STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA DEPARTMENT OF )

ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 75-2060

)

WATERWAYS DEVELOPMENT )

CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came before the undersigned Hearing Officer on the Petition of the Waterways Development Corporation to the Florida Department of Environmental Regulation. This cause was heard on January 21, 1976, at the Judicial Building, St. Petersburg, Florida. The Petitioner, Waterways Development Corporation, has applied to the Department of Environmental Regulation for a permit to install a 2,000 foot vertical seawall-bulkhead along the shoreline of Boca Ciega Bay, St. Petersburg, Pinellas County, Florida.

APPEARANCES

For Petitioner: Vance Kidder, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

For Respondent: Richard T. Earle, Esquire

447 Third Avenue, North

St. Petersburg, Florida 33701

C. Fred Deuel

C. Fred Deuel Associates, Inc. Post Office Box 10116

St. Petersburg, Florida 33733

1. The proposed seawall is part of a larger development called Maximo Moorings, the bulk of which development work appears to have already been completed. The bulkhead itself would approximate the existing contour of the shoreline, except that it would extend the shoreline out from its present location along much of the shore and would require considerable fill to raise the elevation behind the proposed seawall. The application itself, which was received at this proceeding as Petitioner's Exhibit No. 2, indicates 5,000 cubic yards of fill is required for the completion of this project. The seawall is to be located at the opening of a long canal at the end of which is located a commercial marina. Along the shoreline of this canal, vertical seawalls have

   already been installed and single family residences exist along both sides of this canal.

   
   

2. The applicant contends the proposed seawalling is necessary to prevent the continuous shoaling of the opening of this canal. Testimony on behalf of the applicant was presented by C. Fred Deuel, P.E., who also prepared the application to the Department. Mr. Deuel testified that the prevailing currents cause debris, sand and other materials to accumulate at the opening of this canal. which reduces its navigable capacity and thereby requires continuous maintenance dredging to keep the depth of this canal adequate to sustain customary navigation.

   
   

3. The Department of Environmental Regulation did an on-site inspection of the area and also took soundings of canal depths at the opening of the canal in question. Depths of up to 17 feet were recorded and nowhere was a depth of less than 10 feet taken. Further, a hydrologist, Mr. Ralph Clark, testified on behalf of the Respondent. His testimony was that the shoreline where the seawall is proposed is a low-energy area. That is to say there is little wind and wave energy in this area of Boca Ciega Bay. Furthermore, he stated there are no prevailing currents which would cause a continuous transport of sand and other materials which might clog the canal in question. He stated that in his opinion if there was an erosion problem at this site, it has abated and that presently there is very little erosion taking place. It is probable that heavy rains might cause some slight runoff from the uplands into the adjacent waters of the bay, but that he believes presently the shoreline has reached a stable configuration and that it is unlikely for significant erosion to occur in the future. Furthermore, inspection has revealed that certain grassbeds have become established in the shallow waters adjacent to this canal and that further stability would be expected as these grasses proliferate, since they act to retain materials which might otherwise be transported by wave action and settle out in the deeper parts of this canal. No evidence was admitted as to how much land actually had eroded from this site since the time this application was filed with the Respondent. Such information would have been relevant to the equities of this case, particularly if it could have been-shown that any delay has worked to the detriment of the applicant. However, since no evidence wad introduced on this point, no relevant finding can be entered on that issue.

   
   

4. Evidence was presented which indicated that the filling and bulk- heading of the shoreline as proposed in the Petitioner's application would be detrimental to the natural resources of Boca Ciega Bay and the marine community in this area. The Respondent introduced testimony from several individuals and a report (denominated Respondent's Exhibit No. 1) from Allen G. Burdett, State of Florida Department of Natural Resources, was introduced. Mr. Burdett made more than one inspection of the area in question. His findings were that there were significant areas of beds of Cuban shoal weed adjacent to the entrance of the canal above referenced and that samples from these grassbeds indicated numerous species of fish and shrimp. Mr. Burdett's conclusions were that these grassbeds provided protective habitat and feeding areas for shrimp and juvenile fishes. Presently the shoreline along the canal where the bulkhead is proposed is vegetated with red and black mangrove trees. At the further extremity of the proposed seawall, there exists a tidal lagoon which would be cut off from Boca Ciega Bay were this seawall constructed. This lagoon supports a healthy marine community and is vegetated with natural mangrove plants.

   
   

5. The statutory guidelines for the processing of this permit application are found in Section 253.124(2), F.S., which states that such proposed works

   should not "interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent to be contrary to the public interest.

   . ."

   
   

6. Furthermore, said statutory requirements mandate a concern for the preservation of grass flats and marine soils which may be necessary for nursery or feeding grounds for marine life. There appears to be no question but that the above statutory language covers the facts in this case.

   
   

7. This statutory section was recently interpreted by the First District Court of Appeals in the case of Yonge v. Askew, 293 So.2d 395. That court required a showing on the part of the permit applicant that the proposed work would be in the public interest. The court further stated one could not equate private gain with public interest:

"The purpose of the development planned by the petitioner is to create a large number of waterfront lots on his uplands, which would border the canals that are to be excavated for this purpose. While such a plan would be highly beneficial from a development standpoint, there was no showing that such

benefits would redound to the public generally." (p. 401)

The facts as recounted in the Yonge case are easily analogized to this dispute. The proposed seawall-bulkhead is part of a canal waterfront development, most of which is already completed. The development consists of several finger-like canals extending inland upon which are located waterfront residences. The facts in this matter clearly indicate that the proposed seawall would be detrimental to the marine resources of the state and that the facts in this matter do not satisfy the requirements of 253.124(2) quoted above. Furthermore, some testimony was received from the Respondent relative to their position that if the proposed bulkhead is installed it will reduce the "tidal prism" and limit the exchange of waters at the end of this canal. This will increase the possibility of stagnation of these waters and further degrade water quality of the surrounding area.

Considering all the above, it is quite apparent that the Petitioner has not demonstrated the proposed development satisfies the requirements of 253.124, F.S., and it is, therefore, Recommended the permit application be Denied.

DONE and ORDERED this 23rd day of February, 1976, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of February, 1976.

COPIES FURNISHED:

Vance Kidder, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Richard T. Earle, Esquire

447 Third Avenue, North

St. Petersburg, Florida 33701

C. Fred Deuel, Esquire

C. Fred Deuel Associates, Inc. Post Office Box 10116

St. Petersburg, Florida 33733

Docket for Case No: 75-002060

Orders for Case No: 75-002060