on March 10, 1983, at Melbourne, Florida. The issue for determination at the hearing was whether the Petitioner was properly denied a permit to dredge a navigational channel into the Indian River in Indialantic, Florida.
For Petitioner: W. J. Vaughn, Esquire
For Respondent: Dennis R. Erdley, Esquire
On June 1, 1982, Petitioner submitted a Joint Application form of the Department of the Army/Florida Department of Environmental Regulation (SAJ Form 983) to the Florida Department of Environmental Regulation (Department) requesting a permit to dredge a channel from the deeper waters of the Indian River to the end of a pier he proposed to build 100 feet out into the river from his shore bank and then alongside the pier to the bank. On November 9, 1982, the Department issued an Intent to Deny and advised Petitioner of his right to file a request for a hearing under Section 120.57(1), Florida Statutes. A Petition for Hearing was submitted and received by the Department on November 24, 1982. This hearing is the result of that petition.
Mr. C. A. Rossetter, Petitioner, owns and resides in a house located adjacent to the Indian River at 1020 South Patrick (now Riverside) Drive in Indialantic, Florida, and has resided on that property for approximately 21
years. He owns a 31-foot power boat which draws 3.5 feet of water and is currently docked at his sister's house in neighboring Eau Gallie, Florida. His own property has no dock at the present time, and the water depth in the river, which out to a distance of several hundred feet is less than 3.5 feet, is therefore too shallow to allow access to his property by his boat.
On June 11, 1982, Petitioner submitted a request to the Department to dredge, subsequently assigned number 050567924, which was received in the local office of the Department on June 15, 1982. This request was for permission to dredge next to a boat pier to be constructed which would allow access with his boat. The area to be dredged was 15 feet wide from the shoreline, out 100 feet to the end of the pier, then an additional 100 feet beyond, with a 15- by 20- foot area in front of the "L" end of the pier, north of the main dredging area. Drawings submitted with the application indicated the total volume to be dredged was 300 cubic yards. Proposed use of the property was to be private.
When the application was received by the Department, it was reviewed by Barbara Bess, a marine biologist, in August, 1982. In September, 1982, Ms. Bess visited the site, talked with the Petitioner, and made general observations as to the site, the river, and the surrounding property. She returned to the property on October 7, 1982, with her supervisor, Mr. Reese Kessler, from the Department's Orlando office. Mr. Kessler is an expert in the effects of dredging on marine species and habitat.
As a result of the two visits and her evaluation, on October 8, 1982, Ms. Bess submitted a memorandum on this application in which she thoroughly described the request, the area, and the effect the dredging would have on the ecology, ultimately concluding that the public interest would not be served by permitting the dredging of a navigational channel for one private landowner 1/ and that it would be far less damaging to the already impacted area to construct a long dock which, if kept under 1,000 square feet in area, would qualify for exemption from permit requirement status. She also recommended that the permit be denied. Thereafter, on November 9, 1982, the Department issued the Intent to Deny, pointing out that the proposed dredging would adversely affect 3,300 square feet of the Indian River marine biological resources, would serve only one individual property owner, and, therefore, was not in the public interest.
The area where the Petitioner proposed the operation is exclusively residential with commercial areas approximately one mile to the south and three miles to the north at the causeways. Petitioner's property extends approximately 120 feet on the river and eastward to South Patrick Drive. The residence is a single family dwelling. Petitioner had previously installed a seawall approximately five feet waterward of mean high water. The area between the seawall and the shoreline has weed-covered water and has not been filled in. Petitioner had a prior permit for a dock (since expired) which called for a sloping riprap in front of the seawall. This has not been done.
The river bottom at Petitioner's property is an almost totally unvegetated soft, fine gray sand and silt. There is an abundance of marine life present, however, including penaid shrimp, polychaetes, Nemertean worms, comb jellies, mollusks, annelids, and fish, primarily mullet. Dredging would be by means of a suction dredge to cut into the bottom.
With the exception of one species of edible clam, the majority of the invertebrate sea life in the area serves as the bottom part of the food chain in the area as food for more advanced sea life forms such as fish, crabs, etc.
Mullet, for example, which is quite populous here, is a commercially valuable species, as are snook, trout, and snapper.
Dredging of the channel proposed would remove the top 2.5 feet of bottom, along with all the marine life that it contains. In its place over a period of time would accumulate a black, oozy silt (known to some as black mayonnaise) which settles into any depression left in the bottom. This silt permits the growth on nonlight-requiring algae and other plant life which, when decaying, creates hydrogen sulfide, the substance responsible for the terrible odor often experienced in the area. In addition, other types of less desirable life forms come in to replace that which is taken. While experience has shown in other areas where dredging has taken place that there is some regeneration of beneficial and favorable life forms, the affected area will never have the same degree of population of desirable sea life as exists before dredging. This is caused by the accumulation of silt in the dredged area which blocks oxygen from getting to the organisms which live in the bottom.
Almost any activity can have an adverse effect on the bottom, such as walking across the bottom, water skiing above it, etc., but these activities, which do not deeply scar the bottom, have only a short-term and unmeasurable impact. A comparison of this short-term damage to the long-term damage of dredging and removal of a part of the bottom clearly reveals that the by far greater adverse impact comes from dredging. That which is removed by dredging is not soon replaced. Admittedly, the holes needed to insert pilings for the dock would also cause some damage, but not nearly as much. What is significant is the degree of damage caused by the options.
In determining whether or not to grant a permit, the agency considers several factors. One is whether there will be damage to the ecology and the environment, and if so, how much. A second factor is the cumulative effect-- would this permit establish a precedent that would be undesirable from an ecological viewpoint? In the event there are affirmative findings of potential damage and the degree thereof, the next question is whether to grant the permit would be in the public interest. Here, in the opinion of Ms. Bess and Mr. Kessler, it would not. Other dredging in the area, such as that accomplished by the county approximately a mile from this site, which benefited only six families, cannot be compared because it was only to clean out a channel which had previously been dredged. Petitioner's would be cutting into virgin bottom and to do so for one family's private use, with its precedent-setting potential, when a far less damaging alternative is available cannot reasonably be justified as in the public good.
Dredging for Petitioner in this area would have a substantial adverse impact on the marine ecology of the immediate area. Petitioner, as a riparian owner, has the right to enjoy his property, but the proposed alternative of a dock gives Mr. Rossetter ingress and egress to his property from the water with the least harm to the ecology of the river.
Petitioner was served with a series of interrogatories pursuant to Rule 28-5.208, Florida Administrative Code, on January 10, 1983. He failed to answer these interrogatories. Petitioner was also served with a Request for Admissions under the same rule on January 20, 1983, and again failed to respond. Petitioner at no time requested relief from either attempt at discovery, even though he was reminded of his failure to comply, by the Hearing Officer, at the hearing.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Prior to the hearing, counsel for the Respondent moved for an order deeming certain matters admitted based on Petitioner's failure to either respond to discovery requests by Respondent or request an extension of the 30-day period provided for in Rule 1.370(a), Florida Rules of Civil Procedure.
A request for admissions falls within the provisions of Rule 1.370(a) only if it requests admissions of fact, not conclusions of law. Old Equity Life Insurance Company v. Suggs, 263 So.2d 280 (2 DCA Fla. 1972). Review of the Request for Admissions in question clearly reveals that it calls for admissions of fact and therefore falls within the rule. Therefore, pursuant to Rule 1.370, the matters in question are deemed admitted; and since no request for relief was submitted by Petitioner, there appears to be no substantial factual issue for determination here. On this basis alone, Petitioner's request for a permit must fail, since there is no issue of its substantial adverse impact on the marine environment and resources in the proposed dredge area and that the proposed dredging is not in the public interest.
Notwithstanding the above, which relates strictly to an application of the law, the Hearing Officer nonetheless afforded Petitioner a full hearing on the evidence, and evaluation of the findings of fact resulting from that hearing require an identical conclusion.
Applications to dredge from the navigable waters of this state are made pursuant to Section 253.123, Florida Statutes, which provides that applicants to dredge for the construction of navigation channels shall do so only upon the receipt of a permit that is granted only after consideration of a biological or ecological study and upon a showing of the public interest which will be served by such works. Sections 253.123(3)(a) and (4)(c), Florida Statutes; Yonge v. Askew 293 So.2d 395, 401 (1 DCA Fla. 1974); Shablowski v. State, Department of Environmental Regulation, 370 So.2d 50, 53 (1 DCA Fla. 1979). The applicant must also provide reasonable assurances that his project will not interfere with the conservation of fish, marine life and wildlife or other natural resources to such an extent as to be contrary to the public interest. Rule 17-4.29(6)(a), Florida Administrative Code.
Petitioner has failed to provide reasonable assurances that his project will not be such as to violate the rule, instead urging that damage due to his proposed activity would merely be greater in degree than that currently being caused by the existing use of the area by water skiers, boaters, and the like. Of course, degree is of great importance.
The Respondent has shown that the dredging proposed would remove approximately 300 cubic yards of river bottom which is home to numerous species of organisms which form the bottom rung in the marine food chain in the area. Respondent has also shown that the adverse effects of the proposed dredging, while self-repairing to some degree, will to a greater degree never be completely removed, and the accumulation of the silt in the bottom of the dredged channel in and of itself is undesirable without reference to the effects it causes. It, in no reasonable way, can be concluded that these results are in the public interest.
While the riparian rights of landowners are and should be protected, and the landowners should have a right to the reasonable use and enjoyment of their land, that right is not absolute. It accrues wherever it is concurrent with the public interest, but is not lightly abridged. Respondent's argument of the cumulative effect of other dredging projects of a similar nature in the area and the precedent possibly to be set by granting this permit are not persuasive. No rule regarding cumulative impact currently exists. Issuance of the permit requested here would not establish a precedent requiring issuance of other permits, since permits are issued on a case-by-case basis, and each situation should be decided on its own merits--the situation as it exists at that time.
If there is a demonstrable change as a result of dredging of this nature, that would undoubtedly support the denial of future permits based on that change.
Consequently, reliance on the possibility of future cumulative impact is pure speculation, and not controlling.
However, there is a viable and reasonable alternative to dredging available to the Petitioner in the form of a dock, which could suit his needs if not his desires and, if kept within limits, would not even require difficult permitting. In light of this option and the fact that there would be a decided and determinable negative impact on the river ecology area of long-standing duration and the fact that this operation cannot reasonably be considered in the public interest, it is clear that Petitioner has failed to carry his burden of proof that the permit applied for should be issued.
The Respondent has submitted a proposed recommended order which includes proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.
