STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. SIMON'S EPISCOPAL CHURCH, )

)

Petitioner, )

)

vs. ) CASE NO. 78-681

)

FLORIDA DEPARTMENT OF ) ENVIRONMENTAL REGULATION and ) JAMES TUCKER, )

)

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 July 26, 1978 at Gulf Breeze, Florida.

APPEARANCES

For Petitioner: Thomas T. Remington, Esquire

Post Office Drawer LL

Fort Walton Beach, Florida 32548

For Respondent Ray Allen, Esquire Department of Staff Attorney

Environmental Department of Environmental Regulation Regulation: Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent James Tucker James Tucker: 590 L'Ombre Court

Fort Walton Beach, Florida 32548

By letter dated March 27, 1978, Petitioner requested a formal hearing to contest Respondent, Department of Environmental Regulation's (DER) notice of intent to issue a dredge and fill permit to Respondent Tucker. Following a Motion to Dismiss Petition filed by DER, Petitioner, in Response to Motion to Dismiss, submitted the necessary allegations to sustain its right to be a party substantially affected by proposed agency action. At the hearing four witnesses were called by Petitioner, one of which was recalled by Respondent and eight (8) exhibits were admitted into evidence.

FINDINGS OF FACT

1. Respondent James Tucker seeks a modification of a previously approved permit to extend the depth of the dredging proposed to -8 feet from the previously approved -5 feet.

2. Respondent proposes to maintenance dredge a 35 x 275 foot canal aid entrance channel into Santa Rosa Sound to a maximum depth of -8 feet; to permanently moor the USS Showboat, a motorless concrete ship to piling driven in the canal; to place riprap around the ship with a 3 foot drainage pipe leading through the riprap on both sides of the vessel to allow drainage to pass the vessel and enter Santa Rosa Sound; and thereby to create a holding pond between

   U.S. 98 and the vessel.

   
   

3. Tucker owns the property containing the canal located immediately west of Petitioner's property. The canal serves as a drainage conduit for several acres in the vicinity of and including U.S. 98 Highway and drainage enters the canal by a 3 foot culvert under U.S. 98. The canal is largely full of sediment and is anaerobic.

   
   

4. Although fish are caught in the Sound off the church's and Respondent's property, there are no grass beds that would be disturbed by the proposed dredging. Witnesses who testified to the existence of grass beds had not actually entered the water to verify the existence of such beds.

   
   

5. While there are numerous other sources of pollution entering Santa Rosa Sound, including the City's discharge of sewage effluent, the discharge through the canal here under consideration is significant. By dredging the canal, mooring the vessel therein, and installing riprap around the vessel, a holding pond will be created between the vessel and the end of the canal which abuts

   U.S. 98. While the volume of this holding pond is not as large as would be required to adequately accommodate the drainage area served, the proposed holding pond will improve existing conditions. The 3 foot conduits to be installed in the riprap will provide drainage from the settling pond to Santa Rosa Sound, which drainage should contain less pollutants entering Santa Rosa Sound than now enter. The proposed project would improve the water quality of Santa Rosa Sound.

   
   

6. The dredging at the entrance of the canal of state owned lands will cause no appreciable biological damage to the bottom and the dredged area will be allowed to return to its normal depth after the vessel is moored, i.e. there will be no maintenance dredging to maintain this -8 foot depth.

   
   

7. Respondent Tucker will install silt screens and maintain turbidity limits within those prescribed by DER during dredging. Tucker has also consented to a condition to be placed in the permit that he be required to maintain the settling pond by future dredging when necessary.

   
   

8. Although the City Council of Ft. Walton Beach voted to deny any request to relocate the USS Showboat to any place in Ft. Walton Beach, Exhibit 8 indicates that the property containing the canal is zoned C-2 and relocating the vessel to this site would be in conformity with the City's zoning laws.

   
   

   CONCLUSIONS OF LAW

   
   

9. Section 253.123 Florida Statutes relates to dredge and fill permits and provides in pertinent part:

   
   

   The removal of sand, rock or earth from the navigable waters of the State as defined in s. 253.12 and the submerged bottoms thereof by dredging, pumping, digging or any other means shall not be

   permitted except in the following instances:

   1. For the construction, improvement or maintenance of navigation channels

      and drainage and water-control facilities.

      
      

10. Here the project is within the exception of drainage and water control facilities.

    
    

11. With respect to the issuance of permits for work in State waters Section 403.087 Florida Statutes provides in pertinent part:

    
    

    (4) The Department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the

    degree ,that will comply with the standards or rules promulgated by the department, except as provided in s. 403.088, and

    which will comply with the prohibitions in s. 124.41 of volume 40 of the Code of Federal Regulations.

    
    

12. No evidence was presented to show that the silt screens and other conditions established by DER in the proposed approval of Tucker's permit application will not provide the protection required by the above-quoted statute.

    
    

13. The burden of proof in this case is upon the Petitioner who is the party asserting the affirmation of an issue before an administrative tribunal. Balino v. Dept. of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1 DCA 1977).

    
    

14. Petitioner has failed to show by a preponderance of the evidence that the dredging and filling proposed by Respondent Tucker under the conditions required by DER, will degrade the water quality of Santa Rosa Sound or be harmful to the ecology of the area. To the contrary the evidence presented supports the conclusion that the proposed project, while it may present esthetic qualities repugnant to Petitioner, will improve the water quality of Santa Rosa Sound and this improvement will offset the temporary increase in turbidity caused by the dredging.

    
    

15. From the foregoing it is concluded that Petitioner has failed to show that the issuance of the permit to James Tucker, as proposed by DER, will adversely affect the water quality or ecology of Santa Rosa Sound. It is therefore,

Recommended that the petition be dismissed and the proposed permit issued.

DONE and ENTERED this 17th day of August, 1978, in Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Ray Allen, Esquire Staff Attorney

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

James Tucker

590 L'Ombre Court

Fort Walton Beach, Florida 32548

Thomas T. Remington, Esquire Post Office Drawer LL

Fort Walton Beach, Florida 32548

Docket for Case No: 78-000681

Orders for Case No: 78-000681