vs. ) CASE NO. 84-4165
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on October 23, 1990, in Lake Wales, Florida.
For Respondent: Douglas H. MacLaughlin
DER-Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The issue for resolution in this proceeding is whether the Department of Environmental Regulation (DER) should approve Petitioner's construction of a dock on Lake Kissimmee in Polk County, Florida. Such approval would require the grant of an after-the-fact permit.
This matter was referred to the Division of Administrative Hearings (DOAH) on November 27, 1984, after Petitioner requested a formal hearing in response to the agency's notice of intent to deny his application for a permit to construct a 3,160 square foot dock on Lake Kissimmee. The case was initially set for hearing in March 1985, but was continued, and was placed in abeyance by request of the parties for almost six years during the pendancy of related civil actions.
In July 1990, the agency filed its status report stating that the matter was ready for formal hearing.
On October 18, 1990, DER filed a motion to dismiss Petitioner's request for hearing, stating that pursuant to Section 253.124(6)(a), F.S. (1983), an after- the-fact permit could be granted only after the department had issued a report making certain findings. An affidavit accompanying the motion stated that no such report had been issued. After a brief telephone hearing on October 19, 1990, the motion was denied. From the pleadings and argument it was apparent that material facts were in dispute and that DER could not permanently bar an applicant's right to a hearing by failing to issue a report which it (the agency) claimed to be "discretionary".
At the formal hearing Petitioner testified in his own behalf, and presented the additional testimony of the following: William A. Reed, Jr., a professional surveyor; Tom Pharo, a fishing guide and boat captain; Troy and Evelyn Gleason, neighbors; George Gilbert, neighbor; and Joel Walterson, airboat operator.
Petitioner's exhibits #1-16, including a videotape of the dock and site, were received in evidence without objection. Exhibit #17 was received over Respondent's objection based on relevance. The exhibit is a handwritten petition purportedly signed by a group of airboat operators, corroborating the testimony of Mr. Walterson regarding the effect of Thomas' dock on navigation. While admitted into evidence, the document was not relied upon for any finding of fact due to its limited probative value.
Respondent presented the testimony of the following witnesses: Larry Capps, an airboat operator; Garrett Whatley, an airboat operator; Edwin Moyer, Biological Administrator with the Florida Game and Freshwater Fish Commission; Robert Stetler, Environmental Administrator with DER in Tampa; and Kenneth Huntington, an Environmental Manager, with DER in Tampa. Respondent's exhibits #1-3 were received in evidence.
The proceeding was recorded by mechanical means and no transcript was filed. The parties submitted proposed recommended orders on November 20 and November 26, 1990. Specific rulings on the findings of fact proposed by each party are included in the attached appendix.
Earl W. Thomas, the Petitioner, owns approximately 15.5 acres on the western shore of Lake Kissimmee near Lake Wales, in Polk County, Florida.
On March 15, 1984, Petitioner filed an application with the Department of Environmental Regulation (DER) to construct a 3,160 square foot dock at his property on Lake Kissimmee. The dock is described in drawings attached to the application as 550 feet long with a 60 foot "T" segment at the end.
The application form is styled, "Joint Application, Department of the Army/Florida Department of Environmental Regulation for Activities in Waters of the State of Florida".
The activity described in the application is "proposed pier for mooring private boat -- no fuel pumps or toilet facilities to be constructed on pier". (Petitioner's exhibit #5)
Thomas received a letter dated March 28, 1984 from the Army Corps of Engineers acknowledging the application and granting General Permit SAJ-20. The letter authorized construction but provided that it did not obviate the need for any other required federal, state or local permits.
A form letter from the Florida Department of Natural Resources (DNR) dated April 26, 1984, informed Thomas that a letter of consent from the Board of Trustees of the Internal Improvement Trust Fund would be required.
A form letter from DER dated May 10, 1984 acknowledged receipt of the application and stated that evaluation of the project would be delayed until receipt of DNR consent.
The DNR letter of consent was issued on June 28, 1984, signed by Ted Forsgren, Chief, Bureau of State Lands Management, and referencing the use of approximately 2,366 square feet of state-owned submerged land for a private docking facility.
The letter states, "Please consider this the authority sought under Section 253.77, Florida Statutes, to pursue this project." (Petitioner's exhibit #9)
Thomas commenced construction, and the dock was completed by July 28, 1984. As completed, the dock is approximately 480 feet long, with a 24 foot "T" cross at the end.
During construction, in a letter dated July 24, 1984, to the DER Tampa office, Ed Moyer, then Fishery Biologist with the Florida Game and Fresh Water Fish Commission stated, "Our office is opposed to the issuance of a permit to construct a 600' [sic] dock on the west shore of Lake Kissimmee. "
(Respondent's exhibit #2)
Basis for the opposition was that the structure would obstruct boat traffic along a navigable path parallel to Mr. Thomas' shoreline.
In a letter dated September 17, 1984, signed by James W. MacFarland, Director, Division of State Lands, DNR informed Thomas that it was rescinding its prior consent due to receipt of additional information from DER and conversations with the Game and Fresh Water Fish Commission.
The letter also states "...It appears that the information represented to us did not actually represent your proposed activity or address the severe navigational problems caused by your construction of a facility approximately 600 feet [sic] in length. ..." (Petitioner's exhibit #10)
On September 18, 1984, DER issued its Intent to Deny Thomas' application.
This document provides, in pertinent part:
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On October 14, 1984 [sic] Bill Ackerman, Field Inspector for Polk County, inspected the proposed pier site and the adjacent lake.
Approximately 200' waterward from the west shore of the lake is a 20' wide approximately 4' deep navigation channel which is used by area boaters during sudden winds from the east as a safe haven path which protects them from the chop of the open lake. Based on his personal experiences and site inspection on this lake and the opinion and the recommenda- tion of the Florida Game and Fresh Water Fish Commission, the agency has come to the conclu-
sion that the proposed dock will both obstruct and hinder navigation in this natural lake channel, contrary to the provision of Chapter 253.123, F.S.
In addition, the proposed dock's obstruction of the existing channel will cause boaters to prop dredge a new access channel around the dock, causing substantial wetland losses, resuspension of nutrient laden bottom sedi- ments and turbidity. * * * [Petitioner's exhibit #11]
In response to this notice, Petitioner requested a formal hearing.
Nothing in the record of this proceeding explains the inconsistency in the dates in the notice of intent to deny. The notice itself was issued on September 18, 1984 and the October 14, 1984, reference is clearly in error.
The permit file of the DER includes a form dated 6/11/84, styled "Permit Application Appraisal", referencing an on-site inspection by Bill Ackerman on 10/14/82. [Respondent's exhibit #3]
This form appraisal describes the project as a 600' long private dock, with a 48 square foot "T" at the end, and 2400 square feet of over-water surface area.
The appraisal references a fence that Thomas built allegedly on state submerged lands in the lake, and a dispute with DNR over that fence. The appraisal also describes a boat path about 200' from shore and parallel to the shore within the grassy weeds, providing a safe passage for small boats caught in the lake in sudden storms or high waves.
The appraisal recommends denial of the permit for navigation reasons, but recommends that the permit could be approved if the fence were removed and the length of the dock were reduced.
The inspector and apparent author of the appraisal report, Bill Ackerman, died several years ago. No witness could explain the source of the various references to a 600' dock, since the application was for a 550' long dock, including the width of the "T" cross, and the dock that was built was 480' long.
The appraisal report is the only evidence from DER's file of that agency's review of the project, and it is evident that the site visit was conducted approximately 1 1/2 years prior to the application in issue, perhaps related to the fence, which is not at issue in this proceeding.
However, Edwin Moyer, the Florida Game and Fresh Water Fish Commission staff person who wrote the July 1984 opposition letter, testified and confirmed that the boat trail described in the appraisal did exist in 1984.
This trail, called a "kicker trail", was not a dredged path, but rather was created like many others by the operation of boat propellors through the weeds and grasses along the shore of the lake. If unused, these trails disappear, and new ones are created.
At the Thomas site, Lake Kissimmee is approximately 5 miles wide. Small boats need the trails as the vegetation protects them from high waves.
Thomas' dock intersected the kicker trail described in the DER appraisal report and by Edwin Moyer.
New trails, however, now exist beyond the end of Thomas' dock and still within the dense vegetation which extends some 360 feet waterward from the end of the dock.
An "outside" trail runs parallel to the shoreline, approximately 350 feet beyond the dock, and is used by small to medium motorboats.
An "inside" trail is located about 60 feet beyond the end of the dock and is used exclusively by airboaters, who can run in just inches of water and who experience severe handling problems in deep water or heavy waves. Airboats don't require trails, as they can travel on top of the vegetation.
Regular motorboats, such as bass boats and jon-boats, require more water. The water depth at the end of Thomas' dock fluctuates from about one to five feet deep; not including the approximate 1.5 feet of muck on top of the sand at the lake bottom at the Thomas site.
The water elevation in Lake Kissimmee is controlled by the South Florida Water Management District, with a regulated high of 52.5 ft. NGVD to a regulated low of 49.0 ft. NGVD, with an even lower 48.5 ft. NGVD every three years.
At the time of hearing, the water level was 50.3 ft. NGVD, or approximately 2.4 ft. deep at the end of Thomas' dock, not including the depth of the muck.
Even if the Thomas dock did not exist, regular motor boats would have trouble navigating closer to shore, due to the shallowness of the water.
Moreover, there are stumps and posts closer to shore, which present a greater danger to boaters, including seasoned airboaters, than Thomas' dock which is fully visible and which includes a light at the end which remains lit, with reflectors along the edges.
Airboats running close to the shore have to veer out into deeper water as they approach the Thomas site, to avoid the dock. This is a nuisance, according to Garrett Whatley, an airboat operator who races on Saturday evenings. But the greater nuisance, as he concedes, are the posts and steel pipes in the water near the shore which are not marked and which can crack up a boat. In bypassing the dock, these obstructions are also avoided.
Some Lake Kissimmee boaters consider Thomas' dock a navigational aid. The west side of the lake is not developed and the dock provides a prominent landmark, particularly for snail fishermen and other night boaters.
The Gleasons and the Gilberts are neighbors of Earl Thomas. They each have 200 ft. docks which have been permitted by DER. The Gleasons have a 24 ft. pontoon boat which they moor at the end of a 70 ft. catwalk extending from the end of their dock. Even then, the water is only about 12 inches deep and they have to pole the boat out to avoid plowing into the muck on the lake bottom.
The vegetation line at Thomas' site is thicker and farther out than at the Gleason's.
George Gilbert also has a pontoon boat which he has to pole to access his dock. He has a kicker trail at the end of his dock, but the water is too shallow to use it. DER has granted him a permit to extend his dock another 100 feet.
DER considers 300 feet a reasonable length for docks in the area and the agency tries to keep them a uniform length for navigational purposes.
Removal of all or a portion of Thomas' dock can be accomplished without water quality damage so long as the removal is closely controlled. The pilings would have to be enclosed with a screen to limit turbidity during the removal process.
Even if the act of removal could be controlled, the turbidity caused by boats interacting with the sediment closer to shore would be a recurring problem without the dock as it now exists.
A shorter dock would necessitate the use of catwalks or other temporary access to boats unable to navigate the shallow water. Those boats moored away from the dock would still be an obstruction, and if unlit, would be less visible to night fishermen than the existing structure.
The Thomas dock, as it now exists, is not a navigational hazard. Its removal would be more damaging than to permit it to remain.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.
The Department's regulatory jurisdiction is provided in Chapter 253,
F.S. (1983) and Rules 17-312.150 and 312.160, F.A.C., since the permit application at issue was submitted prior to the October 1, 1984 effective date of the Warren S. Henderson Wetlands Act.
In their prehearing stipulation the parties have agreed that the issues are limited to whether Petitioner's dock creates a navigational hazard or a serious impediment to navigation, and whether removal of all or a portion of the dock would be more damaging than granting the permit.
Section 253.124, F.S. (1983), provides, in pertinent part:
253.124 Application for filling land.--
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(2) ...In the event the department finds that such proposed extension or filling of land or such proposed dredging is not violative of any statute, rule, or other restriction which may be applicable thereto, that no harmful obstruction to or alteration of the natural flow of the navigable water within such area will arise from the proposed construction, that no harmful or increased erosion, shoaling of channels, or stagnant areas of water will be created thereby, and that no material injury or monetary damage to adjoining land will accrue therefrom, the
permit shall be granted to the applicant; however, prior to the issuance of such permit, the department or other authorized body shall determine whether the granting of such permit and the construction to be done pursuant thereto would interfere with the conservation of fish, marine and other wildlife, or other natural resources to such an extent as to be contrary to the public interest and whether the destruction of oyster beds, clam beds, or marine produc- tivity, inluding, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life, will result therefrom to such an extent as to be contrary to the public interest. The department shall also consider any other factors affecting the public interests.
* * *
(6)(a) The department shall in no case issue an after-the-fact construction permit to any applicant authorizing construction regulated by this section subsequent to the time it has occurred, unless, upon consider- ation of a report by the department, the department finds that the exercise of any other remedy or penalty available to it, either as provided by subsection (5) or otherwise by law or by rule, would be more damaging to the environment or the marine resources sought to be protected by this chapter than would be the granting of such permit.
* * *
Rule 17-312.160, F.A.C., provides, in pertinent part: 17-312.160 Construction, Dredging or Filling
in, on or over Navigable Waters; Permits Required Pursuant to Chapter 253, F.S. This section applies only to dredging or filling for which a complete application was received before October 1, 1984, or for dredging or filling which is grandfathered by Subsections 403.913(6) and (8), F.S., and Rules
17-312.120, 17-312.130, and 17-312.140,
F.A.C. All other dredging or filling is subject to the remaining provisions of Chapter 17-312, F.A.C. The provisions of this section apply only in regard to the requirements of Chapter 253, F.S., and do not relieve any persons from complying with Chapter 403, F.S.
(1) Subject to the statutory limitations and
exemptions of Sections 403.501-.515 and 403.813(1) and (2), Florida Statutes, and as otherwise limited by general or special statute or department rule, the 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:
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(c) Marina construction, maintenance and installation and/or docks, wharfs, piers, walkways and living quarters or dwelling type structures thereon and/or mooring pilings, dolphins and similar structures and/or boat ramps, lifts or similar launching facilities and/or ski ramps or other similar water structures.
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(6) 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:
* * *
(b) that the proposed project will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest.
* * *
The agency argues that since it has not issued a report as described in Section 253.124(6)(a), F.S. (1983), the applicant is not entitled to an after-the-fact permit as a matter of law.
This argument begs the question. The right to a formal hearing cannot be barred by the lack of final agency action when the very purpose of that hearing is to formulate the agency action.
The Department does not have any criteria for assessing whether a project will be a navigational hazard other than the language of the statute and rule cited above.
Petitioner met his burden of proving that the dock is not a navigational hazard based on local uses. The preponderance of evidence adduced in this proceeding establishes that removal of the dock would be more damaging than its continued existence.
Based on the foregoing, it is hereby recommended that the Department issue its final order granting Petitioner's application for the dock as it now exists. That is, the application for a 550 foot dock should be deemed amended to provide for a 480 foot dock, as built.
RECOMMENDED this 7th day of January, 1991, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1991.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-4164
The following constitute specific rulings on findings of fact proposed by the parties.
15.-18. Adopted in substance in paragraphs 16 and 20.
P.O. Box 2807 Orlando, FL 32802
Douglas H. MacLaughlin Asst. General Counsel
DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Rd.
Dale H. Twachtmann, Secretary DER-Twin Towers Ofc. Bldg.
2600 Blair Stone Rd. Tallahassee, FL 32399-2400
Daniel H. Thompson General Counsel
DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Rd.
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
