STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID J. ANDERSEN and )

LOLA M. MARTIN, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1980

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on December 7, 1978, at the Fire Station Conference Room, 104 Armstrong Avenue, Niceville, Florida. The issue is whether the petitioners are entitled to a permit from the respondent to construct a 134 foot seawall and fill on Lot 295, Okaloosa Island, Okaloosa County, Florida.

APPEARANCES

For Petitioners: James E. Moore

Moore and Anchors Post Office Box 746 Niceville, Florida

For Respondent: H. Ray Allen

Assistant General Counsel 2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Pursuant to an assignment of a 99-year residential lease, petitioners acquired Lot 295, Block 6, in a residential subdivision of Santa Rosa Island in Okaloosa County in February of 1974. At the time of this acquisition, petitioners were aware that erosion had caused the original lot dimensions to diminish considerably. However, they were assured that their request to reconstitute the lot size by a bulkhead would be approved by the Okaloosa Island Authority. Their bulkhead permit application was approved by the Okaloosa Island Authority in May of 1974. Unfortunately, the Authority's permitting authorization had expired in November of 1973, and petitioners were required by the U.S. Army Corps of Engineers to remove the construction begun. Due to the setback restrictions on the property, Lot 295 is presently too small to

   construct a residence. Petitioners' property has been assessed at in excess of

   $25,000.00 since 1976, requiring property taxes of approximately $250.00 per year.

   
   

2. In the early part of 1975, petitioners applied to the State of Florida for a permit to construct a bulkhead and to backfill approximately 527 cubic yards of fill below the mean high water line. The respondent, and its predecessor agency, conducted a site inspection of the area and issued its intent to deny the application. A recent and updated inspection of the property was conducted by respondent with the same conclusion that the permit should be denied. It was also observed that no significant erosion had occurred on the shoreline since the time the parcel was first investigated in 1975.

   
   

3. The site of the proposed project is a vegetated salt marsh area of environmental significance. The lower area is vegetated by cord grass and the area above mean high water is vegetated by giant reed and switch grass. The stalks are epiphytized by abundant masses of brown algae. Locally abundant animals include oysters, polychaeta worms, other pelycypod and gastropod molluscs, and cyprinodont fishes. The area is a viable, functional salt marsh area. It serves as a nursery area for juvenile fish and has a stabilizing effect on the shoreline. The salt marsh ecosystem filters pollutants and utilizes them in the food chain, also helping to maintain the water quality of nearby open bodies of water.

   
   

4. The bulkhead and backfilling project proposed by petitioners would totally eliminate the vegetated salt marsh area and adversely impact the water quality and marine life of the area.

   
   

5. In its letter of intent to deny the permit application, the respondent concluded that the project proposed by petitioners would

   
   

   "...result in the following effects to such an extent as would be contrary to the public

   interest and to the provisions of Chapter 253, Florida Statutes:

   
   

   Interference with the conservation of fish, marine life and wildlife, or other natural resources.

   
   

   Destruction of marine productivity, including, but not limited to, des- truction of natural marine habitats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life.

   
   

   Reduction in the capability of habitat

   to support a well-balanced fish and wild- life population.

   
   

   Furthermore, although you have submitted a bulkhead permit from the Okaloosa Island Authority, this does not constitute satisfactory local approval pursuant

   to Section 253.124(2), (3), and (8), Florida Statutes."

   CONCLUSIONS OF LAW

   
   

6. The respondent may not issue a permit pursuant to Chapter 253, Florida Statutes, unless their surveys and studies, together with information provided by the applicant, affirmatively show that the proposed activity will not interfere with the conservation of fish, marine and wildlife, or other natural resources, to such an extent as to be contrary to the public interest. Further, it must be affirmatively shown that the project

   
   

   "will not result in the destruction of oyster beds, clam beds, or marine pro- ductivity, including, but not limited to destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interest"

   F.A.C. Ch. 17-4.29(6)(a). Also see

   Sections 253.123 and 253.124, Florida Statutes.

   
   

7. Here, the surveys and inspections conducted by respondent's representatives found the application to he in direct conflict with respondent's statutes and rules relating to the conservation of fish and marine life and marine productivity. The petitioners offered no evidence to rebut these findings by the respondent or to illustrate that their project would not be contrary to the public interest. The fact that petitioners have been required to pay property taxes on the lot without having the benefit of being able to construct a residence on the property is not sufficient to establish that the project will not be contrary to the public interest.

   
   

8. The evidence presented affirmatively establishes that the bulk head and fill project would have an adverse impact upon the water quality of the area in that it would destroy an essential filtering effect provided by the marshland vegetation. Petitioners have failed to establish that the destruction of fish, marine, wildlife or natural resources which would result from this project would not be contrary to the public interest. Petitioners have not illustrated that their proposal fits into any of the statutory or regulatory exceptions to the permitting process or standards for review.

   
   

9. In addition, Section 253.124(2), (3) and (8) requires prior approval of such projects by the board of county commissioners or other authorized local body. Attached to petitioners' application to respondent for a permit is the approval by the Okaloosa Island Authority for a permit to construct a bulkhead on the subject property. However, this approval does not satisfy the statutory requirement for approval by an authorized body since the Okaloosa Island Authority's bulkhead permit authorization had previously expired and was thus not valid.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the petitioners' application for a permit to construct a bulkhead and fill on Lot 295 be denied.

Respectfully submitted and entered this 14th day of January, 1979, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

James D. Moore, Esquire Moore and Anchors

Post Office Box 746 Niceville, Florida 32578

H. Ray Allen, Esquire

State of Florida Department of Environmental Regulation

2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

Jay Landers, Secretary Department of Environmental

Regulation

2600 Blair Stone Road

Twin Towers Office Building Tallahassee, Florida 32301

Docket for Case No: 76-001980

Orders for Case No: 76-001980