STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FOSTER F. BURGESS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2900

) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, Don W. Davis, a duly designated Hearing Officer of the Division of Administrative Hearings, held a formal hearing in the above-styled case on July 30, 1993, in Pensacola, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Foster F. Burgess, Pro Se

Route 1, Box 97-C4 Freeport, Florida 32439

For Respondent: Donna M. LaPlante

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

The issue for determination is whether Petitioner's application for a dredge and fill permit provides reasonable assurances that compliance will be had with applicable requirements of Section 403.918(2), Florida Statutes; specifically, that the project is in the public interest and that existing ambient water quality of an Outstanding Florida Water will not be lowered.

PRELIMINARY STATEMENT

By letter dated May 20, 1993, Petitioner requested an administrative hearing with regard to Respondent's May 13, 1993 denial of Petitioner's permit application. The matter was transferred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At the final hearing conducted on July 30, 1993, Petitioner presented the testimony of two witnesses, including himself, and three exhibits. Respondent offered testimony of one witness and one exhibit. A transcript of the final

hearing was not provided by the parties. Petitioner waived the filing of proposed findings of fact. Proposed findings submitted by Respondent are addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. By application filed November 17, 1992, Petitioner seeks a dredge and fill permit for the construction of a private boat dock; a 24 foot by 26 foot platform for an "A" frame camping shelter; and a 4 foot by 18 foot boardwalk, all in jurisdictional wetlands along the water's edge of a small natural basin off of the Choctawhatchee River at Section 24, Township 2 South, Range 19 West in Walton County, Florida. The Choctawhatchee River has been designated an Outstanding Florida Water by Rule 17-302.700, Florida Administrative Code.

   
   

2. The proposed project is located in Class III waters and is adjacent to Class II shellfish approved waters. The proposed project is not exempt from Respondent's permitting jurisdiction.

   
   

3. Petitioner proposes to use the elevated "A" frame structure for recreational purposes for his family and friends. He owns 150 acres of land in the vicinity. He provided no reliable assurances that he, or the owners of 350 acres of adjacent property, would not subdivide and sell plots of the property in the future for construction of similar recreational facilities in these jurisdictional wetlands.

   
   

4. There is no feasible land access to Petitioner's proposed project site. Petitioner proposes to use "port-a-potty" chemical equipment with a capacity of

   5.5 gallons for the containment of human waste, hauling the waste, chemicals and equipment out on boats as necessary. Potable water will also be carried to the site via boat by the six to eight individuals contemplated to use the proposed project facility on an estimated 15-20 weekends per year.

   
   

5. Petitioner's proposed portable toilet is not an acceptable method of sewage disposal for the number of individuals using the proposed facility. Reasonable assurances were not provided by Petitioner that transfer of such waste by boat will not, through accident or otherwise, be introduced into the river and degrade water quality.

   
   

6. Petitioner was unable to provide reasonable assurances that the proposed permanent facilities would not attract and be used by other individuals, leaving garbage and waste behind. Petitioner's offer to place a "no trespassing" sign on the property is not an adequate substitute to monitoring of the property to prevent improper use by others.

   
   

7. In the event of a severe storm, Petitioner's proposed structure would be subject to destruction and its constituent parts strewn on other land or into the water. The proposed construction would adversely affect the public health, safety, welfare and property of others.

   
   

8. The proposed project will adversely impact the conservation of fish, wildlife and their habitats. The proposed site area supports many endangered and threatened species, including the Atlantic Sturgeon and the bald eagle, which would be adversely affected by the project. Also adversely affected by the dwelling construction and subsequent loss of habitat would be rookeries of wading birds such as the Little Blue Heron and the Egret, both of which nest in these wetlands.

9. While fishing for Petitioner and his family or guests at the proposed project would possibly be improved, Petitioner offered no credible evidence that fishing, recreational values or marine productivity in the area would not be affected. The wetlands where Petitioner proposes to build his shelter serve as a nursery area for shrimp and oysters. Destruction or degradation of waters of the wetland will have an adverse effect on any shellfish or marine life inhabiting the area.

   
   

10. The permanent nature of the proposed project will result in a permanent impact on the wetlands in the vicinity of the project. Petitioner offered no evidence that the current condition and relative value of functions being performed by areas subjected to the proposed project will not be affected.

    
    

11. The area where the project is proposed is a highly productive estuary which interfaces with the Choctawhatchee River and Choctawhatchee Bay. This ecosystem provides habitat for various unique species of plants and wildlife and is the location of shrimp and oyster nurseries. Further, the estuary serves to clean the water, remove sediment, revitalize the water with oxygen, and convert nutrients such as nitrogen and phosphorus into plant material and ultimately into usable organic nutrients.

    
    

12. The proposed project will lower existing ambient water within an Outstanding Florida Water. The increased docking of boats in shallow wetland waters could cause violations of water turbidity standards, resulting in decreased diversity of the Shannon-Weaver Index of Benthic Macroinvertebrates. Water quality violations would also result from increased oil sheen on the surface of the water.

    
    

13. Secondary impacts of the proposed project include the loss of wetland habitat, impairment of wetland function, and violation of water quality standards due to increased boat traffic and the possibility of sewage contaminating the wetlands and surrounding environs.

    
    

14. The proposed project fails to meet Respondent's requirements for issuance of a dredge and fill permit in view of the lack of reasonable assurances by Petitioner that prohibited cumulative impacts will not result; that Class II waters will not be degraded; that the project is clearly in the public interest; that ambient water quality standards will not be violated and that detrimental secondary impacts will not occur. Denial of the permit is consistent with other, similar permitting decisions by Respondent.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. Section 403.913(1), Florida Statutes, reads as follows:

    
    

    No person shall dredge or fill in, on, or over surface waters without a permit from [Respondent], unless exempted by statute or [Respondent] rule.

17. Pursuant to Section 403.918(1), Florida Statutes, and Rule 17- 312.080(1), Florida Administrative Code, no dredge and fill permit can be issued unless the applicant provides reasonable assurances that Respondent's water quality standards will not be violated. Petitioner failed to provide reasonable assurances that water quality standards would not be violated.

    
    

18. Respondent is required by provisions of Section 403.919(3), Florida Statutes, to consider cumulative impacts of projects which may reasonably be expected to be located within the jurisdictional area. As noted, Petitioner did not present any credible assurances that permitting of this project would not open the door to subdivision of his property, or that of adjacent owners, to numerous similar projects.

    
    

19. Rule 17-302.080(6)(a), Florida Administrative Code, requires that Respondent deny requested dredge and fill permits where:

    
    

    [T]he location of the project is adjacent or in close proximity to Class II waters, unless the applicant submits a plan or proposes a procedure which demonstrates that the dredging and filling will not have a negative effect on the Class II waters and will not result in violations of water quality standards in the Class II waters.

    
    

20. Respondent presented competent, substantial evidence that the location of the project was in close proximity to Class II waters. Petitioner did not submit a plan or procedure to demonstrate that the proposed project would not have a negative effect on Class II waters and would not violate water quality standards for those waters.

    
    

21. The Choctawhatchee River's designation as an Outstanding Florida Water and the project's proposed location in proximity to that waterbody requires Petitioner's compliance with provisions of Section 403.918(2)(a)1.-7., Florida Statutes, which sets forth certain criteria that must be considered and balanced in the determination of whether an applicant has provided reasonable assurances that a project is in the public interest. Section 403.918(2)(a)1.-7., Florida Statutes, reads as follows:

    
    

    1. A permit may not be issued under ss. 403.91-403.929 unless the applicant provides the department with reasonable assurance that the project is not contrary to the public interest. However, for a project which significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the project will

       be clearly in 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;

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

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

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

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

          
          

22. With regard to the foregoing seven requirements or criteria, Petitioner has not provided reasonable assurances that the project will not adversely affect the public health, safety or welfare, or the property of others; that the project will not adversely affect conservation of fish and wildlife, including endangered or threatened species and their habitats; that the project will not adversely affect fishing, recreational values, or marine productivity in the project vicinity; or that the project will not adversely affect current conditions and relative value of functions performed by areas affected by the proposed activity. Of the three remaining criteria, the proof establishes that the proposed project would be permanent. No evidence was submitted regarding harmful impact of the project on navigation, water flow or harmful erosion. No evidence was presented that the proposed project would affect or enhance significant historical and archeological resources.

    
    

23. Rule 17-4.242(2)(a)2.b., Florida Administrative Code, also requires reasonable assurances that existing ambient water quality within an Outstanding Florida Water will not be lowered as a result of the proposed activity or discharge.

    
    

24. Petitioner bears the burden of establishing by a preponderance of the evidence entitlement to the permit sought in this proceeding. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Petitioner has not met that burden.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that a Final Order be entered denying the application for issuance of Permit No. DF66-222039-1 to Petitioner.

DONE AND ENTERED this 31st day of August, 1993, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of August, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2900

The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties.

Petitioner's Proposed findings None submitted.

Respondent's Proposed findings

1.-3. Accepted in substance, not verbatim. 4.-7. Rejected, subordinate to HO findings.

1. Accepted.

2. Rejected, legal conclusion. 10.-11. Accepted.

1. Rejected, unnecessary.

2. Accepted.

3. Rejected, unnecessary.

15.-22. Accepted in substance.

COPIES FURNISHED:

Virginia B. Wetherell Secretary

Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante General Counsel

Department of Environmental Protection

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Foster F. Burgess, Route 1

Box 97-C4

Freeport, Florida 32439

Donna M. LaPlante Department of Environmental

Protection

2600 Blair Stone 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: 93-002900

Orders for Case No: 93-002900