STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EDMOND BLOUNT, SR.; EDMOND BLOUNT, JR.; ) ROBERT DAVENPORT; and GERARD MURNAN, )
)
Petitioners, )
)
vs. ) Case No. 98-2006
) OGC No. 98-1186 CITY OF MEXICO BEACH and DEPARTMENT )
OF ENVIRONMENTAL PROTECTION, )
)
Respondents. )
)
) EDMOND BLOUNT, JR.; ROBERT DAVENPORT; ) and GERARD MURNAN, )
)
Petitioners, )
)
vs. ) Case No. 98-2007
) OGC No. 98-0156 CITY OF MEXICO BEACH and DEPARTMENT )
OF ENVIRONMENTAL PROTECTION, )
)
Respondents. )
)
RECOMMENDED ORDER
On July 29, 1998, and continuing on August 6, 1998, a formal hearing was held in this case. Authority for conducting the hearing is set forth in Sections 120.569 and 120.57(1), Florida Statutes. The hearing location was the City of Mexico Beach Civic Center, Mexico Beach, Florida. The hearing was conducted by Charles C. Adams, Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioners: Edmond Blount, Sr., pro se
Post Office Box 13855
Mexico Beach, Florida 32410
Edmond Blount, Jr., pro se Post Office Box 13854
Mexico Beach, Florida 32410
Robert Davenport, pro se Post Office Box 13926
Mexico Beach, Florida 32410
Gerard Murnan, No appearance Post Office Box 13378
Mexico Beach, Florida 32410 For Respondent City of Mexico Beach:
Paul G. Komarek, Esquire Daniel and Komarek, Chartered
315 East 4th Street Post Office Box 2547
Panama City, Florida 32402
For Respondent Department of Environmental Protection:
Ricardo Muratti, Esquire
Department of Environmental Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
Is the City of Mexico Beach (the City or Applicant) entitled to the issuance of a joint coastal permit and consent to use of sovereign submerged land for the Mexico Beach Canal (Main Canal) and a municipal flushing outlet adjacent to 8th Street (8th Street outlet)? Those permits would be issued by the Department of Environmental Protection (DEP) in response to DEP Application File No.: 0124938-001JC and DEP Application File No.: 0129039- 001JC, respectively.
PRELIMINARY STATEMENT
On June 13, 1997, the City applied to DEP for the necessary permits to conduct maintenance activities in association with the 8th Street outlet. This was followed by its application to DEP for necessary permits associated with maintenance dredging of the Main Canal. The latter application was made on June 30, 1997.
On January 13, 1998, DEP gave notice of its intent to issue necessary permits in association with Main Canal. On March 16, 1998, DEP gave notice of its intent to issue necessary permits in association with the 8th Street outlet. The intent to issue necessary permits in association with the Main Canal was protested by written petitions from Edmond Blount, Jr.; Robert Davenport; and Gerard Murnan. The intent to issue necessary permits in association with the 8th Street outlet was contested by those Petitioners and Edmond Blount, Sr.
The petitions in opposition to the grant of the permits were forwarded to the Division of Administrative Hearings for assignment of an administrative law judge to conduct an evidentiary hearing to resolve their disputes in accordance with Section 120.57(1), Florida Statutes. Those requests for assignment were received by the Division on April 30, 1998. The transmittal of the petitions was accompanied by the DEP motion to consolidate the petitions for consideration by the Administrative Law Judge. That motion was unopposed. The motion to consolidate was granted on June 12, 1998.
The City and DEP filed separate motions to dismiss the petitions challenging the intent to grant necessary permits. Petitioners offered a written response to the motions which more specifically identified their interests affected by the grant of the permits. Having in mind that information provided by the Petitioners and being otherwise advised in the premises, the motions to dismiss were denied, in an order which reminded the parties that the case would be considered in keeping with the statutes and rules which had pertinence to the notices of intent to issue the permits and in keeping with the issues identified in the petitions in challenge to the intent to grant. The order denying the motions to dismiss was entered on June 12, 1998.
On June 12, 1998, a Notice of Hearing was sent setting forth July 28 and 29, 1998, for hearing in Panama City, Florida, at the City Hall.
There ensued written communications from the public requesting a change in the hearing location and asking that members of the public be allowed to testify at the hearing. The parties were noticed of these communications and given the opportunity to file responses. That notification was made on July 2, 1998. In the notice of communications provided on
July 2, 1998, the parties were given until July 13, 1998, at their option, to file responses to the public requests to change the hearing location to Mexico Beach and to testify as members of the public. The parties were informed by that notice of
communications that a decision would be made concerning the public request to change the hearing venue and to be provided the opportunity to testify at the hearing as members of the public.
Counsel for the City moved to continue the July 28, 1998 hearing date in view of a scheduling conflict. DEP did not oppose the motion. Petitioners filed a written objection to the motion. On July 2, 1998, an order was entered continuing the July 28, 1998 hearing date, leaving in place the July 29, 1998 hearing date and scheduling August 6, 1998, as a substitute hearing date.
On July 9, 1998, the parties were provided additional written communications from members of the public concerning the hearing location and the opportunity for public comment. A third notice of communications was provided on July 20, 1998, concerning the hearing location, opportunity for public comment and other related matters.
The parties presented written responses to the request to change the hearing location and to allow public testimony during the hearing. On July 20, 1998, an order was entered which changed the hearing location from Panama City Beach to Mexico Beach, allowing public testimony to be presented on August 6, 1998, from 6:00 p.m. to 9:00 p.m. CDT.
At hearing DEP presented the testimony of Robert M. Brantly, Jr. The City presented Peter M. Sylvester, M.D.; Charles Parker; Mary Leonard; and Jon DeClerk as witnesses.
Petitioners presented Gary Gaddis; Howard Spann; Robert Davenport; Edmond Blount, Jr.; Robert Brantly; Frederick Sheer; and Jon DeClerk as its witnesses. Petitioners presented Exhibits 1, 2, 2A and 3 through 33 as its exhibits. Exhibits 25 and 26 were denied admission. Ruling was reserved on the admission of Petitioners' Exhibit 31. All other exhibits by Petitioners were admitted. Upon further consideration, Petitioners' Exhibit 31 is denied admission. DEP Exhibits 1-9 were admitted. City Exhibits 1-4 were admitted.
A transcript of the hearing was filed on September 8, 1998.
The deadline for filing proposed recommended orders was September 18, 1998. The City requested an extension of time to file proposed recommended orders. By requesting an extension of time to file proposed recommended orders, the parties waived the requirement that the recommended order be entered within 30 days of receipt of the transcript. See Rule 28-106.216, Florida Administrative Code. That motion was unopposed. The parties were advised that the new deadline for submitting proposed
recommended orders was September 25, 1998. The parties submitted proposed recommended orders which were considered in preparing the recommended order.
FINDINGS OF FACT THE PARTIES
Petitioners Edmond Blount, Sr.; Edmond Blount, Jr.; and Robert Davenport are residents of the City of Mexico Beach,
Florida. As residents they have access to the Main Canal, the public beaches adjacent to the Main Canal, and beaches adjacent to the 8th Street outlet.
Edmond Blount, Jr., and Robert Davenport oppose the issuance of any permits by DEP which would allow the City to conduct dredging and the placement of dredge materials associated with the Main Canal. Those Petitioners and Edmond Blount, Sr., oppose the grant of necessary permits by DEP upon the application by the City to conduct occasional maintenance excavation at the 8th Street outlet to alleviate potential damage through erosion to properties adjacent to the 8th Street outlet.
The City of Mexico Beach is a municipality in Florida which serves as the local government for that community. The City owns the Main Canal and 8th Street outlet.
DEP is an environmental regulator with authority to issue or deny joint coastal permits and to grant or deny consent to use sovereign submerged lands belonging to the State of Florida.
The joint coastal permitting authority and right to grant consent to use is pursuant to Chapters 161, 253, and 373, Florida Statutes, and Chapters 18-21 and 62B-49, Florida Administrative Code.
In particular, DEP has joint coastal permitting authority upon sovereignty lands in the State of Florida below the mean high waterline (MHWL) of any tidal water of the State.
The reference to sovereign land is an association with lands below MHWL held in trust by the State of Florida. The term tidal waters refers to waters in which there is an astronomical effect on the elevation of that water. The Gulf of Mexico which fronts the City is a tidal water of the State of Florida. The MHWL is established along the coastal regions in Florida, to include the Gulf coast that fronts the City. The MHWL is set based upon charting information concerning the local mean high tide, the average height of the high waters, and where this average intersects the land.
PERMIT APPLICATION FOR MAIN CANAL
On June 30, 1997, the City applied to DEP for a ten-year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees of the Internal Improvement Trust Fund (the Trustees), which would allow the City to maintenance dredge the Main Canal entrance and place the dredge material on the beach east of the canal below the water's edge. This task would be accomplished by the use of hydraulic dredging device. In the course of these activities, approximately 660 cubic yards of material would be removed approximately four times a week.
The application file number for the requested permit in the Main Canal project was: 0124938-001 JC.
The City, through its application, provided a complete and appropriate application with adequate engineering data to support the proposed project.
The Main Canal is located in the western part of the City and is partially located in sovereign submerged lands of the State of Florida where the canal intersects the Gulf of Mexico below the MHWL.
On January 13, 1998, DEP gave notice of its intent to issue necessary permits for the activities to allow dredging and the placement of fill in association with the Main Canal.
More specifically, the hydraulic dredge the City intends to use in the maintenance dredging of the Main Canal is a floating device which excavates the sand from the bottom of the entrance of the Main Canal and pipes the material onto the beach immediately east of the dredge site. The dredging activities may only be conducted in a manner designed to protect the beach-dune system, water quality and habitat for marine turtles. These restrictions in the conduct of the dredging are in accordance with the proposed joint coastal permit.
The dredging activity is to remove and deposit clean beach sand that has been transported by coastal processes and deposited in the lee of the jetty within the Main Canal. There is no intent, nor permission under the proposed permit, that would allow disturbance of any sediments more landward of the extent of the canal.
The dredging is necessitated because the entrance of the Main Canal slowly fills with sand being transported from west to east along the shoreline.
The Main Canal is stabilized on both sides by jetties. The western-most jetty extends further out than the eastern-most jetty. The Main Canal has seawalls along its inside.
A recreational area is located on the western side of the Main Canal.
The Main Canal is highly utilized for purposes of commerce and recreation. The Main Canal constitutes an economic support for many residents of the City.
The Main Canal in proximity to the Gulf and the Gulf itself are not considered outstanding Florida waters or aquatic preserves. The waters in the Main Canal and Gulf are Class III marine waters when considering the parameters for water quality under DEP statutes and rules.
Competent evidence was presented concerning water quality sampling and results in the analysis of those samples for fecal coliform bacteria and total coliform bacteria in relation to the Main Canal at its entrance where dredging would take place under the terms of the permit. Some values for fecal coliform and total coliform exceeded the allowable limits for those parameters as envisioned by Section 62-302.530, Florida Administrative Code, as preexisting conditions. However, the dredge operations will not lead to further degradation of the
existing Class III marine waters in the Main Canal and degradation of the Gulf.
The relatively clean sand being excavated does not contain fines or organics, which, through the dredging and placement of the sand on the beach following the dredging, would contribute to degradation of water quality standards.
The activity associated with the dredging and placement of those materials on the beach will not cause a significant adverse impact to the beach-dune system, nor will the transport of sand from west to east along the beach as it presently exists be interrupted by the dredging and placement of the sand. The dredged material is being placed immediately east of the dredge operation avoiding a disruption of the natural processes of transport. The proposed disposal area is located on the beach at least 100 feet east of the canal below the waters edge at approximately minus 0.5NGVD. Finally, the deposit of the sand on the beach contributes to beach stabilization as opposed to depriving the beach of sand.
The proposed permit requires that the dredge pipeline be retracted upon a daily basis during marine turtle nesting season from May 1 until October 31 each year. By this limitation in the operation of the dredge pipeline, marine turtles are not hindered in their behavior nor is their habitat unduly disturbed. The placement of the dredged sand on the beach would not be in the dry upland where the turtles would typically nest. The DEP
Bureau of Protected Species Management reviewed the permit application for any significant adverse impact on nesting sea turtles and recommends the approval subject to specific conditions such as have been described.
The dredging of the sand from the Main Canal and placement of that material on the beach will not cause significant adverse impact to the property of others.
The Main Canal project will not create any significant erosion or turbidity. Given the small volume and coarseness of the dredged sand, elevated turbidity levels are not expected.
The dredging of material from the mouth of the Main Canal and placement on the adjacent beach does not block lateral access to the beach, because the hydraulic dredge pipeline is placed at the water's edge with a discharge of dredge material being made at the water's edge in the area of the intertidal zone where water comes up to the beach. The exact discharge point is seaward of the area described as the intertidal zone.
Given that the project associated with the Main Canal is located in Class III marine waters, it must not be contrary to the public interest. The project is not contrary to the public interest.
PERMIT APPLICATION FOR 8TH STREET OUTLET
On June 13, 1997, the City applied to DEP for a ten- year permit/water quality certification and authorization to use sovereign submerged lands owned by the Board of Trustees. This would allow the City to conduct occasional excavation of the 8th Street municipal flushing outlet which connects to the Gulf, having in mind the alleviation of potential damage to adjacent beachfront properties. That potential damage would be expected to occur in the instance where there was an uncontrolled breach of the berm surrounding the 8th Street outlet due to high incidence of rainfall, thus eroding adjacent beachfront properties. With the advent of scheduled maintenance, excavation of the outlet that erosion is expected to be deterred.
The application file number for the requested permit in the 8th Street outlet project was File No.: 0129039-001 JC.
The City, in its application for necessary permits to conduct excavation at the 8th Street outlet, submitted a complete and appropriate application setting forth adequate engineering details.
More specifically, the permit application contemplates the removal of approximately 20 to 40 yards of beach sand per excavation, with the material excavated being placed on the beach near the water's edge. The excavation would be approximately 4 to 5 feet wide, 50 feet long, and 2 to 3 feet deep. Ordinarily, the frequency of excavation would be one to two times per month. The excavation practices would be by the use of a backhoe other
than in the sea turtle nesting season. While sea turtles are nesting, the plans contemplate excavation by hand by use of a shovel or similar tool. In addition, during the turtle nesting season the application contemplates that the excavation would be done during daylight hours, only twice a month, to reduce potential flooding of marine turtle nests due to a meandering outflow from the outlet. Other than in the marine turtle nesting season the excavation would be done on an "as needed" basis.
On March 16, 1998, the DEP gave notice of its intent to issue a permit for the dredging at the 8th Street outlet.
The conditions associated with the intended permit for dredging of the 8th Street outlet deter any significant adverse impacts to the beach-dune system.
In the area of the 8th Street outlet, a large box culvert runs underneath U.S. 98, the main highway in the city. That highway runs parallel to the beach. Once the water flows through the culvert, it accumulates in the outlet south of the road. In the instance where rainfall is diminished, the flushing outlet does not flow to the Gulf and the beach berm, which accretes seaward of the outlet, traps the water that is being released via the culvert.
By contrast, in instances where heavy rainfall occurs, the water in the outlet collects to a point that it begins to flow away from the culvert in the direction of the Gulf. If the beach berm has built up over time, the path of that flow in high
incidence of rainfall can encroach on buildings that are adjacent to the culvert on the south side of U.S. 98. When the rainfall is sufficient, and the water begins to flow, it reaches a sufficient velocity to move sand as a bed load. Under those circumstances, when the water strikes a ridged object, like a house foundation, the local water velocity will act to carry away the sand more readily from that location where the house foundation is found, by scouring out the sand near the foundation, undermining the building and risking the collapse of the building onto the beach. In the course of this process the water breaches the beach berm and flows towards the Gulf. In the instance where the berm on the beach has been breached, the water that has been released begins to scour the beach and establish a pattern that can run down the beach roughly parallel to the Gulf for a distance before flowing into the Gulf.
By contrast, the controlled release of water from the outlet would cause less of an impact, in that it would create an immediate access through the beach berm to the Gulf without creating the potential for harm to upland property or causing erosion or scouring of dunes and vegetation in beach areas, some of which might contain turtle nests.
Unlike the circumstances with high incidence of rainfall where adjacent property is eroded and damaged, the use of controlled maintenance excavation to relieve the outlet would not cause significant and adverse impact to adjacent property
owners. The controlled release of the water in the outlet, unlike the natural release of that water in high incidence of rainfall, is more in the interest of the public when considering adverse impacts to property.
The introduction of the water in the outlet, and its constituents, onto the beach and its consequences, is no more a problem whether based upon the natural event of high incidence of rainfall or the routine release contemplated by the project. Therefore, the alternative method of releasing the water by use of scheduled excavation is not contrary to the public interest. If anything, the use of periodic excavation to relieve the outlet would limit the breadth of discharge and the amount of discharge.
The 8th Street outlet and the Gulf area adjacent to that outlet are not within outstanding Florida waters or aquatic preserves. The project site for the 8th Street outlet and the Gulf are within Class III marine waters.
The existing Class III marine water quality parameters for fecal coliform and total coliform when considered in accordance with Rule 62-302.530, Florida Administrative Code, have been exceeded in the 8th Street outlet. This is borne out by test results from samples gathered at the 8th Street outlet presented at hearing. However, as with the circumstance with the Main Canal, the effect of periodic excavation to relieve the outlet will not further degrade state waters found in the outlet. The results of water quality tests performed following sampling
that relate to the amount of fecal coliform and total coliform in the Gulf that could be expected at the entrance of the Main Canal and as the discharge of water within the 8th Street outlet enters the Gulf show low values for those parameters. Therefore, it is not anticipated that the release of the water from the 8th Street outlet to the Gulf under controlled conditions contemplated by the permit application would cause a violation of the parameters for fecal coliform and total coliform in the Gulf, the receiving body of water, especially when compared to the existing release of water from the 8th Street outlet to the Gulf in high incidence of rainfall. This finding is also influenced by the fact that the most excessive values for total coliform and fecal coliform in the 8th Street outlet system were found 600 to 800 feet up the water course described as the 8th Street outlet.
Similar to the Main Canal, the project contemplated at the 8th Street outlet would not require mitigation before being permitted by DEP.
The 8th Street outlet project would not create significant adverse impacts on coastal sediment transport.
The DEP Bureau of Protective Species Management reviewed the 8th Street outlet application and recommended approval with specific conditions. Those conditions offer adequate protection to marine turtles and their habitat. The conditions include project excavation that does not create
parallel trenches in the sand that inhibit movement on the beach by sea turtles.
The 8th Street outlet project will not create significant erosion concerns or turbidity concerns.
The 8th Street outlet project does not block lateral beach access to the public, in that the excavation to relieve the outlet on a periodic basis is temporary, that is to say only in effect when the water is being released from the outlet to the Gulf.
CONSENT TO USE SOVEREIGN SUBMERGED LANDS
The 8th Street outlet project, as well as the Main Canal project, involves sovereignty submerged lands below the MHWL constituted of the beach and ocean bottom.
The facts show that the City is entitled to consent of use to work on sovereign submerged lands in the Main Canal and 8th Street outlet projects.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in accordance with Sections 120.569 and 120.57(1), Florida Statutes.
Petitioners' Edmond Blount, Sr.; Edmond Blount, Jr.; and Robert Davenport have standing to bring challenges to the DEP intent to grant necessary permits under application File No.: 0124938-001 JC, the Main Canal, and application File No.: 129039- 001 JC, the 8th Street outlet.
Both projects involve activities subject to regulation under Chapter 161, Florida Statutes, pertaining to beach and shore preservation. As such, permits are required in accordance with Section 161.041, Florida Statutes, before undertaking the activities called for in the permit applications. Those applications are subject to review by DEP.
The type permit contemplated by Part I of Chapter 161, Florida Statutes, at Section 161.041, is referred to as a coastal construction permit.
Chapter 62B-41, Florida Administrative Code, further establishes requirements for obtaining coastal construction permits.
Both projects involve surface waters regulated by DEP and are subject to the regulatory process set forth in Part IV of Chapter 373, Florida Statutes, involving the management and storage of surface waters.
The permit required by Part IV of Chapter 373, Florida Statutes, is referred to as an environmental resource permit.
Both projects involve the use of sovereignty lands of Florida held by the Trustees. Those are lands below MHWL of a tidal water of the state and are classified as sovereign submerged lands.
Given the intent to use sovereign submerged land held by the Trustees, responsibilities of DEP reference that land are implicated in Chapter 253, Florida Statutes, and Rules 18-21.0040 and 18-21.0051, Florida Administrative Code. Those provisions allow for DEP to review and make decisions upon the use of sovereign submerged land held by the Trustees.
To facilitate consideration of the request for coastal construction permits, environmental resource permits, and proprietary use of sovereign submerged lands owned by the Trustees, the permit applications for both projects have undergone review in accordance with Chapter 62B-49, Florida Administrative Code, which allows for the consideration of the
permit applications and consent to use sovereign submerged land in one application per project. This process of permit review and consideration of a request to use sovereign submerged lands recognizes the delegation provisions of Chapter 18-21, Florida Administrative Code, from the Trustees to DEP in making decisions concerning the use of sovereign submerged lands. Chapter 62B-49, Florida Administrative Code, also takes into account the standards and criteria for issuance of environmental resource permits and coastal construction permits in satisfaction of requirements set forth in Title 62, Florida Administrative Code. Given the nature of both projects, the dredge and fill requirements set forth in Chapter 62-312, Florida Administrative Code, must be met by the City to include Rule 62-312.065, Florida Administrative Code, setting forth additional requirements for this concurrent review. Implicated by the challenges brought by these Petitioners, are the water quality standards for Class III: Marine Waters, for the parameters of Bacterial Quality (fecal coliform bacteria) and (total coliform bacteria). See Rule 62- 302.530, Florida Administrative Code.
The City, as the applicant, bears the burden of proving its entitlement to the joint coastal construction permits and environmental resource permits together with the proprietary opportunity to use sovereign submerged lands for these projects. See Department of Transportation v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981). That proof must be by a preponderance
of the evidence.
The proposed projects do not interfere with the use by the public of areas of the beach seaward of MHWL, other than the limited activity of protecting endangered upland structures near the 8th Street outlet, nor do the projects require the provision of alternative public access to the beach. See Section 161.041, Florida Statutes.
The proposed projects will have no significant adverse impact on the beach-dune system or shoreline stability. Therefore, mitigation that affects the project is not required. See Section 161.041, Florida Statutes, and Rule 62B-41.005, Florida Administrative Code.
Reasonable conditions have been set forth in the proposed permits for both projects to protect marine turtles and their habitat. See Rule 62B-41.0055, Florida Administrative Code.
Nothing involved with the proposed projects will constitute a taking of marine turtles or their habitat or an interference with their essential behaviors. Therefore, DEP is not prohibited from issuing the requested permits. See Section 370.12(1), Florida Statutes.
The City must satisfy the requirements of Section 373.414, Florida Statutes, in relation to water quality standards pertaining to the Main Canal, the 8th Street outlet, and the Gulf by virtue of the activity called for by both projects. The City
must provide reasonable assurance that the state water quality standards set forth in the Florida Administrative Code will not be violated as a result of the activity. Reasonable assurance has been given that state water quality standards will not be violated by virtue of the activities in the proposed projects. The activities in the proposed projects will not violate the water quality standards by degrading the water quality below the standards. In particular, the proposed activities for these projects will not cause a violation of the parameters in the Class III marine waters associated with the project for fecal coliform and total coliform. See Rule 62-302.530, Florida Administrative Code. To the extent conditions exist which have led to violations of the parameters for fecal coliform and total coliform, as evidenced by sampling and analysis of water in the area of the proposed projects, the activity in the proposed projects will not further degrade the water in the Main Canal, and 8th Street outlet, or cause degradation of water quality in the Gulf below acceptable parameters for fecal coliform and total coliform. See also Rule 62-312.080(1), Florida Administrative Code.
Section 373.414, Florida Statutes, makes it incumbent upon the City to give reasonable assurance that the activities involving the Main Canal, 8th Street outlet, and the Gulf are not contrary to the public interest. Reasonable assurance has been given that the activities for the proposed projects are not
contrary to the public interest.
The City having shown that this project is not contrary to the public interest is entitled to the DEP authorization/consent to use the sovereign submerged lands involved with the projects. See Rule 18-21.004, Florida Administrative Code.
The proposed projects by the City have been demonstrated to be unharmful to the water resources regulated by DEP. See Section 373.414, Florida Statutes.
The City in all other respects required by the referenced statutes and rules has shown its entitlement to the permits and consent to use sovereign submerged lands.
Based upon the facts found and the conclusions of law reached, it is
RECOMMENDED:
That DEP issue a final order granting the City the joint coastal permits and consent to use sovereign submerged lands in accordance with application File Nos.: 0124938-001JC and 0129039-001JC respectively, subject to specific conditions contained therein.
DONE AND ENTERED this 10th day of November, 1998, in Tallahassee, Leon County, Florida.
CHARLES C. ADAMS
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 10th day of November, 1998.
COPIES FURNISHED: | |
Edmond Blount, Sr. Post Office Box 13855 Mexico Beach, Florida | 32410 |
Edmond Blount, Jr. Post Office Box 13854 Mexico Beach, Florida | 32410 |
Robert Davenport Post Office Box 13926 Mexico Beach, Florida | 32410 |
Gerard Murnan Post Office Box 13378 Mexico Beach, Florida | 32410 |
Paul G. Komarek, Esquire Daniel and Komarek, Chartered Post Office Box 2547
Panama City, Florida 32402
Ricardo Muratti, Esquire Department of Environmental
Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
John McInnis, City Manager City of Mexico Beach
Post Office Box 13425
Mexico Beach, Florida 32410
Kathy Carter, Agency Clerk Department of Environmental
Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
F. Perry Odom, General Counsel Department of Environmental
Protection Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 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.
| Issue Date | Proceedings |
|---|---|
| Dec. 24, 1998 | Final Order filed. |
| Nov. 10, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 7/29/98 and 8/6/98. |
| Sep. 30, 1998 | (DEP) Page 12 of Petitioner`s PRO (filed via facsimile). |
| Sep. 25, 1998 | Department`s Proposed Recommended Order filed. |
| Sep. 25, 1998 | City of Mexico Beach`s Proposed Recommended Order (filed via facsimile). |
| Sep. 24, 1998 | Proposed Recommended Order for the Petitioners filed. |
| Sep. 15, 1998 | (Respondent) Motion for Extension of Time for Submitting Proposed Order (filed via facsimile). |
| Sep. 08, 1998 | Transcripts (Volumes I, II, III, tagged) filed. |
| Aug. 11, 1998 | Letter to Judge Adams from Mexico Beach Canal Hearings filed. |
| Aug. 06, 1998 | CASE STATUS: Hearing Held. |
| Aug. 05, 1998 | Letter to Judge Adams from C. Parker Re: Drainage ditches w/map filed. |
| Aug. 03, 1998 | (3) Letters Save Our Canal filed. |
| Jul. 31, 1998 | Letter to Judge Adams from L. Seuafford Re: Save Our Canal filed. |
| Jul. 30, 1998 | Letter to Judge Adams from J. Eble Re: Save Our Canal filed. |
| Jul. 29, 1998 | CASE STATUS: Hearing Partially Held, continued to 8/6/98; 10:00am; Mexico Beach. |
| Jul. 28, 1998 | Letter to Judge Adams from S. & J. Keigan Re: Hearing location filed. |
| Jul. 27, 1998 | Letter to Judge Adams from D. Shelby Re: Hearing location filed. |
| Jul. 24, 1998 | Letter to Judge Adams from C. Shulgon Re: Hearing location filed. |
| Jul. 24, 1998 | Letter to Judge Adams from Beverly & George Phillips (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 24, 1998 | Letter to Judge Adams from Mr. & Mrs. J. Cormichael Re: Reschedule hearing filed. |
| Jul. 23, 1998 | (3) Petitioner`s Response to Interrogatories filed. |
| Jul. 23, 1998 | Letter to Judge Adams from W. Hill Re: Requesting hearing be held in Mexico Beach filed. |
| Jul. 23, 1998 | (3) Cards Help Save Our Canal filed. |
| Jul. 23, 1998 | Letter to Judge Adams from T. Shelby (RE: request to change hearing location to Mexico Beach) (filed via facsimile). |
| Jul. 22, 1998 | Post Card from Mr. & Mrs. Rowan to Judge Adams (RE: request to deny permit of Mexico Beach Canal) filed. |
| Jul. 22, 1998 | Letter to Judge Adams from K. & S. Cook Re: Hearings on Mexico Beach dredging permit filed. |
| Jul. 22, 1998 | (2) Letters to Judge Adams from G. & B. Mason, S. Randall-Sell Re: Hearing location filed. |
| Jul. 22, 1998 | Letter to Judge Adams from C. Ray Re: Hearing location (filed via facsimile). |
| Jul. 21, 1998 | Letter to Judge Adams from D. & E. Simmoes Re: Hearing location filed. |
| Jul. 20, 1998 | Card to Judge Adams from L. Carptner Re: Help Save Our Canal filed. |
| Jul. 20, 1998 | (14) Letters to Judge Adams from J. Turvaille, M. & M. Jordan, C. Meier, M. & W. Holberg, W. Tobolt, J. Campbell W. & H. Goodman, G. & D. Howren, D. Sloan, D. Baxter, K. Doan, A. & S. Carter Re Hearing location and dredging filed. |
| Jul. 20, 1998 | Order Rescheduling Hearing Location and Creating the Opportunity for Public Testimony sent out. |
| Jul. 20, 1998 | Notice of Communications sent out. (re: letters filed. at DOAH in reference to hearing location, public comment & other related matters) |
| Jul. 17, 1998 | Card to Judge Adams from J. Allmond Re: Help Save Our Canal filed. |
| Jul. 17, 1998 | Letters to Judge Adams from C. Novota, L. Stripling, R, Wolborne, H. Baker, J. Turner Re: Hearing Location filed. |
| Jul. 17, 1998 | Letter to Judge Adams from N. Arunakui (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 16, 1998 | Card to Judge Adams from M. Davis Re: Help Save Our Canal filed. |
| Jul. 16, 1998 | (8) Letters to Judge Adams from J. Broshar, S. Matinecheck, E. Metcalf, T. & S. Kerns, J. Prentice, D. & S. Gaylor, P. Harrison, D. Herring filed. |
| Jul. 16, 1998 | (3) Letters to Judge Adams from S. Reynolds, P. Kallay, 
J. & J. Stanley Re: Denial of dredging permit filed. |
| Jul. 15, 1998 | (2) Letters to Judge Adams from J. Roberts, J. Carlton Re: Hearing location; Letter to Judge Adams from Unsigned Re: Canal in Mexico Beach filed. |
| Jul. 15, 1998 | Letter to Judge Adams from J. Ackerman (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 15, 1998 | Letter to Judge Adams from D. Breault (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 15, 1998 | Letter to Judge Adams from M. Discher (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 14, 1998 | (Mexico Beach) Response to Citizens` Request to Change Venue filed. |
| Jul. 14, 1998 | Letter to Judge Adams from Several People Re: Requesting hearing be held in Mexico Beach filed. |
| Jul. 14, 1998 | Letter to Judge Adams from B. & J. Cory Re: Hearing location; Letter to Judge Adams from J. DeLorme Re: Resolution 98-1 filed. |
| Jul. 14, 1998 | (4) Letters to Judge Adams from J. Warner, C. & J. Jackson, W. Thomas, Denial of dredging permit for Mexico Beach Canal filed. |
| Jul. 14, 1998 | (7) Letters to Judge Adams from G. Gannaway, P. Laws, B. Holder, D. Levy, J. Levy, J. Thigpen, S. & C. Spencer Re: Hearing location filed. |
| Jul. 14, 1998 | (10) Letters to Judge Adams from M. Martin, W. Hunter, R. Bassett, J. Hines, K. Helms, D. MeAnll, J. Fudge, C. Fudge, J. DiLorenzo, L. Aderhold Re: Hearing Location filed. |
| Jul. 14, 1998 | (8) Letters to Judge Adams from J. Parrott, D. & S. Miller, T. Marquardt, L. Marquardt, J. Gibbens, L. Weathealy, S. & B. Caldwell, J. Murphy Re: Hearing location filed. |
| Jul. 14, 1998 | (9) Letters to Judge Adams from J. Guitter, I. Ginter, G. Hunter, C. Jones, R. Dudzinski, W. Magfield, K. Scherdin, T. Malone, T. S. Malone Re: Hearing location filed. |
| Jul. 14, 1998 | (7) Cards to Judge Adams from M. & M. Putnam, R. & B. Miller, C. King, T. Roberts, D. & P. Hammen, W. Gillen & K. Wilson, T. & A. Menger Re: Help Save Our Canal filed. |
| Jul. 14, 1998 | Letter to Judge Adams from Douglas Hollberg (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 14, 1998 | Letter to Judge Adams from J. Kirkman (RE: request that hearing be moved to Mexico Beach) (filed via facsimile). |
| Jul. 13, 1998 | (2) Letters to Judge Adams from G. Herring, B. Francio Re: Dredging Permit for Mexico Beach Canal filed. |
| Jul. 13, 1998 | (7) Letters to Judge Adams from R. Davis, A. Cathey, S. Norma, A. & L. Nelson, B. Landingham, E. Hendrix, B. & L. Matthews Re: Hearing location filed. |
| Jul. 13, 1998 | (8) Letters to Judge Adams from H. Kinclid, D. Coker, G. Gaddis, V. Young, D. & N. Steinger, G. Warren, J. Newsome, J. Smith Re: Moving hearing from Panama City to Mexico Beach filed. |
| Jul. 13, 1998 | (8) Letters to Judge Adams from B. Host, C. Boylkin, D, Singleton, D. Shipley, B. & J. Host, R. & A. Partridge, J. Smith, B. Tolleson Re: Hearing be moved from Panama City to Mexico Beach filed. |
| Jul. 13, 1998 | (4) Cards to Judge Adams from H. Stafford, M. Stolenber, Mr. & Mrs. J. Mannon, D. & D. Wise Re: Help Save Our Canal filed. |
| Jul. 13, 1998 | Memo to Judge Adams from E. Blount (RE: notice of retaining court reporter) (filed via facsimile). |
| Jul. 13, 1998 | Letter to Judge Adams from C. Mason (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 13, 1998 | (Respondent) Response to Notice of Communication (filed via facsimile). |
| Jul. 13, 1998 | Letter to Judge Adams from R. Sanchez (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 13, 1998 | Letter to Judge Adams from G. Sanchez (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 13, 1998 | Letter to Judge Adams from M. Presswood (RE: request to approve permit to allow dredging of MB Canal) (filed via facsimile). |
| Jul. 13, 1998 | Letter to Judge Adams from W.H.G. Phinizy (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 13, 1998 | Letter to Judge Adams from P. McFadden (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 13, 1998 | Letter to Judge Adams from John Mosley (Re: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 13, 1998 | Letter to Judge Adams from J. Prentice (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 10, 1998 | (2) Letters to Judge Adams from C. Penney, M. Delegal-Joseiak Re: Hearing location filed. |
| Jul. 10, 1998 | Letter to Judge Adams from P. Johnson Re: Revoking permit to dredge the canal; filed. |
| Jul. 10, 1998 | (9) Letters to Judge Adams from B. Hayward, J. Nowood, W. Joswiak, E. Nichols, D. Foley, M. Joesey, M. Penney, L. Latham, C. Bonarus Re: Hearing be moved to Mexico Beach filed. |
| Jul. 10, 1998 | Letter to Judge Adams from J. Mitchell (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 10, 1998 | Letter to Judge Adams from S. Mitchell (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 10, 1998 | Letter to Judge Adams from Maurice Law (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 10, 1998 | Letter to Judge Adams from B. Matthews (RE: request for change of venue) (filed via facsimile). |
| Jul. 09, 1998 | Notice of Communications sent out. |
| Jul. 09, 1998 | (Petitioner) Response to Hearing Change and Various Letters (filed via facsimile). |
| Jul. 09, 1998 | Letter to Judge Adams from M. Gargiulo (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 09, 1998 | Letter to Judge Adams from J. Reynolds (RE: request that hearing be held in Mexico Beach) (filed via facsimile). |
| Jul. 09, 1998 | Letter to Judge Adams from George Riles (RE: request for hearing to be held in Mexico Beach) (filed via facsimile). |
| Jul. 09, 1998 | Memo to Judge Adams from C. McDaniel (RE: request that hearing be moved to Mexico Beach) (filed via facsimile). |
| Jul. 09, 1998 | (2) Letters to Judge Adams from M. Bloemsma, W. Bloemsma Re: Changing venue of hearing from Panama City to Mexico Beach filed. |
| Jul. 09, 1998 | (5) Letters to Judge Adams from M. Norman, D. Hale, B. Harmon, L. Giffin, A. & A. Lindener Re: Hearing location filed. |
| Jul. 08, 1998 | Letter to Judge Adams from W. and J. Norris Re: Location of Hearing filed. |
| Jul. 08, 1998 | Letter to Judge Adams from J. Kraemer Re: Hearing location filed. |
| Jul. 07, 1998 | Letter to Judge Adams from S. Hunter Re: Hearing location filed. |
| Jul. 07, 1998 | Letter to Judge Adams from J. Cobb (RE: request for change of hearing location) (filed via facsimile). |
| Jul. 06, 1998 | Letter to Judge Adams from K. Cox Re: Relocating hearing filed. |
| Jul. 06, 1998 | (3) Letters to Judge Adams from R. Hall, M. Brown, F. Kuax Re: Hearing location filed. |
| Jul. 06, 1998 | (8) Letters to Judge Adams from M. Rycroft, J. Rycroft, G. Wilson, R. Habbn, J. Middeton, F. Guilford, G. Peacock, C. Hobbs Re: Hearing location filed. |
| Jul. 06, 1998 | (Petitioners) Subpoenas for Trial filed. |
| Jul. 06, 1998 | Letter to Judge Adams from S. & M. Pyron Re: Changing hearing location and time of hearing filed. |
| Jul. 02, 1998 | Order sent out. (7/28/98 hearing date cancelled, but hearing will proceed on 7/29/98 & 8/6/98; 9:00am; Panama City) |
| Jul. 02, 1998 | Notice of Communications sent out. (petitioners & respondents to respond by 7/13/98 to changing of venue & testimony of parties) |
| Jul. 02, 1998 | (3) Letters to Judge Adams from B. Crum, J. Crowe, T. Crowe, Hearing location filed. |
| Jul. 02, 1998 | (5) Letters to Judge Adams from W. Krause, N. MrSchile, J. Combs, L. & J. Howell, A. Bealle Re: Hearing location filed. |
| Jul. 01, 1998 | (5) Letters to Judge Adams from J. Rigdon, W. Holman, M. Corbell, W. & F. Guilford, H. Buyer Re: Hearing location filed. |
| Jul. 01, 1998 | (7) Letters to Judge Adams from E. Thompson, B. Miller, C. Danil, W. Connor, J. McCully, R. Johnson, G. & B. Hunter Re: Hearing location filed. |
| Jul. 01, 1998 | (7) Letters to Judge Adams from G. Johnson, W. Danil, S. McGunnis, R. Miller, D. Guilford, C. Guilford, S. & L. Scaboro Re: Hearing location filed. |
| Jun. 30, 1998 | (3) Letters to Judge Adams from J. & B. Heathcock, J. Luke, G. & B. Wyatt Re: Relocating hearing filed. |
| Jun. 29, 1998 | (3) Letters to Judge Adams from G. Woodham, G. Woodham, L. Woodham Re: Requesting hearing be moved to Mexico Beach filed. |
| Jun. 29, 1998 | Letter to Judge Adams from M. Moaachelli Re: Requesting hearing be relocated to Mexico Beach; Letter to Judge Adams from K. Stromguist Re: Hearing location filed. |
| Jun. 29, 1998 | (Petitioner) Objections to Continuance of Hearing (filed via facsimile). |
| Jun. 29, 1998 | (Respondent) Motion for Continuance of Hearing filed. |
| Jun. 12, 1998 | Notice of Hearing sent out. (hearing set for July 28-29, 1998; 9:00 am; Panama City) |
| Jun. 12, 1998 | Order sent out. (Consolidated cases are: 98-2006 & 98-2007; motions to dismiss are denied; City`s motion for attorneys` fees & costs is denied) . CONSOLIDATED CASE NO - CN002975 |
| Jun. 09, 1998 | (DEP) Notice and Certificate of Service of Interrogatories filed. |
| May 26, 1998 | (Petitioners) Motion to Squash filed. |
| May 19, 1998 | Department of Environmental Protection`s Response to Initial Order filed. |
| May 18, 1998 | Ltr. to Judge Smith from P. Komarek re: Reply to Initial Order filed. |
| May 18, 1998 | (DEP) Motion to Dismiss (filed via facsimile). |
| May 18, 1998 | (City of Mexico) Motion to Dismiss filed. |
| May 06, 1998 | Initial Order issued. |
| Apr. 30, 1998 | (exhibits) filed. |
| Apr. 30, 1998 | Motion To Consolidate (DOAH related cases are 98-2006 & 98-2007); Agency Action Letter; Petition Against Proposed Intent To Issue Dredging/Flushing Permit (4); Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 23, 1998 | Agency Final Order | |
| Nov. 10, 1998 | Recommended Order | The City is entitled to joint coastal permit and consent to use sovereign submerged lands to dredge and excavate for municipal projects. |
