STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACKSONVILLE SHIPYARDS, INC., )

)

Petitioner, )

)

vs. ) Case No. 85-0801

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and )

GEORGE H. HODGES, JR., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 15 and

16 and September 4, 1986, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Thomas M. Baumer, Esquire

Deborah D. Barton, Esquire Post Office Box 4788 Jacksonville, Florida 32201

For Respondent: Bradford L. Thomas, Esquire Department of Twin Towers Office Bldg.

Environmental 2600 Blairstone Road

Regulation: Tallahassee, Florida 32301-8241

For Respondent: Segundo J. Fernandez, Esquire George H. M. Christopher Bryant, Esquire

Hodges, Jr.: Post Office Box 6507 Tallahassee, Florida 32314-6507

INTRODUCTION

This proceeding began when respondent/applicant, George H. Hodges, Jr., filed an application on January 29, 1981 with respondent, Department of Environmental Regulation (DER),

seeking the issuance of a dredge and fill permit to dredge 26,000 cubic yards of silt and sand from a 3,700 foot long channel having an 80 foot top width and a 48 foot bottom width, and to construct 850 linear feet of bulkhead and a floating concrete dock in Old Pablo Creek which lies on the western side of the Intracoastal Waterway in Duval County, Florida. The application was subsequently amended on various occasions to decrease the length of the channel to 2,250 feet at a depth of five feet, and to increase the quantity of material to be dredged to 29,250 cubic yards. On February 28, 1985 DER issued its intent to issue permit to Hodges. This prompted the filing of a petition for formal proceedings by petitioner, Jacksonville Shipyards, Inc., an adjacent landowner. The request was forwarded by DER to the Division of Administrative Hearings on March 25, 1985 with a request that a Hearing Officer be assigned to conduct a formal hearing. By notice of hearing dated April 24, 1985 the final hearing was scheduled for August 26 and 27, 1985 in Jacksonville, Florida. Upon request of petitioner the matter was reset to October 16-18, 1985 at the same location.

Thereafter the case was continued at DER's request while the parties sought to amicably resolve the matter. When no settlement was achieved, the final hearing was rescheduled to July 15 and 16, 1986 in Jacksonville. A continued hearing was held on September 4, 1986.

At final hearing, respondent/applicant presented the testimony of Kenneth Echternacht, an expert in hydrographic engineering; Timothy J. Duerling, a DER environmental supervisor and accepted as an expert in biology, aquatic ecology and the evaluation of the impact on water quality of dredge and fill projects; David H. Bickner, a DER environmental supervisor; Walter H. Wheeler, an expert in biology, aquatic ecology and the evaluation of the impact of dredge and fill projects on water quality, biota and fauna; Edmund J. Taylor, a registered land surveyor; Erick J. Olsen, an expert in hydrographic engineering, coastal engineering, navigation, marina and access channel design and the evaluation of the impact of dredge and fill projects on hydrographic and water quality; Mabry Edwards; Park Dean Privett, Jr., an expert in land surveying; Sanford B. Young, an expert in civil engineering and in evaluating the water quality impact of dredge and fill projects; and Frederick

V. Ramsey, an expert in environmental engineering, surface water resource management, including water quality assessments and water quality modeling, and hydraulics. He also offered respondent/applicant's exhibits 1, 3, 4, 11, 12, 15-17, 21, 25- 27, 30-34, 37-39, 47-53, and 55

1. All were received into evidence. Respondent DER adopted

   the testimony and exhibits of applicant and also offered DER exhibit 1. Petitioner presented the testimony of Richard D. Seitz; George H. Hodges' Jr.; Gregory M. Powell' an expert in fluid mechanics, hydraulics, coastal and oceangraphic engineering, civil engineering, modeling and hydrographic engineering; and Dr. Curtis D. Pollman, an expert in water chemistry, sediment chemistry, modeling, and the evaluation of the impacts of dredge and fill permits on water quality.

   Petitioner also offered petitioner's exhibits 3-8. All were received into evidence. The transcripts of hearing (four volumes) were filed on October 3, 1986. Proposed findings of fact and conclusions of law were filed by the parties on October 28, 1986.1 A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.

   
   

   The issue is whether respondent/applicant's amended application for a dredge, fill and construction permit authorizing the dredging of a 2,250 foot channel at a depth of five feet and the construction of 880 linear feet of bulkhead and floating concrete dock, all in Old Pablo Creek to the west of the Intracoastal Waterway in Duval County, Florida, should be granted.

   
   

   Based upon all evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Background

      
      

      1. On January 29, 1981 respondent/applicant, George H. Hodges, Jr. (applicant or Hodges), filed application number 16 39644 with respondent, Department of Environmenta1 Regulation_ (DER), seeking a dredge and fill permit to generally authorize the excavation of 26,000 cubic yards of material from a 3,700 foot portion of an existing channel (Old Pablo Creek) just west of the Intracoastal Waterway (ICW) in Jacksonville, Florida. The channel then proposed was a straight channel along the northern boundary of his property. Hodges also sought to construct two boat slips, three floating docks, an 850 foot vertical bulkhead adjacent to the docks, and to dispose of all dredged material in a diked upland site. Thereafter, DER informally advised applicant that it intended to deny the application for various reasons, including the fact that the dredging would eliminate .75 acres of marsh and wetlands.

      2. After receiving this advice, Hodges proposed a series of amendments to his application in 1984 and 1985 in an effort to counter and satisfy DER's objections. The final amendment was made on September 10, 1985. As finally amended, Hodges proposed to confine all dredging to existing salt channels, thereby eliminating the objection that adjacent marshes would be destroyed. Applicant also proposed to restrict his dredging to only 2,250 feet along the northern portion of Old Pablo Creek and to remove 29,250 cubic yards of fill (silt) and sand and place the same in a 12.5 acre upland spoil site. By proposed agency action issued on February 28, 1985, DER announced it intended to issue the requested permit. This prompted a protest and request for hearing from petitioner, Jacksonville Shipyards, Inc. (JSI), which owns and operates a ship repair facility on the ICW just south of the proposed project. In its petition, JSI generally alleged that (a) Hodges had failed to give reasonable assurances that water quality standards would not be violated, (b) the project would adversely affect its property,

         (c) the project would have an adverse effect on the conservation of fish and wildlife, (d) the project would cause harmful erosion or shoaling, (e) DER failed to consider the long-term effect of the project on marine productivity and the cumulative impact of the project, and (f) the proposed vertical bulkhead did not meet statutory requirements.

         
         

   2. The Project

      
      

      1. The project site is a shallow horseshoe shaped creek approximately 3,700 feet in length which meanders through a vegetated salt marsh just west of the ICW in Duval County, Florida. Both ends of the creek connect into the ICW. The site is approximately one-half mile north of the bridge on Atlantic Boulevard which crosses the ICW. The ICW is a man-made channel constructed by the U. S. Corps of Engineers which runs in a north-south direction just east of the project site. It is commonly referred to as Pablo Creek. The channel or creek in which the dredging will occur is known as Old Pablo Creek (creek). An excellent aerial view of the entire area is shown in petitioner's exhibit 4 received in evidence.

         
         

      2. The creek is a predominately marine water classified as a Class III water of the State. Accordingly, it is subject to DER's regulatory jurisdiction. For purposes of this hearing, the parties have referred to the upper and lower portions of the creek as the northern and southern portions, respectively. Hodges intends to dredge the northern portion of the creek, which measures approximately 2250 feet in length from the ICW to

         a bend at its western end which crosses Hodges' property and where a residential site is located.

         
         

      3. According to Hodge's affidavit of ownership, he is the "fee interest owner of adjoining lands except for the dredge channel which is owned by the State of Florida". He acknowledged, however, that the residential site is owned by his superintendent, and that the marshes adjoining the most southern bend in the northern portion of the creek, and the southern portion of the creek, are owned by JSI.

         
         

      4. Except for the cleared residential site at its western end, the creek is surrounded by vegetation and salt marshes. The vegetated portion of the marsh is marked by a clearly delineated edge which separates it from the creek bottom. The dominant species of vegetation in the marsh are Juncus and

         Spartina. The marsh serves as a habitat and breeding ground for numerous species, including fiddler crabs, mussels, barnacles, mollusks, faunal communities and gastropods. In addition, the marsh is beneficial because of its biotic productivity and entrapment of nutrients and sediments. For this reason, the habitat should be maintained.

         
         

      5. Some forty years ago, the portion of the creek that Hodges intends to dredge was eight to twelve feet deep. However, dredging of the ICW by the Corps of Engineers and the placement of fill at the site of the Atlantic Boulevard Bridge have contributed to the shallowing of the creek over time. Today, portions of the creek are exposed and impassable under low tide conditions. Indeed, many parts of the creek are dry during the low tide phase of the ICW. At high tide, the creek is flooded to an approximate depth of four feet. Hodges proposes to dredge the creek channel to a uniform depth of five feet below mean low water (MLW) with side slopes at a 3:1 ratio to restore navigational access from his upland property to the ICW. He has represented that his use of the channel will be

         restricted to one, or possibly two, small boats for personal use and enjoyment. When completed, the creek channel will have a depth of nine feet at high tide, or an average depth of seven feet over a diurnal cycle.

         
         

      6. In his amended application, Hodges proposed to confine his dredging to existing creek channels, and to not disturb the actual body of the salt marsh or the vegetation bordering the creek. It is noted that there is no vegetation growing in the existing creek bottom. However, at hearing he conceded that dredging "may include some minor removal of isolated patches of

         grass growing in the creek channel". One such patch of grass lies in the elbow of the canal which reaches south of Hodges' property, a patch separated from the main body of the marsh by a five foot wide slough deep enough to be navigated at high tide. Hodges estimates this patch of grass to be less than 1/100 of an acre in size (10' x 40') and maintains the effect of its removal would be negligible.

         
         

      7. The excavation will be effected by means of a Mud Cat hydraulic dredge which operates by suctioning the sediment and water into a pipe. The dredge material (sediment/water mixture) will then be pumped into a series of containment cells on a 12.5 acre upland spoil site that lies approximately one-half mile northeast of the project. Any discharge from the spoil site will be to Greenfield Creek, a tidally influenced creek connected to the St. Johns River.

         
         

      8. The natural grade of the existing creek bottom is at or below the mean low water datum. At high tide the existing creek is 4.3 feet deep at its deepest point and gradually slopes upward to a depth of 2.4 feet near the marsh. The elevation of the creek where it meets the marsh is close to mean high water. Even so, the channel width does not always correspond with the mean high water line boundaries of the creek, and creek waters sometimes inundate and extend back into the marsh at high tide. Because Old Pablo Creek is tidally influenced, any water quality violations in the northern portion of the creek can be expected to also have an adverse effect in the southern portion as well.

         
         

   3. Creek Width

      
      

      1. Petitioner has raised the issue of whether the creek is as wide as Hodges represents it to be on the drawings attached to the amended application. This is significant since

         (a) the engineering plans are based upon the assumption that the measurements in the application are correct, (b) the proposed dimensions (depth and side slopes) of the new channel are dependent upon the existing creek having a minimum width of from sixty to eighty feet, as represented by Hodges, and (c) any excavation outside of the existing channel will result in the removal (destruction) of vegetation and marsh. In his application, Hodges reflects the top width of the creek to be sixty to eighty feet, which width will enable him to dredge the channel to an average depth of five feet below MLW, and maintain a side slope ratio of 3:1. This ratio is necessary because of the composition of the sediment in the creek.

      2. The minimum top width required to excavate a channel with 3:1 side slopes to a depth of five feet below MLW is fifty- four feet. Petitioner's exhibit 4 identifies five points along the eastern half of the northern portion which have been measured by the parties to determine the actual width of the creek. Although only five points were measured, it may be inferred that these distances are representative of the creek's width throughout its eastern half. At points five through eight, the widths are forty-nine, thirty-five, fifty and fifty feet, respectively, which are less than the measurements contained in the application. If the channel is constructed with the minimum top width (54 feet) required to have 3:1 side slopes, it will result in the elimination of 6 feet of marsh at point 5, 19.5 feet of marsh at point 6, and 4.1 feet of marsh at both points 7 and 8. This equates to the elimination of approximately .33 acres of marsh. Since the above measurements are representative of the eastern half of the northern portion, other areas of vegetation, albeit in unknown proportions, would also have to eliminated. If, for example, applicant attempts to construct a channel within the confines of the portion of the creek that has a top width of only thirty-five feet (point 6), the maximum channel that could be constructed would be V-shaped with a depth of one foot at low tide. Assuming the remaining part of the channel was excavated to -5' MLW, a stagnant area would develop in this portion of the channel and adversely affect water quality. However, to counter the problem at point 6, Hodges intends to remove one patch of grass 10' by 40' in size to achieve the desired width. Any adverse effects on the adjacent marsh at that particular point would be negligible.

         
         

      3. Because the estimated creek width is not accurate, even the agency now concedes the engineering plans are no longer useful. As a condition to the issuance of a permit, DER has suggested that Hodges be required to submit new certified engineering drawings depicting the proposed cross-section of the channel. It also suggests that the proposed cross-section comply with the top-widths depicted in applicant's exhibit 53, and depict side-slopes of three to one. It further suggests that a condition for the issuance of any permit be a requirement that the 3:1 ratio be maintained, and that other than point 6, no other grass be removed. Finally, the agency proposes that if the new plans and conditions do not permit a -5 MLW depth, the proposed depth be reduced accordingly. However, the evidence supports a finding that either vegetation must be removed at various points along the eastern half of the creek in order to maintain a 3:1 ratio for side slopes, or the depth must be reduced. By reducing the depth at certain points, stagnant

         areas in the creek will develop, thereby adversely affecting the quality of the water. Further, as noted hereinafter, the validity of the flushing analysis performed by applicant's experts rests upon the assumption that a -5' MLW uniform depth will be used. Finally, the applicant has not given reasonable assurance that the marsh and habitat will not be adversely affected by the elimination of the vegetation which is necessary to achieve the desired depth and concomitant 3:1 ratio.

         Therefore, the alternative conditions suggested by DER are neither reasonable or appropriate.

         
         

   4. The Spoil Area

      
      

      1. The spoil area to be used by applicant is a 12.5 acre upland disposal site approximately one-half mile northeast of Hodges' property. Applicant does not own the upland spoil site but has obtained easements from the owner which expire in March, 1987. In other words, he must complete all work on the project by that date or lose access to the property.

         
         

      2. The proposed spoil site is completely diked, and is sectioned off into three sections by interior dikes with overflow pipes. Internal baffles and silt fences are also designed into the area. Uncontradicted testimony established that the spoil area is "unusually well designed".

         
         

      3. Any discharge from the spoil area will be to Greenfield Creek, a tidally influenced creek connected to the St. Johns River. Discharge, if any, will be outfall from an overflow structure in the third section of the spoil area to a dump area land then by sheet flow to salt marshes adjacent to Greenfield Creek. The vegetation in Greenfield Creek consists of a salt marsh expanse of Spartina alterniTlora and Juncus roemerianus. Both species survive in and are indicative of regular introduction of saline waters, and show high tolerance to varying salinity levels. If saline waters from Old Pablo Creek were introduced into Greenfield Creek, it would have no adverse impact on the Greenfield Creek ecosystem.

         
         

      4. The size of the site was originally designed for a project of 100,000 cubic yards. The site will retain all

         |effluent from the dredging. The expected total effluent, both sediment and water, is roughly 5.3 million cubic feet of material, assuming a ratio of 6.7 cubic feet of water for each

         |cubic foot of sediment dredged. This is slightly lower than the 5.4 million cubic feet total capacity of the site.

      5. The supernatant from the discharge being deposited into the first cell of the spoil area will only flow into the next cell when the first cell fills and the level of the supernatant rises above the top of the vertical drain pipe overflow structure. If rainfall events cause the cells to fill with water during dredging and discharge operations, the discharge to the next cell or to Greenfield Creek will be primarily fresh water. This will occur because introduction of fresh rainwater into the brackish water from the dredge area will cause stratification, and the fresh rainwater will form a layer on top that will flow into the overflow structure.

         
         

   5. Turbidity Effects

      
      

      1. In removing the mud bottom from the creek to a depth of -5' MLW, some turbidity will occur. This is a natural by- product of using the hydraulic dredge. However, the amount of turbidity, and its effect on the waters at the dredge site and discharge point, are in issue.

         
         

      2. State water quality standards prohibit the discharge of water with a turbidity level greater than twenty-nine nephelometric units (NTU's) above the background levels of the receiving waters. The evidence indicates that the background turbidity levels at the creek are now in the range of ten to twenty NTV's. Excessive levels can result in adverse effects on local biota such as decreasing productivity by reducing light penetration. Excessive turbidity can also be expected to suffocate organisms.

         
         

      3. The area to be dredged contains sediment deposited from the surrounding salt marsh and carried in from the ICW. The sediment is composed of 14% clay, with the remainder being sand and silt. This was confirmed by a laboratory analysis conducted by JSI. As a general rule, the coarser the material, the faster it tends to settle out thereby creating less turbidity problems. Therefore, sand, which is of a grain size, can be expected to settle out quickly while silt takes somewhat

         longer. However, clay size particles are much smaller than silt and do not settle out as easily. Applicant made no laboratory analysis of sediment and consequently he erroneously assumed the mud to be sand and silt, and did not take the clay particles into account.

         
         

      4. The dredging in the creek will cause the turbidity levels to rise to 150 NTU's. However, the placement of a turbidity screen at the entrance to the ICW will prevent the

         release of this turbidity into that water body. Therefore, if a permit is issued, such screens should be used by Hodges at the dredge site.

         
         

      5. At the spoil site, clay size particles will also be included in the matter pumped for discharge. If these particles do not settle out, or are not treated, their discharge into Greenfield Creek (a jurisdictional water) will cause violations of the turbidity standards. To counter their effects, flocculants (chemicals) should be added when necessary to the confined material to aid the particles in settling. If a permit is issued, this should be made a condition in the permit.

         
         

   6. Dissolved Oxygen Impacts

      
      

      1. The dissolved oxygen (DO) levels in the creek fluctuate on a daily and seasonal basis. As a general rule, DO levels tend to be lower in warmer weather and during the early morning hours. Therefore, a "worst case" situation will generally occur in the summer months in the early part of the day.

         
         

      2. State water quality standards contained in Rule 17- 3.121(13), F.A.C., provide that in predominately marine waters, the concentrations of DO "shall not average less than 5 milligrams per liter in a 24-hour period and shall never be less than 4 milligrams per liter." Sampling conducted by petitioner at 5:00 a.m. in early July, 1986 during high tide revealed readings ranging from 3.06 mg/1 in the western portion of the creek to 4.59 mg/1 at the mouth of the creek. Dissolved oxygen levels in the ICW ranged from 3.94 to 4.68 mg/1. Hodges also sampled the creek and ICW in the late morning or early afternoon on August 6,1986 and determined DO levels to be 4.8 mg/1 in the creek and 5.8 mg/1 in the ICW. Testing at that hour of the day produced higher values than those found by JSI. The readings collectively confirm that DO levels in the creek are approximately 1.0 mg/1 less than the DO levels in the ICW. This deficit is primarily caused by the high oxygen demand exerted by the adjacent marsh and muds in the creek. This situation will not be changed by the dredging.

         
         

      3. The flushing time of the creek channel is an important factor in predicting post-dredging impacts on water quality. Flushing time determines how rapidly waters of the ICW will exchange and mix with the water in the creek channel. Both Hodges and JSI conducted tidal prism studies to determine how many tidal cycles would be required to flush a hypothetical

         pollutant to 10% of its initial concentration. Under worst case conditions, the channel is expected after dredging to flush every 3 to 4 tidal cycles or 1.6 days. Under more favorable conditions, the creek is expected to flush every 2 to 3 tidal cycles. This compares with the current system which flushes almost 100% every tidal cycle or once every twelve hours. The increased flushing time is due to the significantly greater volume of water that will enter the creek channel after dredging. Because of increased channel depths, the water will move at a slower velocity. Therefore, the oxygen consuming components have a longer period of time to react in the water column. This in turn will cause reductions in DO levels of between .7 mg/l and 1.5 mg/l in the creek. This was confirmed through tidal prism modeling performed by JSI. In this regard, it is noted that JSI's modeling was more sophisticated, better calibrated, and its assumptions were more accurate and reasonable. Consequently, its testing results are considered to be more reliable and persuasive than that of applicant. It must also be recognized that the deepening of those areas that are currently exposed at low tide will allow water to move more easily through the channel and remove some oxygen demanding sediments that now draw from a shallow water column. This will tend to have a beneficial effect on water quality. However, the overall impact of these beneficial effects is unknown, and it was not demonstrated that the otherwise adverse effect on DO will be offset or minimized by the unmeasured impact of deepening the shallow areas. Therefore, applicant has not given reasonable assurance that water quality standards will not be violated by the project. At the same time, it must be further noted that a reduction in the channel depth due to the smaller width of the creek will alter the results of the tidal prism studies, as well as negate some of the beneficial effects caused by deepening the shallow portions of the channel. To what extent the studies are changed, or benefits will be reduced, is not of record.

         
         

   7. Other Effects of Project

   
   

   1. As noted earlier, Hodges intends to use one or two boats on the deepened channel. The use of the boats will not introduce pollutants in any significant quantity.

      
      

   2. Hodges proposes to construct his docks and place rip- rap on the northern side of the widest portion of the creek channel. Little, if any, vegetation will be eliminated by these activities. The use of rip-rap for the construction of the bulkhead is the most environmentally sound means of bulkheading,

      and will stabilize the shoreline as well as provide habitat for aquatic organisms.

      
      

   3. The dredging of the creek channel will improve the navigability of the creek, and permit the use of boats in areas where access is now impossible under low-tide conditions. In addition, the sharp bends in the creek will prevent the operation of boats at high speeds. JSI's concern that boats may run aground once they leave the northern portion and enter the southern portion is not meritorious since few, if any, are expected to use the latter part of the creek, and the sharp bends will force boaters to operate at low speeds.

      
      

   4. Shoaling or erosion of the southern portion will not result from the proposed activities. Indeed, an increased flushing and introduction of new flow into the system may benefit the northern portion. Any situation occurring in that part of the creek should not exceed the rate of siltation occurring under current conditions.

      
      

   5. The benthic organisms which populate the bottom of Old Pablo Creek include crabs, mussels, barnacles and other species normally associated with estuarine systems. The removal of the mud bottom in the dredging operation may remove some of these organisms. However, this should not significantly change the habitat of these benthic organisms. Rapid recolonization by these species would be expected with recolonization substantially underway within forty-eight hours

      
      

      CONCLUSIONS OF LAW

      
      

   6. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), F.S. (1985).

      
      

   7. At the outset, the question concerning JSI's standing must be resolved. In its post-hearing pleading, Hodges has asserted that JSI (1) failed to demonstrate that it owns any property affected by the project, and (b) that it failed to show how its environmental interests were adversely affected by the project. Although not so labeled, this argument has been treated by the undersigned as a motion to dismiss JSI for failure to demonstrate that its substantial interests are affected by the agency action. Having considered the same, the motion is hereby denied. Parenthetically, it is noted that this proceeding is not the appropriate forum to adjudicate the boundary lines of the litigants' property. Chattahoochee Valley

      Industries, Inc. and Roy B. Walden, Jr. v. Leqette and Department of Environmental Regulation, 8 FALR 2333 (1986). However, even Hodges has conceded that JSI is the owner of the marsh that borders on the southern portion of the creek, as well as the marsh which fronts on the southern most bend in the northern portion of the creek. As such, any removal of vegetation or marsh, or deterioration in the quality of water, would affect its substantial interests.

      
      

   8. The burden of proving entitlement to the requested permit rests upon the applicant. J.W.C. Company, Inc. v. Department of Transportation, 396 So. 2d 778 (Fla. 1st DCA 1981); Rule 17-103.130, F.A.C. To meet this burden, Hodges must give "reasonable assurance based on plans, test results or other information that the proposed dredging or filling will not violate water quality standards" (Rule 17-12.070(1),F.A.C.), and "reasonable assurance that the project is not contrary to the public interest" (s. 403.918(2), F.S.).

      
      

   9. In this proceeding, only the applicability of water quality and turbidity standards has been raised. These standards are applicable at both the site of the dredging as well as the site of the spoil area discharge. Two rules are relevant to the water quality standard issue. First, Rule 17- 3.121(13), F.A.C. provides that:

      
      

      in predominately marine waters, the concentrations shall not average less than 5 milligrams per liter in a 24-hour period and shall never be less than 4 milligrams per liter. Normal daily and seasonal fluctuations above these levels shall be maintained in both predominately fresh and predominately marine waters.

      
      

      Rule 17-3.011(5), F.A.C., further provides that:

      
      

      Pollution which causes or contributes to new violations of water quality standards or to continuation of existing violations is harmful to the waters of this State and shall not be allowed.

      
      

      Here the more credible and persuasive evidence reveals that in a worst case scenario the project will cause DO concentrations in the creek to decrease by as much as 1.5 mg/1. Although certain beneficial effects will accrue by virtue of dredging various

      shallow areas, the extent of such, and their impact on the lowered DO concentrations, is unknown. Therefore, it is_ concluded that Hodges has failed to give reasonable assurance that the proposed dredging will not violate water quality standards. Rule 17-12.070(1), F.A.C. Morever, the project will cause or contribute to "new violations of water quality standards or to continuation of existing violations." Rule 17- 3.011(5), F.A.C.2

   10. The evidence supports a conclusion that no discharge from the spoil area should reasonably be expected. In the event such a discharge should occur, it would most likely result from heavy rainfalls. Even then, the record demonstrates that the discharge would exhibit very low salinity, would not cause a violation of any standards, and would be within the range of salinities that naturally occur in Greenfield Creek. Therefore, it is concluded that reasonable assurance has been given that the project will not cause water quality violations at the spoil site area.

       
       

   11. Although the use of a hydraulic dredge will eliminate most turbidity problems arising from the dredging in Old Pablo Creek, the evidence supports a conclusion that a turbidity screen should be used at the entrance to the ICW to prevent the release of turbidity into that water body. Applicant should also be required to use flocculants at the spoil site to aid the particles in settling, particularly since up to 14% of the particles are made of clay. With these conditions, reasonable assurance has been given that no water quality standards for turbidity will be violated.

       
       

   12. Applicant has proposed to limit its dredging to the existing creek channel except for the removal of one patch (10' x 40') of vegetation at point 6 on petitioner's exhibit 4. It was shown that this isolated removal would have negligible effect on the environment. However, a more basic problem arises because the channel width reflected in the application does not coincide with the actual top width of the creek. Therefore, applicant must do one of two things: remove additional vegetation and marsh along the eastern half of the channel so as to attain the desired width, depth and side slope ratio, or reduce the channel depth to conform with the actual width. In neither case has reasonable assurance been given that the water quality will not be violated under those conditions, or that the removal of additional marsh will not adversely affect the existing biological system. In addition, by removing the marsh, the issue of mitigation may come into play, and has not been

       addressed-by any party. The agency's suggestion that new drawings be submitted with certain conditions does not remedy the above infirmities, and must therefore be rejected.

       
       

   13. Subsection 403.918(3), F.S. (1985) prescribes seven criteria to be considered in determining whether a project is not contrary to the public interest:

       
       

       1. Whether the project will adversely affect the public health, safety, or welfare or the property of others;

          
          

       2. Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;

          
          

       3. Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;

          
          

       4. Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;

          
          

       5. Whether the project will be of a temporary or permanent nature;

          
          

       6. Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and

          
          

       7. The current condition and relative value of functions being performed by areas affected by the proposed activity.

          
          

          First, the record reflects that the property of JSI may be adversely affected by the project. This will occur if vegetation and marsh is removed in the southernmost bend of the northern portion of the creek where such removal is necessary in order to attain the desired width, depth and side slopes for the new channel. Secondly, if constructed to the depth proposed, the project will eliminate productive marshes that now serve as important nursery and feeding grounds for the local biological community. Aside from these two criteria, all other statutory

          criteria have been satisfied. However, in view of these shortcomings, it must be concluded that applicant has failed to demonstrate that the project is not contrary to the public interest.

          
          

   14. There being no reasonable assurance that water quality standards will not be violated, and that the project is not contrary to the public interest, the application must bee!~tL denied. Rule 17-12.070(11), F.A.C.; Subsection 403.918(3), F.S. (1985). Such a result is unfortunate, given the time, money and effort expended by Hodges in attempting to secure a permit.3 However, the evidence mandates this result.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that application number 16-39644 of George H. Hodges, Jr. for a dredge and fill permit be DENIED.

DONE and ORDERED this 2nd day of December, 1986 in Tallahassee, Florida.

DONALD R. ALEXANDER, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1986.

ENDNOTES

1/ With the exception of one additional finding of fact, DER adopted in toto the proposed findings of applicant.

2/ An earlier application was also denied in Hodges v. Department of Environmental Regulation, DOAH Case No. 79-2326, Final Order entered May 23, 1980.

3/ A deterioration of DO levels in the order of 1.5 mg/1 can hardly be considered "theoretical" or "negligible". Therefore, the cited case of Caloosa Property Owners Assn., Inc. vs. DER,

462 So 2d. 523 (Fla. 1st DCA 1985) is inapposite.

COPIES FURNISHED:

Victoria J. Tschinkel, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32301-8241

Thomas M. Baumer, Esquire Deborah D. Barton, Esquire Post Office Box 4788 Jacksonville, Florida 32201

Bradford L. Thomas, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32301-8241

Segundo J. Fernandez, Esquire

M. Christopher Bryant, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507

APPENDIX

Petitioner:

1. Covered in finding of fact 3

   
   

2. Covered in findings of fact 4 and 6.

   
   

3. Covered in findings of fact 4 and 5 except the last two sentences which have been rejected for the reasons set forth in conclusion of law 2.

   
   

4. Covered in finding of fact 7.

5. Covered in finding of fact 6.

   
   

6. Covered in finding of fact 4.

   
   

7. Covered in findings of fact 1 and 2.

   
   

8. Covered in finding of fact 2.

   
   

9. Covered in findings of fact 2 and 8.

   
   

10. Covered in finding of fact 9.

    
    

11. Covered in finding of fact 7.

    
    

12. Covered in finding of fact 11.

    
    

13. Covered in findings of fact 12 and 13.

    
    

14. Covered in finding of fact 8.

    
    

15. Covered in findings of fact 11 and 12.

    
    

16. Covered in findings of fact 12 and 13.

    
    

17. Covered in finding of fact 10.

    
    

18. Covered in finding of fact 12.

    
    

19. Covered in finding of fact 12.

    
    

20. Covered in finding of fact 12.

    
    

21. Covered in finding of fact 12.

    
    

22. Covered in finding of fact 13.

    
    

23. Covered in findings of fact 19 and 20.

    
    

24. Covered in finding of fact 21.

    
    

25. Covered in findings of fact 22 and 23.

    
    

26. Rejected since the use of screens and flocculants can assure compliance with state standards.

    
    

27. Covered in finding of fact 26.

28. Covered in finding of fact 24.

    
    

29. Covered in finding of fact 25.

    
    

30. Covered in finding of fact 25.

    
    

31. Covered in finding of fact 25.

    
    

32. Covered in finding of fact 26

    
    

33. Covered in finding of fact 26

    
    

34. Covered in finding of fact 26

    
    

35. Covered in finding of fact 26

    
    

36. Covered in finding of fact 26 Respondent/applicant:

1. Covered in finding of fact 1.

   
   

2. Covered in finding of fact 2.

   
   

3. Covered in findings of fact 2 and 5.

   
   

4. Covered in findings of fact 2 and 4.

   
   

5. Covered in finding of fact 7.

   
   

6. Covered in finding of fact 7.

   
   

7. Covered in finding of fact 7.

   
   

8. Covered in findings of fact 7 and 27.

   
   

9. Covered in finding of fact 9.

   
   

10. Covered in findings of fact 9 and 14.

    
    

11. Covered in finding of fact 15

    
    

12. Covered in finding of fact 16

    
    

13. Covered in finding of fact 15

    
    

14. Covered in finding of fact 18

    
    

15. Covered in finding of fact 4.

    
    

16. Rejected as being unnecessary 17. Covered in finding of fact 16

1. Covered in findings of fact 2 and 8.

   
   

2. Covered in finding of fact 8.

   
   

3. Covered in findings of fact 8 and 13.

   
   

4. Rejected as being contrary to the evidence.

   
   

5. Covered in finding of fact 10.

   
   

6. Covered in finding of fact 24.

   
   

7. Covered in finding of fact 25.

   
   

8. Covered in finding of fact 25.

   
   

9. The first sentence is not supported by the testimony on TR

   299 as cited by applicant. The second sentence is unnecessary to a resolution of the issues.

   
   

10. Covered in finding of fact 26.

    
    

11. Covered in finding of fact 26.

    
    

12. Covered in finding of fact 26.

    
    

13. Covered in finding of fact 26.

    
    

14. Covered in finding of fact 7.

    
    

15. Covered in finding of fact 26.

    
    

16. Rejected as being contrary to the more credible and persuasive evidence.

    
    

17. Covered in finding of fact 25.

    
    

18. Rejected since screens will be necessary to control turbidity.

    
    

19. Rejected as being contrary to the more credible and persuasive evidence.

    
    

20. Covered in finding of fact 23.

    
    

21. Covered in findings of fact 17 and 23.

    
    

22. Covered in finding of fact 27.

    
    

23. Covered in finding of fact 28.

    
    

24. Covered in finding of fact 28.

    
    

25. Covered in finding of fact 29.

    
    

26. Covered in finding of fact 29.

    
    

27. Covered in finding of fact 29.

    
    

28. Covered in finding of fact 30.

Respondent/DER

1. Does not require a ruling since this finding merely adopts the proposed findings of applicant.

   
   

2. Covered in finding of fact 13.

Docket for Case No: 85-000801

Orders for Case No: 85-000801