STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOLLY ROGER TRAILER PARK, )

and HOWARD MEYERS, OWNER, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1701

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 19, 1980, in the Monroe County Courthouse, Marathon, Florida. The issue for determination at the hearing was whether petitioner should be granted a permit to move a sunken barge presently located in navigable waters and relocate it at an adjacent shoreline, backfill the barge and place riprap around the barge.

APPEARANCES

For Petitioner: Howard H. Meyers

Jolly Roger Trailer Park

R.D. Number 1, Box 525 Marathon, Florida 33050

For Respondent: H. Ray Allen, Assistant General Counsel

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. Approximately four years ago, petitioner Howard Meyers purchased an old steel barge for the purpose of using it as a surface to put a crane on for other repair work. The crane work apparently vibrated so much that the deteriorated sides of the barge collapsed. The barge was moved closer to the shoreline, and it sunk. Efforts to remove the whole barge from the water were unsuccessful. Presently only about one-third of the original barge remains in the water.

   
   

2. In February of 1979, the petitioner submitted an application to the Department of Environmental Regulation for a permit to move the dismantled sunken barge hull to an adjacent shoreline area, fill the moved barge with fill removed from an excavated shoreline and an upland source and place riprap around

   the hull. Petitioner had a permit to do maintenance dredging to clean out an existing, channel or basin, and desired the subject permit for the purposes of getting rid of the barge, using it in furtherance of the maintenance dredging work and preventing erosion of the shoreline.

   
   

3. Upon receipt of the permit application, the respondent requested further information from the petitioner and conducted an on site inspection. Richard F. Dumas performed the field inspection and recommended that the permit be denied due to the advanced stage of deterioration of the barge, the increase in shoreline discontinuity and the proposed destruction of established marine vegetation in the area. Mr. Dumas was concerned with the adverse impact which would be caused from turbidity as the barge is dragged into place, the continued discharge of rust into the waters, and the alteration and hindrance of established lateral currents. He suggested that the applicant move the barge from the water to an upland area.

   
   

4. Thereafter, petitioner unsuccessfully attempted to move the barge out of the water and, in the process, a deteriorated portion of the sunken hull was rolled or folded back on itself, thus reducing the amount resting on the bay bottoms. Revised drawings were submitted to respondent by petitioner. Richard Dumas submitted a modified project appraisal and again concluded that the proposed dragging of the barge to its new site would detach most or all of the vegetation and disturb benthic organisms over a 3,300 square foot area, would increase the prominence of the existing shoreline discontinuity, and could hasten the refilling of the areas for which petitioner holds a maintenance dredging permit.

   
   

5. Thereafter, the respondent's branch office gave notice of its intent to deny the application for the subject permit. The grounds for such denial included violations of turbidity standards caused by the physical dragging of the barge and the backfilling operation, the discharge of rust from the deteriorating barge, the destruction and elimination of 3,300 square feet of productive bay bottoms and the entrapment of debris caused by the further protrusion of the shoreline.

   
   

6. The water body in question is a Class III body of water which is designated for recreation and the promulgation and maintenance of fish and wildlife. The area through which the barge is to be moved by dragging is vegetated with turtle grasses and brown, green and red algae. The area is one of productivity with types of vegetation that supports important marine organisms. The most remote portion of the barge presently rests approximately

   35 feet from the proposed site of placement, thus requiring the dragging of the barge across some 3,300 square feet of a viable, benthic community. This will result in the disturbance or complete elimination of such community. Because the area is one of high energy, it would be quite some time before the area could revegetate itself.

   
   

7. The placing and filling of the barge on the adjacent shoreline would displace the benthic community currently present at that site, and the extension of the shoreline would cause further entrapment. The material proposed to be used as fill for the barge is not stable material suitable for fill. Rust would be discharged and thus deteriorate the waters.

   
   

8. The applicant has not supplied the Department with any evidence of local approval of the proposed project.

   CONCLUSIONS OF LAW

   
   

9. Prior to the issuance of a permit for filling in waters of the State, it must be determined that the granting of such a permit will not interfere with the fish, marine or wildlife or other natural resources to such an extent as to be contrary to the public interest. Florida Statutes, Section 253.124. It is the burden of the applicant to provide reasonable assurances that the short and long term effect of the project will not result in violations of the water quality standards contained in the statutes and regulations and that the project will not be contrary to the public interest. Local approval is required for the filling of land bordering on or in the navigable waters of the State. Florida Statutes, Section 253.124.

   
   

10. The evidence in this case does not indicate that local approval for the project was obtained. The evidence affirmatively establishes that the proposed project will have short and long term adverse impacts on the water quality of the area and that it will interfere with the conservation of fish and marine life in contravention of Florida Administrative Code, Rules 17-4.07, 17-

4.28 and 17-4.29. The petitioner has failed to demonstrate that the proposed activity will not be contrary to the public interest. The proposed project does not warrant destruction of an area just to provide a deposition point for a barge.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the application for a permit to drag the sunken barge across productive bay bottoms to an adjacent shoreline, backfill the barge and place riprap around it be DENIED.

Respectfully submitted and entered this 20th day of March, 1980, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301 (904) 488-9675

COPIES FURNISHED:

Jake Varn, Secretary Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Mr. Howard Meyers

Jolly Roger Trailer Park

R.D. Number 1, Box 525 Marathon, Florida 33050

H. Ray Allen, Esquire Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 79-001701

Orders for Case No: 79-001701