vs. ) CASE NO. 76-247
Respondent. )
A hearing was, held in the above-styled matter at Clearwater, Florida on April 27, 1976,,after due notice to the parties, before the undersigned Hearing Officer
For Petitioner: Berman W. Goldner
St. Petersburg, Florida 33733 ISSUE
Whether Petitioners' application for a permit to fill and construct a seawall under Chapter 253 and 403, Florida Statutes, and for water quality certification under P.L. 92-500, should ,be granted.
Petitioners own Lots 1, 2, 3, 4 & 5, Indian Beach Manor, Section A, according to plat thereof recorded in Plat Book 22, Page 48, Public Records of Pinellas County, Florida, together with a parcel of submerged land in The Narrows in Section 30, Township 30 South, Range 15 East, Pinellas County, Florida (Exhibits 8, 11, 12, 13).
The real estate in question is located at Indian Rocks Beach, Florida, and abuts that portion of the Intracoastal Waterway between Clearwater Harbor and Boca Ciega Bay called The Narrows. The property in question is approximately 200 feet wide and 500 feet long consisting of some 2.3 acres. It is bounded on the east by The Narrows, with Gulf Boulevard on the west, 191st Avenue on the north, and a boat channel extending approximately 300 feet from The Narrows on the south. The land is located within the intertidal zone below the line of mean high water and is vegetated approximately 75 percent by red and
black mangrove trees. At high tide, the property is completely inundated. During low tide periods, a considerable amount of firm tidal flat is exposed. Meandering through the flats are several streams that connect intracoastal waters with shallow pools enclosed by mangroves. At the northwest corner of the property on 191st Avenue is located a city-owned storm sewer pipe which spills stormwater drainage down a ditch which crosses the property add discharges on the east side (Exhibits 1, 4, 7, 9, 10, Composite Exhibit 14, testimony of Albrecht).
In April, 1974, Petitioners applied to the Board of County Commissioners of Pinellas County to fill Lots 1-4. After first denying the application, the board, sitting as the Pinellas a County Water and Navigation Control Authority, held a rehearing and approved the application on December 17, 1974, subject to the approval of the Trustees of the Internal Improvement Trust Fund of the State of Florida. By Resolution 25-74, December 10, 1974, the town council, Indian Shores, Florida, had urged the Pinellas County Water and Navigation Control Authority to grant the permit as being in the best interests of that town in that it would eliminate a health and welfare menace to the town's citizens (Composite Exhibit 1).
Petitioners then made application to the Department of Pollution Control for water quality certification under Chapter 17-3, Florida Administrative Code. On April 1, 1975, they were informed by that Department that their application was denied. Petitioners then jailed a petition for review of the denial on April 8, 1975. In their Petition, it was stated that the application for water quality certification was part of a fill only and seawall permit application pending before the Trustees of the Internal Improvement Trust Fund. They contended that the water quality standards contained in Chapter 17-3 were not applicable to their application because there would be no discharge of any kind into state waters. The original application to fill and construct a seawall that had been pending before the Trustees was thereafter transferred to Respondent agency as part of the reorganization of state environmental agencies in 1975. On February 2, 1976, Petitioners were advised by Respondent that it intended to recommend denial to the Secretary of the Department of Environmental Regulation of Petitioners' application for a Chapter 403 and 253 permit and Water Quality Certification under P.L. 92-500 based on biological assessments of August 15, 1974, and January 28, 1975, and a water quality report of April 1) 1975. Petitioners then requested a hearing on February 6, 1976 (Exhibits 2, 3, 4, 5).
Respondent based its proposed denial generally on the determination that filling of the intertidal mangrove area and the navigable shallow bayous would have material adverse effects on marine life and wildlife and would not be in the best interests of conservation of marine biological resources (Exhibit 4).
The property is essentially a cul de sac with less than the usual water flow exchange by tides and there is some impoundment of the water that flows through the roads and adjacent property. There is evidence of pollution of the water by reason of the culvert and ditch which drains from the northwest boundary of the property. A certain amount of wash from boat traffic along the Intracoastal Waterway undoubtedly introduces additional pollutants into the area. The property also has been used as a dumping ground to some extent and a borrow pit exists at the northwest corner of the property. Water samples taken in July, 1976, reflected pollution, primarily as to nitrogen and sulfur, in the area whore the stormwater drainage culvert empties onto the property. Filling
of the land will remove much of the present pollutants caused by stormwater runoff (Testimony of Davis, Exhibit 6)
In spite of the pollution of the water, the property in question is a productive mangrove system. The shallow bottoms function as feeding areas for animal life and the vegetation provides a diversified habitat for the estuary. Prop roots and pneumatophores of the red and black mangroves are covered with barnacles, oysters and other shellfish, and live oyster bars are found on the flats. Various species of red, green and brown algae vegetate the shallow streams and pools. Export of mangrove detritus which is biologically important as a basic food chain substance is very evident. An acre of mangroves can produce almost 8,000 pounds of detritus for herbivores a year which is transported out by the tide. Detritus is the sole diet for adult mullet. Marine life and wildlife observed in the area consists of a variety of fish, invertebrates, and birds (Exhibits 4 and 17, testimony of Burdett, Knight, Matthews).
During the period from 1943 when the Indian Beach Manor area was platted until 1975, approximately 300 feet (about half of the platted depth of the lot) had been lost through erosion. The proposed seawall will be 5' 7" high and will tie into an existing seawall on adjoining city property to the north. Petitioners plan to create a dike four or five feet high across the eastern shore boundary of the land, pump out the water, and fill with Florida sand to elevate the land about six feet (Testimony of Albrecht, Campbell).
CONCLUSIONS OF LAW
Section 253.124, Florida Statutes, provides that a person wishing to add to or extend existing lands located in the unincorporated area of any county bordering on or in the navigable waters of the state by any means must make application for a permit to the Board of County Commissioners of the county where such construction is desired. It further provides that if the Board finds the proposed work is not violative of any law, and will not harmfully obstruct or alter the natural flow of navigable waters within the area, create harmful or increased erosion, shoaling of channels, or stagnate areas of water, or' do material injury or monetary damage to adjoining land, the permit shall be granted subject to approval of the Respondent. It also provides in subsection 253.124(2) as follows:
". . . provided however, that prior to the issuance of such permit the board of county commissioners or other authorized body shall determine whether the granting of such permit and the construction to be done pursuant thereto would interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest, and whether the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth or a type useful as nursery or feeding grounds for marine life, will result therefrom to such an extent as to
be contrary to the public interest. The board should also consider any other factors affecting the public interests."
Section 253.124(4) provides that no such permit shall authorize work for a period of time in excess of three years, abut that after county approval and issuance of the permit, this period commences upon receipt by the applicant of all governmental authorizations, state and federal, including any permits from the Department of Environmental Regulation under Chapter 403 as may be required for completion of the proposed work.
Although Chapter 403 does not specifically make mention of filling land or constructing seawalls with respect to pollution or water quality standards, Rule 17-4.28, which was promulgated on June 10, 1975, requires all filling activities conducted in or connecting to waters of the state to comply with Chapter 17-3, F.A.C., which spells out water quality standards. Subparagraph (3) of that Rule requires an applicant for a fill permit or federal certification to affirmatively provide reasonable assurance to the Department that the "short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, F.A.C." That paragraph also, requires the Department (Respondent) upon denying any application to furnish the applicant official statements specifying with particularity the reasons for denial, including a "precise statement of those violations of water quality criteria, standards, requirements and provisions it expects to be caused by such activity and the manner in which such effects are expected to be caused."
Respondent, in its letter of proposed denial of water quality certification of April 1, 1975, stated that project construction may result in degradation of local water quality by altering, reducing, or eliminating the capacity of upland, shoreline submerged vegetation to receive, filter and assimilate both natural and man-induced pollutants," and concluded that therefore reasonable assurance had not been provided the Department for it to conclude that the water quality standards of the state would not be violated as a result of project construction.
Petitioners claim that Rule 17-4.28 should not apply because it was promulgated after their application had been submitted, and that neither Chapter
403 nor Chapter 17-3, by their terms embrace the concept of filling land or constructing seawalls. Respondent does not predicate its proposed denial upon the normal concept that construction itself will produce or discharge pollutants which lower water quality; rather, its apparent theory is that by eliminating vegetation on the land, the quality of surrounding waters will be reduced.
In view of the testimony of petitioners' expert that stormwater runoff from outside the property is discharging pollutants across Petitioners' land into the Intracoastal waterway, it is believed that placing clean fill in the area can only result in improved quality of adjacent waters. Accordingly, even though it is considered that Section 403.087, F.S., concerning the issuance of permits for the construction of stationary installations which reasonably can be expected to be a source of air or water pollution is broad enough to embrace the subject of filling land and the construction of a seawall, Petitioners have affirmatively provided reasonable assurance that the short-term and long-term effects of the project will not result in violations of water quality criteria and standards of Chapter 17-3.
The basic thrust of Respondent's proposed denial goes to certain of the environmental considerations set forth in Section 253.124 concerning the elimination of plant and animal life that allegedly would result from the project. The evidence establishes that the mangrove area in question supports a diverse habitat of fish and other marine natural resources that would be destroyed by filling the land. The sole remaining question is whether such work and the above results would interfere with the conservation of natural resources or destroy marine productivity to such an extent as to be "contrary to the public interest". Petitioners contend that the small amount of land involved in the project could have no significant impact upon the environment, particularly in view of the fact that their property is almost the sole remaining mangrove area on the west side of The Narrows, and because there are large mangrove areas still extant on the east side of The Narrows that adequately provide a suitable habitat for marine life and other natural resources. Respondent, on the other hand, views the steady encroachment upon such vegetated areas as a major threat to the environment, particularly because there are so few natural areas remaining in the vicinity. The term "contrary to the public interest" is broad enough to envision its application in cases involving elimination of even a small amount of natural resources that nevertheless play a role in the continuity of plant and animal life. As pointed out at the hearing by the testimony of Respondent's experts, the elimination of only a few trees would not necessarily be of significance, but the destruction of over two acres in an area that has almost completely been developed is of importance. It thus must be concluded that Petitioners' project would be contrary to the public interest and, in consonance with the legislative intent, the application should be denied.
That Petitioners' application for a permit to fill and construct a seawall under Chapter 253 and 403, Florida Statutes, be denied.
DONE and ORDERED this 17th day of May, 1976, in Tallahassee, Florida.
THOMAS C. OLDHAM
Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
Herman W. Goldner, Esquire
P.O. Drawer 14233
St. Petersburg, FL 33733
