The Issue The issue is whether Respondent properly issued Site Approval Order No. 3-99-01 for Ochlockonee Bay Seaplane Base pursuant to Chapter 330, Florida Statutes, and Chapter 14-60, Florida Administrative Code.
Findings Of Fact On July 8, 1997, Walt Dickson, the applicant, filed an Airport Site Approval and License Application with Respondent for a seaplane base located two (2) miles south of Panacea, Florida, in Ochlockonee Bay, Wakulla County, Florida, at Latitude N29 degrees, 59'35" N, Longitude W 84 degrees, 23'73" W. The application gives the following legal description of the proposed facility: Lot lying between Williams Brothers Lumber Co. lot and Troy Fain lot on river in SW 1/4 of Section 1. A map of the proposed seaplane base was attached to the application. The map shows a sea lane 1/ toward the middle of Ochlockonee Bay. The sea lane has an east/west heading. It is three (3) miles long with a primary width of one (1) mile and a usable width of one-half (1/2) mile. The application does not indicate the exact position of the sea lane. The application's map indicates that a bridge for U.S. Highway 98 is located east of the proposed sea lane and shoreline facilities. The bridge crosses the bay, connecting the bay's northern and southern shores. The bridge has an approximate height of 42 feet above sea level. East of the bridge, the mouth of the Ochlockonee Bay opens into the Apalachee Bay and the Gulf of Mexico. The application's map indicates that the shoreline facilities of the proposed seaplane base are located on the northern shore of the Ochlockonee Bay, west of the bridge and east of Bayside Marina. A plot of the proposed shoreline facility shows a dock or pier, of undetermined length and width extending into the bay. Ms. Ann Tiller, Respondent's aviation licensing specialist for district three, performed the initial review of the subject application. She considered Chapter 330, Florida Statutes, Chapter 14-60, Florida Administrative Code, and FAA Advisory Circular No. 150/5395 in conducting her review of the application. First, Ms. Tiller reviewed the application to ensure that it was complete. She determined that the application contained, among other things, the following information: FAA air space determination, zoning approval from the appropriate governmental agency, copy of the deed, lease or easement, legal description that indicates section, township, range and geographical coordinates, general location maps showing nearby roads, towns and landmarks, U.S. Geological Survey quadrangle maps . . . [o]r equivalent with facility plotted. Ms. Tiller testified that the application "in itself probably would not show that [the site] is adequate." She stated that "[w]hen [the applicant] sends me the application, he is telling me that he thinks it is adequate." The application did not address the following factors outlined in FAA Advisory Circular No. 150/5395: performance characteristics of the proposed seaplane, water currents or wave action, shifting channels, ship or boating activity on the water, prevailing winds, wind data during daylight hours, adequacy of the water depth for a seaplane, or information about the taxi channel dimensions for the take-out and launch ramp. On May 8, 1998, Ms. Tiller conducted a site inspection to determine the adequacy of the site. She did not go out into the bay on a boat. During the inspection, Ms. Tiller advised the applicant's representative that the required approach ratio for the takeoff and landing area was 20 to 1 and that the applicant would need to install a windsock before receiving a license. She made a general observation of the proposed site, finding no obvious reason to deny site approval. After making the inspection, Ms. Tiller completed an Airport Site Inspection report. The report states that the site "is feasible for the proposed use and can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60." Ms. Tiller did not consider the factors listed in the FAA Advisory Circular in making this determination. According to Ms. Tiller, the standards in the FAA Advisory Circular apply after the applicant receives site approval. She considers them as guidelines during the licensing phase of the application review, showing "what possibly could be done." By letter dated May 22, 1998, the FAA informed the applicant as follows: . . . it has been determined that the subject seaplane base will not adversely affect the safe and efficient use of airspace by aircraft provided the following requirements are complied with: All operations are conducted in VFR weather conditions. The landing area is limited to private use. You execute and maintain an operational letter of agreement with the Wakulla County Airport that would insure operation at this proposed seaplane base will not disrupt or conflict with operations at the existing public use airport. We recommend you reference FAR [Federal Aviation Regulations] 91.69, Right of Way Rules; Water Operations and comply with FAA Advisory Circular, AC 150/5395-1, Seaplane Bases. On April 19, 1999, the Wakulla County Board of County Commissioners executed an Operational Letter of Agreement between the Ochlockonee Bay Seaplane Base and the Wakulla County Airport. Prior to the hearing, Bobby Grice, Respondent's Public Transportation Manager, made a site inspection. He did not go out into the bay on a boat. Mr. Grice determined that the proposed takeoff and landing area met the required approach ratio of 20 to 1. He also concluded that the proposed sea lane, which is west of the bridge with a heading of 927, did not require a pilot to takeoff and land in close proximity to the bridge. Mr. Grice reached this conclusion without knowing the precise location of the takeoff and landing area. Mr. Grice's observation of the site did not reveal anything that "[p]rohibited [him] from saying that . . . somewhere in the bay that's 3 miles long and a mile wide, that somewhere in there we cannot find an area that is at least 1800 feet long, that's at least deep enough for a plane, and without obstruction." Mr. Grice testified as follows when questioned regarding the possible placement of crab traps in the area that serves as the proposed takeoff and landing area: I would not know if someone had gone in there and put [a crab trap] out, no more than I would know if one was out there with a motorboat running over it. But with the low tide, not the lowest, that's when we would go out and look with the applicant. And at that time if we saw some areas [where crab traps could not be seen] at low tide, then we would certainly assume that . . . at higher tide that [the crab traps] would not be in the way. The greater weight of the evidence indicates that crab traps, twelve (12) to eighteen (18) inches in height, are exposed in the proposed seaplane runway during tides which are low but not the lowest. When the tide is higher, the crab traps are submerged, leaving no indication as to how deep they are in the water. In addition to crab traps, other debris such as picnic tables and pieces of destroyed docks are submerged or floating at unknown locations in the bay. Mr. Grice saw channel markers in the bay. He did not know whether there were any markers in the area of the proposed sea lane. He assumed that the proposed sea lane area was large enough for the applicant to find at least some place where channel markers would not interfere with the required minimum length and approaches. The greater weight of the evidence indicates that channel markers are located directly in the proposed flight path of the seaplane. However, there is no persuasive evidence that these channel markers create a hazard in the approach and departure path of the proposed sea lane. The evidence also shows that the largest concentration of channel markers is located near the seaplane base's taxi and launch areas along the north shore of the bay. The seaplane will have to taxi across the channel and over the mudflats, areas of the bay with soft bottoms, to reach the proposed sea lane. Mr. Grice did not consider the depth of the water in the proposed launch area, taxi area, and sea lane. Therefore, he did not know whether the water depth was adequate for a seaplane. He did not know what type of seaplane(s) would use the seaplane base. According to Mr. Grice, Respondent can place restrictions on the site before licensing to prohibit the use of the seaplane base when the water is at a depth that Respondent determines is unsafe. The depth of the water at mean lower low water levels ranges between one (1) and four (4) feet in the proposed sea lane area. The four (4) foot soundings are located at the eastern tip of the proposed sea lane area, closet to the bridge. The depth of the water at mean lower low water levels ranges between one-half (1/2) foot and three (3) feet along the bay's northern shore in the vicinity of the seaplane base's launch area. Respondent asserts that its primary concern is safety. Therefore, Respondent makes a judgement call about boats and people swimming in the landing area. There is no evidence that Respondent considered the effect of boat traffic before approving the site at issue here. The channel of the bay is within 100 feet of the place where the proposed seaplane will be taken in and out of the water. The greater weight of the evidence indicates that many grouper boats and sport fishing boats use the channel on weekday mornings. On the weekends, boat and jet ski traffic in the channel increases substantially. The weekend boat traffic in the channel is fairly constant. The prevailing wind on the bay is out of the southeast or southwest during most of the day. The prevailing wind runs perpendicular to the proposed sea lane area. A crosswind takeoff and landing is dangerous, especially over a certain speed. The proposed seaplane base is located 80 feet from a dock referred to as the Williams dock. A channel marker is only a few feet from the end of the dock. The greater weight of the evidence indicates that taking a seaplane in and out of the water at the proposed seaplane base launch area is dangerous due to the following conditions: (a) swift channel current of six to ten knots that runs horizontal to the bay's northern shore and perpendicular to the dock; (b) heavy boat traffic in the channel; (c) the concentration of channel markers near the launch area; (d) prevailing winds which run almost perpendicular to the proposed launch area; and (e) the close proximity of the Williams dock. Respondent considers site approval as permission to build the proposed airport. According to Mr. Grice, "[i]t gives the applicant[s] some kind of assurance that they don't go out and spend a lot of money and then DOT comes back and goes through this hearing process after they have spent a lot." Respondent uses the FAA Advisory Circular as a guideline primarily during the licensing phase of application review. Respondent acknowledges that the language in each provision of the circular determines whether a provision is advisory or mandatory. Respondent admits that provisions of the circular containing the words "should" or "shall" relate to mandatory safety issues. Approximately two weeks before the hearing, the FAA requested clarification concerning the coordinates of the seaplane base because its proposed latitude and longitude as provided by the applicant may be incorrect. If the FAA does not issue an approval after receiving clarification, Respondent will deny the application due to the lack of an FAA air space determination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
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 =================================================================
The Issue Whether Respondent, Planmac Company, Inc., is entitled to the modification of a previously permitted boat docking facility in a man-made basin on Lower Matecumbe Key, Monroe County, Florida.
Findings Of Fact On March 12, 1985, Planmac Company, Inc. (Planmac) filed a request with the Florida Department of Environmental Regulation (DER) for a dredge and fill permit to construct a boat docking facility consisting of 52 slips in a man-made basin, known as Captain's Cove, located on Lower Matecumbe Key, Monroe County, Florida. On October 3, 1985, DER filed a Notice of Intent to Issue the requested permit subject to certain specified conditions. A timely challenge to the permit was forwarded to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes. The case was styled Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107. As a result of the formal hearing in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107, a Recommended Order was submitted to DER which made findings of fact, concluded that all permitting criteria had been met, and recommended that the application be granted subject to certain conditions. Thereafter, on June 3, 1986, DER issued a Final Order which ordered that the application for the permit be granted subject to the recommended conditions. No appeal was taken from the Final Order. On June 18, 1986, DER issued to Planmac Permit #441008425, which authorized Planmac, consistent with drawings and specifications attached to the Permit, to: Construct two (2) 5' x 248' docks, each with fourteen (14) 3' x 40' finger piers and twelve (12) associated mooring piles, providing a total of fifty-two (52) boat slips; and install approximately 590 linear feet of riprap revetment requiring the deposition of approximately 300 cubic yards of rock boulders landward and waterward of MHW, in a man-made basin (Class III Waters), an artificial, navigable waterbody contiguous to Florida Bay in Section 21, Township 64 South, Range 36 East, Monroe County. The following specific conditions were attached by DER to Permit #441008425: The permittee is hereby advised that Florida law states: "No person shall commence any excavation, construction, or other activity involving the use of sovereign or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under Chapter 253, until such person has received from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use." Pursuant to Florida Administrative Code Rule 16Q-14, if such work is done without consent, or if a person otherwise damages state land or products of state land, the Board of Trustees may levy administrative fines of up to $10,000 per offense. Turbidity screens shall be utilized and properly maintained during the permitted construction and shall remain in place until any generated turbidity subsides. Only non-commercial, recreational boats shall be allowed to use the proposed marina. The applicant shall incorporate this condition into the condominium document for the proposed marina and supply the Department with a copy of the document prior to any sales of the condominium. No live-aboard boats shall be allowed in the marina. This condition shall also be placed in the condominium document. A portable sewage pumpout wagon shall be provided at the marina. Pumpout effluent shall be properly disposed of by methods acceptable to the department; these methods and locations shall be approved by the department prior to construction. A supply of oil absorbent materials, designed to clean up small oil spills, shall be maintained at the marina office. At least sixty (60) days prior to construction, the applicant shall submit to the Punta Gorda DER office for review, a detailed list of equipment to be permanently maintained on site. This list of equipment shall be modified as necessary and approved by the department prior to construction. The uplands on the permittee's property shall be graded to direct stormwater away from the edge of the boat basin. No fuel facilities nor storage shall be allowed at the project. All craft docked at the marina shall be prohibited from pumping sewage into the waters of the cove. Use of boat slips shall be limited to those person(s) who own the slip. Leasing of boat slips shall be prohibited. Living aboard any boat docked at the marina is prohibited at all times. No boat cleaning, hull maintenance, nor fish cleaning shall be allowed at the permitted facility. Only clean rock boulders free from attached sediments or other deleterious compounds, and of a minimum diameter of 2' or greater shall be installed as riprap. The Marathon Department of Environmental Regulation office shall be notified 48 hours prior to the commencement of work. "IDLE SPEED-NO WAKE" signs shall be placed at conspicuous locations at the docking facility with additional language that "this precaution exists throughout the length of the canal channel during ingress and egress". At least two trash receptacles shall be provided on each of the two main walkway piers; these receptacles shall be routinely maintained and emptied. Prior to dockage use by boats, marker buoys shall be established around all vegetated shallow zones within the limits of the submerged property limits with signs advising boaters of "SHALLOW WATERS-NO ENTRY". Prior to construction, the applicant and the Marathon DER office shall meet to discuss acceptable locations for these markers. The project shall comply with applicable State Water Quality Standards, namely: 17-3.051 - Minimum Criteria for All Waters at All Times and All Places. 17-3.061 - Surface Waters: General Criteria. 17.3.121 - Criteria - Class III Waters - Recreation, Propagation and Management of Fish and Wildlife: Surface Waters. After Permit #441008425 was issued to Planmac for the construction of 52 boat slips, an application was filed by Tormac Corporation for 40 additional boat slips to be located on the property adjacent to the Planmac site. Tormac Corporation and Planmac are owned by the same individual. The Tormac application was subsequently withdrawn prior to final action being taken on the application and prior to Planmac filing the subject application for modification. On December 15, 1988, Planmac filed the application for modification that is the subject of this proceeding. A reconfiguration of the project was necessary because Planmac had been unable to obtain title to a portion of the bay bottom over which it had originally planned to construct the project. Permit #441008425 was modified once previously. The prior modification extended the expiration date for the permit from June 15, 1988, to June 18, 1991. At the time of the final hearing, Permit #441008425 was still in effect. The proposed modification will reduce the number of boat slips from 52 to 48. Eight of the reconfigured slips will be located over the originally permitted site. The forty remaining slips will be relocated over the former Tormac site, which is immediately adjacent to, and west of, the originally permitted site. The following findings of fact, made by the Hearing Officer in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107, are pertinent to the proposed modification: * * * Captain's Cove is a manmade navigable lagoon with access to Florida Bay through a 2,500' long by 100' wide canal located opposite the project site. The waters of Captain's Cove and the canal are designated Class III surface waters, and those of Florida Bay as Outstanding Florida Waters. The controlling depth for access to the proposed marina is found at the mouth of the canal, where Florida Bay is approximately 6' mean low water (MLW). Depths within the canal are typically 1' or 2' deeper that the controlling depth at the mouth. The bottom depth of the cove is variable. The southwestern four-fifths of the cove was typically dredged to a depth of 25' MLW. Within the northeast fifth of the cove (the basin), a gradation in depths is experienced. The northwest portion of the basin, located outside the project site, is typically 5' - 6' MLW, and heavily vegetated by sea grasses (turtle grass, manatee grass, and Cuban shoalweed). The southeast portion of the basin, which abuts the Applicant's property, consists of a shallow shelf 10' - 20' in width. Beyond this shelf, the bottom drops off steeply to a depth of 20' MLW. The shelf abutting the Applicant's property is sparsely vegetated with mangroves, and provides limited habit for aquatic fauna such as domingo mussels and paper oysters. Replacement of these mangroves and other shoreline vegetation with riprap would not significantly affect the biological balance within the cove and would provide suitable habitat for existing species. The waters within the cove are quite clear, and meet the Department's water quality standards except for a thin layer at the deepest part of the cove where dissolved oxygen violations were noted. The proposed marina is, however, to be located in the northeast fifth of the cove, opposite the access canal, where the waters are more shallow and water circulation more prevalent. As sited, the proposed marina will not exacerbate or contribute to a violation of the Department's water quality criteria. DER, following staff review of the application for modification, issued its Intent to Issue on April 21, 1989. In considering the proposed modification, DER staff assumed that Captain's Cove was a closed system whose waters received no cleansing exchange with Florida Bay. Most of the oxygen replenishment and water purification that takes place within the cove occurs through biological activities. The Intent to Issue dated April 21, 1989, advised that DER intended to issue the requested permit modification. The reconfigured project may be described in the following language taken from the Intent to Issue: The applicant, Planmac Company, Inc., applied on December 15, 1988, to the Department of Environmental Regulation for a permit modification to construct a marina facility consisting of a 280' x 5' wide access walkway, two (2) 160' x 5' wide main piers with twenty (20) 35' x 3' finger piers, two (2) 81' x 5' wide main piers with eight (8) 40' x 3' finger piers, providing a total of 48 boat slips, and to install approximately 300 cubic yards of limerock boulders in a man-made basin (Class III Waters), an artificial waterbody in Section 21, Township 64 South, Range 36 East, Monroe County. The proposed modification is over an area of very sparsely vegetated bottom with water depths between 19 and 27 feet. The reconfigurated project will shade approximately 4,000 square feet less bottom area than the originally permitted project. The reconfigurated project will not exacerbate or contribute to a violation of DER's water quality criteria. The reconfigurated design, as compared to the originally permitted project, will present easier ingress and egress from the docking area and will cause less interference with boat traffic. The reconfigurated design will not affect the manatee that are occasionally sighted in Captain's Cove any differently than the presently permitted design. The Intent to Issue dated April 21, 1989, incorporates all eighteen previously attached conditions to the permit and adds the following additional conditions: No docking is permitted waterward of the terminal finger piers on any of the four (4) main piers to prevent use of adjacent owner's bay bottom. These four (4) terminal docks shall have permanent hand rails constructed and maintained along their waterward edge to further discourage boat mooring. A draft of a legally binding agreement, such as a deed restriction shall be submitted to the Fort Myers DER office for review, modification as necessary, and/or approval within thirty (30) days of permit modification issuance. An approved document shall be recorded into the public records of Monroe County within sixty (60) days of approval by the Department. This agreement shall prohibit any further dock construction on the Planmac/Tormac properties exceeding that authorized by this permit modification. This document shall also prohibit in perpetuity the installation of fueling facilities and boat maintenance facilities, and shall prohibit the mooring of liveaboard vessels throughout the life of the facility. Construction shall not commence until proof of recording has been received by the Fort Myers DER office. The location and configuration of the docks and access walkways shall be modified from the drawings stamped June 18, 1986, to those received December 15, 1988 and attached hereto. The conservation easement, which is incorporated as a condition to the issuance of the modification, has a positive effect because it prohibits further dockage on the Planmac or Tormac properties. Since docks over which DER has no permitting authority could have been placed on these properties, this easement will prevent future unregulated docking there. The reconfiguration of the project and the inclusion of the adjacent lands present no significant environmental concerns that were not present when the original project was permitted. After the issuance of the Notice of Intent by DER on April 21, 1989, the respective Petitioners filed timely challenges to the application. The Petitioners contend that the application constitutes a major modification of the previously permitted project and seek to challenge the project on many of the same grounds that were litigated in Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107. The modifications proposed by the application that is the subject of this proceeding was processed by DER as a routine, minor modification. As a result of Petitioners' challenges, this proceeding was held. The Petitioners and Intervenor were not permitted to relitigate those issues that had been resolved by Townsend v. Planmac and Department of Environmental Regulation, DOAH Case Number 86-0107.
Findings Of Fact By application dated May 10, 1987, and subscribed to on December 18, 1987, the Petitioner applied to the Department for approval and licensing of a seaplane airport site for his own private usage (P-2) . The Petitioner is appropriately licensed as a seaplane pilot. The location of the proposed airport is Pate Lake, located near Caryville, in Washington County, Florida. Pate Lake is approximately one mile by three-quarters of one mile in size, large enough to accommodate the Petitioner's proposed airport. The Petitioner's seaplane is currently and would remain based on the west side of the lake, where the Petitioner owns a parcel of land. The Petitioner has utilized Pate Lake as a base of operation for the seaplane on an irregular basis for several years. The seaplane is a single-engine Balanca Citaba, similar in size to a Piper Cub. The plane carries a maximum of two persons, including the pilot. The engine produces 150 horsepower and has a muffled exhaust. There was no reliable evidence which would indicate the decibel level or amount of noise that is generated by the seaplane on takeoff, however the noise at landing is minimal because landings are accomplished with the engine thrust significantly reduced. Pate Lake is relatively remote with limited population, however the population residing near the water is generally concentrated on the western side of the lake. The lake is used primarily for fishing and other recreational activities. A public boat ramp is also located on the west side of Pate Lake, approximately 400 to 500 feet from the Petitioner's property, according to a map prepared by the Department and introduced by the Petitioner (P-12). The number and type of recreational users of the lake depend on the weather and time of year, with an estimated 15 to 20 fishing boats on the lake simultaneously when conditions warrant. In December, 1987, an on-site inspection of the proposed airport area was performed by Larry Parker, an aviation specialist with the Department. Parker determined that the site was feasible for use as proposed by the Petitioner and "can meet the requirements set forth in Airport Licensing and Zoning Rule Chapter 14-60" (P-4). By letter dated December 30, 1987, the administrator for the Washington County Commission advised the Department that there were no restrictions which would prohibit the establishment of the seaplane base (P-5). There is no relevant zoning ordinance applicable to Washington County. By letter dated March 2, 1988, the Petitioner was advised by the Federal Aviation Administration that the proposed airport would "not adversely affect the safe and efficient use of airspace by aircraft" provided that operations were limited to VFR (visual flight rules) weather conditions, and that the airport were limited to private use. The F.A.A. specifically "did not consider the interaction of sea plane operations with surface craft traffic..." (P-6). On May 2, 1988, the department issued a "Notice of Intent" to approve the airport and issue the license (P-3). A public meeting was subsequently held on June 8, 1988, at which time an unknown number of persons apparently objected to the Department's intended approval of the license application. On June 16, 1988, a resolution was adopted by the Washington County Board of County Commissioners at which time the Board expressed opposition "to the permitting of a Seaplane operation on Pate Pond" (P-8). The resolution clearly indicates that the Board acted, at least in part, in the belief that "a commercial Seaplane operation is contemplated on the lake..." and that property owners in the area objected to the proposal. By memo dated July 11, 1988, Larry Parker, the district aviation specialist for the Department forwarded materials from the public meeting to his supervisor, Bobby Grice (P-9). At that time, Parker reiterated his opinion that the proposed airport site met "the safety standards as outlined in Rule 14-60", and that the Petitioner could operate in a safe manner from Pate Lake. By letter dated July, 27, 1988, the Petitioner received notice from the Department that it intended to deny his application for approval of his Pate Lake seaplane base (P-10). The Department stated that the denial was based on the County Commission resolution of June 16th, which "the department accepts...as equivalent to zoning refusal by the Washington County Commission." Further the Department cited comments "submitted by many of the nearby landowners and they are opposed to a seaplane base on Pate Lake on the basis of noise and safety." The Department's action followed the recommendation of Mr. Grice to deny the application. Mr. Grice based his recommendation on safety concerns related to utilization of the recreational lake as a seaplane base. Mr. Grice has visited the Pate Lake area, but has not viewed the Petitioner's seaplane in operation. At the administrative hearing the Department presented the testimony of several persons who reside on or near Pate Lake. The property owners had on infrequent occasions heard or seen a seaplane, allegedly the Petitioner's, flying over their homes at an altitude they believed to be unreasonably low or in a manner which caused what they felt was excessive noise. 1/ No one recalled more than two such incidents over the several years that the Petitioner has utilized the lake as a seaplane base. Other complaints were directed towards the maintenance of the Petitioner's property, which was identified by one witness as an "eyesore". Concerns were voiced related to the witnesses fear of property value depreciation, but there were no facts to support the theoretical depreciation. One witness, a helicopter instruction pilot who visits the area on occasion, observed the seaplane, approximately seven or eight months prior to the hearing, take off and land twice on the same day. The witness testified that the pilot on both occasions flew at an excessively low altitude over the houses on the west side of the lake. The witness estimated the altitude over the houses to be less than 500 feet, an altitude which he believed was a "major judgement error" of the pilot, because an emergency maneuver at that altitude, if necessary, would have been difficult to accomplish. However, the witness, who has no experience with seaplane operations, did not register the incident with any regulatory agency, although he believed it to be a violation of minimum safe altitude regulations. He has not otherwise viewed the seaplane in operation. One witness, a seasonal resident of the lake area who utilizes the lake for fishing, recalled an incident in January or February, 1988, where the Petitioner's plane landed on the lake while the witness was fishing from a small boat in the same vicinity as where the Petitioner was attempting to land. The witness had not heard the plane's approach due to the lack of engine noise until the plane began landing. Although uninjured, he was fearful for his safety during the incident. The witness explained that he was concerned about the personal safety of boaters in the water during the times the seaplane was landing, because the noise level is minimal, and boaters may not be aware of the aircraft's approach. There was no explanation or response offered by the Petitioner to the allegations of the Department's witnesses other than assertions that a seaplane could be operated in such a manner as to prevent low flight over residences and minimize risk to users of the lake. Although there was testimony related to lakes, similar or smaller than Pate Lake, which are allegedly licensed as private seaplane airports, the testimony did not provide evidence sufficient to provide for an accurate comparison between other lakes and Pate Lake.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Petitioner's application for licensure of Pate Lake as a seaplane base be DENIED. DONE and ORDERED this 20th day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 December, 1988.
Findings Of Fact Based upon all of the evidence, the following findings are fact are determined: In this examination for licensure challenge, petitioner, Mason L. Flint, contends that he is entitled to a higher score on the March 1994 deputy pilot examination for the Port of Jacksonville. The examination is administered by the Department of Business and Professional Regulation (DBPR) on behalf of respondent, Board of Pilot Commissioners (Board). Although the original petition challenged the grade in twelve respects, petitioner now contends that only two items are in issue, item 21 relating to the local knowledge part of the examination, and item 270 relating to the aids to navigation part of the examination. Both are true-false questions. Unlike the more than fifty other professional licensure examinations administered by the DBPR, the seven-part pilot examination requires a candidate to achieve a minimum passing grade on each part, but candidates doing so then compete with each other for vacant positions. In other words, if only one position at a particular port is open, the candidate achieving the highest score above the minimum passing grade is the only candidate receiving a license. In this case, three deputy pilot positions were available at the Port of Jacksonville, and thus the candidates having the three highest scores among those exceeding the minimum passing grade would be given a license. Petitioner finished sixth on the original grading, but after having his examination regraded by the Board prior to hearing, he was ranked number four. By this challenge, he seeks to have his grade changed on items 21 and 270 so as to raise his ranking to number three. In order to preserve the confidentiality of Item 21 for future examinations, it is suffice to say that the item required a response of true or false concerning limitations on vessels leaving the Talleyrand Docks in Jacksonville, Florida. The examination answer key shows true as the correct response. In preparing all questions pertaining to local knowledge, including item 21, the Board's consultant used the U. S. Coast Pilot, a compilation of operational guidelines governing the movement of vessels in the St. Johns River (and Port of Jacksonville). The specific source of authority for item 21 was paragraph (16) on page 153 of the 1993 edition of the U. S. Coast Pilot. That paragraph reads in pertinent part as follows: (16) Outbound vessels: Vessels with a draft of over 23 (sic) feet sailing between Main Street Bridge to, and including, U. S. Gypsum Co. Pier, shall get underway after 1-1/2 hours after flood current with a cut off time at the beginning of ebb current . . . Because Talleyrand Docks lies between the Main Street Bridge and the U. S. Gypsum Company Pier, this paragraph has application to vessels leaving those docks. The 1993 version of the U. S. Coast Pilot contained a typographical error. Rather than "23" feet, the guidelines should have read "32" feet. To correct this error, paragraph (16) was revised in mid-March 1994, or the same month the examination was given, to provide that any vessel drawing more than 32 feet would be subject to the above movement restrictions. However, candidates were advised that only revisions to the U. S. Coast Pilot through January 1, 1994, would be included in the March 1994 examination. Besides the limitation described in paragraph (16), two other paragraphs on the same page of the U. S. Coast Pilot made reference to the correct 32 foot limitation. In addition, the Guidelines of Vessel Movements on St. Johns River, which form the basis for the data in the U. S. Coast Pilot, used the correct 32 foot limitation. Candidates familiar with those provisions should have been on notice that a typographical error existed in paragraph (16). Although the Board's suggested response is arguably correct, the more persuasive evidence shows that the statement in item 21 was confusing and unclear due to the typographical error in the U. S. Coast Pilot and the conflicting provisions on the same page of the source material. Thus, item 21 does not reliably measure the specified area of competency. Under these circumstances, a candidate should be given credit for either a true or false response, or alternatively, the question should be discarded in calculating a candidate's final score. Accordingly, petitioner's grade should be adjusted in this respect. Petitioner has also contended that only a false response is correct since the question implies that a restriction exists because of its use of the words "up to the beginning of ebb current." The evidence shows, however, that a candidate could reasonably reject that suggested implication and properly make a true response. Item 270 requires a true or false response to a statement regarding identifying marks or buoys marking a channel. The item identifies a set of conditions and then states that such a marking "could" properly be made. The examination answer key shows true as the correct response. The primary source of authority for item 270 is 33 CFR 62.43. According to that federal regulation, buoys marking the side of a channel (lateral aids) are always a solid color, and all solid color buoys marking a channel are numbered. The regulation goes on to provide that, in addition to a number, all solid color numbered buoys may also carry a letter suffix to aid in their identification, or to indicate their purpose. They cannot, however, be identified by letter only, but only by number and letter. Because the more credible and persuasive evidence shows that the question, as stated on the examination, clearly suggests that only a letter could be used for identification of a sidemark buoy, the correct response should be false. Therefore, petitioner should be given credit for his answer. The record is not altogether clear as to how changing petitioner's overall grade will impact his ranking. According to the DBPR psychometrician who is in charge of the pilot examination development, both petitioner and the third ranked candidate gave the same response on one of the challenged questions. On the other item, the two gave different responses, but if either response is deemed to be a correct response, it would have no bearing on their overall ranking. The pychometrician added that if an item is challenged and credit given to the protesting candidate, the answer key is changed and all candidates' scores are adjusted to reflect the change in the answer key.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Board regrading petitioner's examination consistent with the above findings and conclusions. DONE AND ENTERED this 18th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 18th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5327 Petitioner: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Rejected as being unnecessary. 6-8. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Partially accepted in finding of fact 3. 14-27. Partially accepted in findings of fact 3-8. 28-39. Partially accepted in findings of fact 9-11. Respondent: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 7. 7. Partially accepted in finding of fact 8. 8. Partially accepted in finding of fact 9. 9-11. Partially accepted in finding of fact 10. 12. Rejected. See finding of fact 11. Note: Where a proposed findings has been partially accepted, the remainder has been rejcted as being unnecessary, irrelevant, subordiante, not supported by the evidence, or cumulative. COPIES FURNISHED: Mason L. Flint 1605 Brookside Circle East Jacksonville, Florida 32207 Wellington H. Meffert, II, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Susan J. Foster, Executive Director Board of Pilot Commissioners 1940 North Monroe Street Tallahassee, FL 32399-0773
Findings Of Fact Petitioner is the state land planning agency charged with the responsibility to administer the provisions of Chapter 380, Florida Statutes, and the regulations promulgated thereunder. Petitioner has the authority to appeal to the Florida Land and Water Adjudicatory Commission any development order issued in an area of critical state concern. Monroe County is a political subdivision of the State of Florida, and is responsible for issuing development orders for development in Monroe County. Monroe County issued the development order that is the subject of this appeal. Respondent, Bruce Schmitt, is the owner of real property known as Section 15, Township 66, Range 32, Sombrero Beach Road and Tingler Lane - 88 Tingler Lane, Vaca Key Bright, Florida. Most of Monroe County, including the subject property, is within the Florida Keys Area of Critical State Concern, as designated under Sections 380.05 and 380.0552, Florida Statutes. On May 25, 1993, Monroe County issued building permit number 9320003962 to Bruce A. Schmitt, Owner, and Marathon Woodworking, General Contractor, authorizing the construction of a 4 feet X 140 feet wooden dock with a 4 feet x 40 feet terminus. The site of the permitted dock is on an open water shoreline. Running parallel to this shoreline is a channel that is greater than four feet in depth at mean low tide and is greater than twenty feet in width. The permitted dock will terminate at the edge of that channel in an area that is at least four feet deep at mean low tide and more than 20 feet in width. There are no hard coral bottoms found in the area where the dock will terminate. In the vicinity where Mr. Schmitt proposes to construct his dock, there is a channel that is perpendicular to the shoreline that intersects with the channel that is parallel to the shoreline. This perpendicular channel leads out to deep water. The channel providing access to deep water crosses an area of shallow water, which is an area of flats that is referred to by the Department as a shoal. The water depth of this area at mean low tide ranges between 3.0 and 3.5 feet. The channel running parallel to the shoreline and the channel leading out to deep water are not marked. Boats that use this area traditionally have used the channel that is parallel to the shoreline to access the channel in front of Mr. Schmitt's property that leads to deep water. These boats thereafter access deep water by crossing the area of flats that is referred to by the Department as a shoal. While it was established that boats cannot navigate around the shoal, the dimensions of the shoal were not established. Natural shallow water marine communities, such as seagrasses, exist in the waters in the navigation route for boats that will use the permitted dock. Sea grass beds play an important role in water quality maintenance in the Keys through filtration and nutrient uptake and serve as nursery habitats for fisheries. The cumulative impact of the operation of propeller- driven boats in the Keys results in damage and destruction to shallow water marine communities, such as sea grass beds, through prop dredging. There is evidence of considerable prop dredging of the sea grass beds in the shallow waters offshore of the subject property. Boats have been known to run aground in the flats off Mr. Schmitt's property. Any boat using the permitted dock will have to cross shallow waters with seagrass with water depths of less than four feet at mean low tide. Pursuant to the provisions of Sections 380.05 and 380.0552, Florida Statutes, Monroe County has adopted a comprehensive plan which complies with the Principles for Guiding Development found at Section 380.0552(7), Florida Statutes. Section 380.0552(7), Florida Statutes, requires Monroe County land development regulations to comply with certain principles for guiding development, including the following: (b) to protect shoreline and marine resources, including mangroves, coral reef formations, wetlands, fish and wildlife and their habitat. * * * (e) to limit the adverse impacts of development on the quality of water throughout the Florida Keys . . . Monroe County's Comprehensive Plan, which has been approved by the Department and by the Administration Commission, is implemented, in part, through its adopted land development regulations, codified in Chapters 6 and 9.5, Monroe County Code. Section 9.5-345(m) (2), Monroe County Code, provides as follows: (2) All structures on any submerged lands and mangroves shall be designed, located, and con- structed such that: * * * No structure shall be located on submerged land which is vegetated with seagrasses except as is necessary to reach waters at least four (4) feet below mean low levels for docking facilities; No docking facilities shall be developed at any site unless a minimum channel of twenty (20) feet in width where a mean low water depth of at least minus four (4) feet exists. Section 9.5-4(W-1), Monroe County Code, provides as follows: (W-1) "water at least four (4) feet below mean sea level at mean low tide" means locations that will not have a significant adverse impact on off- shore resources of particular importance. For the purposes of this definition, "off-shore resources of particular importance" shall mean hard coral bottoms, habitat of state or federal threatened and endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes, Section 258.39 et seq. Section 2.104, Nearshore Waters, Monroe County Comprehensive Plan, Volume II, Future Land Use Element, provides as follows: The Florida Keys are dependent on nearshore water quality for their environmental and economic integrity. The heart of the Florida Keys economy, the means by which Monroe County exists as a civil and social institution, is based on its unique oceanic character. If nearshore water quality is not maintained, then quality of life and the economy of Monroe County will be directly and immediately impacted. OBJECTIVES 1. To protect, maintain, and where appropriate, to improve the quality of nearshore waters in Monroe County. POLICIES 1. To prohibit land use that directly or indirectly degrades nearshore water quality. * * * To prohibit the development of water dependent facilities, including marinas, at locations that would involve significant degradation of the biological character of submerged lands. To limit the locations of water-dependent facilities at locations that will not have a significant adverse impact on off-shore resources of particular importance. For the purposes of this policy, off-shore resources of particular importance shall mean hard coral bottoms, habitat of state or federal threatened or endangered species, shallow water areas with natural marine communities with depths at mean low tide of less than four (4) feet, and all designated aquatic preserves under Florida Statutes, section 258.39 et seq. There are no channel markers to deep water in the area of the permitted dock that have been approved by the Department of Environmental Protection. There was a dispute in the evidence as to whether marking the channel that has served this area as the access route to deep waters would be appropriate and whether such marking would create a navigational hazard. The conflict in the evidence presented is resolved by concluding that the marking of the channel that serves as the navigation access route for boats that will use the permitted dock is appropriate, will aid navigation, and will not create a navigation hazard. This conclusion is reached, in part, because the channel is well defined by its long-term use and connects with the channel that is parallel to the shoreline at a known point.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Land and Water Adjudicatory Commission enter a final order which conditionally denies Building Permit Number 9320003962, but which authorizes Monroe County to issue that permit once the access channel to deep water has been properly marked and approved by the Department of Environmental Protection. DONE AND ENTERED this 25th day of October, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 25th day of October, 1994.
Findings Of Fact The proposed marina project involves the repair and renovation of a marina which has been in existence since the 1920s. The marina is located in Biscayne Bay within the City of Miami Beach, west of Purdy Avenue where it intersects with 13th Street. Currently, the marina is in a state of disrepair. In 1974, Respondent acquired ownership of the marina which was at that time an operating facility. Thereafter, Respondent began formulating plans to renovate and repair the facility. Respondent obtained estimates from construction firms to make repairs to the facility by replacing or reinforcing deteriorated members, piles, decking and other parts. Respondent plans to remove the existing wooden piers and piles consisting of 35,000 square feet of deck surface area and construct in their stead a facility consisting of only 24,560 square feet of deck surface area. The marina as renovated would not exceed its existing boundaries. In fact, the south pier of the marina will be relocated 40 feet northward of its existing location, which would place it 90 feet from the south property line. The proposed project entails construction of three main piers. The south pier is an L-shaped configuration which would extend westward 416 feet by 10 feet and then northward 304 feet by 10 feet. The north pier, also L-shaped, would extend westward 416 feet by 10 feet and then southward 202 feet by 10 feet. The center pier will have a T-shaped configuration. Its dimensions will extend westward 358 feet by 10 feet. The marina will also have a pier extending both northward and southward, 50 feet by 10 feet each from the center line of the pier. Additionally, the project will contain mooring piles along a canal which extends eastward from the northern perimeter of the marina. When completed, the marina will have accommodations for 161 vessels. The present facility, while it was a fully operating marina, accommodated 135 boats, together with over-the-water facilities constructed on a main center pier. Such facilities included a machine shop and major marina repair facilities, neither of which uses is proposed for the new facility. Construction activity for the proposed project involves no dredging or filling. In addition to reducing deck surface area to 24,560 square fete from the 35,000 square feet contained in the old facility, the proposed project also will contain 409 pilings as opposed to 1,037 in the existing facility. Existing wooden pilings will be removed and will be replaced with concrete pilings. Turbidity curtains will be used during the construction phase to reduce any adverse affect on water quality, which, in any event should be minimal. The concrete pilings will be installed by setting them in a steel template and driving them into the earth at the bay bottom with a hammer. In effect, this construction technique punches a hole straight down into the earth and results in minimal displacement of sediments at the bottom. Respondent also proposes to make certain cosmetic repairs to the sea wall at the present marina where there is some deterioration on the upper edges above the mean high water line resulting from corrosion. Such repairs will be made by welding of steel plate and putting a concrete cap over the top of the existing wall. The waters of Biscayne Bay are classified as Class III waters. There are no Class II waters in the vicinity of the proposed project. The testimony and evidence established that the area in and surrounding the marina facility is not productive in terms of benthic or faunal communities. There is virtually no marine vegetation in the area. The marina itself is almost devoid of any seagrasses, with the exception of several springs of Halophila and Caulerpa. The closest existing grass beds are located approximately 700 to 1,000 feet west of the marina's western perimeter. These grass beds, which include turtle grass and manatee grass, have apparently flourished during the period the existing marina was in full operation. Fouling organisms were found attached to pilings and the seawall areas of the marina. The waters inside the marina, and those in the surrounding area are not suitable as a habitat for breeding, nursery or feeding grounds for fish or other marine life. Studies conducted by Respondent's hydrographic expert indicate that tidal flow in the area of the marina will be enhanced by the renovation of the facility, largely due to reduction in the number of pilings, thereby reducing resistance to tidal flow. The evidence also disclosed that construction of the proposed facility will pose no navigational hazard or serious impediment to navigation in the immediate vicinity. The canal along the northern perimeter of the proposed project varies from 105 feet in width. Apparently only noncommercial boats will be docked in the marina and the canal. A marina has existed at the location of the proposed project for over 50 years, and there is no evidence that has ever created navigational problems within the canal or within the immediate area of Biscayne Bay. Petitioners suggest that the marina will "create a navigational hazard, or serious impediment to navigation..." within the meaning of DER's regulations, specifically Chapter 17-4.29(6)(b), Florida Administrative Code, under the theory that the boats to be accommodated in the facility will result in a general increase in boating traffic in north Biscayne Bay, and would, in addition, adversely affect the public's "navigation" of automobiles across numerous draw bridges whose spans will often be raised to accommodate boat traffic. It does not appear that chapters 253, 258.165 or 403, Florida Statutes, afford DER the authority to consider such factors in determining whether to issue a water quality permit. Even assuming that as a matter of law DER may consider such factors, the evidence presented by Petitioners on this point was vague and speculative. In its Proposed Order of Issuance, DER imposed seven permit conditions which, when combined with the design of the project and the facts set forth above, constitute "reasonable assurance" that the proposed project will not adversely affect water quality. These conditions include the following: Turbidity shall be monitored once daily during periods of water related construction activities at mid-depth 100 ft. upcurrent and 100 ft. down-current of the work area by a person(s) (project monitor) designed by the permittee. Adequate controls are taken during construction so turbidity levels beyond 100 ft. of the construction area in Biscayne Bay do not exceed 50 J.T.U. A pumpout station shall be installed and maintained for the removal of sewage and wastes from the vessels using this facility. No liveaboard vessels shall be docked at this facility unless said vessel has either a Coast Guard approved Marine Sanitation Device or a direct sewage pumpout connection is provided at the liveaboard slip. There shall be no positive drainage of stormwater runoff from the marina parking lot to Biscayne Bay. Fuel storage tanks shall be constructed of non-corrosive materials and located on the upland portion of the site. The fuel storage tanks shall be pressure tested at least once yearly to ensure that they are not leaking. Test reports shall be submitted to DER and the Dade County Environmental Resources Management. Floating oil booms and sorbent materials or equivalent equipment shall be available on site at all times in order to contain and clean up any oil or fuel spills. All marina employees shall be trained in the deployment and usage of the above spill cleanup equipment. The equipment above shall be subject to inspection by all regulatory agencies. At the conclusion of the hearing, it was stipulated among the parties that Petitioner, Izaak Walton League of America, Mangrove chapter, has standing to maintain this action pursuant to Section 120.57(1), Florida Statutes. With respect to Save Our Bay, the evidence disclosed that it is an unincorporated association which was formed for the purpose of preserving the waters of Biscayne Bay for safe navigational use, swimming and fishing, and to enhance the beauty of sunset Island and the venetian Isles, while at the same time protecting the area from the effects of pollution. Members of Save Our Bay own property in the vicinity of the proposed project, and use the waters in that area for swimming, boating and fishing. Their use of the natural resources of Biscayne Bay could be affected by construction of the proposed project. Walton, Save Our Bay and Respondent Turchin have submitted proposed findings of fact in this proceeding. To the extent that such findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
The Issue The issues in this case are whether Respondent, Robert J. Simmons, Jr. (Simmons), should be issued: an Environmental Resource Permit (ERP) under Part IV of Chapter 373, Florida Statutes, and Titles 62 and 40E, Florida Administrative Code; and a Consent to Use Sovereign Submerged Lands under Chapter 253, Florida Statutes, and Chapter 18-21, Florida Administrative Code. (All citations to Florida Statutes refer to the 2000 codification; all Florida Administrative Code citations are to the current version.)
Findings Of Fact The Applicant Respondent, Robert Simmons, Jr. (Simmons), is the applicant for: a consent of use of sovereign submerged lands owned by the Trustees of the Internal Improvement Trust Fund; and an ERP to construct a private, single-family, residential dock for access to Little Munyon Island and to fill jurisdictional wetlands on the island in order to construct a residence on the island. Simmons has offered to purchase Little Munyon Island and the 16 acres of privately-owned, mostly submerged land surrounding it for $2.6 million. Under the contract of purchase, Simmons is required to close by April 2, 2002. If the contract to purchase closes, Simmons plans to construct an 8,000 to 10,000 square-foot residence, with swimming pool, on Little Munyon Island. He estimates that the residence, once built, will be worth $12 million to $15 million. Little Munyon Island. Little Munyon Island is a 1 1/2 acre, undeveloped and unbridged island located in the Lake Worth Lagoon, which has been designated Class III waters of the state. Little Munyon Island is a natural island, one of only three in the Lake Worth Lagoon. Anasthasia rock atop the Pleistocene formation comes to the surface at the site. The island has been enlarged over the years by placement of spoil from dredging of the Intracoastal Waterway (ICW) to the west of the island. In addition, due to erosion on the west and accretion on the east, the island has shifted to the east. Now the eastern edge of the accreted eastern side actually is outside the 16 acres described by the deed Simmons seeks to have conveyed to him. Little Munyon Island is located just south of the John D. MacArthur State Park and Big Munyon Island. The waters in the Park have been designated as Class II, or Outstanding Florida Waters under Florida Administrative Code Rule (Rule) 62-302.700(2)(b). The boundary of the Park is approximately 1,100 feet north of Little Munyon Island. The eastern boundary of the ICW right-of-way is located about 220 feet west of Little Munyon Island; the centerline of the ICW is about 550 feet west of the island. Singer Island is an Atlantic Ocean barrier island approximately half a mile east of Little Munyon Island. The evidence was that less of Little Munyon Island is inundated by high tides than used to be. As a result, more of the island's vegetation was native in the past. Perhaps due to the deposit of spoil material, relatively little of the island is inundated any more. As a result, exotic vegetation such as Australian pine, Brazilian pepper, and seaside mahoe has invaded and comprises about 35 percent of the island's vegetation. The native vegetation includes red, black and white mangroves, buttonwood, and cabbage palms. Although it is private property, Little Munyon Island is currently being used quite extensively by the public, without authorization from the owner. Boaters frequent the island, leaving trash and other debris behind. Visitors to the island have chopped down native vegetation, such as mangroves, in order to build campfires on the island. Boaters visiting the island for recreational activities often ground their boats around the island. Grounding and extricating boats often causes the boats' propellers to dredge up seagrasses and dig holes in seagrass beds. The Lake Worth Lagoon. The Lake Worth Lagoon is a saltwater estuary. It stretches about 21 miles south from PGA Boulevard and varies in width from about 1 to 1 1/2 miles. The Lagoon is tidally influenced twice per day through the Lake Worth Inlet, which is located about 2-3 miles south of Little Munyon Island. The Inlet connects the Lagoon with the Atlantic Ocean. There is a tidal range of 2.8 to 2.9 feet between mean high and mean low tides in the vicinity of the island. Much of the historical extent of the Lagoon has been filled, and it is located in the most urbanized portion of Palm Beach County. From 1940 to 1975, the Lagoon lost more than 87 percent of its mangroves due to shoreline development. Little Munyon Island is located roughly in the middle of a large bay in the northern part of the Lagoon, which has not been filled or bulkheaded. This bay is one of the few remaining natural areas of the Lake Worth Lagoon. The Earman River, also known as the C-17 canal, discharges into the Lake Worth Lagoon west and a little north from Little Munyon Island to the west of the ICW. The part of the Lake Worth Lagoon around Little Munyon Island is vegetated with very high quality seagrasses, including Cuban Shoal Grass (Halodule wrightii), Turtle Grass (Thalassia testudinum), Manatee Grass (Syringodium filiforme), Paddle Grass (Halophila decipiens), and Johnson Grass (Halophila johnsonii). Johnson Grass is a federally listed threatened species of seagrass, but it tolerates a range of water quality and bottom sediments and is relatively abundant in the Lake Worth Lagoon. Five of the six types of seagrasses found in the Lagoon occur in the vicinity of Little Munyon Island. The area around Little Munyon Island is the best area of seagrasses in all of Palm Beach County, and it has the highest density of seagrasses. The quality of seagrasses in the area is "as good as it gets in the Lake Worth Lagoon." The tide from the Lake Worth Inlet flows north and south through the ICW. As a result, the same waters pass both Little Munyon Island and Big Munyon Island as the tide ebbs and flows. Silt and suspended particles in the water column around Little Munyon Island could be carried by the tide to the Class II waters around Big Munyon Island. There is a high degree of biological diversity in the area around Little Munyon Island. The seagrass beds and flats around Little Munyon are a breeding ground for fish and other aquatic resources. The portion of the Lake Worth Lagoon around Little Munyon has been identified as Essential Fish Habitat by the South Atlantic Fishery Management Council and the National Marine Fisheries Service. It is essential fish habitat for postlarval, juvenile, and adult brown and pink shrimp, red drum, and gray snapper. Seagrasses protect small fish and provide a food source for a whole ecosystem that starts with the seagrasses. Seagrasses provide a valuable source of oxygen, food, and shelter. One square meter of seagrass can generate 10 liters of oxygen per day. They may be one of the most prolific ecosystems in the world in terms of biomass production. The water quality in the Lake Worth Lagoon is improving due to stormwater regulation and reduction in the discharge of sewage effluent. This has caused the quality of seagrasses in the area to improve over the past 18 years. Seagrass recruitment has occurred around the area, and new kinds of seagrasses have colonized since 1983. It is reasonable to believe that seagrasses will continue to colonize around the island if water quality continues to improve. If conditions are right, seagrasses can spread and colonize areas where they do not now occur. The Proposed Project Initial Application In the initial application for ERP and consent of use filed on January 20, 2000, Simmons proposed to construct an L-shaped, 5,208 square foot dock made of poured concrete, 10-12 inches thick. The proposed dock's 12-foot wide access pier was to extend westward from shore for 306 feet, with a 12-foot wide terminal platform extending 140 feet to the south. The entire dock was to be elevated to 5.0' NGVD (National Geodetic Vertical Datum of 1929). The entire dock was to be within privately-owned submerged lands, but intended mooring on the western side of the terminal platform would have been over sovereign submerged lands. Initially, the access pier was to cross the center of a sunken barge that lies approximately 240 feet off the island's western shore. In a response on March 10, 2000, to DEP's request for additional information (RAI), the footprint of the proposed dock was shifted south so that the access pier crossed just south of the sunken barge, where Simmons' seagrass consultant, CZR, said there were fewer seagrasses. This also shortened the access pier to 296 feet and reduced the overall area of the docking facility to 5,088 square feet. In addition, mooring piles to the west of the terminal platform were eliminated; as modified, four mooring piles were to be placed parallel to the terminal platform, on the eastern side. As modified, the entire dock structure and mooring area was located within the privately-owned submerged lands. The dock was specifically designed for use in construction of an 8,000 to 10,000 square-foot residence, plus swimming pool, on the island. The terminal platform was designed so that Simmons could moor barges between the terminal platform and the mooring piers and offload needed construction materials and equipment. It was contemplated that the barges would be 55 feet long by 24 feet wide and draw three and a half feet of water and that they would be maneuvered by push-boats. The dock also was designed to permanently moor a vessel 120-140 feet long drawing five and a half feet of water. Simmons intends to live with his family in the proposed new residence on Little Munyon Island. He currently owns a house on the mainland in North Palm Beach on the western side of the Lake Worth Lagoon across the ICW from Little Munyon Island. He plans to park cars and use a dock at that location and operate his boat back and forth to Little Munyon Island. This would necessitate crossing the ICW several times a day. To construct the planned residence and pool on Little Munyon Island, the application proposed construction of a retaining wall around the island, generally no more than 5 feet landward of the perimeter wetlands on the island. Approximately 28,500 square feet (0.65 acres) would be within the retaining wall. Three feet of fill would then be placed within the retaining wall to elevate the pad for the residence to about 6 feet above sea level. Filling the Island would necessitate cutting down all the vegetation inside the retaining wall and filling 0.15 acres of jurisdictional wetlands consisting of mangroves and other wetland species. In the initial application, utilities were going to be provided by directionally-drilling a forced sewer main, water line, electric, cable, phone, and natural gas line from State Road A1A on Singer Island, under sovereign submerged lands in the Lake Worth Lagoon, to Little Munyon. In concerns expressed in the RAI about resource impacts and extension of utilities to an undeveloped coastal island, Simmons deleted the subaqueous utility lines in the modification on March 10, 2000. June Modification During a low, low (spring) tide in April 2000, CZR noticed for the first time that there was a sand bar between the northern third of the sunken barge and Little Munyon Island. In June of 2000, Simmons again modified his application to shift the docking facility back north so that the access pier was aligned with the sand bar. Simmons also proposed to extend the dock out into deeper water, making the dock 376 feet long, and placing the last 33 feet of the dock and the entire terminal platform (a total of 1,230 square feet) on and over sovereign submerged lands. The terminal end of the dock was modified to be 100 feet long by 10 feet wide. The width of the access pier also reduced generally to ten feet; however, over a stretch of 70 feet of the access pier to the west of the sunken barge (where it crossed lush seagrasses), the width of permanent concrete access pier was further reduced to four feet. (Three-foot high, hinged, grated railings designed to fold down would widen the access pier to ten feet on demand. See Finding 37, infra.) These modification reduced the overall size of the docking facility to 4,240 square feet. In addition, the decking was elevated higher, to 5 feet above mean high water (MHW). The mooring piles on the east side of the terminal platform (now over lush seagrasses) were deleted. The house pad and retaining wall were not changed from the initial filing. Having dropped the idea of subaqueous utilities, Simmons proposed "self contained utilities" consisting of: Water - Well with reverse osmosis (RO) plant, as necessary, for potable water. Water for irrigation and toilets will be reused on-site treated wastewater. Drinking water will likely be bottled. Wastewater treatment - Treatment by small on-site package plant, not septic tank. Power - Solar with backup generator. No specifics or analysis of the impacts from these systems were provided, and no assurances were given that they would not pollute. The June modification also proposed mitigation for the loss of the 0.15 acres of wetlands on the island that would be filled. Simmons proposed placement of rip-rap breakwaters just landward of the existing limit of seagrass, or further landward, to provide wave and scouring protection and planting of mangrove and other species landward of the rip-rap. It was suggested that seagrasses also would propagate landward of the rip-rap. In an August 2000 response to DEP's RAI, Simmons detailed the mitigation plan. Under the plan, 350 linear feet of rip-rap breakwaters would be placed along the northwestern and southwestern shores of Little Munyon Island, and the area landward of the breakwaters would be planted with red and black mangrove and smooth cordgrass. Exotic vegetation would be removed from the mitigation areas. Under the plan, 0.31 acres of high quality wetlands would be created to mitigate for the loss of 0.15 acres of jurisdictional wetland fill. DEP Denies Application, as Modified On November 9, 2000, DEP issued a Consolidated Notice of Denial of Environmental Resource Permit and Consent to Use Sovereign Submerged Lands. Discussion focused on impacts on seagrasses, impacts from the proposed utilities, and the mitigation plan. Although DEP noted that the size of the project was reduced from the original application, it concluded that the "dock will still have shading impacts on seagrasses, including Johnson's grass (Halophila johnsonii), a federally-listed threatened species." DEP also noted that the construction of the breakwaters could potentially impact seagrasses. Additional reasons for denial involved the utilities proposed for the uplands. DEP wrote: "The proposed utilities (RO plant, package plant) have a potential for impacts to the Lake Worth Lagoon (Class III Waters) through both a potential discharge and from long-term degradation. Also, no details on the use (short-term or permanent residency) or maintenance of the utilities was provided, both of which could affect how well the utilities function and whether they could affect water quality or habitat." DEP also noted that the proposed mitigation "does not create wetlands. It replaces 0.31 acres of submerged and intertidal habitat with 0.31 acres of mangroves and cordgrass habitat." It was also mentioned that anticipated trimming of mangroves would further reduce the value of mitigation. DEP concluded that Simmons had "not provided reasonable assurance that the construction and operation of the activity, considering the direct, secondary and cumulative impacts, will comply with Part IV of Chapter 373, F.S., and the rules adopted thereunder." DEP specifically concluded the proposal did not meet the balancing criteria set forth in Section 373.414, Florida Statutes, and Rules 62-330, 40E-4.301 and 40E-4.302. Third Modification and DEP Intent to Issue Simmons and his lawyer and consultant met with DEP staff in November of 2000. A site visit was made on December 8, 2000. After the meeting and site visit, Simmons proposed to further modify the project in several respects. The portion of the dock that was previously reduced to 4 feet in width was proposed to be constructed with a grated deck. The dock was elevated from 5.0 feet above MHW to 5.25 feet above MHW measured at the top of the deck. The design of the rest of the dock remained the same. No changes were proposed to the retaining wall or filling of wetlands. As for utilities, Simmons proposed the "Little Munyon Island Power and Sewerage Plan" This plan represented that 90 percent of the complex's power would be provided by solar energy, producing approximately 72 kilowatts (kW) of electricity. The plan also stated: "Water treatment both for drinking and waste waters will be processed through Atlantis Water treatment Auto Flash systems. This approach will use waste heat to evaporate and clean the water. This process will return used waters to potable with no more than 5 percent effluent. Any effluent will be secured and containerized and periodically (2xs per year) removed from the island." An "auto-flash" system creates distilled potable water using waste heat to evaporate all water from the effluent. The new Little Munyon Island Power and Sewerage Plan did not mention the use of irrigation waters on Little Munyon Island. DEP's staff reviewer understood from the new plan that there would be no wastewater irrigation on Little Munyon Island and that all waste would be processed by distillation, i.e., potable water. As for the mitigation plan, the two previously- proposed rip-rap breakwaters were modified to reduce their footprints, and the southern breakwater was moved somewhat landward at the southern end to avoid seagrasses. A third breakwater was added to the north side of the island. This increased the amount of mitigation area from 0.31 to 0.36 acres. In addition, Simmons submitted a revised mitigation plan to plant mangroves and spartina behind the breakwaters. Simmons also offered to record a conservation easement on the 16 acres of privately-owned submerged lands surrounding Little Munyon Island. DEP issued a Consolidated Notice of Intent to Issue Environmental Resource Permit and Consent to Use Sovereign Submerged Lands on March 12, 2001. In recommending this action, DEP's staff reviewer understood that there would be no discharge whatsoever on the island under the "Little Munyon Island Power and Sewerage Plan," and that all wastewater would be recycled and reused. Specific Condition (18) stated: "Power and wastewater service for the island shall be provided as described in the attached 'Little Munyon Island power and sewerage plan'. No discharge of effluent is authorized on the island." DEP's staff reviewer understood the permit to mean that "water, the material that comes out . . . of the other end of the waste water system" would not be discharged on the island. If DEP's staff reviewer knew Simmons was planning to use another system to treat wastewater or was planning to discharge reuse water on the island, it "would have been a concern," and he "would have questions about what that involved." He agreed that "spray irrigation would have been a concern" and would have raised issues related to the level of treatment, water quality and quantity and runoff from the upland part of the island into the waters of the Lake Worth Lagoon. The main concern would have been nutrients. In granting the revised application, DEP reversed its previous conclusions that Simmons had not complied with applicable statutory and rule criteria, and specifically found that "the Department has determined, pursuant to Section 380.0651(3)(e), F.S., that the facility is located so that it will not adversely impact Outstanding Florida Waters or Class III waters, and will not contribute to boat traffic in a manner that will adversely impact the manatee." The Challengers The proposed project is opposed by Petitioner, Singer Island Civic Association, Inc. (SICA), and by Intervenor, 1000 Friends of Florida, Inc. (Friends). SICA and Friends are both Florida corporations. SICA commenced this proceeding by filing a verified Petition for Administrative Hearing. Friends filed a verified Petition to Intervene. It was stipulated that SICA and Friends have standing as Florida citizens under Section 403.412(5). SICA also asserted standing based on the proposed project's effects on its substantial interests and those of its members. SICA is a membership organization with 1,200 members, who reside on Singer Island. SICA has an office located at 1281 North Ocean Drive, Singer Island, Florida. It also owns submerged real property in the Lake Worth Lagoon just west of and adjacent to Singer Island. SICA's membership includes individuals and condominium associations. Several individual members and condominium association members own property that borders State Road AIA on Singer Island. Some have riparian rights to the Lake Worth Lagoon. SICA performed a survey of its members and received 330 responses. Ninety percent of those responding believed they would be affected by the proposed project. More than 75 percent said they fished in the Lagoon and believed the project would hurt fishing; 80 percent said they enjoy and study the wildlife around the Lagoon; and 72 percent believed wildlife viewing would be impacted by the project. Members of SICA use the Lake Worth Lagoon for boating, fishing, recreation, or enjoyment of wildlife. The membership and the corporation are concerned about the potential of the project to pollute the Lake Worth Lagoon and adversely affect the environmental resources of the Lagoon. SICA's purpose includes the preservation of the environmental resources of the Lake Worth Lagoon and opposition to proposals to fill the submerged lands along State Road AIA. The type of relief sought by SICA in this action is the type of relief that is proper for the corporation to seek on behalf of its members. Both SICA and a substantial number of its members are substantially affected by Simmons' proposed project. A number of issues raised by SICA and Friends were dropped by the time the parties filed their Prehearing Stipulation. SICA and Friends further refined their claims at final hearing. The remaining challenges to the project focus on turbidity and shading of seagrasses caused by the construction and operation of the project, as well as on the potential secondary impacts of utilities proposed to serve the residence on the island. Direct Impacts from Proposed Dock The proposed dock is significantly larger than a typical private, single-family dock. No other of its proportions can be found in Palm Beach County. Typically, private, single-family docks are four-feet wide and made of wood, with spaced wooden planks for decking. The proposed docking facility's size and construction technique are more typical of a commercial docking facility. A docking facility of the size and kind proposed is not required for reasonable access to Little Munyon Island. Rather, it is required for construction and maintenance of a 8,000 to 10,000 square-foot residence, plus swimming pool, that will be worth $12 million to $15 million when completed. A less intense use of the island would have fewer impacts on the environment. Alternatively, there are other ways to build a house on the island without constructing a permanent dock of this size. Simmons might be able to push a barge temporarily up to the island, construct the house and then mitigate for the temporary impacts of beaching the barge. Simmons also might be able to construct a temporary span of trusses, a system used by the Florida Department of Transportation when working on coastal islands. The amount of shading caused by a docking facility is influenced by numerous factors. But if other factors are equal, generally the larger the surface area of the dock, the more shading occurs; likewise, solid poured concrete decking shades twice as much as grated decking material. As a result, all other factors being equal, the proposed dock will produce more shade than a typical private, single-family dock. In addition, there is a halo effect around the footprint of a dock that is about 2.25 times the square footage of the dock. The area under solid concrete decking will receive no sunlight. No seagrasses will ever grow in this area, eliminating possible recruitment of seagrasses in this area. Simmons made a laudable effort to locate, configure, and orient his proposed docking facility so as to reduce the shading impact of the dock's footprint and halo effect. The use of grated material over the area of greatest seagrass cover also was appropriate. But shading impacts and halo effects were not avoided entirely. In its April 2000 biological survey, CZR depicted an area approximately 40 feet wide by 250 feet long between the west of Little Munyon Island and a sunken barge as a "barren," meaning it had no seagrasses. Clearly, sand has built up over the years in this area due to influence of the sunken barge, and parts of the sandbar may be exposed at every mean low tide. This area may be devoid of seagrasses. But other parts of the sandbar may only be exposed at every low, low (spring) tide and may not actually be "barren." An onsite inspection and video tape of the area was made by Carman Vare of the Palm Beach County Division of Environmental and Resources Management in August of 2001. This inspection and video confirmed that there were no seagrasses in the sandy area from the mean high tide line on Little Munyon Island running west along the proposed footprint of the dock for a distance of approximately 130 feet. But at a point approximately 130 feet from shore, within 5 feet north of the tape placed at the presumed centerline of the proposed dock and sandy area, Vare began to find rhizomes (roots) of Cuban Shoal Grass (Halodule wrightii) in the sediment. Rhizomes of this seagrass continued to be found out to approximately 182 feet from the shore. At that point, sparse patches of Johnson Seagrass began approximately 5-10 feet north of the tape. This type of grass continued to be found to a point roughly 205 feet from the shore. From 205 feet to 215 feet from the shore, Cuban Shoal Grass rhizomes reappeared. There were no seagrasses from 215 feet to the east edge of the barge, which is approximately 243 from the shore. The area around the barge has been scoured out by waves and currents. It is possible that Vare placed his tape somewhat north of the actual centerline of the proposed dock. It is not clear from the evidence, but a sunken piling Vare swam over at one point may have been north of the centerline of the proposed dock. Also, while no seagrasses were observed when Vare swam south of the tape, Vare did not swim further than 5 to 10 feet south of the tape, so he did not know how far south of his transect line the area was barren of seagrasses. In any event, it was clear that the entire area depicted by CZR as "barren" was not in fact completely devoid of seagrasses; there were seagrasses and seagrass rhizomes either within the footprint of the proposed dock in the 110 feet or so east of the sunken barge, or very close to the north of the footprint in that locale. The sunken barge is made of decomposing wood. It is about 30 feet wide and about 100 feet long. It is often exposed at low tides, but is submerged during high tides. While there are no seagrasses growing in the barge, the barge is providing some fish habitat. If the barge were removed, seagrasses probably would re-colonize the area. West of the barge for approximately 50 feet is a colony of lush Cuban Shoal Grass. Coverage is sparse very near the barge but quickly thickens to the west to approximately 75 percent coverage. (CZR mischaracterized the density of this grass as 30 percent, perhaps in part because CZR did not conduct its surveys during the optimal growing season). From 50 to 70 feet west of the barge, CZR found moderate (30 percent) cover of Paddle Grass (Halophila decipiens). There are no grasses from 70 to 103 feet west of the barge. However, CZR found moderate (30 percent) cover of Paddle Grass south of the proposed footprint of the access dock and east of the terminal platform, extending south past the end of the terminal platform. The proposed terminal platform is in approximately 8-9 feet of water. The sediments under the terminal platform are composed of sand, silt, clays and organic materials. There are no grasses under the proposed terminal platform. The terminal platform would be directly over lush beds of Halophila decipiens (paddle grass) and Halodule wrightii (shoal grass) if the proposed dock were shortened by 35 feet, as Simmons has suggested to avoid having to obtain consent of use of sovereign submerged lands. Secondary Impacts from Proposed Dock As indicated, Simmons plans to use the proposed docking facility for construction and maintenance of a 8,000 to 10,000 square foot residence. He plans to use 55-foot long construction barges, drawing 3-4 feet of water, to bring fill, rocks, and other construction materials to Little Munyon Island. The barges will be moored to the western side of the proposed terminal platform. The use of construction barges will cause turbidity during construction. Simmons proposes to offload tons of fill from the barge and carry this fill over the dock to Little Munyon Island. One estimate was that, if Simmons used barges 120-130 feet long and capable of hauling 300 tons of fill, he would need to deliver 27-30 barge loads of fill to the dock. There is a reasonable likelihood that some of this fill will fall into the water. Simmons provided no analysis of the impacts of offloading and delivering this much fill to the island. There was no evidence of how Simmons planned to move sand around to fill the island, or its potential to cause turbidity. The location of the proposed dock in this case complicates the navigation of barges and vessels to and from the dock. Little Munyon Island is roughly centered in the Lake Worth Lagoon; and, except for some protection from the island itself, the dock is fully exposed to wind from all directions. Meanwhile, the "sail effect" of large boats adds to the difficulty of navigating them in the wind. The proposed dock also is exposed to the full effect of the current. A tidal range of a couple of feet can cause a current of about 1-2 knots; mean tidal range in the location of the proposed dock is as much as 2.8 to 2.9 feet. Finally, the proposed dock is near the ICW, which has a lot of boat traffic and wake. All of these factors can affect maneuverability of boats, create closure problems, or push the boats away from the dock. Unless Simmons wants to run the serious risk of losing control of the construction barges and inadvertently damaging seagrass beds, he will have to use a tug with significant maneuvering power. Tugs create more hydraulic thrust than other vessels because they generate more torque. Tugs also have more prop wash than most boats because they have deeper draft and larger propellers, in the range of 3 1/2 feet in diameter. The proposed dock was designed to moor a vessel up to 120-foot long parallel to the western side of the terminal platform when not being used for construction barges. If not being used for either barges or one large vessel, the mooring could accommodate two vessels of between 50-60 feet in length. Although not contemplated or ideal, it would be physically possible to moor three large vessels west of and perpendicular to the terminal platform inside the four mooring piles located 40 feet off the terminal platform. (These piles are 33 feet apart and designed to secure the construction barges, or one large vessel, parallel to the western side of the terminal platform.) While there are railings on the access pier to discourage mooring, there are no railings on the terminal platform. It also would be possible to moor boats on the east side of the terminal platform, which would be over lush seagrass beds. Simmons plans to moor his boat there when the western side is occupied by construction barges. Boats of 50-60 feet usually have twin inboard engines that range from 400 to 600 horsepower each. They can have propellers of between 26-30 inches in diameter. The engines and propellers are installed in a declining angle on such boats with the thrust vector pointing downward toward the bottom. Boats in this size range generally of draw 4-6 feet of water depending on the size and type of the vessel. A 70- foot trawler draws 6 feet of water. Unlike outboard engines (which also typically are lower-powered), inboard engines do not turn. Larger vessels move around by employing differential power. With twin inboard engines, navigation can by accomplished by using power pulsing, using the engines at different speeds, or by making one engine push forward and the other push in reverse. Winds and currents increase the need to use pulse powering to maneuver into and away from docks. For these reasons, the operation of 50-60 foot boats even in 5-10 feet of water can disturb the bottom through hydraulic scouring. As indicated, tug boats maneuvering a barge can scour the bottom even more. DEP's staff concluded that the operation of the dock would have no effect on seagrasses and sediments and would not cause turbidity or scouring problems in part by applying a longstanding policy which assumes that turbidity will not be a concern if one foot of water is maintained between boats using a dock and the bottom. The permit contains a condition that Simmons maintain one foot below boats. The so-called one-foot rule was designed for small, outboard-powered boats. As larger and more powerful vessels have increasingly used Florida's relatively shallow waters, the rule has become antiquated and ineffective for protection of marine resources from scouring and turbidity. Certainly, it will not be effective to minimize the impacts of scouring and turbidity from vessels of the size authorized and expected to use this dock. The so-called one-foot rule also does not differentiate between types of sediments. There is a "hole" approximately under and just west of the northernmost 60 feet of the proposed terminal platform; the hole also extends to the north beyond the proposed terminal platform. The water in the "hole" is approximately 8 feet deeper than the surrounding areas. The "hole" has been there for years. It could have been caused by dredging back in the 1940s. It also is just west of where a previous dock was located and could have been caused by prop-dredging (or perhaps by a paddlewheel, which used the mid-1960s). The "hole" is a silt trap. There is approximately 5 feet of silt in the bottom of the "hole." The sediment in the hole consists of very fine particles of muck and silt, with some decomposing drift algae. The silts in the "hole" probably come from the Earman River, which drains urbanized areas of North Palm Beach and discharges into the Lake Worth Lagoon just across the Lagoon from the site. There are no seagrasses in the "hole." Neither CZR nor DEP knew the "hole" was there. CZR did not identify it on its biological survey. Simmons provided no analysis of the sediments in the hole or in the mooring area of the proposed dock. DEP provided no analysis or testimony of the effect of the sediments in the "hole" on turbidity and water quality. Silts and muck cause turbidity, which is a measure of water clarity. Re-suspended mucks and silts can impact seagrasses by reducing light penetration through the water and by settling on their leaves. Silts stirred up from the operation of tugboats and large boats at the end of the proposed dock could settle on the grasses under the 4-foot grated area and negatively impact the very seagrasses that DEP was trying to protect. Once re-suspended, sediments can persist in the water column for 20-40 minutes, depending on the currents. A knot or two of current can suspend silts for half an hour and transport them a mile away. On an incoming tide, such a current could transport re-suspended sediments toward and into MacArthur State Park, just 1,100 feet away. To determine the extent of degradation of the turbidity standard in the OFW of the State Park, DEP would have to know the background turbidity in the Park. Neither Simmons nor DEP did a hydrographic survey or any other analysis of the project for its effect on the OFW. Farther west of the proposed terminal platform, the bottom rises out of the "hole" to a depth of 8-9 feet. Starting there, and extending west all the way to the edge of the ICW, there is sparse but continuous Paddle Grass (Halophila decipiens). Allison Holzhausen, an environmental analyst with Palm Beach County, has run transects throughout the area of Lake Worth Lagoon between the proposed terminal platform and the ICW and has not found any place in that area where seagrasses did not grow. Water depths in this area do not exceed approximately 14 feet. Depending on water clarity, Paddle Grass can grow in deep waters and have been found in water up to 25 meters deep in the Atlantic Ocean off Palm Beach County. CZR provided no biological survey of the seagrass communities west of the mooring area, nor did it analyze the resources or do a bathymetric survey of the area between the proposed dock and Simmons's dock on the mainland west of the ICW. This information would be needed to determine whether the operation of Simmons's boat to and from the dock on a continuing basis would impact seagrasses and to locate the best place for a channel. If the proposed dock were shortened by 35 feet, as Simmons has suggested to avoid having to obtain consent of use, the terminal platform and mooring areas would be directly over lush seagrass beds. In addition, the water there would be just 6.4 feet, or less, at MLW (mean low water); there was no evidence of detailed bathymetric information in the area. Depths would be even lower at low, low (spring) tides. Several witnesses testified that the 7.4 foot depth in the area indicated on Sheet 3 of 5 of the Plan View in Simmon's application was at MLW. But Sheet 3 of 5 indicates that "datum is NGVD," meaning the National Geodetic Vertical Datum of 1929, and Sheet 4 of 5 of the Plan View indicates that MLW is approximately a foot less than NGVD. Impacts on seagrasses from scouring and turbidity would be even greater if the proposed dock is shortened by 35 feet. Secondary Impacts of Wetland Fill When DEP gave notice of intent to issue the Permit, it was operating under the assumption and promise that there would be "no discharge" of wastewater on Little Munyon Island. Under the proposed "Auto-Flash" wastewater system, the only effluent would be solid "sludge," which would be removed from the island twice a year. This assumption continued into final hearing. On August 7, 2001--after the permit was issued, and just a couple of weeks before final hearing--Simmons proposed a different type of wastewater treatment system that would spray-irrigate treated wastewater. The new proposed system would provide aerobic and anaerobic treatment, filter the effluent, chlorinate it, and then spray it at a rate of up to 1,040 gallons per day onto the surface of the Little Munyon Island within approximately 50 feet of the water's edge. In effect, Simmons went back to his original proposal for a "waste water treatment/treatment by small on- site package plant not septic tank . . . water for irrigation and toilets will be re-used onsite treated wastewater." This system was rejected by DEP in its denial of November 4, 2000, because it lacked information on the facility and whether there would be a discharge. DEP's engineers did not review the system again after August 7, 2001. The disposal of treated effluent from the onsite sewage treatment plant raises legitimate concerns over the potential of the proposed utilities to impact surface waters. Simmons's engineer, John Potts, conceded that there will be nutrients in the wastewater. Nutrients from wastewater can cause algae to grow, which affects the health of seagrasses. Potts was unable to provide detail as to the amount of nutrients and other constituents of the wastewater. DEP's experts were not familiar with the criteria for reuse of treated effluent. DEP did not know the transmissivity of the fill and could not say whether treated effluent sprayed on the island would percolate through the fill and run into the Lagoon across the top of the rock strata on the island. Potts did not know how stormwater would be handled on the island; a proposed stormwater system has yet to be designed. For that reason, Potts could not say whether the sprayed treated effluent could reach the Lake Worth Lagoon. DEP also did not know how stormwater was proposed to be treated on site. The solar power system proposed in the Little Munyon Island Power and Sewage Plan would only produce only 31 kW of power and provide 19 percent of the complex's power and at peak times, not the 90 percent estimated by Simmons's consultants. In effect, the propane generator was not a "backup," as suggested, but the main power source for the house and utilities and only source of power for the wastewater treatment system, since the generator must be running to provide waste heat for the wastewater system to work. Instead of two available sources of electrical power for the wastewater treatment system in case one failed, there is really only one, the propane generator. The lack of any backup for the sewage treatment system increases its potential to fail and adversely affect surface water quality and the marine environment of the Lake Worth Lagoon. DEP did not analyze stormwater or the discharge of treated wastewater and its effect on surrounding waters, stating: "Typically we don't review storm water for single family residences." But Simmons's proposed project is not a typical single family residence. In rebuttal, Simmons put on evidence that there would be approximately 14,800 square feet between the retaining wall and the 50-foot setback line and that the depth of 1,000 gallons of sprayed treated wastewater would be only one-tenth of an inch if sprayed equally over that entire area. Evapotranspiration alone would account for the entire 1,000 gallons, according to the Basis of Review of the South Florida Water Management District. But the evidence was not clear as to how much of the 14,800 square feet between the retaining wall and the 50-foot setback would be available for spray irrigation. The weight of the evidence was that Simmons failed to provide reasonable assurances that the disposal of wastewater on the island will not have adverse impacts on the marine resources of the Lake Worth Lagoon unless a specific conditions were added to the permit: that a properly designed and constructed stormwater system be established prior to operation of the sewage treatment facility; and that backup systems and emergency procedures be established in the event of any failure of the main system.
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 denying the application of Robert Simmons, Jr., for an ERP and Consent of Use for his proposed docking facility. DONE AND ENTERED this 16th day of November, 2001, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative 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 this 16th day of November, 2001. COPIES FURNISHED: Ernest A. Cox, Esquire Gunster, Yoakley & Stewart, P.A. 777 South Flagler Drive Suite 500E West Palm Beach, Florida 33401-6161 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard The Douglas Building, Mail Station 35 Tallahassee, Florida 32399-3000 Rod Tennyson, Esquire 1801 Australian Avenue, Suite 101 West Palm Beach, Florida 33409 Terrell K. Arline, Esquire 1000 Friends of Florida, Inc. 926 East Park Avenue Tallahassee, Florida 32301 Kathy C. Carter, Agency Clerk Office of General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000
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
