STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPH J. DEMUCH )

)

Petitioner, )

)

vs. ) CASE NO. 77-045

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Palatka, Florida, on May 17, 1977, before the undersigned Hearing Officer.

APPEARANCES

For Petitioner: Joseph J. DeMuch

Post Office Box 447 Georgetown, Florida 32039

For Respondent: Vance W. Kidder, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301 ISSUE PRESENTED

Whether the Respondent should be granted a permit to fill land and construct a bulkhead, under Chapters 253 and 403, Florida Statutes.

FINDINGS OF FACT

1. Petitioner owns approximately five and three quarters acres of land adjacent to the St. Johns River in Putnam County, Georgetown, Florida. He has

   198 ft. frontage on the river. He purchased the land in 1973 and since that time, periodic storms have caused his shoreline to erode in a half-circle configuration for a distance of about 15 to 20 feet landward to a depth of about

   2 feet. To the south of his property is a boat marina. Boats utilizing that facility created debris which washed upon his land creating an unsightly condition. Additionally, wave action from the presence of numerous small craft contributed somewhat to the erosion problem. (Testimony of Petitioner, Petitioner's Exhibit 1)

   
   

2. Noting that both landowners to the north and south of his property had in existence previously-constructed bulkheads, petitioner determined that he would construct a similar bulkhead or seawall along his former shoreline and

   then reclaim the land that had been eroded by sand fill. He therefore contacted a contractor to obtain an estimate of the cost of construction. Petitioner denies requesting a pre-inspection of the proposed work by the Army Corp of Engineers and respondent, but the latter's records reveal that such an inspection was made late in 1974. At that time, Petitioner was informed that a permit would be needed to construct the bulkhead, but that his proposed position for it was excessively far waterward of the mean high water line and therefore would be objectionable. Although petitioner specifically denies ever having been told that he needed a permit, it is found that he was so informed by respondent's representative, (Testimony of Petitioner, Scott, Respondent's Exhibit 3)

   
   

3. Petitioner proceeded to construct a wooden bulkhead approximately 180 feet long and extending approximately 15 feet waterward of the mean high water line. The fact of construction was noted by respondent's inspector on April 24, 1975, and thereafter on May 12, respondent informed petitioner that he should either apply for a permit or remove all portions of the bulkhead from below the high water line. On November 25,1975, petitioner obtained the conditional approval of the Board of County Commissioners, Putnam County, Florida, for a fill and bulkhead permit, subject to approval of an issuance of permits by the Army Corp of Engineers and the Board of Trustees, Internal Improvement Trust Fund. He thereafter on March 29, 1976, filed his application with respondent for a permit to construct a seawall and fill below the mean high water line with approximately 550 cubic yards of material. (Testimony of Scott, Petitioner's Exhibit 1, Respondent's Exhibit 2,3)

   
   

4. Respondent's inspector evaluated the application and submitted his report on March 31, 1976, recommending denial on the basis of significant adverse impacts associated with the project. However, the report stated that the construction of a rip-rap wall conforming to contour of the mean high water line would stabilize the water line and eliminate objections to the project. Specifically, the adverse impacts mentioned in the report were that backfill of the submerged area landward of the existing bulkhead would eliminate a portion of the littoral zone which is a site for nutrient transformation and stabilization. The elimination of the natural shore zone accelerates entrophication rates in the water body and resulting degradation of fish and wildlife resources. (Respondent's Exhibit 1)

   
   

5. Respondent's field inspector supervisor informed petitioner of the adverse report and suggested that the bulkhead be removed and rebuilt following the suggestion in the inspector's report. Petitioner did not agree to this proposition and therefore, on October 27, 1976, he was advised of respondent's intent to deny his application. The grounds for denial were that the seawall and proposed backfill would eliminate a tract of submerged land that stabilized sediments, functions in nutrient cycles and helps maintain water quality. Further, it was stated that destruction of this community would impair the ability of the affected submerged habitat to support fish and wildlife. It was further noted that the seawall would create an abrupt discontinuity in the existing shoreline and cause scouring of the littoral community. (Testimony of Scott, Petitioner's Exhibit 3)

   
   

   CONCLUSIONS OF LAW

   
   

6. Petitioner seeks a permit to fill land and an "after the fact" permit to construct a seawall, including water quality certification, under Chapters

   253 and 403, Florida Statutes, and P.L. 92-500.

7. Section 253.122(1) provides that there shall be no filling waterward of the line of mean high water or ordinary high water, except upon compliance with Chapter 253. Subsection 253.123(1) provides in part as follows:

   
   

   253.123 Restrictions on filling land and dredging.-- (1) No private person,. . . shall. . . add to or extend existing lands. . . bordering on or being in the

   navigable waters of the state as defined in s253.l2(1) by pumping sand, rock or earth from such waters or by any other means without first complying with s.253.122. . .

   
   

8. Under subsection 253.124, approval to fill land must first be obtained from the Board of County Commissioners of the county where the construction is desired. If such approval is obtained, as was done in this case, respondent additionally must approve the application. Here, petitioner is seeking to "add to or extend" existing lands by means of a seawall and fill to replace land lost by gradual erosion. Since the seawall has already been constructed, it should be noted that subsection 253.124(7)(a) prohibits respondent from issuing an "after the fact" construction permit unless it finds that exercising any other remedy would be more damaging to the environment or marine resources sought to be protected than would be the granting of such permit. The only other possible remedy in this instance would be to require petitioner to remove his existing seawall and, if he desires, to rebuild it upland of the mean high water line.

   No evidence was presented that to require petitioner to take such action would create more harm than leaving the seawall at its present location.

   
   

9. Although subsection 253.124(8) provides a procedure for an applicant to restore land lost as a result of avulsion or artificially-induced erosion, there was insufficient evidence to establish that any significant loss of petitioner's land was caused in that manner.

   
   

10. Rule 17-4.28, F.A.C., provides that an applicant for a fill permit must affirmatively provide reasonable assurance that the effects of the activity will not result in violation of water-quality criteria of Chapter 17-3, F.A.C. Petitioner presented no evidence in this connection and, accordingly, has not established his eligibility for such a permit.

    
    

11. Rule 17-4,29, dealing with Chapter 253 permits, provides that respondent may not issue such a permit unless information provided by the applicant affirmatively shows that the proposed activity will not 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 will not result in the destruction of marine productivity of natural marine habitats. Again, petitioner has not addressed this problem by the submission of evidence and, in view of respondent's findings that the proposed project would significantly interfere with the conservation of fish, marine life and other natural resources, and reduce the capability of the habitat to support such resources, it is concluded that there is no basis for the issuance of a permit to the petitioner.

RECOMMENDATION

That the application of petitioner Joseph J. DeMuch be denied.

DONE and ENTERED this 2nd day of June, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1977.

COPIES FURNISHED:

Vance W. Kidder, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Joseph J. DeMuch Post Office Box 447

Georgetown, Florida 32039

Docket for Case No: 77-000045

Orders for Case No: 77-000045