STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE H. HODGES, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 79-2326

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was duly scheduled to be heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on February 12, 1980, in Jacksonville, Florida.

APPEARANCES

For Petitioner: C. Ray Greene, Jr., Esquire,

Jacksonville, Florida

For Respondent: George H. Hodges, Jr.

and Silvia Merell Alderman, Esquire Department of Environmental Regulation Tallahassee, Florida

Petitioner, George H. Hodges, Jr., applied on February 12, 1978, for a dredge and fill permit under Chapters 253 and 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, and for Water Quality Certification pursuant to Section 401 of Public Law 92-500. The proposed project entails the construction of a private boat docking facility in tidal wetlands associated with Pablo Creek (Intercoastal Waterway). The proposed project further would entail dredging a channel with a top width of 80 feet and a bottom width of 48 feet and approximately 1,700 feet long. The proposed channel depth would be 10 feet mean high water and encompass the dredging of approximately 26,660 cubic yards of material waterward of mean high water. A concrete sheet pile bulkhead approximately 850 feet long would be constructed in conjuction with a floating concrete boat dock nine feet wide by 135 feet long. Dredged material could be deposited within a diked upland area.

On November 6, 1979, the Department notified Petitioner of its intent to deny the permit application. A Petition for Hearing was filed thereafter by Petitioner. The Department forwarded the Petition to the Division of Administrative Hearings for proceedings pursuant to Section 120.57(1), Florida Statutes. The final hearing was scheduled by notice dated December 28, 1979.

As of the time of the hearing, Petitioner had not obtained a letter of clearance from the Department of Natural Resources pursuant to Section 253.77, Florida Statutes, although a portion of the proposed project would involve lands

owned by the State of Florida. However, by stipulation of the parties, Petitioner was permitted to proceed to final hearing in this matter without the required letter of clearance in view of the Department of Environmental Regulation's intent to deny the permit application. It was further stipulated that any recommendation by the undersigned Hearing Officer to approve the permit would be conditioned upon the obtaining of a letter of clearance from the Department of Natural Resources and upon the payment by Petitioner of the appropriate fees due to the State of Florida, which payment was deferred pending the out-come of this proceeding.

The Petitioner presented the testimony of George H. Hodges, Jr., and Lake Ray, Jr. The Respondent presented the testimony of C. E. Barber, Jr., Randy Kautz, and R. S. Murali. The parties further stipulated to the testimony of Samuel A. Johnston by deposition filed after the conclusion of the hearing, and that deposition was admitted into evidence as Petitioner's Exhibit 2. The parties were permitted additional time after the filing of the deposition of Mr. Johnston in which to submit posthearing memoranda of law and proposed findings of fact and conclusions of law. Respondent did so submit proposed findings of fact and conclusions of law. To the extent that those findings of fact have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, or as having been irrelevant to the issues under consideration herein.

FINDINGS OF FACT

1. The proposed project involves tidal wetlands north of Atlantic Boulevard and west of the intercoastal waterway in Duval County, Florida. The proposed dredging would result in the permanent elimination of approximately 68,000 square feet of productive Juncus roemerianus marsh. The salt marsh at this proposed project site is a healthy system, serving as a nursery and feeding habitat for a variety of aquatic organisms. The salt marsh further serves in a filtrative capacity, thereby acting as a nutrient and pollution trap.

   Filtrative and recycling properties would be completely removed if the area were dredged.

   
   

2. The flora of salt marshes provides the primary source of food in estuaries by producing detritus, which is utilized by a variety of consumer organisms. The project would eliminate such flora and thus cause a change in the aquatic community. The expected resultant community would be less desirable than the present community.

   
   

3. Species of wildlife expected to utilize the site include the great blue heron, little blue heron, Louisiana heron, great egret, snowy egret, green heron, yellow-crowned night heron, black-crowned night heron, black rail, clapper rail, king rail, osprey, seaside sparrow, marsh rabbit, raccoon, Florida mink, and Eastern diamondback terrapin. Additionally, representative species dependent upon estuarine salt marshes for feeding, spawning, nursery, and refuge habitat include the Atlantic menhaden, Atlantic croaker, Southern flounder, spotted seatrout, juvenile tarpon, penaeid shrimp, and blue crab.

   
   

4. Thus, the salt marsh at the project site provides a valuable habitat for a variety of fish and wildlife organisms, contributes to the production of detritus (a rich source of energy which supports the complex estuarine food web), and further contributes to the maintenance of Water Quality by filtering nutrients, sediments, and other pollutants from and upland runoff.

5. The removal of the marsh at the project site would have a negative impact on the immediate area, contrary to the public interest. Additionally, the cumulative impact of the removal of commercially and biologically valuable marshes such as exist at the project site would ultimately result in a decline in fish and wildlife populations in addition to eliminating any such area's ability to naturally filter nutrients and pollutants entering or existing in the water body attendant to the salt marsh.

   
   

6. The proposed project will cause short-term violations of the turbidity standard found in Section 17-3.05(2)(d), Florida Administrative Code (Supp. No. 81). Frequent maintenance dredging in the proposed canal will be required. The short-term violations that will occur during the initial dredging and during the subsequent maintenance dredgings will, on a cumulative basis, cause a long-term violation. The increased water depth caused by the dredging will cause inadequate flushing of the water body, resulting in long-term violations of dissolved oxygen and biochemical oxygen demand standards found in Sections 17- 3.05 (2)(e) and E)(Supp. No. 81), and 17-3.09(3)(Supp. No. 35), Florida Administrative Code. Such violations will further be increased on a short-term basis during the initial dredging activities and during maintenance dredgings.

   
   

7. Flow in the existing creek will be altered by the artificial topographic discontinuity, causing a flow reduction. The flushing activity between the proposed channel and the receiving body of water will be substantially decreased, thereby causing solids suspension in the water column, impeded sunlight penetration, and turbidity. Pollutants would likely be absorbed by the suspended solids and be retained in the water column. Further, deleterious and toxic substances are likely to be generated and trapped in the channel.

   
   

8. Although the area involved in the proposed project may be negligible and the loss in wildlife habitat and in filtrative capacity may not be subject to accurate measurement, clearly the proposed project would provide an adverse effect, and any proliferation of such projects would eliminate an essential wildlife habitat, an essential part of the aquatic food chain, and an essential filtration system.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to this action and over the subject matter. The Department of Environmental Regulation has jurisdiction over the proposed activity.

   
   

10. Section 17-4.07, Florida Administrative Code, provides that a permit for the proposed project may be issued only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, and other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit, or cause pollution in contravention of Department standards, rules, or regulations. Section 17-4.28(1), Florida Administrative Code, provides that all dredging and/or filling activities conducted in or connecting to waters of the State shall comply with Chapter 17-3, Florida Administrative Code, in regard to long- term, as well as short-term, effects of the project.

    
    

11. Petitioner has failed to provide reasonable assurances that his project will not interfere with the conservation of fish, marine life 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 marine habitats, grass flats suitable as a nursery or feeding grounds for marine life, and establish 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 public interest. Section 253.123(2)(d), Florida Statutes.

    
    

12. Petitioner has further failed to provide reasonable assurance that Water Quality standards will he maintained, and the Department has shown that both short-term violations and long-term violations of Water Quality standards would occur as to turbidity, dissolved oxygen, and biochemical oxygen demands in violation of Sections 17-3.05(2)(e) and (f)(Supp. No. 81), and 17-3.09 (3)(Supp. No. 35), Florida Administrative Code.

    
    

13. Further, an applicant for a permit to dredge must show that the project is in the public interest. Younge v. Askew, 293 So.2d 395 (1 DCA Fla. 1974); Shablowski v. State of Florida, Department of Environmental Regulation,

    370 So.2d 50 (1 DCA Fla. 1979). Petitioner's project involves the dredging of a canal approximately 1,700 feet long in order that he may have access for his private boat to travel from the intercoastal waterway to a private boat-docking facility to be constructed for his personal use. The permanent elimination of approximately 68,000 square feet of productive Juncus roemerianus marsh in order to obtain Petitioner's personal purpose is not in the public interest.

    
    

14. The cumulative effect of allowing projects such as Petitioner's will negatively impact the Water Quality of the area by reducing an essential habitat for aquatic wildlife, by reducing the essential filtering effect provided by the marshland vegetation, and by interfering with the conservation of fish, marine life and wildlife, or other natural resources.

    
    

15. Petitioner has failed to carry his burden of proof that the permit applied for should issue.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED

That the Petitioner's application for a dredge and fill permit be denied. RECOMMENDED this 17th day of April, 1980, in Tallahassee, Florida.

LINDA M. RIGOT

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 17th day of April, 1980.

COPIES FURNISHED:

C. Ray Greene, Jr., Esquire 2600 Gulf Life Tower Jacksonville, Florida 32207

Ms. Silvia Morell Alderman Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Jacob D. Varn, Esquire Secretary

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 79-002326

Orders for Case No: 79-002326