GALLUP & P.A. GALLUP, )
)
Petitioners, )
)
vs. ) CASE NO. 91-1332
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ROBERT ECKERT, JR. and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondents. )
)
)
ERIC P. ERICSON, )
)
Petitioner, )
)
vs. ) CASE NO. 91-1333
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ROBERT ECKERT, JR. and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondents. )
)
)
PHILIP E. JOHNSON, )
)
Petitioner, )
)
vs. ) CASE NO. 91-1710
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ROBERT ECKERT, JR. and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondents. )
)
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RICHARD J. WITTIG, )
)
Petitioner, )
)
vs. ) CASE NO. 91-2460
)
ROBERT ECKERT, JR. and ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Pensacola, Florida.
APPEARANCES
For Petitioners: Steven E. Quinnell, Esquire (Richard J. and JAMES L. CHASE, P.A.
Judith A. Wittig) 101 East Government Street
Pensacola, Florida 32501
Robert and Suzanne Stoyer, pro se 5768 Red Cedar Street
Pensacola, Florida 32507
Philip Johnson, pro se 5794 Red Cedar Street Pensacola, Florida 32507
Eric Ericson, pro se 5652 Innerarity Circle
Pensacola, Florida 32507
For Respondents: Robert Eckert, Jr., pro se
4817 Ravine Court
Mobile, Alabama 36608
Richard Coates, Certified Legal Intern
Pat Comer, Assistant General Counsel
Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
APPEARANCES
The issue in this cause concerns whether the Respondent, Robert Eckert, Jr., is entitled to a dredge and fill permit authorizing the construction and operation of a dock for his private use, in association with residential upland
property which the Respondent owns. The only disputed issues of fact relate to the legal issues concerning effect on navigation and on recreational values for purposes of Section 403.918(2)(a)3. and 4., Florida Statutes.
PRELIMINARY STATEMENT
This cause arose when Respondent, Robert Eckert, Jr., applied to the Respondent, Department of Environmental Regulation ("DER"), for a permit authorizing construction of a 280-foot dock and boathouse at his property at 5766 Red Cedar Street, Pensacola, Florida. The application was filed on October 25, 1990, and two timely objections were received to the permit application.
Subsequent thereto, the applicant amended his application to reduce the length of the dock to 265 feet. The dock would run south from the shoreline at the above address and would extend into Russell Bayou, located in Escambia County, Florida, a class III water of the State.
On January 16, 1991, DER noticed its intent to grant the permit and provided a point of entry to persons whose substantial interests were affected to challenge the proposed grant. Timely petitions challenging the granting of the permit were filed by Petitioners, Stoyer, Gallup, Ericson, Johnson and Wittig. Those petitions were forwarded to the Division of Administrative Hearings, the cases were consolidated, and the cause proceeded to hearing as noticed.
At the outset of the hearing, DER moved to dismiss the Gallup petition because the Gallups failed to appear and prosecute their petition. That motion was granted. The applicant/Respondent, Eckert, testified on his own behalf and adduced five (5) exhibits which were admitted. The Respondent, DER, presented the testimony of its Northwest Florida District employee, Charles Harp. Mr.
Harp was qualified as an expert in navigation, estuarine water quality and marine biology. Two (2) exhibits were presented by DER and were admitted. Petitioner Wittig's counsel presented the testimony of Ms. Marilyn Bass, an area resident. Petitioner Stoyer testified on behalf of himself and his wife and presented the testimony of Ms. Bass. Petitioner Johnson testified on his own behalf, and Petitioner Ericson did likewise. After the Petitioners' testimony, Mr. Harp was recalled as a rebuttal witness by DER. At the conclusion of the proceeding, the parties were afforded the right to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders.
Respondent DER, Petitioners Wittig and Petitioners Stoyer submitted Proposed Recommended Orders. The proposed findings of fact contained therein are treated in this Recommended Order and specifically ruled upon again in the Appendix attached hereto and incorporated by reference herein.
FINDINGS OF FACT
On October 25, 1990, Respondent Eckert applied to Respondent DER for a permit seeking authorization to construct a 280-foot single-family recreational dock at 5766 Red Cedar Street in Pensacola, Escambia County, Florida. The dock would extend waterward from that address and lot into Russell Bayou in Escambia County, Florida, a class III water of the State. When objections were filed to the original application for the 280-foot dock, Respondent Eckert amended his permit application and now requests a permit to build a 265-foot dock, meaning that the dock would extend 265 feet waterward from the mean high water line and, therefore, the boundary of the Respondent/applicant's property. The Petitioners are all adjacent or nearby land owners who object to the project, pursuant to Section 403.918(2), Florida Statutes (Supp. 1990), asserting that the project is contrary to the public interest in terms of recreational values or navigation.
Russell Cove is a relatively-shallow body of water enclosed on three sides, with access to open water on its western end. Its depth fluctuates somewhat. It is tidally influenced, including lunar tides, which cause shallower-than-normal low water. The bottom of the cove is sandy with areas of rolling contours and shifting sandbars. The deepest points in the vicinity of the proposed dock vary between four and five and one-half feet. A 300-foot dock exists on the outward or westward end of Russell Cove. The channel widens to such an extent by the time it reaches the vicinity of that dock, however, that a 300-foot dock poses no navigational problem to boats using the interior of the cove.
The applicant contends that the Petitioners who live eastward and "up the cove" from him have plenty of room to navigate past his proposed dock because, as his chart indicates, an apparently wide channel of slightly deeper water traverses the cove, waterward of all the docks in the cove, including that which he proposes to construct, with sufficient width beyond the end of his proposed dock to allow any boats which typically use the cove to navigate by it safely. The Petitioners who live on the interior of the cove, eastward of his proposed dock, and who would have to navigate by it, contend, however, that the safest route for them to navigate is immediately in front of or intersecting the tip of the location of the proposed dock.
Ms. Bass testified for Petitioner Wittig. Her boat is equipped with a depth finder, and over the years of navigating in and out of the cove, she has learned that the supposedly wide channel referenced by the applicant is not actually a uniform wide, deep channel. Rather, there are sandbars occurring at various intervals, which sometimes shift in location, which point into the channel from the more southerly part of it, thus constricting it so that the safest passage is really a much narrower route closer to the ends of the docks and the proposed dock jutting into the channel. The safest passage is a slender route directly intersecting the tip of the location of the proposed dock. Ms. Bass established that there is already a narrow margin of maneuverability in the cove due to the intermittently shallow water, and, in stormy or foggy weather, the extra length of the dock might be unsafe. Petitioner Ericson has a non- motorized sailboat which must tack back and forth to enter or leave the cove when sailing into the wind. Thus, he needs a wide area to navigate in or out of the cove under certain prevailing wind conditions.
Although DER's expert witness, Mr. Harp, supported the relative depth measurements established by the applicant (adjusted for seasonal tidal variations), he conceded that he had not measured an east/west line in the sandbar area described by Ms. Bass on the southerly side of the channel and jutting into the channel. Rather, he measured a north/south line and an east/west line in the route which Ms. Bass indicated she uses close to the docks and the proposed dock but not an east/west line in the sandbar area. He further conceded that the bottom was uneven or rolling in some areas.
The applicant desires the extra dock length, compared to the 210-foot length of the Jones and Johnson piers on either side of him, so that he will be able to cast into slightly deeper water for fishing purposes. However, the depth prevailing at the 210-foot mark waterward from the shoreline is four feet, and the depth at the end of the proposed dock would only be approximately two inches deeper, 55 feet waterward of the other docks. Even out at the 300-foot waterward mark from shoreline, the water would be less than six inches deeper than it is at the 210-foot mark. Consequently, it was not shown how the
applicant would gain any particular fishing advantage, in terms of deeper water, by locating the end of his dock some 55 feet waterward of the adjacent docks.
Mr. Harp of DER visited the site to determine the water depths referenced above and to determine whether the dock would comply with Chapter 403, Florida Statutes, and the various pertinent rules concerning water quality contained in Chapter 17, Florida Administrative Code. Mr. Harp made a biological appraisal of the site to determine the location and density of seagrass beds and to determine whether the project would adversely affect water quality in Russell Bayou. Seagrasses exist at the site only between approximately 130 and 150 feet waterward of the mean high water mark. The remaining bottom substrate waterward of that point to, including, and beyond the end of the proposed dock is simply bare sand. The dock is narrow enough not to damage seagrasses by shading. Based upon Mr. Harp's uncontroverted expert testimony, it is found that the project will not result in a violation of class III water quality standards and, indeed, no Petitioner disputes that fact. Except indirectly, through navigational impact, the proposed dock does not pose a significant adverse affect on public health, safety, welfare or the property of others.
It was not shown that the dock would adversely affect the conservation of fish or wildlife and, indeed, those elements of the "public interest criteria" are undisputed. The proposed dock is considered permanent in nature and will have no significant historical or archeological resource impact. It will not cause a significant adverse effect on fishing values aside from the incidental effect its navigational impact might have on those values.
The proposed dock will have some impact on navigation. As shown by Respondent's Exhibit 3, the dock will extend approximately 55 feet more waterward than the existing 210-foot Johnson pier. Although a channel width of four times a boat's length is an adequate margin of safety for an average boat sailed in a competent manner, the fact that the proposed dock would extend 55 feet beyond the extent of the adjacent Johnson dock and the fact, established by Ms. Bass, that there are intermittent shallow sandbar areas which further narrow the channel from the southerly margin of it, reveal that the safe navigational channel is much narrower at the location of the end of the proposed dock, than in other nearby areas. The proposed dock would intersect this narrow "safe channel" at its most constricted point or "pinched area". For this reason, the proposed dock with its length constitutes an impediment to navigation to both the power boat and sailboat navigation described by the Petitioners' witnesses. The pier existing at the westward opening of the cove, although it is 300 feet in length, does not impose an impediment to navigation because the channel is much wider at that point than at the constricted point where the applicant's proposed 265-foot dock would intersect it.
The dock would also pose some detrimental effect on the recreational values of the project site to the Petitioners in terms of their passive recreational interest in an unobstructed view. Further, the fact that the dock would infringe on a long-accepted course of travel for boats, which is located some 50 feet or so beyond the end of the existing docks would cause both a navigational and recreational adverse impact in terms of the "public interest criteria" of Section 403.918(2), Florida Statutes. No other adverse impacts would be occasioned by installation of the dock, however, and these adverse impacts can be alleviated if the dock permit were conditioned upon an alteration so that the proposed dock does not extend more than 210 feet waterward of the mean high water mark. The proposed dock will not cause any significant, cumulative or secondary adverse impacts.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).
In order for the applicant to be entitled to a permit to construct the proposed facility in class III waters of the State, he must demonstrate reasonable assurances that the proposed project will not degrade water in the area below the class III water quality standards referenced in Section 403.918(1), Florida Statutes (1989). Secondly, the applicant must provide reasonable assurances that the project will not be contrary to the public interest. Section 403.918(2)(a), 1-7, Florida Statutes (1989). The seven criteria listed in this Section must be balanced in viewing any impacts, or the lack thereof, attributable to the proposed project in order to determine if it is contrary to the public interest. Two of those seven criteria are challenged by the Petitioners, navigation and recreational values. Lastly, it must be considered whether the proposed dock represents any adverse cumulative or secondary impact.
The applicant has provided reasonable assurances that the proposed dock will not degrade water quality in the area below the class III water quality standards, as established by the testimony of Mr. Harp, DER's expert witness. Further, if it is constructed to a length waterward of no more than
210 feet from the mean high water mark, the proposed dock will not be contrary to the public interest and will not adversely affect the public interest in terms of navigation or recreational values.
"Navigation" in terms of consideration of that element of the public interest criteria may not mean the preservation of usual recreational routes or guarantee of former ease of access to and from one's dock or waterfront property. See West, et al. v. Ratkovic and Department of Environmental Regulation, 12 FALR 3377 (Final Order, July 24, 1990). The facts found above, however, show that because of the peculiar location of this dock at a "choke point" or narrow constriction of an otherwise wide channel and because of the shoals and sandbar areas, the navigational impact of the subject dock at the proposed length would amount to more than a mere loss of ease of access or convenience to members of the public who need to navigate the channel in the area of the dock. Because of Ms. Bass' testimony, which demonstrated the shoal areas which constrict the channel, a dock of the proposed 265-foot length would adversely affect the public interest in navigation and in recreational use of the water in the area because it would leave an insufficient safe area to navigate Russell Bayou waterward of the end of the proposed dock. Although it does not render the channel unusable by boats, its partial obstruction of that narrow portion of the channel impedes navigation to the point of causing a potential safety hazard rather than a mere public inconvenience. Consequently, a granting of the subject permit should be conditioned upon the dock extending waterward no further than the adjacent 210-foot dock. Shortening of the dock would also have the effect of minimizing the impact on the passive recreational values established by the Petitioners in terms of their enjoyment of the view of the adjacent State waters or water bodies. Accordingly, it is concluded that the proposed dock will adversely affect navigation and recreational values to a limited extent, which will be alleviated if a grant of the permit is conditioned upon reducing the dock's length from 265 feet to 210 feet.
