STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCILE F. KEELY, )

)

Petitioner, )

)

vs. ) CASE NO. 78-2224

) HARRIET STOKES and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 28, 1980, in Key Largo, Florida. The parties stipulated that the hearing closed March 17, 1980, the date supportive memoranda were filed by the parties. Said memoranda have been received and considered by me in preparation of this Recommended Order.

APPEARANCES

For Petitioner: Ms. Lucile F. Keely, appearing Pro Se 5797 La Luneta Avenue

Miami, Florida 33151

For Respondent, Michael Egan, Esquire Harriet Stokes: Roberts & Egan, P.A.

Post Office Box 1386 Tallahassee, Florida 32301

For Respondent, H. Ray Allen, Esquire and Department of William W. Deane, Esquire Environmental Assistant General Counsel

Regulation: Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301 ISSUE

The issue posed for decision herein is whether or not the Respondent, Harriet Stokes, provided the Respondent, Department of Environmental Regulation (Department), reasonable assurances that the dredging activity request in its application submitted to the Department on September 22, 1978, will not adversely impact navigation, marine resources, and water quality.

PRELIMINARY STATEMENT

On June 29, 1978, Harriet R. Stokes, applicant, submitted to the Department, a joint application to dredge approximately 5,400 square feet of a

private harbor (which has gradually built up due to silting) from an average depth of approximately -2.00 feet MLW (mean low water) to an average depth of approximately -4.5 MLW to conform with the adjacent harbors of Tarpon Basin. The applicant proposed to complete this "maintenance dredging" by means of a conventional crane and clam shell from shore line and to deposit the spoils by truck to the upland dyke areas owned by the Upper Keys Marine Construction Company. The Department received the applicant's completed application on September 20, 1978, and on September 22, 1978, noticed the concerned public agencies and surrounding landowners of the Respondent's (Stokes) pending application to solicit comments or objections to the project. On September 26,

1978, the Petitioner, Keely, notified the Department by letter of her objections to the proposed "maintenance dredging" project. In response to the application and the public comments received, the Department instituted a biological assessment and appraisal of the project site which culminated in the Department's issuance of its Intent to Issue Permit letter dated October 26, 1978. The Petitioner received a copy of the Department's letter, whereupon she requested that the Division of Administrative Hearings conduct a Chapter 120, Florida Statutes, hearing on the Department's proposed Intent to Issue Permit notice. Prior to the final hearing herein, the Department conducted two additional site inspections of the proposed project site, at which time additional biological surveys were made. After the later surveys were analyzed, the Department determined that it would not recommend approval of the subject application as submitted. On December 11, 1979, the Department notified the applicant by letter that the application would be denied unless steps were taken to modify the concerns noted by the Department. The parties were unable to informally resolve the matter, and therefore the formal hearing scheduled herein for February 28, 1980, was conducted.

The applicant called the following witnesses at the hearing:

1. Mrs. Harriet Stokes, the applicant and owner of the property which is the site of the proposed project.

   
   

2. Johnny DeBrule, the General Superintendent for Heavy Construction, Upper Keys Marine Construction Company, Key Largo, Florida.

   
   

3. Richard Dumas, Environmental Specialist II in the Dredge and Fill Section of the Department's Marathon, Florida, area office.

   
   

   The Department called the following witnesses:

   
   

   1. Michael Nowicki, Dredge and Fill Supervisor in the Department's Punta Gorda branch office.

   2. Richard Dumas.

      
      

   3. Curtis Kruer, Environmental Specialist II in the Dredge and Fill Section of the Department's Marathon, Florida, office.

Mr. Kruer was tendered and accepted as an expert in marine biology. The applicant introduced Respondent's Exhibit 1 into evidence and the

Department introduced Department's (DER) Exhibits 1 through 12 into evidence.

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel and the entire record compiled herein, the following relevant facts are found.

   
   

2. Harriet Stokes purchased the Largo Motel during August of 1967. The motel consisted of six (6) units with a boat basin and dock which adjoined the site. When the property was purchased, the boat basin was navigable from the motel to the open waters of Tarpon Bay. Tarpon Bay is a Class III water body. A representative number of Ms. Stokes' residents and patrons bring in trailered boats ranging in size, approximately fourteen (14) to eighteen (18) feet. Since approximately 1974, silting has occurred in the basin in the immediate area approaching the dock area. The silting has rendered the dock virtually unnavigable except in cases where boat owners are able to access the open waters by poling". Evidence reveals that a number of boat owners have broken their propellers attempting to gain access to the open waters of Tarpon Bay. Based thereon, residents are cautioned against attempting to launch boats from the dock area, which has resulted in a decline of Respondent's fish and pleasure boating guests (Testimony of Harriet Stokes).

   
   

3. Johnny DeBrule, the Heavy Construction Superintendent for the Upper Keys Marine Construction Company, Key Largo, Florida, was consulted by Respondent Stokes for completion of the dredging work called for in the subject application. Mr. DeBrule gave his opinion that the subject project could be excavated with a backhoe equipped with a material handling bucket with minimal interruption to the adjacent waters.

   
   

4. Richard Dumas, an Environmental Specialist employed by the Department since approximately November, 1977, conducted the initial field site inspection which resulted in the Department's first report recommending issuance of the permit application (Respondent's Exhibit 1). Mr. Dumas testified that he failed to consider the proper standards when he initially issued his first site inspection report which recommended approval of the project as applied for. Dumas was part of the inspection team which included Messrs. Michael Nowicki, Curtis Kruer, and Attorney Ray Allen. After the second field inspection survey was made during December, 1979, the team unanimously concurred that the project as applied for did not entail maintenance dredging and, further, that based upon an in-depth inspection during the second visit, the project, as applied for, was not permittable. Mr. Dumas's earlier recommendation which favored the approval of the subject project was prompted in large part by the policy consideration of the economic viability of Mrs. Stokes' motel enterprise.

   
   

5. Michael Nowicki (Nowicki), a Dredge and Fill Supervisor employed by the Department in its Punta Gorda office, is in charge of processing short form dredge and fill applications. As part of his employment duties, Nowicki makes recommendations to the District Manager on short form applications and as part of this review process has reviewed and appraised approximately three thousand (3,000) dredge and fill applications. Nowicki was involved with the formulation and review process of the subject application. During the inspection on this project on December 10, 1979, the dredging was determined not to be "maintenance dredging" since the dredging "would occur in an area of exposed caprock bottoms situated approximately six (6) to nine (9) inches below the surface waters and would result in the destruction and elimination of the thriving benthic community" (Testimony of Kruer, Nowicki and Dumas). In this regard, during May of 1979, Dumas conducted water samplings in the immediate areas of the proposed project and noted that there was a very diverse and productive benthic algal community which was surviving on the nursery and feeding grounds supplied by the

   grass flats and natural shorelines (Testimony of Dumas and DER Exhibits 10 and 11). Subsequent inspections by Curtis Kruer corroborate this fact.

   
   

6. Curtis Kruer, an Environmental Specialist received as a marine biology expert in this proceeding, performed an on-site inspection of the proposed project on December 6, 1979. Kruer made several probings in the area and found that natural caprock was present in the very shallow areas of the bay bottoms. He found that approximately 70 percent of the area was very diverse and highly vegetated. For example he found that the bay bottom is composed of approximately 30 percent benthic algae, 30 percent silt and organic detritus, and approximately 40 percent sea grasses. The most abundant seagrasses were turtle grass with a small amount of Cuban shoalgrass near the boat ramp. Kruer noted that the vegetated bottoms serve as nursery grounds for the area's marine community which consisted of several varieties of juvenile commercial and recreational fish and shellfish (DER Exhibit 11). Kruer noted that adjoining dredged areas immediately adjoining the proposed project have not revegetated and that there are thick layers of silt and organic materials on this site. He further noted that the project would conflict with the natural shoreline and that there were reasonable alternatives which would provide favorable and less destructive uses for the Petitioner's boat basin. Among the alternatives suggested by Kruer was a boat dock with piers supported by pilings of adequate depth in the project's bay bottoms (DER Exhibit 11). Finally, Kruer noted that the proposed dredged area contains productive vegetated benthic communities which will only revegetate, if at all, over extended periods of time (DER Exhibit II).

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Sections 120.57(1) and 120.60, Florida Statutes.

   
   

8. The parties were duly noticed pursuant to the notice provisions of Chapter 120, Florida Statutes.

   
   

9. The authority of the Respondent, Department of Environmental Regulation, is derived from Chapters 253 and 403, Florida Statutes, and Rule Section 17, Florida Administrative Code.

   
   

10. The project, which is the subject of this hearing, is situated on Tarpon Basin, a Class III water body according to Section 17-3.21, Florida Administrative Code.

    
    

11. The area of the proposed project falls within the definition of submerged lands as set forth in Section 253.12(1), Florida Statutes, and as such, is subject to the requirements of Section 253.123, Florida Statutes.

    
    

12. The destruction and removal of marine resources as contemplated by this project conflicts with the intended uses of a Class III water body.

    
    

13. The applicant has the burden of affirmatively establishing that the proposed project will not be contrary to the public interest. Section 253.123, Florida Statutes, and Albrecht v. DER, 353 So.2d 883 (1st DCA 1979). The mere showing of a financial benefit is insufficient to establish a beneficial public result. Yonge v. Askew, 293 So.2d 395.

14. The Respondent, Harriet Stokes, failed to introduce any competent and substantial evidence to establish that the proposed dredging would not be contrary to public interest. The studies conducted and introduced by the Department established that the dredging, as applied for, would adversely impact the marine resources of the area and is contrary to the public interest.

    
    

15. The dredging entailed by a favorable recommendation of the subject permit application is not "maintenance dredging" which would qualify the project as exempt under the guides of Section 403.812(2)(f), Florida Statutes.

    
    

16. A Section 120.57, Florida Statutes, hearing provides for the formulation of final agency action, and does not bind an agency to preliminary actions taken when subsequent examinations prior to the entry of final agency action shows that such changed conditions dictate a different course of action baked on later reviews and findings. McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department enter its final order denying the application for a permit to dredge approximately 5,400 square feet of silt from the boat basin at Largo Lodge, Key Largo, Monroe County, Florida.

RECOMMENDED this 22nd day of April, 1980, in Tallahassee, Florida.

JAMES E. BRADWELL

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Ms. Lucile Keely

5797 La Luneta Avenue Miami Florida 33155

Michael Egan, Esquire ROBERTS & EGAN, P.A.

Post Office 1386

Tallahassee, Florida 32301

H. Ray Allen, Esquire William W. Deane, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Jacob R. Varn, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 78-002224

Orders for Case No: 78-002224