for issuance of a dredge and fill permit, and if so, how those assurances may be incorporated into the permit as finally issued.
On May 3, 1989, the applicant, Johnny P. Hires, applied to the Department of Environmental Regulation (DER) for an "after the fact" dredge and fill permit to authorize the existence of a dock and associated structures which had already been constructed on Miller's Creek in Duval County, Florida. On July 28, 1989 DER executed its Notice of Permit Denial for the project. On May 29, 1990, negotiations between Hires and DER resulted in a Notice of Permit Issuance which
approved the project subject to a specific condition (Specific Condition No. 7) to which Mr. Hires had already agreed.
On June 8, 1990, DER received Gilmour and Gray's petition challenging DER's approval of the permit. On June 13, 1990, the petition was referred to the Division of Administrative Hearings for formal hearing pursuant to Section 120.57(1) F.S. and was assigned DOAH Case No. 90-3690.
Prior to formal hearing, DER personnel reassessed the agency position once again with the result that at formal hearing DER asserted that Specific Condition No. 7 of the proposed permit was not stringent enough and sought to present evidence that Specific Condition No. 7 should be modified if the permit is to be issued at all. Neither Petitioners nor Hires objected to this procedure, so the parties' positions at hearing were, by agreement, as follows: Mr. Hires wanted the proposed permit finalized as drafted; the Department wanted the proposed permit issued, with a modified Specific Condition No. 7; and Petitioners wanted the proposed permit denied.
At formal hearing, Mr. Hires testified on his own behalf. DER presented the oral testimony of Jeremy Tyler, who was accepted as an expert witness in the impacts of dredge and fill projects on water quality and biological resources.
Petitioners presented the oral testimony of Dr. Gilmour and Leo Davis. Admitted into evidence were Hires' Application and the Notice of Permit Issuance, respectively marked as Respondent's Exhibits 1 and 2, a photograph of Miller's Creek at low tide, and additional photographs of the project and Miller's Creek, respectively marked as DER Exhibit 1 and as DER Composite Exhibit 2. Also admitted were letter responses to the Application and a copy of the Notice of Permit Denial, respectively marked as Petitioners' Composite Exhibit 1 and Petitioners' Exhibit 2.
Mr. Hires constructed a dock, boathouse, and three catwalks in February or March of 1989, without a permit, within the landward extent of Miller's Creek. The dock is 40 feet by 5 feet with a 24-foot "L" at the waterward end. The catwalks form two boat slips, which are 16 feet by 32 feet and 8 feet by 24 feet. These slips are more or less covered by a roof 32 feet by 24 feet. The boathouse is as yet incomplete.
Miller's Creek flows into the St. Johns River near the base of the Hart Bridge in Jacksonville, Florida. This location subjects the project to DER's jurisdiction of Class III (recreational use) waters. It is also near Atlantic and Beach Boulevards. Mr. Hires' property is on the west side of the Creek. At low tide, the creek bottom is exposed, except for a channel which is located near the eastern edge of the creek. The channel is approximately 110 feet from the boat slips.
DER's original permit denial stated:
Use of the slips by boats would result in continuous bottom scour by prop dredging of the area within the slips and between the slips
and the channel. This area is approximately
110 feet in length. Prop dredging creates turbidity and moves bottom material into other
areas of the creek which can alter the physical, chemical and biological nature of the water body. The movement of bottom material into the existing channel will cause shoaling within adjacent sections of the creek, altering habitat and affecting flows of water and navigation.
Increased turbidity in the water column results in reduced light penetration and photosynthetic oxygen production which together with the resuspension of organic bottom material can increase oxygen demand and release pesticides, heavy metals and hydrogen sulphide into the water column. Therefore the project can be expected to have a long-term detrimental impact on water quality and biological resources of the river.
Specific Condition No. 7 of the proposed permit issuance document requires that:
At no time shall any motorized vessel
utilizing the dock disturb the bottom sediments causing prop dredging or generating turbidity which exceeds the State Water Quality
Standard.
Mr. Hires has indicated his intent to comply with Specific Condition No. 7 and sincerely believes that he will be able to do so.
DER has adopted water quality standards within Ch. 17 F.A.C. These may apply to primary turbidity, that is, turbidity due to actual construction of the project, or secondary turbidity, that is, turbidity resulting from subsequent use of the completed project.
Turbidity is the resuspension of bottom material into the water column. Prop dredging from motorboats causes turbidity and changes the bottom contours of a waterway.
The amount of turbidity which is generated depends, among other things, upon the kind of sediment which comprises the bottom of a waterway. The bottoms of water bodies in Florida range from fine particles, called mud or silt, to larger particles, known as sand. The creek bottom of Miller's Creek is composed of mud and silt. Because of the lighter weight of mud and silt particles, they are more easily resuspended and stay resuspended longer than the larger, sand particles.
The environmental impacts of turbidity depend, among other things, upon pollutants, such as heavy metals, which may become mixed with the natural sediments. Pollutants are more likely to be trapped in fine sediments, such as mud and silt, than they are likely to be trapped in coarser, sandy sediments. Runoff from Beach and Atlantic Boulevards and possible past contamination from a nearby shipyard make sediment contamination in Miller's Creek a distinct possibility. Neither DER nor Mr. Hires has performed a sediment study to determine whether pollutants were present.
In approximately May of 1989, a small "access trough" was prop dredged over the 110 foot distance between the channel and Mr. Hires' dock. No permit was issued by DER for this dredging and, if a permit application for such prop dredging were submitted, no permit would be issued.
The tidal range of Miller's Creek is approximately 1.5 feet. Thus, at high tide, the water is reasonably expected to be 1.5 feet above the creek bottom that is exposed at low tide. No study of the depth of the water in the access trough was presented to DER, although Mr. Hires estimated its depth at high tide to be 4 feet.
Mr. Hires represented, and there is no evidence to refute his statement, that the maximum use of his own boat in this area over the last year preceding formal hearing (September 1989-September 1990) has been twelve times. Despite the credible evidence that the access trough was created by prop dredging, Mr. Hires maintained that it was not possible for his boat, which is equipped with a tunnel hull design, to further dredge the area because he can only operate his boat on idle speed on high tide in this area. Because the props on Mr. Hires' boat are recessed upward from the bottom of the boat, Mr. Hires maintained his boat would not further dredge the access trough or the remainder of Miller's Creek. However, without accurate information as to natural water depth and only vague information as to what might occur if the tide changed while Mr. Hires was out in his boat, what might occur if Mr. Hires used another boat, or what might occur if other types of boats docked at the Hires dock, Mr. Hires' information about his current boat does not constitute a reasonable assurance that no further prop dredging of Miller's Creek will occur. Mr. Tyler submitted that Hires could pole or row his boats from his dock to the channel when there is sufficient water so as to avoid prop dredging. Mr. Hires volunteered to post a bond to ensure that there would be no scouring from his use of motorized boats from his dock to the channel, but there was insufficient expert evidence to establish how high a bond would be reasonable or that DER would regard such bonding as any more substantial assurance than the applicant's policing himself under Specific Condition No. 7 as now drafted. There also was no evidence that bonding has been a successful inhibitor of prop dredging in the past, that any insurer is available to issue such a bond, or that Mr. Hires could post a sufficient cash bond.
Upon the expert testimony of Jeremy Tyler and the keen observations of the lay witnesses, it is found that, through natural processes, the access trough may be reasonably expected to, with time, silt in and return to a depth consistent with the existing creek bottom. It is further found that prop dredging may be reasonably expected to cause adverse environmental impacts at this location.
Upon Mr. Tyler's expert testimony, it is further found that Hires' dock and the dock's associated structures which have already been installed are not reasonably expected to cause any adverse environmental consequences. Contrary to DER's initial permit denial document, there is no vegetation in the area which might be adversely affected by shade from the dock and associated structures.
If the pilings were driven into place at low tide, some temporary turbidity would have been generated by the dock and boathouse construction. However, no evidence of such turbidity can be seen at the present time.
The only habitat effects of the constructed items and those planned but not completed would be the loss of the habitat which is displaced by the pilings themselves, an effect which, at this location, is inconsequential. The non-expert testimony of Petitioners with regard to endangered species was without appropriate predicate and is not probative with regard to habitat.
No competent evidence was offered by Petitioners to suggest that the dock and associated structures themselves would adversely affect water quality or the public interest test criteria.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Section 120.57(1) F.S.
DER has permitting jurisdiction over the proposed project pursuant to Chapter 403 F.S. and Chapter 17 F.A.C.
Section 403.918(1) F.S. states:
A permit may not be issued under s. 403.91-403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated.
The water quality standard relating to turbidity is contained in Rule 17-302.510(3)(r) F.A.C. That paragraph states, in pertinent part, "Turbidity-- shall not exceed 29 Nephelometric Turbidity Units (NTU's) above natural background." Turbidity is the water quality standard which is of concern in this case.
Section 403.918(2) F.S. provides in pertinent part:
A permit may not be issued under s. 403.91-403.929 unless the applicant provides the department with reasonable assurance that
the project is not contrary to the public interest. . .
In determining whether a project is not contrary to the public interest, or is clearly in the public interest, the department shall consider and balance the following criteria:
Whether the project will adversely affect the public health, safety, or welfare or the property of others;
Whether the project will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
Whether the project will adversely affect navigation or the flow of water or cause harmful erosion or shoaling;
Whether the project will adversely affect the fishing or recreational values or marine productivity in the vicinity of the project;
Whether the project will be of a temporary or permanent nature;
Whether the project will adversely affect or will enhance significant historical and archaeological resources under the provisions of s. 267.061; and
The current condition and relative value of functions being performed by areas affected by the proposed activity.
These foregoing statutory sections relate to an applicant's proposed project. In reviewing proposed dredge and fill projects, DER also considers "secondary impacts" of the project, that is, impacts which result from the use of the project after it has been constructed. The proposed dredge and fill project here is a dock with associated structures. Prop dredging is such an impact reasonably expected to result from the use by boats of the dock and associated structures. Such an impact is of concern to DER. See, DER v. Stearns, 12 FALR 1412 (Final Order dated March 26, 1990); Boca Grande Club, Inc.
v. DER, 9 FALR 887 (Final Order dated January 31, 1987); Beardsly, et al. v. Bartecki and DER, 7 FALR 4058 (Final Order dated August 13, 1985); McMillan v. Dax and Trend Development Corp. and DER, 7 FALR 3680 (Final Order dated July 29, 1985; Upper Keys Citizens Assoc., Inc., et al., v. DER and Port Bougainville Associates, Ltd., 7 FALR 4211 (Final Order dated June 10, 1985); and Bocilla Waterways, Inc., v. DER, 7 FALR 1364 (Final Order dated March 5, 1985). In the instant situation, the 110-foot "access trough" is a fair indicator that DER has reason to be concerned with secondary (turbidity) impact at this location.
Rule 17-312.060(1) F.A.C. states, in pertinent part:
Unless specifically exempt, permit shall be required for dredging or filling, including but not limited to construction of . . . docks
. . . as well as dredging or excavating by any means "
An applicant cannot alter or sever the Department's jurisdiction through illegal dredging or filling. See e.g. Fox v. DER, 7 FALR 5903, 5914 (Final Order dated November 8, 1985).
The impacts from the unpermitted dock and associated structures to water quality and the seven public interest criteria, if prop dredging is not considered, will be minimal. Therefore, the dock and associated structures, if not used by motorboats at a time when prop dredging is likely to occur, comprise a project which is "not contrary to the public interest." However, here there has also been an unpermitted creation of an "access trough." That "access trough" can return to normal over a period of time, but prop dredging will maintain and, potentially, expand it. No permit was obtained for the dock and associated structures and no permit was obtained for the dredging which created the "access trough." Under the circumstances of this case to date, the illegal "access trough" itself cannot become the reasonable assurance that other shallow areas will not be prop dredged. Therefore, reasonable assurances were not provided in advance that prop dredging and its attendant impacts would not occur and such assurances have not been provided at formal hearing, either.
However, modifying Specific Condition No. 7 to prohibit use of the dock by motorized boats would provide the requisite reasonable assurances for the time being, and should circumstances change or additional information be provided by Hires to DER, including, but not limited to, information concerning natural water depths adjacent to his property and/or restriction of his dock to
