STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LANDIN, LTD., )

)

Petitioner, )

)

vs. ) CASE NO. 81-2848

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal administrative hearing was conducted in this matter on March 8, 1982, in West Palm Beach, Florida. The following appearances were entered: Dennis R. Johnson, Tequesta, Florida, appeared on behalf of the Petitioner, Landin, Ltd; and Alfred J. Malefatto, Tallahassee, Florida, appeared on behalf of the Respondent, Department of Environmental Regulation.

The Petitioner, Landin, Ltd, has filed an application with the Department of Environmental Regulation to construct a boat docking facility in Sims Creek in Palm Beach County, Florida. On October 6, 1981, the Department issued a notice that it intended to deny the application. Petitioner filed a Petition for Formal Hearing, and by notice filed November 16, 1981, the Department forwarded the matter to the office of the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing. The final hearing was scheduled as set out above by notice dated December 14, 1981.

At the final hearing the Petitioner called the following witnesses: Joseph

1. Fluet, a coastal and estuarine engineer; and Ben Martin, a chemist with a private consulting firm. The Department called the following witnesses: Gary Nickelsen, an environmental specialist employed by the Department; James J. Barry, supervising biologist with the Palm Beach County Health Department; and Harvey Rudolph, the biological supervisor of the Department's Division of Permitting. Petitioner's Exhibit 1 and DER Exhibits 1 through 7 were received into evidence. The parties have submitted posthearing legal memoranda which include proposed findings of fact and conclusions of law. The Department's memorandum was filed after the deadline which was established at the final hearing. The Department submitted a Motion for Extension of Time to which the Petitioner does not object. The Motion for Extension of Time is hereby granted. The findings of fact and conclusions of Law set out in the parties' posthearing legal memoranda have been adopted only to the extent that they are expressly set out in the findings of fact and conclusions of law which follow. They have been otherwise rejected as either contrary to the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

   
   

   The issue in this proceeding is whether the Department of Environmental Regulation should issue a permit to the Petitioner for the construction of a boat docking facility.

   FINDINGS OF FACT

   
   

   1. Petitioner owns property adjacent to Sims Creek located in Palm Beach County, Florida. Petitioner is undertaking a development on the property. The development was initiated by the Great American Anvil Corporation, the previous owner of the property. The development as originally conceived included construction of a dock in Sims Creek. The Great American Anvil Corporation applied for a permit to the State Board of Trustees of the Internal Improvement Trust Fund. On February 5, 1975, a permit was issued to allow Great American Anvil Corporation "to construct eight (8) finger piers each twenty feet long by two feet wide, and three triangular piers twenty feet long by five feet wide at the base and two feet wide at the top" in Sims Creek. The permit was issued for construction of the docking facility and by its terms expired on a specified date. The permit was never assigned or transferred to Petitioner. The permit has expired, and is no longer effective.

      
      

   2. A bulkhead has already been constructed along Petitioner's property. Petitioner is seeking a permit which would authorize it to construct a perimeter dock which would run along the approximately three hundred foot border of Petitioner's property and Sims Creek, and extend four feet over Sims Creek. Petitioner is also seeking to construct ten piers out from the perimeter dock, each of which would be twenty-five feet long and two feet wide. Mooring spaces would be provided for sixteen or more boats The perimeter dock and the ten piers would be supported by pilings which would be placed in the creek bottom. The permit application provides that the pilings would be installed by a process called "jetting".

      
      

   3. Sims Creek is a natural, navigable tributary of the Loxahatchee River. The mouth of Sims Creek on the Loxahatchee River is located in fairly close proximity to where a canal known as the "C-18 Canal" empties into the river. Sims Creek is a winding stream which has been relatively undisturbed by development. Petitioner's project is located approximately one thousand to fourteen hundred linear feet upland from the mouth of the creek. Approximately five hundred feet upland from the proposed docks, the creek veers sharply to the south and becomes significantly more shallow. The creek is influenced by both estuarine and tidal flows. During high tides, water flows from the Loxahatchee River upland into the creek. During low tides the water flows out of the creek into the Loxahatchee River. In addition, water generally drains through the creek into the river. The creek has good flushing characteristics. The "residence time" for water in the creek is typically one day, except in isolated pockets along the shoreline, and in deeper basins which occur in the creek.

      
      

   4. The area of the creek where the proposed docks would be constructed is a basin area. Waters reach a depth of eight feet. This area of the creek is stressed in water quality terms. Dissolved oxygen values measured at the site are in excess of Department standards. This is the result of the depth at the location; the oozy, organic bottom soils; and the fact that a storm water outfall and a sewage outfall enter the creek on the opposite side from Petitioner's property. The creek is generally more shallow than in this basin area. Near to the mouth of the creek, water depths are as shallow as 2.25 feet during high tide. The deepest continuous channel from the proposed docks to the mouth of the river is approximately three feet at high tide, and from one to one

      and one-half feet at low tide. The shallower areas of the creek are characterized by sandy bottoms, good water quality, and a rather high level of plant and animal activity which is diverse. Shorelines along most of the creek are dominated by mangrove vegetation. There is presently a limited amount of boating activity that occurs in the creek. Persons who testified at the hearing witnessed at various times from one to seven small motor craft in the creek.

      
      

   5. Construction of the perimeter dock and piers in the manner proposed by Petitioner in its application would have significant adverse short term water quality impacts. The "jetting process" for installing pilings would result in considerable turbidity which would be likely to violate state standards within the area of construction, and downstream to the mouth of the creek. These short term adverse impacts could be alleviated by installing the pilings through a "driving technique" and by use of turbidity screens. Petitioner has expressed a willingness to utilize these construction techniques.

      
      

   6. The proposed docking facility is likely to have an adverse impact upon water quality in Sims Creek. The project, if completed, is likely to cause violations of the Department's water quality standards. Dissolved oxygen levels in the area of the proposed project already exceed the Department's standards. The Petitioner's proposed docks would cover a significant portion of the water surface with docks, and this would exacerbate dissolved oxygen levels. Furthermore, increased boating activity in the area would, due to the interjection of greases and oils, further adversely impact dissolved oxygen levels, and can reasonably be expected to lead to violations of the Department's standards for biologic oxygen demand and oils and greases.

      
      

   7. Petitioner's proposed docking facility includes mooring spaces for approximately sixteen boats. The dock would serve therefore to increase boating activity in Sims Creek by three times or more Sims Creek is difficult to navigate without disturbing the productive shallow bottom areas. Increased boating activity is likely to disturb these areas and to lead to the destruction of a natural marine habitat. Sims Creek is too shallow a water body to sustain the sort of boating traffic that would be generated through construction of a docking facility such as Petitioner has proposed.

      
      

   8. Sims Creek is sovereignty land of the State of Florida. Petitioner has not received approval from the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources to use Sims Creek in the manner proposed.

      
      

      CONCLUSIONS OF LAW

      
      

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

      
      

   10. The dock facility proposed by Petitioner is subject to permitting requirements of the Department of Environmental Regulation, and cannot be constructed without a valid permit issued by the Department. Rule 17-4.03, Florida Administrative Code. Department Rules 17-4.03 and 17.28(3), Florida Administrative Code, provide that an applicant for such a permit must provide reasonable assurance that the project will not cause pollution in contravention of Department standards, or result in violation of the Department's water quality criteria. An applicant must also establish that the proposed activity will not result in the destruction of marine productivity and natural marine habitat. Rule 17-4.29(6), Florida Administrative Code. Petitioner has failed

       to provide these assurances. Indeed, it appears that the proposed dock facility would adversely impact an already stressed portion of Sims Creek and contribute to continued dissolved oxygen violations. Furthermore, increased boating activities in Sims Creek would be likely to result in violation of the Department's standards for dissolved oxygen, biological oxygen demand and oils and greases, as well as disrupting a natural marine habitat.

       
       

   11. Section 253.77(1), Florida Statutes, provides that no permits should be issued for a project which would involve the use of sovereignty lands without consent and approval from the Department of Natural Resources or the Board of Trustees of the Internal Improvement Trust Fund. Petitioner has not received consent or approval from the Department of Natural Resources or the Trustees of the Internal Improvement Trust Fund for its proposed project.

       
       

   12. Petitioner has contended that the permit should be granted because it serves only to extend a permit that was previously granted by the Board of Trustees of the Internal Improvement Trust Fund. This contention is without merit. The permit that had been issued by the Board of Trustees of the Internal Improvement Trust Fund has expired by its own terms and was never issued to Petitioner. Petitioner therefore has no vested right in the expired permit. There have been statutory amendments, and changes in the regulatory framework which apply to such a permitting procedure. In addition, the project proposed by the Petitioner is much grander than had been proposed by Petitioner's predecessor. Even if there was some vested right in reissuance of that permit, which there is not, Petitioner's proposed project is not the same project.

       
       

   13. Petitioner has contended that the permit should be issued because Petitioner, and persons who have purchased property from Petitioner anticipated that a permit would be issued for the dock. This contention is without merit. Neither Petitioner, nor anyone who has purchased property from it had any legally cognizable expectation that the permit would be issued. To the extent that any representations were made to anyone about construction of a dock, it does not appear that those representations were made by any representative of the State of Florida.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,

RECOMMENDED:

That a final order be entered by the Department of Environmental Regulation denying the application submitted by Landin Ltd, for a dredge and fill permit to construct a docking facility in Sims Creek, West Palm Beach, Florida.

RECOMMENDED this 5th day of April, 1982, in Tallahassee, Florida.

G. STEVEN PFEIFFER Assistant Director

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 5th day of April, 1982.

COPIES FURNISHED:

Dennis R. Johnson, Esquire

308 Tequesta Drive Tequesta, Florida 33458

Alfred J. Malefatto, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 81-002848

Orders for Case No: 81-002848