STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MYRON E. GIBSON, JR., )

)

Petitioner, )

)

vs. ) CASE NO. 81-2078

) WILLIAM H. GRIFFITH and STATE OF ) FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings. This hearing was conducted in Room 303, Escambia County Courthouse, 190 Governmental Center, Pensacola, Florida. The date of the hearing was November 10, 1981.

APPEARANCES

For Petitioner: Myron E. Gibson, Jr., pro se

259 Sabine Drive

Pensacola Beach, Florida 32561

For Respondent, Barry Silber, Esquire Griffith: Post Office Box 12308

Pensacola, Florida 32581

For Respondent, E. Gary Early, Esquire Department: Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301 ISSUES

The issue presented for consideration here concerns the request by the Respondent Griffith to be granted an environmental permit from the Respondent Department for the placement of "rip-rap" in the amount of approximately 170 cubic yards along the length of a retaining wall adjacent to his property. This request for permit is considered in the face of a challenge to the granting of the permit, as offered by the Petitioner Gibson.

FINDINGS OF FACT

1. On March 30, 1981, the State of Florida, Department of Environmental Regulation, received a request from William H. Griffith to allow him to place "rip-rap" adjacent to a retaining wall which fronts Griffith's property. Griffith is a resident at 259 Sabine Drive, Pensacola Beach, Florida. This residence address is in Escambia County, Florida. The details of the application for permit are as set forth in Respondent Griffith's Exhibit 3, admitted into evidence, which is a copy of the application.

   
   

2. The application as originally constituted requested that Griffith be allowed to place "rip-rap" material along the front of his property adjacent to the retaining wall which wall was approximately 140 feet in length. The depth of the "rip-rap" material was to be 30 feet with an approximate height of the material being 3 feet. The "rip-rap" material was to be constituted of concrete test block cylinders which are 6 to 8 inches in diameter by 12 to 14 inches in length, together with other aggregate material constituted of irregularly shaped chunks of concrete. Those materials are depicted in the Petitioner's Exhibit 1A through H which are photographs taken at the site of the proposed project.

   
   

3. Subsequent to the submission of the application for permit, a modification was made which reduced the depth of the "rip-rap" material from 39 feet to 10 feet 6 inches. This modification occurred sometime in May, 1981, and is depicted in the Respondent Griffith's Exhibit 3.

   
   

4. The proposed project, in its modified form, would involve navigable waters of the State. Specifically, it would involve Class II waters, namely the intercoastal waterway which is fronted by the Respondent Griffith's property. A sketch of this location in Escambia County is depicted in the item entitled "vicinity map" which is part of Respondent Griffith's Exhibit 3.

   
   

5. The purpose of the "rip-rap" as it is presently contemplated through the project would be to prohibit tidal erosion of the Respondent Griffith's property, in the area of his beach front, particularly as it is exacerbated by seasonal winds.

   
   

6. A permit application appraisal was made by the Department and was concluded on July 27, 1981. A copy of that appraisal may be found as the Respondent Department's Exhibit 1, admitted into evidence.

   
   

7. Through the process of the permit review and appraisal, the Department requested that the applicant remove four "rip-rap" groins running perpendicular to the retaining wall, which were 20 to 30 feet long. Those groins were not acceptable to the Department as devices to prohibit erosion. Respondent Griffith has removed the majority of the fill material and the present design contemplates the total removal of those groins.

   
   

8. At the time of the permit review and at present the existing retaining wall is located 8 to 10 feet landward of the approximate mean high water shoreline. If constructed the 10 foot 6 inch depth "rip-rap" fill structure would extend approximately 2 feet waterward of the approximate mean high water shoreline.

   
   

9. A description of the flora and fauna located at the project site, together with general description of the soil types may be found in Respondent Department's Exhibit 1.

10. The impact of the project as described in the permit application appraisal, Respondent Department's Exhibit 1, indicates that the placement of "rip-rap" would stabilize the eroding shoreline adjacent to the applicant's property; provide moderate amounts of substrate to act as a habitat and shelter for intertidal organisms; would act as a limited inhibitor to littoral sand transport, particularly as related to Petitioner Gibson's property, in that there will be some deprivation of sand transport onto the Gibson property until the "rip-rap" stabilizes; however, this deprivation of sand transport of the Gibson property is not substantial. The impact on the Gibson property is further described in the appraisal statement as being insignificant. (It is also suggested that Gibson utilize "rip-rap" as opposed to the vertical timber retaining wall which is in place at his property and is subject to being undermined by tidal pressures.) These perceptions as set forth in the Department's permit application appraisal are factually correct.

    
    

11. Having conducted the permit review and being of the opinion that the permit should be issued, the Department sent a letter of intent to issue the permit on July 29, 1981, and served Petitioner Gibson with a copy. The permit document was also forwarded to the applicant. The letter of intent and permit document may be found in Respondent Griffith's Exhibit 5, which was admitted into evidence. This exhibit is a copy of the aforementioned items.

    
    

12. Subsequent to the notification of the intent to grant, Petitioner Gibson requested a Subsection 120.57(1), Florida Statutes, hearing, which Petition, in its final form, may be found as Respondent Griffith's Exhibit 2, admitted into evidence, which is a copy of the verified Petition of the Petitioner. The hearing was then noticed and conducted on November 10, 1981, pursuant to the hearing notice, a copy of which may be found as Respondent Griffith's Exhibit 1, admitted into evidence.

    
    

13. The project as contemplated will not have a significant negative impact on the flora and fauna. To the extent that there is some destruction by the placement of the "rip-rap" material, this destruction is more than offset by the provision of habitat and shelter for intertidal organisms.

    
    

14. The placement of the "rip-rap" will not have a negative impact on water quality in the waters of the State which are adjacent to the Respondent Griffith's property and in which the "rip-rap" will be implaced to the extent of approximately 2 feet waterward of the approximate mean high water shoreline.

    
    

15. Should the "rip-rap" material not be placed, shoreline erosion will continue in the area of the applicant's property and that of the Petitioner.

    
    

16. The placement of the "rip-rap" is not a hazard to navigation nor in conflict with the public interest.

    
    

17. The applicant has received necessary approval from the Army Corps of Engineers for the installation of the "rip-rap" material as may be seen by the grant of a permit from the Corps, a copy of which is found as Respondent Griffith's Exhibit 4, admitted into evidence.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action in keeping with Subsection 120.57(1), Florida Statutes.

19. Official recognition is taken of Chapters 17-3 and 17-4, Florida Administrative Code.

    
    

20. The Respondent Griffith has moved to strike certain portions of the Petitioner's proposed findings of fact and associated memorandum. That motion is GRANTED in all particulars with the exception that the second sentence of page 3 of the Petitioner's proposed findings of fact and memorandum is allowed to remain up to the point where the phrase begins ". . . even though the literature abounds with such evidence."

    
    

21. To be granted the subject permit, the Respondent Griffith must comply with all applicable provisions of Chapters 253 and 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. The Respondent Griffith has so complied.

    
    

22. In particular, the applicant has complied with Rule Sections 17-4.02 and 4.03, Florida Administrative Code, dealing with the necessity to describe the proposed project and to identify construction techniques and the necessity for this stationary installation to be permitted in keeping with Rule Subsection 17-4.28(3), Florida Administrative Code.

    
    

23. The applicant has demonstrated that this fill project is acceptable, in that the applicant has given the necessary reasonable assurances to allow the Department to issue a permit commensurate with such conditions as may be directed by the Department. See Rule Section 17-4.07, Florida Administrative Code.

    
    

24. Respondent Griffith, in keeping with the provisions of Rule Subsection 17-4.29(6), Florida Administrative Code, has shown that the project will not interfere with the conservation of fish, marine and wildlife or other natural resources in a way which is contrary to the public interest, nor through the project create a navigational hazard or impediment to navigation or alteration or impediment to the flow of navigable waters to an extent to be contrary to the public interest, nor in any other particulars, violate the terms and conditions of that provision.

    
    

25. The project is not in violation of minimum requirements of all waters as set forth in Rule 17-3.051, Florida Administrative Code, nor contrary to general criteria related to surface waters as set forth in Rule Section 17- 3.061, Florida Administrative Code. Finally, this project would not be violative of the criteria set forth for Class II waters found in Rule Section 17-3.111, Florida Administrative Code.

    
    

26. In summary, the Respondent Griffith is entitled to the issuance of permit No. 17-41527-1E and to operate in accordance with the terms and conditions as set forth in that proposed permit. Therefore, based upon a full consideration of the facts as set forth herein, the conclusions of law reached and in consideration of the arguments made by the parties, 1/ it is

RECOMMENDED:

That the State of Florida, Department of Environmental Regulation, through a final order, formally issue permit No. 17-41527-1E as it is now constituted, with its attendant terms and conditions, for the benefit of the Respondent, William H. Griffith, thereby allowing implacement of approximately 170 cubic yards of "rip-rap" along the waterward face of his existing retaining wall.

DONE and ENTERED this 3rd day of December, 1981, in Tallahassee, Florida.

CHARLES C. ADAMS, 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 3rd day of December, 1981.

ENDNOTE

1/ Parties have submitted proposed findings of fact, conclusions of law and recommended dispositions in this matter. Those items have been reviewed prior to the entry of this Recommended Order. To the extent that those items are consistent with the Recommended Order, they have been utilized. To the extent that they are inconsistent with the Recommended Order, they are hereby rejected.

COPIES FURNISHED:

Myron E. Gibson, Jr.

259 Sabine Drive

Pensacola Beach, Florida 32561

Barry Silber, Esquire Post Office Box 12308 Pensacola, Florida 32581

E. Gary Early, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-002078

Orders for Case No: 81-002078