STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. AND MARY M. JACKSON, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1576

)

GEORGE M. THREADGILL AND ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer of the Division of Administrative Hearings, on October 7, 1982, in Pensacola, Florida.

APPEARANCES

For Petitioners: William E. and Marie M. Jackson, pro se For Respondent: George M. Threadgill, pro se

For Respondent E. Gary Early, Assistant General Counsel Department of Department of Environmental Regulation Environmental Twin Towers Office Building

Regulation: 2600 Blair Stone Road

Tallahassee, Florida 32301

This cause was initiated on the application of George M. Threadgill for a dredge and fill permit pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The applicant seeks to extend an existing

pier to a length of approximately 100 feet by 4 feet wide with a platform on the end approximately 10 feet by 14 feet. On May 11, 1982, that application was modified so as to adjust the angle of the proposed pier extension so it would not extend in front of a neighbor's property. The proposed project is located on Innerarity Point on Perdido Bay, Escambia County, Florida.

At the hearing, the applicant presented three witnesses. The Respondent, Department of Environmental Regulation, presented two witnesses and five exhibits, all of which were admitted into evidence. The Petitioners, the Jacksons, testified on their own behalf and presented Exhibits A and B, both of which were admitted into evidence. At the conclusion of the hearing, the parties availed themselves of the right to file proposed findings of fact and conclusions of law, which were timely filed.

The issue to be resolved herein concerns whether or not the proposed pier construction project will be performed in such a way as to reasonably assure the Department of Environmental Regulation that the project will not violate water

quality standards and will not be a source of pollution for purposes of Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code.

FINDINGS OF FACT

1. Respondent, George M. Threadgill, applied on May 5, 1982, for a dredge and fill permit under Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The application was for an extension to an existing pier which would be approximately 100 feet long by 4 feet wide with a platform on the end which would be approximately 10 feet long by 14 feet wide. On May 11, 1982, Respondent modified the application by adjusting the angle of the pier extension so it would not extend in front of his neighbor's property. The site of the project was to be on Innerarity Point on Perdido Bay, Escambia County.

   
   

2. The existing pier is approximately 90 to 100 feet long. Prior to Hurricane Frederick in September, 1979, the existing pier extended an additional

   40 feet into Perdido Bay.

   
   

3. The Department of Environmental Regulation is an agency of the State of Florida with jurisdiction under Chapters 403 and 253, Florida Statutes, to regulate and require a permit for the construction of stationary installations within waters of the State. The Department also has permitting jurisdiction over dredge and fill operations in such waters pursuant to Florida Administrative Code Rules 17-4.28(2) and 4.29(1).

   
   

4. The water at the project site is extremely shallow. Witnesses O'Neil and George Threadgill established that the water at the end of the existing pier ranges in depth from being dry in the winter to approximately 2 feet 6 inches during normal water levels. At the end of the proposed pier, the water is from

   2 feet 9 inches deep to "waist deep" during normal water levels. There are no grass beds or other areas of significant marine vegetation in the area of the project. Expert witness Snowdon demonstrated that the bay bottom in the area consists of various grades of sand. There are no lagoons or inlets on the adjacent shoreline, and there are no navigational channels in the vicinity of the Project area.

   
   

5. The construction of the pier extension is not expected to interfere wish wildlife in the area. There will be some amount of turbidity introduced into the water column as a result of placing the pier pilings in the water. Coarse sand of the type found in the area will settle rapidly out of the water column. Significant water quality problems would only be encountered if pockets of sediment are encountered while "jetting" the pilings into the substrate. The use of turbidity control measures will alleviate water quality problems associated with construction. Based on unrefuted expert testimony of witnesses Snowdon and Fancher, no water quality degradation will occur during and after construction of the pier.

   
   

6. The majority of boat traffic in the area consists of mullet fishermen. The mullet boats navigate in the project area, but, as even Petitioners admit, they generally run either around or waterward of an iron stake located approximately 500 feet from shore. When the mullet boats do come within the project site, it is merely to pass through. They do not set their mullet nets within the project area. The existence of the pier will not significantly interfere with navigational patterns for commercial and private fishermen, nor for other types of marine craft or purposes.

7. A sandbar approximately 20 to 25 feet wide exists along the shoreline beginning approximately 10 feet in front of the applicant's existing pier. Prior to September, 1979, the existing pier extended past the sandbar. There was no evidence presented that the pier blocked access or navigation at that time. The Petitioners do not object to the pier being rebuilt to its pre-1979 dimensions, nor to an area beyond the sandbar. At normal or high tide, Petitioners are able to run their boat straight out into Perdido Bay from a distance of 60 feet from the shore due to their having a "short shank motor" on

   their boat. The existence of the pier across the sandbar will not significantly interfere with the Petitioners' access to their pier or their waterfront. The existence of the pier will not affect navigational patterns of other neighbors.

   
   

8. Paddleboats use the waters in the vicinity of the project area. Paddleboats can navigate under the adjacent pier owned by the Petitioners. The adjacent pier is approximately 5 feet high as measured from the top of the pier to the sand bottom. The proposed pier will measure slightly less than 6 feet from the top to the sand bottom. The existence of the proposed pier extension was thus shown to not significantly disrupt recreational paddleboat navigation in the area.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this action. 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

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

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.

1. The expert testimony of the Department witnesses, as well as the applicant, constitutes preponderant evidence that applicant, by properly applying for a permit, and providing all information requested concerning the site and construction techniques, which is to the satisfaction of the Department, has provided the necessary affirmative reasonable assurances to the Department that the project will not violate water quality standards. The issuance of a permit pursuant to Chapter 403, Florida Statutes, has therefore been justified.

   
   

2. Section 253.123(2) provides that:

   
   

   The removal of sand, rock or earth from the navigable waters of the state as defined in s. 253.12 and the submerged bottoms thereof by dredging, dumping, digging, or any other means shall not be permitted except in the following instances:

   (d) . . . that such removal will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent

   as to be contrary to the public interest

   
   

3. Florida Administrative Code Rule 17-4.29 (3) provides that:

   
   

   The following activities shall be considered short form projects, for which the application, as set forth in Section 17-1.1221(15), F.A.C.,

   shall be completed and submitted to the department . . .

   (b) Dockage or marina facilities not exceeding 20,000 square feet or navigable waters of the state . . .

   
   

4. Florida Administrative Code Rule 17-4.29(5) provides that:

   
   

   Before issuance of a permit under this section, a biological survey, ecological study, and hydrographic survey, if such hydrographic survey is deemed necessary by the Depart- ment, must be prepared by or under the supervision of the Department which contains findings and recom- mendations with reference to the effects of the proposed activity upon fish, wildlife or other natural resources. A less extensive bio- logical survey and ecological study

   shall be prepared by the Department in evaluating short form applications submitted pursuant to Subsection

   17-4.29(3), Florida Administrative Code. However, if deemed necessary, the Department may require the appli- cant to conduct and submit a hydro- graphic survey.

   
   

5. Florida Administrative Code Rule 17-4.29(6) provides that:

   
   

   1. 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:

      1. that such activity will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest . . . and

      2. 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. . .

         
         

6. The applicant has provided sufficient information which, in combination with the biological study and ecological survey prepared by the Department and resultant expert testimony and evidence, shows that the construction of the pier will not violate water quality standards contained in Chapter 17-3, F.A.C., will not interfere with the conservation of fish, marine and wildlife resources; and will not create a navigational hazard or serious impediment to navigation so as to be contrary to the public interest.

   
   

7. The applicant is found, in all other respects related to environmental concerns, to have complied with all applicable provisions of Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code, requisite to obtaining the necessary permits to construct the extension to the existing pier.

   
   

   RECOMMENDATION

   
   

8. Having considered the foregoing findings of fact and conclusions of law, the evidence in the record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,

RECOMMENDED that the application for a dredge and fill permit by George M. Threadgill for the construction of an extension to his existing pier on Innerarity Point in Perdido Bay in Escambia County, Florida, be GRANTED and that the necessary permit be issued.

DONE and ENTERED this 14th day of January, 1983, 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 14th day of January, 1983.

COPIES FURNISHED:

William E. and Marie M. Jackson Route 1, Box 826

Pensacola, Florida 32507

Mr. George M. Threadgill 4626 LeHavre Way

Pensacola, Florida 32505

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

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Ms. Victoria Tschinkel Secretary

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 82-001576

Orders for Case No: 82-001576