STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM DEPKIN, )

)

Petitioner, )

vs. ) CASE NO. 89-1309

)

DEPARTMENT OF ENVIRONMENT )

REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on May 25, 1989, in Miami, Florida, before Stuart M. Lerner, a duly designated Hearing Officer of the Division of Administrative Hearings

APPEARANCES

For Petitioner: William Depkin, pro se

7743 S.W. 72nd Court Miami, Florida 33143

For Respondent: Richard Grosso, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

The ultimate issue in the instant case is whether Petitioner's application for a dredging permit should be granted.

PRELIMINARY STATEMENT

On August 4, 1988, Petitioner applied to the Department of Environmental Regulation (Department) for a permit to dredge 45 cubic yards of material in Florida Bay immediately adjacent to the seawall on his bayfront property in Key Largo. On February 9, 1989, the Department's Division of Water Management issued a notice of its intent to deny Petitioner's application. The notice also informed Petitioner of his right to request a formal hearing on the matter. On February 27, 1989, Petitioner requested such a hearing. Thereafter, on March 13, 1989, the matter was referred to the Division of Administrative Hearings for the assignment of a Hearing Officer.

At hearing, Petitioner presented, in addition to his own testimony, the testimony of three other witnesses: David Bishof, the Department employee assigned to evaluate the proposed dredging project; Melva Depkin, Petitioner's wife; and Lu Popps, the owner of a motel situated on land adjoining the Depkins' bayfront property. Petitioner also offered into evidence a videotape and

fifteen photographs of the proposed dredging site and surrounding area. All of these exhibits were admitted. The only witness to testify on behalf of Respondent was Bishof. In addition to his testimony, Respondent introduced four exhibits, all of which were received into evidence: Petitioner's permit application; Bishof's written appraisal of the application; the written evaluation of Bishof's supervisor of the proposed dredging project; and a diagram of the proposed dredging site and surrounding area, with markings which were added by Petitioner at hearing.

The parties were advised on the record at hearing that they had to file their proposed recommended orders or written arguments within ten days of the filing of the hearing transcript with the Division of Administrative Hearings. The hearing transcript was filed with the Division on July 13, 1989. On July 21, 1989, Respondent filed its proposed recommended order. That same day, Petitioner filed a motion seeking an extension of time until July 28, 1989, to file his proposed recommended order. The motion was granted. Petitioner filed his proposed recommended order on July 24, 1989. The factual assertions made in the parties' proposed recommended orders have been carefully considered and are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the record evidence, the Hearing Officer makes the following Findings of Fact:

1. Petitioner and his wife own residential property on the northwest side of Key Thargo in Monroe County, Florida. The property is situated on Florida Bay, a Class III Outstanding Florida Water. The area surrounding the Depkins' property is predominately residential, but there is some nearby commercial development, including a motel which is located on an adjoining parcel.

   
   

2. A seawall runs the entire length of the shoreline of the Depkins' property. An L-shaped dock and a covered dock extend out into the water from opposite ends of the seawall forming a cove. The Depkins, who live in Key Thargo only a portion of the year, have a boat which they currently moor alongside the L-shaped dock in that area of the cove where the depth of the water is the greatest. The operation of the boat in this area of the cove has not caused any obvious damage to the bay bottom. Two of the Depkins' boats have sunk in stormy weather while moored alongside the L-shaped dock. Therefore, they now dock their boat at a marina when they are away from Key Largo.

   
   

3. The Depkins propose to dredge a relatively small 600 square foot area of bay bottom, which they own, in the cove immediately waterward of the seawall. The depth of the water in this area of the cove now ranges from six inches to a foot and a half. The proposed dredging project would increase the depth of the water by two feet and thereby enable the Depkins to dock their boat alongside the seawall, a location they consider safer than the one they presently use for this purpose.

   
   

4. The bay bottom which the Depkins propose to dredge consists primarily of bedrock which is irregularly shaped. Most of the bedrock is exposed, however, some of the depressions in the bedrock are filled with sediment. The remaining portion of the bay bottom is covered with sand which is inhabited by various living organisms.

   
   

5. Approximately 50% to 75% of the proposed dredging site is covered with vegetation. The dominant vegetation is live algae attached to the exposed

   bedrock. Various species of algae are present, including red algae, which is the preferred habitat for juvenile lobster. A small portion of the site is covered by live turtlegrass. These few patches of turtlegrass are found in the depressions in the bedrock that are filled with sediment. Without sediment turtlegrass cannot grow.

   
   

6. Algae and turtlegrass play significant roles in the production and sustenance of marine life. They have considerable value as a habitat and as a source of food for other living organisms. In addition, they help reduce turbidity and water pollution.

   
   

7. If the Depkins dredged the proposed project site, all existing biota within the boundaries of the site would be eliminated and it is unlikely that the area would experience a complete or significant recovery.

   
   

8. About twelve to fourteen years ago the Depkins dredged sand from the bay bottom near their L-shaped dock. Almost 30 years ago the owners of the motel situated on the parcel of land adjoining the Depkins' property undertook a similar sand dredging project in the bay. Neither of these prior dredging projects resulted in the long-term loss of any vegetation. If anything, the vegetation in these areas has increased.

   
   

9. Unlike these previous projects, the project which the Depkins now propose to undertake involves the dredging of primarily bedrock, not sand. 1/ Revegetation typically does not occur following such dredging activity. It is the exception rather than the rule. Therefore, more likely than not, the Depkins' proposed dredging project, if permitted, will result in the permanent loss of vegetation and consequently will have a long-term adverse effect on ambient water quality, the conservation of fish and other aquatic wildlife, and marine productivity. Furthermore, if the project was completed and the Depkins were to begin docking their boat alongside the seawall, there would be an increase in conflict turbidity attributable to the movement of the boat in and out of this area of shallow water. 2/ No measures to mitigate these adverse consequences have been proposed or suggested. 3/

   
   

10. There are many other owners of bayfront property in the Florida Keys who, like the Depkins, are desirous of dredging an access channel to the landward extent of their property. The Department's current practice is to deny these property owners permission to engage in such dredging activity. Although in the past year the Department has processed only about a half dozen permit applications for dredging projects similar in size and scope to that proposed by the Depkins, there would likely be a substantial increase in the number of permit applications were the Department to announce, through its disposition of the Depkins' permit application, that it was henceforth allowing such projects. If the Depkins and these other property owners were permitted to undertake such projects, the resulting damage to the marine environment would be widespread. The impact would extend far beyond the relatively small area of bay bottom that the Depkins propose to dredge.

    
    

11. The Department has proposed the following reasonable alternative to the proposed dredging project which would also provide the Depkins with improved access to their residence by boat:

    
    

    Extend the existing [L-shaped] dock offshore to a terminal platform located at a water depth of at least four (4) feet MLW and elevate the intermediate

    portion of the dock to at least five (5) feet above MHW to prevent boat mooring in shallower areas.

    
    

    CONCLUSIONS OF LAW

    
    

12. Pursuant to Section 403.913(1), Florida Statutes,

    "[n]o person shall dredge or fill in, on, or over surface waters [of the State of Florida] without a permit from the [Department of Environmental Regulation], unless exempted by statute or department rule." The Depkins propose to engage in dredging activity in surface water within the jurisdiction of the Department. Their proposed project is not exempted from permitting requirements by either statute or Department rule. Accordingly, before the project may commence, a permit must be obtained from the Department in accordance with Section 403.913(10) Florida Statutes.

    
    

13. The statutory criteria that the Department must consider in determining whether to grant a dredging permit application are set forth in Section 403.918, Florida Statutes. Subsection (1) of Section 403.918, Florida Statutes, prohibits the Department from granting a permit application "unless the applicant provides the department with reasonable assurance that water quality standards will not be violated." Florida Administrative Code Rule 17- 12.070(1), which was adopted by the Department to implement this statutory provision, requires that such "reasonable assurance" be based on plans, test results or other information."

    
    

14. Subsection (2) of Section 403.918, Florida Statutes, requires an applicant to also give "reasonable assurance that the project is not contrary to the public interest." If the project is within an Outstanding Florida Water, however, Section 403.918(2), Florida Statutes, imposes on the applicant the greater burden of providing "reasonable assurance that the project will be clearly in the public interest." The Depkins propose to dredge in Florida Bay, which is an Outstanding Florida Water pursuant to Florida Administrative Code Rule 17-3.041. Therefore, in addition to giving "reasonable assurance that water quality standards will not be violated," they must also provide the Department with "reasonable assurance that the[ir] project will be clearly in the public interest."

    
    

15. Subsection (2)(a) of Section 403.918, Florida Statutes, mandates that the Department "consider and balance" the following in determining whether a project is "clearly in 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 archeological 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.

       
       

16. In evaluating a proposed dredging project against these criteria, the Department, pursuant to subsection (2)(b) of Section 403.918, is obligated to consider "measures proposed by or acceptable to the applicant to mitigate adverse effects which may be caused by the project." No such mitigating measures, however, have been suggested in the instant case, with the exception of the suggestion that turbidity curtains be employed to reduce construction- related turbidity.

    
    

17. Furthermore, pursuant to Section 403.919, Florida Statutes, the Department must take into consideration, not only the impact of the project for which the permit is being sought, but also the impact of "projects which are existing or under construction or for which permits or jurisdictional determinations have been sought" and "projects which are under review, approved, or vested pursuant to S. 380.06, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based on land use restrictions and regulation." In the instant case, there are other bayfront property owners in the Florida Keys who would like to dredge an access channel to their land. The cumulative impact of these potential dredging projects must also be taken into account in deciding whether the Depkins' permit application should be granted.

    
    

18. The Outstanding Florida Water in which the Depkins propose to dredge is located within Monroe County. Therefore, not only must the Depkins meet the foregoing requirements applicable to all dredging projects in Outstanding Florida Waters, they also must show that their project does not violate the following pertinent provisions of Florida Administrative Code Rule 17-12.410(1): 4/

    
    

    Subject to the provisions of the mitigation section of this Part (Rule 17-12.450), no dredge and fill permit shall-be issued for any activity in Outstanding Florida Waters in Monroe County if such activity:

    (a) Alone or in combination with other activities damages the viability of a living stony coral community (Scleraocinia and Milleporina), soft coral community (Alcynoacea and Pennatulacea), macro marine algae community (Chlorophyta, Phaeophyta and Phodophyta), sponge bed community (Porifera), or marine seagrass (Hydrocharitaceae and Cymodoceae) bed community. This prohibition shall not include algae unattached to the bottom, nor shall it include algae growing landward of the mean high water line or

    growing as an epiphyte or periphyte on woody plants. For the purposes of this Part a marine seagrass bed or marine macroalgae community means an area dominated by the listed biota having an a real extent of at least 100 square feet. This paragraph does not imply that DER cannot restrict the impact on smaller areas for such species based on other DER rules.

    
    

19. The Depkins propose to dredge a 600 square foot area of bay bottom immediately waterward of their seawall. This area is presently dominated by marine macroalgae attached to the bay bottom, which constitutes a "marine macroalgae community," within the meaning of Florida Administrative Code Rule 17- 12.410(1)(a). The Depkins' proposed dredging project will damage the viability of this community. Accordingly, in accordance with Florida Administrative Code Rule 17-12.410(1)(a), the project should not be permitted.

    
    

20. Moreover, the Depkins have failed to provide the "reasonable assurances" required by Section 403.918(1) and (2), Florida Statutes. The preponderance of the evidence adduced at hearing, when viewed in light of the criteria set forth in Sections 403.918(2)(a) and 403.919, Florida Statutes, does not establish that there is a reasonable likelihood that the proposed project "will be clearly in the public interest;" nor does the greater weight of the evidence suggest that it is reasonably likely that "water quality standards will not be violated" if the Department permitted the project. If anything, it appears that both water quality and the public interest would suffer, given that there would likely be a permanent loss of valuable and productive vegetation which would not be offset or mitigated. Furthermore, granting the Depkins' permit application would set a precedent which, if followed in future cases, would adversely impact areas well beyond the boundaries of the proposed dredging site. Accordingly, the Depkins' permit application should be denied on the additional ground that they have not met the permitting requirements of Section 403.918, Florida Statutes.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that the Department of Environmental Regulation issue a final order denying the Depkins' permit application.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 8th day of August, 1989.

STUART M. LERNER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division f Administrative Hearings this of 8th day of August, 1989.

ENDNOTES

1/ While there is sand on the bay bottom in the proposed project area, it is not predominant.

2/ These findings regarding the likely consequences of the Depkins' proposed dredging project are based on the testimony of David Bishof, the Department of Environmental Regulation employee who was assigned to evaluate the Depkins' permit application. During their testimony, the Depkins opined, contrary to the prediction made by Bishof, that their project, if permitted, would not produce any significant long-term adverse consequences. The Hearing Officer has relied on Bishof's opinion rather than the Depkins' because Bishof has more knowledge and expertise regarding these matters than do the Depkins.

3/ Although construction-related activity generally results in a temporary increase in turbidity levels in waters surrounding such activity, the Depkins propose to use turbidity curtains which would minimize any such construction- related increase in turbidity levels

4/ This rule was adopted pursuant to Section 403.912(1), Florida statutes, which authorizes the Department to adopt rules including "stricter permitting and enforcement provisions within Outstanding Florida Waters, aquatic perserves, areas of critical state concern, and areas subject to Chapter 380 resource management plans adopted by the Administration Commission, when the plans for an area include waters that are particularly identified as needing additional protection, which provisions are not inconsistent with the applicable rules adopted for the management of such areas by the department and the Governor and Cabinet."

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-1309

Both Petitioner and Respondent filed proposed recommended orders.

Respondent's -proposed recommended order contains a section labelled "Findings of Fact." All of these "Findings of Fact" have been accepted and incorporated in substance in this Recommended Order.

Petitioner's proposed recommended order consists essentially of argument.

Unlike Respondent's proposed recommended order, Petitioner's proposed recommended order does not contain any proposed findings of fact that are label led or otherwise identified as such. There are, however, assertions made by Petitioner in his proposed recommended order that are of a factual nature and constitute more than mere argument or a summary of the evidence. The following of these assertions have been rejected because they are contrary to the greater weight of the evidence: the bay bottom in the proposed dredging area consists primarily of sand; Bishof's observations regarding the biota in the proposed dredging area are inaccurate; Bishof did not examine the proposed dredging area from the water; the proposed dredging area is not "dominated by any type of biota; "the operation of the Depkin's boat in the proposed dredging area will not result in any long-term increase in turbidity; any adverse effect that the project may have on water quality and fishery production will be "infinitesimal

and impossible to measure" and confined to the Depkins' property; the proposed dredging project involves the "same type of dredging" as that previously done by the Depkins and the Popps in areas near the proposed dredging site; it is reasonable to assume that the bay bottom in the proposed dredging area will revegetate to such a extent that water quality will improve and there will be an increase in fishery production; there is little likelihood that the proposed dredging project, if permitted, will have a "cumulative impact" because the Depkins' situation is "unique") and the alternative to the proposed dredging project proposed by the Department is unsafe. The assertions made by Petitioner ink his proposed recommended order regarding the amount of bay bottom he owns and the size of the proposed dredging area relative to the amount of bay bottom he owns have been rejected because they are not supported by any persuasive competent substantial record evidence. In his proposed recommended order, Petitioner has also made assertions regarding: the extent to which there is sand on the bay bottom in areas near the proposed dredging site; the permit he received from Monroe County to install davits on the seawall; and the costs he has already incurred in connection with the installation of these davits. These assertions have not been incorporated in this Recommended Order because they relate to matters that have no bearing on the outcome of the instant case. The remaining factual assertions found in Petitioner's proposed recommended order have been accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order.

COPIES FURNISHED:

William Depkin

7743 S.W. 72nd Court Miami, Florida 33143

Richard Grosso, Esquire

Department of Environmental Regulation Twin Towers office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale H. Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 89-001309

Orders for Case No: 89-001309