STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
EDWARD SHABLOWSKI, )
)
Petitioner, )
)
vs. ) CASE NO. 77-1203
) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above styled case on September 29, 1977 at Melbourne, Florida.
APPEARANCES
For Petitioner: Elton Storms, Esquire and
Joseph S. Gillen, Esquire Post Office Box 1376 Melbourne, Florida 32901
For Respondent: Segundo J. Fernandez, Esquire
Assistant General Counsel
Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building
Tallahassee, Florida 32301
By petition filed June 20, 1977 Edward Shablowski, Petitioner, contests Department of Environmental Regulation's (DER) notice of intent to deny Shablowski's application to bulkhead and fill a 200' x 400' parcel of submerged land he owns on the Indian River at Melbourne, Florida. Petitioner generally contends that the bulkheading, dredging and filling of his property will not degrade the water quality of Indian River, cause significant erosion of adjoining property or significantly affect the marine life and ecology of the area.
Six witnesses were called by Petitioner, one of them was recalled by Respondent, one other witness was called by Respondent, and 19 exhibits were admitted into evidence.
Although Respondent's Proposed Recommended Order was not submitted within the time initially established, the submission of this Recommended Order was delayed so Respondent's proposals could be considered. Those Proposed Findings of Fact not included herein are deemed immaterial to the results reached. The evidence that the proposed dredging would result in degradation of the waters
was discarded by the undersigned in favor of the preponderance of the evidence that this dredging would have minimal adverse effect.
FINDINGS OF FACT
The applicant proposes, on the west shore of the Indian River to: (1) Dredge an access channel 3' deep, 801 wide, and 1,500' long,
Construct a vertical seawall of 600 linear feet along the waterward side of the proposed fill area, and
Disposit some 4,000 cubic yards of spoil in a 200' x 400' area enclosed by the seawall. This proposed seawall will be in line with and connect to an existing seawall along the adjacent north property. A hydraulic dredge and a silt screen will be used during dredging operation.
Petitioner acquired the submerged lands fronting his property on the west bank of the Indian River at Melbourne, Florida to the bulkhead line, by purchase from the Trustees of the Internal Improvement Trust Fund (IITF) in 1963 and 1964.
The submerged land just north of Petitioner's property was likewise acquired from the Trustees, bulkheaded and filled, circa 1963 where a commercial marina is now operated by one Rathman.
Indian River in the vicinity of Melbourne has become in the nature of a basin by reason of the Eau Gallie Causeway to the north and the Melbourne Causeway to the south. These causeways have materially reduced the flushing of this stretch of the Indian River and increased the turbidity of the water.
Normal turbidity of the Indian River in the vicinity of the lands here involved is such that the bottom cannot be seen at depths greater than 1.5 to 2 feet.
Surface drainage from U.S. 1, which runs just west of Shablowski`s property, and an area of some 5 square miles just west of U.S. 1 runs into the Indian River through culverts just north and south of Petitioner's property. No evidence was submitted that this surface runoff goes through debris or settling traps before being discharged into the Indian River.
Rathman's marina and the area there filled is bounded on the south by a bulkhead normal to the shoreline of Indian River and extending into the river some 200 feet. This creates a pocket where some debris accumulates on the north end of Petitioner's property. Granting the applied for permit would result in moving this pocket 400 feet to the south.
Although the Indian River, between the causeways above noted, is in an ecologically stressed condition due primarily to the effects of the causeways and the surface water drainage into Indian River, it is not dead.
Cuban Shoalweed grows in the shallow water areas of the Indian River (less than 3 feet deep) and provides a source of food to the marine life in the area.
The submerged lands owned by Petitioner are sparsely covered (10 percent to 25 percent) with patches of Cuban Shoalweed. The area proposed for filling has an average depth of approximately 1.5 feet with some areas near the
eastern edge of the property having depths of up to 3.5 feet. However, these are primarily holes or former channels.
A significant amount of animal life exists on the property in question. These consist of blue crabs and numerous small fishes such as silversides, mojarra, needlefish, mullet, sheepshead, leather jack and snook. Benthic samples collected include polychaetes, amphipods, sphaeromid isopods, cumaceans, small shrimp, gem clams, paper mussels, gobies and pipe fish.
Petitioner's proposal to dredge an access channel 3 feet deep, 80 feet wide, and 1500 feet long from the eastern edge of the property riverward will not have a significant adverse impact on marine biological resources or water quality. (Exhibit 3).
Silt screens will be used in connection with the hydraulic dredging and the shallow depths to which Petitioner proposes to dredge will not cause permanent damage to the bottom grasses, if any, in the dredged area.
The vertical bulkhead proposed by Petitioner would increase the possibility of scouring in the areas; however Petitioner agreed at the hearing to install rip rap along this bulkhead. This will eliminate scouring and promote the propagation of marine life.
Granting the application will result in the loss of approximately 2 acres of moderately productive bottom land in the Indian River, or approximately
0.1 percent of the total area of the Indian River in the basin between the two causeways.
Respondent generally acknowledges that filling of the area in question will not have a significant effect upon the ecology of the area; however, if others also fill productive bottom lands the cumulative effect could be significant.
Petitioner has not determined the use to which the property will be put if the application is granted. At such time as construction is instituted DER can establish requirements for surface water runoff containment to protect the receiving waters.
CONCLUSIONS OF LAW
Applications for filling land are covered by s. 253.124 F.S. This section generally provides for application to be made to the local government (county or city) and to DER. This statute provides in pertinent part that when the approving agencies
". . . shall find that the proposed . . . filling of land . . . is not violative of any statute, zoning law, ordinance, or other restriction. . . that no harmful obstruction to, or alteration of, the natural flow of the navigable water . . . within such area will arise from the proposed construction, that no harmful or increased erosion, shoaling of channels or stagnant areas of water will be created thereby, and that no material injury or monetary damage to adjoining land will accrue therefrom, the same shall be granted
to the applicant, subject to approval of [DER] who shall have the power to approve,
reject or issue; provided, however, that prior to the issuance of such permit . . . [the] authorized body shall determine whether the granting of such permit and the construction to be done pursuant thereto would 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, and whether the destruction of oyster beds, clam beds, or marine productivities. . . will result therefrom to such an extent as to be contrary to the public interest."
Rules pertaining to the issuance of permits for dredging and filling applications are contained in Chapter 17-4 F.A.C. Supplement No. 81 to Chapter 17-4 F.A.C. provides in Paragraph III E (2):
"DER will evaluate the potential impact of the proposed project on the waters of the state.
In assessing this impact DER will determine
for the purpose of a permit pursuant to Chapter 253, F.S. if the project will be a harmful obstruction to, or alteration of, the natural flow of navigable waters; will induce harmful or increased erosion, shoaling of channels or create stagnant areas of water; will interfere with the conservation of fish, marine and wild- life or other natural resources; will induce
destruction of oyster beds, clam beds, or marine productivity including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds
for marine life, marine soil suitable for producing plant growth useful as nursery or feeding grounds for marine life; or for the pur- pose of a permit pursuant to Chapter 403, F.S., DER will determine if the proposed project will degrade the quality of the water by destruction of resources which maintain water quality or will degrade the quality of water by discharging
materials harmful to the environment. For permits pursuant to Chapter 161, F.S., DER will evaluate the functionality of the proposed construction
and its compatibility with the existing coastal processing at the location of construction. An evaluation will be made of the protection afforded against coastal flooding and storm induced erosions and of the physical impact on adjacent property.
Public response to the project will be considered, which may include, but not be limited to, the restriction of public access, the affect on archiological and historical values, and the impact on turtle nesting sites."
The dredging and filling here proposed are located in shoal waters and will not be a harmful obstruction to or alteration of the natural flow of navigable waters, will not induce harmful or increased erosions, shoaling of channels or create stagnant areas of water. As noted above the net result of this application is to relocate an existing bulkhead 400 feet south of its present location and to continue the line of the existing bulkhead 400 feet southward to enclose the area to be filled. If any stagnant water or erosion is created by this construction it can only be that erosion and stagnant water moved from its present location to a location 400 feet south of its present location.
By installing rip rap along the bulkhead scouring that could occur with a smooth bulkhead will be eliminated and the rip rap will provide a better marine ecological climate than would the plain bulkhead.
Filling the land will result in the elimination of approximately 2 acres of an ecologically productive area and to this extent will interfere with the conservation of fish, marine and wildlife or other natural resources.
Filling the area will not adversely affect the water quality of Indian River and no serious contention was made at the hearing by DER that the water quality would be degraded by the dredging and filling proposed. The supposition contained in Exhibit 5 (letter of intent to deny the application) that degradation of the waters of Indian River could be expected by the subsequent development of the filled area is not only supported by absolutely no evidence, it also presupposes the inability of DER to impose conditions upon such future development necessary to protect the receiving waters from such runoff. When it is considered that the surface water runoff from some five square miles of industrial, commercial and residential development is presently discharged into the Indian River in the vicinity of Petitioner's property, Respondent's expectation of water quality degradation by the development of the two acres to be filled does not appear credible.
It thus appears that Petitioner satisfies the various statutory and regulatory requirements for the issuance of a permit except for the adverse effect that filling the two acres of submerged land will have on the conservation of "fish, marine and wildlife or other natural resources." The only adverse effect shown was that resulting from the elimination of these two acres as a potential source of food, breeding ground and nursery for marine life. Although removal of these two acres from the 4200 acres contained in the Indian River between the causeways is a loss of only .05 percent, the high turbidity of the waters of the Indian River between the causeways greatly reduces the growth of sea grasses and hence marine life in waters deeper than 3 feet. Therefore the effect of the loss of productive submerged land is greater than the percentage noted above.
Apart from the minimal adverse impact the filling will have on the area involved, this is not a case where the Petitioner is seeking to acquire submerged land or to infringe upon sovereign land. Petitioner bought these submerged lands some 15 years ago and has paid taxes since acquisition. The comments of the court in Askew v. Taylor, 299 So.2d 72 (Fla. 1st Dist. 1974) which involved a similar submerged landowner who sought a permit to fill his land is appropriate. The court quoted with approval the following words of the trial judge:
". . . when the Trustees took the purchase price, it was clearly intended by all
parties that filling would take place out to the then established bulkhead line. It was on this basis that the Trustees fixed the prices of the bottoms. It was on this basis that the purchaser paid the price so fixed. Thus, the Treasury of the State was benefited by the purchase price fixed by the Trustees, consisting of the highest of- ficials of this state.
"Public offices are presumed to do their duties. The court will, therefore, assume that the then Trustees, before executing the deed to Plaintiff's predecessor in title made the findings necessary to make their acts legal.
"The supreme court, almost a century ago, held that 'common honesty is quite as respectable on the part of the state as in an individual, and hence the state will be honest and not repudiate.' Chaney v. Jones, 14 Fla. 587
(610-611)
"Applying this principle the court holds that the state must be honest with the plaintiff and not repudiate its solemn deed.
"If, per chance, the Trustees have executed conveyances they should not have executed and divested the state of assets which the public interest now requires the state to own, the state has an adequate remedy. It may exercise the power of eminent domain and re-acquire the assets improvidently sold, thus protecting the integrity of the
state and making whole the citizens who would otherwise be defrauded. In approving Plaintiff's fill permit the trustees may require that the filling be accomplished with a minimum of
injury to adjacent waters or bottom, but they may not refuse Plaintiff the right to fill."
The case of Yonge v. Askew,293 So.2d 395 (Fla. 1st Dist. 1974) heavily relied upon by Respondent in its Proposed Recommended Order, is clearly distinguishable from the situation here involved. Yonge proposed to dredge a channel from the uplands which he owned and into sovereignty lands. It was the dredging of sovereign lands that the court found to be not in the public interest and that which would cause damage to the ecology. The dredging proposed here will have little, if any, adverse effect on the ecology. The primary objection of Respondent in the instant case is the "filling" of Petitioner's two acres of submerged land which he has owned and paid taxes on for almost 15 years.
From the foregoing it is concluded that the bulkheading and filling of the submerged land in question will have little adverse impact on the water quality and ecology of the area. Petitioner agreed at the hearing to install rip rap
along the bulkhead when constructed and this should be a condition of the granting of the permit. It is therefore,
RECOMMENDED that the application of Petitioner be approved.
DONE and ENTERED this 19th day of October, 1977, in Tallahassee, Florida.
K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304
(904) 488-9675
COPIES FURNISHED:
Elton Storms, Esquire and Joseph S. Gillen, Esquire
P.O. Box 1376
Melbourne, Florida 32901
Segundo J. Fernandez, Esquire Assistant General Counsel Department of Environmental
Regulation
2562 Executive Center Circle, East Montgomery Building
Tallahassee, Florida 32301
================================================================= AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
EDWARD SHABLOWSKI,
Petitioner,
vs. CASE NO. 77-1203
DEPARTMENT OF ENVIRONMENTAL REGULATION, STATE OF FLORIDA,
Respondent.
/
FINAL ORDER
By the Department:
On October 19, 1977, the duly appointed hearing officer in the above-styled matter completed and submitted to the Department and all parties a Recommended Order consisting of his Findings of Fact, Conclusions of Law, and a Recommendation. A copy of that order is attached hereto as Exhibit "A".
Pursuant to Department rule, Section 17-1.26(2), Florida Administrative Code and Section 120.57(1)(b)(8), Florida Statutes, the parties were allowed fifteen (15) days in which to submit written exceptions to the Recommended Order. On November 7, 1977, Respondent submitted its Response and Exceptions to the hearing officer's Recommended Order accompanied by a brief, and on November 23, 1977, the Petitioner submitted a brief in reply.
Both parties submitted Requests for Oral Arguments pursuant to Section 17- 1.26(2), Florida Administrative Code. These requests were denied by written Order because of the time constraints imposed upon agency licensing proceedings by Section 120.60, Florida Statutes.
The Respondent's response to the hearing officer's Recommended Order raises a number of issues. Basically, Respondent maintains that the statutory and rule criteria for a permit to dredge and fill in the navigable waters of the state have not been met, and that the granting of the instant permit would be inconsistent with prior agency practice.
I.
FAILURE TO COMPLY WITH STATUTORY AND RULE
CRITERIA.
The hearing officer correctly found that the application for the proposed fill is covered by Section 253.124, Florida Statutes. The application is also governed by Section 17-4.29, Florida Administrative Code. Those sections require an applicant to affirmatively show that the work proposed:
[W]ill 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, and
will not result in the destruction of oyster beds, clam beds, or marine productivity in- cluding but not limited to, destruction of natural marine habitats, grass flats suit- able 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 pro- cesses to such an extent as to be contrary to the public interest. (Emphasis added)
Thus, the statute and the rule establish a two part test: First, there must be showing of damage, destruction, and/or interference with the natural resources of the area, and secondly, the applicant must affirmatively show that
any such interference, damage or destruction will not be to such an extent as to be contrary to the public interest.
The hearing officer made the following findings:
Although the Indian River, between the cause- ways above noted, is in an ecological stressed condition due primarily to the effects of the causeways and the surface water drainage into Indian River, it is not dead.
Cuban shoalweed grows in the shallow water areas of the Indian River (less than three (3) feet deep) and provides a source of food to the marine life of the area.
The submerged lands owned by Petitioner are sparsely covered (10 to 25 percent) with patches of cuban shoalweed. The area proposed for filling
has an average depth of approximately 1.5 feet with some areas near the eastern edge of the property having depths of up to 3.5 feet. How- ever, these are primarily holes or former channels.
A significant amount of animal life exists on the property in question. These consists of blue crabs, numerous small fishes, such as silversides, mojarra, needle fish, mullet, sheepshead, leatherjack and snook. Benthic samples collected include polychaetes, anphipods, sphaeromid isopods, cumaceans, small shrimp, gem clams, paper mussels, gobies and pipe fish....
Granting the application will result in the loss of approximately two (2) acres of moder- ately productive bottom land in the Indian River, or approximately 0.1 percent of the total area of the Indian River in the basin between the two causeways. (Recommended Order, pages 3-4). (Emphasis added).
In his conclusions of law, the hearing officer further determined that: Filling the land will result in the elimin-
nation of approximately two (2) acres of an ecologically productive area and to this extent will interfere with the conservation of fish, marine and wildlife or other natural resources.
It thus appears that Petitioner satisfies the various statutory and regulatory re- quirements for the issuance of a permit except for the adverse effect that filling the two (2) acres of submerged land will
have on the conservation of "fish, marine and wildlife or other natural resources". The only adverse effect shown was that re- sulting from the elimination of these two
(2) acres as a potential source of food, breeding ground and nursery for marine life.
Although removal of these two (2) acres from the 4200 acres contained in the Indian River between the causeways is a loss of
.05 percent, the high turbidity of the waters of the Indian River between the causeways greatly reduces the growth of sea grasses and hence marine life in waters deeper than three (3) feet. Therefore the effect of the loss of productive submerged land is greater than the percentage noted above. (Recommended Order, pages 6-7). (Emphasis added).
The hearing officer thus found that there would be damage, interference and the destruction of the natural resources of the area, the first of the two-part test established by the statute and the rules. The second part of the test is to evaluate the ecological impact of the project as against the public interest. The hearing officer characterized the destruction which the proposed fill would cause as "minimal" and stated that the filling of the submerged lands "will have little adverse impact on the ecology of the area". (Recommended Order, page 8)
The "area" which the hearing officer refers to is the basin in the Indian River between the Melbourne and Eau Gallie Causeways. There is no basis in fact or law for the hearing officer's assumption that the impact of the proposed fill must be measured against the ecology of a given area such as that between the two causeways. The statute does not specify a geographical area against which such impact must be measured. One could just as well ask what the impact of the proposed fill would be on the entire Indian River and its estuaries. It is clear that the greatest impact of the project will be on the area to be filled itself, where there will be total destruction and obliteration of the natural resources. The effect would, necessarily, be less drastic on the immediate surrounding area and would be diluted with distance and space as one increases the proposed area of impact. The hearing officer, therefore, erred in measuring the impact against the entire basin between the two causeways.
The statutory question to be answered is whether the fill project (i.e., removal of approximately two (2) acres of an ecologically productive area, as found by the hearing officer and evidenced by Exhibit 10) is contrary to the public interest. This question was neither addressed nor answered by the hearing officer. Therefore, in adopting, rejecting or modifying the Recommended Order, I must be guided by the organic, statutory and case law of the state, as well as prior agency practice of the Department of Environmental Regulation.
II.
CONFORMANCE WITH PRIOR AGENCY PRACTICE
Section 120.68(12), Florida Statutes, which deals with judicial review of agency actions, provides:
That the Court [District Court of Appeals] shall remand the case to the agency if it finds the agency's exercise of discretion to be (a) outside the range of discretion delegated to the agency; (b) inconsistent with an agency rule, an officially stated agency policy, or a prior agency practice, if deviation there from is not explained by the agency .... (Emphasis added).
In the case of McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st D.C.A. 1977), the First District Court of Appeal endorsed the form of administrative stare decisis envisioned by Section 120.68(12) by stating that final agency orders, "catalogued by a subject-matter index, must be made available for inspection and copying by the public in an ever-expanding library of precedents to which the agency must adhere or explain its deviation." Id. at 582.
In the case of Manucy v. Department of Environmental Regulation, DOAH Case No. 76-1441 (1976), Department of Environmental Regulation Final Order No. 10 (1977), the permit applicant wished to fill an area of salt marsh approximately one hundred and forty (140) feet by two hundred (200) feet. The hearing officer found in that case:
The effect of Petitioner's isolated project upon the water quality of the salt marsh and upon the marine habitat may not be susceptible of accurate measurement. It is apparent that the Petitioner's proposed landfill would replace an ecologically positive salt marsh with a land fill which would introduce additional runoff into the water. It is also clear that any prolif- eration of such projects would cause an easily measured and extremely damaging im- pact upon the water quality and marine habitat. (Emphasis added).
In the case Albrecht v. Department of Environmental Regulation, DOAH Case No. 76-247, Department of Environmental Regulation Final Order No. IV, (1976), the hearing officer, in his conclusions of law number 6 stated as follows:
The basic thrust of Respondent's proposed denial goes to certain of the environmental considerations set forth in Section 253.124 concerning the elimination of plant and animal life that allegedly would result from the project. The evidence established that the mangrove area in question (2.3 acres) supports a diverse habitat of fish and other marine natural resources that would be destroyed by filling the land.
The sole remaining question is whether such work and the above result would interfere with the conservation of natural resources or destroy marine productivity to such an extent as to be "contrary to the public interest". Petitioners contend that the small amount of land involved in the project could have no significant impact on the environment, particularly in view of the fact their property is almost the sole re- maining mangrove area on the west side of The Narrows, and because there are large mangrove areas still extended on the east side of The Narrows that adequately provide a suitable habitat for marine life and
other natural resources. Respondent, on the other hand, views the steady encroach- ment upon such vegetated areas as a major threat to the environment, particularly because there are so few natural areas re-
maining in the vicinity. The term "contrary to public interest" is broad enough to envision its application in cases involving elimination of even a small amount of natural resources that nevertheless play a role in the continuity of plant and animal life. As pointed out at the hearing by the testimony of Respondent's experts, the elimination of only a few trees would not necessarily be of significance, but the destruction of over two (2) acres in an
area that has almost been completely developed is of importance. It thus must be concluded that Petitioner's project would
be contrary to the public interest and, in consonance with the legislative intent, the application should be denied.
The Governor and Cabinet, sitting as the Board of Trustees of the Internal Improvement Trust Fund, affirmed the Department's Final Order in a decision entered on November 10, 1976. After holding that the statutory phrase "contrary to the public interest" is broad enough to envision its application in cases such as this, involving elimination of even a small amount of natural resources that nevertheless play a role in the continuity of plant and animal life, they stated that:
The foregoing conclusion of law, which is central to this case, is expressly approved and confirmed by this Board.
While "small" projects such as the one in the instant case may not have a "measurable" effect upon the natural resources of a given area, the cumulative effects caused by the proliferation of such projects would have measurable and detrimental effects on water quality in the natural resources of the river. The phrase "contrary to the public interest" is broad enough to encompass avoidance of this cumulative effect. Other cases in which hearing officers have recognized, and the Department has applied, the cumulative effect principle
include: Lauthain v. Department of Environmental Regulation, DOAH Case No. 75- 1960, Department of Environmental Regulation Final Order No. 18 (1977); Johnstone v. Department of Environmental Regulation, DOAH Case No. 76-2127, Department of Environmental Regulation Final Order No. 23 (1977); and Glover and Kirchhoff v. Department of Environmental Regulation, DOAH Case No. 76-1235, Department of Environmental Regulation Final Order No. 22 (1977).
The Respondent's concern for the proliferation of fill projects in the area is buttressed by evidence on the record which indicates that submerged land owners to the south of Petitioner's property have expressed an interest in the past in having their submerged lands filled. (Exhibits 9, 11). Petitioner, in its Brief, Point VI, argues that a permit granted in the instant cause would not serve as a precedent for the granting of dredge and fill permits to owners of submerged land in the general area. I disagree. The holding of the McDonald case cited above, and the provisions of Section 120.68(12), Florida Statutes, indicate that a legally binding precedent could well be established. The Respondent's concern for the cumulative effects of subsequent projects is therefore valid and the hearing officer erred in not giving it due consideration.
III.
FAILURE TO APPLY SECTION 253.123(3)(a) AND THE CASE OF YONGE V. ASKEW.
The hearing officer also erred in not finding that the project in question is in the public interest, under Section 253.123(3)(a), Florida Statutes, and the holding in the case of Yonge v. Askew, 293 So.2d 395 (Fla. 1st D.C.A. 1974)
It should be pointed out that the instant case involves filling of privately owned submerged lands and dredging of sovereignty submerged lands. While the hearing officer found that the dredging in question "will not have a significant adverse impact on marine biological resources or water quality" (Recommended Order, page 3), he made no finding that such dredging would be in the public interest.
Section 253.123(3)(a) states that:
Works authorized under [253.123(2)(a), including navigation channels] ... shall only be undertaken after receipt of a permit ... upon a showing of the public interest which will be served by such works. (Emphasis added).
In Yonge, the permit applicant proposed to dredge three (3) navigational channels on his uplands and connect them to the navigable waters of the state. Section 253.123(2), Florida Statutes, was, therefore, applicable in the Yonge case. In establishing the burden of proof in such a situation, the Appellate Court interpreted the statute:
[T]o cast on the applicant for a permit the burden of making an affirmative showing that works for which a permit is sought will be in the public interest.
293 So.2d at 401. (Emphasis added).
The Court went on to note that while Yonge's plan would be highly beneficial from a development standpoint, there was no showing that such benefit would also rebound to the public generally. Id. The Court noted that the public interest requirement had not been met and affirmed the permit denial.
The applicant in the instant case has provided no evidence, and the hearing officer has entered no findings of fact or conclusions of law that the proposed project is in the public interest. In 1968, the public interest in conserving the natural resources of Florida was elevated by the people of this state to the level of constitutional provision. Article II, Section 7 provides as follows:
It shall be the policy of the state to con- serve and protect its natural resources and scenic beauty.
The Petitioner's proposed project will result in the destruction, note the conservation, of natural resources of the state. Its effect, if not its purpose, runs counter to the constitutionally protected public interest outlined above.
IV.
MISAPPLICATION OF ASKEW V. TAYLOR.
One final issue must be resolved before a decision on the Recommended Order can be made. The hearing officer erred in finding the case of Askew v. Taylor,
299 So.2d 72 (Fla. 1st D.C.A. 1974) applicable under the facts of the instant case.
In Askew, the First District Court of Appeals considered a case which involved a submerged land owner who sought a permit to fill his land. In holding that a permit must be granted, the Court stated that:
[W]hen the Trustees took the purchase price, it was clearly intended by all parties that filling would take place out to the then established bulkhead line.
It was on this basis that the Trustees fixed the prices of the bottoms. It was on this basis that the purchaser paid the price so fixed.
There is no evidence, of record, in this case, and the hearing officer entered no finding of fact to the effect that it was clearly intended by all parties that, when Petitioner purchased the submerged land, filling would take place out to the then established bulkhead line. Furthermore, there was no evidence, and the hearing officer entered no finding of fact that the price which Petitioner paid for the submerged land in question was based on the expectation of filling the subject submerged lands. Absent such evidence, the Askew v. Taylor decision is not applicable to the instant case and the Department is not estopped from denying Petitioner a permit.
Indeed, the Petitioner, in Point V of its Brief, concedes that the Askew case is not determinative in the instant cause, but merely a factor to be considered.
Furthermore, case law in Florida has firmly established the principle that neither the establishment of a bulkhead or a mean high water line, nor the
purchase of submerged lands guarantees a right to fill such lands. Gies v. Fischer, 146 So.2d 361 (Fla. 1962). In the Gies case, the Supreme Court considered Section 253.122, Florida Statutes, which authorized, local governing bodies to fix bulkhead lines off shore from lands or islands bordering on or located in the navigable waters of a county. Any filling beyond the bulkhead line would be deemed an interference with the servitude in favor of commerce and navigation with which the navigable waters of the state are inalienably impressed. Pinellas County proceeded to set a bulkhead line over and precluding filling upon a portion of submerged land owned by the appellants in the case.
The Court held that:
The only purchasers of land from the Trustees who need not comply with Section
253.122 are those holding fill permits approved previous to the enactment.
146 So.2d at 363.
The bulkhead line referred to in Section 253.122, Florida Statutes, represented the line beyond which no extension creating or filling land or islands outwards into the waters of the county would be permitted. In the instant case, by operation of Section 253.1221, enacted by the Legislature in 1975, the bulkhead line which previously existed to the extent of Petitioner's submerged land ownership was "rolled back" to the line of mean high water, when the Legislature enacted the following language:
All bulkhead lines heretofore established pursuant to former Section 253.122 are hereby established at the line of mean high water or ordinary high water. There shall be no filling waterward of the line of mean high water or ordinary high water except upon compliance with this chapter. (Emphasis added)
It should be noted that Petitioner was not holding a fill permit approved prior to the enactment of Section 253.1221. Under the Gies rationale and the provisions of Section 253.1221, he ought not be excused from the requirements of Chapter 253.
The hearing officer's citing of the Askew v. Taylor decision implies that the state, in his opinion, is estopped from denying Petitioner a permit on submerged land which he purchased from the state. Not only is the Askew v.
Taylor decision not applicable in this case, but any such reasoning must fail when considered in light of the Supreme Court's language in Gies when it stated that:
The objections to the decree upon constitu- tional grounds are necessarily premised upon a contention that the statute could not lawfully authorize the establishment of bulkhead line, for any reason, upon sub- merged land to which appellants hold title by deraignment from a duly confirmed con- veyance from the Trustees of the Internal
Improvement Trust Fund to their predecessors.
We think, however, that the limitations of the act as construed place it squarely in line with the decisions to defining the nature of the state's title in sovereignty lands in general, and the restrictions in- herent in its power of alienation ...
Under the rule of the cited cases there can be no doubt that in the absence of some overriding necessity, a conveyance of public lands or rights in lands which actually re- sults in the impairment of the public servi- tudes, referred to in the statute here in- volved, must fail. Tested by that principle, no rights lawfully vesting under previous conveyances will be infringed by a proper application of this legislation, and
whether it is sustained as police regu- lation or an exercise of retained power under the trust doctrine governing sovereignty lands, the decree appealed in this case should be affirmed. (Emphasis added).
Having considered the Recommended Order, including Findings of Fact and Conclusions of Law, together with the pleadings submitted by the Petitioner and the Respondent, and the exhibits admitted into evidence at the hearing below, it is, therefore,
ORDERED by the State of Florida Department of Environmental Regulation as follows:
The Conclusions of Law heretofore contained in this Order are hereby adopted and approved.
The Findings of Fact contained in the Recommended Order (Exhibit A) are hereby adopted and approved.
To the extent that any Conclusion of Law contained in the Recommended Order (Exhibit A) conflicts with, or is contrary to the Conclusions of Law adopted in paragraph 1 above, each is expressly rejected.
In consonance with the above actions, the recommendation contained on page 8 of the Hearing Officer's Recommended Order is expressly rejected.
The application submitted by the Petitioner to dredge and fill in the navigable waters of the state is hereby denied.
DONE AND ENTERED this 3rd day of December, 1977, in Tallahassee, Florida.
JOSEPH LANDERS, JR.
Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building
Tallahassee, Florida 32301
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Final Order has been furnished by United States Mail to the following persons on this 3rd day of December, 1977:
ELTING STORNS, ESQUIRE and K. N. AYERS, HEARING OFFICER
JOSEPH S. GILLEN, ESQUIRE Division of Administrative Post Office Box 1376 Hearings
Melbourne, Florida 32901 Department of Administration
Room 530, Carlton Building
ALEX SENKEVICH Tallahassee, Florida 32304 District Manager
St. Johns River District JAMES R. BRINDELL, Director Department of Environmental Division of Permitting
Regulation Department of Environmental 3319 Maguire Boulevard Regulation
Suite 232 2562 Executive Center Circle, Orlando, Florida 32803 East
Montgomery Building
DR. PAUL PARKS Tallahassee, Florida 32301 Office of Enforcement
Department of Environmental U.S. Army Corp of Engineers Regulation Jacksonville District
2562 Executive Center Circle, Post Office Box 4970
East Jacksonville, Florida 32201 Montgomery Building
Tallahassee, Florida 32301 Florida Marine Patrol
Department of Natural Resources Florida Game and Fresh Water Crown Building
Fish Commission 202 Blount Street
670 South Meridian Street Tallahassee, Florida 32304 Bryant Building
Tallahassee, Florida 32304
SEGUNDO J. FERNANDEZ
Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building
Tallahassee, Florida 32301
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Dec. 05, 1977 | Final Order filed. |
| Oct. 19, 1977 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 03, 1977 | Agency Final Order | |
| Oct. 19, 1977 | Recommended Order | Petitioner wants to dredge and fill submerged lands bought from state. State can`t deny him that right after the fact. Recommend granting the permit. |
