STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES BUNCH AND SANTA ROSA COUNTY ) BOARD OF COUNTY COMMISSIONERS,1 )

)

Petitioners, )

)

vs. ) CASE NO. 96-2941

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on October 25, 1996, in Pensacola, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Don W. Davis.

APPEARANCES

For Petitioner James Bunch:

William W. Goodell, Jr., Esquire LL and E Tower

909 Poydras Street, Suite 2550 New Orleans, Louisana 70112-4000

For Petitioner Santa Rosa County: Thomas V. Dannheiser, Esquire

Santa Rosa County Board of County Commissioners 6865 Caroline Street Southeast

Milton, Florida 32570-4978

1 The style of this case has been amended to properly reflect the status of Santa Rosa County as a Petitioner, a matter clarified at final hearing.

For Respondent Department of Environmental Protection:

Lynette L. Ciardulli, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Petitioners are entitled to permit exemption with regard to proposed dredging of an existing canal.

PRELIMINARY STATEMENT

This matter began on May 21, 1996, when Petitioner James Bunch requested formal administrative proceedings with regard to Respondent's denial of the application for permit exemption filed by Petitioner Santa Rosa County.

Subsequently, the Petition For Administrative Hearing was referred to the Division of Administrative Hearings for conduct of formal proceedings.

Final hearing was convened on October 25, 1996, at which time counsel for Petitioner Bunch (Bunch) sought, in concert with counsel for the Board of County Commissioners of Santa Rosa County (County), to amend the initial Petition to include the County as a party petitioner. The motion for amendment was granted.

At the final hearing, Petitioners jointly presented the testimony of nine witnesses and 16 exhibits of which 15 were

admitted into evidence. Respondent presented testimony of two witnesses and four exhibits, all of which were admitted. A transcript of the final hearing was filed with the Division of Administrative Hearings on December 3, 1996.

The parties requested and were granted leave to file posthearing submissions more than 10 days after the filing of the transcript, and in accordance with Rule 60Q-2.031, Florida Administrative Code, waived provisions of Rule 28-5.402, Florida Administrative Code.

The parties’ proposed recommended orders have been reviewed and utilized in the preparation of this recommended order.

FINDINGS OF FACT

1. Bunch owns a house on a lot leased from the County. The lot is located on Navarre Beach Finger Canal Number 2. Bunch purchased the house, in part, to use the canal for access to Santa Rosa Sound in his pursuit of recreational boating activities. If permitted, the opening of the canal will allow Bunch to have easier access to his house with his boat. Denial of the maintenance dredging exemption to date has impaired Bunch’s full use of the property.

2. The County applied for a permit to dredge and perform certain activities to enhance navigability of Navarre Beach Finger Canal Number 2 on March 5, 1996. The application was

   submitted by the County on behalf of residents with property located on the Canal.

3. As part of the permit review process, Respondent’s personnel determined that the maintenance dredging exemption of Section 403.813(2)(f), Florida Statutes was not applicable to the requested dredging of a sand bar at the mouth of Navarre Beach Finger Canal Number 2.

4. Navarre Beach Finger Canal Number 2 is a man-made water body meeting the definition of the term “canal” contained in Rule 62-312.050(3), Florida Administrative Code.

5. As documented by evidence presented at the final hearing, Navarre Beach Finger Canal Number 2 is currently navigable and functional. The Canal is accessed and navigated by different types of recreational water craft, inclusive of a 23 foot pleasure craft with a two and a half foot draft, john boats, jetskis and a 27 foot Rendezvous Bayliner Boat. The average size of recreational residential boats in Florida is 23 feet. During the 1960’s, the Canal was open and accessed by similiar fishing and pleasure boats.

6. Navarre Beach Finger Canal Number 2 has progressively widened and deepened in recent years. Plugged from at least 1970 until 1992, the Canal was opened by the natural event of Hurricane Opal which removed a solid sand dune separating the

   Canal from Santa Rosa Sound. Recent measurements establish that the Canal depth is three feet at the mouth where the sand bar is located, 12 feet just inside the sand bar, and then varying depths ranging between four to seven feet for the length of the Canal. At the lowest tide conditions, the depth at the sand bar is approximately one and one half feet and increases to four feet or more at high tide.

7. The mouth of Navarre Beach Finger Canal Number 2 since Hurricane Opal varies from 40 to 50 feet in width at high tide to six to ten feet wide at the lowest tide conditions.

8. Water depths in Santa Rosa Sound and connected waters vary with tide stage and time of year. Average water depth in the Sound in the area of Navarre Beach Finger Canal Number 2 is five to six feet. Sometimes, on a winter low tide, one can walk

   100 feet out into the Sound and still be on dry land. During a four to five consecutive day period in August of 1996, mid (not high or low) tide yielded a depth of three feet at the sand bar across an area of 10-20 feet at the mouth of the Canal. Extremely low tide conditions were observed by Respondent’s employee on an October 14, 1996 inspection of the area which revealed an estimated depth of one and a half feet at the mouth of the Canal across an area of approximately six feet. Under average conditions, the mouth of the Canal corresponds to the

   August 1996 measurements with a 10 to 20 width and a three foot depth at the sand bar.

9. Navarre Beach Finger Canal Number 2 is not presently closed and regularly exchanges water with Santa Rosa Sound.

10. Constructed sometime between 1962 and 1964, Navarre Beach Finger Canal Number 2 was originally dredged all the way to Santa Rosa Sound. There was no sand bar at the mouth. The Canal was fully navigable and freely accessed by fishing and pleasure boats from the Sound. Historical plats, engineering drawings, plats and survey drawings corroborate testimony of witnesses at the final hearing that the Canal was open and functional in the 1960’s and 70’s and was maintained.

11. Between 1972 and 1984, sand accumulated at the mouth of Navarre Beach Finger Canal Number 2. There was a periodic flow between the Canal and the waters of Santa Rosa Sound and pumping or dredging of sand took place. Generally, this ongoing maintenance was accomplished informally without permits or written authorization. Boats occasionally went in and out of the Canal. Over the years following 1980, the flow decreased but there was always some water flowing in and out of the Canal in connection with the waters of the Sound.

12. In the early to mid 1980’s approximately 900 feet of the sides and bottom of Navarre Beach Finger Canal Number 2 were

    dredged, but sand at the mouth of the Canal was left alone. A permit exemption for the purpose of maintenance dredging of the Canal was previously granted in 1980.

13. Barrier island shorelines, such as Santa Rosa Island, change frequently and are considered to be “dynamic areas”. If considered to be maintenance dredging, the removal of the sand bar at the mouth of Navarre Beach Finger Canal Number 2 qualifies as a typical, routine type of maintenance common in this type of coastal setting.

14. Petitioners maintain that the proposed maintenance dredging activity will be conducted so that all the spoil material will be placed on an upland disposal site without any discharge of materials into waters of the State of Florida; will be accomplished only to the extent necessary to restore Navarre Beach Finger Canal Number 2 to it’s previously dredged design and without any dredging below five feet of the mean low water line; will have no adverse effect on fish and wildlife conservation, including endangered or threatened species; will not adversely affect navigation or flow of water; will not cause harmful shoaling or erosion results; will not affect fishing, recreational values or marine productivity in the vicinity; will have permanent results with regard to functionality of the Canal; and will not adversely affect significant historical or archaeological resources or the current condition in relative

    value of functions being performed in the areas affected by the proposed activity.

15. Petitioners’ application for exemption from the dredging permit process addressed matters other than the maintenance exemption sought in this proceeding. As established by testimony at the final hearing, those activities will not be conducted as part of the proposed maintenance dredging exemption.

16. Dan Garlick, Petitioners’ expert in water quality, coastal ecology, and marine contracting, supervised the preparation of a December 8, 1995 report of the hydrographic conditions at Navarre Beach Finger Canal Number 2. The purpose of the report was to estimate the flushing potential of the Canal when opened. By comparing present conditions in the adjacent and similar Navarre Beach Finger Canal Number 1 to anticipated post dredge conditions in Navarre Beach Finger Canal Number 2, a “worst case scenario” documented in the report shows a flushing time of 5.9 hours for Navarre Beach Finger Canal Number 2. This is an exceptional flushing time.

17. 1995 and 1996 water quality sampling in Navarre Beach Finger Canal Number 2 reveals that the Canal water generally exceeds applicable class III standards. Bacteria counts in Santa Rosa Sound have exceeded those found in the Canal.

18. Removal of the remainder of the sand barrier at the

    mouth of Navarre Beach Finger Canal Number 2 will result in a water quality as good as that in nearby Navarre Beach Finger Canal Number 1--a quality that meets all applicable state standards. Degradation of water quality of waters of the State of Florida will not result from opening of Navarre Beach Finer Canal Number 2.

19. Sailmaker Cove Canal is situated approximately 3 miles from Navarre Beach Finger Canal Number 2 and opens into Santa Rosa Sound. From 1989 until the permitting of maintenance dredging in 1993 or 1994, there was no exchange of water between Sailmaker Cove Canal and Santa Rosa Sound. In that instance, Respondent’s personnel determined that a maintenance dredging exemption was appropriate.

20. Petitioner James Bunch is included in the list of affected property owners whose names and addresses were included with the application to Respondent for permission to conduct the dredging activity which is the subject of this proceeding. Petitioner Bunch and Petitioner Santa Rosa County Commission have standing to bring this proceeding.

    CONCLUSIONS OF LAW

    
    

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

22. Bunch, as an owner of a residence on Navarre Beach

    Finger Canal Number 2 with substantial interests which may be affected by Respondent’s agency action with regard to the pending application for permit dredging exemption, and Petitioner Santa Rosa County Commission have standing to bring this proceeding.

23. Navarre Beach Finger Canal Number 2 is presently navigable and functional as evidenced by current usage of the Canal by watercraft of various sizes. Respondent argues that granting the requested permit will allow dredging for restoration as opposed to maintenance of the Canal. Respondent has not defined the term “restoration” in its administrative rules. Respondent’s argument would be more persuasive absent the intervention of natural forces which have opened the Canal to navigation. The Canal’s present navigability is well documented by the proof presented at the final hearing.

24. The determination of applicability of the maintenance dredge exemption depends upon the functionality of the canal at issue. This determination is made on a case-by-case basis. Church of Jesus Christ v. St. Johns Water Management District,

    489 So. 2d 59 (Fla. 5th DCA 1986); Manasota-88, Inc. et. al. v. Hunt Building Corp. and State of Florida DEP, 13 FALR 927, 929- 930.

25. The requisite facts necessary to obtain the proposed maintenance dredging exemption available pursuant to Rule 62-

312.050(1)(e), Florida Administrative Code, are established. Navarre Beach Finger Canal Number 2 was dredged prior to 1970; is of artificial construction; only a small portion of the Canal at the mouth requires maintenance dredging at present; spoil material will be removed and deposited on a self-contained upland spoil site; dredging will be limited to the rule’s requirements; and pollutant discharges into waters of the State will be prevented during dredging.

RECOMMENDATION

Based upon the foregoing findings of fact and the conclusions of law, it is,

RECOMMENDED:

That a final order be entered granting the requested maintenance dredging exemption.

DONE and ENTERED this 14th day of January, 1997, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1997.

COPIES FURNISHED:

Thomas V. Dannheiser, Esquire Santa Rosa County

Board of County Commissioners 6865 Caroline Street SE

Milton, FL 32570-4978

Lynette L. Ciardulli, Esquire Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

William W. Goodell, Jr., Esquire LL and E Tower

909 Poydras Street, Suite 2550 New Orleans, LA 70112-4000

Virginia B. Wetherell, Secretary Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Perry Odom, Esquire Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-002941

Orders for Case No: 96-002941