STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE PAIR, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2948

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this matter before Marvin E. Chavis, duly designated Hearing Officer of the Division of Administrative Hearings, on February 13, 1954, in Pensacola, Florida.

APPEARANCES

For Petitioner: Joe Pair, Pro Se

1200 Mahogany Mill Road Pensacola, Florida

For Respondent: David K. Thulman, Esquire

Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida

ISSUES AND BACKGROUND

This case arises out of the denial by the Department of Environmental Regulation of an application by the Petitioner to construct a 24-slip marina on Bayou Chico in Pensacola, Florida. At the formal hearing, Petitioner testified on his on behalf and offered and had admitted into evidence one exhibit. The Respondent called as its only witness, Jeremy Craft, and offered and had admitted into evidence four exhibits. Counsel for the Respondent submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to a resolution of this cause.

FINDINGS OF FACT

1. On March 18, 1982, Petitioner applied for a permit to dredge approximately 78,480 cubic yards from Bayou Chico and an unnamed embayment adjacent to the Bayou. The proposed project site is located in Pensacola, Florida, Bayou Chico in Section 59, Township 2 South, Range 30 West. Specifically, the project site is located on the south side of Bayou Chico just north of the Barrancas Avenue Bridge.

2. On April 15, 1982, the Respondent, Department of Environmental Regulation, sent a completeness summary to the Petitioner requesting additional information before the application or permit could be processed. Over a period of approximately a year and a half, Department of Environmental Regulation conferred with Petitioner concerning the proposed project and a number of different plans were discussed. In July of 1983, Petitioner submitted the July 11, 1983 plan, with modifications, and withdrew all prior plans. It is this plan which is the subject of this hearing.

   
   

3. A field appraisal of the proposed site was made by Department of Environmental Regulation on December 25, 1982. On August 31, 1983, Department of Environmental Regulation issued an Intent to Deny the Petitioner's permit application. The Intent to Deny encompassed all plans and revisions submitted by the Petitioner, Department of Environmental Regulation based its denial on Petitioner's failure to give reasonable assurances that water quality standards would not be violated by his project. The Department's denial also asserted that the project would also result in matters adverse to the public interest.

   
   

4. The final proposal submitted by the Petitioner sought a permit to dredge a strip 100 feet wide by 450 feet long to a depth of 6 feet. This strip is adjacent to a spit or strip of land which separates Chico Bayou from the emboyment. This plan was subsequently modified to include dredging an additional 100 to 150 feet along the full length of the strip. This additional dredging would take the dredged area out to the deep water of Chico Bayou and was intended to eliminate a channeling effect.

   
   

5. The purpose of the dredging is to enable the Petitioner to construct a marina or docking facility along the split. The marina would include 24 slips.

   
   

6. The proposed dredge area gradually slopes from the shoreline to five and six foot depths 200 to 250 feet from the spit. The water in the embayment is highly polluted and at one time was used as a holding pond for mahogany logs because the wood-boring worms could not survive in the water. Bayou Chico is also very polluted and fails to meet the water quality standards found in Rule 17-3.121, Florida Administrative Code, for the parameters lead, cadmium, copper, and aluminum among others. The bayou has for many years been used for boat and barge traffic.

   
   

7. Jeremy Craft testified on behalf of DER and his opinions as to the impact of the project on water quality and marine life were uncontroverted. In Mr. Craft's opinion, the dredging proposed by the Petitioner would result in further degradation of the water quality in Bayou Chico by eliminating important shallow areas and underwater grasses. The deepening of the dredged area would limit the amount of oxygen available to the water in the bayou thereby harming the aquatic life by freeing many of the heavy metals which are presently bound in the sediments in the bayou. The shallow areas are the most important areas in cleansing the water. With increased oxidation, the biota survive better and the water is better cleansed. Freeing the heavy metals would allow their introduction into the food chain and accumulation in living organisms.

   
   

8. The Petitioner has not informed DER of his specific dock specifications, stormwater plans, upland development plans, or dredge disposal plans. The type of dock will determine the type of boating traffic and this will indicate the amount and content of stormwater discharge. Because of the contaminated nature of the spoil, the Petitioner must provide reasonable assurances that the spoil and spoil water will be properly retained.

9. Petitioner testified on his own behalf but did not present any evidence relating to the impact the proposed prod act would have on water quality.

   
   

   CONCLUSIONS OF LAW

   
   

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

    
    

11. Pursuant to Sections 403.087 and 403.088, Florida Statutes empowers DER to grant or deny permits for dredging projects, such as the proposed project which is the subject of this action.

    
    

12. Bayou Chico is and has been used for boat traffic and constitutes navigable waters and thus this project is also subject to DER's jurisdiction under Section 253.123, Florida Statutes.

    
    

13. Pursuant to Rule 17-4.28(3), Florida Administrative Code, the Petitioner, as an applicant for a dredge permit, must affirmatively provide reasonable assurance to DER that the short- term and long-term effects of the activity will not result in violations of water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. The applicant must also provide reasonable assurances that his project will not interfere with the conservation of fish, marine life and wildlife or other natural resources to such an extent as to be contrary to the public interest. Rule 17-4.29(6)(a), Florida Administrative Code.

    
    

14. It is unnecessary to reach the question of whether Petitioner has met the requirements of Section 253.123, Florida Statutes. The Petitioner has provided no evidence to establish reasonable assurances that his proposed project will not violate water quality standards. To the contrary, the uncontroverted evidence established that the proposed dredging will in fact have an adverse impact upon the water quality in Bayou Chico.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions of law it is RECOMMENDED

That the Department of Environmental Regulation enter a final order denying the Petitioner's application for a permit as set forth in the Intent to Deny previously issued by the Department.

DONE AND ORDERED this 24th day of May 1984, in Tallahassee, Florida.

MARVIN E. CHAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

FILED with the Clerk of the Division of Administrative Hearings this 24th day of May 1984.

COPIES FURNISHED:

David K. Thulman, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301

(904)488-9675

Joe Pair

1200 Mahogany Mill Road Pensacola, Florida 32907

Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

Docket for Case No: 83-002948

Orders for Case No: 83-002948