Findings Of Fact Upon consideration of the oral and documentary evidence received at the hearing, the following relevant facts are found: In February of 1980, the University of North Florida (UNF) sent to 26 potential bidders the contract documents and specifications for the enlargement of Canoe Lake on the UNF campus and the removal of materials and soil from the project. While six potential bidders attended the pre-bid conference, only the petitioner, G & T Trucking, Inc., submitted a bid for the project. After the bid opening, the UNF decided not to resolicit for bids and awarded the contract to the petitioner. Pursuant to the contract, the petitioner agreed to excavate and enlarge Canoe Lake on the UNF campus pursuant to the conditions, specifications and drawings set forth in the invitation to bid documents. (Joint Exhibit 1) The petitioner was to pay the UNF the lump sum of $10.00 and was to receive all fill removed from the site. The bid documents required the petitioner to commence work within ten calendar days after receipt of a Notice to Proceed and to complete the work within one year. Other pertinent requirements expressed in the bid documents were that "the bidder . . . be familiar with all Federal, State and local laws, ordinances, rules and regulations that in any manner affect the work," (Section II, paragraph 6) and that "The Contractor shall, without additional expense to the Owner, be responsible for obtaining any necessary licenses and permits, and for complying with any applicable Federal, State and municipal laws, codes and regulations in connection with the prosecution of the work . . . ." (Section II, paragraph 8) In the Purchase Order dated March 20, 1980, and in the Notice to Proceed issued by the UNF on March 21, 1980, petitioner was instructed that ". . . any changes in the scope of work set forth in the contract documents must be authorized by a written change order . . . Changes in the scope of the work without prior written authorization shall not be authorized and shall be subject to subsequent rejection and correction at no expense to the Owner." (Joint Exhibits 3 and 4) The petitioner did enter upon performance of the contract and did commence the excavation and enlargement of Canoe Lake in early April of 1980. At some point, the petitioner estimated that it would excavate approximately 300,000 cubic yards of fill material from the project as originally designed and would be able to sell that fill material for $663,000. After expenses, it was estimated that petitioner would realize a profit in the amount of $86,722.26. Original documentation to support either the estimated expenses or the revenue from the sale of fill material was not adduced at the hearing. Also, the petitioner's estimate of 300,000 cubic yards of saleable fill material was based upon prior experience in the business of land clearing and selling fill material, and not upon actual borings made at the site of the project. The time at which the petitioner's profit estimations were made was not sufficiently established, though it was suggested that it could have been as late as September of 1981. In June of 1980, the Department of Environmental Regulation (DER) became aware of the work being performed on Canoe Lake and visited the site. Prior to this time, neither the UNF nor the petitioner was aware that a permit from DER was required for this project. Officials from DER met with officials from the UNF with regard to the project in June of 1980, and in July of 1980, the UNF submitted an application to the DER for a dredge and fill permit for the Canoe Lake project as originally designed and set forth in the bid documents. DER would not approve the project as originally designed because of water quality concerns. Had work on the originally designed project continued, DER would have undertaken enforcement procedures in the form of a Notice of Violation, Notice for Corrective Action, or a Cease and Desist Order. A period of six months is the normal time taken by DER to process a standard dredge and fill permit application. The permit process is often a matter of negotiation and "give-and-take" between the applicant and officials from DER. Negotiations between DER and the UNF began in July of 1980 and continued through March of 1981. The original project called for a lake depth of at least 12 feet and one continuous body of water around two center islands. At first, DER officials indicated that they would only approve a depth of four feet. After negotiations between DER and the UNF, the project was redesigned to a depth of no more than eight feet. One reason for this compromise was the fact that petitioner had already excavated in some areas to a depth of eight feet. The project as redesigned and ultimately permitted reduced the cubic yardage to be excavated, changed the grade of the slopes and required that a dam or dike be constructed between two water bodies. The permit for the redesigned project was ultimately issued on March 10, 1981. During the nine-month long period of negotiations between the UNF and DER, petitioner was never asked for input into the redesign of the project. The UNF never requested petitioner to secure the DER permit, and all drawings submitted for approval by DER were prepared by UNF officials. In November of 1980, approximately seven months after the petitioner had commenced work on the project, the UNF notified petitioner that it was to immediately stop all work on the Canoe Lake project due to petitioner's failure to obtain the required DER permit. (Joint Exhibit 15) At this time, petitioner had completed approximately twenty-five to thirty-three percent of the work on the project, and most of that work was non-revenue producing work for the petitioner. After the permit from DER was secured in March of 1981, petitioner's attorney advised the UNF Purchasing Department Director that it was anticipated that the UNF would issue a Change Order incorporating the reduced scope of work permitted by DER and that petitioner expected to recommence work on the revised project. Petitioner's attorney further advised that, due to the reduced scope of work, petitioner would experience an actual loss when the permitted work was completed. In order to mitigate that loss, it was suggested that the UNF apply to the DER for a modification to the permit which would allow the increase of the depth of the lake to the original project depth of 12 feet. (Joint Exhibit 20) By letter to petitioner dated April 2, 1981, the UNF confirmed its prior verbal cancellation of the November, 1980, Stop Work Order and advised petitioner that all future work was to conform with the permit and drawings approved by DER. (Joint Exhibit 21) The UNF advised the petitioner by letter dated May 6, 1981, that it would accept the permit, as issued by the DER, and would discuss the revised scope of work at a later meeting. (Joint Exhibit 22) No evidence was adduced as to such a later meeting having been held. Petitioner's work on the revised project continued until early September, 1981, when petitioner was advised that the UNF considered the work performed by the petitioner to be complete. (Joint Exhibit 23) By letter dated September 22, 1981, the petitioner's attorney advised the UNF that he was submitting petitioner's claim for losses in the amount of $95,135.08, said amount representing an actual loss of approximately $8,500 plus lost profits anticipated from the original project in the amount of $86,722.26. The UNF was requested to acknowledge this claim for money damages and to inform petitioner of the procedure for processing the claim and appeal. (Joint Exhibit 25) The UNF never acknowledged the petitioner's claim or the petitioner's attorney's letter. Although no original documentation was produced by the petitioner at the hearing, it was the testimony of petitioner's witnesses that, as of the time of completion of the project, petitioner sold 155,541 cubic yards of fill material and received revenues of $351,514.95. Petitioner claims that its expenses in completing the project amounted to $359,927.77. This figure includes expenses for clearing and removal of overburden; excavating, loading and pumping; trucking costs; project supervision; grading banks and a ten percent administrative overhead. All these items were included in a greater amount in the petitioner's estimates of expenses for the originally designed project. The additional expenses claimed as a result of the redesigned project include $2,000 to build the newly required dikes, $2,200 for pumping during the stop-work period and $8,775 for increases in fuel costs due to the delay. Had the original bid documents included the design of Canoe Lake as ultimately permitted by the DER, the petitioner would have submitted a bid requiring the UNF to pay petitioner between $40,000 and $50,000, plus retainage of the fill for resale. The respondent UNF offered no evidence regarding the value of the project.
Recommendation Based upon the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that a Final Order be entered awarding petitioner $45,000 for its services in connection with the enlargement of Canoe Lake on the campus of the University of North Florida. Respectfully submitted and entered this 15th day of July, 1983, in Tallahassee, Florida. COPIES FURNISHED: Daniel D. Richardson, Esquire 1636 Atlantic Bank Building Jacksonville, Florida 32202 William L. Coalson, Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207 Caesar Naples, Esquire Board of Regents 107 West Gaines Street Collins Building Tallahassee, Florida 32301 DIANE D. TREMOR Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1983. Dr. Barbara Newell Chancellor Board of Regents 107 West Gaines Street Tallahassee, Florida 32301 Dr. Curtis L. McCray President University of North Florida 4567 Saint Johns Bluff Road Jacksonville, Florida 32216
The Issue Whether the finger pier portion of Respondent Raab's dock creates a navigational hazard. The resolution of that issue will determine whether the dock qualifies for an exemption from an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes.
Findings Of Fact DEP has the authority to regulate the construction of docks in jurisdictional wetlands and other waters of the State of Florida and on state submerged lands under Chapters 253, 373, and 403, Florida Statutes, and Chapters 62-330 (which adopts Chapter 40E-4) and 18-21, Florida Administrative Code. The Association is a residential community located in Sewall's Point, Martin County, Florida. All lots within the community abut navigable channels which provide ingress and egress to the ICW. These channels converge so that there is only one channel that connects to the ICW. Most of the residents of the community have large vessels that routinely navigate the channels within the community. At the time of the formal hearing, many of the vessels owned by residents of the community had drafts of four feet and at least two had drafts of five feet. In 1997, Mr. Raab purchased a residence in the Association that is located very close to where the channel meets the ICW. Because of that location, practically all residents of the Association have to pass in front of Mr. Raab's property when going into or returning from the ICW. The property at issue is located at 22 Simara Street, Sewalls Point, Martin County, Florida. The dock at issue in this proceeding is subject to DEP's regulatory authority. When Mr. Raab purchased this property in 1997, there was an existing marginal dock parallel to the bulk-head. Mr. Raab subsequently sought and received approval from DEP to demolish the existing marginal dock and replace it with a virtually identical structure. The existence and configuration of the marginal dock is not at issue in this proceeding. Mr. Raab thereafter sought to modify his approved marginal dock by adding a finger pier which extended into the channel 36 feet so he could dock his vessel perpendicular to the bulkhead. Mr. Raab's plan also called for the construction of two pilings 12 feet from the end of the finger pier. Mr. Raab had, as of the time of the formal hearing, re-constructed the marginal dock and had constructed the finger pier. 3/ The two additional pilings had not been constructed at the time of the formal hearing. After reviewing the modified project, DEP determined that the project was exempt from the need for an environmental resource permit under Rule 40E-4.051(3)(b), Florida Administrative Code, and Section 403.813, Florida Statutes. DEP also authorized Mr. Raab to use state-owned submerged lands if necessary. The Association thereafter timely challenged DEP's determination that the finger pier portion of the project (and the two additional pilings) did not require an environmental resource permit. There was a conflict in the evidence as to the functional width of the channel in front of Mr. Raab's property. 4/ Mr. Holly testified on behalf of the Association that the functional width of the channel was 83 feet. Mr. Lidberg, testifying on behalf of Mr. Raab, testified that the functional width was 101 feet. This conflict is resolved by finding that the functional width of the channel in front of the Raab property is 101 feet. 5/ The prevailing winds in the area in front of Mr. Raabb's dock blow into the dock. The depth of the water in the channels is influenced by tides. The principal reason Mr. Raab wants the finger pier is so that he can moor his boat with the bow to the prevailing winds in times of high winds. At the time of the formal hearing, Mr. Raab owned a vessel with an overall length of 44 feet. There was a conflict in the evidence as to whether Mr. Raab's finger pier and the two pilings that have been authorized, but not constructed, constitute a hazard to navigation. 6/ Based on the totality of the evidence, it is found that these structures do not create a navigational hazard. 7/
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order dismissing the Association's challenge to the determination that Mr. Raab's project qualifies for an exemption from an environmental resource permit. DONE AND ENTERED this 1st day of March, 2000, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 1st day of March, 2000.
The Issue The issues are (1) whether the St. Johns River Water Management District (District) should approve the application of Indian River County (County) for an environmental resource permit (ERP) authorizing the construction and operation of a surface water management system with stormwater treatment for the Oslo Road Boat Ramp Parking Lot; and (2) whether the District should approve the County's request for a variance from Florida Administrative Code Rule 40C-4.302(1)(c) and sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) of the Applicant's Handbook: Management and Storage of Surface Waters (AH) in order to perform other related work.
Findings Of Fact The Parties The Pelican Island Audubon Society is a Florida non- profit corporation whose mission is to preserve and protect the animals, plants, and natural communities in the County through advocacy, education, and public awareness. It has more than 25 members that live in the County and has been a chapter of the Audubon Society of Florida since 1964. Dr. Richard Baker resides in the County and engages in water-based recreational activities such as canoeing, bird watching, nature photography, and fishing in the Lagoon near the boat ramp. Dr. David Cox resides in the County and engages in water-based activities such as kayaking and nature observation in the vicinity of the boat ramp. The County is the applicant for an ERP and variance for a project known as the Oslo Road Boat Ramp project. The District is the agency charged with the responsibility of regulating water resources within its geographic boundaries and to administer and enforce chapter 373, Florida Statutes, and the rules promulgated under title 40C. The Existing Oslo Road, Boat Ramp, and Lagoon Oslo Road is a County-owned road that runs in an east- west direction and intersects with U.S. Highway 1 just south of State Road 60. To the east of U.S. Highway 1, the road is paved for a short distance; the remaining portion of the road (2,460 feet) is a narrow, two-lane dirt road that dead-ends at the boat ramp. Most of the dirt road is bordered to the north and south by a mangrove swamp that extends to the edges of the road. All wetlands have been previously disturbed. The surrounding and abutting jurisdictional wetlands consist primarily of both tidal (north side) and impounded/partially tidal mangrove swamp (south side), which was created years ago by a mosquito control district in order to reduce the salt marsh mosquito population. The boat ramp is bordered to the north by a clump of red mangroves and a sparsely vegetated sandy shoreline and to the south by a dense mangrove fringe. During rain events, the dirt and sediment can wash off the road as erosion. This requires the County to continually maintain the dirt road by grading and adding marl material to bring it back up to grade. The boat ramp has been in existence for more than 50 years and is the nearest public access to the popular South County fishing areas in the Lagoon. Although there are 17 other boat ramps in the County, the closest one is six miles to the north in the City of Vero Beach. The typical users of the boat ramp are fishermen with shallow-draft boats, while the open shoreline to the north is normally used to launch canoes and kayaks and to access the river by wading fishermen. There are a number of water-based communities in the area, including one directly to the east of the boat ramp. Many boats that do not launch at the boat ramp use the nearby seagrass beds as a fishing destination. The boat ramp has a dirt cul-de-sac, a concrete boat ramp with finger piers, and is surrounded by the Lagoon, the receiving water body for the project and classified as Class III waters. In December 2007, the Department of Environmental Protection (DEP) verified that the Lagoon is an Impaired Water Body of the State, with the impairment being for nutrients in the vicinity of the project. Currently, there are no designated parking areas associated with the boat ramp. Vehicles both with and without trailers park in the cul-de-sac and along the roadside. The only limit to the extent of parking along Oslo Road is the distance somebody is willing to walk. During peak times, the dirt road and cul-de-sac become congested and blocked with cars, trucks, and boat trailers. In 1977, the County obtained a permit from the United States Army Corps of Engineers (USACE) to construct the boat ramp with two appurtenant piers and a riprap groin. During the subsequent years, there was substantial deterioration to the ramp, bulkhead, and docks. Accordingly, in 2009, using an exemption under rule 40C-4.051(12)(i), the County replaced the concrete portion of the boat ramp within the same footprint and constructed two accessory docks that now define the width of the one-lane boat ramp. During this process, the County removed around 25 cubic yards of muck from the base of the boat ramp. The boat ramp is only 16 feet wide and 40 feet in length and is located in water less than three feet below Mean Low Water (MLW). In contrast, a typical boat ramp in the County is around 76 feet, or twice as long as the Oslo Road boat ramp. The existing boat ramp was designed to be used by motorized vessels. There is a separate launch area for kayak and canoes next to the concrete ramp. The motorized vessels that currently use the boat ramp are small with a draft less than 18 inches. This is partly due to the presence of cap rock beyond the proposed dredging area, which limits the draft size of the boats, and the small size of the single-lane ramp. The only signage at the ramp advises the public that this is a shallow draft vessel launch and that the limits of the draft are 18 inches. The channel leading out of the boat ramp was previously dredged around 1950. During that era, only shallow draft boats would launch at Oslo Road. In February 1977, the United States Fish and Wildlife Service confirmed that an old channel about 75 feet long and 15 feet wide existed at the boat ramp location. In May 1977, additional maintenance dredging of the old silted channel to a depth of -3.00 Mean Sea Level (MSL) was authorized by the USACE. Although the parties disagree over whether any dredging was ever performed, surveys, aerial photographs, and research suggest that more than likely the project site was dredged in the late 1970s or early 1980s. A portion of the area that the County proposes to dredge falls within the area that was previously permitted by the USACE in 1977. The distance from the boat ramp to the Intracoastal Waterway (ICW) is approximately one-half mile. The channel is delineated by a number of poly vinyl chloride pipes and six sets of permitted navigational channel markers leading to the ICW. The water depths in the area surrounding the boat ramp, including the channel to the ICW, are very shallow. Drainage from the road currently runs down the ramp causing sand and other material to build up in the ramp area. Due primarily to this drainage, at low tide the water at the boat ramp area has been so shallow that boaters have experienced great difficulty when loading; in some cases, launching or retrieving a vessel is almost impossible. After a rain event, turbidity plumes in the Lagoon have been observed extending 100 feet to the north of Oslo Road, 150 feet to the south, and approximately 30 feet to the east. The seagrass beds adjacent to the boat ramp were described as lush, healthy, and productive. The proposed dredging area contains less than 1.5 percent of seagrass coverage. There is no evidence that the current use of the boat ramp causes prop scarring to the surrounding seagrass. The Lagoon in the vicinity of the boat ramp has been determined to be a high manatee use area, as defined by the County Manatee Protection Plan (MPP). However, this area is not a high watercraft-related manatee mortality area. Since 2002, the waterway in the vicinity of the project site has been regulated by seasonal manatee protection speed zones. Signs have been posted since 2003. The shoreline to the ICW is currently regulated at slow speed between November 1 and April 30 and is unregulated the remainder of the year. The County intends, however, to adopt a new ordinance that makes the slow speed zone effective the entire year, rather than just during the winter months. The Project and Variance In late 2009, the County submitted to the District its ERP application. Since that time, the County has modified its plans seven times and amended the application twice. Notably, the modifications reduce the direct impacts to wetlands from 2.98 acres to 1.41 acres for the improvement of the dirt road and parking lot; they also reduce impacts to ditches that support fisheries habitat and submerged lands. They will result in 0.113 acres of combined direct impacts to seagrass and Lagoon substrate from the proposed dredging. The project will not change the hydroperiod of the surrounding wetlands. The number of trailer parking spaces was reduced from 32 to 12 and the parking space angle changed. A dry retention area on the west side of the project will be installed; a wet detention pond was eliminated; the dock extension reduced; and at Petitioners' request, the project was shifted north to avoid impacting a ditch to the south. The County eliminated and reduced impacts to surface waters by reducing the width of the proposed dredge area so as to not impact seagrass beds to the north and south of the channel. Dredging is limited to a depth of -2.5 feet MLW and will be within the same area that was dredged in the 1950s. It is not expected to contribute to larger vessels launching at the boat ramp. The latest iteration of the project consists of paving the 2,460 feet of dirt road to a width of 26 feet, constructing a surface water management system, and constructing a parking area to accommodate 12 vehicles with boat trailers and 11 vehicles without a trailer. No changes to the size or configuration of the concrete boat ramp will be made. The project will extend the northern accessory dock of the existing one-lane boat ramp by approximately 32 feet to allow more boats to tie off; dredge 4,943 square feet (0.113 acres) of the ingress/egress access way within the Lagoon to a depth of -2.5 MLW; install an additional three sets of channel markers (six in total); install "No Parking" signs to limit vehicle parking to the designated parking area; and install additional signage to warn boaters of the shallow depths in the area and to notify boaters that to launch at this boat ramp, vessel drafts must not exceed 18 inches. The proposed surface water management system consists of roadside conveyance swales, pipes, weirs, and two dry retention areas which will provide water quality treatment for stormwater runoff from basins upstream of the project area and the existing paved portion of Oslo Road. The two proposed dry retention areas will provide water quality treatment in accordance with the design and performance criteria in the District's rules. Currently, these areas drain into existing swales and then east into the Lagoon with no water quality treatment. The system will result in a net improvement to water quality based on a nutrient loading analysis review by the District. The County is proposing off-site mitigation to offset the direct and secondary impacts. It consists of 18 acres of enhancement at Earman Island within the Lost Tree Islands Conservation Area, including 14 acres of wetland enhancement. Earman Island is part of the chain of islands in the Lagoon just north of State Road 60 known as Lost Tree Islands purchased by the County for conservation purposes. The proposed enhancement area is building upon an existing mitigation area on the north end of the island. The proposed mitigation is within the same drainage basin as the area of wetlands and other surface waters to be adversely affected. There are no cumulative impacts associated with the project. The County owns all of the property that will be dredged, filled, or paved, including the submerged lands waterward of the Mean High Water (MHW) line at the boat ramp out approximately 215 feet. This area is not within an Aquatic Preserve or Outstanding Florida Waters, and none of the dredging will occur on sovereign submerged lands. See Jt. Pre-hearing Stip., p. 13, ¶¶ 18-20. In summary, the purpose of the project is seven-fold: provide water quality treatment for the runoff water; limit the number of parking spaces available for users of the boat ramp; decrease the need for the County to maintain the 2,460 feet of dirt road; create a safe place for boaters to moor while waiting to retrieve their boats from the Lagoon; allow boaters to safely launch and retrieve their boats from the Lagoon at low tide; create a clear channel for boaters to get from the base of the boat ramp to the ICW; and decrease turbidity in and around the mouth of the boat ramp. The portion of the project that expands the accessory dock and dredges the channel will be located in Class III waters classified by DEP as restricted for shellfish harvesting. Rule 40C-4.302(1)(c) places additional requirements on regulated activities that are proposed in Class III waters restricted for shellfish harvesting. These requirements are set forth in the AH. Without a variance from the rule and AH, the District would be required to deny the ERP. Therefore, the County must qualify for and obtain a variance from rule 40C- 4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c). Petitioners' Concerns The essence of Petitioners' objections is that once Oslo Road and the parking lot are paved, and the channel dredged, the boat ramp will attract a tremendous number of fishermen from throughout the area who will use larger and deeper draft boats to access the Lagoon. Petitioners contend that more and larger boats, along with the proposed activities, will result in the environmental impacts described in their Amended Petition. The conditions for issuance of an ERP are set forth in rules 40C-4.301 and 40C-4.302. The standards and criteria in the AH are used to determine whether an applicant has met the conditions for issuance in the two rules. Rule 40C-1.1002 establishes the requirements for obtaining a variance. The parties have stipulated that the project either complies with the following conditions for issuance of a permit or that they are not applicable: rules 40C-4.301(1)(a), (b), (c), (e), (g), (h), (i), (j), and (k); and 40C-4.302(1)(a)3., 5., and 6. Remaining at issue is whether reasonable assurance has been provided to demonstrate that the proposed activities will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters (40C-4.301(1)(d)); that the proposed activities will not cause adverse secondary impacts (40C-4.301(1)(f)); and that the portion of the project located in wetlands or the Lagoon is not contrary to the public interest (rules 40C-4.302(1)(a)1., 2., 4., and 7. and 40C-4.302(1)(b)). As a part of these claims, Petitioners also contend that the County failed to implement all practicable design modifications to reduce or eliminate the adverse impacts to wetland and surface water functions; the proposed mitigation fails to offset the adverse effects of the project; and the District did not consider the impacts of increased boat usage when reviewing secondary impacts generated by the project. Finally, Petitioners contend that the County has not shown that it meets the conditions in rule 40C-1.1002 for a variance. These contentions are addressed separately below. a. Rule 40C-4.301(1)(d) Pursuant to this rule, and related AH provisions, the County must give reasonable assurance that the proposed activity will not adversely impact the value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. To meet this requirement, the County has implemented, to the extent practicable, design modifications to reduce or eliminate adverse impacts to wetlands and other surface waters. The original application submitted in 2009 proposed impacts to 2.98 acres of wetlands and surface waters. Since that time, the County has reduced or eliminated its proposed wetland impacts by more than 50 percent. This was done by incorporating design modifications that eliminated the construction of a stormwater pond in wetlands and adding compensating stormwater treatment; shifting impacts out of critical fisheries and open water habitat within the southern impoundment to upland areas; installing a retaining wall along the trailer parking area to limit the fill slope impacts; and making minor modifications to reduce the project footprint in several locations. The County also eliminated and reduced adverse impacts to surface waters by reducing the width of the proposed dredge area so as to not impact the seagrass beds to the north and south of the channel and limiting the dredging to -2.5 MLW. That depth is consistent with the existing limitations adjacent to the dredge area and will not allow deeper draft vessels to use the boat ramp. The addition of a permit condition that requires the placement of "No Parking" signs along Oslo Road and limiting the parking of boat trailers to the 12 designated parking spaces will prevent an increase in boat traffic from the existing boat ramp. The installation of signage at the boat ramp advising boaters of the boat motor draft restriction and the year-round manatee slow speed zone will also reduce impacts. Finally, three sets of channel markers will also be installed to keep boaters within the designated channel. As discussed below, after these design modifications are implemented, the remaining impacts are sufficiently offset by mitigation proposed by the County. The District also considered the condition of the wetlands and surface waters to be impacted; their hydrologic connection; their uniqueness; location; and fish and wildlife utilization, and then evaluated the proposed mitigation. The more persuasive evidence supports a finding that the mitigation is sufficient to offset the proposed impacts. As required by the AH, the District provided a copy of the County's application to the Florida Fish and Wildlife Conservation Commission (FFWCC). Among other things, the FFWCC is the agency responsible for reviewing the County's MPP. The FFWCC indicated that the project is consistent with the County's MPP. It also recommended certain measures to be taken by the County, which are now included as conditions in the proposed permit. Petitioners assert that the National Marine Fisheries Service, a federal agency, considers the entire Lagoon, and the ditches extending into it, to be an essential fish habitat (EFH) that provides habitat required for the various life cycles of many types of fish. Petitioners contend that the project will result in impacts to the EFH adjacent to the proposed dredging areas, and that this type of impact cannot be mitigated. For the following reasons, this contention is rejected. First, the more persuasive evidence is that the area to be dredged contains less than 1.5 percent seagrass coverage, and channel markers will be used to keep boaters within the designated channels. Only around 200 square feet (0.005 acres) of seagrass will be affected, and not the much larger area that Petitioners assert will be impacted. No other impacts to seagrass are expected to result from the project, other than those identified and mitigated for during the application review. Second, the District considered the actual Lagoon impact area and determined that the same functions now being provided in that area will be provided by the proposed mitigation. Third, if one accepts Petitioners' assertion that EFH can never be mitigated, no permit could ever be issued for any project that would impact the Lagoon or any ditches connecting to it. Finally, based on the District's Uniform Mitigation Assessment Method (UMAM) evaluation, the functional loss, including direct and secondary impacts, was scored at 1.212 while the functional gain was 1.281. See Fla. Admin. Code Ch. 62-345. With 1.5 acres of direct impacts, one acre of secondary impacts, and 18 acres of mitigation, there are approximately 0.07 excess units of functional mitigation. The UMAM review was not credibly refuted. Petitioners failed to prove that the requirements of rule 40C-4.301(1)(d) have not been met. b. Rule 40C-4.301(1)(f) Rule 40C-4.301(1)(f) requires an applicant to provide reasonable assurance that a regulated activity will not cause adverse secondary impacts to the water resources. Petitioners contend that the project will increase the number and size of boats that use the boat ramp and therefore cause secondary impacts to seagrasses, manatees, and water quality. Secondary impacts occur outside the direct footprint of the project but are very closely linked and causally related to the activity to be permitted. De minimis or remotely related secondary impacts are not considered. To assess secondary impacts, the District evaluates the impacts to wetlands and surface water functions; upland habitat for aquatic or wetland dependent species; and historical and archaeological resources. The project will result in 0.86 acres of secondary impacts to the remaining wetlands adjacent to the road paving and parking area and 0.14 acres of secondary impacts associated with sloughing and boat wake-related impacts. The County has proposed mitigation that will adequately offset the expected secondary impacts. In combination with dredging to only -2.5 MLW and reducing parking space for boat trailers, the mitigation will prevent additional secondary impacts. Also, the boat ramp is significantly smaller than the average boat ramp in the County and is designed specifically for small vessels. Thus, the ramp itself limits the size of the vessel that can launch at the site. Through the use of additional channel markers, signage, and a year-round slow speed zone, there should not be an increased threat of boat collisions with manatees, prop scarring of seagrass beds, or turbidity. Also, the removal of the muck from the channel will be beneficial and reduce turbidity in the nearby waters. Petitioners have stipulated that no wetland dependent listed species on site that use uplands for nesting or denning are at issue. There are no additional phases for this project. Speculation of a future interchange at Interstate 95 and Oslo Road, located many miles to the west of the boat ramp, and any impacts that might occur if one was ever built, was not considered under the District's secondary impact rule. Petitioners failed to prove that the requirements of the rule have not been met. c. Rule 40C-4.302 – Public Interest Test The public interest test for this type of project requires that the County provide reasonable assurance that activities to be located in, on, or over wetlands and other surface waters will not be contrary to the public interest, as determined by balancing seven criteria in subparagraphs 1.-7. of the rule. The test takes into account the positive, negative, and neutral effects of the activity. The parties have stipulated that subparagraphs 3. and 6. are not at issue. They govern navigation, shoaling, and erosion, and historical and archaeological resources. The navigation factor is positive and the archaeological resource factor is neutral. Subparagraph 1. requires the District to determine whether the activity will adversely affect the public health, safety, or welfare or the property of others. The more persuasive evidence supports a finding that the activities will not adversely affect the public health, safety, or welfare of the property of others. Presently, it is difficult to launch and load boats at the ramp due to the area being silted down. This can result in serious safety issues. By dredging this area, public safety will be enhanced. The installation of navigational channel markers and signage will also be beneficial to the public health, welfare, and safety, as will the year- round slow speed zone. This factor is positive. Subparagraph 2. requires the District to determine whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats. The evidence supports a finding that the proposed mitigation is appropriate and more than offsets the proposed impacts. The County eliminated and reduced impacts by more than one-half. The proposed dredging area contains less than 1.5 percent seagrass coverage. The project will not result in adverse impacts to manatee. Finally, the County is proposing 18 acres of mitigation, including the creation of an open water/tidal creek feature which will provide the same functions as the areas being impacted. This factor is positive. Subparagraph 4. requires the District to determine whether the activity will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The evidence supports a finding that the 18 acres of mitigation will improve marine productivity by providing a substantial amount of both mangrove and salt marsh vegetation along the sides of the tidal creek and open water component of fisheries. Also, the County has eliminated and reduced impacts to seagrasses by limiting the dredging area to an area with less than 1.5 percent seagrass coverage. Finally, it has removed the stormwater system from the southern impoundment to avoid a critical fisheries open water habitat. This factor is positive. Subparagraph 5. requires the District to determine whether the activity will be of a temporary or permanent nature. Because the mitigation offsets the adverse impacts, and the mitigation and dredging areas are both permanent in nature, the temporary or permanent factor is neutral. Subparagraph 7. requires an evaluation of the current condition and relative value of the functions being performed by areas affected by the proposed activity. The current condition and relative functions being performed by the areas affected by the project are high functioning. The evidence shows that the project will not change this high functioning aspect of the area. The District also conducted a UMAM review, which considered the relative value of plant communities, hydrology, and other factors, and demonstrated that the mitigation more than offsets the impacts. Finally, the County established that the mitigation area provides the same functions as the impact areas. Therefore, this factor is positive. The District's determination that the project will not be contrary to the public interest is supported by a preponderance of the evidence. Variance Because a portion of the project will be within Class III waters classified by DEP as restricted for shellfish harvesting, the County must qualify for and obtain a variance. A variance may be granted when an applicant demonstrates that it would suffer a hardship, not self-imposed, if the variance is denied. See Fla. Admin. Code R. 40C-1.1002. In determining whether a variance should be approved, the District balances the social, economic, and environmental impacts on the applicant, the residents of the area, and on the State with those same impacts if the variance is denied. The County has demonstrated that the application of rule 40C-4.302(1)(c) and AH sections 10.1.1(c), 12.1.1(d), and 12.2.5(c) would create a hardship in this case by precluding the construction of the proposed accessory dock extension and the dredging of an existing ingress/egress way within the Lagoon that will improve public safety and enhance recreational opportunities for the citizens of the area. There are no viable alternatives that would address the functionality and safety of the existing boat ramp. The hardship is not self-imposed in that the normal processes of erosion, wind, and tides contribute to the accumulation of sand and muck within the ingress/egress access way, which over time has impeded the process of launching and loading vessels at the boat ramp. The narrow channel is bordered on the north and south by productive seagrass beds. The extension of the accessory dock and dredging of the access channel will expedite the loading process and reduce the need for boat operators to circle in the shallow waters waiting their turn to access the ramp. The environmental impact of the project is positive. There will be no harm to the water quality of Class III waters and the shellfish beds. The Department of Agriculture and Consumer Affairs reviewed the project and concluded that it would not result in a reclassification of shellfish harvesting waters. The stormwater treatment on the uplands will result in a reduction of nutrient loading to the Lagoon, which is now designated by DEP as impaired by nutrients. The extension of the accessory dock, along with making the area a year-round slow speed zone, will reduce potential impacts to manatees. The dredging and extension of the dock will be a convenience to the boating public and may enhance public safety during periods of inclement weather or other exigent circumstances. Petitioners failed to prove that all requirements for a variance have not been met.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order granting the County's applications for an ERP and a variance. DONE AND ENTERED this 5th day of August, 2014, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 5th day of August, 2014. COPIES FURNISHED: Hans Tanzler, III, Executive Director St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Marcy I. LaHart, Esquire Marcy I. LaHart, P.A. 4804 Southwest 45th Street Gainesville, Florida 32608-4922 Karen C. Ferguson, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 William K. DeBraal, Esquire Indian River County Attorney's Office 1801 27th Street Vero Beach, Florida 32960-3388
The Issue The issue in this case is whether Conklin Point Development Corp. is entitled to an environmental resources permit for the renovation and reconfiguration of an existing 190-slip docking facility near Wiggins Pass.
Findings Of Fact Previously Permitted Development Respondent Conklin Point Development Corp. (Applicant) owns and operates a docking facility in north Collier County. The docking facility runs along the perimeter of a bulkheaded spoil island located in a small lagoon adjoining the lower reaches of the Cocohatchee River. The 15-acre island is roughly square-shaped with 800-foot sides. A long deadend canal extends into the north side of the island. The deadend canal is about 100 feet wide, 300 feet long on the west side, and 200 feet long on the east side. On the east of the island, two canals connected by a large, earthen- covered culvert separate the island from the mainland. The canals are 90 feet wide. The north canal is 230 feet long, and the south canal is 340 feet long. Applicant also holds a submerged land lease from the Trustees of the Internal Improvement Trust Fund for about four acres of submerged land abutting the spoil island. The submerged land leased to Applicant is 90 feet wide at the south and west sides of the island and 45 feet wide along the west 320 feet of the north side of the island. The west 320 feet of the north side of the island is bounded the east by the deadend canal. On October 27, 1980, the Department of Environmental Regulation issued a permit for the "dredge, fill & construction" of a 223-slip docking facility, installation of 1157 linear feet of vertical concrete seawall, maintenance dredging of 7639 cubic yards of sand and silt to a depth of -5.5 feet NGVD, and installation of 2460 linear feet of riprap with hand-planted mangroves. The 1980 permit required sewage pump-out facilities and prohibited fueling facilities and liveaboards. The 1980 permit cautioned that the issuance of the permit did not constitute "approval or acceptance for dredging access channels to the Gulf of Mexico, via Wiggins Pass, for deep draft vessels." The 1980 permit authorized the conversion of what had been a peninsula to an island. Before completion of the work authorized by the 1980 permit, water could not flow past the land bridge that connected the peninsula to the mainland to the east. The 1980 permit authorized dredging to remove the plug at this location and replace it with a large culvert under the land bridge. Staff Remarks on a draft of the 1980 permit reveal that dissolved oxygen (DO) levels in the north and south canals were "depressed or marginal" and that the removal of the plug could enhance DO levels by enhancing tidal flushing. Addressing the draft of boats that would use the docking facility, Staff Remarks state: "Depth limitations at the River's entrance to the Gulf of Mexico should restrict the size of vessels capable of using this facility." However, the 1980 permit itself contains no limitations on the size of boats allowed to use the docking facility. The 1980 permit was not an operational permit. It was a construction permit that, by its own provisions, expired after three years. However, the 1980 permit was incorporated into a new 25-year submerged land lease entered into November 13, 1991, by the Trustees of the Internal Improvement Trust Fund and Applicant or its predecessor in interest. The submerged land lease authorizes Applicant "to operate exclusively a docking facility in conjunction with the upland residential developments and private club, without fueling facilities, with sewage pumpout facilities, and without liveaboards, as shown and conditioned in Attachment A [the legal description], and the [1980 permit], Attachment B." The lease adds: "No dock or pier shall be constructed in any manner that would cause harm to wildlife." Applicant's predecessor in interest constructed the present docking facility pursuant to the 1980 permit. The docking facility consists of 190 slips on fixed docks. The dock facility has sewage pumpout facilities, but no refueling facilities or liveaboards. Pursuant to a construction permit issued by the Department of Environmental Protection (DEP) in August 1992, Applicant reconfigured and renovated 40 slips in the northeast corner of the existing facility. The 1992 permit contains no restrictions on boat size. Under existing exemptions from permitting, Applicant has redecked the walkways and finger piers. In early 1994, Applicant placed 24 mooring piling at the northwest corner of the island. Applicant has obtained a Collier County building permit for the installation of 99 additional mooring piling, which will be installed if this permit is not granted. Until the recent work, Applicant's docking facility was not maintained and, except for the recent work, is now in poor condition. During the winter season, only about 40 slips are leased, entirely in the northeast corner. About half that many are leased in the summer. Some of the boats using the existing docking facility draw four feet of water or more and have beams of just under 16 feet. If Applicant does not obtain this permit, it will continue to undertake exempt construction activity in conjunction with the development of the spoil island. Applicant plans to construct three residential towers on the island that will contain 136 condominium residences, as well as a 35,000 square foot yacht club facility. The marketing of the upscale condominiums would be facilitated by the improved docking facility resulting from the renovations and reconfiguration sought in this permit application. Proposed Development By Joint Application for Works in the Waters of Florida dated January 12, 1993, Applicant, as owner, requests a permit for the removal of the existing 190 wooden boat slips and construction of 190 new slips with excavation. Applicant proposes the installation of 105 slips on floating docks and 85 slips on fixed docks. Applicant requests DEP approval to fill in the southwest corner of the deadend canal, dredge out a large U- shaped basin in the remainder and east of the deadend canal, dredge narrow strips of sovereign submerged bottom on the west and south sides of the docking facility, extend the walkway docks farther waterward of the west and south sides of the spoil island, and reconfigure the slips. Applicant proposes to remove existing mangroves on the west and south banks of the deadend canal and the south 100 feet of the east bank, as all of this area would be dredged. Applicant would enhance existing mangroves along the west and south sides of the island, where Applicant would also remove nuisance exotics. By letter dated June 4, 1993, Applicant states that it plans to install three channel markers along the western boundary of the boat channel west of the docking facility to mark nearby seagrass beds, as well as manatee education signs at the docking facility. The June 4 letter acknowledges that the proposed activity is in Class II waters. The letter notes that the existing docks have been infested with marine boring organisms and must be replaced to extend their useful life. Attached to the June 4 letter is a draft Agreement & Covenant Running with the Land. The agreement contains signature lines for DEP and Westinghouse Communities of Naples, Inc., even though the introductory paragraph states that the agreement is between DEP and Applicant. The agreement contains lines for signatures to be acknowledged by a notary, but no lines for signatures to be attested by witnesses. The agreement provides that, unless DEP permits, there shall never be installed in the facility any fueling facility, boat maintenance facilities, bait houses, wet bars, or "related non-water dependent uses." The agreement provides that the "marina shall only be operated in a manner consistent with the Conklin Point Yacht Club Rules and Regulations which shall contain the provisions set forth in Exhibit B attached hereto." The agreement requires all members of the yacht club to sign a Membership and Mooring Agreement, which shall inform members of all restrictions and conditions of marina operations. The Agreement & Covenant Running with the Land requires Applicant to monitor and enforce water quality provisions attached in a document titled, "Long-Term Water Quality Program for Conklin Point Yacht Club." The document specifies data sampling and analysis methodologies and provides that, if permitted improvements are "directly related" to violations of water quality standards or a trend toward such violations, Applicant shall enact "necessary remedial measures approved by [DEP] in advance[,]" including a "reduction in the number of available boat slips in the basin." The document calls for checking the water column monthly for oils and grease, fecal coliform bacteria, detergents, and biological oxygen demand (BOD). The document calls for checking sediments annually for aluminum, cadmium, chromium, copper, and lead. In the document, Applicant assumes liability for violations of DEP rules, statutes, and water quality standards, if Applicant fails, through wilful neglect or gross negligence, to monitor or enforce the water quality provisions. The Rules and Regulations attached to the June 4 letter require Applicant's Harbormaster to inspect the condition of overboard discharge systems upon the arrival of a boater intending to lease a slip and pump out any self- contained holding tank, seal any onboard head to prevent its use, and give the boater a key to the upland sanitary facilities. The Rules and Regulations prohibit the pumping of bilges except in the event of emergency and prohibit liveaboard docking, which is defined to mean vessels with habitants docked for more than two consecutive days or seven days in any 30-day period. The Rules and Regulations require the Harbormaster to implement the water quality monitoring program specified by DEP. Also attached to the June 4 letter are water quality reports from Davis Analytical Laboratories. The water quality data reveal violations for oil and grease and copper. Oil and grease readings range as high as 14 mg/l, which is 9 mg/l over the state maximum. Copper readings are very high at 40 and 50 ug/l with the state maximum at 2.9 ug/l. Lead readings are flawed by the use of a detection limit exceeding the maximum level permitted by state water quality standards. In response to the June 4 letter, DEP, by letter dated June 29, 1993, advised Applicant of the problems with the water quality data. Applicant submitted new data indicating no violations and explained that laboratory errors accounted for the earlier reports of water quality violations. Applicant's explanation is partly credited. With the submission of additional date, Applicant has shown that water quality violations do not exist at the docking facility, although issues concerning the public interest remain as to copper and oil and grease. On July 5, 1994, DEP issued a Notice of Intent a permit for the renovation and reconfiguration of the 190-slip docking facility. The July 5 Notice of Intent prohibited boats with a beam greater than 14 feet or a draft greater than three feet from mooring at the facility. The July 5 Notice of Intent permitted the requested dock renovations, as well as dredging, filling, removal of mangroves, and other work. Applicant timely protested the restrictions on beam and draft. Rather than file a formal petition, Applicant obtained from DEP repeated extensions of time within which to file a timely petition. In the meantime, the parties negotiated the size restrictions. Within the original timeframe for filing a petition to challenge the July 5 Notice of Intent, no other party filed a petition or request for extension of time. Eventually, DEP and Applicant reached an agreement on size restrictions. DEP issued a second Notice of Intent to Issue permit on December 21, 1994. The December 21 Notice of Intent approves construction of 105 slips on floating docks on the west and south sides of the docking facility and in the center of the U-shaped basin, plus 85 slips on fixed docks. All slips would be uncovered except for the 13 slips on the floating docks in the center of the U- shaped basin and the 10 slips on the fixed dock in the east part of the north side of the docking facility. The allocations and locations of fixed and floating docks and covered and uncovered slips are unchanged between the two notices of intent. Other unchanged provisions authorize Applicant to remove all existing docks and piers, remove mangroves along the east and south sides and part of the west side of the deadend canal, dredge 1.12 acres of uplands and 0.76 acres of submerged bottom to convert the deadend canal into a U- shaped basin, replace a concrete seawall, dredge 0.5 acres of submerged bottoms along the south and west shorelines of the island, construct a new docking facility to accommodate 190 slips including 23 covered slips, install channel markers and seagrass information signs along the west side of the docking facility and along the main channel from the docking facility to Wiggins Pass, replace exotic vegetation with mangroves along the west and south sides of the docking facility, provide sewage pumpout facilities, install manatee warning signs, and prohibit boat maintenance, fuel facilities, and over-water fish cleaning or disposal. The material changes feature a liberalization of the size restrictions to permit the following mix of boats: 95 slips limited to boats with drafts of three feet or less, 60 slips limited to boats with drafts of up to four feet, and 35 slips limited to boats with drafts of up to four and one-half feet. The December 21 Notice of Intent permits 10 slips to accommodate boats with beams of up to 16 feet and restricts the remaining 180 slips to boats with beams of no more than 14 feet. DEP also required Applicant to acknowledge that the new size restrictions are not to be construed as an approval by DEP for more frequent or extensive dredging of any navigational channels or an indication by DEP of the need for such dredging. Two more changes in the proposed permit were added at the request of Collier County. One requires Applicant to include with all boat slip rental and sale agreements a disclosure of navigational issues at Wiggins Pass, including the use of a three-foot draft design standard for dredging and the establishment of navigation depths only for boats with up to three-foot drafts. The other change added at the request of Collier County requires Applicant to promise that it will not request any extension of the submerged land lease area for the docking facility. This condition limits the length of boats that can dock on the west, south, and west 320 feet of the north side of the island. The Notice Letter accompanying the December 21 Notice of Intent advises of a point of entry for "any person whose interests are substantially affected by the proposed changes in [the above-described conditions.]" Petitioners timely filed petitions challenging the December 21 Notice of Intent. However, Petitioners never challenged the July 5 Notice of Intent. This recommended order requires revisions to the December 21 Notice of Intent for Applicant to provide reasonable assurance that the proposed activity is not contrary to the public interest. The required revisions arise out of the liberalization of size restrictions authorized by the December 21 Notice of Intent. The revisions to the December 21 Notice of Intent concerning copper arise in part from the fact that larger boats would have larger hulls, which would contain more copper for release into the water. Also boats with deeper drafts would disturb the bottom more often and resuspend the copper presently on the submerged bottom. The revisions to the December 21 Notice of Intent concerning copper, oil and grease, and the form of the Agreement & Covenant Running with the Land arise from the fact that the ability to accommodate larger boats assures that the docking facility will moor more boats, which would release more copper and oil and grease into the water and increase the importance of the required revisions concerning copper and oil and grease, as well as the revisions guaranteeing that the Agreement & Covenant Running with the Land is enforceable and recordable. Wiggins Pass System The Cocohatchee River empties into the Gulf of Mexico in the vicinity of Wiggins Pass, which is the northernmost of nine inlets in Collier County. Wiggins Pass is five miles north of Clam Pass and 5.9 miles south of Big Hickory Pass. Applicant's docking facility is about three-quarters of a mile east of Wiggins Pass. The beaches north and south of Wiggins Pass are undisturbed. A state preserve and County park run 1.5 miles north of the pass, and a state recreation area extends a little over a mile to the south of the pass. The Cocohatchee River from east of the Conklin Point docking facility west to Wiggins Pass is known as the East Channel. About a quarter mile east of the pass, the East Channel is joined by the North and South channels. The South Channel is a dredged waterway that runs about a mile through a mangrove swamp to Vanderbilt Lagoon, which has been extensively dredged and filled to serve the canalized subdivision known as Naples Park. There is no interior waterway access to Clam Pass. The south end of the Vanderbilt Lagoon is enclosed by land. The North Channel is also a dredged waterway through a mangrove swamp. This area is less developed than the area to the south of the Cocohatchee River. The North Channel leads to a small lagoon and then meanders through several more small lagoons until it reaches Little Hickory Bay, which separates Bonita Shores from the Gulf beach. Little Hickory Bay connects to a smaller bay that leads directly to Estero Bay. Big Hickory Pass links Estero Bay directly to the Gulf of Mexico. Applicant's docking facility is immediately north of the channel of the East Channel and about one-quarter of a mile east of the North Channel. Between the docking facility and the North Channel is a large mangrove island, smaller mangrove islands and oyster bars, mud flats, and, just west of the docking facility, seagrass beds. Boats from the Wiggins Pass Marina and County boat launch do not use the North Channel, but instead pass between Applicant's docking facility and the seagrass beds to reach the channel of the East Channel. The County boat launch is immediately across from the northeast corner of the Applicant's docking facility. The County boat launch provides 45 wet slips and handles 20,000-25,000 launches annually. Next to the County facility is a U.S. Coast Guard auxiliary facility, which has several slips. Just to the north of the County boat launch and about 150 yards to the northeast of Applicant's docking facility is the Wiggins Pass Marina. This is a full service marina with two boat lifts including one with a 45-ton capacity, gas and diesel refueling facilities, 15 wet slips, and 400 dry stacked slips in buildings. Boat repairs, fish cleaning, and boat launches take place at the Wiggins Pass Marina. The marina stores boats ranging in length from less than 20 feet to a 50-foot Grand Banks with a beam of 15 feet and draft of five feet. The 50-foot Grand Banks is among the largest boats on the Wiggins Pass system. Over 700 boats are presently using the system, including several commercial boats, although 96 percent of these boats have drafts of less than three feet. A number of marinas and docking facilities are upriver of Applicant's docking facility. They include the Island Marina, which provides 80 wet slips and accommodates large boats at the Vanderbilt Drive bridge, and the Vanderbilt Yacht and Racquet Club, which accommodates boats of up to 50 feet in length. Vanderbilt Drive is a north-south road about one- eighth of a mile to the east of Applicant's docking facility. Vanderbilt Drive crosses the Cocohatchee River just south of where it is joined by the road serving Applicant's docking facility. A major arterial road, US Highway 41, is about one mile east of Vanderbilt Drive and also crosses the river further upstream. The estuary contains some oyster beds and seagrass beds. It provides shelter and food for juvenile fish and shellfish. The Wiggins Pass estuary is small and not particularly robust. The estuary is stressed by various factors, but is in equilibrium. The drainage of the Cocohatchee River is not especially large, about 16,000 acres, and, to the east and south, includes areas converting from agricultural to urban land uses. The small drainage, as well as upriver water control structures, limits freshwater infusions and results in relatively high salinities. The estuary is surrounded by a mangrove forest and swamp of at least 1000 acres. The thick mangrove buffer between the estuary and most upland development provides good nutrient uptake. The water of the estuary is stained dark tan, probably from the nearby vegetation. The shallow estuary is relatively well flushed. There is no silty sedimentation in the main channel of the river and East Channel. There is relatively little silty sedimentation around Applicant's docking facility, with the most around the northeast corner, which is the area most heavily used at present. The sand and shell fragments constituting most of the bottom would resettle quickly if disturbed by a prop. Silty sediments exist in the seagrass beds, but these beds are not extensive and are largely limited to the shallows west of Applicant's docking facility. Some of these seagrass beds are in intertidal zones; most of them are in depths of 0-2 feet. Bathymetry Mean low water in the area of the proposed docking facility is -0.25 feet NGVD. This means that, if the elevation of a spot is -5 feet NGVD, water depth, at mean low water, would be 4.75 feet. Mean lower low water in the area is -0.65 feet NGVD or almost one-half foot lower than mean low water. During September, water elevations in the area exceed mean low water 95 percent of the time and exceed mean low water by at least one foot 64 percent of the time. During December, water elevations in the area exceed mean low water 83 percent of the time and exceed mean low water by at least one foot 41 percent of the time. September and December mark the extremes in typical water depths. Averaging all 12 months, water elevations in the area exceed mean low water 89 percent of the time and exceed mean low water by at least one foot 52 percent of the time. The shallowest sides of the docking facility are its west and south sides. The shallowest side is on the south, which is closest to the main channel, where the bottom elevations drop off rapidly from the docking facility to the channel. Numerous short finger piers attached to walkways presently extend from the south and west sides of the docking facility. At mean low water, water depths where the finger piers join the walkway are shallow. At the west end of the south side of the docks, water depth is about 3.5 feet at mean low water. A few slips to the east, water depth decreases to about two feet at mean low water. Depth varies between these values past the midpoint of the south side, where water depth decreases at one point to 1.25 feet at mean low water. Moving toward the east end of the south side of the docks, water depth increases to four feet for a few slips until it decreases again to 2.5 to 3 feet at the east end of the south side of the docking facility. Water depths are slightly greater at the end of the finger piers along the south side. At the west end, depth at mean low water is 5.5 feet. Moving east, depth decreases to the low point of 3.85 feet, but quickly increases to 6 feet by the midpoint. The end of the finger piers on the east half of the south side of the docking facility is typically about 4.5 to 5 feet deep at mean low water. The west side readings are not much different. At mean low water, where the walkway joins the finger piers, depths start at 3 feet at the south end of the west side, then dip to 2.5 feet before returning to 3.5-3.75 feet until reaching the north end of the west side, where depths drop to 2.25 feet briefly before returning to 4.25-4.5 feet. Water depths at the end of the finger piers on the west side drop off more quickly than do depths on the south side. At the south end of the west side, depths at mean low water are about 7.25 feet. Moving north, depths range from 6.5 to 7 feet until the area of the north end of the west side, where depths drop to 5.75 feet briefly before returning to more than 6.5 feet. The water is deeper on the north side, west of the deadend canal. Where the walkway joins the finger piers, depths at mean low water are 4.2-5.5 feet. Depths at the end of the finger piers are about 5.75-7 feet. East of the deadend canal, depths are reported only at the end of the finger piers and are about six feet. The deadend canal has long docks running along its west and east banks. Depths at mean low water along the longer west bank of the canal range from 3 feet at the south end to 4.75 feet at the north end, with most of the readings under 4 feet. Along the east bank, depths range from 4.5 feet at the south end to 5.25 feet at the north end, with most of the readings under 5 feet. Water depths at mean low water at the outer limit of Applicant's submerged lease (90 feet to the south and west) are greater. To the south, depths are generally 6 feet at mean low water with one reading as low as 4.4 feet nearer the southwest corner. To the west, depths are generally 8-9 feet at mean low water. At 200 feet, depths to the south increase to 11-12 feet, as this is the location of the main channel. At 200 feet to the west, depths are all between 8 and 9 feet. Between 200 and 300 feet to the west of the docking facility, water depth at mean low water decreases to as little as 2 feet. Seagrass beds and small islands appear in this area, especially off the southwest corner of the docking facility. Water depths increase much faster off the north side of the docking facility. At 45 feet off the west end of the north side of the docking facility (which is the limit of the submerged land lease), depths are about 6-7 feet at mean low water. Depths are over 7 feet, 45 feet off the east end of the north side of the docking facility. The channel that leads to Wiggins Pass Marina is about 100 feet off the west end of the north side of the docking facility; at this point, depths are about 10 feet. This channel with similar depths runs about 220 feet off the east end of the north side of the docking facility. Depths in the waters on the east side of the island are fairly uniform. Shallowest at the culvert in the middle, bottom elevations of the northern waterway along the east shore of the island range from -4.0 NGVD to - 5.0 NGVD, with most of the readings closer to -5.0 NGVD. Depths in the center of the waterway range from no different to about one foot deeper with the average about one-half foot deeper. The southern waterway along the east shore of the island is also shallowest at the culvert and has slightly deeper depths along the shore, with one reading at -6.0 NGVD, but most at around -5.0 NGVD. Depths in the center of the waterway range from no different to a little over one foot deeper with the average between one-half and one foot deeper. The proposed activity would alter the bathymetry through dredging in three areas and would relocate the walkways and finger piers into deeper waters. Applicant proposes dredging to -5.0 NGVD two strips of submerged bottom along the south and west sides of the island. The southern strip comprises 0.28 acre and runs along the entire side, starting at an average distance of 30 feet from the edge of the island. At its widest, the strip to be dredged is 25-30 feet; at other points, it is only a couple of feet wide. The western strip comprises 0.22 acre and runs along the entire side, starting at an average distance of 35 feet from the edge of the island. At its widest, the strip is 20 feet; at its narrowest, it is about 5 feet wide. Applicant proposes more extensive dredging in the area of the deadend canal. Proposing to fill 0.9 acre at the southwest corner of the canal, Applicant proposes dredging to -6.0 NGVD the remainder of the area (0.76 acre) presently constituting the deadend canal (except for an existing mangrove fringe along the west bank of the deadend canal) and surrounding submerged bottom and 1.12 acres of the existing uplands forming about half of the east half of the north side of the island. This dredging would convert the deadend canal into the U-shaped basin that would be enclosed by seawalls except along the above- described mangrove fringe. The proposed dredging along the west side of the island would largely be confined to an area under the existing walkways with some dredging extending out under a few of the existing finger piers. The proposed dredging along the south side would be under the existing walkways and would extend out to the edge of most of the finger piers as well. The proposed dredging of the basin would, at -6.0 NGVD, create an area shallower than all of the surrounding undredged area, except for a small area about 100 feet east of the northwest corner of the existing deadend canal, where depths are and will remain between -5.1 and -5.6 NGVD. The proposed walkway on the south side would extend 35 feet from the edge of the island. Three ramps would connect the walkway to the island. The proposed dredging is centered under the proposed walkway, extending up to 5 feet waterward of the walkway adjacent to five slips at the western ramp and up to 12 feet waterward of the walkway adjacent to 16 slips near the middle ramp. For the most part, the waterward edge of the dredging along the south side of the island extends to the end of the existing finger piers and blends in well with the existing bathymetry by not creating holes. The proposed finger piers extend about eight feet from the boundary of the submerged land lease, where the bottom elevations are at least -5.0 NGVD, and in most cases at least a couple of feet deeper. The proposed walkway on the west side would extend 40 feet from the edge of the island. Four ramps would connect the walkway to the island. The proposed dredging is mostly behind and landward of the proposed walkway, except that it extends about 3 feet waterward of the walkway adjacent to two slips in the middle of the west side. For the most part, the waterward edge of the dredging along the west side of the island extends less than midway along the existing finger piers. Due to the greater depths on the west side, the proposed dredging, even though less extensive than on the south side, blends in well with the existing bathymetry by not creating holes. The proposed finger piers extend about eight feet from the boundary of the submerged land lease, where the bottom elevations are all -8.0 to -9.0 NGVD. Navigability The Wiggins Pass system is shallow. It is shallow in the pass into the Gulf of Mexico, and it is shallow in the East, North, and South channels. Water depths are relatively good in the narrow channels north and west of Applicant's docking facility. These are the channels run by the large boats using the Wiggins Pass Marina and the many boats using the County boat launch. Off the north side of the island, channel elevations are as deep as -10 feet NGVD. Few bottom elevations rise above -9.0 feet NGVD on the west side, but the elevations never rise above -8.0 feet NGVD. One of two areas of deep water on the west side, where bottom elevations reach -9.3 feet NGVD, is where the channel on the west side narrows to 175 feet between a small island and the boundary of the submerged land lease off the west side of the island. These depths are close to the submerged land leased to Applicant. The second area of deep water to the west of the spoil island is located east of the shallow water and islands that are about 300 feet off the southwest corner of the submerged land leased to Applicant. Here, bottom elevations are as low as -9.9 feet NGVD. Turning toward the west, at the southwest corner of Applicant's island, bottom elevations are around -10 feet NGVD furthest from the two islands and shallows off the southwest corner of Applicant's island. Approaching the south shore of the East Channel, bottom elevations rise from below -8.0 feet NGVD to -6 to -7 feet NGVD. For the most part, bottom elevations in the channel of the East Channel are at least as low as -7.0 feet NGVD until, just west of the mouth of the South Channel, they decrease to at least -10 feet NGVD. The channel of the East Channel runs toward the north shoreline and begins to shallow as it approaches the area just east of Wiggins Pass. However, turns in the channel are gentle and sight lines are good. The channel running 100 feet seaward of Wiggins Pass is shallow; most elevations are -5 to -6 feet NGVD, but one section of the channel has elevations of no deeper than about -4.5 feet NGVD. The choke point of the river is where the shallowest water occurs in the narrowest width of the river. The choke point between Applicant's docking facility and Wiggins Pass is at a point about 750 west southwest of the southwest corner of Applicant's docking facility. The north side of the choke point is marked by two small islands, which lie 200 feet west southwest of the two larger islands off the southwest corner of Applicant's docking facility. North of these islands are the flats and seagrass beds. One hundred forty-five feet south of these islands is the south shore of the river. Two exhibits address directly the navigability of the choke point. Applicant Exhibit Number 17, which was prepared by a navigational expert with no particular expertise in bathymetry, consists of a scaled cross-section of the choke point with water depths at mean low water from one shore to the other shore. The exhibit also includes a scaled 45-foot Grand Banks with a 4' 6" draft, as the vessel would appear approaching, departing, and turning (in full profile). By matching the water line on the map to the water line on the vessel, one can demonstrate that two such vessels could safely pass each other without grounding at the choke point at mean low water. The other exhibit is FWF Exhibit Number 196, which is a blow- up of a drawing prepared by Applicant's engineers. The bottom elevations shown on this map for the choke point reflect that the deepest water, roughly in the center of the channel, is -6.2 feet NGVD, not -7.25 feet NGVD, as shown in Applicant Exhibit Number 17. The engineers' drawing is more credible, given its source. The presence of a bottom elevation as deep as -7.25 feet NGVD on Applicant Exhibit Number 17 is questionable even on the face of the exhibit, which contains what appear to be circular 7 choke point, but none in the choke point itself. However, even if the water depth in Applicant Number 17 is reduced by one foot, two 4' 6"-draft vessels can navigate the choke point, even while passing each other. However, the clearance is not more than three inches at mean low water. Collier County has prepared an Inlet Management Plan for Wiggins Pass. Although it is only in draft form, the Inlet Management Plan is near completion, and its data are relatively reliable, even though its draft recommendations, which reflect policy decisions, may be changed at the time of final adoption. Wiggins Pass is a natural inlet that has been open since 1885. From 1885 through 1927, the pass migrated 250 feet north, where it has since remained. Before 1952, the pass closed periodically. After the north and south channels were dredged in the 1950s, a small unstable inlet two miles north of Wiggins Pass closed. In the 1980s, Collier County and the U.S. Army Corps of Engineers considered a small-boat navigation project. The Corps recommended dredging the north channel to 50 feet wide and seven feet deep, the south channel to 50 feet wide and six feet deep, and the channel through the pass to 1300 feet long, 150 feet wide, and nine feet deep. The project was never undertaken due in part to the County's environmental concerns. A short time later, in March 1984, Collier County sponsored more modest dredging in the area. The County limited the dredging to the pass and did not dredge the East Channel, rejecting one recommendation to dredge the East Channel to six- foot depth. A hurricane quickly erased the results of the 1984 dredging. The pass was dredged next in late 1990 and, after the contractor was fired before the job was complete, in late 1991. The pass was last dredged in late 1993. Since the 1990-91 dredging, the East Channel from the Vanderbilt Drive bridge to just east of Wiggins Pass has been posted with "idle speed, no wake" signs. The navigational improvements achieved by each dredging project have been short-lived. The Inlet Management Plan reports that the "performance of the Wiggins Pass navigation channel has been inadequate." Presently, the draft Inlet Management Plan recommends continued use of the three-foot design depth criteria. The Corps of Engineers has used the three-foot design depths criteria for prior dredging projects. This does not mean that the water is only three feet deep. A depth design criteria of three feet means a total project depth, at mean low water, of eight feet, which accommodates a draft of three feet after allowances of an additional two feet for waves, one foot for squat, and two feet for keel clearance. Squat is the tendency of many boats to dip deeper into the water between idle speed and planing speed. The occurrence and extent of squat at identical speeds varies from boat to boat, depending mostly on hull configuration. There is no significant squat when vessels are operating at no- wake speed. Two factors underscore the navigation difficulties faced by deep-draft boats using the Wiggins Pass system, at least under certain conditions. The Coast Guard maintains two boats at its small docking facility next to the County boat launch. The drafts of these boats is about four feet. The Coast Guard officer in charge of the boats refuses to allow them to leave the dock due to the absence of safe hull clearance. Second, the County has posted at its boat launch facility signs warning boaters that vessels with drafts over three feet are "not appropriate for passage through Wiggins Pass." On balance, Applicant has provided reasonable assurances that the proposed docking facility will not impede navigability. At mean low water, clearances are tight at the choke point for the deepest-draft vessels that would be permitted under the proposed permit. Without additional evidence, the refusal of the Coast Guard officer to use the four-foot draft vessels does not warrant a contrary finding as to the navigability of the system by deep-draft boats. Deep-draft vessels presently use the Wiggins Pass system. The decision of the Coast Guard officer may represent a balancing of the navigation risks against the limited utility or need for the launching of such vessels. The decision of Collier County to post the warning sign at its boat launch may also represent an abundance of caution to warn boaters of the difficulties of navigating Wiggins Pass, at least under certain conditions. Water Quality General The little-studied Wiggins Pass estuary is not particularly susceptible to eutrophication for several reasons. The estuary receives limited freshwater inputs due to the small drainage of the river and upriver water control structures. The content and amount of runoff will change with further urbanization, but the drainage was formerly devoted to agricultural uses, whose runoff is ordinarily nutrient-rich. The prevailing composition of the bottom in the area is sand and shell particles with little silty sedimentation, except in the seagrass beds. The area around the docking facility is not especially silty. Eutrophication could be facilitated by the disturbance of the existing silty sediments, which could lead to increased turbidity, destruction of submerged vegetation, reduced DO levels, and increased biological oxygen demand. In this case, though, use of the renovated docking facility would not likely disturb the silty sediments. Silty areas are mostly coextensive with seagrass beds in the area, and there are relatively few areas inhabited by seagrasses. Various natural factors, such as high salinities, have discouraged the propagation of seagrasses. The dark-colored water reduces the depth at which sunlight can penetrate, which stresses existing seagrasses and reduces the depth at which they can grow. Much of the existing seagrasses are covered in algae, which reduce the photosynthetic potential of the seagrass. If the limited silty sediment in the vicinity of the docking facility were stirred up, it would not travel west into the seagrass beds. Instead, silty sediments would travel north on an incoming tide and south on an outgoing tide. Once pulled south into the channel of the East Channel, the sediments would travel west through the relatively deep channel and out into the Gulf. Nor would the existing seagrass beds be disturbed by the bigger vessels authorized in the December 21 Notice of Intent. Vessels with drafts of three feet or more would not traverse the seagrass beds, which would for the first time be marked if the permit were granted. Scarring of the beds and suspension of the sediments are caused by smaller boats cutting across the shallows to save time or entering the shallows to fish. Larger boats could produce larger wakes, which would disturb the silty sediments in the shallows. However, the idle speed, no wake zone adjacent to the seagrass beds limits vessels to speeds that produce little, if any, wakes. It is likely that Applicant's boaters would comply with the speed limit in the vicinity of the seagrass beds due to their proximity to the docking facility. Such boats, especially larger vessels, would still be navigating their departure from or approach to the docking facility when they were in close range of most of the seagrass beds and would be operating slowly for that reason. Although other boaters might disregard the speed limit, the presence of more boating activity around Applicant's docking facility might require slower operation of boats passing by. Flushing of most materials from the area would probably be satisfactory following the proposed renovation. Flushing is the periodic removal of water, including materials in the water column, by tide and sometimes wind. Flushing would be aided by the addition of the U-shaped basin and dredging to shallower depths than the surrounding bottom. The flushing calculations of Applicant and DEP are very rough and represent no more than approximations. Even so, Applicant has provided reasonable assurances that the reconfigured docking facility would adequately flush, if revisions are made to the December 21 Notice of Intent concerning copper, oil and grease, and the covenants. While satisfactory to preclude findings of water quality violations, Applicant's explanation of the initial readings of these materials does not answer all concerns about copper and oil and grease in the water. Copper and oil and grease remain problematic due to the initial readings, questionable methodologies of data collection and analysis in subsequent water quality reports (including insufficient data collection and, in the case of oil and grease, the collection of data when an unreasonably small number of boats were in the area), anecdotal reports of sheens in the water, and the introduction of more, larger boats if this permit were issued. Copper Copper is a heavy metal that is toxic to a wide range of marine organisms. When released into the water column, copper sinks relatively rapidly to the bottom. Copper will remain trapped in silty sediments until it is disturbed and resuspended into the water column. The record does not reveal whether copper is so heavy relative to tidal action as to resist transport once it sinks to the bottom of a sandy or shell-dominated bottom. Due to copper's toxicity, it is added to hull paint in order to discourage marine life, such as barnacles, from attaching to the hull and damaging the boat. The copper in hull paint prevents marine life from attaching to the hull as long as copper is exposed on the hull surface in its unoxidized state as cuprous oxide. The primary means by which copper is exposed and enters the water is through ablation. Ablation is the shedding of paint through physical abrasion. Physical abrasion typically takes place by running the boat through water or sanding or scrubbing the hull in order to expose cuprous oxide. Ordinarily, as much as 95 percent of the copper released by ablating paint is released while the boat is running. However, physical abrasion may also release copper if the hull grinds against the bottom while the boat is in operation or moored. The hardness of the paint determines its resistance to ablation. A harder paint releases copper more slowly, per unit of abrasion, than a softer paint. There is no optimal hardness of paint because of the different operating conditions to which boats are subject. A small boat normally operated at low speeds requires a softer paint more susceptible to ablation than a boat operated at high speeds in open water. Use of the softer paint on a boat operating at high speeds releases copper into the water at a greater rate than is necessary to discourage barnacle formation. However, owners of boats suitable for harder paints may purchase softer paints because their initial cost is cheaper. The copper in the soft paints will wear off at excessive rates in the presence of high levels of abrasion. Improper use of soft paints necessitates more frequent repainting of hulls and results in depositing greater amounts of copper into the water column than would be deposited if the hardest suitable paint were used. Although they would be in deeper water due to the proposed dredging, the new walkways and landward ends of slips would remain in fairly shallow water at mean low water. Some hydraulic disturbance of silty sediments will take place when props operate in these areas. While mean low water is the lowest water condition relevant for navigability determinations, lower water conditions are relevant in assessing the effects of moored boats on submerged bottom around the docking facility. Owners may reasonably be expected to operate their boats in the Wiggins Pass area less frequently, if at all, during the relatively infrequent events of water lower than mean low water. But during much of this time, the boats will be moored at the docking facility, and, in many slips, deep-draft boats will grind on the bottom. The rough flushing calculations offered by Applicant and DEP provide reasonable assurance that materials other than copper and oil and grease suspended in the water column will be quickly carried by tides out to sea. Such materials have not been detected at the same levels as copper and oil and grease, and most of these materials have different characteristics in terms of amenability to tidal-born transport. However, the record does not preclude the reasonable possibility that heavy copper does not remain suspended as long and may merely be redeposited in the same area, thereby taking longer to flush. The initial data were consistent with such a possibility. In any event, the rough flushing calculations of Applicant and DEP do not provide reasonable assurance as to copper, unless Applicant is required to take additional precautions as to copper. By ensuring the use of the hardest suitable paint on the hulls of boats moored at Applicant's docking facility, Applicant can reduce the loading of copper into the water around the docking facility and thus provide the necessary reasonable assurance as to copper. The December 21 Notice of Intent must be revised in several respects for Applicant to provide reasonable assurance as to copper. The December 21 Notice of Intent must require that owners of boats moored at the docking facility shall be required to obtain, by purchase or otherwise, their hull paint from Applicant, when such paint is needed. Applicant shall provide, by sale or otherwise, the hardest suitable paint, given the intended use of the boat based on its size and operating characteristics. This requirement shall be added to the rental and sale documents and the Rules and Regulations of the docking facility, and shall further provide that, after commencing use of the docking facility, boats receiving an application of copper hull paint not obtained from Applicant shall be prohibited from using the docking facility. Additionally, the December 21 Notice of Intent must revise the "Long- Term Quality Program for Conklin Point Yacht Club" to require monitoring the water column monthly and sediments semi-annually for copper. The portion of the "Long- Term Quality Program for Conklin Point Yacht Club" imposing liability on Applicant for water-quality violations is rendered ambiguous by the final clause cited in Paragraph 21 of the recommended order appearing to condition liability on the failure of Applicant to monitor or enforce water quality provisions. The language must instead read that Applicant is liable for all violations of law and for all violations of the "Long-Term Quality Program for Conklin Point Yacht Club," including failures to monitor or enforce water quality provisions. Oil and Grease As was the case with copper, oil and grease are of especial concern because Applicant initially reported excessive levels of these materials in the area of the docking facility. As was the case with copper, the rough flushing calculations of Applicant and DEP do not adequately address oil and grease, which tend to remain at or near the surface of the water column and are loaded into the water at times and locations--namely, during the operation of the engine or bilge pump. The evidence fails to establish whether small or large engines tend to contribute more oil and grease into the water through blow-by or otherwise. However, engine operation releases oil and grease, and poorly tuned engines contribute unnecessarily large volumes of oil and grease into the water. Significant amounts of oil and grease are present in the bilge water. Restrictions on the voluntary operation of bilge pumps are ineffective to prevent the discharge of oil and grease from the bilge into the water column. Bilge pumps also operate automatically and cannot be disconnected without risking the loss of the boat. However, by limiting the amount of oil and grease released into the water from bilge pumps and poorly tuned engines, Applicant can provide reasonable assurance as to oil and grease. One of Applicant's expert witnesses, Captain Irons, has designed an absorbent pad that, when installed in a hull, traps oil and grease, but not water. The December 21 Notice of Intent must be revised to require that owners of boats moored at the docking facility for more than two consecutive days or seven days in any 30-day period must obtain, by purchase or otherwise, such or similar absorbent pads at intervals recommended by the manufacturer or such more frequent intervals determined after inspection by the Harbormaster, who shall discard the used pads in a manner approved by DEP. The requirement shall further provide that boats without absorbent pads shall be prohibited from using the docking facility. As to the operation of engines, the December 21 Notice of Intent must be revised to require Applicant to inspect all boats moored at the docking facility or obtain mechanics' certifications, when the boats first moor at the facility and at appropriate subsequent intervals, to ensure that the engines are properly tuned so as to release into the water as little oil and grease as practical, given the size, type, and age of the engine. The requirement shall further provide that boats with improperly tuned engines shall be prohibited from using the docking facility. The requirements concerning oil and grease shall be added to the rental and sale documents and the Rules and Regulations of the docking facility. Manatees Manatee use of the Wiggins Pass area, including the area of Applicant's docking facility, is not significant. Manatee deaths have been significant elsewhere in Collier County, but not in this area, despite the presence of many boats, including deep-draft boats. Although manatee may travel through the Wiggins Pass area, they do not remain for long in the area, probably due to the relatively high salinities and lack of suitable forage. Applicant has thus provided reasonable assurance that the proposed activity will not endanger manatees in the area. Alternative Development Options and Cumulative Impacts Applicant and DEP suggested comparative review of the impacts of the proposed activities with activities that Applicant could legally undertake without the requested permit. However, Applicant's threat to proceed with the development of the docking facility if the application were denied is not credible. The shallow slips discourage use of the current docking facility by the deep-draft boats that are central to Applicant's upscale marketing scheme. Very few slips on the south side and only a few more slips on the west side would accommodate deep-draft boats without substantial grinding of boat hulls into the bottom. Marketing resistance would be high with respect to these unattractive slips where expensive boat hulls would risk damage--a fact implicitly acknowledged by Applicant in its investment of considerable time and money in the present application and repeated demands for expedited resolution of this case. Besides marketing difficulties, exploiting the existing permits could present additional problems. More extensive use of the north side of the docking facility would likely contribute to water quality violations in the poorly flushed deadend canal and possible the waterway to the east of the island. For these reasons, the arguments of Applicant and DEP based on alternative development, which DEP casts as a "cumulative-impact" issue, have been disregarded. Petitioners raise a cumulative-impact issue in warning that, if Applicant obtains the requested permit, other marinas will wish to expand to accommodate more deep-draft boats and deeper dredging of Wiggins Pass and the East Channel will result. Permitting issues are determined on a case-by-case basis. The water quality and bathymetry, among other factors, at an area marina may or may not be comparable to the water quality and bathymetry at Applicant's docking facility. As found in this case, the existing depths in the East Channel (at least at and west of Applicant's docking facility) and Wiggins Pass are sufficient to allow boats of the drafts involved in this case. Nothing in December 21 Notice of Intent precludes DEP from making the necessary case-by-case determinations if area marinas apply for permits to expand. Petitioners' concern that the issuance of the December 21 permit would result in the deeper dredging of the East Channel and Wiggins Pass is misplaced. The proposed activity will put more, deep-draft boats on the water. The County resists deeper dredging. This permit informs boaters that the current design standards for the channel and pass will not change. Numerous environmental factors would presumably oppose navigational factors arising from the presence of more, deep-draft boats using the Wiggins Pass area. And boaters using Applicant's docking facility have been warned in about every way imaginable that the Wiggins Pass area requires competent, prudent navigation, and they are taking the area as they find it with dredging in accordance with a three-foot design depth.
Recommendation Based on the foregoing, it is RECOMMENDED that Department of Environment Protection issue the permit that is the subject of the December 21 Notice of Intent with the following new conditions: The Agreement & Covenant Running with the Land shall be revised to identify as the grantor or grantors the parties holding the fee simple to the spoil island and holding as lessee the submerged land lease and require all necessary authorizations, attestations, and authorizations to render the covenants enforceable and recordable. The permit accompanying the December 21 Notice of Intent shall be revised to require Applicant to incorporate into the rental and sale documents and Rules and Regulations of the docking facility the language described in Paragraphs 116 and 122-24. The "Long-Term Water Quality Program for Conklin Point Yacht Club" shall be revised as indicated in Paragraph 117. ENTERED on October 2, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on October 2, 1995. APPENDIX Rulings on Petitioners' Proposed Findings 1-5 (first sentence): adopted or adopted in substance. 5 (remainder): adopted or adopted in substance, except with further details as to meaning of three-foot design standard. 6-9: adopted or adopted in substance. 10: see paragraph 5. 11-15: rejected as subordinate. 16-21: adopted or adopted in substance. 22: adopted or adopted in substance as to December 21 permit. 23-24: adopted or adopted in substance. 25: adopted or adopted in substance except as to substantial areas of seagrass. 26: adopted or adopted in substance except more than two. 27-28: adopted or adopted in substance. 29: adopted or adopted in substance, but not that shallow. 30: adopted or adopted in substance, but the productivity of the seagrass is questionable. 31-34: adopted or adopted in substance, although the estuarine system is stressed. 35-36: adopted or adopted in substance. 37: see paragraph 5. 38-39: adopted or adopted in substance. 40-41: rejected as subordinate. 42: adopted or adopted in substance as to squat, although no squat is probably more prevalent at no wake speeds. 43-44: adopted or adopted in substance. 45-49: rejected as subordinate. 50-54: adopted or adopted in substance. 55-57: rejected as subordinate. 58: rejected as unsupported by the appropriate weight of the evidence. 59-63: rejected as subordinate and irrelevant. 64: adopted or adopted in substance under certain conditions. 65-67: rejected as subordinate and unsupported by the appropriate weight of the evidence. 68-69: rejected as unsupported by the appropriate weight of the evidence. 70: adopted or adopted in substance. 71-73: rejected as subordinate. 74: adopted or adopted in substance. 75-76: rejected as unsupported by the appropriate weight of the evidence. 77-82: adopted or adopted in substance. 83-87: rejected as irrelevant for findings concerning navigability. 88-89: adopted or adopted in substance. 90: adopted or adopted in substance, but, as to pollution, subject to findings in recommended order concerning such matters as location of silty sediments and direction flow of resuspended sediment. 91: rejected as irrelevant for findings concerning navigability. 92: rejected as unsupported by the appropriate weight of the evidence. 93-94: adopted or adopted in substance. 95-108: rejected as subordinate and recitation of evidence. 109-10: adopted or adopted in substance. 111: rejected as unsupported by the appropriate weight of the evidence. 112: rejected as irrelevant. 113: adopted or adopted in substance, substituting "ablation" for "erosion." 114: rejected as unsupported by the appropriate weight of the evidence, at least, based on the present record, in significant amounts relative to copper introduced into marina waters through ablation. 115-16: adopted or adopted in substance. 117: rejected as unsupported by the appropriate weight of the evidence. 118-27: rejected as unsupported by the appropriate weight of the evidence and subordinate. 128-30: rejected as subordinate. 131-36: adopted or adopted in substance. 137-39: rejected as unsupported by the appropriate weight of the evidence. 140-41: rejected as irrelevant. 142-63: rejected as subordinate and repetitious. 164-67: except for copper and oil and grease, rejected as irrelevant given location of seagrass beds and direction of tidal flow. 168: rejected as unsupported by the appropriate weight of the evidence. 169-70: rejected as irrelevant. 171: adopted or adopted in substance to some extent. 172-74: rejected as irrelevant. 175: adopted or adopted in substance except as to explanation. 176: rejected as subordinate. 178-212: rejected as unnecessary, although some of these proposed findings were adopted in connection with findings, generally in agreement with the objective of this section of Petitioners' proposed recommended order, that Applicant's threat to develop the docking facility without the subject permit was not credible. 213: adopted or adopted in substance. 214-15: rejected as unsupported by the appropriate weight of the evidence. 216: rejected as unnecessary. Rulings on Applicant's Proposed Findings 1: adopted or adopted in substance except for last sentence. 2 (second sentence and reference to permit's expiration): rejected as unsupported by the appropriate weight of the evidence. 2 (remainder): adopted or adopted in substance. 3: rejected as irrelevant. 4: adopted or adopted in substance. 5-7: adopted or adopted in substance to extent reflected in recommended order. 8: rejected as subordinate. 9-14 (first two sentences): adopted or adopted in substance. 14 (remainder): rejected as repetitious. 15-16: rejected as subordinate. 17: adopted or adopted in substance. 18: rejected as subordinate. 19: adopted or adopted in substance with some exceptions. 20: rejected as unsupported by the appropriate weight of the evidence. 21: adopted or adopted in substance except for stability of inlet and characterization of draft Inlet Management Plan. 22 (first four sentences): adopted or adopted in substance. 22 (fifth through seventh sentences): rejected as subordinate. 22 (eighth sentence): adopted or adopted in substance. 23-24: adopted or adopted in substance except as to extensive development. 25-26: adopted or adopted in substance except as to the docking facility being virtually surrounded by marinas. 27: rejected as subordinate. 28: rejected as repetitious and subordinate. 29: rejected as unnecessary. 30: adopted or adopted in substance. 31: rejected as unsupported by the appropriate weight of the evidence except for the auxiliary unit. 32-34: adopted or adopted in substance except that mean low water is applicable for navigability, not mooring, considerations. 35-39: adopted or adopted in substance. 40: rejected as unsupported by the appropriate weight of the evidence. 41-46: adopted or adopted in substance. 47-48: rejected as subordinate. 49: adopted or adopted in substance. 50: rejected as unnecessary. 51: rejected as recitation of evidence. 52: adopted or adopted in substance as to mean low water. 53: rejected as repetitious and subordinate. 54: rejected as unsupported by the appropriate weight of the evidence, not without the additional requirements set forth in the recommended order. 55: adopted or adopted in substance. 56-59: rejected as subordinate. 60-61: adopted or adopted in substance. 62: see paragraph 54. 63: adopted or adopted in substance. 64-65: rejected as recitation of evidence. 66-74: adopted or adopted in substance. 75: rejected as recitation of evidence. 76-81: adopted or adopted in substance. 82: rejected as subordinate. 83-93: adopted or adopted in substance, but see paragraph 54. 94: adopted or adopted in substance. 95-96: adopted or adopted in substance. 97: adopted or adopted in substance. 98: rejected as unsupported by the appropriate weight of the evidence. 99: adopted or adopted in substance. 100-01: rejected as unsupported by the appropriate weight of the evidence, to the extent of contrary findings in the recommended order. 102-05: rejected as subordinate and unnecessary. 106: adopted or adopted in substance except as to copper and oil and grease, unless the additional requirements are adopted. 107: rejected as repetitious. 108-10: rejected as subordinate. 111: adopted or adopted in substance. 112: rejected as subordinate. 113 (except last sentence): rejected as recitation of evidence and subordinate. 113 (last sentence): adopted or adopted in substance. 114: adopted or adopted in substance, as long as moored boat is not grinding on bottom. 115: rejected as unnecessary. 116: adopted or adopted in substance. 117-18: rejected as subordinate. 119-20: adopted or adopted in substance with the additional requirements noted in the recommended order. 121 (first half): rejected as recitation of evidence. 121 (second half): adopted or adopted in substance with the additional requirements noted in the recommended order. 122: rejected as legal argument and repetitious. 123: rejected as legal argument. 124: adopted or adopted in substance with the additional requirements noted in the recommended order. 125: rejected as unsupported by the appropriate weight of the evidence and unnecessary. 126: rejected as unsupported by the appropriate weight of the evidence. 127-29: adopted or adopted in substance. 130: adopted or adopted in substance. Rulings on DEP's Proposed Findings DEP submitted only proposed conclusions of law. 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, FL 32399-2400 David G. Guest Karen A. Putnal Dean E. Aldrich Sierra Club Legal Defense Fund P.O. Box 1329 Tallahassee, FL 32302 Deborah A. Getzoff E. A. "Seth" Mills, Jr. Erin R. McCormick Fowler White P.O. Box 1438 Tampa, FL 33601 John L. Chaves Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact The Applicant. Intervenor, Jacksonville District, United States Army Corps of Engineers (Corps), has applied to Respondents, Department of Natural Resources and the Board of Trustees of the Internal Improvement Trust Fund (the State), for consent to maintenance dredge the federal navigation channel between Gordon Pass and Naples, Florida, and deposit beach-quality sand dredged from the channel on and immediately seaward of beaches south of Gordon Pass on Keewaydin Island (the spoil area). In 1960, Congress enacted Public Law 86-645 authorizing the Corps to dredge and maintain a channel from the Gulf of Mexico through Gordon Pass to the City of Naples. The channel was first dredged by the Corps in 1962. Maintenance dredging was performed in 1967,-1970 and 1979/1980. The City of Naples has been and is the local sponsor of the project. The Corps is authorized to place beach-quality dredged sand material on beaches selected by the local sponsor but only if deemed appropriate by the Corps and if no more costly to the Corps than other appropriate alternatives. The spoil area begins about 500 feet south of Gordon Pass and extends approximately 4,000 feet to the south. Except for the spoil area, Keewaydin Island from Gordon Pass to approximately one mile to the south is privately owned and privately patrolled. However, the spoil area was deeded to the State of Florida by quit claim deed in 1979. The spoil area is therefore publicly owned property and legally is available for use by the public. The only restriction on the public ownership of the spoil area is that the State not permit any use of the spoil area "which may be injurious to the business, person or property" of Key Island, Inc., the Florida Corporation which transferred the spoil area to the State, and that Key Island, Inc., reserves "a perpetual easement over and [sic] such property to the waters of the Gulf of Mexico for its successors, assigns, tenants, guests, and licensees." Petitioners' Standing. Petitioners, John R. Donahue and Rhodora J. Donahue, husband and wife (the Donahues), own the land constituting approximately the western half of the Point of land immediately to the north of Gordon Pass, including approximately 500 feet of beachfront (the Point). The Donahues acquired this property for approximately 2.5 million dollars. The Donahues also own a beachfront residence and lot some distance to the north of the Point worth at least $500,000. To the north of Gordon Pass almost as far as Doctors Pass approximately 6 miles to the north, the sand along the beaches is transported in a net southerly direction. At least some of the sand the Corps plans to remove during its maintenance dredging of the channel at Gordon Pass and deposit in the spoil area came from the beaches to the north of Gordon Pass, including the beaches in front of the Donahues' properties. The net southerly drift of this sand has contributed to the erosion of the beaches adjoining the Donahues' property, as well as the properties themselves. Due to ebb tidal shoals west of Gordon Pass, increased in size by channelization and dredging of Gordon Pass, the net littoral transport immediately and approximately one mile to the south of Gordon Pass reverses to a northerly direction. The net northerly littoral transport of this reversal is at a lower rate than the net southerly littoral transport to the north of Gordon Pass. In addition, a rock jetty along the northern end of Keewaydin Island and extending several hundred feet west into-the Gulf, while not sand tight, slows the transport of sand north into Gordon Pass. Finally, sand that does drift north into Gordon Pass settles at the bottom of the channel and is not carried across the channel to the Point and land to the north, including the Donahues' properties. For these reasons, the Donahues are substantially affected by the maintenance dredging of Gordon Pass and placement of beach quality dredge material in the spoil area so as to have standing as parties Petitioners in this case. Littoral Transport System Near Gordon Pass. Littoral transport is a function of the direction and strength of waves, primarily wind-driven in the Gulf of Mexico in the area of Naples and at highest strength during storms, and the angle at which the waves strike the beach. The angle at which waves strike a beach is a function of the direction of the waves (itself a factor of both the direction of the wind driving the waves and the contour of the ocean bottom) and the direction along which the beach is oriented at the Point of impact. The time of day and season of the year with their impact on tides, also affect littoral transport. Because littoral transport is effected by so many factors, littoral transport changes in both direction and quantity from time to time and at various places along a beach. Average net littoral transport is the result of the combined effect of all these factors over a stretch of beach over a period of time. Although conceptually there is such a thing as average net littoral transport, different Points along the beach have different littoral transport qualities at different times. The presence of inlets or passes is one cause of this phenomenon. The type of inlet or pass - whether natural', or having one or more jetties and/or being dredged - also affects littoral transport in and around an inlet or pass. Both the Naples beaches to the north of Gordon Pass and Keewaydin Island to the south of Gordon Pass show the effects of Gordon Pass on littoral transport. The Point property immediately to the north of Gordon Pass generally has been receding over time in recent years. This is because the increasing tidal prism (or quantity of water having to be transferred in and out of Gordon Pass to fill increasing inland waterways) has been blocked to the south by a jetty along the northern end of Keewaydin Island. As a result, the Point has suffered erosion. In addition, as previously mentioned, sand transported south into the Gordon Pass channel cannot return to the beaches on the Point. Neither does sand from Keewaydin Island get transported across the channel to the Point. In addition, the beach at the Point angles to the southeast, more nearly parallel to the predominant direction of waves striking the beaches at that Point. Sand at the Point is therefore transported more quickly and in larger quantities to the south into Gordon Pass than is sand transported to the south at points further north along the Naples beaches. Finally, seawalls located immediately to the north of the Donahues' property on the Point exacerbate erosion on the Point beaches. The beaches immediately to the south of Gordon Pass, on the other hand, have accreted and are stable. Due to the jetty at the northern end of Keewaydin Island, the average net northerly littoral transport at that location - both of naturally occurring sand and sand placed in the spoil area in previous Corps maintenance dredging of Gordon Pass - have accreted to the northern Keewaydin Island beaches to the extent of the capacity of the jetty to contain the sand being transported. Once capacity is reached, the sand is transported around the jetty to the west into the Gordon Pass channel and through the pervious jetty into the Gordon Pass channel at various times depending upon weather and tide conditions. However, to the south, probably somewhat south of the southern end of the spoil area, the average net northerly littoral transport again reverses. Having escaped the reach of the effect of Gordon Pass, the littoral transport system returns to its average net southerly drift. In the area of this reversal. Point (the precise location of which, of course, varies from time to time), the beaches of Keewaydin Island are subject to rather severe erosion. The beaches in that area are eroded both to the north and to the south and are nourished from neither direction to significant degree. Further south on Keewaydin Island, the beaches are more stable. Near the southern tip of Keewaydin Island, at a natural inlet called Hurricane Pass, the beach is accreting and Keewaydin Island is expanding to the south. The Naples beaches to the north of the Point are generally stable. There has been some accretion near the Naples fishing pier at 12th Avenue South. However, there are some places along the Naples beach which are eroding. These areas include the area of the reversal Point south of Doctors Pass to the north, beaches in front of seawalls, and beaches immediately downdrift of the several groins along the Naples beaches. Public Use of The Beaches. The Naples beaches between approximately 7th Avenue North and 20th Avenue South are readily accessible to the public and are moderately to heavily used by the public, especially on weekends and during the four-month winter tourist season. Access to the Naples beaches south of 20th Avenue South is limited, with only three public access Points along that one to two mile stretch of beach. The property contiguous to the Naples beaches is privately owned. Essentially, as one continues south along the Naples beaches towards the Point, the beaches become less accessible to the public, and, as a practical matter, are used more by the owners of the substantial beachfront residences, their friends and guests. Like the property contiguous to the Naples beaches, Keewaydin Island is almost entirely privately owned. The only exception is the spoil area itself. In addition, like the Naples beaches, the beaches seaward of the mean high water line also are in the public domain. However, legal access to the public portions of Keewaydin Island is only by boat from the Gulf side. In addition, Key Island, Inc., through its representatives, has discouraged public use of even the public portions of Keewaydin Island by claiming that they are part of Key Island, Inc.'s property. As a result, the beaches of Keewaydin Island are virtually unused by the public. The only exception to this is the extreme southern spit of Keewaydin Island where the sand has been accreting and expanding the public beach. Access to the southern spit also is limited to boat, but it is accessible from all three sides of the spit, and the spit is used more by the public for recreational purposes than is the rest of Keewaydin Island. Development Along The Beaches. The Naples beaches are almost fully developed. From the Point north to approximately 4th Avenue North, development is primarily single family residences. From 4th Avenue North north to Doctor's Pass, development is mostly in the form of condominiums or other multi-family development. The residences in Olde Naples from approximately 5th Avenue South to the Point are relatively close to the beach, having previously been constructed seaward of the current coastal setback line. Likewise, several seawalls in the area, including in front of the condominium and other multi-family development to the north also are quite close to the beaches. On the other hand, Keewaydin Island is largely undeveloped. Besides the cluster of structures making up the Key Island Club on the northern tip of the island, there is no other development at all on the property owned by Key Island, Inc. In addition, there are only approximately 10 cottages on the part of the island south of the property owned by Key Island, Inc. Much of the island consists of mangroves and estuaries not suitable for development and not likely to be developed. In fact, Keewaydin Island is under consideration for purchase and preservation by the State under the Conservation and Recreation Lands Trust Fund Program. Need For Maintenance Dredging. Due to the littoral drift previously discussed, Gordon Pass and the channel to Naples needs to be dredged for navigation purposes every five to six years. The channel was last dredged in 1979 or 1980. The Corps usually maintenance dredges on a four-to-five year cycle, depending on weather conditions and other factors affecting littoral drift. While weather was relatively mild in the 1970's, weather in the early 1980's has been relatively severe. As a result, the channel now needs maintenance dredging along with the other maintenance dredge projects now taking place in southwest Florida. If the channel is not dredged now, it probably will be overdue for dredging by the time of the next maintenance dredging cycle in approximately 1990. Propriety Of The Spoil Area. At this time, the system of groins north of Gordon Pass are not adequate to contain or significantly slow the flow of sand to the south. The groins are in disrepair, and the terminal groin is approximately 200 feet or more shorter than it needs to be for this purpose. Sand pumped from the dredge north the same distance as sand is planned to be pumped south to the spoil area would make its way back into the Gordon Pass channel within two years. Several studies of the Naples beaches, beginning with a Corps study in 1972 through a "study to end all studies," as former City of Naples Mayor Rolland Anderson put it, by a blue ribbon committee appointed by the City of Naples, all recommended repair of the groin system and the extension of the terminal groin so as to enable the Corps to deposit dredged beach-quality sand material north of Gordon Pass. In 1982, the City of Naples finally took action to apply for State permits and funding of that project, among others, and to fund the City's portion of the cost of the project. However, the City withdrew its application in November 1982 and did not re-commit itself to the project until August 1985. The City now has applications for State funding and permits pending but funding and start of the project cannot be anticipated for another 1 to 2 years. Without an improved groin system and extension of the terminal groin, dredged sand would have to be spread on the Naples beaches to the north starting at least 6,000 feet to the north of Gordon Pass in order to prevent the sand from moving in the Gordon Pass channel within the Corps' normal maintenance dredging cycle. The City was advised as early as 1979 that this option for deposit of beach-quality dredged sand was only available if the city would fund the extra cost of pumping the sand that distance to the north, estimated at the time to be approximately $3-66,000, and would procure all necessary easements and permissions from affected private property owners. The City of Naples has never taken any of the steps necessary to effectuate this option. Given current circumstances, there is no viable alternative to the proposed spoil area. The Corps refuses to fund the extra cost of pumping dredged beach quality sand material an additional 6,000 feet to the north. Neither the City of Naples nor anyone else has agreed to fund the extra cost. Pumping sand an equal distance to the north (i.e., starting at 500' and spreading sand from there 4000' to the north) is inappropriate given the current condition of the groin system on the Point. (Such an option would maximize, not minimize, the need for maintenance dredging.) Given current circumstances, it is not contrary to the public interest to maintenance dredge the Gordon Pass channel to Naples and deposit beach-quality dredged sand in the proposed spoil area. The spoil area is primarily north of the reversal Point to the south of Gordon Pass in the littoral transport system in and around Gordon Pass. For that reason, a substantial portion of the sand deposited in the spoil area can be expected to eventually make its way back into the Gordon Pass channel in the future. The next time the Gordon Pass channel is maintenance dredged, this same sand can be redeposited elsewhere given the right circumstances. From a coastal engineering standpoint, beach quality sand dredged from the Gordon Pass channel should be returned to the place in the littoral transport system from which it came, i.e., some to the north and some to the south. As previously stated, sand cannot be redeposited to the north while minimizing the need for future maintenance dredging without either improving the groin system and extending the terminal groin on the Point or depositing the sand a substantial distance to the north of the Point. Redepositing the sand further to the north would have the additional benefit of maximizing recreational benefit to the largest portion of the public and helping to protect the valuable beachfront private property from storms. But the question whether to take the steps and provide the funding necessary to achieve these benefits is essentially a political question.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that Respondents, Board of Trustees of the Internal Improvement Trust Fund and Department of Natural Resources, grant the application of Intervenor, Jacksonville District, United States Army Corps of Engineers, for consent to maintenance dredge the Gordon Pass to Naples channel and deposit beach-quality dredged sand in the proposed spoil area on Keewaydin Island. RECOMMENDED this 18th day of April, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings 2009 Apalachee,Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of April, 1986. APPENDIX Rulings On Corps' Proposed Findings Of Fact. The substance of the following Corps' proposed findings of fact are accepted as substantially factually accurate and are incorporated in the findings of fact in the same or a modified form to the extent necessary: 1-3, 5, 7-10, 13, 14, 17, 19 and 21. The Corps' proposed findings of fact 18 would have been included in the paragraph immediately above except that it is unnecessary. The Corps' finding of fact 4 is rejected as argument. The Corps' proposed finding of fact 6 is rejected as argument and conclusion of law. The Corps' proposed finding of fact 11 is rejected as unnecessary. As to Corps' proposed finding of fact 12, the last sentence is rejected to the extent that it applies to the northern end of Keewaydin Island as being contrary to the greater weight of the evidence and/or the findings of fact. Otherwise, the substance of the proposed finding is accepted as substantially factually accurate, but subordinate and unnecessary. The Corps' proposed finding of fact 15 is rejected as argument, subordinate and unnecessary. The Corps' proposed finding of fact 16 would be included in paragraph 1 above except that the last two sentences are rejected as contrary to the greater weight of the evidence and/or findings of fact. The Corps' proposed finding of fact 20 would have been included in paragraph 1 above except that the third sentence is rejected as contrary to the greater weight of the evidence and/or findings of fact. Ruling On State's Proposed Findings Of Fact. The substance of the following State's proposed findings of fact are accepted as factually accurate and are substantially incorporated in the findings of fact in the same or a modified format to the extent necessary: 1-4, 10, 12, 13, 17, 21, 22. The substance of State's proposed findings of fact 5-9 are accepted as substantially factually accurate but are rejected as unnecessary. The substance of State's proposed findings of fact 14-16 are accepted as substantially factually accurate but are rejected as subordinate. State's proposed findings of fact 11, 18, 23, and 24 are rejected as argument. State's proposed findings of fact 19, 20, and 25 are rejected as contrary to the greater weight of the evidence and/or the findings of fact. State's proposed finding of fact 26 is accepted in part and rejected in part, specifically as to sub-paragraphs (b), (c) and (d). State's proposed finding of fact 27 is rejected in part as argument and in part as contrary to the greater weight of the evidence and/or the findings of fact. Rulings On Petitioners' Proposed Findings Of Fact. The substance of the following Petitioners' proposed findings of fact are accepted as factually accurate and are substantially incorporated in the findings of fact in the same or modified format to the extent necessary: 1, 3-23, 28, 30, 43, 44, 60, 62, 64, 65, 67, 68, 72, 77, 78, 80. Petitioners' proposed finding of fact 2 would be included in paragraph 1 above, except that the evidence was the dredging itself will not cause or exacerbate erosion of Petitioners' property or the public beaches north of Gordon Pass. Petitioners' proposed finding of fact 25 would be included in paragraph 1 above except that the sand will not "soon move on to privately-owned and privately patrolled beaches," depending upon the definition of "soon." The sand will move to the north more slowly than sand north of Gordon Pass will move to the south. Only the sand at the extreme north of the State-owned spoil area will "soon" move on to the 500 foot strip of privately-owned beach between the State-owned property and Gordon Pass. Much of the rest of the sand will gradually move along the rest of the 4,000-foot strip of State-owned property and eventually reach the 500 feet of privately owned-beach. Ultimately, most of this sand will continue around or through the jetty on the northern end of Keewaydin Island and will settle in the Gordon Pass channel. A relatively small portion of the sand will spread to the south of the spoil area, primarily because of a scouring action, will reach the reversal point and will be carried south of the spoil area. Petitioners' proposed finding of fact 26 would be included in paragraph 1 above except that whether dredging sand is the cheapest way to nourish beaches depends upon the distance between the dredging operation and the beaches to be re-nourished. Petitioners' proposed finding of fact 29 would be included in paragraph 1 above with the clarification that "north of Gordon Pass" refers only to the Point. Petitioners' proposed finding of fact 45 would be included in paragraph 1 above except that the length of time in the last sentence are exaggerated and are erroneously assumes that none of the previously dredged sand ever makes it back into the Gordon Pass channel. Petitioners' proposed finding of fact 49 would be included in paragraph 1 above except that "holes large enough to swim through" appears to be an exaggeration or at least an isolated case based on the evidence. Petitioners' proposed finding of fact 61 would be included in paragraph 1 above with the clarification that the Corps' differing positions on placement of sand north of Gordon Pass varied in part depending upon assumptions as to the groin system, in part depending upon assumptions as to the net littoral drift and in part depending upon differences of opinion among members of the Corps. Petitioners' proposed finding of fact 70 would be included in paragraph 1 above with the clarification that the Corps' willingness to place sand on beaches north of Gordon Pass refers to starting sand placement between one-half mile and one mile north of Gordon Pass and spreading it one to two miles north from there. Petitioner's proposed finding of fact 74 would be included in paragraph 1 above with the clarification that DNR has, of course, participated in the Corps' application and in this proceeding. Petitioner's proposed finding of fact 29 would be included in paragraph 1 above except that the Corps is in the maintenance dredging business, not the beach re-nourishment business, and the Corps is legally obligated to place sand in the most economical appropriate spoil area unless sufficient funds are provided to cover the extra cost of more costly alternatives such as beach re-nourishment. The substance of the following Petitioners' proposed findings of fact are accepted as substantially factually accurate but are rejected as subordinate and unnecessary: 31-34, 37-42, 46, 47, 52, 55-57, 63, 66, 69, 71, 73 and 82. Petitioner's proposed finding of fact 35 would be included in paragraph 12 above except to the extent that the second sentence might infer that the wishes of a local sponsor override the Corps' legal obligation to deposit spoil material in the most economical appropriate place. Petitioners' proposed finding of fact 36 would be included in paragraph 12 above except that it is not particularly "noteworthy" in this case that there was no resolution in 1984/86. Petitioners' proposed finding of fact 58 would be included in paragraph 12 above except to the extent that the citations imply that the Corp did not seek the City's input and receive the City's input that the sand should be deposited south of Gordon Pass as it was previously. Petitioners' proposed finding of fact 24 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. As to Petitioners' proposed finding of fact 48, the first clause is accepted but the second clause alleging placement closer than 500 feet is rejected as contrary to the greater weight of the evidence an/or the findings of fact. Petitioners' proposed finding of fact 50 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. Petitioners' proposed finding of fact 51 is rejected as contrary to the greater weight of the evidence and/or the findings of fact. 20. As to Petitioners' proposed finding of fact 53, the fourth, fifth, and sixth sentences are accepted, but the first and third sentences are rejected as contrary to the greater weight of the evidence and/or findings of fact. Two-foot overdredge for advance maintenance cannot be considered more than the minimum amount necessary to accomplish the Corps' purpose. There was evidence of shoaling and general filling of the channel. There was no evidence to suggest that certain parts of the channel, particularly the area of Gordon Pass, should not be deeper and wider than other parts of the channel between Gordon Pass and Naples. As to Petitioners' proposed finding of fact 54, the first sentence is accepted, but the second sentence is rejected as contrary to the greater weight of the evidence and the findings of fact. Petitioners' proposed finding of fact 59 is rejected as contrary to the greater-weight of the evidence and/or findings of fact. It is true that there are no survey markers. There is the potential for confusion as to the precise location of the State- owned property. Regarding movement of the sand onto private land up against the jetty, the findings of fact show that natural forces will eventually move the sand onto the private property and around and through the jetty back into Gordon Pass. The Corps is not responsible for, and the State should not consider, the possibility of theft of sand. Regarding Petitioners' proposed finding of fact 75, the second sentence is rejected as contrary to the greater weight of the evidence and/or findings of fact, but the rest is accepted. Petitioners' proposed finding of fact 76 is rejected as contrary to the greater weight of the evidence and/or findings of fact. Petitioners' proposed finding of fact 81 is accepted in part and rejected in part. The proposed finding ignores factors such as the exact distance north the sand would be pumped, the cost of pumping sand that distance, and the condition of the groin system north of Gordon Pass. Regarding Petitioners' proposed finding of fact 83, the Corps' proposal does not "minimize future dredging at Gordon Pass" in the strictest sense, but the question in this case is not what else the Corps could do to minimize maintenance dredging besides the maintenance dredging itself, but rather is whether the maintenance dredging itself is to be conducted in a manner so as to minimize maintenance dredging in the future. Petitioner's proposed findings of fact 84 and 85 are rejected as contrary to the greater weight of the evidence and/or findings of fact. COPIES FURNISHED: Dr. Elton J. Gissendanner Executive Director Department of Natural Resources 3900 Commonwealth Blvd. Douglas Building Tallahassee, Florida 32303 Jacob D. Yarn, Esquire David S. Dee, Esquire Martha Harrell Hall, Esq. P. 0. Box 190 Tallahassee, Florida 32301 Donald E. Hemke, Esquire P. 0. Box 3239 Tampa, Florida 33601 Spiro T. Kypreos, Esq. Assistant General Counsel Department of Natural Resources 3900 Commonwealth Blvd. Douglas Building, Suite 1003 Tallahassee, Florida 32303 Harrison D. Ford, District Counsel Steven C. Calvarese, Assistant District Counsel Jacksonville District United States Army Corps of Engineers P. 0. Box 4970 Jacksonville, Florida 32232-0019 ================================================================= CORRECTED AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF NATURAL RESOURCES JOHN F. DONAHUE and RHODORA J. DONAHUE, husband and wife, Petitioners, vs. DOAH Case No.: 85 3829 STATE OF FLORIDA, DEPARTMENT OF NATURAL RESOURCES, and THE BOARD OF TRUSTEES OF THE INTERNAL IMPROVEMENT TRUST FUND, Respondents. /
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
Findings Of Fact The upland property abutting the proposed marina is zoned CTF-28, which provides for the complete range of motel-hotel developments. Type A Marina facilities are permitted as a special exception in a CTF-28 district. The property owned by Petitioners is presently occupied by a 16-room motel with 15 designated parking spaces and fronts on the water. Riprap extends approximately six feet from the seawall and Petitioners propose to install a dock nine feet wide covering this riprap and extending some 83 feet, with six finger piers extending seaward from the seawall to provide the 12 boat slips for which this special exception pertains. Petitioners intend to convert the existing motel from single ownership to a condominium and sell the motel rooms as units to separate owners but continue to operate the facility as a motel. (Art. 12.1, Exhibit 2.) The Declaration of Condominium (Exhibit 2) which was received as a late-filed exhibit, is incomplete in that Exhibits A, B, C and D, which the Declaration states are made a part of the Declaration, were not attached to the copy of Exhibit 2 which was received. The proposed boat slips or dock is designated in the Declaration as Limited Common Elements. Art. 2.12 of Exhibit 2 provides that: Limited Common Elements, if any, are those portions of the Common Elements which are reserved for or attributable to the exclusive use of a certain Unit Owner whether such use is assigned as an appurtenance to a Unit or separate thereto including, but not limited to, boat docks assigned as appurtenances to specific individual units. The boat slips presumably are assigned to specific motel units as appurtenances thereto. (Art. 6.1, Exhibit 2.) Article 12.2 provides no unit owner or lessee of a unit owner may lease or sublease any Limited Common Element including, but not limited to, any boat dock assigned as an appurtenance to a specific unit. Similar provisions are made for the existing automobile parking spaces which are also designated Limited Common Elements and appurtenant to a specific unit (Art. 6.2, Exhibit 2). Respondent's primary concern, and the reason this application was denied by the Board of Adjustment and Appeal on Zoning is the effect the proposed marina will have on parking on Clearwater Beach. Vehicular parking is a serious problem confronting Clearwater Beach at this time. Further aggravation of this problem will adversely affect the public interest. A special exception for a seven-slip Class A marina was granted to the Sea Gull Motel, located in the same general area, less than one year ago. The Sea Gull converted to cooperative ownership instead of into a condominium as Petitioners here propose. The Sea Gull continues to operate as a motel, with multiple ownership of the units, just as Petitioners propose. Absent Exhibits A, B, C and D to Exhibit 2, it is not possible to tell which boat slip is appurtenant to which motel unit or that one slip may not be appurtenant to more than one motel unit. Since multiple ownership of a single unit is contemplated by the developer (Art. 13.2.3, Exhibit 2) the possibility exists that one of the joint owners could occupy the motel unit while another occupied the boat slip appurtenant to the unit. The proposed slips propose no/hazard to navigation or interfere with the enjoyment of the waters adjacent thereto by the general public.
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 ultimate issue in this proceeding is whether the Department should issue a permit to the Applicant. In its request for hearing, Petitioner asserted that the proposed dock extension would constitute a navigational hazard and would cause certain adverse environmental consequences. At the hearing, Petitioner withdrew its contentions as to adverse environmental consequences. The only issues raised during the course of the hearing relate to whether the proposed dock extension will result in navigational hazards to adjoining property owners.
Findings Of Fact The Applicant owns a lot which includes 52 feet of frontage along a cove which is located to the south of the Fort Pierce Inlet. Applicant presently has a dock which extends 85 feet out from his shoreline. The dock is 4 feet wide and has an 8-foot by 14-foot platform at the end, forming an "L" shape. The Applicant presently uses the dock for two of his own boats. Additionally, he rents four or five additional docking spaces. The Applicant is proposing to extend his dock an additional 72 feet out from his property. He proposes to remove the existing platform and place a 12-foot by 24-foot platform at the end of the extended dock, maintaining the "L" configuration. The Applicant has had problems mooring his own commercial fishing boat at his present dock due to shallow depths at low-water periods. He proposes to utilize the dock extension to moor one of his own boats in a deeper area and to moor a commercial fishing boat which is owned by his son. The platform at the end of the extended dock would be used for fishing by the Applicant and his family and guests. When completed, the Applicant's present dock and proposed addition would extend 157 feet northward from the Applicant's property. There is space for two boats to be moored on the east of the present dock. Applicant does not propose to allow the mooring of additional boats on the east side of the extension. Docking would be expressly prohibited on that portion of the proposed dock. The Petitioner, 1010 Seaway Drive, Inc., owns land immediately to the east of the Applicant's property. The Petitioner's property includes approximately 118 feet of water frontage. The Petitioner operates a commercial marina on its property. Petitioner has a dock which extends considerably farther to the north than the Applicant's present dock and also considerably farther than the Applicant's dock with the proposed extension. Petitioner contends that permitting the proposed extension would result in a navigational hazard for boats that are moored at Petitioner's dock. This contention is not supported by the evidence. There is more than 25 feet between the proposed extension of the Applicant's dock and any structure connected with Petitioner's dock. The closest structures are mooring poles, not the dock itself. The Applicant's dock as proposed for extension will continue to allow boats ample ingress and egress to Petitioner's dock. If the mooring and docking of boats were permitted on the east side of the Applicant's proposed extension, however, a significant navigational hazard would result. The property immediately adjacent to the Applicant's property to the west is owned by the Books. The Books' property includes 40 feet of water frontage. The Books presently moor their boat at a small dock which runs along their shoreline. The proposed extension of the Applicant's dock would require the Books to exercise more caution in docking their boat, but it would not significantly interfere with their ingress and egress. The 24-foot platform at the end of the proposed extension could cause some problems. The Applicant, however, has indicated his willingness to shorten the platform to 14 feet. Thus shortened, the proposed extension and platform will cause no significant interference with the Books' ingress and egress. Furthermore, the Books are left with adequate room to build a dock in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the Applicant, Robert R. Phifer, to construct an addition to his existing dock in accordance with his application. The permit should contain all of the specific conditions included in the Department's letter of intent issued October 15, 1982. In addition, the platform at the end of the proposed extension should be reduced from 24 feet to 14 feet in length. RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark & Skelding Post Office Box 669 Tallahassee, Florida 32302 Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Robert R. Phifer 1006 Seaway Drive Fort Pierce, Florida 33449 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Kevin X. Crowley, Esquire Department of Natural Resources 3900 Commonwealth Blvd., Suite 1300 Tallahassee, Florida 32303
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.
