STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT L. BANNERMAN and )

GRACE B. BANNERMAN, ) CASE NO. 83-1249

)

and )

)

FEDERAL DEPOSIT INSURANCE )

CORPORATION, ) CASE NO. 83-1250

)

Petitioners, )

)

vs. )

) DAVID HALFEN and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, duly Hearing Officer on June 28, 1984, at Destin, Florida. The appearances were as follows:

APPEARANCES

For Petitioners: Cynthia S. Tunnicliff, Esquire

CARLTON, FIELDS, WARD, EMMANUEL, SMITH & CUTLER

Post Office Drawer 190 Tallahassee, Florida 32302

For Respondent: Susan Keil, Esquire and Department of Astrid Wistedt, Legal Intern

Environmental Department of Environmental Regulation Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: Robert L. Stone, Esquire

David Halfen HARRELL, WILTSHIRE, STONE and SWEARINGEN

Post Office Box 1832 Pensacola, Florida 32958

This cause arose upon the filing of an application by Respondent David Halfen for a permit from the Department of Environmental Regulation (DER) authorizing construction of a 490-foot pedestrian bridge across the westerly corner of a 52-acre lake in Walton County, Florida, known as Little Red Fish Lake. The proposed bridge would be four feet above water with an elevated span rising to five feet for the purpose of allowing passage of small boats. On April 4, 1983, DER notified Mr. Halfen of its intent to issue the requested permit and the requirement that notice of the intent be published in the legal

advertisement section of a newspaper of general circulation in Walton County. Pursuant to that notice, the above-captioned Petitioners filed timely requests for hearing.

The Federal Deposit Insurance Corporation (FDIC) filed a separate petition or request for a formal 120.57(1) proceeding and that proceeding was ultimately consolidated with that filed by Robert and Grace Bannerman.

At the hearing the Petitioners presented the following witnesses: Mr. Robert Bannerman, Mr. John Klep, Mr. Lyle Hughes, all of whom own property contiguous to the lake or have easements or other legal access to the lake, and Mr. Van Ness Butler, a lifetime resident of the area and manager of the FDIC's property. The FDIC entered no appearance at the hearing in its own right.

Petitioners also presented by way of deposition, the testimony of Mr. Don Keirn, Land Management Specialist with the Department of Natural Resources and Mr.

George Cole, as an expert witness in the field of surveying. Stipulated exhibits 1 and 2, consisting of the entire DER District file and abstract of title No. 83-1378-A prepared with regard to the property concerned in this dispute, were admitted into evidence, as were Exhibits A1 through A8, consisting of photographs of the subject property and Petitioner's Exhibit 8, the deposition of George Cole with Exhibits 1, 2, and 3 attached; Petitioner's Exhibit C, the deposition of Don Keirn, with Exhibits 1 and 2 attached.

The Respondent presented as witnesses Mr. David Halfen, Mr. Cliff S. Rohlke, who was stipulated to be an expert in water quality and biology; Mr. W. Richard Fancher, who was stipulated as an expert in water quality; Mr. Robert Bannerman, petitioner, as an adverse witness and Mr. Victor Schumer, as a rebuttal witness. Respondent's Exhibits 3 through 13 were admitted into evidence and stipulated Exhibits 1 and 2 were admitted in Respondent' a case.

The issue to be resolved concerns whether the proposed installation of the footbridge would violate the water quality parameters contained in Chapter 17, Florida Administrative Code and whether the other environmental permitting criteria, including navigation, embodied in the authority cited infra will be violated. A specific issue in this regard concerns whether the bridge will unduly interfere with navigation and the rights of riparian landowners and others with legal access to the subject lake to navigate and enjoy the use of the entire lake and concomitantly, whether the installation of the bridge is contrary to the public interest. The foremost issue however, concerns whether the Petitioners or Respondent Halfen own or otherwise have legal title, use or control of the bottom of Little Red Fish Lake such that, in Halfen's case, he would be entitled, upon being duly issued a permit, to construct the proposed bridge, or alternatively, if the State or the Petitioners own the submerged property involved, whether Halfen is thus barred from constructing the bridge on that property without Petitioner's or the State's permission.

At the conclusion of the hearing the parties requested a transcript of the proceedings and availed themselves of the right to file proposed findings of fact, conclusions of law and memoranda. Proposed recommended orders were timely filed and various motions were filed by the parties subsequent to the filing of the proposed recommended orders. These motions dealt with supplementing the record to permit the Petitioners and the Respondents to furnish additional legal authority and copies of a complaint and an amended complaint in a quiet title action in the circuit court, which is proceeding parallel to these administrative proceedings. Those motions all involve supplementing the record to furnish evidence and authority pertinent to a resolution of the question of ownership, use or right of control of the submerged bottom in question. Because

of the conclusion reached below concerning the title dispute, those motions, although they are granted, are in effect rendered moot.

FINDINGS OF FACT

1. Respondent David Halfen applied for a permit from the Department of Environmental Regulation authorizing construction of a footbridge across Little Red Fish Lake in Section 7, Township 3 South, Range 19 West in Walton County, Florida. The footbridge would be 490 feet long and four feet wide with a raised area five feet high in the middle permitting small boat traffic underneath. The bridge would be constructed from treated pilings, timbers and planks and the pilings would be jetted down into the sub-strate or bottom of Little Red Fish Lake.

   
   

2. Mr. Cliff Rohlke was accepted as an expert witness in water quality. He is employed by the Department as an Environmental Specialist with the specific duties of dredge and fill inspector. In this capacity he conducts field appraisals, reviews and makes reports of biological impacts of dredge and fill projects in conjunction with applications filed with the Department for dredge and fill permits. In this regard, Mr. Rohlke went to the site of the project and made an assessment of both the long and short-term impacts of the project on water quality in Little Red Fish Lake. Mr. Rohlke made a biological appraisal of the subject project in evidence in this proceeding as Exhibit 1. It was thus established that the short-term impacts of the project would be limited to minor turbidity and sub-strate disturbance related to the placement of the pilings. Long-term impacts will be insignificant. Based upon his long experience as a dredge and fill inspector and biologist, Mr. Rohlke established that no significant problems or impairment of water quality are associated with the construction of such a pier or footbridge by using treated pilings and timbers.

   
   

3. Mr. Richard Fancher was accepted as an expert witness in water quality. He is the Environmental Supervisor of the Department's northwest district, supervising the Department's permitting and enforcement program in the area of dredge and fill permitting. In his years of experience with the Department, he has reviewed some 3,000 dredge and fill applications. He evaluated Mr. Halfen's application for the proposed footbridge. His review of the proposed project was conducted with a view toward whether it complied with the standards of Chapters

   253 and 403, Florida Statutes and Chapter 17-3 and 17-4, Florida Administrative Code. He established that the water quality standards that the Department is charged with enforcing by these legal provisions would be complied with, with construction of the proposed project, in that the pilings for the pier or footbridge would be jetted into the sub-strate of the lake and turbidity curtains would be used to minimize the short-term deleterious effects of turbidity or sediment disturbance on the lake as a whole by confining such turbidity to the immediate area of the project. The project will not significantly affect fish and wildlife in the water body involved, nor impair water flow so as to be contrary to the public interest. Neither will any significant loss of fish or wildlife or fish or wildlife habitat be occasioned by installation of the subject bridge.

   
   

4. Mr. Fancher was of the opinion that the bridge would impede and interfere with navigation to some extent, but not, in his opinion, so as to be contrary to public interest. Mr. Fancher, however, has not visited the site himself and has no direct knowledge as to how the lake is used in terms of navigation, fishing, water skiing and the like. Mr. Rohlke opined that navigation in terms of "normal boat traffic" would not be interfered with since

   on his brief inspection he saw no boats using the lake, and the bridge would have a single span raised to a five-foot elevation over the lake's surface for the purpose of permitting boats to pass under the bridge. Mr. Rohlke, however, spent only a period of less than an hour visiting the lake site and did not confer with any adjacent landowners to ascertain what uses they made of the lake. He did not measure the lake bottom depth but did acknowledge that it was of sufficient size to be used for both sailing and water skiing. He admitted that a portion of the lake would be cut off by the bridge, consisting of approximately two acres on the western side. The Petitioners, the Bannermans, as well as witnesses Klep and Hughes own property and homes on the western side of the lake and their access to the remainder of the approximately 50-acres of the lake would be partially cut off by the bridge. They would be denied some use and enjoyment of the majority of the lake.

   
   

5. Mr. and Mrs. Bannerman have a home which fronts on the western edge of the lake. Mr. Bannerman has measured the lake and established that it is five to seven feet deep near the water's edge and approximately 12 to 15 feel deep in the center of the lake. He has a dock and a small boat on the lake and uses the boat for fishing and navigation of the lake. Fishermen frequently utilize the lake from a public access point. The lake is large enough to be used for normal recreational pursuits such as water skiing, sailing, and fishing.

   
   

6. Mr. John Klep owns property bordering on the western edge of the lake. Access to the lake was an important consideration in his purchase of the property, and in his continuing use of it. The lake is in excess of six feet deep at his property and physically navigable. He does not wish his access to the entire lake to be restricted.

   
   

7. Mr. Lyle Hughes has legal access to the lake conveyed to him by deed although his own property does not actually border the lake. Sailing has been his lifetime recreational pursuit and he desires to use the lake for sailing for himself and members of his family, especially the children in his family. The small sailboats for which the lake is suited generally have a mast of approximately 14 feet in height. Such a boat could not pass under the bridge if constructed as proposed, since the five-foot raised center span would only barely permit small power boats and their occupants to safely pass under it.

   
   

8. In short, the subject bridge, while it permits small fishing and pleasure boats to pass under with their occupants, would preclude the adjacent landowners in the western end of the lake cut off by the bridge, from sailing beneath the bridge or water skiing on the lake, since their point of access for water skiing and other purposes is at their own property and it would be impossible to water ski in the lake since the bridge would not be navigable for water skiing boats and skiers. The only way sail boats could navigate under the bridge would be to use a motor, oars or paddles until the sailboat negotiates the bridge span, with attendant stepping and unstepping of the mast every time the boat passes under the bridge. This arrangement is totally impractical for those adjacent landowners to do in order to use the lake for sailing. Water skiers could not pass under a five-foot span for obvious reasons of safety.

   
   

9. In short, it has been established that the proposed project comports with Department permitting requirements in terms of water quality impacts and impacts on fish and wildlife and fish and wildlife habitats. The project, however, has not been established to be in the public interest and not contrary to the public interest in terms of its impact on the rights of adjacent landowners to navigate the entire 52-acre lake which they presently have access to for the above-mentioned reasons. Any approval of the permit applied for must

   be in conjunction with a condition that the bridge be so constructed that sailboats can pass through without having to unstep their masts and water ski boats and skiers can pass through it, possibly through use of a movable span.

   
   

10. An additional and more basic problem exists in approving this project as proposed. Department's Rule 17-1.203, Florida Administrative Code requires that a permit applicant execute and submit, with his application, an affidavit of ownership of the property involved in a dredge and fill project. The affidavit and rule requires that a permittee be either the record owner, lessee, record easement holder or an applicant to the record owner of the property for an easement to the property described in the application, and in the affidavit. Mr. Halfen submitted this affidavit with his application certifying that he was the record owner, lessee, or record easement holder of the property upon which the bridge was to be constructed and of the property landward of the construction site, and either had or would have the permission of all other persons with a legal interest in the property prior to undertaking the project. It is the policy of the Department to require the applicant to be the record owner of the submerged land, his lessee or easement holder and to submit the necessary affidavit of ownership or control. The rationale for this policy is so that the Department "will not knowingly issue a permit for dredging and filling or other activities which would constitute a trespass." 1/

    
    

11. The property involved at the project site is subject to an active title dispute being litigated in the Circuit Court. In dispute is the question of whether the title to the lake bottom is held by the Petitioners, the Bannermans or FDIC, Mr. Halfen or the State of Florida. The property was initially conveyed into private ownership by the President of the United States, Woodrow Wilson, in 1918 as shown by stipulated Exhibit 2 in evidence. The federal government thus conveyed the pertinent property, Lots 1 and 2 of Section

    7 in Township 3 South of Range 19 West together with other unrelated land to one Carl Froholm. That conveyance transferred all of the land in Lots 1 and 2 without making reference to Little Red Fish Lake. It does not indicate any reservations of public rights in and to the waters located on that property. It does not indicate any reservation of title to the bottom of the lake to be held by the State or Federal governments. Thus, the legitimate title question now being litigated in the court, is whether the Petitioners, Mr. Halfen or the State of Florida own the lake bottom upon which the bridge will be constructed and not simply whether DNR approval for its use has been obtained. Resolution of that quiet title action is still pending and argument and legal authority has been extensively briefed and provided to the Hearing Officer in the form of the various parties' proposed findings of fact and conclusions of law and memoranda. 2/

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120, .57(1), Florida Statutes.

    
    

13. The authority of the Department of Environmental Regulation to require a permit for the construction of a footbridge of the type proposed is derived from Chapters 253 and 403, Florida Statutes and Chapter 17-4, Florida Administrative Code. In considering whether such a permit should be granted within the ambit of this legal authority a determination must be made concerning the project's compliance with the water quality parameters contained in Chapter 17-3, Florida Administrative Code.

14. Section 17-4.03, Florida Administrative Code provides that:

    
    

    Any stationary installation which will reasonably be expected to be a source of pollution shall not be operated, maintained, constructed, expanded or modified without

    an appropriate and currently valid permit issued by the Department, unless the source is exempted by Department rule.

    
    

15. Section 17-4.07, Florida Administrative Code, provides that:

    
    

    A permit may be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results and other information, that the construction, expansion, modification, operation or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations.

    
    

16. Section 17-4.28(3), Florida Administrative Code, provides that:

    
    

    The applicant for a dredge and/or fill permit or a federal certification for a dredging and/ or filling activity shall affirmatively provide reasonable assurance to the Department that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code.

    
    

    The evidence of record in this proceeding and the above Findings of Fact establishes the necessary "reasonable assurances" that the water quality parameters referenced above will be complied with.

    
    

17. Section 17-4.29(6), Florida Administrative Code, provides that:

    
    

    The Department shall not issue a permit unless a biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the applicant affirmatively show:

    1. that such activity will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruc- tion of oyster beds, clam beds, or marine productivity, including, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, and established marine soils suitable for producing plant growth of a type

       useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interest, and

    2. that the proposed project will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or

       impede the natural flow of navigable waters, so as to be contrary to the public interest.

       
       

18. The evidence establishes that the project does constitute a serious impediment to navigation of Little Red Fish Lake for those landowners, including the petitioners, who own property lying westward of the proposed bridge or who have legal access to the lake westward of the bridge. Thus, to that extent, the project as proposed is not in the public interest for purposes of the above rule and Section 253.123, Florida Statutes. Any grant of the subject permit must be conditioned upon the bridge being altered from its proposed form so as to permit passage through it by water skiers and their boats and sailboats by means of a movable span or other appropriate means.

    
    

19. The evidence of record reveals that the applicant, Mr. Halfen, did indeed properly execute the affidavit in the form envisioned by Rule 17- 1.203(1), Florida Administrative Code. Neither the Department of Environmental Regulation nor this Hearing Officer have jurisdiction to determine land ownership, however. Rather, the Department's province in a proceeding such as this, is to determine whether affirmative, reasonable assurances of the permit applicant's compliance with the various environmental standards cited above have been met, including that standard requiring the filing of the affidavit of ownership or control. The applicant has filed the affidavit properly executed, but in the face of the Petitioner's legitimate raising of that issue, has not established in his proof in this proceeding that indeed he actually has ownership or control of the subject lake bottom. That question is being litigated in a Circuit Court of competent jurisdiction at this time. The Department not having the jurisdiction to determine land ownership, it is obvious, indeed it is proven Department policy, that the Department must avoid authorizing a trespass on private property by allowing construction of the proposed project. The resolution of the quiet title proceeding concerning title and control of the property consisting of the proposed project site lies within the exclusive jurisdiction of the Circuit Court, which must decide "all action involving title and boundaries of real property." Section 26.01(2)(g), Florida Statutes (1983). Accordingly, the grant of the permit must be conditioned upon Mr. Halfen establishing that he indeed has ownership or control of the property upon which he desires to construct a bridge.

    
    

20. In short, the evidence of record and the above Findings of Fact establish that the proposed bridge construction will not result in violation of the State water quality standards or other permitting requirements delineated above with the exception of the standard concerning impediment to navigation, which has not been established to have been met by the applicant in its case-in- chief. Any grant of the proposed permit must be conditioned upon a provision being made in the construction of the proposed bridge to allow water skiers and sailboats to pass safely through the bridge. Additionally, the permit must be conditioned upon the permit applicant establishing that he either has title or other right of control of the subject property so that a grant of the permit will not constitute the authorization of a trespass on land owned or controlled by others. Brown and Rynerson v. Winter Haven Ski Club and State Department of Environmental Regulation, supra. Aside from these considerations, all

provisions of Chapter 17-3, 17-4, Florida Administrative Code and Chapters 253 and 403, Florida Statutes have been met.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED:

That the application by David Halfen for a dredge and fill permit, as described above, be granted, provided the plans and construction of the proposed bridge are sufficiently altered so as to permit water skiers and sailboats to safely and simply navigate and pass under or through the area of the proposed bridge and provided that Mr. Halfen, at the conclusion of the pending quiet title action, can establish that he has ownership or other right of control of the property on which the project will be built.

DONE and ENTERED this 14th day of February, 1985, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

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 14th day of February, 1985.

ENDNOTES

1/ See Brown and Rynerson v. Winter Haven Ski Club and State Department of Environmental Regulation, DOAH Case No. 82-988, 5 FALR 677-A; Harrison v.

Crowley and State Department of Environmental Regulation, DOAH Case No. 79-2307.

2/ Neither the Hearing Officer nor the Department can determine the outcome of that title question, nor can the Hearing Officer recommend or the Department authorize the granting of a permit and the construction of such a project which will constitute a trespass on property not owned or otherwise controlled by the permit applicant. Any grant of the subject permit must be contingent and conditioned upon the permit applicant herein establishing the right of ownership or control of the lake bottom upon which the proposed bridge will be constructed, including the obtaining of a DNR permit pursuant to Section 253.77, Florida Statutes, should it ultimately be determined that the State of Florida has title to the subject lake bottom.

Docket for Case No: 83-001249

Orders for Case No: 83-001249