STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONALD SENKOVICH, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1102

) JEFFREY DAVID EVANS and the ) STATE OF FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for formal hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, in Daytona Beach, Florida.

APPEARANCES

For Petitioner: Jeffrey C. Sweet, Esquire

Post Office Box 5386

Daytona Beach, Florida 32018

For Respondents: Jeffrey David Evans, pro se

Twelve Venetian Circle

Port Orange, Florida 32019

Richard P. Lee, Esquire

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

The Respondent/Applicant, Jeffrey David Evans, applied to the Department of Environmental Regulation and the Army Corps of Engineers for a permit to construct a dock extending into the Halifax River in Volusia County, Florida.

The Respondent/Applicant proposes to construct the dock to a length of sixty feet extending into the Halifax River, also known as the Intracoastal Waterway, in front of his residence.

By correspondence dated March 9, 1981, served on the Petitioner, the Department of Environmental Regulation advised of its intention to grant the permit for the construction of the proposed dock and boathouse. The Army Corps of Engineers issued general permit no. SAJ-20 (MOD) dated September 4, 1979, also authorizing construction of the proposed dock and boathouse.

The Department received a letter in opposition to the proposed project from the Petitioner, Donald Senkovich. On March 9, 1981, all interested persons were served with the notice of intent to issue the permit by the Department, advising them of their right to file a petition for hearing within fourteen days of receipt of that notice, which Senkovich did.

Jeffrey Evans, the Respondent/Applicant with the burden to show entitlement to the permit, as well as the Respondent/Department which supported his entitlement to the permit, presented two witnesses and eleven exhibits. The Petitioner presented one witness and one exhibit.

FINDINGS OF FACT

1. The Respondent/Applicant, Jeffrey David Evans, applied to the Department of Environmental Regulation and the Army Corps of Engineers for a permit to construct a dock and boathouse as depicted on Respondent's Exhibit 1. The proposed length of the dock and boathouse is sixty feet from the seawall marking the landward boundary of the Halifax River and the waterward boundary of the Respondent/Applicant's property. The Department of Environmental Regulation advised Evans as well as the protesting Petitioner on March 9, 1981, of its intent to issue the permit. The Army Corps of Engineers issued a general permit numbered SAJ-20(MOD) on September 4, 1979, also authorizing construction of the proposed dock with the condition that it not extend in a waterward direction to a water depth contour deeper than four feet at mean low water.

   
   

2. The Petitioner herein timely petitioned for a hearing protesting the decision by the DER to grant the permit. The parties do not dispute and indeed have stipulated that there will be no adverse impact on the conservation of fish and wildlife in the area and no significant chemical, biological or physical alteration of the state waters and marine or aquatic life involved. In short, it was stipulated that there are no adverse environmental impacts of any kind to be occasioned by construction of the project.

   
   

3. Mr. James Morgan of the Department staff was qualified as an expert witness in aquatic ecology and the evaluation of dredge and fill projects. He testified at the hearing and established that the Respondent/Applicant had provided affirmative reasonable assurances to the Department that the proposed project would not result in any violations of state water quality standards and that the proposed project would not result in interference with the conservation of fish and wildlife in the subject area or the capability of the local aquatic habitat to support such fish and wildlife. Mr. Morgan also testified that reasonable assurances had been provided by the Respondent Applicant that the proposed project would not create a navigational hazard or a serious impediment to navigation, and that an unobstructed navigable channel would remain after the project was constructed. There being no question that affirmative reasonable assurances have been provided that no state water quality standards will be violated and that no other adverse environmental impacts will occur within the purview of Chapter 403, Florida Statutes, or Chapter 17, Florida Administrative Code; the permit in this regard should be granted.

   
   

4. A question remains, however, regarding the maximum length the dock should achieve in a perpendicular direction from the seawall of the Respondent/Applicant's property out into the river. Evidence propounded by the Department regarding a six-foot water depth off the end of the proposed sixty- foot dock site is based upon hearsay information received from a Department employee other than the witness who testified, who in turn received it through a telephone conversation with, another party with no evidence that soundings or

   other types of survey were made. Mr. Evans' own testimony establishes that he measured some six and eight-foot depths in the natural channel involved herein, but his testimony is not specific enough in reflecting at what points in that channel, in relation to the site of the proposed dock, he measured those depths nor at what stage of the tide he measured them. It is established in the record that there is approximately a one-foot rise and fall between mean low water and mean high water at the subject site.

   
   

5. The only access by navigation to the Petitioner's home from the main channel of the Intracoastal Waterway is by means of a natural channel running in a northerly direction parallel and immediately in front of the Petitioner's home and the applicant's home and inshore from a large sand bar covered with oysters which is a permanent oyster bar protruding from the water at low tide. The channel continues from the Petitioner's home northerly and parallel to the applicant's home and seawall until it reaches the northern terminus of the sand bar. From that point a boat navigating the channel can turn out into the main channel of the Intracoastal Waterway. Unrefuted evidence propounded by the Petitioner in the form of a "multi-sounding" depth survey established that the channel's depth at mean high tide ranges from four to five feet in front of the Respondent/Applicant's property (See Exhibit 13)

   
   

6. The Petitioner established that access to the Intracoastal Waterway is only feasible through the subject channel running in front of the Respondent/Applicant's property. The Petitioner established that the channel begins with a depth of four feet at low tide or five feet at high tide as its landward boundary which lies fifty-two feet from the Respondent/Applicant's seawall. Thus, a dock extending the proposed sixty feet from the seawall would approach the middle of the subject historic channel and would constitute an impairment to navigation of that channel.

   
   

7. In apparent recognition of the question of navigability of this historic channel, which was shown to have a depth of five feet at mean high tide, the Corps of Engineers has issued a permit to the Respondent/Applicant to construct his dock to a point no farther waterward than the four-foot mean low water depth contour of the river. This would allow the dock to extend to the boundary of the channel and would thus allow a dock to be constructed fifty-two feet in a perpendicular direction from the Respondents Applicant's seawall.

   
   

8. The parties agree that four feet of water is required for navigability in and around the subject, historic channel. Thus, if the dock extended to the depth of four feet at low tide, which would be five feet at high tide, it would extend into the navigable channel and not allow a sufficiently safe distance waterward of the end of the dock for boats to turn around the end of the dock to negotiate the canal adjacent to the Petitioner's home, especially if Evans' boat is moored at the end of the dock. Accordingly the dock should only extend to that point, denominated on Exhibit 13, which is characterized by a depth at high tide of four feet and which lies six feet landward from the fifty-two-foot extent of dock which the Corps of Engineers' permit would allow. Thus, if the dock were to be built forty-six feet in a perpendicular direction from the seawall an additional six feet would be allowed for the mooring of the Respondent/Applicant's boat off the end of that dock without unduly obstructing navigation in the channel. It is noteworthy in this regard that no witness from the Corps of Engineers, or who was instrumental in the approval of the Corps of Engineers permit, testified at the hearing.

   CONCLUSIONS OF LAW

   
   

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

   
   

10. The authority of the Department of Environmental Regulation to require a permit for the construction of the subject facility is derived from Chapters

    253 and 403, Florida Statutes, as well as Chapter 17-4, Florida Administrative Code.

    
    

11. The standards for the granting or denial of the application are found in Rule 17-4.07(1) and 17-4.25(3), Florida Administrative Code. The former rule provides in part that:

    
    

    1. A permit may be issued to the applicant upon such conditions

       as the Department may direct, 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. . . .

       
       

12. Section 17-4.03, Florida Administrative Code, provides that:

    
    

    Any stationary installation which will reasonably be expected to be a source of pollution shall

    not be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the Department, unless the

    source is exempted by Department rule. . . .

    
    

13. Section 17-4.28(3) , supra, provides in pertinent part that:

    
    

    (3) The applicant for a dredge

    and 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. . . .

    
    

14. Section 17-4.29, Florida Administrative Code, provides, with regard to dredging or filling activities or construction activities in, on or over navigable waters that:

    
    

    the following activities

    at or below the line of mean high water

    in, on, or over the navigable

    waters of the State require a department permit:

    * * *

    (c) Marina construction', maintenance and installation and/or docks, wharfs, piers . . .

    * * *

    (6) 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:

    * * *

    (b) 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 navigable waters, so as to be contrary to the public interest.

    
    

15. The applicant for the permit herein has the burden to present evidence initially which will establish a prima facie case in support of his application and carries the ultimate burden of persuasion of entitlement to the permit throughout the proceedings. Once he presents a prima facie case the burden of going forward with evidence to show contrary facts is then cast upon the "Petitioner." If the Petitioner fails to carry his burden of presenting a preponderance of evidence of contrary facts which refute the prima facie case, then the permit must be approved. See Florida Department of Transportation v.

    J.W.C. Company, Inc., et. al., 396 So.2d 778, (Fla. 1st DCA, 1981).

    
    

16. In the instant case the applicant has presented affirmative reasonable assurances to the Department that the short-term and long-term affects of the proposed construction and installation will not result in violations of the water quality criteria standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. See 17-4.28(3) , supra. The preponderance of the evidence in this proceeding also establishes, and the parties do not dispute, that the proposed dock construction project will not cause pollution in contravention of the Department rules and will not result in violations of the Department's water quality standards. Thus the Respondent/Applicant has by agreement of the parties, as well as by a preponderance of the evidence, shown his entitlement to the requested permit with the exception of the navigational criteria delineated above.

    
    

17. As demonstrated in the above findings of fact, the construction of the dock to a length of sixty feet as proposed, would partially impede navigation in the natural channel which is involved in this proceeding. The evidence in the record establishes, however, that construction of the dock to a length of forty- six feet perpendicular to the Respondent/Applicant's seawall will provide him with a dock of sufficient length to permit mooring his boat in water of sufficient depth to navigate his boat from the dock to the channel, but will not project out in the channel so as to impede navigation by the Petitioner and others who have historically used that channel. See Ronald T. Hopwood and Milan

    M. Knorr v. State of Florida, Department of Environmental Regulation, Case No. yy-256 (Fla. 1st DCA 1981).

18. Accordingly, it is concluded that the dock as designed and proposed by the applicant, provided its length is limited to forty-six feet from the Respondent/Applicant's seawall, will not cause violations of state water quality criteria standards, requirements and provisions of Chapter 17-3, Florida Administrative Code, and will not interfere with conservation of fish and wildlife nor will it result in the creation of a navigational hazard or serious impediment to navigation.

RECOMMENDATION

In consideration of the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is

RECOMMENDED:

That the Department enter a Final Order granting the requested permit authorizing construction of a private dock and boathouse on the Halifax River in Port Orange, Volusia County, Florida, by Jeffrey David Evans, provided however, that said dock shall not extend a greater distance than forty-six feet in a direction perpendicular to the Respondent/Applicant's seawall on the waterward margin of his property on the Halifax River.

DONE AND ENTERED this 29th day of October, 1981, in Tallahassee, Florida.

P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of October, 1981.

COPIES FURNISHED:

Jeffrey C. Sweet, Esquire Post Office Box 5386

Daytona Beach, Florida 32018

Jeffrey David Evans Twelve Venetian Circle

Port Orange, Florida 32019

Richard P. Lee, Esquire Department of Environmental

Regulation

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

Docket for Case No: 81-001102

Orders for Case No: 81-001102