03-002471 Butler Chain Concerned Citizens, Inc. vs. Windermere Botanical Garden, L.P. And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, May 4, 2004.

Summary: Pet. failed to prove standing to challenge consent agreement entered into by DEP & developer that dredged & filled sovereign submerged bottom & waters of the state when developer`s removal of tussock/muck in cove improved water quality of Lake Butler.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BUTLER CHAIN CONCERNED )

CITIZENS, INC., )

)

Petitioner, )

)

vs. ) Case No. 03 - 2471

)

WINDERMERE BOTANICAL GARDEN, )

L.P., and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Re spondents. )

______________________________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in

Orlando, Florida, on December 3 - 5 and 8 - 10, 2003.

APPEARANCES

For Petit ioner: Jacob D. Varn

Karen A. Brodeen

Fowler, White, Boggs, & Banker, P.A.

Post Office Box 11240

Tallahassee, Florida 32302

For Respondent Windermere Botanical Gard en, L.P.:

Timothy A. Smith

Akerman Senterfitt

255 South Orange Avenue, 17th Floor

Orlando, Florida 32801

For Respondent Department of Environmental Protection:

Kelli M. Dowell

Senior Assistant General Counsel

Robert W. Stills, Jr.

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUES

The issues are whether Petitioner has standing to contest

the consent agreement into which Resp ondents entered and, if so,

whether Respondent Department of Environmental Protection abused

its discretion in entering into the agreement.

PRELIMINARY STATEMENT

By Butler Chain Concerned Citizens, Inc.'s Petition for

Formal Administrative Hearing dated J une 6, 2003, Petitioner

challenged a proposed consent agreement into which Respondents

entered on May 6, 2003. The petition alleges that Petitioner is

a non - profit organization whose primary purpose is to protect

water quality and wildlife. The petition alleges that

Petitioner is committed to preserving the Butler chain of lakes,

the surrounding environmentally sensitive lands, and associated

fish and wildlife. The petition alleges that Petitioner

comprises over 50 members, who own property in the area o f the

Butler chain of lakes and who use the Butler chain of lakes for

various recreational purposes.

The petition alleges that Lake Butler is an outstanding

Florida waterbody and is navigable. The petition alleges that

the bottom of Lake Butler is sovere ign submerged land.

Petitioner, which filed the petition under Sections 120.569

and 120.57, Florida Statutes, alleges that paragraph 4 of the

consent agreement describes unauthorized activities that have

caused substantial injury to the waters and wildl ife of the

Butler chain of lakes and severely diminished the recreational

value of the lakes and surrounding areas. The petition alleges

that the consent agreement fails to redress meaningfully the

substantial adverse impacts of the illegal conduct of Res pondent

Windermere Botanical Garden, L.P., which is not required to

restore the illegally dredged and filled wetlands or effectively

mitigate the environmental damage. The consent agreement

allegedly "effectuates a lingering substantial injury in fact to

[Petitioner] and its membership."

The petition alleges that Respondent Windermere Botanical

Garden, L.P., received authorization from Respondent Department

of Environmental Protection to remove invasive aquatic

vegetation from wetlands within the landward extent of Lake

Butler, but the scope of the work allegedly far exceeded the

work permitted by the Bureau of Invasive Plant Management Permit

that the Department issued Respondent Windermere Botanical

Garden, L.P. The permit allegedly required the proper use of

turbidity barriers during the removal of invasive aquatic

vegetation, but they allegedly did not adequately protect state

waters, especially with respect to turbidity. Respondent

Windermere Botanical Garden, L.P., allegedly removed native

vegetatio n not within the scope of its permit.

The petition alleges that Windermere Botanical Garden,

L.P., also engaged in illegal dredging and filling activities,

as it allegedly removed material at an average depth of eight

feet and then illegally deposited the material on wetlands and

in waters of the state. The dredging and filling allegedly

caused adverse water quality impacts, including violations of

turbidity standards.

The petition alleges that Windermere Botanical Garden,

L.P., constructed and removed a berm in Lake Butler, without

state approval or authorization. The petition alleges that

Windermere Botanical Garden, L.P., constructed a haul road in

the wetlands without the necessary permits.

Among the issues of material fact identified in the

petitio n are whether Respondent Department of Environmental

Protection abused its discretion by entering into the consent

agreement, especially with respect to the stipulated penalty

options.

The relief sought by the petition includes a final order

determining t hat Respondent Department of Environmental

Protection set aside or modify the proposed consent agreement,

so that the Department may order Respondent Windermere Botanical

Garden, L.P., to fully restore the impacted wetlands to their

natural condition befor e Respondent Windermere Botanical Garden,

L.P., commenced its unauthorized activities.

By Amended Petition for Formal Administrative Hearing filed

November 14, 2003, Petitioner corrected and clarified various

allegations, mostly related to standing. Amon g the new

allegations are that Petitioner comprises over 400 members, who

live or own property in the area of the Lake Butler chain of

lakes. The alleged interests of the members also include

property interests. These property interests, interests in

nat ural resources, and recreational interests are allegedly

injured by the consent agreement and waiver by Respondent

Department of Environmental Protection of unauthorized

activities. The amended petition alleges that the activities of

Respondent Windermere Botanical Garden, L.P., not only far

exceeded the scope of its Bureau of Invasive Plant Management

Permit, but also allegedly violated various conditions of this

permit. The dredging allegedly included an area outside of the

area permitted for an access corridor. The illegal dredging and

filling allegedly destroyed a shallow wetland system.

On November 19, 2003, Respondent Department of

Environmental Protection filed a Motion to Limit Scope of

Hearing. The motion requests an order limiting the scope of the

hearing to violations addressed in the consent agreement of

May 6, 2003, which was issued by the Department's Central

District Submerged Lands and Environmental Resources Permitting

Office. These violations are the unlawful filling of wetlands

and su rface waters of Lake Butler, the unpermitted creation of a

berm separating the work from Lake Butler, the unlawful dredging

of sovereign submerged lands, and the unlawful storage of spoil

material with the wetlands or surface waters of Lake Butler.

The mo tion seeks to prevent Petitioner from raising issues

arising out of alleged violations of a Bureau of Invasive Plant

Management Permit, which was not a subject of the consent

agreement.

By Response to Motion to Limit Scope of Hearing, filed on

November 26 , 2003, Petitioner argued that the Bureau of Invasive

Plant Management Permit was properly the subject of this case

because, in part, Respondents would rely on it to justify the

alteration of an eight - acre wetland.

At the hearing, the Administrative Law J udge reserved

ruling on the motion, but advised the parties to treat the

motion as denied in their presentation of evidence. Obviously,

Respondents could introduce evidence of the Bureau of Invasive

Plant Management Permit in defense of the allegations of

Petitioner, and Petitioner could introduce evidence tending to

rebut such evidence of Respondents. The Administrative Law

Judge reserved ruling on whether Petitioner has standing to

allege violations of the Bureau of Invasive Plant Management

Permit, and , if so, the nature of the relief to which Petitioner

would be entitled, if it prevailed as to such allegations. The

Conclusions of Law discuss this issue.

At the hearing, Petitioner called 30 witnesses and offered

into evidence 43 exhibits: Petitioner Exhibits 2, 4 - 5, 8 - 9,

11 - 12, 17, 22 - 24, 29 (strictly for penalty), 33, 37, 43, 46, 61

(not for truth), 68, 70, 79 - 83, 88, 92 - 93, 96, 99 - 101, and 103 -

114 (as to Petitioner Exhibit 114, except for Requests for

Admission 46 and 52). Respondent Windermere Bo tanical Garden,

L.P., called eight witnesses and offered into evidence 133

exhibits: Windermere Botanical Garden, L.P., Exhibits 1 - 4, 5 -

89a, 90, and 92 - 133. Respondent Department of Environmental

Protection called five witnesses and offered into evidence 24

exhibits: DEP Exhibits 1 - 15 and 17 - 25. All exhibits were

admitted except DEP Exhibit 2, which was proffered. Petitioner

was to file Petitioner Exhibit 111 after the hearing, but did

not do so; Petitioner Exhibit 111 is thus withdrawn.

Most of Petit ioner's witnesses testified primarily to

establish Petitioner's standing. To save time, the

Administrative Law Judge invited Petitioner to submit the

standing testimony of additional such witnesses by affidavit.

On January 6, 2004, Petitioner filed 12 af fidavits of witnesses

concerning standing. On January 23, 2004, Petitioner filed a

corrective affidavit for one of these witnesses.

On January 13 and 16, 2004, respectively, Respondents

Department of Environmental Protection and Windermere Botanical

Gard en, L.P., filed their objections to the affidavits,

complaining about statements that went beyond standing and to

the merits of the case. These objections are well - taken, as is

the statement of counsel of Windermere Botanical Garden, L.P.,

that the "objec tionable passages are both too obvious (for the

most part) and too numerous to be worth identifying here,

sentence by sentence." The Administrative Law Judge has

therefore ignored all non - standing assertions in these

affidavits.

The court reporter filed the transcript on February 19,

2004. The parties filed their proposed recommended orders by

March 24, 2004.

FINDINGS OF FACT

1. The Butler chain of lakes, which covers about 4,700

acres, comprises 11 lakes and artificial canals interconnecting

these lakes. The northernmost lake of the chain is Lake Down,

which lies immediately north and east of the Town of Windermere.

The Town of Windermere is about 15 miles west of Orlando.

Immediately west of the Town of Windermere is Lake Butler, the

largest of the la kes, covering roughly 1,900 acres at its normal

high water elevation of 99.5 feet. (All elevations are National

Geodetic Vertical Datum).

2. Water flows north to south between these lakes and the

surrounding area of west Orange County. The Butler chain

occupies the northern end of the Reedy Creek Basin, which

occupies the northern extent of the area under the jurisdiction

of the South Florida Water Management District (SFWMD). In

terms of drainage, Lake Down is the uppermost lake and drains

through Waus eon Bay into Lake Butler.

3. Lake Butler's drainage basin captures about half of the

strip of land dividing Lake Butler from Lake Down. Occupying

this strip of land is the older, more densely developed

residential area within the Windermere area. Just s outh of this

residential area, Lake Butler's drainage basin encompasses the

western extent of the Isleworth Country Club golf course. The

portions of the drainage basin on the south and west sides of

the lake contain the most upland, much of which remains in

agricultural use or is vacant. These portions of the drainage

area include the Lake Butler Sound and Tilden's Grove drainage

subbasins, which are discussed in more detail below.

4. The relatively thin strip of land forming the drainage

basin north of t he lake is moderately developed residentially;

the westernmost extension of this land is the residential

development known as Park Avenue West, formerly known as Chaine

du Lac, a residential subdivision of at least 70 acres.

Respondent Windermere Botanica l Garden, L.P. (WBG, which

includes WBG's predecessor, Altima Development, L.P.), owns

unbuilt platted lots within a 40 - acre parcel in the subdivision,

for which SFWMD has issued a Surface Water Management (SWM)

Permit. The drainage facilities are already constructed,

although numerous lots, especially in the immediate vicinity of

the activity described below, remain unbuilt.

5. In 1984, Florida designated all of the Butler chain of

lakes and their canals as Outstanding Florida Waters (OFW). The

deepest depths of the Butler chain generally range from 15 - 30

feet, although parts of Lake Butler reportedly are 40 feet deep.

At the time of their OFW designation, the uppermost seven lakes,

which include Lake Butler, were oligomesotrophic, with low

productivity , high water quality, and deep waters. At that

time, the lowermost three lakes (Sheen, Pocket, and Fish) were

mesotrophic, with moderate productivity, high coloration, and

shallow waters.

6. Orange County collected water quality data for all of

the lakes i n the Butler chain since 1967. The same year,

Respondent Department of Environmental Protection (DEP), which

includes DEP's predecessor agency) began collecting water

quality data in Lake Butler. At the time of their OFW

designation, the water quality of the entire Butler chain was

excellent.

7. A DEP report dated January 11, 1984, recommends the OFW

designation of the Butler chain. The report states that the

biological data also supported the designation, noting that the

frequent collection of varieties of mayfly, midge, and caddisfly

suggested "excellent water quality" because "[f]ew of these

organisms have been collected from lakes located in highly

developed areas of central Florida."

8. The DEP report states that the shoreline vegetation of

most of the lakes, except "several of the upper lakes," had

remained in a natural state, consisting of cypress, wax myrtle,

bays, primrose, panicum, cattails, and sawgrass. The dominant

submerged plant was bogmoss, with hairgrass found in the deeper

parts of the lak es.

9. The DEP report contains several figures that provide

water quality data for each of the ten lakes covered by the

report. It is impossible to determine if the data are averages

or data points at a specific time. If averages, as seems more

likely, th e period of time is omitted from the figures and

accompanying text.

10. Figure 4 of the DEP report indicates that Lake Butler,

as was true of all of the lakes in the Butler chain, had between

0.01 - 0.02 mg/l of total phosphorus. Lake Butler had 0.8 mg/l of

t otal nitrogen. This ratio suggests that Lake Butler was a

phosphorus - limited lake, as it remains today. For a phosphorus -

limited lake, phosphorus is the more important nutrient in

restricting the eutrophication process, by which lakes become

increasingly more productive as they pass from oligotrophic to

mesotrophic and ultimately to eutrophic states. The 0.8 mg/l

value for Lake Butler was closer to the values for Lake Sheen

and Pocket Lake, which were the more productive lowermost lakes,

than to the 0.6 mg/l value for Lake Down.

11. However, Figure 6 of the DEP report reveals that the

secchi depth of Lake Butler, which was about 3.7 meters, more

closely approached the secchi depth of Lake Down, which was 4

meters, than it did the secchi depths of the lowermos t three

lakes, which were about 1.3 meters. Figure 8 indicates that

Lake Butler more closely resembled Lake Down in turbidity, with

the former at 1.0 NTU and the latter at 0.8 NTU. Two of the

lowermost lakes were at 1.5 and 2.2 NTU, and the third was at

4.5 NTU.

12. All of the lakes were well - oxygenated. Figure 3 of

the DEP report indicates that Lake Butler had over 8 mg/l of

dissolved oxygen and less than 1 mg/l of biochemical oxygen

demand, which were about the same values as those of the nine

other lakes.

13. Figure 9 of the DEP report discloses that Lake Butler

had the highest chlorophyll a value -- 1.75 ug/l, which one other

lake shares. Lake Down had the lowest chlorophyll a value --

1.32 ug/l. In general, chlorophyll a is associated with algae.

However, the se were relatively low chlorophyll a values, as was

reflected in the fact that algae counts in the Butler chain

seldom exceeded 100 algae/ml.

14. However, average chlorophyll a values in Lake Butler

have been steadily increasing since 1989. Average chloroph yll a

values remained at or below 1 ug/l in 1989 and 1990, then rose

to about 2 ug/l in 1991 and 1992, before dropping to about 1.3

ug/l in 1993. In 1994, the lake's average chlorophyll a values

increased to about 2.25 ug/l and, in 1995, increased again t o

about 3.7 ug/l. The next year, 1996, average chlorophyll a was

about 3 ug/l, and, in 1997, average chlorophyll a was about 4.7

ug/l.

15. From 1989 through 1997, the average annual chlorophyll

a in Lake Butler increased in reasonable conformance to a

steady, straightline progression. However, average chlorophyll

a dropped in 1998 to 2.5 ug/l and dropped again, in 1999, to 1.3

ug/l. In 2000, average chlorophyll a increased to 1.6 ug/l,

but, in 2001, average chlorophyll a dropped to 1 ug/l.

16. The lake's chlorop hyll a values for 1998 - 2001 were far

below their predicted values, based on an extension of the

straightline progression established from 1989 - 1997. During

much of these four years, central Florida experienced a severe

drought, as noted below. When the d rought ended, in 2002,

average annual chlorophyll a values abruptly increased by one

order of magnitude, to a little over 12 ug/l. If the

straightline progression reestablishes itself with the return of

normal rainfall amounts, the average annual chloroph yll a for

2003 will decrease, but only to nearly 6 ug/l. Although only

half the chlorophyll a value of 2002, a value of 6 ug/l would be

four times greater than the value when Lake Butler received its

OFW designation 20 years ago.

17. The DEP report notes no p oint sources of discharge

into the Butler chain. Nonpoint sources included residential

and agricultural uses, mostly citrus, although retention of much

of the native shoreline and native vegetation had filtered

nutrients and prevented excessive algae grow th.

18. In the 20 years since the Butler chain was designated

an OFW, the surrounding area has undergone considerable

development, with the conversion of agricultural and vacant land

uses to residential uses, as well as the development of the

Isleworth golf co urse that occupies much of the land separating

Lake Butler from the downstream lakes. Much, if not all, of the

residential development surrounding Lake Butler relies on septic

tanks. Also, much of the development of the lakeshore predates

the implementat ion of strict stormwater management controls, so

the nutrient - enriched stormwater runoff from yards and the golf

course flow into the lake with little, if any, attenuation.

19. From 1999 to mid - 2002, a severe drought caused the

elevation of Lake Butler to drop from 99.3 feet to 95.3 feet.

The drought ended with six months of heavy rainfall in 2002 that

contributed to the second highest annual rainfall on record - 9.5

inches. The elevation of Lake Butler rose to just over 100 feet

in the last six months of 2002. Key facts in this case include

the deluge after the drought, and the timing of the deluge. In

June 2002, Lake Butler was at 95.2 feet. In July 2002, Lake

Butler was at 96.7 feet. Six months later, in January 2003, the

lake had risen to 100.3 feet. Th e water elevation increased 1.5

feet from June to July 2002 and then increased another 1.7 feet

from July to September 2002, for a total of 3.2 feet over three

months. From September 2002 to January 2003, the lake rose

another 1.9 feet, so the summer of 2 002 was a period of rapid

rise in water elevation in Lake Butler.

20. Seeking to take advantage of the low lake elevations

produced by the three - year drought, WBG decided to undertake a

muck - removal project in an eight - acre cove at the northwest

corner of Lake Butler and adjacent to the Park Avenue West

development occupying the northwest shore of Lake Butler.

21. The cove is triangular - shaped. The mouth of the cove

is 500 - 600 feet long and runs in a northwest to southeast

direction. The southern side of the cove is about 1000 feet

long, and the west side of the cove is about 950 - 1000 feet long.

At the apex of the cove across from the cove mouth is a culvert

that runs under West Lake Butler Road and connects the cove to

the Tilden's Grove wetlands to the southwes t of the cove.

22. Most of the cove bottom is below 99.5 feet elevation,

so the cove bottom is submerged when Lake Butler is at its

normal high water elevation. The parties do not contest that

the cove bottom is sovereign submerged land. However, by the

en d of the three - year drought described above, about 75 percent

of the cove was walkable.

23. Historically, the cove was open water, as reflected by

a rough map from the mid - 19th century. For at least the past 50

years, though, much of the cove has been fille d with vegetative

material. For at least the past several years, the cove has

been occupied by a thick mat of living vegetation, known as a

tussock.

24. During periods of normal water elevations, such as in

May 1998, just prior to the three - year drought, th e tussock in

the cove floated on several feet of water, its thick vegetative

mat held together by the roots of the plants by which it was

formed. The tussock remained wedged in the cove, which much of

the year receives an easterly wind that tends to restr ain the

tussock in the apex of the cove.

25. The formation of the tussock accelerates the process

by which muck forms on the bottom beneath the tussock. Little

submerged vegetation survived the thick shade of the floating

and occasionally grounded tussock. T he dead plant material

decayed and added to the thick layer of muck on the bottom of

the cove. Large tussocks in central Florida have been known to

become untethered to the bottom and, driven by the wind, have

destroyed docks and seawalls, scoured submerg ed vegetation, and

presented a hazard to navigation.

26. To convert its unbuilt tussock - front lots to lakefront

lots, WBG undertook a project to dredge several feet of muck

from the bottom of the cove and place the spoil on a nearby

upland site owned by WBG. The first step in this process was

for WBG to renew its 1998 Bureau of Invasive Plant Management

Permit (BIPM Permit).

27. Pursuant to an application for renewal filed in March

2001, DEP renewed WBG's BIPM Permit (2001 BIPM Permit).

Condition 6 of the 2001 BIPM Permit requires WBG, as permittee,

to plant nearly all of the cove bottom with 60,000 aquatic

plants. Condition 4 of the 2001 BIPM Permit requires WBG to

maintain the revegetated site pursuant to the attached site

plan, but no site plan is attached t o the permit, nor could any

witness adequately identify any such site plan.

28. The 2001 BIPM Permit identifies the "area of

operation" as the five unbuilt lots owned by WBG that abut the

cove. Based on the earlier BIPM permit, the 2001 BIPM Permit

describe s ten targeted plant species over only one - quarter of an

acre. Notwithstanding these provisions, the agreement between

DEP and WBG was for WBG to clear eight acres of tussock

vegetation and replant the entire submerged cove bottom.

29. Having obtained the 20 01 BIPM Permit, WBG proceeded to

the next step of the project -- removing organic materials from

the cove. WBG elected to demuck the cove pursuant to a

statutory exemption that allows the holder of the BIPM permit to

remove up to three feet of organic mater ial, but not sand,

without an Environmental Resource Permit (ERP). WBG interpreted

the statutory exemption to allow it to remove the tussock, which

was about one foot thick, plus up to three feet of underlying

muck.

30. On March 19, 2002, WBG posted its Not ice of

Commencement for the muck - removal job. Three days later, the

contractor began site clearing at the apex of the cove. The

findings of fact refer to WBG, rather than its contractor,

because the contractor performed pursuant to its contract, and

WBG representatives were onsite sufficiently to know exactly

what the contractor was doing as the contractor was doing it.

31. On March 29, 2002, WBG installed double turbidity

barriers across the cove mouth. These barriers ran from the

submerged bottom to the surface of the lake. On April 3, 2002,

WBG submitted an application to SFWMD for a dewatering permit

and, assured of its issuance, began dewatering the cove without

delay.

32. At the same time, WBG began constructing a berm across

the mouth of the cove. The berm, which was finished by

April 25, 2002, occupies sovereign submerged land. To construct

the berm, WBG dredged muck and some sand from the landward and

waterward sides of the site of the berm. As built, the berm,

which also served as a haul road, was 12 - 16 feet wide, two feet

above the elevation of the lake, and 500 - 600 feet long.

33. The berm served as a barrier to prevent the waters of

Lake Butler to enter the cove and interfere with the muck -

removal project. The berm also served as a barrier to preve nt

stormwater - transported turbidity and sediments from the cove and

its drainage subbasin from entering the waters of Lake Butler.

Additionally, WBG temporarily stored the removed muck in

adjacent wetlands, constructed a rim ditch in muck and some

sand, and permanently deposited the removed muck in nearby

uplands owned by WBG.

34. The berm on sovereign submerged bottom and across

waters of the state did not go unnoticed. During the first week

of April, DEP's BIPM representative notified a DEP

representativ e in its Office of Submerged Lands and

Environmental Resources Permitting (SLERP). On April 8, the

SLERP representative visited the site and found the obvious

violations. A second visit on April 25 revealed that the work

had proceeded and the violations had not been corrected. On

May 1, 2002, DEP Central District Director Vivien Garfein issued

a warning letter to WBG for the illegal filling of the wetlands

to form the berm, although the letter omits any mention of the

illegal dredging to form the berm or temporary storage of the

muck in wetlands.

35. Racing against the darkening horizons of both

regulatory intervention and the approaching rainy season, WBG

proceeded without delay with its demucking job. By May 4, half

of the tussock was gone, and a pump remo ved water from the cove

to a nearby detention pond, which was part of the SWM system

already in place in the Park Avenue West subdivision. At no

time did the pumped water overrun the pond, probably due to the

drought and the fact that the pond served a pa rt of the

subdivision that had not yet been built. Nor did the pumped

water transport into Lake Butler nutrients or other contaminant

through the groundwater under or nearby the pond.

36. By May 21, the tussock was completely gone, and muck

removal was in ful l forceenches drew the water toward the

apex of the cove, and the pump was now running continually.

37. On May 29, with the job nearly two - thirds finished,

representatives of WBG, DEP, SFWMD, and Orange County met to

discuss all of the violations, not j ust that cited in the

warning letter. The parties discussed using a consent order to

authorize the construction of the berm, restoration of sand from

the rim ditches, removal of the muck fill to uplands, removal of

the berm, reflooding the cove, and repla nting to the conditions

set forth in the 2001 BIPM Permit.

38. However, the three - year drought was to end long before

DEP would prepare a consent order, whose contents are set forth

below. DEP sent the first draft of the consent order to WBG in

January 2003. At WBG's insistence, DEP changed the name of the

document from "consent order" to "consent agreement." WBG

signed the consent agreement on April 28, 2003, and DEP signed

it on May 6, 2003. In the yearlong interval between the

discovery of the violations and the execution of the consent

agreement, WBG had continued with the project, now with the

tacit consent of DEP.

39. In the latter half of June and first half of July of

2002, the rains returned and, as noted above, returned in

abundance. WBG completed the muck removal on June 30 and was

ready to refill the cove. By now, the lake elevation was five

feet above the cove bottom, so, rather than flood the cove and

generate considerable turbidity, WBG, by opening a previously

installed culvert in the berm, grad ually reintroduced water into

the cove. After doing so, WBG finished removing nearly all of

the berm by July 4 and proceeded substantially to complete the

job in the following days.

40. Upon the removal of the berm, in mid - July, the cove

was more turbid than Lake Butler, so the turbidity barriers,

which were still in place after the removal of the berm, were

effectively containing the temporary turbidity associated with

the removal of the berm, as well as any temporary turbidity

associated with the heavy rains generating stormwater runoff

from Tilden's Grove under West Lake Butler Road and into the

cove. In early August, though, the rapidly rising lake

elevation forced the turbidity barriers off of the submerged

bottom and eventually the wind drove them into t he lake,

although their anchors still held them, at points, along the

mouth of the cove.

41. As noted above, the three - year drought ended with

extremely heavy rains from mid - June to mid - July, such that the

lake rose 1.5 feet in this 30 - day period. By the en d of July or

the first few days of August, Lake Butler suffered a

catastrophic algae bloom, turning its once - clear waters, almost

overnight, a thick green - brown, depositing scum on pilings,

seawalls, and boats, and repulsing swimmers, boaters, and

fishers from pursuing their recreational activities.

42. By the end of July or early August, WBG had

substantially completed its work in the cove, except for that

required by the 2001 BIPM Permit. Even though lifted two to

three feet from the bottom and partially blo wn into the lake,

the turbidity curtains remained effective -- now, though,

shielding the refilled cove from the more - turbid waters of Lake

Butler.

43. By letter dated October 30, 2002, from WBG's project

engineer to WBG and DEP, the engineer noted that turbidit y in

the cove was considerably lower than the range of turbidities in

Lake Butler and requested permission to remove the turbidity

barriers. However, by agreement between WBG and DEP, the

turbidity barriers have remained in place, at least partly to

prote ct the newly planted submerged and emergent vegetation from

the disturbance posed by boating.

44. The consent agreement, in which WBG does not admit to

any wrongdoing, recites the findings of DEP representatives in

April 2002, but adds that a reinspection on S eptember 10, 2002,

revealed that WBG had restored the impacted areas to DEP's

satisfaction. The consent agreement notes that replanting of

the cove is proceeding pursuant to the 2001 BIPM Permit.

45. The consent agreement imposes a civil penalty of

$8,600 for alleged violations of Section 373.430, Florida

Statutes, and DEP rules and $350 for DEP's investigative costs.

The consent agreement states that, instead of paying the fine

and costs, WBG has elected to make an in - kind contribution, in

the form of a vide otape of the benefits of lakeshore care and

restoration, at a "value" of $13,425. The consent agreement

establishes deadlines for the production of the videotape. The

consent agreement requires WBG to publish a notice of intended

agency action, which adv ises persons who are substantially

affected by the consent agreement to file a petition for a

hearing "on the consent agreement."

46. In response to the deteriorating water conditions in

Lake Butler, Orange County retained a limnologist, Dr. Larry

Battoe, who is an assistant director of Environmental Services

Division of the St. Johns River Water Management District. On

October 31, 2003, Dr. Battoe prepared a report of his findings

and conclusions.

47. Relying on water quality data collected by Orange

County, Dr . Battoe noted that total phosphorus in Lake Butler

rose an order of magnitude from July 8, 2002, when it was 2.5

ug/l, to December 2002, when it was 25 ug/l. Because Lake

Butler is a phosphorus - limited lake, the rapid rise in

phosphorus fed a rapid rise in algae, as evidenced by the

chlorophyll a values, which began to increase in late August and

peaked on November 20, 2002, at 27 ug/l.

48. Turning his attention to WBG's muck - removal project,

Dr. Battoe identified three ways by which phosphorus could have

ent ered the lake: erosion of soils exposed by the project or

leaching of phosphorus from the soils and subsequent movement

into the lake, stormwater running through the project area, and

resuspension of bottom sediments so as to release soluble

phosphorus.

49. F ew cases receive the detailed attention provided by

an expert as competent and disinterested as Dr. Battoe.

Resorting to comparables where direct data were unavailable and

analyzing the Lake Butler Sound drainage subbasin, as well as

the Tilden's Grove dr ainage subbasin, Dr. Battoe developed water

balances and water budgets for Lake Butler. He analyzed the

spoil mounds to compare estimated post - project levels of

phosphorus with predicted pre - project levels. Dr. Battoe took

water quality samples within th e cove and waterward of the

turbidity barriers, which were still in place in August 2003,

when he collected much of his data.

50. Dr. Battoe found "little evidence" that the WBG muck -

removal project loaded phosphorus into Lake Butler. Dr. Battoe

favored expla nations involving runoff, especially enriched after

a three - year drought, and septic - tank leachate as sources of

phosphorus loading.

51. Dr. Battoe compared cumulative rainfall to total

phosphorus concentrations in Lake Butler and found a direct

relationship, suggesting that the rains contributed the

phosphorus, directly by phosphorus - laden rainfall and indirectly

by phosphorus - laden stormwater. Comparing chlorophyll a levels

over a longer period of time, as already described above,

Dr. Battoe found the direct relationship between lower rainfall

levels and lower chlorophyll a levels and, over the longer term,

the steadily rising chlorophyll a levels. Ultimately,

Dr. Battoe concluded that about three - quarters of the increase

in phosphorus that the lake suffered was attributable to the

increase in rain that started in the latter half of June 2002.

Dr. Battoe concluded that the rainfall directly into the lake

and the runoff over the entire drainage basin generated the

algae bloom and that the lake suffered no dis proportionate

phosphorus loading from the Tilden's Grove subbasin or the

dredged cove.

52. Pursuant to the 2001 BIPM Permit, WBG's wetland -

restoration consultant, Jim Thomas, has undertaken much work in

revegetating the submerged bottom of the cove, as well as the

littoral shelf and a conservation area that runs along the

uplands adjacent to the cove. With considerable experience in

projects of this type, Mr. Thomas agreed to participate in the

revegetation project only after WBG decided to remove the

tussoc k and demuck the cove, rather than try to eliminate

individual plants, as it had in connection with the two previous

BIPM permits.

53. Replacing the degraded wetland and waterbody that the

tussock - choked, muck - filled cove had become with a diverse array

of sub merged and emergent vegetation, Mr. Thomas's work will

result in the more efficient removal of nutrients and other

contaminants from the runoff passing from Tilden's Grove through

the cove and into the open waters of Lake Butler. Once

completed, the reveg etation of the cove will provide a more

diverse habitat for wildlife than previously existed. The

tussock - removal, demucking, and revegetation processes work in

conjunction with each other to reverse the aging process by

which lakes accumulate detritus in the process by which they

transform to marshes -- a process accelerated by the addition of

phosphorus from external sources, such as agricultural and urban

runoff.

54. Mr. Thomas's work was impeded by the high rainfall

levels that took place starting in mid - Jun e 2002. Rather than

insist that Mr. Thomas attempt to plant in such adverse

conditions, which all but precluded the survival of many of the

plants, DEP sensibly suspended the time constraints of the 2001

BIPM Permit, so that Mr. Thomas could plant during periods of

more normal lake elevations.

55. After delaying the planting during the high lake

elevations of the fall and winter of 2002, Mr. Thomas

recommenced his work in the spring of 2003. A cease - and - desist

order from the U.S. Army Corps of Engineers stopp ed the work

from April 21, 2003, to July 14, 2003. After one month's delay

while WBG assessed the probable outcomes of this case,

Mr. Thomas recommenced his work by the fall of 2003 and planted

more than 1000 plants in addition to the 3000 - 4000 plants tha t

he had already planted.

56. By this time, the emergent vegetation that Mr. Thomas

had first planted had proliferated into a luxuriant growth. At

the time of the hearing, in December 2003, the submerged

vegetation had taken hold, mostly from natural recruitm ent,

which promises a more robust, persistent vegetative presence

than would ensue from individual replanting. Mr. Thomas

estimates that natural recruitment will reduce the 60,000 plants

specified in the 2001 BIPM Permit by 20 - 50 percent. At the time

of the hearing, hydrilla eradication and replacement of a small

number of replanted cypress trees appear to be most urgent

needs, although more time needs to pass to confirm that the

submerged and emergent vegetation have taken hold.

CONCLUSIONS OF LAW

57. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569 and 120.57(1),

Florida Statutes.

58. This case potentially raises multiple issues of law.

However, the findings of fact necessitate resolution of the case

based on the threshold issue of standing.

59. Even before determining whether, and the extent to

which, Petitioner may challenge the consent agreement, it is

necessary to determine whether Petitioner has standing under

Section 120.569, Florida Statutes, pursuant to Agrico Chemical

Co. v. Department of Environmental Regulation , 406 So. 2d 351

(Fla. 1982). The first prong of the Agrico standing test is

whether Petitioner's substantial interests will be adversely

affected by the proposed agency action -- in this case, the

conse nt agreement.

60. Petitioner lacks standing despite the multi -

dimensional role of Lake Butler in the lives of substantial

numbers of its members and WBG's obvious violations of the laws

protecting this outstanding Florida water and governing the

private use of sovereign submerged lands. Petitioner's standing

is precluded by the fact that the record does not support a

finding that the acts and omissions of WBG contributed to any

water quality violations in Lake Butler, including, of course,

the algae bloom that took place in early August 2002. To the

contrary, in the long run, the removal of the tussock and muck

from the cove, especially in tandem with the completion of the

revegetation required by the 2001 BIPM Permit, will improve the

water quality of Lake Bu tler and add to the diversity of the

habitat associated with the lake. And, in the short run, the

berm and turbidity barriers protected the open waters of the

lake from construction - and stormwater - related turbidity.

61. Under these circumstances, Petitioner lacks the

standing to dispute the proposed agency action of DEP in

finalizing the consent agreement with WBG, and WBG's multiple

violations are left to DEP to punish.

RECOMMENDATION

It is

RECOMMENDED that the Department of Environmental Protection

enter a final order dismissing Petitioner's challenge to the

consent agreement.

DONE AND ENTERED this 4th day of May, 2004, in Tallahassee,

Leon County, Florida.

S

___________________________________

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of May, 2004.

COPIES FURNISHED:

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

Office of General Counsel

Mail Stat ion 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Jacob D. Varn

Karen A. Brodeen

Fowl er, White, Boggs, & Banker, P.A.

Post Office Box 11240

Tallahassee, Florida 32302

Timothy A. Smith

Akerman Senterfitt

255 South Orange Avenue, 17th Floor

Orlando, Florida 32801

Kelli M. Dowell

Senior Assistant General Counsel

Robert W. Stills, Jr.

Ass istant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from t he date of this recommended order. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.