STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LARRY J. SAULS, M.D., and )

HARRIET TINSLEY SAULS, )

)

Petitioners, )

)

vs. ) CASE NO. 79-2030

)

FELO McALLISTER and ) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on January 22, 1980.

APPEARANCES

For Petitioner,

Harriett Tinsley Sauls: Appeared pro se.

For Petitioner

Larry J. Sauls: No appearance.

For Respondent,

Felo McAllister: Appeared pro se.

For Respondent, William L. Hyde, Esquire

Department of 2600 Blair Stone Road Environmental Regulation: Tallahassee, Florida 32301

By application received October 18, 1978, No. 17-14042-1E, as modified by an undated letter from Dorothy M. McAllister to Mike Applegate, respondent McAllister seeks a dredging permit "to remove sediment and silt from the storm sewer" emptying into Texar Bayou near respondent McAllister's dock. Department of Environmental Regulation received the letter modifying the permit application on July 10, 1979. On September 14, 1979, the Department wrote Mr. McAllister advising him of its intent to issue the permit. Petitioners object to the proposed issuance of the permit on the grounds, among others, that drawings submitted in support of the application are unclear, that the "spoil site is vaguely described," that the dredging is to take place on property owned by the City of Pensacola, and that the proposed dredging serves no purpose.

FINDINGS OF FACT

1. Respondent Felo McAllister and his wife Dorothy own a home and dock on Texar Bayou off Escambia Bay in Pensacola, Florida. A storm sewer with a

   diameter of 15 to 18 inches empties into the Bayou near the dock. The silt- laden outflow from the storm sewer has resulted in a sand bar or berm two or three feet wide paralleling the shoreline from the McAllisters' property line to the dock. This sand bar separates a ditch caused by the outflow from Texar Bayou. Over the years, silt has accumulated underneath the dock.

   
   

2. The McAllisters originally applied for a permit to dredge boat slips at the dock. Andrew Feinstein, an environmental specialist II in respondent Department's employ, evaluated the original application and recommended denial, because he felt extending the dock was preferable to dredging. The McAllisters then modified their application so as to seek a permit for dredging at the mouth of the storm sewer in order that the silt already deposited there would not wash underneath the dock.

   
   

3. Mr. Feinstein and Michael Clark Applegate, an environmental specialist III and dredge and field supervisor employed by the Department, testified without contradiction that the Department has reasonable assurances that the proposed project will not violate any applicable rules. The permit DER proposes to issue contemplates that the berm will not be breached.

   
   

4. The bottom on which the dredging is proposed to take place belongs to the City of Pensacola. Although under water, it is a part of a dedicated roadway. The City itself does maintenance dredging to ensure the efficiency of storm sewers, but is glad for assistance from private citizens in this regard.

   J. Felix, City Engineer for Pensacola, is authorized allow dredging on this road right of way, and has done so. See also respondent's exhibit No. 2.

   
   

5. The site proposed for placement of the spoil is a low area affected by flooding. Fill there would affect drainage onto neighbors' property.

   
   

   CONCLUSIONS OF LAW

   
   

6. An applicant for a dredging 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." Rule 17-428(3), Florida Administrative Code. The uncontroverted evidence in the present case was to the effect that the Department had reasonable assurance that these "criteria, standards, requirements and provisions" would be met.

   
   

7. The only possible source of pollution, according to the testimony, was the spoil or fill which the objection insisted might be placed too close to the water with the result that flooding might reintroduce it into the bayou.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That respondent DER issue respondent McAllister the permit it proposed to issue in its letter of September 14, 1979, upon condition that the spoil be placed at least 100 feet from the water's edge.

DONE and ENTERED this 12th day of February, 1980, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

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

(904) 488-9675

COPIES FURNISHED:

William L. Hyde, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Mr. Larry Jay Sauls and Ms. Harriett Tinsley Sauls

14 West Jordan Street Pensacola, Florida 32501

Felo McAllister 2706 Blackshear

Pensacola, Florida 32503

Docket for Case No: 79-002030

Orders for Case No: 79-002030