STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
M. HOLLINGSWORTH, )
)
Petitioner, )
)
vs. ) CASE NO. 82-2932
) 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 May 19, 1983, in Fort Walton Beach, Florida.
APPEARANCES
For Petitioner: James G. Etheredge, Esquire
226 Troy Street, Northeast
Fort Walton Beach, Florida 32548
For Respondent: E. Gary Early, Esquire
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
This case was initiated on an application filed by Dr. G. M. Hollingsworth for a dredge and fill permit which would authorize the dredging of approximately 2,000 cubic yards of material in Santa Rosa Sound so as to construct a channel connecting an existing canal with the waters of Santa Rosa Sound, coupled with construction of 400 linear feet of vertical bulkhead on each side of the mouth of an existing canal where it would join the waters of Santa Rosa Sound, backfilling the bulkhead with dredge spoil. The project would be located on and waterward of property owned by the permit applicant on Santa Rosa Sound in the vicinity of Fort Walton Beach, more specifically, Section 23, Township 2 South, Range 26 West Santa Rosa Sound.
Pursuant to its authority under Sections 253.123 and 403.087, Florida Statutes, as well as Chapters 17-3 and 17-4, Florida Administrative Code, specifically, the "dredge and fill rules" contained in Sections 17-4.28(4)a and (8)a, and 17-4.29, Florida Administrative Code, (as well as the water quality criteria contained in Rules 17-3.061(3)(b), (i), (s) and Rule 17-3.111(3), (4), (11), (17) and (25), the Department issued its Notice of Intent to Deny the permit on October 4, 1982.
The Notice of Intent to Deny asserts the Department's position that consent for use of State owned land from the Board of Trustees of the Internal
Improvement Trust Fund and Department of Natural Resources was not obtained, that various plans submitted for the channel and bulkheading and backfilling were not presented in adequate detail, that the proposed dredging is located in Class II Waters of the State, approved for shellfish harvesting, and that therefore the Department may not issue a permit pursuant to Section 17- 4.28(8)(a), Florida Administrative Code. Further, the existing canal has been ordered plugged by the Circuit Court for Santa Rosa County as enforcement of an earlier Final Order of the Department determining that opening the canal to waters of the state, Santa Rosa Sound, was expected to result in violations of the above-cited water quality standards.
Upon the Notice of Intent to Deny being issued by the Department, the permit applicant filed its petition for a 120.57(1) formal proceeding, availing itself of the opportunity to present testimony and evidence in support of its application, Both the Petitioner and the Respondent presented three Witnesses each. The Petitioner presented nine exhibits, all of which were received into evidence. The Respondent presented Exhibits A and B, which were received into evidence.
At the conclusion of the proceeding, the parties requested a transcript of the proceeding and availed themselves of the right to file proposed findings of fact and conclusions of law. After an inordinate period of time since the hearing, no transcript has yet been filed with the undersigned, after inquiry, although the Department filed a proposed recommended order on September 27, 1983. Accordingly, the undersigned concludes the Petitioner has waived submission of a proposed recommended order, whereupon this recommended order is now entered.
FINDINGS OF FACT
The permit applicant, Petitioner herein, Gerald M. Hollingsworth, owns approximately 15 acres of land, as described above, bordering Santa Rosa Sound in the vicinity of Mary Esther and Navarre, Florida. The property is adjoined by land owned by Glois A. Brand and Ralph Buckley, neither of whom have objected to the proposed project. Dr. Hollingsworth seeks to dredge a 30 foot by 800 foot channel to connect an existing residential canal constructed some years ago on his property to the six foot bottom contour depth of Santa Rosa Sound. This would involve removing approximately 2,000 cubic yards of sandy material through the use of a barge-mounted dragline and the placing of that spoil above the mean high water line behind bulkheading consisting of a filter cloth membrane, timber and pilings. The bulkheading would be for a linear distance of 400 feet, 200 feet of bulkhead on either side of the mouth of the subject canal where it joins Santa Rosa Sound and above mean high water. The bulkheading is designed to both contain dredge spoil to be generated, as well as to stabilize the mouth and sides of the canal at those points where they are subjected to the greatest erosion-causing energy of wind and wave action. The Petitioner desires to construct the proposed project for use for personal recreational boating activities and has conditioned his application to preclude the commercial use of the canal and dredged channel by a marina or other commercial venture.
The existing upland canal was excavated in 1973, but was was never connected to Santa Rosa Sound. The canal does receive tidal flow through a shallow inlet, crossing an approximate 50 foot earthen plug placed in the mouth of the canal, shoreward of the mean low water line. The plug was placed in the mouth of the canal, after a storm washed away the original barrier, by order of the Circuit Court in and for Santa Rosa County. The tidal exchange across the surface of the earthen plug is augmented by the inflow of groundwater through a
spring, which provided approximately 1,000 gallons of freshwater to the canal system per hour.
Dr. Edwin W. Cake, who holds a Ph.D in biological oceanography, was accepted as an expert witness in the areas of biological oceanography, marine (estuarine) biology and oyster biology. His testimony concerned a survey and study of the biological and ecological characteristics of the canal/lagoon and adjacent sound and expected effects the proposed project will have on water quality in the area of the proposed dredging, as well as its effects regarding conservation of fish, marine wildlife, or other natural resources. His testimony was based upon the results in his survey and analysis, in evidence as Petitioner's Exhibit 4. The study and analysis by Dr. Cake was unrefuted and is found to bee the most accurate depiction of the biological and ecological effects of installation of the channel and removal of the canal plug. Thus, his opinions are accepted as factually correct. It was established that the subject canal was of an average depth of 10 feet, 1,000 feet long and approximately 70 feet wide, after it was dredged in 1975. It was not maintained with sodding, bulkheading or other erosion control and was allowed to vegetate naturally along its banks and to erode and fill in to its present average 6 foot depth. Upland plants mingle with wetland vegetation along the canal banks. The southernmost (seaward) interior of the canal has a marginal band of salt meadow hay now growing with its tidal zone. The northern half of the canal is typified by sparse clumps of salt meadow hay, needle rush, marsh pennywort, arrowhead, switch grass and marsh fleabane, mixed with terrestrial flora such as broom sedge, goldenrod, sea myrtle, marsh elder, ragweed, milky sap shrub, St. Johns wort, forage grass and rabbit tobacco. This marsh vegetation has become established in the canal since it was dredged. The floral community within the canal is a major contributor to the canal's now natural ecosystem and is a minor contributor to the Sound's detrital food chain. The canal in its marginal floral fringes, provides some nursery habitat for local finfish and shellfish.
The canal is flooded on a daily basis by saline water from the Sound, driven by tidal energy and prevailing winds. At times of falling or low tide, the canal is a pristine freshwater, to slightly brackish water, habitat that supports varied marine life, such as blue crabs, crawfish and various anthropods. Finfish common in the canal system at low tide include mosquito minnows, sailfin mollies, salt marsh top minnows and sheephead minnows. Upon the rising tide, fish from the saline water of the Sound invade the canal for a brief period and return to the Sound with the falling tide. These transient species include striped mullet, tidewater silver sides and spots. Grass shrimp, as well as blue crabs, enter the canal during times of rising or high tide. The Sound immediately south of the canal (beyond the present plug and freshwater stream outlet) has a paucity of both finfish and benthic invertebrates.
Sediment samples reveal that the bottom is dominated by amphipods and razor clams, with blue crabs being observed in shallow, near-shore areas. Mullet and silver sides are the dominant finfish in the Sound outside the canal and in the area of the proposed channel.
Santa Rosa Sound is an elongated, relatively shallow mixing basin approximately a mile wide in the project area. It is formed by the mainland coast to the north and the barrier of Santa Rosa Island to the south. The, average depth is approximately 10 feet at mean high water and the proposed connecting channel must span approximately 800 feet waterward into the Sound in order to reach the 6 foot bottom contour desired by the permit applicant. The bottom substrate of Santa Rosa Sound at the site is composed primarily of medium to coarse-grained quartz sand. These sands are covered by a thin detrital layer. There is a prominent layer of peat within the canal and along the Sound
shoreline at mean low water just east of the canal. This represents the remnants of a marsh system which dominated the area several hundred to several thousand years ago. That layer of peat is present in a seaward direction in the bottom substrate at distances of 21 feet to 45 feet waterward of the mean high water line at depths of one and a half to two feet beneath the surface of the bottom. Core samples at 150 feet waterward of mean high water showed no peat layer. Core sampling taken from the canal bottom itself showed a very high organic content, but the almost total lack of odor showed that there is a very low biochemical oxygen demand (BOD). Core samples taken from the shoreline out to 800 feet in the path of the proposed channel show very low organic content, less than one-half of one percent. This is a favorable indication for dredging because if organic matter is agitated and suspended by dredging, it tends to reduce the dissolved oxygen (DO) in the water column and its fine grained nature tends to caused a longer lasting turbidity, since fine grained sediments characteristic of organic matter are slow to settle out of the water column as opposed to coarser grained sand material. Thus, the very low organic content in the bottom substrate in the channel area will reduce to a minimum any adverse effect on dissolved oxygen levels and BOD in the Sound water in the area of the project, as well as turbidity caused by the dredging.
Because of the great supply of freshwater (18,000 gallons per hour) emanating from the spring in the water bearing strata discharging into the canal at its north end, salinities within the canal are generally lower than in the surrounding Santa Rosa Sound waters. Salinities within the canal at high tide range from zero parts per thousand to 8.3 parts per thousand. The canal is essentially fresh at low tide. Water within the canal is subject to periodic stratification because of reduced circulation patterns and flushing rates related to the existence of the present plug, with a limited inlet and outlet for canal waters to exchange with those of the Sound. Saline water of greater density than freshwater tends to concentrate on the bottom of the canal and the dissolved oxygen content of the canal water showed significantly less DO content near the bottom. At high tide DO ranged from 8.4 to 8.6 parts per million at the surface and from 3.2 to 7.9 parts per million near the bottom where the more saline waters collect. At low tide DO ranged from 7.8 to 8.3 parts per million at the surface and from 3.8 to 8.1 PPM near the bottom, Dissolved oxygen concentrations below 4 parts per million cannot support finfish and benthic invertebrates become stressed at slightly lower concentrations. When dissolved oxygen is totally depleted, a septic condition develops and eutrophication accelerates. The bottom water of the canal thus has a potential for stagnation in the future as long as it is separated from the waters of Santa Rosa Sound in the existing manner. The canal water is relatively clear, however, when compared to that of the Sound and, because of the inflow from a substantial amount of freshwater and the tidal exchange, the canal is not now stagnant and is not a typical "dead end canal."
There is presently adequate flushing and dissolved oxygen levels are within appropriate parameters, with the organic buildup in the bottom of the canal not being characterized by substantial anaerobic activity. The large amount of groundwater flowing into the head of the lagoon/canal is significant because such groundwater typically is very low in dissolved oxygen, however, the dissolved oxygen levels in the lagoon are for the most part characteristic of high water quality. Part of this condition is attributable to the enhanced hydraulic flushing caused by the resulting large volumes of water flowing through the lagoon, coupled with the modest tidal exchange possible through the small inlet and outlet flow over the present plug. In the future, however, unless the plug is removed, it is likely that the lagoon will be more and more characterized by low DO readings and that stagnant or eutrophic conditions will
occur more and more frequently until they finally predominate in the canal water, with resultant destruction of the presently viable estuarine lagoon biological community, and its substantial value as a nursery area for various forms of marine life.
Dr. Stephen Shabica holds a doctorate degree in oceanography. Since receiving his degree in 1976, his principal academic and work experience has been in the field of near-shore oceanography, including the physical, hydrological characteristics and dynamics of moving water and sand. He was accepted without objection as an export witness in these areas. The Department of Environmental Regulation's hydrographic engineer and specialist in hydrodynamics, Pamela Sperling was likewise accepted as an expert witness in her field without objection.
Dr. Shabica performed a hydrographic survey and analysis, of wave patterns and sizes at the site, the movement of water and sand at the site, the velocity and direction of prevailing near-shore currents, and historical shoreline changes. He made a survey and analysis of the bottom substrate within the lagoon, including core samples. Ms. Sperling agreed with the methods and practices by which Dr. Shabica arrived at his opinion, including his use of the Army Corps of Engineers Coastal Protection Manual, but differed with his opinion in that she felt the channel would fill with sand deposited by waves and the near shore current, although she acknowledged that would depend on the depth of the channel. She performed no hydrographic survey, tests or studies by the same or other methods in arriving at her opinion in this regard. The calculations and analysis by Dr. Shabica are found to be a more accurate depiction of the effects of installation of the channel and opening of the canal and his opinion is accepted as factually correct.
Dr. Shabica thus demonstrated that tides in Santa Rosa Sound are diurnal, with a mean tidal range of 1.4 feet and mean tide level of seven-tenths of a foot in the Navarre area. Tidal predictions are drastically affected by winds, however, the net water movement in Santa Rosa Sound is a westward, slow- moving, along shore current. He found this movement of water to be responsible for a net transport of sand-size particles in a westward direction, referred to as "westward littoral drift." The segment of shoreline bordering the canal property has experienced significant erosion of sand in the past several years, caused by wind generated waves and related currents, tidal currents and the littoral drift process. Because the channel to be dredged will be relatively shallow, with sloped sides, the channel is not likely to act as a catch basin or sump for sediments and thus fill-up because of it. Rather, because of the wave action, as well as the general westward littoral drift caused by the current, sand and sediment would tend to be carried across and past the channel. This lack of a tendency for sediments to settle out in the proposed channel would be enhanced by the large volume of freshwater flowing as a current out of the mouth of the lagoon/canal. There would be be some tendency to the formation of a sand "sill" at the entrance to the canal where the current from the canal is slowed by the relatively stationary or westward moving water in the Sound, such that sand or sediment moving out of the canal would decrease and settle out. In that connection, it was demonstrated by the permit applicant, through Dr. Cake's testimony, that maintenance dredging in approximate five-year intervals would remove this sill and thus maintain adequate flushing in the lagoon system (as well as boat access) and that maintenance dredging at those long intervals will not cause significant permanent damage to benthic flora and fauna communities.
The dredging of the connecting channel will result in the removal of a large amount of sand at the south end of the existing canal. During the
dredging operation itself, some turbidity would be created in the immediate vicinity of the channel site. That increased turbidity will be slight and of short duration, especially because of the type of dredging equipment used, a dragline on a barge, and because the bottom substrate consists of fairly coarse quartz sand, with a very low percentage of organic material, such that the bottom material will not remain suspended in the water column for a long period of time. It is true that the dredging will destroy most benthic organisms in the immediate locale (24,000 square feet) of the dredging, that is, where the dragline bucket physically disrupts the bottom sediments. Finfish populations and benthic epifauna will return and recolonize the area upon cessation of dredging activities. Infaunal invertebrates will recolonize the area at the next spawning interval.
The dredging will not result in any significant deterioration of water quality in the project area. Some water quality parameters may be affected in the immediate area of the dredging, but these effects will be short-term and transitory in nature. For instance, the biochemical oxygen demand (BOD) will not be affected for more than one tidal cycle. Most of the sediments in the area of the proposed channel are well oxygenated and any material requiring oxidizing, such as the layer of peat lying under the sand substrate out to approximately 45 feet waterward of the shoreline, will be physically removed by the dredging activity and placed on the adjoining upland, behind a bulkhead and filter membrane which will control runoff. Oil and grease residues were not shown to pose a substantial pollutant effect of the dredging activity, provided proper equipment, maintenance and supervision is used and practiced (as the applicant has assured). The transitory turbidity caused by the proposed dredging and de-watering of the dredged up spoil will be largely imperceptible after one tidal cycle, or one day, following termination of the dredging activities associated with the project. The predominantly coarse sands in the area will settle out of the water column almost immediately after being displaced vertically or horizontally during the dredging operation.
The dissolved oxygen will not be adversely affected by the dredging operation. The sediments in the area to be dredged are very low in BOD and thus their agitation and suspension during dredging and removal will have little effect on present levels of DO in the water at the site. This is especially true since most of the dredged sediments will be deposited on the upland in a harmless fashion.
The bacteriological quality of the waters in Santa Rosa Sound itself will not be affected because of the nature of this project, that is the removal of bottom sediments and placing there on an upland disposal area, which does not involve tide addition to the Sound waters of any upland originating pollutant, such as sewage effluent.
The nutrient content of the waters in the area of the dredging site and within the lagoon will not adversely affect natural populations of flora and fauna in the immediate vicinity. The opening of the canal to the waters of the Sound will, in fact, increase overall biological productivity of the area and will serve to alleviate any nutrient problems that may occur within the canal by resulting tidal flushing and freshwater outflow. Santa Rosa Sound is not characterized by large salt marsh ecosystems and therefore the presence of the salt marsh system of the Hollingsworth lagoon, albeit of small size, will serve to increase the general biological productivity of the immediate vicinity of the dredge site and serve some pollutant uptake and filtration function.
The biological integrity of the channel bottom and sides will decrease insignificantly for a short period of time following dredging. No submerged grass beds will be disturbed since none occur in the channel area. Recolonization by motile benthos and larva of infaunal invertebrates will return the area to its previous state of productivity within less than a year, especially if dredging is in the spring or summer. But the biological integrity of the project area will be enhanced in the long run because of the productive fresh and brackish marsh system that exists inside the lagoon which will be opened to, and exchanged with, the waters of the Sound.
The proposed channel dredging will be located in Class II Waters of the State designated for shellfish production and harvesting. A complete sanitary survey of the Santa Rosa Sound has not been conducted since September, 1970, however. That survey was the basic data upon which classification of Santa Rosa Sound as Class II shellfish production and harvesting waters was based. In spite of that classification of the adjacent Sound waters, there are no harvestable populations of oysters, clams or scallops in the immediate vicinity.
In addition to proposing the use of a dragline on a barge, which will have the least destructive effect during the process of available methods, the applicant, as found above, will also construct 200 feet of bulkhead in an L- shape, encompassing the shoreline east and west of the canal on each seaward corner, as well as some distance into the canal, behind which all the dredged spoil will be retained. Thus, turbidity caused by erosion of the spoil material from the upland area into the subject waters will be at a minimum.
Additionally, canal bank soils will be sodded with grass or turf to stabilize the bank and prevent erosion and the resultant deposition of soil, nutrients, fertilizers, pesticides and other upland pollutants into the waters of the canal. Marsh grass mixed with sod should be placed along the tidal zone of the canal to stabilize sand which would otherwise slump and flow into the canal, causing additional turbidity. The existing canal bank should be allowed to revegetate after dredging and assuming natural balance. The areas of preexisting erosion along the canal banks should be contoured with horizontal pilings, such that the reduced slope caused by the resultant stairway effect would be more erosion resistant. In addition to stabilizing the bank soils, the planting of vegetation on and along the canal shoreline would have the effect of tertiarily treating land runoff and effluent, together with making contributions to the food chain, as well as providing cover for benthic invertebrates, finfish and birds.
The use of the bulkheading to retain the dredge spoil on the upland and stabilize the Sound/canal junction, the planting of marsh vegetation along the canal shore, as well as the sodding and contouring of the banks, the shallowness of the channel to be dredged, coupled with the substantial flushing and circulation made possible by the large freshwater outflow of the canal system, will prevent violation of the below-cited water quality criteria. These safeguards, coupled with the above-described characteristics of the project site and manner of the dredging, will adequately protect the project area and areas in the vicinity of the project from significant damage with regard to any shellfish harvesting potential of the Class II waters involved.
In summary, the proposed dredging activity and the resultant channel will not interfere with the natural flow of adjacent navigable waterways in a manned contrary to the public interest. It will not present a navigational hazard. The channel will improve onshore/offshore water quality to some extent because the flushing and circulation effect of the approximate 18,000 gallon per
hour freshwater outflow added to the normal falling tide outflow. The project in its entirety will not violate water quality standards of the Department, nor will it be contrary to the public interest related to conservation of and beneficial use of fish, marine wildlife or other natural resources.
Finally, it should be noted that the permit applicant is presently under the mandate of a court order of the Circuit Court for Santa Rosa County, requiring that a plug be constructed, isolating the canal system from the waters of the Sound, to be constructed according to plans submitted by DER to the court and incorporated in that order. That order remains in effect at this time and any grant of the subject permit should be conditioned upon an appropriate action by the permit applicant to vacate that order.
In a like vein, the Department of Natural Resources (DNR) has not issued the appropriate permit for use of the state water bottom involved, therefore a grant of the permit at issue must depend on issuance of the DNR permit. Section 3.77, Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes (1981).
There is no dispute that this project involves dredging below the mean high water line. Since dredging would be done in a submerged tidal area, a permit under Chapter 253 is required. Likewise, the proposed project would occur in waters of the state over which the state has jurisdiction with regard to Chapters 253 and 403, Florida Statutes in Chapters 17-3 and 17-4, Florida Administrative Code.
Section 253.123, Florida Statutes (1981), provides in pertinent part as follows:
The removal of sand rock, or earth from the navigable waters of the state is
defined in s. 253.12 and the submerged bottoms thereof by dredging, pumping, digging, or any other means shall not be permitted except
in the following instances:
For the construction, improvement or maintenance of navigation channels and drain- age and water-control facilities; . . .
Pursuant to Chapter 253.123(2)(d) such a project may only be authorized when it is shown that:
uch removal will not interfere with the conservation of fish, marine wildlife or other natural resources, to such an extent as
to be contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, including but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life,
and established marine soils suitable for
producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an
extent as to be contrary to the public interest.
Although there is no dispute that the channel to be dredged by the permit applicant would be within navigable waters of the state as defined in Section 253.12, Florida Statutes (1981) the filling to be deposited behind the filter- cloth lined piling and timber bulkhead along and on either side of the canal entrance and adjacent shoreline, is non-jurisdictional since the undisputed evidence reveals it lies on or above the ordinary or mean high water line. The Department does not dispute the proposed filling and bulkheading above mean high water. Section 253.1221, Florida Statutes (1981).
Rule 1-4.07, Florida Administrative Code, requires an applicant, such as Petitioner Hollingsworth, to affirmatively provide reasonable assurances based upon plans, test results, and other information that the construction, expansion, modification operation or activity envisioned will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations. The quality of proof necessary to give these assurances is that set forth in Rule 17-1.59, Florida Administrative Code, in which it is provided that the burden of proof related to reasonable assurances and other items of proof must be by a preponderance of the evidence before the requested permit may be granted.
The standards for granting or denying such a permit for purposes of Chapter 253 are contained in Rule 17-4.29(1), Florida Administrative Code, which provides as follows:
he following activities at or below the line of mean high water or ordinary high water in, on or over the navigable waters of the state require a department permit:
Dredging and/or digging by pumping sand, rock, silt, or earth of any kind by any means including dredging to connect artificial water- ways or waterbodies to navigable waters; and dredging associated with construction and/or installation activities described in this rule.
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 Department, must be prepared by or under the supervision
of the Department which contains findings and recommendations with reference to the effects of the proposed activity upon fish, wildlife or other natural resources. A less extensive biological 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 depart- ment may require the applicant to conduct and submit a hydrographic survey.
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:
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 will not result in the destruction of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable
as nursery or feeding grounds for marine life, and established marine soils suitable for pro- ducing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interest and
that the proposed project will not present a navigational hazard, or a serious impediment
to navigational or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest.
For purposes of Subsections (5) and (6) of Rule 17-4.29, cited above, it is initially noted that there has been no evidence presented that this dredging and filling application involves more than 2,000 cubic yards of material, accordingly, it is concluded that it is a "short-form application" project since it involves less than 10,000 cubic yards of material to be placed in or removed from navigable waters of the state. Rule 17-4.29(3), Florida Administrative Code. Thus, the Department was not required to perform, or have prepared under its supervision, an extensive biological and ecological survey and study, nor a hydrographic survey as provided for in the above subsections of that rule. Indeed, an expert witness for the Department admitted in his testimony that a hydrographic survey was not necessary. Florida Bipartisan Civic Affairs Group vs. Department of Environmental Regulation, DOAH Case No.
79-100 (Final Order entered December 11, 1979).
In order to prove entitlement to a permit pursuant to Section 253.123, Florida Statutes (1982), and Rule 17-4.29, Florida Administrative Code, the Petitioner must establish that the project will not interfere with conservation of fish, marine wildlife and other natural resources, not alter, impede or interfere with the flow of navigable waters or navigation in a manner contrary to the public interest, as those considerations are more particularly described in that rule. The concept "contrary to the public interest" as stated in Shablowski v. Department of Environmental Regulation, 370 So.2d 50 (Fla. 1st DCA 1979), is a factual question and that question has been determined in favor of the Petitioner. In this regard, the preponderance of evidence and the above Findings of Fact show, among other factors, that the canal/lagoon is a relatively pristine functioning, estuarine biological community, characterized by water exceeding in quality, the Class III standards are generally higher in quality in terms of dissolved oxygen and transparency than the adjacent waters of Santa Rosa Sound. Since Santa Rosa Sound is characterized by a paucity of marshland, marine wildlife nursery areas, the opening of the marsh nursery area inside the canal to the Sound would result in the addition of a valuable, biologically productive area to the Sound system. Since the Sound, as well as
the canal, would then benefit by receiving a large influx of high quality water through tidal exchange, flushing and positive flow of freshwater from the canal after removal of the plug, there would be a resultant beneficial effect on marine wildlife, fish and shellfish populations in the canal and in the adjacent Sound, such that the public's beneficial use of or "interest" in such waters in the future might, to a small degree, be enhanced. Further, the installation of the channel and removal of the canal plug is clearly demonstrated by the above Findings to be in the public interest since a new navigational channel would be created for public use to some extent, rather than any impedance of flow in navigable waters nor any interference with navigation itself.
In view of these facts and others set forth above, it is concluded that the Petitioner has affirmatively established that the opening of the canal/lagoon plug and installation of the navigational channel will not result in the destruction of oyster beds, clam beds, or marine productivity, including destruction of marine habitats, grass flats suitable as nursery or feeding grounds for marine life, marine soils which could be used for producing plant growth useful for nursery or feeding grounds for marine life. It will not interfere with natural shoreline processes nor create a navigational hazard nor serious impediment to navigation or natural flow of navigable waters so as to be contrary to the public interest for purposes of Subsection 253.123(2)(d) and the above rule.
Concerning the water quality standards which must be met for a grant of the permit. Subsection 403.087(1), Florida Statutes, provides in part:
(1) 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 currently valid permit issued
by the department, unless exempted by depart- ment rule.
The standards for granting or denial of an application for purposes of Chapter 403 are found in Rule 17-4.28(3), Florida Administrative Code, which provides:
(3) The applicant for a dredge and/or 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.
The pertinent water quality criteria to be considered concerning this applicant are contained in Rule 17-3.061, Florida Administrative Code, the general criteria; and Rule 17-3.111, the criteria or Class II waters. Additionally, Rule 17-4.28(8)(a), provides, as pertinent hereto, as follows:
[I]t shall be the department's policy
to deny applications for permits or certifi- cations for dredging or filling activities in Class II waters, except where the applicant has submitted a plan of procedure which will
adequately protect the project area and areas in the vicinity of the project from significant damage. . . (emphasis supplied)
The specific water quality criteria at issue in this proceeding: biochemical oxygen demand (BOD), oil and grease residues, turbidity, bacteriological quality, biological integrity, dissolved oxygen and nutrient load, as shown by the above Findings of Fact, will not be violated by the proposed dredging (nor the deposition of the fill above mean high water mark behind the timber bulkhead and filter membrane material). Any ill effects from turbidity or slightly increased BOD during dredging, caused by a release of less oxygenated sediments (peat) will be transitory and cause no degradation sufficient to violate the standards of the above rules. Indeed biological integrity of the channel, as well as the surrounding area of the Sound, and biological productivity of the immediate area of the Sound around the project, will be enhanced in the future by the opening of the canal.
With regard to Subsection (8)(a) of Rule 17-4.28 concerning the Department's policy of denying applications for dredging or filling in Class II shellfish harvesting or propagation waters, the permit applicant has provided affirmative reasonable assurances that plans and procedures will be implemented such that the areas in the vicinity of the project will be protected from significant damage. Specifically, it was shown that the type of dredging method, a dragline on a barge, causes less disruption of the surrounding bottom, that the fill will be deposited on uplands and protected from runoff back into Class II waters, and that the canal banks will be vegetated and contoured to reduce deleterious runoff and erosion. Further, the large amounts of high quality freshwater that will flow into the Sound, as a result of the opening of the canal/lagoon system, will tend to enhance water quality in the area of the project, especially as it relates to oyster propagation. Therefore, this provision will be satisfied, as will the specific criteria in Rule 17-3.111 pertaining to Class II shellfish propagating and/or harvesting waters.
In summary, the Petitioner's proof is sufficient to establish affirmative reasonable assurances that the proposed dredging project, in its long-term and short-term effects, will not result in violations of the water quality standards enunciated in Chapter 403, Florida Statutes, and Chapter 17-3, Florida Administrative Code. The applicant used current, acceptable scientific methods to produce plans, test results and other information which satisfactorily addressed the various criteria and standards. Petitioner has made a sufficient showing that it is entitled to be granted the necessary permit for the proposed dredging project, pursuant to the above authority, that proof is not refuted and the permit should be granted, subject to the following conditions:
Provided that all dredge spoil is placed upland of mean high water and stabilized with a polyvinyl filter cloth-lined timber and piling bulkhead.
Provided that planting of appropriate natural vegetation on and along the canal banks and the above-described "terraced contouring"
of the canal banks is accomplished.
Provided that, pursuant to Section 253.77, Florida Statutes, a permit for use of state owned water bottoms at the site is obtained from the Department of Natural Resources.
Provided the Petitioner has vacated or other- wise obtains relief from that order of the Circuit Court for Santa Rosa County requiring that the canal be plugged.
Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence of record, it is, therefore
RECOMMENDED:
That a Final Order be entered which grants a permit authorizing the dredging of an 800 foot channel to the 6 foot water denth contour in Santa Rosa Sound, connecting within that 800 foot linear distance the subject canal/lagoon on the permit applicant's upland property with the waters of Santa Rosa Sound, with the channel to be of no greater width than 30 feet and with a depth not to exceed 6 feet; subject to the following conditions:
Provided that all dredge spoil is placed upland of mean high water and stabilized with a polyvinyl filter cloth-lined timber and piling bulkhead.
Provided that planting of appropriate natural vegetation on and along the canal banks and the above-described "terraced contouring"
of the canal banks is accomplished.
Provided that, pursuant to Section 253.77, Florida Statutes, a permit for use of state owned water bottoms at the site is obtained from the Department of Natural Resources.
Provided the Petitioner has vacated or other- wise obtains relief from that order of the Circuit Court for Santa Rosa County requiring that the canal be plugged.
DONE and ENTERED this 24th day of October, 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 24th day of October, 1983.
COPIES FURNISHED:
James G. Etheredge, Esquire
226 Troy Street, N.E.
Fort Walton Beach, Florida 32548
E. Gary Early, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Victoria Tschinkel, Secretary Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
G. M. HOLLINGSWORTH, Petitioner,
vs. CASE NO. 82-2932
DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent.
/
FINAL ORDER
On October 24, 1983, the Division of Administrative Hearings' hearing officer in the above-styled case submitted his Recommended Order to me. A copy of that order is attached as Exhibit A. Pursuant to Section 120.57(1)(b), Florida Statutes, and Florida Administrative Code Rule 17-1.68(1), all parties to the proceeding were allowed ten (10) days in which to file exceptions to the Recommended Order. On November 3, 1983, counsel for Respondent Department of Environmental Regulation (the "Department") filed its Motion for Extension of Time to File Exceptions in accordance with Florida Administrative Code Rules 17-
1.29 and 17-1.68, citing the need to obtain a transcript of the proceedings. No objection to that motion was made by Petitioner Hollingsworth ("Hollingsworth"). After obtaining a copy of the transcript, the Department submitted its exceptions on November 17, 1983. The Department's Motion for Extension of Time is granted and Respondent's Exceptions to Recommended Order are accepted.
HISTORY
This particular proceeding before the Division of Administrative Hearings (DOAH) was precipitated by the Department's issuance of a letter of intent to
deny Hollingsworth's application to dredge a channel in Santa Rosa Sound connecting an existing dead end canal to the waters of the sound and to bulkhead the mouth of the channel. The Department's intent to deny was based on several factors, including lack of consent from the Board of Trustees of the Internal Improvement Trust Fund (the "Trustees") to use state lands; anticipated water quality violations; the fact that the dredging would take place in an area approved for shellfish harvesting; and the existence of a previous enforcement action requiring that the entrance to the existing canal be plugged.
Hollingsworth filed a petition for a formal administrative hearing on the Department's intent to deny which was forwarded to DOAH. The Department filed a Motion to Strike all parts of the petition dealing with the proposal to connect the canal to Santa Rosa Sound and to bulkhead the mouth of the canal on the grounds of res judicata. Attached to that motion are copies of orders in a previous administrative case involving the same project.
Those orders were the culmination of an administrative enforcement action taken by the Department against Hollingsworth to require that same canal which Hollingsworth now seeks to connect to waters of the state to be plugged to prevent any such connection. A formal administrative hearing was held before DOAH. On May 15, 1978, the hearing officer entered a Recommended Order finding that the canal was a source of water pollution that would cause violations of water quality standards. The Department's final order in that cause adopted the hearing officer's recommended order and required Hollingsworth to construct a permanent plug to prevent waters from the canal entering Santa Rosa Sound. That order was appealed to the First District Court of Appeal which dismissed the case.
Subsequently, when Hollingsworth did not comply with the terms of the final order, the Department filed a petition in circuit court in Santa Rosa County pursuant to Section 120.69, Florida Statutes, seeking enforcement of the final order. The circuit court judge entered a final judgment specifying the manner in which the plug should be constructed. That order required construction of a seawall or bulkhead immediately seaward of the plug. The court specifically noted that it was without authority to relitigate the facts determined in the administrative proceeding.
Hollingsworth has now applied for a permit to remove the plug and connect the canal to the Sound.
RULINGS ON EXCEPTIONS
The exceptions filed by the Department raise three distinct issues. First, the Department takes exception to numerous findings of fact and conclusions of law relating to the request to connect the canal to Santa Rosa Sound and bulkhead the entrance of the canal and the water quality impacts of that activity on the grounds of res judicata. The Department points out that those issues were addressed and decided in the previous enforcement proceeding.
Although no written order was issued, the hearing officer did rule orally on the Department's Motion to Strike. (Transcript pp. 11, 29-31, 107-119) . On several occasions, the hearing officer specifically recognized the res judicata effect of the previous proceedings. The Recommended Order, however, completely ignores the findings of fact contained in the earlier orders. The hearing officer in this cause recommends issuance of a permit to Hollingsworth subject to the order of the circuit court being vacated.
I must accept the Department's exceptions on this point for several reasons.
It is settled law that res judicata does apply in administrative proceedings. Metropolitan Dade County Board of County Commissioners v. Rockmatt Corp., 231 So.2d 41 (Fla. 3d DCA 1970); Doheny v. Grove Isle, Ltd., 8 FLW 2421 (Fla. 1st DCA, Order issued October 4, 1983). In this particular case, all of the elements of res judicata are present. The parties are identical; the subject matter of the proceedings is the same; the issues have been finally adjudicated.
The hearing officer in the previous proceeding found that the existing canal was a source of pollution and should not be connected to Santa Rosa Sound. Those findings are res judicata and the hearing officer may not make contrary findings in this proceeding.
Moreover, it was inappropriate for the hearing officer to conclude that a permit should be issued subject to the vacation of the circuit court order. As the circuit court judge in that case clearly recognized, he had no authority to relitigate any issues decided in the administrative enforcement proceeding.
Section 120.69, Florida Statutes, provides:
(3) After the Court has rendered judgment
on a petition for enforcement, no other petition shall be filed or adjudicated against the same agency action, on the basis of the same trans- action or occurrence, unless expressly authorized on remand. The doctrines of res judicata and collateral estoppel shall apply, and the court shall make such orders as are necessary to avoid multiplicity of actions.
Only four defenses are available to the defendant in an action under Section 120.69, invalidity of the statute, inapplicability of the administrative proceeding, compliance, or inappropriateness of the remedy. None of those defenses was asserted and substantiated by Hollingsworth in the previous circuit action.
Accordingly, I reject all of the hearing officer's findings of fact and conclusions of law regarding connecting the canal to the Sound and constructing a bulkhead to the extent that those findings or conclusions are inconsistent with the recommended order and final order in DOAH Case No. 77-614, or the subsequent circuit court judgment entered pursuant to Section 120.69, Florida Statutes.
The Department's second exception relates to the prohibition contained in Florida Administrative Code Rule 17-4.28(8)(a) against dredging activities in Class II waters approved for shellfish harvesting. That rule provides, inter alia:
(8)(a) The department recognizes the special value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and as a nursery area for fish and shellfish. Therefore,
it shall be the department's policy to deny appli- cations for permits or certifications for dredging
or filling activities in Class II waters, except where the applicant has submitted a plan of proce- dure which will adequately protect the project area and areas in the vicinity of the project from signi- ficant damage. The department shall not issue a permit for dredging or filling directly in areas approved for shellfish harvesting by the Department of Natural Resources. . . . (Emphasis supplied).
It is undisputed that the waters in which the dredging of the channel would take place are Class II waters approved for shellfish harvesting. The language cited above establishes an absolute prohibition on such dredging, and no variance from those provisions has been applied for or obtained. Thus the Department's exceptions on this point are well taken. The hearing officer has misconstrued Florida Administrative Code Rule 17-4.28(8)(a) to allow the dredging of a channel through Class II approved shellfish harvesting waters.
Finally, the Department takes exception to the hearing officer's conclusion of law and recommendation that a permit be issued subject to Hollingsworth obtaining approval from the Trustees to use state owned land. Section 253.77, Florida Statutes, provides:
(1) No department . . . 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 . . . until the applicant for such permit, license, or other evidence of permission shall have received 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 de- partment or subdivision thereof having regulatory power to permit such use.
Thus, even if other grounds for denial of the application did not exist, it would not be appropriate to issue a permit until after receipt of approval to use state lands.
Accordingly, having considered the record and pleadings, it is ORDERED that
The hearing officer's findings of fact and conclusions of law are approved only to the extent that they are consistent with this final order.
The application filed by Hollingsworth is hereby denied.
DONE AND ENTERED this 8th day of December, 1983.
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA U. TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that true copies of the foregoing final Order have been furnished by United States Mail to P. Michael Ruff, Hearing Officer, Division of Administrative Hearings, The Oakland Building, 2009 Apalachee Parkway, Tallahassee, Florida 32301; to James G. Etheredge, Esquire, 226 Troy Street, N.E., Fort Walton Beach, Florida 32548, and to E. Gary Early, Esquire, Department of Environmental Regulation, 2600 Blair Stone Road, Tallahassee, Florida 32301, this 8th day of December, 1983.
MARY F. SMALLWOOD
General Counsel
State of Florida, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Telephone: (904) 488-4805
| Issue Date | Proceedings |
|---|---|
| Dec. 12, 1983 | Final Order filed. |
| Oct. 24, 1983 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 08, 1983 | Agency Final Order | |
| Oct. 24, 1983 | Recommended Order | Grant permit to dredge chanel and open canal which has spring flowing from it and will not harm water quality. |
