GEORGE R. LANGFORD, et al., )
vs. ) CASE NO. 82-1982
) BEN C. BOYNTON and STATE OF ) FLORIDA DEPARTMENT OF )
Respondent. )
Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on October 19, 1982, in Tallahassee, Florida. The following appearances were entered:
For Petitioner: Ben H. Wilkinson, Esquire
For Respondent: Richard E. Benton, Esquire Boynton 225 South Adams Street
For Respondent: E. Gary Early, Esquire Department of Assistant General Counsel Environmental Twin Towers Office Building Regulation 2600 Blair Stone Road
These proceedings began on July 13, 1982 when Petitioners Langford, et al., filed a Petition with Respondent Department of Environmental Regulation to object to the Department's intent to grant a dredge and fill permit for the construction of a dock and subaqueous cable crossing in Lake Iamonia. On July 21, 1982 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing.
At the final hearing the parties presented the testimony of witnesses.
Petitioners' Exhibits P-1, P-2 and P-3 were offered and received into evidence. Respondent Boynton's Exhibits A-1 through A-6 were offered and received into evidence. Respondent Department's Exhibits D-1 through D-5 were offered and received into evidence. The receipt of Exhibit D-4 was limited to only showing
that notice of Mr. Boynton's application for a dredge and fill permit had been given to the Florida Game and Fresh Water Fish Commission.
At the conclusion of the hearing the parties agreed that if a transcript of the hearing were not prepared the parties had thirty days after October 19, 1982 in which to file their Proposed Recommended Orders. The Hearing Officer's Recommended Order would then be due an additional thirty days later. The Proposed Recommended Orders submitted by the parties contain Findings of Fact which have been considered here. To the extent that the proposed findings are not reflected in this Order, they are rejected as being either not supported by the weight of admissible evidence or as being irrelevant to the issues determined here. Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982).
Mr. Boynton has applied for a dredge and fill permit to construct a dock to allow him access to an island which he owns in Lake Iamonia in Leon County, Florida.
Petitioners Wilkinson, Frye, Gary, Pennington, Dunlap and Buford 1/ are riparian landowners who use the waters of Lake Iamonia for recreation, fishing and duck hunting.
The Respondent Department of Environmental Regulation is the state agency charged with the responsibility of enforcing the state statutes and rules regulating water quality and dredging and filling in the waters of the State of Florida.
Nature of Project
According to his application (as amended at the final hearing) Mr. Boynton requests a dredge and fill permit to construct a boat dock which will be
150 feet long and 10 feet wide. It will be strong enough to support a motor vehicle. Mr. Boynton owns a parcel of land on the west shore of Lake Iamonia just north of what is known as the North Meridian Road Bridge. He also owns Island #33, known locally as Live Oak Island, which is 300 feet east of the mainland. Between the mainland and the island is a neck of the lake which is a shallow slough. As proposed the dock will extend from the west side of the island toward Mr. Boynton's mainland parcel at approximately the narrowest portion of the slough.
The dock will be constructed of creosoted pilings and planks. The pilings are to be sunk into the lake bottom by jetting to a depth of 10 to 12 feet.
Mr. Boynton plans to construct a hunting cabin on his island. The purpose of the dock is to allow him to transport supplies to the cabin from the mainland by means of a small boat. In order to supply electric power to the planned cabin Mr. Boynton also applied for a permit to construct a subaqueous cable crossing between the mainland and the island. No objection to the cable crossing has been raised by Petitioners.
In 1981 Mr. Boynton filed an application with both the Department of Environmental Regulation and the Department of Natural Resources for permits to
construct a 300 foot long bridge from the mainland to his island in the same location as the proposed dock. The bridge application generated considerable opposition from adjacent landowners on the lake and as a result, Mr. Boynton stayed his application. In November 1981 he wrote a letter to the Department of Natural Resources which stated:
November 2, 1981 Ted Forsgren
Department of Natural Resources
Tallahassee, Florida 32303
RE: Case #81-1910
Dear Ted:
Please do not submit a report to the Cabinet for the bridge permit I had requested. I would prefer there be no position stated either pro or con about this project.
Sincerely,
/s/ Ben C Boynton
Mr. Boynton later stated in a letter dated April 8, 1982 to Mr. William Williams at the Department of Natural Resources that:
I have stopped the bridge application. This is not to be construed as a withdrawal of the application. I plan to resume the re- quest at a later date.
I have earlier sent a letter to Mr. Ted Forestgren, permitting, DNR, stating the same. Should there be any other information requested, please let me know.
Much of the opposition from Petitioners to the proposed dock application is founded in a fear that the dock is just a first step in later constructing a bridge. This fear is reasonable. The proposed dock is precisely half of the original proposed bridge. At the final hearing Mr. Boynton was unable to provide a reasonable explanation of why he needs such a large dock to service a simple hunting cabin.
Water Quality and Wildlife Impact
The impact of the proposed dock on water quality in Lake Iamonia is insignificant. Lake Iamonia is a Class III water of the State of Florida. The proposed placement of pilings in the lake bottom will cause some turbidity for a short duration. This turbidity can be adequately controlled by the use of turbidity curtains at the time of construction. Petitioners have raised no objection in their Petition for Formal Hearing to the dock on the basis of water quality and it did not became an issue at the final hearing.
Some impact by the dock on wild ducks was alleged by Petitioners. Lake Iamonia is a wintering area for certain migratory waterfowl most notably, the ringneck duck. Most of the Petitioners are hunters who are concerned about
preserving their recreational interest in killing the ringnecks. As with water quality, the impact of the dock on waterfowl will be de minimis.
Ducks are wary of any new man-made structure and a dock of the size proposed here is certain to be noticed by them. They will initially be "blind shy" of the dock, but will readily adapt to its presence. Were there to be constant human activity on the dock, it would have a noticeable effect on the ducks' flight paths. The occasional off-loading of supplies for a hunting cabin will frighten few, if any ducks. There are other structures, such as the residences of other riparian owners, and docks along the lake shore which have not frightened the ducks away. The fearless ringnecks even tolerate being shot at, yet return to the lake annually.
At the final hearing Petitioners recognized the de minimis impact of the proposed dock on wildlife and water quality. Their concern is that the dock is the first step toward constructing a bridge and that the permitting of such a bridge will unleash an avalanche of additional permit applications for the development of the numerous islands in Lake Iamonia.
With respect to Lake Iamonia no evidence was presented at the final hearing of a significant number of dock permit applications or of any bridge applications before the Department of Environmental Regulation. If enough structures were permitted by the Department to begin serious consideration of cumulative impact on the lake, the precedent of having permitted the first few docks would not be binding upon the Department because the facts on which the first permits were based would be different from those facts before the Department on consideration of the later applications.
Navigation
The slough between the mainland and Live Oak island is navigable by only small craft such as johnboats and canoes. There is a "channel" which runs north-south through the slough at a depth of several feet. Even though the proposed dock projects halfway to the mainland it will not block the channel.
DNR Consent
The submerged land over which the proposed dock will be constructed belongs to the State of Florida. Mr. Boynton has requested permission from the Department of Natural Resources (DNR) to use the land. Permission for the construction of a dock longer than 100 feet long was conditionally granted by DNR in a letter dated June 4, 1982 which said in part:
We recognize that the lake is very shallow in the proposed dock location and the length was designed to avoid dredging. However, we
can not recommend approval of a 200 foot long dock across this 300 foot wide area of the lake. We would have no objections to a 100 foot long dock. Additionally, should you ob- tain written statements of no objection from the adjacent landowners currently living on Lake Iamonia for a 150 foot long dock, we would then have no objections to a dock of that length.
Our approval of a docking facility does not in any way indicate a favorable Position to- wards your previous bridge easement request which you have withdrawn. The use of state owned lands to construct a bridge would be in
conflict with current rules and policies. Our intent in approving the docking facility is
to allow you to have reasonable ingress and egress to your island.
Consider this the authority sought under Section 253.77, Florida Statutes, to pursue this project upon our receipt of the revised drawings indicating a reduced length of 100 feet or the no objection statements for a re- vised length of 150 feet.
This letter in no way waives the authority and/or jurisdiction of any governmental entity nor does this letter disclaim any title in- terest that the State may have in this project site.
Sincerely,
/s/ Henry Dean Interim Director
Division of State Lands (Emphasis added)
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).
The proposed activity is within the permitting jurisdiction of the Department of Environmental Regulation under Chapters 253 and 403, Florida Statutes (1981). Section 403.087(1), Florida Statutes (1981) provides:
No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modi- fied without an appropriate and current valid permit issued by the department, un- less exempted by department rule. ...
Section 403.087(2), Florida Statutes (1981) further requires the Department to adopt rules for the issuance or denial of permits. In Section 17- 4.07, Florida Administrative Code, the Department has provided:
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 dis- charge, emit, or cause pollution in con- travention of Department standards, rules or regulations....
With respect to water quality Section 17-4.28(3), Florida Administrative Code requires:
The applicant for a dredge and/or fill permit or a federal certification for a dredging and/or filling activity 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 pro- visions of Chapter 17-3, Florida Adminis- trative Code....
On the record here Mr. Boynton has presented reasonable assurances that the proposed dock will not discharge pollutants or cause any violations of the water quality standards for Class III waters of the State of Florida. Chapter 17-3, Florida Administrative Code.
Before a dredge and fill permit may be issued for activities in the navigable waters of Florida, the requirements of Section 17-4.29, Florida Administrative Code must be met. That section provides specifically at paragraph (6) that:
The Department shall not issue a permit un- less the biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:
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
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 navi- gable waters, so as to be contrary to the public interest.
The determination of whether or not a project is "contrary to the public interest" is reached after a balancing of the harm the project may cause to the state's natural resources against the benefit it may bring to the citizens of the state at large. Shablowski v. Department of Environmental Regulation, 370 So.2d 50 (Fla. 1st DCA 1979); Albrecht v. Department of Environmental Regulation, 353 So.2d 883 (Fla. 1st DCA 1977).
While the proposed dock brings no specific benefit to the people of the State of Florida, the anticipated impact from its construction on the
natural resources of the state is insignificant. Mr. Boynton has adequately established that the construction and use of his dock will not interfere with the conservation of fish, marine and wildlife to such an extent as to be contrary to the public interest. Furthermore, the dock will not interfere with the navigation of Lake Iamonia.
Section 253.77, Florida Statutes (1981) referred to in DNR's letter requires:
(1) No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence of authority involving the
use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter
253, until the applicant for such permit, license, or other evidence of permission shall have re- ceived from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision
thereof having regulatory power to permit such use.
During the final hearing Petitioners attempted to collaterally attack DNR's consent to Mr. Boynton's use of state submerged sovereignty land. This proceeding is not the proper forum for such an attack. The Department of Environmental Regulation, to whom this Order is transmitted, may not review agency action taken by another agency of the Executive Branch. If Petitioners are adversely affected by DNR's action, they may challenge that action only through a proceeding filed with DNR or in a judicial forum.
It is clear from the terms of Section 253.77, Florida Statutes (1981) that consent to use from DNR is a condition precedent to the granting of a dredge and fill permit here. Because DNR's consent is conditioned on obtaining statements of no objection from "adjacent landowners currently living on Lake Iamonia" and there is disagreement among the parties about whether the condition has been met, the issuance of the permit here should be contingent upon confirmation from DNR that final consent has been given for a 150 foot dock.
Petitioner's concern about the proposed dock's becoming the first step in the development of the islands in Lake Iamonia is premature. Any further construction by Mr. Boynton in waters of the lake will be subject to the same kind of scrutiny as provided here. If it appears that the future activities of Mr. Boynton or of anyone else threaten the natural resources of the lake, the Department of Environmental Regulation is not bound to approve any of those activities solely, or in part, because it grants the present permit application.
That the Department of Environmental Regulation enter a Final Order issuing a permit to Ben C. Boynton for the construction of a 150 foot by 10 foot dock and subaqueous cable crossing in Lake Iamonia as requested in his permit application, subject however, to obtaining a letter from the Department of Natural Resources indicating that Mr. Boynton has satisfied the terms outlined in the letter dated June 4, 1982 granting consent to use state owned submerged lands.
DONE and RECOMMENDED this 15th day of December, 1982, in Tallahassee, Florida.
MICHAEL P. DODSON
Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 1982.
1/ Petitioners Langford, Ervin, Davenport, Vereen, Camp, Whelchel, Carlton and Richardson did not make an appearance at these proceedings and evidence was not Presented to show how these proceedings affected their substantial interests.
Ben H. Wilkinson, Esquire Post Office Box 3985 Tallahassee, Florida 32303
Richard E. Benton, Esquire
E. Gary Early, Esquire Assistant General Counsel Department of Environmental
Mary F. Smallwood, Esquire Victoria Tschinkel, Secretary General Counsel Department of Environmental Department of Environmental Regulation
