Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings on June 9, 1982, in Shalimar, Florida.
For Petitioners: Mr. John H. Savell, pro se
Mr. John E. Potts, pro se Four Sand Dollar Apartments Durango Road
For Respondent: E. Gary Early, Esquire
Pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, Petitioners have applied for dredge and fill permits to construct boat slips perpendicular to canals which are adjacent to East Pass Lagoon in Destin, Florida. The proposed boat slip of the Petitioner John Potts would be approximately 32 feet long by 32 feet wide by 7 feet deep excavated perpendicularly to Holiday Isle Canal at the above location. The particular site of the project is Lot 1, Block E, Norriego Road, Holiday Isle, Destin, Florida. The project of Petitioner John H. Savell calls for an excavated boat slip approximately 32 feet long by 44 feet wide by 6 feet deep excavated perpendicularly to Holiday Isle Canal, also adjacent to East Pass Lagoon in Destin, Florida. The particular site of the project is Lot 109, Block F, Gulf Shore Drive, Holiday Isle, Destin, Florida. Pursuant to its notice of October
6, 1981, the Department announced its intent to deny the applications, whereupon the parties availed themselves of their right to a formal proceeding pursuant to Section 120.57(1), Florida Statutes. By appropriate motion and by stipulation of the parties, the causes styled above were consolidated for purposes of hearing and rendition of the recommended order. Inasmuch as they involve the same issues of law, essentially the same factual issues, and the same respondent party.
The essential issue involves whether the proposed dredge and fill projects will cause short or long-term violations of water quality standards embodied in Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code; and whether the Petitioners have provided affirmative reasonable assurances to the Department that such violations will not occur. Subsequent to the hearing, the parties chose to file proposed findings of fact and conclusions of law and requested an extension of the time in which to file such pleadings. Proposed findings of fact and conclusions of law were timely filed, and the parties waived the requirement of Rule 28-5.402, Florida Administrative Code.
Petitioner John E. Potts applied for a dredge and fill permit pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The application calls for an excavated boat slip approximately 32 feet long by
32 feet wide by 7 feet deep. The slip is to be excavated perpendicularly to the Holiday Isle Canal, which is adjacent to and connected with East Pass Lagoon in Destin, Florida. The specific site of the project is Lot 1, Block E, Norriego Road, Holiday Isle, Destin, Florida.
Petitioner John H. Savell applied for a dredge and fill permit pursuant to the above authority. His application calls for an excavated boat slip approximately 32 feet long by 44 feet wide by 6 feet deep. This boat slip 15 to be excavated perpendicularly to the Holiday Isle Canal, adjacent to East Pass Lagoon in Destin, Florida. The specific description of this project site is Lot 109, Block F, Gulf Shore Drive, Holiday Isle, Destin, Florida.
The Respondent is an agency of the State of Florida having jurisdiction pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code, to require a permit for the construction of stationary installations within waters of the State of Florida. The East Pass Lagoon and the Holiday Isle canals connected with East Pass Lagoon and the two project areas constitute waters of the State over which the Department has dredge and fill permitting jurisdiction pursuant to Rules 47-4.28(2) and 17-4.02(17), Florida Administrative Code.
The Petitioners both took the stand in their own behalves and testified generally regarding the dimensions of the proposed boat slips and established that the proposed boat slips would be only used for private craft for docking the same at their homes which are constructed or under construction on the
above-described lots. The Petitioners described the method and the equipment to be used for the proposed excavations with particular emphasis on "turbidity curtains" which would be used across the mouths of the subject boat slips as they are being excavated in order to prevent resulting turbidity and siltation from entering waters of the State; to wit, the canal and the lagoon.
Additionally, the Petitioners proposed sloping the walls of the boat slips, planting of certain grasses, and possibly even using polyfilter cloth for retention of the soil and newly planted grass on the slopes surrounding the boat slips. The drawing contained in Joint Exhibit 2, however, shows the interior of
the boat slips to be vertically bulkheaded with tidal grasses only planted on the shorelines of either side of the mouths of the boat slips. Included along with bulkheads on one side of the boat slips with regard to Mr. Potts' application are two 10-inch pilings for mounting boat davits for lifting a boat out of the water.
The Northwest District Office of the Department of Environmental Regulation accepted the permit applications submitted by the Petitioners, and the file and the applications were assigned to Mr. Cliff Rohlke of the District staff. Mr. Rohlke is employed as an Environmental Specialist, serving as a dredge and fill inspector. He was accepted as an expert witness in the area of water quality, with specific emphasis on dredge and fill permitting problems as they relate to water quality, as well as aquatic vegetation and its characteristics and functions in relation to water quality.
Mr. Rohlke was familiar with the Holiday Isle Canal system and the adjoining and involved development. He and another Department witness, Mr. Mark Snowdon, had done previous on-site inspections and studies of the subject area. In October, 1980, Mr. Rohlke and Mr. Snowdon performed a study designed to determine water quality in the subject canals in the Holiday Isle development. Their studies in October, 1980, showed only one water quality violation in the canal system.
Similar studies performed on July 21, 1981, by Mr. Rohlke and Mr. Snowdon, however, showed dissolved oxygen violations in five of the six sampling stations used to perform the study within the canals. Even the one station not shown to actually violate water quality standards in terms of dissolved oxygen had significantly lower levels of dissolved oxygen than a comparable location in the 1980 study (see Respondent's Exhibit 6). Studies were performed again on August 26, 1981, by the same two witnesses. These studies also showed dissolved oxygen standard violations in the canals. The presence of dissolved oxygen content in the water which was below standards enunciated in Chapter 17-4, Florida Administrative Code, was borne out by the presence of an algae bloom in the canal observed by Mr. Rohlke. Mr. Rohlke established that the procedures used to take the samples in the case of each study, on each date, were scientifically correct, and the samples taken were correctly obtained and preserved. The instruments used to collect and measure the samples were the best available and were properly and recently calibrated, as established by Mr. Snowdon's testimony.
During the time parameters of these studies, between October, 1980, and August, 1981, many boat slips similar to those proposed in these proceedings were excavated along the banks or perimeters of the Holiday Isle canals in the Holiday Isle development. The increased number of boat slips was shown to directly relate to the decreasing water quality, as measured by the decreasing dissolved oxygen content in the canal water. Boat slips dredged and excavated at a 90 degree angle to the water body itself tend to impede the normal flushing activity of the tides and other water movement. The decreasing, or poor, water quality in the canals, established to be a fact by this witness, was thereby aggravated by the increasing number of boat slips excavated during the years in question. Boat slips, especially those constructed 90 degrees to the water body to which they adjoin, tend to catch and hold surface debris, including oil slicks, which either falls into the boat slips or is moved into them by wind or water currents. The tendency to hold all types of surface debris tends to contribute to poor water quality in the boat slips, as well as in the adjacent canals. Mr. Rohlke established that the construction of the boat slips would have a short-term additional detrimental effect of increasing turbidity or
siltation in the canals, although the Petitioners' proposal to construct turbidity curtains across the mouths of the boat slips while they are being excavated would eliminate to a large extent this threat to water quality.
An ever-increasing amount of aquatic vegetation occurring on or near the banks of the canal system has been removed or otherwise destroyed during the years in which witness Rohlke has observed and studied the water quality in the canal, with a concomitant, cumulative degrading effect on water quality in the canal system. No such aquatic vegetation remains at the vicinity of Petitioner Potts' proposed boat slip. Construction of Petitioner Savell's boat slip will eliminate an additional area of aquatic vegetation which currently is in place and is currently contributing to the maintenance of water quality by filtering, assimilating, transforming and rendering harmless nutrients and other pollutants.
The construction of these and the previous boat slips was shown to definitely eliminate shallow water habitat essential to a variety of benthic algae and other organisms and microscopic organisms which constitute crucial initial links in the aquatic "food chain" of the involved waters of the State and which are important to the survival and reproduction of multiple forms of marine life including commercially and recreationally important fish species.
Although the Petitioners propose to plant grass on the sides on the boat slips and to slope the banks of the boat slips instead of constructing them in a perpendicular fashion, the proposed grassed and angled sides were not shown to be effective in stabilizing the slopes of the boat slips in order to prevent additional turbidity and degradation of water quality. Both the angle of the slopes and other factors, such as boat wakes or other sources of wave action, will tend to cause the newly planted grass and soils to slough off into the boat slips and thus into State waters, even if extraordinary methods of retention such as porous polyfilter cloth is used on the slopes.
The several studies of water quality in the canal systems since October, 1980, clearly establish that a cumulative impact in the direction of continuing further degradation of water quality in the canal system and in the lagoon has resulted from the proliferation of excavated boat slips in the Holiday Isle Canal. The construction of any additional such boat slips will further accelerate the decline in water quality caused in part by previously constructed installations of this type.
These permits and the resulting boat slips were not shown to be required in order for the Petitioners to have mooring spaces for their boats on their property. The Petitioners are entitled to construct a private dock of up to 500 square feet without a Department permit and further Witness Potts, at least, even though he proposes to build a boat slip, apparently intends to construct davits within the boat slip "for lifting his boat out of the water after it is parked there. It was not shown by either Petitioner why the use of davits for lifting the boat out of the water along and on the existing canal bank or a private dock on the front of the property, or a combination of the two, would not adequately provide mooring space and protection for their boats without the necessity for the excavation of the subject boat slips.
In summary, aside from their own testimony regarding their opinion that the boat slips would not further degrade the waters in the canal or lagoon, the Petitioners presented no scientific studies, plans or test results which could establish that the proposed dredging and filling operations would not cause temporary or permanent violations of appropriate water quality standards.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action. Section 120.57(1), Florida Statutes.
The Department of Environmental Regulation has jurisdiction of the subject projects and permitting applications pursuant to Chapter 403, Florida Statutes, and may require a permit for the construction of such stationary installations within waters of the State. The subject waters, East Pass Lagoon and Holiday Isle Canal, constitute waters of this State over which the Department has dredge and fill permitting jurisdiction pursuant to Rule 17- 4.28(2) and 17-4.02(17), Florida Administrative Code. The subject projects are not exempt from the permitting jurisdiction of the Department.
Article II, Section 7, Florida Constitution, provides that it: [S]hall be the policy of the state to
conserve and protect its natural re-
sources and scenic beauty. Adequate provision shall be made by law for the abatement of air and water pollution and of excessive and unnecessary noise.
Section 403.021, Florida Statutes, provides that it is the public policy of this State to conserve the waters of the state and to protect, maintain and improve the quality thereof for the propagation of wildlife, fish and other aquatic life and other beneficial uses. The statute further provides that the prevention, abatement and control of pollution of the waters of this State are affected with a public interest. Chapter 403, Florida Statutes, therefore carries out the intent of Article II, Section 7 of the Florida Constitution.
Section 403.087(1), Florida Statutes, provides that:
No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and cur- rently valid permit issued by the depart- ment, unless exempted by department rule.
Section 403.087(2), Florida Statutes, provides that:
The department shall adopt, amend, or repeal rules, regulations, and standards for the issuance, denial and revocation of permits.
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 cur- ently valid permit issued by the Department, unless the source is exempted by Department rule.
Section 17-4.07, Florida Administrative Code, provides that:
A permit may be issued to the applicant upon such conditions as the Department- may direct, only if the applicant affir- matively provides the Department with reasonable assurance based on plans, test results and other information, that the construction, expansion, modifica- tion, operation or activity of the installation will not discharge, emit
or cause pollution in contravention of Department standards, rules and regulations.
Section 17-4.28(3), Florida Administrative Code, provides that:
The applicant for a dredge and/or fill permit or a federal certification for
a dredging and/or filling activity shall affirmatively provide resonable 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.
Section 403.031(2), Florida Statutes, defines pollution as including the presence in the waters of the State of any man induced alterations of the chemical, physical or biological integrity of the waters in quantities which are or may prove to be potentially harmful to animal life or to unreasonably interfere with outdoor recreation. Section 403.031(8), Florida Statutes, defines "installation" to include any structure, equipment or operation which may emit contaminants in quantities prohibited by the Department's rules.
The dredging activity of the type proposed by the Petitioners' will result in a stationary installation reasonably expected to be a source of water pollution within the meaning of Section 403.087, Florida Statutes, and thus requires a permit. State Department of Pollution Control v. Universal Adams, Inc., 44 Florida Supp. 165 (Fla. 19th Cir. Ct. 1974). Section 17-4.28(2), Florida Administrative Code provides that:
Those dredging and/or filling activities which are to be conducted in or connected directly or via an excavated water body or series of excavated water bodies to the following categories of waters of
the State to their landward extent as defined by Section 17-4.02(17), Florida
Administrative Code, require a permit from the department prior to being undertaken;
(c) Bays, bayous, sounds, estuaries, and natural tributaries thereto. . .
The Petitioners herein have failed to establish by a preponderance of the evidence that the subject projects will not violate the above rule and statutory criteria. The preponderance of the evidence adduced from the Department's expert witnesses establishes that violations of the pertinent water quality standards, especially that for dissolved oxygen, are to be expected and will occur. The project thus cannot be concluded to be in the public interest.
The Petitioners' projects were shown, by a preponderance of the evidence, to result in a degradation of the existing ambient water quality by their construction and existence standing alone, as well as in combination with similar excavated boat slips which have been constructed on or along the subject excavated canals which connect with the lagoon. The cumulative impact of a proliferation of such projects is a legally recognized consideration pursuant to Section 403.088, Florida Statutes, which recognizes the necessity of a review of such cumulative effects. The Petitioners projects were clearly shown to reduce the quality of the receiving State waters below the classification established for them, as well as serving as a substantial exacerbating factor in the current degradation of the receiving waters of the canals and the lagoon to which they are connected. It is thus concluded that the Petitioners failed to provide affirmative reasonable assurances that their proposed projects will not result in violations of the water quality standards enumerated above as to both their short-term and long-term effects on the State waters defined herein. A preponderance of the evidence demonstrates clearly that the proposed projects will cause pollution in contravention of the Department's rules enumerated herein and will result in violations of the Department's water quality standard for dissolved oxygen contained in Rule 17-3.121(14), Florida Administrative Code. The Petitioners' projects were shown to likely result in a lower existing ambient water quality, both alone and in combination with similar boat slip projects already constructed.
In summary, the totality of the evidence in the record confirms that the subject boat slip construction will cause violations of the State's water quality criteria contained in Chapter 17-3, Florida Administrative Code, and should not be authorized.
