the 1950's and 1960's by the filling of its area with spoil material during the U.S. Army Corps. of Engineers' construction of the Fulton-Dames Point Cut-Off Channel. Since that time, port facilities and an industrial complex have been constructed on Blount Island. It is one of the principle port facilities for the City of Jacksonville. Under the 1982 DER dredge and fill permit issued to Off-Shore Power Systems, and later transferred to Gate in 1986, the developed area of the island adjacent to the original St. Johns River Channel (the Blount Island Channel) was required to be bulk-headed and the channel dredged to -38 feet MLW. The amount of material to be dredged in the old channel of the St. Johns River for construction of the vertical shoreline bulk head totalled approximately 3.4 cubic yards. The T-head pier involved in this modification proceeding, if constructed, would replace 1,000 linear feet of that shoreline bulkhead authorized by the present permit and would substantially reduce the amount or quantity of material to be dredged. Construction of the T-head pier, instead of the permitted shoreline bulkhead, will minimize dredging and the environmental impact of the facility. Gate has elected to rescind its plans to construct the shoreline bulkhead along the eastern shore of Blount Island, as authorized under the existing dredge and fill permit. Gate instead intends to seek future modification of its existing dredge and fill permit to substitute at least 2 additional T-head piers for all of the shoreline bulk head authorized for the eastern shore of Blount Island. The construction of the additional T-head piers will require substantially less dredging than is authorized under the existing permit. Instead of the 3.4 million cubic yards of dredged material authorized under the existing permit, associated with installation of the shoreline bulkhead, the amount of material to be dredged, if indeed 2 additional T-head piers were applied-for and constructed, would amount to only 269,000 estimated cubic yards, as opposed to the originally authorized 3.4 million. Kevin Pope, the DER witness, established that there are no other projects in the area, or reasonably expected to be located in the project area, which would create impacts in addition to or cumulative with the proposed permit modification project so as to create adverse water quality impacts or which would make this project, because of cumulative impact, contrary to the public interest. There are no other dredge and fill projects in the area of the proposed T-head pier which would adversely impact the waters of the Blount Island Channel and the St. Johns River. The proposed modifications are shown not to likely cause any adverse environmental results and, in fact, will result in an environmental benefit as represented by the agreed-upon recession from the extensive dredging and bulkheading authorized by the present permit. No evidence was adduced by the Petitioner to contravene that adduced by Gate and the Department, which establishes the lack of any adverse cumulative impacts to be occasioned by the proposed project, both as to water quality standards and the public interest standards involved in this proceeding.
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 therefore, RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation approving the proposed modification to permit number 160462149 with the proviso that the conditions contained in the above findings of fact and conclusions of law be incorporated as specific conditions in the modified permit, including the additional condition agreed to at Final Hearing that the Manatee Protection Plan and Manatee Watch Program will be inaugurated and be incorporated as a specific condition in the modified permit. DONE and ENTERED this 11th of October, 1989, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1989.
Findings Of Fact On October 2, 1978, Respondent, Paul Sage, filed an application with DER seeking a permit to construct a boat ramp adjacent to his home, which is located on Crooked Lake in southeastern Polk County. Crooked Lake is a 5,538 acre meandered navigable freshwater lake. Approximately 25 percent of the shoreline of Crooked Lake has been developed into residential areas, and the remainder of the shoreline is grove and pastureland. Water levels in the lake have fluctuated considerably over the past decade. The parties have conceded for the Purpose of this proceeding that the mean high waterline of Crooked Lake is located at 120.4 feet mean sea level. Due to the aforementioned fluctuation in water level, the actual water's edge at the time of the bearing in this cause was considerably below the mean high waterline. In fact, on May 20, 1979, the water level of Crooked Lake stood at 115.5 feet mean sea level, whereas on September 27, 1978, when the drawings attached to Respondent's application were prepared, the water level was at 116.9 feet mean sea level. In any event, it is not contested that the entire length of the proposed boat ramp for which a permit is sought in this proceeding would be below the line of mean high water, and therefore on state owned land. In his application, Respondent sought a permit to construct a 12-foot wide, 4-inch thick concrete boat ramp which would extend 186 feet waterward of the mean high water line. Respondent testified at the final hearing in this cause, however, that be wished a permit which could allow construction of a boat ramp of sufficient length to allow a water depth of 3 to 4 feet at its lakeward terminus to allow launching of water craft from a trailer. Due to fluctuating water levels, the eventual ramp length necessary could be more or less than the 186 feet requested in the permit application. In preparing his permit application, Respondent made no actual measurement to determine what the depth of the lake was 186 feet from the mean high waterline, relying instead on his own estimate. The permit application does not disclose the manner in which Respondent plans to construct the proposed ramp. No detailed engineering or construction data were submitted with the application. The application form simply reflects the Respondent's intention to place 27.3 cubic yards of fill material waterward of the mean high waterline, and 6.5 cubic yards of fill material landward of that line. Although the DER permit application appraisal indicates that the ramp is to be constructed of poured concrete, that fact is not reflected in the application. Indeed, in his testimony at the final hearing in this cause, the Respondent suggested that the ramp might be constructed of poured concrete up to the water's edge, and that preformed concrete slabs would then be utilized for the remaining length of the ramp. As indicated above, there is nothing in the application form, and nothing in the record of this proceeding, to indicate what, if any, measures will be taken during construction to insure non-violation of state water quality standards. Further, although the permit application indicates that no dredging or excavation activities will be associated with this project, the Respondent's testimony at the final hearing was to the contrary. The Respondent testified that because of the slope of the land toward the lake, and his desire to construct a level boat ramp, it would be necessary to "cut" and relocate portions of the lake bottom. The exact location of these "cuts", the volume of materials involved, and the manner by which they would be removed and/or relocated are net apparent from the record. Respondent intends to construct the proposed ramp for his own personal use. He also indicated at the final hearing that he might allow neighbors to use the ramp without charge, since the nearest public ramp is approximately ten miles distant. The ramp would not, however, be used for commercial purposes. Respondent testified that he would expect to use the proposed ramp for launching his own boats approximately three times per year. Adjoining property owners on either side of Respondent have indicated that they have no objection to the granting of the requested permit. In addition, in the permit application review process, DER solicited and received comments from the State of Florida, Department of Natural Resources, and the Army Corps of Engineers. Aquatic vegetation in the area of the proposed project consists primarily of maiden cane, torpedo grass and water pennywort. This vegetation is growing within 12 feet of the water's edge as of the date of final hearing in this cause and rings the lake's shoreline to a distance of approximately 100 feet lakeward of the present waterline. Construction of the proposed project would prevent growth of rooted aquatic vegetation on 2,232 square feet of lake bottom, although some species of plants and animals might use the concrete from which the ramp would be constructed as a substrate. However, it appears from the record that no qualitative or quantitative analysis of the impact of the proposed project on the natural resources of the area was performed by the applicant. The DER representative who performed the permit application appraisal testified at the final hearing that the 12-foot width of the proposed boat ramp comprised only one-fifth of the owner's property frontage on the lake, and therefore would constitute a minimal disturbance for purposes of giving the applicant access to the open water of the lake. However, it does not appear from the record that the DER representative considered the impact of the 186-foot length of the proposed structure in arriving at his conclusion to recommend issuance of the permit. No actual measurements were made by either the permit applicant or DER to substantiate the applicant's claim that the filling of 186 feet of state-owned bottomland is necessary to furnish reasonable access from the applicant's property to the open waters of the lake. The Petitioner is an organization, composed of either persons owning property bordering on Crooked Lake, or recreational users of that lake. As such, it appears that both Petitioner and its members would be substantially affected by proposed agency action in this cause.
The Issue The issue in DOAH Case No. 98-3901 is whether Respondent Deep Lagoon Boat Club, Ltd., is entitled to a maintenance dredging exemption from environmental resource permitting. The issue in DOAH Case No. 98-5409 is whether Respondent Deep Lagoon Boat Club, Ltd., is entitled to an environmental resource permit for the construction of a surface water management system.
Findings Of Fact The Parties Respondent Deep Lagoon Boat Club, Ltd. (Applicant), owns and operates Deep Lagoon Marina. In DOAH Case No. 98-3901, Petitioner and Intervenor challenge Applicant's claim of an exemption to maintenance dredge three canals serving the marina. In DOAH Case No. 98-5409, Petitioner challenges Applicant's request for an environmental resource permit to construct and operate a surface water management system on the uplands on which the marina is located. By stipulation, Petitioner has standing. Intervenor is a nonprofit organization of natural persons, hundreds of whom reside in Lee County. The primary purpose of Intervenor is to protect manatees and their habitat. Many of the members of Intervenor use and enjoy the waters of the State of Florida, in and about Deep Lagoon Marina, and would be substantially affected by an adverse impact to these waters or associated natural resources, including manatees and their habitat. Deep Lagoon Marina is within the jurisdiction of the South Florida Water Management District (SFWMD). By agreement with SFWMD, Respondent Department of Environmental Protection (collectively, with the predecessor agency, DEP) is the agency with permitting jurisdiction in DOAH Case No. 98-5409. The Marina Deep Lagoon is a short, largely mangrove-lined waterway that runs north into the Caloosahatchee River. The Caloosahatchee River runs west from Lake Okeechobee past Fort Myers to the Gulf of Mexico. Deep Lagoon Marina is on Deep Lagoon, less than one-half mile from the Caloosahatchee River. Deep Lagoon Marina comprises uplands and three canals adjoining MacGregor Boulevard south of downtown Fort Myers. Deep Lagoon Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings. One of Applicant's predecessors in interest dredged the three canals in the 1950s or 1960s, and a marina has existed at this location since that time. As a result of a purchase in 1997, Applicant owns the uplands and either owns the submerged bottoms of the canals or has a legitimate claim to such ownership. The attorney who examined the title at the time of the 1997 conveyance testified that the canals are entirely landward of the original mean high water line, so that the then-owner excavated the canals out of privately owned upland. Thus, the attorney opined that the canal bottom is privately owned. Some question may exist as to the delineation of the historic mean high water line, especially regarding its location relative to the waterward edge of the red mangrove fringe, which DEP would consider part of the historic natural waterbody. There may be some question specifically concerning title to the bottom of the northernmost canal where it joins Deep Lagoon. However, the proof required of Applicant for present purposes is considerably short of the proof required to prove title, and the attorney's testimony, absent proof to the contrary, is sufficient to demonstrate the requisite ownership interest to seek the exemption and permit that are the subject of these cases. From north to south, Deep Lagoon Marina comprises the north canal, which is about 1200 feet long and bounded on the north by a red mangrove fringe 10-20 feet wide; a peninsula; the central canal, which is also known as the central or main basin and is roughly the same length as the north canal; a shorter peninsula; and the south canal, which is about half the length of the central canal and turns to the southeast at a 45-degree angle from the midway point of the central canal. The three canals are dead-end canals, terminating at their eastern ends a short distance from MacGregor Boulevard. Manatees and Boating The Caloosahatchee River is critical habitat for the endangered West Indian manatee. Up to 500 manatees use the river during the winter. When, during the winter, the water cools, the animals congregate in waters warmed by the thermal discharge from a power plant about 13 miles upstream of Deep Lagoon. When, during the winter, the water warms, the manatees swim downstream, past and into Deep Lagoon searching for food. Manatees frequently visit Deep Lagoon. It is one of the few places between the power plant and the Gulf where manatees can find a quiet place, relatively free of human disturbance, to rest and feed. Within Deep Lagoon, the Iona Drainage District ditch runs parallel to the north canal, separated from the canal by the previously described mangrove fringe. The Iona Drainage District ditch empties into Deep Lagoon just north of the mouth of the north canal. Manatees frequently visit the ditch because it is a seasonal source of freshwater, which the manatees drink. Manatees visit the north canal due to its moderate depths and proximity to the freshwater outfalls of the Iona Drainage District ditch. Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years. The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential for mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits. Water Quality The Caloosahatchee River is laden with sediments, partly due to intermittent discharges from Lake Okeechobee. Seagrass in the riverbottom cannot grow in water much deeper than four feet. Some seagrass grows at the mouth of Deep Lagoon, but little seagrass extends into the lagoon itself. The water quality in the canals is very poor for dissolved oxygen and copper. Applicant stipulated that the water quality in Deep Lagoon violates state standards for dissolved oxygen, copper, and coliform bacteria. In 1997, the canals violated water quality standards for dissolved oxygen nearly each time sampled during the wet season and one-third of the times sampled during the dry season. The dissolved oxygen levels violated even the lower standards for Class IV agricultural waters two-thirds of the times sampled during the wet season. In 1997, the canals violated water quality standards for copper in the water column each time sampled during the wet season and two-thirds of the times sampled during the dry season. During three of the dry season samplings, copper levels were 20 to 30 times lawful limits. The three lowest wet season copper levels were double lawful limits. Copper is a heavy metal that is toxic to a wide range of marine organisms. Copper is applied to boat hulls to prevent marine life from attaching to the hulls. In 1997, the canals violated water quality standards for total coliform bacteria (for any single reading) three of the 60 times sampled during the dry season and one of the 56 times sampled during the wet season. The canals violated the more relaxed, 20-percent standard (which is violated only if 20 percent of the readings exceed it) during the wet season, but not during the dry season. In 1997, the canals violated water quality standards for lead in the water column in one sample (by 25 percent) out of 36, but did not violate water quality standards for oil and grease or fecal coliform bacteria. Results of testing for mercury in the water column (as opposed to sediments) are not contained in the record. As compared to 1987, the water quality in the canals has improved in all but one important respect. In 1987, the water column readings for copper were five to six times higher than the highest 1997 reading. In 1987, the total coliform bacteria were too numerous to count because the colonies had grown together in the sample. However, comparing the April 1987 data with the May 1997 data for the same approximate times of day and the same locations, the dissolved oxygen levels in the three canals have declined dramatically in the last 10 years. Ten years ago, in a one-day sampling period, there were no reported violations; ten years later, in a one-day sampling period, there were four violations. Even worse, the amount of dissolved oxygen in the water during daylight hours has been halved in the last 10 years with a smaller decrease during nighttime hours. Original Permit There are three types of permits relevant to these cases. The first is a dredge and fill permit (sometimes referred to in the record as a wetland resource permit or water resource permit)(DAF permit). The second is a surface water management (sometimes referred to in the record as a management and storage of surface water (MSSW) permit or stormwater management permit)(SWM permit). The third is an environmental resource permit (ERP). Several years ago, responding to a mandate from the Legislature, DEP and the water management districts consolidated DAF permits, which historically were issued by DEP, and SWM permits, which historically were issued by the water management districts, into ERPs. At the time of this change, DEP adopted, within the jurisdictional areas of each water management district, certain of the rules of each district. In 1988, DEP issued a DAF permit to Applicant's predecessor in title for additional wet slips (as modified, the Original Permit). Due partly to the likelihood of the replacement of some older, smaller slips with larger slips, there is some uncertainty as to the precise number of wet slips that Applicant would be able to construct under the Original Permit. However, Applicant would be able to construct approximately 89-113 new wet slips, with an additional 14,440 square feet of overwater decking, so as to raise its marina capacity to 150-174 wet slips. Applicant also plans to construct 227 dry slips, so as to raise its marina capacity to 427 dry slips, and add 115,000 square feet of buildings, including a restaurant. In general, the Original Permit authorizes Applicant to renovate and expand an existing marina from 61 wet slips to 174 wet slips by: excavating 0.358 ac of uplands to create a flushing canal, installing 375 linear feet of seawall along the sides of the flushing canal, excavating 2.43 ac of submerged bottom to remove contaminated sediments, backfilling 2.41 acres of the dredged area (the main basin and south canal to -7 ft. MLW and the north canal to -6 ft. MLW) with clean sand, renovating the existing 61 slips, and constructing an additional 14,440 square feet of overwater decking for 113 new slips, providing after-the-fact authorization for construction of 2 finger piers, creating a 400 sq. ft. mangrove fringe, constructing 180 linear feet of seawall in the vicinity of the mangrove fringe, and relocating and upgrading fueling facilities. The record contains various references to "MLW" or "mean low water," "MHW" or "mean high water," and "NGVD" or "National Geodetic Vertical Datum." The drawings attached to the Original Permit state that MHW equals 0.96 feet NGVD and MLW equals about 0.40 feet NGVD. The Original Permit authorizes activities to proceed in three phases: First, the majority of the water quality improvement measures will be implemented as required in Specific Condition 5. Second, the over water docking structures will be constructed and the fueling facilities will be upgraded and relocated as required in Specific Conditions 6 and 7. Third, the new slips will be occupied in accordance with the phasing plan in Specific Condition 9. Specific Condition 5 imposes several requirements designed "to ensure a net improvement in water quality." Among these requirements is that Applicant must obtain the ERP that is the subject of DOAH Case No. 98-5409 (New Permit). Specific Condition 5 states: In order to ensure a net improvement to water quality within the basin, the construction of any new docking structures or installation of any new pilings shall not occur until the below-listed conditions (A-K) have been met. . . . A baseline water quality study . . .. A stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be constructed. . . . The boat wash area shall be re-designed and constructed as shown on Sheets 23 and 23A. All water in the washdown area shall drain into the catch basin of the wastewater treatment system shown on Sheet 23. The water passing through the wastewater treatment system shall drain to the stormwater management system which was previously approved by the South Florida Water Management District. The filters of the wastewater treatment system shall be maintained in functional condition. Material cleaned from the filter shall be disposed of in receptacles maintained specifically for that purpose and taken to a sanitary landfill. This system shall be maintained in functional condition for the life of the facility. [As cited, this subparagraph contains modifications stated in a letter dated March 26, 1997, from DEP to Applicant's predecessor in interest.] Contaminated sediments shall be dredged from the areas shown on Sheets 5 and 7 of 23. A closed-bucket clam shell dredge shall be used. The north canal shall be dredged to at least -9.9 feet MLW and backfilled with clean sand to -6 feet MLW. The [main] basin shall be dredged to at least -7.3 feet MLW and backfilled with clean sand to -7 feet MLW. The south canal shall be dredged to at least -10.5 feet MLW and backfilled with clean sand to at least -7.0 feet MLW. Backfilling shall be completed within 120 days of completion of dredging. . . . The sediments shall be placed directly in sealed trucks, and removed to a self-contained upland disposal site which does not have a point of discharge to waters of the state. A channel, 260 ft. long, 60 ft. wide, with a bottom elevation of -4.5 ft. MLW shall be excavated between the north canal and the main basin to improve flushing. * * * K. Upon completion [of] conditions A-J above, renovation of the existing 61 wet slips and construction of the 113 additional wet slips may proceed with the understanding that construction of all 113 additional slips is at the risk of the permittee and that if the success criteria in the monitoring and occupancy program are not met, removal of all or part of the additional slips may be required by the Department. Specific Condition 8 addresses the phasing of occupancy of the wet slips. Specific Condition 8 provides: Occupancy of the additional 113 wet slips shall occur in two phases, described below. Permanent occupancy of the slips shall require [DEP] approval, contingent upon the water quality monitoring program demonstrating a statistically significant (Specific Condition 9) net improvement for those parameters which did not meet State Water Quality Standards in the baseline study. The permittee agrees that if [DEP] determines that net improvement has not occurred, or if violations of other standards occur, and if the corrective measures described in Specific Condition 10 are not successful, all of the additional slips occupied at that time shall be removed. . . . Phase I--Upon completion of the baseline water quality study and the work specified in Specific Condition No. 5, the existing 61 slips and an additional 56 slips, totalling 117 slips, may be occupied. . . . If at the end of one year of monitoring, the data generated from the water quality monitoring program shows a statistically significant improvement over baseline conditions, for those parameters in violation of State Water Quality Standards, and no violations of additional parameters, . . . the new 56 slips which were occupied shall be considered permanent. Phase II--Upon written notification from [DEP] that Phase I was successful, the remaining 57 additional slips may be occupied. Water and sediment quality monitoring shall continue for two years after the occupancy of 140 of the 174 slips. If a statistically significant net improvement to water quality over baseline conditions for those parameters in violation of State Water Quality Standards [sic] and no violation of additional parameters is shown by the monitoring data, and confirmed by [DEP] in writing, the additional slips shall be considered permanent. * * * Specific Condition 11 adds: Implementation of the slip phasing plan described in Specific Condition 8 shall be contingent on compliance of boaters with existing speed zones in the Caloosahatchee River and trends in manatee and [sic] mortality. . . . Approval of additional slips will depend upon manatee mortality trends and boater compliance with speed zones in the Caloosahatchee River and additional slips may not be recommended. . . . Based on the results of the evaluations of Phases I and II, [DEP] may require that slips be removed to adequately protect manatees. Specific Condition 12 requires the construction of a 400 square-foot intertidal area for the planting of mangroves to replace the mangroves lost in the construction of the flushing channel. Specific Condition 14 prohibits liveaboards at the marina. Specific Condition 15 adds various manatee-protection provisions. Plan Views C and D, which are part of the Original Permit, depict submerged bottom elevations for the north and central canals, as well as from the south canal at its intersection with the central canal. Dated August 30, 1995, these "existing" bottom elevations across the mouth of the north canal are about -7, -8, and -4 feet (presumably MLW; see second note to Plan View B). The western two-thirds of the north canal passes over bottoms of about -6 feet MLW. Proceeding east, the bottom deepens to -7 to -9 feet MLW before it tapers up to -7, -6, and finally -3 feet MLW at the head; and the eastern third of the north canal passes over bottoms of about -7 feet MLW that tapers up to -6 feet and -3 feet MLW. The submerged bottom at the mouth of the central canal is about -8 to -9 feet MLW. The bottom drops to -6 to -10 feet MLW at the intersection with the south canal. Proceeding east, the bottom deepens slightly as it reaches the head, where it is -8 feet MLW. The submerged bottom of the south canal runs from -9 feet MLW at the intersection with the central canal and runs about 0.5 feet deeper at the head. Petitioner and others challenged the issuance of the Original Permit in 1988. The permit challengers appealed a final order granting the Original Permit and certifying, under the federal Clean Water Act, that state water quality standards were met. DEP premised its certification on the concept that water quality standards encompassed a net improvement in water quality of the poorly flushed canals. In Sheridan v. Deep Lagoon Marina, 576 So. 2d 771, 772 (Fla. 1st DCA 1991), the court, relying on the above-described 1987 water quality data, noted the "very poor water quality" of Deep Lagoon, as reflected in part by the presence of oil and grease 20 times the Class III standard, copper 13 times the standard, lead 20 times the standard, mercury 1000 times the standard, and coliform bacteria "too numerous to count." However, the court affirmed the issuance of the Original Permit under the statutory authorization of a permit where ambient water quality does not meet applicable standards, but the activity will provide a net improvement to the waters. On the certification issue, though, the court reversed and remanded. The court held that the hearing officer erroneously excluded evidence on DEP's certification of the activity as in compliance the federal Clean Water Act. Following remand, DEP issued a final order issuing the Original Permit. On the certification issue, the final order revoked the earlier certification of compliance and, citing 33 United States Code Section 1341 as authority, waived certification as a precondition to federal permitting. Maintenance Dredging: DOAH Case No. 98-3901 Background The contentions of Petitioner and Intervenor as to maintenance dredging are: the proposed dredging exceeded what was necessary to restore the canals to original design specifications or original configurations; the proposed dredging exceeded the maximum depth allowable for maintenance dredging of canals; the work was not conducted in compliance with Section 370.12(2)(d), Florida Statutes; the spoil was not deposited on a self-contained upland site to prevent the escape of the spoil into waters of the state; and the dredge contractor did not use control devices and best management practices for erosion and sediment control to prevent turbidity, dredged material, and toxic or deleterious substances from discharging into adjacent waters during maintenance dredging. On March 3, 1998, Applicant's engineering consultant submitted drawings to DEP with notification that Applicant intended to "maintenance dredge the internal canals of Deep Lagoon Marina," in conformity with Rule 62-312.050(e), Florida Administrative Code. The letter describes the proposed dredging as mechanical "with no discharge back into Waters of the State." The letter assures that Applicant's contractor will use turbidity curtains "around the dredging and spoil unloading operation" and advises that the contractor will unload the spoil "to the north peninsula upland area." The letter states that the dredging "will be to the design depth/existing canal center line depth of -7 NGVD," which was established by the Original Permit, and will be "done in conjunction with the required dredging under [Original Permit] Condition 5(D)." The consultant attached to the March 3 letter several drawings showing the dredging of all three canals. For each canal, the drawings divide the dredging into two areas. For 1.82 acres, the contractor would dredge contaminated materials from the dead-ends of the three canals (for the south canal, a portion running from the head along the northeast half of the canal) and then replace these materials with clean backfill material. This information is for background only, as the Original Permit authorized this contaminant dredging. For 4.84 acres, which run through the remainder of the three canals, the contractor would maintenance dredge in accordance with the cross-sections provided with the letter. The cross-sections for the north canal reveal relatively extensive dredging beyond the vegetation lines on both sides of the canal bottom. The dredging would extend up to, but not beyond, the edges of the prop roots of the mangroves on both sides of the canal bottom. The contours reveal variable, proposed slope profiles for the submerged sides of the canals, but the dredging would substantially steepen the submerged slopes of the north canal. It is difficult to estimate from the cross-sections the average depth and width to be dredged from the north canal, but it appears that the cross-sections proposed the removal of substantial spoil (an average of 4-6 feet) from areas from 20-40 feet from each side of the deepest point in the north canal. The dredging would alter the two most affected cross-sections, which are just inside the mouth of the north canal, by widening the deepest part of the canal bottom by 85 feet--from about 15 feet to about 100 feet. The drawings proposed much smaller alterations to the bottoms of the central and south canals: typically, spoil about 2 feet deep and 20 feet wide. All but one of the cross-sections revealed that spoil would be dredged only from one side of the deepest point. Additionally, the dredging in these canals would not involve any submerged vegetation; all but one of the canal sides was lined by existing seawalls. By letter dated March 13, 1998, DEP stated that it had determined that, pursuant to Rule 40E-4.051(2)(a), Florida Administrative Code, the proposed activity was exempt from the requirement that the Applicant obtain an ERP. The letter warns that, pursuant to Chapter 62-302, Florida Administrative Code, the construction and operation of the project must not cause water quality violations. The letter adds that DEP may revoke its determination of exemption if the "basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations." The letter provides a point of entry for persons whose substantial interests are affected by DEP's determination. Following receipt of DEP's letter acknowledging the exemption, Applicant's contractor proceeded to maintenance dredge the three canals. The dredging of the north canal took eight weeks. Applicant's contractor also performed the contaminant dredging and clean backfilling authorized by the Original Permit. As indicated in the March 3 letter and permitted in the Original Permit, the contaminant dredging took place at the dead-end heads of the north and central canals and along the northeast half of a slightly longer section of the south canal, starting from its dead-end head. In maintenance dredging the canals, Applicant's contractor did not exceed the specifications regarding depth and width stated in its March 3 letter. To the contrary, the contractor sometimes dredged slightly narrower or slightly shallower profiles than stated in the March 3 letter. For example, the contractor dredged the north canal to -6 feet NGVD (or -5.6 feet MLW), rather than -7 feet NGVD, as shown in the March 3 letter. The Depths, Widths, and Lengths of Dredging The March 3 letter asserts that -7 feet NGVD is the permitted elevation of the canal bottoms, pursuant to the Original Permit. This is incorrect in two respects. First, the assertion in the March 3 letter of a -7 foot permitted bottom elevation is incorrect for all but the relatively small part of each canal that DEP has determined is contaminated. The Original Permit specifies design elevations for canal bottoms only in the contaminated area within each canal. Nothing in the Original Permit permits bottom elevations for any portion of the bottoms of the three canals outside of these three contaminated areas. Second, the assertion in the March 3 letter of a -7 foot permitted bottom elevation is incorrect, even for the contaminated areas. The March 3 letter states -7 feet NGVD, but the Original Permit specifies bottom elevations, for contaminated areas only, of -7 feet MLW in the south and central canals and -6 feet MLW in the north canal. Thus, due to the differences between NGVD and MLW, the March 3 letter proposes dredging that would deepen the south and central canals by about five inches deeper than the depth permitted in the Original Permit and the north canal by one foot five inches deeper than the depth permitted in the Original Permit. Moreover, nothing in the record clearly establishes all aspects of the original design specifications of the three canals, whether permitted or not, or even all aspects of their original dredged configurations, if not permitted. There is no dispute concerning one aspect of the dredged configuration of the three canals: their lengths. Although there may be some dispute as to the original mean high water line near the mouths of the north and central canals, the original length of the canals is evident from the uplands that presently define them. As to the depth of the canals, although direct evidence is slight, Applicant has sufficiently proved indirectly the depths of the mouths of the canals pursuant to original design specifications or, if not designed, original configurations. The proved bottom elevations are -7 feet NGVD for each canal. Applicant proved these depths based on the prevailing elevations in Deep Lagoon in the vicinity of the mouths of the north and central canal and bottom elevations in areas of Deep Lagoon that are not prone to sedimentation. Additional proof of the bottom elevation of -7 feet NGVD at the mouths of the canals is present in the slightly higher permitted bottom elevations at the dead- ends of the north and central canals and landward portion of the south canal. There is some problem, though, with the proof of the depth of the canal bottoms between their mouths and heads (or, for the south canal, its landward portion of known contamination). Although the problem of the depth of the canals between their heads and mouths might be resolved by inferring a constant bottom elevation change from the deeper mouth to the shallower head, an unresolveable issue remains: the width of this maximum depth. As already noted, without deepening the deepest part of either cross-section, the contractor widened the deepest points along two cross-sections by 85 feet each. In terms of navigability and environmental impact, the width of the maximum depth of a canal is as important as its maximum depth. As to the width of the lowest bottom elevations of the canals, Applicant has produced no proof of original design specifications or, if not designed, original configurations. Nor has Applicant produced indirect proof of historic widths. Nothing in the record supports an inference that Applicant's predecessor in interest originally dredged the canal bottoms as wide as Applicant "maintenance" dredged them under the claimed exemption. Nothing in the record supports an inference that Applicant's predecessor geometrically dredged the canals so that their sides were perpendicular to their bottoms. Nothing in the record describes a sedimentation problem that might have narrowed the canals by such an extent that the dredging of the present widths, especially in the north canal, would be restorative. Nothing in the record even suggests that the original motive in dredging was navigability, which might have yielded relatively wide canal bottoms, versus upland fill, which would yield canal bottoms as wide as needed, not for navigability, but for uplands- creation. After consideration of all the evidence, no evidence supports a finding that the proposed dredging profiles, in terms of the widening of the areas of lowest elevation in each canal bottom, bear any resemblance whatsoever to the original canal profiles, as originally (or at any later point) designed or, if not designed, as originally (or at any later point) configured. It is at least as likely as not that this is the first time that these canal bottoms, especially the north canal bottom, have ever been so wide at any bottom elevation approaching -7 feet NGVD. There is simply no notion of restoration or maintenance in the dredging that produced these new bottom profiles for these three canals. Transforming MLW to NGVD, -5 feet MLW is -4.6 feet NGVD. All proposed and actual maintenance dredging in the three canals dredged the canal bottoms to elevations lower than -5 feet MLW (or -4.6 feet NGVD), despite the absence of any previous permit for construction or maintenance of the canal from the Trustees of the Internal Improvement Trust Fund or the United States Army Corps of Engineers. Impact of Dredging on Manatees and Spoil Containment Prior to dredging, Applicant deployed turbidity curtains around the mouths of the two canals that discharge directly into Deep Lagoon. In this case, the turbidity curtains performed two functions. They contained turbidity and resuspended bottom contaminants within the mixing zone behind (or landward of) the curtains, and they excluded manatees from the dangerous area behind the curtains where the dredging was taking place. Petitioner and Intervenor object to the use of the turbidity curtains on two general grounds. First, they claim that the curtains failed to contain turbidity and resuspended contaminants from escaping the mixing zone. Second, they claim that the curtains adversely affected manatees. As executed, the maintenance dredging did not result in the release of turbidity or resuspended contaminants outside of the mixing zone due to the use of turbidity curtains. Applicant's contractor ensured that the curtains extended from the water surface to the canal bottom and sufficiently on the sides to prevent the escape of turbidity or resuspended contaminants. Although the March 3 letter did not indicate where the contractor would deploy the turbidity curtains, the important point, in retrospect, is that the contractor properly deployed the curtains. There is some question whether turbidity or resuspended contaminants flowed across the mangrove fringe and into the Iona Drainage District ditch. Applicant's witness testified that water flows across the fringe only during the highest three or four tides per month. Petitioner and Intervenor's witness testified that water flows across the fringe as often as twice per day. The actual frequency is likely somewhere between these two extremes, but, regardless of the frequency, there is insufficient evidence to find that any turbidity or resuspended contaminants flowed from the north canal into the Iona Drainage District ditch. Nor did the deployment of the turbidity curtains injure, harm, possess, annoy, molest, harass, or disturb any manatees. Applicant and its contractor carefully checked each canal for manatees before raising the turbidity curtains at the mouth of each canal, so as not to trap any manatees in the area behind the curtains. By ensuring that the curtains extended to the canal bottom and extended fully from side to side, they ensured that the curtains excluded manatees during the dredging. There is no evidence that a manatee could have entered the north canal from the Iona Drainage District ditch by crossing the red mangrove fringe; any breaks in the fringe were obstructed by prop roots that prevented even a kayaker from crossing the fringe without portaging. Applicant and its contractor checked for manatees during dredging operations. Petitioner and Intervenor contend that the mere presence of the turbidity curtains in an area frequented by manatees adversely affected the animals. However, this argument elevates a speculative concern with a manatee's response to encountering an obstruction in its normal path over the practical purpose of curtains in physically obstructing the animal so as to prevent it from entering the dangerous area in which the dredge is operating, as well as the unhealthy area of turbidity and resuspended contaminants in the mixing zone. Under the circumstances, the use of the turbidity curtains to obstruct the manatees from visiting the dredging site or mixing zone did not adversely affect the manatees. In general, there is no evidence of any actual injury or harm to any manatees in the course of the dredging or the preparation for the dredging, including the deployment of the turbidity curtains. Petitioner and Intervenor offered evidence that maintenance dredging would result in more and larger boats and deterioration of water quality, which would both injure the manatees. However, as noted in the conclusions of law, the Administrative Law Judge excluded from DOAH Case No. 98-3901 such evidence concerning long-term impacts upon the manatees following the dredging. As for spoil containment, Applicant's contractor segregated the contaminated spoil from noncontaminated spoil by placing the contaminated spoil in a lined pit in the uplands. The contractor also brought onto the uplands clean fill mined from a sand quarry for backfilling into the dredged contaminated areas. There is evidence of the clean fill subsiding from its upland storage site and entering the canal waters in the mixing zone. Partly, this occurred during the loading of the barge, which transported the clean fill to the dead-end heads of the canals where the fill was placed over the newly dredged bottoms. The fill escaped into the water at a location about 100 feet long along the north seawall of the central canal, but the evidence does not establish whether this location was within the contaminated area at the head of the canal or whether the maintenance or contaminant dredging had already taken place. If the fill subsided into the water inside of the contaminated head of the south canal and the subsidence occurred prior to the contaminant dredging, the subsidence was harmless because the contractor would remove the fill during the dredging. If the fill subsided into the water inside the contaminated head of the south canal and the subsidence occurred after the contaminant dredging, the subsidence was harmless because the contractor intended to add the fill at this location. If the fill subsided into the water outside of the contaminated head of the south canal and the subsidence occurred prior to maintenance dredging, the subsidence was harmless because the contractor would remove the fill during the dredging. If the fill subsided into the water outside the contaminated head of the south canal and the subsidence occurred after the maintenance dredging, the subsidence was harmless because it restored the canal bottom to a higher elevation following the dredging to an excessively low elevation. The subsidence of the clean fill into the water along the north side of the central canal is the only material that entered the water from the uplands during the dredging. Specifically, there is no evidence of dredged spoil entering the water from the uplands during or after the dredging. There is also no evidence that the maintenance dredging significantly impacted previously undisturbed natural areas. There is no evidence of such areas within the vicinity of Deep Lagoon Marina. New Permit: DOAH Case No. 98-5409 New Permit Seeking to satisfy certain of the requirements of Original Permit Specific Condition 5, Applicant filed with DEP, on December 10, 1997, an application for an ERP and water quality certification to construct a surface water management system to serve 15.4 acres of its 24-acre marina. Prior to its reformulation as an ERP, the New Permit sought by Applicant would have been a SWM permit. The application notes that the general upland elevation is 5 feet NGVD and that stormwater runoff presently sheetflows directly to adjacent waterways without any treatment. During the application process, Applicant's engineer Christopher Wright, submitted a letter dated February 27, 1998, to Jack Myers, who is a Professional Engineer II for DEP. In response to a request from DEP for a "written procedure . . . to assure the proper functioning of the proposed . . . system," the letter states: Since the system is not designed as a retention system and does not rely upon infiltration to operate properly[,] operation and maintenance is minimal. Items that will need regular maintenance are limited to removal of silt and debris from the bottom of the drainage structures and the bleed down orifice of the control structure. A maintenance and inspection schedule has been included in this re-submittal as part of Exhibit 14. In relevant part, Exhibit 14 consists of a document provided Mr. Wright from the manufacturer of the components of the surface water management system. The document states that the manufacturer "recommends that the landowner use this schedule for periodic system maintenance . . .." The document lists 16 sediment-control items, but it is unclear whether all of them are incorporated into the proposed system. Four items, including sediment basins, require inspections quarterly or after "large storm events" and maintenance consisting of the removal of sediment; the "water quality inlet" requires inspections quarterly and maintenance consisting of "pump[ing] or vacuum[ing]"; the "maximizer settling chamber" requires inspection biannually and maintenance consisting of "vacuum[ing] or inject[ing] water, suspend silt and pump chamber"; and the "chamber" requires inspection annually and the same maintenance as the maximizer settling chamber. The proposed system includes the water quality inlet and one of the two types of chambers. By Notice of Intent to Issue dated November 5, 1998, DEP provided notice of its intent to issue the New Permit and certification of compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act, 33 United States Code Section 1341. On February 6, 1999, DEP revised the notice of intent by withdrawing its certification of state water quality compliance. As it did with the Original Permit, DEP again waived state water quality certification. This waiver is consistent with a letter dated February 2, 1998, in which then-DEP Secretary Virginia Wetherell announced that DEP would waive state water quality certification for all activities in which the agency issues an ERP based on the "net improvement" provisions of Section 373.414(1)(b), Florida Statutes. The notices of intent (collectively, NOI) recite the recent permitting history of the marina. This history includes the Original Permit, a since-expired MSSW permit issued in 1988 by SFWMD, and then-pending requests--apparently all since granted--to revise the Original Permit by replacing the flushing canal with culverts, relocating a travel lift from the main canal to the north canal, and adding liveaboards to the marina. (Although mentioned below, these revisions, in and of themselves, do not determine the outcome of DOAH Case No. 98-5409.) Reviewing the proposed development for the site, the NOI states that the northerly part of the project would contain an indoor dry boat storage barn, a marina service operation consisting of a ship store and miscellaneous buildings, a harbor master building, an upgraded fueling facility, a parts and service center, a restaurant, retail and commercial facilities, and paved parking areas. The southerly part of the project would contain a new indoor dry boat storage barn, a boat dealership building, and paved parking areas in place of the existing buildings. The NOI states that the proposed water quality treatment system would comprise dry detention systems of several underground vaults with an overall capacity based on the total impervious area, including roofs, receiving 2.5 inches of rain times the percentage of imperviousness. Given the relatively high imperviousness of the finished development, this recommended order considers the percentage of imperviousness to be 100, but ignores the extent to which the post-development pervious surfaces would absorb any rainfall. For storms producing up to 2.5 inches of runoff, the proposed surface water management system, of which the underground vaults are a part, would trap the runoff and provide treatment, as sufficiently sized contaminants settled into the bottom of the vaults. Because the vaults have unenclosed bottoms, the proposed system would provide incidental additional treatment by allowing stormwater to percolate through the ground and into the water table. However, the system is essentially a dry detention system, and volumetric calculations of system capacity properly ignored the incidental treatment available through percolation into the water table. The New Permit notes that the wet season water table is 1.2 feet NGVD, and the bottom of the dry detention system is 2.5 feet NGVD. This relatively thin layer of soil probably explains why DEP's volumetric calculations ignored the treatment potential offered by percolation. The relatively high water table raises the possibility, especially if Applicant does not frequently remove the settled contaminants, that the proposed system could cause groundwater contamination after the thin layer of soil is saturated with contaminants. In any event, the system is not designed for the elimination of the settled contaminants through percolation. The treatment system for the boat wash areas would be self-contained, loop-recycle systems that would permit the separation of oil and free-settling solids prior to reuse. However, the NOI warns that, "during heavy storm events"-- probably again referring to more than 2.5 inches of runoff--the loop-recycle systems would release untreated water to one of the underground vaults, which would, in turn, release the untreated water into the canals. Due to the location of the boat wash areas, the receiving waters would probably be the north canal. As reflected in the drawings and the testimony of Mr. Wright, the surface water management system would discharge at three points: two in the north canal and one in the south canal. (Vol. I, p. 206; future references to the Transcript shall cite only the volume and page as, for example, Vol. I, p. 206). 67. The NOI concludes that Applicant has provided affirmative reasonable assurance that the construction and operation of the activity, considering the direct, secondary and cumulative impacts, will comply with the provisions of Part IV of Chapter 373, F.S., and the rules adopted thereunder, including the Conditions for Issuance or Additional Conditions for Issuance of an environmental resource permit, pursuant to Part IV of Chapter 373, F.S., Chapter 62-330, and Sections SFWMD--40E-4.301 and 40E-4.302, F.A.C. The construction and operation of the activity will not result in violations of water quality standards and will not degrade ambient water quality in Outstanding Florida Waters pursuant to Section 62-4.242, F.A.C. The Applicant has also demonstrated that the construction of the activity, including a consideration of the direct, secondary, and cumulative impacts, is clearly in the public interest, pursuant to Section 373.414(1)(a), F.S. However, the design capacity of the proposed surface water management system raises serious questions concerning the water quality of the discharges into the canals. Mr. Wright initially testified that the surface water management system would be over-taxed by "an extreme storm event, probably a 25- year storm event . . .." (Vol. I, pp. 208-09). The record contains no evidence of the frequency of the storm event that produces 2.5 inches of runoff for the relatively impervious post- development uplands; the record contains no evidence even of the frequency of the storm event that produces 2.5 inches of rainfall. According to Mr. Wright, the 25-year storm would typically produce 8-10 inches of rain. (Vol. I, pp. 223 and 233). As already noted, the relatively large area of imperviousness following upland development and the relative imperviousness of the upland soils present at the site suggest that the runoff will be a relatively large percentage of the rainfall produced by any given storm event. It thus appears that the design capacity of the system is for a storm substantially smaller and substantially more frequent than the 25-year storm. Attached to the NOI is a draft of the New Permit, which contains numerous specific conditions and conforms in all respects with the NOI. Omitting any mention of SFWMD's Basis of Review, the New Permit addresses, among other things, the operation, inspection, and maintenance of the components of the proposed system. As set forth in the testimony of Michael Bateman, who is a Professional Engineer III and statewide stormwater coordinator for DEP, the surface water management system's operation depends on periodic pumping of the "thick, fine sediment," which appears to be a "cross between mud and sand" and will be laden with oil, grease, metals, and other contaminants. (Vol. II, p. 66). However, contrary to Mr. Bateman's assurance that the New Permit requires the periodic pumping or removal of contaminants that have precipitated out of the runoff in the dry detention system and dropped to the bottom sediment (Vol. II, p. 20), neither the NOI nor the New Permit requires, in clear and enforceable language, the periodic removal of settled solids from the underground vaults or their manner of disposal. New Permit Specific Condition 8 requires that Applicant maintain the boat wash area in "functioning condition," although specific inspection and maintenance requirements are omitted from the New Permit. New Permit Specific Condition 7 requires that Applicant "inspect and clean" all stormwater inlets "as necessary, at least once a month and after all large storm events," although the New Permit fails to specify that cleaning shall be by either pumping or vacuuming. By contrast to the marginally adequate inspection and maintenance provisions applicable to the boat wash area (inspections are required in Specific Condition 6, cited below) and stormwater inlets, the New Permit completely fails to specify enforceable inspection and maintenance requirements for the underground vaults. New Permit Specific Condition 6 addresses the operation of the vault as follows: Upon completion of the construction of the stormwater collection and underground vault (Infiltrator) systems and on an annual basis thereafter by September 30 of each year, the Permittee shall submit reports to the Department as to the storage/treatment volume adequacy of the permitted system. The reports shall also include, but not be limited to, the condition of stormwater inlets and control structures as to silt and debris removal and the condition of the inlet wire mesh screens to function properly. The boat wash down areas shall be inspected for proper operation, i.e., no signs of wash water overflows from the containment area, condition of the containment area curbing, etc. Such reports shall include proposal of technique and schedule for the maintenance and/or repair of any deficiencies noted and shall be signed and sealed by a Florida registered Professional Engineer. A report of compliance with the aforementioned proposal shall be submitted by the Professional Engineer to the Department upon completion of the proposed work which shall be accomplished within three months of the initial report for each year. New Permit Specific Condition 6 requires annual reports concerning the sufficiency of the capacity of the underground vaults (first sentence), annual reports of the status of silt- and debris-removal from the inlets and control structures and the condition of the inlet wire mesh screens (second sentence), inspection at no stated intervals of the boat wash area (third sentence), and annual reports with suggestions of maintenance schedules and repairs for the items mentioned in the first two sentences (fourth sentence). New Permit Specific Condition 6 promises only the preparation of a maintenance schedule at some point in the future. Failing to supply an enforceable inspection and maintenance program, Specific Condition 6 indicates that Applicant shall consider in the future techniques and scheduling of maintenance, presumably based on the report concerning system capacity. Such a requirement may or may not impose upon Applicant an enforceable obligation to adopt an enforceable inspection and maintenance program in the future, but it does not do so now. There is no reason why the New Permit should not impose upon Applicant an initial, enforceable inspection and maintenance program incorporating, for example, the clear and enforceable requirements that Applicant inspect all of the underground vaults no less frequently that once (or twice, if this is the applicable recommendation of the manufacturer) annually and, at clearly specified intervals, remove the sediments by resuspending the sediments in the water, pumping out the water, and disposing of the effluent and sediments so they do not reenter waters of the state. Although the record does not disclose such requirements, Applicant could possibly find manufacturer's recommendations for the boat wash components and incorporate them into an enforceable inspection and maintenance program more detailed than that contained in Specific Condition 8. However, for the reasons noted below, water quality considerations require a substantial strengthening of such a program beyond what is set forth in this paragraph as otherwise acceptable. At present, the bottom line on inspection and maintenance is simple: the New Permit does not even incorporate by reference the manufacturer's recommended inspection and maintenance schedule, which Mr. Wright provided to Mr. Myers. Nor was this shortcoming of the New Permit in its treatment of inspection and maintenance necessarily missed by Mr. Wright. He testified that he submitted to DEP the manufacturer's maintenance program (Vol. I, p. 205), but when asked, on direct, if the "permit in any way incorporate[s] the commitment in your application to this maintenance?" Mr. Wright candidly replied, "That I don't know." (Vol. I, p. 206). Satisfaction of Basis of Review Section 5 Basis of Review Section 5--specifically Section 5.2.1(a)--imposes the "volumetric" requirement of 2.5 inches times the percentage of imperviousness, as discussed above and in the conclusions of law. Petitioner does not dispute Applicant's compliance with this volumetric requirement, and the record amply demonstrates such compliance. Applicability of Basis of Review Section 4 The main issues in this case are whether the environmental and water quality requirements of Basis of Review Section 4 apply to the direct, secondary, and cumulative impacts of the proposed activity. Because the record lacks any indication of other relevant pending or vested permits, without which, as noted in the conclusions of law, one cannot assess cumulative impacts, the remainder of the findings of fact will not discuss cumulative impacts, although, to some extent, increased boating pressure constitutes a secondary impact and a cumulative impact. Without regard to the differences between direct and secondary impacts, DEP has taken the position in this case that it could lawfully issue the New Permit upon satisfaction of the volumetric requirements of Basis of Review Section 5 and without consideration of the requirements of Basis of Review Section 4. In large part, DEP's witnesses justify this position by reliance on the historic differences between DAF permits and SWM permits and the fact that the New Permit is a former-SWM ERP. As discussed in detail in the conclusions of law, the Basis of Review imposes different requirements upon former-DAF and former-SWM ERPs, although the Basis of Review does not refer to DAF or SWM permits by their former names. The identifying language used in the Basis of Review for former-DAF ERPs is "regulated activity" "located in, on, or over surface waters or wetlands." References to "regulated activity" without the qualifying clause indicate that the following requirement applies to former-DAF ERPs and former-SWM ERPs. Several witnesses for DEP and Applicant testified that Applicant was entitled to the New Permit upon satisfaction of the volumetric requirements of Basis of Review Section 5. For example, Mr. Wright testified that the water quality requirements for the New Permit required only a "cookbook calculation" to determine volume. (Vol. I, p. 204). Agreeing with a question that analysis of the water quality portion of the system requires "simply a straightforward mathematical calculation," Mr. Wright testified that the quality of discharged water, following treatment, will comply with state water quality standards in storms producing no more than 2.5 inches of runoff. (Vol. I, pp. 210-11). When asked to explain his answer, Mr. Wright testified, "It's kind of an implied situation, in that if you follow the guidelines that you are required to follow with respect to the calculations of water quality, that the end product is going to be in compliance with state standards." (Vol. I, p. 211). DEP witnesses agreed with Mr. Wright's analysis. For instance, Mr. Bateman testified, "The stormwater portion of the Basis of Review gets at that question [meeting water quality standards] by stating, 'if you follow the design criteria in the basis, you are presumed to meet water quality standards.'" (Vol. II, p. 40). Mr. John Iglehart, the program administrator for DEP's South District Office in Fort Myers, testified on the same point: "if . . . you meet the criteria, the engineering criteria, than you have met the presumption that you meet the rule." (Vol. III, p. 52). Mr. Myers also agreed, testifying, "with the stormwater management system, it's for the most part, let's say, fairly cut and dried as far as meeting criteria that is established within these rules and Basis of Review." (Vol. III, p. 144). He added: "Since the criteria for reviewing stormwater management systems and the discharge is based upon a presumed compliance with stormwater criteria and with state water quality, it is presumed it [the proposed system] does meet it." (Vol. III, p. 148). Mr. Bateman explained the historic basis for the water quality presumption given surface water management systems that meet the volumetric requirements: the ERP is a combination of the surface water management rules and the environmental . . ., the dredge-and-fill, and they didn't merge, they didn't marry very well in certain areas. In stormwater we look at--it's a technology- based criteria. We say, "If you build it this way, treat 80 percent of the average annual pollutant load, we're going to give you the permit on the presumption that you're doing the best you can. You're going to meet standards. Once you get into the wetlands, we take--we put on whole new sets of glasses. ALJ: Are you saying that the old dredge-and- fill is more performance-based, and the old MSSW is more technology-based, in that if you've put in the required technology, you've done your job? WITNESS: That is--yes. Dredge-and-fill is a more case by case. We look at the water quality. We look at ambient conditions. We look at hydrographics [here, largely tidal flushing]. It's more like a waste load allocation in that we're very specific. In stormwater, we can't afford to be. MS. HOLMES: So what you're saying is you can't point to the specific rule provision or regulation that excludes these criteria from surface water management systems? WITNESS: Well, you have to read [Basis of Review] Section 4 as a whole. 4.1 is specific to wetlands and other surface waters. 4.2 is environmental review. I mean, if you look at the thing in total, and the--and I realize it's confusing. But these rules are exactly the same in all the water management districts. They were developed together as the wetland criteria, the new dredge-and-fill criteria. They're exactly the same. The stormwater rules of all the [water management districts] is all different. That is for another day, making those all consistent. So these environmental wetland- type dredge-and-fill criteria are all the same, and they refer to in-water impact. [All references in the transcript to "end water" should have been "in-water."] ALJ: What do you mean by that term, "in- water impact?" WITNESS: In other words, dredge-and-fill impact. Construct and--I can't-- MS. HOLMES: May I continue, then? ALJ: Let him answer. What were you going to say? WITNESS: I think it takes a little knowledge of how these [rules] developed to know how they're applied, unfortunately. In other water management districts, it's clearer that these are in-water impacts. (Vol. II, pp. 57-59). In testifying to the exclusivity of the volumetric requirements in Basis of Review Section 5, with respect to former-SWM ERPs, these witnesses likewise opined that the secondary-impact analysis required in Basis of Review Section 4 also was inapplicable to the New Permit. For example, after testifying both ways on the necessity of considering secondary impacts in issuing former-SWM ERPs, Mr. Bateman concluded, "I'm not sure that [the requirement of considering secondary impacts] applies in this case. Certainty the rules apply, I mean, the rules apply. But certain rules are not applicable in this particular instance. I mean, I'm trying to think of a secondary impact associated with stormwater system, and it's difficult for me to do so." (Vol. II, p. 45). Mr. Bateman then testified that DEP did not consider such secondary impacts, as additional boat traffic, and probably did not consider cumulative impacts, such as other marinas. (Vol. II, pp. 51-52). In response to a question asking to what extent DEP considered post-development inputs of contaminants, such as heavy metals, when issuing a former-SWM ERP, Mr. Bateman testified: I have to tell you, very little. I mean, we--stormwater is pretty black and white. The link to secondary and cumulative impact is generally associated with in-water impact. And I realize the line is a little grey here. When we build a Wal-Mart, we don't think about how many cars it's going to put on [U.S. Route] 41 and what the impact might be to an adjacent lake. We just don't. It would be a little burdensome. In this case, I mean, it's a little greyer. (Vol. II, p. 47). Mr. Bateman was then asked to compare the relative impacts from a vacant, but developed, upland without a surface water management system with a proposed activity that would add a surface water management system to facilitate an intensification of land uses on the site so as to add new contaminants to the runoff. Mr. Bateman testified that DEP would apply only the volumetric requirement and not address the complex issue of weighing the potential environmental benefit of a new surface water system against the potential environmental detriment of contaminant loading (at least in storm events greater than the design storm event). Mr. Bateman explained: "The way it works, it is not a water quality-based standard. In other words, we don't go in and say it's so many pounds [of contaminants] per acre per year now. We're going to make it this many pounds per acre per year, and look at it in a detailed fashion. We do the [Best Management Practices], retain an inch and you're there." (Vol. II, p. 49). Agreeing with Mr. Bateman that DEP was not required to consider secondary impacts resulting from the regulated activity, Mr. Iglehart testified: "It's our thought that we don't really look at secondary and cumulative impacts for the stormwater permit. . . . If it [the former-SWM ERP application] meets the criteria, it gets the permit. That--in the ERP, the previous dredge-and-fill side looks at the secondary and cumulative. The stormwater just--like Mr. Bateman testified." (Vol. III, p. 52). After some ambivalence, Mr. Myers also testified that DEP was not required to consider secondary impacts for the New Permit: WITNESS: . . . I did not or I do not consider secondary impacts for the stormwater management system. MS. HOLMES: So, what about cumulative impacts? WITNESS: No. MS. HOLMES: So it's your testimony that you did not review secondary and cumulative impacts-- WITNESS: That's correct. MS. HOLMES: --of this system? WITNESS: What I can say is that the existing system out there, from what I can tell, does not have any stormwater treatment. Basically, it's running off into the canals. The proposed project will provide stormwater treatment for, not only the new construction, which is proposed mainly on the northern peninsula, but it is also provided for that area which is now existing, it will provide stormwater treatment for that area also. And I consider that--I don't consider that to be a secondary impact. I see it as an offsetting improvement to potential as far as the water quality. (Vol. III, pp. 144-45). As discussed in detail in the conclusions of law, these witnesses have misread the provisions of the Basis of Review applicable to the New Permit. As noted in the conclusions of law, the requirements in the Basis of Review of analysis of secondary and cumulative impacts upon water quality and manatees are not limited to in-water or former-DAF activities. Satisfaction of Basis of Review Section 4 Direct vs. Secondary Impacts In terms of construction, the direct impacts of the proposed surface water management system are negligible. Nothing in the record suggests that the construction of the proposed system will violate any of the requirements of Basis of Review Section 4. In terms of maintenance, the direct impacts of the proposed surface water management system are negligible, except for the omission from the New Permit of any provision for the safe disposition of the contaminant removed from the underground vaults. However, the maintenance issues are better treated with the operation issues. In terms of operation, the direct impacts of the proposed surface water management system are substantial. As discussed in the conclusions of law, the analysis of the direct impacts of the operation of the proposed system is limited to the current level of uplands and marine activity at the marina. These direct impacts involve two aspects of the operation of the proposed system: the design capacity and the inspection and maintenance (including disposal of sediment) of the system components. As discussed in the conclusions of law, the secondary impacts involve the intended and reasonably expected uses of the proposed system. These impacts consist of the increased uplands and marine uses associated with the addition of 100 new wet slips, 227 new dry slips, and 115,000 square feet of building space with a restaurant. Apart from their contention that Applicant is required only to satisfy the volumetric requirements of Basis of Review Section 5, Applicant and DEP have contended that Petitioner is estopped from raising direct and secondary impacts because DEP considered these impacts when issuing the Original Permit four years ago. Perhaps the most obvious factual problem with this contention is that it ignores that the New Permit authorizes, for the first time, the construction of the 227 new dry slips and 115,000 square feet of buildings. As counsel for DEP pointed out during the hearing, the Original Permit was a DAF permit and did not extend to these upland uses. The contention that DEP considered these developments as secondary impacts because they were shown on drawings attached to the Original Permit gives too much significance to nonjurisdictional background items shown in drawings without corresponding textual analysis. More generally, the efforts of DEP and Applicant to restrict the scope of this case rely on a misreading of Original Permit Specific Condition 5. The purpose of Original Permit Specific Condition 5 is to "ensure a net improvement to water quality." The purpose of each of the requirements under Specific Condition 5 is to achieve an actual, not presumptive, improvement in water quality. Prohibiting the issuing agency from fully analyzing the direct and secondary impacts of the proposed surface water management system reduces the likelihood that the ensuing New Permit will perform its role, as envisioned in the Original Permit, of helping to achieve an actual, net improvement in water quality. The concept of a "net" improvement is exactly what DEP's witnesses disclaim having done in this case--balancing the potential environmental benefits to the water resources from the proposed surface water management system against the potential environmental detriments to the water resources from the development and land uses that are intended or reasonably expected to result from the construction of the proposed system. The failure to analyze the net gain or loss inherent in this important provision of Specific Condition 5.B undermines the likelihood that the effect of Specific Condition 5.B--a net improvement in water quality--will be achieved. It is therefore illogical to rely on Specific Condition 5.B, as DEP does, as authority for an artificially constrained analysis of the eligibility of the proposed system for a former-SWM ERP. The estoppel argument also ignores that Original Permit Specific Condition 5.B anticipated that the issuing agency would be SFWMD. It is unclear how the parties to the Original Permit, including DEP, would bind what appeared at the time to have to be SFWMD in the exercise of its lawful authority in issuing SWMs or former-SWM ERPs. The attempt of Applicant and DEP trying to limit the scope of this case also overlooks numerous changed circumstances since the issuance of the Original Permit. Changed circumstances militating in favor of the comprehensive analysis mandated for former-SWM ERPs include: increased trends in manatee mortality; increased boating pressure; persistent water quality violations in terms of dissolved oxygen, copper, and total coliform bacteria; a dramatic deterioration in dissolved oxygen levels; the initial presentation for environmental permitting of the previously unpermitted 227 additional dry slips and the 115,000 square feet of buildings; the current canal bottom profiles resulting from excessively deep maintenance dredging; the absence of an updated flushing study; and the failure to dredge the flushing canal required by the Original Permit. Disregarding the environmental and water quality requirements of Basis of Review Section 4 in this case would thus repudiate Specific Condition 5.B, especially when, among other things, the water quality of the canals has deteriorated dramatically with respect to dissolved oxygen, the canals continue to suffer from serious copper violations, the canals were recently maintenance dredged to excessive depths, no flushing study has examined these subsequent developments, and the intended uses to be facilitated by the New Permit more than double the capacity of the existing marina. 2. Water Quality The direct impacts of the proposed surface water management system, based on current levels of uplands and marine use at the marina, would adversely affect the quality of the receiving waters, in violation of Basis of Review Section 4.1.1(c). The excessively increased depths of the canals, especially with respect to the substantially widened depths of the north canal, raise the potential of water quality violations, especially given the history of this site. Potential sources of contaminants exist today in the canal bottoms, uplands, and marine activity associated with the marina. The potential for water quality violations, especially with respect to dissolved oxygen, increases in the absence of an updated flushing study. The potential also increases with the introduction of liveaboards and failure to dredge the flushing canal (or its replacement with culverts). In the face of these current threats to water quality, the New Permit fails to require a system with adequate capacity to accommodate fairly frequent storm events and fails to impose clear and enforceable inspection, maintenance, and disposal requirements for the underground vaults. Although better, the inspection and maintenance requirements for the stormwater inlets and boat wash area unnecessarily present enforcement problems. The effect of these failures in design capacity and inspection and maintenance is synergistic. Deficiencies in vault capacity mean that storms will more frequently resuspend the settled contaminants in the vaults and flush them out into the canal waters. Excessively long maintenance intervals and poor maintenance procedures will increase the volume of contaminants available to be flushed out into the canal waters. Improper disposition of removed contaminants endangers other water resources. The introduction of untreated or inadequately treated water into the canals means the introduction of two substances that will contribute to the current water quality violations. Organics, such as from the boat wash operations and other uplands uses, will raise biochemical oxygen demand, which will accelerate the deterioration in dissolved oxygen levels. Copper removed during boat wash operations, leaching from painted hulls, or remaining in the uplands from past marina operations will also enter the canals in this fashion. On these facts, Applicant has failed to provide reasonable assurance that the operation of the proposed surface water management system will not result, in the long-term, in water quality violations. Applicant has failed to demonstrate that the operation of the proposed system, even as limited to existing levels of use of the uplands and marine waters, will not contribute to existing violations of dissolved oxygen and copper levels. Obviously, the situation is exacerbated by consideration of the uses intended and reasonably expected to follow the construction of the proposed system. With the growing popularity of boating in Lee County over the past 20 years, it is reasonably likely that an expanded marina operation, located close to downtown Fort Myers, will successfully market itself. Thus, many more boats will use the marina because it will offer more wet and dry slips and new buildings, including a restaurant, and the pressure on water quality will intensify with the intensification of these uses. The added intensity of upland and marine uses will contribute to the above-described violations of water quality standards for dissolved oxygen and copper, probably will contribute to the above-described violations of water quality standards for total coliform bacteria and lead, and may contribute to the recurrence of water quality violations for other parameters for which the canals were previously in violation. On these facts, Applicant has failed to provide reasonable assurance that the direct and secondary impacts of the proposed system will not adversely affect the water quality of the canals. 3. Manatees and Manatee Habitat By letter dated June 26, 1998, from a DEP Environmental Specialist to a DEP permitting employee, the Environmental Specialist provided an initial opinion concerning the revisions that Applicant sought to the Original Permit so as to allow liveaboards, replace the flushing canal with culverts, and relocate the travel lift to the north canal. The letter accompanies a Manatee Impact Review Report, also dated June 26, 1998. The Manatee Impact Review Report notes the pending application for the New Permit. The report considers at length the extent of manatee use of Deep Lagoon and the nearby portions of the Caloosahatchee River. The Manatee Impact Review Report states: This project [i.e., the relocation of the boat lift to the north canal, addition of liveaboards, and conversion of the flushing canal to flushing culverts] is expected to add a significant number of boats to this system, significantly increase the level of boat traffic, and change boat traffic patterns in the study area. The vessels from this project are expected to produce significant adverse impacts to manatees that use the Deep Lagoon in the immediate vicinity of the project, as well as in the boater's sphere of influence of the project. Secondary adverse impacts include lethal and sublethal watercraft-related injuries, disturbance contributing to stress, and alteration of natural behaviors. The secondary impacts expected with this project are compounded by the cumulative secondary effects from other facilities in this system. Just south of this project site, another marina was recently constructed (Sun City Corporation aka Gulf Harbor Marina aka River's Edge), which has approximately 190 wet slips. Since October 1995, there have been seven watercraft-related deaths within five miles of this project location. The Gulf Harbor Marina was constructed in late 1995, and was almost fully occupied during 1996. Watercraft-related manatee deaths increased significantly during this time, with one in December 1995, two in 1996 and four in 1997. Additional on-water enforcement by the City of Cape Coral was considered part of the offsetting measures to address the expected impacts to manatees from increases in boat density. This offsetting measure, however, appears to be ineffectual at this time. The Manatee Impact Review Report concludes that the north canal and its mouth are "particularly important" for manatee because of the availability of freshwater from the adjoining Iona Drainage District ditch immediately north of the north canal and "historical use indicates that this area appears to be the most frequently used area in the Deep Lagoon system." The report cautions that the relocated travel lift may significantly increase the number of boats in the little-used north canal, whose narrowness, coupled with moored, large boats on the one side, "would produce significant, adverse impacts to the endangered manatee." The Manatee Impact Review Report finds that Applicant failed to provide reasonable assurance regarding the conservation of fish and wildlife, unless several new conditions were added. These conditions include prohibitions against boat launching along the shoreline of the north canal and the addition of manatee-exclusion grating to any culverts that may be approved. As defined in this recommended order, the direct impacts upon manatees from the proposed surface water management system would be moderate. As defined in this recommended order, direct impacts would not involve any increase in boating pressure. The greater impacts would be in the deterioration of two measures of water quality that are crucial to manatees: dissolved oxygen and copper. However, the secondary impacts are dramatic, not de minimis, and arise from the intended and reasonably expected uses to follow from the construction of the proposed surface water management system. The increased boat traffic intended and reasonably expected from more than doubling the marina capacity, through the addition of 100 wet slips and 227 dry slips, and the addition of 115,000 square feet of buildings, including a restaurant, would adversely impact the value of functions provided to manatees by the affected surface waters. Manatee mortality has increased as boat traffic has increased. Substantial numbers of boaters have ignored speed limits. Quality manatee habitat in this critical area along the Caloosahatchee River is not plentiful. On these facts, Applicant has failed to provide reasonable assurance that the secondary impacts of the proposed system will not adversely impact the abundance and diversity of wildlife and listed species, of which manatees are one, and the habitat of wildlife and listed species. 4. Minimization and Mitigation Due to their contention that Basis of Review Section 4 does not apply to this case, DEP and Applicant did not demonstrate compliance with the minimization and mitigation sections of Basis of Review Section 4. However, the record supports the possibility of design alternatives for water quality impacts, if not manatee impacts, that DEP and Applicant must consider before reanalyzing the direct, secondary, and cumulative impacts of the proposed system on the water resources and, if appropriate, potential mitigation options. Mr. Bateman testified that SFWMD is the only district that permits surface water management systems relying on the settling out of sediments in the bottom of a storage-type detention system. (Vol. II, p. 18). He explained that other districts rely on systems that, taking advantage of the three to four feet typically minimally available between ground surface and the top of the water table, retain the runoff and allow it to percolate into the ground. (Vol. II, p. 19). One relatively straightforward design alternative, which would address water quality issues, would be to perform a flushing study; analyze applicable drainage level of service standards imposed by state, regional, and local authorities; and increase the capacity of the surface water management system to accommodate the runoff from storms of sufficient size and frequency that would be accommodated by the proposed system. Another feature of this design alternative would be to impose for each component of the system a detailed, enforceable program of inspection, maintenance, and contaminant-disposal. This program would incorporate the manufacturer's recommendations for the manner and minimum frequency of inspection and maintenance, but would require more frequent removal of contaminated sediments during periods when larger storms are more numerous (e.g., a specified wet season) or more intense (e.g., a specified hurricane season), as well as any periods of the year when the marine and upland uses are greatest (e.g., during the winter season, if this is the period of greatest use). As testified by Mr. Bateman, the proximity of the water table to the surface, as well as South Florida land costs, discourage reliance upon a conventional percolation-treatment system, even though the site's uplands are 5 feet NGVD and the water table is 1.2 feet NGVD. The bottom of the proposed system is 2.5 feet NGVD, which leaves little soil for absorption. If the nature of the contaminants, such as copper, does not preclude reliance upon a percolation-treatment system, DEP and Applicant could explore design alternatives that incorporate more, shallower vaults, which would increase the soil layer between the bottom of the vaults and the top of the water table. If the technology or contaminants preclude reliance upon such an alternative, the parties could consider the relatively costly alternative, described by Mr. Bateman, of pool-like filters with an "actual filtration device." (Vol. II, pp. 19-20). The preceding design alternatives would address water quality concerns, including as they apply to manatees, but would not address the impact of increased boating upon manatees. The record is not well developed in this regard, but DEP and Intervenor have considerable experience in this area, and it is premature to find no suitable means of eliminating or at least adequately reducing the secondary impacts of the proposed system in this crucial regard as well. In any event, Applicant has failed to consider any design alternatives to eliminate or adequately reduce the direct and secondary impacts of the proposed surface water management system. Having failed to consider minimization, DEP and Applicant have failed to identify the residual direct and secondary impacts that might be offset by mitigation. Applicant has thus failed to mitigate the direct and secondary impacts of the proposed surface water management system.
Recommendation It is RECOMMENDED that the Department of Environmental Protection enter a final order revoking its determination of an exemption for maintenance dredging in DOAH Case No. 98-3901 and denying the application for an environmental resource permit in DOAH Case No. 98-5409. DONE AND ENTERED this 24th day of November, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 24th day of November, 1999. COPIES FURNISHED: Kathy Carter, Agency Clerk Office of the General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 T. Elaine Holmes, Attorney 14502 North Dale Mabry, Suite 200 Tampa, Florida 33618 David Gluckman Gluckman and Gluckman 541 Old Magnolia Road Crawfordville, Florida 32327 Matthew D. Uhle Humphrey & Knott, P.A. 1625 Hendry Street Fort Myers, Florida 33901 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact On March 12, 1985, Applicant filed a request with the Department for a permit to construct a marina in a manmade basin (Captain's Cove) located on Lower Matecumbe Key, Monroe County, Florida. The permit sought by the Applicant, as modified, would allow it to construct a 52-slip docking facility consisting of two 5' x 248' docks, each with fourteen 3' x 40' finger piers and twelve associated mooring piles; and, approximately 590 linear feet of riprap revertment requiring the disposition of approximately 300 cubic yards of rock boulders landward and waterward of mean high water (MHW). All docks and finger piers would be constructed of prestressed concrete supported by concrete piles; mooring piles would be pressure treated wood. The Applicant proposes to organize the facility as a condominium development; however, live-aboard use will be prohibited. A manager's quarters, office, restrooms and a parking area will be provided on the adjacent uplands. The Department's October 3, 1985, notice of intent to issue, proposed to issue the requested permit subject to the following condition: The permittee is hereby advised that Florida law states: "No person shall commence any excavation, construction, or other activ- ity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use." If such work is done without consent, a fine for each offense in an amount of up to $10,000 may be imposed. Turbidity screens shall be utilized and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. Only non-commercial, recreational boats shall be allowed to use the proposed marina. The applicant shall incorporate this condition into the condominium document for the proposed marina and supply the Department with a copy of the document prior to any sales of the condominium. No live-aboard boats shall be allowed in the marina. This condition shall also be placed in the condominium document. A portable sewage pumpout wagon shall be provided at the marina. Pumpout effluent shall be properly disposed of by methods acceptable to the department; these methods and locations shall be approved by the department prior to construction. A supply of oil absorbent materials, designed to clean up small oil spills, shall be maintained at the marina office. At least sixty (60) days prior to construction, the applicant shall submit to the Punta Gorda DER office for review, a detailed list of equip- ment to be permanently maintained on site. This list of equipment shall be modified as necessary and approved by the department prior to construction. The uplands on the permittee's property shall be graded to direct stormwater away from the edge of the boat basin. No fuel facilities nor storage shall be allowed at the project. Only clean rock boulders free from attached sediments or other deleterious compounds, and of a minimum diameter of 2' or greater shall be installed as riprap. 1O. The Marathon Department of Environmen- tal Regulation office shall be notified 48 hours prior to commencement of work. "IDLE SPEED-NO WAKE" signs shall be placed at conspicuous locations at the docking facility with additional language that "this precaution exists throughout the length of the canal channel during ingress and egress". At least two trash receptacles shall be provided on each of the two main walkway piers: these receptacles shall be routinely maintained and emptied. Prior to dockage use by boats, marker buoys shall be established around all vege- tated shallow zones within the limits of the submerged property limits with signs advising boaters of "SHALLOW WATERS-NO ENTRY". Prior to construction, the applicant and the Mara- thon DER office shall meet to discuss accept- able locations for these markers. The project shall comply with applic- able State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria 17-3.121 - Criteria - Class III Waters - Recreation, Propagation and Management of Fish and Wildlife: Surface Waters. The Applicant has agreed to comply with all conditions established by the Department. The Marina Site Captain's Cove is a manmade navigable lagoon with access to Florida Bay through a 2,500' long by 100' wide canal located opposite the project site. The waters of Captain's Cove and the canal are designated Class III surface waters, and those of Florida Bay as Outstanding Florida Waters. The controlling depth for access to the proposed marina is found at the mouth of the canal, where Florida Bay is approximately 6' mean low water (MLW). Depths within the canal are typically 1' or 2' deeper than the controlling depth at the mouth. Captain's Cove is roughly rectangular in shape. It measures 1,400' northeast to southwest, and up to 500' northwest to southeast. In the vicinity of the Applicant's property, which is located in the northeast fifth of the cove, the cove measures 350' wide. The bottom depth of the cove is variable. The southwestern four-fifths of the cove was typically dredged to a depth of 25' MLW. Within the northeast fifth of the cove (the basin), a gradation in depths is experienced. The northwest portion of the basin, located outside the project site, is typically 5' - 6' MLW, and heavily vegetated by sea grasses (turtle grass, manatee grass, and Cuban shoalweed). The southeast portion of the basin, which abuts the Applicant's property, consists of a shallow shelf 10' - 20' in width. Beyond this shelf, the bottom drops off steeply to a depth of 20' MLW. The shelf abutting the Applicant's property is sparsely vegetated with mangroves, and provides limited habitat for aquatic fauna such as domingo mussels and paper oysters. Replacement of these mangroves and other shoreline vegetation with riprap would not significantly affect the biological balance within the cove and would provide suitable habitat for existing species. The waters within the cove are quite clear, and meet the Department's water quality standards except for a thin layer at the deepest part of the cove where dissolved oxygen violations were noted. The proposed marina is, however, to be located in the northeast fifth of the cove, opposite the access canal, where the waters are more shallow and water circulation more prevelant. As sited, the proposed marina will not exacerbate or contribute to a violation of the Department's water quality criteria. Areas of Concern During construction of the marina elevated turbidity may be expected by disruption of the basin sediments caused by installation of the facility's pilings. This can be adequately controlled, however, by the use of turbidity curtains during construction. Shading of the benthic environment is a long term impact associated with marinas. Since the boat slips will be located in the deeper 20' MLW depth of the basin, where seagrasses are not present, sunlight will be permitted to reach the productive areas of the basin lying at 5' - 6' MLW and no adverse impact from shading will be experienced. Boats by their very existence and operation present potential negative short term and long term impacts to the environment. Potential damage to the seagrass beds in the northwest portion of the basin will be eliminated or minimized by the planned installation of buoys and/or signs prohibiting navigation in that area. Potential damage from wave action generated by boat operation will be eliminated or minimized by designating and posting the marina and access channel as an "idle speed-no wake" zone.[footnote 1] [footnote 1: Intervenors raised some concern regarding possible impact to the Florida manatee. While manatee have been sighted in the access channel, their occurrence is infrequent. Marking the shallow areas and designating the area as an "idle speed-no wake" zone will provide reasonable assurances that the manatee will not be adversely affected by the proposed marina.] The fueling of boats, hull maintenance, boat cleaning (detergents), and sewage discharge are additional pollution sources associated with marinas. While the proposed marina will have no fueling facilities and no live-aboards will be allowed at the marina, additional conditions must be attached to the permit to eliminate or minimize potential impacts from these potential pollution sources. In addition to the conditions established by the Department, the following conditions are necessary: All craft docked at the marina shall be prohibited from pumping sewage into the waters of the cove. Use of the boat slips shall be limited to those person(s) who own the slip. Leasing of boat slips shall be prohibited. Living aboard any boat docked at the marina is prohibited at all times.[footnote 2] [footnote 2: During hearing some concern was raised regarding the definition of live- aboard. The Department's intent in specifying no live-aboards was that no person(s) stay overnight on any boat moored at the marina. The purpose of this condition is to clarify that intent.] No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility. Limiting use of the boat slips to owners will provide reasonable assurances that the conditions imposed on the requested permit will be complied with. Prohibiting live- aboards, the pumping of sewage, fish cleaning, boat cleaning and hull maintenance, will provide reasonable assurances that Department standards for bacteriological and water quality will not be violated.
The Issue The issue is whether ADR of Pensacola should be issued a wetland resource permit and sovereign submerged lands authorization allowing the construction of a 30-slip docking facility on Big Lagoon, Escambia County, Florida.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background In this environmental permitting dispute, Petitioner, Michael L. Guttmann, who lives less than one mile from the project site, has challenged the proposed issuance by Respondent, Department of Environmental Protection (Department), of a Wetland Resource Permit (permit) and Sovereign Submerged Lands Authorization (authorization) which would allow Respondent, ADR of Pensacola (applicant), to construct a 30-slip docking facility on Big Lagoon, Escambia County, Florida. The facility will be part of a condominium project to be constructed on the upland portion of the property. As grounds for contesting the permit, Petitioner contended that the Department failed to consider "the long term health of Big Lagoon," navigational hazards created by the project, or public safety; failed to impose an adequate "monitoring program"; did not provide for a "contingency plan for hurricane activity"; failed to consider that the activity will degrade a nearby Outstanding Florida Water [OFW]; and failed to take into account "existing unused marina slips close by." The petition further alleged that the foregoing concerns constituted violations of Section 373.414, Florida Statutes (2000), and Rules 62-4.242, 62-302.300, 62-302.700, and 62- 312.080, Florida Administrative Code. The cited statute identifies "additional criteria" for issuing a permit while the first three rules pertain to OFWs. The last rule contains general standards for the issuance or denial of a permit. Petitioner raised no issues concerning the issuance of the authorization in his initial pleading. Until April 2000, the upland property was owned by the applicant. It was then sold to Harbour Pointe of Pensacola, Inc., which has subsequently entered into an agreement with the applicant allowing the applicant to construct the dock, operate the permit, and purchase a condominium unit. If the application is approved, applicant intends to construct a 442 feet x 4 feet access pier with seventeen 30 feet x 1.5 feet finger piers, thirteen 40 feet x 1.5 feet finger piers, and a 74 feet x 1.5 feet terminal platform, to form a 30-slip docking facility at 10901 Gulf Beach Highway on Big Lagoon, a Class III water in Escambia County, Florida. Approval to use the submerged lands is found in the authorization. The dock will be located in a "fairly pristine area" in Big Lagoon a few miles southwest of Pensacola, Florida. That body of water is six miles in length and is separated from the Gulf of Mexico by a slender coastal barrier island known as Perdido Key, which lies approximately one statute mile south of the project. Continuing west along the shoreline next to the project site are a string of single-family homes with small dock facilities, most of which are less than 1,000 square feet in size and thus exempt from Department permitting requirements. To the east of the undeveloped property are more undeveloped lots and a private yacht club with extensive docking facilities. The facility being challenged here will not be a public marina; rather, it will serve the residents of a proposed upland condominium (consisting of two buildings) to be constructed at the same location. The project is more commonly referred to as the Harbour Pointe Marina. It is fair to infer that Petitioner and adjoining property owners object not only to the dock, but also to the condominium project. The application and project When the application was originally filed with the Department in July 1995, it contained plans for a longer dock and more slips. Due to a reduction in the length of the pier and number of slips to conform to Department rules, other technical changes, and various requests by the Department for additional information, the draft permit was not issued by the Department until May 2000. The Department considers this a "major project" with "major [hydrographic and water quality] issues connected with it." In reviewing the application, the Department considered whether reasonable assurance had been given by the applicant that water quality standards would not be violated, and whether the additional criteria in Section 373.414(1)(a)1.-7., Florida Statutes (2000), had been satisfied. The Department concluded that water quality standards would not be degraded, and that the project, as designed and permitted, was not contrary to the public interest. In making the public interest determination, the Department typically assigns a plus, minus, or neutral score to each of the seven statutory factors. In this case, a neutral score was given to historical and archaeological resources [paragraph 373.414(1)(a)6.] since there were none, while the permanent nature of the project [paragraph 373.414(1)(a)5.] caused it to be rated "a little bit on the minus side"; all other factors were given a plus. Department witness Athnos then concluded that on balance the project "was a plus because it will not adversely affect any of these things." The access pier (dock) runs perpendicular from the shoreline and stretches out some 442 feet to where the water reaches a depth of seventeen feet, which is the deepest point in Big Lagoon. The unusual length of the dock is required so that the boat slips will begin past the seagrass colony (which lies closer to the shore), to prevent boat propeller blades from cutting the top of the seagrass, and to reduce the amount of sedimentation stirred up by the boat propellers. Aerial photographs confirm that when completed, the dock will probably be the largest in Big Lagoon, and much larger than the neighboring docks to the west. The use of boat slips will be limited to condominium owners. Only 19 slips will be constructed initially, since the applicant has secured approval at this time for only the first phase of the condominium project. When approval for the second phase is secured, the applicant intends to add an additional 11 slips. Water quality In his initial pleading, Petitioner made a general allegation that the Department failed to consider "the long term health of Big Lagoon"; there were no specific allegations regarding water quality standards. In his Proposed Recommended Order, however, he argues that the [a]pplicant failed to provide reasonable assurances that water quality standards would not be violated." Assuming arguendo that the issue has been properly raised, Petitioner has still failed to substantiate his allegation. That portion of Big Lagoon where the project will be located is a Class III water of the State. Studies on metals, greases, oils, and the like submitted by the applicant reflected that the "water quality [in that area] did not exceed the standards in Rule 62-302." To provide further reasonable assurance regarding water quality standards, the applicant has voluntarily agreed to use concrete piling and aluminum docks. Unlike wooden piling and docks, these types of materials do not leach toxic substances such as arsenic, copper, and acromiom into the water. In addition, special permit conditions require that sewage pumpout equipment be located at the site so that boats will not discharge raw sewage into the waters. Liveaboards are prohibited, and fueling will not be available at the facility. Finally, the cleaning of fish is not allowed, and boat owners cannot scrape their boat bottoms while docked at the facility. All of these conditions are designed to ensure that water quality standards will not be violated. Enforcement mechanisms for the above conditions are found in either the permit itself or Chapter 403, Florida Statutes. Also, one of the conditions in the draft permit expressly states that the applicant is not relieved of liability for harm or injury to humans, plants, or property caused by the construction of the dock. However, if a permit is issued, Condition 9 of the permit should be modified to require that trained personnel be available twenty-four hours per day, rather than just during standard business hours, to assist boaters with, and ensure that they use, the sewage pumpout equipment. Any permit issued should also require that boats be placed on lifts while using the docking facilities. This will prevent any leaching of paint from the boat bottoms into the waters. Otherwise, the paint would cause a degradation of the water. The more persuasive evidence supports a finding that, with the additional conditions, reasonable assurance has been given that the state water quality standards applicable to Class III waters will not be violated. Outstanding Florida Waters In his complaint, Petitioner has contended that "the proposed activity will degrade an [OFW] as a result of its close proximity to the Gulf Islands National Seashore," and that the"[D]epartment has made no analysis of this project['s] impact on the [OFW] which is adjacent to the proposed activity." The record discloses that the southern portion of Big Lagoon has been designated as an OFW. This area includes the waters around Gulf Islands National Seashore and Big Lagoon State Park; they begin approximately 650 to 700 feet south of the end of the dock. As noted earlier, the project is located within Class III waters. Because the Department found that no violation of state water quality standards in those waters would occur, it likewise concluded, properly in this case, that the project would have no impact on any OFW, even though such waters begin some 650 or 700 feet away. Under these circumstances, there would be no reason to assess the water quality in the OFWs or the projected impacts on those waters, as Petitioner suggests. In the absence of any credible evidence to the contrary, it is found that the project will not adversely impact an OFW. Hydrographic characteristics If a dock has more than ten boat slips, the Department routinely conducts a hydrographic (flushing) study to determine whether the structure will adversely affect the flow of the water in the area or cause erosion or shoaling on adjacent properties. In the summer of 1999, a Department engineer conducted a hydrographic study using a dye tracer and concluded that flushing characteristics were excellent and that there would be no adverse effects caused by the project. This conclusion has not been credibly contradicted. Therefore, it is found that the dock will not adversely affect the flow of water or cause harmful erosion or shoaling. Navigational issues In his initial pleading, Petitioner raised a contention that the project will create "navigational hazards" because the dock "extends nearly into a navigation channel which routinely carries commercial towboats transporting hazardous material, the spill of which would adversely affect Big Lagoon." He also alleges that the rupture of a vessel could impact public safety. Channel markers placed by the U.S. Army Corps of Engineers in the Intracoastal Waterway (of which Big Lagoon is a part) define a navigational channel for boats approximately 400- 500 feet south of the end of the proposed dock. That channel is used by both recreational and commercial traffic, including barges and other large watercraft which regularly haul oil, chemicals, and other products through the Intracoastal Waterway to and from Pensacola, Panama City, and St. Marks, Florida. The water in the marked channel is only thirteen feet deep. Because the U.S. Army Corps of Engineers has jurisdiction over the maintenance of the marked channel, the Department defers to that entity's judgment in determining whether a proposed structure will impede navigation in the marked channel. The proposed dock ends near the deepest part of the natural channel where the water reaches a depth of seventeen feet. Because of the deeper water to the north, which allows the boat captain to "get better steerage," the commercial boat traffic sometimes tends to follow the natural channel, rather than the marked channel formed by the navigational aids. When they do so, however, they are straying from the so-called "legal" channel. Petitioner's expert, a retired tugboat captain, opined that in a storm or squall, a commercial boat using the natural rather than the marked navigational channel might be blown extremely close to the dock or even strike it, thus causing a hazardous situation. He acknowledged, however, that he was not predicting more accidents because of the construction of the dock; he also admitted that the dock would not cause ships to "sudden[ly] have problems navigating that Big Lagoon." The location of the proposed dock was shown to the U.S. Army Corps of Engineers and the Florida Marine Patrol, and there were no adverse comments regarding this issue by either agency. In the absence of any negative comments by those agencies, and the acknowledgement by Petitioner's own witness that the dock will not cause accidents or create navigational problems for other boaters, the more persuasive evidence supports a finding that the project will not adversely affect navigation or public safety in Big Lagoon. Seagrass and monitoring Petitioner has alleged that Big Lagoon "is the healthiest body of water in Escambia County with a white sand bottom and abundant seagrass," and that the proposed project will adversely affect its "long term health." He also alleges that the Department has failed to provide a "remedy or punishment should the results [of the Department's monitoring plan] indicate that the seagrass has been harmed"; that the Department's monitoring plan is not "of sufficient duration to reasonably report the long-term effect of concentrated mooring and traffic" or "sufficiently specific to insure usable data"; and that the data relied upon by the Department [such as photographs] were not "sufficient" to determine the existing health of the seagrass. The evidence reflects that a "nice, healthy seagrass community" is found in the area where the dock will be constructed. It stretches out several hundred feet from the shoreline to where the water reaches a depth of around six feet. The Department considers seagrass to be a "most important resource" which should be protected. This is because seagrass is essential for "binding" the shoreline and stabilizing the sediments, and it serves as a nursery area for juvenile fish and shellfish. Indeed, due to these beneficial effects, far more species of shellfish are found in areas where seagrass thrives than in areas where no seagrass exists. To protect the seagrass, the dock has been extended out 442 feet from the shoreline so that the first boat slip begins at a depth of seven feet, or just past where the seagrass ends. This will prevent the scarring of the grass by boat propellers and reduce turbidity that is typically caused by propeller dredging and boat wakes. Thus, at least theoretically, no boat activity by condominium owners is contemplated in waters of less than seven feet. Because seagrass requires as much light as possible to survive, educational signs will be posted in the area to warn boaters that seagrass is found closer to the shoreline, and that mooring in that area is prohibited. There is, however, no enforcement mechanism to ensure that condominium owners or nonresidents comply with these warnings. Under the draft permit, the Department is allowed to access the premises at reasonable times for sampling or monitoring purposes. A special section of the draft permit includes a number of requirements pertaining to the monitoring of turbidity levels during dock construction while another section requires the applicant to take photographs of the existing seagrass beds at numerous locations before, during, and after construction of the dock. Condition 14 requires that the permittee maintain "records of monitoring information" for at least three years. The evidence supports a finding that if a permit is issued, a mapping of the seagrass should be made prior to construction of the dock and during the height of the growing season (September and October). When the photographing of the area is performed, the applicant should use a sampling protocol that is based on a scientifically determined method. Also, both affected and unaffected areas should be monitored to compare the effect of the additional boat traffic on the seagrass after the dock is constructed. All of these conditions should be incorporated into any issued permit. According to Dr. Heck, a marine biologist who specializes in the study of seagrass and testified as an expert on behalf of Petitioner, seagrass beds in Big Lagoon have been "shallowing up" or thinning out in recent years due to decreasing water clarity. In other words, as the water becomes cloudier from more and more boat activity, the sunlight cannot penetrate and the seagrass will not thrive. The seagrasses most susceptible to disappearing are those that are found at the deepest depth. Doctor Heck attributed the decline in seagrass to increased human activity in the area. This activity is related not only to the existing homeowners in the area, but also to the non-resident boaters (both recreational and commercial) who use the waters in that area. A Department study conducted in 1995 confirmed that the only seagrass area in North Florida "significantly affected" by propeller scarring was an area in Big Lagoon known as Scallop Cove, near Spanish Point. This study is consistent with those studies performed by Dr. Heck in the late 1990's, and one as recently as last year, that support a finding that seagrass in Big Lagoon is on the decline due to both propeller scarring and increased turbidity caused by wakes from larger recreational boats. For this reason, Dr. Heck concluded that the addition of thirty boats at the project site, some of which would be as large as 30 feet or so, would have a "negative effect" on the seagrass colony. This in turn will cause a negative effect on the marine productivity in the area, as well as the conservation of fish and their habitat. Doctor Heck's testimony on this issue is found to be the most persuasive. Other concerns Petitioner further contends that the Department failed to provide a "meaningful contingency plan for hurricane activity." This matter, however, is beyond the permitting jurisdiction of the Department. Petitioner has also contended that the Department failed to take into account "existing unused marina slips close by" which could be used by the condominium owners. Like the prior issue, this matter is not a consideration in the permitting scheme. Another issue raised by Petitioner, albeit untimely, was that the construction of this dock could lead to further development in Big Lagoon. There was, however, no evidentiary support for this contention. Indeed, there is no evidence that future permit applications with impacts similar to this application can reasonably be expected in the area. At hearing, Petitioner raised for the first time a contention that the applicant no longer owns the upland property and thus a permit/authorization cannot be issued to that entity. Aside from this issue being untimely, the fact that a permit holder does not own the upland property is not unusual. If this occurs, permits and authorizations (leases) are routinely transferred to the new owner once the Department receives the necessary title information. It is not a ground to defeat the application. Petitioner also raised for the first time at hearing a contention that the site plan approval for the condominium has expired under a provision of the Escambia County Land Development Code and therefore the permit should be denied. Again, the issue is untimely; more importantly, it should be addressed in another forum since the Department has no jurisdiction over this issue. Likewise, a legitimate concern by an adjoining property owner, witness Hobgood, and an area realtor, that Hobgood's single-family property would probably decline in value if the project is built is nonetheless beyond the Department's jurisdiction. Finally, a contention that the Department improperly calculated the maximum number of boat slips for an 88-unit condominium project has been rejected. The record contains a lengthy explanation by witness Athnos which shows that the Department's calculation under Rule 18-21.004(4)1., Florida Administrative Code, was correct. Those calculations are also detailed in Respondents' Exhibit 14.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a final order denying the application of ADR of Pensacola for a wetland resource permit and sovereign submerged lands authorization. DONE AND ENTERED this 28th day of February, 2001, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2001. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Michael L. Guttmann, Esquire 314 South Baylen Street, Suite 201 Pensacola, Florida 32501-5949 Charles T. Collette, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 David A. Sapp, Esquire 1017 North 12th Avenue Pensacola, Florida 32501-3306 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The first of these difficulties bears primarily on my rulings on the exceptions to the findings of fact. The petitioners urge that they need not attach a transcript to support their exceptions to the findings. The petitioners' assertion is unsound as a general proposition. The law is clear that without a transcript there is no basis for overturning a hearing officer's findings. The Department cannot substitute its interpretation of the facts unless a review of the whole record shows that the findings made by the hearing officer are not supported by competent and substantial evidence. See, e.g., Tuveson v. Florida Governor's Council on Indian Affairs, Inc., 495 So.2d 790, 793 (Fla. 1st DCA 1986), rev. denied, 504 So.2d 767 (Fla. 1987). Moreover, Rule 17-103.200(l) of the Florida Administrative Code specifically requires that ?[a]ny exception disputing a finding of fact . . . be accompanied by a complete transcript of the hearing." The Department therefore must "reject exceptions not supported by a complete transcript." Chipola Basin Protective Group, Inc. v. Florida Department of Environmental Regulation, 11 F.A.L.R. 467, 470-71 (Fla. DER 1988); see Booker Creek Preservation, Inc. v. Florida Department of Environmental Regulation, 415 So.2d 750 (Fla. 1st DCA 1982) (upholding nonrule policy of the Department that exceptions not accompanied by complete transcript must be dismissed). In contrast to the facts in Chipola Basin, there is no transcript independently available to the Department to obviate the effect of the failure of the petitioners to file one. Thus, the rule against overturning findings without a transcript compels me to As for the late filing of two sets of exceptions and the propriety of the filing of the third set of exceptions, I shall rule on those legal issues in the rulings on exceptions to conclusions of law, below. EXCEPTIONS TO CONCLUSIONS OF LAW First, I must reject two sets of the petitioners' exceptions in their entirety for untimely filing. Rule 17-103.200(I) of the Florida Administrative Code requires the rejection of any exceptions "not filed (received) in the Office of General Counsel within the 15 days" after the "the date of filing of a Recommended Order with the Clerk of DOAH," the Division of Administrative Hearings. The hearing officer filed the recommended order in this proceeding with the Clerk of DOAH on August 5, 1991. August 20, 1991, was the deadline for filing exceptions. Petitioner Hobdy filed his exceptions a day later. Petitioner Winselmann also filed his exceptions a day late. The language of the rule is specific, clear, and mandatory. I therefore reject the exceptions of Hobdy and Winselmann for failure to comply with this rule. The exceptions filed by a law firm for Residents were timely but are subject to a motion filed by the Applicant to strike all of the petitioners' exceptions. The motion rests on two grounds, the lack of a transcript and the filing of three sets of exceptions (rather than two) by the petitioners. The lack of a transcript is grounds for rejecting exceptions to findings of fact, but not for striking exceptions to conclusions of law. Since the exceptions for Residents except only to conclusions of law, they cannot be struck on this first ground. As to the exceptions of Hobdy and Winselmann, this ground for the motion is moot, because their exceptions have been rejected for late filing. As for the second ground of the motion, the filing of three sets of exceptions, the Applicant has no objection to the filing of exceptions by Hobdy (for himself) or Winselmann (for Residents, the motion alleges) but does object to the additional filing of exceptions for Residents by a law firm that made no previous appearance in this proceeding. I note that Winselmann was not a separate party to this proceeding. He never filed a petition for a hearing in his own name. Instead, he was a member of Residents whom the hearing officer permitted to appear at the hearing "pro se" and who later filed a proposed recommended order noting that he and Petitioner Hobdy had appeared pro se "on behalf of the residents." Petitioner Winselmann filed his exceptions in his own name but wrote them as though representing Residents as a group, referring to "[o]ur property," "[o]ur navigational abilities," "[o]ur recreational values," and "[o]ur canal," repeatedly speaking for the residents as "we." The record does not show whether the hearing officer ever conducted the inquiry required under rule 221-6.008 to determine the adequacy of the qualifications of Winselmann to represent Petitioner Residents. The recommended order refers to Winselmann's appearance only as "pro se," as though he represented only himself. In the absence of the hearing officer's express approval of Winselmann as a qualified representative of Residents, I must conclude that, whatever his subjective intent might be, Winselmann did not legally represent Residents at the hearing or in filing the exceptions. I therefore deny the motion to strike the petitioners' exceptions. In passing, I also note that because no "attorney or other qualified representative (approved by the presiding officer)" previously represented Residents, there was no need for the law firm filing the exceptions for Residents to file a prior notice of appearance. Rule 17-103.020(5) requires such a filing only by a "successor or associated attorney or other qualified representative." Rule 17-103.020(4) makes the filing of the first pleading the notice of appearance, in effect, for the first such representative. Accordingly, I must rule on Residents' exceptions to the conclusions of law. Those exceptions focus on the issue whether the hearing officer erred by recommending an award of attorney's fees against the petitioners. Residents asserts that the hearing officer used the wrong standard in reaching that recommendation. Urging that the correct standard is participation in the proceeding "for an improper purpose," under section 120.59(6) of the Florida Statutes, Residents objects to the hearing officer's reliance on the language in section 57.105 of the Florida Statutes that makes the lack of a justiciable issue of law or fact the basis for an award of attorney's fees. Residents argues that the record evinces at most incompetent representation, rather than any improper purpose, that its members believed in good faith that the project would affect navigation, and that this question of the project's impact on navigation was a justiciable issue of fact, even if the applicable standard for an award of fees is the absence of such an issue of fact or law. Respondent Dolphins Plus has responded to this set of exceptions. The response equates the standard of frivolous participation with that of the lack of any justiciable issue of law or fact, asserts that impact on navigation was not an issue because no evidence was ever presented tending to prove such an impact, and summarizes events at the hearing, including the hearing officer's patient attempts to explain procedural rules and otherwise guide the petitioners. In the absence of a transcript, of course, such a summary of the hearing is simply outside the record before me, and I cannot consider it. The question of the appropriate standard for an award of attorney's fees under section 120.59(6) is not difficult. The statute makes such an award depend on the nonprevailing party's participation in the proceeding for an improper purpose. Section 120.59(6)(b), Florida Statutes (1989). The statutory definition of "improper purpose" lists four meanings, including "frivolous purpose." This phrase employs words of plain meaning, requiring no special rules of statutory construction to resolve an ambiguity. Although the entry for "frivolous" in Webster's New Collegiate Dictionary includes the subjective definitions "lacking in seriousness: irresponsibly self-indulgent," and "marked by unbecoming levity," the settled meaning of "frivolous" in the law is the third definition given, that "of little weight or importance." See Webster's New Colleciate Dictionary 461 (1977 ed.); Black's Law Dictionary 601 (5th ed. 1979); cf. Myers v. Hawkins, 362 So.2d 926, 930 (Fla. 1978) (to determine plain meaning of constitutional provision, court begins with dictionary definitions but ultimately chooses meaning for each "term in light of the primary purpose for which it has been adopted"). This third definition is the meaning that the court accepted for "frivolous" in Mercedes Lighting & Electrical Supply, Inc. v. State Department of General Services, 560 So.2d 272 (Fla. 1st DCA 1990), construing section 120.59(6) of the Florida Statutes. Indeed, numerous cases in Florida have used interchangably the terms "frivolous" and "lacking any justiciable issue of law or fact." See, e.q., Marexcelso Compania Naviera, S.A. v. Florida National Bank, 533 So.2d 805, 805 (Fla. 4th DCA 1988); Schwartz v. W-K Partners, 530 So.2d 456, 457 (Fla. 5th DCA 1988). Thus, the hearing officer did not err by equating frivolousness with a lack of any justiciable issue of law or fact. Yet these same cases and others clarify that the frivolousness that will justify an award of fees must mark the claim from its inception. A court will not award fees against a litigant whose initial (or amended) claim was nonfrivolous, "even though at some point in the course of litigation it becomes apparent that there no longer remains any justiciable issue of law or fact." Id.; see also State Department of Health & Rehabilitative Services v. Thompson, 552 So.2d 318, 319 (Fla. 2d DCA 1989); Marexcelso, 533 So.2d at 805; Schatz v. Wenaas, 510 So.2d 1125, 1126 (Fla. 2d DCA 1987). Thus, the crux of the issue is not solely whether the petitioners failed to present any evidence at the hearing so as to show any justiciable issue of law or fact, but whether such failure was accompanied by a failure to raise such an issue in the first place. Despite the hearing officer's "finding" here that "there was a complete absence of a justiciable issue of law or fact," the question of justiciability is one of law, and the purported finding is really a conclusion of law. Under section 120.57(1)(b)10 of the Florida Statutes, I may reject or modify such a conclusion. Having reviewed the two petitions and the photographs attached to the petition for Residents, I must conclude that, however unartfully, both petitions raised at least one justiciable issue of fact, concerning the putative effect of the project on navigation, under section 403.918(2) of the Florida Statutes. In pertinent part, the petition for Residents alleges that the fence would "severely impact [the petitioner residents') use of the canal" because its removal of part of "the canal turning basin" would restrict them to using only "small boats which can turn around within the canal itself." Petition of Residents para. 3. Although it is true that "navigation" as used in section 403.918(2) "is primarily associated with the use of publicly used shipping lanes or channels," Clarke v. Melton, 12 F.A.L.R. 4946, 4952 (Fla. DER 1990), the Department does consider the impacts of small structures such as docks on the navigability of small boats, in weighing the impact on navigation of projects under section 403.918(2). See Riverside Club Condominium Association, Inc. v. Adventure Construction & Canvas, Inc., 9 F.A.L.R. 6207 (Fla. DER 1987); Ryan v. Spang, 8 F.A.L.R. 4288 (Fla. DER 1986). The petition for Hobdy raises this same issue, though described only as an effect on Hobdy's own use of his boat. In addition, Hobdy's petition questions whether the housing of large mammals in the stranding pen would adversely affect water quality in the canal. These two questions are "not so free of doubt as to render [each] . . . claim frivolous," for purposes of awarding a fee. See Scott v. Durlinc, 471 So.2d 658, 659 (Fla. 2d DCA (1985). Under Schwartz and other cases cited above, the failure of Residents to support this allegation at the hearing, at least on the basis of the record before me, does not warrant an award of fees. Reinforcing this conclusion is an earlier ruling of the hearing officer that excluded evidence on this very issue. His order granting the motion to limit issues eliminated the question of impact on navigation before the hearing. His ruling therefore may have contributed to the failure of these petitioners, obviously not expert in administrative procedure, to present competent substantial evidence at the the hearing. Cf. Harbor Estates v. State Department of Environmental Regulation, 12 F.A.L.R. 2392 (Fla. DER 1990) (failure of hearing officer to issue subpoenas contributed to failure of petitioners to produce witnesses at hearing and undercut recommendation to award fees). At the same time, neither of the respondents ever sought to strike the petitions as being filed for an improper purpose (because allegedly lacking any justiciable issue), and the hearing officer never ordered the dismissal of either of the petitions on such basis. For "the orderly conduct of proceedings," the court in Mercedes Lichting suggested such an order "at the earliest stage at which a violation of the statute can be determined," for an award of fees under section 120.57(1)(b)5 (providing for awards of fees for filing any pleading or other paper for an improper purpose). See Mercedes Lighting 560 So.2d at 279. There is no reason not to apply the same general principle to awards under section 120.59(6). Cf. Harvey v. Trans Pac, Inc., 12 F.A.L.R. 4378, 4379 (Fla. DER 1990) (reading the two statutes together in light of this guidance from the court in Mercedes Lighting. That this matter went to hearing without such a motion or order leads me to conclude that the parties and the hearing officer at first thought that one or more of the issues raised in the petitions were justiciable. Despite the apparent ineptness of the petitioners' representation here, there is no direct evidence of improper purpose for the participation of the petitioners. The hearing officer emphasized the petitioners' failure to understand "the applicable law, the proper scope of the formal hearing, and the distinction between argument and evidence." Recommended Order at 15. Petitioners attempted to present evidence at the hearing, including the testimony of witnesses, but the hearing officer found none of the evidence relevant or material. The Florida Administrative Procedure Act liberally expands public access to agency action, taking the risk that lay representation will not always be effective. See The Florida Bar v. Moses, 380 So.2d 412, 415 (Fla. 1980). Although section 120.59(6) sets a limit on such access, it is far from clear that mere ignorance or ineffective representation is tantamount to participation for an improper purpose. See Harvey, 12 F.A.L.R. at 4379-80. In this context, and in the absence of direct evidence of an improper purpose, I am reluctant to make "the legal inference that would supply the connection between acts demonstrating incompetent representation by a party's lay representative and a finding of participation by that party for an improper purpose within the meaning of Section 120.59(6), Florida Statutes." See Harbor Estates, 12 F.A.L.R. at 2398. In accordance with section 120.57(1)(b)10 of the Florida Statutes, I accept the hearing officer's findings of fact in this matter, except for the conclusion of law (mislabeled a finding) that there was no justiciable issue of law or fact. For all the reasons given above, I reject that conclusion and the recommendation of an award of fees and costs to Respondent Dolphins Plus. As for the motion by Petitioner Hobdy for attorney's fees costs, on the ground that the attorney for Dolphins Plus presented a frivolous case and filed a frivolous motion for attorney's fees, Dolphins Plus is the prevailing party in these proceedings. Its case was not frivolous. Although it did not prevail in moving for fees and costs, its motion for such fees was not frivolous. The hearing officer recommended an award of such fees, and the issue merited serious consideration in this final order. The motion by Hobdy for fees is without merit. MISCELLANEOUS SUPPLEMENTARY RULINGS On two occasions, October 7 and October 8, 1991, the Department received correspondence from Petitioner Winselmann purporting to offer further argument in regard to the issues before me. These ex parte communications have been disregarded in the preparation of this Final Order, and to the extent they could be viewed as unauthorized further exceptions or responses to exceptions, they are sua sponte stricken.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation enter a Final Order on the Merits denying Petitioners' protest of the permit and awarding reasonable attorney's fees and costs in accordance with this Recommended Order. Jurisdiction over the issue of the amount of attorney's fees is retained and shall be determined in a separate formal hearing to be conducted only in the event the parties are unable to agree on the amount of attorney's fees that is reasonable. RECOMMENDED in Tallahassee, Leon County, Florida, this 5th day of August, 1991. DANIEL MANRY 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 5th day of August, 1991.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioner, Champagne Estates (petitioner or applicant), is a limited partnership that owns a tract of land identified as Lots 1-5, Block 88, PGI Section 9A in Punta Gorda, Florida. The property fronts on the south side of the Peace River, a Class III water body which lies within the boundaries of the Charlotte Harbor Aquatic Preserve, a water body designated as an Outstanding Florida Water (OFW). Petitioner is in the process of constructing a thirty unit, two phase luxury condominium project on its property. As an added amenity for the unit owners, petitioner proposes to construct a multi-slip dock in a tear shaped basin that juts slightly inward from the Peace River. It is applicant's proposal to build a dock that has created this controversy. By application dated April 4, 1989, petitioner sought the issuance of a dredge and fill permit from respondent, Department of Environmental Regulation (DER). If approved, the permit would authorize the construction of the dock. The application was received by DER's Fort Myers district office on April 14, 1989, and was given a staff review for sufficiency. After additional information was requested by DER and filed by the applicant, an on-site inspection was conducted by DER personnel on June 2, 1990. An inspection report was thereafter prepared on July 14, 1990, and was used in the formulation of the agency's preliminary decision. That decision, which was styled as a notice of permit denial, was issued on July 25, 1989, and cited several grounds for DER's preliminary action. They included (a) a fear that degradation of waters would occur, (b) applicant's alleged failure to show that the project was not contrary to the public interest in six respects, and (c) a concern that the project and its cumulative impacts would be contrary to the public interest. The agency's notice of permit denial prompted the applicant to initiate this proceeding. The application and project area Applicant initially sought authorization to build a two hundred sixty- three foot dock with six finger piers, a terminal platform and thirteen boat slips. The agency's intent to deny permit was based on that proposal. After the proposed agency action was issued, petitioner modified its application to downsize the dock to one hundred feet with only four finger piers and eight mooring slips. The structure will have a "T" configuration. Under the modified proposal, the finger piers will have a length of twenty feet while the mooring slips are twelve feet wide. Applicant advises that the boats which will use the facility will average between twenty and twenty-six feet in length with drafts of two to three feet. This size and draft is comparable to commercial fishing boats which now frequent the deep water basin to catch mullet. If the application is approved, applicant proposes to place rock riprap at the toe of the existing vertical concrete seawall and to plant red mangroves in the intertidal areas. It also proposes to prohibit "live aboards", fueling and maintenance at the facility. Despite the above modifications and restrictions, DER advised petitioner on October 5, 1989, that the application was still unacceptable for the same reasons as originally given. The parties have agreed that the modified application is the subject of this proceeding. The basin in which the construction will occur was excavated in the 1960's. A thirteen foot deep east-west channel runs parallel to the shore several hundred feet from the shoreline. There are existing seawalls on both the southern and western shorelines of the project area which form an "L" at the intersection. The basin is tear shaped with a width of approximately one hundred feet and commences some one hundred feet waterward of the shoreline. The "T" finger pier structures will be at the southerly edge of the existing basin thereby giving vessels access to the east-west channel. During low tide the bottom of the water body is exposed for more than one hundred feet seaward of petitioner's property. Thus, most, if not all, of the dock will be over exposed areas during low tide, and even during high tide the water in the surrounding basin area will be no more than a few feet deep. The proposed project has existing condominiums on both sides. Virtually all of the remaining lots on either side of the project stretching a mile or so in both directions are developed with single or multifamily units. If approved, petitioner's dock would be the only such dock in the immediate area on the south side of the river. Water quality concerns An applicant for a dredge and fill permit is obliged to provide "reasonable assurance" that water quality standards will not be violated. Since the proposed project is within the boundaries of the Charlotte Harbor Aquatic Preserve, which is designated as an OFW, special water quality considerations come into play. More specifically, the project must maintain the ambient water quality standards of the OFW. This means that a permit cannot be issued for a project that will lower the ambient water quality, that is, the water quality existing one year prior to the date the body was designated an OFW, or the water quality existing one year prior to the project, whichever is better. One way in which ambient water quality can be degraded is by the resuspension of bottom solids caused by the churning of boat propellers. The likelihood of this condition occurring is made greater when insufficient water depths exist in combination with the existence of mucky, silty bottoms. The bottoms surrounding the proposed docking structure are nonvegetative and vary from hard sand in the shallow areas to a mucky silt layer in the deeper sections of the area. The accumulated sediment in the deeper section of the basin is on the order of twenty-four inches. While the hard sand bottom will readily settle out, the mucky bottom sediments will likely be churned by the boat activity in the absence of sufficient water depths. There is conflicting evidence regarding the depths of the water in the area of the basin where the proposed dock will be constructed. In support of its application, petitioner provided a chart indicating the topography of the sea bottoms at the proposed dock site. However, the geographic survey chart does not establish that sufficient water depth exists for the proposed dock. Rather, the more credible evidence establishes that the bottoms of the basin where the proposed dock will be built are often exposed and during low tides the sea bottoms are exposed up to approximately one hundred to one hundred fifty feet seaward of the seawall. Moreover, in the winter months, the westerly winds push the water out of the basin and cause the exposure of sea bottoms up to two hundred feet seaward of the seawall. When these shallow depths are coupled with the soupy texture of the bottom sediment, it is found that resuspension of the bottom sediment will occur as a result of boat activity at the proposed docking site. To the extent turbidity is now present in the basin due to the activities of the commercial fishermen, these turbidity levels will be exacerbated. If, as applicant suggests, the proposed facility will eliminate the commercial mullet fishing activities within the basin, there is no reasonable assurance that the new levels of turbidity will not exceed those now present. Therefore, it is found that applicant has not given reasonable assurance that the water quality standards will not be degraded. The agency's next concern involves its so-called "free-from" standard, which literally means that assurance must be given by the applicant that a water body will be "free from" various types of man-induced components (e. g., debris, oil, and scum) that float in such amounts as to form a nuisance. Thus, applicant was required to give reasonable assurance that the project would not cause an accumulation of debris and other items on the surface of the water in such amounts as to constitute a nuisance. The project site is "L" shaped, the "L" caused by the intersection of two seawalls on its western side. During the inspections of the project site by DER personnel, an accumulation of debris (grass clippings, styrofoam cups, coconuts, etc.) was observed in the corner of the "L". Indeed, applicant concedes that "some such debris is regularly present in the vicinity of the proposed docking structure" but contends that the docking facility will not cause significant additional floatsom or scum. However, it is found that due to the shape of the basin and its lack of sufficient water depth, the project will exacerbate the accumulation of debris so as to cause a nuisance. Finally, because of the shallow water in the basin, there exists the likelihood that dissolved oil or visible oil will form in the waters and affect its taste or give rise to an odor or otherwise affect the beneficial use of the waters. D. Public Interest Considerations In order for a permit to issue, and because the project is in an OFW, the applicant is obliged to show that the project "will be clearly in the public interest." The public interest test involves a consideration of seven statutory criteria. In this case, DER contends that six of the seven criteria enumerated in the law (s. 403.918(2)(a)1.-5. and 7., F.S.) have not been satisfied. The first criterion requires an inquiry as to whether the project will adversely affect the public health, safety, or welfare of the property of others. In this regard, it is noted that the proposed activity will take place in an OFW, a pristine water body. According to the agency, the maintenance of that water body "is in the welfare of all the citizens of the State of Florida, not just the residents of Champagne Estates or the adjacent condominium owners." Because the operation of boats will cause a degradation of the waters in the basin area, this will have an adverse effect on the public welfare. While applicant proposes to offer mitigation in the form of riprap and new mangroves, the success rates for mitigation proposals such as this are less than fifty per cent and do not offer sufficient assurance to counter the adverse effect on the public welfare. The second criterion concerns whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Uncontradicted testimony established that stingray, bait fish, sheepshead, minnows, brown pelican, osprey, bottlenosed dolphin, and loggerhead turtles habitat the project area. In addition, the proposed dock has been designated as a critical habitat for the manatee. Due to the resuspension of bottom solids caused by boat traffic in the shallow waters, the wildlife and fish in the area of the proposed dock will be adversely impacted. This is because elevated levels of turbidity are detrimental to aquatic species that breath water, especially for those that filter feed and pass the fluid through their bodies. The next relevant criterion is whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling (i. e., cause an area to shallow in). As to this criterion, applicant's uncontradicted evidence that the project will not affect navigation, the flow of water, or cause harmful erosion or shoaling is accepted, and it is found that this criterion has been satisfied. The fourth criterion in issue is whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. While the fishing or recreational values should not be adversely affected, the turbidity caused by the boats propellors will impact the marine productivity in an adverse manner. Therefore, this criterion has not been met. The next criterion concerns whether the project will be of a temporary or permanent nature. The evidence shows that the project will be of a permanent nature, that is, once constructed, the applicant does not plan on tearing down the structure. However, neither party offered evidence as to how this consideration comes into play in the context of the public interest test, and it is accordingly found that applicant has not satisfied this requirement. The last disputed criterion concerns the current condition and relative value of functions being performed by areas affected by the proposed activity. By virtue of the increased turbidity levels, it is found that the relative value and use of the area will be degraded. E. Cumulative Impacts In its proposed agency action, the agency contended that "the project and its cumulative impacts . . . also fail to be clearly in the public interest." This objection is grounded on the statutory requirement that the agency consider the "other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations." (s. 403.419(3), F.S.) According to an agency witness, applicant's project, if approved, would be the only docking facility on the south shoreline of the Peace River for some distance in either direction. Although DER does not have any pending applications for docks, and knows of none that will be filed, it "felt" there was a potential cumulative impact in that other condominium projects in the area would seek a docking permit once it became known that applicant had constructed such a facility. However, this "feeling" is insufficient to establish a finding that there is a potential adverse cumulative impact related to the project.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the application of Champagne Estates for a dredge and fill permit be DENIED. DONE and ENTERED this 9th day of October, 1990, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1990. APPENDIX TO RECOMMENDED ORDER Petitioner: 1-3. Partially adopted in finding of fact 1. 4-8. Partially adopted in finding of fact 3. 9-10. Partially adopted in finding of fact 4. 11. Partially adopted in finding of fact 8. 12-13. Partially adopted in finding of fact 4. 14. Partially adopted in finding of fact 7. 15. Rejected as being unnecessary. 16. Partially adopted in finding of fact 3. 17. Partially adopted in finding of fact 7. 18-19. Partially adopted in finding of fact 8. Rejected as being contrary to the evidence. Partially adopted in finding of fact 20. Rejected as being unnecessary. 23-24. Partially adopted in finding of fact 15. Rejected as being contrary to the evidence. Partially adopted in finding of fact 13. Respondent: Partially adopted in finding of fact l. Partially adopted in finding of fact 2. 3-5. Partially adopted in finding of fact 3. 6-8. Partially adopted in finding of fact 2. 9-14. Partially adopted in finding of fact 3. 15-41. Partially adopted in findings of fact 6-11. 42-53. Partially adopted in findings of fact 12-18. 54-56. Partially adopted in findings of fact 19-20. 57-62. Partially adopted in finding of fact 13. 63-64. Rejected as being unnecessary. Note - Where a finding has been partially adopted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, cumulative, contrary to the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Douglas H. MacLaughlin, Esquire Twin Towers Office Building 2600 Blairstone Road Tallahassee, Florida 32399-2400 Michael P. Haymans, Esquire P. O. Box 2159 Punta Gorda, Florida 33949 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blairstone Road Tallahassee, FL 32399-2400
The Issue The issues in this case are whether the Department of Environmental Protection (DEP) should modify the conditions of permits held by the Deep Lagoon Boat Club, Ltd., d/b/a Deep Lagoon Marina (Applicant), to allow Applicant to construct and operate a boat travel lift in a new location at the marina and to substitute a 60-foot wide flushing channel required by the prior permits with two-48 inches box culverts.
Findings Of Fact Applicant owns and operates Deep Lagoon Marina (the Marina). The Marina comprises uplands and three canals adjoining MacGregor Boulevard south of downtown Fort Myers. The Marina presently consists of 61 wet slips, 200 dry slips, and other marina-related buildings. The Marina is on Deep Lagoon, a Class III surface water body less than one-half mile from the Caloosahatchee River. Deep Lagoon is a short, largely mangrove- lined waterway that runs north into the Caloosahatchee River. The Caloosahatchee River runs west from Lake Okeechobee past Fort Myers to the Gulf of Mexico. One of Applicant's predecessors in interest dredged the three canals in the 1950s or 1960s, and a marina has existed at this location since that time. As a result of a purchase in 1997, Applicant owns at least the uplands and claims ownership of the submerged bottoms of the canals. The parties have stipulated that ownership of the submerged bottoms of the canals is not being litigated or decided in this proceeding and that, subject to the issue's being decided adverse to the Applicant in other proceedings, sufficient ownership is presumed for purposes of this proceeding. From north to south, the Marina comprises the north canal, which is about 1200 feet long and bounded on the north by a red mangrove fringe 10-20 feet wide; a peninsula; the central canal, which is also known as the central or main basin and is roughly the same length as the north canal; a shorter peninsula; and the south canal, which is about half the length of the central canal and turns to the southeast at a 45-degree angle from the midway point of the central canal. The three canals are dead-end canals, terminating at their eastern ends a short distance from MacGregor Boulevard. Petitioner, Brenda Sheridan, resides at 842 Cal Cove Drive, Fort Myers, Florida, which is on the shores of the Caloosahatchee River at Deep Lagoon, just across the south canal from the Marina. Intervenor, Save the Manatee Club (STMC), is a non- profit Florida corporation with approximately 40,000 members. The organization's stated purpose includes protecting the manatee and its habitat through public awareness efforts, research support and advocacy, which activities benefit manatees, STMC, and its members. The Florida Legislature has recognized STMC's substantial interest in manatee protection by designating it a member of the manatee protection committee provided by the Florida Manatee Sanctuary Act at paragraph 370.12(2)(p), Florida Statutes, and by requiring the state to solicit recommendations from STMC regarding the use of Save the Manatee Trust Fund monies, at Section 370.12(5)(a), Florida Statutes. Numerous members of STMC reside within Lee County, where they observe, study, photograph, and actively attempt to protect manatees from collisions with watercraft. These efforts benefit manatees and provide STMC's members with educational and recreational benefits in the waters of Lee County that would be affected by the proposed activity. STMC has expended substantial resources in advocating increased legal protection of manatees in Lee County, including additional boat speed regulations on the Caloosahatchee River. STMC has also constributed funds for the rescue and rehabilitation of manatees exposed to red tide in Lee County waters. Injury, mortality, and loss of important habitat would produce significant, adverse impacts to the manatee, thereby diminishing the ability of STMC's members to observe, study, and enjoy manatees in waters that would be affected by the proposed activity and frustrating STMC's efforts to preserve and protect manatees in Lee County. Permit History On December 9, 1986,, Applicant's predecessor in title applied to DEP's predecessor agency, the Department of Environmental Regulation (DER), for a dredge and fill permit to rehabilitate the 61 existing wet slips at the Marina and add 113 new wet slips. Because Deep Lagoon violated Class III water quality standards, and there was concern for the West Indian manatee, a listed endangered species which uses the waters in and around Deep Lagoon, DER placed conditions on the permit and gave notice of intent to grant the permit, with conditions, on July 26, 1988. Petitioner and others challenged the issuance of the permit, and formal administrative proceedings were conducted, culminating in a final order on August 24, 1989, approving the permit, with additional conditions, and certifying under the federal Clean Water Act that state water quality standards were met because there would be a net improvement in water quality of the poorly-flushed canals. Sheridan, et al. v. Deep Lagoon Marina and Dept. of Environmental Reg., 11 F.A.L.R. 4710 (DER 1989). Wetland Resource Permit 361279929, incorporating all of the conditions, was issued on September 22, 1989, for construction and operation of the project for five years (the 1989 Permit). Petitioner and the others appealed the final order. In Sheridan v. Deep Lagoon Marina, 576 So. 2d 771, 772 (Fla. 1st DCA 1991), the court, relying on the 1987 water quality data, noted the "very poor water quality" of Deep Lagoon, as reflected in part by the presence of oil and grease 20 times the Class III standard, copper 13 times the standard, lead 20 times the standard, mercury 1000 times the standard, and coliform bacteria "too numerous to count." However, the court affirmed the issuance of the 1989 Permit under the statutory authorization of a permit where ambient water quality does not meet applicable standards, but the activity will provide a net improvement to the waters. On the certification issue, though, the court reversed and remanded. The court held that the hearing officer erroneously excluded evidence on DER's certification of the activity as in compliance the federal Clean Water Act. Following proceedings on remand, DER entered Final Order on Remand on April 10, 1992, which revoked the earlier certification of compliance and, citing 33 United States Code Section 1341, as authority, waived certification as a precondition to federal permitting. Sheridan, et al. v. Deep Lagoon Marina and Dept. of Environmental Reg., 14 F.A.L.R. 2187 (DER 1992). The 1989 Permit expired on September 22, 1994, but Environmental Resource Permit 362504599 was issued on October 9, 1995, essentially extending the 1989 Permit conditions for ten years, to October 9, 2005. Minor modifications were approved on November 17, 1995, March 26, 1997, and April 15, 1997. Environmental Resource Permit 362504599, with all conditions and subsequent modifications, is referred to as the 1995 Permit. Permit Conditions In general, the 1995 Permit authorizes the owner of the Marina: to renovate and expand an existing marina from 61 wet slips to 174 wet slips by: excavating 0.358 ac of uplands to create a flushing canal, installing 375 linear feet of seawall along the sides of the flushing canal, excavating 2.43 ac of submerged bottom to remove contaminated sediments, backfilling 2.41 acres of the dredged area (the main basin and south canal to -7 ft. MLW and the north canal to -6 ft. MLW) with clean sand, renovating the existing 61 slips, and constructing an additional 14,440 square feet of overwater decking for 113 new slips, providing after-the-fact authorization for construction of 2 finger piers, creating a 400 sq. ft. mangrove fringe, constructing 180 linear feet of seawall in the vicinity of the mangrove fringe, and relocating and upgrading fueling facilities. The 1995 Permit authorized activities to proceed in three phases: First, the majority of the water quality improvement measures will be implemented as required in Specific Condition 5. Second, the over water docking structures will be constructed and the fueling facilities will be upgraded and relocated as required in Specific Conditions 6 and 7. Third, the new slips will be occupied in accordance with the phasing plan in Specific Condition 9. Specific Condition 5 imposed several requirements designed "to ensure a net improvement in water quality." Among them, Specific Condition 5 stated in pertinent part: In order to ensure a net improvement to water quality within the basin, the construction of any new docking structures or installation of any new pilings shall not occur until the below-listed conditions (A-K) have been met. . . . A baseline water quality study . . .. A stormwater treatment system providing treatment meeting the specifications of Florida Administrative Code 40E-4 for all discharges into the basins from the project site shall be constructed. . . . The boat wash area shall be re-designed and constructed as shown on Sheets 23 and 23A. All water in the washdown area shall drain into the catch basin of the wastewater treatment system shown on Sheet 23. The water passing through the wastewater treatment system shall drain to the stormwater management system which was previously approved by the South Florida Water Management District. The filters of the wastewater treatment system shall be maintained in functional condition. Material cleaned from the filter shall be disposed of in receptacles maintained specifically for that purpose and taken to a sanitary landfill. This system shall be maintained in functional condition for the life of the facility. Contaminated sediments shall be dredged from the areas shown on Sheets 5 and 7 of 23. A closed-bucket clam shell dredge shall be used. The north canal shall be dredged to at least -9.9 feet MLW and backfilled with clean sand to -6 feet MLW. The [main] basin shall be dredged to at least -7.3 feet MLW and backfilled with clean sand to -7 feet MLW. The south canal shall be dredged to at least -10.5 feet MLW and backfilled with clean sand to at least -7.0 feet MLW. Backfilling shall be completed within 120 days of completion of dredging. . . . The sediments shall be placed directly in sealed trucks, and removed to a self-contained upland disposal site which does not have a point of discharge to waters of the state. A channel, 260 ft. long, 60 ft. wide, with a bottom elevation of -4.5 ft. MLW shall be excavated between the north canal and the main basin to improve flushing. * * * K. Upon completion [of] conditions A-J above, renovation of the existing 61 wet slips and construction of the 113 additional wet slips may proceed with the understanding that construction of all 113 additional slips is at the risk of the permittee and that if the success criteria in the monitoring and occupancy program are not met, removal of all or part of the additional slips may be required by the Department. Specific Condition 8 addressed the phasing of occupancy of the wet slips. Specific Condition 8 provided in pertinent part: Occupancy of the additional 113 wet slips shall occur in two phases, described below. Permanent occupancy of the slips shall require [DEP] approval, contingent upon the water quality monitoring program demonstrating a statistically significant (Specific Condition 9) net improvement for those parameters which did not meet State Water Quality Standards in the baseline study. The permittee agrees that if [DEP] determines that net improvement has not occurred, or if violations of other standards occur, and if the corrective measures described in Specific Condition 10 are not successful, all of the additional slips occupied at that time shall be removed. . . . Phase I--Upon completion of the baseline water quality study and the work specified in Specific Condition No. 5, the existing 61 slips and an additional 56 slips, totalling 117 slips, may be occupied. . . . If at the end of one year of monitoring, the data generated from the water quality monitoring program shows a statistically significant improvement over baseline conditions, for those parameters in violation of State Water Quality Standards, and no violations of additional parameters, . . . the new 56 slips which were occupied shall be considered permanent. Phase II--Upon written notification from [DEP] that Phase I was successful, the remaining 57 additional slips may be occupied. Water and sediment quality monitoring shall continue for two years after the occupancy of 140 of the 174 slips. If a statistically significant net improvement to water quality over baseline conditions for those parameters in violation of State Water Quality Standards [sic] and no violation of additional parameters is shown by the monitoring data, and confirmed by [DEP] in writing, the additional slips shall be considered permanent. Specific Condition 11 added: Implementation of the slip phasing plan described in Specific Condition 8 shall be contingent on compliance of boaters with existing speed zones in the Caloosahatchee River and trends in manatee and [sic] mortality. . . . Approval of additional slips will depend upon manatee mortality trends and boater compliance with speed zones in the Caloosahatchee River and additional slips may not be recommended. . . . Based on the results of the evaluations of Phases I and II, [DEP] may require that slips be removed to adequately protect manatees. Specific Condition 12 required the construction of a 400 square-foot intertidal area for the planting of mangroves to replace the mangroves lost in the construction of the flushing channel. Specific Condition 14 prohibited live-aboards at the marina. Specific Condition 15 added various manatee-protection provisions. Applicant's DOAH Case Nos. 98-3901 and 98-5409 Seeking to satisfy certain of the requirements of Specific Condition 5 of the 1995 Permit, Applicant filed with DEP, on December 10, 1997, an application for an Environmental Resource Permit (ERP) and water quality certification to construct a surface water management system to serve 15.4 acres of its 24-acre marina. On March 3, 1998, Applicant's engineering consultant submitted drawings to DEP with notification that Applicant intended to "maintenance dredge the internal canals of Deep Lagoon Marina," in conformity with Rule 62-312.050(e), Florida Administrative Code. The letter described the proposed dredging as mechanical "with no discharge back into Waters of the State." The letter assured that Applicant's contractor would use turbidity curtains "around the dredging and spoil unloading operation" and advised that the contractor would unload the spoil "to the north peninsula upland area." The letter stated that the dredging would "be to the design depth/existing canal center line depth of -7 NGVD," which was established by the 1995 Permit, and would be "done in conjunction with the required dredging under [1995 Permit] Condition 5(D)." The consultant attached to the March 3 letter several drawings showing the dredging of all three canals. For each canal, the drawings divided the dredging into two areas. (For 1.82 acres, the contractor would dredge contaminated materials from the dead-ends of the three canals and then replace these materials with clean backfill material, as already authorized in the 1995 Permit.) For 4.84 acres, which ran through the remainder of the three canals, the contractor would maintenance dredge in accordance with the cross-sections provided with the letter. By letter dated March 13, 1998, DEP stated its determination that, pursuant to Rule 40E-4.051(2)(a), Florida Administrative Code, the proposed activity was exempt from the requirement to obtain an ERP. The letter warned that, pursuant to Chapter 62-302, Florida Administrative Code, the construction and operation of the project must not cause water quality violations. The letter added that DEP could revoke its determination of exemption if the "basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations." The letter provided a point of entry for persons whose substantial interests are affected by DEP's determination. Petitioner challenged the exempt status of the maintenance dredging, and STMC intervened in support of the challenge, which was referred to DOAH and given DOAH Case No. 98-3901. But Applicant's contractor proceeded during the pendency of the challenges and completed the maintenance dredging in the three canals. (Applicant's contractor also performed the contaminant dredging and clean backfilling authorized by the 1995 Permit.) On November 5, 1998, DEP gave notice of intent to issue the ERP for the surface water management system and certify compliance with state water quality standards, pursuant to Section 401 of the Clean Water Act, 33 United States Code, Section 1341. Petitioner filed a challenge on December 8, 1998, and the matter was referred to DOAH, where it was given DOAH Case No. 98-5409. On February 6, 1999, DEP revised the notice of intent by withdrawing its certification of state water quality compliance. As it did with the 1989 Permit, DEP again waived state water quality certification, consistent with a letter dated February 2, 1998, in which then-DEP Secretary Virginia Wetherell announced that DEP would waive state water quality certification for all activities in which the agency issues an ERP based on the "net improvement" provisions of Section 373.414(1)(b), Florida Statutes. DOAH Case Nos. 98-3901 and 98-5409 were pending when Applicant sought the modifications to the conditions of the 1995 Permit which are the subject of this case (DOAH Case No. 99- 2234). DOAH Case Nos. 98-3901 and 98-5409 were consolidated and heard by Administrative Law Judge (ALJ) Robert E. Meale on February 11 and May 3-4, 1999. On November 24, 1999, ALJ Meale entered a Recommended Order recommending a final order revoking DEP's determination of an exemption for maintenance dredging in DOAH Case No. 98-3901 and denying the ERP in DOAH Case No. 98- 5409. The recommendation to deny the ERP in DOAH Case No. 98- 5409 was based on findings and conclusions: (1) that Applicant had not provided reasonable assurances that the construction and operation of the proposed surface water management system would result in a "net improvement" in water quality; and (2) that the direct and secondary impacts of the construction and operation of the system would adversely affect the West Indian manatee. Water Quality As indicated in relating the permitting history of this site, water quality in the waters of the Marina has been poor. See Findings 10 and 12, supra. ALJ Meale recently found in his Recommended Order on Case Nos. 98-3901 and 98-5409 as follows: The Caloosahatchee River is laden with sediments, partly due to intermittent discharges from Lake Okeechobee. Seagrass in the riverbottom cannot grow in water much deeper than four feet. Some seagrass grows at the mouth of Deep Lagoon, but little seagrass extends into the lagoon itself. The water quality in the canals is very poor for dissolved oxygen and copper. Applicant stipulated that the water quality in Deep Lagoon violates state standards for dissolved oxygen, copper, and coliform bacteria. In 1997, the canals violated water quality standards for dissolved oxygen nearly each time sampled during the wet season and one-third of the times sampled during the dry season. The dissolved oxygen levels violated even the lower standards for Class IV agricultural waters two-thirds of the times sampled during the wet season. In 1997, the canals violated water quality standards for copper in the water column each time sampled during the wet season and two-thirds of the times sampled during the dry season. During three of the dry season samplings, copper levels were 20 to 30 times lawful limits. The three lowest wet season copper levels were double lawful limits. Copper is a heavy metal that is toxic to a wide range of marine organisms. Copper is applied to boat hulls to prevent marine life from attaching to the hulls. In 1997, the canals violated water quality standards for total coliform bacteria (for any single reading) three of the 60 times sampled during the dry season and one of the 56 times sampled during the wet season. The canals violated the more relaxed, 20-percent standard (which is violated only if 20 percent of the readings exceed it) during the wet season, but not during the dry season. In 1997, the canals violated water quality standards for lead in the water column in one sample (by 25 percent) out of 36, but did not violate water quality standards for oil and grease or fecal coliform bacteria. Results of testing for mercury in the water column (as opposed to sediments) are not contained in the record. As compared to 1987, the water quality in the canals has improved in all but one important respect. In 1987, the water column readings for copper were five to six times higher than the highest 1997 reading. In 1987, the total coliform bacteria were too numerous to count because the colonies had grown together in the sample. However, comparing the April 1987 data with the May 1997 data for the same approximate times of day and the same locations, the dissolved oxygen levels in the three canals have declined dramatically in the last 10 years. Ten years ago, in a one- day sampling period, there were no reported violations; ten years later, in a one-day sampling period, there were four violations. Even worse, the amount of dissolved oxygen in the water during daylight hours has been halved in the last 10 years with a smaller decrease during nighttime hours. In this case, the parties stipulated that the waters of Deep Lagoon and the Marina are Class III marine waters that do not meet Florida water quality standards for dissolved oxygen, copper, and total coliform bacteria. They also stipulated that there were violations in 1987 for oil and greases (20 times standard), fecal coliform (too numerous to count), lead (20 times standard), cadmium (ten times standard), mercury (1,000 times standard), biological diversity, and tributytin (150 times standard) (although DEP and Applicant do not think the 1987 data are relevant). Data collected in 1987 showed average flushing time in the north canal to be 183 hours (tidal prism method), 90.5 hours (current velocity), and 50 hours (dye concentration reduction method). Data collected in 1987 showed average flushing time in the main basin to be 208 hours (tidal prism method), 48 hours (current velocity), and 154 hours (dye concentration reduction method). Manatees The parties stipulated that Lee County is a heavy use area for the West Indian Manatee and that manatees use the water south of Deep Lagoon and the Caloosahatchee River on a year-round basis. ALJ Meale recently found in his Recommended Order on Case Nos. 98-3901 and 98-5409 as follows: The Caloosahatchee River is critical habitat for the endangered West Indian manatee. Up to 500 manatees use the river during the winter. When, during the winter, the water cools, the animals congregate in waters warmed by the thermal discharge from a power plant about 13 miles upstream of Deep Lagoon. When, during the winter, the water warms, the manatees swim downstream, past and into Deep Lagoon searching for food. Manatees frequently visit Deep Lagoon. It is one of the few places between the power plant and the Gulf where manatees can find a quiet place, relatively free of human disturbance, to rest and feed. Within Deep Lagoon, the Iona Drainage District ditch runs parallel to the north canal, separated from the canal by the previously described mangrove fringe. The Iona Drainage District ditch empties into Deep Lagoon just north of the mouth of the north canal. Manatees frequently visit the ditch because it is a seasonal source of freshwater, which the manatees drink. Manatees visit the north canal due to its moderate depths and proximity to the freshwater outfalls of the Iona Drainage District ditch. Manatee mortality from watercraft is extremely high in the immediate vicinity of Deep Lagoon, and the mortality rate has increased in recent years. The rate of manatee deaths from collisions with watercraft has increased with the popularity of motorboating. Boat registrations in Lee County rose from 13,000 in 1974 to 36,000 in 1997. The potential for mitigation offered by the enactment of speed zones has been undermined by the fact that nearly half of the boaters fail to comply with the speed limits. It is clear that manatees frequent Deep Lagoon near the mouth of the north canal. There are seagrass beds there to serve as a food source, and freshwater from the Iona Drainage District ditch discharges in that area. The evidence in this case includes testimony and numerous photographs of manatees not only in that vicinity but up to 200 feet into the north canal. While there are no seagrass beds in the north canal itself, freshwater from the Iona Drainage District ditch discharges into the north canal all along the length of mangrove fringe on the north shore of the canal. It is not clear how much further up the north canal manatees go, but they probably frequently continue further into the north canal since one primary attraction of the north canal for manatees at this time is its relative quiet and peacefulness. Manatees also make some use of the central and south canals of the Marina, but they seem to prefer the north canal for its peacefulness and for the fresh water supply from the Iona Drainage District ditch. The Florida Department of Transportation recently has constructed a retention pond for MacGregor Boulevard in the vicinity of the Marina which will discharge fresh water into the main basin of the central canal. This may make the central canal more attractive to manatees than it is at this time, notwithstanding the relatively high level of boating-related activity there. New Boat Travel Lift The Marina's existing boat travel lift is located in the main basin of the central canal. There also are the remnants of an older travel lift operation at the western end of the central peninsula extending into Deep Lagoon. Applicant proposes to construct and use a new boat travel lift at the eastern terminus of the north canal. The proposed location of the new travel lift will be closer to the approved location of a new service center building. A travel lift essentially consists of a heavy-duty, U-shaped frame which is built on wheels and motorized for mobility. Heavy-duty straps are suspended from the frame using pulley systems. The travel lift is driven out over water on specially-built tracks so the straps can be placed underneath large vessels (over 40 feet) and tightened using the pulleys to secure the vessels; the travel lift is then driven off the tracks, and the vessels are transported to a dry storage or repair location, where the vessels are lowered, and the straps are removed. The process essentially is reversed to return vessels to the water. The direct impact of construction of the new boat travel lift involves removal of some mangroves existing at the terminus of the north canal and sinking pilings to support the tracks extending into the water on which the travel lift operates. Applicant proposes to mitigate the mangrove impacts by filling areas on either side of the proposed travel lift to just above the mean-high waterline and planting the areas with mangroves. Not only will this be a net increase the amount of mangrove fringe, the decrease in water depth at the east end of the north canal also will improve flushing of the canal to some extent. Applicant also proposes to remove exotic plants all along the shoreline of the Marina's canals for the life of the Marina. It is the Marina's intent to use the travel lift only for vessels too large to be lifted by forklifts operated at the main basin of the central canal. The Marina is purchasing new, larger (37,000 pound) forklifts (compared to the 10,000 pound forklifts currently in use), which can lift vessels up to approximately 42 feet long. Use of the larger forklifts will reduce the use of the travel lift. At this time, there is no proposed specific condition to limit use to the travel lift to vessels too large to be lifted by the new forklifts. New Specific Condition 33 in the proposed permit modifications provides: "Launching of vessels from the dry storage facilities shall be prohibited in the north canal at the site." New Specific Condition 34 in the proposed permit modifications provides in part: "Launching and retrieval of vessels in the north canal shall be restricted to vessels stored/moored at the marina facility that require boat repair." New Specific Condition 34 also would require Applicant to maintain logs for the travel lift and boat repairs to allow DEP to verify compliance by comparing the two logs. There was some disagreement as to the intent of the quoted proposed new specific conditions. A DEP witness thought it meant that the Marina only could use the travel lift for repair of vessels permanently moored at the Marina, but the Marina's representative did not think the language would prohibit the repair of other vessels as well. Assuming that vessels not permanently moored at the Marina will be accepted for repairs, and that only vessels too large for the new forklifts will use the new travel lift, it can be anticipated that an average of 6-10 vessels a week will use the travel lift for retrieval from the water and discharge back to the water. To some extent, use of the travel lift is limited by the average time it takes to use the lift. But considering only those limitations, it is possible use the lift as many as 19 times in a day in an emergency--e.g., when a hurricane is approaching, and the Marina is trying to get as many boats out of the water as possible. On average, use of the travel lift also will be limited by market conditions and the capacity of the new service center to store and repair large vessels. More than half of the average use of 6-10 vessels a week probably will occur on Fridays (for repairs before peak weekend boating) and Mondays (for repairs after the weekend peak). At this time, there is no proposed specific condition to limit use of the new travel lift. But at final hearing, the Marina expressed its willingness to accept a limit of an average of ten vessels a week. (Counting retrieval from the water and discharge back to the water for each vessel, the agreed limit would be an average of 20 uses of the travel lift a week). The Marina was not willing to accept a daily limit. Secondary impacts from such a limited use of the proposed new travel lift on water quality and manatees are difficult to assess precisely. The travel lift itself uses some form of lubrication, but only the straps enter the water during operation. Historically, vessels have been pressure-washed and had their bilges and engines flushed while on the existing travel lift in the main basin of the central canal at the Marina, and wash-water from these operations has entered the main basin at that location. Wash-water from such operations at the proposed new travel lift location would enter the north canal, subject to the construction and operation of an adequate surface water management system, as required by Specific Condition 5.C. of the 1995 Permit. Cf. DOAH Case No. 98-5409, supra. It is possible that vessels in need of repair entering the north canal and proceeding to the proposed new travel lift location (whether under power or being towed) could leak oil or gasoline. Both contaminants would rise to the surface. Leaked gasoline and the more volatile components of oil could be expected to evaporate relatively quickly; the residue of oil contamination would be persistent. Such spills would affect water quality and could affect manatees drinking fresher water from the surface of the north canal. There was no evidence from which to predict or quantify such impacts. It would be possible for manatees to be injured by vessels using the proposed new travel lift. Although such vessels would be traveling at low speed (1-2 mile per hour), maneuvering such large vessels in close quarters like the north canal sometimes is accomplished by intermittent bursts of high engine and propeller speeds, both in forward and reverse gears. Such operations could cause a vessel to lurch in the direction of a manatee; if done in reverse gear, a manatee could be sucked into the speeding propellers. It also is possible for a manatee to be crushed against the bottom or against a structure of the Marina facility during such operations. Despite the possibility of injury to manatees from use of the new proposed travel lift, it is clear that most manatee injuries and deaths from boat collisions occur as a result of propeller injuries from boats being operated at high-speed. Manatees are known to frequent and safely use marinas where large vessels operate at low speed. The risk of danger to manatees from use of the proposed new travel lift can be characterized as being minimal if not speculative, especially in view of the manatee protections in Specific Condition 15 of the 1995 Permit. Initially, DEP misunderstood the nature of the proposed new travel lift, thinking it would greatly increase boat traffic in the north canal. When the minor impact of the project was explained, DEP's concerns were allayed. Greater risk of danger to manatees would occur from the addition of wet slips in the north canal, but those impacts are not secondary to the travel lift proposal; they are completely separate impacts that are governed by the pre-existing 1995 Permit. Petitioner and Intervenor were critical of the absence of a specific condition for the daily logs to be presented to DEP for inspection on a regular basis. See Finding 42, supra. They contended that absence of such a requirement would compromise compliance enforcement. But DEP inspection of the logs at times of its own choosing could be just as effective. The key to enforcement is having an enforceable specific condition limiting use of the travel lift. Petitioner and Intervenor also were critical of using a simple weekly average to limit use of the new travel lift. They correctly argue that the time over which the weekly average would be computed must be designated for such a use limitation to be enforceable. They also contend that there should be a daily limit. Assuming a weekly average limitation of ten, a daily limit of ten would not be unreasonable if it allowed leeway to exceed the daily limit in cases of emergencies such as approaching hurricanes. Replacing Flushing Channel with Culverts Applicant's proposal to replace the 60 foot by 4.5 foot-deep flushing channel with two 48-inch culverts is motivated by practical considerations. Applicant essentially wishes to avoid the expense of constructing the channel required under the 1995 Permit and having to bridge the channel to make use of the peninsula between the central and north canals. Part of the Marina's initial motivation for the channel was to expand operations and allow access to the north canal from the main basin. Part of the channel was to have been used by the Marina as a new forklift area with access to boat storage areas on both sides of the channel. In the 1989 Permit, it was stated that the channel was "to act as a sediment sump." It was not until the 1995 Permit that the channel was said to serve to "improve flushing." Most of the "net improvement" of water quality at the Marina was to come from proposed contamination dredging of the canals (and backfilling with clean sand), removal of contaminated soil from Marina uplands, installation of a redesigned boat-wash area, and installation of an adequate surface water management system. Most flushing benefits were anticipated to come from making the canals shallower by back-filling after dredging. Flushing from the channel was presented as "frosting" on the "net improvement cake." The hydrographic evidence was that the channel, in conjunction with back-filling the Marina's canals, would indeed increase flushing of the Marina's canals to some extent. Looking at the main basin only, the channel would improve flushing by up to 27 percent. But looking at the Marina's canals overall, the channel would only increase flushing by up to 0.6 percent. By comparison, the hydrographic evidence was that the proposed flushing culverts also would contribute to increased flushing but by a smaller amount. Looking at the main basin only, the proposed flushing culverts would improve flushing by up to 4 percent. Looking at the Marina's canals overall, the proposed flushing canal would only increase flushing by up to 0.2 percent. Petitioner and Intervenor question the reliability of Applicant's calculations of flushing times without more up-to- date data on the depths of the canals after contamination and maintenance dredging. But the evidence was that differences in the starting depths would not have a significant effect on the relative changes in flushing times from the channel versus the culverts; the differences would be approximately proportional regardless of the starting depths. In addition, the depths assumed in Applicant's calculations are based on the 1987 data and the requirements of the 1995 Permit. Compliance with the requirements of maintenance dredging and the 1995 Permit can be enforced, if necessary, in other proceedings. See, e.g., DOAH Case No. 98-3901, as to maintenance dredging. Applicant's calculations on flushing times do not account for the possibility of an additional benefit from the proposed flushing culverts. Applicant proposes to locate the culvert inverts at a depth of 6 feet. If a greater salinity gradient exists at that depth, the culverts would have a relative advantage over a 4.5 foot-deep channel in terms of flushing and the exchange of more oxygenated water between the north canal and the main basin. The existence of such a salinity gradient is suggested by data collected in 1997. But salinity gradients are not constant, and water samples were collected only during one 24- hour period in May 1997 and another 24-hour period in September 1997. In addition, no data has been collected after the maintenance and contamination dredging. The sampling in this case was too limited to give reasonable assurance that the proposed flushing culverts would have advantages over the required channel in promoting of flushing. Petitioner and Intervenor contend that changing the open channel to closed culverts would decrease the benefit of oxygen exchange in an open-channel system. It is true that, generally, more oxygen would be introduced in an open system. But the evidence was that none of the "net improvement" to water quality from the specific conditions to the 1995 Permit was anticipated to derive from increases in dissolved oxygen from oxygen exchange in the channel. Conversely, Applicant contended that the proposed culverts would decrease the chances of contamination from the uplands, as compared to an open channel. But there was no specific evidence to support or quantify this speculative benefit. In addition, required improvements in surface water management at the Marina would reduce any such benefits from the culverts. See, Specific Condition 5.B. and DOAH Case No. 98-5409. Approximately 60 feet of mangrove fringe would have to be removed from the north canal to accommodate a flushing channel. In contrast, only approximately 8 feet of mangrove fringe would have to be removed to accommodate the proposed culverts. But there was no evidence as to how removing less of the mangrove fringe would improve flushing or water quality. In addition, Specific Condition 12 of the 1995 Permit required replacement of the mangroves lost in the construction of the flushing channel. There was no evidence that installation of flushing culverts instead of the flushing channel required under the 1995 Permit would have any impact on manatees.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order: granting Applicant's proposed modifications to the 1995 Permit, with the following additional modifications: No use of the new travel lift for boats less than 40 foot in length except in emergencies, e.g., approaching hurricane. Limitation on use of travel lift to a 28- day rolling average of ten vessels a week, except in emergencies, e.g., approaching hurricane. Prohibition against pressure-washing and flushing bilges and engines of vessels on the new travel lift except in the boat wash area to be constructed and operated in accordance with Specific Condition 15 of the 1995 Permit. A requirement to report and promptly clean-up any spills of oil or gasoline in the north canal related to operation of the new travel lift. waiving certification as a precondition to federal permitting under 33 United States Code, Section 1341. DONE AND ENTERED this 21st day of January, 2000, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON 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 21st day of January, 2000. COPIES FURNISHED: T. Elaine Holmes, Esquire 14502 North Dale Mabry, Suite 200 Tampa, Florida 33618 David Gluckman, Esquire Gluckman and Gluckman 541 Old Magnolia Road Crawfordville, Florida 32327 Matthew D. Uhle, Esquire Humphrey & Knott, P.A. 1625 Hendry Street Fort Myers, Florida 33901 Francine M. Ffolkes Senior Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
Findings Of Fact The applicant currently operates a 58 slip marina Village at the proposed site, which was constructed under a modified permit from the Department in 1980 by Sunset Realty. Subsequent to that construction, the Petitioner commenced its Marina Village project on uplands adjacent to the existing dock facility and entered into a lease with Sunset Realty to operate the present marina as part of its "Boca Grande Club." The operative portion of the existing marina, that is, where boats are moored and operate, is in water eight feet or greater in depth. The marina provides fuel service at a separate fuel dock as well as electric and telephone service at the individual slips, thus permitting boats using the slips to hook up to on- shore electrical and telephone service. Sewage pump-out equipment is available at the fuel dock and a portable sewage pumping facility is available to be moved to each slip as necessary. Boca Grande Club employs a full time dock master who lives aboard a boat at the existing facility. The facility presently generally serves larger craft, that is, boats generally larger than 25 feet in length and serves some vessels in excess of 60 feet in length. The marina village portion of Boca Grande Club is a condominium, residential development, which is nearly completed and will consist of 48 residential units. A second portion of the Boca Grande Club is located on the Gulf of Mexico some 2,000 feet away from the marina village. The entire project employs slightly more than 100 people. The Petitioner contends that the existing marina of 58 slips is not sufficient to provide adequate dock space for the residents of the development, as well as members of Boca Grande Club. It also contends that the existing dock elevations are such as to make access from small boats to the dock difficult. The number of residents or club members requiring boat slips was not established, nor was it shown that efforts to modify existing dock elevations have been attempted unsuccessfully. In any event, the Petitioner applied to the Department on February 15, 1985, to construct the approximate 3450 square feet of additional dock facility. This would include a "T" shaped structure with an access ramp or walkway extending approximately 189 feet toward the existing channel from the shore. The waterward "T" portion will be 237 feet ~n length. Additionally,. an "L" shaped structure with two sections, each approximately 75 feet in length, would be constructed which would accommodate six boat slips. The "T" shaped dock will accommodate 19 boat slips at its waterward end. The docks proposed will contain ten 3' X 15' finger piers with regard to the "T" shaped dock and two 3' X 15' finger piers attached to the "L" shaped dock. The applicant would install 42 mooring pilings in the bottom of Gasparilla Sound for the mooring of boats using the docks. Thus, the applicant proposes the addition of approximately 25 boat slips with the proposed docks, all of which will be located within Gasparilla Sound, in the Charlotte Harbor Aquatic Preserve, an Outstanding Florida Water (OFW). This is a Class II water body pursuant to Chapter 17-3, Florida Administrative Code, and has also been designated an outstanding Florida water, pursuant to Rule 17-3.041, Florida Administrative Code. The docking facility will be located in an area vegetated by sea grass, including turtle grass and associated algae. The access ramp for the "T" dock would be through a mangrove fringe including red, white and black mangroves. The Department's appraisal recommended denial of the application unless certain modifications to the "T" shaped dock are accomplished, including omitting the "T" shaped docking structure or relocating it to an area without grass beds; that the pilings should be driven into place rather than placed in augured holes; that turbidity screens should be installed and staked around the proposed piling site and that no boats over 25 feet in length or equipped with heads or toilets should be allowed to moor at the docking facility, nor should boats be permitted with people living aboard them. On September 5, 1985, the Respondent issued its Intent to Deny indicating that the project was expected to violate water quality standards and that the construction of the dock and the presence of the moored boats attendant to use of the dock would lower existing water quality in terms of turbidity, biological integrity, bacteriological quality, especially as to fecal coliform and total coliform bacteria and based upon the DER's position that the "T" shaped dock would not clearly be in the public interest in several respects. The Department has no objection and proposes to issue a permit for construction of the smaller, "L" shaped dock. In response to the Intent to Deny, the Petitioner resurveyed the seagrasses in the area and located a site where the water depths sloped to deeper water and seagrasses were sparser. It modified its application, moving the waterward extension of the dock over the deeper water in the less dense seagrasses, but could not move the dock to a location to avoid seagrass since to do so would not allow maneuvering room for larger boats utilizing the existing dock. The applicant agreed to the other suggestions of modification by the Respondent. Thus, the applicant subsequently modified the application to include "bow-in" mooring of boats so as to place boat propellors over the deepest possible waters at the mooring site, as well as raising the central portion of the access ramp leading waterward from the shore, to provide for greater light penetration and less shading of seagrasses, as well as narrowing the dock to five feet in width where it passes through the mangrove fringe, so as to limit alteration of the mangroves at the site to only three trees. The Department continues to take the position that the permit should be denied, however, on the basis that the construction of the dock and the presence of the boats attendant to the dock will lower existing water quality in terms of the above particulars and based upon the DER's evaluation that the "T" shaped dock will not clearly be in the public interest. AMBIENT WATER QUALITY The Petitioner tendered C. W. Sheffield, professional engineer, and Dr. Martin Roessler as experts in the field of water quality and they were accepted without objection. The respondent tendered the expert testimony of Mr. Doug Frye and William Porter, respectively a dredge and fill specialist and supervisor and an environmental specialist with the Shellfish Monitoring Program for the Department of Natural Resources, who were accepted as expert witnesses in the areas of water quality and, with regard to Mr. Porter, the impacts of water quality on shellfish. It was thus established that the ambient water quality in the cove which contains the present marina and where the proposed docking facilities would be is generally good. The water meets all relevant State regulatory standards with the exception of fecal coliform and total coliform bacteriological standards for Class II waters. In that regard, repetitive samples have shown violations of the fecal coliform and total coliform bacteriological standards for Class II waters on a number of occasions. The data relied upon concerning fecal coliform organism levels at the project site was collected and analyzed over approximately a one year period during which time the samples were shown to contain fecal coliform and total coliform bacteria in violative concentrations a number of times. Marinas are known discharge sources for fecal coliform organisms. This is especially true of moored boats in marinas which often have toilets or heads which are illegally flushed into the State waters within the marina. The presence of moored boats with heads are known discharge sources of fecal coliform organisms and the boats utilizing the present marina and the proposed project do, and likely will, have toilets on board, which can be improperly discharged into the waters of the marina. This marina has been established to be a source of discharge of fecal coliform organisms in violation of the relevant standard for Class II waters of the State. There presently exists relatively high levels of fecal coliform organisms ranging up to 50 organisms per 100 milliliters of water in the area of the existing marina. This level of concentration exceeds the regulatory standard for fecal coliform bacteria in the Class II water quality rules. Although Mr. Porter discussed the possibility that high levels of coliform bacteria could be caused by birds or animals depositing fecal material in the water, he established that the likely source of elevated levels of this bacteria was improper operation of heads aboard boats, as pointed out by the fact that samples taken in other areas of the Gasparilla Sound away from marina sites do not exhibit the high coliform levels found on repeated occasions at the subject site. Thus, it has been established that the ambient water quality is within State standards for all parameters with the exception of fecal and total coliform bacteria for Class II waters. The Petitioner contends that Class III water standards are appropriately applied herein inasmuch as the Department placed the Class III standards rather than the Class II standards at issue in its Intent to Deny, albeit mistakenly. There is no question, however, that there are Class II waters of the State involved at this site and the subject area is within the aquatic preserve and outstanding Florida waters. The Petitioner is charged with knowledge of this inasmuch as the aquatic preserve boundaries are delimited in the Department's above-cited, published rule. In preparing and processing its application and electing to proceed with this project, the Petitioner is charged with knowledge that these are Class II waters and that the water quality criteria and considerations applicable to Class II outstanding Florida waters are the appropriate parameters with which it must comply. In any event, this is a de novo proceeding and the Department's initial position with regard to this application is not binding in favor of or to the prejudice of any party to the Section 120.57(1), Florida Statutes proceeding. IMPACT ON BENTHIC COMMUNITY ยท9. There is a moderate stand of seagrass at the proposed site of the "T" portion of the dock or waterward end of the dock, with dense seagrass beds existing toward the shore, over which the narrower walkway portion of the dock will traverse. Seagrass beds are an especially productive marine community which contribute greatly to the biological diversity in surrounding waters because of their important function in the marine food chain. That function is involved with the seagrasses production of detrital matter consisting of seeds and vegetative material which marine organisms feed upon and upon which organisms larger fish, including commercial and sport fish species, feed upon. Potential adverse impacts caused by a project of this type on the Benthic Community at the project site and especially the seagrass beds involve the potential shading of seagrasses caused by the location of the dock over them, as well as the mooring of boats over them which shading retards or eliminates photosynthesis, which ultimately can kill the seagrass and thus reduce marine productivity in the area. The concentration of boats at such a mooring site as the end of this "T" dock will concentrate the effects of prop scouring, washing and prop dredging, which will have a destructive effect on seagrasses as well as the settling out of sediment from propellor wash or disturbance of the bottom on the seagrasses which can ultimately smother them as well as other marine life forms. In discussing these considerations, it should be pointed out that the "T" portion of the dock would be oriented in a general north-south direction which causes the shadow of the dock to move rapidly as the sun passes overhead in a general east to west direction. This would tend to minimize the effect of shading on the seagrass of the dock itself, particularly with regard to the approach ramp portion of the dock which is relatively narrow. That portion of the dock extending toward the shore runs in an east to west direction and would not exhibit the same rapidly moving shadow, but the central portion of the approach walkway has been elevated to such an extent that light reaching under the dock from both sides will be sufficient to allow photosynthesis of the seagrasses under the dock, although not for as long a period of the day nor at the same rate as would be the case if the dock were not present. The Petitioner asserts that its voluntary relocation of the "T" shaped portion of the dock from an area of dense sea grass to a moderately populated sea grass bed plus the proposed bow-in mooring of boats so as to alleviate propellor damage to the seagrass, together with its view concerning the prevailing water depth at the end of the dock, will serve to prevent damage to the seagrass at the end of the "T" dock where the boats will be moored. It has been shown, however, that the mooring of boats whether bow-in or otherwise will still create a significant amount of shading of the bottom which, together with the shading caused by the "T" dock as well as the associated finger piers will retard or prevent photosynthesis to some extent, especially where boats are moored for days at a time without moving. This will significantly reduce the marine productivity attributable to the seagrass by retarding its natural function or, in some cases, killing it with the resultant loss of the detrital production as well as carbon production, the former being crucial to the proper functioning of the marine food chain in the area. If the seagrass is damaged or extinguished by the shading effect, prop scouring and washing, and/or settlement of turbidity on the seagrass, or a combination of these factors, not only will its productivity be lost, but the biological diversity of marine life in the area will be reduced as it relates to those vertebrate and invertebrate marine animals which depend on seagrass as a food source either directly or indirectly. Dr. Roessler, for the Petitioner, opined that the attached biological communities or "fouling" organisms such as barnacles which would form on the dock pilings, if they were installed, would provide habitat for marine life and invertebrates and thus enhance the biological diversity of the area. These fouling organisms which attach to pilings, however, represent a very narrow portion of the potential marine biological diversity of life forms in an area such as this. Their advent on the pilings, should the pilings be installed, would not mitigate for the loss of important marine habitat and resultant species diversity that elimination of this portion of the seagrass beds would pose. Thus, reasonable assurances have not been established that significant adverse impact to the Benthic Community in the form of damage or elimination of the seagrass beds and their dependent biota will not occur due to shading and propellor scouring, dredging and washing occasioned by the installation of the docking facility. Respondent's expert witnesses Sheftal, Barth, and Dentzau uniformly expressed a concern for propellor scarring, dredging and prop washing of the seagrass beds caused by an improper operation of boats in the project area where water is too shallow over the grass beds to protect them from the resultant propellor damage. In this regard, the Petitioner's own experiments with actual boats indicated that approximately one to 1 1/2 feet of water will remain between the bottom of the sound and the boat propellors at the end of the "T" dock for the general type and size of boats which will use the dock, even assuming that the boats are moored bow inward, thus taking maximum advantage of the deepest water possible under the propellors when a boat engine is started. Respondent's witness Dentzau performed a test with a 21 foot boat with an approximately 100 horsepower outboard engine running it in both forward and reverse at the "T" end of the dock. He was able to readily generate a "plume" of turbidity consisting of sand and other bottom material suspended in the water by the scouring action of the propellor. Although it was demonstrated for water quality parameter considerations that this turbidity plume did not violate the water quality standards for turbidity, it obviously shows that over time the turbidity suspended by boat propellors will settle on the seagrasses and other bottom dwelling biota to their detriment and, more immediately important, demonstrates that prop washing and scouring will occur by boats even if moored bow-in at the presently proposed site of the "T" shaped portion of the dock. The Petitioner proposes by the configuration of its "L" shaped dock in conjunction with the IT" shaped dock, as well as with buoy lines, to keep boat traffic away from the dense grass beds surrounding the proposed dock site and over which the walkway will extend. The Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent grass beds. It has not been demonstrated, however, what steps can be taken to effectively prevent boats from approaching the side of the proposed dock around the ends of the buoy lines and over the dense grass beds toward prohibitively shallow water where prop scouring and scarring will occur. Further, although the Petitioner will mark the entrance channel to the marina itself to keep boats from straying over adjacent dense grass beds, the likelihood of propellor damage to the grass beds in the vicinity of the end of the "T" dock has been exacerbated by the concentration of boat traffic which will result by installation of that dock, over waters at the mooring site which are of insufficient depth to protect the grass bed at that location from scouring and washing from boat propellors. In view of these reasons, significant adverse impacts to the Benthic Communities and especially to the grass beds themselves will result by installation of the docking facility at the site proposed, primarily because of insufficient water depth for safe operation of boats in relation to the well-being of the grass beds in the vicinity of the end of the dock and because of the shading which will result by installation of the "T" shaped portion of the dock in conjunction with the boats to be moored to it and the finger piers between the boat slips attached to it. WATER QUALITY The Respondent, through its water quality expert witness, Doug Frye, expressed the concern that the proposed project would violate Rule 17-3.051, Florida Administrative Code, which requires that the State's waters be free from pollutants above a certain level measured by various accepted and codified scientific methods of measurement. In this regard, the primary concern of the Department is bacteriological quality as well as turbidity resulting from boat operation. The turbidity standards contained in the above Rule provides that State waters not exceed 29 nephelometric turbidity units above the natural background level. The Respondent contends that this level will be exceeded as a result of operation of boats in the vicinity of the dock. The Petitioner, however, presented a soils analysis and silt settling study which showed that bottom materials in the area involved consist of sand, with some finely pulverized shell and that this material settles very rapidly after being disturbed with little silt remaining in suspension a significant period of time after the disturbance. This is primarily because the level of organics in the bottom substrate is very low at this site. In this connection, the Petitioner's expert witness, Mr. Sheffield, anchored a 16 foot boat with a 40 horsepower outboard motor in the docking area of the proposed project. He operated the boat at 1,000 RPM for an extended period of time while measuring the resultant turbidity. The results of his measurements showed turbidity to be in the range of 5-11 NTUs. The Respondent's witnesses, however, operated a larger 21 foot boat at the location of the "T" shaped portion of the dock maneuvering it back and forth with a fairly large outboard motor in the 100 horsepower class, which might be presumed to be typical of the boats which will be using the proposed facility. The maneuvering of the boat with the larger engine in this shallow water created a clearly visible plume of turbidity shown by photographs introduced into evidence by the Respondent. In fact, however, although the turbidity plume was clearly visible, the Respondent's own direct measurement of turbidity taken from within the plume immediately after it was generated was 23.8 NTUs, still below the State standards for violations as to turbidity. The existing marina facility has a fuel dock and has adopted a fuel spill contingency plan. There will be no fueling of boats nor fuel kept at the proposed docks. Nevertheless, marinas were established to be a known source of discharge of oils and greases and the presence of more boats utilizing all the dock facilities, especially during fueling and maintenance procedures, will result in additional oils and greases being deposited in the water. Even if there is no fueling facility planned for the proposed docks, the additional boats represented by the 25 additional slips sought to be approved will have to be fueled and likely at the existing facility. This will heighten the risk of fuel, oil and grease spills. In this regard, it must be remembered that the present marina and the proposed docking facilities are in outstanding Florida waters in which no degradation of ambient water quality is permitted. In this context then, the Petitioner/Applicant has, not provided reasonable assurances that pollution levels for oils and greases will not increase as a result of the potential addition of 25 boats to this marina facility. A substantial issue has been raised in this proceeding concerning water quality as it relates to the bacteriological standard. It has been established that this marina is presently a source of discharge of fecal coliform organisms which frequently are present in sufficient concentrations so as to violate the standard for that organism for Class II waters. Fecal coliform bacteria are accumulated in the bodies of shellfish. The shellfish themselves are not harmed, but contaminated shellfish can accumulate concentrations of as much as 100 times the ambient fecal coliform bacterial levels present in the waters they inhabit. Fecal coliform bacteria can cause extreme illness in human beings, sometimes even paralysis and death. Fecal coliform bacteria in State waters results from the deposition therein of human or animal waste. The Petitioner maintains a sewage pumpout station located at its fuel dock with a direct connection to its sanitary upland sewer system, as well as a portable sewage pump that can be moved to each boat slip for pumping out of toilets or "heads" on boats. Upland fish cleaning stations will additionally be provided with the proposed docks so as to prevent refuse from fish cleaning activities being deposited into the waters of the cove. The fact remains, however, that there presently exist high levels of fecal coliform organisms in the waters of the cove at the marina site, in the above noted violative concentrations on repetitive occasions. The presence of boats moored in the marina with "heads" aboard are a known discharge source of fecal coliform organisms. The Petitioner proposes to restrict boats using the facility to those boats without marine heads aboard or requiring those with heads to keep them locked or otherwise not discharge them into the waters of the marina. If boats utilizing the marina have toilets aboard, however, there is a substantial likelihood that at some point those toilets will be discharged into the waters of the cove before any of the Petitioner's monitoring personnel are aware of it. The problem is thus one of enforcement. In this regard, it is established that even with the sewage pumpout station and the portable sewage pumpout device, that there are a number of "live-aboard" boats with marine heads in the marina at the present time and customarily. This has caused the above found violations of fecal coliform, Class II water standards. Although the Petitioner proposes to restrict boats at the proposed docking facility to those less than 25 feet in length and to establish a monitoring program by the marina management personnel to assure that the boats with heads only contain heads approved by Coast Guard regulation, reasonable assurances have still not been established that the enforcement plan proposed can be effective in ensuring that no marine heads or other sources of coliform bacteria will be discharged into the waters of the cove at the project site. The plan proposed by the Petitioner simply did not ensure that boats having marine heads will not use the marina and that those persons using boats so equipped will not, on some occasions, discharge the heads into the waters of the marina at the project site nor that spills will not result in the sewage pumping-out process. The Respondent's expert witness, Mr. Porter, confirmed that most fishing boats of the open "center console" variety of 25 feet length or less do not contain marine heads, nevertheless, he established that in his experience monitoring marinas of this sort, the restrictions against marine heads of the non-approved variety and the attempted restriction against boats discharging the contents of their heads into the waters of the marina cannot be effectively enforced nor was it established that fishing boats without marine heads will be the only type of boat to use the proposed docking facilities. Accordingly, the waters of the cove at the marina site and project site are in frequent violation of the fecal coliform and total coliform parameter for Class II waters and reasonable assurances have not been provided that the fecal coliform bacterial levels will not increase as a result of the installation and operation of the proposed facility with its attendant boats. Because of the likelihood of shellfish contamination by fecal coliform bacterial levels which will likely increase if the proposed project is constructed and operated, together with the loss of marine habitat and productivity posed by the harm likely to result to the seagrass beds in the vicinity of the proposed facility due to attendant boat operation, it has been shown that the water quality parameter for biological integrity in these Outstanding Florida Waters will likely be degraded. The "Diversity Index" of marine microinvertebrates in the area of the affected seagrass beds will likely be reduced below 75 percent of background levels. Therefore, in the context discussed above, the proposed construction and operation of the 25-slip marina facility with the "T" dock will lower ambient water quality in these outstanding Florida waters and will result in violations of State water quality standards for Class II waters in the above particulars. SHELLFISH HARVESTING Mr. William Porter of the Department of Natural Resources Bureau of Shellfish Sanitation established that the cove where the project would be located is closed to the taking of shellfish as a result of the contamination or potential for contamination of shellfish by coliform bacteria contained in fecal material. His Department's water quality sampling confirmed the elevated levels of fecal coliform bacteria in the cove on repetitive occasions. This elevated level of coliform organisms was shown to result from improper operation of marine toilets upon vessels using the marina at the present time. Because of the potential for contamination from vessels discharging fecal material, Mr. Porter established that the Department would likely close an area 50 percent larger than the present shellfish harvest closure area as a result of a 50 percent increase in the number of boats capable of using the marina if the proposed project is built. Mr. Porter acknowledges that if it could be assured that boats using the marina did not contain heads, the increased area of closure might be lessened after this project were built. He also established as pointed out above that such restrictions on boats containing heads from using the proposed boat slip is very difficult to enforce. Even with the present central sewage pumpout facilities and portable pumpout equipment at the existing marina, the marina still has failed to comply with fecal and total coliform standards for Class II waters on a repetitive basis. The management of the present marina has allowed live-aboard boats at the marina even though it has posted warning signs against boat owners discharging toilets in the cove waters. Mr. Porter also acknowledged that the Boca Grande North Marina, owned by Gasparilla Pass, Inc., was recently permitted by the DER and constructed and has not yet resulted in the Department's closing an additional area to the taking of shellfish. The area the marina is situated in, however, is only "conditionally approved" for the taking of shellfish, meaning that it is subject to closer monitoring by the DNR with a view toward the possible necessity of closing waters in the area of that marina. It was not established, however, how the fecal coliform or total coliform levels in the waters adjacent to that marina compare to the existing marina or the site of the proposed docking facilities at the existing marina, nor what conditions might prevail which would render that other marina a comparable site to -be used as a relevant demonstration of what conditions might be expected at the present marina if the proposed project were built and operated. Thus it has been shown that even though the Petitioner proposes limiting the size of boats at the proposed facility and closely inspecting and regulating any marine heads on boats using the facility to make sure they comply with Coast Guard regulations, it has not been demonstrated that the additional deposition of fecal coliform bacteria in the waters often the cove will be adequately prevented by the proposed enforcement measures. It is thus reasonably likely that the construction of the proposed project will lead to the closing of an additional area of water which is presently approved for shellfish harvesting. The closure of shellfish harvesting in waters is contrary to the public interest in terms of recreational values, fishing and marine productivity and others of the seven public interest criteria quoted below. Further, the contamination of shellfish, which can cause severe illness or even death in human beings, is clearly contrary to the public interest and there is a substantial likelihood that shellfish contamination is already occurring in the area due to the characteristic of shellfish by which they accumulate or store fecal coliform organisms to reach injurious levels for human consumption even though the shellfish themselves appear to be healthy. The area of the proposed project is extensively used for commercial and recreational shellfish harvesting at the present time, outside the immediate closed waters of the marina within the cove. PUBLIC INTEREST Section 403.918(2) (a) (1-7) requires that the Petitioner provide reasonable assurances that the proposed project will be clearly in the public interest. The public interest considerations of those seven criteria concern whether the project will adversely affect public health, safety or welfare or property of others: whether it will adversely affect conservation of fish and wildlife or their habitats; whether it will adversely affect the fishing or recreational values or marine productivity in the project vicinity; whether it will be of a temporary or permanent nature; and the effect on the current condition and relative value of functions reformed by areas affected by the project. Although Petitioner's witness, Dr. Roessler, related that the attached fouling communities, such as barnacles, which would form on the proposed docks and pilings would increase the diversity of marine habitat available, that will not offset the loss of marine habitat occasioned by the increasingly detrimental effect imposed by the project and the operation of it on the seagrass beds, in the manner discussed above. The fouling communities expected by Dr. Roessler to occur on the pilings to be installed, will not provide, nor replace the value of, the detritus (seeds and leaves) produced by the seagrass which would be lost, which is an important food source for marine organisms in the upper portion of the food chain in the area, some of which organisms include fish and have a high recreational value and commercial value. The importance of detrital production by the seagrass beds outweigh the value of the addition of the fouling communities on the pilings. In fact, the total diversity of marine species actually might decline even though the fouling organisms would be added with the installation of the pilings, once the harmful effects on the seagrass beds begin to occur after installation and operation of the proposed facility and over the life of the marina. Thus, in this regard, the project is contrary to the public interest and certainly not clearly in the public interest. Additionally, there is a substantial likelihood that shellfish may be contaminated which, in turn, will have an adverse effect on the public health, safety and welfare. The harvesting of shellfish has a substantial recreational and commercial value and is an important aspect of the marine productivity in the vicinity of the project. The heightened coliform bacteria production caused by the resultant expansion of the marina will adversely affect fishing and recreational values and marine productivity and will degrade the current condition and relative values of the functions performed by the marine habitat in the vicinity of the proposed dock. Finally, there is no question that the project will be of a permanent nature. The various detrimental effects on the public interest consideration found herein are rendered more critical by the fact that there is no truly redeeming public purpose or use for this project. This will be essentially a private docking facility designed to serve the residents of the applicant's attendant real estate development. The upland development is a condominium development and the slips will be owned by the condominium owners and not open to the general public, although the Petitioner did make vague reference to an idea that some slips might be rented to members of the public. This was not established to be the case and, in any event, the primary purpose of the boat slips is to enhance the desirability of the upland development. Although the Petitioner emphasizes that the advent of the additional slips might help attract as much as $1,000,000 additional revenue to the Boca Grande area by assisting the applicant in hosting the Annual Tarpon Release Fishing Tournament, it is also true that any development in a coastal area will likely represent some economic benefit to that area, but there is also a substantial economic and recreational benefit to maintaining the outstanding Florida waters involved in an undegraded condition and maintaining the present Class II, approved shellfish harvesting area unimpaired. Thus, although the proposed docks might be used for sponsorship of the subject fishing tournament and it can be said that that would enhance fishing and recreational value to some extent, it was not established that the tournament will not occur and that the extra revenue and enhancement of fishing and recreational value it will generate will not occur in the Boca Grande area anyway. The potential detrimental effects of the proposed project, delineated above, will also decrease fishing and recreational value over many years and for the life of this project in terms of harm to the marine habitat occasioned by the constant deposition of oils, greases and fuel and coliform bacteria in the Class II waters involved, as well as the other detrimental aspects of the project discussed above. It has not been established that the economic benefits of the fishing tournament and the addition of the boat slips will not occur but for the installation of this proposed docking facility. Although it may help relieve a shortage of marina slips in the area, it was not shown that this is the only alternative to relief of that shortage. ALTERATION OF MANGROVES The original site for the access ramp or walkway to the "T" shaped portion of the dock was selected through an on site inspection conducted in part by Respondent's witness, Andrew Barth. The mangrove area is less dense at the site of the walkway's penetration of the mangrove belt than surrounding mangrove areas. Petitioner's witness, Dr. Roessler, has participated in many studies involving mangroves in South Florida. He identified each tree within the proposed dock pathway. Through narrowing of the dock walkway to five feet and the relocation agreed upon by the Petitioner and Mr. Barth, it has been established that only three mangrove trees will be removed by the construction of the dock. Thus, there will be no substantial alteration or degradation of the mangrove fringe area at the project site. DOCK CONSTRUCTION Mr. C. W. Sheffield was accepted as an expert witness in the field of marine engineering. He established that the pilings will be installed using a 6 to 8 inch chisel point driven into the bottom of the sound with an air hammer. There will be no augering or other means of excavation used which would generate a substantial amount of turbidity. The air hammer will result in compaction of sediments by forces radiating out from the piling as it is driven, with the counteracting sheer force caused by the piling installation causing a slight bulging in the bottom around each piling, but nothing more. There will be no significant movement of sediment in the water column. The construction of the dock will take place moving from the land waterward, utilizing equipment mounted on the dock. Thus, construction barges will not be required to come into the shallow grass bed area with the potential for its damage. Small barges would be used in the deeper waterward portions of the project to install the mooring pilings off-shore from the end of the "T" dock. Turbidity curtains will be used during all construction, surrounding all phases of the construction work. In Mr. Sheffield's experience, such measures have resulted in no violation of the State turbidity standards at other similar projects, and are not likely to with this one. CUMULATIVE IMPACT A number of permits have been issued by the Department for docking facilities to the north of this proposal and other facilities are already in existence. Dr. Roessler opined that the geographic location of these, as well as that of this project, in light of the numerous inlets and high degree of tidal flushing and exchange through the inlets, will not result in any adverse cumulative impact occasioned by the addition of the proposed dock with 25 slips to those already existing in the Sound. It is noteworthy that, with regard to the potential this project poses for damage to the seagrass beds and for heightened production of fecal coliform bacteria, with the environmental damage attendant thereto, no proof was offered by either party concerning those considerations or effects to the extent that they might or might not exist at other marinas or docking facilities in the Gasparilla Sound area. There has been no proof to establish any cumulative impact.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the testimony and evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that a Final Order be entered denying the subject permit application, except for that portion seeking authorization for the "L" shaped dock and six boat slips attendant thereto, which should be granted with the agreed-upon conditions and restrictions contained in the above Findings of Fact. DONE and ENTERED this 19th day of December, 1986 in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 1986. APPENDIX Petitioner's Proposed Findings of Fact: The rulings on the Petitioner's Proposed Findings of Fact are numbered below in the order in which they were presented (unnumbered) by the Petitioner. 1-6. Accepted Accepted, excepted for the last two sentences which are immaterial Accepted. Accepted, except as to the proffered material import of the last sentence. Accepted, except the first sentence which is not in accord with the greater weight of the evidence. Accepted, except as to the last three sentences which are not supported by preponderant evidence 12-16. Accepted. Rejected, as not in accordance with the preponderant evidence of record. Rejected as not being in accordance with the greater weight of the evidence. Accepted, but not as dispositive of any material issue presented. Accepted, except as to the last sentence which is rejected as being contrary to the preponderant evidence adduced. Accepted, except as to the third and last sentences which are rejected as being contrary to the preponderant evidence adduced. Accepted, except for the third and last two sentences which are rejected as to their purported import in the resolution of the material issues presented and as being not in accordance with the preponderant evidence adduced. Accepted. Accepted, but not as dispositive of the jurisdictional issue concerning "dredging and filling" for the reasons found in the Recommended Order. Accepted. Accepted. Respondent's Proposed Findings of Fact: 1-18. Accepted 19. Accepted, but not dispositive of any material issue presented. 20-25. Accepted. Rejected as not being a complete finding of fact. Accepted. Accepted, except as to the issue of water dept which would actually be less at the critical location involved. Accepted. Accepted, but not material. 31-31. Accepted. 35. Accepted, but not truly material in this de novo proceeding. COPIES FURNISHED: Robert A. Routa, Esquire 217 South Adams Street Tallahassee, Florida 32302-1386 Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mary F. Smallwood, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Stephen Fox, Director Division of Environmental Permitting Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 ================================================================ =
