The Issue Should the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, grant the applicant, JEMAAM, INC., a dredge and fill permit pursuant to the Notice of Intent dated March 2, 1988, in File No. 361414445?
Findings Of Fact The Respondent, JEMAAM, INC., is the owner and the developer of real property contiguous to state waters in Lee County, Florida. The condominium project on the property is known as Island's End Condominiums. As part of Phase III of the condominium project, Respondent JEMAAM built a dock. This dock is the subject of this administrative hearing because the Respondent JEMAAM wants to reconfigure and relocate portions of the dock structure. Respondent JEMAAM filed an application for a dredge and fill permit with the Respondent DER in order to modify the exiting dock. The Respondent JEMAAM seeks to modify the dock by relocating a 3.92' x 61' section of the existing dock to a more waterward location. This area of the dock is the southerly extension, which fronts the Petitioners' condominium unit. The application process was begun on November 3, 1987, and completed on February 26, 1988. A Notice of Intent to Issue a dredge and fill permit for the proposed project was issued on March 2, 1988, by the Respondent DER. The dock is subject to the Respondent DER's permitting requirements because the construction activity is to take place in state waters and the dock structure exceeds 1,000 square feet in size. In addition, the Respondent JEMAAM has agreed not to undertake further dredge or fill work or any other construction in wetland areas under the Respondent DER's jurisdiction unless a valid permit had been obtained for such activities. The Petitioners, LEO J. BERGER and KATHLEEN D. BERGER, are the owners of Condominium Unit Number 102 in Phase III of Island's End Condominiums in Lee County, Florida, which is adjacent to Respondent JEMAAM's dock. The Petitioners filed an administrative complaint in which they disputed the appropriateness of the Intent to Issue dated March 2, 1988. In support of their position, the Petitioners identified a number of areas of controversy and alleged that the Respondent JEMAAM's application did not meet the "reasonable assurances" required for permit issuance. The Petitioners' allegations, which are properly before the Hearing Officer, are as follows: Shallow water in the area where the new dock configuration is to be located would result in propeller dredging of littoral shallows. The proposed waterward relocation of a portion of the dock would present a navigational hazard in the channel as well as in the shallows and around the dock. The proposed relocation would cause harmful shoaling in the area, which would affect boating safety as well as the habitat. The dock relocation and associated boat traffic will disrupt and harm bird and fish habitats. The dock may be within the Estero Bay Aquatic Preserve. Based upon the evidence adduced at hearing, I find as follows as to the allegations raised by the Petitioners in their administrative complaint: There are sufficient water depths, based upon the Bathymetric profile and a number of reviews by the Respondent DER in the proposed relocation area, to prevent harmful propeller dredging by boats using the dock. However, to assure that harmful turbidity and propeller dredging does not occur, the dock extension arm can be completely handrailed in the shallow, landward area. The addition of a shielded, steady burning light and navigational markers should minimize any impediment to navigation caused by the dock relocation. The main channel is not far from this area, and most boating traffic in the general area is confined to the main channel. The additional markers and lighting requirements combine with the current conditions to alert all reasonable and prudent boaters to the hazards and challenges of the area. The evidence is inconclusive as to the extent to which the dock structure has increased shoaling in the area. Much of the shoaling is attributed to the natural conditions of the area, a back-bay coastal zone. The shoaling which has occurred is thought to be beneficial by the experts who testified at hearing because the development of grasses has increased. This creates a positive habitat for Cuban shoalweed, brittle starfish, and several species of crab. Relocation of a portion of the dock will not substantially affect the shoaling activity in the area. The bird and fish habitats in the area do not appear to be adversely affected by the current dock. It is not anticipated that the relocation of a portion of the dock will change the ongoing development of the habitats. The bird roosting area on the sandbar includes a larger variety of species now than it did before the current dock was built, according to studies done by James W. Beever III. The installation of the additional channel markers was suggested by Beever, an expert witness in the case, as a means to enhance the viability of the sandbar as a habitat. The markers aid in steering boat traffic away from the area and prevent the beaching of boats on the sandbar. James W. Beever III is the current resource and research coordinator of the Estero Bay Aquatic Preserve. Based upon his testimony, the proposed dock relocation is not within the aquatic preserve. The areas of controversy raised by the Petitioners in their administrative complaint were sufficiently met by the reasonable assurances of the Respondent JEMAAM that the purported harms would not occur. The project is not contrary to the public interest under the criteria set forth in Section 403.918, Florida Statutes, as represented by the Respondent DER in the Notice of Intent to Issue and proved at hearing.
Findings Of Fact Sunset Company of Wilton, Incorporated, is the record title owner of a parcel of real property in Government Lot 1, Section 5, Township 66 South, Range 33 East, on Crawl Key No. 3 also known as Fat Deer Key, Monroe County, Florida. A portion of that parcel has been conveyed by Sunset Company to Whaler's Plaza, Incorporated, although that deed may not have been recorded. Petitioner Fred Roth owns and controls both corporations and exerts ownership and control over the entire parcel. The submerged lands in Tarpon Creek which are waterward of the line of mean high water contiguous to the parcel are sovereignty submerged lands. Roth received "major development" approval from Monroe County to develop the parcel by constructing a commercial/retail development known as "Whaler's Plaza.' The major development plan submitted to and approved by Monroe County includes a docking facility. In 1979 Roth filed an application with the Florida Department of Environmental Regulation for a private dock facility at Whaler's Plaza. The Department of Environmental Regulation approved that application and issued to Roth Permit/Certification No. 44-18542-5E. Roth never constructed that docking facility, and the permit expired on August 1, 1980. One of the agencies involved in reviewing that permit application was the Respondent. On June 26, 1979, Respondent notified Roth that upon review of the application in DER File No. 44-18542-5E, it had determined that the submerged lands were state-owned but that no lease agreement with Respondent would be required. After Permit No. 44-18542-5E expired on August 1, 1980, the Department of Environmental Regulation directed a letter to Petitioner advising him that the permit had expired and further advising him that if he wished to pursue the project he would have to obtain a new permit. in October 1983 Roth sought new authorization from the Department of Environmental Regulation and Respondent to construct a docking facility at Whaler's Plaza. His application was assigned DER File No. 440774875. On December 29, 1983, Respondent notified Roth that a lease would be required for the use of state-owned lands contiguous to Whaler's Plaza, relative to DER File No. 440774875. Respondent's rules changed in 1982 so that Roth's docking facility would be required to meet new criteria. The docking facility proposed by Roth in 1983 was similar to the docking facility proposed in 1979. The 1983 proposed modified docking facility was still represented to the Department of Environmental Regulation to be a private boat dock. The Department of Environmental Regulation issued an intent to deny the 1983 application under its then-existing rules, and Roth requested a formal hearing on that preliminary denial. Before a final hearing could be conducted, Roth again modified the proposed docking facility so that he qualified for a dredge and fill permit exemption from DER, so that no DER permit was needed for his project. A final order was entered by the Department of Environmental Regulation on August 27, 1985. While Roth's 1983 application was pending before the Department of Environmental Regulation, Roth was processing his application with Respondent for a submerged land lease for the docking facility. The documents he filed with Respondent, however, indicated that the docking facility was not intended to be a private dock but rather was a dock related to the commercial development at Whaler's Plaza. Roth represented to Respondent that the proposed docking facility would be for the convenience of patrons of the stores and restaurant at Whaler's Plaza and for his own personal use. Specifically, on June 3, 1985, Roth directed a letter to Respondent pursuant to Respondent's request for additional information. He described the Whaler's Plaza docking facility as follows: The wood dock will be used for arriving and departing customers of the restaurant and stores and my own personal use. The upland land use and activities of the property--will be developed into a shopping center. At the present time, the first phase is completed which is a one-story building containing four units, housing six retail stores, plus offices. The next phase will consist of three more buildings having five units each, 1,0000 [sic] sq. ft. each unit which will be for retail stores and offices, and the final phase will be a 200 seat restaurant, a miniature [sic] petting zoo and possibly a miniature golf course. ... 70 percent of the slips will be open to the general public for their convenience In patronizing the restaurant and stores; the remaining 30 percent of the slips will be for my own personal use. Roth never completed the lease application he filed with Respondent, and he failed to obtain approval for the use of the sovereignty submerged lands preempted by the docking facility proposed in DER File No. 440774875. Eventually, his pending application with Respondent was deactivated, and the file was closed. In late 1986, Roth initiated construction of his docking facility on sovereignty submerged lands, and he caused 30 pilings with cross-bracing to be placed into the submerged lands. On September 1, 1986, Grant Gelhardt, one of Respondent's enforcement officers, discovered the dock being constructed and verbally instructed Roth, through Mrs. Roth, to immediately cease construction activity. No further construction has taken place. Despite the verbal notification, a subsequent warning notice sent by certified mail, and Respondent's Notice of Violation and Order for Corrective Action, Roth has failed to remove the pilings and/or to take corrective measures regarding the partially completed docking facility. Roth has allowed vessels to be moored at the partially completed docking facility, has moored his own vessels at the partially completed docking facility, and has failed to prevent other persons from mooring at the partially completed docking facility. Roth's actions have resulted in damage to a benthic seagrass community on the adjacent sovereignty submerged lands over which Roth's partially completed docking facility is located, and over which vessels using the facility have been and would be moored. Those submerged lands constitute a benthic community of seagrass which supports various fauna and which would be adversely affected by completion and operation of the docking facility. The water depths in the area are shallow, with areas of less than -4 feet mean low water. The width of Tarpon Creek in the project area is approximately 100 feet. The length of the partially completed docking facility is approximately 150 feet. Although the dock extends parallel to the shore, the distance the dock extends into Tarpon Creek, as measured from the shoreline, is approximately 35 feet. Roth knowingly trespassed on sovereignty submerged lands by initiating construction of the docking facility, and he has willfully damaged those lands by drilling holes and placing pilings, and by allowing moored vessels to shade the seagrass. Although Roth ceased construction of the docking facility when told to stop, he has failed to attempt to resolve the violation, to remove the pilings, to seek an after-the-fact approval, or to cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands, even subsequent to receiving the Notice of Violation and Order for Corrective Action. Respondent's June 26, 1979 letter to Roth authorized the activities described in DER Permit No. 44-18542-5E, for the period authorized by that permit. Roth knew that the DEP permit, and therefore Respondent's approval to engage in the activity authorized by that permit, had expired. Roth further knew that his new application filed in 1983, DER File No. 440774875, which was approved by DER after Roth further modified it in order to qualify for an exemption, did not exempt him from obtaining authorization from Respondent to use sovereignty submerged lands for the project and further knew that when he commenced construction of the docking facility in 1986 that he had not obtained approval from Respondent to use state-owned submerged lands. Roth offered no evidence to demonstrate any detrimental reliance upon the June 26, 1979, DNR letter, and the letter did not create a vested right for Roth to construct a different docking facility at a later time without authorization from Respondent. The uplands at the Whaler's Plaza commercial/retail development are owned by for-profit corporations which Roth controls and which derive income from the business and commercial activities at Whaler's Plaza. The docking facility intended primarily for the use of customers of Whaler's Plaza would therefore constitute a revenue generating/income related activity.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered requiring petitioner to: Remove the unauthorized structure within 20 days from the date on which the Final Order is entered and in accordance with Respondent's supervision of that removal; Immediately cease all mooring of vessels on sovereignty submerged lands adjacent to the uplands of the parcel known as Whaler's Plaza until authorized to use state-owned lands; and Pay a fine of $2500 within 15 days of receipt of a certified letter from the Executive Director of the Department of Natural Resources demanding payment to the internal improvement Trust Fund. DONE and RECOMMENDED this 31st day of October, 1988, at Tallahassee, Florida. LINDA M. RIGOT, 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 31st day of October, 1988. COPIES FURNISHED: David L. Manz, Esquire Post Office Box 177 Marathon Florida 33050 Ross S. Burnaman, Esquire Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303 Tom Gardner, Executive Director Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida 32303
The Issue The issue in Case No. 89-1706 is whether the Stearns violated provisions of Chapter 403, Florida Statutes, in the construction of a dock on the Indian River. The issue in Case No. 89-1707 is whether Mr. Stearns is entitled to a dredge and fill permit for the construction of the above-described dock.
Findings Of Fact The Stearns reside at Sunrise Landing Condominium in Cocoa, Florida. The condominium complex lies on the western shore of the Indian River in north Brevard County. At this location, the Indian River is classified as a Class III water and is conditionally approved by the Department of Natural Resources for shellfish harvesting. By Purchase Agreement dated February 18, 1987, the Stearns agreed to purchase a unit at Sunrise Landings Condominiums from the developer. By subsequent Purchase Agreement Modification, the parties agreed that the Stearns had "permission to build a private boat dock providing buyer obtains all proper permits from the Army Corps of engineers and all other proper authorities." By Warranty Deed dated April 16, 1987, the developer conveyed the unit to the Stearns. The deed, which conveys a 1/72nd interest in the common elements, does not convey any right to build a dock. The deed states that the conveyance is subject to the Declaration of Condominium of Sunrise Landing II. The declaration, which was recorded prior to the deed to the Stearns, defines as Common Element the land lying adjacent and upland to the dock that the Stearns constructed. The declaration states that each unit owner owns an undivided share of the Common Element. Article III, Section 7 states: The Owner of a Unit . . . shall be entitled to use the Common Elements in accordance with the purposes for which they are intended, but no such use shall hinder or encroach upon the lawful rights of Owners of other Units. There shall be a joint use of the Common Elements . . . and a joint mutual easement for that purpose is hereby created. In February, 1987, prior to closing on their unit, the Stearns arranged with an individual named Kurt Ramseyer to construct the dock. Mr. Ramseyer completed construction of the dock on or about July 3, 1987. On or about February 22, 1987, Mr. Stearns executed an application for permit for activities in the waters of the State of Florida. The application warned the applicant that he must obtain all applicable authorizations before commencing work. The application, as well as all others completed by Mr. Stearns, was the joint Department of the Army/Department of Environmental Regulation form, effective November 30, 1982. The application describes the project as a dock consisting of two boat slips measuring 24 feet by 10 feet, a 24 foot by 4 foot pier, and a 12 foot by 12 foot deck. The application identifies as the adjacent property owners the individuals owning condominium units on either side of the Stearns' unit. Mr. Stearns did not complete the affidavit of ownership or control, in which the applicant attests that he is the record owner or, if not, will have "the requisite interest . . .before undertaking the proposed work." The Department of the Army received the application on May 11, 1987. At this time, a copy of the application was forwarded to the Department of Environmental Regulation ("DER") without the required application fee. By letter dated May 18, 1987, DER notified Mr. Ramseyer that the application fee had not been received and, until received, the application had not been officially received. DER received the application fee on May 28, 1987. By letter dated June 25, 1987, DER informed Mr. Stearns, through his designated agent, Mr. Ramseyer, that the proposed project would require a permit under Chapter 403, Florida Statutes, and that his application was incomplete. Among other items requested were descriptions of water depths within a 300-foot radius of the proposed structure, shoreline structures within 100 feet of the proposed dock, and the boats intended to be moored at the facility. By letter dated July 10, 1987, Mr. Stearns provided DER with additional information. Submitting a new application, Mr. Stearns represented this time that the proposed use was private single dwelling, rather than private multi- dwelling, as previously indicated. He also stated that the adjoining landowners were Sunrise Landings Condominium. Again, he failed to complete the affidavit of ownership or control. A partial site plan of the condominium complex shows the dock as five feet north and 45 feet south of the next nearest docks at the complex. As he had on the February 22 application, Mr. Stearns certified as true that he knew that he had to obtain all required authorization prior to commencing construction, although construction had already been completed at this time. In fact, Mr. Stearns indicated on the application, as he did on the October 27 application described below, that construction was "proposed to commence" on June 22, 1987, and was "to be completed" on July 3, 1987. The application explains a four foot increase in the length of the dock as necessitated by "water depth." Elsewhere, the application states that the river had receded four inches since March, 1987. In justifying the construction of the dock in two sections, Mr. Stearns explained that the "shallow depth of the water . . . could result in possible environmental damage to the river bottom, if power boats were allowed to be moored in close proximatity [sic] to the area of the bulkhead line." Mr. Stearns described the boats that he proposed to moor at the dock. At maximum capacity, one boat has a draft of 10 inches, and the other has a draft of 14 inches. Attached to the application is a diagram showing maximum/minimum water depths. The depths are 13"/9" at the bulkhead, 19"/15" at 10', 21"/17" at 20', 23"/19" at 30 `, 25"/21" at 40', and 26"/22" at 50'. Mr. Stearns explained: In order to minimumize [sic] the possible environmental damage to the river bottom aquatic growth, it was necessary to place the power boat mooring section of the dock a minimum of 20 feet away from the bulkhead line. Another diagram shows water depths of 22" to 26" from 50 feet to 300 feet from the bulkhead to the north and south of the dock. 15. By letter dated June 17, 1987, which Mr. Stearns attached to the July 10 application, the Department of the Army issued him a general permit for the proposed project. The letter warns that "it appears that a permit from the Florida Department of Environmental Regulation may be required." The attached diagram shows a structure with a total length of 36 feet. By letter dated July 30, 1987, DER informed Mr. Stearns that, among other things, the affidavit of ownership or control was incomplete; discrepancies existed between the original application and the most recent application, such as with respect to the names of different adjoining landowners and different proposed uses from private multi-dwelling to private single dwelling; it was unclear whether all permits were received prior to dock construction; and it was unclear what portion of the deed entitled the applicant to place the dock in its proposed location. By letter dated October 27, 1987, Mr. Stearns provided DER with additional information and submitted a partial new application. He attested to the fact that he was the record owner of the property, although he failed to provide the required legal description. As to the question involving different adjoining property owners, Mr. Stearns indicated that he believed that because the dock was located more than 25 feet from the nearest living unit, the approval of other property owners was not required. He explained that the private single dwelling unit was a condominium unit in an eight-unit building. He advised that construction of the dock was completed on July 3, 1987. As to water depths, he showed a depth of 9 inches at the bulkhead and 26 inches at 500 feet. Additionally, he showed mean low water of 12 inches at 10 feet, 16 inches at 20 feet, 23 inches at 30 feet, and 26 inches at 40 feet. By letter dated December 8, 1987, DER informed Mr. Stearns that his application was deemed complete as of October 29, 1987. By Intent to Deny dated January 8, 1988, DER notified Mr. Stearns of its intent to deny his application for a permit. The notice states that the project is not exempt from permitting procedures. The notice acknowledges the presence of about 40 piers installed at the condominium complex without the appropriate permits. The notice states that water depths within visual distance of the shoreline are relatively shallow with scattered marine grass/algae clumps in the vicinity due to the shallow water. In this regard, the notice concludes: Installation of a pier in such shallow water, less than 24 inches deep, for permanent mooring of a small watercraft will probably cause localized disturbance of the benthic community by prop wash. This situation is already evident at several of the nonpermitted piers. Additionally, the Notice of Intent raised the issue of ownership or control. Citing an earlier final order, the notice states that "`the Department will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass on private property."' By Petition for Administrative Hearing filed January 19, 1988, Mr. Stearns requested an administrative hearing on the Intent to Deny his application for a permit. By letter dated January 27, 1988, assistant general counsel for DER confirmed a recent telephone conversation with Mr. Stearns and stated that, pursuant to that conversation I will hold your petition pending further action by the Department towards resolution of the situation. If it appears that an amicable resolution cannot be reached, I will forward the petition to the Division of Administrative Hearings for the assignment of a hearing officer. By Notice of Violation and Orders for Corrective Action dated December 19, 1988, DER notified Mr. and Mrs. Stearns and 101 other persons owning or having owned units at Sunrise Landing Condominiums that an investigation of the property on June 2, 1987, had disclosed that 43 docks had been installed and placed less than 65 feet apart with 75 boat slips. These docks had been constructed without permits. A meeting with unit owners on March 15, 1988, had not produced a resolution of the dispute. The Notice of Violation alleges that the docks extended up to 20 feet waterward of the bulkhead through water depths of 8-24 inches. The docks allegedly were constructed within an area conditionally approved by the Department of Natural Resources for shellfish harvesting, but without a Department variance. The docks allegedly resulted in damage to state waters and pollution through localized disturbance of the benthic community by associated boat traffic prop wash in shallow water. The adversely impacted submerged bottom allegedly is highly productive with scattered seagrasses providing valuable fishery resources for the Indian River. Lastly, DER alleges that it had incurred investigatory expenses of at least $1500. After reciting the statutes allegedly violated by the construction of the docks, the Notice of Violation demands, among other things, the removal of all of the docks. By Petition for Formal Proceeding filed January 12, 1989, Mr. and Mrs. Stearns requested a formal administrative hearing on the Notice of Violation. Pursuant to notice, DER held an informal conference with numerous owners of docks, including Mr. and Mrs. Stearns, on February 9, 1989. At the conclusion of the meeting, DER agreed to hold open the informal conference period for an additional 30 days to allow settlement negotiations to be concluded. By Amended Notice of Violation and Orders for Corrective Action dated March 23, 1989, DER issued another notice of violation against the ten remaining dock owners, including Mr. and Mrs. Stearns, who had not yet removed or agreed to remove their docks. The allegations are substantially identical to those of the original Notice of Violation. Because of the failure of settlement negotiations, DER transmitted both files involving the Stearns to the Division of Administrative Hearings on March 31, 1989. In several prior cases, DER had previously informed other unit owners seeking to build a dock off of the bulkhead adjoining the Common Element that no permit was required because the project was exempt under Section 403.813(2)(b), Florida Statutes. In March or April, 1987, DER changed its position on this point. The docks 45 feet north and 5 feet south of the Stearns' dock were constructed without a dredge and fill permit, apparently in reliance upon the same exemption to which the Stearns claim to be entitled in the subject cases. The operation of boats in the vicinity of the dock constructed by Mr. and Mrs. Stearns would stir up the submerged bottom and result in prop dredging of critical vegetation. In sum, the intended use of the dock would disrupt the benthic community. At times, the Stearns have been unable to reach their dock with their boats due to the shallowness of the water. The waters of the Indian River surrounding the Stearns' dock are Class III waters that the Department of Natural Resources has conditionally approved for shellfish harvesting. The Department of Natural Resources has not granted the Stearns a variance for the construction of the dock. The dock is less than 500 square feet of total coverage. The moorings from the dock five feet to the south of the subject dock remained in place following the removal of the remainder of the structure. At the time of the application, the Stearns dock, whose construction had begun no later than June 22, 1987, and been completed on July 3, 1987, was 45 feet south of the nearest dock to the north and 5 feet north of the nearest dock to the south. Both of these docks had been built under claims of exemption. The Stearns dock was maintained for the exclusive use of the Stearns and was not available to other unit owners. DER has failed to prove any investigatory expenses directly attributable to the Stearns, as opposed to the 103 unit owners in general. Moreover, given the pending applications, which disclosed most of the specifics of the subject dock, including inadequate water depths, no portion of the investigation could properly be attributed to the Stearns, especially when the sole witness for DER could not testify to any specific damage to submerged bottom and vegetation caused by boats using the Stearns' dock. Additionally, actual damage and the investigatory expenses attributable thereto are divisible and could have been attributed to a particular violator, but were not.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Regulation enter a Final Order denying the subject permit and ordering Mr. and Mrs. Stearns to remove their dock, upon such conditions as are necessary to avoid damage to the environment, but not imposing any administrative fine. ENTERED this 22nd day of February, 1990, 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 22nd day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of DER 1-11: adopted or adopted in substance. 12: adopted as to general shallowness and excessive shallowness with respect to the passage of boats. 13-15: adopted or adopted in substance. 16: rejected as irrelevant. 17-24: adopted. 25: rejected as recitation of testimony, unsupported by the greater weight of the evidence, and irrelevant. Treatment Accorded Proposed Findings of the Stearns 1-3: adopted or adopted in substance, except that last sentence of Paragraph 3 is rejected as subordinate. 4: adopted. 5: rejected as unsupported by the greater weight of the evidence. Placing a dock in water too shallow for safe boating may arguably constitute a navigational hazard. 6: adopted. 7: rejected as unsupported by the greater weight of the evidence. In the first place, the facts at the time of the application should control whether the project was, at the time of its actual construction, exempt from the permitting requirements. In addition, the evidence showed that the pilings of at least the closer dock remained in the water following the removal of the decking. 8: first two sentences adopted. Second sentence rejected as unsupported by the greater weight of the evidence. 9: [omitted.] 10: rejected as unsupported by the greater weight of the evidence. It is clear from the operative documents--namely, the warranty deed and declaration of condominium--that Mr. and Mrs. Stearns lack the legal right to use the Common Element in the manner that they have used it. A clause in an unrecorded contract, which probably does not survive closing, cannot diminish the rights of other Unit Owners in their undivided shares of the Common Element, which, in part, the Stearns have seized for their private use. 11: first paragraph adopted. Second paragraph rejected as irrelevant and unsupported by the greater weight of the evidence. 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 General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 Steven A. Medina Assistant General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Frank J Griffith, Jr. Cianfronga, Telfer & Reda 815 South Washington Avenue Titusville, FL 32780
The Issue Whether or not Petitioner should be granted a dredge and fill permit for construction of a multi-family dock in either of the two configurations proposed in its application filed pursuant to Section 403.918 Florida Statutes.
Findings Of Fact Petitioner Secret Oaks Owners' Association, Inc. is a not-for-profit Florida corporation with its principal place of business in First Cove, St. Johns County, Florida. DER is the State agency charged with the responsibility of reviewing permits under Chapter 403, Florida Statutes and its applicable rules. Martin Parlato and his wife Linda Parlato are the owners of, and reside on, Lot 10, Secret Oaks Subdivision, First Cove, St. Johns County, Florida. They have standing as Intervenors herein under the following facts as found. Petitioner claims rights to dredge and fill pursuant to an easement lying along the southerly boundary of Lot 10 in Secret Oaks Subdivision, which is a platted subdivision in St. Johns County, Florida. The easement runs up to and borders the St. Johns River, a tidal and navigable river in St. Johns County, Florida. Petitioner filed an application for dredge and fill permit with DER on September 18, 1992. The dock was proposed to be five feet wide and 620 feet long including a 20 foot by 10 foot terminal platform and six associated mooring pilings. On November 3, 1992, the Petitioner filed an alternative proposal with DER. That submission proposed construction of an "L" shaped walkway into the St. Johns River to connect the easement with an existing private dock to the north, which dock is owned by the Intervenors. The walkway is proposed to be five feet wide and may extend approximately 80 feet into the river, and then turn north and run parallel to the shoreline a distance of 41 feet to connect with the existing dock. Additionally, the existing dock would be reclassified as multi-family and four mooring pilings would be placed on the south side of the terminal platform. It is undisputed that a DER permit is necessary to construct either dock requested by Petitioner. While Petitioner sought to create an issue regarding a dock that once was located emanating from the easement and connecting with the present dock emanating from Lot 10 in a configuration similar to the Petitioner's proposed auxiliary dock configuration, the previous dock was never permitted and would be subject to DER rules and potential removal orders if it still existed, unless some "grandfathering" legislation or rule protected the structure. No such "grandfather" protections have been affirmatively demonstrated. Instead, it was orally asserted, without any corroborating circuit court orders, that after Petitioner prevailed over Intervenors in circuit court on various real property, riparian rights, and property damage issues due to Intervenors' removal of the old dock, the circuit court had conditioned further relief upon Petitioner obtaining the necessary DER permit. In its Notice of Permit Denial dated January 22, 1993, DER stated several reasons why reasonable assurances had not been given by Petitioners that water quality would not be violated and that the project was not contrary to the public interest, and further stated, by way of explaining how the permit might still be granted, that, "Compliance with Florida Administrative Code Rule 17- 312.080(1) and (2) can be achieved for either proposal by complying with the following requirements: Determine the legal status of the easement to establish ownership and control; Design a structure to provide a sufficient number of slips to accommodate all members in sufficient depth of water so that the grassbeds will not be disturbed by boating activity, or specifically limit only the area of the dock in water greater than three feet to be utilized for mooring boats or boating activity and record this action in a long-term and enforceable agreement with the Department; Obtain documentation from adjacent landowners that demonstrates they fully recognize and consent to the extent of activity which may occur in the water by either proposal (i.e., single dock or access walkway). Subsequent to the denial of Petitioner's application, Petitioner and DER representatives met and discussed DER's recommendations for reasonable assurances outlined in the Notice of Permit Denial. DER representatives have also orally recommended alternatives for hiring a dock-master or creating assigned boat slips, but DER has received no formal submissions of information from the Petitioner. All of Petitioner's and DER's proposals have not been reduced to writing. No long-term enforceable agreement as proposed by DER in the Notice of Permit Denial has been drafted. The project site is located on the eastern shore of the St. Johns River, three-quarters of a mile north of Cunningham Creek and one mile south of Julington Creek, at First Cove, a small residential community in the extreme northwest of St. Johns County, where the St. Johns River is approximately 2.5 miles wide. Located at the proposed project site are submerged grass beds (eel grass) that extend from approximately 100 feet to 450 feet into the St. Johns River in depths of two to three feet of water. The water at the proposed project site is classified as Class III Waters suitable for recreational use and fishing, but the area is not listed as an Outstanding Florida Water. The grass beds at the proposed project site are important for the conservation of fish and wildlife and the productivity of the St. Johns River. They provide detritus for support of the aquatic based food chain and they provide a unique, varied, and essential feeding and nursery habitat for aquatic organisms. They are valuable for the propagation of fish. Endangered West Indian manatees seasonally graze on the eel grass in this locale during their annual migrations. Absent the replacement of the auxiliary dock, lot owners' primary access to the larger dock is by swimming or boating from the upland of the pedestrian easement to the larger dock. This can mean sporadic interaction with the eel grass. However, DER's experts are not so much concerned with the individual and occasional usages of Petitioner's lot owners but with the type of activity common to human beings in congregate situations encouraged by multi- family docks. The proposed construction of the auxiliary dock does not intrude on the eel grass as the dock does not extend 100 feet from the upland. The grassbeds end some 200 feet east of the west end of the dock. DER experts testified that the time-limited turbidity and scouring associated with construction of either proposed configuration would have very minimal impact, but the continual increased turbidity of the water over the eel grass to be anticipated from multi-family use of either dock may detrimentally affect juvenile aquatic life and the Manatees' feeding ground. The auxiliary dock as proposed provides no facilities for docking watercraft. The permit application provides for a maximum of four facilities for docking watercraft, presumably by tying up to four end buoys. Petitioner intends or anticipates that only four boats would ever dock at one time under either configuration because of planned arrangements for them to tie up and due to an Easement and Homeowners Agreement and Declaration recorded in the public records of the county. Among other restrictions, the Agreement and Declaration limits dock use and forbids jet ski use.1 The permit application seeks a multi alternative dock construction. Petitioner intends to control the use of the dock(s) only by a "good neighbor policy" or "bringing the neighborhood conscience to bear." Such proposals are more aspirational than practical. Petitioner also cites its Secret Oaks Owners' Agreement, which only Petitioner (not DER) could enforce and which Petitioner would have to return to circuit court to enforce. Petitioner has proposed to DER that it will limit all boating and water activity to the westward fifty feet of the larger dock, prohibit all boating and water activity on the auxiliary dock, and place warning signs on the docks indicating the limits of permissible activity, but Petitioner has not demonstrated that it will provide any mechanism that would insure strict compliance with the limited use restrictions placed on the homeowners in Secret Oaks by their homeowners' restrictive covenant. Testimony was elicited on behalf of Petitioner that Petitioner has posted and will post warning signs and will agree to monitoring by DER but that employing a dock master is not contemplated by Petitioner, that creating individual assigned docking areas is not contemplated by Petitioner, and that there has been no attempt by Petitioner to draft a long term agreement with DER, enforceable by DER beyond the permit term. The purpose of the dock is to provide access to the St. Johns River for the members of the Secret Oaks Owners' Association which includes owners of all sixteen lots, their families, and social invitees. Although there are currently only three or four houses on the sixteen lots, there is the potential for sixteen families and their guests to simultaneously use any multi-family dock. Although all sixteen lot owners do not currently own or operate boats, that situation is subject to change at any time, whenever a boat owner buys a home or lot or whenever a lot owner buys a boat. All lots are subject to alienation by conveyance at any time. It is noted that this community is still developing and therefore anecdotal observations of boating inactivity among homeowners before the old dock was torn down are of little weight. No practical mechanism has been devised to limit homeowners' use of the dock(s) if a multi-family permit is issued. Also, no practical mechanism has been devised to exclude any part of the boating community at large from docking there. Thomas Wiley, a DER biologist, accepted without objection as an expert in the environmental impacts of dredge and fill activities, and Jeremy Tyler, Environmental Administrator for DER's Northeast District, also accepted without objection as an expert in environmental impacts of dredge and fill activities, each visited the site prior to formal hearing. They concurred that the application to construct the 620 foot long dock presented the potential for a number of boats to be moored or rafted at the pier at any one time, particularly weekends and holidays, and that multiple moorings might greatly exceed the capacity intended by Petitioner. Wiley and Tyler further testified, without refutation, that over-docking of boats could hinder or block the use of the waters landward of the terminal structures by adjoining property owners. Congregations of power boats at marinas and facilities designated for multi- family use also pose a threat to the endangered West Indian manatees. With regard to alternative two of the application to reconstruct the unpermitted "L" shaped walkway, such a configuration would extend 80 feet of the "mean high water line", then run 41 feet parallel to the shoreline of Lot 10 before attaching to the existing pier and that the parallel portion of the walkway lies immediately adjacent to, and inshore of, the extensive submerged grass beds. According to Wiley and Tyler, it can reasonably be expected that boaters would utilize this walkway as a convenient boat loading/off facility rather than walking to and from the terminal end of the existing 620 foot long dock. Water depths vary from two to three feet offshore of the proposed structure, and the operation of boats, jet-skis, and other watercraft would result in prop scouring of the silt/sand bottom and damage to grass bed areas, degrading water quality and adversely impacting important habitat areas. The DER experts concluded that the applicant had not provided reasonable assurances that the proposed structures would not cause hindrances to ingress and egress or the recreational use of State waters by adjacent property owners, including Intervenors at Lot 10, that grass habitat areas will not be adversely impacted or inshore water quality will not be degraded by boating and related activity. The potential for intensive use of either of the proposed docks could result in a large number of boats and/or water activity at and around the docks. Submerged grass beds occur in waters generally less than three feet deep in areas near the docks. Any boating activity landward of 450 feet from the shore could seriously damage the extensive grass beds that occur there. Boating activity is likely to occur in the areas of the grassbeds if a number of boats are using the dock(s) at the same time or if a boater desires to minimize the length of dock to be walked, in order to reach the uplands. That damage is expected to be from prop dredging and resuspension of bottom sediments onto adjacent grasses. Upon the evidence as a whole, the project is neutral as to the public health, safety, welfare, and property of others, except to the extent it impacts the Intervenors as set out above. The anticipated increase in water-based activities around the proposed dock(s) will cause shifting, erosion and souring that can be harmful to the adjacent grass beds. The anticipated increase in water based activities around the proposed dock will adversely affect marine productivity because the clarity of the water in the area of the grass beds will be decreased. The project may be either temporary or permanent but should be presumed permanent. The project does not affect any significant historical or archeological resources. The current condition of the eel grass beds in the area is lush and valuable as a fish and wildlife habitat. In the course of formal hearing, DER witnesses testified that absent any disturbance of the grassbeds, DER would have no complaints about either proposed project configuration. After considering and balancing the above criteria, it is found that Petitioner has not provided reasonable assurance that the proposed project in either form would not violate state water quality standards and that it would not be contrary to the public interest.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the permit application be denied without prejudice to future applications. RECOMMENDED this 28th day of July, 1993, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 28th day of July, 1993.
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 The issue presented for decision in this case is whether Orange County should be granted Environmental Resource Permit (“ERP”) No. 940519-1 for the Keene’s Park and Boat Ramp project (also referred to herein as the "R.D. Keene boat ramp") to be located on Lake Isleworth, part of the Butler Chain of Lakes, an Outstanding Florida Water (“OFW”), pursuant to the permitting criteria of Chapter 373, Part IV, Florida Statutes, Chapter 40E- 4, Florida Administrative Code, and the Basis of Review for Environmental Resource Permit Applications of the South Florida Water Management District (the “District”).
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: THE PARTIES Petitioner Alicia O’Meara and Intervenor Regina Gibbs are the owners of waterfront property on Lake Isleworth. Petitioner James E. Slater is the trustee and legal owner of waterfront property on Lake Isleworth. Orange County is the owner of waterfront property on Lake Isleworth. The Orange County Parks and Recreation Department, which prepared and submitted the ERP application, administers a budget in excess of $36 million and employs more than 425 persons. The District is a public corporation initially established under Chapter 25270, Laws of Florida, 1949, and currently operating pursuant to Chapter 373, Florida Statutes, and Chapter 40E, Florida Administrative Code. The District is statutorily responsible for issuance of ERP permits. THE CURRENT SITUATION The Butler Chain of Lakes is a series of interconnected lakes in Orange County, covering in excess of 5,000 acres, and including Lake Down (the northernmost lake in the Butler Chain), Lake Butler, Wauseon Bay, Lake Louise, Lake Isleworth (also known as Lake Palmer), Lake Chase, Lake Blanche, Lake Tibet-Butler, Lake Sheen, Pocket Lake, Little Fish Lake, and their connecting canals. The Butler Chain drains south into the Upper Kissimmee River Basin. The Butler Chain of Lakes is a Class III water body, and has been designated as an OFW since 1984. The Butler Chain of Lakes is surrounded by exclusive residential communities. There are approximately 1,400 docks on the Butler Chain of Lakes, providing private access to at least that many motorized watercraft. At all relevant times, there has been one boat ramp open to the general public on the Butler Chain. That public ramp is located in the southeastern portion of Lake Down, and is immediately adjacent to vehicular traffic on Conroy-Windermere Road. The ramp was deeded to Orange County by a private owner in the 1950s. The Lake Down ramp is an inclined cement or concrete slab that leads down into the shallow water and allows boat trailers to be backed to water’s edge and boats to be unloaded into Lake Down. The ramp has no dock, floating dock, buoys, or any other structure that would provide ease of access to handicapped or disabled persons. The ramp has no mooring facility in its vicinity. Should there be a need to moor a boat, the operator must do so in the shoreline vegetation. The Lake Down ramp has no adjacent parking lot. Orange County leases a vacant lot on the other side of Conroy-Windermere Road for boat ramp parking. This lot is approximately 1,900 feet from the boat ramp. Boaters must unload their boats at the ramp, moor the boats, drive to the lot to park their vehicles and trailers, then walk the 1,900 feet along Conroy-Windermere Road back to the place where they left their boats. The sidewalk along Conroy-Windermere Road does not extend the full 1,900 feet between the Lake Down ramp and the vacant lot. For about 300 feet of the trek to and from the ramp, people must walk on the roadside grass. Orange County leases the vacant lot from Windermere Property Holdings. The term of the lease expires on January 15, 2001. The lease also provides that either party may terminate it by providing 60 days written notice. Absent this lease, Orange County would have no provision for parking vehicles and boat trailers anywhere remotely near the Lake Down ramp. A further problem with the public ramp at Lake Down is that the only access channel from Lake Down to the remainder of the Butler Chain is through Wauseon Bay. The Wauseon Bay channel runs under a low vehicular overpass, which prevents access for all but the smallest boats from Lake Down to the other lakes in the chain when the water level is too high or too low. Thus, there are times when the general public has boating access only to Lake Down, the northernmost lake in the Butler Chain. There are other boat ramps on the Butler Chain, but none of these is available to the general public of Orange County. The Orlando Utility Company owns a private ramp on Lake Down. The Town of Windermere owns a public ramp, but allows its use only by residents of the Town of Windermere. The Sportsman’s Club owns a ramp on Lake Sheen, but access is limited to club members. There is a private ramp on Lake Tibet-Butler at the Bay Hill Lodge, with a fueling system, a marina, and a mooring facility. The Isleworth Country Club owns a recently permitted ramp on Lake Tibet-Butler. THE KEENE'S PARK AND BOAT RAMP SITE The limited public access to the Butler Chain led the Orange County Board of County Commissioners to pursue a policy of obtaining multiple access sites on the Butler Chain. The Keene's Park site, on approximately 52 acres of property owned by Orange County, was the Board’s first choice. The site of the proposed R.D. Keene boat ramp is located within an abandoned citrus grove. While the site was being used as a citrus grove, a canal was constructed from Lake Isleworth to the adjacent uplands to provide a source of water for irrigation. The proposed ramp would be located within this previously excavated canal, which is deep enough to permit navigation out into the lake without running over shallow areas and with minimal potential for turbidity. Also on the site was a pump house for a diesel powered pump that was used for irrigating the citrus grove. A site inspection indicated that there was soil contamination caused by a fuel leak from the pump house. At the request of the Florida Department of Environmental Protection (“DEP”), Orange County removed the pump house and performed environmental remediation on the site, including the removal, incineration and replacement of 21 tons of soil. DEP issued a Site Rehabilitation Completion Order on February 15, 1995, indicating that Orange County had fully remediated the on-site contamination. On May 19, 1994, Orange County submitted to the District a Joint Application for Works in the Waters of Florida. The Surface Water Application was numbered 940519-1, and the Dredge and Fill Application was numbered 940519-1-D. The District sent Requests for Additional Information as to both permits to Orange County on August 24, 1994, and Orange County submitted its responses to December 6, 1995. The District sent further Requests for Additional Information to Orange County as to both permits on January 12, 1996, and Orange County responded to both requests on November 6, 1996. On or about November 7, 1996, Orange County converted its Surface Water and Dredge and Fill Permit Applications to an ERP Application. The District issued an ERP Staff Review Summary on December 26, 1996; an Amended ERP Staff Review Summary on October 30, 1997; and a Second Amended ERP Staff Review Summary on February 13, 1998. In each of the Staff Review summaries, District staff recommended that the proposed permit be issued, subject to attached general and special conditions. THE PROPOSED BOAT RAMP The proposed R. D. Keene boat ramp consists of a 30-foot wide boat ramp, two 6-foot wide concrete walks, one floating dock designed to accommodate the handicapped or anyone else who has difficulty getting in or out of a boat, and a mooring system allowing boats to queue for use of the ramp. No boat slips or fueling facilities are proposed for the boat ramp. The installation of the boat ramp will utilize the Tedder Boat Ramp System, which minimizes the amount of dredging and filling required during construction by placing a factory precast concrete slab directly onto the lake bottom, eliminating the need for dewatering during installation. The ramp will be a double ramp, allowing two boats to load or unload simultaneously. The Tedder System is the latest technology in boat ramps. The ramp will be beneath the boats as they get on and off the trailer, minimizing turbidity even if boats “power load,” i.e., use their engines to push the boats on and off the trailer, as opposed to manually cranking the boat on or off the trailer. In any event, power loading will be prohibited at the R.D. Keene boat ramp. This proposal contrasts with the public ramp at Lake Down, where there is no prohibition on power loading and where the boats load and unload directly over the lake bottom, creating the potential for turbidity. During construction of the R.D. Keene ramp, hay bales and a silt fence will be used to protect against erosion, and two turbidity barriers will be used to isolate turbidity caused by the construction. The erosion control devices will be placed landward of an average 25-foot upland buffer zone. The queuing system will be approximately 230-feet long to prevent shoreline mooring and to provide temporary facilities for waiting boats if the ramp is in use. A post and cabling system will be run along the line of vegetation on the northeast side of the proposed ramp, allowing boats to moor in the vicinity of the ramp. Petitioners correctly state that this queuing system, located on the west side of the ramp, will not prevent shoreline mooring on the east side of the ramp. However, Orange County more credibly contends that there is no reason for boaters to moor in the vegetation on the east side. The queuing system will permit 20 to 30 boats conveniently to moor in the vicinity of the ramp. The queuing system is on the west side of the ramp, as is the parking lot. Dale Mudrak of Orange County credibly testified that the queuing system is sufficient for the anticipated use of the ramp, and there will be no need for boaters to moor in vegetation, as they are forced to do at the Lake Down ramp. Boaters have been forced to improvise at the Lake Down ramp due to the paucity of amenities. Petitioners are wrong to assume that boaters will continue these improvised behaviors at the R.D. Keene ramp, a facility that will provide such basics as a place to moor and to park boat trailers. Pursuant to the special conditions of the District’s Staff Review, absorbent booms will be installed on each side of the boat ramp to absorb oils, greases, and petroleum-based byproducts. Each section of the boom is 10 feet long, five inches in diameter, and, according to the manufacturer’s specification, capable of absorbing six to nine gallons of petroleum-based liquid. Between six and eight booms will be in place at any given time, enough to contain small oil spills at the boat ramp. Randall Armstrong of Phoenix Environmental opined that these booms will be inadequate because they will absorb only those pollutants, particularly hydrocarbons, which they come in contact with on the surface of the water. Mr. Armstrong testified that pollutants farther down in the water column will not be absorbed by the booms, rendering the booms ineffective. Mr. Armstrong’s opinion is not credited, because it assumes that Orange County must guarantee that the booms will absorb all water-borne pollutants in the vicinity of the proposed boat ramp. Having the booms in place will obviously be preferable to not having them in place. If the booms work well, as Orange County has credibly testified they will, it is unreasonable to criticize them because they will not work perfectly. Pursuant to the special conditions of the District's Staff Review, an oil-spill emergency response kit will be maintained at the ramp site at all times. Park staff will be trained in proper use of the emergency kit. Contact numbers will be posted at the site for use by the public, should a spill occur when park personnel are not present. In case of a fuel or oil spill, park personnel are required to take immediate measures to notify the appropriate emergency response agency. The construction of the proposed boat ramp utilizes suitable technology for all stationary installations, including those created for drainage, flood control, or by dredging or filling. The parties agree that the storm water management system and the surface water management system for the project meet all applicable criteria for issuance of the ERP, and that the facility will have no adverse wetland impact. Deed restrictions between Orange County and the predecessor title holder of the property limit the number of boat trailer parking spaces to fifty (50) or fewer at all times for the entire 52-acre site. A total of 50 parking spaces are proposed for construction: 47 regular vehicle trailer spaces, two (2) handicapped spaces, and one space for staff. Posts with cabling will be constructed along the entrance roadway and parking areas to prevent parking of boat trailers in undesignated areas. Signage will also indicate that parking along the driveway and main access road is prohibited. Access to the proposed ramp will be limited to daylight hours. The R.D. Keene Park will be locked at night to prevent public access. Petitioners assert that Orange County has not and cannot guarantee that only 49 boats will enter Lake Isleworth from the ramp at any one time, citing the fact that Orange County does not control access to the ramp by way of Chase Road, which is the access road to the R.D. Keene Park. Petitioners speculate that boaters may park their trailers along Chase Road, causing an excess of 49 users of the ramp at a given time. Absent more than speculation, Petitioners’ assertions cannot be credited nor can Orange County be held at fault for failure to anticipate these remote possibilities. Petitioners are once more observing the improvised behaviors at the Lake Down ramp and assuming they will carry over to the R.D. Keene ramp, even though the latter will have adequate parking adjacent to the ramp. Petitioners also cite the fact that Orange County’s construction plans do not include fencing on the south side of the park to prevent pedestrian access from the Keene’s Pointe subdivision. Petitioners speculate that boaters will put their boats in at the R.D. Keene ramp, park their trailers somewhere in that subdivision, then walk back to the ramp to take their boats out on the lake. Again, Petitioners contend this operates to negate Orange County’s assurances there will be only 49 users of the ramp at a given time. Again, these speculations cannot be credited as facts nor can Orange County be found at fault for failure to anticipate these remote possibilities. Petitioners provided no evidence that this ramp will be so overwhelmed with boaters that the overflow will pour out into the nearby neighborhoods. The boat ramp will be staffed by personnel from the Orange County Parks and Recreation Department. Orange County staff will not be present at all times the boat ramp is open. Orange County has made no commitment to have staff present during all hours of weekend operation. Christi Flood, Manager of the Orange County Parks and Recreation Department, testified that full-time staff will be present on predictably busy weekends. Petitioners contend that the lack of staff present at the ramp during all hours of operation means that Orange County cannot prevent: power loading or unloading; draining, cleaning or washing; discharging of bilge pumps or popping of drain plugs into the water; shoreline mooring or disturbance of shoreline vegetation; fueling at the ramp; watercraft over 27 feet; boats with antifouling paint; or use of the facility by watercraft without permits. However, Petitioners failed to offer hard evidence that the patrols proposed by Orange County will not reasonably enforce the park rules, or support for their assumption that users of the boat ramp will ignore the park rules when staff is absent. Orange County could not guarantee perfect compliance with every rule, even with the full-time staff that Petitioners seek. Orange County staff will be empowered to enforce the park rules with citations, which would include fines or revocation of the privilege to use the boat ramp. Parking restrictions will be enforced by the Orange County Sheriff’s Department. The Butler Chain of Lakes is patrolled by other agencies, including the Florida Game and Fresh Water Fish Commission, Orange County’s Environmental Protection Department, the Windermere Navigational Board, and the Marine Patrol. The special conditions of the District’s Staff Review require Orange County to implement an Operational Plan, the terms of which have been specifically set forth by Orange County in its submissions to the District. To use the ramp, a boater must fill out a Day Use Permit stating that the boater will abide by the park’s rules, and pay a fee. All conditions of the Operational Plan are included in the Day Use Permit. Permitting will be done on the honor system when Orange County staff persons are not actually present. Blank permit forms will be left at the ramp. Boaters will fill out the forms, place their money in an envelope to be deposited in a secure tube provided at the site, then display the permits on their car dashboards while parked at the ramp. Ms. Flood testified that no more than 49 permits will be issued at a given time. A trailer carrying multiple watercraft will be required to obtain a permit for each watercraft. Ms. Flood conceded that more than 49 permits could be issued over the course of a day, as boats come and go from the ramp. As stated in the Operational Plan and the Day Use Permit, the following rules will apply to all watercraft launching at proposed boat ramp: No power loading or unloading. No draining, cleaning or washing at the ramp. No discharging of bilge pumps and opping of drain plugs at the ramp or in the water. No anchoring or parking along shoreline and no disturbance of shoreline vegetation. Use designated queuing system while waiting for ramp availability. No littering. All "No wake" areas must be obeyed (including the No Wake Zone within 100 feet of shoreline, as mandated by Orange County ordinance). No fueling allowed at the ramp for any watercraft. No watercraft over 27 feet will be permitted. No boats with antifouling paint will be permitted. No overnight mooring. The R.D. Keene Park will be closed if the water level falls below 97-feet. Dale Mudrak, the Program Development Supervisor in the Planning and Design section of the Orange County Parks and Recreation Department, testified that 97 feet was chosen to ensure that boats would not use the ramp when the water is too low. Mr. Mudrak stated that when the water elevation is at 97 feet, there is 5-feet of water at the ramp, but only 3-feet of water in the shallow canals leaving Lake Isleworth. He testified that the Windermere Navigational Board recommended closing the ramp when the level reaches 96 feet, but that Orange County conservatively decided to add 1-foot to the recommendation. WETLAND IMPACTS AND MITIGATION The project is expected to result in 0.07 acres of secondary wetland impacts (removal of littoral zone vegetation) above that required for construction. A total of 0.14 acres of wetland impacts will occur from direct construction and secondary wetland impacts. Mitigation for the 0.14 acres of wetland impact includes 0.56 acres of wetland creation. The wetland creation areas are divided into three separate zones (A, B, and D). Both forested and herbaceous species will be planted in each area. The forested species include cypress, red maple, sweet bay, water oak, swamp bay and dahoom. The herbaceous species include soft rush, maidencane, cordgrass, sawgrass, duck-potato, pickerel-weed, and buttonbush. Approximately 1.61 acres of wetland preservation is also provided as mitigation. Pursuant to the special conditions of the District's Staff Review, Orange County will provide a conservation easement. The conservation easement will be placed over the preserved wetlands, mitigation area, and upland buffer zones and deeded to the District. A total of 2.90 acres will be placed under this conservation easement. Elimination and reduction of wetland impacts has been demonstrated. Adverse impacts to aquatic dependent species from wetland impacts are not expected, because the values and functions provided by the proposed mitigation outweigh the wetland loss. AMBIENT WATER QUALITY Orange County has an extensive water quality monitoring program, and has accumulated historic water quality data for over thirty years, including a broad range of physical, chemical and biological parameters, for the Butler Chain of Lakes. In its application, Orange County provided site- specific water quality, sediment, and macroinvertebrate samples. The water quality parameters sampled include four categories: physical properties, inorganics, organics, and microbiology. Orange County also provided historic water quality data for a period of ten years (1984-1994) for Lake Isleworth, Lake Louise (the immediate upstream waterbody), and Lake Tibet-Butler (the immediate downstream waterbody). This data included the year Lake Isleworth was designated as an OFW in 1984 and the year prior to submission of the ERP application. Linda Jennings, the Laboratory Supervisor for the Orange County EPD, testified that the historical data demonstrated that the water quality in the Butler Chain of Lakes has been excellent since at least 1983 and remains so today, even with development and boating steadily increasing over that period. The historical data show some small variances attributable to seasonal and cyclical fluctuations, but no long- term deterioration of water quality in the Butler Chain, despite the heavy recreational use of those lakes during the period in question. The historical water quality data provided by Orange County in this case is far better than is usually submitted to an agency during the application process, even for those projects located in OFWs. This historical data allowed the District to make a more informed decision than usual regarding the long term status of the water quality of the Butler Chain. Orange County provided water quality data for those parameters showing the general water quality, and for those parameters specifically related to boat ramp activity, such as Polynuclear Aromatic Compounds, discussed in more detail below. The historic water quality data demonstrates there have been no major changes in water quality over the ten-year period of record and that, if there is any trend at all, it is a trend toward improved water quality. The water quality of Lake Isleworth and the Butler Chain of Lakes is excellent and has maintained its superior quality since 1983. ORANGE COUNTY’S PAH DATA Orange County provided water quality data from October 1997 and January 1998 for Lake Sheen, Lake Isleworth and Lake Down. Orange County collected and analyzed numerous water and sediment samples for Polycyclic Aromatic Hydrocarbons (“PAHs”), also called Polynuclear Aromatic Compounds, which are compounds found in gasoline and other petroleum products. The presence of PAHs in the water indicates the presence of petroleum products in the water. Starting on October 14, 1997 and continuing through October 20, 1997, Orange County EPD took 84 water samples on seven consecutive days at twelve stations: at the ramp, east edge, and center of Lake Down; at the west edge, center, and east edge of Lake Isleworth; at the ramp, center, and west edge of Lake Sheen; and at the ramp, center, and east edge of Lake Conway, a heavily used Orange County lake outside of the Butler Chain. Orange County EPD also took 28 sediment samples, representing a total of 84 sediment samples, at each of the twelve stations for seven consecutive days, taking composites of the three sites in each of the four lakes: Lake Down, Lake Isleworth, Lake Sheen and Lake Conway. An independent laboratory, Bottorf Associates, Inc., analyzed each of the 84 water samples and the 28 composite sediment samples for 16 different PAH parameters, including naphthalene. This represents a total of 112 samples and a total of 1,792 different PAH tests. Environmental testing laboratories are required by the Florida Department of Environmental Protection to file a comprehensive quality assurance plan (“QAP”) for all field and lab procedures they perform. Among the data included in the filed QAP is a statement of the method detection limit ("MDL"), the lowest level of a particular compound that the laboratory can report on a continuing basis using a particular form of test and a particular piece of equipment, with 99 percent confidence that the value is above zero. The MDL is arrived at by assessing the U.S. Environmental Protection Agency (“EPA”) testing method being used, in conjunction with the particular instrument and the abilities of the analyst, with the goal of stating an MDL that can be achieved on a daily basis in the ordinary operations of the laboratory. The MDL can also be described as that level below which the laboratory cannot be certain whether it is reporting accurate values or whether it is reporting background noise in the sample. The laboratory results reported by Bottorf Associates, using EPA Test Method 610 for PAHs, indicated that every reading for every parameter tested was below the MDL for the following array of PAHs (MDLs are stated in micrograms/liter): Acenaphthene 1.4 Acenaphylene 3.4 Anthracene 4.2 Benzo(a)anthracene 4.0 Benzo(a)pyrene 0.2 Benzo(b)fluoranthene 3.9 Benzo(ghi)prylene 10.0 Benzo(k)fluoranthene 4.0 Chrysene 4.0 Dibenzo(a,h)anthracene 6.8 Fluoranthene 1.7 Fluorene 3.0 Indeno(1,2,3-cd)pyrene 7.5 Naphthalene 1.4 Phenanthrene 1.2 Pyrene 2.4 Orange County’s test results indicated that, as a practical matter, there were no PAHs at any of these locations on the days of testing. In January 1998, Orange County EPD took additional water samples at the following 10 sites: the ramp, east edge, and center of Lake Down; the west edge, center, east edge, and future ramp site on Lake Isleworth; and the ramp, center, and west edge of Lake Sheen. The 10 water samples were tested for 13 different PAH constituents, including naphthalene. All of the constituents tested in January 1998, were below the MDL, confirming the testing done in October 1997. Orange County EPD’s result sheets from the January 1998, sampling included qualifier identifier codes to show that the data was being reported at a level below the MDL. Essentially, the codes indicate that no PAHs could be detected even at a level of one-half the MDL on file with DEP. Orange County’s data indicates that neither the water nor the sediments at Lake Down, which has had a public boat ramp for decades, show any reliably detectable levels of PAHs. Orange County’s data indicates that neither the water nor the sediments from Lake Sheen, which has a boat ramp for a membership club with a fueling facility and dock, show any reliably detectable levels of PAHs. Orange County’s data indicates that neither the water nor the sediments from Lake Conway, which has a heavily used boat ramp, show any reliably detectable levels of PAHs. PETITIONERS’ PAH DATA Petitioners introduced a study performed by Mote Marine, a state certified research laboratory, assessing the levels of hydrocarbon contamination associated with boat launching and loading activities at the Lake Down and Lake Sheen boat ramps. Specifically, Mote Marine sampled for naphthalene, one of the PAHs that is an indicator of petroleum discharges into the water body. Mote Marine collected water samples at the boat ramp, the opposite shoreline, and the center of Lake Down and Lake Sheen. Mote Marine also collected water samples at the site of the proposed boat ramp and near a canal on Lake Isleworth. All of these samples were taken during Labor Day weekend, between August 31 and September 4, 1995. Mote Marine’s QAP indicates that its MDL for naphthalene under either EPA Method 625 for Base/Neutrals and Acids or EPA Method 610 is two micrograms per liter. Mote Marine employed EPA Method 625. Orange County used EPA Method 610. The values for naphthalene reported by Mote Marine were expressed not in terms of micrograms, but in terms of nanograms. A nanogram is one-thousandth of a microgram. Of the 72 individual water samples collected by Mote Marine at Lake Down, Lake Sheen, and Lake Isleworth over the 1995 Labor Day weekend, only one registered a naphthalene concentration above the two micrograms per liter MDL in Mote Marine’s QAP. The majority of the measurements were reported as less than 10 nanograms per liter. Dr. Richard Pierce, the Director of Research at Mote Marine, testified that the QAP on file at DEP is a broad based plan encompassing all the various analyses performed by the laboratory, in effect a “worst case scenario” setting a high MDL that is easy to meet in all cases. Dr. Pierce also testified that DEP and the U.S. EPA allow a laboratory to vary from its filed MDL on specific projects, and that his laboratory was able to establish an MDL of six nanograms per liter for this particular project. Dr. Pierce testified that three major factors are involved in establishing a project specific MDL. The first factor is how “clean” the sample is, i.e., how many interfering compounds are present that may elicit a response from the detector being used. The second factor is the quality of the instrumentation, and the third is the skill of the analytical chemist performing the analysis. Dr. Pierce’s factors coincide with the factors listed by Ms. Jennings of Orange County as to the considerations involved in establishing a comprehensive MDL. Mote Marine did not file a Quality Assurance Project Plan for this project. Dr. Pierce testified that such a filing was not required in order to apply a lower MDL for this project. Orange County contended that such a filing was necessary, but offered no specific reference to a rule that would have required Mote Marine to file a Quality Assurance Project Plan under these circumstances. The undersigned could discover no DEP rule that unequivocally would require the filing of a Quality Assurance Project Plan for the activities conducted by Mote Marine. Thus, Dr. Pierce’s expertise as Director of Research is credited and it is accepted that Mote Marine could establish a project specific MDL in this instance, and properly did so. A chart in the Mote Marine report, purporting to show the average naphthalene concentrations in the subsurface water as determined by Mote Marine’s sampling, contained several inaccuracies. The chart stated that the measurements were being reported in terms of micrograms, when in fact the numbers represented nanograms. In two places, the average concentrations were miscalculated, either because the correct factors were not included or due to simple mathematical error. The Mote Marine report also provided no information on the actual locations of the testing sites in terms of latitude and longitude, thus making it difficult if not impossible to check or repeat the sampling. The problems with methodology and with simple calculations make it difficult confidently to rely on the Mote Marine report as regards naphthalene. However, even if the Mote Marine report had been impeccably accomplished, its results would not establish a definite correlation between naphthalene contamination and boating activities. Petitioners assume that the concentrations of naphthalene that Mote Marine found in the vicinity of the Lake Down and Lake Sheen boat ramps are attributable to boating activity, ignoring the fact that neither of these boat ramps has a storm water management system. Both the Lake Down and Lake Sheen ramps directly adjoin roads, and have no buffering system whatever for storm water runoff from those roads. There was rain on the Butler Chain during the Labor Day weekend of 1995, when Mote Marine took its samples. In fact, a tropical depression had only recently passed through the Orlando area. Dr. Pierce could not determine the relative input of contaminants from automobiles and from boats. Dr. Pierce had no opinion on whether the amount of naphthalene found by his laboratory is environmentally or ecologically significant. Dr. Pierce had no opinion as to whether hydrocarbon contamination is degrading the water quality of Lake Down. Randall Armstrong, a consultant with Phoenix Environmental, opined that the reported naphthalene levels would degrade the water quality, but admitted that he was not an expert in chemistry and was ignorant of Mote’s methodology. Even accepting all of Petitioners' assertions as accurate, it cannot be found that the proposed R.D. Keene ramp and its surface water management system would lead to the introduction of petroleum products into the water column in amounts sufficient to degrade the water quality. Dr. Douglas Durbin, a Senior Ecologist with Biological Research Associates and an expert in lake ecology, defined degradation of water quality as a negative and permanent change in the ecological or recreational status of a water body. Dr. Durbin testified that, even if the Mote Marine data were accurate and reliable, those levels of naphthalene were lower by at least two orders of magnitude than levels that could potentially affect even the most sensitive organisms, as those affective levels have been established by the United States EPA. This is not necessarily the standard for determining degradation, but is indicative that the levels of naphthalene under discussion are infinitesimal. Mr. Armstrong of Phoenix Environmental contended that the impact to water quality by an activity need not be permanent in nature or even ecologically significant in order to violate the water quality standards of the District. Mr. Armstrong's rationale is that any "measurable" lowering of the water quality of the OFW violates the rules, even if that measurement must be accomplished in nanograms and cannot be shown to have any effect whatever on any of the biota of the water system. This rationale would essentially shut down all new activities on OFWs, and is at odds not only with the District's interpretation but with the views expressed by Mr. Armstrong himself on other projects. Dr. Durbin's opinion regarding the nature of degradation is credited over that of Mr. Armstrong. WATER QUALITY MODELING AND IMPACT OF THE PROJECT After establishing the ambient water quality, Orange County performed water quality modeling to determine if the ambient water quality would be lowered by the construction and operation of the boat ramp. The number of boat ramp users will vary based on various factors including temperature and day of the week. The ramp is sized for 144 launch events per day, meaning that a maximum of 72 boats could use the ramp on a given day. Mr. Mudrak testified that the ramp was sized so that parking, not the size of the ramp, will be the limiting factor in ramp usage. The ramp will have 50 parking spaces, one of which will be reserved for Orange County staff use and two of which will be designated for handicapped use. Robert Robbins, the District’s permitting expert, testified that the District’s analysis generally concerns a determination of the amount or rate of input of pollutants that a lake can assimilate without exceeding its assimilation threshold, i.e., lowering the ambient water quality. Mr. Robbins further testified that this determination was unnecessary here because the District found a negative answer to a threshold question: would a boat ramp and 50 boat parking area under any circumstances exceed the assimilation threshold? As part of a grant project that involved a water quality model and water management study, Parsons Engineering Science, Inc., collected data on the geometric characteristics of the lakes, the topographic and ecological characteristics of the basins, and the existing land uses to develop a hydrodynamic and water quality model of the Butler Chain of Lakes, hereafter referred to as the “BCL model.” The BCL model provided a conservative hydrodynamic analysis of the rate of input and dilution of pollutants, and indicated that there is no potential for the accumulation of pollutants in the Butler Chain of Lakes as a result of the project. Parsons Engineering considered the chemical and physical properties of the gasoline constituents and ran the BCL model using the pertinent chemical and physical parameters. The BCL model took into consideration volatilization and adsorption of hydrocarbons from the water. In an effort to reach a conservative result, the BCL model did not include the loss of gasoline constituents through biodegradation or photolysis, processes in which the hydrocarbons dissipate over a longer period of time. The BCL model predicted that no accumulation of gasoline constituents, including naphthalene, would occur in Lake Isleworth at a level equivalent to the expected daily usage of the proposed boat ramp, an average of 25 boats per day. The BCL model predicted that no accumulation of gasoline constituents, including naphthalene, would occur at a constant level of 77 boats using the proposed ramp every day, triple the expected daily usage and five boats more than the capacity of the proposed ramp. At a level equivalent to the expected daily usage, the BCL model predicted that the daily concentration of the PAHs benzene, toluene and naphthalene, would be below the laboratory detection limits. At a level that is triple the expected daily usage, the BCL model predicted that the daily concentration of the PAHs benzene, toluene and naphthalene would be below the laboratory detection limits. In summary, the BCL model predicts that even if the proposed ramp had a capacity of 77 boats per day rather than 72, and if 77 boats were served by the ramp every day of the year, rather than the actual anticipated average of 25 boats, there would be no degradation of water quality caused by introduction of hydrocarbons into the water of Lake Isleworth. Dr. Kenneth Echternacht, a consultant engineer with Phoenix Environmental, also performed a hydrographic study to determine flushing patterns for Lake Isleworth in the vicinity of the proposed boat ramp. Dr. Echternacht testified that, without good flushing, continuous loads of pollutants will build in the water body, lowering water quality. “Flushing” is the time required to reduce the concentration of a “conservative” pollutant to ten percent of its original concentration. A conservative pollutant is one that does not erode, decay, or go through any biological update process. Dr. Echternacht testified that standard engineering practice in Florida is to assume that a flushing time in excess of four days will result in the accumulation of materials. Section 4.2.4.3 of the Basis of Review states that a four day flushing time is “desirable” for docking facilities. The project at issue is not a "docking facility" as that term is used in Section 4.2.4.3, hence there is no requirement or preference in law for a four-day flushing period. Dr. Echternacht’s study concluded that the minimum flushing time for the proposed boat ramp on Lake Isleworth will be 26 days. Dr. Echternacht’s study was limited to a strict one- dimensional appraisal of the physics of Lake Isleworth. Dr. Echternacht professed no expertise in chemistry, and he did not take into account the chemical properties of the pollutants at issue in this proceeding. He assumed that the pollutants would be “conservative,” when in fact petroleum constituents are volatile, and will disappear through volatilization, adsorption, biodegradation, and photolysis. Petitioners failed to establish any connection between Dr. Echternacht’s flushing analysis and the Mote Marine study on PAHs. Dr. Echternacht’s analysis is thus of little practical significance, because no evidence was adduced to show that a 26-day flushing time will result in the accumulation of PAHs and a degradation of water quality, when the PAHs are introduced in the nanogram amounts reported by Mote Marine. The Lake Down ramp has been heavily used by the public for many years, directly adjacent to a reasonably busy road and without any surface water management system, and still the only traces of naphthalene found by any laboratory were measured in nanograms, with no indication that these pollutants will accumulate when introduced in those trace amounts. In summary, the evidence regarding naphthalene concentrations is insufficient to establish that the proposed R.D. Keene ramp will have any adverse effect on the water quality of Lake Isleworth specifically or the Butler Chain generally as regards petroleum contamination. TURBIDITY At the same time they collected water samples regarding PAHs, both Orange County and Petitioners collected turbidity samples. Turbidity is a means of quantifying particular matter in water that absorbs light or otherwise keeps light from passing through the water. It may have natural causes, such as phytoplankton cells or erosion after a storm, or it may be caused by human activity in or adjacent to water bodies. Turbidity is measured in nephelmetric turbidity units, or “NTUs.” The historical water quality data shows a turbidity range of 0.3 NTUs to 2.2 NTUs for Lake Isleworth. These are low levels of turbidity, indicating very clear water in Lake Isleworth. Dr. Durbin testified that natural turbidities can run into the hundreds or even thousands of NTUs, depending on what is happening in the watershed, and that turbidity is not considered a problem until it reaches levels at which there is some effect on the organisms that live in the system. Both Dr. Durbin and Ms. Jennings testified that, in assessing measurements in NTUs, the numbers to the right of the decimal are unreliable; in other words, a measurement of 2.0 NTUs should be considered as virtually identical to a measurement of 2.40 or 2.80 NTUs. In the period from October 14 through October 20, 1997, Orange County took turbidity samples from Lake Down (east edge, center, and boat ramp area), Lake Isleworth (west edge, east edge, and center), Lake Sheen (west edge, center, and boat ramp area), and Lake Conway (east edge, center, and boat ramp area). Seven samples were taken at each location, making a total of 84 turbidity samples. The highest individual measurement was 5.40 NTUs, measured at the Lake Down boat ramp on October 15. This is itself a low level. Dr. Durbin testified that no concerns are raised until turbidity measurements reach 30 NTUs, and that short-term measurements in the hundreds or even thousands of NTUs may cause no harm to the biota of a system. Further, in fewer than 24 hours this measurement of 5.40 NTUs had settled out to a measurement of 1.60 NTUs. None of the other 83 measurements even reached the level of 2.0 NTUs, all within the historical background turbidity range for the Butler Chain of Lakes. No increase in turbidity can be traced to boating activity in the October 1997 sampling. The samplers’ field notes indicate whether and how much boating activity was occurring as the samples were being taken, and no causal connection can be drawn between boating activity and turbidity. Orange County EPD took further turbidity samples on January 23, 1998. These samples were taken in the Wauseon Bay canal, and were an effort by Orange County to deliberately follow in the wake of boats and obtain the maximum possible amount of turbidity. None of the 8 measurements taken in this sampling showed turbidity in excess of the background turbidity, considering Ms. Jennings undisputed testimony that NTUs may be reliably measured only in whole numbers. The measurements taken in the wake of boats ranged from 1.18 NTUs to 1.71 NTUs, as compared with background measurements ranging from 1.05 NTUs to 1.13 NTUs. Phoenix Environmental, in conjunction with Mote Marine, took turbidity samples at the Lake Down boat ramp during the Labor Day weekend of 1995. These samples indicated background turbidity from 1.2 NTUs to 2.5 NTUs, and showed turbidity spiking to levels as high as 29.0 NTUs during extensive launching activity, particularly when the boat operators used the “power loading” technique discussed above. “Power loading” will be prohibited at the proposed R.D. Keene ramp. Further, the Tedder system would minimize turbidity even if boat operators violated the prohibition, because it would eliminate prop dredging directly on the lake bottom. As notable as the turbidity spikes in the Phoenix/Mote samples is the rapidity with which the turbidity diminished. The aforementioned measurement of 29.0 NTUs had diminished to 2.8 NTUs within eight minutes. This is consistent with the testimony of Ms. Jennings that the nature of the sediments in the Butler Chain is such that turbidity settles out very quickly. Michael Henry, a senior chemist at Mote Marine, concurred that three minutes is enough time for boat ramp sediments to clear on Lake Down. The turbidity sampling by Phoenix/Mote over the Labor Day weekend of 1995 was not conducted with an approved quality assurance and control plan. Mr. Armstrong thus made the decision that further turbidity sampling should be done, using the proper protocols. The second turbidity sampling by Mote Marine, performed on October 26, 1997, and corrected on February 13, 1998, showed values much closer to those found in the Orange County sampling. The highest properly recorded value was a reading of 6.54 NTUs at the Lake Down boat ramp, and this value settled to 1.5 NTUs within eight minutes. As to this second Mote Marine study, Orange County contends that Mote Marine used bottles for taking samples that were not laboratory cleaned, did not properly calibrate the equipment, used a blank test sample which their records indicated had expired, and improperly influenced the results of the sampling by wading out to the sample area. None of these contentions is supported by the evidence. Mote Marine ran out of laboratory cleaned bottles before it had completed sampling, and thus was required to field clean and reuse 15 bottles. The weight of the evidence is that Mote Marine properly field cleaned those bottles in accordance with the section of its filed QAP dealing with cleaning procedures for equipment not being used for trace analyses. Orange County’s criticisms might have been well taken had Mote Marine been collecting samples for naphthalene testing, but not for collection of turbidity samples. Mote Marine’s turbidity meter was bench calibrated by a senior chemist at Mote Marine about four days prior to the actual testing. Continuing calibration verification (“CCV”) was performed in the field. Mr. Henry testified that the meter was performing perfectly, and that it is acceptable practice to use a meter over several days without a bench calibration, provided it has not malfunctioned during a CCV. The weight of the evidence supports a finding that Mote Marine properly calibrated its turbidity meter. In calibrating the meter, the senior chemist employs a formazin standard, which is diluted to a specific concentration, placed in the meter and read, generating a calibration curve to which the rest of the unknown samples are calibrated. The calibration was performed on October 23, 1997, but the report prepared by the chemist indicates that two of the formazin standard dilutions used had expiration dates of April 23, 1997. Orange County contends that the use of these apparently expired formazin standards compromised the calibration and rendered unreliable the turbidity sampling conducted by Mote Marine. Mr. Henry testified that the formazin standard in question was purchased and received via express delivery on October 23, 1997, the day the calibration was conducted. The chemist performed the dilutions, which at the levels in question had a six month expiration date. Thus, these dilutions would have had an expiration date of April 23, 1998. Mr. Henry testified that the chemist simply made an error in writing down “4/23/97” rather than the correct date of “4/23/98.” Mr. Henry’s explanation is plausible and is accepted. Mote Marine did not use expired calibration blanks. Mr. Henry testified that the sampling was accomplished by wading into the water to about shin height, opening the lid to the sample bottle, stepping forward, rinsing the bottle, stepping forward again, then collecting the sample. Mr. Henry stated that this was an acceptable procedure. His presence in the water did not itself cause turbidity because sediments do not kick straight up from the bottom, and his reaching out to collect the sample eliminated any potential for collecting samples influenced by his presence. Ms. Jennings correctly pointed out that the better sampling method would involve standing on shore or in a boat and using an extension pole to take the sample, eliminating any remote possibility of taking a sample tainted by sampler-caused turbidity. However, the weight of the evidence, including the essential similarity of results for all the reliably conducted turbidity samplings introduced in this case, is that the method used by Mr. Henry did not influence the results of the October 1997 sampling conducted by Mote Marine. However, Petitioners failed to establish that the minor and very short-term elevations in turbidity found around the Lake Down boat ramp constituted a degradation of water quality, or would be repeated at the proposed R.D. Keene boat ramp. There are many distinctions between the existing Lake Down ramp and the proposed R.D. Keene ramp. The Lake Down ramp has no surface water management system. The storm water runoff from the adjacent Conway- Windermere Road and from the boat ramp itself flows directly into Lake Down in the vicinity of the boat ramp. In contrast, the proposed R.D. Keene boat ramp will provide dry retention for up to a 25-year, 24-hour storm event, so that unfiltered storm water will not reach the lake system. The Lake Down ramp has no accessory dock, which can reduce turbidity caused by boaters stirring up the bottom when climbing into the boat. The proposed R.D. Keene facility will have such a dock. The Lake Down ramp does not have a concrete ramp extending beneath the launching point to minimize dredging the bottom. The proposed R.D. Keene facility will have such an extended concrete ramp. At the Lake Down ramp, boaters must moor their boats along the shoreline while taking their vehicles and trailers to the parking lot. The proposed R.D. Keene facility will have a queuing system to prevent the erosion and turbidity caused by shoreline mooring, which will be prohibited. There is no prohibition on power loading at the Lake Down ramp, which also is not deep enough to allow boats to float easily on and off their trailers. Power loading will be prohibited at the proposed R.D. Keene ramp, and in any event will not be necessary because the depth of the water and the design of the ramp will enable boats to float on and off their trailers. In conclusion, it is found that none of the samplings taken by any of the parties in this proceeding establishes that the water quality of Lake Isleworth specifically or of the Butler Chain generally will be degraded or lessened by turbidity caused by boating activity around the proposed R.D. Keene boat ramp. SECONDARY AND CUMULATIVE IMPACTS Based on the Operational Plan, the design, the water quality sampling and modeling, the District determined that there will be no adverse secondary impacts from the proposed boat ramp or associated activity. After considering all existing boat ramps, marinas and other projects on the Butler Chain of Lakes, the District concluded that the proposed R.D. Keene boat ramp will not have an accumulation of impacts and pollutants in its home lake system and does not have the potential to contribute any cumulative impacts throughout the Butler Chain of Lakes. At the R.D. Keene Park, Orange County owns 1,780 feet of shoreline. Existing rules provide an exemption that would allow one boat dock for every 65 feet of shoreline, meaning that up to 27 exempt docks could be placed along this 1,780 feet of shoreline if it were in private hands and not subject to the conservation easement that is being granted by Orange County. 166. The water quality sampling performed in this case demonstrated that existing projects and activities have not resulted in an accumulation of impacts to the Butler Chain of Lakes. The historic water quality data demonstrate there have been no major changes in water quality over the 10-year period of record and that the trend is, if anything, toward improved water quality. The water quality is excellent and has maintained its superior quality since 1983, even though residential development and boat usage on the Butler Chain of Lakes has steadily increased over the last ten years. There is no boat ramp currently located at the property owned by Orange County on Lake Sheen. The Lake Sheen site has three homes and two docks on it at present. The District has no applications pending for similar projects that would be considered as part of the cumulative impact review. No applications for a boat ramp at Lake Sheen have been submitted by Orange County nor is there a boat ramp currently under construction at that site. No applications for a public boat ramp, other than the one at issue in this proceeding, have been submitted to the District by Orange County. The east side of the Butler Chain of Lakes is fully developed. There is no evidence of any Development of Regional Impact that would include a boat ramp for the west portion of the Chain. The zoning and land use designations of the property owned by Orange County on Lake Sheen are rural country estate on part of the property and low density residential on the other part of the property. There is no evidence that the Lake Sheen site is under review, vested or approved as a Development of Regional Impact. PUBLIC INTEREST TEST As further described in the Conclusions of Law below, an applicant for a project located in an OFW must provide reasonable assurances that the project is clearly in the public interest. The public interest test weighs and balances seven factors, as listed in the subheadings below. Extensive testimony was elicited from several expert witnesses who offered their applications of the public interest test. Anna Hacha-Long, Manager of Orange County EPD, and Pamela Thomas, Senior Environmental Specialist of Orange County EPD, both concluded that the proposed project was clearly in the public interest. Dale Mudrak, Orange County’s construction, design and project management expert, concluded that the proposed project is clearly in the public interest. Dr. Douglas Durbin, Orange County’s expert in limnology, ecology, water quality and permitting, concluded that the proposed project is clearly in the public interest. Robert Robbins, Director of the Natural Resource Management Division of the District, concluded on the District’s behalf that the proposed project is clearly in the public interest. The only expert who concluded that the project is not in the public interest was Randall Armstrong of Phoenix Environmental. PUBLIC HEALTH, SAFETY, WELFARE OR PROPERTY OF OTHERS The parties stipulated that the proposed boat ramp facility will not adversely affect the public health. The proposed ramp will improve public safety as follows: The proposed ramp, centrally located in the Butler Chain, will provide quicker access for emergency rescue in the case of injuries to boaters or skiers. The proposed ramp should somewhat alleviate the traffic concern at the Lake Down ramp by shifting some traffic away from the Lake Down ramp. The proposed ramp will enhance public welfare by: increasing the recreational opportunities to the Butler Chain of Lakes; allowing access to the Butler Chain of Lakes by handicapped and disabled individuals; and the clean up of diesel fuel contamination that Orange County has already performed on the site. Orange County EPD performs extensive aquatic plant management activities on the Butler Chain, including spraying for harmful exotic plants. If Orange County were to lose access to the Butler Chain -- a real possibility should the proposed project not be built and the lease for parking at the Lake Down ramp expire -- it could also lose public grant money for aquatic plant management. The proposed project will not impact the property of others because: Orange County owns the land on which the ramp will be built, and the State of Florida owns the water into which the boats will be launched. Orange County EPD has received no complaints from property owners related to the existing use of the Butler Chain of Lakes by boaters. No-wake zone regulations prohibit high speed boating activities within 100 feet of the shoreline, protecting boaters and the property of adjacent landowners. The area is extensively regulated by both the Butler Patrol and full-time Orange County EPD staff. The canals connecting the lakes are wide enough that there will be no safety problems related to boating through the canals. CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS Orange County is providing 0.56 acres of mitigation by way of wetland creation, which offsets not only the 0.07 acres of direct wetland impact from construction and 0.07 acres of secondary impacts caused by removal of littoral zone vegetation, but also the District’s doubling of the usual two-to-one mitigation ratio for wetlands impacts. The District doubled the usual mitigation ratio as a conservative measure to account for the slight possibility of boats disturbing the area in the vicinity of the boat ramp. The parties have stipulated that the proposed boat ramp facility will not adversely affect the conservation of endangered species or their habitats, will not affect the conservation of threatened species or their habitats, and will not adversely impact gopher tortoises. The proposed project benefits the conservation of fish and wildlife or their habitats. Some habitat will be impacted by the construction of the boat ramp, but Orange County is providing mitigation many times larger than the area being developed, and is placing 1.61 acres of wetlands under a conservation easement to ensure that the land cannot be altered from its natural state. A total of 2.90 acres of wetland preservation, wetland creation, and upland buffer areas will be placed under conservation easement. Thus, habitat will enjoy a net enhancement from the project. Multiple evaluations of plant and animal parameters in the ecosystem led the District reasonably to conclude that the increase in habitat and habitat diversity due to the mitigation and conservation easements will provide net benefits to wildlife. The proposed boat ramp and associated activity will not cause any negative impacts on fish and wildlife and their habitats, except for the unavoidable immediate impacts caused by the footprint of the ramp itself. As described above, these impacts are addressed in Orange County’s mitigation plan. Orange County EPD has not seen a decline in fish populations, nor any fish kills, nor any type of damage due to increased turbidity from natural or man-made causes in the Butler Chain of Lakes. It is reasonable to find that this project is unlikely to lead to such impacts. NAVIGATION OR FLOW OF WATER OR HARMFUL EROSION OR SHOALING The parties have stipulated that the proposed boat ramp and associated activities will not adversely affect the flow of water. There is no evidence of harmful erosion or shoaling from the existing boat traffic, even though the traffic has steadily increased over the years. Orange County EPD has not seen sand bar formation or erosion at first hand, nor has it received complaints about erosion. Orange County has not been required to dredge the canals interconnecting the lakes since the 1980s. The proposed project will not cause harmful erosion or shoaling because the dimensions of the canals are sufficient for boats to pass, and the edges of the canals are well vegetated. Mr. Armstrong's contrary testimony, based on a single visit to the Butler Chain over the past ten years, is not credited. It is reasonable to believe that the ramp will reduce traffic through the canals by providing a public point of access that is more centrally located than the current one at Lake Down. Boaters will be able to enter the Butler Chain at a point nearer their intended destination. At the very least, the flow of boating traffic should be more evenly distributed, as all boats entering the Butler Chain will no longer be forced to proceed through the canals connected to Lake Down. The main cause of harmful erosion on the Butler Chain is residents’ failure to use turbidity or erosion barriers when they pull up aquatic or semi-aquatic plants along the shoreline. This project is thus unrelated to the true causes of turbidity in the Butler Chain. The proposed project is designed and will be managed to minimize the potential for dredging or erosion from boat propellers, as follows: The boat ramp itself is designed to accommodate two boats launching simultaneously. The boat ramp has adjacent docks and structures so that boats can raft to these structures during launching and loading, rather than running into the shoreline or tying to vegetation. The proposed project will also have a 230-foot long queuing system for mooring boats on the west side of the ramp. The queuing system will also act as a barrier to prevent boaters from using the shoreline to access their vehicles. The Operational Plan prohibits power loading and unloading, minimizing the potential for erosion at the ramp. Officer Jeffrey Hudson of the Florida Game and Fresh Water Fish Commission and the Windermere Water and Navigational Control District, regularly patrols the Butler Chain of Lakes. He foresees no navigational problems arising from the placement of the boat ramp, because of the no-wake zones and because people will be launching from a cove that gives them a good view of traffic in the lake before they enter. Because of the size of the Butler Chain of Lakes, there is a natural timing factor that will regulate the sequence of boaters returning to the proposed ramp. Even if a large storm arose suddenly, all the boats in the water would not arrive at the proposed R.D. Keene ramp at once because of the differing amounts of time it would take boats to arrive from their dispersed positions on the Butler Chain. The only expert witness who testified that the third factor weighed negatively against the public interest was Mr. Armstrong of Phoenix Environmental. Mr. Armstrong’s testimony that the connecting canals are too narrow for boats to comfortably pass each other is rejected as unsupported by the weight of the documentary and other testimonial evidence. Mr. Armstrong’s characterization of the potential for increased boating traffic in the southern portion of the Butler Chain as a negative factor is likewise rejected. Providing increased recreational access for the general public is one of the chief positive aspects of this project. Mr. Armstrong also expressed concern that the ramp’s location on a small, pass-through lake, and its placement therein, would mean that boats coming into or away from the ramp would be crossing directly into the path of boats passing through. Officer Hudson’s contrary testimony that the placement of the new ramp will not cause navigational or safety problems is accepted as based on superior knowledge of the Butler Chain of Lakes and greater expertise in boating and navigational safety. Mr. Armstrong testified that boat wakes would cause erosion. He testified that on his visit to the Butler Chain, he saw banks in canals undercut and roots exposed in areas where the vegetation was not heavy. As noted above, Mr. Armstrong has been on the Butler Chain once in the past ten years. Pamela Thomas of Orange County EPD, who has spent hundreds of hours studying the Butler Chain and regularly boats on the lakes in connection with her job, testified that the main cause of erosion is the clearing of vegetation by residents who wish to have beaches. Boat wakes cause few problems, particularly in the canals, because of the no-wake zones and their strict enforcement. Ms. Thomas’ testimony is accepted as based on superior knowledge and expertise regarding erosion in the Butler Chain of Lakes. FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY The January 1984 DEP report recommending designation of the Butler Chain of Lakes as an OFW cited the need for increased public access to the Butler Chain. The report specifically noted the fact that there was only one public boat ramp on the Butler Chain and that this ramp had limited parking. This situation has remained unchanged in the intervening 14 years. The Lake Down ramp remains the only point of access for the general public to the Butler Chain of Lakes, and provides only limited access to the entire chain during the periods when Lake Down is waterlocked by the low bridge over the Wauseon Bay canal. The proposed boat ramp will enhance the fishing and recreational value by providing increased and easier public access to the Butler Chain of Lakes for fishing and recreational purposes. Even though "marine” productivity is typically applied to saltwater rather than freshwater systems, the proposed project will actually enhance productivity due to the amount of mitigation. Mr. Armstrong of Phoenix Environmental contended that this factor should be viewed negatively because there will be less opportunity for fishing in the cove immediately adjacent to the proposed boat ramp, due to the launching and loading activity. It may be true that providing greater public access will inconvenience those who already have access to the Butler Chain by other means, but it is implausible to suggest that improved public access be considered a negative aspect of the proposed project. TEMPORARY OR PERMANENT The proposed boat ramp facility will be permanent. The increased mitigation, conservation easement and public access are also permanent. HISTORICAL AND ARCHAEOLOGICAL RESOURCES The proposed boat ramp facility will neither adversely affect nor enhance significant historical and archaeological resources. CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY The proposed ramp will be placed in a section of the lake shoreline that was previously dredged out as a canal. Thus, Orange County has chosen an area already impacted by development rather than an environmentally pristine location for the boat ramp. The site was originally used as a citrus grove and will be enhanced by the wetlands creation. When Orange County acquired the site, it had a pump house with a leaking diesel fuel pump that was contaminating both the soil and Lake Isleworth. Orange County performed environmental remediation on the site preparatory to installing the proposed boat ramp. The removal of 21 tons of contaminated soil is a positive factor in terms of fish and wildlife. Petitioners attempted to minimize this aspect by arguing that Orange County, as the owner of the contaminated property, would have been required by law to perform the remediation regardless of whether the boat ramp is ever built. This argument is rejected, because the weight of the evidence is that Orange County purchased this property for the express purpose of placing a park and boat ramp on it. Orange County’s ownership of the property, and the consequent duty to remediate the contamination, are inextricably linked with Orange County’s plans to build a boat ramp on the site. The mitigation associated with the proposed ramp will increase wetland habitat and thus improve the ecological value of the site, another positive factor under this heading. In summary, every judgmental factor in the public interest test weighs in favor of a finding that this project is clearly in the public interest. ALTERNATIVE SITES Subject to the relevance objections of the District and Orange County, on which a ruling was withheld at the time of hearing, Petitioners offered evidence regarding Orange County’s consideration of boat ramp sites other than the R.D. Keene site. Orange County owns property on Lake Sheen, a large lake on the southern end of the Butler Chain of Lakes. Orange County intends to construct a boat ramp on this property, as part of its strategy to enhance public access to the Butler Chain by way of offering public ramps in the northern, central, and southern portions of the lake system. The District is and has been aware that Orange County eventually plans to build a boat ramp on Lake Sheen, though the formal permitting process has yet to commence. Orange County EPD has estimated the cost of developing the R.D. Keene boat ramp at $1,068,000, and the cost of developing the Lake Sheen ramp at $560,000. Orange County has prepared a scope of services for the design of the proposed Lake Sheen ramp, selected a design firm, issued a notice to proceed with design. The design firm is currently designing the Lake Sheen ramp. Petitioners assert, and the District admits, that the District did not consider the planned Lake Sheen ramp as an alternative to the R.D. Keene site. For reasons explained in the Conclusions of Law below, the District was not required to consider alternatives to the proposed R.D. Keene ramp. The evidence presented by Petitioners regarding the planned Lake Sheen ramp is irrelevant insofar as Petitioners seek to establish an obligation on the part of the District to review alternative project sites to the one proposed by Orange County and/or to require Orange County to modify its ERP application to propose a different site.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Governing Board of the South Florida Water Management District enter a Final Order issuing Environmental Resource Permit No. 940519-1 to Orange County, subject to the general and special conditions set forth in the District's Staff Review Summaries. DONE AND ENTERED this 29th day of June, 1998, in Tallahassee, Leon County, Florida. COPIES FURNISHED: R. Duke Woodson, Esquire Mary A. Doty, Esquire Foley & Lardner Post Office Box 2193 Orlando, Florida 32802-2193 Linda Brehmer Lanosa, Esquire Assistant County Attorney LAWRENCE P. STEVENSON 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 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1998. Orange County Attorney’s Office 315 East Robinson Street, Suite 650 Orlando, Florida 32801 William Palmer, Esquire Palmer & Palmer, P.A. 3117-B Edgewater Drive Orlando, Florida 32804 Julie Kendig-Schrader, Esquire John Fumero, Esquire Douglas MacLaughlin, Esquire Office of Counsel, South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406
The Issue The issue to determine in this matter is whether Respondent Department of Environmental Protection (DEP) properly issued its proposed verification of an Environmental Resource Permit (ERP) exemption, dated March 23, 2018, for the installation of nine pilings off of Respondent Larry Lynn’s residential property, in the direction of Petitioner MarineMax, Inc.’s commercial property (MarineMax), pursuant to section 373.406(6), Florida Statutes, commonly known as the “de minimus” exemption.
Findings Of Fact Mr. Lynn has owned the real property located at 111 Placid Drive, Fort Myers, Florida, since 1994. Mr. Lynn’s residential property is a corner lot that fronts a canal on two of the four sides of his property, and also contains his home. MarineMax is a national boat dealer with approximately 65 locations throughout the United States and the British Virgin Islands. MarineMax has approximately 16 locations in Florida. MarineMax, through subsidiary companies, acquired the property at 14030 McGregor Boulevard, Fort Myers, Florida, in December 2014 (MarineMax Property). Prior to MarineMax’s acquisition, this property had been an active marina for more than 30 years. MarineMax continues to operate this property as a marina. The MarineMax Property is a 26-acre contiguous parcel that runs north-south and that is surrounded by canals and a larger waterway that connects to the Gulf of Mexico. The “northern” parcel of the MarineMax Property is surrounded by two canals and the larger waterway that connects to the Gulf of Mexico. The “southern” parcel is a separate peninsula that, while contiguous to the northern parcel, is surrounded by a canal that it shares with the northern parcel, along with another canal that separates it from residential properties. Mr. Lynn’s property is located directly south of the northern parcel of the MarineMax Property, and the canal that runs east-west. As his property is a corner lot, it also fronts an eastern canal that is directly across from the southern parcel of the MarineMax Property. The eastern canal described above also serves as a border between MarineMax and a residential community that includes Mr. Lynn’s residential property. Mr. Lynn has moored a boat to an existing dock on the eastern canal described in paragraphs 5 and 6 for many years. MarineMax holds ERPs for the business it conducts at its MarineMax Property, including the canal between the northern parcel of the MarineMax Property and Mr. Lynn’s property. For example, these ERPs permit: (a) the docking of boats up to 85 feet in length with a 23-foot beam; (b) boat slips up to 70 feet in length; (c) up to 480 boats on the MarineMax Property; and (d) a boatlift and boat storage barn (located on the southern parcel). The MarineMax Property also contains a fueling facility that is available for internal and public use. It is located on the northern parcel of the MarineMax Property, directly across the east-west canal from Mr. Lynn’s property. The prior owner of the marina constructed this fueling facility prior to 2003. Request for Verification of Exemption from an ERP Mr. Lynn testified that after MarineMax took over the property from the prior owner, he noticed larger boats moving through the canal that separates his property from the MarineMax Property. Concerned about the potential impact to his property, including his personal boat, Mr. Lynn contracted with Hickox Brothers Marine, Inc. (Hickox), to erect pilings off of his property in this canal.2/ On March 8, 2018, Hickox, on behalf of Mr. Lynn, submitted electronically a Request for Verification of Exemption from an Environmental Resource Permit to DEP. The “Project Description” stated, “INSTALL NINE 10 INCH DIAMETER PILINGS AS PER ATTACHED DRAWING FOR SAFETY OF HOMEOWNER’S BOAT.” The attached drawing for this project depicted the installation of these nine pilings 16 and 1/2 feet from Mr. Lynn’s seawall, spaced 15 feet apart. On March 23, 2018, DEP approved Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit, stating that the activity, as proposed, was exempt under section 373.406(6) from the need to obtain a regulatory permit under part IV of chapter 373. The Request for Verification of Exemption from an Environmental Resource Permit further stated: This determination is made because the activity, in consideration of its type, size, nature, location, use and operation, is expected to have only minimal or insignificant or cumulative adverse impacts on the water resources. The Request for Verification of Exemption from an Environmental Resource Permit further stated that DEP did not require further authorization under chapter 253, Florida Statutes, to engage in proprietary review of the activity because it was not to take place on sovereign submerged lands. The Request for Verification of Exemption from an Environmental Resource Permit also stated that DEP approved an authorization pursuant to the State Programmatic General Permit V, which precluded the need for Mr. Lynn to seek a separate permit from the U.S. Army Corps of Engineers. Megan Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that DEP’s granting of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resource Permit was routine, and that his Request for Verification of Exemption from an Environmental Resource Permit met the statutory criteria. After DEP granted the Request for Verification of Exemption from an Environmental Resource Permit, Hickox, on behalf of Mr. Lynn, installed the nine pilings in the canal at various distances approximately 19 feet from Mr. Lynn’s seawall and in the canal that divides Mr. Lynn’s property from the MarineMax Property (and the fueling facility).3/ MarineMax timely challenged DEP’s Request for Verification of Exemption from an Environmental Resource Permit. Impact on Water Resources MarineMax presented the testimony of Sam Lowrey, its corporate vice president of real estate, who had detailed knowledge of the layout of the MarineMax Property. Mr. Lowrey testified that the canal between the MarineMax Property and Mr. Lynn’s residential property is active with boating activity, noting that MarineMax’s ERP allows up to 480 vessels on-site. With the installation of the pilings, he testified that he was concerned that MarineMax customers “will be uncomfortable navigating their boats through this portion of the canal[,]” which would be detrimental to MarineMax’s business. Mr. Lowery testified that he had no personal knowledge of whether MarineMax has lost any business since the installation of the pilings. MarineMax also presented the testimony of Captain Ralph S. Robinson III, who the undersigned accepted as an expert in marine navigation, without objection.4/ Captain Robinson has been a boat captain, licensed by the U.S. Coast Guard, since 1991. He has extensive experience captaining a variety of vessels throughout the United States and the Bahamas. He is an independent contractor and works for MarineMax and other marine businesses. Captain Robinson is also a retired law enforcement officer. Captain Robinson testified that he was familiar with the waterways surrounding the MarineMax Property, as he has captained boats in those waterways several times a month for the past 15 years. Captain Robinson testified that he has observed a number of boats with varying lengths and beams navigate these waterways, and particularly, the canal between the MarineMax Property and Mr. Lynn’s property. Captain Robinson estimated that the beam of these boats range from eight to 22 feet. He also testified that the most common boats have a beam between eight and 10 feet. Captain Robinson’s first experience with the pilings in the canal occurred in April 2018, when he was captaining a 42- foot boat through the canal. He testified that an 85-foot boat was fueling on the fuel dock, and when he cleared the fueling boat and pilings, he had approximately one and a half feet on each side of his boat. He testified that “[i]t was very concerning.” Captain Robinson testified that since this experience in April 2018, he calls ahead to MarineMax to determine the number and size of boats in the portion of this canal that contains the pilings. On behalf of MarineMax, in December 2018, Captain Robinson directed the recording of himself captaining a 59-foot Sea Ray boat with an approximately 15- to 16-foot beam through the canal separating the MarineMax Property and Mr. Lynn’s residential property, with another boat of the same size parked at MarineMax’s fueling dock.5/ Captain Robinson testified that these two boats were typical of the boats that he would operate at the MarineMax Property and surrounding waterway. The video demonstration, and Captain Robinson’s commentary, showed that when he passed through the canal between the fuel dock (with the boat docked) and Mr. Lynn’s residential property (with the pilings), there was approximately four to five feet on either side of his boat. Captain Robinson stated: This is not an ideal situation for a boat operator. Yes, it can be done. Should it be done? Um, I wasn’t happy or comfortable in this depiction. Captain Robinson testified that his “personal comfort zone” of distance between a boat he captains and obstacles in the water is five or six feet. Ultimately, Captain Robinson testified that he believed the pilings in the canal between the MarineMax Property and Mr. Lynn’s property were a “navigational hazard.” Specifically, Captain Robinson stated: Q: In your expert opinion, has Mr. Lynn’s pilings had more than a minimal, or insignificant impact on navigation in the canal, in which they are placed? A: I believe they’re a navigational hazard. The impact, to me personally, and I’m sure there’s other yacht captains that move their boat through there, or a yacht owner, not a licensed captain, um, that has to take a different approach in their operation and diligence, um, taking due care that they can safely go through. It’s been an impact. Q: Is a navigational hazard a higher standard for you as a boat captain, being more than minimal or insignificant? A: Yes. A navigational hazard is, in my opinion, something that its position could be a low bridge or something hanging off a bridge, a bridge being painted, it could be a marker, it could be a sandbar, anything that is going to cause harm to a boat by its position of normal operation that would cause injury to your boat, or harm an occupant or driver of that boat. Ms. Mills, the environmental specialist and program administrator with DEP’s South District Office, testified that after MarineMax filed the instant Petition, she and another DEP employee visited Mr. Lynn’s residential property. Although not qualified as an expert in marine navigation, Ms. Mills testified that, even after observing the placement of the pilings and the boating activity the day she visited, the pilings qualified for an exemption from the ERP.6/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, the undersigned recommends that DEP enter a final order dismissing MarineMax’s challenge to the determination that Mr. Lynn’s pilings qualify for an exemption from an environmental resources permit pursuant to its March 23, 2018, approval of Mr. Lynn’s Request for Verification of Exemption from an Environmental Resources Permit. DONE AND ENTERED this 28th day of March, 2019, in Tallahassee, Leon County, Florida. S ROBERT J. TELFER III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 2019.
Findings Of Fact On April 28, 1987, Nassau County applied to the Department of Environmental Regulation for a dredge and fill permit to construct a public boat ramp, dock, and unpaved parking lot within the landward extent of the St. Mary's River. The St. Mary's River is a class III water of the state, and is not an "outstanding" Florida water. The boat ramp is designed to be 12 feet wide and 66 feet long. The dock is designed to be 60 feet by 4 feet. The unpaved parking lot is designed to be 100 feet by 80 feet. The relationship of these projects is shown by the drawing that is R. Ex. 4. The jurisdiction of the Department of Environmental Regulation is determined by the dominant plant species on the land. Where there are no plant species, jurisdiction extends to the mean high waterline. With respect to the proposed boat ramp, dock, and parking lot, the DER's jurisdiction extends to the area above the blue line on R. Ex. 4. Thus, the DER jurisdiction extends to a small portion of the northwest corner of the parking lot, most of the dock (a 20 foot section of the dock ramp is excluded), and 44 feet of the end of the boat ramp that extends into the St. Mary's River. The small portion of the parking lot is not a deep swamp, but is a transitional wetland. This portion of the parking lot appears to be about 50 square feet of the total of 8,000 square feet of the entire parking lot, judging from the dimensions of the ramp and the dock on R. Ex. 4. The boat ramp will require the removal of 80 cubic yards of soil. The ramp is to be constructed at a place alone the river where there is no wetland vegetation of significance, and excavation will not remove any natural filtering vegetation of importance. At this point, the bank of the river is steep and the river is about 200 foot wide at this point, and has a relatively strong flow of water. The material to be excavated is fine. Any turbidity caused by excavation should be soon dissipated in the river. Physical barriers constructed during the excavation should adequately protect against excess turbidity. Special condition 3 of the proposed permit requires that turbidity controls be used throughout the project to contain any turbidity generated that exceeds state water quality standards. R. Ex. 3. The dock involves the placement of pilings on the river bottom along the shoreline of the river. If the dock were to be a private dock, it would be exempt from the requirement of a DER permit. The dock will not destroy wildlife habitat or cause the loss of important wetland. The flow of water would continue through and around the pilings of the dock and across the end of the ramp. The project would not change the natural flow of the river, cause erosion, or be a hazard to navigation. The project will not harm marine productivity. The project will not adversely affect public health, safety, or welfare. There are no significant historical or archeological resources affected by the project. The project will enhance fishing and recreational values by providing access to fishermen and boaters to the river. A small portion of the parking as shown on R. Ex. 4 will result in the destruction of a transitional wetland, but the portion is not significant in comparison with the remaining wetland. The alteration to the wetland is lessened by the fact that the parking lot will be unpaved. The Petitioners presented evidence as to alternative sites that may be available to the County for a boat ramp, and evidence that the proposed public boat ramp may harm the adjacent or nearby property of the Petitioners due to noise and litter from public use. There is no evidence that the project will have an environmental impact upon the property of the Petitioners.
Recommendation For these reasons, it is recommended that the Department of Environmental Regulation enter its final order issuing permit number 451193582 to Nassau County with the specific conditions contained in the intent to issue dated June 26, 1987. DONE and ENTERED this 11th day of March, 1988. WILLIAM C. SHERRILL, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3838 The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties. Findings of fact proposed by the Petitioner: 5 and the second sentence of 6. These proposed findings are issues of law, not fact. Findings of fact proposed by the Respondent: None proposed. COPIES FURNISHED: Gordon E. Hart, Esquire 205 Center Street Fernandina Beach, Fla. 32304 William H. Congdon, Esquire Assistant General Counsel Office of General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Michael S. Mullin, Esquire Nassau County Attorney Post Office Box 1010 Fernandina Beach, Florida 32304 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson, Esquire General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues to be determined in this proceeding are whether Respondent Prospect Marathon Coquina, LLC (PMC), is entitled to an environmental resource permit for the proposed expansion of a docking facility, and whether PMC is entitled to a modified sovereignty submerged land lease for the proposed project.
Findings Of Fact The Parties With the exception of Elizabeth Schuh, all Petitioners live in the Driftwood neighborhood, which is located across Big Bayou from the proposed project. All Petitioners use Big Bayou for various recreational purposes, including swimming and boating. Several Petitioners also use Big Bayou for nature observation. Petitioner Peter Pav owns waterfront property on Big Bayou. Respondents do not dispute Petitioners’ standing. The Department is charged with the responsibility to regulate construction activities in waters of the state. The Department has also been delegated authority from the Trustees of the Internal Improvement Trust Fund (Trustees) to process applications for submerged land leases for structures and activities that will preempt the use of sovereign submerged lands. PMC is a Florida limited liability corporation that owns 2,786 linear feet of upland shoreline contiguous to the state-owned submerged lands of Big Bayou. PMC is the developer of the multi-family residential condominium development on Coquina Key that the proposed project would serve, known as Coquina Key North. The Affected Waterbody Big Bayou is near the southern end of the St. Petersburg peninsula. The mouth of the bayou opens to Tampa Bay. Big Bayou is part of the Pinellas County Aquatic Preserve, which includes most of the coastal waters of Pinellas County. Like all aquatic preserves in Florida, the Pinellas County Aquatic Preserve is also designated as an Outstanding Florida Water.1 Florida Administrative Code Rule 18-20.001 states that the aquatic preserves in Part II of Chapter 258 (which include the Pinellas County Aquatic Preserve) “were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations.” The term “essentially natural condition” is defined as “those functions which support the continued existence or encourage the restoration of the diverse population of indigenous life forms and habitats to the extent they existed prior to the significant development adjacent to and within the preserve.” Fla. Admin. Code R. 18-20.003(24). In the 1960s and 1970s, development activities throughout Tampa Bay caused the loss of about 80 percent of its seagrasses and significant degradation of water quality. The seagrasses and water quality in Big Bayou were also adversely affected by filling and other development activities, including the filling and bulkheading of Coquina Key where the proposed project would be located. In more recent years, the water quality in Big Bayou has improved. Although trash sometimes washes up on the shoreline and one can sometimes see a sheen on the water surface caused by gasoline or oil, the water quality in Big Bayou is generally good, with high dissolved oxygen and low nutrient concentrations. The seagrasses have also recovered to a large extent. A variety of seagrasses grow in Big Bayou, including shoal grass, manatee grass, turtle grass, widgeon grass, and a relatively uncommon species, palm grass. Seagrasses are the foundation for the marine food web. They also serve as a nursery for small fish and invertebrates, stabilize sediment, and improve water quality. Manatees regularly enter and use Big Bayou because it provides good habitat. The manatees in this area are part of the Southwest Florida manatee subpopulation. Based on data collected through 2001, that subpopulation is either stable, or possibly declining. Pinellas County is not one of the 13 Florida counties that were required to develop and implement manatee protection plans. There are two areas of Pinellas County that the Florida Fish and Wildlife Conservation Commission (FWCC) has identified as needing additional manatee protection measures, but Big Bayou is not one of them. The Proposed Project The proposed authorizations would allow PMC to expand an existing multi-family, residential docking facility on the north end of Coquina Key, along an existing seawall and adjacent to the Coquina Key North condominiums that PMC converted from a former apartment complex. The proposed project would add 60 boats slips to the existing 30 boat slips at the project site. The new slips could accommodate boats up to 25 feet in length. PMC would restrict use of the boat slips to Coquina Key North condominium owners. In converting the former apartment complex to condominiums, PMC retained ownership of a strip of land immediately upland of the submerged lands on which the proposed project would be constructed. The ground for Petitioners’ Motion for Summary Order is that the ownership retained by PMS, because it does not include ownership of the upland residences, does not entitle PMS to obtain a submerged land lease for the proposed project. That legal argument is addressed in the Conclusions of Law. Direct Impacts An earlier plan for the proposed project was to place 30 new boat slips on the north side of the existing docks and 30 new slips on the south side. However, to avoid direct impacts to seagrasses, the plan was modified to avoid an area of seagrasses on the south side. The proposed project now would add 38 boat slips on the north side and 22 slips on the south side. The over-water dock structures would be placed waterward of the seagrasses that currently grow along the seawall. The seagrasses adjacent to the proposed project are not likely to be harmed by wave action or turbulence from boating activity around and in the slips because of the distance between the slips and the seagrasses. The proposed authorizations include specific conditions that prohibit numerous activities that could cause adverse water quality impacts at the proposed project site, such as the discharge of trash, human or animal waste, or fuel; fish cleaning stations; boat repair facilities; fueling facilities; hull cleaning, painting or other external boat maintenance; and boat maintenance or repair activities requiring removal of a boat from the water, or removal of major portions of the boat for purposes of routine repair or maintenance on site, except where removal is necessitated by emergency conditions. No liveaboards would be allowed at the proposed project. PMC intends to incorporate these conditions into its agreements with the condominium owners who use the boat slips. Because Big Bayou is an Outstanding Florida Water, PMC is required to provide reasonable assurances that the project will not result in the lowering of existing ambient water quality. Florida Administrative Code Rule 62-4.242(2)(c) defines “existing ambient water quality” as the better water quality of either what existed on the date that the water body was designated an Outstanding Florida Water or what existed in the year prior to the permit application. Because the current water quality is better than it was in 1972 when the Pinellas County Aquatic Preserve was created, the current water quality is the standard to apply in this case. Although some incidental non-compliance with the conditions of the proposed authorizations could occur, such incidental non-compliance would not likely result in significant2 degradation of the existing ambient water quality in Big Bayou. Secondary Impacts – In General Petitioners’ primary concerns with the proposed project are with the secondary impacts that would be caused by increased boating activity in Big Bayou. Petitioners contend that the additional boats using the 60 new boat slips would adversely affect water quality, seagrasses, manatees, and other natural resources. Petitioners also assert that the additional boating activity would cause erosion of the north shoreline of Big Bayou and impair Petitioners’ recreational uses of the bayou. It is reasonable to assume that there would be more boat trips on Big Bayou if the proposed project were built than if it were not built. However, it is impossible to say how many more boat trips would be generated by the proposed project. It cannot be assumed that because there would be 60 more boat slips, there would be 60 more boats on Big Bayou each day, each week, or even each month. Moreover, the number of boats on Big Bayou on any given day fluctuates because it depends not only on the whims of the boat owners who have boat slips in Big Bayou, but also on the whims of the boat owners who anchor their boats in the open waters of Big Bayou, launch their boats from the public boat ramps on Big Bayou, or enter Big Bayou from Tampa Bay or more distant waters. Secondary Impacts - Erosion Petitioners did not present competent evidence to support their claim that the proposed project would cause erosion of the north shoreline of Big Bayou. Secondary Impacts – Water Quality The Department has adopted by reference the Southwest Florida Water Management District’s Basis for Review for Environmental Resource Permits (Basis of Review) to apply to applications for environmental resource permits for projects over which the Department retains permitting authority. For docking facilities, Section 3.2.4.3 of the Basis of Review requires the applicant to provide hydrographic information to demonstrate that the “flushing time” (the time required to reduce the concentration of a pollutant) is sufficiently short to prevent the accumulation of any pollutants to the point of violating water quality standards. PMC’s hydrographic analyses indicate that Big Bayou is well-flushed. The water of the bayou moves a half mile to a mile during a normal tide. The fact that the current water quality in Big Bayou is good indicates that contamination associated with the current level of boating activity in the bayou is not accumulating. Incidental discharges of contaminants from boats using the proposed project would likely be rapidly dispersed and diluted. Petitioners argued that PMC’s hydrographic analyses did not address every part of Big Bayou. The rule requires hydrographic characterization of “the project site and surrounding waters.” As the challengers, Petitioners needed to rebut PMC’s prima facie case regarding the hydrographic characteristics in the bayou with competent evidence showing PMC’s findings were inaccurate, or show that the scope of PMC’s hydrographic analyses did not conform with any reasonable interpretation of the applicable rule. Petitioners presented no such evidence or showing. Some additional, incidental contamination can be expected to occur as a result of the operation of the boats that would use the proposed project. However, PMC provided reasonable assurance that the addition of these contaminants would not significantly degrade the existing ambient water quality of Big Bayou nor cause any other applicable water quality standard to be violated. Secondary Impacts - Seagrasses The maximum water depth at which most seagrasses can grow is between five and six feet because of their need for light. When boaters attempt to cross shallow areas where seagrasses are located, they sometimes damage the grasses with the boat propellers, leaving areas of torn grass and “prop scars,” furrows in the bottom. Even when boat propellers do not touch the bottom, but come close, they can disturb the loose sediments and cause turbidity. It can be especially harmful when boats run aground, because the boater will sometimes grind away at the seagrasses in an attempt to move the boat to deeper water, causing holes 10 or 12 feet in diameter. Different seagrasses recover from such damage at different rates. In some cases, it can take years for a prop scar to become re-vegetated. A 1995 study of prop scars by the Florida Marine Research Institute found that the Tampa Bay area is one of four areas of Florida with the greatest acreage of moderate and severe scarring. There are prop scars visible in the bottom of Big Bayou and Petitioners testified about seeing boats run aground in Big Bayou. The main navigation channel on the north side of Big Bayou ranges in depth from slightly less than 8 feet to over 17 feet. There are channel markers to help boaters find and stay in this channel, but some of the original markers are missing. In addition to the main navigation channel, there is an area along the north side of Coquina Key that is used by the residents living along that shoreline to get to and from Tampa Bay. This second route, which is not marked, is much shallower than the main channel and its use by boaters at low tide is a threat to seagrasses in the area.3 If more boaters in Big Bayou stayed in the main navigational channel, there would be a decreased threat to the seagrasses. However, the evidence shows that boaters often travel out of the main channel, either by inadvertence or to take a shortcut, and cross shallow areas where the seagrasses are located. It was the opinion of David Crewz, a plant ecologist who specializes in seagrasses, that increased boating activity in Big Bayou could decrease the habitat quality of the bayou. He said that one can expect more prop scarring and more turbidity caused by stirring up the bottom sediments. He was most concerned about boats larger than 16 feet in length that do not stay in the marked navigation channel. The 1995 Florida Marine Research Institute study of prop scarring, which Mr. Crewz co-authored, recommended a four- point approach to reduce prop scarring: (1) boater education, (2) channel marking, (3) enforcement, and (4) speed zones. The conditions contained in the proposed authorizations would implement two of the four points recommended by the study. PMC would install informational signs about seagrasses at the proposed project and at Grandview Park so that boaters using the proposed project and boaters using the boat ramp at the park would be less likely to operate their boats in a manner harmful to seagrasses. PMC would replace all missing markers along the main navigation channel. The current distance between some of the channel markers may be causing some boaters to stray from the channel. PMC would mark the location of seagrasses adjacent to the navigation channel. The operation phase of the environmental resource permit would not become effective until the channel markers and seagrass markers have been installed. The proposed educational displays, channel markers, and seagrass markers would probably reduce boat traffic across seagrass areas, but they would not eliminate it. However, because the displays and markers would be viewed by boaters using Big Bayou other than just the 60 boaters who would use the slips at the proposed project, the “net” effect of the proposed project would likely be no significant increase in prop scars or related adverse impacts to seagrasses in Big Bayou due to the proposed project. Therefore, PMC provided reasonable assurance that the proposed project would not result in significant adverse impacts to seagrasses. To go further, however, and contend as PMC does that, even with the addition of 60 boats, the effect of the proposed project would be to significantly reduce the current incidents of prop scarring, boat grounding, and other adverse impacts to seagrasses, is mere speculation without a statistical analysis of boater behavior or other evidence that was not presented in this case. PMC would also limit the use of its boat slips to vessels with a draft that would provide at least a twelve-inch clearance between the vessel’s draft in a motor-down position and the top of submerged resource at mean low tide. This condition appears to been intended to track similar wording used in Florida Administrative Code Rule 18-20.004(5)(b)8., but because the condition leaves unstated the depth of the submerged resources and the water level of Big Bayou at mean low tide, a prospective renter of a boat slip would not know whether his or her boat would comply with the condition. The rule cannot be more specific because it applies to all waterbodies, but the specific condition in the proposed authorizations can and should be more specific to provide for adequate notice and enforcement. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to seagrasses. Secondary Impacts – Manatees In Florida, between 25 and 30 percent of the annual manatee deaths are caused by collisions with boats. From 2002 to 2006, in Pinellas County waters, 41 percent of the manatee deaths of a known cause were watercraft-related. That percentage exceeds the state average and corresponds to an average of 3.2 deaths per year caused by boats. However the study area from which these statistics were compiled does not include Big Bayou. Dr. John Reynolds, a marine mammal expert, believes that boat speed is the primary factor in manatee deaths from boat collisions. At higher speeds, boaters and manatees have less time to avoid a collision and the severity of the injury to a manatee is generally greater when the manatee is struck by a boat moving at higher speeds. There are no boat speed zones currently established in Big Bayou. Thirty-three years of data collected by the Florida Fish and Wildlife Conservation Commission (FWCC) indicate that there are no known boat-related manatee deaths within two and a half miles of the project site. There have been two dead manatees discovered in Big Bayou, but their deaths were not attributed to boat collisions. Increasing the number of boats in an area used by manatees increases the potential for boat/manatee collisions. To minimize the potential for boat/manatee collisions, PMC would implement the standard manatee protection measures that apply during the construction of the proposed docks. PMC would also implement and maintain a manatee education program approved by the FWCC, including informational signs regarding manatees at the proposed project. Although reducing speeds by establishing, posting, and enforcing idle speed or slow speed zones in the bayou would probably be the most effective measure for the protection of manatees, PMC cannot be required by the proposed authorizations to control boat speeds because boat speed zones must be established by Pinellas County and the Florida Marine Patrol. The proposed authorizations incorporate the conditions recommended by the FWCC for the protection of manatees. Tom Logan, the former FWCC endangered species coordinator and now a consultant who focuses on endangered species and their habitat, believes that the special conditions included in the proposed authorizations provide adequate protection for manatees. The U.S. Fish and Wildlife Service also concluded that the proposed project is not likely to adversely affect manatees. PMC provided reasonable assurance that the proposed project would not cause significant adverse impacts to manatees. Secondary Impacts – Recreation Petitioners claim that their recreational uses of Big Bayou for fishing, swimming, canoeing, kayaking, and windsurfing would be diminished by the proposed project. However, Big Bayou is large enough to accommodate the additional boat trips associated with the proposed project and Petitioners’ recreational uses. A public water body like Big Bayou must be shared by persons living along or near its shores with all other citizens of Florida. Although some Petitioners would prefer that the bayou had the feel of a more remote or wild place, the Pinellas County Aquatic Preserve is recognized to have a “highly developed, urban nature.” Fla. Admin. Code R. 18-20.019. It already has the attributes of an urban preserve. PMC provided reasonable assurance that the proposed project would not prevent or significantly impair the existing recreational uses of Big Bayou. Cumulative Impacts Florida Administrative Code Rule 18-20.006 and Section 3.2.8 of the Basis of Review require that cumulative impacts be evaluated in determining whether to issue, respectively, a submerged lands lease or an environmental resource permit. PMC and the Department state in their Proposed Recommended Orders that the consideration of cumulative impacts is limited to projects that are existing or under construction, but Florida Administrative Code Rule 18.006(1) also requires, for a sovereignty submerged lands lease, consideration of “the number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve.” Because the principal source of potential adverse impacts associated with the proposed project is boating activity, the existing docking facility at Coquina Key North, the other docks in Big Bayou, and the boat ramp at Grandview Park are existing structures generating boating activity that must be taken into account in the cumulative impacts analysis. Although the proposed project, with the conditions on its construction and operation, would, alone, have no significant adverse impact on water quality, seagrasses, manatees, or recreational uses in Big Bayou, the cumulative impacts to Big Bayou from all similar activities in the preserve have created significant (material) adverse impacts to Big Bayou in the form of trash, water contamination, damage to seagrasses, and prop scars. Public Interest Criteria Section 258.42(1)(a), Florida Statutes, requires that a lease of sovereignty submerged lands within an aquatic preserve by the Trustees must be “in the public interest.” Florida Administrative Code Rule 18-21.003(46) defines “public interest” in this context as “demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action.” Florida Administrative Code 18-20.004(2) sets forth the public interest criteria to be considered and balanced by the Trustees in determining whether to issue a submerged land lease or other authorization to use sovereignty submerged lands. The Rule identifies public boat ramps and “marking navigation channels to avoid disruption of shallow water habitats” as examples of public benefits. These benefits, however, must “clearly exceed” the “costs,” such as degraded water quality, degraded natural habitat and function, harm to endangered or threatened species and habitat, and adverse cumulative impacts. For issuance of the environmental resource permit, a determination is required that the proposed project is “clearly in the public interest,” because Big Bayou is part of an Outstanding Florida Water. Fla. Admin Code R. 62-4.242(2). This determination requires the consideration and balancing of a number of criteria set forth in Section 3.2.3 of the Basis of Review: Whether the activity will adversely affect the public health, safety, or welfare or the property of others; Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats; Whether the activity will adversely affect navigation or the flow of water or cause harmful erosion or shoaling; Whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the activity; Whether the activity will be of a temporary or permanent nature; Whether the activity will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and The current condition and relative value of functions being performed by areas affected by the proposed activity.4 As explained in the Conclusions of Law, the “clearly in the public interest” test does not require the applicant to demonstrate that the intended activity would have a net public benefit. The counter-intuitive result is that, to meet the “in the public interest” test for the sovereignty submerged land lease, PMC must demonstrate a net public benefit, but to meet the “clearly in the public interest test” for the environmental resource permit, PMC does not have to show a net public benefit. The measures that PMC has agreed to undertake to meet the public interest criteria for the proposed authorizations are as follows: Contribute $300,000 to the construction of a second boat ramp at the current Sutherland Bayou Boat Ramp project in Palm Harbor; Install and maintain navigational aides marking the main channel in the bayou; Install markers indicating the location of seagrass beds; Install and maintain an informational display at the public boat ramp in Grandview Park, relating to the protection of seagrasses and natural resources within the bayou; and Install and maintain an aerial map at the Grandview Park boat ramp depicting the location of the navigation channel and the seagrass beds in the bayou. The $300,000 contribution for the boat ramp was based on a similar contribution ($5,000 per slip) that was made previously by the developer of another docking facility in Pinellas County. The Department had originally suggested that PMC contribute to a spoil island restoration project to satisfy the public interest criterion. However, due to the Trustees’ and/or Department’s concern about the reduction in the number of boat slips available to the general public,5 the Department proposed that PMC contribute $300,000 to Pinellas County’s Sutherland Bayou Boat Ramp project in Palm Harbor. The definition of “mitigation” in Florida Administrative Code Rule 18-20.003(35) states that, “Cash payments shall not be considered mitigation unless payments are specified for use in a previously identified, Department endorsed, environmental or restoration project.” No evidence was presented to show that the Sutherland Bayou Boat Ramp project is an “environmental or restoration project,” and it does not appear to qualify as such. Implicit in the boat ramp contribution proposal is the view that the public interest in providing more recreational boaters with access to Pinellas County waters outweighs the negative impacts to marine resources that are associated with increased boating activity. No evidence was presented, however, to explain or support this view. The strange result here is that PMC would be mitigating for the adverse impacts associated with increasing the boating activity in Big Bayou by helping to increased boating activity in other county waters where seagrass losses have been greater, prop scarring is a bigger problem, and more manatees are being killed by boat collisions.6 Dr. Reynolds stated that the Sutherland Bayou Boat Ramp project in Palm Harbor could be a benefit to Big Bayou if the boat ramp project took boat traffic away from the bayou, but he did not know whether it would. A reasonable inference can be made that, being so far away, the Sutherland Bayou Boat Ramp project is unlikely to add to or subtract from boat traffic in Big Bayou. As found above, the adverse environmental impacts of the proposed project, taking into account the proposed conditions, would be insignificant. However, because the record evidence shows that the Sutherland Bayou Boat Ramp project would put boats into county waters (and aquatic preserve waters) where there has been greater seagrass losses, more prop scarring, and more manatees killed by boat collisions than in Big Bayou, PMC’s $300,000 contribution to the boat ramp project actually increases the secondary impacts and cumulative impacts of PMC’s proposed project and causes it to fail to meet the public interest criteria. Without the $300,000 contribution to the Sutherland Boat Ramp project, PMC would meet the “clearly in the public interest” test for the environmental resource permit because the other mitigation offered by PMC would offset the secondary and cumulative impacts of the proposed project. However, a different result would occur in the case of the sovereignty submerged land lease. Eliminating the $300,000 contribution to the Sutherland Boat Ramp project would result in a situation where the public benefits of the proposed project do not “clearly exceed” the costs of the project and, therefore, PMC would not meet the “in the public interest” test. Although the record in this case is insufficient to demonstrate that PMC’s contribution to the boat ramp project would cause the benefits of the project to clearly exceed its costs, the record evidence is sufficient to support issuance of the lease modification if PMC were able to get the appropriate government authorities to establish a boat speed zone in Big Bayou, or if PMC contributed to the enforcement of boat speed zones in the aquatic preserve. As restated in the Conclusions of Law, whether the proposed mitigation is sufficient to offset the adverse impacts of the proposed project is a determination that rests exclusively with the Trustees and the Department, based on the record evidence.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Department of Environmental Protection enter a final order denying Environmental Resource Permit No. 52-0258984-001 and the modification of Sovereignty Submerged Land Lease No. 520224543. In the event the Trustees determine to issue the submerged land lease, it is recommended that the lease be modified to add a condition that the boat slips shall only be subleased or sold to residents of Coquina Key North condominiums. DONE AND ENTERED this 21st day of March, 2008, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of March, 2008.
Findings Of Fact Pine Island Properties, Ltd., (Petitioner) owns a residential development project identified as "Pelican Inlet" located on Pine Island, Lee County, Florida. The Petitioner seeks a permit to fill 0.78 acres of wetlands to construct the project. The Department of Environmental Protection (Department) is responsible for reviewing permit applications under Chapter 403, Florida Statutes and related administrative rules. The Department file number for this application is 362004755. The Pelican Inlet project is located in Lee County, Florida, Sections 4 and 9, Township 45 South, Range 25 East. The project impact site is immediately adjacent to "Forty Acre Bay/Bay 36" (bay) which is a Class II Outstanding Florida Water and part of the Pine Island Sound Aquatic Preserve. There are no other developments on the bay. Access from Pelican Inlet to Pine Island Sound is via the bay. Pine Island Sound is a popularly used water body, with substantial fishing and recreational use. The Pelican Inlet development fronts a man-made canal which runs generally east-west. The canal is between two to ten feet deep. The Petitioner did not construct the canal. It appears that during the dredging of the canal, spoil was deposited along the canal banks, resulting in an upland area in the midst of the wetlands. The spoil is vegetated by Australian pine. The elevation of the property drops approximately 1.5 feet where the higher spoil abuts the wetlands. The Petitioner owns only the north half of the canal. Other parties not involved in this application own the south half of the canal. According to the Petitioner, the south half owners are not interested in assisting in the Petitioner's project. Extensive mangrove growth exists immediately north and south of the project impact area. Immediately along the banks of the canal are red, black, and white mangroves. At the east end of the canal is a dense growth of mature black mangroves. Further to the east lie undeveloped uplands vegetated with slash pine and saw palmetto. Although there has been some trash dumping in the area, the mangroves to be impacted by the proposed development are part of a high quality, functioning, healthy, and productive wetlands system. The area currently provides broad water quality benefits and wildlife habitat. The north part of the impacted wetlands area contained a dirt road. Exotic vegetation, including Brazilian pepper Australian pine and Melaleuca, has invaded the trail area. Away from the road, the wetlands are dominated by buttonwood, seashore dropseed, beach carpet, salt grass, needlerush, and leather fern. The Western end of the canal connects to the bay. Water depths in the bay average approximately 1.5 feet deep, but vary significantly. The bay bottom is composed of fine organic mud. There is evidence of damage caused by boat propellers in some parts of the bay. The bay is used by species of fish, snails, mollusks, crabs and birds and is regarded as a productive marine habitat. Within the development, the Petitioner seeks to locate a total of 23 single family homes. Fourteen of the 23 homes will be located directly along the canal. Of these 14, eight will require placement of fill in the adjacent mangroves; two others are entirely within the mature mangrove wetlands. The remaining nine houses would be placed in the area east of the canal. Within the wetlands and uplands portion of the property, the development will include the 23 houses, driveways, access roads, sewer treatment plant, spreader swale and retention area. Subsequent to the filing of the application, the parties engaged in an extensive dialogue in an attempt to reach a resolution of the matter. The issues raised by the Department essentially centered on two general issues, minimization and mitigation of the wetlands lost through fill and resolution of the anticipated secondary impacts of the project. The parties appear to have resolved concerns related to the mitigation of the wetlands lost and impacted by the fill. At the hearing, there was minimal evidence and testimony related to the wetlands mitigation issues. Based on the apparent lack of conflict related to the wetlands loss mitigation, this Recommended Order is directed towards the cumulative and secondary impacts of the project. On August 21, 1991, the Petitioner filed an application for permit/water quality certification with the agency. On October 28, 1991, the Department conducted a field appraisal of the project. Based on the appraisal, the Department determined that the project was unpermittable as proposed in the application. On December 24, 1991, the Department forwarded to the Petitioner a copy of the site inspection report. In the report, the Department identifies a number of concerns related to the expected environmental impact of the project. Thereafter, the parties began an extensive dialogue regarding the project. On March 12, 1992, the Department issued a Notice of Permit Denial. The parties continued to discuss mitigation, and several extensions to the deadline for filing an administrative hearing request were granted by the Department. There is no dispute regarding timeliness of the request for hearing. The Notice of Permit Denial indicates that the Department's concerns center on the potential for turbidity-related water quality violations which could result from unstabilized fill, the adverse floristic impact caused by fill washout into adjacent wetlands, the loss of the filtering benefits provided via the filled wetlands and the adverse impact on wildlife habitat. The Notice of Permit Denial further identifies concerns related to the cumulative and secondary impacts of the project. Such impacts include boat docks in the canal resulting in an increase in the intensity of boating activity in the Bay. The Notice also addresses the precedential impact of permitting this project as it relates to other properties similarly situated, specifically, the property on the south side of the Canal. The expected increases in boat traffic will result in turbidity and damage to the bay bottom through prop dredging, in turn causing injury to the marine habitat's sea grasses and benthic organisms. During the ongoing dialogue with the Department, the Petitioner submitted a mitigation plan. In the Department's letter of June 26, 1992, related to its review of the plan, the Department notes that the proposal failed to address the anticipated impact of boat users on the shallow bay adjacent to the canal. Paragraph #23 of the letter states as follows: Please be advised that the submitted proposal does not adequately address the secondary impacts of the proposed development. There is still a high potential for boat use within the adjacent shallow bay which will significantly degrade this portion of the aquatic preserve, additional boating pressure could also result in requests for dredging a channel within this bay....Before a permit can be issued all of these impacts need to be addressed. One possible way to address these would be to provide easements over adjacent wetlands and the canal that specifically prohibit dock construction...and/or to fill in a portion of the canal to prevent large boats from utilizing the area. In a letter of July 29, 1992 in response to the Department's earlier transmittal, the Petitioner stated: Boat access to coastal waters of Lee is a very important aspect of this project, however only two of the twenty-four lots have direct private property access to the canal and these are lots 1 and 18. Only lot 1 has both canal and natural water frontage. The potential for secondary wetland impacts related to permitting of this project are real and are also a concern of the applicant. As to the issue of boat docks, the Petitioner stated: Pine Island Properties, Limited, the owner of the project, is not proposing to permit or construct any boat docks within the project boundary. Each lot owner must, if they wish to, make application through appropriate state and federal agencies for a boat dock. As to the matter of the shallow adjacent bay, the Petitioner stated: The existing water depths in the adjacent bay system already by itself mandates and places limits on access by large boats, ones with a deeper draft. Local knowledge of both bottom topography as well as tidal conditions and times is necessary for one to travel through these back bay areas. The applicant agrees to place reasonable size, i.e., draft, restrictions on boats allowed into and out of the project. The draft limit restriction for boats would be 24 inches. In additional all boats with engines larger than 35 horsepower would be required to have hydraulic motor/outdrive lifts capable of allowing adjustments in the depth of the operation of the propeller. The applicant also accepts responsibility of placing appropriate depth markers from the western end (exist) (sic) of the unnamed canal to the "between island" passage approximately 750 feet directly to the west. Placement of markers would identify the preferred travel route and inform boaters, through placement of signs, that they are in an aquatic preserve and caution them about damage to bottom of the bay if propellers are set to (sic) deep. By Department letter of September 21, 1992, the Department noted continuing concerns with the impacts of the project. In relevant part, the letter states, "[T]he Department still lacks reasonable assurance that the project's impacts will be offset. Also, you have not yet demonstrated to the Department's satisfaction that the project will be clearly in the public interest." The Department's September 21 letter addresses remaining questions about the wetlands fill area, as well as canal use restrictions. Specifically as to the canal issue, the letter states: Your proposal to place a draft restriction of 24" on boats using the canal to protect adjacent waters which are 18" deep is not acceptable. A deed restriction prohibiting property owners from using or mooring motorized vessels in the canal would be more acceptable....A conservation easement could also prohibit the construction of docks and/or the mooring of motorized vessels on the shoreline by the present owners or by potential future owners such as a homeowners association. Based on the Department's assertion that the shallow bay could not accommodate boat traffic related to the development, the Petitioner conducted a survey of existing water depths in the vicinity of the canal. In its October 28, 1992 letter in response to the Department, the Petitioner responded as follows: In general there is sufficient water for shallow draft motor driven vessels, however local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound. Evidence of prop scars...provides a longlasting record of past damage to the turtle grass beds by (sic) without proper boat handling skills and knowledge. Sizing of boat draft and the requirement that all boats possess hydraulically adjustable outboards units or if inboard drive units then the outdrives must be adjustable is a must. During lower tidal phases, e.g., mean low water, water levels can be expected to drop another foot which would result in water depth ranges of about 17 to 30 inches, definitly (sic) a problem for boats with a hull draft of 18 inches regardless of what angle the drive unit is positioned. Placement of informational signs as well as placement of channel marks would reduce hull and drive unit impacts to the adjacent bay bottom. In concluding the October 28 letter, the Petitioner makes the following recommendations: Recommendations for consideration: Boats limited to hull drafts of 20 inches. All boats required to have adjustable power units. Channel markers required from the Pelican Inlet canal mouth through to a point midway between the islands and Cork Island. This is approximately 2,800 feet west of the canal mouth. These markers would be spaced, approximately 150 feet apart, on-center,. (sic) Thus under southflorida's (sic) winter foggy conditions or after dark ease of marker detection/direction would be a useful aid to navigation. Informational signs should be installed at "entry points" such as the canal mouth, the between-island pass and between the island headlands. These should inform the boater of the environmental sensitivity, the shallow water conditions, the existence of grass beds and requirement of a slow speed, "no wake" zones. Monitoring of bentic (sic) habitats over the first five years would also determine if the above conditions are effective at protecting the coastal habitats. By Department letter of December 17, 1992, the Department again addressed continuing concern with the impact of the project. Paragraph 14 of the letter states: Thank you for the water depth report. As the report states,"...local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound." Since it would be extremely difficult to provide the Department with reasonable assurance that all three of these conditions will be present during motorized vehicle operations originating on-site, other assurance that impacts will not occur and degrade the Outstanding Florida waterbody must be provided. As previously stated, legally binding agreements regarding draft and other restrictions may be difficult to enforce. Monitoring of an activity's impacts is only useful if there is some recourse to eliminate or reduce any impacts revealed by monitoring. The submitted report reinforces the Department's position that reasonable assurance, beyond that already proposed, must be provided that boat traffic originating from the project's canal will not adversely impact the adjacent shallow waters. Such assurance could include, but would not be limited to, a mnechanical or physical draft restrictor in the canal, an agreement not to seek permits to expand the existing canal, and authorization from the Department of Natural Resources for the proposed channel markers and informational signs. Please note that additional assurance beyond these may also be required. Paragraph 15 of the Department's December 17, letter states: Although not proposed as part of this application, construction of boat docks in the canal is a secondary impact which could be reasonably expected to occur as a result of issuing a permit for the proposed activities. Please provide reasonable assurance that construction of docks in the canal and subsequent mooring of boats will not contribute to a degradation of water quality below State water quality standards in the canal and in the adjacent waters. By letter of February 1, 1993, the Petitioner responded to paragraph 14 of the Department's December 17 letter as follows: The applicant does agree not to seek permits to expand the existing channel and will seek authorization from the Department of Natural Resources for the proposed channel markers and informational signs. In a twenty page letter, dated July 29, 1992, also answering questions of the FDER, Kathleen Parker Greenwood, the applicant stated that he was in agreement as to the placement of restrictions on the draft of boats allowed into and out of the project. This draft limit was set at 24 inches. In addition boats having engines larger that 35 horsepower, would have to have a hydraulic motor/outdrive lift, this to allow adjustments in the depth of propeller operation when operating in or during low water conditions. The applicant may accept the proposal of placement of a draft restrictor at the mouth of the unnamed canal, however would like additional information regarding available designs. Are there any floating types, ones that could be moored permanently at the mouth of the project canal, and rise and fall with the tide, similar in concept to the method used to moor floating docks, i.e., a collar/ring freely moving up and down on a stationary piling? This would allow the setting of a uniform depth regardless of tidal or wind induced depth of water conditions. The Petitioner responded to paragraph 15 of the Department's December 17 letter as follows: The applicant also does not want to degrade existing water quality and agrees to implement both design determined as well as behavioral directing programs to insure that this does not happen. The central issues are: a.) Oil and gas leaks and spills. b.) Leakage of the active chemicals found in anti-fouling bottom paints. c.) "Wolmerized" substances placed in marine piling which, over time, leak into the water column. d.) Shading of shoreline bottom communities due to the installation of docks with associated floating boats. and e.) Physical, one-time, impacts occurring during the installation of pilings and dolphines. The applicant, wishing to minimize potential onetime (sic) as well as cumulative impacts proposes the following: The applicant will attach to documents/lot sales contract a notice that clearly informs the prospective land owner of his/her responsibilities regarding the use and storage, handing and disposal of hazardous wastes, especially boat fuel and oil. This document will warn residents against the discharge overboard of bilge water known to contain fuel/oil mixtures. Each dock will display, in a prominent mannor (sic), a sign with essentially the same warning. The Pelican Inlet property owner(s) will also develop, and have in place and operational, prior to any authorization for the construction of boad (sic) docks, an emergency response program designed to handle in-project fuel spells (sic). This program will include the storage of equipment suitable for emergency containment until, and if necessary, a local response can be made by the appropriate Lee County and/or state officials. Boats will be lifted, when not actively in use, via davits or elevating hoist platforms completely out of the water. This will minimize water/hull contact in the case of anti-fouling paints and bottom coatings. Dock pilings and dolphines will utilize non-toxic structural components, wolmerized and other petroleum based substances will not be allowed to come in contact with the water column. Such Structural members as concrete or PVC or other known non-toxic items will be utilized for all vertical supports. Dock access platforms/boardwalks will be minimized, this in order to reduce potential shading. Consideration will be given to the use of translucent "boards" now on the construction market, this again to further minimize shading. By Department letter of February 15, 1993, the Department addressed continuing and additional concerns related to project impact. Paragraph 9 of the letter states: Regarding the issue of boat access from the canal out to Pine Island Sound, it should be noted that [the Petitioner agent's] access study was done at a time when the water elevation was provided as +1.91' NGVD. The mean high water elevation, as provided, is +1.47' NGVD. Thus is appears that at mean high water, there will be a little more than 5 inches less water that what was present during that study. The mean low water elevation provided is -1.2' NGVD which seems low. However, using this figure, at mean low water there will be 3' less water between the canal and the sound. Using a more reasonable tidal range of approximately 1', there would still be a difference of almost 1.5' between the observed and the low water levels, yielding lowest depths of approximately 3" in segment 1, the unvegetated areas, 10" in segment 2, where turtle grass and shoal grass...exist within the "channel", and 24" or greater out in the sound (along the sampled channel). The Department's own informal depth survey, taken during a full moon low tide, showed water depths of approximately 3" to 6" in segment 1 and 10" to 36" (in the remnant channel) along segment 2. Most importantly, many of the shallow areas in segment 2 showed dense seagrass growth, especially out by the "island headlands", where no channel exists and where prop scarring of the grassbeds already appears to be a major problem. Also, the shallowest area, segment 1, where turbidity would be expected to occur almost every time a boat went through until the channel was prop dredged, was observed to be a highly productive and diverse area, despite the fact that it is unvegetated. Other concerns which this site visit brought up include the potential for increased erosion of shorelines adjacent to the proposed channel, and disturbance of wading bird rookeries or roosting areas along the channel's path. Reasonable assurance that boats crossing the areas between the canal and the sound will not cause violations of water quality, including turbidity and loss of diversity, and loss of non-mitigable wetland resources, seagrass beds, has not been provided. Without this, a permit may still not be issued for this project. By response dated April 11, 1993, the Petitioner responded to the Department's December 17 letter. As to the conflicting high water calculations, the Petitioner offered a further refinement of the figures and noted: Both of the above are relatively minor corrections and any reasonable person would still agree that water depths along the recommended boating channel corridor are, at best, minimal. Only one with local knowledge and possessing common boating skills and sense would be able to navigate the passage without disruption or damage to the bottom habitat. As to the application of a 1' "tidal range," the Petitioner suggests that the Department meant to identify the figure as the range below mean sea level. Citing to 1993 tidal tables, the Petitioner recalculated the water depths and opined that the lowest depth in segment 1 would be 6.7", in segment 2 would be 21.1" and in segment 3 would be over 30". The Petitioner noted that the calculations did not account for neap or spring tides, periods of even lower water conditions. As to the Department's informal depth survey showing water depths of approximately 3" to 6" in segment 1 and 10" to 36" (in the remnant channel) along segment 2, the response states "[t]hese value ranges and conclusion seem reasonable to the applicant. Only after a series of repeated depth measurements have been taken over a variety of tidal and weather conditions (e.g. wind speed and direction) would a more detailed analysis be available. " As to the Department's statement concern for potential increased erosion of shorelines adjacent to the proposed channel, and disturbance of wading bird rookeries or roosting areas along the channel's path, the Petitioner responded as follows: The applicant previously agreed to a mandatory "no wake, slow speed" zone condition within segments I, II, and III out past the western most headlands to a position due north of Cork Island. Signs along the proposed boat corridor would notify boaters of this and other environmentally related restrictions. Disturbances to in place bird rookeries during the nesting season are of concern in southwest Florida. Parents frightened off active nests do greatly decrease the success for fledging of subadult birds. Generally rookeries occur on islands rather than headlands, thus the applicant would committ (sic) to a vigerous (sic) environmental sensitivity education program directed towards project initiated boaters in order to gain citizen appreciation, support and consideration for island areas of nesting wading birds. Part of the on-going monitoring that the applicant commits to would also track near-shore rookeries in the vacinity (sic) of the proposed boat traffic corridor. As to the Department's statement that reasonable assurance that boats crossing the areas between the canal and the sound would not cause violations of water quality had not been provided, the Petitioner responded as follows: The issue and standard, reasonable assurance, is very difficult to meet, however the applicants proposed residential project design is sensitive to on-site and near shore environmental conditions in the following mannor (sic): The applicant is aware that without full cooperation,, support, appreciation and participation by the future project resident boat operators there will defintly (sic) be negative impacts to the tidally related natural resource base. The natural resource setting is the major selling point for prospective owners and its continued health and sustainability is a good business practice Toward these ends the applicant clearly committs (sic) to: The marking and maintaining of a path along which all boat traffic must follow when exiting or entering the near-shore boat corridor lane. Placement and maintaining of a series of informational "No Wake, Slow Speed" signs along the required boat corridor out to just north of Cork Island. A mandatory requirement stating that all resident owned boats, proposed to enter and exit the site will: Be restricted to a maximum hull draft of 20 inches. Will possess adjustable hydraulic motor/shaft outdrive lifts. Predevelopment base-line and post development monitoring of the conditions and any changes, of the benthic habitats along and adjacent (250' on either side of the centerline) to the proposed boat corridor. This monitoring, with quarterly reports, will continue for five consecutive years. By letter dated May 19, 1993, the Department replied in relevant part to the Petitioner's response as follows: ...The second issue is that of navigable access from the canal to Pine Island Sound. The one specific point to be made here is that a proposed draft restriction of 20" to cross an area as shallow as 6.7" (using your figures) at mean low water is not acceptable as this would cause scarring even when a motor was not in use. More general concerns, as previously discussed, involve whether or not placement of no wake signs, deed restrictions requiring outboard lift units and maximum keel drafts, and monitoring to document boating impacts on adjacent resources provide reasonable assurance that impacts will not occur, and if they do occur, they can be offset. Currently, the Department's view is that only by strict legal (e.g., conservation easement) and physical (e.g., pilings at the end of the canal) measures can impacts to the adjacent OFW resources be avoided or minimized. If there is new information concerning this aspect of this project which demonstrates to the Department's satisfaction that there will not be impacts associated with boat traffic or that these impacts can be offset, then please submit such, since this is not considered a closed issue. " By letter dated June 2, 1993, the Petitioner responded to the Department's May 19 letter. Paragraph 2 of the response states: Our client has agreed to put his half of the canal in a conservation easement without limiting the future construction of boat docks and the ability to obtain a permit for dredging maintenance of the canal. Also, he agreed to drive draft restricting pilings at the west end of the canal. In order to do this, our client is trying to get in touch with the owner of the south half of the existing canal. The construction of these pilings will depend on the adjacent lot owner's response. If required the "No Wake" sign will be installed. Deed restrictions requiring outboard lift units and maximum keel drafts will be provided." The adjacent lot owner is not cooperative with the Petitioner. The evidence establishes that permitting of this project will lead to increased boat traffic in the shallow bay, resulting in prop scarring of the bay bottom, erosion of adjacent shoreline, and damage to the wildlife habitat provided therein. The use of a draft restrictor appears to be integral to the Department and to the Petitioner's ability to protect the shallow bay from damage. Although discussed frequently, the Petitioner provided no detailed draft restrictor design until immediately prior to the hearing. The draft restrictor would limit boat passage in or out of the canal mouth unless the water depth was sufficient to prevent harm to the bay bottom. The greater evidence fails to establish that a draft restrictor placed at the opening to the canal into the shallow bay is sufficient to prevent damage to the bay habitat. Placement of a restrictor only at the mouth of the canal provides no protection to the marine resource once boaters exit the canal and are in the bay. The proposed marking of a "channel" which is marginally sufficient to permit access to deeper waters, fails to protect the resource. A draft restrictor at the canal mouth further provides no protection against damage caused by boaters returning from deeper waters who will be able to travel through the shallow bay before perhaps discovering at the canal mouth that the water is too shallow to permit passage over the restrictor. It is reasonable to assume at that point, the bay will have been damaged by the excessive draft. It is also reasonable to assume that the damage would be exacerbated by the boater who, unable to enter the canal, either exits the too shallow bay, or remains until the water rises sufficiently to permit passage over the restrictor. The evidence fails to establish that it is possible to police the users of the bay to provide that due care is used to prevent bay damage. The Petitioner asserts that the bay is already being used and damaged by other boaters. Even if correct, this project must meet the applicable criteria to be permitted. As set forth herein, the criteria are not met. Based on the evidence and on consideration and balancing of the following criteria, the project is not clearly in and is contrary to the public interest: WHETHER THE PROJECT WILL ADVERSELY AFFECT THE PUBLIC HEALTH, SAFETY, OR WELFARE OR THE PROPERTY OF OTHERS-- The Department does not assert that the project will adversely affect the public health, safety, or welfare or the property of others. WHETHER THE PROJECT WILL ADVERSELY AFFECT THE CONSERVATION OF FISH AND WILDLIFE, INCLUDING ENDANGERED OR THREATENED SPECIES, OR THEIR HABITATS-- The evidence establishes that the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. Pine Island Sound provides habitat for endangered species including manatees, roseate spoonbills, and wood storks. Additionally, bald eagles have been seen in the project site and Pine Island Sound. The direct loss of wetland habitat resulting from this project will adversely affect the conservation of such species. The Petitioner presented no credible evidence to the contrary. The increased boat traffic which may reasonably be expected to result from award of the permit sought will cause damage to the shallow bay waters and result in harm to the health and function of the bay habitat. WHETHER THE PROJECT WILL ADVERSELY AFFECT NAVIGATION OR THE FLOW OF WATER OR CAUSE HARMFUL EROSION OR SHOALING-- The Notice of Permit Denial suggests a likelihood of turbidity-related water quality violations which could result from unstabilized fill, the adverse floristic impact caused by fill washout into adjacent wetlands, the loss of the filtering benefits provided via the filled wetlands and the adverse impact on wildlife habitat. The evidence establishes that the parties have resolved concerns related to the mitigation of the wetlands lost and impacted by the fill. The Department does not currently assert that the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling. The greater weight of the evidence establishes that the project will increase travel through the shallow bay to adjacent waters by boaters residing in the project. The prop dredging which will occur in the shallow water will result in harmful erosion of the bay bottom. WHETHER THE PROJECT WILL ADVERSELY AFFECT THE FISHING OR RECREATIONAL VALUES OR MARINE PRODUCTIVITY IN THE VICINITY OF THE PROJECT-- The project will likely result in an increase in the number of boaters utilizing the bay and adjacent waters. The turbidity caused by prop dredging in the bay will degrade the water quality and adversely affect the productivity of the impacted marine resource, in turn reducing the fishing values in the vicinity of the project. The Petitioner presented no credible evidence to the contrary. WHETHER THE PROJECT WILL BE OF A TEMPORARY OR PERMANENT NATURE-- The project will cause a permanent alteration to the existing condition of the property and will cause a continuing adverse impact to the affected area. WHETHER THE PROJECT WILL ADVERSELY AFFECT OR WILL ENHANCE SIGNIFICANT HISTORICAL AND ARCHAEOLOGICAL RESOURCES UNDER THE PROVISIONS OF S. 267.061-- The Department does not assert that this project will adversely affect or will enhance significant historical and archaeological resources. THE CURRENT CONDITION AND RELATIVE VALUE OF FUNCTIONS BEING PERFORMED BY AREAS AFFECTED BY THE PROPOSED ACTIVITY-- The current condition and relative values of the functions being performed in the affected areas will be adversely affected by the granting of this application. The project will result in an adverse impact to and degradation of an Outstanding Florida Water. The Petitioner presented no credible evidence to the contrary. The evidence establishes that adverse secondary and cumulative impacts will result from permitting this project. Aside from the adverse affect of increased boating related to residents of the development, it is reasonable to expect that similarly-situated applicants could seek permits under these circumstances, resulting in additional boating activity and related damage to an Outstanding Florida Waterbody.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a Final Order denying the application of Pine Island Properties, Ltd., for a water quality certification permit in DEP File No. 362004755. DONE and ORDERED this 28th day of March, 1994, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 28th day of March, 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2713 The following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 1. Rejected, unnecessary. 12. Rejected. Evidence is insufficient to determine whether use of bay by public is "regular." Rejected. The map attached to the application identifies 23 homesites. The Notice of Permit Denial references 23 homesites. Petitioner's exhibit 92 is a set of drawings which indicate 24 homesites, however it is unclear as to why the lots were replatted. Rejected as to reference to South Florida Water Management District, irrelevant. Rejected, subordinate. Rejected The greater weight of the evidence establishes that the project is contrary to public interest. Rejected, argumentative, subordinate. Rejected, irrelevant. Rejected, the greater weight of the evidence establishes that this was the first detailed drawing of the draft restrictor. 32-33. Rejected, irrelevant as to whether project meets permitting criteria. 37-38. Rejected, unnecessary. 39-40. Rejected. The evidence fails to establish that filling in the canal is the "only solution" suggested by the Department. 42. Rejected as to assertion that the Department did not question the conclusion or accuracy of the Petitioner's water depth study, contrary to evidence including the Department's site visit. The conclusion to which the Department agreed is that "local knowledge, proper tidal conditions and informed operators would be essential to a safe and non-habitat damaging passage from the canal mouth to the deeper waters of Pine Island Sound." Rejected, contrary to the greater weight of evidence. Rejected, contrary to the greater weight of evidence. The Department noted in correspondence that monitoring would not protect the resource. 46-48. Rejected The easement has not been executed or recorded. Rejected. Contrary to the greater weight of the evidence. Nothing in the correspondence indicates that all other issues have been resolved. Rejected, immaterial. 56. Rejected, irrelevant. The easement has not been executed or recorded. 57-58. Rejected, immaterial. 60-61. Rejected. Contrary to the greater weight of the credible and persuasive evidence. The testimony of the cited witness is not credited. 62. Rejected, immaterial. Respondent The proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 15. Rejected, contrary to the greater weight of the evidence. There is no citation to record to support the recalculation. 23. Rejected, contrary to evidence which establishes that the Notice of Permit Denial was issued on March 12, 1992. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Harry Blair, Esquire BLAIR & BLAIR, P.A. 2138-40 Hoople Street Fort Myers, Florida 33901 John L. Chaves, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-9730
