RICHARD L. BUCHANAN, )
vs. ) CASE NO. 82-3543
Respondent. )
This matter came on for hearing in Apalachicola, Florida, before its duly designated Hearing Officer, Robert T. Benton, II, on May 3, 1983. The record was left open pending receipt of a letter to petitioner from the Division of State Lands of the Department of Natural Resources, a copy of which was received by the Division of Administrative Hearings on June 20, 1983. At hearing, petitioner appeared pro se. Respondent was represented by counsel:
For Petitioner: Richard L. Buchanan, pro se
For Respondent: E. Gary Early, Esquire
Petitioner seeks a permit authorizing dredging of a channel to restore the access he had to deeper water before another's illegal "prop-dredging" caused sediment to accumulate and block his access.
Petitioner Richard L. Buchanan owns a lot in Franklin County, which lies on the north shore of Apalachicola Bay. Shellfish harvesting is prohibited in the water adjacent to his parcel despite, or perhaps because of, oyster houses having operated in the vicinity for many years. Mr. Buchanan is not an oysterman himself, but he does fish commercially, when he is able. He owns two licensed fishing boats. He goes floundering and also fishes with gill nets.
Since he acquired the property 10 or 12 years ago, Mr. Buchanan regularly loaded nets from shore and unloaded fish and nets on shore, until the prop-dredging took place, even though a dock extends out into the Bay from his property. The outboard motor is hard to handle from the dock and it is virtually impossible to load the nets from the dock without fouling them. Until the prop-dredging he could bring his boats all the way in and lay their bows on
the shore along the stretch of clean sand 35 to 50 feet wide at the western end of his 145 feet of Bay frontage. There was a sheer drop to a depth, at high water, of about 3.5 feet. The Sadler boy drowned there.
Before the prop-dredging disturbed it, the configuration of the bottom that allowed small boats to come all the way into shore at that point had obtained for decades. Leo Nixon Harwell, son of the former owner of petitioner's property, remembered running the Harwells' oyster boat, which drew three feet, right up on the beach. Mr. Harwell, who looked to be in his 50's, testified that there had been deep water next to the shore ever since he was "no yearly boy." The further from shore the deeper it got till you reached Two Mile Channel. Between the sandy beach and the channel there was no vegetation to speak of although there was a marshy swash to the east of the sandy beach.
In 1979, when Arman Earl Cloud had to haul his bay shrimper for repairs, he floated it to the beach in back of Mr. Buchanan's house and pulled it up on the beach, using rollers. The bow floated to the water's edge. The boat had a length overall of 25 to 28 feet, a beam of nine feet and drew three to three and a half feet of water.
An oyster house sits on the next parcel west of the Buchanan property. The oyster house belongs to a man named Page, and a dock 100 feet long juts out toward Two Mile Channel from the oyster house. It used to be impossible to get an oyster boat in any closer to shore. When John Paul Whitehead was oystering some years back, they used to have to anchor out and transfer the oysters to a skiff to get them to the Page oysterhouse. In fact, when Diane Collins rented the oysterhouse (from Bobby Youngblood) in 1974 or 1975 it was impossible to bring even a flat-bottomed boat in as far as the waterward end of the dock. "On dead low tide all you seen was sand on either side of the dock."
According to unrebutted testimony, the Pages changed all this by prop- dredging. (Mr. Page failed to honor the subpoena requiring his attendance at the final hearing.) Prop-dredging involves fixing the bow of a boat by grounding or otherwise, and turning the propeller at speeds high enough to move soils on the bottom. Bay this technique, the Pages dredged great quantities of sand on either side of their dock. Most of the sand stayed suspended in the water only long enough to settle in front of their neighbors' property. This illegal activity was brought to the attention of the marine patrol at the time, whose warning to the Pages to desist went unheeded, and at least one employee of respondent Department of Environmental Regulation was also apprised. The prop- dredging continued for some time, usually at night, and the eventual result was "a muck hill" in front of the Miracle Seafood property abutting the Pages to the west, and a sandbar in front of Mr. Buchanan's property that completely blocks access to his sandy beach. The Pages, with 55 front feet on the Bay, can now accommodate quite a fleet at their dock. One day six to eight boats were docked there.
The sandbar in front of Mr. Buchanan's property attributable to the Pages' unpermitted and illegal prop-dredging has by now been there long enough that smooth cord grass (Spartina altiflora), saw grass and maiden cane have taken root. The dredging proposed by petitioner to restore access to his shoreline would disturb some 400 square feet, on which only Spartina altiflora is growing. On about a quarter of the proposed site, there is no vegetation. The Spartina altif lora helps stabilize the shoreline, serves to filter pollutants running off into the Bay and provides a habitat and food for insects, worms, oysters, shrimp and fishes. Dredging would resuspend any heavy metals in the soil, and increase the turbidity of the water, in the immediate vicinity.
There is a boat ramp 500 feet from petitioner's property. DER would issue a permit for a marine railway at the site where petitioner hopes to dredge. Apalachicola Bay is classified as Class II waters, and as outstanding Florida waters, being part of an aquatic preserve.
There is a clear public interest in permitting a private citizen, who is willing to restore, at his own expense, a part of the coastline disturbed by illegal activity which he responded to the authorities at the time, to the status quo which existed for as long as anybody can remember, before the illegal activity disturbed it.
In an undated letter to Mr. Buchanan, James W. MacFarland, Director, Division of State Lands, Department of Natural Resources, advised that
Upon the assurance that the environmental effects are acceptable and with the understanding that DER intends to issue the permit, we will request the dredge material severance fees and issue our authorization pursuant to Section 253.77, Florida Statutes, upon the permit receipt.
The credible testimony of DER staff was to the effect not that the loss of some
300 square feet of Spartina altif lora would have unacceptable environmental effects, but that the cumulative effect of projects entailing destruction of such grasses would have unacceptable environmental consequences.
Respondent's proposed findings of fact, conclusions of law and proposed recommended order have largely been adopted, in substance. To the extent any proposed finding of fact has been rejected, it has been deemed immaterial or unsupported by the weight of the evidence.
CONCLUSIONS OF LAW
Respondent contends, in its proposed recommended order, that petitioner's application for a dredging permit should be denied for any of several reasons. First, respondent argues, "violations of water quality standards, particularly those related to turbidity, would be expected." Second, as a result of petitioner's proposed project and others "alone and in combination" ambient water quality would decrease; a diminution of water quality would be the "long-term cumulative impact of the proliferation of such projects." Third, "[p]etitioner has not submitted evidence of consent to use state-owned lands," and the permit cannot issue without the consent of the Department of Natural Resources. Fourth, because these are Class II waters, respondent argues the permit cannot issue in the absence of a "plan of procedure which will adequately protect the project area and areas in the vicinity of the project from significant damage." Rule 17-4.28(8)(a), F.A.C. Finally, respondent contends that issuance of the permit is precluded by Rules 17- 3.041(4)(h) and 17-4.242(1)(a)(2), F.A.C. requiring that the "proposed activity
. . . [must be] clearly in the public interest," since it would take place in Apalachicola Bay, which has been classified as outstanding Florida waters.
RESTORATION PROPOSED
Implicit in this array of objections to the grant of petitioner's application is an apparent departmental policy to ignore everything that took
place before petitioner's application was filed. DER would overlook the great clouds of sediment that illegally rearranged the topography of the bottom as they settled; and draw the line at petitioner's modest proposal to restore a fraction of the disturbed area on grounds, among others, that the project would create temporary turbidity standard violations. This myopic approach lacks "convincing wisdom." McDonald v. Department of Banking and Finance, 346 So.2d 589, 583 (1977).
CUMULATIVE IMPACT
Nothing in the evidence suggests any long-term adverse, cumulative, environmental impact, if petitioner's proposed project is allowed. Petitioner proposes partial restoration of the status quo ante. The DER should give serious consideration to instituting enforcement proceedings in order that the rest of the area disturbed by the illegal prop-dredging (the area in front of the Miracle Seafood and Page properties) may one day be restored. Restoration of the whole area disturbed should enhance, not diminish, water quality; and should have no bearing whatsoever on the undisturbed bottom or the shoreline east of the proposed dredge site and west of the Miracle Seafood property.
CONSENT ASSURED
The letter to petitioner from the Department of Natural Resources grants permission for the use of the bottom as petitioner proposes, but only conditionally. To meet the condition, the DER permit petitioner seeks in these proceedings must issue. The letter can be read to lay do an additional, distinct requirement that the environmental effects be "acceptable." The evidence showed that the anticipated environmental effects are acceptable within the meaning of the letter to petitioner from the Department of Natural Resources.
DER routinely allows dredging projects, notwithstanding the inevitable turbidity occasioned, on condition that turbidity curtains be used to contain the suspended soils. This is not the case to begin imposing any stricter standard. Aside from temporarily suspending solid particles the only environmentally adverse effects would be destruction of the grasses growing on the bottomland to be dredged, and the consequences of that destruction. These ill effects can be mitigated. If the deeper bottom resulting from the dredging should prove too far from sunlight for the grasses to recover, and even if not, DER would do well to institute enforcement proceedings to the end that the shallows that surrounded the Pages' do be restored and the grasses growing there be reestablished to their pre-prodredging state. In these circumstances, it seems clear that the Department of Natural Resources, in whom bottomlands under navigable waters are vested, will issue formal authorization for petitioner's project on issuance of a dredging permit by the Department of Environmental Regulation. Section 253.77(1), Florida Statutes (1981), provides:
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, oil 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 department or subdivision thereof having regulatory power to permit such use.
Under the circumstances of the present case, where the Department of Natural Resources has made receipt of a permit from the Department of Environmental Regulation a condition of issuing its formal authorizations, Mr. MacFarland's letter to petitioner should be deemed "other form of consent authorizing the proposed use" within the meaning of the statute. Otherwise, petitioner would be relegated to a bureaucratic limbo, sitting on the sidelines indefinitely while two state agencies pirouetted through an administrative Alphonse and Gaston routine. See generally George R. Langford et al. v Ben C. Boynton et al., No. 82-0533 (DER; Jan. 7, 1983), 5 FALR 296-A; C. H. Waites v. Jeff Taylor et al., No. 79-2286 (DER; April 22, 1980) 2 FALR 687-A.
PUBLIC INTEREST
It is very clearly in the public interest to allow a citizen to restore bottomlands to the condition in which they existed for decades before illegal activities of a stranger altered them, especially where the citizen alerted the authorities to the illegal activities while they were in progress. Neither petitioner nor any predecessor in title was in any way responsible for the sudden man-made transformation petitioner proposes to undo in part. Petitioner himself complained to the appropriate authorities contemporaneously with the illegal acts that caused the problem he is trying to remedy. Petitioner took steps to prevent the illegal damage he is now volunteering to repair in part at his own expense. It is sound policy to encourage such participation by citizens in protecting the environment.
PLAN OF PROCEDURE
Rule 17-4.28(8)(a), Florida Administrative Code, requires a plan of procedure for minimization of the environmental effects of projects of this kind. Ordinarily, it would fall to the applicant to devise such a plan. Rule 17-1.59, Florida Administrative Code. Requiring applicants to devise such plans conserves departmental resources. In the present case, where petitioner is volunteering to effect partial restoration at his own expense, it would be oppressive to saddle him with the additional burden of retaining persons with the expertise necessary to formulate such a plan, particularly when respondent, whose interests petitioner is advancing, has persons with such expertise in its employ.
That petitioner grant respondent's application for a dredging permit on such reasonable conditions, including turbidity curtains, as are necessary adequately to protect the project vicinity.
DONE and ENTERED this 8th day of August, 1983, in Tallahassee, Florida.
ROBERT T. BENTON, II
Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1983.
E. Gary Early, Esquire
Richard L. Buchanan
P. O. Box 33
Victoria Tschinkel, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
