STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AUDREY G. DICKASON, )

)

Petitioner, )

)

vs. ) CASE NO. 91-3872

)

TOM TONA AND )

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Shalimar, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on August 27, 1991.

APPEARANCES

The parties were represented as follows:

For Petitioner: Michael Mead

P.O. Drawer 1329

Fort Walton Beach, Florida 32549

For Respondent: William Stone Tona P.O. Drawer 2230

Fort Walton Beach, Florida 32549

For Respondent: Candi Culbreath Department Assistant General Counsel

Department of Environmental Regulation

2600 Blairstone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

The issue at the hearing was whether Respondent, Tom Tona's application for a dredge and fill permit to construct a riprap revetment on a small island consisting of Lots 1 and 2, Block 8, Elliots Point Subdivision, Fort Walton Beach, Florida should be granted.

PRELIMINARY STATEMENT

On March 6, 1991, Respondent, Tom Tona, applied to the Department of Environmental Regulation for a dredge and fill permit to construct a riprap revetment on a small island consisting of Lots 1 and 2, Block 8, Elliots Point Subdivision, Fort Walton Beach, Florida. The project originally called for the

construction of a riprap revetment around the entire island. However after consulting with the Department, the Respondent, Tona, amended his application so that the riprap revetment would only be constructed on a 55 foot strip along the northwest corner of the island shore, immediately adjacent to a vertical seawall adjacent to the island, and on a 322 foot stretch of the island shore, beginning at the intersection of the vertical seawall and the southwest shore of the island and extending along the shore of the island to the edge of the wetland marsh on the north side of the island. The Department approved the modified application and issued an Intent to Issue. The applicant properly published the Department's Intent to Issue.

Petitioner, Audrey G. Dickason, timely requested a formal administrative hearing on the Department's Intent to Issue. The request for hearing was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and presented four witnesses. Petitioner also offered into evidence three exhibits. Respondent, Tom Tona, also testified in his own behalf and offered the testimony of two witnesses. Additionally, Respondent, Tona, offered seven exhibits into evidence. Respondent, Department of Environmental Regulation, called one witness to testify and offered six exhibits into evidence.

Petitioner and Respondent, Department of Environmental Regulation, filed Proposed Recommended Orders on September 11, 1991, and September 9, 1991, respectively. Respondent, Tom Tona, did not file a Proposed Recommended Order. Petitioner's and the Department's proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposals are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The applicant, Tom Tona, owns the mortgage on the island consisting of Lots 1 and 2, Block 8, Elliots Point Subdivision, Fort Walton Beach, Florida. Mr. Tona has taken steps to perfect his ownership of the island and holds a property interest sufficient to afford him standing to apply for a permit.

   
   

2. Elliots Point Subdivision is a residential subdivision development surrounding a lagoon which opens into Santa Rosa Sound in Fort Walton Beach, Florida. The island is located in the lagoon opening to Santa Rosa Sound. It has a large area of wetlands on the north shore. The wetlands function as a habitat for wildlife in the area. Water depths surrounding the island are shallow. The island currently acts as a barrier island for the property located on the shore of the lagoon. The barrier effect of the island helps to prevent the lagoon shore from erosion which would be caused by the wave action in the sound. However, the island, itself, is rapidly eroding due to the same wave action it protects the lagoon shore from. The evidence clearly demonstrated that unless this erosion is stopped the island will completely wash away along with the habitat, including wetlands, it now provides to wildlife and no longer protect the lagoon shore from the erosion it otherwise would experience without the presence of the island.

   
   

3. The subdivision appears to be almost completely developed along the lagoon with single family dwellings. A canal consisting of two vertical seawalls runs in between the island and Elliots Point. The canal leads to a public boat ramp within the subdivision. The vertical sea wall of the canal

   along with the boats that pass through it is causing erosion to occur within the wetlands adjoining the seawall. It is this 55 foot area of the wetlands that Respondent proposes to construct part of the riprap revetment.

   
   

4. Petitioner, Audrey Dickason, owns property on the far side of the lagoon from the island. Petitioner's property does not adjoin the island, but is close enough to the island to be within view of the island.

   
   

5. On March 6, 1991, the applicant submitted an application to the Department of Environmental Regulation for a dredge and fill permit to construct a riprap revetment around the entire island. This was Mr. Tona's first application with the Department and at the time of filing Mr. Tona was very inexperienced in completing dredge and fill applications. The application was completed to the best of Mr. Tona's knowledge. Additionally, as happens with any form document, this application did not entirely fit the fact that this was an island project and the type of property interest Mr. Tona was asserting over the island.

   
   

6. The application as originally filed did not list any adjacent property owners. Mr. Tona did not believe there were any adjacent property owners since an island was involved. Regardless of whether Mr. Tona should have listed any property owners of the subdivision, the failure to list any such property owners was not done to deceive or defraud the Department or the island's neighbors and in reality had no impact on the notification of parties who may have been interested in Mr. Tona's application. The owners of the property directly across from the island testified at the hearing and voiced their concerns to the Department during the processing of the application. Moreover, as indicated earlier, Petitioner's property does not adjoin the island. Since Petitioner's property does not adjoin the island, she was not entitled to be listed in Mr. Tona's application for the dredge and fill permit. The evidence simply did not establish that this debatable issue justifies the denial of Mr. Tona's application for a dredge and fill permit.

   
   

7. The application filed by Mr. Tona also had the box indicating that he owned the property checked. The other box which could have been checked was that he would acquire an interest in the property. Neither box quite fit Mr. Tona's circumstances since he already had an interest in the property. The Department advised that it would be sufficient to check the ownership box and attach a copy of the mortgage assignment which gave Mr. Tona his interest. Mr. Tona followed the Department's advice. Again, the information as to ownership was not submitted to deceive or defraud the Department or the island's neighbors and in reality had no impact on the application process. In fact, the necessary information to determine Mr. Tona's interest was submitted to the Department. Again, there is nothing in the information submitted by Mr. Tona in the application which would justify denying that application as it has since been amended.

   
   

8. As indicated above, after consulting with the Department, Mr. Tona amended his application so that the riprap revetment would only be constructed on a 55 foot strip along the northwest corner of the island immediately adjacent to the vertical seawall and on a 322 foot stretch of the island shore, beginning at the intersection of the vertical seawall and the southwest shore of the island and extending along the shore of the island to the edge of the wetland marsh on the north side of the island.

   
   

9. The riprap would consist of clean limestone and would extend into state waters. The fill would not impede the flow of water or cause harmful erosion or

   shoaling. In fact, the purpose of the revetment is to stop the rapid erosion of the island which is currently taking place and preserve the wetland habitat which exists on the island. The evidence did not demonstrate that the type fill the applicant intends to use in the construction of the revetment would cause any significant pollution or water quality problems or adversely affect fish or wildlife. The evidence demonstrated that the placement of the fill would create more habitat for fish and wildlife. The revetment is intended to be a permanent structure.

   
   

10. After evaluating the application for consistency with the relevant pollution control standards, the Department determined that the proposed revetment met departmental standards for water quality and the public interest and issued an Intent to Issue with a draft permit authorizing the construction of the riprap revetment described above subject to several standard permit conditions. The modifications of the application along with the permit conditions provide reasonable assurances that the project will not violate water quality standards as provided in Section 403.918, Florida Statutes. Additionally, the historical evidence the Department has gained through observing the impact of other riprap revetments in a similar environment on water quality provides strong support for the above conclusion and in itself is a reasonable assurance that water quality standards will not be adversely impacted by the construction of this riprap revetment.

    
    

11. For similar reasons, the evidence demonstrated that the proposed revetment would not be contrary to the public interest. In essence, the evidence demonstrated that the revetment would not adversely impact the public health, safety, welfare or property of others, the current condition or relative value of the area surrounding the proposed project, the conservation of fish or wildlife and their habitats, or cause harmful erosion or shoaling, or involve historical or archaeological resources. In fact, the evidence demonstrated that the only effect on the environment the proposed revetment would cause would be a beneficial effect.

    
    

12. Petitioner's fear that the grant of this permit will allow Mr. Tona to build a house on the island and thereby destroy her view is not the type of factor which may be considered in determining whether a dredge and fill permit should be granted or denied. See Miller v. Department of Environmental Regulation, 504 So.2d (Fla. 1st DCA 1988). Petitioner's concerns for the revetment's affect on the wildlife of the area were not established by any evidence. The evidence did demonstrate that Petitioner's concerns for the wildlife using the island were simply feinted by her and are belied by the fact that if the island is not preserved from erosion there will be no habitat for any wildlife to use once the island erodes away.

1. Based on all the evidence, Mr. Tona's application for a dredge and fill permit to construct a riprap revetment should be granted.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding Section 120.57(1), Florida Statutes.

   
   

3. The controlling Florida Statutes and Department rules in this proceeding are Sections 403.918 and 403.919, Florida Statutes, and Rules 17-4, 17-302 and 17-312, Florida Administrative Code. Section 403.918 reads in pertinent part:

   1. A permit may not be issued under ss 403.91 - 403.929 unless the applicant provides the department with reasonable assurance that water quality standards will not be violated..

   2. A permit may not be issued under ss 403.91 - 403.929 unless the applicant provides the department reasonable assurance that the project is not contrary to the public interest..

      1. 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:

         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 ...; and

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

         
         

4. Section 403.919, Florida Statutes, reads in pertinent part:

   
   

   Equitable distribution.--The department, in deciding whether to grant or deny a permit for an activity which will affect waters, shall consider:

   1. The impact of the project for which the permit is sought.

   2. The impact of projects which are existing or under construction or for which permits or jurisdictional determinations have been sought.

   3. The impact of projects which are under review, approved, or vested pursuant to s. 380.60, or other projects which may reasonably be expected to be located within the jurisdictional extent of waters, based upon land use restrictions and regulations.

      
      

5. The applicant has the burden to establish that he is entitled to the permit being sought. In the instant case, the applicant must show that he has given reasonable assurances that the proposed riprap revetment and its cumulative impacts will not cause or contribute to violations of state water quality standards and will not be contrary to the public interest. Florida Department of Transportation v. J.W.C. Company Inc., 396 So.2d 778 (Fla. 1st DCA

1981). The evidence demonstrated that the applicant provided such assurances and that the project will not violate water quality standards and will not be contrary to the public interest.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Regulation enter a Final

Order issuing a dredge and fill permit to construct a riprap revetment as sought

by Tom Tona in his permit application as amended and subject to the permit conditions contained in the Department's Intent to Issue.

DONE and ENTERED this 23rd day of September, 1991, in Tallahassee, Florida.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1991.

APPENDIX TO RECOMMENDED ORDER CASE NO. 91-3872

1. The facts contained in paragraph 1 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material.

   
   

2. The facts contained in paragraphs 3 and 4 of Petitioner's Proposed Findings of Facts are subordinate.

   
   

3. The facts contained in paragraphs 6, 7, 8 and 9 of Petitioner's Proposed Findings of Facts were not shown by the evidence.

   
   

4. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact are immaterial.

   
   

5. The facts contained in paragraph 2 of Petitioner's Proposed Findings of Fact are adopted in substance, except for the finding relating to notice which was not shown by the evidence.

   
   

6. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material.

COPIES FURNISHED:

Michael Mead

P.O. Drawer 1329

Fort Walton Beach, Florida 32549

William Stone

P.O. Drawer 2230

Fort Walton Beach, Florida 32549

Candi Culbreath

Assistant General Counsel Department of Environmental Regulation

2600 Blairstone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel 2600 Blairstone Road

Tallahassee, Florida 32399-2400

Carol Browner, Secretary Twin Towers Office Building 2600 Blairstone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 91-003872

Orders for Case No: 91-003872