STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA BI-PARTISANS CIVIC )

AFFAIRS GROUP, )

)

Petitioner, )

)

vs. ) CASE NO. 79-100

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and PALM SAGE )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this case on May 22, 1979.

APPEARANCES

For Petitioner: Jesse C. Barber, Esquire

160 South Broadway Bartow, Florida 33830

For Respondent, Alfred W. Clark, Esquire Department of Assistant General Counsel

Environmental Department of Environmental Regulation Regulation: 2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

For Respondent, Jack P. Brandon, Esquire Paul Sage: Post Office Box 1079

130 East Central Avenue Lake Wales, Florida 33853

On or about October 2, 1978, Respondent, Paul Sage (hereinafter "Respondent" or Applicant) filed an application with the Department of Environmental Regulation (hereinafter "DER") seeking a permit to construct a heat ramp adjacent to his residence, which is located on Crooked Lake in Polk County, Florida. Thereafter, DER evaluated the application and, on November 27, 1978, gave notice of its intent to issue the requested permit. Petitioner, Florida Bi-Partisans Civic Affairs Group, filed an objection to the issuance of the permit with DER and, on January 12, 1979, DER requested that a Hearing Officer from the Division of Administrative Hearings be assigned top conduct a formal hearing.

Final hearing in this cause was scheduled for May 22, 1979, by notice dated April 5, 1979.

At the final hearing, Petitioner called A. Richard Kessler, Robert V. Cloud, Benjamin Bindschadler, Kenneth Morrison and Gerry Rayburn as its witnesses. Petitioner also offered Petitioner's Exhibits numbers 1 and 2, which were received into evidence. Respondent Sage testified in his own behalf, and also offered Respondent's Exhibits numbers 1, 2, 3, 4, 5, 6 and 7, each of which was received into evidence. DER called Tony Pearce and Richard A. Lotspeigh as its witnesses, and offered DER Exhibits 1 through 5, inclusive, each of which was received into evidence.

FINDINGS OF FACT

1. On October 2, 1978, Respondent, Paul Sage, filed an application with DER seeking a permit to construct a boat ramp adjacent to his home, which is located on Crooked Lake in southeastern Polk County. Crooked Lake is a 5,538 acre meandered navigable freshwater lake. Approximately 25 percent of the shoreline of Crooked Lake has been developed into residential areas, and the remainder of the shoreline is grove and pastureland. Water levels in the lake have fluctuated considerably over the past decade. The parties have conceded for the Purpose of this proceeding that the mean high waterline of Crooked Lake is located at 120.4 feet mean sea level. Due to the aforementioned fluctuation in water level, the actual water's edge at the time of the bearing in this cause was considerably below the mean high waterline. In fact, on May 20, 1979, the water level of Crooked Lake stood at 115.5 feet mean sea level, whereas on September 27, 1978, when the drawings attached to Respondent's application were prepared, the water level was at 116.9 feet mean sea level.

   In any event, it is not contested that the entire length of the proposed boat ramp for which a permit is sought in this proceeding would be below the line of mean high water, and therefore on state owned land.

   
   

2. In his application, Respondent sought a permit to construct a 12-foot wide, 4-inch thick concrete boat ramp which would extend 186 feet waterward of the mean high water line. Respondent testified at the final hearing in this cause, however, that be wished a permit which could allow construction of a boat ramp of sufficient length to allow a water depth of 3 to 4 feet at its lakeward terminus to allow launching of water craft from a trailer. Due to fluctuating water levels, the eventual ramp length necessary could be more or less than the

   186 feet requested in the permit application. In preparing his permit application, Respondent made no actual measurement to determine what the depth of the lake was 186 feet from the mean high waterline, relying instead on his own estimate.

   
   

3. The permit application does not disclose the manner in which Respondent plans to construct the proposed ramp. No detailed engineering or construction data were submitted with the application. The application form simply reflects the Respondent's intention to place 27.3 cubic yards of fill material waterward of the mean high waterline, and 6.5 cubic yards of fill material landward of that line. Although the DER permit application appraisal indicates that the ramp is to be constructed of poured concrete, that fact is not reflected in the application. Indeed, in his testimony at the final hearing in this cause, the Respondent suggested that the ramp might be constructed of poured concrete up to the water's edge, and that preformed concrete slabs would then be utilized for the remaining length of the ramp. As indicated above, there is nothing in the application form, and nothing in the record of this proceeding, to indicate what, if any, measures will be taken during construction to insure non-violation of state water quality standards. Further, although the permit application indicates that no dredging or excavation activities will be associated with this project, the Respondent's testimony at the final hearing was to the contrary.

   The Respondent testified that because of the slope of the land toward the lake, and his desire to construct a level boat ramp, it would be necessary to "cut" and relocate portions of the lake bottom. The exact location of these "cuts", the volume of materials involved, and the manner by which they would be removed and/or relocated are net apparent from the record.

   
   

4. Respondent intends to construct the proposed ramp for his own personal use. He also indicated at the final hearing that he might allow neighbors to use the ramp without charge, since the nearest public ramp is approximately ten miles distant. The ramp would not, however, be used for commercial purposes. Respondent testified that he would expect to use the proposed ramp for launching his own boats approximately three times per year.

   
   

5. Adjoining property owners on either side of Respondent have indicated that they have no objection to the granting of the requested permit. In addition, in the permit application review process, DER solicited and received comments from the State of Florida, Department of Natural Resources, and the Army Corps of Engineers.

   
   

6. Aquatic vegetation in the area of the proposed project consists primarily of maiden cane, torpedo grass and water pennywort. This vegetation is growing within 12 feet of the water's edge as of the date of final hearing in this cause and rings the lake's shoreline to a distance of approximately 100 feet lakeward of the present waterline. Construction of the proposed project would prevent growth of rooted aquatic vegetation on 2,232 square feet of lake bottom, although some species of plants and animals might use the concrete from which the ramp would be constructed as a substrate. However, it appears from the record that no qualitative or quantitative analysis of the impact of the proposed project on the natural resources of the area was performed by the applicant. The DER representative who performed the permit application appraisal testified at the final hearing that the 12-foot width of the proposed boat ramp comprised only one-fifth of the owner's property frontage on the lake, and therefore would constitute a minimal disturbance for purposes of giving the applicant access to the open water of the lake. However, it does not appear from the record that the DER representative considered the impact

   of the 186-foot length of the proposed structure in arriving at his conclusion to recommend issuance of the permit. No actual measurements were made by either the permit applicant or DER to substantiate the applicant's claim that the filling of 186 feet of state-owned bottomland is necessary to furnish reasonable access from the applicant's property to the open waters of the lake.

   
   

7. The Petitioner is an organization, composed of either persons owning property bordering on Crooked Lake, or recreational users of that lake. As such, it appears that both Petitioner and its members would be substantially affected by proposed agency action in this cause.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Section 120.57(1), Florida Statutes.

   
   

9. In proceedings involving an application for issuance of a dredge-and- fill permit, the applicant for the permit bears the burden of affirmatively establishing entitlement to the issuance of the requested permit. J. W. C. Company, Inc. v. Department of Environmental Regulation, DOAH Case No. 76-

   832; Freeport Sulphur Company, et al. v. Department of Environmental Regulation, et al., DOAH Case No. 78-315.

   
   

10. Rule 17-4.28(3), Florida Administrative Code, provides that an applicant for a dredge-and/or-fill permit:

    
    

    . . . shall 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, Florida Administrative Code.

    
    

11. Rule 17-4.29(3) (a), Florida Administrative Code, provides that projects such as the one involved in this case, not exceeding 10,000 cubic yards of material placed in or removed from waters of the state, shall be considered short form projects.

    
    

12. Rule 17-4.29(5), Florida Administrative Code, provides that:

    
    

    Before issuance of a permit under this section, a biological survey, ecological study, and hydrographic survey, if such is deemed necessary by the depart-

    ment, must be prepared by or under the supervision of the department which con- tains findings and recommendations with reference to the effects of the proposed activity upon fish, wildlife or other natural resources. A less extensive biological survey and ecological study shall be prepared by the department in evaluating short form applications sub- mitted pursuant to Section 17-4.29(3), Florida Administrative Code. However, if deemed necessary, the department may

    require the applicant to conduct and submit a hydrographic survey. [Emphasis added)

    
    

13. Rule 17-4.29(6), Florida Administrative Code, provides that:

    
    

    The department shall not issue a permit unless the biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:

    1. that such 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 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, and estab-

       lished marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interest, and

    2. that the proposed project will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navi- gable waters, so as to be contrary to the public interest.

       
       

14. Rule 17-4.02(13), Florida Administrative Code, defines "dredging" as

    . . . the excavation, by any means, et submerged lands or the transitional zone of a submerged land."

    
    

15. Section 253.123(3) (a), Florida Statutes, provides that projects calling for dredging of materials from navigable waters of the state:

    
    

    . . . shall only be undertaken after receipt of a permit from the board of trustees, which permit shall be granted after consideration

    of a biological or ecological study, unless waived by the affirmative vote of at least five of the seven members of the board of trustees, upon a showing of the public interest which will be served by such works. [Emphasis added].

    
    

16. Section 253.151, Florida Statutes, controls the rights of riparian owners whose property is located on navigable meandered freshwater lakes in the State of Florida. Section 253.151(5), Florida Statutes, provides that:

    
    

    The riparian owner shall have the usufructuary right over lands lakeward of the boundary line down to the existing waterline, but such riparian owner shall not deny the use of the water above the established boundary line to any other owner or to the general public so long as such public does not come onto the land above the existing waterline. A riparian owner shall have the right of ingress and egress to and from the water for purposes of boating,

    swimming, fishing, skiing, and similar activities and shall:

    1. Be granted the privilege of clearing the aquatic vegetation, except woody plants of a diameter greater than 2 inches, measured at the base, out in the water to the extent necessary

       to enable him to use the public waters reasonably for boating, swimming, skiing, fishing, and similar activities. If an area greater than

       one-fifth of an acre is to be cleared within a period of 3 months, a permit must be applied for and granted by the board.

    2. Be permitted to fill to combat erosion. However, in no case shall this section be con-

       strued to grant a riparian owner the right to add on land out into the main body of the water

       in such a manner as to constitute an encroachment upon the sovereignty submerged bottoms to gain more property or to restrict others from reason- able use of the water. A permit from the beard shall be necessary for such fill projects to combat erosion.

    3. Be granted usufructuary right in any strip of land which may be exposed due to natural recession of the waters, between the boundary line and the existing waterline.

1. Section 253.151(2) (d), Florida Statutes, defines "usufructuary right" to mean:

   
   

   the temporary right of using the land lakeward of the boundary line to the existing

   waterline. The term shall not be construed to convey to any riparian owner the right to erect permanent strictures of any type upon sovereignty lands without the express consent of the [Board

   of Trustees of the Internal Improvement Trust Fund].

   
   

2. As indicated in the Findings of Fact herein-above set forth, although the permit application in this case did not, on its face, request authority to dredge materials from the bottom of Crooked Lake, the applicant in his testimony at final hearing in this cause indicated that it would be necessary for him to "cut" the lake bottom in order to build a level boat ramp from his property into the waters of the lake. Unfortunately, there are no detailed engineering drawings to affirmatively demonstrate that such "cutting'. will be necessary to construct the ramp. However, to the extent that the application might be deemed amended to include such a request, the application to dredge from the bottom of Crooked Lake should be denied, since the applicant has failed to demonstrate the public interest which would be served thereby. Shablewski v. Department of Environmental Regulation, 370 So.2d 50 (Fla. 1st DCA 1979).

   
   

3. The application submitted by Respondent in this case is singularly lacking in engineering detail for the proposed project. There is no evidence in the record concerning the type of construction safeguards to be utilized to insure non-violation of water quality standards. The requested length for the proposed boat ramp was based upon Respondent's rough estimates of the length necessary instead of upon accurate measurements. In addition, no scientific data was presented by respondent concerning the project's impact upon fish, marine and wildlife or other natural resources, and the appraisal of the proposed project performed by DER staff appears cursory at best. In light of the clear legislative constraints contained in Section 253.151, Florida Statutes, with regard to activities on sovereignty lands in navigable meandered freshwater lakes, and the additional requirements contained in Rule 17-4.29(6), Florida Administrative Code, it is the conclusion of this Hearing Officer that Respondent, Paul F. Sage, has bailed to furnish reasonable assurance to DER that the proposed activity will not result in violation of applicable water quality criteria, that such activity will not interfere with the conservation of fish, marine and wildlife or other natural resources, or that the filling of such a large area of state-owned land is necessary to afford "reasonable" access to public waters. The requested permit should, therefore, be denied.

4. Both Petitioner and Respondent have submitted proposed findings of fact in this cause. To the extent that such proposed findings of fact have not been adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED:

That a Final Order be entered by the State of Florida, Department of Environmental Regulation, determining that the requested dredge and/or fill permit be denied.

RECOMMENDED this 24th day of July, 1979, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Jesse C. Barber, Esquire

160 South Broadway Bartow, Florida 33830

Alfred W. Clark, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

Jack P. Brandon, Esquire

P. O. Box 1079

130 East Central Avenue Lake Wales, Florida 33853

Docket for Case No: 79-000100

Orders for Case No: 79-000100