STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SILAS RAY CREES and TOM HALL, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1450

) FIRST BREVARD SERVICE CORPORATION ) and DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on September 21, 1903, in Melbourne, Florida, before the Division of Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter. Tie parties were represented by:

APPEARANCES

For Petitioner: Mr. Tom Hall 1134 Sarno Road

Melbourne, Florida 32935

No appearance for Silas Ray Crees For Respondent: Jackson Vaughn, Esquire

First Brevard Post Office Box 370

Services Corporation Melbourne, Florida 32901

Department of Dennis R. Erdley, Esquire Environmental Twin Towers Office Building Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

This matter arose on Petitioners' challenge to Respondent Department of Environmental Regulation's (PER) notice of intent to grant a dredge and fill permit to Respondent First Brevard Service Corporation. DER submitted proposed findings of fact which are accepted and have been subsatntially incorporated herein. Petitioner Tom Hall submitted various documents in lieu of proposed findings which were treated as ex parte communications governed by Section 120.66, Florida Statutes (F.S.) These documents do not contain proposed findings of fact based on the evidence presented at hearing or requests for official recognition, and are therefore rejected. See Subsection 120.57(1)(b)7, F.E.

FINDINGS OF FACT

1. The applicant proposes to construct a concrete boat ramp on the south bank of the Eau Gallie River in Brevard County. The Eau Gallie River is a

   tributary of the Indian River and is a Class III water body as defined in Chapter 17-3, Florida Administrative Code (F.A.C.). 1/ The ramp would be 17 feet wide and 64 feet long. Approximately half the length would extend into waters of the Eau Gallie River over which DER has. Jurisdiction under Chapters

   403 and 253, F.S. The construction would involve the removal of 47 cubic yards of soft bottom material waterward of ordinary high water and the filling of 35 cubic yards of compacted material also waterward of ordinary high water. In addition, 38 cubic yards would be excavated landward and 72 cubic yards would be filled landward of ordinary high water.

   
   

2. The boat ramp is to be a private facility not once to the general public. The applicant sought this permit in conjunction with the upland development of its river front property. The applicant's property extends for approximately one-half mile along the north bank of the Eau Gallie River. At build out, the applicant estimates that the property will contain several hundred apartment units which may eventually be converted to condominiums. The lessees or condominium owners would have access to the proposed boat ramp.

   
   

3. Petitioner, Tom Hall, is an adjacent property owner who is concerned that increased boat traffic on the Eau Gallie River in the vicinity of the boat ramp would adversely impact manatee and other wildlife and marine resources. At various times of the year, manatees can be observed in the Eau Gallie River in the vicinity of the proposed boat ramp. The river also contains a variety of fish and supports a local population of water fowl.

   
   

4. The river in the vicinity of the proposed boat ramp is generally not more than one to two feet in depth. The boat ramp is designed to launch only small craft such as canoes, rowboat or jonboats with small trolling motors. The application does not request the issuance of a permit to dredge a navigational channel to enable the beat ramp to accommodate larger power craft.

   
   

5. The testimony of DER's expert witness established that the small craft which could be launched from the boat ramp would not pose a threat to the manatees that frequent the area. Rather, it is the larger power boats that endanger this marine mammal. There are no other wildlife or marine resources which would be impacted significantly by the construction of the boat ramp. Additionally, it should be noted that this project would benefit the several hundred residents of Brevard County who would eventually have access to the boat ramp.

   
   

6. The testimony of DER's expert witness established that there would be no long-term violations of DER water quality standards as a result of the construction and use of the boat ramp. Short-term impact during construction would be minimal since turbidity screens are to be employed. Thus, the applicant has provided reasonable assurance that the short-term and long-term effects of the construction and use of the boat ramp will not result in violation of DER's water standards.

   
   

7. It is important to note that, as long as no dredging of filling is involved, there is no legal impediment preventing riparian landowners from launching boats from their river front property or engaging in recreational boating activities in the portion of the boat ramp could cause continuous turbidity problems and damage valuable habitat along the river front. By confining the alteration of the littoral zone to such a small area as that involved in the application and thus guaranteeing adequate, comfortable access for the riparian owner, the survivability of the remaining littoral in its natural state would be significantly enhanced.

8. Petitioner Hall theorizes that boats who would otherwise use downstream public boat ramps will instead launch at the site of the proposed ramp.

   However, there was no evidence submitted to support this theory. Given the ease with which small boats could be launched without any ramp at this site, it does not appear that the ramp itself would generate additional activity involving canoes and other small craft. Since the launching of power boats is not feasible because of the shallow river depth, such traffic is not likely to be affected by construction of the proposed ramp.

   
   

   CONCLUSIONS OF LAW

   
   

9. Subsection 403.087(1), F.S., provides as follows:

   
   

   No stationary installation which will reasonably be expected to be a source

   of air or water pollutants shall be oper- ated, maintained, constructed, expanded, or modified without an appropriate and - currently valid permit issued by the

   department, unless. exempted by department rule.

   
   

10. Subsection 403.008(1), F.S., provides as follows:

    
    

    No person, without written authorization of the department, shall discharge into waters within the state any waste which,

    by itself or in combination with the wastes of other sources, reduces the quality of

    the receiving waters below the classification established for them.

    
    

11. Dredging and filling activities fall within the purview of the above provisions. Under Rule 17-4.28(2)(a), F.A.C., a permit is required for dredging or filling activities which are conducted in rivers such as the Eau Gallie River. Rule 17-4.20(3), F.A.C., provides:

    
    

    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 173,2 Florida Administrative Code. .

    
    

12. The applicant has properly applied for the required permit and provided reasonable assurance that it will not degrade water quality and, therefore, will not violate Class III water quality standards. The evidence presented by DER supports grant of the permit and was not rebutted by Petitioners.

    
    

13. Pursuant to Subsection 253.123(3)(d), F.S., and Rule 17-4.29(6)(n), F.A.C., the applicant must establish that the proposed activities 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. The

evidence presented by the applicant and DER established that the proposed activities would not offend this provision.

RECOMMENDATION:

Based on the foregoing, it is RECOMMENDED:

That the Department of Environmental Regulation enter a Final Order issuing a dredge and fill permit to First Brevard Service Corporation.

DONE and ENTERED this 31st day of October, 1983, in Tallahassee, Florida.

R. T. CARPENTER, 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 31st day of October, 1983.

ENDNOTES

1/ Rule 17-3.021(1), F.A.C., describes water bodies by use. A Class III water body is used for "Recreation, Propagation and Management of Fish and Wildlife - Surface Waters." Rule 17-3.161, F.A.C., provides the classification applicable here.

2/ Rules 17-3.051, 3.061 and 3.121, F.A.C. , set forth allowable pollution levels applicable to Class III waters. No measurements made here since grant of the permit is not expected to increase existing levels of pollutants.

COPIES FURNISHED:

Mr. Tom Hall 1134 Sarno Road

Melbourne, Florida 32935

Silas Ray Crees

Post Office Box EG-813 Melbourne, Florida 32935

W. Jackson Vaughn, Esquire Post Office Box 370 Melbourne, Florida 32901

Dennis R. Erdley, Esquire Department of Environmental Regulation

Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental Regulation

Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee Florida 32301

Docket for Case No: 83-001450

Orders for Case No: 83-001450