The Issue The issue is whether Ponce Marina, Inc., (Ponce Marina) is entitled to a dredge and fill permit and water quality certification number 64-1303059 to construct a marina on the Halifax River in Volusia County, Florida.
Findings Of Fact The Department received an application from Ponce Marina on February 6, 1987, for a permit/water quality certification to construct a 178 slip marina facility consisting of two marina basins and two access channels. The work was to be done in primarily existing uplands adjacent to the Intercoastal Waterway (ICW) within the boundaries of the Town of Ponce Inlet, Volusia County, Florida. In response to agency objections, the scope of the project was reduced to include the excavation of a single marina basin and entrance channel and the construction of a 142 slip marina, by: constructing a basin by excavating 153,000 cu. yds. of material landward of mean high water (MHW) to a maximum depth of -6 feet mean low water (MLW); constructing an entrance channel 200 feet long by 80 feet wide by hydraulically dredging 2,100 cu. yds. waterward of MHW to a maximum depth of -7 feet MLW; connecting the head region of the excavated basin to an existing tidal creek by installing a 60 foot long, 36 inch diameter culvert pipe set at invert -2.0 feet NGVD and fitted with a 36 inch flap gate; installing 1,695 linear feet of vertical bulkhead with a riprap toe, 1,200 linear feet of native rock revetment, 680 linear feet of native rock riprap for use as wave-breaks; constructing 3 main piers, 8 feet in width and 140 feet, 180 feet and 210 feet in length, and 66 finger piers 3 feet in width and 30 feet to 50 feet in length, providing 142 wet boatslips; constructing a stormwater treatment system for the upland development associated with the marina facility; filling a 0.53 acre barrow canal with 4,000 cu. yds. of material; impacting 2.44 acres of jurisdictional wetland area; and creating 2.9 acres of jurisdictional wetland area. The application was filed on behalf of Ponce Marina by Robert M. Snyder, P.E., a professional engineer registered in the State of Florida. On June 20, 1988, the Department issued its Intent to Issue Permit No. 64-1303059 to Ponce Marina. The Intent to Issue contains 21 Specific Conditions the Department will place on the Permit. All conditions are reasonable and necessary. The project site is located on the eastern side of the Halifax River, 3.5 miles south of the Port Orange Causeway and 2.3 miles north of Ponce Inlet in the Town of Ponce Inlet, Volusia County, Section 24, Township 16 South, Range 33 East, not in aquatic preserve, in Class III waters. The project site was formerly salt marsh associated with the Halifax River. The majority of the project site now consists of fill placed on the salt marsh at some time in the past. This fill created an upland strip approximately 500 feet wide and 2,000 feet long. Running through this upland strip is a central ditch which originates at a stormwater sewer on the east side of South Peninsula Drive and runs toward the west to the Halifax River. The proposed marina basin is to be excavated from the upland strip and central ditch described above. The marina design includes the creation of a wetland area in the head region of the basin as well as the connection of the head region to Live Oak Creek, an existing tidal creek, by installing a 60 feet long, 36 inch diameter culvert set at -2.0 feet NGVD and fitted with a 36 inch flap gate. The estuarine marsh wetland to be created at the head of the marina is designed to provide water quality treatment to incoming tides which reach this area. This treated water will then move through the flap gate into Live Oak Creek, where it will receive further treatment before entering the Halifax River. The entrance to the marina will be 180 feet wide. The dredged access channel through that 180 feet entrance, for the navigation of deeper draft boats, will be 80 feet wide by 200 feet long. Construction of the entrance channel will require the excavation of approximately 2,100 cu. yds. of material from the submerged lands of the Halifax River, however, the areas to be dredged consist of unvegetated sand which is not expected to impact marine resources. Excavation of the marina basin will result in 2.44 acres of direct wetland loss. These wetlands are mainly associated with the central ditch. Some marsh north of the upland strip will also be encroached upon. The wetland area eliminated by construction will be replaced by the creation of 2.9 acres of wetland area to be planted with mangroves and smooth cordgrass. It is expected that the created wetland area will provide those same functions as the replaced wetlands within four to five months of planting and will become fully established within two to three years of planting. There is an extremely high success rate for this type of created wetlands within marina basins. The proposed mitigation provides a 1.3:1 ratio of created saltmarsh and mangrove areas and is consistent with Department policy. Diverse shoreline treatments are proposed which will protect wetland and vegetated areas within the marina basin from boat wakes and high energy exchange. This shoreline treatment will include vertical bulkheads, sloping native rock revetments, and submerged wake breaks. There are two or more boat slips directly adjacent to the created wetland on the south side of the basin. Boats in these slips can easily hit the wetlands and damage them. These slips should be eliminated or redesigned to provide protection for these wetlands. The created wetlands are placed so as to provide nursery habitat adjacent to deep water and to filter and treat tidal waters as they move through them. The location and proximity to open water of the created wetlands and the flushing characteristics of the basin will result in higher quality wetlands than those being replaced. The approximately 94 acres of remaining wetlands surrounding the marina project will be placed in a perpetual conservation easement by Ponce Marina. This conservation easement will include two spoil islands to the south of the main upland portion of the property as well as a nonjurisdictional Oak Hammock to the north of the project. The marina, as designed, is a system which is hydraulically driven by the tide. The tide in this region has a mean range of 2.77, that is, a 2.77 feet amplitude change from slack low water to slack high water. In this particular marina system, flushing is driven by two tidal components: (1) a tidal prism which is nothing more than the ratio of the tide volume to the mean low water volume of the basin and, (2) a flow-through component which occurs because there is an elevation difference from one portion of the system to another. A more rigorous flushing action occurs in a flow- through system. The marina is designed with a flap gate so that the facility will have a flow-through potential. Because a flow- through system generates turbulence, it provides mixing through the water column to eliminate or greatly minimize potential for pockets of water that could become stagnant. This is particularly effective in the head regions of the basin. The flap gate operates not only to ensure that water regularly moves out of the head region, but also to ensure that water from the marsh area will not flow into the marina basin, since such water contains organics which could be transported into the marina basin, thereby increasing the potential to violate dissolved oxygen standards. The marina, as designed, will provide a flushing time of 4.6 days for 100 percent flushing, which is adequate to provide reasonable assurance that water quality standards will not be degraded in either the marina basin or adjacent waters. The velocity of water going through the flap gate will not cause erosion. While no operational problems are anticipated with the flap gate, its proper operation is critical to the flushing of the basin. An appropriate design and regular maintenance will be necessary for the flap gate to operate as anticipated. There is no condition in the Intent to Issue which addresses the design and maintenance of the flap gate. Such a condition should be included. The east-west portion of an existing L-shaped canal situated in the northern portion of the property will be filled. The area to be filled is .53 acres. The L-shaped canal is within the Department's jurisdiction, is connected to the Halifax River, and is therefore waters of the State. There is a 36-inch culvert coming from under Peninsula Drive which takes stormwater runoff from an existing condominium development and empties that runoff into the L-shaped canal. Currently, untreated water is coming off impervious surfaces and under the highway by pipe directly into waters of the state, with no detention, no retention, no initial treatment. Therefore, the worst pollutant slug is going directly into waters of the state. This stormwater runoff receives no treatment prior to being directly discharged to waters of the state. Such a system would not be permitted by the Department today. State water quality will be improved by removing the direct stormwater drainage to waters of the state. Ponce Marina has provided an alternate plan for the water which is currently coming from off the project site and discharging through the 36-inch culvert directly into waters of the state. The water is to be routed through a considerable length of grassy ditch behind a weir which will retain the water so that it will receive proper treatment before entering the marsh area. This stormwater will not be routed to a retention area in the oak hammock to the north of the project. The water quality in the remaining portion of the L- shaped canal will not be reduced by the filling of the .53 acre east-west segment, nor is it expected to decline after the filling. The proposed stormwater treatment system for the marina project meets the criteria specified by Florida Administrative Code Chapter 17-25. Further, the stormwater management system for the project was never properly made an issue in this proceeding. The U. S. Fish and Wildlife Service issued a no jeopardy letter to Ponce Marina on July 11, 1988, indicating that the proposed marina will not endanger the manatee or the Atlantic Saltmarsh snake. Those are the only endangered or threatened species that would be expected to be affected by this project. On September 1, 1987, Colonel Robert M. Brantly, Executive Director of the Florida Game and Fresh Water Fish Commission, issued a letter to Secretary Dale Twachtmann recommending, (1) the southern basin of the original marina project be eliminated; (2) the remaining northern basin be designed to lessen wetland impacts, a hydrographic analysis be performed to ensure adequate flushing, there be a DNR determination of no adverse impact to the manatee; and (3) the oak hammock be preserved before issuance of the permit. These recommendations were followed by the Department and are incorporated in the current proposal for the project. On August 21, 1987, the Florida Department of Natural Resources issued its recommendations to the Department concerning the proposed marina, as it relates to the manatee. The recommendations of the DNR are incorporated in permit conditions 16, 17, and 18a through 181. A March 16, 1987, report prepared by staff of the Environmental Control Division of Volusia County recommended approval of the original marina project with three recommendations. Although Volusia County recommended a 90 percent survival rate, an 80 percent survival rate in the mitigation plan is reasonable. Marina plans provide for a sewage pump-out service for boats, as recommended. A condition prohibiting live-aboards on vessels was inadvertently omitted from the condition in the Intent to Issue. The PAC called as its only witness, Dr. Bernard J. Yokel, who was qualified as an expert in estuarine ecology and fisheries. Although Dr. Yokel expressed concern about the removal of a portion of the L-shaped canal and on the introduction of water from the marina into Live Oak Creek, there was no testimony whatsoever that it would be a violation of any criteria of the Department's Class III Water Standards or any other promulgated departmental standard. In fact, Dr. Yokel was unfamiliar with the provisions of Chapters 17- 3 and 17-4, Florida Administrative Code, and was also unfamiliar with the Coastal Marinas Assessment Handbook, the 1985 version published by the Environmental Protection Agency (EPA). Although Dr. Yokel expressed some concern regarding the impact of the marina on the existing linear wetlands in the ditches, he never rendered any opinion as to whether or not reasonable assurances had been provided that the proposed permit was contrary to the public interest, would cause adverse water quality or have adverse effects on fish, shellfish, crabs, and other wildlife. He rendered no opinion as to whether or not the proposed project, if permitted, would adversely affect the conservation of fish and wildlife. The Petitioner, Lawrence Decker, did not testify. He did present Robert Bullard, P.E., as an expert. Mr. Bullard expressed concern about the operation of the flap gate between the marina basin and Live Oak Creek. However, Mr. Bullard expressed no opinion as to whether or not there would be a violation of any criteria contained in Chapters 17-3, 17-4, or 17-25, Florida Administrative Code, or of the Department's Class III Water Quality Standards. The witness, Mr. Bullard, also expressed concern about the hydrographic characteristics of the marina basin and of the L-shaped canal. However, Mr. Bullard never expressed an opinion that the project as designed would degrade State Water Quality Standards below those set in Chapters 17-3, 17-4, and 17-25, Florida Administrative Code, or the Department's Class III Water Quality Standards. Mr. Bullard never expressed any opinion as to whether or not reasonable assurances had been given by the applicant, Ponce Marina, to the Department, that the project would not meet the criteria as provided in Chapter 403, Florida Statutes, or the rules promulgated by the Department thereunder. The applicant, Ponce Marina, has provided reasonable assurances that the project will not violate water quality standards or other standards established pursuant to Chapter 493, Florida Statutes, and Rules 17-3.051, 17- 3.061, and 17-3.121, Florida Administrative Code, relating to Class III waters. The project as designed is not contrary to the public interest. The mitigation more than offsets the wetlands lost. There is evidence to establish that the project, with mitigation, will not adversely affect the public health, safety, welfare, or property of others; nor adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats; nor adversely affect navigation or flow of water or cause harmful erosion or shoaling; nor adversely affect the fishing or recreational value or marine productivity in its vicinity; nor adversely affect significant historical or archaeological resource.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final Order and therein grant permit number 64-1303059 to Ponce Marina, Inc., with three additional specific conditions added to the twenty-one conditions set forth in the Intent to Issue: No live-aboard vessels are to be allowed at the marina. The applicant shall design and shall provide regular maintenance for the flap gate so as to insure that the flap gate will perform as required as an integral and critical component of the flushing design of the marina basin. The applicant shall eliminate or redesign the boat slips directly abutting the created wetlands on the south side of the basin, so as to protect those wetlands from damage. DONE and ENTERED this 28th day of November, 1988, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3494 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioners, Doris Kralik and Lawrence Decker 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(2); 5(19); 10(24); 14(26); 32(26); and 35(27). 2. Proposed findings of fact 3, 4, 6-9, 11-13, 15, 16, 19, 24- 26, 28, 30, 33, 34, and 37-42 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 17, 36, and 43 are rejected as irrelevant. Proposed findings of fact 18, 20-23, 27, 29, and 31 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Ponce Marina, Inc. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(11 & 12); 5(10); 6(18); 9(3); 11(36); 15(29-32); 16 (33 & 34); 17(4);0(41) and 25(44). Proposed findings of fact 3, 7, 8, 10, 12-14, and 21-24 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 15 and 19 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Department of Environmental Regulation 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1 & 2) and 2-38(3-39). Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Volusia-Flagler Environmental Political Action Committee, Inc. 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(3); 2(2); 4(8); 5(19); 8(27); 9(28); 21(24); and 22(26). 2. Proposed findings of fact 3, 6, 7, 10-13, 15, 19, 20, 23, 24, 27, 33-37, 39, and 40 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 14, 16-18, and 25 are rejected as irrelevant. Proposed findings of fact 26, 28-32, 38, and 41-43 are unnecessary. COPIES FURNISHED: Lawrence Decker 6502 John Anderson Road Flagler Beach, Florida 32036 Doris Kralik 31 Oceanview Avenue Ponce Inlet, Florida 32019 Peter B. Heebner Attorney at Law 523 North Halifax Avenue Daytona Beach, Florida 32018 Vivian F. Garfein Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Thomas D. Wright Attorney at Law Post Office Box 1231 New Smyrna Beach, Florida 32070 Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue This case concerns the issue of whether the Respondents, B. W. and Mildred Peake, should he granted a permit to construct an addition to an existing dock located on the north shore of Old River in Pensacola, Florida. The Petitioner, Mrs. A. K. Doyle, testified on her own behalf and also called as a witness, Mildred N. Peake, one of the applicants. The Petitioner offered no exhibits into evidence. Mr. B. W. Peake testified on behalf of himself and his wife Mildred N. Peake. The Peakes offered and had admitted into evidence Exhibits 1-7. The Department of Environmental Regulation called as witnesses Mark Snowden and Richard Fancher. The Department offered and had admitted Exhibits 1-6. Subsequent to the final hearing, Counsel for the Petitioner and the two Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact The Respondents, B. W. and Mildred N. Peake, have filed an application for a permit to construct an addition to an existing private pier located on the north shore of Old River, adjacent to Innerarity Point. It will be centered on a lot located at 878 Innerarity Road, Pensacola, Florida. B. W. and Mildred N. Peake are the owners of the property where the existing dock is located. On December 23, 1982, the Department of Environmental Regulation by letter notified the applicants that the Department intended to grant the permit application. The Petitioner, Mrs. A. K. Doyle, filed an objection to the issuance of that permit. Mrs. Doyle's property is adjacent to the eastern boundary of the Peake property. The application, as modified, seeks to extend the existing pier by sixteen (16) feet. The existing pier is five feet wide and approximately 185 feet long. The addition is to be constructed of the same materials used in the existing pier and will rest on treated pine pilings. The purpose of the pier is to allow temporary berthing for two additional sailboats. There will be no fuel pumps or toilets on the pier. The pier will be used for private purposes only and will involve no commercial operation. Upon completion of the addition, the Peake's pier would be approximately 110 feet from the Intercoastal Waterway Channel and will not create a hazard to navigation. The Peakes have obtained approval from the U.S. Army Corps of Engineers to construct the pier extension. They have not obtained consent from the Department of Natural Resources to use the state owned lands beneath the proposed addition. The addition to the pier will total approximately 80 square feet and will require 4 pilings. There is currently an extensive grass bed consisting of Cuban Shoalweed approximately 90 feet from the shoreline. Jetting of pilings for the addition will occur approximately 103 feet from the closest point of this grass bed. The proposed addition will have no significant impact on the existing grass beds. The grassbeds in this area stop growing at the edge of the photic zone or that point at which sunlight can no longer penetrate the water. At this site, this occurs at a depth of 1.5 meters or approximately 4.8 feet. The depth of the water at the site of the proposed addition is from 8 to 10 feet. There are no grasses growing in the immediate area of the project site. The grass beds in the area contain a wide diversity of benthic microinvertebrates. The number of species and density of benthic microinvertebrates were less at the addition site. The proposed addition will not interfere with marine life or destroy marine productivity. The substrate at the immediate project site consists of coarse sand with some fines associated with the sand. During the piling installation, these fines will become suspended in the water, thus creating turbidity. The use of a turbidity screen or control device during construction would limit turbidity to the project site with very temporary, limited violation of water quality. The project will have no deleterious effect on water quality. All boats using the pier will have Coast Guard approved marina heads. These marine heads will not discharge into the waters in the area. Garbage from the boats will be disposed of at the Peake home adjacent to the pier. The pier is presently being used to permanently moor one sailboat.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the applicants, B. W. and Mildred N. Peake, to construct an addition to their existing dock in accordance with the application as modified. The permit should contain all the specific conditions included in the Department's letter of intent dated December 23, 1982. In addition, the necessary approval from the Department of Natural Resources should first be obtained. DONE AND ORDERED this day of April 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 27th day of April 1984. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 E. Gary Early, Esquire Division of Administrative Hearings Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ralph A. Peterson, Esquire Post Office Box 12950 Pensacola, Florida 32576 James M. Wilson, Esquire Post Office Drawer 1832 Pensacola, Florida 32598
Findings Of Fact Vroom acquired an existing, incomplete condominium project of 96 units on the ocean side of U.S. Highway #1 at mile marker, 83.2, Islamorada, Florida. The project, now called Beacon Reef, is to be finished as a luxury facility with complete recreational facilities, including those for water-oriented sports. In February, 1980, Vroom filed a short-form application with DER for a permit to construct a private 425 foot x 6 foot pier for the condominium with four-finger piers on "T" sections, ranging in length from 335 feet to 240 feet, spaced 55 feet apart, and install 97 pilings, a maximum 450 feet seaward so as to provide one boat slip for each unit. The old existing dock will be removed (DER #3). A subsequent revision (DER #4) aligned the proposed pier with the one of Petitioner, who owns the property adjacent to the south. Following DER's appraisal (DER #1 and #2) and Vroom's agreement to use a small boat and motor to move the construction barge (DER #6), DER noticed its intent to issue the permit on May 19, 1980 on the finding that, pursuant to Sections 253.123 and 403.087, Florida Statutes, and Section 17-4.07, Florida Administrative Code, "the project will not adversely impact navigation, marine resources, nor water quality, providing the following stipulations are met: Construction shall not be initiated until Department of Natural Resources' approval is received. Construction barge shall be maneuvered in position with a small fifteen foot boat with a small 50 hp or less outboard motor. There shall be no fuel nor sewage pump-out facilities. No live-aboards shall be permitted. A day marker shall be placed approximately 30 feet waterward of each end of the outward "T" section to define and mitigate destruction of adjacent shallow water areas. Vroom accepted these restrictions and at the hearing, further agreed to place channel markers from the pier to the closest navigable point about 1/2 mile away so as to eliminate one of the concerns of the South Florida Regional Planning Council (DER #7). DER's two environmental specialists' testimony and appraisal concluded that the construction and use of the pier would not adversely impact on the water quality or biological resources nor interfere with navigation. The substrata is generally hard rock with scattered turtle grass and cuban shoal- weed found seaward as the water depth increases. This type of bottom is called "flats" as it is shallow with a uniform or gradually-sloping bottom; it is the typical feeding ground for one of the popular sports fish called Bonefish. Although these fish are easily frightened by the noise of a boat engine, the record does not reveal that this is harmful to the fish. The Petitioner speculated, surmised or opined that the use of the pier would damage or have an adverse impact on the water quality and marine resources, and interfere with navigation. However, beyond the allegations, no evidence was presented in support of these contentions.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Environmental Regulation grant the application of Vroom International, Inc. to build a pier in connection with its Beacon Reef Condominium, Islamorada, Florida, subject to the restrictions stated in the intent to issue, together with the requirement that markers be installed and maintained on either side of a channel connecting the pier and the closest and best navigable waters. DONE and ENTERED this 16th day of October, 1980, in Tallahassee, Florida. HAROLD E. SMITHERS Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Richard H.M. Swann, Esq. GASTON, SNOW, ET AL. 2809 Ponce de Leon Boulevard Suite 550 Coral Gables, FL 33134 H. Ray Allen, Esq. Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Fred Tittle, Esq. Post Office Drawer 535 Tavernier, FL 33070 Vroom International, Inc. c/o John P. Wilson Upper Keys Marine Construction Box 18AAA Key Largo, FL 33037 =================================================================
Findings Of Fact The Parties. Respondent, Springs on Kings Bay (hereinafter referred to as "Springs"), is a condominium association representing 12, single-family, condominium owners located on Hunter Spring Run. Hunter Spring Run is a tributary of Crystal River. The Springs and Hunter Spring Run are located in Citrus County, Florida. Respondent, the Florida Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida with responsibility for, among other things, dredge and fill permits involving Florida waters. The Petitioners are the owners of real property located north of the Springs' property. The Petitioners' property is located at the waterward edge of North West Third Street, Crystal River, Citrus County, Florida. By water, the nearest point of the Petitioners' property to the proposed facility is approximately 2,600 feet. The evidence failed to prove that access to Crystal River from the Petitioners' property involves use of Hunter Spring Run, that the Petitioners are required to pass near the proposed facility or that the Petitioners ever pass near the proposed facility. The Springs' Application for Permit. On or about December 31, 1991, the Springs applied to the Department for a permit to construct a 1,423 square foot private docking facility with twelve slips, and a 564 square foot private docking facility with six slips. Both facilities were to be located on Springs' property located on Hunter Spring Run. Due to Department concerns, the proposed project was subsequently modified to delete the six-slip docking facility and reduce the twelve-slip facility to 975.6 square feet. The Springs also agreed, as a condition for obtaining the permit, to establish a conservation easement of approximately 504 feet of lineal shoreline in and adjacent to Hunter Spring Run. On or about July 22, 1993, the Department issued a notice of intent to issue the permit sought by the Springs. A copy of the proposed permit, permit number 09-207432-3, was attached to the notice of intent to issue. On or about August 5, 1993, the Petitioners filed a letter challenging the Department's decision to issue the permit. The Proposed Facility. Hunter Spring Run is a Class III water body designated as an Outstanding Florida Water. The proposed facility will consist of a 5' X 30' access walkway, 4' X 119' main pier constructed parallel to the shoreline, two 4' X 18" access piers and two 3' X 39" finger piers mounted on 12-inch diameter pilings. The piers will be constructed on pilings driven into the river bottom. The proposed facility will serve residents of the Springs. One boat slip per resident is proposed. The site of the proposed facility is in water with a depth greater than 3 feet. Submerged aquatic vegetation consists primarily of hydrilla verticillation, which is not a native species. The area where the facility is to be constructed is substantially void of other aquatic vegetation. The shoreline in the area of the proposed facility is relatively steep with a limited transitional area of wetland type species. Water depth drops off relatively quickly to approximately 4 feet. Hunter Spring Run is approximately 160.69 feet wide at the proposed facility site. The proposed facility will extend over approximately 24.3 percent of the width of Hunter Spring Run at the site. The main navigation channel of Hunter Spring Run is primarily located adjacent to the opposite shore from the proposed facility. The property in the immediate area of the Springs' property is generally developed for single-family and multifamily residences. Impact on Water Quality Standards. The weight of the evidence proved that the proposed facility will not lower the existing ambient water quality of waters of the State of Florida. The evidence presented by the Department and Springs concerning the impact on water quality standards was uncontroverted by the Petitioners. While there will be some turbidity associated with installation of pilings, it will be temporary, lasting only a few days, and steps will be taken to minimize the turbidity. A turbidity curtain will be utilized. Boat maintenance is prohibited at the facility by the conditions of the proposed permit. Impact on Public Health, Safety and Welfare or the Property of Others. The weight of the evidence proved that there will not be any adverse impact on public health, safety or welfare, or the property of others. By agreeing to an easement of approximately 504 feet of lineal shoreline, the potential impact from docks in the area will be substantially reduced. Section 403.813, Florida Statutes, exempts the construction of single- family docks of 500 square feet or less under certain circumstances. Several such docks could have been constructed along the area subject to the easement. Potentially, a dock could be built every 65 feet of shoreline. By granting the easement, the potential number of docks and slips along Hunter Spring Run has been reduced. Therefore, the proposed project will be of benefit to public health, safety and welfare, and the property of others. While the Petitioners suggested that the proposed facility will have an adverse impact on the "property of others," they failed to prove what that impact will be. In particular, the Petitioners suggested that the facility will have an adverse impact on their property apparently because the Petitioners believe that the construction of the facility will reduce the number of slips they may be allowed to construct or maintain at their property. The evidence, however, failed to prove that this "economic" impact will materialize, or is likely to, or that, if it does, such impact should prohibit the Department from issuing the permit. Affect on Conservation of Fish and Wildlife, Including Endangered or Threatened Species, or Their Habitat. The weight of the evidence proved that the impact on conservation of fish and wildlife, including endangered or threatened species will be minimal. The Petitioners offered no evidence to counter this finding. Crystal River is frequented by manatees. Manatees are an endangered species. The area where the proposed project will be located, however, has not been designated by the U.S. Army Corps of Engineers as an essential habitat (an area where manatees breed and feed) for manatees. The possibility of any impact on manatees will be minimized. Construction will be allowed at a time of year intended to avoid impact on the manatees. Construction precautions will be taken to avoid any impact on manatees. If a manatee is sighted during construction, all construction must cease until the manatee leaves the area. Boats will be required to observe a "no wake/idle speed" at all times to reduce the potential of harming manatees. Logs of sightings of manatees are to be maintained and reported to the Department. Signs with information concerning manatees will be posted during construction and after construction. The design of the proposed facility will minimize potential impacts on manatees. There is a lack of vegetation to attract feeding by manatees or fish or other wildlife near the proposed project. The Springs has a former Department of Natural Resources consent of use for the project. Affect on Navigation and the Flow of Water and Whether Harmful Erosion or Shoaling will be Caused. The evidence proved that there will not be any negative impact on navigation or the flow of water and that there will not be any harmful erosion or shoaling caused by the proposed project. These will be adequate water depth and width between the furthest point of the dock and the far shore for the passage of boats. Boats are prohibited by the permit conditions to be moored outside of designated moorings. This will reduce the possibility of prop dredging. The conservation easement will also reduce the potential for harm to navigation which could occur if single-family docks were constructed along the shore of the easement. The conservation easement also will insure that 504 linear feet of shoreline remains protected and natural. Affect on Fishing or Recreational Values or Marine Productivity. The proposed project will increase recreational use of the area. It will not adversely impact marine productivity or fishing. I. Temporary or Permanent Project. The proposed project is for a permanent structure. Affect on Significant Historical and Archaeological Resources. There will not be any impact on significant historical or archaeological resources. Affect on the Current Condition and Relative Value of Functions Being Performed by Areas Affected by the Project. The proposed project will not adversely affect current conditions or the relative value of functions being performed by areas affected by the project. Cumulative Impact. Cumulative impact from the proposed project in the area should be minimal. Because of the conservation easement, the cumulative impact of the proposed project will be in the public interest due to the decrease in the potential number of boat slips in the area. There should not be any cumulative impacts to water quality or the public interest standards of Section 403.918(2), Florida Statutes. Standing of the Petitioners. The Petitioners failed to prove that their interest in the proposed project is any greater than any member of the public. The Petitioners' property is located approximately 2,600 feet away from the proposed project. A small peninsula, on which the Springs' property is located, separates the proposed project from the Petitioners' property. The Petitioners did not offer evidence to prove that they use the area where the proposed project is located or that any use for the proposed project will directly impact their property. Ms. Toms suggested that the proposed project will reduce the number of slips the Petitioners may construct or maintain at their property. The evidence, however, failed to prove that the proposed project will have any impact on such construction or maintenance (if allowed) on their property.
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 dismissing the petition in this case and issuing permit number 09-207432-3 to Springs on Kings Bay. DONE AND ENTERED this 6th day of April, 1994, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1994. APPENDIX Case Number 93-5724 Springs and the Petitioners have submitted proposed findings of fact. The Department has adopted the proposed findings of fact of the Springs by reference. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioners' Proposed Findings of Fact 1 These proposed findings are not supported by the evidence accepted during the final hearing of this case. Most of these proposed findings are also not relevant to this proceeding. The issue of who owns the Petitioners' property cannot be resolved in this case. 2-3 Not a proposed finding of fact. These paragraphs consist of arguments of law. Those arguments are not relevant to this proceeding. 4 Not supported by the weight of the evidence and not relevant. The Springs' Proposed Findings of Fact Accepted in 1, 4-6 and 9. Accepted in 1-2, 9 and hereby accepted. Accepted in 6 and 10. Accepted in 12-13, 22 and hereby accepted. 5 Accepted in 11, 18-19, 26-30 and 33. There was no proposed finding of fact 6. Hereby accepted. Accepted in 1, 17 and hereby accepted. Accepted in 14-16. Accepted in 2, 23, 47-48 and hereby accepted. Accepted in 11, 13, 18-19 and hereby accepted. Accepted in 25 and hereby accepted. Accepted in 25, 28 and hereby accepted. Accepted in 31-32 and hereby accepted. Accepted in 33-38 and hereby accepted. Accepted in 34. Accepted in 38. Accepted in 33 and 46-48. 19 See 23 and 46-48. 20 Accepted in 23 and 43-48. 31 Cumulative. COPIES FURNISHED: Harold and Charlotte Toms 11364 West Indian Woods Path Crystal River, Florida 34428 Clark A. Stillwell, Esquire BRANNEN, STILLWELL & PERRIN, P.A. Post Office Box 250 Inverness, Florida 34451-0250 Keith C. Hetrick Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues to be resolved in this proceeding concern whether the applicant for the dredge and fill permit at issue has provided reasonable assurances that the project involved will comport with state water quality standards and public interest standards for purposes of Section 403.918(1)&(2), Florida Statutes. Specifically, it must be demonstrated that the applicant has provided reasonable assurances that the project is clearly in the public interest for purposes of Section 403.918(2), Florida Statutes, and related rules; whether Citrus County has standing to challenge the project; and whether the Department is required or authorized to enforce the provisions of the Citrus County Comprehensive Plan.
Findings Of Fact Kline filed an application for grant of a permit to construct a private boat dock with a roof, designed to cover a boat, in the Withlacoochee River. The Department has permitting jurisdiction, pursuant to Chapter 403, Florida Statutes, and related rules, inasmuch as the Withlacoochee River is a natural water body designed as Class III waters of the state, as well as an Outstanding Florida Water. The landward extent of the Department's jurisdiction is the wetland line depicted in Kline's exhibits 1 and 2 in evidence and in the testimony of Rose Poynor. The proposed installation consists of a private boat dock with boathouse or cover measuring 22 feet by 43 feet mounted on 12-inch diameter pilings. The boat cover roof would be approximately 14 feet above the surface of the Withlacoochee River at mean high tide. Portions of a presently- existing dock will be removed, leaving behind a walkway and terminal platform 6 feet wide and extending 6.5 feet from the wetland jurisdictional line out to the boat cover facility. The dock presently extends 6.5 feet from the wetlands jurisdictional line riverward. The existing dock shades the shoreline, including a non- jurisdictional area on the top of the bank. Kline proposes to remove a portion of this existing dock consisting of an area 10.75 feet by 12 feet on one side of the line and approximately 10.75 feet by 5 feet on the other side. This will include removing portions of the existing dock landward of the jurisdictional wetland line. The shoreline area that will be exposed upon removal of portions of the existing dock will be replanted with native plant species. The entire length of Kline's shoreline along the top of the existing bank will be cleared of nuisance species and planted with the required number of native plant species delineated in specific condition #18 of the intent to issue. More plants will be planted as necessary in order to maintain a 90 percent survival density of the required plants over a five-year period as specified in specific condition #21. Kline will also grant a perpetual conservation easement to the Department for the entire length of the shoreline extending a minimum of 4 feet waterward from the top of the bank. The conservation easement will insure protection of the planted shoreline and prevent any opportunity of shoreline hardening through construction of a seawall or other structures. The project will be constructed using best management practices for erosion control, including having the pilings driven from a barge over a period of three to five days so as to minimize the generation of turbidity. A floating turbidity curtain will also be used so as to surround the entire project area to prevent migration of turbidity off the site and which will not interfere with navigation. The total construction time is estimated to be three weeks. During construction, specific actions will be taken to avoid any impacts to manatees traveling the Withlacoochee River near the property. A turbidity curtain will not block manatee entry or exit from essential habitat and will be made of material in which manatees cannot become entangled or injured. Boats in the project area will operate at "no wake/idle speeds" at all times. Upon the sighting of a manatee, all construction activities will cease until the manatee has left the project area. Logs and details of manatee sightings will be maintained and reported to the Department's Marine Mammal Section. During construction, temporary signs will be installed and maintained; and after completion of the project, permanent signs and a permanent informational display will be located in areas specified by the Department's Marine Mammal Section. The specific actions to be taken to avoid impacts to Manatees during construction were developed by the Department's Marine Mammal Section and are imposed on the proposed project in specific condition #13 of the intent to issue as a condition upon a grant of the permit, and Kline has agreed to these conditions. Kline's property is located on the Withlacoochee River in Inglis, Levy County, Florida. The proposed project extends waterward of Kline's shoreline and the waterward portion of the project is located within the boundaries of Citrus County. Kline's property is approximately 7 to 8 miles from Yankeetown, which is downstream on the Withlacoochee River from Inglis. Yankeetown is located on the lower reaches of the Withlacoochee River near the point where it enters the Gulf of Mexico. The U.S. 19 Highway bridge is 900 to 1,000 feet upstream of the Kline property. Kline's shoreline is relatively steep with areas of exposed limestone. Vegetation along that shore consists of red maple, laurel oak, and other identifiable wetland species. Water depth drops off relatively quickly varying from 6 to 10 feet at the edge of the existing dock. The river is approximately 121.5 feet wide at the project site. The project's construction will extend approximately 21.7 percent of the width of the river at the project site after completion. On the opposite shore from the Kline property and project site, there is also a boat dock with a small boat basin which was dredged landward into the river bank at some time in the past. On the opposite shoreline, a fallen log projects into the river which does impede navigation to some extent on that side of the river but it is an easily removable obstruction. The log presently remains just below the water surface at high tide. The Cross Florida Barge Canal and spillway are located approximately 2 miles upstream from the Kline property and eastward from the U.S. 19 bridge. An island exists in the river around a bend downstream from the Kline property. The island prevents the passage of boats larger than 16-foot beam around the island and upriver toward the Kline property. The Withlacoochee River is a slow-moving, tannic-acid tinged river and historically was extensively shaded by a tree canopy. In the last half century or so, many of the trees have been removed to accommodate shoreline development which is characterized primarily by vacation homes, weekend retreats, and retirement homes with attendant docks, boathouses, seawalls, and similar private river and boat access facilities serving residential owners. The docks and boathouses existing in the river occur on both sides of the river from the Gulf of Mexico up at least as far as the U.S. 19 bridge. The historical character of the river has thus changed in the last several decades such that extensive numbers of docks, seawalls, boathouses and residences presently characterize the river margin. Water Quality Impacts The water quality impacts of this project will be minimal. The dock and boathouse installation will be placed upon pilings inserted into the river bottom. Installation of the pilings during construction will cause some temporary turbidity. The temporary turbidity that may be occasioned as a result of installation of the pilings will last only a few days at most, and a turbidity curtain will be used to control the turbidity, to prevent it from disbursing over a large area of the river. Turbidity curtains are a well- recognized, proven method for minimizing short-term water pollution violations due to turbidity occasioned by the setting of pilings for such projects. Requiring the applicant to re-vegetate the shoreline and maintain the natural vegetation will enhance natural shoreline pollution up-take processes, as well as erosion prevention. Water quality will be maintained, therefore, and possibly improve somewhat at the site after the re-vegetation of the shoreline and littoral margin. No other water quality parameters were shown to be potentially violated by the installation proposed. So long as no boat maintenance operations which involve the potential spillage of oils and greases, solvents, or bottom paint into the water are practiced, no violations were shown to potentially occur. The permit, if granted, should be restricted against such activities. Public Interest Standards and Considerations The issues and inquiry concerning the public interest standards as to this project related to the question of impacts on recreational uses of the river and navigational uses, as well as the issue of any impacts on manatees. The Department's biology expert, as well as manatee experts presented by the Intervenor, established that the Withlacoochee River is frequented by manatees, but is not a warm-water habitat for manatees. Manatees use the Withlacoochee River during the spring and summer months, but rarely during the winter because it is not a warm-water habitat. The river has been designated as an essential habit for manatees, however. This means that the area is used by them as a food source and as a breeding and rearing area. Although manatees have been seen throughout the length of the river and the immediate vicinity of the project site, the animals mostly use the estuarine mouth or lower reaches of the river. The project on the Kline property is approximately 8 miles upstream from the mouth of the river. There is no question that boats pose definite hazards to manatees through striking manatees with boats and propellers. Boats have been the cause of manatee deaths in Citrus County in the past. Manatees are an endangered species. The Withlacoochee River currently has speed zone regulations involving the requirement of boat operation with no wake, and Citrus County imposes certain dock design criteria on residents seeking to construct new boat docks. The Intervenor's manatee experts participated in the development of these dock design criteria and agree that general adherence to these criteria minimizes potential impacts on manatees. The expert witnesses produced by the Intervenor were mainly concerned with projects of this type causing possible impacts on manatee travel patterns if the dock projects too far from the shore, as well as potential loss of food sources from shading of the water bottom and the question of attendant boats adhering to speed zone regulations. The evidence establishes that the proposed dock will not exceed in a significant way the dock design criteria which the manatee experts agree would minimize any potential impacts on the animals. The experts testifying for the Intervenor had never visited the proposed project site and are unable to do more than make general observations and conclusions regarding any potential adverse impacts to manatees that the proposed project might have. One of the Intervenor's witnesses agreed, however, that the removal of portions of the existing dock structure would help revitalize aquatic vegetation to increase sunlight penetration which would benefit shoreline vegetation and the manatee habitat. The proposed project was shown not to affect manatee travel patterns and it will not have adverse shading impacts on aquatic vegetation due to the design of the facility, which will allow maximum sunlight penetration of the water column. Appropriate speed zones will be maintained during and after construction with the aid of signage warning Kline and the boating public of the need to adhere to "manatee friendly" boat operation practices. The testimony of both Kline and the Petitioner's witnesses establishes that both residents along the river and visitors frequently boat on the Withlacoochee River and there is a significant amount of boat traffic. Certain geographical restrictions such as river width, already existing dock and boathouse structures, the U.S. 19 Highway bridge, and the island between the Kline's property and the mouth of the river at Yankeetown act to limit the size of boats that can traverse this section of the river, as well as their speed. The witnesses agreed that two 16-foot beam boats could safely pass each other in front of the Kline dock even after completion of the project. The proposed project will be visibly marked with reflectors around its entire parameter with a minimum of one reflector on each piling as required by specific condition #15 in the intent to issue the proposed permit. Testimony from licensed boat captains presented by both the Petitioner and Kline establishes that reflectors are a normal requirement and are adequate for structures of this type and size. Kline presented evidence from a longtime native of Inglis, Bill Hart, that a structure with similar dimensions to the proposed project is located in the river at a point where the river is only 95 feet wide, significantly narrower than the width at the project site and yet does not obstruct navigation. That structure also is marked with reflectors and was shown not to pose a hazard to navigation. Witnesses adduced by Petitioner expressed concern that during high tide, the Kline's boat would be moored outside the boat cover and further decrease the river width available for navigation. The evidence showed, however, that Kline's boat would only be moored at the designated mooring location as required by specific condition #14 of the intent to issue. If necessary, Kline will be required to move the boat and anchor it down the river in an area of sufficient width if it should prove that his boat cannot be accommodated under the boat cover during some high tide conditions. Petitioner's witnesses also expressed concern that boats could not turn around in front of the Kline property when the installation is completed. The evidence showed, however, that boats can travel downstream and turn at the island or travel upstream to the U.S. 19 bridge. The U.S. 19 bridge pilings are approximately 20 feet apart which allows easy boat passage between them. The presence of Kline's boat will not represent any increase in boating traffic on the river. The previous owners of the same property used an existing dock to moor their boat. The evidence establishes that the proposed project will not cause a serious impediment to navigation more than is already the case and will not constitute a navigational hazard. The Petitioner's witnesses also expressed fears concerning reduction in the aesthetic quality of the view of the river and its banks. The river still enjoys some portion of tree canopy but is now largely characterized by man-made structures along both banks. Most residents in the vicinity of the Kline property already have docks, seawalls and/or boathouses. The installation of the proposed dock and boathouse or cover will not in any significant degree further impair the aesthetic quality of the view of the river and its banks from its present character. Cumulative Impacts Testimony from the Intervenor's expert witnesses showed concern regarding cumulative impacts of the proposed project on manatees and the "precedent" of granting Kline a permit. The Intervenor's witness feared that many people would apply for more boat docks on the Withlacoochee River and that Kline's project would set a bad precedent, if granted, as to cumulative impact. No evidence was presented to substantiate these concerns, however, and there was no showing that more such permit applications are pending before the relevant regulatory agency. The Department's expert witness established that no cumulative impacts could be expected from this project with regard to water quality, as well as the various public interest standards embodied in Section 403.918(2),(1-7), Florida Statutes. The Department itself has not received any other applications for similar projects in the vicinity.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that a Final Order be entered by the Department of Environmental Protection directing that the Respondent/applicant, William Kline's application for the above-referenced dock terminal platform and boat cover be granted under the conditions found hereinabove and contained in the intent to issue. DONE AND ENTERED this 29th day of November, 1993, in Tallahassee, Florida. P. MICHAEL RUFF 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 29th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-264 Petitioner's Proposed Findings of Fact The Petitioner does not state separate proposed findings of fact. Any proposed factual findings are inextricably entangled with extensive argument on the quantity and quality of testimony and other evidence and attempts to argue the Petitioner's position from the standpoint of documents referenced in the proposed findings of fact without an indication whether those documents are admitted into evidence or not. The Recommended Order can only be based upon testimony and evidence actually admitted and subject to cross-examination at hearing. The relevant and material issues raised in this case are delineated in the Recommended Order and have been fairly addressed and ruled upon and to the extent that the Petitioner's proposed findings of fact are in agreement with the findings of fact enunciated by the Hearing Officer, they are accepted. To the extent that they are not they are subordinate thereto and not supported by preponderant evidence and are rejected. Citrus County (Intervenor) Proposed Findings of Fact 1. Accepted to the extent not inconsistent with the findings of fact made by the Hearing Officer concerning standing. 2. Accepted to the extent not inconsistent with the findings of fact made by the Hearing Officer concerning standing. 3-7. Accepted. 8. Rejected, as irrelevant and immaterial. This is a de novo proceeding and the evidence adduced by a party, including the Department of Environmental Regulation, now known as the Department of Environmental Protection, at hearing and subject to cross-examination, is the only evidence or information upon which findings of fact and conclusions of law may be made. 9-10. Rejected, as irrelevant and immaterial. This is a de novo proceeding and the evidence adduced by a party, including the Department of Environmental Regulation, now known as the Department of Environmental Protection, at hearing and subject to cross-examination, is the only evidence or information upon which findings of fact and conclusions of law may be made. 11. Rejected, as not in accord with the preponderant weight of the evidence and for the reason that these are de novo proceedings and the quantity, quality, and credibility of testimony and evidence adduced at hearing is the basis for findings of fact and conclusions of law adjudicating this proceeding. 12. Rejected, as not in accord with the preponderant weight of the evidence and for the reason that these are de novo proceedings and the quantity, quality, and credibility of testimony and evidence adduced at hearing is the basis for findings of fact and conclusions of law adjudicating this proceeding. 13-14. Rejected, as immaterial and irrelevant in this de novo proceeding involving Chapter 403, Florida Statutes, and rules promulgated thereunder. Accepted, but not itself materially dispositive of the issues to be adjudicated in this proceeding. Accepted, but not materially dispositive of the issues material and relevant to adjudication of this proceeding. Rejected, in accordance with the ruling on motion in limine in this proceeding as immaterial, as not supported by the preponderant weight of the evidence and subordinate to the Hearing Officer's findings of fact. The competent, substantial evidence of record adduced at the hearing shows that the water quality considerations and public interest considerations embodied in Section 403.918(1)&(2), Florida Statutes, Section 403.919, Florida Statutes, and rules promulgated thereunder will be complied with by the project, as it is described in the evidence adduced at hearing. Rejected, as contrary to the preponderant weight of the credible evidence. Respondent Kline's Proposed Findings of Fact Any proposed findings of fact contained in the "Recommended Order" submitted by Respondent Kline cannot be separately and independently ruled upon. The document denominated "Recommended Order" submitted by Respondent Kline contains discussion and argument concerning the quantity and quality of the testimony in evidence, legal argument and, at best, is a discussion of the testimony of various witnesses, rather than coherent proposed findings. Therefore, the proposed findings of fact submitted by Respondent Kline to the extent they are proposed findings of fact are rejected as being incapable of coherent, cogent, separate rulings. Respondent Department of Environmental Regulation's Proposed Findings of Fact The proposed findings of fact submitted by the Department of Environmental Regulation, now known as the Department of Environmental Protection, to the extent they are consistent with the proposed findings of fact of the Hearing Officer are accepted. To the extent that those proposed findings of fact are inconsistent with those made by the Hearing Officer on the same issues and subject matter, they are rejected as being subordinate thereto or immaterial or not in accord with the preponderant weight of the evidence. COPIES FURNISHED: Mrs. Sarah Berger Post Office Box 83 Inglis, Florida 34449 William A. Kline, Jr. 398 South Inglis Avenue Inglis, Florida 34449 Francine M. Ffolkes, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Richard W. Wesch, Esquire Assistant County Attorney 107 North Park Avenue, Suite 8 Inverness, Florida 34450 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Ocean Reef Club, Inc., is the developer of certain lands located on the northern end of Key Largo, Monroe County, Florida. The development began as a fishing village in the 1940's and now includes private residences, a marina, and residential docking facilities. Ocean Reef applied in 1982 to DER for a permit to construct a residential docking facility known as Fisherman's Wharf. The facility was to provide a number of parallel docking spaces with an access channel following an existing tidal creek to the northeast connecting to a waterway known as the Harbor House Basin. The permit was issued on October 5, 1984, authorizing construction of a 4-foot wide parallel dock approximately 600-feet long, the dredging of a turning basin through the excavation of approximately 1800 cubic yards of material and the dredging of some 200 cubic yards from an existing tidal creek along a 480 lineal foot length of the creek to a width of 5-feet; all located in No Name Creek, a tidal creek connecting Harbor House Marina to Pumpkin Creek, in Card Sound, Key Largo, Monroe County, Section 11, Township 59 South, Range 41 East. That permit was extended by a letter dated June 10, 1987, and now carries an expiration date of October 5, 1989. The existing permit held by Ocean Reef Club, valid until 1989, would allow the direct dredging of a tidal creek vegetated by seagrasses over a 400- foot length yielding a direct dredging of seagrasses of some 3000 square feet. During the two-year processing time leading to issuance of the permit, Ocean Reef sold a portion of the property comprising the access channel to third parties who now will not grant their permission authorizing channel construction across their property. As a result, in 1987, Petitioner requested a major modification to permit no. 440601649. Although Petitioner attempted to show that its change of plans had been inconsistently processed by DER as a new permit application when DER was obligated to treat it as a modification of a prior permit which would require no new application, processing, or permit, Petitioner was unable to do so. Petitioner's expert professional land surveyor, Joseph Steinocher,, concurred with DER witnesses Kelly Jo Custer and David Bishof that the Ocean Reef plan changes were so significantly altered as to constitute a wholly new project. Steinocher specifically indicated it was a "significant change in that there is no relationship between the two," and Custer, DER's marina permitting specialist, testified that DER's consistently applied policy is to require all such significant permit modifications to be processed de novo as wholly new permit applications because to do otherwise would not be in the public interest. Custer was also qualified as an expert in marine biology and water quality, and from Custer's viewpoint, the changed plans constitute a new and different project for many reasons but primarily because the project impacts on water which have been designated Outstanding Florida Waters (OFW) during the intervening years. The project revision/new permit application plans changed the configuration of the turning basin, providing for a kidney-shaped upland basin with the utilization of an additional portion of No Name Creek, extending Southeasterly toward the entrance of a water body known as Fisherman's Cove. Because the project initially proposed disturbance of wetlands and dredging of mangroves, a mitigation area of some 10,300 square feet was included in the plan. The original proposal called for the straightening of an oxbow in the existing tidal creek and the placement of fill through approximately one-half the reach of the tidal creek to gain access to the dredge area with the fill to be removed after construction. During the processing of the latest permit application, adverse comments were received from DER staff members, and the Petitioner modified the application to eliminate the straightening of the oxbow. The pending proposal involves the construction of 24 boat slips along a floating dock, the installation of boulder rip-rap, and the placement of culverts to allow access to a central island to remain after construction of the docking facility. As a result of prior permit agreements between the parties, Ocean Reef Club had conveyed approximately 730 acres to the State of Florida Board of Trustees of the Internal Improvement Fund by special warranty deed dated March 17, 1982. Petitioner asserted but failed to prove up that all construction involved in the pending proposal is landward of those lands either conveyed by that special warranty deed or otherwise in the control of the State of Florida and in fact would be wholly upon its own property. Even had the private property encapsulation of the construction been established, Petitioner's registered land surveyor admitted that the tidal creek entrance is within the limits of the deed to the State of Florida. Access for the proposed 24-slip facility will be through the existing tidal creek that has water depths ranging from minus 2.2 feet to in excess of minus 8 feet at low tide. The earlier proposal would have required only a small portion of the natural creek to be used by motor boats. The project contemplated in 1984 and the one which is the subject of the present litigation are not comparable either biologically nor legally. It is noted that one condition of the 1984 permit even required navigational barriers to be placed at the mouth of No Name Creek. Accordingly, it is specifically found that the significant plan changes render the pending Ocean Reef permit application truly a new project rather than a minor modification as contemplated by Chapter 17-12 F.A.C. Petitioner also attempted to demonstrate that DER's denial of the new permit application was inconsistent with its issuance of permits for similar marina projects in other locations. Neither these allegedly similar applications, supporting plans therefor, nor permits were offered in evidence for comparison. Moreover, for one reason or another, some of the named projects differed so much from the subject application that one witness, Kenneth L. Eckternacht, expert in hydrographic engineering, physical oceanography, and navigation, characterized the comparison as "apples to monkies." Some projects could only be compared to the applicant's proposal by one similar component, i.e. elimination of, and mitigation with regard to, mangroves. For this reason, Dr. Snedeker's limited testimony in this regard is discounted. Some projects could not be conclusively identified as within OFW. None involved the use of the type of creek system involved in the instant project. Ocean Reef Club also could not show that the current permit denial is inconsistent with the granting of the permit for the project as previously conceived in 1984, and which project cannot now be constructed due to Ocean Reef's sale of certain land to uncooperative third parties. As set forth in the foregoing findings of fact, the two projects are neither biologically nor legally identical or even clearly comparable. Petitioner's assertion that it has proposed special or enhanced mitigation because the existing permit, still valid until 1989 but now impossible to comply with, allows direct dredging of approximately 3,000 square feet while the present permit application, as modified, would not require dredging this 3,000 feet, is rejected. Under the new project plans, the proposed basin will be located immediately adjacent to the existing tidal creek which would provide the navigational access to and from the basin. The connection will be created between the basin and the creek by excavating only 100-150 square feet of mangroves which lie between the creek and the area of the proposed basin. In making the immediately foregoing finding of fact, the testimony of witnesses has been reconciled without imputing any lack of credibility to any of them. Respondent's expert, Kelly Jo Custer, expert in marine biology and water quality and also their agency marina specialist, testified that the cross-hatching on the project plans, if read to scale, confirms the testimony of Petitioner's witnesses that the square footage of mangroves to be removed is 100-150 square feet and that the cross-hatching must take precedence over the raw number copied onto the plans. The wetlands in and around the project site, including No Name Creek, are within an OFW, specifically the Florida Keys Special Waters. The project site is located in North Key Largo, approximately one-half mile north of John Pennekamp State Park within the Atlantic Ocean and adjacent to the Biscayne Bay/Card Sound Aquatic Preserve. All of these waters are Class III surface waters. The marina basin itself will be excavated to a depth of minus four feet mean low water. The 24 proposed boatslips will accommodate moorage of boats as large as 25 feet with a draft of two feet. The marina basin will enhance recreational values and channel, despite its greater depth, and at the inner portions of its several bends. It is also implausible that Petitioner's plans to limit boat size through condominium documents to be enforced through a homeowners association, to install mirrors, signalling devices, and latches at certain points along the creek, and to install tide staffs at creek entrances will prevent potential head-on boat collisions or bottlenecks in No Name Creek. It is equally implausible that these procedures can provide reasonable assurances that there will not be a chronic increase in water turbidity from increased use or damage to biota from propellers and boat impact. The witnesses generally concurred as to the present ecological status of No Name Creek. It contains Cuban shoalweed and turtlegrass scattered with varied density throughout, and especially found in two patches between the proposed basin and the point at which there is a drastic bend or oxbow in the creek. The seagrasses in the creek serve many valuable functions including providing a substrate upon which epiphytes may attach, and providing a source of food and refuge for fish and small invertebrates. Seagrasses also fix carbon which they absorb from the sediments and water column through photosynthesis. Green and red algae found throughout the creek provide habitat and carbon fixing functions similar to that provided by the seagrasses. Corals and sponges are present. Three species of sponge located in the creek are found only in the Florida Keys and nowhere else in the United States. Other creek biota include barnacles and oysters attached to mangrove roots, lobsters, anchovies, needlefish, grunts, mojarres, electric rays, various small fish, and invertebrates. Biological and botanical diversity is an important measure of the creek's rich ecological quality and value. The increased boat use of No Name Creek inherent in this dredging project will adversely affect the quality and diversity of the biota. In a creek of this configuration with mean low tide occurring roughly every 12 hours and NEAP tides approximately every two weeks, direct impact of boat propellers is a certainty. The shallowest parts of the creek tend to be limerock shelves which provide a hospitable substrate for the corals, and which are most susceptible to propeller damage, as are the seagrasses and sponges. Petitioner's assertion through Mr. Castellanos and Dr. Roessler that all boaters can be relied upon to employ tilt motors to best advantage in shallow water so as to avoid overhanging mangrove branches at the creek's edges (shores) and so as to keep their boats within the portion of the channel away from submerged mangrove roots and further can be trusted to proceed slowly enough to allow slow-moving water creatures to escape their propellers is speculative and unrealistically optimistic. Despite all good intentions, the strong currents of this creek and its meandering nature work against the average pleasure boater keeping to the narrow center channel. An even more compelling problem with this project is that increased sustained turbidity from propellers and boat movement within close range of the creek bottom will scour the creek bottom and/or stir up the bottom sediment on a regular basis. Once suspended, bottom particles will be redeposited on the seagrasses, impeding photosynthesis and smothering the sponges and corals. Upon the testimony of Custer, Echternacht, and Skinner, and despite contrary testimony of Roessler and Larsen, it is found that the admittedly strong currents in the creek will not flush the particles sufficiently to alleviate the loose sediment problem, and may actually exacerbate the chronic turbidity problem. Strong currents can create a cyclical situation in which, as the seagrasses die or are uprooted, even more particulate matter is loosened and churned up. Chronic turbidity of No Name Creek has the potential of violating the applicable water quality standards for biological integrity, for turbidity, and for ambient water quality. These impacts will not be offset by Petitioner's creation of 38,100 square feet of new underwater bottom because, although this new area will become vegetated, it will never be as rich or as diverse as the existing bottom. This is also true of the pilings and rip rap in regard to sessile animals/barnacles. Petitioner's plan to replant red mangroves over 10,300 square feet may be sufficient in mitigation of the loss of 100-150 square feet of mangroves by itself (see Finding of Fact 16) but for the foregoing reasons, it does not constitute full mitigation for the new permit application. The project will be of a permanent nature. The project will not adversely affect significant historical and archeological resources.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a final order be entered denying the requested permit. DONE and RECOMMENDED this 20th day of September, 1988, at Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1988. APPENDIX TO RECOMMENDED ORDER DOAH Case No. 87-4660 The following constitute specific rulings upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: 1, 2, 3, 4, 5, 7, 10, 11, 20, and 25 are accepted. Accepted except for the last sentence which is rejected upon the greater weight of the credible evidence as a whole. Accepted but specifically not adopted as stated because the plan calls for destruction of certain mangroves (100- 150 ft.) and the planting of others as opposed to mere "addition." 6, 9, 12, and 27 are accepted in part and rejected in part. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. Although there is testimony to this effect, none of the surveys introduced nor other competent evidence allow the undersigned to definitely plot the description contained in Exhibit P-9 with respect to the current permit application plans. In any case, the proposals are not dispositive of the material issues in this case. The reservation, if it does apply, supports denial of the permit. See FOF 9. 8, 26, 28, 29, and 32 are rejected as subordinate and unnecessary, and in some cases as mere recitation of testimony or unproved. See next ruling. 13, 14, 15, 16, 17, 18, 19, 21, 22, 30, 31 and 33. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony which is reflected in the facts as found. 34-36. Rejected for the reasons set out in FOF 13. Respondent's PFOF 1, 2, 4-6, 9, 11, 14-22, 24-34, 38-43, 48-52, 54, sentence 2 of 57, all except sentence 1 of 59, and 60 are accepted but not necessarily adopted in the interest of space and clarity or because they are cumulative or mere recitations of testimony. 3. Rejected for the reasons set out in FOF 16. Rejected. There was a failure of proof by both parties as to whether the Petitioner would or would not be conducting all activities landward of those lands conveyed. In any case, the proposal is immaterial to the environmental issues dispositive in this case. See FOF 9 and ruling on Petitioner's 6, 9, 12 and 27. Rejected as this was the unproven opinion of Mr. Poppel. No consent judgment is in evidence. 10, 12, and 13. Portions of these proposals are accepted in substance as reflected in the FOF. In part, they are rejected as mere recitation of testimony or as subordinate and unnecessary. The remainder is not accepted due to the relative weight of the credible testimony as reflected as the facts as found. 23, 53, sentence one of 57, and sentence one of 59, are rejected as argument of counsel or statement of position. 35-37, 44-47, 55, 56, 58, and 61-64 are rejected as subordinate, unnecessary or cumulative to the facts as found. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Robert A. Routa, Esquire Post Office Drawer 6506 Tallahassee, Florida 32314-6506 Richard Grosso, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The Petitioners are, and at all times material hereto were, owners of residential real property adjoining the site of the proposed construction to the northwest. The City of Cape Coral is, and at all times material hereto was, the applicant for the permit from the Department of Environmental Regulation for the construction of the proposed project, which is a public boat ramp. This boat ramp is located within the corporate limits of the City of Cape Coral. The Department of Environmental Regulation is, and at all times material hereto was, the agency of the State of Florida which has the authority to issue permits for dredging, filling or other activities of a similar nature to include construction of boat ramps on the shores or banks of navigable waterways of the state. The Caloosahatchee River is a navigable, Class III waterway of the State of Florida. Lands covered by the waters of the Caloosahatchee River at the location of the proposed project are submerged lands of the State of Florida. The City applied to the Department on March 27, 1980, for a permit to construct a boat ramp on the Caloosahatchee River at the Cape Coral Yacht Club. A boat ramp currently is located at the site of the proposed project. The existing ramp was initially partially constructed in 1964, and subsequently a seawall was removed and the two existing seawalls projecting into the water were constructed in 1969. The City's application was initially incomplete, lacking evidence of approval by the City Council. At the request of the Department, the City submitted additional information. The application as originally proposed contemplated dredging waterward of the mean high water line at the proposed project site. The dredged material was to be placed along a beach area adjacent to the proposed boat ramp, and the spoil would have projected waterward of the mean high water line. The proposed project was revised in September, 1980, to delete placing the dredged material on the adjacent beach. The revised project would retain the dredged material landward on the mean high water line until it had dried, at which time it would be removed from the site. After the dredging described above has been completed, the revised project calls for the construction of a concrete boat ramp 42 feet wide and 58 feet long extending approximately 28 feet waterward of the mean high water line of the Caloosahatchee River. In addition, three timber poling walkways at the sides of and in the middle of the boat ramp will be constructed extending waterward of the mean high water line. On May 10, 1980, Dan Garlick, an employee of the Department, conducted a Permit Application Appraisal and concluded the project would have an insignificant impact on biological resources or water quality, and would comply with Chapters 17-3 and 17-4, Florida Administrative Code. Garlick recommended approval of the project. David Key, another employee of the Department, conducted an on-site investigation and expressed concurrence with the findings contained in Garlick's report. Key also noted that no adverse impact on navigation was anticipated as a result of the project. On July 1, 1980, the National Marine Fisheries Service and US Fish and Wildlife Service investigated the proposed project. These federal agencies had no objection to the proposed boat ramp or the dredging aspects of the proposed project. These agencies had no objection to the proposed spoil basis located in the upland area of the site required to dry the dredged material. These agencies objected only to placement of the dredged material on the adjoining beach, which proposal was deleted in the City's revised plan. Petitioners introduced no expert testimony relating to the effects of the proposed project on water quality, marine resources or navigation. Lay testimony was received regarding conditions around the site of the existing boat ramp. Garbage, dead fish and flotsam accumulate at or near the site in the water and on the land. The existing seawalls extending perpendicular from the shore prevent matter in the water from being flushed by the current and tides. In the proposed project the seawall to the right of the existing boat ramp would not be removed. Prior to January, 1981, the existing ramp site was not regularly cleaned by the City. Since that date the area has been cleaned regularly; however, after weekends when the facility is most heavily used there are large quantities of refuse and garbage around the site. The City has requested and received permission from and payment has been made to the Department of Natural Resources for use of sovereignty submerged lands and the removal of 215 cubic yards of fill. After a review of the revised application, the Department gave notice of its intent to issue a permit for the proposed project by letter dated November 10, 1980. The Department based its intent to issue on a determination that the project would not adversely affect navigation, marine resources or water quality, provided the conditions set in the letter were met. The Department's Exhibit 2 is the only documentation presented by the City reflecting the City Council's action on the application. Exhibit 2 contains no findings by the local government that the proposed project would not violate any statute, zoning or ordinances; makes no findings that the project would present no harmful or increased erosion, shoaling of channels or stagnation of waters; and contains no findings that no material injury or monetary damage will result to adjoining land. The Petitioner's Exhibit 1, Minutes of the City Council for the City of Cape Coral Meeting of June 18, 1980, does not reflect that the final reports on the ecological effects of the proposed project were read into the record, and does not reflect that those reports were duly considered by the Council. It was at this meeting that final action on the application for permitting of the proposed project was presumably taken. However, the motion approved at that meeting did not authorize approval of the proposed project nor issuance of the permit. The motion empowered the Mayor to write a letter expressing approval. This motion presumable resulted in the letter of June 17, 1980, the Department's Exhibit 2, which was signed by the City Manager and not the Mayor.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the agency head withhold final action on the application for a reasonable period of time to permit the applicant to cure the procedural defects. Upon curing the procedural defects, the Hearing Officer would recommend issuance of the permits originally requested. DONE and ORDERED this 12th day of June, 1981, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of June, 1981. COPIES FURNISHED: Daniel Sasso, Esquire Post Office Box 1422 1413 Cape Coral Parkway Cape Coral, Florida 33904 Richard Roosa, Esquire 1714 Cape Coral Parkway Post Office Box 535 Cape Coral, Florida 33904 Paul R. Ezatoff, Jr., Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION ERICH SCHLACHTA and ESTER SCHLACHTA, husband and wife, Petitioner, vs. CASE NO. 80-2258 CITY OF CAPE CORAL, PARKS AND RECREATION DEPARTMENT and STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
The Issue Whether Southern Hy Power Corporation (Hy Power) has provided reasonable assurance, based on plans, test results, or other information, that its proposed hydroelectric facility will comply with the Management and Storage of Surface Water (MSSW) statutes and rules of Southwest Florida Water Management District (SWFWMD) and the Wetland Resource Management permit (WRM)/water quality certification statutes and rules of the Florida Department of Environmental Protection (DEP).
Findings Of Fact By Joint Prehearing Stipulation the parties agreed to the following description of the parties and the project: PARTIES: The Department of Environmental Protection (the Department) is a government agency in the State of Florida existing by virtue of Section 20.255, Florida Statutes, and operating pursuant to Chapters 253, 373, 376, and 403, Florida Statutes, and Title 62, Florida Administrative Code. Under an interagency agreement with SWFWMD, the Department also implements Title 40D, Florida Administrative Code. The Department is located in Tallahassee, Florida, and it has a district office in Tampa, Florida, which district includes Levy County. Southern Hy Power Corporation is a Florida Corporation whose principal offices are located at 7008 Southwest 30th Way in Gainesville, Florida. Betty Berger is an interested party with a mailing address of Post Office Box 83, Inglis, Florida. The Campbells are an interested party with a mailing address of 245 Palm Street, Inglis, Florida. Hy Power applied on August 31, 1993, to the Department for a WRM permit/water quality certification to construct a hydroelectric facility on the Inglis By-Pass Channel. The project is located in Section 12, Township 17 South, Range 16 East, within the town of Inglis in Levy County. The facility consists of a powerhouse located on the south side of the channel measuring about 28 feet wide by 115 feet long, drawing water from the Inglis By-Pass Channel, passing it through a single-pit type turbine and discharging downstream of the Inglis By-Pass Spillway Dam. Hy Power applied on August 4, 1998, to the Department for a MSSW permit for the same proposed hydroelectric facility on the Inglis By-Pass Channel. DESCRIPTION OF PROPOSED PROJECT The project involves the construction of an intake structure, powerhouse, and tailrace on a 0.61-acre area located on the south side of the existing Inglis By-Pass Spillway. The facility will take advantage of the existing hydrostatic head that exists on either side of the Spillway Dam, to generate electricity. The powerhouse will be constructed below grade and will contain a single megawatt turbine and generating unit. The intake structure will divert flows from the upstream side of the Spillway Dam through the powerhouse and back into the By-Pass Channel. A small one-story control building and low profile substation will be constructed above grade within the boundaries of the project area. The hydroelectric project is considered to be a "Run of the River" type of facility because it can only use that water which flows down the existing channel. The geometry of the channel restricts flow to a certain amount, therefore the project cannot create or use flows above those that the By-Pass Channel can provide. The overall authority for control of water levels in Lake Rousseau and flow to the lower Withlacoochee River will remain with the DEP. Lake Rousseau was created in 1909 when the Inglis Dam was constructed across the Withlachoochee River for the purposes of hydroelectric generation. The dam impounds over 11 miles of the Withlachoochee River and forms a lake approximately 3,000 to 4,000 acres in size. Prior to construction of the Barge Canal, water released from the Inglis Dam would flow down the lower portion of the Withlachoochee River about 10 miles before entering into the Gulf of Mexico. In the mid to late 1960's the Army Corps of Engineers (ACOE) built a portion of the Cross Florida Barge Canal between the Gulf of Mexico and Lake Rousseau. The canal severed the Withlachoochee River downstream of the Inglis Dam causing its flow to be diverted into the Barge Canal and then into the Gulf. In order to maintain the flow of freshwater from Lake Rousseau to the lower segment of the River, the 8,900-foot long Inglis By- Pass Channel and Spillway were constructed. The resulting downstream flow ensures navigation in the lower portion of the River and sustains its freshwater and estuarine environment. The water level in Lake Rousseau is generally maintained at an elevation of 27.5 feet above mean sea level (msl) by a combination of the Inglis Dam, the Inglis Lock, which is located in the Barge Canal, and the By-Pass Channel Spillway. These water control features are known collectively as the Inglis Project Works. The water levels in the lower Withlachoochee River immediately to the west of the By-Pass spillway are close to sea level. The resulting head provides the potential energy needed to drive the proposed generator turbine. Under normal conditions the majority of water released from Lake Rousseau flows over the Spillway Dam into the lower segment of the River. According to the DEP Office of Greenways and Trails (OGT), the maximum capacity of the existing By-Pass Channel Spillway is 1,540 cubic feet per second. The hydroelectric project will divert whatever flow is allowed around the existing spillway through the turbine and back into the channel. When the Cross Florida Barge Canal project was cancelled in the 1990's, the ACOE transferred ownership of the property to the State of Florida Board of Trustees, who in turn has leased the property to the DEP for use as the Cross Florida Greenbelt State Recreation and Conservation Area. Management of this property, the control of river flow and lake levels, and operation of the Inglis Project Works are exercised by the DEP's OGT. The OGT utilizes a document entitled "Water Control Plan for Inglis Project Works," dated September 1994, as a guide to operating the structures. The Water Control Plan is incorporated as part of the MSSW intent to issue. On or about April 25, 1995, the Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund ("Trustees"), approved a request from Hy Power to sublease 0.61 acres of Greenway property at the project site for the purpose of providing electric power. The request was challenged by Berger and the Campbells, and resulted in an administrative hearing held on November 3, 1995. As a result of the hearing, Administrative Law Judge Larry Sartin entered a Recommended Order on July 12, 1996, that the Board enter an order approving execution by the DEP of the proposed sublease and dismissing the petition of Berger and the Campbells. The Recommended Order was approved by the Trustees in its entirety in a Final Order dated April 12, 1996 ("Final Order"). Berger v. Southern Hy Power Corporation et al., Case No. 95-3589. A copy of the Final Order is listed as an exhibit to this Stipulation, and the Findings of Fact and Conclusions of Law contained therein are adopted herein. As previously ruled by the undersigned, the previous Final Order is res judicata as to Petitioners in this case, who are collaterally estopped from challenging any of the findings of fact or conclusions of law contained in the previous Final Order. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Final Order with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the Findings of Fact or Conclusions of Law in the Final Order. On February 21, 1995, Hy Power filed application with the Federal Energy Regulatory Commission (FERC) for a conduit exemption from the licensing requirements of Part I of the Federal Powers Act (FPA) for the proposed project. Petitioners and various other persons filed protests with FERC in opposition to the project. On April 21, 1997, FERC issued an Order Granting Conduit Exemption, a copy of which is listed as an exhibit to this Stipulation. Petitioners in this case are collaterally estopped from challenging any of the findings or conclusions contained in that Order Granting Conduit Exemption. Petitioners reserve the right to litigate issues of fact and law not addressed in the Findings of Fact or Conclusions of Law contained in that Order Granting Conduit Exemption with regard to the permittability of this project under the WRM and MSSW permitting proposals, and to raise objections as to relevance to this proceedings of any of the findings or conclusions in the Order Granting Conduit Exemption. FACTS ADDUCED AT HEARING OUTLINE OF PROJECT The proposed project calls for the construction of a water retention structure along the existing By-Pass spillway, the excavation of a large hole in which the powerhouse and turbine would be constructed "in-the-dry" south of the existing dam, and a millrace below the proposed project to return the water back into the existing water course. Conflicting testimony was received regarding the facts surrounding the construction of the project. These included: whether the proposed project will touch the existing wing walls of the existing dam; whether the water retention structure is a coffer dam; whether the proposed water retention structure will safely retain the water; whether the powerhouse and turbine have sufficient negative buoyancy to stay in the ground; whether the proposed excavation will weaken the existing dam; and whether the de-watering of the excavation site will adversely impact ground and surface water. PROJECT DESIGN AND ENGINEERING Engineering for the project was directed by witness Richard A. Volkin, a professional engineer and president and CEO of Engineering Company, Inc., based in Canton, Massachusetts. Mr. Volkin has extensive national and international experience in the design, management, and operation of hydroelectric facilities. Other engineers in Mr. Volkin’s firm worked on the project under Mr. Volkin’s direct supervision, including John May, who became registered as a professional engineer in Florida in order to sign and seal the engineering drawings for the project, which he initially did around 1994. Mr. May became ill and retired in 1998. Because of the length of time the application process has taken and the fact that Mr. May retired, there was a time while the application was pending, when Hy Power's design team was without a registered Florida engineer. When this was brought to the attention of Hy Power, Hy Power substituted Steven Crockett for Mr. May as the Florida-registered professional engineer of record for the project. DEP routinely accepts an applicant’s changing its engineer of record during the course of permit application or construction. Mr. Crockett is a civil and structural engineer who has considerable experience in preparing dam structural designs. Mr. Crockett independently reviewed and evaluated the engineering drawings for the project. Mr. Crockett resealed the drawings by using his drawn seal and signing the plans because his embossed seal was not readily available and time was of the essence. Mr. Crockett has advised DEP that he is now engineer of record for the project, using the appropriate DEP forms. Mr. Volkin’s firm performed all of the studies required by the various agencies, including a geotechnical study of the area, a 50-year analysis of water flow in and out of the Lake Rousseau regime, and water quality evaluations of water in the By-Pass Channel. The ACOE performed deep hole borings of the soils (approximately 36-40 feet below sea level) in the area of the project site to determine soil stabilization conditions at the site when they were constructing the Inglis Project Works. The soil conditions found can reasonably be expected to be similar today. Mr. Volkin’s company also took its own eight-foot deep surface core samples. The purpose of those samples was to verify the ACOE data. The new core samples verified the original core samples. Mr. Volkin also reviewed the ACOE’s engineering drawings developed from construction of the Spillway Dam. These show that the dam is founded on limestone bedding that has been stabilized with concrete. The hydroelectric facility will be constructed adjacent to and south of the dam structure and adjacent to and north of the barge canal. The same type of limestone bedrock is found in the area of the proposed construction. The facility design includes an intake channel on the upstream channel and a tailrace downstream. Those are the only structures that will be constructed next to the By-Pass Channel. The construction of the facility itself will be "in the dry." Hy Power will use coffer dams to seal off the construction site from the By-Pass Channel, so that there will not be water leakage from the Channel into the construction site. Water from the By-Pass Channel will enter the power plant when the coffer dams are lifted and the water is allowed to flow into the facility. The Petitioners presented the testimony of Bill Edwards, an individual with considerable experience in the construction of bridges, cofferdams, and similar concrete structures in aquatic and semi-aquatic conditions. Mr. Edwards is a former hard-hat diver who worked all over the world and worked in Florida for many years prior to his retirement. Based upon his experience and expertise in construction related to projects of this type, his testimony is credible and worthy of consideration. Mr. Edwards pointed out that if the proposed water retention structure did not touch the wing wall of the existing dam, it could not keep the water out and would not have the strength that it needed to retain the water. Hy Power’s witnesses explained that the retention structure would be set close enough to the existing wing wall that waterproofing materials could be placed between the two structures to keep the water out. Further, that the existing plans did not show interior bracing which would be included for structural strength and integrity. In sum, the retention structure will be in contact with existing dam’s wing wall, but will be free standing and not dependent upon the strength of the wing wall for its strength. Mr. Edwards pointed out that a cofferdam by definition has walls on all sides of the structure. The structure proposed by Hy Power did not have walls all the way around the proposed excavation. In rebuttal, Hy Power presented evidence that its plans were conceptual, design drawing and not construction plans. Hy Power represented that in actuality it would put as many walls as were necessary to keep the water out of the hole it intended to excavate. Trash racks will be constructed at the intake structures to protect aquatic life and make sure that trash and vegetation do not enter the intake structure or go down river. The trash rack bars will be two inches on center, which the U.S. Fish and Wildlife Service has determined as the appropriate size for the protection of fish. The turbine blades are "double regulated," and operate generally between 60 and 90 revolutions per minute. The design enables the turbine to operate at a constant speed to generate a consistent flow of electricity, notwithstanding the fact that the flow of the water may vary. The blade speed is not very fast, and the 2.5-meter blades provide a two to three-foot opening. This design acts to prevent fish mortality. There are four ways to shut off the flow of water through the proposed structure: close the pitch of the blades, close the wicket gates, allow the counter balance to the wicket gates to kick in and automatically close the gates, and close off the main gates. This is a fail safe system ("four level redundancy") designed to work upon any failure. Once water goes through the generator, its velocity is reduced to no greater than its intake rate which is a maximum of three feet per second. This prevents the water being discharged from the tailrace from causing erosion. If the head of water in the dam produces a flow exceeding three feet per second, it can be diverted over the other dams which will be functional. The power plant will be encased in concrete, except for a small access way that enables a person to go down a set of stairs to the plant. It will be a sealed, waterproof structure, as required by FERC and the ACOE. This will prevent penetration of groundwater, or flood waters in the event a massive flood overtops the plant. The only water entering the powerhouse will be through the turbine tunnel for power generation purposes. Mr. Edwards pointed out that the powerhouse was a closed structure and as such would have positive buoyancy, that is, it would float. Mr. Edwards pointed out that the proposed site is between the barge canal and By-Pass spillway and there is a great deal of groundwater and potentiometric pressure in the existing water table. In sum, there is a unlimited supply of groundwater at the site, and powerhouse could float out of the ground just like an empty swimming pool. Hy Power presented rebuttal evidence that the weight of the building, the turbine, and the water flowing through the turbine would be close to negative buoyancy, and they would add additional weight to the structure as necessary to keep it in place. The project is designed to generate three megawatts of electric power which is enough electricity to serve between 300 and 3000 homes, depending on usage. The project is designed to be unmanned. This is common for facilities such as this. The plant can be operated by remote control, unlike the existing controls at the By-Pass Dam, which are operated manually. DEP can access, monitor, and control remotely the generator's operation to include shutting the facility down at any time. There will be remote sensors to monitor water elevations. Flood protection will improve because of the ability of DEP to manage water flow from a remote location. If there is any major disruption, the plant will shut itself down. The project is classified as "green power." In other words, it generates natural energy without any disruption to the environment. The project will have minimal to no impact on the environment. There will be no significant changes in water quality compared to existing conditions as a result of either construction or operation of the facility. WRM Permit Criteria Hy Power has provided reasonable assurances that the proposed project will not cause a violation of state water quality standards of Section 403.918(a), Florida Statutes (1991). The parties stipulated that turbidity and dissolved oxygen were the two surface water quality issues of concern in this proceeding. The receiving water body is the Inglis By-Pass Channel. The Inglis By-Pass Channel is a Class III surface water. The project is not located in a OFW. While the lower Withlacoochee River is an OFW, the OFW designation runs up the natural river itself, and does not include the Spillway Dam, tailrace, or the remainder of the By-Pass Channel. There would be no degradation of water quality at the point of contact with the Withlacoochee River OFW. The DEP and FERC looked specifically at potential for turbidity and dissolved oxygen in determining whether the project would violate state water quality standards. The standards for turbidity and dissolved oxygen will not be violated. Because the By-Pass Dam is an under flow structure, a minimum of oxygenation currently occurs as water flows through the existing dam. The proposed project runs the water underground through the generator; however, Hy Power will measure the dissolved oxygen below the dam in the Lower Withlacoochee River. In the event there is any lowering of dissolved oxygen, Hy Power can install a "sparge ring" to reoxygenate the water going through the turbine so that dissolved oxygen remains at current levels. No turbidity will be added to the receiving water as a result of the project, because water velocity is low and the structure is encased in concrete and rip-rap. The only other potential for turbidity would occur when the coffer dams are removed after construction is complete. The coffer dams can be removed with the generator closed to permit any turbidity to settle. The amount of siltation that might occur when the generator is opened would be insignificant. Where a project is not in a OFW, an applicant must provide reasonable assurance that the project will not be contrary to public interest. See Section 403.918(2), Florida Statutes (1991). Hy Power has provided such assurances. The project will not directly affect public health, safety or welfare, or the property of others. See Section 403.918 (2)(a)1., Florida Statutes. There are concerns relating to the structural integrity of the proposed facility and adjacent structures which are discussed extensively below. The project will have no adverse impact upon the conservation of fish and wildlife, including threatened and endangered species and their habitat. See Section 403.918 (2)(a)2., Florida Statutes. While manatees are not likely to be found at the project site, the installation of the trash racks will eliminate any potential adverse impact on manatees. In fact, the racks will be an improvement over the current unprotected Spillway Dam. DEP procedures require a specific manatee control plan be implemented to deal with site specific concerns. The project will not adversely affect navigation or the flow of the water or cause harmful erosion or shoaling. See Section 403.918(2)(a)3., Florida Statutes. The project will not adversely affect fishing or recreation values or marine productivity in the vicinity of the project. See Section 403.918(2)(a)4., Florida Statutes. The permanent project and its construction will cause no significant environmental impacts. See Section 403.918(2)(a)5., Florida Statutes. There will be no adverse impacts to significant historical and archeological resources. Section 403.918(2)(a)6., Florida Statutes. With regard to the impact on current conditions and relative value of functions being performed by the areas affected by the proposed activity, there will be no negative impacts. See Section 403.918(2)(a)7., Florida Statutes. Improvement will result from better control of water flow at the project site, installation of trash racks and implementation of green power. THE FORESEEABLE ADVERSE SECONDARY OR CUMULATIVE IMPACTS Potential adverse secondary impacts related to power transmission are addressed through the fact that there is an existing power line corridor that can be used to transmit the electricity. Any need to change the corridor could be addressed by subsequent DEP permitting. Cumulative impacts are not at issue. Mr. Gammon, with Florida Power, acknowledged that the current electric company, presumably Florida Power, would be required by FERC to transport the electricity generated by Hy Power over its existing corridor and poles. No final decision has been made regarding how to access the site with equipment during construction. Several feasible construction options exist, and there are several ways of accessing the site with heavy equipment vehicles and without impacting wetlands. Any final decision would be subject to DEP approval. Since the project meets the public interest criteria of Section 403.918(2)(a), Florida Statutes, and wetland impacts are minimal, the project is permittable without the need for mitigation. See Section 403.918(2)(b), Florida Statutes. The ACOE has issued a permit for the facility. The permit varies slightly from the DEP intent to issue in the use of reinforced concrete rather than rip-rap on the bottom half of the intake channel. This is to comply with ACOE preference, but the variation has only an environmental benefit. Counsel for Petitioners sought to elicit testimony from Linda Sloan, Executive Director of the Withlacoochee Regional Planning Council, with regard to compliance of the proposed project with the Town of Inglis Comprehensive Plan and Land Development Code. Such compliance is not relevant to this proceeding. At any rate, Ms. Sloan conceded that any prohibition that might apply in the Land Development Code to construction of the proposed facility could potentially be alleviated by exemption or variance provisions in the Code. MSSW PERMIT CRITERIA The project will provide adequate flood protection and drainage in the conventional sense. See Rule 40D-4.301(1)(a), Florida Administrative Code. Because the amount of impervious area is minimal, runoff from the project will not in any way contribute to increased flooding or adversely impact drainage patterns. The total amount of impervious area of the facility is less than that of a single-family residence. SWFWMD rules do not even require MSSW permits for single-family residences because the impact is not significant. The only purpose for requiring a MSSW permit for the project is to review the project’s potential downstream impacts to the watershed, not stormwater runoff from the facility itself. The project will not cause adverse water quality or water quantity impacts on adjacent lands in violation of Chapter 373, Florida Statutes, or cause a discharge that violates state water quality standards. See Rule 40 D-4.301(1)(b), Florida Administrative Code. As indicated by the WRM water quality findings above, the project will not generally violate state surface water quality standards. See Rule 40 D-4.301(1)( c), Florida Administrative Code. The project will not generally cause adverse impact on surface or groundwater levels or flows. See Rule 40 D- 4.301(1)(d), Florida Administrative Code. Since the project is a run-of-the-river, it will not diminish the capability of a lake or other impoundment to fluctuate through the full range established for it under Chapter 40D-8, Florida Administrative Code. The project will not cause adverse environmental impacts, or adverse impacts to wetlands, fish, and wildlife or other natural resources. The project can be effectively operated and maintained. See Rule 40D-4.301(1)(g), Florida Administrative Code. The project is a slow speed, low maintenance facility. The design concept is well established and has been successfully used for many years. Possible adverse affects to public safety are discussed below. The project is consistent with the requirements of other public agencies. See Rule 40D-4.301(1)(i), Florida Administrative Code. Potential harm to water resources within the SWFWMD are discussed below. See Rule 40D-4.301(1)(j), Florida Administrative Code. The proposed project generally will not interfere with the legal rights of others. See Rule 40D-4.301(1)(k), Florida Administrative Code. The proposed project is not against public policy. See Rule 40D-4.301(1)(l), Florida Administrative Code. The project complies with the requirements contained in the Basis of Review. See Rule 40D-4.301(2), Florida Administrative Code. There is a dispute as to whether the project was within or at the edge of the 100-year flood plain. This dispute is related to how one interprets the rule as it relates to the millrace and the location of the facility which is under ground. In the conventional sense, the project is not in the flood plain. Further, the project is designed in such a way, that it is waterproof if it were topped with water. While in the past SWFWMD may have had concerns that the project might cause downstream flooding, SWFWMD currently has no such concerns, given the run-of-the-river status of the proposed project. The operation of the project will not cause downstream flooding. The DEP included in its intent to issue, conditions contained in the sublease between Hy Power and the DEP in order to ensure that the facility would remain run-of-the-river, would comply with the water control plan, and would otherwise comply with the terms of the sublease. The DEP has final control over water flow and can revoke the permit or otherwise take enforcement action against Hy Power if Hy Power fails to comply with the water control plan. GROUNDWATER IMPACTS Operation of the project will not cause groundwater contamination or otherwise have adverse groundwater impacts. Some concerns about groundwater during excavation of the construction site were raised. The conflicting evidence received regarding them is discussed below. An area of concern was the de-watering plan for the project. Everyone agrees there will be some water seepage into the construction site that will have to be pumped out. The parties disagree regarding the amount of water that will have to be removed. Their estimates of amount of water to be removed vary because their estimates of size and over-all depth of the site vary. Petitioners presented credible evidence that a potential exists for the construction site to have a large quantity of water because of its location between two sources of surface water (the By-Pass Channel and Barge Canal), because of the makeup of the subsurface, and because of the depth of the construction. Hy Power credibly represents that if excessive groundwater is found, it can address the adverse impacts through its de-watering plan that would have to be filed with FERC and DEP. The technology exists to address the de-watering of the project. Such plans are routinely considered by DEP after a construction permit is issued and before de-watering occurs. There is very little evidence of sinkhole activity in the project area, and the construction activities are not expected to cause any sinkhole activity. NOISE POLLUTION Mr. Bitter expressed concerns that FERC would require the facility to install a very loud siren that would result in sudden noise adverse to the well-being of neighbors. Mr. Bitter is unfamiliar with FERC siren requirements at run-of the-river hydroelectric facilities. In contrast, Mr. Volkin, who has substantial experience in this area, testified that the only alarm device that would be required would be for the protection of the workers during construction. The purpose of the alarm is to warn persons below a dam spillway of a change in the volume of water being let out of the impoundment. In the case of a run-of-the-river facility, the volume is near constant, changing only gradually. Therefore, even if a warning siren had to be installed its use would be limited to significant changes in flow or testing. This would not constitute a nuisance. Further, the facility is located in the vicinity of the Crystal River Nuclear Power Plant which has its own warning sirens. It would be prudent to make any warning devices required for this structure significantly different from those at the nuclear plant and to limit their use. DAM SAFETY AND FERC REVIEW In reviewing whether Hy Power’s applications complied with the relevant permitting criteria, the DEP took into consideration the review of the facility already performed by FERC. FERC will also be responsible for reviewing the project as it is being constructed. Mr. Edwards also raised concerns about the structural stability of the By-Pass Dam itself. This has been a subject of concern by those responsible for the dam, and a survey of the structure was conducted in 1993, referred to as the Greiner Report. The Greiner Report identified specific maintenance problems that have been and are being addressed by the DEP. However, DEP’s maintenance plan does not address specifically the possibility that the weight of the dam over time has caused some shifting in the dam. Hy Power has only a few core borings and only one at the location of the generator. Hy Power is using the ACOE’s original borings, as confirmed by several new ones, to develop its preliminary plans. The DEP considered FERC and the ACOE as responsible agencies for determining the structural integrity of the dam. DEP has taken FERC’s review of this facility into consideration as part of DEP’s own permitting review. It is normal for DEP to rely on outside sources and agencies for assistance in determining compliance with DEP permitting criteria such as public health and safety, and it is reasonable for DEP to do so in this instance. Most states do not have the full capability to evaluate dam safety, and so they rely on FERC and ACOE. On April 21, 1997, the project received a conduit exemption from FERC. The application process is illustrated in Hy Power Exhibit 11. Hy Power submitted to DEP detailed information about the dam, the associated structures and the proposed project which had been reviewed by FERC and the ACOE, the two agencies in the United States who are responsible for dam structure design, control, and administration. Included in the package was the Greiner Report and Hy Power’s review of it. FERC evaluated the project, the Inglis By-Pass Dam structure, and the proximity of the project to the Dam in relation to structural impact, upstream and downstream impacts, water quality, and environmental issues. Mr. Edwards raised concerns regarding the ability of the limestone bedrock to sustain additional construction in the area of proposed construction. This is a material issue in the controversy which impacts several aspects of the proposed construction. Mr. Edwards pointed out that the barge canal channel was constructed with the use of explosives that caused a fracturing of limestone bedrock. He pointed out that the steel panels, which Hy Power proposes to drive into the bedrock to construct the water retention structure necessary to excavate the hole into which the turbine and powerhouse would be placed, will further fracture this bedrock. This creates two potential dangers. It could permit water to move under and around the bottoms of the panels, potentially scouring the loosened material from the base of the panels and making them unstable and subject to failure. It could weaken the entire southern wing of the existing spillway dam. Mr. Edwards opined that this could result in catastrophic failure of the dam or the coffer dam. Such a failure would cause major destruction and loss of life to those persons living and working in and along the lower Withlacoochee River. Hy Power presented rebuttal evidence that it could and would, if necessary, inject concrete into the limestone to stabilize it and avoid the concerns raised by Mr. Edwards. FERC specifically evaluated concerns raised by project opponents over the poor physical condition of the By-Pass Channel Spillway structures, relying particularly on the 1993 Greiner Report. FERC noted that the DEP had entered into a contract to correct any deficiencies listed in the Greiner Report, which "did not conclude that the deficiencies at the By-Pass Spillway threaten downstream life and property." The FERC review concluded that the dam was safe. To ensure safety, FERC is requiring that Hy Power do a complete stability analysis of the dam prior to any construction. Articles 301 and 302 of the FERC exemption ensure that all final drawings and specifications be submitted to FERC prior to construction, along with a supporting design report consistent with FERC’s Engineering Guidelines; that FERC can require changes to assure a safe and adequate project; and that Hy Power must also submit approved coffer dam construction drawings and specifications at least 30 days prior to starting construction. FERC has its own engineering staff who will go to the site and do their own analysis, along with the ACOE, of the dam and structures, prior to any construction commencing. This is a detailed design review evaluation so that the latest information on the dam will be made known immediately prior to construction, and will prevent any catastrophic event from happening. Under FERC procedures, FERC requires the applicant to obtain the DEP permits prior to requiring applicant to submit more detailed construction designs for FERC's consideration. These more detailed designs in turn will be subject to further review by DEP and FERC. It is assumed that Hy Power will comply with the post- permitting procedures and requirements, and will present complete, detailed construction drawings for FREC and DEP approval. Hy Power’s failure to complete the process would result in denial of a construction permit.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the DEP enter a Final Order that issues the two permits challenged in this proceedings, WRM Permit No. 38-237096-3.001 and MSSW Permit No. 38-0129249-002, subject to the conditions contained in the Intents to Issue in the respective WRM and MSSW Permits and as described in the Recommended Order. DONE AND ENTERED this 2nd day of March, 2000, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2000. COPIES FURNISHED: Daniel H. Thompson, Esquire Berger Davis & Singerman 215 South Monroe Street, Suite 705 Tallahassee, Florida 32301 Andrew Zodrow, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 John S. Clardy, III, Esquire Crider Law Firm Plantation Point 521 West Fort Island Trail, Suite A Crystal River, Florida 34429 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Bernard M. Campbell Bessie H. Campbell 245 Palm Street Post Office Box 159 Inglis, Florida 34449 Sarah E. Berger Post Office Box 83 Inglis, Florida 34449
The Issue The issue in this case is whether the Orange County Parks Department is entitled to a dredge and fill permit from the Department of Environmental Regulation for the construction and installation of a boat dock on Lake Down.
Findings Of Fact The Application On November 1, 1989, Orange County Parks Department (Orange County) applied for a dredge and fill permit to construct a floating boat dock in the Town of Windermere on Lake Down. The application, which is dated September 7, 1989, describes the proposed project as a "public improvement of an existing boat ramp facility." The application describes a floating dock attached by short hinged sections to fixed docks that would be affixed, at normal water elevations, to upland. The application explains that the purpose of the dock is to accommodate boats and pedestrians in loading and unloading boats at the ramp. The dock would, according to the application, reduce wave and wakedisturbance action on the existing shoreline and thus reduce the current rate of erosion at the site. The application assures that no existing vegetation would be disturbed except in the area of the fixed docks. According to the application, the floating dock and two fixed docks would measure about 420 feet long by 7 feet wide with several wideouts of about 10 1/2 feet. The dock is designed to moor 15-18 boats simultaneously. The location map attached to and a part of the application shows that the dock would be at the southernmost extent of Lake Down. The survey attached to and a part of the application provides submerged and upland elevations in the vicinity of the proposed dock. The survey states that the water elevation of Lake Down is 98.8 feet. Nothing indicates whether 98.8 feet is the average water elevation or the water elevation on the date of the survey on June 28, 1989. Other portions of the application describe the composition of the dock parts. The only parts in contact with the water would be galvanized steel pilings, which would be jetted or driven not more than 15 feet deep into the submerged bottom, and plastic floats attached to the bottom of the dock for floatation. The application also indicates that construction-period turbidity would be controlled through the use of turbidity curtains. Another diagram attached to and a part of the application superimposes the dock over the submerged elevations. A note on the diagram states that, under "Plan 1 and Plan 2, Orange County would excavate existing grade under floating dock to elev 97.0." The applicant proposed excavation under the dock due to the shallowness of the water under and lakeward of the dock. The diagram depicts a dock that would run parallel, rather than perpendicular, to the shore. The diagram discloses that the proposed dock would begin immediately east of the existing boat ramp. The diagram indicates that the floating dock runs about 390 feet. The elevation at the northwest corner of the west fixed dock is about 100 feet. At what the construction drawings call "average lake elevation" of 99.5 feet, the piling at the northwest corner of the west fixed dock would thus not be submerged. About 15 feet to the east of the northwest corner, where a hinge connects the west fixed dock to the floating dock, the elevation is between 98 and 99 feet. At average water elevation, the shoreside of the floating dock generally ranges from five to ten feet from the shoreline, with extremes of one foot at the southeast corner of the west fixed dock and 17 feet about 220 feet east of this point. The submerged elevations change significantlyunder the 390 feet of floating dock. On the lakeside, where boats would dock, the following elevations exist under the dock at 40 Dock interval 40' 80' 120' 160' Lakebottom elevation 95-96' 95' 92' 93' 200' 240' 280' 320' 360' 390' 91-92' 91' 92-93' 93-94' 96' 96' The submerged elevations are higher (and thus water depths shallower) on the shoreside of the dock, which would not be accessible to boats. For the back of the floating dock, the submerged elevations exceed 97 feet for the westernmost 40 feet and a short segment at the eastern end of the floating dock; the remaining elevations are less than 97 feet. Unlike the west fixed dock, which would stand almost entirely in upland even at average water elevation, the east fixed dock would stand almost entirely in water at the same water elevation. Also, the west fixed dock would be relatively small and run parallel to the shore beside the ramp. The east fixed dock would be oriented in a northwesterly direction from, and perpendicular to, the shore. The northwest and northeast faces of the east fixed dock would be accessible by boats. The submerged elevation under the northwest face, which is between 15 and 20 feet offshore from the average shoreline, is between 95 and 96 feet. The water depth adjoining the northeast face is shallower because the northeast face, although accessible to boats, would runupland, past the average shoreline at 99.5 feet, to an upland elevation of about 101 feet. The rate of drop of submerged elevation is uneven along the length of the proposed floating dock. Water depth increases more rapidly from the center of the floating dock. For instance, at the 200-foot interval from the west end, the elevation drops from about 91.5 feet at the front of the dock to 88 feet at a point ten feet lakeward of, and perpendicular to, the dock. In other words, the water becomes 3 1/2 feet deeper in the first ten feet. The lakebottom drops more gradually at the west and east ends of the proposed dock. For instance, at the 40 increase in depth ten feet out is only about 2 1/2 feet. At the north corner of the east fixed dock, the increase in depth ten feet out is only about 1 1/2 feet. The diagram also depicts the existing boat ramp that would be served by the proposed dock. The ramp, which is oriented in an eastnortheasterly direction from the shore, is less than ten feet north of the proposed west fixed dock. The ramp measures about 20 feet wide upland and about ten feet wider farther out into the water. The elevation of the submerged north corner of the lakeward end of the boat ramp is between 94 and 95 feet. The elevation of the submerged south corner of the lakeward end of the boat ramp is between 95 and 96 feet. The lakebottom isfairly flat at the boat ramp. Over its 40-foot length, the elevation of the ramp changes by only about 5 feet. A separate diagram attached to and a part of the application depicts the floats that would be attached to the bottom of the decking. The floats would be about 18 inches high and draw about three inches of water when the dock is supporting no weight. A 40-inch high railing would run along the back of the dock. However, the railing would not extend along the northwest and northeast faces of the east fixed dock. Thus, nothing would deter a boat from docking along these two faces of the east fixed dock. On November 9, 1989, Orange County filed an application amendment, which contains drawings that eliminate all excavation. The amendment states: "Dock will be relocated if conflict with existing shore occurs." This amendment was filed at the urging of a DER representative, who would not have recommended the application for approval without the change. There are other suggestions in the record that Orange County would be willing to amend its application to locate the proposed dock farther from shore and in deeper waters. However, Orange County did not specifically offer an amendment, and the record offers no indication where the dock would be, if Orange County again amended the application. On June 20, 1990, Orange County informed the Department of Environmental Regulation (DER) by letter that the legal description provided with the application was inaccurate. The letter provides a new legal description and a list of adjoining property owners. Mr. Rosser, Ms. Grice, and Mr. Patterson own property adjacent to the proposed project or reside in close proximity to Lake Down so as to be substantially affected by any material degradation of water quality. The new legal description encompasses only 1.46 acres rather than the 12.16 acres set forth in the original application. The land eliminated from the application is west and north of the existing boat ramp. Orange County plans to make considerable improvements to the existing boat ramp, such as by the addition of substantial parking and a septic tank on the land eliminated from the original application. However, the present application does not request any permit for such work. The Intent to Issue On February 26, 1990, DER filed an Intent to Issue the permit for which Orange County had applied. The Intent to Issue indicates that the permit is to construct a floating dock on Lake Down about 420 feet by 7 feet, plus wideouts, and notes that the request to dredge along the dock had been withdrawn. According to the Intent to Issue, the bank between the north side of Conroy-Windermere Road and the shoreline has eroded, probably as a result of boaters pulling their boats onto shore for temporary mooring. Although DER did not determine the water elevation on the date of the inspection, the Intent to Issue reports that water depths range from a few inches alongshore to about three feet at the shoreside of the proposed dock. The Intent to Issue notes that Orange County is currently trying to condemn the land north and west of the boat ramp to upgrade the launching facility with a larger ramp, picnic area, and parking spaces for between 50 and 100 vehicles. The Intent to Issue finds that the proposed docking facility and its associated boat traffic would not result in violations of state water quality standards nor degradation of ambient conditions in Lake Down or the Butler Chain. Except for limited construction-period turbidity, which could be controlled with a siltation barrier, displacement or disruption of the lakebottom would reportedly occur only during piling installation, and shoreline vegetation would be removed only at the fixed docks at either end of the floating dock. Addressing prop dredging, the Intent to Issue notes: It is not anticipated that damage to the lake bottom will result from boats moving into and away from the dock. If water levels fall to particularly low levels, the county can close the ramp until adequate depth is available again. Addressing the possibility of increased boat traffic on the lake, the Intent to Issue states: It is not anticipated that use of ramp will significantly increase as a result of the proposed construction. Those individuals who are seriously interested in accessing the Butler Chain have done so despite the poor facility currently available. The new dock will provide mooring capability without causing shoreline erosion. Furthermore, the dock will provide a safer place for boatersto walk and wait. Presently, because there is no onsite parking nor mooring available, boaters park vehicles to the east of the boat ramp site in an undeveloped parcel. They then walk west along Conroy-Windermere Road while sharing the road shoulder with vehicles and trailers. The dock, in combination with the proposed (upland) sidewalk won't shorten the distance to be walked but will remove pedestrians from the roadway sooner to the relative safety of the mooring area. The Intent to Issue concludes that Orange County has provided reasonable assurance that the project will not result in violations of state water quality standards and that the project is clearly in the public interest. Thus, DER expressed its intent to issue the permit, subject to various conditions, in the absence of a timely filed petition. Specific condition 7 of the Intent to Issue addresses the issue of prop dredging: When the lake level drops to the point where boats entering and leaving the dock cause damage to submerged bottoms in the immediate area, the county shall close the ramp and dock until the water returns to acceptable levels. Specific condition 8 addresses the County's plans for additional improvements for the boat ramp facility: Issuance of a permit for the dock does not guarantee nor infer issuance of a permit orpermits for further improvements to the county boat launching facility. Additional Findings Regarding Upland Orlando and the more densely populated areas are generally to the north and east of the boat ramp; Orlando itself is about 10 miles away. The center of the Town of Windermere, which numbers about 1400 persons, is to the west of the boat ramp. About 80% of the users of the boat ramp approach the ramp from the east. A small vehicle-maneuvering area adjoins the ramp on the west. After unloading the boat into the water, the driver of the trailer-towing vehicle typically drives east on Conroy-Windermere Road about 1600 feet and parks on the south side of the road in a large unimproved lot. The County's permission to use the lot is terminable by the owner without notice. While the vehicle and trailer are being parked, the person or persons with the boat normally start the engine and idle just offshore from the ramp or moor on the sandy beach immediately east of the boat ramp. After parking the vehicle, the driver generally crosses to the north side of Conroy-Windermere Road and walks along a sidewalk running from the parking area to what would be the east end of the proposed dock. The road and the sandy beach are separated by a thin strip of thick vegetation. Pedestrians continuing westalong the road, past a point across from the east end of the beach, must walk in the staging lane designed for vehicles waiting to enter the maneuvering area. An existing sidewalk on the south side of the road, which runs east of the ramp area, is not used as much because the sidewalk ends almost 800 feet east of the parking area. Pedestrians typically rejoin their boat at some point along the sandy beach immediately east of the boat ramp. When the boat is spotted, the pedestrian cuts through the vegetation on one of four or five paths running at intervals between the north side of the road and the beach. Traffic on these paths has worn them down noticeably from the prevailing elevations on either side. The same pattern is repeated upon the return of the boat, which is temporarily moored onshore to allow the driver to disembark, take the nearest path to the road, walk along the north side of the road to the parking area, cross the road, and return with the vehicle to the boat ramp. Normal summertime usage, when the boat ramp is used more frequently, involves a range of 30-65 boat launchings per day from the boat ramp. However, peak usage is much higher; nearly 400 trailers have been in the parking area at one time. Present upland usage of the boat ramp area is risky. The staging lane mixes pedestrians and motor vehicles towing trailers. The speed limit on Conroy-Windermere Road is 35 miles per hour at the parking area and 30 miles per hour at theramp, so westbound traffic is still moving rapidly past the staging lane. Also, Conroy-Windermere Road, which is an urban collector, is heavily travelled with an average daily traffic count of 9400 vehicles. Pedestrians crossing the road at the parking area 1600 feet west of the ramp must cross 22- 24 feet of highway. Pedestrians crossing the road at the boat ramp must cross about 50 feet of highway due to the presence of the staging lane and a painted median. Upland safety would be enhanced by separating pedestrians from the staging lane. However, the addition of the floating dock would not eliminate the risks associated with upland usage of the boat ramp. Persons still would be required to cross Conroy-Windermere Road, although a proposed crosswalk would reduce present risks somewhat. In addition, the existing sidewalk on the north side of the road would be reconfigured to lead to the floating boat dock, which would be incorporated into the sidewalk system leading toward the center of the Town of Windermere. For some persons using the dock segment of the sidewalk, such as young children and the disabled, close proximity with the water and mooring boats might prove unsafe. Conroy-Windermere Road has existed for many years, but the portion of the road parallel to the proposed dock was added only about 30 years ago. Previously, the road had turned south, but, following a serious traffic accident, the curve was straightened. Large amounts of fill were added to form the roadbed across the southern tip of Lake Down, which consequentlywas cut off from the remainder of the lake. This fill forms the bank leading to the shoreline directly parallel to the proposed dock. The boat ramp has also existed for many years. Years ago, grove trucks drove down to the lake in order to take on irrigation water. From time to time, persons would put in canoes at this point. Until the late 1960's, when Orange County paved the ramp, few if any powerboats were launched from the area or even used the lake. Today, the overwhelming majority of boats using the ramp currently are gasoline-powered motorboats. There are no restrictions on Lake Down as to the size of engine permitted on the lake, and the posted speed limit is 36 miles per hour. The area surrounding the boat ramp features few amenities. Apart from the maneuvering area, staging lane, and ramp itself, the only other improvements are an enclosed portable toilet and a dumpster garbage container. The Town of Windermere operates two boat ramps on the Butler Chain-- one on Lake Down and one on Lake Butler. Use of these ramps is reserved for Town residents and their guests. The remaining boat ramps on the chain are owned by corporations or private associations. Some boat traffic on the lake is from the use of private boat docks owned by persons owning lakefront land. Lake Down and the Butler Chain Designation as Outstanding Florida Waters By report dated January, 1984, DER recommended that the Environmental Regulation Commission designate as Outstanding Florida Waters the Butler Chain of Lakes: Lake Down, Lake Butler, Wauseon Bay, Lake Louise, Lake Palmer, Lake Chase, Lake Tibet, Lake Sheen, Pocket Lake, Little Fish Lake, and their connecting waterways. The January, 1984 report (DER Report), states that the Butler Chain drains into the Upper Kissimmee River Basin. Noting that Lake Down is the northernmost lake in the chain, the DER Report states that water flow in the lakes, which are interconnected by a series of man-made navigable canals, runs from north to south. Reviewing Florida and applicable federal anti-degradation policies protecting high quality waters, the DER Report states: This antidegradation policy is predicated on the principle that resources are so precious that degradation should not occur except after full consideration of the consequences and then only to the extent necessitated by important economic and social development. Scientifically, the principle is a valid one in that history has taught that adverse effects are difficult to predict. As scientific knowledge grows, previously unknown effects are discovered, and it is prudent to preserve our natural resources in the face of the unknown. DER Report, January 11, 1984 memorandum from DER to Environmental Regulation Commission, page 4. The Butler Chain covers 4700 acres. The largestlake is Lake Butler, which consists of 1665 acres. Lake Down, which is the third largest, consists of 872 acres. Depths of the lakes range from 15-30 feet. According to the DER Report, the upper seven lakes are oligo-mesotrophic with low productivity, high water clarity, and deeper waters. The lower three lakes (Sheen, Pocket, and Fish Lakes) are mesotrophic, with moderate productivity, high coloration of water, and shallower waters. The DER Report states that the water quality of the lakes is excellent. Lake Down had the highest level of dissolved oxygen: 7.1 mg/l. Biochemical oxygen demand was extremely low, in most cases, including Lake Down, less than 1.0 mg/l. Lake Down also had the lowest presence of chlorophyll a, which is a measure of the presence of algae, and a higher degree of biologically diversity, which is typical of a clean, soft-acid lake, according to the DER Report. The DER Report concludes that: An OFW designation will preserve the present environmental values of the Butler Chain of Lakes without any important environmental costs. The existing ecosystem and recreational use of the lakes is dependent upon the maintenance of sufficiently high levels of water quality, which an OFW designation would help to ensure. Id. at 23. The DER Report also includes a May, 1975 report of the Orange County Pollution Control Department, which concedes that the Butler Chain is: one of the few clean water systems left in the Central Florida area. The balance between available nutrient concentrations and the biotic communities has maintained an ecosystem free from the problems that are associated with more enriched systems. The balance is fragile and not well understood. Any activities which would effect this system will express itself [sic] in the aquatic habitat. May, 1975 report, page 4. At the time of its designation, the proposal received numerous endorsements and no objections. On August 16, 1983, The Orange County Board of County Commissioners passed a resolution urging DER to designate the Butler Chain as Outstanding Florida Waters. The Orange County Property Appraiser also supported the designation. In a letter to DER dated September 30, 1983, the appraiser warns that pollution could decrease surrounding property values and cost taxpayers substantial sums for cleanup. Additional Findings Regarding Lake Down Effect of Addition of Floating Dock 53. Neither the submerged galvanized steel pilings nor the plastic floats would allow materials to leach into the lake so as to affect measurably the composition or quality of the water. The increased turbidity during construction of the proposed floating dock also could be controlled so as not to have a significant effect on Lake Down. 2. Relevant Water Levels Water levels have fluctuated considerably in Lake Down. Since January, 1960, to present, the lowest recorded water elevation was 93.86 feet in February, 1987, and the highestelevation was 101.58 feet in August, 1960. Recorded water elevations were less than 97 feet from October, 1977 through August, 1979 and September, 1980 through November, 1982 (during which time the elevation attained 96 feet only six months). Water elevations were between 97 and 98 feet, inclusive, for an additional 29 months during this 31-year period. From March, 1987 through May, 1989, water levels were between 99 and 100 feet, attaining 100 feet only in December of 1987 and 1989. From June through August, 1989, water levels were between 98 and 99 feet. From September, 1989 through the date of the final hearing, water elevations were below 97.8 feet. From mid-March, 1990 through the date of the hearing, water elevations dropped from 97 feet to 96 feet; at the time of the hearing, the water elevation was about 96 feet. When the water elevation is 97.8 feet or less, the canal to Wauseon Bay and, from there, to Lake Butler is impassable to all but very small flatbottom boats. At these times, boat traffic tends to concentrate on Lake Down. Three witnesses for the County and DER testified as to the relationship between the water level of the lake and the operation of the floating dock. One witness for the County testified that the dock would float at 99.5 feet, which corresponds to ordinary high water. The designer of the dock testified that the east and west ends of the dock would cease floating at 96 feet. The DER representative testified that the dock and, pursuant to Special Condition 7, the ramp should beclosed at depths less than 95 feet. The meaning of Special Condition 7 is unclear. First, it is not clear what is meant by boats causing damage to submerged bottoms in the immediate area. Probably, this phrase means actual contact between the prop and bottom, which is known as prop dredging. Thus, boats cause damage to submerged bottoms when the depth of the water is about one foot or less. Special Condition 7 probably ignores the effect of prop wash, where the prop disturbs the bottom, including vegetation, by turbulence rather than direct contact. The second major ambiguity in Special Condition 7 cannot be resolved on the basis of the present record. The question is whether the ramp and entire dock must be closed whenever the water depth under any part of the dock is one foot or less (recognizing that the floats require about one foot of water). In the alternative, Orange County could close only that part of the dock as to which the underlying water depth is one foot or less. It is likely that DER and Orange County have different opinions on this question, with the County taking the latter position. Regardless how Special Condition 7 is construed, it fails to address the damage to submerged bottom that the"floating" dock will do when parts of it begin to ground. When partly grounded, the floating dock will pound up and down on the lakebottom in response to wave action and traffic on the dock. Over 40 feet of the shoreside of the dock will be grounded at water elevations of 97 feet or less, which, without regard to the effect of dock loading or wave action, is the point at which "dock dredging" commences. Water elevations have been less than 98 feet for a total of nearly seven of the last 31 years. The east and west ends of the lakeside of the floating dock would also begin to ground at a water level of about 97 feet. By the time water elevation falls to 96 feet, which existed at the time of the hearing, at least 80 feet of the west end of the floating dock and at least 30 feet of the east end of the floating dock would be grounded, again assuming no wave action and no load on the dock. Additionally, prop dredging would also take place at water elevations of 97 feet immediately adjacent to the dock, at its east and west ends. These water elevations have been experienced for a total of over four of the last 31 years. Another feature of the design of the proposed dock makes it likely that prop dredging will take place regardless of the water elevation. A popular area of the proposed dock would be the east fixed dock because it would be the closest point, by more than 100 yards in some cases, to the existing parking area. Boats could approach the northeast face of the east fixed dock up to an elevation of 101 feet. In other words, except in periods of unusual high water, some boats could and probably would use a section of the fixed dock in the same manner as temporary moorings are made today: in effect, by running up onto the beach. Prop dredging of the bottom would take place if boats approached the northwest face of the fixed dock when the water level fell to about 96.5 feet. The same is true for at least the first 40 feet of the west end of the floating dock. The resuspension of bottom sediment by prop wash would begin at depths of anywhere from 18 inches to seven feet, according to the testimony of the DER representative. Although important variables, such as the composition of the bottom and size and speed of the prop, affect prop wash, significant prop wash takes place for at least three feet under the prop. If three feet were the minimum depth necessary to avoid prop wash and, thus, lakebottom damage, the east 160 feet and west 70 feet of the floating dock would not be usable at water levels not exceeding 96 feet, such as at the time of the final hearing. The significance of lakebottom damage is great under and lakeward of the proposed dock. A thick carpet of bogmoss begins about ten feet offshore, which is roughly where the dock would begin, and continues out into the lake. Bog moss, which captures and retains sediments, would be damaged by the dredging action of the pounding floating dock when it begins to ground and boats using the floating dock at water elevations described in the preceding paragraphs. The phosphorus-rich sediments would then be resuspended in the water column. 3. Ambient Water Quality One of the key elements to preserving the health of Lake Down is to avoid conditions that can lead to the presence of excessive nutrients in the system. The presence of excessive nutrients, which leads to eutrophication, usually occurs because of the increased availability of a limiting nutrient. The limiting nutrient in Lake Down is phosphorus. Thus, a condition precedent to the eutrophication of Lake Down is an increase in the level of phosphorus in the water. The presence of phosphorus in the water can be detected directly, by measuring the phosphorus itself. The presence of phosphorus can also be detected indirectly, by measuring the effects of the nutrient or conditions that may result in the release into the water of additional phosphorus. Indicators of the nutrient levels of a lake include the presence of chlorophyll a, which, as a measure of the amount of algae in the water, is an indicator of the enrichment process. As a lake proceeds from an oligotrophic to a mesotrophic condition or from a mesotrophic to a eutrophiccondition, the presence of algae and chlorophyll a will increase. Indicators of conditions that may result in the release of additional phosphorus into the water include turbidity measurements and clarity data, such as Secchi depths. The sediment found in the submerged lakebottom contains greater concentrations of phosphorus in various organic and inorganic and soluble and insoluble forms than the water column itself contains. When this sediment is disturbed, part of the previously trapped phosphorus is released into the water column. The phosphorus is thereby made more readily available for supplying the nutrients necessary to contribute to the enrichment process, at least until the phosphorus settles back into the sediment where it can be locked up until redisturbed. As relevant to this case, the ambient water quality of Lake Down in the baseline year can largely be assessed in terms of the following data, which are obtained from Orange County Exhibit 13: chlorophyll a: 1.01 ug/l; turbidity: 1 NTU; total phosphorus: .01 mg/l; Secchi depth: 3.5 meters; and pH: 5.97. In the year ending immediately preceding the filing of the County's application, the following data were collected, according to Orange County Exhibit 13: chlorophyll a: 1.59 ug/l; turbidity: .75 NTU; total phosphorus: .01 mg/l; Secchi depth: over 3.5 meters; and pH: 6.36. In the summer of 1990, when the hearing took place, the County's expert collected from Lake Down the followingaveraged data, which are shown on Orange County Exhibits 15 and 17: chlorophyll a: 1.22 ug/l; total phosphorus: .011 mg/l; Secchi depth: over 4 meters; turbidity: 1.0-1.2 NTU's; and pH: 6.97. In the same summer, the Town of Windermere's expert collected the following data from Lake Down: turbidity: 0.92-1.8 NTU's; pH: up to 7.2; and total phosphate: .04-.05 mg/l. The only finding materially different from the findings of the County's expert is the amount of total phosphate. The findings of both experts are credited. The higher finding is supported by, among other things, the recording in the County's records of .037 mg/l of total phosphorus on May 15, 1990, according to Orange County Exhibit 12. In a phosphate-limited, oligo-mesotrophic lake such as Lake Down, total phosphates of .03-.04 mg/l require serious attention in terms of what may be the beginning of a significant degradation of ambient water quality standards. The increase in chlorophyll a is consistent with a trend toward enrichment of the lake since the baseline year. The record establishes the role of motorboat traffic in degrading ambient water quality. Bottom sedimentsoften contain many times more phosphorus than is found in the water column. In the case of Lake Down, sampled bottom sediment contained 11 mg/l of phosphorus, or over 200 times the amount contained in the water column. The phosphorus is trapped in the sediment, which, if disturbed, releases the phosphorus back into the water column. Prop dredging may resuspend the sediments and release the phosphorus, as well as destroy bottom vegetation that tends to retain the sediments. Prop wash also may resuspend bottom sediments, even to depths of seven feet beneath the churning prop. Ultimate Findings of Fact Impact of Proposed Dock on Boat Traffic The proposed floating dock would substantially increase use of Lake Down by motorboats. The dock would generate increased boat traffic on Lake Down because of improvements in navigability in the vicinity of the boat ramp and convenience for boaters in picking up and dropping off passengers and walking between the existing parking area and mooring area. The dock, which would be longer than a football field, is designed to moor 15-18 boats simultaneously. At typical current launching rates, the dock would be capable of mooring, at one time, one-quarter to one-half of the boats using the boat ramp on a given day. DER reasons in the Intent to Issue that boat usage would not increase significantly because persons seriously interested in accessing the Butler Chain have overcome the limitations of the present facility. This reasoning ignores persons more casually interested in accessing the Butler Chain. The above-described improvements in navigability and upland safety will increase the frequency of their visits, which presently may be limited to peak days, such as holidays. If the ratio of serious to casual users corresponds roughly to the ratio of typical boat launches to peak boat launches, the number of casual users may outnumber their more earnest counterparts by six to one. The large capacity of the proposed boat dock suggests that Orange County was targeting these more casual boaters. In theory, Special Condition 7 could have a substantial effect upon boaters' access to Lake Down if the ramp and dock were closed when water elevations fell to 97 feet, at which point much of the shoreside of the dock would already be grounding and boats could not approach the east or west ends of the dock without prop dredging. The ambiguity of Special Condition 7, whose meaning remains elusive even after DER and Orange County have had opportunities to explain its operation, precludes assigning the condition any significance, except as a clear invitation to litigate in the event the floating dock were constructed under the subject Intent to Issue. 2. Ambient Water Quality 79. As relevant to this case, the relevant ambientwater quality of Lake Down is the baseline year. The value of chlorophyll a was 50% lower in the year ending March, 1984, than in the year ending with the subject application. Total phosphorus was about the same, as were Secchi depths. Turbidity was 25% less in the latter year, but the lake had acidified slightly. 3. Changes in Water Quality The water quality of Lake Down has deteriorated since it was designated an Outstanding Florida Water. The amount of chlorophyll a has increased, which is consistent with increased levels of nutrients in the water column. By the summer of 1990, phosphate readings were as much as four or five times greater than in the baseline year and had reached a level that threatens water quality in a phosphate-limited lake such as Lake Down. The role of motorboat traffic in disturbing phosphate-laden bottom sediments and destroying bottom vegetation has been discussed above. The dock dredging at lower water elevations, which are frequently encountered, as well as prop dredging immediately adjacent to the dock, would be especially harmful in view of the thick carpet of bog moss present underneath and lakeward of the proposed dock. 4. Effect of Proposed Dock on Water Quality Orange County has failed to provide reasonable assurance that the proposed project would not lower ambient water quality standards with respect to the effects of dock dredging, prop dredging in the immediate vicinity of the dock, and prop wash associated with increased powerboat traffic on the entire lake. Boats presently mooring on the south shore undoubtedly dredge the bottom with their props. However, the effects are less destructive than the prop dredging that would be associated with the proposed dock, even ignoring the effects of dock dredging and prop wash from additional powerboats. First, fewer boats are using the area now than would be with the proposed dock. Second, although possibly once vegetated, the lakebottom adjacent to the shore is sandy without much vegetation or sediment, so resuspension of sediment and release of phosphorus is less of a problem presently than it would be with the use associated with the new dock. The record does not support a finding that the water quality of Lake Down has been adversely affected by the erosion of rubble and fill from the bank used to construct the realigned Conroy-Windermere Road 30 years ago. Concerns about unfiltered stormwater runoff bypassing the vegetated strip by pouring down the eroded paths into the lake are misplaced. Some governmental entity has installed a stormwater system along aconsiderable part of Conroy-Windermere Road, and the outfall is directly into Lake Down shoreside of the west end of the proposed dock. 5. Effect of Proposed Project on Public Interest Orange County has failed to provide reasonable assurance that the proposed project would be clearly in the public interest after balancing the statutory criteria. The proposed project would achieve a net gain in upland safety, although not without exposing pedestrians using the sidewalk to new risks. The project would also increase boater safety by improving navigability in the vicinity of the boat ramp. However, degradations in water quality negatively impact the issues of public health, the property of others, the conservation of fish and wildlife, and fishing or recreational values, which ironically may be threatened as Lake Down risks becoming a victim of its well-deserved popularity. The current condition and relative values of the functions performed by the lakebottom also militate against a finding that the proposed project, which would be permanent in nature, is clearly in the public interest. The factors in the preceding paragraph outweigh the statutory factors in favor of a finding that the project is clearly in the public interest. In addition to the gains in upland safety and navigability, the other favorable factors are that the proposed project would not adversely affect the flow of water or cause harmful erosion or shoaling. A neutral factor isthat the proposed project would not help or harm significant historic and archaeologic resources.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a final order denying the application of the Orange County Parks Department for a dredge and fill permit to construct a floating dock 420 feet by 7 feet. ENTERED this 2nd day of April, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1991. APPENDIX Treatment Accorded Proposed Findings of Orange County Adopted or adopted in substance: 1-7 (except last sentence of Paragraph 6); 9 (except for last two sentences)- 11 (except first sentence); 12 (except that the amendment eliminated all construction-related dredging)-19 (except the railing in Paragraph 14 runs the entire landward side of the floating dock, but not the fixed docks); 20 (except the last sentence); 25; 27 (except last sentence); 29 (first sentence; however, the implication that the erosion is having an adverse effect on water quality is rejected as against the greater weight of the evidence); 30 (except that the implication that wave and wake action are presently eroding the shore is rejected as against the greater weight of the evidence); 32; 33 (in sense of increasing boater usage of lake, but not in sense of maintaining the water conditions on which the lake ultimately depends for its recreational value); 35-36; 39 (third and fourth sentences); 40 (there would be a net increase in upland safety); 42 (the crosswalk would somewhat increase upland user safety); 43; 44 (through the colon); 46; 48 (second and third sentences); 49 (except that the summer, 1990, findings of Windermere's expert are also credited); 51 (except as to the improvement in ambient water quality between baseline year and year immediately preceding the application); 52 (except for characterization of chlorophyll a value as very low) with attendant implication that this value, in conjunction with readings of .04-.05 mg/l of phosphate in the summer of 1990, is not cause for serious concern); 56-57; 59 (all but first sentence); 60 (second and third sentences); and 71 (last sentence). Rejected as irrelevant: 6 (last sentence); 11 (first sentence); 20 (last sentence); 21-22; 26 (second sentence); 28; 44 (following the colon)-45; 47; 54 (first sentence); 55 (there is no safe harbor for proposed projects whoseeffects would degrade ambient water quality, but still leave the waters in good condition); 67; and 74-75. Rejected as subordinate: 8; 9 (last two sentences); 28; 34 (second sentence); 41; 53; 63 (except for first sentence); 64; 69; and 74-75. Rejected as against the greater weight of the evidence: 23; 26 (first sentence); 27 (last sentence); 29 (second sentence); 31; 34 (except second sentence); 37 (except whether the proposed dock is a political "hot potato" is irrelevant); 38 (except that the existing facility is "very mediocre"); 50 (second sentence as to relevant ambient water quality and third sentence); 54; 55 (although the water quality in Lake Down remains generally good, recent readings of phosphorus levels of .04-.05 mg/l are a cause of serious concern); 58; 59 (first sentence, at least as to the bottom beginning around where the dock would be placed); 60 (first sentence); 61 (the County's own survey, which accompanied the application, has been credited over the incidental findings of an expert, who did not carefully establish the exact proposed location of the dock and was preoccupied with water sampling); 62 (strictly speaking, the County has failed to provide reasonable assurance that the boat dock will not lead to degradation in ambient water quality); and 63 (first sentence)-71 (except for last sentence). Rejected as unnecessary: 39 (first two sentences) and 72-73. Rejected as recitation of evidence: 48 (first sentence) and 50 (first and second sentences except for the identification of the baseline year and the year immediately preceding the application). Miscellaneous: 24: first sentence is adopted in substance as the average is probably about 10', although the distance is as much as 17'. The second sentence as to where the boat dock could be built--i.e., further away from theshore to reduce or eliminate dock dredging--is rejected as irrelevant. Orange County did not offer to amend its application, nor even provide a new location for the dock. In any event, the relocation of the dock in deeper water would not reduce the damage done to the lake by the prop wash associated with the additional boat traffic that the new dock would generate. Treatment Accorded Proposed Findings of DER Adopted or adopted in substance: 1-5 (except erosion-protection clause in Paragraph 4); 6 (first sentence, although the elevations have been discussed in detail in the findings and, though the dock probably averages about 10' from normal shoreline, it is as much as 17' offshore); 7-14 (except, as to Paragraph 8, 41-65 launchings represents typical summertime usage and 395 represents peak usage, probably on a holiday); 18; 19 (second sentence); 26-28; 30 (first sentence); 33-34; 37-39 (except, as to Paragraph 38, first sentence and last clause implying the need to control erosion to protect water quality); 41-42; and 46-47. Rejected as against the greater weight of the evidence: 4 (erosion-protection clause); 6 (second sentence because the County's own survey, which accompanied the application, has been credited over the incidental findings of an expert, who did not carefully establish the exact proposed location of the dock and was preoccupied with water sampling); 15 (except second and fourth sentences); 16 (first sentence); 17; 19 (first and second sentences); 25; 29-32 (except first sentence of Paragraph 30); 35; 36 (except first sentence); 38 (first sentence and last clause implying the need to control erosion to protect water quality); 40; and 43-44. Rejected as recitation of evidence: (second and fourth sentences). Rejected as irrelevant: (second through fourth sentences) and 19 (third sentence--there is no safe harbor forproposed projects whose effects would degrade ambient water quality, but still leave the waters in good condition--and last sentence). Rejected as unnecessary: 19 (last sentence as to benzene); 21-23 (except that the facts of this case, such as the quick elimination of benzene from the water and the proximity of sampling to boat periods of numerous boat launches and no rain, suggest that gasoline-powered boats, not stormwater, are responsible for most of the benzene finding its way into Lake Down); 24-25; and 45. Rejected as subordinate: 20. Rejected as repetitious: 36 (first sentence). Treatment Accorded Proposed Findings of Windermere Adopted or adopted in substance: 1-14 (except last sentence of Paragraph 11); 18-19; 26 (first and last sentences); 28 (first three sentences through "not be floating" and third and second to last sentences, although the prospect of either DER or orange County interpreting Special Condition 7 as requiring the closure of the entire facility for significant periods of time is highly remote); 33-34; 35 (as to intention to construct crosswalk); 38; 40 (first three sentences); 42 (first three sentences); 46 (first sentence); 49 (second sentence); 50 (except second sentence); 51 (first sentence); 52 (except last sentence); 54-57; 59 (first two sentences)-61 (except for final sentences in Paragraphs 60, as to benzene, and 61); 62; 65 (last sentence); and 67. Rejected as subordinate: 11 (last sentence); 15-17; 21-25; 27; 28 (all sentences not adopted in whole); 29-32; 35 (except as to intention to construct crosswalk); 36-37; 39; 40 (last sentence); 42 (last three sentences); 43-45; 46 (fourth sentence); 48; 49 (third and fourth sentences); 63; 65 (except last sentence); and 68-71. Rejected as irrelevant: 16; 20; 22; 49 (first sentence); and 53. Rejected as recitation of evidence: 26 (all but first and last sentences); 31; 35 (except as to intention to construct crosswalk); 41; 44-45; and 46 (second and third sentences). Rejected as against the greater weight of the evidence: 28 (portion of third sentence following "not be floating"; Orange County's position as to the meaning of Special Condition 7 did not emerge from the record, largely because of an apparent lack of detailed understanding of the impact upon the submerged bottoms of particular water elevations in terms of dock dredging and prop dredging); 50 (second sentence); 51 (second sentence); 64; and 66. Rejected as unnecessary: 47; 52 (last sentence); 58-59 (last two sentences); 60 (as to benzene); and 61. Treatment Accorded Proposed Findings of Rosser and Grice Adopted or adopted in substance: 1-39 (as to Paragraph 18, the only navigable connection and, as to Paragraph 19, the surface elevation); 45; 51 (at least as to desirability); 57 (except first sentence); 58; 59; 61-64 (except last sentence of Paragraph 64); 66 (second sentence); 68-69; 74 (fourth sentence); 75-76; 80-81; 83; 86; 88; 89 (the specific elevations have been discussed in detail in the order); 94; 96; 97; and 102. Rejected as irrelevant: 40-42; 52-55; 70-72; 74 (third and last sentences); 77-78; 84; 90; 101; and 103. Rejected as subordinate: 43-44; 46-50; 53-55; 57 (first sentence); 60; 73-74 (first and second sentences); 82 (first sentence); 85; 99-100; and 104-05. Rejected as unnecessary: 56; 59; 64 (last sentence)-66 (first sentence); 91-92; 95; and 98. Rejected as against the greater weight of the evidence: 67; 82 (second sentence); 87; and 93. COPIES FURNISHED: Douglas H. Maclaughlin Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Joel D. Prinsell, Assistant County Attorney Eugene Legette, Assistant County Attorney Orange County Legal Department P.O. Box 1393 Orlando, FL 32802-1393 J. Christy Wilson, III Brigham, Moore, et al. 111 N. Orange Avenue, Suite 1575 Orlando, FL 32801 J. Stephen McDonald John M. Robertson Robertson, Williams, et al. 538 East Washington Street Orlando, FL 32801 Robert W. Williams P.O. Box 247 Windermere, FL 34786 Carl D. Patterson, Jr. 219 Third Avenue Windermere, FL 34786
The Issue The issue to be determined is whether the after-the-fact Environmental Resource Permit (“ERP”) and the November 19, 2019, proprietary Letter of Consent for a 2,203 square foot dock should be issued as described and authorized by the December 6, 2019, Consent Order, OGC File No. 19-1272, entered between Respondent Andrew Kent and the Department of Environmental Protection (“DEP”), in its own capacity, and in its capacity as staff to the Board of Trustees of the Internal Improvement Trust Fund (“BTIITF”).
Findings Of Fact Based upon the demeanor and credibility of the witnesses, the stipulations of the parties, and the evidentiary record of this proceeding, the following Findings of Fact are made: The Parties Petitioners own waterfront lots on the western canal in Romeo Point, Fleming Island, Clay County, Florida. Petitioners use the waters of Doctors Lake for recreational purposes, and have navigated to and from Doctors Lake, or reasonably expected as riparian property owners to do so, via the permitted and dredged navigational boat access channel leading from the western canal to the deeper waters of Doctors Lake. Petitioners have challenged the Consent Order that authorizes issuance of the revised general permit for a residential dock that bisects and severs the navigational boat access channel. Thus, Petitioners have standing under section 120.569. Mr. Kent is the owner of Lot 18 of the Romeo Point subdivision. Mr. Kent purchased Lot 18 in 2017, and constructed a home there, 2059 Castle Point Court, Fleming Island, Florida, in which he currently resides. Mr. Kent is a party to the Consent Order, and proposed recipient of the ERP and Letter of Consent at issue in this proceeding. DEP is the administrative agency of the State of Florida having the power and duty to protect Florida's air and water resources and to administer and enforce the provisions of chapters 253, 373 (Part IV), and 403, Florida Statutes, and rules promulgated thereunder in Florida Administrative Code Title 62, regarding activities in surface waters of the state, and in Florida Administrative Code Title 18, governing the use of sovereignty submerged lands. The BTIITF is a collegial body that holds title to sovereignty submerged lands within the State in trust for the use and benefit of the public. Art. X, § 11, Fla. Const.; § 253.001, Fla. Stat. DEP performs staff duties and functions on behalf of the BTIITF related to the review of applications for authorization to use sovereignty submerged lands necessary for an activity regulated under part IV of chapter 373 for which DEP has permitting responsibility. § 253.002(1), Fla. Stat. The SJRWMD “shall perform the staff duties and functions related to the review of any application for authorization to use board of trustees-owned submerged lands necessary for an activity regulated under part IV of chapter 373 for which the water management district has permitting responsibility as set forth in an operating agreement” between DEP and the SJRWMD. Id. Review and approval of general permits and individual ERPs in Clay County generally falls within the jurisdiction of the SJRWMD pursuant to the July 1, 2007, Operating Agreement between SJRWMD and DEP (“Joint Agreement”). DEP and the SJRWMD have been delegated the authority by the BTIITF to take final agency action on applications for authorization to use sovereignty submerged lands, without any action by the BTIITF, with the delegated entity to be established by rule. § 253.002(2), Fla. Stat. Rule 18- 21.0051(2) provides that DEP and the water management districts “are delegated the authority to review and take final agency action on applications to use sovereignty submerged lands when the application involves an activity for which that agency has permitting responsibility, as set forth in the respective operating agreements.” Romeo Point Romeo Point is located on Doctors Lake in Fleming Island, Clay County, Florida. The confluence of Doctors Lake with the St. Johns River is generally considered to be at the U.S. Highway 17 bridge, with Doctors Lake to its west, and the St. Johns River to its east. Doctors Lake is tidally influenced, with the range of tides generally being about one foot from high to low, but as much as 1.25 feet and as little as 0.8 feet depending on the phase of the moon. In addition, there are times when a confluence of a full moon, low tide, and winds to the east can pull water from the lake, which can result in even shallow draft vessels grounding in normally shallow areas unless they have access to a deeper water channel. In 2002, the Romeo Point property was purchased by Romeo Point Joint Venture, LLP for development as a residential subdivision. The Romeo Point subdivision included the western canal on which five waterfront lots were created. Petitioners own waterfront lots on the western canal. As part of the development, two permits were applied for and obtained from the SJRWMD. Mr. Goria, a licensed professional engineer, was part of the development team. SJRWMD Permit No 40-019-86850-1 authorized the stormwater management system for the Romeo Point subdivision. Romeo Point Joint Venture, LLP separately applied for permits from the SJRWMD and the Corps for “a boat access channel and [ ] a bulkhead on the western property line to facilitate access to Doctors Lake.” Its purpose was, specifically, to allow access for the future homeowners along the western canal to Doctors Lake. The boat access channel followed the course of an existing, though somewhat narrower channel used by the previous property owner and others. SJRWMD issued Permit No. 40-019-86850-2 (the “Dash-2 Permit”) for “[d]redging of a boat access channel and construction of a bulkhead along a section of the channel at Romeo Point Subdivision.” The boat access channel extended from the mouth of the western canal northward along the shoreline in front of and past Lots 19 and 18, then turning to the west at Lot 17 to the deeper waters of Doctors Lake. The boat access channel was approximately 35 feet wide with 4:1 side contours, with its centerline about 30 feet off of the bulkhead. The Technical Staff Report for the Dash-2 Permit noted that “[t]he proposed dredging [of the boat access channel] will give water access to 5-lots along the western property line.” The SJRWMD Technical Staff Report for the Dash-2 Permit also established that, upon completion of construction, the “Final O&M [operation and maintenance] Entity” was to be the Romeo Point Homeowner Association. The boat access channel allowed vessels from the western canal to navigate around a cattail dominated shoal. Although the cattails no longer grow in the area, the shallow water shoal remains to varying degrees. Among the conditions made part of the Dash-2 Permit were that the permittee purchase 0.82 mitigation credits from the Sundew Mitigation Bank. The SJRWMD also issued a Consent of Use for state-owned submerged lands to Romeo Point Joint Venture, LLP for “Dredging of Boat Access Channel in Doctors Lake at Romeo Point - Permit # 40-019-86850-2.” The permittee was required to pay $2,978.75 to DEP for severed dredge material, with the SJRWMD permit number provided to DEP on the check and the cover letter. On December 16, 2003, the Corps issued Permit No. 200300284 (IP- RLW) to Floridays Development Group, Inc.,2 to “construct a single-family, residential subdivision and bulkhead, dredge a man-made canal and entrance channel into Doctors Lake, and also construct 7 new single-family docks.” The Corps permit required the purchase of 1.86 mitigation credits. The permit plans clearly depict both the western canal and the boat access channel into Doctors Lake. The Corps permit also permitted shoreline docks at Lots 18 and 19, with the permitted dock at Lot 18 to extend from the bulkhead to the edge of the boat access channel. The shoreline dock was sufficient to provide navigational access from Lot 18 to the deeper waters of Doctors Lake via the boat access channel. The docks along the boat access channel were permitted as part of the Corps permit to ensure those docks would not block access to the channel. Other docks were also permitted by the Corps for the Romeo Point subdivision that extended further into Doctors Lake to provide navigational access for lots that did not have direct access to the boat access channel. 2 Floridays Development Group, Inc., was a company owned by Mr. Goria that owned the membership interest in Romeo Point Joint Venture, LLP. There was no dispute that the Corps permit constituted Federal authorization for the boat access channel. By sometime in 2004, all construction authorized by the permits, including the dredging of the boat access channel, was complete, and Romeo Point Joint Venture, LLP moved to the marketing and sales phase. On October 3, 2005, and as contemplated by the Dash-2 Permit, the SJRWMD permits were transferred from Romeo Point Joint Venture, LLP to Romeo Point Owners Association, Inc., for operation and maintenance. The transfer applied to both the stormwater permit and the boat access channel permit. There is nothing to suggest that the transfer to the owners’ association was improper or insufficient to transfer rights under the Dash-2 Permit. Navigation To and From the Western Canal When Petitioners bought property along the western canal, the boat access channel had been permitted and constructed for the specific purpose of providing those canal-front lots with reliable, deep-water navigable access to Doctors Lake. Persons owning, renting, visiting, or using those lots, or otherwise wanting to access the western canal, were customary users of the boat access channel. Water depths along the shoal that exists waterward of the boat access channel between the mouth of the western canal to the current location of the Lot 18 Dock were measured by DEP to range from 2 feet, 9 inches (33 inches) to 3 feet, 8 inches (44 inches) at a “rising tide towards high tide.” At the normal 12 inch tidal range, depths would be expected to range from 21 inches to 32 inches+/- at low tide. During full moons, the low tides could be as much as 0.25 feet (3 inches) lower over three or four days. Thus, the deepest area along the shoal could, on a monthly basis, be as shallow as 29 inches in depth. In order to address the issue of safe and reliable navigational access, conditions at low tide provide the best assessment of a waterway and the ability of boats to navigate in the area. Photographic evidence of Mr. Sheffler dragging his 20-foot boat through less than knee-deep water across the shoal at its deepest point near the Lot 18 Dock supports a finding that water depths across the shoal are, with regularity, insufficient to support safe navigation. In 2017, Mr. Sheffler purchased an existing home and boat lift on lot 23 along the western canal. The prior owner had previously kept a 24 and one half-foot boat on the boat lift. Mr. Sheffler kept a 21-foot Bayliner on the lift after he bought the house, which had a two foot, 10 inch (i.e., 34-inch) draft. He sold that boat with the thought of buying a larger boat for skiing, wakeboarding, and watersports with his four children. Those plans were shelved pending the resolution of this proceeding. Currently, Mr. Sheffler uses his father’s 19-foot Seafox center console boat with a 24-inch draft, which he used to navigate into Doctors Lake through the boat access channel prior to the time Mr. Kent constructed the Lot 18 Dock. He is able to navigate across the shoal at high tide, but otherwise the shoal presents an obstruction. In 2017, Mr. Davis built a home on lot 22 along the western canal that included a boat lift that could accommodate a 24-foot boat. Mr. Davis already owned a 19-foot Stingray boat with an inboard/outboard motor that he docked at his lot, and used the boat access channel to access Doctors Lake. Mr. Davis testified that, after July 4, 2019, when the Lot 18 Dock was substantially completed, he could not safely navigate around the dock, and that he ran aground on the shoal at low tide. His testimony is credited. Due to the difficulties in maneuvering his 19-foot Stingray across the shoal to the open waters of Doctors Lake, Mr. Davis postponed his planned purchase of a larger boat pending the results of this proceeding. Sadly, Mr. Davis passed during the course of the hearing, before he could buy the boat he wanted. Mr. Hudson is Mr. Davis’s son-in-law. He is an experienced boater, and has boated to the Davis home from Doctors Lake in his 20-foot Regal boat using the boat access channel. His boat is comparatively heavy, with an inboard/outboard motor and a 34-inch draft. Mr. Hudson was unable to easily and safely navigate to the Davis home after the construction of the Lot 18 Dock without grounding on the shoal at low tide. In 2017, Mr. Fuzzell purchased Lot 20 and Lot 21. Lot 20 partially fronts on Doctors Lake. Mr. Fuzzell constructed a house on each lot, each with a boat lift designed to accommodate a boat up to 26 feet in length. Mr. Fuzzell rents the house on lot 21, at which his current tenant keeps a 21-foot boat. Mr. Fuzzell built his house on Lot 20 with the expectation of purchasing a boat of sufficient size to put his family aboard, up to a 26-foot boat. Due to the blockage of the boat access channel by the Lot 18 Dock, the purchase was postponed and altered pending resolution of this proceeding. Mr. Ergle owns Lot 24 along the western canal. He has not developed the lot with a house or a boat dock. He is, nonetheless, a riparian owner. When he bought the lot, a primary reason was his expectation that he would be able to build a boat dock and keep a boat of around 24 feet. Mr. Ergle currently owns a small Boston Whaler, which he has used to visit his property. While the boat only has a 10-inch draft, Mr. Ergle has touched bottom along the shoal between the mouth of the western canal and the current Lot 18 Dock. Lt. Commander Van Hook testified to his familiarity with the area, and stated that “[i]f you were to come straight out from the channel, there's a shoal, shallow water out there, which I know about because I've gone through there. I wouldn't dare go that close to the shoreline because of how shallow it gets over that way.” Mr. Tomasi, a Coast Guard Chief Warrant Officer (Ret.) visited the area in April 2019. He went through the area in Mr. Davis’s 19-foot Stingray, and testified that they “bumped bottom” with the boat’s hull at various places, including along the “deeper” areas along the shoal. The motor was tilted up as far as possible during the trip so as to avoid having silt sucked into the water intake which could damage the motor. Mr. Tomasi noted that, like bottom contours of any water body, “it's not a complete flat, glass bottom. I mean, you're going to have contours in the sea bed and there's going to be areas that get down. You're going to have some highs and some low areas out there.”3 He stated that, during the visit, “I never found a clear path to where I could come out going somewhere along that boat access channel and then be able to cut straight out without at some point bumping bottom.” It was Mr. Tomasi’s opinion that “[i]t's not a reasonable expectation that somebody should have to attempt to hazard their boat to get in and out of their dock or their canal.” His opinion is credited and accepted. The undersigned is not unmindful of the testimony of Captain Suber, who is every bit as worthy of respect as Lt. Commander Van Hook and Mr. Tomasi. Captain Suber visited the site at roughly low tide “a week or two” prior to the hearing in a “bay boat.” He testified that there were areas along the shoal that were not passable, but through trial and error, he was able to find a way out -- or rather a way in, since he was “out in the lake and looking in” -- without grounding. However his opinion regarding navigability was quite conditioned, providing that: Well, from -- from what I see, the waterway is -- you know, it is what it is.· It's shallow and you have to be cautious, but you can get in and out of that -- that canal at low tide. This is one of those areas where local knowledge is a -- is a must. Someone that don't know anything about the waterway right in this area, they probably would stay away from this. But if you live on this area of the waterway and you know the bottom out there, you should be able to get all of these vessels that have been in question in and out of there at any time by using caution If it's -- if it's an outboard, simpler, yes, all of them, any one that I would think would be able to get in and out of there. An inboard/outboard would be possible and probable. Inboards, those drafts on those are -- and they're so sensitive, you 3 Mr. Tomasi’s testimony supports a finding that, although DEP measured a maximum of 3.8 feet along the shoal at high tide, that does not establish 3.8 feet as a uniform depth around that point. Natural undulations could cause that depth to be more or less, which would explain the “bumping.” know, if I owned one, I probably would stay out of these swallower areas with one. Most people that have full inboards, they don't even want to try to get into places like that. Captain Suber’s testimony was worthy of belief. However, to the extent his opinion was that the Lot 18 Dock did not create an impediment to navigation, it was simply outweighed by other more persuasive evidence in the record. Purchase of Lot 18 Mr. Kent became aware that Lot 18 was on the market at some point in 2015, and engaged in a series of negotiations with the owners to purchase the lake-front property. After a period of unsuccessful efforts to purchase Lot 18, Mr. Kent “caught [the owner] at the right time,” and acquired the property in 2016. At the time of the purchase, Mr. Kent knew of lots on the western canal, but was not interested in them because “I didn’t want to be limited to the size of boat that I … used,” and “I wanted a long dock to put a -- I wanted a couple of boat lifts just like I do, just like the neighbors.” The line at which four-foot of depth in the boat access channel existed, and the point to which Mr. Kent would have to “wharf out” from Lot 18 to achieve four feet of navigable depth, was roughly 12 to 15 feet from the Lot 18 bulkhead. Around the last week of September or the first week of October 2017, prior to his construction -- or planning -- of the Lot 18 Dock, Mr. Kent, while on a walk around the neighborhood where he then lived, ran across his neighbors, Mr. Goria and Lt. Commander Van Hook. Mr. Kent knew that Mr. Goria had been involved in the development of Romeo Point, and took the opportunity to inquire about the area, and discussed his desire to build a long dock, similar to his neighbor’s dock to the north, extending from the shoreline of Lot 18 to the open waters of Doctors Lake. Mr. Goria advised Mr. Kent of the existence of the permitted boat access channel that provided navigational access to residents of the western canal to Doctors Lake, a statement heard by Lt. Commander Van Hook. The conversation was memorable because Mr. Goria stated his belief that Mr. Kent was fortunate that his boat lift was going to be right on his bulkhead, which would save him considerable money on having to build a dock. When Mr. Kent expressed surprise, Mr. Goria explained that “we dredged a channel for the canal lot owners that goes and meanders right along your bulkhead and then goes out between you and [lot] 17.” Mr. Kent stated that he wanted a big dock,4 to which Mr. Goria stated that he would be blocking the channel near his bulkhead used by the canal front owners. Mr. Goria testified that Mr. Kent then stated that “well, that's their problem. They can't stop me.” Lt. Commander Van Hook testified, credibly and without reservation, that Mr. Goria “made it 100 percent clear on a two-way dialogue that without a doubt, there's a boat access channel that runs along the bulkhead that provides access from the folks that live back on the canal, the petitioners. … access to the deeper waters out in Doctors Lake.” He testified to his recollection of the conversation that “I know [Mr. Goria] said [the channel] ran parallel to the bulkhead that gets out there so parallel to the Romeo Point bulkhead. So if that puts it up against your lot, depending on how far it goes out there, I just know that it ran parallel. I don't know how far off.” He then stated that Mr. Kent’s “only response pretty much was he's going to apply either way. His plans were to build an extended dock.” When asked if it was reasonable for one to conclude that Mr. Kent knew of the existence of the 4 Mr. Kent’s desire to have a big dock on Lot 18 was not new. As he testified at hearing, “I mean, hey, it's everybody's dream to live on the water. But for this particular area, I mean, come on. … Who wouldn't walk up to [Lot 18] and want a boat dock. I wanted a boat dock before I bought it.” boat access channel as a result of the conversation, Lt. Commander Van Hook replied, “Yes, sir, without a doubt.” Mr. Kent disputed his response, or even understanding, of the information provided by Mr. Goria, testifying unconvincingly that he thought Mr. Goria was talking about the western canal. Nonetheless, Mr. Goria provided clear and accurate information that a SJRWMD permitted boat access channel crossed the front of Lot 18 and provided residents in the area the 24-hour right to deeper water without restricting them to the tides, and that Mr. Kent was likely to have difficulty obtaining regulatory approval for his dock. While it is impossible to know what might have been going through his mind, the most reasonable inference that can be drawn is that Mr. Kent knew of the existence of the boat access channel, and knew that the Lot 18 Dock as he wanted it would sever navigational access for residents along the western canal.5 The First General Permit Mr. Kent purchased Lot 18, and proceeded to make application to DEP for the first general permit. Since the Romeo Point subdivision was subject to two SJRWMD permits, the Operating Agreement between SJRWMD and DEP, dated July 1, 2007 (“Joint Agreement”), called for further permits affecting the area to be processed by SJRWMD. That did not occur. Mr. Kent hired C&H Marine, which prepared the application for the permit, submitted it to DEP, and ultimately constructed the Lot 18 Dock. The first general permit application called for the construction of “a single-family dock less than 2,000 sq. feet with one slip.” The application 5 Mr. Goria’s and Lt. Commander Van Hook’s testimony as to Mr. Kent’s statements, offered by Petitioners, constitute admissions of a party opponent, and are, therefore, not hearsay. § 90.803(18). Fla. Stat. Neither Mr. Goria nor Lt. Commander Van Hook has any direct interest in the outcome of this proceeding, and both were credible and persuasive. Their testimony is accepted, and supports the inference of Mr. Kent’s knowledge of the boat access channel and its effect on Petitioners prior to the permitting of the Lot 18 Dock. drawings showed that Lot 18 had 105 feet of frontage on Doctors Lake, and depicted a five-foot wide dock that extended 150 feet into Doctors Lake, with a 20-foot x 10-foot terminal platform and a boat lift totaling 865 square feet for a total structure of 1,665 square feet.6 The dock was depicted as being five feet above the mean high water (“MHW”) elevation. A 25-foot riparian setback was shown between the Lot 18 Dock and the adjacent property to the north. The boat access channel was at least six feet deep at its center, roughly 35 feet wide, and four feet deep only 12 to 15 feet from the bulkhead. Even a minimally competent investigation would have revealed the channel. However, the application identified underwater bottom contours and depths that gradually and evenly sloped from shallow at the bulkhead to four feet deep at the terminus of the Lot 18 Dock. As noted by Ms. Mann, “[i]t showed a smooth -- relatively smooth seafloor bed.” The length of the dock on the permit application drawings was not to scale, with the application drawing being shortened through the use of “continuation marks.” Those continuation marks subsumed the section of lake bottom through which the boat access channel ran. Thus, the channel was not depicted in the application. Regardless of intent or reason, by its use of continuation marks in the application drawings, the contractor quite effectively managed to conceal the channel from DEP.7 Since the application was being filed on his behalf, it was Mr. Kent’s obligation to ensure its accuracy. Mr. Kent, despite having been told of the permitted channel and of the existence of regulatory permits 6 There was no definitive measure of the width of Lot 18. Though the application indicated it was 105 feet, Mr. Kent testified that “I’ve seen 101. I’ve seen 106. I’ve seen 104. So I guess it depends where you measure. I have no idea.” DEP later measured the width as 101 feet. 7 Since Mr. Goria advised Mr. Kent that the boat access channel was going to make it difficult to obtain regulatory approval for his dock, the omission of what should have been a patently obvious subsurface feature existing no more than 15 feet off of the bulkhead, and the replacement of that section of lake bottom with continuation marks, seems more than coincidental. authorizing its construction, failed in that obligation, resulting in an application that was, at best, misleading. Furthermore, even accepting that neither Mr. Kent nor the contractor knew of the channel before construction commenced, which is a stretch, its existence absolutely had to have become apparent early on in construction. Mr. Kent or C&H Marine had an obligation at that time to disclose to DEP that the application was false and inaccurate. Neither did so. Upon receipt of the first general permit application, Ms. Mann reviewed the SJRWMD GIS system to determine if there were permits within a one-quarter mile radius of Lot 18. The depiction of that radius on a map appears to encompass most, if not all of the Romeo Point subdivision. The SJRWMD GIS system did not show any permits within the one-quarter mile radius except for a dock permit related to a lot to the north of Lot 18. Ms. Mann did not check the linked permit associated with that lot. Had she done so, she would have discovered the Corps authorization for the boat access channel. DEP’s ERP Checklist incorrectly indicated that the Lot 18 Dock application “was not in a WMD permitted area.” If DEP had correctly noted that the SJRWMD had issued permits for the Romeo Point subdivision, DEP would have had to coordinate the Lot 18 Dock application with the SJRWMD. DEP issued the first general permit on June 17, 2019, to “construct a 1,615 sq ft private residential single family dock consisting of an access pier and a covered boat slip and terminal platform, within Doctors Lake, a Class III Florida waterbody,” which included the Letter of Consent, as well as a State Programmatic General Permit V-R1 on behalf of the Corps. Notice of the first general permit was not provided to Petitioners either by actual notice or by publication. Petitioners’ Notice of the Lot 18 Dock After the first general permit was issued, Petitioners’ became aware of the proposed Lot 18 Dock when, during a homeowners’ association meeting that took place prior to the commencement of construction, Mr. Kent advised Mr. Davis that construction of the Lot 18 Dock was scheduled to begin the following week. That disclosure triggered a second meeting at Mr. Davis’s house that included the president of the homeowners’ association, Mr. Davis, Mr. Sheffler, Mr. Kent, and several other homeowners to discuss the fact that the Lot 18 Dock would block the boat access channel. Mr. Kent’s solution was not to delay the construction of the Lot 18 Dock to come to a solution, but rather, “if you guys ever[ ] get stuck and cannot navigate, I’ll participate in dredging your canal.” Petitioners made their concerns known to Mr. Kent well before the first piling was set for the Lot 18 Dock. Nonetheless, knowing then with certainty that a boat access channel existed along the shoreline in front of Lot 18, knowing that the application was misleading by omission, and knowing of his neighbors’ objections, Mr. Kent made no effort to disclose that information to DEP, and proceeded with construction. Petitioners advised DEP of their concerns on or about June 28, 2019, which included a description of the boat access channel,8 Petitioners expressed their objection to the Lot 18 Dock on the ground that it cut off their access to the permitted boat access channel. DEP took no action, despite then having knowledge that the application was false. Case No. 19-4192 On July 17, 2019, Petitioners filed a petition for hearing to challenge the issuance of the first general permit for the Lot 18 Dock. The petition alleged that DEP provided them with an extension of time to file the petition 8 The exact date on which construction commenced was not disclosed. However, on July 4, 2019, the boat access channel was still passable, with only string marking its path. Thus, by June 28, 2019, DEP had information showing the falsity of the application that should have triggered some inquiry before the boat access channel was severed. on June 28, 2019, which is corroborative of testimony that Petitioners advised DEP of the boat access channel on that date. Three weeks later, on August 7, 2019, the petition was referred to DOAH and assigned as Case No. 19-4192. The petition alleged, inter alia, that the Lot 18 Dock crossed the existing navigational channel that Petitioners used to navigate motorized watercraft to the open waters of Doctor's Lake and the St. John's River, and created unnecessary restrictions on Petitioners’ access to those navigable waters. Case No. 19-4192 was set for hearing to commence on October 17, 2019. On September 27, 2019, DEP filed a Notice of Intent to Change Agency Action and Motion to Put Case Into Abeyance, in which DEP stated that it had taken enforcement action on the Lot 18 Dock as built. The Notice stated that DEP intended to require that Mr. Kent apply for another permit, which Petitioners would be able to contest. On December 18, 2019, the presiding ALJ relinquished jurisdiction over Case No. 19-4192 to DEP. The Lot 18 Dock As-built The Lot 18 Dock, as constructed, deviated materially from the dock as permitted. As important as the fact that the Lot 18 Dock was not compliant with the permit is that, as pilings were being set during the period of construction, it could not have been overlooked9 that the proposed dock was bisecting the deeper water boat access channel. However, no one advised DEP of the existence of the channel, an omission that, given the facts and the record of this proceeding, could only have been intentional, and could only have been to conceal the existence of the deeper water channel from DEP and other regulatory entities while construction of the Lot 18 Dock was completed. 9 It is impossible to conclude that a marine contractor, regardless of their degree of competence, could fail to notice that they were setting pilings in six feet of water rather than two feet of water. The Lot 18 Dock was constructed to a length of 193 feet, exceeding the 160-foot length (which includes the ten feet of terminal platform) depicted in the permit application drawings. Going out that extra length also, as described by Mr. Kent, “gave me like 4 or 5 inches more of depth.” Therefore, instead of the dock ending at the permitted four-foot (48 inches) depth, he now had up to 53 inches of depth, all the better for a bigger boat. Mr. Kent testified that he directed the contractor to build out to that length, because it would be cheaper to have it done while the equipment was on-site, rather than waiting to have the extra length permitted. The as-built lift was 36 feet in length, rather than the permitted 34 feet, and will hold a boat of 32 feet.10 The walkway of the dock was measured by DEP to be two feet, seven inches above MHW rather than the required five feet as permitted. The as-built structure also included four unpermitted pilings and a second boat lift. Mr. Kent believed that the pilings would be “permittable,” so went ahead and authorized the contractor to install them without waiting for a permit. The second lift will “probably hold a 26-footer.” C&H Marine installed cleats on several pilings for the terminal platform/boat lift that were suitable to allow an additional vessel to tie-up to the dock. Those cleats were -- purportedly -- installed without Mr. Kent’s knowledge, and have been removed. Mr. Kent was on vacation for some of the construction of the Lot 18 Dock.11 Upon his return, the dock was completed despite Petitioners’ objections, and despite a DEP request that he stop work. 10 The size of the boat could likely be greater, since the covered slip/lift was built two feet longer than permitted. 11 Mr. Kent testified to a general lack of knowledge of the course of the construction due to his vacation. However, he knew of the extra pilings, and approved their installation because he thought they would be “permittable.” He testified that during his vacation, he contacted Michelle Neely at DEP to inquire about a “residential bridge,” a discussion memorialized by Ms. Neely on July 24, 2019, in correspondence to Mr. Sheffler, though there was no direct evidence that he advised her of the boat access channel. He was on the site (“I walked out there. And at some point -- I can't give you a date as to when. It was before the big piece was built. That's for sure.”) and authorized C&H Marine to extend the Lot 18 Dock from 160 feet to its as-built 193 feet, stating that “[w]hen I asked him to extend it, I knew that wasn’t permitted yet, but it was permittable.” These issues do not directly apply to the issue of The August Compliance Inspections Reacting to information from Petitioners, DEP conducted site inspections of the Lot 18 Dock on August 21, 2019, and August 27, 2019. The as-built conditions described above were noted by DEP at those times, as was the fact that the dock “appears to be approximately 19 ft from the northern neighbor’s apparent riparian rights lines.” The ERP Inspection Report noted “Significant Non-Compliance” with the Lot 18 Dock. The report identified the SJRWMD permit “to allow for boat access,” but claimed “[d]uring the review process, inquiry on the SJRWMD ERP GIS page did not reveal the existing [sic] of a SJRWMD permit.” The ERP Inspection Report recognized that the western canal homeowners “claim[ed] the dock impedes their ability to use the channel along the shoreline, that was part of the SJRWMD permit #40-019-86850-2, and access Dr’s Lake.” The DEP staff recommendation was to allow Mr. Kent to keep the Lot 18 Dock as constructed, with a monetary fine and a minor corrective measure. The ERP Inspection Report noted that if Mr. Kent wanted three boat slips on the Lot 18 Dock, he would need to apply for a single family lease. The ERP Inspection Report made no further mention of the boat access channel or the SJRWMD permit, and gave no recognition or accommodation for the seemingly legitimate concerns of the western canal homeowners. Based on its observations, DEP issued Warning Letter No. WL19-213 to Mr. Kent noting that the dock “was constructed in a manner not consistent with your permit application and its supporting documentations.” As was the case with the ERP Inspection Report, the Warning Notice made no mention of the boat access channel, the SJRWMD permit, or Petitioners’ navigational concerns. whether the Lot 18 Dock impedes navigability, which it would have done whether it was 93 or 193 feet in length, and whether it has one or three slips. However, these issues demonstrate a general conscious disregard for the permitting authority of DEP, and affect the weight to be given Mr. Kent’s testimony. The October Compliance Inspection On October 15, 2019, following a complaint of a further unpermitted addition, DEP conducted a third compliance inspection. Previously, according to Mr. Durden, DEP “negotiated” with Mr. Kent, advising him that if he removed the unauthorized cleats that had been installed on the Lot 18 Dock, DEP “could issue the permit, because then he would have only two boat slips.” The October inspection revealed that, after DEP issued the Warning Notice, and despite his having been advised of the two-slip limitation, Mr. Kent installed an unpermitted floating personal water craft (PWC) dock midway along the span of the dock that was suitable for landing a jet-ski. Mr. Durden testified that “[h]e removed the cleats [which had been installed to create a third slip on the unpermitted second boat lift pilings]. And then a period of time passed and then he decided to install the ski lift.” Counting the unauthorized PWC lift, the Lot 18 Dock had -- and currently has -- three boat slips under DEP’s jurisdiction. The installation of the unauthorized floating dock while permitting and enforcement were ongoing suggests an ongoing and blatant disregard for DEP’s permitting and enforcement authority. The Consent Order On December 19, 2019, DEP and the BTIITF entered into a Consent Order, OGC File No. 19-1272, with Mr. Kent to resolve all issues, including the unpermitted third PWC dock. Mr. Kent was charged a fine of $2,750.0012 to resolve the issues of non- compliance. Despite by then having information that established, as a matter 12 Mr. Kent was allowed to keep the Lot 18 Dock’s unauthorized “extra 30 feet [and corresponding] 4 or 5 more inches of depth,” the unpermitted second boat lift, and the floating PWC dock that was constructed after enforcement proceedings had commenced, without any corrective measures whatsoever, all for the modest “fine” of a $2,750, of which $250 was the “permit fee.” By the time the Consent Order was executed, DEP knew the Lot 18 Dock was severing a permitted navigational channel, and should have known, through months of involvement with Petitioners, including DOAH Case No. 19-4192 that the of law, that the Lot 18 Dock had three slips and did not qualify for a general permit, DEP nonetheless issued the revised general permit, including the Letter of Consent and water quality certification under the Clean Water Act. Mr. Kent was not required to obtain an individual ERP or a single family lease. At the final hearing, DEP admitted that an individual ERP is required and, in the course of this de novo proceeding, asks that the Lot 18 Dock be measured against those standards. DEP made no mention in the Consent Order of the boat access channel. The Consent Order did not note that severing the channel forces Petitioners to have to navigate through shallow and unsafe waters to get to Doctors Lake from their homes, on which they may -- and have -- run aground. The Consent Order did not acknowledge the existence of the SJRWMD Dash-2 Permit or the Corps permit. DEP had knowledge of all of those things both as a result of its involvement in DOAH Case No. 19-4192 and as evidenced by its August 21, 2019, ERP Inspection Report. The Boat Access Channel as a Navigational Channel The boat access channel was permitted as a navigational channel by the SJRWMD and the Corps, and permission to use state owned lands for that purpose was granted by the BTIITF. When the boat access channel was dredged, its entrance to and from Doctors Lake was marked with two PVC pipes, which remain in their original positions. It is not uncommon for people to mark channels with PVC pipe. While the pipes are by no means “regulation” Coast Guard approved channel channel was customarily used, marked, and provided Petitioners with their only means of reliably safe navigation between the western canal and Doctors Lake. Rather than acknowledging its mistake in permitting an illegal dock, regardless of the circumstances, DEP reacted with casual diffidence, questioning the validity of the SJRWMD’s Dash-2 Permit, overlooking the Corps permit, ignoring that the dock encroached into, and severed, a permitted, marked, and customarily used navigation channel, and generally minimizing Petitioners’ legitimate rights of navigation. Perhaps, as surmised by Mr. Sheffler, DEP was “trying to figure out ways to, you know, kind of save face.” However, the rationale and merits markers, and are not particularly distinctive, they are private markers that are known by and provide navigational and boating information to lot owners and other customary users in the area for whom the boat access channel was designed, permitted, and constructed, and who are customary users of the boat access channel. Ms. Mann testified that “[i]t was [DEP’s] position that this was not marked not in a way that we would determine it to be in a navigable channel. PVC poles in the water don't really mean anything.” However, DEP has no rule defining what constitutes a marker sufficient to establish a “marked channel,” or that would establish a limitation that is inconsistent with the plain meaning of the term. A preponderance of the evidence in this case demonstrates that the PVC pipes were, prior to its severance by the Lot 18 Dock, channel markers known to persons in and using the area as establishing the entrances to the boat access channel. Ms. Mann continued in her testimony, stating that “we saw plenty of people who went without needing to use the navigation channel, so we determined it was a customarily used navigation channel, that it was not needed.” At the time Ms. Mann visited the site, boaters could not use the navigational channel, since it was blocked. Boaters would not be relying on the markers since they marked the mouth of the channel on the other side of the Lot 18 Dock. Furthermore, Ms. Mann was on-site at close to high tide. That persons may, by necessity, be forced to navigate through unsafe waters or not navigate at all is no evidence that the navigation channel “was not needed.” The evidence in this case establishes by a preponderance of competent substantial evidence that the boat access channel was, before the construction of the Lot 18 Dock, both marked and customarily used. It provided safe and reliable navigable access to the western canal for residents -- or lack thereof -- of DEP’s actions are beyond the scope of this proceeding, which is not an enforcement case. and their families and guests. Though sparsely used by the general public for fishing or boating, there is nothing to restrict such use. The boat access channel is, by all factual measures, a “navigational channel” as described by DEP rule. Effects on Navigation When Mr. Kent purchased Lot 18, he had every bit as much access to the open waters of Doctors Lake as did Petitioners. He could have, as contemplated and approved by the Corps permit, constructed a parallel dock along the Lot 18 shoreline and freely accessed the navigable waters of Doctors Lake via the boat access channel in any vessel capable of operating in six feet of water. A preponderance of the competent, substantial evidence in the record establishes that the depths along the shoal are not sufficient during all normal periods to safely navigate without a reasonable likelihood of grounding. That evidence is persuasive and accepted. Mr. Durden credibly testified that a person is “allowed to wharf out until you reach a depth of at least four -- well, 5 feet, which [DEP] would consider a safe depth to be able to have a boat.” Furthermore when asked whether it is “the department's policy for issuance of consent to use sovereign land, that you're entitled to get to 4 feet for your dock,” Ms. Mann responded that “I believe that is actually part of our regulatory 62-330.” Mr. Durden testified, and the evidence supports, that the boat access channel varied from between six feet to seven feet, 11 inches in depth when he conducted his on-site measurements at a “rising to high tide.” Thus, even at the lowest lunar tides, the boat access channel provided safe navigational depths to the owners of the western canal lots, and to Lot 18, of greater than four and a half feet. Ms. Mann candidly admitted that before the Lot 18 Dock was constructed, Mr. Kent had more than four feet of access for a dock and boat at his bulkhead. Mr. Kent admitted that Petitioners “don’t have the same water access -- deep water access to Doctors Lake that they had before [he] built [his] dock,” and that “their canal is 4½ feet deep. The channel goes to 6 foot deep, and now that 6-foot depth isn’t there all the way.” In fact, the only means of accessing Doctors Lake in the absence of the boat access channel does not even approach 4 and one half feet in depth, being in most places less than half that at low tide. Ms. Mann’s testimony that “[w]e determined that vessels had plenty of space to maneuver around Mr. Kent's dock” was simply and substantially outweighed by countervailing competent, substantial, and credible evidence. The impairment to navigation in this case could not be clearer. Mr. Kent had no interest in purchasing a canal-front lot because he “didn’t want to be limited” in the boat he could use -- with the Lot 18 Dock being able to accommodate two boats and additional PWC, with one lift suitable for a boat of a minimum of 32 feet, and the other which would “probably hold a 26-footer.” However, neither DEP nor Mr. Kent seemingly have any issue with the fact that Petitioners were previously not limited in owning any vessel that their slips could accommodate (generally up to 24 to 26 feet), and now they are limited to smaller, shallow draft boats that, even then, occasionally ground on the shoal. DEP and Mr. Kent both minimized the effect of the reduced depth for Petitioners to navigate, seemingly arguing that a depth of 29 to 32 inches -- the deepest point along the shoal at or near low tide13 -- is just as good as the four-foot depth acknowledged as being “a safe depth to be able to have a boat” 13 The maximum depth measured by DEP along the shoal was three feet, eight inches at a rising to high tide. Subtracting the normal 12 inch tidal range results in a depth of two feet, eight inches+/- (32 inches) at low tide. Every month for several days during the full moon, tides may vary by up to an additional 0.25 feet (3 inches) on both cycles. Thus, depths at the deepest point along the shoal are regularly reduced to 29 inches+/-. Furthermore, Mr. Sheffler measured depths in the vicinity of the Lot 18 Dock that were closer to two feet (24 inches). Given natural variations that occur on the bottom of natural bodies of water, both sets of measurements are credible. and safe for navigation by Mr. Durden and Ms. Mann, is just as good as the 53 inches of depth gained by Mr. Kent from his unpermitted dock extension, and is just as good as the six-foot depth of the boat access channel. The shallower, unsafe depths across the shoal are not just as good. Even Mr. Kent admitted that inches have navigable value, testifying with regard to the settlement of his illegal dock extension: I paid that fine. But I did that because it gave me like 4 or 5 inches more of depth. I wouldn't have wasted my money to extend my dock if I didn't get that. ... I'm just saying that I paid the fine and did the extra 30 feet because it got me 4 or 5 more inches of depth. The natural variation of bottom depths, as described by Mr. Tomasi, reveals the fallacy of basing determinations of navigability on small changes in depth measured by inches that can be counted on one hand, and the folly of trading clearance in feet for clearance in inches. Respondents argue that Petitioners should just be satisfied with smaller boats, or plan their outings to correspond to the tides,14 or trim their motors up to the point they may lose control,15 or carefully thread their way through slightly and almost imperceptively deeper areas on the shoal, all while avoiding collision with the Lot 18 Dock16 -- none of which would guarantee that they would not ground their vessels. Meanwhile, DEP proposes to allow Mr. Kent, who already had deep water access to Doctors 14 Mr. Tomasi testified that due to the likelihood of hitting bottom while crossing the shoal at low tide, Petitioners would have to pick the times for boating based on the tides, both coming and going. If they went out at a falling tide, they would have to wait until the tide started coming in to get back. Mr. Tomasi credibly and correctly opined that safe navigation “shouldn't be restricted to tides nor should you be restricted to a moon cycle.” 15 Mr. Hudson is an experienced boater, and credibly explained that to “trim up” a motor on a boat causes navigation to become more “challenging,” and that “with the propeller pushing water behind you, you lose a certain percentage of control or navigation.” Mr. Tomasi echoed that observation. Their testimony is credited. Lake via the boat access channel, to maximize his ability to have more and bigger boats, to the detriment of Petitioners and anyone else desiring to safely access the western canal. Petitioners have not sought permission to recreate in unusually large vessels or vessels not suitable for the area. They are simply asking to be able to safely navigate to and from their homes in boats six to eight feet smaller than Mr. Kent’s 32-footer, i.e. generally the size of his spare. This case is not one in which Petitioners are requesting that Mr. Kent relinquish his riparian right of navigation so that they can have larger vessels, or vessels inconsistent with normal family recreation. Rather, it is Mr. Kent’s desire to have larger and more vessels that has created this dispute. The evidence is clear that Mr. Kent had -- and has -- an unrestricted ability to navigate to and from Lot 18 via the boat access channel. Thus, although the Lot 18 Dock is a clear impairment of Petitioner’s rights to navigation, the denial of the permit and Letter of Consent would create no impairment of Mr. Kent’s right to navigation, and in no way would constitute an unreasonable infringement on Mr. Kent’s riparian rights. As a result of the construction of the Lot 18 Dock, the boat access channel, a marked, customarily used, and validly permitted and constructed navigation channel, for which mitigation credits were purchased and severance fees were paid to the state, has been entirely severed with seemingly no concern for the adverse effects on navigation suffered by the persons for whom the ability to safely navigate was intended. The position espoused by Respondents in this case simply creates a substantial and entirely unnecessary impediment to navigation, violating both the plain- language of, and the public policy behind DEP’s ERP rules, and the BTIITF’s sovereignty lands authority. 16 Winds or seas can push a boat around, a situation that is exacerbated when the motor is trimmed up. Therefore, one would generally not want to get close to the Lot 18 Dock, or any Letter of Consent Rule 18-21.004(7)(g) provides that “[s]tructures or activities shall not create a navigational hazard.” As set forth herein, the preponderance of the competent substantial evidence in this proceeding firmly establishes that the Lot 18 Dock has created a navigational hazard by severing the permitted, marked, and customarily used boat access channel, thus, forcing Petitioners and other persons wanting to use the waters in the area to cross the shallow shoal, which is both unsafe and unnecessary. Ms. Mann testified that, in determining whether the Lot 18 Dock is the “minimum size” necessary, “we had taken that to look at the other docks in the area, and if he is on average with those other docks, then we consider it minimum size for that area.” However, the definition of a “minimum size dock or pier” in BTIITF rule 18-21.003(39) includes a comparison to other permitted docks as but one factor for consideration. The rule provides, in pertinent part, that: “Minimum-size dock or pier” means a dock or pier that is the smallest size necessary to provide reasonable access to the water for navigating, fishing, or swimming based on consideration of the immediate area’s physical and natural characteristics, customary recreational and navigational practices, and docks and piers previously authorized under this chapter. The evidence in this case firmly establishes that the Lot 18 Dock is not “the smallest size necessary to provide reasonable access to the water for navigating, fishing, or swimming.” Mr. Kent had reasonable access to the water for navigating by using the boat access channel, and could have used any vessel with a draft of six feet or less from a shoreline dock as permitted by the Corps in 2003. The Lot 18 Dock did not take into consideration the area’s customary recreational and navigational practices, which previously relied on the boat access channel. Other previously authorized docks in the dock, with the potential to be pushed into the dock, damaging the boat, the dock, or both. area are not appropriate comparators because none have access to the boat access channel, and none encroach into and sever a permitted navigational channel, as does the Lot 18 Dock. The Lot 18 Dock is not, as a factual matter, a “minimum size dock or pier.” The Lot 18 Dock preempts substantially more sovereignty submerged lands than necessary for Mr. Kent to wharf out to four feet of navigable water. Environmental Issues Petitioners argue that substantial resources, predominantly seagrasses, exist in the area along the shoal, which seagrasses would be churned and scoured by vessels navigating across the shoal, and that the Lot 18 Dock is, therefore, contrary to the public interest. Since 1994, submerged vegetation has declined in Doctors Lake as a result of drought, invasive species, and hurricanes, particularly those in 2017 and 2018. DEP notified the Department of Agriculture and Consumer Services (“DACS”) and the Florida Fish and Wildlife Conservation Commission (“FFWCC”) of the Lot 18 Dock application. DEP did not receive comments from FFWCC within 30 days, which generally indicates that it did not have objections. See § 20.331(10), Fla. Stat. The response, if any, from DACS was not disclosed. On June 8, 2020, DEP conducted a limited environmental survey of the shoal area adjacent to the Lot 18 Dock and in front of the western canal. The purpose of the survey was to determine if there is plant or animal life in the area, if the shoal area is of any environmental importance, and if it contains any endangered or protected species. Nine samples were taken at various locations along the “top” of the shoal, including dredge samples, a dip net sample, and one Shelby core sample. All were taken from a boat. The DEP sampling revealed that the substrate consists mostly of sand, with less than 2 percent muck or organic material mixed in or on top. There was little animal or plant life, except for some juvenile clams of unknown species that appeared in several of the samples. There was one sample with two small plant fragments, but it was not known whether they rooted in the bottom or if they drifted in. Mr. Durden testified that “[t]here certainly was no substantial amount of vegetation found anywhere.” There were no endangered or protected species. DEP concluded that the shoal is of low environmental value and suitable for authorization for a permit. On June 5, 2020, Mr. Estes conducted a study of the shoal area to determine if there was a presence of submerged aquatic vegetation in the area. He was there less than a half an hour. He generally concentrated his study area to the shallower area of the shoal closer to the mouth of the western canal from the 2’9” to 3’3” readings as depicted on Joint Exhibit 10. He did not pay much attention to the area around the Lot 18 Dock. Mr. Estes found a “very sparse coverage” of eelgrass, which is a species common in Doctors Lake. He also found some clams between 4 and 5 centimeters on average, which he believed to be adults. Mr. Estes was not able to opine whether the clams were important to a blue crab fishery in the area since it was outside of the scope of his study. Mr. Estes could not state that the area was of any current ecological significance. Rather, his testimony was limited to an opinion that conditions at the site were suitable for reestablishment of eelgrass. He believed that boats crossing the shoal could leave “prop scars” which would interfere with submerged vegetation recruiting back into those areas. The evidence was insufficient to support a finding that the Lot 18 Dock, or navigation across the shoal, will interfere with the current environmental functions of the area, will adversely affect the conservation of fish and wildlife, or will adversely affect fishing and recreation rights.
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 an environmental resource permit for the Lot 18 Dock, whether it be the revised general permit authorized in the December 6, 2019, Consent Order or an individual ERP; denying the November 19, 2019, Letter of Consent or other form of state lands authorization for the Lot 18 Dock; and requiring measures to reestablish the boat access channel and Petitioners’ rights of navigation in recognition of their riparian rights of navigation and the valid St. Johns River Water Management District Permit No 40-019- 86850-2, and U. S. Army Corps of Engineers Permit No. 200300284 (IP- RLW). DONE AND ENTERED this 31st day of August, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 2020. COPIES FURNISHED: Paul Joseph Polito, Esquire Department of Environmental Protection Mail Stop 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399 (eServed) Terrell K. Arline, Esquire Terrell K. Arline, Attorney at Law 1819 Tamiami Drive Tallahassee, Florida 32301 (eServed) Zachary Roth, Esquire Ansbacher Law Suite 100 8818 Goodby's Executive Drive Jacksonville, Florida 32217 (eServed) Andrew T. Kent 2059 Castle Point Court Fleming Island, Florida 32003 (eServed) Lea Crandall, Agency Clerk Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Justin G. Wolfe, General Counsel Department of Environmental Protection Legal Department, Suite 1051-J Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed) Noah Valenstein, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 (eServed)
