STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

CITY OF COCOA BEACH, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 79-2113

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, G. Steven Pfeiffer, held a public hearing in this matter on January 30, 1980, in Cocoa Beach, Florida. The following appearances were entered: William E. Weller, of the firm Rose and Weller, Cocoa Beach, Florida, for the Petitioner, City of Cocoa Beach; and Segundo J. Fernandez, Tallahassee, Florida, for the Respondent, Department of Environmental Regulation.

On or about April 4, 1979, the City of Cocoa Beach filed a dredge and fill permit application with the Department of Environmental Regulation. The City is seeking a permit which would allow it to undertake the maintenance dredging of an existing channel which lies adjacent to the City in the Banana River. The Department concluded that the application was not complete, and by notice entered April 19, requested additional data. Additional data was filed by the City on May 9, and June 11, 1979. Additional data respecting turbidity containment was not provided. Ultimately, by letter dated October 1, 1979, the Department gave notice of its intention to deny the permit application. The City filed a Petition for Administrative Hearing, and the Department forwarded the Petition to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing in accordance with Section 120.57(1)(b)3, Florida Statutes. The final hearing was scheduled as set out above by Notice dated November 9, 1979.

At the final hearing, the City called the following witnesses: Robert Perry, the Chairman of the Cocoa Beach Waterways Commission; John R. McDonald, a resident of the City who has substantial boating experience; Raymor H. Murray, the City Engineer; and James L. Pearce, the president of a private manufacturing firm which constructs turbidity curtains. The Department called the following witnesses: Robert Day, a pollution control specialist employed by the Department; Reece H. Kessler, Jr., an environmental specialist employed by the Department; and Glenn M. Vause, an environmental specialist employed by the Department. The following members of the general public testified at the hearing: Colonel W. M. Gaines, a resident of the City who favors issuance of a permit; and Sherrie Down, a biologist employed by Brevard County who opposes the application. Neither party has submitted a post-hearing memorandum.

FINDINGS OF FACT

1. The City of Cocoa Beach is proposing to maintenance dredge a channel which connects land areas of the City with the open waters of the Banana River in Brevard County, Florida. The channel runs approximately one and three-fourth miles from east to west. Nearest the shore the channel is approximately seven feet deep. As it extends out into the river, the channel has deteriorated to the point where at approximately halfway along its length it is only two feet deep. From that point until the end of the channel in the Banana River, it gets no deeper than three feet. Silt-like material has accumulated in the bottom of the channel. During low-water periods, many boats are completely unable to utilize the channel. Smaller boats which can use the channel are able to do so either because they plane above the channel bottom, or because they plow through the silty material. There are two other channels available for use which have not deteriorated to this extent, and even in low-water periods, boats unable to use the subject channel are not landlocked.

   
   

2. The City proposes to remove approximately 9,761 cubic yards of material from the channel, and to deposit it adjacent to the channel in a partially submerged and partially dry area. Several small islands run parallel to the channel. These were created from spoil which resulted from the original construction of the channel. The City proposes to deposit material that it dredges from the channel onto three already existing islands, combining them into one island, which would be approximately 120 feet by 650 feet. The City proposes to contain turbidity which would result from the dredging and depositing operations by placing a turbidity screen around the filled area.

   
   

3. The area where the proposed dredging and filling would take place is within an aquatic preserve as specified in the Aquatic Preserve Act, Chapter 258, Florida Statutes. The Banana River has been classified as Class III Waters. There is very little tide in the area of the proposed project, other than wind-driven tide. The islands which would be covered by fill from the channel if the permit is issued as proposed by the City are ringed with mangroves except in those places where erosion has taken place. The submerged areas which would be filled are dominated by aquatic grasses, primarily manatee grass and Cuban shoalweed. The mangroves and sea grasses form a productive area which serves as the base of the food chain in the river. The vegetation also serves to filter and uptake nutrients from the water. The area thus performs important environmental functions in serving as a part of the food chain for fish and other wildlife in the river, and in preserving the water quality of the river through the uptake of nutrients.

   
   

4. The area that would be filled would amount to just over three acres. There are approximately 7,000 acres in the subject portion of the Banana River which are similarly dominated by aquatic grasses. While the area is small, it is significant both because it is especially productive, and because there has been considerable development along the shoreline of the Banana River, which puts stress on wildlife and water quality. Placing the fill on the area would obliterate the mangrove and sea grass communities, and would put an end to the significant environmental functions that the area now performs.

   
   

5. The sediment that is in the channel and which would be placed on the mangrove and sea grass communities is a fine, silty material. It contains hydrogen sulfide, a toxicant to marine life. The material is presently largely contained within the channel. It is anaerobic, meaning that oxygen is not present in it, and it has an unpleasant smell. If the material is not contained, and it is allowed to spread across the flat sea grass areas, it will

   have an adverse effect upon the area. Biochemical oxygen demand would be dramatically increased in areas where the material spreads, and violations of the Department's standards for toxic substances would be likely.

   
   

6. The City proposes to contain the material by placing a turbidity screen around the filled area. A plastic screen with a chain bottom would be installed around the filled area with stakes holding it in place. Such screens are very effective in containing turbidity under some circumstances. In connection with the instant proposed project, however, it is unlikely that the turbidity screens would be sufficiently effective. In the first place, the screen would be anchored by stakes. Turbidity screens are effective when they are anchored at both ends to upland areas. When they are not so anchored, their efficiency decreases. Furthermore, the material that would be contained in this instance is extremely fine. Turbidity screens are not as effective in containing fine, silty materials as they are with coarser materials. It is likely under the best circumstances that the silty fill would seep under the screen, and through any gaps that might occur. Since the screen would be contained by stakes in an area which is subject to wind-driven tides, it is likely that fissures would occasionally develop in the screen, and that the silty materials would escape from the confined areas. It is therefore likely that violations of the Department's standards for turbidity and for toxic substances would occur outside of the screened area. Since the silty material is a toxicant to marine plant and animal life, the effects of placing the fill in this area would be to measurably degrade water quality beyond the limits of the filled area.

   
   

7. The problems inherent in placing the fill along the channel could be avoided by pumping the fill to an upland area. The City has considered this alternative; however, it has been advised that the cost of such pumping activities would increase the cost of the maintenance dredging from approximately $20,000 to in excess of $100,000. The City would not be able to afford the cost of the project under these circumstances. The City has not received any formal estimates for pumping the fill material to an upland area, but has received only an informal estimate that pumping beyond 2,000 feet would dramatically increase the cost. In order to get the material to an upland area, it would need to be pumped at least 8,000 feet.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

9. An applicant for a dredge and fill permit has the burden of affirmatively providing reasonable assurance that the project will not cause pollution, and will not result in violations of the water quality criteria and standards of the Florida Statutes and the Rules and Regulations of the Department. Rules 17-4.07(1), 17-4.28(3), Florida Administrative Code.

   
   

10. If the instant application is granted without modification, a productive sea grass and mangrove community will be obliterated and replaced with a spoil island. The sea grass and mangrove community in its present state serves to augment the habitat for fish and other wildlife within the Banana River, and to aid in the preservation of water quality within the river. Covering the area would eliminate these functions.

    
    

11. Since the material that would be placed in the area is silty, it is not likely that it can be adequately contained by turbidity screens. Violations

    of the Department's standards for turbidity in Class III Waters, Rule 17- 3.09(7), would be likely in a broad area. Since the silty material contains concentrations of toxicants, and is anaerobic, it is also likely that the Department's standards for toxic substances would be violated. Rule 17-3.09(5).

    
    

12. The public interest would be served by maintenance dredging of the channel. Boating access from the mainland areas of Cocoa Beach to the open waters of the Banana River would be enhanced. Since other channels are available for use by boaters in Cocoa Beach, however, this public interest is not sufficient to justify the adverse environmental impacts of the proposed project. If the project were undertaken in such a manner that the dredged material could be discharged onto an upland area, the adverse consequences of the project would be eliminated, and issuance of a permit, to the extent that it would then be required by the Department's rules, would be appropriate.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is, hereby,

RECOMMENDED:

That the Department of Environmental Regulation issue a Final Order denying the permit application submitted by the City of Cocoa Beach, unless the application is modified to provide for placing dredged materials on upland areas rather than on submerged areas adjacent to the channel.

RECOMMENDED this 26th day of March, 1980, in Tallahassee, Florida.

G. STEVEN PFEIFFER Hearing Officer

Division of Administrative Hearings Department of Administration

Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Segundo J. Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation

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

William E. Weller, Esquire Rose and Weller

101 North Atlantic Avenue Cocoa Beach, Florida 32931

Jacob D. Varn, Esquire Secretary, Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 79-002113

Orders for Case No: 79-002113