Findings Of Fact The Respondent Debra Flynn has submitted an application to the DER to construct a dock extending 190 feet waterward of the mean high water line of waters of the state, which would also extend 80 feet landward of the mean high water line through a transitional wetland area. The landward extent of the dock will completely span the DER's wetland jurisdiction at the project site. A raised "pad" of fill upon which the applicant's house would be constructed and a filled driveway, although originally a part of this application, has been altered in design by the applicant such that those two items have been removed from the geographical extent of the DER's jurisdiction and those two items in the proposed project are no longer at issue. The applicant's lot is approximately 300 feet deep by 100 feet wide. This lot is one of many similarly sized lots which border Niles Channel on the east and Nyles Road on the west, on Summerland Key. These lots vary in nature from tidally inundated mangrove wetlands to a combination of upland and transitional wetlands fringed by mangroves along the water's edge. The portion of the applicant's lot nearest to Nyles Road is primarily characterized by upland vegetation extending approximately 75 to 100 feet in an easterly direction from the road. The elevation gradually decreases toward the waterfront of the lot on Niles Channel, with buttonwood (Conocarpus erecta), dropseed (Sporobolus sp.), key grass (Monanthochloe littoralis), and sea daisy (Borrichia sp.) being the dominant species over most of the applicant's lot. Over the northern side of the property adjacent to adjoining lot 34, a pocket of black mangroves (Avicennia germinans) extends inland, nearly to the upland area described above. As the lot elevation drops toward the shoreline, mangrove growth occurs more frequently, culminating in a dense mangrove fringe bordering Niles Channel. This mangrove fringe becomes well established some 30 feet landward of the approximate mean high water line, being dominated by black and white mangroves. Waterward of the mean high water line, red mangroves dominate for a distance of approximately 30 feet out into Niles Channel. The landward portion of the dock would have only minimal environmental impacts on the transitional wetlands as established by DER's expert witness Meyer and witness Kephart. No contradictory evidence was submitted in this regard. The bottom of Niles Channel extending 65 feet waterward of the mangrove fringe area is characterized by a hard caprock substrate covered with somewhat coarse sediments and loose algaes. In addition to the loose algae, the bottom, attached marine life communities are characterized by red, brown and green algae, sponges, anemones and hard corals. Waterward of this initial 65 foot zone, a relatively narrow zone of seagrasses is encountered. This zone of seagrass extends about 15 to 20 feet in width, forming a somewhat broken, noncontinuous band extending from north to south across the front of the property. Within this seagrass band, the primary growth is turtlegrass (Thalassia testudinum). There are smaller amounts of Cuban shoalweed (Halodule wrightii). Continuing waterward of this seagrass growth, the vegetative bottom coverage decreases with sandy patches becoming larger and more frequent. The bottom profile also becomes more rough and irregular, characterized by the presence of dissolved limerock holes as well as outcroppings. These holes and outcroppings provide excellent habitat for shelter-dependent fish and invertebrate species, such as spiny lobster and stone crabs. The area constitutes-prime nursery habitat for spiny lobsters and stone crabs. Water depth where the dock, as originally proposed, would terminate, which is in the area of the lobster and crab habitat, is approximately one and one-half to two feet deep at mean low water. The dock as presently proposed would extend some 30 feet beyond that area, or about 160 feet from the waterward edge of the shoreline mangrove fringe, or 190 feet from the mean high water line. Thus, the dock as presently proposed would terminate in a flat or sandy area which is somewhat deeper or about two to two and one-half feet deep at mean low water. Termination of the dock at that point, with boat traffic involved with the dock beginning and ending at that point will result in less likelihood of damage to the lobster and crab and other more fragile marine life habitat which occurs landward of the 190 foot termination point. At this point, the dominant marine species are patchy growths of red algae (Laurencia sp.). These growths are less susceptible to damage from prop-wash and wakes of boats than are the more landward areas characterized by turtlegrass, Cuban shoalweed and the "hole and outcrop" nursery habitat area for fish, lobsters and stone crabs. The physical and biological characteristics of the water bottom at this 190 foot distance offshore are more compatible with boat usage. The bottom here is characterized by hard caprock close to the surface, with a shallow overlying layer of inorganic, coarse-grained sediment consisting primarily of pulverized rock. There are very little or no seagrasses at this point. The applicant's boat draws approximately 12 inches of water underway and 18 inches at rest, and the dock is for the private use of the applicant only. The water depth at the termination point of the dock effectively precludes the applicant from navigating to and from the proposed dock with a significantly larger, more powerful boat and thus the physical characteristics of the water depth and hard bottom existing at the dock site themselves effectively limit the likelihood of harmful prop scouring or boat grounding damage. Impacts on water quality caused by the installation and operation of the proposed dock to the extent of its use by the applicant's private boat only, will be minimal. Some turbidity and disruption of marine life will inevitably occur during construction, but this will have no serious impact on either water quality or marine resources. The dock, as it is proposed to be constructed, will be at least three feet above mean high water level. It will be sufficiently narrow in width so as to preclude significant shading of seagrasses from sunlight and resultant death or damage to the seagrass beds between the end of the dock and the mean high water line, such that no water quality violation or harm to these marine resources will ensue. The proposed construction will not eliminate valuable marine resources in Niles Channel and will have no immediate or long-term adverse impact on the quantity or quality of the State's natural marine resources through the loss of habitat in the Niles Channel area involved. Because of the varying amounts of wetlands encompassed in the lots in the Niles Channel subdivision, it is unlikely that all of the lots in the area will be developed, or that a great number of docks similar to the proposed dock will be constructed. The Petitioner's expert witness, Mr. Robertson, established that less than half of the lots in this subdivision are suitable for or likely to be developed. The Petitioner's own witness, Fahrer, also established that Monroe County is planning to restrict development in this area through their zoning power. Accordingly, there is no reasonable expectation that many similar docks will be constructed in the Niles Channel area. Further, the recent amendments to the DER's organic statutes and related rules which took effect on October 1, 1984 mandate consideration of additional restrictive criteria involving effects of such projects on wildlife habitat, which will further serve to restrict development along the shoreline in this area. The shoreline in this subdivision is essentially undeveloped, with only one other dock presently in place, which is longer and extends further into Niles Channel than does the proposed dock. Although there was testimony by witnesses for Petitioner that the proposed dock would entail bone fishermen having to navigate out and around the dock, this testimony does not establish the premise that the dock will pose a serious impediment to navigation. The proposed dock may add slightly to the disruption of some recreational fishing navigation, however, since the adjacent property has the longer dock already in place, any disruption caused by this proposed shorter dock will not be significant and will not be contrary to the public interest in terms of navigation impediment.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the State of Florida, Department of Environmental Regulation grant the application of Debra Flynn for a dock construction permit in accordance with the conditions delineated above. DONE and ENTERED this 9th day of April, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1985. COPIES FURNISHED: Douglas H. MacLaughlin, Esq. James L. Torres, Legal Intern Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 James Hendricks, Esq. 317 Whitehead Street Key West, Florida 33040 Joel L. Beardsley Route 2, Box 441 Summerland Key, Florida 33042 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The ultimate issue to be resolved in this proceeding is whether the applicants have offered reasonable assurance that their proposed surface water management system for the Palm Beach Park of Commerce would operate within the rules of SFWMD set out at Section 40E-4.301, Florida Administrative Code. The Petitioners specifically contend that the project as proposed would cause flooding on lands adjacent to the project, would have adverse impacts on surface and ground waters, and otherwise is inconsistent with SFWMD criteria. Applicants and SFWMD contend that the project meets applicable standards.
Findings Of Fact The applicants propose to develop an industrial park to be known as the Palm Beach Park of Commerce (PBPC) in western Palm Beach County, Florida. The proposed site is located on State Road 710 and State Road 711. The site is approximately 1,248 acres in size. PBPC proposes to accommodate a variety of commercial and industrial uses. Applicants are seeking conceptual approval of a proposed surface water management system. They are not at this time seeking permits from SFWMD which would allow construction of the overall system. The proposed system does not include plans for surface water management on sites within PBPC, but rather relates solely to an overall system. Petitioner is an association of homeowners within a single family residential development known as Caloosa. The development is approximately 1,400 acres in size and consists of single family residences on approximately five-acre lots. The Caloosa development is located to the southeast of the proposed PBPC. Surface and ground water flows from the PBPC site toward the Caloosa development. Residents of Caloosa depend on individual wells for their drinking water. The site of the proposed PBPC is primarily a flat, broad plain with wetland pockets and pine-palmetto flatwoods. Approximately 720 acres of the site is dominated by pine flatwoods. A bit more than 300 acres of the site is in agricultural land, either presently or recently under cultivation. Between 160 and 170 acres of the site are viable, productive wetlands. The wetland areas are inundated with water during a sufficient portion of the year to support predominantly wetland vegetation. The land slopes generally from the northwest to the southeast. The proposed PBPC site is located within the Loxahatchee basin. Surface water from the site presently drains toward the southeast into the Caloosa canal. The Caloosa canal flows through the Caloosa development and ultimately discharges into the C-18 canal. The C-18 canal drains into the Loxahatchee River. Water from areas to the north and west of the proposed site presently drains onto the site and into the Caloosa canal. The proposed drainage system would carry water to the discharge point at the southeast corner of the site through a perimeter canal system. Water from the off-site locations would drain into the perimeter canal to the discharge point. On-site surface water would drain toward wetland pockets into the perimeter canal system or directly into the canal system. The proposed drainage system would preserve 135 acres of the wetlands presently located on the project site. These wetland areas have been incorporated into the surface water management system. Approximately 33 acres of wetlands would be filled. The wetland areas serve a significant function to preserve water quality, and to mitigate the loss of these wetlands, applicants propose to create a wetland area along the northern portion of the perimeter canal. This constructed wetland area would serve approximately the same water quality function as the wetland area that would be filled. The proposed surface water drainage system is designed so as to retain the first one inch of runoff from any storm event through a system of swales. Thus, surface water runoff would cross grassy areas and percolate through the swale systems before entering the perimeter canal system. Such a system serves to filter most of the pollutants that would be carried into the surface water system as the result of a storm event. The Caloosa canal is presently not able to accommodate flows that would result from the proposed PBPC surface water management system without flooding up to a storm event of three-day duration and 25-year return frequency. This would be a storm of such magnitude that it is likely to occur only once each 25 years over a three-day period. There are two existing bridges over the Caloosa canal which narrow the canal to only 16 feet in width. The narrow openings under the bridges presently cause flooding and erosion in the canal, which is generally 65 feet in width. At the discharge point of the Caloosa canal into the C-18 canal, there is a 65-foot wide steel sheet pile weir, downstream of the weir there are three 72-inch diameter pipes which discharge directly into the C- 18 canal. These pipes are not adequate to accommodate flows that would be anticipated from the proposed PBPC as a result of a storm event of three-day duration and 25-year return frequency. There has been erosion in the Caloosa canal partially as a result of its sandy banks and partially because of the constrictions resulting from the narrow bridges. In order to assure that the Caloosa canal could accept discharges anticipated from the PBPC surface water management system, the bridges would need to be expanded to 60 feet in width, an additional 72-inch diameter pipe would need to be installed at the discharge point into the C-18 canal, and maintenance work would need to be performed on the Caloosa canal so that it could be restored to its uneroded condition. If these improvements are made in the Caloosa canal system, then the proposed surface water management system for PBPC is not likely to result in any downstream flooding except in the event of a storm event in excess of three-day duration and 25-year return frequency. Design features of the proposed drainage system including preservation of wetland areas, creation of new wetland areas, and retention of the first one inch of storm water runoff prior to discharge into surface waters are known as "best management practices." SFWMD has a policy of accepting the implementation of best management practices as providing reasonable assurance that a surface water system will not result in adverse water quality impacts. It does not appear that construction of the proposed surface water management system would of itself have any negative impact upon the quality of surface or ground waters. There is potential for negative water quality impacts that would result from activities of individual, commercial or industrial tenants of PBPC. The applicants have agreed to prohibit certain uses within the proposed industrial park as a condition for receiving conceptual approval and to impose deed restrictions or restrictive covenants prohibiting specific uses on all property within PBPC. Uses which applicants have agreed to exclude are: breweries, fertilizer manufacturers, coal and petroleum derivation manufacturers, exterminator manufacturing and warehousing, and all chemical manufacturing including insecticides, herbicides and pesticides. Despite these restrictions, there are many potential commercial and industrial activities that could occur within PBPC that would involve the use of toxic substances which could have potentially devastating water quality impacts. The application for conceptual approval contemplates that each individual tenant within PBPC will need to obtain a permit from SFWMD for a surface water management system for their individual portion of PBPC. Each tenant would be required to establish a system which itself would retain the first one inch of runoff from any storm event. It is essential that individual tenants whose activities include the use of toxic substances be required to implement systems to assure that toxic wastes are adequately treated and disposed of properly and that systems are established to prevent accidents, and in the event of accidents, to deal with them on an emergency basis. The most potentially dangerous impact in water quality terms that might result from industrial uses is where toxic substances that are water soluble are used on the site. Such substances would not be filtered through percolation and could enter surface and ground waters. As a condition of approval, it is appropriate that all construction or operating permits be conditioned upon the implementation of control systems and emergency systems that reasonably assure that no individual user within PBPC would engage in activities that would be likely to result in violations of water quality standards. It does not appear that the proposed surface water management system for PBPC would cause adverse environmental impacts. Most of the on-site wetlands will be retained, and those that will be filled are lower quality wetlands that will be replaced by the creation of wetlands along the perimeter canal system. Construction activities and activities on site after development will undoubtedly change wildlife habitat. The area of the proposed site is not, however, a unique wildlife habitat; and it does not appear that any species would be threatened with significant habitat reduction. The proposed water management has been designed so that it can be effectively operated and maintained. The Northern Palm Beach County Water Control District has agreed to maintain the surface water management system. The district is a public entity that has personnel and expertise available to operate the system. It does not appear that the proposed surface water management system would have any adverse impact upon public health or safety. It is possible that individual tenants depending upon the nature of their activities, could offer potential health and safety hazards. It is appropriate that such hazards be taken into account in the approval of surface water management systems for individual sites within the proposed park. It appears that the proposed surface water management system is virtually as good a system as could be designed to accommodate an industrial park. The proposed use of the land as an industrial park is compatible with comprehensive plans and zoning regulations of Palm Beach County.
Findings Of Fact Chapter 216.14, Laws of Florida, 1941, establishes the Ponce de Leon Inlet and Port District for the primary purpose of obtaining land and easements to be turned over to the U.S. Government in connection with various harbor and channel improvements in Volusia County. The name and authority was changed in 1963, 1965 and 1969, so that now it is called the Ponce de Leon Port Authority whose powers were expanded to include "long-range development of the facilities for ports and recreation facilities within the district and traffic through these said ports." (Exhibit 1). In 1964 the qualified electors of Ponce de Leon Inlet and Port District approved the issuance of $4,000,000 special obligation bonds for the purpose of creating port and harbor facilities. Federal legislation authorized the stabilization of Ponce de Leon Inlet conditioned upon local authorities, viz. the Port Authority, complying with certain provisions such as paying part of the cost, providing spoil disposal sites, easements, etc. and providing "necessary mooring facilities and utilities including an adequate public landing or wharf with provisions for the sale of motor fuel, lubricants and potable water, equal to all on equal terms." (Exhibit 4). Pursuant to such federal legislation the channel improvements were completed in 1970-71. The availability of mooring and harbor facilities was an element used in determining the favorable cost-benefit ratio for the channel stabilization project. (Exhibit 2). The Port Authority's application in 1971 to the then Department of Pollution Control for a permit to construct a port and marina facility north of Ponce de Leon Inlet was denied. Thereafter an extended search for a suitable site was instituted. Included in this study are plans for a waterfront park which are referred to in various exhibits but are not a part of or integral with the application here under consideration. The Volusia County Planning Department was retained by the Port Authority to work on site selection and site design. After surveying existing marinas and determining that a need for the proposed marina existed, the planners determined that to meet the expressed need for a marina the site would require a minimum of twenty acres to accommodate water and land based boating facilities. Also, the site must satisfy the following requirements: It must be located to serve both New Smyrna Beach and Daytona Beach. The land use in the vicinity of the site must be compatible with the proposed marina. The site must be readily accessible by both land and water. There should be a minimum conflict with vehicular traffic over bridges which need to be opened to allow boat traffic. Municipal services such as electricity, water and sewage disposal facilities must be available. Topography of site must be such as to accommodate the construction of a marina. The site must offer protection to moored boats from wind and wave action. Consultants were employed to locate potential sites within the study area and six sites were identified with potential for developing a marina thereon. Three of these sites were quickly ruled out because of ecological factors and access problems, and various studies were conducted over a six months' period to evaluate the plant and animal life occupying the other three sites. In 1976 the results of the investigations, studies and meetings with various government agencies were documented in Marina and Park Study (Exhibit 8) which constituted the recommendations of the Volusia County Planning Department as adopted by the Port Authority. Upon completion of the study it was determined that Site V comprising some 90 acres which was given to the Port Authority by the City of New Smyrna Beach to whom title had earlier been conveyed by the Trustees, Internal Improvement Trust Fund, offered the best site for the project. Part of this tract consisted of a spoil disposal site upon which the New Smyrna Power Plant had been built. In addition to spoil disposal in this area some dredging had been done both north and south of the power plant site to provide access by fuel barges and other boats. Thus part of the area had previously been disturbed by man's activity and was no longer pristine. This site is close to Ponce de Leon Inlet and boats going from the marina to the ocean would have no drawbridges to pass under; the site is readily accessible from U.S. 1; Municipal facilities are available at the site; an industrial park has been established at the airport across U.S. 1 from the site thereby providing space for businesses to serve the proposed marina; the topography of the site is suitable for a marina; and the site will provide protection from wind and waves to boats moored there. Plans for the construction of the proposed marina were prepared and submitted to DER for the issuance of a permit. The Port Authority's position in 1976, which is substantially the same as now, is succinctly stated in Exhibit 8, p. 5, as follows: The Ponce de Leon Port Authority is committed ideologically and contractually to the provision of these facilities and fulfillment of these needs subject to state and local cooperation in permitting land acquisition and construction. In many respects the proposed park-marina is in fact a completion of park and recreation plans prepared as part of the original inlet stabilization proposed by the Corps of Engineers. Those parts of the current proposals not specifically contained in the plans prepared by the Corps of Engineers are modifications or logical extensions of the ideas contained therein. Numerous conferences between representatives of the Port Authority and officials of DER resulted in two modifications of the original development proposal. On each of these modifications the Petitioner further reduced the dredged area containing the most productive habitat. The final proposal, for which the application for permit was denied and is the subject of this hearing, reduced the area of mangroves to be dredged to approximately five acres and contained a design which would provide 90 percent flushing of the marina area each one-half tide cycle. By this application Petitioner seeks to construct a marina to accommodate 40 commercial vessels and 136 recreational boat slips (Exhibit 15) with the commercial boats and recreational boats on separate sides of the upland area involved. Ecological Considerations Involved The entire site owned by Petitioner and comprising some 90 acres is an impounded area bounded on the east by the Intracoastal Waterway (ICW); on the south by a road providing access to Inlet Shores, a residential development erected on a former spoil disposal site immediately south of Petitioner's property; on the west by U.S. 1 and east of that by a power line road; and to the north by the access road to the power plant site. The power line road which runs north - south and is east of U.S. 1 is breached in several places and some tidal effects are present in the marshy area between the power line road and U.S. 1. Petitioner proposes to dredge 327,000 cubic yards of which 93.5 percent is seaward of mean high water. Part of this dredged material would be used to fill and develop upland portions of the marina site, and the remainder will be deposited on disposal sites generally west of the power line road. The dredging will be done by suction dredges, and necessary safeguards will be provided to prevent turbidity or water degradation during the dredging and filling operations. To provide 90 percent flushing of the marina basin on each one-half tide cycle the water portion of the marina will be dredged to ten feet below mean low water. Of the uplands and tidal areas proposed to be dredged 0.66 acre is populated by red mangroves, 4.28 acres are populated by black mangroves, and 7.52 acres are populated by Batis/Salicornia. The fill area comprises 1.02 acres of black mangroves and 9.43 acres of Batis/Salicornia. (Exhibit 42). These vegetations are approximate because each specie is not the sole occupant of the area but merely the dominant specie thereon. Plant species in this site also include Spartina and Barrichia. To provide the 90 percent flushing of this proposed marina Petitioner proposes to make the power plant and uplands marina site into an island connected to the mainland by a bridge. This will result in eliminating the existing power plant access road and replacing it with a rerouted road and the construction of a bridge spanning the channel connecting the commercial and recreational slips. Petitioner proposes to bulkhead around the upland area of the marina and to stabilize the south side of the marina channel with rip-rap. The project slope of this channel, which abuts the area of greatest ecological significance, is two to one. Connected to the proposed marina basin to the south of the project site is a shallow tidal creek two or three feet deep which extends southward through the impounded property and provides a flushing channel for the entire impounded area east of U.S. 1. This tidal creek is the most significant ecological feature of this tract and is little affected by the proposed dredging. The proximity of this site to Ponce de Leon Inlet gives it a coastal oceanic component imposed on what would otherwise be simply an estuarine system. This component is evident from the aquatic species inhabiting the site. This is significant in that there is an import of food from the ocean as well as an export of food from the estuary both adding to the food chain at this location. Tidal range in most of the area is approximately 2.5 feet. This tidal range decreases to less than one foot west of the power line road. The few breaks in the power line road allow this tidal component to enter this area, but the reduced tidal component is due to the barrier presented by the power line road. As a result of this lower tidal range the flora west of the power line road has a much smaller red to black mangrove ratio and is generally less productive. Furthermore, greater freeze damage has occurred west of power line road than east of it; however, there remains considerable evidence of extensive freeze damage to black mangroves in the western portion of the tract east of power line road. The last freeze causing extensive damage occurred in 1977. In connection with the proposed marina project Petitioner proposes to install culverts under the power line road to allow more tidal flushing west of power line road. This will increase the productivity and ecological value of this area and thereby increase the productivity of the impounded area comprising this estuarine system. No evidence was presented from which the quantum of this increase can be determined. The most ecologically significant vegetation in this site is located adjacent to the IC and immediately south of the proposed entrance channel to the marina. Earlier applications included dredging in this area. Although not the most significant in the tract, those areas now proposed to be dredged are ecologically productive and provide sanctuary and nursery habitat for aquatic species important to the fishing industry. In this connection, studies conducted by Respondent show this area to be much more productive than do the studies conducted by Petitioner. Respondent's studies were conducted for a one- year period; Petitioner's studies were completed in six months. Additionally, Respondent used a smaller seine opening, thereby capturing a large number of small animals that could have passed through Petitioner's seines. Accordingly, more credence is given to the Respondent's evaluation of the productivity of the impounded area than is given to Petitioner's evaluation of this productivity. Biomass studies were not conducted by any of the parties hereto. Therefore, a quantitative evaluation of the loss to the site by the proposed dredging cannot be made. Suffice it to say that this loss to the ecology caused by the dredging is significant, and this significance is demonstrated by the variety of species found in the area. Water Quality Degradation With respect to water quality degradation the parties have stipulated that there will be no short-term water quality degradation due to the construction of the proposed marina. If short-term degradation will not occur due to construction it would seem obvious that this construction could not cause long-term degradation of water quality. Water quality degradation resulting from operation of the proposed marina can only be addressed by considering measures proposed by Petitioner to insure the integrity of the water quality against those forces that would cause degradation. Those forces primarily attested to include oil and gas spills, waste from moored boats, discharge from upland areas, and paint flakes from boat bottoms. The assurances that water quality degradation will not result from marina operations is provided by the necessary equipment to clean up any accidental oil or gas spills; adequate waste disposal facilities at the marina plus regulations precluding people from living aboard boats that are moored at the marina; provisions for retention of water runoff on the upland area of the marina; and 90 percent flushing on each one-half tide cycle designed into the project. This constitutes reasonable assurances that long-term degradation of water quality will not occur. Respondent's witnesses' testimony that long-term water quality degradation could occur in the estuarine channels south of the marina basin is based on the assumption that oil spills and discharge from boats is inevitable, that some of these contaminants would be carried by incoming tides up the estuarine creeks, that all of these contaminants will not exit with the outgoing tides, and consequently these contaminants will build up to a point the quality of the water will be below minimum standards. No evidence to support these assumptions was presented. While it is possible or even probable that some contaminants will enter the shallow estuarine channels on incoming tides, most of these contaminants will also exit on outgoing tides. Some of the contaminants that do not exit the estuarine channels through the marina basin will exit these channels through the mangroves on outgoing tides directly to the ICW. Other contaminants will be assimilated and absorbed by the plant life in this system. Absent flagrant violations of all laws and regulations protecting water quality, the design and equipment proposed does provide reasonable assurances that water quality will not be degraded. Responsible enforcement of these various laws and regulations will preclude flagrant violations. Wildlife Interference Manatees have been sighted in the vicinity of the power plant site. It is also an accepted fact that manatees are known to congregate near warm water discharges from industrial plants. The power plant has its water intake on the north side of the plant and its discharge on the south side of the plant site into the proposed channel to be used by recreational boats entering the marina. From these facts Respondent concludes that the proposed marina would increase the frequency of harmful and fatal encounters between boats and manatees. Manatees have been sighted in many areas of the ICW between New Smyrna Beach and Daytona Beach with the only concentration reported at the warm water discharge from the sewage treatment plant at Edgewater (just south of New Smyrna Beach). No evidence was presented from which it can be concluded that greater danger to manatees will result if the marina is located as proposed rather than at another site. Boats generally enter marinas at reduced speeds due to the restricted area in which they must operate, the potential damage wakes could create for moored boats, and the increased danger of collision with boats or docks while operating in restricted waters. While operating at reduced speeds it is less likely that a boat will hit a manatee than when operating at high speed and, if such a collision does occur, the damage to the manatee or the boat will be much less. Furthermore, without a marina near the entrance to Ponce de Leon Inlet boats will travel a much greater distance in the ICW (and at higher speeds than when entering the marina) while making a voyage to the ocean and back. This increased travel in the ICW would increase the probability of collision with a manatee more than would a concentration of boats at the marine. Various birds, some of which are endangered species, have been sighted in the area herein involved. No specific damage to these birds was shown by the proposed marina other than the potential effect removal of the productive vegetation would have on these animals. No evidence was presented that any of these endangered species nest in this area or that removal of productive vegetation would have any specific adverse effect on these birds. Public Interest and Benefits As noted above, one of the factors used to arrive at a favorable cost to benefit ratio for the channel stabilization project at Ponce de Leon Inlet was the construction by local authorities of port facilities where fuel and docking spaces would be available to the public. Surveys of existing facilities were conducted in connection with the Marina Port Study 1976 (Exhibit 8). This revealed existing marinas were full and that a substantial waiting list for berths at these marinas existed. At this time the registered boats per 1,000 population in Volusia County was 43.2. (Exhibit 11). The significance of this figure is that it shows a substantial increase since 1967, and by 1980 the registered boats per 1,000 population was 57. At the same time the population of Volusia County was also increasing each year. Available slips for boats have not kept up with these increases; in fact, statistics presented show a further widening between the number of boats and the availability of berths in Volusia County. This is also reflected in the increase in number of boats on the waiting lists at those marinas polled. Facilities for commercial fishing vessels designed to work out of Ponce de Leon Inlet are minimal. While some docking facilities exist, these consist only of piers to which to moor. Fuel is available at only a few marinas, and then by tank truck. Inadequate facilities are available in this area for unloading the catches from commercial fishing vessels. Some 30 fishing vessels are owned by local residents. Thirteen of these owners submitted signed statements that they needed and would use the proposed facility for all the needs of their vessels. Marina owners and fish house operators testified in opposition to the proposed marina, contending that a marina constructed with tax revenues and low interest loans would offer unfair competition to them, that their facilities were adequate to meet the existing needs for marina and fishery services, that if the public facility was not built they would expand their facilities to meet the need, that there are insufficient fish to provide a source to support the additional boats to be attracted by the marina, and that no increase in the available fish to be taken off Ponce de Leon Inlet is a realistic concept. While there have been wide fluctuations in the annual fish harvest in this area, the average fish catch over the past ten years indicates that this harvest is now at or near its maximum sustainable yield. Therefore, a significantly increased harvest is not anticipated. This does not mean that if facilities for off-loading fish are provided by the proposed marina that there will not be a substantial increase in the quantity of fish landed here. If so, this would mean that these fish loadings would be taken from another port. While this would result in no economic increase for Florida (assuming the landings were taken from Cape Canaveral), it would represent an economic benefit for Volusia County. Considerable testimony was presented respecting the desirability and economic feasibility of governmental intrusion into private enterprise which will occur if the marina is constructed by the port authority as proposed. The answer to such a question is predominantly a political one which has been answered in favor of such intervention by the voters. The evidence that a business enterprise is more efficiently run by private interests than by a governmental entity was not disputed. However, there are occasions where the size of the project, the risks involved, or the necessity for the project is such that it will only be done if constructed by a governmental entity. Classic examples of such projects are airports, bridges, tunnels, low-cost housing projects, large reclamation projects, and port and harbor facilities. There are also many marinas that have been constructed and run by public bodies such as cities, port authorities or other political subdivisions. The facilities when completed are to be leased to private enterprise to operate these facilities. This will be more efficient than if the port authority operated the facility. The primary, if not sole, consideration used by Respondent to deny the permit was the destruction of productive habitat that will result from the construction of this marina. No evidence was presented that Respondent weighed the loss of habitat against the public need for the marina; or, if such was done, the factors used in determining the weight to be given to each. At the hearing evidence of need (and lack thereof) for a marina was presented as well as evidence bearing on the economic feasibility for this marina. After considering all of the testimony I find that the construction of the marina will result in the destruction of valuable habitat, that the slips to be provided at this marina are needed for both commercial fishing boats and recreational boats, and that the marina will provide economic benefits to Volusia County. Balancing the loss to be caused by the proposed dredging and filling against the gain to the people of Volusia County and the surrounding area by the construction and operation of the proposed marina, I find construction of the marina not to be contrary to the public interest.
The Issue By this petition the Florida Game and Fresh Water Fish commission (GFWFC) seeks administrative review of Respondent's, Department of Health and Rehabilitative Services (HRS), denial of a permit to operate a swimming facility at the J. W. Corbett Wildlife Management Area, Palm Beach County, Florida, in connection with its operation of the Everglades Youth Camp. Four witnesses were called by Petitioner, Six witnesses were called by Respondent, twenty exhibits were offered into evidence, and sixteen exhibits were admitted. Objection to the admission of Exhibits 6, 7 and 8 was sustained on the ground that the photographs could not be identified by a witness who could testify to the accuracy of the photographs. Objection to the admission of Exhibit 14, a copy of a letter from Geotec, Inc., to the Youth Camp was sustained on the ground that it was hearsay. Subsequently, however, testimony was adduced that Respondent relied in part upon the exhibits not admitted in denying the permit requested.
Findings Of Fact Petitioner, GFWFC, has operated a youth camp at the J. W. Corbett Wildlife Management Area in Palm Beach County for the past six years. The camp is attended by youths of both sexes, ages 8 to 14 years. Normal facilities expected at a camp of this nature, including a sewage treatment plant, are provided. During the summer camp period 90 to 110 campers per week are enrolled. At other times the facilities are utilized on weekends by scout groups and clubs. A six-acre lake with a maximum depth of 6 to 8 feet forms an essential part of the recreation facilities of the camp. Over the years GFWFC has removed silt from the lake and most of the area now used for swimming has a white sand bottom. There are no streams that feed the lake. The water level in the lake is maintained by the ground water table in the area. During the camp season the lake is used by swimmers twice per day--once in the morning and once in the afternoon. Bacteriological samples of the water are taken at weekly intervals during the camping season and more frequently if the coliform count is high. Medical records of the camp indicate the only water-related diseases experienced by the campers has been ear infections which average 5 to 10 per week. As a result of the incidence of ear infections the doctor recommended ear drops be administered to all swimmers. The Director of the camp recalled only one time when the coliform count reached 1,000 organisms per 100 milliliters. On that occasion he put chlorine in the lake and the coliform count returned to a low reading. Exhibit 3 shows most probable number (MPN) coliform count per 100 milliliters in the youth camp lake in July and August, 1974 and 1974, during the camping season to vary between 1 and 450, for an average of approximately 115 coliform organisms per 100 milliliters. Recently Petitioner pumped down the lake to remove accumulated silt, regrade the lake to reduce surface water runoff into the lake and to create an outfall to permit water to flow out of the lake. During this evolution the question of a permit arose and after application therefor was made by Petitioner, Respondent refused to issue the permit which is required by Chapter 514, F.S. for the operation of a public swimming place. In the application for permit (Exhibit 1) submitted by Petitioner the information required by 504.03 F.S. and Rule 10D-5.24 F.A.C. was included. Palm Beach County Health authorities consider no lake that does not receive flushing from a spring or artesian source to be a natural swimming place or able to qualify for a permit. These authorities recommended denial of the permit in the instant case. They consider all of the small lakes west of the coastal ridge in Palm Beach County to be not lakes, but mere depressions in the ground which receive their water supply from the ground water table. The reasons for denial of the permit by HRS are shown in Exhibit 2 as follows: "1. Non-compliance with Subsection 10D-5.24(1) FAC in that sanitary surveys show no water flow-through or feed to the requested pond area except by surface run-off and/or rainfall; water from ground water table may possibly provide a minimal source of water when the head pressure of the filled pond is eliminated. Accordingly, there is no flushing of said pond. The pond being in a non-fenced area in a natural habitat is not protected from animal body pollution, and additionally, will be receiving bather pollution. With no flow-through, bathtub-like conditions described above, the subject pond constitutes an area by or through which the health or life of individuals may be threatened or impaired or directly or indirectly disease may be caused (386.01 F.S. and 10D-5.24 FAC). The marl shores and sides of the pond retain water and thereby are capable of retaining water-borne diseases. There is a high likelihood the pond will be subject to high turbidity in the bathing area. In the past the bacterial quality of the pond water has been erratic. * * * 8. (sic) That the holding out of the pond subject herein by the Commission in a youth camp under the conditions described above places, and in fact encourages, the use of said facility by young people and subjects them to a high probability and potential risk dangerous to their health and the health of the community and the health of the people of the State of Florida, contrary to the injunction of the Legislature of the State of Florida to this agency to protect and oversee the public health (Chapters 381, 386, 514 F.S.)." In conducting a sanitary survey Palm Beach County officials consider all other forms of pollution in addition to the possible sources of sewage contamination and industrial wastes specified in Rule 10D-5.24(1) F.A.C. These "other forms of pollution" are interpreted by Palm Beach County officials to include plant nutrients, organic chemicals, heat, and any and all forms of pollution that could cause health problems including wild animals having access to the lake, sedimentation, turbidity of the water, decaying vegetation, and water retention capability of the lake boundary. Otherwise stated they consider all scientific information available on pollution in determining whether or not a natural swimming place will be granted a permit. There are no fresh water natural swimming places in Palm Beach County that have current permits. HRS in denying the permit in the instant case relied heavily upon the recommendation of Palm Beach County. HRS considers natural swimming places should be as free from pollution and communicable diseases as possible. Without some flushing of the system pollutants will increase, principally from use by bathers, and these pollutants will remain in the water for a long time. No evidence was submitted regarding the dissipation of pollutants by aeration, bacteria, animal life, etc. In order for the youth camp lake to meet the dilution criteria considered necessary by HRS, 50,000 gallons of water per day into the lake is required. Otherwise the water would need filtering and the addition of approximately 1,000 pounds of chlorine per day. In denying the permit HRS adopted the position of Palm Beach County that flushing of the lake was necessary in order to dilute the pollutants. Leon County Health officials use only the criteria listed in Rule 100- 5.24 F.A.C. in determining whether or not to recommend granting a permit for a natural public bathing place. The bacteriological survey is done by Leon County rather than by the applicant. Several lakes in Leon County have been issued permits. Some in U.S. National Forests were formerly permitted while operated by a concessionaire, but now that they are operated by the Forestry Division no permit is applied for. Some of the lakes used as natural swimming places in Leon County have no source of water supply other than the ground water table. The bacteria count is taken at weekly intervals and at lakes which get heavy usage the coliform count exceeds 1,000 organisms per 100 milliliters following heavy Sunday afternoon usage. The coliform count can be reduced by the use of chlorine; however, there is no assurance in natural swimming places that the chlorine will be evenly distributed or that all areas of the lake will receive chlorine. Other natural swimming places in Leon County are used by swimmers but a permit has not been recommended by the county because the coliform count is over 1,000 organisms per 100 milliliters. A national committee on water quality criteria for swimming pools and bathing places has recommended discontinuance of the use of total coliform count in determining the condition of the water from a public health standpoint. They would use only fecal coliform count and recommend that all factors that may pollute the water be considered and that dilution of the pollution by the flow- through of water should be a requirement for bathing places. Other witnesses for HRS attested to the dangers to the health of swimmers using the same water used by other swimmers, wild animals, and waterfowl. Swimmers pollute the water with fecal coliforms, virulent diptheria organisms from the nose and throat, as well as streptococci, staphylococci and other flagellates in nasal paryngeal passages. Wild animals, notably raccoons, carry rabies, meningitis germs and salmonella. Waterfowl cause other diseases and droppings from these waterfowl remain viable on the lake bottom for years. Similarly, tetanus germs are carried in water by the soil. As a result water related injuries are subject to tetanus infection.
Findings Of Fact Permitting History This development was originally known as North Largo Yacht Club and was owned and developed originally by the Largo Brand Corporation. That developer and this development received Development of Regional Impact approval from the county commission of Monroe County in accordance with Chapter 380, Florida Statutes in 1974. In 1975 that developer received various permits and water quality certifications authorizing construction of the "Atlantic Marina" (the existing marina) from both the Florida Board of Trustees of the Internal Improvement Trust Fund and the United States Army Corps of Engineers. The marina was ultimately constructed and no further governmental approvals are required for the present Respondents to make full use of the existing marina which has an authorized boat capacity of 363 boat slips, which are situated around long piers extending from the shore of the marina basin out into the marina basin. Sometime after construction of the marina, the mortgagee, through foreclosure, obtained title to the property from Largo Brand Corporation which has since dissolved, ultimately conveying it to City National Bank as trustee under a Florida land trust. City National Bank filed the present application in its original form but in February, 1984, conveyed the property to Port Bougainville, Inc. and Port Bougainville Enterprises, Inc., the present Applicant/Respondent who succeeded City National Bank as the real parties in interest prosecuting the present permit application, as modified. The permit application as it presently exists is the result of various modifications suggested by the Department of Environmental Regulation and agreed to by the present Applicant/Respondents, which had the effect of causing the Department to change its position from one of denial of the permit to one of approval, by issuance of a Notice of Intent to grant the permit in June of 1984. The Applicant/Respondent's original decision to apply for the new permit was based upon aesthetic considerations and a desire to redesign and change the theme of the development and the marina itself. It is thus proposed that the boat-mooring facilities be moved to the periphery of the basin and the piers or docks extending out into the basin be removed. This would create an open body of water in the basin, more in keeping with the "Mediterranean Village Harbor" theme of the entire development. The original application filed in early 1984, called for realignment of the docks rather than removal, and the creation of various baylets or inlets along the access canal and contained no proposal for shoaling the existing boat basin. The Department used this original proposal as a basis for its Intent to Deny the Permit Application since it considered those modifications unacceptable in terms of the likelihood that it might degrade water quality or at least not improve the ambient water quality then existing in the marina basin and entrance canal. The Respondents acceded to the demands of the Department, employed additional consultants and redesigned the project, including the creation of a sophisticated hydrographic model by which, and through which, the Respondents ultimately proposed (with the Department's agreement) to revise the application as follows: Shoal the entire basin and canal system to no more than -6 Ft. mean low water; widen and sculpt the access canal on the west side and install solid flow baffles on the east side so as to create a sinusoidal or curving configuration in the canal to improve mixing of the water in the canal and basin system; remove the existing docks and construct new docks around the periphery of the basin so as to provide a decreased number of boat slips and capacity for a total of 311 boats; install one bubble screen surrounding the fueling facilities to contain oil and fuel spills and another at the entrance of the access canal where it opens into the Garden Cove Channel so as to prevent organic materials from outside the canal and basin system from being carried into it with tidal currents and wind; installation of "batter boards" along the length of the waterward or easterly and southeasterly side of the access canal so as to protect the mangroves along that side of the canal from the effects of wake energy caused by boats. After further "free-form" review, investigation and negotiation, the Department required, and the Respondents agreed to make the following additional modifications to the marina development plan: Shoal the north end of the basin to -4 ft. mean low water; slightly reconfigure the access canal and install an additional wave baffle on the eastern periphery of the canal in order to improve circulation in the western portion of the boat basin; relocate the proposed fueling facilities more toward the rearward center of the basin in order to further isolate them from the outstanding Florida waters lying at the outward, "seaward" end of the project; provide funds necessary to more adequately mark the Garden Cove Channel in accordance with the requirements specified by the Department of Natural Resources so as to further ensure that boat traffic and possible propeller damage could be prevented to the marine grassbeds and other marine life on either side of the Garden Cove Channel; install tidal level gauges at the mouth of the Garden Cove Channel which would show boaters wishing to use the channel and access canal the current, minimum depths prevalent in the channel and canal; grant to the Department a "conservation easement" binding upon the Respondent which would provide the following: That no hydraulic connection be made from any of the upland lakes on the Respondent's property to the marina, to the canal, to the channel or any other state waters; an agreement not to employ boat lifts that would require a dredge and fill permit from the Department; an agreement not to apply for additional permits so as to increase the number of boat slips in the marina beyond the 311 presently proposed; to develop a reef management plan in conjunction with the Florida Audubon Society to include educational programs for the public as well as underwriting the installation of mooring buoys and adequate channel markers in the John Pennekamp Reef Park, the Outstanding Florida Waters (OFW) involved in this proceeding. During the time of construction of the proposed marina modifications, the entire marina will be closed and isolated from the waters of Garden Cove by the installation of a dam at the entrance to the marina access canal where it opens into Garden Cove. The dam will remain in place until turbidity resulting from the dredging, filling and construction has settled and the waters in the marina have achieved the turbidity standards required by the Department and its rules contained in Chapter 17 3, Florida Administrative Code. All the proposed modification work will be performed landward of the surveyed mean high water line. Additionally, a storm drainage system will be installed which will prevent any stormwater runoff from being deposited into the marina harbor. The stormwater runoff will be routed away from the harbor through the use of a reverse gradient around the periphery of the harbor and runoff from the adjacent real estate development will be thus routed away from the harbor into grass swales to be collected into holding areas for filtration. Ambient Water Quality in the Marina and Garden Cove Respondents tendered Dr. Earl Rich, a professor of Biology at the University of Miami as an expert in ecology and he was accepted without objection. Since 1974 he has conducted extensive studies with attendant sampling, observation and water quality monitoring in the Port Bougainville Marina. Beginning in 1983 he also performed certain chemical analyses on the water samples from the marina. Photographs taken underwater in the marina basin were adduced and placed in evidence, as were the results of the observations and tests. It was thus established that there is a dense growth of macroalgae in the marina at a depth of about six feet, although at the nine-foot level there is much less such growth. Concomitantly, the deeper holes in the marina basin exhibit a low dissolved oxygen reading and are largely responsible for the frequently occurring, low dissolved oxygen reading in the marina system that is lower than acceptable standards embodied in Chapter 17-3, Florida Administrative Code. Garden Cove itself is a shallow embayment open toward the Atlantic Ocean in a generally easterly direction, characterized by a rocky or coarse sediment bottom substrate. It is characteristic of this area that organic materials such as seaweeds and the like, are transported by currents and winds into Garden Cove from other marine areas. The underwater vegetation in Garden Cove is lush. There are extensive shallow-water marine grass beds. These vegetated areas support a large population of marine animals and fish. Dissolved oxygen is, of course, essential to the metabolism of these organisms. The two primary means for oxygen to enter the water are as a result of photosynthetic activity of marine plants and through oxygen entering the surface waters through waves and wind action, with that surface water being distributed and mixed so as to disburse the action throughout the water column. The term biochemical oxygen demand or BOD, refers to the rate at which organisms use oxygen in the water. If there are many active photosynthetic organisms, as in Garden Cove, the production of oxygen during the day, as for instance by the seagrasses in the cove, exceeds the BOD of the plant and animal community in the water body, in which case the plants contribute excess oxygen to the air. During hours of darkness, plant and animal communities in the water body will continue to consume oxygen although there will be no photosynthesis to contribute oxygen. Therefore, in an underwater community rich in plant and animal life, such as Garden Cove, the dissolved oxygen level is typically higher during the daylight hours and BOD readings will be decreased during the night, reaching a low level during the early morning hours. Frequently, dissolved oxygen readings in Garden Cove are below state standards for waters of the State under natural conditions. These low DO readings occur commonly in Garden Cove during conditions of calm wind. Indeed, Dr. Rich has measured dissolved oxygen in Garden Cove below the four-part per million state standard even before the present marina and canal were ever constructed. Since the opening of the marina there have been times when the DO readings in Garden Cove have been lower than those inside the marina itself. Hydrodynamics of the Modified Marina The proposal by the permit applicant calls for widening the access channel into the marina to approximately 130 feet by excavating upland on the western bank of the canal. The access canal will then be reconfigured during the excavation into a winding or curving fashion. That adjustment, along with the solid flow baffles to be installed on the eastern bank of the canal, will set up a winding or sinusoidal flow of tidal currents. The sinusoidal flow will induce secondary helical currents that will move water repeatedly from the top to the bottom of the canal and then back, thereby significantly improving the mixing action. The improved mixing of the waters in the canal and marina will serve two purposes: It will disperse any pollutants so as to reduce pollutant concentrations. It will disperse the oxygen introduced into the surface waters by wave and wind throughout the water column. Dr. Bent Christensen is Chairman of the University of Florida Hydraulics Lab. Using knowledge gained in hydrographic modeling as a result of work he performed in carrying out a "Sea Grant study" under the auspices of the University of Florida, Dr. Christensen designed a computer model of the proposed Port Bougainville marina and access canal by which, in turn, he designed the winding access canal which will emulate nature in producing a turnover of water induced by current velocities and canal configuration, rather than by temperature differences in water. The computer model takes into account tidal flows and wind-induced velocities which are important to mixing of water within the system. Using this model, Dr. Christensen was able to redesign the marina canal so as to improve water quality within that system as well as improving the quality of water leaving the system into Garden Cove. Drs. Lee and Van de Kreeke are ocean engineers who testified as expert witnesses on behalf of Petitioners. They sought to dispute Dr. Christensen's conclusion that the redesign would improve DO levels within the marina based upon their independent determination that a different design would increase flushing times for the system. Flushing, however, is a simplistic way of analyzing water quality. Flushing analysis assumes that the only means to improve water quality is to replace water within the system with water from outside the system. The Christensen model and the resulting proposed design of the marina and canal, on the other hand, improves water quality through internal mixing action. The proposed design actually reduces flushing time, but more importantly, maximizes dispersion of water within the system and along with it, dissolved oxygen. The design introduces dissolved oxygen throughout the water column in the system through internal mixing because of the sinusoidal configuration of the canal and the helical currents the canal configuration sets up. The concentration of pollutants measured by the State Water Quality Standards are, in turn, reduced through the same hydrodynamics. Dr. Van de Kreeke admitted that a key ingredient in his model was the assumption he had regarding BOD in the system, but he had no idea what the BOD extant in the Port Bougainville system might be. He also admitted that his calculations did not take into consideration the factor of wind mixing of the waters in the system and acknowledged that wind can and does play an important role in flushing and mixing the waters in marinas. Finally, Dr. Van de Kreeke admitted that he could not fully analyze Dr. Christensen's assumptions in arriving at his model and design because he did not have the information Dr. Christensen relied upon. Thus, Dr. Christensen's model and design is accepted as more credible than that of Drs. Van de Kreeke and Lee. That model and design establishes that the quality of water exiting the marina into the Outstanding Florida Waters in Garden Cove will be improved by the modifications proposed to be constructed in the marina. Impact on Benthic Communities The northerly end of the marina basin will be sloped from -6 feet to - 4 feet. This widening and shallowing of the marina basin and access channel will have the affect of promoting the growth, regrowth and welfare of the benthic communities in the waters in the marina and access canal by providing greater light penetration to the bottom of the marina. The widening will have the effect of causing a greater portion of the marina bottom to be lighted during the day since at the present time, the bank and surrounding trees shade the marina basin for substantial portions of the day. The increased light penetration will result in more photosynthetic activity by the plant life in the marina and canal such that increased amounts of oxygen will be produced enhancing the dissolved oxygen levels of the marina waters. In that connection, the Respondents' expert, Dr. Rich, has examined a number of marinas and observed very healthy benthic communities in marina harbors more densely populated with boats than will be the proposed marina. Another significant improvement in the ecological status of the present marina will be the placing of a bubble screen device across the mouth of the entrance canal. This will have the effect of preventing floating organic materials such as sargassum, from entering the marina. Marinas typically experience problems related to dissolved oxygen levels in their waters because of an accumulation of floating organic material which tends to settle to the bottom creating excessive biochemical oxygen demand in their decomposition process, thus resulting in decreased dissolved oxygen levels. Thus, the bubble screen will aide in decreasing BOD. Likewise, a bubble screen device is proposed to be placed around the fueling facilities in the rearward portion of the marina basin so as to prevent the spread of pollutants such as spilled oils, greases and fuels, which may occur during routine fueling operations from time to time. Inasmuch as the modifications have been shown to cause some improvement in the dissolved oxygen level in the waters of the marina basin and access canal, it has been demonstrated that the modifications will not interfere with the conservation of marine wildlife and other natural resources. The bodies of water consisting of the marina, the access canal and Garden Cove, at the present time support a diverse marine community that can be expected to continue to flourish. Neither will the proposed activity destroy any oyster or clam beds, as none have been shown to exist in these waters. Dr. Rich has monitored waterways and offshore waters at a nearby, comparable marina, The Ocean Reef Club, for approximately ten years. He has discerned no noticeable impact on the benthic communities within that marina from a very heavy boat traffic during that period of time. The boats using The Ocean Reef Club Marina are typically larger than will use the Port Bougainville facility and boats of over 100 feet in length commonly use The Ocean Reef Club. In terms of impact on offshore benthic communities, he has observed no visible impact by the heavy amount of boat traffic using The Ocean Reef Marina from the standpoint of comparison of the experience with that marina, in terms of biological impacts, with the marina configuration proposed by the Applicant/Respondents. In short, the proposed marina configuration as contrasted to the existing permitted marina, represents an improvement because of the increased surface area providing increased oxygen exchange through wave and wind action, the shoaling which will also be beneficial to dissolved oxygen levels because of its enhancement of photosynthetic processes, and because of the proposed marina management steps designed to prevent floating organic material from entering the marina. Thus, the modified design was shown to provide a meaningful improvement in general ecological conditions within the marina and hence, in the offshore waters of Garden Cove with which the marina waters exchange and mix. Water Quality Dr. Eugene Corcoran is Professor Emeritus of the Rosensteel School of Marine and Atmospheric Sciences. He is a marine chemist and performed a chemical analyses of the samples taken for the water quality report presented by Respondents and in evidence as Respondent's Exhibit 17. Dr. Corcoran also performed the analyses for the ongoing water sampling program conducted by Dr. Renate Skinner, an expert witness for Petitioners. The Petitioners accepted Dr. Corcoran as an expert witness without objection. The proposed marina modifications involved in this permitting application were thus shown to cause no violations of the state standards for dissolved oxygen. The Rio Palenque Water Quality Study in evidence indeed documented a number of instances where dissolved oxygen fell below the state minimum standards of four parts per million in the present marina. Once the modifications are completed there still may be instances when dissolved oxygen falls below that standard, but this can be attributed to natural phenomenon and the same relatively low levels of dissolved oxygen below state standards have been observed in the offshore waters of Garden Cove itself, which is an Outstanding Florida Water. Significantly, however, it was established that concentrations of dissolved oxygen will likely increase as a result of these modifications, the inducement of the helical flow and consequent vertical mixing, the widening of the entrance canal and the shoaling of the bottoms in the marina basin and canal, as well as the measures to be taken to reduce the deposition of organic materials in the marina basin and canal. The only water quality criteria placed in contention by the Petitioners and Intervenors were dissolved oxygen and copper. Although a number of Petitioners' witnesses were qualified to address the impacts of water quality on different marine organisms, only Dr. Curry was qualified as an expert in water quality. Dr. Curry's chief concern was with dissolved oxygen, which is based on the Rio Palenque Study showing present low values for dissolved oxygen in the marina as it now exists. Dr. Curry did not establish that the proposed modifications to the marina would themselves cause dissolved oxygen violations and although he testified in great detail concerning his attempt to compute the amount of copper that might be given off by the bottom paint of boats in the modified marina, he was unable to render an opinion that the modifications would increase copper levels in the waters in the marina. He acknowledged that his calculations were based on the assumption that all the boats in the marina would be using copper anti-fouling paints and his calculations took into account an assumption that all boats in the marina would have been painted within the last six months as a base datum for his calculations. Additionally, he did not take into account dispersion ratio associated with the hydrodynamic forces present in the modified marina. Dr. Curry admitted that he had never studied copper levels in a marina environment and was unable to explain the chemical effects on water quality of copper anti-fouling paints on boats. In all his sampling, he only found one instance of a violation of the Chapter 17-3 copper standard and that occurred within only a few millimeters of the hull of a newly-painted boat. Other fallacies involved in Dr. Curry's analysis, concern the interaction of seawater with copper bottom paint. Since seawater has a high level of carbonates, copper is immediately complexed with organic compounds such as amino acids. These organic complexes are soluble in seawater and indeed, serve as important nutrients to phytoplankton and other beneficial marine organisms. Thus, that portion of the total complex copper precipitated from the water as well as that portion taken up as nutrients would not be included in any concentrations of copper measured in the water column. Additionally, Dr. Curry's computations did not take into account the dispersion of copper concentrations due to mixing or flushing, which has a direct beneficial effect on reducing concentration of copper and other pollutants in the water column. Thus, Dr. Curry's computations are deemed immaterial, inasmuch as he effectively admits that the modifications to the marina would not be detrimental to water quality. The proposed modifications will not lower ambient water quality or significantly degrade the waters in the adjacent John Pennekamp Park, Outstanding Florida Waters. Since it has been established that the marina modifications will likely improve water quality within the marina, logically, the water quality in the park to some degree might be slightly improved, since those waters exchange with the waters in the marina. There will be no increase in concentrations of any pollutants emanating from the Port Bougainville Marina as a result of the proposed modifications. Improved Marking of Garden Cove Channel The Applicant/Respondents are required to provide improved navigational markers in the Garden Cove Channel, pursuant to an amended development order. Additionally, they have agreed to provide additional channel markers delineating the channel from the entrance of the existing marina to the Garden Cove Channel proper. With regard to the Garden Cove Channel, the Respondents proposed to move certain existing channel markers to more clearly identify that channel, which would make certain portions narrower and thereby eliminate boat passage over some shallow areas populated with marine grasses which presently lie within the marked channel. The Respondents also propose to add two more sets of channel markers at the seaward end of Garden Cove Channel, so that boats exiting the channel heading for the open sea will avoid certain shallow marine grass areas. The reason for this is to avoid possible damage to valuable marine grass beds and habitat which might be caused by prop wash of boats crossing over them, as well as actual contact and scouring by propellers or potential grounding of boats navigating these areas. Witness Balfe for the Respondents has personally sounded the entire length of the access canal and Garden Cove Channel. His soundings are admitted in evidence as Respondent's Exhibit 19 and are unrefuted. It was established therefore, that the bottom configuration of that access channel is basically flat or level with only minor irregularities of less than a foot. There are no rock outcroppings or other obstructions which would reduce the controlling depth below -4 feet. Approximately 12 times per year however, during "spring tides", the ambient water depths in Garden Cove could be expected to go below -4 feet mean low water. During these times the tide will be approximately 6 to 8 inches below that normal depth. Perhaps 25 times per year the tide is 5 or 6 inches below that mean low depth. The tide gauge which will be installed will alleviate possible propeller scouring or grounding damage to grass beds and marine habitat, especially during those abnormally low tides, by providing boat operators a current, up-to-date reading on the depths in the channel. Contributions to Park Management Plan and Marina Management Plan The Applicant/Respondents have agreed to a permit condition requiring a financial commitment to assist in the management of the John Pennekamp Park so as to minimize the adverse impacts of human use of the park. This commitment includes the provision of $75,000 to finance a study and preparation of a management plan for the John Pennekamp Coral Reef State Park and Key Largo National Marine Sanctuary, which would include study of the feasibility of inaugurating an entry permit system for the park, a testing and certification program for commercial dive boat operators, possible zoning of the park to allow recovery of the park coral reefs and other resources from the impacts of human visitors, locating central mooring buoys so that visitors' boats could be moored in one restricted area to avoid damage to the delicate coral reefs, and more adequately marking the boundaries of the park. Additionally, the Respondents propose to provide $50,000 for the acquisition of anchor buoys to be placed in selected areas of the park and to provide funds to finance a survey to more adequately identify the boundaries of the park. In order to more adequately protect water quality in the marina itself, the Respondents will inaugurate a marina management program which will include the installation of a sewage pump-out station and a pump-out station for motor oils and lubricants for boats. In addition to the two bubble curtains mentioned above, the Respondents will install containment booms and absorption mats and will permanently maintain a boat equipped with absorption mats and suction equipment for fuel or oil spill removal. The marina will prohibit persons living aboard boats, to prevent attendant sewage effluent problems, and will prohibit maintenance of boats, including painting and oil changes, while boats are in the water. This program will be monitored by an environmental protection officer employed by the condominium association under the auspices of the Respondents. Many of these marina management provisions are already requirements of the Port Bougainville 1982 development order referenced above. Management of Inland Lakes Although the use and management of the inland lakes on the Respondents' property is not directly involved in this permit application proceeding, the Respondents' overall development plan encompassed by the development order anticipates that at a future time a boat lift will be installed on upland so as to allow boats to be transferred from the inland lakes into the marina for access to marine waters. The lakes themselves, however, will not be open to the marina or to outside waters. The inland lakes are anticipated to provide dockage for approximately 200 boats, with restrictions against boats exceeding 20 feet in length and boats powered by combustion engines. The Respondents expect that the inland lakes will be primarily used by small boats such as canoes or sailboats. Dry storage for boats will be maintained on an upland site, for which a DER permit is not required. Neither is a permit for a boat transfer facility required since it would not involve dredging, filling or construction over water. The use of a boat lift, although it itself is not an issue before the Hearing Officer in this proceeding, would involve the potential of 200 or more boats using the marina in addition to those for which the marina is designed. This could occasion substantially greater risk for oil, grease and fuel spills and other potential damage to the water quality within the marina and damage to the marine habitat, grass beds and so forth within the marina, the access canal and the adjacent areas in Garden Cove. Accordingly, the conservation easement which the Respondents have agreed to provide the department as a condition to the grant of this permit should be amended to add a further condition on a grant of this permit so as to preclude placement of boats from the inland lakes into this marina or its access canal. Such a restriction would comport with the proposed uses of the inland lakes established by Mr. Scharenberg, the Respondent's principal. Boating Impacts Boat traffic in the Garden Cove Channel area is significant, with heaviest traffic occurring on the weekends when approximately two to three hundred boats navigate that channel. The boats presently using Garden Cove Channel come from a number of nearby marinas, small fishing docks and dry storage areas, as well as from a marked navigational channel called North Creek that provides access to the Garden Cove area and the Atlantic Ocean from Largo Sound. A small canal cuts through Key Largo into Largo Sound and provides access for boats in the Black Water Sound and other areas on the west side of Key Largo to the Garden Cove area and the Atlantic. The Port Bougainville Marina is expected to attract a mix of boats typical for such a marina, with the majority consisting of boats ranging from 27 to 35 feet in length. Approximately 20 percent of the boats will likely be in the 40-foot range. Larger boats may also use the marina, particularly those with a shallow draft, and "shoal draft" sailboats of 35 to 40 feet can safely navigate in and out of the marina. The marina, as it would be modified, would permit use of boats with a draft of up to three and one-half feet, although deeper draft boats could use the marina by timing arrivals and departures for the high tide, which is a common mode of operation by boat operators in the Florida Keys and other marine areas. The Port Bougainville Marina will contribute approximately 30 to 50 boats to the Garden Cove boat traffic on an average weekend out of the possible 311 boats in the harbor as it is proposed to be constructed. There will be a lesser number of boat arrivals and departures during the weekdays. The primary users of boats in and out of the marina will be people who own condominiums in the attendant real estate development. Temporary visitors, not owning boats moored in the marina, would typically use the dive charter boats and other rental boats in the surrounding areas, such as at the Ocean Reef facility. The existing marina which is already permitted and can be fully used at the present time from a legal standpoint, could accommodate the same reduced number and sizes of boats as the proposed modified marina by simply removing some of the present docks and finger piers. The Respondents propose to maintain approximately 20 slips for boats which are not owned by condominium unit owners, and they anticipate operating six to seven deep-sea charter boats as well as five smaller skiff-type charter boats, and perhaps as many as two dive charter boats with additional demands for charters to be serviced by charter boats in the surrounding areas. Boating adverse impacts on the marine benthic communities inside and outside of the marina will be minimized by the construction configuration of the marina and boat slips, the shoaling and widening of the marina basin and canal, and the channel marking and tidal gauging provisions proposed by the Applicant/Respondents. These safety arrangements would be further enhanced by the above-mentioned restriction on the placing of boats into the waters of the marina and canal from the inland lakes. The configuration of the proposed modified marina and the shoaling will have a beneficial effect in rendering use by extremely large boats, which might cause propeller, wake or grounding damage to the marine benthic communities unlikely because of the inaccessibility caused by the intentional shoaling. Coral Reef Impacts Dr. Peter Glynn is a qualified expert in marine ecology and was accepted as an expert witness in that area with particular emphasis, through his long specialization, in the ecology of corals and coral reefs. He has researched the effects of sediments, herbicides, pesticides, oxygen levels, temperature, salinity, tidal effects and oil pollution on corals. He testified as a rebuttal witness addressing concerns raised by Petitioners' and Intervenor's witnesses with regard to boat traffic, attendant turbidity and possible synergistic effects on coral reefs caused by oils, greases, low oxygen levels and turbidity. Dr. Glynn has studied corals in many areas of the world including the Caribbean and the Florida Keys. The coral reefs in Florida are similar to those in the Caribbean area and belong to the same "biogeographic province." He has dived in and examined the Garden Cove area and found four species of small reef building corals in Garden Cove. These were found in the vicinity of a shipwreck near the channel entrance to Garden Cove and the remainder of the corals observed in Garden Cove were in the bottom of the boat channel running through Garden Cove. There were no corals observed on the grass flats and in shallower areas of Garden Cove. The corals occurring in the boat channel are in isolated colonies of less than a foot in diameter. The Petitioners and Intervenors attempted to raise the possibility of synergistic adverse effects on corals posed by combinations of oils, oxygen levels, temperatures and sedimentation or similar impacts. It was not shown how or at what concentration turbidity might combine with various oxygen levels, temperatures or degrees of light penetration to produce such effects, however. The only type of synergistic effects on corals Drs. Glynn and Corcoran have observed is that between oils and pesticides. Although this effect has been demonstrated in another study area far removed from the Florida Keys, no such pesticide and oil synergistic impact has been observed in the Florida Keys area, chiefly because it is not an agricultural area characterized by significant use of pesticides. Likewise it was not established that suspended sediments in the Garden Cove area could have an adverse effect on corals by reducing light penetration. In tropical areas such as the Keys, light penetration is often saturating or in greater quantities than are really needed for healthy coral growth and indeed, many corals in these areas have pigments that naturally shield them from excess light because these coral species actually can suffer from too much light penetration. Additionally, Dr. Glynn has observed good coral reef health and growth in areas that are highly turbid. It was not established that an increase of sedimentation deposit on corals will necessarily have an adverse impact, particularly because most corals can accept a substantial amount of fine-grain sediment deposition without adverse effect. The manner in which the proposed marina modifications will be accomplished will minimize sedimentation at any rate since the canal will be dammed off from Garden Cove until all work is completed and all sedimentation within the marina and marina access canal has subsided to levels compatible with the state standards for turbidity. In any event, there is no evidence that boat traffic in Garden Cove at the present time influences the distribution and health of live coral, particularly since the main coral abundance in Garden Cove occurs in the heavily-used boat channel at the present time. Likewise, Dr. Glynn established that sediments from any increase in boat traffic in Garden Cove will not likely drift out on the offshore reef tract and be deposited on the reefs to their detriment in any event, since the fine sediments occurring in Hawk Channel and in Garden Cove, are largely precluded from deposition on the offshore reefs because the waters over the reef tract offshore have very different physical characteristics. That is, there is distinct interface between the inshore and oceanic waters caused by the strong wave assault and current action near the reefs, which precludes the fine sediments from the inshore areas remaining in the area of the reefs. Finally, any increase in the number of people visiting the Pennekamp Park attributable to use of the modified marina will not inevitably lead to degradation of the reefs. By way of comparison, studies of Kaneoi Bay in Hawaii where a major pollutant source from human sewage caused degradation of the coral reefs, showed that when sewage effluent was subsequently directed away from the reefs, the reefs rejuvenated and repopulated and are now used extensively for recreational activities without observable biological degradation. These studies are consistent with studies Dr. Glynn referenced with regard to Biscayne Bay National Park, which have shown no significant degradation occasioned by human visitation of the reefs in that park. Those studies have not shown a significant difference between the health of the "controlled reefs" and the reefs which are allowed to be used for recreational purposes. It was thus not established that there will be any degradation of the corals in the near-shore areas of Garden Cove nor in the offshore reef areas occasioned by any increased boat traffic resulting from the modification of the marina. Indeed, it was not demonstrated that the mere modification of the marina, which will actually accommodate fewer boats than are presently permitted, will cause any increase in present boat traffic at all. Dr. Glynn, in the course of his teaching and studies in the field of marine ecology has become familiar with the causes and effects of Ciguatera toxin in marine environments. He recently participated in the study of possible Ciguatera toxin at the grounding site of the freighter Wildwood on Molasses Reef, some miles distant from the marina site. All cases reported of such harmful concentrations of this toxin have originated from open water, outer coral reef environments, and not from near shore areas such as those involved in this case, where seagrasses and mangroves are the dominant marine communities. Ciguatera toxin organisms require clear open ocean water with strong currents and well-developed coral reefs which are found offshore in the Keys and not in the near-shore mangrove-type environments. The cause of Ciguatera is a concentration of toxin in the food chain. Although the bacteria that cause Ciguatera Toxin in fish, and resulting harmful effects in humans, occur everywhere in marine waters, the bacteria are not a hazard because generally, conditions are not appropriate for the bacteria to multiply. The two main species of dinoflagellates, that have been associated with causing Ciguatera poisoning do not occur in an environment such as the Port Bougainville Marina. They are typically concentrated in larger fish such as snapper, grouper and barracudas which cause problems when they are eaten by people. These species are not generally found in the inshore mangrove and grassbed areas such as are involved in the case at bar. Thus, the concerns expressed by Petitioner's witnesses concerning the possibility of Ciguatera poisoning occurring because of possible damage to corals and coral death caused by the dredge and fill operations, and boat operation associated with the marina and Garden Cove are, in reality, only unsubstantiated speculation.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, RECOMMENDED: That the State of Florida, Department of Environmental Regulation, issue the requested permit subject to the conditions incorporated in the agreement or "conservation easement" executed between the Department and the Respondents with the further condition added to that conservation easement such that the deposition of boats from the inland lakes system into the marina and its access canal be prohibited. DONE and ENTERED this 9th day of April, 1985 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of April, 1985. COPIES FURNISHED: Elizabeth J. Rickenbacker, Esquire 10500 Southwest 108th Avenue Miami, Florida 33176 Michael F. Chenoweth, Esquire 522 Southwest Third Avenue Miami, Florida 33130 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Michael Egan, Esquire, Robert Apgar, Esquire Post Office Box 1386 Tallahassee, Florida 32302 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SIERRA CLUB: UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation; PAMELA BERYL PIERCE, and FRIENDS OF THE EVERGLADES, INC., a non-profit Florida corporation, Petitioners, and DOAH CASE NOS. 84-2364 84-2365 FRIENDS OF THE EVERGLADES, INC., 84-2385 a non-profit Florida corporation; 84-2827 THE FLORIDA DIVISION OF IZAAK (Not consolidated) WALTON LEAGUE OF AMERICA, INC., a non-profit Florida corporation; UPPER KEYS CITIZENS ASSOCIATION, INC., a non-profit Florida corporation, Intervenor-Petitioners, vs. STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, and PORT BOUGAINVILLE ASSOCIATES, LTD. a Florida limited partnership, and PORT BOUGAINVILLE ENTERPRISE, INC. a Florida corporation, Respondents. /
Findings Of Fact The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned property. Title is held by the Board of Trustees of the Internal Improvement Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns County. Within the boundaries of the Preserve is included the Guana River State Park (the Park). It, too, is state-owned. It is managed and operated by the Division of Recreation and Parks (the DRP) of the Department of Environmental Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are included within the boundaries of the Park. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in the Preserve is the area of the beach between mean high water and mean low water. The mean high water line is essentially the landward extent of the ocean at mean high tide; the mean low water line is essentially the landward extent of the ocean at mean low tide. When the tide is low, this entire area of the beach is exposed. It remains wet and, generally, relatively hard-packed during the time it is exposed. However, there are beds of "red shell" in this part of the beach that are softer. In the summer, this part of the beach averages approximately 50 feet in width. In the winter, when the waves and tides generally are higher, it is narrower. In the Preserve, the mean high water line usually is indicated both by debris washed up during the highest tides and left on the beach and by a "shelf." This "shelf," made by the erosive action of the ocean waves during the highest tides and during storms, rises at an angle of approximately 45 degrees and can be from one to four or five feet high. Landward of this shelf is the "dry sand" or "soft sand" beach, also sometimes referred to as the "upper beach." It extends landward from the mean high water line to the vegetation line, where the dunes start. Usually, some pioneer vegetation is found in the uppermost reaches of this part of the beach, forming what is called the "foredune" area of the beach. The tides along the Atlantic Ocean beaches in the Preserve are semi- diurnal, i.e., there usually are two high tides and two low tides a day. These high and low tides last approximately one hour, and each day they occur approximately an hour later than they did the day before. There are five beach access points with motor vehicle parking areas located along U.S. Highway A1A within the Preserve. Three are within the Park. There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five parking areas. There also is a current proposal for the addition of three more access points in the Park, with parking for a total of 340 vehicles, five beach bathhouses, and five pedestrian overpasses. There are many other places where pedestrians can walk from A1A to the beaches, including 30 County-controlled access points. But there are no lawful parking areas adjacent to any of these other access points at this time, and parking on the right-of-way of A1A is prohibited. Currently, the only lawful motor vehicle access to the Atlantic Ocean beaches in the Preserve is to the south of the Preserve. Prior to the agency action challenged in these proceedings, motor vehicles lawfully could be driven onto the beach at this access point and be driven north into the Preserve, so long as they remained below the mean high water line. A former access near the north end of the Preserve has been cordoned off. To leave the Preserve, motor vehicles would have to be turned around and driven back south to the same motor vehicle access point. Due to the restricted access to the Atlantic Ocean beaches in the Preserve, not much use is made of those beaches. In comparison, beaches to the south are used much more heavily. Of the relatively few who use the motor vehicle access to the south and drive on the beach north through the Preserve, some ultimately use the beaches to picnic, swim, surf, beach-comb and similar activities; some probably just drive on the beach. There was no evidence quantifying the uses currently being made of the beaches in the Preserve. In the past, homemade motor vehicles called "skeeters" were built with a light-weight chassis and over-sized wheels. They were used for driving on both the hard and soft areas of the beaches, as well as illegally in the dunes. This practice has been curtailed due to better enforcement of the prohibitions against driving in the dunes, a generally heightened environmental consciousness among the public, and prohibitions against driving the "skeeters" on public highways. Generally, there has been less driving on the beaches of the Preserve in recent years, although the practice persists at a reduced level. At all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area. The times of the daily high and low tides can be obtained relatively easily by members of the public. But there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach. In the summer months, sea turtles lay eggs in nests dug in the sand of the foredune and dune areas of the Atlantic Ocean beaches in the Preserve. After a period of incubation in the nests, the turtle hatchlings dig themselves out of the nests and crawl to the ocean to begin their lives in the sea. Driving motor vehicles over nests on those parts of the beaches in the summer months could crush eggs in their nests or pack the sand hard enough to reduce the number of hatchlings that emerge from the nest alive. In addition, driving motor vehicles in these area, even in other parts of the year, can leave ruts in the beach that disorient hatchlings that leave the nests in summer so that fewer reach the ocean alive. Sea turtles crawl out of the ocean to their nest sites at night. Artificial lighting can disturb their nesting and egg-laying activities. However, it seems that moving lights, or lights that turn on and off (in the manner of car lights), create more of a disturbance than stationary lights, such as those more often found at residences along the beaches in the Preserve. The Management Plan does not prohibit artificial lighting along the beaches in the Preserve, but it recommends that further attention be given to this problem and that ways to address the problem be explored and pursued in cooperation with the County. Various shore birds, including the threatened least tern, make their nests in the foredune area of the beaches in the Preserve. Driving on the foredunes destroys and disturbs nesting habitat and disturbs the nesting activities of these birds. In addition, both these ground nesting shore birds and a variety of migratory birds make use of different areas of the beaches to rest and feed. Driving on the beaches disturbs these activities, as well. The only known nesting colony of least terns in St. Johns County is located in the Park, where beach driving is prohibited. The Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to prohibit driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park. At least parts of the beaches in the Park have been posted as areas where driving motor vehicles is prohibited. In order to develop a management plan for the Preserve, the manager of the Preserve personally researched the geology, climate and natural resources of the Preserve, as well as the records of the County, and also collected data pertaining to the Preserve from several state agencies. Over the course of a year, the manager's input was taken into consideration, and a management plan, called the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), was developed for the Preserve. It was adopted by the Board of Trustees of the Internal Improvement Trust Fund on December 17, 1991. The Management Plan recites in pertinent part: At the present time, motorized vehicular traffic is permitted, by county ordinance, below the natural vegetation line on the beaches adjacent to the Atlantic Ocean in St. Johns County. Vehicles are not allowed on the 4.2 miles of beach within Guana River State Park. The coarse coquina sand and steep profiles of the beaches in the preserve make driving on the wet sand area difficult. Drivers are forced to cross the dry sand area, damaging the foredunes, pioneer dune vegetation and sea turtle nesting habitat. Due to the negative environmental impacts resulting from this activity, motorized vehicular traffic shall not be considered an authorized activity on sovereign submerged lands within [Prime Resource Protection Area] PRPA beach management areas of the preserve, and therefore will be prohibited. Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are Prime Resource Protection Area, and the driving of motorized vehicles on them is prohibited. On June 11, 1993, the DEP's DRP sent St. Johns County a letter advising that, based on the Management Plan, DEP no longer would permit the driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or about August 18, 1993, the DEP agreed not to enforce the beach driving prohibition in the Preserve until these cases are resolved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Environmental Protection enter a final order enforcing the prohibitions contained in both F.A.C. Rule 16D-2.002(4)-(5) and the proposed amendment to F.A.C. Rule 18-20.004 against the driving of motor vehicles on the beaches on the Atlantic Ocean beaches in St. Johns County that are within the Guana River Marsh Aquatic Preserve. RECOMMENDED this 30th day of November, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3970 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-6. Accepted and incorporated to the extent not subordinate or unnecessary. 7. Subordinate and unnecessary. 8.-9. Accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. There also is access by boat and, albeit over longer distances, by foot. Accepted and incorporated to the extent not subordinate or unnecessary. Accepted in part and rejected in part, as reflected in the Findings of Fact. Accepted as representative of dead low tide. Subordinate and unnecessary. Accepted and incorporated. Rejected in part: in that there are "red shell beds" in summer, too, and they can force drivers onto the "soft sand" areas in summer, too, depending on the tides; in that "dramatically" is argument and not proven; and in that Exhibit 2 depicts dead low tide in summer. Accepted but subordinate and unnecessary. Rejected as not proven. (Enforcement of such mitigation would be impracticable or impossible.) Accepted but subordinate and unnecessary. Accepted and incorporated. 20.-21. First sentence, accepted and incorporated. Second sentence, accepted that the County uses "due care," but enforcement of a prohibition against driving anywhere except on the "hard sand" is impracticable or impossible. Rejected as not proven. Accepted but subordinate and unnecessary. Rejected as not proven that there is "no way to get to many beach areas" or that limited access "restricts traditional use." (Access as limited, or more limited, is "traditional.") 25.-27. Accepted and incorporated. Rejected as not proven. (How easy it is depends entirely on the tide, the number and location of people on the beach, and the presence of "red shell" beds.) Accepted and incorporated. Respondent's Proposed Findings of Fact. 1.-3. Accepted and incorporated except to the extent conclusion of law and unnecessary. Accepted and incorporated. Accepted but subordinate and unnecessary. 6.-20. Accepted and incorporated to the extent not concluson of law, subordinate or unnecessary. 21.-24. Rejected as being conclusion of law. 25.-33. Accepted and incorporated to the extent not subordinate or unnecessary. 34. Rejected as conclusion of law as to who is "responsible." 35.-54. Accepted and incorporated to the extent not subordinate or unnecessary. 55. Rejected as not proven. Also, conclusion of law. COPIES FURNISHED: Daniel J. Bosanko, Esquire Assistant County Attorney St. Johns County Post Office Box 1533 St. Augustine, Florida 32085-1533 Edwin A. Steinmeyer, Esquire Barrie J. Sawyer, Esquire Assistant General Counsel Department of Environmental Protection Mail Station 35 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante, Esquire General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues are whether Respondent Lennar Homes, Inc., is entitled to an environmental resource permit to construct a 516- acre residential development in Miami-Dade County known as Lakes by the Bay South Commons Project and, if so, under what conditions.
Findings Of Fact On May 18, 2001, Respondent Lennar Homes, Inc. (Lennar Homes), filed an application with Respondent South Florida Water Management District (District) for an environmental resource permit (ERP) for a 516-acre residential development in Miami- Dade County known as Lakes By The Bay (Project). On June 12, 2002, Lennar Homes filed a revised ERP application for the Project. The application, as revised, is for an ERP conceptually approving the construction of a surface water management system to serve the Project and authorizing the construction to clear the site, excavate the wet retention areas, and expand an existing lake. Providing 3300 single- family residences, the Project is the last phase of a master planned residential development, which presently contains over 1500 residences north and west of the Project. The Project is bordered by Southwest 97th Avenue to the west, Southwest 87th Avenue to the east, Southwest 216th Street to the north, and Southwest 232nd Street to the south. Immediately south of the Project are a regional wastewater treatment plant and county solid waste landfill. These facilities occupy opposing banks of the C-1 Canal, which runs a short distance from the southwest corner of the Project. The Project site is drained, cleared, and infested with Brazilian pepper and melaleuca. The Project will impact 135 acres of wetlands, but these wetlands are severely degraded due to the construction of roads, berms, and canals. No evidence suggests that the site is presently used by any listed species. At present, drainage across the site is from west to east, where stormwater is intercepted by the L-31E levy and canal running along the west side of Southwest 87th Avenue. At its nearest point (the southeast corner), the Project is about one mile from the southern part of Biscayne Bay. Biscayne Bay is an Outstanding Florida Water. Much of its central and southern parts, including the area closest to the Project site, are within Biscayne National Park. In contrast to the northern part of Biscayne Bay, the central and southern parts contain significant mangrove-lined coastal wetlands. The bay bottom in southern Biscayne Bay hosts dense seagrass beds, and coral reefs within Biscayne National Park support a diverse community of marine life. The L-31E levy and canal redirect stormwater from the Project site south to the C-1 Canal, which runs, in this area, in a northwest-to-southeast direction before emptying into Biscayne Bay. The C-1 Canal drains an extensive area to the north and northwest of the Project. The landfill and water treatment plant are a short distance downstream of the Proposed Project. The parties have stipulated that the Project meets the following ERP criteria (with minor rephrasing from the stipulation): The Project will not adversely affect significant historical and archaeological resources. The Project is not located within an Outstanding Florida Water and will not result in the direct discharge of surface water into an Outstanding Florida Water. Lennar has proposed mitigation to offset the adverse impacts of the Project, and the mitigation is in the same drainage basin as the adverse impacts. Therefore, the Project will not generate unlawful cumulative impacts, in violation of Section 373.414(8)(a)-(b), Florida Statutes. The Project will not cause adverse water quality impacts to receiving waters and adjacent lands, in violation of Rule 40E-4.301(a), Florida Administrative Code. The Project will not cause adverse flooding to onsite or offsite property, in violation of Rule 40E-4.301(b), Florida Administrative Code. The Project will not cause adverse impacts to existing surface water storage and conveyance capabilities, in violation of Rule 40E-4.301(c), Florida Administrative Code. The Project will not adversely impact the maintenance of surface or ground water levels or surface water flows established pursuant to Section 373.042, Florida Statutes, in violation of Rule 40E-4.301(g), Florida Administrative Code. The Project will not cause adverse impacts to a work of the District established pursuant to Section 373.086, Florida Statutes, in violation of Rule 40E-4.301(h), Florida Administrative Code. The Project will be conducted by an entity with sufficient financial, legal, and administrative capability to ensure that the activity will be undertaken in accordance with the terms and conditions of the permit, as required by Rule 40E-4.301(j), Florida Administrative Code. No special basin or geographic area criteria established in Chapter 40E-41, Florida Administrative Code, are applicable to the Project. The Project will not adversely affect navigation or the flow of water or cause harmful erosion or shoaling, as prohibited by Section 373.414(1)(a)3, Florida Statutes. The Project will be permanent, as addressed by Section 373.414(1)(a)5, Florida Statutes. The District issued its Staff Report on March 13, 2002. The Staff Report approves the proposed mitigation plan, which would enhance or create and preserve 135 acres of onsite wetlands by creating an upland buffer, emergent marsh and transitional herbaceous shrub areas, and tree island areas. Much of the proposed mitigation area will occupy the southern half of the perimeter of the Project site. As proposed in the mitigation plan, Lennar Homes will grant the District a conservation easement over the mitigation area and will be required to meet certain mitigation performance conditions. Shortly prior to the commencement of the final hearing in this case, the District decided to change the proposed permit regarding mitigation. The purpose of the change was to require Lennar Homes to allow the mitigation area to be used as a flowway between the C-1 Canal, upstream of the nutrient loads deposited by the landfill and water treatment plant, and an area to the east of the Project site. The receiving area consists of vestigial tidal creeks leading to presently remaining tidal creeks that empty into small embayments within Biscayne Bay. The general purpose of the change was to remediate the loss of freshwater flows into these tidal creeks, the embayments, and Biscayne Bay that resulted from the construction of drainage canals and levies, such as C-1 and L31-E. Accordingly, the District issued an Addendum to Staff Report on August 9, 2002. The Addendum adds an easement to the original mitigation plan by adding Special Condition #24, which states: No later than 30 days after permit issuance and prior to commencement of construction resulting in wetland impacts, the permittee shall submit two certified copies of the recorded flowage easement for the mitigation area and associated buffers and a GIS disk of the recorded easement area The recorded easement shall be in substantial compliance with Exhibit 41. Any proposed modifications to the approved form must receive prior written consent from the District. The easement must be free of encumbrances or interests in the easement which the District determines are contrary to the intent of the easement. . . . Exhibit 41 (actually Exhibit 41A) is entitled, "Perpetual Flowage, Inundation, Construction, and Access Easement." Representing a grant from Lennar Homes to the District, the easement (Flowage Easement) is for any and all purposes deemed by [the District] to be necessary, convenient, or incident to, or in connection with, the unrestricted right to regularly, or at any time, and for any length of time[,] overflow, flood, inundate, flow water on, across, and through, store water on, and submerge the [encumbered property], together with the unrestricted right at any time to enter upon and access the [encumbered property], with any and all vehicles and equipment, including but not limited to the right to move, transport, store, operate, and stage equipment, materials and supplies, in order to construct, operate, and maintain any and all structures, improvements, equipment, pumps, ditches and berms upon the [encumbered property] deemed by [the District] to be necessary, convenient, incident to or in connection with the implementation of the BBCW Project on the [encumbered property], or in connection with any project in the interest of flood control, water management, conservation, environmental restoration, water storage, or reclamation, and allied purposes, that may be conducted now or in the future by the [District], or to carry out the purposes and intent of the statutory authority of the [District], presently existing or that may be enacted in the future, together with all right, title, and interest in and to the [BBCW] Project Structures. * * * This Easement shall at no time be construed to alleviate or release [Lennar Home's] responsibilities and require [sic] under ERP Permit No. to construct and maintain an on-site mitigation area as described and authorized in the ERP Permit. Other provisions of the Flowage Easement impose all risk of loss in connection with the flowway upon Lennar Homes, which indemnifies the District from all losses, costs, damages, and liability in connection with the flowway. On September 5, 2002, after the hearing, but a few days before the taking of the post-hearing testimony, the District issued a Revised Addendum to Staff Report. The Revised Addendum restates Special Condition #24 with a few relatively minor changes and adds Special Conditions ##25 and 26. Special Condition #25 attempts to harmonize the Flowage Easement with the original mitigation plan contemplated by the Staff Report. Special Condition #25 provides that when the District exercises its rights under the Flowage Easement, other special conditions shall be deleted, so as, for example, to relieve Lennar Homes of its obligations to maintain the mitigation area (except for a 25-foot buffer) and post a mitigation-performance bond. Special Condition #26 changes the language in the conservation easement, which was contemplated by the original Staff Report and mitigation plan, to harmonize this easement with the Flowage Easement. Lennar Homes has submitted a version of the Revised Addendum to Staff Report that would satisfy its concerns. The Lennar Homes version would require the District, within 30 days after issuing the ERP to Lennar Homes, to obtain permits from the U.S. Army Corps of Engineers and the local environmental regulatory agency, although not the Florida Department of Environmental Protection, which, under state law, would have to issue an ERP to the District before it could construct the flowway. The Lennar Homes version would also give the District only 90 days after issuing the ERP to Lennar Homes within which to exercise its right to construct the flowway and would sequence events so that Lennar Homes would not spend the estimated $2 million on wetland enhancement and creation and then lose the investment due to the inundation of the mitigation site with water, as authorized by the Flowage Easement. The Comprehensive Everglades Restoration Plan plays a crucial role in this case. But for this plan, the District would not have attached the additional conditions contained in the Addendum to Staff Report and Revised Addendum to Staff Report--without which conditions, the District now contends that Lennar Homes is not entitled to the ERP. Congress initially authorized the Central and Southern Florida (C&SF) Project in 1948. Objectives of the C&SF Project included flood control, water supply for municipal, industrial, and agricultural uses, prevention of saltwater intrusion, and protection of fish and wildlife. The C&SF Project attained these objectives, in part, through a primary system of 1000 miles each of levees and canals, 150 water-control structures, and 16 major pump stations. Unintended consequences of the C&SF Project have included the irreversible loss of vast areas of wetlands, including half of the original Everglades; the alteration in the water storage, timing, and flow capacities of natural drainage systems; and the degradation of water quality and habitat due to over-drainage or extreme fluctuations in the timing and delivery of freshwater into the coastal wetlands and estuaries. In 1992, Congress authorized the C&SF Project Comprehensive Review Study (Restudy). The objective of the Restudy was to reexamine the C&SF Project to determine the feasibility of modifying the project to restore the South Florida ecosystem and provide for the other water-related needs of the region. Completed in April 1999, the Central and Southern Florida Project Comprehensive Review Study Final Integrated Feasibility Report and Programmatic Environmental Impact Statement (Restudy Report) notes that, among the unintended consequences of the C&SF Project, was "unsuitable freshwater flows to Florida and Biscayne bays and Lake Worth Lagoon [that] adversely impact salinity and physically alter fish and wildlife habitat." The Restudy Report states that, absent comprehensive, new restoration projects, the "overall health of the [South Florida] ecosystem will have substantially deteriorated" by 2050. The Restudy Report recommends a comprehensive plan for the restoration, protection, and preservation of the water resources of Central and South Florida. This plan is known as the Comprehensive Everglades Restoration Plan (CERP). Acknowledging the complex dynamics of the restoration goals identified in CERP, the Restudy Report establishes Project Implementation Reports to tie together CERP and the detailed design necessary for the construction of individual restoration projects and adaptive assessments to monitor the performance of individual components, incorporate new data, and refine future components. The Restudy Report is, among other things, a programmatic environmental impact statement. The Restudy Report states: "Due to the conceptual nature of [CERP] and the associated uncertainties, many subsequent site-specific environmental documents will be required for the individual separable project elements." In May 2002, the District and U.S. Army Corps of Engineers completed a draft of the Project Management Plan for the Biscayne Bay Coastal Wetlands (BBCW PMP). Noting that a "major goal of [CERP] is to improve freshwater deliveries to Biscayne Bay," the BBCW PMP identifies the BBCW project as the means by which to restore some of the coastal wetlands and tributaries in south Dade County. The BBCW PMP states that the primary purpose of the BBCW project, which is one of sixty projects contained in CERP, is to "redistribute freshwater runoff from the watershed into Biscayne Bay, away from the canal discharges that exist today and provide a more natural and historic overland flow through existing and or improved coastal wetlands." The Cutler Wetlands subcomponent of the BBCW project encompasses the Project site. One of the objectives of the Cutler Wetlands subcomponent is to divert water from the C-1 Canal upstream of the landfill and water treatment plant to the east of the L-31E levy and canal. In connection with the Cutler Wetlands subcomponent and the possible role of the flowway identified in this case, the District retained Dr. John Meeder, a Biscayne Bay ecologist associated with the Southeast Environmental Resource Center at Florida International University, to perform an abbreviated study and issue a report concerning the conditions required for the restoration of the coastal wetlands in the vicinity of the coastal wetlands to the north of the C-1 canal and east of the Project site (Meeder Report). The Meeder Report studies two feasible freshwater delivery options and prefers a bypass flowway along Southwest 224th Street, across roughly the middle of the Project site and north of most of the proposed mitigation area, to the L-31E levy and canal. The distribution system resulting from the preferred route would use the natural grade of the land to divert the water to the coastal wetlands and tidal creeks to the east and south that are targeted for rehydration. The alternative flowway route would run along Southwest 232nd Street, in the approximate area of the Flowage Easement, but would require pumping to distribute the water north along the L-31E levy and canal for release to the targeted coastal wetlands and tidal creeks. Obviously, the District has chosen the less-preferred route to minimize the impact on the Project. The Meeder Report considers the amount of freshwater required for two rehydration options. In the first option, water diverted from the C-1 Canal and passing through the flowway would rehydrate only the tidal creeks, which then empty into the embayments that lead to Biscayne Bay. In the second option, water diverted from the C-1 Canal and passing through the flowway would rehydrate the tidal creeks and the surrounding coastal wetlands. To maintain an appropriate salinity range and rehydrate only the tidal creeks, the flowway would need to deliver 70 acre/feet per day in the dry season and 95 acre/feet per day in the wet season. To maintain an appropriate salinity range and rehydrate the tidal creeks and surrounding coastal wetlands, the flowway would need to deliver 209 acre/feet per day in the dry season and 1139 acre/feet per day in the wet season. Several factors militate against an attempt to rehydrate the coastal wetlands surrounding the targeted tidal creeks. Potential errors in data and analysis increase in magnitude with the larger freshwater diversions needed to rehydrate the tidal creeks and surrounding coastal wetlands, and Dr. Meeder admitted that the largest value was very approximate. Potentially serious impacts upon salinity and associated vegetative communities increase in likelihood with the larger freshwater diversions needed to rehydrate the tidal creeks and surrounding coastal wetlands. Also, the diversion of larger volumes of water from the C-1 Canal may have adverse impacts on downstream conditions. At the point of the C-1 Canal where it first enters the landfill and wastewater treatment plant (just downstream from the flowway), the average flow of the C-1 Canal is 350 acre/feet per day, but the median flow is only 160 acre/feet per day. (The average flow rate is skewed by occasional, very high daily flows of 4000 acre/feet during large storm events.) The larger volumes diverted to rehydrate the tidal creeks and surrounding coastal wetlands would, at times, withdraw a relatively large portion of the water from the C-1 Canal. For these reasons, the District justifiably elected to seek a flowway that would rehydrate only the tidal creeks, including the vestigial tidal creeks, but not the surrounding coastal wetlands. Petitioners and Lennar Homes have raised numerous other issues about the flowway that the District seeks to obtain. The District requires a 200-acre flowway to rehydrate adequately the vestigial tidal creeks, the presently remaining tidal creeks, the small embayment, and then the subject area of Biscayne Bay, but the mitigation area potentially available on the Project site is limited to about 135 acres, and some uncertainty exists as to whether the District can obtain control of the remaining land necessary to assemble a 200-acre flowway. Even the 200-acre flowway is probably insufficient to accommodate significant water treatment, so water quality issues remain outstanding, notwithstanding the better water quality upstream of the landfill and water treatment plant. Other issues arise from the requirement that the District obtain an ERP from the Florida Department of Environmental Protection, as well as one or more federal agencies, before it could construct the flowway. To the extent that this requirement delays and possibly precludes the construction of the flowway, this requirement militates against the inclusion of the Flowage Easement and new special conditions in the ERP. To the extent that this requirement insures that the flowway will not cause flooding or adverse water quality in the tidal creeks, embayment, and ultimately Biscayne Bay, this requirement militates in favor of the inclusion of the Flowage Easement and new special conditions in the ERP; the absence of detailed specifications for the design and construction of the flowway precludes any assurance that the flowway would not flood or otherwise damage the upland portion of the Project site, so subsequent permit-review is essential to the present inclusion of the Flowage Easement and new special conditions in the ERP. It is impossible to credit the District's evidence that various transition-zone wetland species would survive inundation under unknown flow rates, of variable depths, and of unknown and possibly indefinite duration. Lennar Homes legitimately is concerned that its substantial investment in mitigation, pursuant to the original mitigation plan, would be wasted if the District constructs the flowway. As presently drafted, the Flowage Easement and new special conditions contemplate that Lennar Homes would construct the original mitigation, at a substantial cost, and the District would later construct and inundate the flowway through largely the same area. Marketing of parcels in close proximity to the flowway might be complicated by the uncertainty concerning what will occupy the area beyond a resident's backyard--a benign passive mitigation area or a flowway that may range from a intermittently wet slough or glade to a placid lake to a raging swollen river--and by the probability that the District would not construct the flowway until 2009. The District justifies the Flowage Easement and new special conditions on two grounds. First, the District contends that the ERP without the Flowage Easement and new special conditions is harmful to the District's water resources. Second, the District contends that the ERP without the Flowage Easement and new special conditions is inconsistent with the overall objectives of the District. The first argument misses the mark. A project that is otherwise permittable, except for the fact that it interferes with the establishment of a restoration project, does not harm the water resources of the District; such a Project interferes with the improvement of the water resources of the District. In this case, the parties have stipulated that the Project will not cause adverse impacts due to the original mitigation plan. If adverse impacts means anything, it means harm to the water resources of the District. The second argument requires the identification of the District's objectives. The Florida Legislature has declared at Section 373.1502(2)(a), Florida Statutes, that CERP implementation is "in the public interest and is necessary for restoring, preserving and protecting the South Florida ecosystem . . .." In May 2000, the Florida Legislature enacted the Everglades Restoration Investment Act, which commits Florida to contribute over $2 billion for the implementation of CERP-- Florida's share for the first ten years of implementation. The Florida Legislature has made the implementation of CERP an overall objective of the District. Several factors are important in determining whether the ERP without the Flowage Easement and new special conditions would be inconsistent with the overall objective of the District to implement CERP. These factors require consideration of the purpose of the proposed restoration project; the extent of completion of the project's design, permitting, and construction; if the project has not yet been designed or permitted, the likelihood of construction; when the project would be constructed; the impact of the ERP without the Flowage Easement and new special conditions upon the proposed restoration project; and the existence of feasible alternatives to accomplish the same objectives as those achieved by the proposed restoration project. These factors generally favor the issuance of the ERP, but only with the Flowage Easement and new special conditions. The flowway project would rehydrate a portion of the estuarine waters of southern Biscayne Bay that are sufficiently healthy to respond vigorously to the new freshwater infusions, so the project is important. The C-1 Canal appears to be the only readily available source of sufficient volumes of freshwater to achieve the rehydration of the tidal creeks, and the proposed path through the Lennar Homes mitigation area appears to be the only readily available means by which to divert the freshwater to the targeted tidal creeks. If the flowway project is limited to the tidal creeks and does not extend to the surrounding coastal wetlands, the likely environmental impacts appear to be positive on the receiving areas and the downstream portion of the C-1 Canal. For these reasons, even though the project is at an early conceptual stage and construction would not start for six years, it seems likely to be constructed. The apparent difficulty in securing the necessary additional 65 acres may yet be overcome through property acquisition, and, if not, the District may be able to increase the capacity of the flowway without jeopardizing the adjacent uplands. For the reasons stated in the Conclusions of Law below, other factors in determining whether the ERP without the Flowage Easement and new special conditions would be inconsistent with the overall objective of the District to implement CERP require consideration of the impact upon Lennar Homes in accommodating the Flowage Easement and new special conditions. With two exceptions, the Flowage Easement and new special conditions do not impose an inordinate burden upon Lennar Homes. The flowway would occupy the portion of the Project site that would have been subject to the conservation easement that was part of the original mitigation plan. Lennar Homes' responsibility for maintenance is considerably lessened if the District constructs the flowway, whose special maintenance needs can only be met by the District or its contractors. Although Lennar Homes may experience some sales resistance due to the uncertainty of the use of the mitigation area, the assurances gained from the subsequent permitting process, during which the District will seek an ERP from the Florida Department of Environmental Protection for the construction of the flowway, should allay reasonable concerns about flooding and other damage to the adjacent uplands. In three respects, though, the District has abused its discretion in preparing the Flowage Easement and new special conditions. First, the District abused its discretion in requiring Lennar Homes to perform mitigation work in the mitigation area, pursuant to the original mitigation plan, to the extent that the products of such work will likely be destroyed or substantially harmed by the construction and operation of the flowway. The value of mitigation rests largely in the functions that it can support through longterm viability. The construction and operation of the surface water management system, the posting of a sufficient bond to guarantee future performance under either mitigation scenario, the execution and delivery into escrow of deeds and other legal instruments sufficient to meet the requirements of the Flowage Easement and new special conditions (subject to the two matters discussed in this and the two following paragraphs), and the construction of the portion of the original mitigation that would not be impacted by the flowway sufficiently respond to the need for mitigation, until the District finally determines the need for it to exercise its rights under the Flowage Easement. Second, the District abused its discretion by omitting any timeframe for the District to exercise its rights under the Flowage Easement and new special conditions. The timeframe proposed by Lennar Homes for the District to make this final determination of whether to proceed with the flowway is unreasonable and ignores the substantial period of time required to design, fund, and permit the flowway. But a timeframe may be especially important if Lennar Homes encounters more marketing resistance than might be reasonably anticipated. Therefore, the new conditions should provide that if construction of the flowway is not substantially completed by 2011, then the Flowage Easement shall be released and returned to Lennar Homes, upon its commencement, without delay, of the construction of any of the original mitigation that it did not already complete. Third, the District also abused its discretion in the Flowage Easement and new special conditions in the allocation of liability for the flowway, including apparently its construction, maintenance, and operation. The District would impose this liability upon Lennar Homes, which would have to indemnify the District for construction damage or any malfunctions in the operation of the flowway, such as damage to adjacent uplands by flooding, erosion, or contamination. The District has imposed this restoration project on Lennar Homes and has done so, not to avoid harm to the District's water resources, but to achieve the overall objective of the District to implement CERP. The District and its contractors, not Lennar Homes, will construct, maintain, and operate the flowway. The District, not Lennar Homes, has the expertise in the design, construction, and operation of water-control facilities of this type. This record does not disclose a single legitimate reason to impose upon Lennar Homes the liability for any aspect of the flowway that does not result from the acts or omissions of Lennar Homes or its assignees as owners of the adjacent uplands. Although, as stated in its proposed recommended order, the District does not object to the standing of Petitioners, Respondents did not stipulate to the standing of any Petitioners. Petitioners The Everglades Trust, Inc., and The Everglades Foundation, Inc., offered no witnesses concerning their standing, and no exhibits address the standing of these parties. The record thus fails to demonstrate that Petitioners The Everglades Trust, Inc., and The Everglades Foundation, Inc., are substantially affected by the proposed agency action. Petitioner National Parks Conservation Association, Inc., (National Parks) is a not-for-profit corporation registered in Florida as a foreign corporation. The corporate purpose of National Parks is to protect and enhance America's national parks, including Biscayne National Park, for present and future generations. National Parks seeks the protection and enhancement of the Biscayne National Park through the successful implementation of CERP. National Parks has 350,000 members, including 19,900 in Florida. Members of National Parks use Biscayne National Park for recreational boating, fishing, snorkeling, fish watching, scuba diving, and camping (on the barrier islands). Members of National Parks are actively monitoring the implementation of CERP. Petitioner Florida Audubon Society, Inc. (Florida Audubon), is a Florida not-for-profit corporation that was originally incorporated in Florida in 1900. The corporate purpose of Florida Audubon is to protect, conserve, and restore Florida's heritage through the preservation of the state's natural resources. Florida Audubon has adopted as its highest priority the design and implementation of CERP. Florida Audubon has 32,000 members in Florida, including over 2100 members in Dade County. Numerous of these members engage in bird watching, recreation, and scientific research in Biscayne National Park. Florida Audubon organizes membership trips to Biscayne Bay, conducts its annual Bird-athon and Christmas Bird Count in the vicinity of Biscayne Bay, and conducts various environment educational programs in and concerning Biscayne Bay. The issuance of the ERP without the Flowage Easement and new special conditions would substantially impact the ability of the District to restore this part of Biscayne Bay. Without such restoration, the functions of Biscayne Bay will slowly decline until eventually the overall health of the entire South Florida ecosystem will be substantially deteriorated. Thus, National Parks and Florida Audubon would be substantially affected by the issuance of the ERP without the Flowage Easement and new special conditions.
Recommendation It is RECOMMENDED that the District issue the environmental resource permit with the Flowage Easement and new special conditions, as modified in accordance with the matters presented in paragraphs 39-41. DONE AND ENTERED this 10th day of January, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 2003. COPIES FURNISHED: Henry Dean, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 Richard Grosso Louise Caro, Certified Legal Intern Environmental & Land Use Law Center, Inc. Shepard Broad Law Center 3305 College Avenue Fort Lauderdale, Florida 33314 Marcy I. LaHart Marcy I. LaHart, P.A. 711 Talladaga Street West Palm Beach, Florida 33405 Erin L. Deady Environmental Counsel 444 Brickell Avenue, Suite 850 Miami, Florida 33131 E. Thom Rumberger Rumberger, Kirk & Caldwell, P.A. 403 East Park Avenue Tallahassee, Florida 32301 Luna Ergas Phillips Douglas H. MacLaughlin Office of Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Frank E. Matthews Gary V. Perko Hopping Green & Sams, P.A. Post Office Box 6526 Tallahassee, Florida 32314
The Issue The issues in this proceeding involve whether the Respondent, St. Joe Paper Company ("St. Joe"), is entitled to a "dredge and fill permit" authorizing it to construct a marina for recreational boats, containing 84 boat slips, along the eastern shore of the St. Johns River in St. Johns County, Florida. Embodied within that general consideration are issues involving whether St. Joe, in the construction and operation of the marina, can comply with water-quality parameters embodied in Chapter 17- 3, Florida Administrative Code, for Class III waters of the State, Section 403.918(1), Florida Statutes, as well as the public interest standards of Section 403.918(2), Florida Statutes, and the standard concerning "cumulative impact" embodied in Section 403.919, Florida Statutes.
Findings Of Fact The applicant, St. Joe, seeks to construct and operate a recreational boat marina, consisting of a single, main pier, 12 feet wide and extending some 850 feet waterward in a westerly direction from the shoreline of the east bank of the St. Johns River in St. Johns County, Florida. The main pier will join a terminal pier extending approximately 575 feet in a general north/south direction parallel to the shoreline of the St. Johns River, perpendicular to and abutting the longer main pier. Extended in a landward or easterly direction from the terminal pier structure will be four (4) individual "finger piers" ranging from 119 to 305 feet in length. Located along the individual piers and along a portion of the main pier near the waterward end of it will be 84 slips for recreational-type boats. Additionally, a breakwater system will be suspended along the outer perimeter of the terminal pier and northernmost and southernmost individual piers in order to reduce wave action and its effect on boats in the interior of the marina. Additional details concerning the marina design and operation are contained in the findings of fact below. The Site The site of the proposed marina is on the eastern shore of the St. Johns River in St. Johns County, Florida. At that point, the St. Johns River is almost two miles wide, being approximately 10,000 feet from shoreline to shoreline. The proposed marina site encompasses approximately 1,100 linear feet of river bank frontage. All of the adjacent upland property is owned by St. Joe, and St. Joe owns extensive additional river frontage to the north and south of the marina site. The nearest properties not owned by St. Joe are located 3,500 feet to the north of the site and 1,500 feet to the south of the site. The site is located approximately two miles north of Hallowes Cove, a relatively pristine, diverse and productive marine habitat. The site is characterized, landward of the terminal end of the pier and waterward of the upland, by an unvegetated "near shore area or tidal zone" which extends approximately 50 feet from the mean high-water line of the river to the mean low-water line. Waterward of this zone and extending to a depth of approximately two feet is a system of grass beds, (vallisnerida), commonly known as "tape grass". The grass beds extend approximately 200 to 250 feet from the shoreline. Waterward of the grass beds is an unvegetated area with a gradual slope to a depth of approximately six feet. From the six-foot contour of the river bottom, a relatively precipitous slope begins, extending to depths which exceed 19 feet. In this zone, there are no grass beds. Further waterward and extending beyond the most waterward extent of the the marina site, the river bottom rises somewhat to depths of 13 feet, 12 feet and 11 feet, in the direction of the center of the river. The river bottom substrate in the area of the marina is composed primarily of sand. This includes some shell and other coarse materials, with minor amounts of silt. In fact, organic silt is a very small portion of the bottom sediments, consisting, at a depth of four and one-half feet, of less than 1% silt and at a depth of 15 feet of less than 6% silt content. The present water quality prevailing at the marina site is good, and the benthic habitat in the general area is healthy and diverse. The most landward boat slips proposed at the marina will be located at a distance of approximately 275 feet from the most waterward extent of the grass beds. These most landward slips will be located in depths of approximately eight feet. Access to the marina will be from the north and south in defined channels marked on the west by the end of the individual piers and on the east by channel markers located at the depth contour of minus six feet. That is, the six-foot depth will be the most shallow portion of the channel marked by the channel markers, so that boats will not be permitted to navigate the shallower portion landward of the channel markers insofar as the marina's enforcement program can insure that. The approximate width of the northern channel is 75 feet, and the width of the southern channel is 50 feet. Due to the precipitous drop in depth beyond the contour of minus six feet, the average depth of the channels is 10 to 12 feet. The majority of the boat slips, as well as the basin of the marina, will be located in depths of between 10 and 18 feet. The consultant and expert witness who designed the marina, Erik Olsen, established that the length of the main pier and the location of the most landward of the boat slips and the location of the channel markers are all part of a design and plan intended to insure that marina and boat activity within the marina occur well beyond the extant grass beds and waterward of depths of six feet, to insure that no damage to the grass bed habitat area is occasioned by propeller scouring, "prop-wash", or grounding of boats. Other design measures are also intended to preclude boaters from entering the shallow depths and grass bed areas. Two tiers of signs will be located between the marina basin and the most waterward extent of the grass beds. First, regulatory buoys and signs are proposed to be located at the contour of minus four feet and will establish a "manatee protection zone" landward of that contour. The evidence reveals, however, that a safer contour for the manatee protection zone boundary to be established by the applicant would dictate placing the regulatory warning signs concerning the manatee protection zone at the same contour, minus six feet of water, where the channel markers will be located. This is because the marina will serve boats of up to 4.5 feet in draught. Secondly, a tier of signs will be located approximately ten feet waterward of the most waterward extent of the grass beds warning boaters that aquatic grass beds exist landward of the signs and that prop dredging and boat operation is prohibited. Such warnings at the locations found above should be mandatory conditions to any grant of the permit. A specific, agreed-upon condition is already in the draft permit issued by the Department prescribing the size and lettering of these signs and other design details. A railing will extend, as proposed by the applicant, along the main pier between the slips and the shoreline to discourage boaters from mooring along the main pier, landward of the slips. The evidence establishes that in order to more adequately insure protection of the manatee habitat area and the grass beds, a mandatory condition in boat-slip rental leases should be inserted to absolutely prohibit boaters from mooring along the main pier, landward of the boat slips. Because of the currents and significant water depth prevailing at the marina site, the marina construction will require no dredging nor will operation and maintenance of the marina require any dredging on a continuing basis. Additionally, in the interest of protecting water quality, no fueling facilities or boat fueling will be permitted at the marina at all; and the grant of a permit should be mandatorily conditioned on this basis. Neither will any boat maintenance or repair be permitted at the marina, including no hauling of boats or scraping or painting of boat bottoms. This condition should be clearly pointed out to users of the marina by appropriate warning signs regarding the prohibition against boat maintenance and repair, including warnings concerning the proper methods of disposal of used oil and other petroleum products. The marina will feature pump-out facilities for boat heads and bilges. The pump-out facilities will consist of a central pumping system in which waste is removed from the boats, transported by pipeline to an upland, central waste water collection and treatment system. No holding tanks or other storage of wastes will be located at the piers. The pump-out facility will serve not only the boat heads but also boat bilges in order to prevent contaminants, such as oil and boat fuel from entering the State waters involved. The piers will feature trash collection containers of appropriate number, size and location on the piers so as to provide convenient trash disposal for each boat slip. The piers will also feature plastic modular dock boxes to preclude boaters from randomly storing materials and equipment on the piers. No fish cleaning will be permitted on the piers at all, but rather must be accomplished on the uplands, with disposal of related wastes in the upland collection system. A "no wake" zone will be established in an area extending 500 feet north and 500 feet south of the marina. The "no wake" zone will be marked pursuant to requirements of the Florida Marine Patrol. The marked "no wake" zone should also extend waterward of the farthest waterward extent of the marina, as well as 500 feet north and south of it. Only private, recreational boats will be moored at the marina. All commercial boats will be prohibited. The marina will serve a Yacht Club to be developed by St. Joe in conjunction with the marina. Only members of the Yacht Club and their guests will be permitted to use the marina. This will assist with enforcement of the various conditions on marina operation and maintenance by the owners as to the boat-slip lessees and their guests. This and all other conditions should be enforced by mandatory restrictions in the boat-slip leases. Likewise, the applicant has agreed to permit no "liveaboard" boats at the marina in order to avoid the possibility of sewage or other contaminants entering the State waters from liveaboard boats. The upland facilities will include restrooms, and signs should be appropriately placed on the piers to advise boaters and boat owners and operators of the availability of restroom facilities. The marina will not feature fueling facilities; however, St. Joe will maintain pollution containment supplies and equipment at the marina sufficient to contain any potential fuel or other petroleum spills from catastrophic events, such as the rupture of a boat fuel tank. Expert witnesses for St. Joe established that a "management and operational plan" designed to enforce the provisions enumerated above will be enacted by the applicant. The management and operational plan includes three mechanisms of enforcement: Warning signs. Boat-slip lease agreements which must incorporate all restrictions found to be necessary herein. These will contain an enforcement provision providing for mandatory eviction from use and lease of the marina facilities for any breach of those conditions by lessees or their guests. Management personnel will be employed on the marina property to enforce all restrictions and conditions designed to insure environmentally-safe operation and maintenance of the marina, and such personnel should be employed during all operating hours of the marina, not just during daylight hours, as proposed by the applicant. Signs will be posted at conspicuous locations at the marina and at the upland facilities of the Yacht Club informing boaters of the marina rules and prohibitions. The signage will be visible to Yacht Club members and their guests using the marina, and members' guests will be required, upon mooring at the marina, to register and to review the rules and prohibitions. Boat-slip lease agreements at the marina will incorporate these marina rules and prohibitions. Under the lease agreements, a violation of the marina rules or prohibitions by a member or guest will be considered a breach of the lease and will result in revocation of the lease and removal of the member's boat from the marina. A dock master will be employed at the marina to supervise the operation and maintenance of the marina and will be assisted by dock hands and other personnel in order to see that the conditions and restrictions referenced herein are enforced. The applicant has proposed such personnel being employed during daylight hours. However, in order to insure that the standards for operation and maintenance of the marina and boats using it will be enforced so as to avoid water-quality violations and violations of the public interest parameters delineated below, the permit grant should be conditioned upon such personnel being employed during all operating hours of the marina, whether daylight hours or not. If this is accomplished, the enforcement mechanisms outlined in the management and operational plan will reasonably insure enforcement of the marina's rules, prohibitions and conditions on any grant of the permit and likewise reasonably insure that water-quality and public interest standards are not violated. Upland Facilities The upland and Yacht Club facilities to be developed in conjunction with the marina will be located on approximately seven acres adjacent to the marina site. The Yacht Club and related facilities will include a clubhouse, parking, and a storm water treatment system which will serve the upland facilities. St. Joe has obtained a conceptual permit for the management and storage of surface waters for the proposed upland improvements, including the Yacht Club. It will also seek a permit for the storm water treatment system, itself. St. Joe, through its consultants, has investigated and opined that the installation of the proposed upland facilities are feasible and can comply with applicable regulatory criteria and is pursuing the necessary permits and approvals from local governments and state agencies. It will insure that all such is accomplished prior to initiation of construction of the Yacht Club facilities. The precise configuration and design of all upland facilities will be dictated by applicable local ordinances and the requirements of State regulatory agencies. Marina Impacts The applicant/Respondent and the Petitioners are in essential agreement, through the testimony of their witnesses, regarding the general potential impacts which may be posed by marinas in a general sense, when located in proximity to environmentally-sensitive areas. Concerning anticipated impacts of this marina at the subject site, however, St. Joe presented the testimony of three expert witnesses, as well as a hydrographic study. It was thus established that violations of the pertinent water-quality statute and rules and the public interest standards contained in the statute referenced herein will not be violated. The Petitioners, although presenting both lay and expert testimony regarding the water quality and habitat type and quality in the general area of the site and the general impacts that can be caused by marinas in such areas, presented no expert testimony or studies regarding the anticipated impacts of this particular marina, as designed and configured by the applicant, on the subject site and aquatic habitat. Water Quality Considerations Marinas are potential sources of pollutants which may adversely impact water quality. Different sources at a marina may generate different pollutants; and in this case, testimony addressed these potential pollutant impacts. The totality of the expert testimony taken at hearing establishes that the marina will not likely cause a violation of applicable water-quality standards. One witness for the Petitioners, Bill Watkins, was accepted as an expert in water quality. In describing potential impacts of the marina, however, he only opined that there "could be some effect on water quality"; however, he did not specifically establish adverse effects on water quality which could be anticipated or reasonably expected regarding violations of applicable standards. Mr. Watkins acknowledged: "As to whether or not that degree of pollution, and that's what we're talking about, degree of impact, would be something that would be, have a significant degradation effect, I could not answer without further site specific studies." Mr. Watkins further described the type of site specific information which would be required for him to make a proper assessment of water-quality impacts, including hydrographics and the nature of the sediments existing at the site. Other witnesses for the Petitioners similarly declined to opine regarding violations of the water-quality standards because site specific information was not available to them. Dr. DeMort, for example, explicitly declined to offer an opinion regarding water-quality violations. The opinions and testimony of the expert witnesses on water quality presented on behalf of St. Joe, as well as by the Department, are accepted in establishing that no water-quality violations by the construction and operation of the marina are anticipated. The reasonable assurance that water-quality violations will not occur through the construction and operation of the marina is illustrated by the unrefuted evidence concerning the hydrographics by which the site is characterized. A knowledge of site hydrographics is necessary to accurately determine potential water-quality impacts. A hydrographic study was prepared by St. Joe through the auspices of its consultant, Olsen Associates Incorporated. The experts who prepared that study testified on behalf of St. Joe at hearing, and a Department witness who reviewed the study testified by deposition. None of the Petitioners' expert witnesses addressed the subject of site hydrographics other than to note that they were an important consideration. Mr. Buckingham was accepted as an expert witness in the area of marine engineering with emphasis on hydrographics. He testified regarding the hydrographic study prepared and submitted by St. Joe. The study involved the collection of data at the site, including the gauging of water surface elevations over a two-day period in December of 1988; the comparison of those elevations to predicted elevations based upon historical data; a measurement of current velocities at the site; a dye study to assess the flow regime at the site; and the gathering of depth soundings and sediment samples to confirm the bathymetry and nature of bottom sediments at the site. The hydrographic study also involved the analysis of the data collected at the site. Hydrographics at the site are composed of two components, the transport of a pollutant by advective currents and the dispersion or diffusion of a pollutant within the water column. The physical transport by advective currents dominates the hydrographic circumstance prevailing at the marina site. A pollutant introduced at the site is more likely to be physically transported away from the site, in addition to being merely dispersed through the water column at the site. This is because of the relatively high current velocities prevailing. Both the transport and dispersion components were analyzed in the study to determine the time and distance necessary to reduce an initial concentration of a hypothetical pollutant to 10% of its initial concentration. A pollutant introduced at the site would be reduced to 10% of its initial concentration in less than seven minutes and within 400 feet of the site on the ebb tide and within 300 feet of the site on the flood tide. Moreover, the "plume" of this hypothetical pollutant would occur in a longshore direction parallel to the shore, as opposed to a direction toward the shore and would be of comparatively narrow width (approximately 30 feet). The hydrographics of this site are such that a complete water exchange will occur in 20 to 30 minutes at any point during the tidal cycle. The evidence thus demonstrated that the site is extremely well flushed by tidal currents. In his deposition, Ken Echternacht, of the Department, testified that data in the hydrographic study was realistic in his experience and that he had no questions or concerns regarding the data and methodology used to confirm that data. In addition to Mr. Buckingham's testimony and the study, itself, the testimony of Dr. Echternacht established that flushing is of no concern and is thoroughly adequate at the site. Dr. Echternacht is the Department's hydrographic engineer, whose function is to review all dredge and fill permit applications which may have impacts upon the hydraulics of surface water systems. He has reviewed approximately 1,500 dredge and fill permit applications. His testimony and that of Mr. Buckingham is accepted, as is that of other Department expert witnesses in establishing the excellent flushing characteristics of the site and that the construction and operation of the marina will not adversely affect the present hydrographic situation at the site, as that relates to establishing that no water quality violations will occur. All marinas are potential sources of pollutants. The first to be addressed involves the installation of the pilings themselves during the construction of the marina. This is a potential source of turbidity. Turbidity involves the suspension of bottom sediments and substrate material in the water column, which can pose, among other problems, the retardation of light penetration through the water column which can have an adverse impact on photosynthesis in marine grass beds. In extreme cases, it can cause the destruction of grass beds through killing of the grass by lack of adequate light penetration, as well as the smothering effect of sediments being deposited upon grasses. The method to be used by St. Joe in installing the pilings will be by "jetting" them into the bottom of the river initially and then driving the pilings into the river bottom to the required depth to support the piers. Witnesses for St. Joe and the Department established that this method will constitute an adequate safeguard to be employed during construction to minimize any turbidity. Any temporary or local turbidity caused by the installation of the pilings will be transitory and will pose no significant water-quality violation; however, turbidity curtains will, be employed, if necessary, by the applicant to control any such turbidity during construction. Another potential source of turbidity at a marina involves the dredging, washing or disturbance of the river bottom caused by boat propellers or boat keels. The evidence demonstrated that the risk of such "prop dredging" or wash at this marina will be negligible due to the design features and conditions at the site, including the channels and channel markers, and particularly by the depth of waters prevailing at the site. The marina basin and boat slips are located in water of sufficient depth to prevent prop dredging or wash. The =average depth of the entrance channels is between 10 and 12 feet. Maneuvering within the marina basin will occur in depths of 10 feet or greater. Although the most landward boat slips are located in depths of approximately eight feet, the average depth within most slips is approximately 10 to 12 feet. These depths are based upon the bathymetric survey of the site and confirmed by random soundings performed during the course of the hydrographic study in evidence. Further, these depths are "mean low water" depths. Mean low water reflects the "lowest expected level" within a 29-day tidal epic. The "mean lower low" level is the lowest expected level over the course of a year. That level prevailing at the site, according to the study, is 0.1 feet lower than mean low water. The maximum draught of boats expected to be moored at the marina is 4.5 feet. Thus, the depths in the marina will allow ample clearance between propellers and keels and the river bottom. The required clearance between boat bottoms and propellers and the river bottom can further be assured by proper placement of boats in the boat slips in the leasing process and in the assignment of boat slips to casual, temporary users of the marina. In other words, the larger boats will be assigned to the deeper, more waterward slips. Other measures include warning signs, which should be placed along the six-foot depth contour, along the landward edge of the entrance channels and beyond the waterward extent of the grass beds. This will insure that boaters do not stray into shallow-water, aquatic habitat areas. A second factor in determining the potential for prop dredging at the marina is the nature of the sediments themselves. Four witnesses, including those testifying for the Department and for the Petitioners, established that the sediments at the site are primarily sand-based, with minimal organic silt content. The sandy nature of the sediments minimizes the potential for turbidity caused by prop dredging or prop washing (hydraulic currents created by propeller operation) because sand, by its density, mass and weight, tends to settle out to the bottom much quicker if it is suspended in the water column. Even if prop dredging did occur at the marina, generating turbidity, the high flushing characteristic of the site would quickly transport and disperse any such turbidity and render it undetectable and likely prevent its deposition on the grass beds. A potential source of pollutants at a marina is boat fuel. Expert witnesses for the Department and the applicant established that the design and operational features of the marina, primarily the absence of any fueling facilities, will minimize or eliminate the potential for pollutants generated by fueling operations. Another potential source of pollutants at a marina is waste from boat heads and bilges generated by flushing boat heads or pumping out of bilges with bilge pumps. Expert witnesses for St. Joe, as well as the Department, established that the design and operational features with which this marina will be characterized will minimize or eliminate the potential for such pollutants to be generated because liveaboard boats will be prohibited, and the pumping out of heads and bilges will also be prohibited because of the conditions agreed to by the applicant for a grant of this permit. Another potential source of pollutants at a marina is the use of anti-fouling paint used on the bottoms of boats and the periodic scraping and repainting of boats. Expert witnesses for the Department and the applicant established that the operational features and design of this marina will minimize the potential for pollutants from this source because boat painting, sanding, and scraping and other operations attendant to boat painting will be absolutely prohibited at the marina. Finally, another potential source of pollutants would be trash and garbage materials. The potential for pollution from this source will be minimized by the use of trash containers and dock boxes located at frequent intervals around the piers and boat slips, as well as the instructional signs to be placed on the piers and slips by the applicant and the publication of marina rules in order to inform boat operators and guests of the necessity to dispose of trash in the proper containers. It has thus been established that the design and operational characteristics of the marina and conditions to be imposed thereon will minimize or eliminate the potential for pollutants to be generated and placed in the surface waters at the site. The marina will not occasion violations of applicable water-quality standards. Any pollutants which might be deposited in the surface waters at the site will be quickly transported and dispersed so as to be undetectable at the marina or in the vicinity of the marina because of the critical role played by the hydrographics prevailing at the site. Public Interest Impacts Much of the testimony at hearing regarding impacts upon the various public interest standards, including wildlife and habitats, focused upon the grass beds, and the benthic communities prevailing in deeper water at the site, as well as the fact that the site is used by manatees. Dr. Quinton White was accepted as an expert in biology and biological impacts of marina construction and operation. He testified on behalf of the applicant. His testimony and that of other expert witnesses offered by St. Joe and the Department established that there would be no adverse impact on benthic communities and organisms, including manatees, caused by the construction and operation of the marina. The Petitioners called expert witnesses on the issue of impacts on wildlife. Mike Allen, a Florida Game and Fresh Water Fish Commission staff member, testified that he was not really qualified as an expert in fisheries or benthic communities but, rather, in terms of terrestrial species which are not involved in this proceeding. Lawson Snyder, another Florida Game and Fresh Water Fish Commission staff member, was accepted as an expert in fisheries biology on behalf of Petitioner but testified that the marina's impacts upon fish and wildlife would not be detectable. Jim Valade, a Florida Department of Natural Resources staff member, was also accepted as an expert in marine biology, including fish and manatees, but testified that the permit applicant has taken steps to protect manatees in virtually all aspects and that his department's concerns regarding the safety of manatees have been adequately addressed by the design and proposed operation of the marina. Bill Watkins, a St. Johns River Water Management District staff member, was accepted as an expert in biology, but testified that the design of the marina provides the grass beds "a fair degree of protection" and declined to opine that the marina would have any adverse impacts upon wildlife or fish. Finally, Dr. Carol DeMort, in her deposition, specifically declined to render any opinion regarding adverse impacts upon wildlife or fish. Thus, the evidence adduced by the Petitioners at hearing did not rebut the evidence introduced by the applicant that the marina will have no detectable impacts upon wildlife or habitats involved in the vicinity of the site St. Joe introduced evidence concerning impacts from shading upon grass beds by the marina structures themselves and from turbidity "washed" onto, the grass beds by motorized boats maneuvering in the marina basin. Expert testimony was adduced that established that shading caused by the widest pier, that is, the main pier with a width of 12 feet, would have no adverse impact on the grass beds due to shading. That testimony was unrebutted and is accepted. Two expert witnesses for St. Joe, a marine engineer and a biologist, as well as a Department witness, established that, even assuming that turbidity was generated by propeller action in the marina basin, the turbidity resulting from prop wash would not be transported 275 feet from the marina basin offshore to the :grass beds at the inshore area. They attributed those opinions to the nature of the sediments involved which are not readily suspended, the flushing at the site, the distance between the basin and the grass beds, and the typical extent of prop wash from boats expected to be used at the marina. The Petitioners presented two witnesses, who testified regarding the impacts of prop wash. Mr. Allen, an expert in upland terrestrial species, testified regarding the potential for deposition of sediments on grass beds but also acknowledged that the hydrographics at the site, the distance between the marina basin and the grass beds and other protective measures would minimize this potential. One lay witness for the Petitioners testified to the effect that if a "handful" of boat owners in the marina violated the "no wake" restrictions and accelerated their boats in violation of those restrictions, they would cause turbidity to be placed upon the grass beds. His testimony was contradicted, however, by a marine engineer, who testified that prop wash is a function of many parameters (e.g., the RPM of the engine, the horsepower of the engine, the draught of the boat, and configuration of the propellers, etc.). He established that it would not be reasonable to expect prop wash extending twice the length of a boat. Regarding impacts upon benthic communities at the site, the applicant introduced expert testimony which established that the benthic communities in that vicinity of the marina, including the grass beds, fin fish, shellfish, and other organisms, will not be adversely impacted by the construction and operation of the marina in light of the safeguards which would be imposed upon the permit, as delineated herein. This is primarily due to the absence of significant concentrations of pollutants to be expected and the hydrographics prevailing at the site as that relates to the unlikelihood of boat grounding, prop dredging, and prop wash suspending pollutants and turbidity and depositing them on benthic community habitat areas. Only one of Petitioners' witnesses, Dr. DeMort, testified in her deposition concerning potential impacts upon benthic communities. Dr. DeMort made it clear, however, that she had conducted no investigations and studies necessary to enable her to render an expert opinion on the impacts upon the benthic communities prevailing at the site which might be caused by the marina's construction and operation. Her testimony in this regard only related to marina installation and operation in general and was not related to the specific design characteristics and proposed operational parameters of the subject marina. Manatees are an endangered species. There is much concern about their welfare with regard to the proposed project because all parties acknowledge that the site and the shoreward grass bed areas, particularly, are frequented by manatees, particularly for summer foraging. Manatees tend to forage in shallow waters and associated grass beds. Boats pose definite hazards to manatees and cause significant manatee deaths each year due to impact from boats, as much as 15% to 30% of the known population. In response to this hazard, the U.S. Marine Mammal Commission has recommended that grass beds be protected and that establishment of protective or "no wake" zones in manatee foraging areas be accomplished. In light of such restrictions voluntarily agreed to by St. Joe and its expert testimony in this regard and in light of the manatee education and awareness measures proposed by the applicant, it has been demonstrated that the marina will not have any negative impact on the manatee population in the area. The Petitioners' only expert witness concerning manatees, Jim Valade, indeed, opined that the marina had taken steps to protect manatees "in virtually all aspects". In this connection, the design features in the management and operational plan discussed herein and proposed by the applicant embodies measures to address potential impacts upon manatees which frequent the marina site. These include manatee awareness signs to be posted at the marina; and an additional specific condition has been agreed upon by the Department and the applicant which specifies the size, lettering and other details of the warning signs, and the location of them within the marina, all of which will be included in a plan to be submitted to, reviewed, and approved by the Florida Department of Natural Resources. Additionally, a permanent educational display will be located at the Yacht Club informing boaters who frequent the facility of the presence of manatees in the area and the need to minimize the impact of boats upon manatees. During construction, if a manatee is sited within 100 yards of the marina site, construction activities will cease and not resume until manatees have left the area. A handbook will be prepared concerning manatees and the effect on them of boat operation, which will be distributed to employees of the facility and to Yacht Club members and guests. This requirement and the review of it by Yacht Club members and guests will be an integral requirement in the terms of the slip leases. Additionally, no docking facilities, pilings or cleats will be located along the portions of the piers not containing boat slips in order to discourage boaters from attempting to moor at those locations, which will reduce the number of boats frequenting the marina, as that relates to manatee safety. This portion of the St. Johns River functions as a highly productive juvenile fish nursery and sports fishing area. Therefore, an examination of the marina's potential impacts upon marine productivity, fishing and recreation in the area is an important consideration in this proceeding. The discussion of this potential impact involves the same issues discussed in connection with impacts upon water quality and wildlife habitat; namely, the generation of pollutants and the impacts upon the grass beds and benthic communities directly by boat operation itself. Unrefuted testimony adduced by the applicant and the Department has established that impacts upon the fish population and upon marine productivity, fishing and recreational values will not be adverse. No deliterious effect is likely to be occasioned the fisheries and fish habitat and the habitat of other aquatic organisms in terms of juveniles or adults or to the sport fishing values of the area in which the marina will be located. Indeed, the marina structures and the shade and concealment offered by moored boats will provide additional habitat for juvenile fish, as well as provide an additional source of food because of the "fouling communities" of life forms which will be expected to grow on the pilings. These will serve as food for juvenile fish and some species of adult fish which, in turn, will enhance the food supply of predatory fish operating at an upper level in the food web. The boats and structures themselves also will operate as a source of protection for certain fish populations from predators. The Petitioners produced a fisheries biologist as an expert witness, who testified in this regard; but he acknowledged that he did not know whether noticeable impacts on conservation of fish, marine productivity and recreational values will be caused by the installation and operation of the marina. He testified in a general sense that he feared some negative impacts might result but did not feel that any such impacts would be detectable based upon testimony he heard and deferred to, including testimony that the littoral zone would not be impacted by the marina to any significant degree. He ultimately opined that the marina would likely have little impact on sports fishing. The other witness produced by the Petitioners concerning impacts upon fishing and recreational values was unable to render any expert opinion, by her own admission, because she had conducted no studies or otherwise been provided information regarding the design and proposed operation of the marina. Consequently, the testimony adduced by the applicant as to these parameters is accepted; and it has been established that the marina will not adversely impact fisheries, fish conservation, aquatic habitat, sport fishing, recreational values and marine productivity in the area involved at the project site. Regarding potential impacts upon the public health, safety and welfare and property of others, the applicant and the Department adduced expert testimony that no adverse impact regarding these interests will occur. The testimony of Petitioners' experts similarly establishes that the marina would not pose safety hazards or would otherwise give rise to any noticeable impacts upon the public health, safety, welfare and property of others. Regarding potential impacts upon navigation or the flow of water, St. Joe and the Department introduced expert testimony to establish that the marina would not adversely impact navigation or the flow of water, and it is so found. The Petitioners' introduced no evidence regarding this subject. Regarding potential impacts upon significant historical and archaeological resources, the applicant and the Department introduced evidence that no adverse impact as regards these resource parameters will occur. Although one of the Petitioners, in her testimony, speculated that the marina could "detract" from the William Bartram scenic highway, she was unable to specify how the marina would impact the highway or to what extent the highway was a significant, historical or archaeological resource. It is found that no such adverse impact on the William Bartram scenic highway will occur. Cumulative Impact Regarding cumulative impacts, the applicant and the Department introduced evidence that the marina would not give rise to impacts which, cumulative with the impacts of other marina facilities, would be significant. The evidence establishes that there are six marinas within four miles of this marina site; two upriver, and four downriver. Due to the hydrographic circumstances in the area and the distance of the other marinas from this site, it has been demonstrated that the addition of this marina to the area will not result in any adverse cumulative impacts. Mr. Mike Allen, the expert in upland terrestrial species (not involved in this proceeding), referenced in his testimony the cumulative impacts he feared on sports and commercial fishing. Mr. Allen made it clear, however, that his reference was not to cumulative impacts caused by the marina and existing marinas but, rather, to impacts which could be brought about by many such future facilities located in this particular area. The evidence does not reflect, however, that any other marinas are conceptually contemplated or are the subject of other permit applications for this area for the future. It is thus found that no significant adverse cumulative impacts will be occasioned by the installation and operation of the subject facility.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore, RECOMMENDED that the application of St. Joe Paper Company for the dredge and fill permit at issue be granted, provided that the terms and conditions enumerated in the Department's Intent to Issue, in evidence as St. Joe Exhibit 9, and accepted by the applicant, as well as those conditions found in this Recommended Order to be necessary and supported by the evidence, are incorporated in the permit as mandatory conditions. DONE AND ENTERED this 26 day of October, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29 day of October, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5053 Applicant's/Respondent's Proposed Findings of Fact 1-53. Accepted, but are subordinate to the Hearing Officer's Findings of Fact on the same subject matter, particularly in those several instances where conditions on the grant of the permit have been recommended to be modified somewhat by the Hearing Officer in light of the totality of the preponderant evidence presented. Rejected, as unnecessary. Accepted. Respondent DER's Proposed Findings of Fact The Department submitted no proposed findings of fact but, rather, adopted those submitted by the applicant/Respondent. Petitioners' Proposed Findings of Fact Petitioners, Hoffert, presented no proposed findings of fact but, rather, a letter in the nature of final argument which has been referenced and discussed in the above Preliminary Statement to this Recommended Order. Petitioners, Cornwell, submitted a post-hearing pleading; but it contained no specific, separately-stated proposed findings of fact, which can be separated from their mere recitation and discussion of testimony in evidence and arguments such that coherent, specific rulings could be made. Petitioners, Cornwell's post-hearing pleading did not conform to the instructions given to them by the Hearing Officer at the conclusion of the hearing concerning the appropriate manner for submission of proposed findings of fact, and they were submitted late. They have been considered in the rendition of this Recommended Order, however, in spite of the fact that they were filed in a tardy fashion. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 T. R. Hainline, Jr., Esq. ROGERS, TOWERS, ET AL. 1300 Gulf Life Drive Jacksonville, FL 32207 William H. Congdon, Esq. and Joanne Barone, Esq. Department of Environmental Regulation Twin Towers Office Building Room 654 2600 Blair Stone Road Tallahassee, FL 32399-2400 Barbara Davis Winn 3448 State Road 13 Jacksonville, FL 32259 Mary and Irv Cornwell 2652 State Road 13 Switzerland, FL 32259
Findings Of Fact The Petitioner owns property which is adjacent to Lake Serena in Putnam County, Florida. Through his application to the Respondent, the Petitioner is seeking to dredge an area waterward of the ordinary high water line of Lake Serena, and to place the dredged material on another area waterward of the ordinary high water line. The purpose of the proposed dredging and filling is to create a more gradual shoreline sloping from the Petitioner's residence to the shore of Lake Serena. Petitioner proposes to cover the filled area with white sand. He proposes to use the area as a sandy swimming beach. The area which the Petitioner is proposing to dredge and fill is presently dominated by wetlands vegetation, which would be removed by the dredging activity. The Petitioner originally commenced his project without receiving any permit from the Respondent. A large amount of the wetlands vegetation has already been removed. Lake Serena is a relatively pollution-free lake. Much of the littoral or transitional zone vegetation surrounding the lake has been replaced by sandy swimming beaches. Only approximately forty percent of the shoreline is now an aquatic vegetated littoral zone. Aquatic vegetation in the littoral zone surrounding Lake Serena serves an important natural function in preserving the water quality in the lake, and in preserving the natural resources of the lake, including fish and wildlife. The aquatic vegetation serves to filter run-off from uplands areas by assimilating nutrients that are in the run-off. A nutrient scale has been devised for identifying the amount of nutrients in a lake. An oligotrophic lake is low in nutrients. A mezotrophic lake has a moderate amount of nutrients. A eutrophic lake is high in nutrients. In the natural process of aging, water bodies progress from oligotrophic to a eutrophic state. This is a very long natural process taking thousands of years. Lake Serena is an oligotrophic lake. Aquatic vegetation in the littoral zone surrounding Lake Serena serves to maintain this condition. If too much aquatic vegetation is removed from the littoral zone, a buildup of nutrients would result. This buildup of nutrients would cause an algal bloom, or a buildup of algae plants on top of the lake. A buildup of algae on the lake would drastically decrease the oxygen level of the lake. This is because algae itself uses oxygen, because algae kills oxygen producing plants which thrive on the bottom of the lake due to light being cut off, and because, as the algae dies, it sinks and decomposes using up more oxygen. An algal bloom, and the resulting reduction of oxygen levels in a lake would constitute pollution. Removal of aquatic plants in Lake Serena's littoral zone would serve to diminish fish and wildlife populations in the lake. Small fish use such an area as a nursery ground where they can hide from predators. Without such a nursery ground, the cycle of survival for aquatic wildlife would be cut off. The area from which the Petitioner has already removed considerable wetlands vegetation, and proposes to remove more, is a viable part of the littoral zone of Lake Serena. The area serves the beneficial purposes set out in Paragraph 2 above. It cannot be determined with any degree of certainty that the Petitioner's proposed project would have any finitely measurable impact upon water quality or wildlife resources in Lake Serena. Certainly removal of all such littoral zones would drastically change the ecology of the lake and render it polluted. Sixty percent of Lake Serena's shoreline has already been denuded of vegetation. Although it cannot be determined precisely how much more such action the lake will tolerate, it is clear that there is a limit. If the Petitioner's project were granted, other similar projects would also be justified. Inevitably the lake's oligotrophic nature would be destroyed. The only effect that the Petitioner's project could have upon the water quality and natural resources of Lake Serene is negative. No evidence was offered at the hearing from which it could be determined that the Petitioner's proposed project would not have an adverse impact upon the water quality and natural resources of Lake Serene. In its notice of intent to deny, Respondent asserted that the proposed project would be expected to degrade the water quality of Lake Serena, and to violate water quality standards because turbidity levels would exceed permissible limits. Respondent is contending that during the pendency of the project turbidity levels will be too high. At the present time the water level of Lake Serena is two to three feet below the ordinary high water line. The area Petitioner proposes to dredge and the area he proposes to fill, while below the ordinary high water line, are above the present water line. From the evidence it appears that steps could be taken so that the proposed project could be accomplished without exceeding permissible turbidity levels. The only purpose that would be served by the Petitioner's proposed project is to provide Petitioner with a sandy swimming beach rather than a natural shoreline.
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
