JOHN C. GROSS, )
vs. ) CASE NO. 83-2153
Respondents. )
Consistent with the notice of the Hearing Officer dated December 16, 1983, a hearing was held in this case before ARNOLD H. POLLOCK, a Hearing Officer with the Division of Administrative Hearings in DeLand, Florida, on March 2, 1984.
The hearing was to consider Petitioner's and Intervenor's challenge to the Respondent DEPARTMENT of ENVIRONMENTAL REGULATION'S Notice of Intent to Issue a Permit to the Respondent UNITED STATES ARMY CORPS OF ENGINEERS to dredge the Ponce de Leon Inlet channel and deposit the spoil of the coast adjacent to Intervenor's property.
For Petitioner: Sid C. Peterson, Jr., Esquire
For Intervenor: George A. Speer, Jr., Esquire
Speer and Speer, P.A.
For Respondent Dennis R. Erdley, Esquire
Department of Department of Environmental Regulation Environmental 2600 Blair Stone Road
For Respondent Harrison D. Ford, Esquire United States Stephen C. Calvarese, Esquire Army Corps of Department of the Army Engineers: Jacksonville District, COE
Respondent United States Army Corps of Engineers (COE), on November 10, 1902, applied to Respondent Department of Environmental Regulation (DER) for a permit to maintenance dredge the entrance channel to Ponce de Leon Inlet, New Smyrna Beach, Florida. This application was received by DER on November 15, 1982; and, on December 14, 1982, DER acknowledged its receipt, but noted several omissions. On February 10, 1983, and again on March 28, 1983, the COE furnished the requested additional information; and, on May 25, 1983, requested the application be modified as to the projected disposal area for the spoil.
Thereafter, on June 21, 1983, the DER notified COE of its intent to issue the permit, also signed on June 21, and forwarded a proposed public notice for DE to have published. A copy of this letter and the notice were furnished to Petitioner and the Florida Department of Natural Resources (DNR), among others.
On June 27, 1983, Petitioner, John C. Gross, in a letter to DER, objected to the proposed issuance of the permit and requested a formal hearing. He was subsequently joined in his objection by Intervenor, Frances Turner Price, who interposed her objection in a letter to DER dated September 7, 1983.
In the interim, on September 1, 1983, COE filed a Motion to Dismiss (denied) and a Motion for More Definite Statement, which was granted by the then Hearing Officer, P. Michael Ruff, on September 21, 1883, in an Order in which he granted Mr. Gross leave to file an amended petition. This was filed by Petitioner on November 10, 1883, and the cases was at issue.
At the hearing, Petitioner testified in his own behalf and introduced Petitioner's Exhibits 1 and 2. Intervenor testified in her own behalf, as did Mrs. Rose Speer, and introduced Intervenor's Exhibits 1 through 7. Respondent COE produced the testimony of Mr. James D. Hilton, Chief, Program Operations Branch for the Jacksonville office of COE; Dr. Robert G. Dean, Professor of Coastal and Oceanographic Engineering at the University of Florida; Mr. Clyde Aston, Chief, Navigation Section, Jacksonville COE; and Dr. Gerald Atmar, an environmental biologist with the Environmental Resources Section of the COE; and introduced Exhibits G1 through G13. Respondent DER presented the testimony of Dr. Marvin Collins, III, an environmental specialist with DER, and introduced DER Exhibits 1 through 7.
Petitioner, JOHN C. GROSS, a citizen and resident of Edgewater, Florida, owns approximately 114 acres of submerged and semisubmerged land, which at times extends from 3 to 9 feet above the water and which lies in the near vicinity of Ponce de Leon Inlet, New Smyrna Beach. His property is located due southwest of the inlet and west of the Intracoastal Waterway.
The Intervenor, FRANCES TURNER PRICE, is the owner of an oceanfront house and lot located at 2113 Ocean Drive, New Smyrna Beach, Florida, which is
directly adjacent to and west of a portion of the proposed spoil disposal area referenced herein.
The Ponce de Leon Inlet was first dredged by the COE in 1968, pursuant to a 1965 Act of Congress, and has been dredged periodically since that time. No dredging has taken place there since March, 1978.
During the past several years, numerous complaints have been received by the COE from users of the waterway concerning the increased clogging of the inlet channel. These users include operators of relatively large boats, such as commercial fishermen and shrimpers, large yacht owners, and the United States Coast Guard, which maintains and operates a station in the area. Based on these complaints, Mr. Aston, COE Navigation Branch, caused an investigation to be made which revealed an extensive and worsening shoaling which, if not corrected, would further reduce the channel opening. This investigation included several hydrographic surveys using Fathometers (accomplished in November, 1952, and subsequently thereto).
The channel, which runs basically east and west from the Intracoastal Waterway to the Atlantic Ocean, is currently navigable (but not safely) by larger draft vessels such as are described above. Because of the prevailing winds from the northeast, larger vessels come in from the northeast; have to come around the jetty, which juts into the ocean north of the channel; and then have to stay close to the jetty to avoid the heavy shoaling in the dredged channel originally in the center of the inlet. 1/ This is dangerous because sport fishermen are frequently anchored in the water just south of the jetty, in the way of the boats going in and out. This danger is compounded by the fact that boats going in and out cannot see each other, because of the jetty to the north and the land to the south, until they both are committed to the channel. Therefore, once in and committed, they are in danger of collision because of the narrowness of the passage and the need to avoid the small fishing boats anchored therein. As a result, the original channel, which provides safer passage, needs to be dredged again immediately to prevent more groundings and collisions with resultant loss of life and property damage such as the 50 which have already occurred there within the past 15 months. In the opinion of Mr. Aston, the situation in the Ponce de Leon Inlet, as it pertains to shoaling, is the worst he has seen in any federal channel in 19 years.
It is for these reasons that during the 1982-83 time frame, the COE decided to seek permission to proceed with a dredging project. Initially, three different areas were considered for disposal of the 800,000 or so cubic yards of spoil which would result from the dredging. These were:
off the beach north of the north jetty;
just south of the weir to which the north jetty is attached; and
the beach area approximately one mile south of the inlet.
For various reasons, Options (a) and (b) were rejected, and Option (c) was the area then intended for the spoil disposal. The initial application, submitted on November 10, 1982, called for the spoil to be transported by pipe over easements down the beach to the disposal area, where it would then be dumped on the beach to fill in the area of beach eroded and eroding. However, because of public objection to that plan, the COE agreed with the local beach advisory board to move the spoil 1,000 feet offshore to an area approximately 800 feet by one mile long, adjacent to the beach approximately one mile south of the inlet.
In any event, both the original application and the amendment thereto (to change the location of the spoil disposal area) called for only one procedure--not multiple dredgings and disposals. This proposed permit, which is objected to by Petitioner and Intervenor, indicated permission for more than one procedure.
Intervenor protests this even if permission is to be given for the initial dredging. However, Dr. Collins, from DER, indicated that since a determination was made that the action would have no adverse impact on the environment, there was nothing wrong with giving permission for multiple dumpings. In fact, the Notice of Intent to Issue contains Provisions for monitoring the turbidity caused by the operation and also provides for DER modifications to the conditions or other provisions of the permit as necessary, and recognizes COE's assurances that the immediate and long-term effects of the project will not violate state water quality standards.
The spoil, which consists almost exclusively of beach quality sand and which is highly valuable, will be laid down in a berm-shaped deposit the top of which will, at low tide, be no less than 6 feet below the surface of the water. In that configuration, it could not be seen from shore and would in no way impede navigation. The decision to dispose of the spoil in this fashion was made partially on the basis that it would tend to put sand back on the eroded beach in the area. Intervenor theorizes that the spoil (sand and water) will not form this neat berm, but will spread out when it comes out of the dredge pipe below the surface of the water. COE indicates that the contractor on this project will use some sort of a buffer to contain the spread upon discharge.
It is anticipated that this project will have to be repeated again and again to keen the channel clear. Though the 800,000 cubic yards anticipated for removal on this occasion is great, so much has never been taken out here at one time before. This is because, as was stated previously, the last dredging was in March 1978, and COE estimated that dredging should take place every 16 months or so. If done on that schedule, succeeding dredgings will be of a far less significant amount.
Petitioner, whose profession is as a real estate developer, but whose avocation is as a conservationist of marine life, contends he has been involved in environmental research and protection all his life (he is at least 70). He has, he states, developed several environmental concepts which have, he contends, never been disproved. They are not, however, enjoying widespread acceptance, either, though he contends the Rosenstiel School at the University of Miami has said his environmental concepts are sound. This well may be so; however, Mr. Gross neglected to produce any evidence as to what these concepts are or indications of their soundness. Though he admits to having no formal training in any of the sciences or in engineering, and his research consists of bathing and fishing in the area (he uses a device to gather bait which results in his picking up a part of the sea bottom) he has published. The Petitioner's publication introduced into evidence consists of the reward notice reproduced herein.
$2,000 REWARD
To make the public aware of hypocritical groups who mislead and misinform the public about environmental protection, I will donate
$1,000 to the first organization, agency, student or individual who produces evidence to prove beyond reasonable doubt that
excessive nutrients consisting of mangrove leaves and pods, algae, slime, scum, silt and bacteria, and decaying bodies of all types of insects and creatures emanating from mangrove swamp area DOES NOT cause destruction of shellfish and all forms of marine plant life when infused in excessive amounts into rivers and estuaries by extremely high tides and heavy rainstorms.
$1,000 to the first organization, individual, or student who provides evidence to prove beyond reasonable doubt that recent high tides caused by full moon and heavy rains washing through mangrove swamps DID NOT cause most of the crabs, shrimp, and fish to be destroyed or leave this area when the river became polluted with all types of slime, scum, silt, sludge, and mangreve debris, and droppings of birds and animals and all types of decaying material from the mangrove swamps carried into the river by the tide.
John C. Gross PO Box 596
New Smyrna Beach, Fl 32069
Though Petitioner was offered the opportunity by the Hearing Officer to submit additional publications when he indicated he had many and was reminded of this later in the hearing by the Hearing Officer, none were forthcoming.
Petitioner professes to be very familiar with the area where the dredging and disposal are to take place, and no doubt he is. He contends the area is in a constant state of change, differing from month to month, and populated by a sea life consisting primarily of shellfish, shrimp, and fish. The beach in the area proposed for disposal, he contends, has already built out some 400 to 500 feet since the jetty was built and has naturally built up dunes which, in his opinion, are due to the COE dredging in the past. This beach buildup is a concern of the Intervenor, as well, who indicated that she can no longer see the ocean from her "oceanfront" house due to the large dunes that have built up between her house and the ocean during the years since the construction of the jetty. She is also fearful that the spoil dumped offshore of her property will come ashore there and add to the already expanded beach. Her concerns and those of her neighbors, including Mrs. Speer, who testified in support of Intervenor's position, include the blocked view already mentioned,
the fact that the higher dunes are difficult for older people to climb, the fact that it is further to the water with the new sand, and the concern over who will own the new land built up seaward of the vegetation line. 2/ People are already building closer to the water than she did, blocking her lateral view; and all of this will have, she fears, a negative impact on the value of her property.
It is without question that dunes have built up and beach area has accreted since the jetties were put in. This is explained by Dr. Dean as a relatively temporary situation resulting from the movement ashore of a preexisting tidal shoal, formerly located outside the entrance to the Ponce de Leon Inlet, which was destroyed by the interruption of the wave action when the
jetty was built. The sand from this shoal came ashore at and around the Intervenor's property, as well as north and south of it, adding to the beach and building the dunes. This accretion has stopped, however, and even reversed, and a beach erosion has begun. In any case, according to Dr. Collins of DER, accretion is not usually a consideration in the decision-making process regarding a permit of this nature.
Petitioner indicated his understanding that the spoil was to be deposited 3 feet deep over the bottom in the disposal area and believes this will destroy marine life. As will be seen later, competent expert testimony clearly disproves this one theory. He also does not believe anyone can predict where the spoil will settle, but wherever that is, in his opinion, it will have a devastating effect both on the marine life in the area and on the adjacent beaches. He questions the COE's representation that because of the literal drift's prevailing direction from north to south, the spoil will ultimately settle south of the spoil dumping area. Expert testimony, discussed in detail below, will indicate the correctness of the COE's representations.
Petitioner further contends that insufficient surveys have been made of the area. In his opinion, the two or three borings that have been done (in actuality, there were more) are not sufficiently extensive since the area in question is too broad and the bottom is not uniform. Therefore, many more borings are needed, he urges, to accurately determine the makeup of the sea bottom. This bottom makeup has an effect on water quality. Sludge, slime, and silt adversely affect water quality. Clean sand is acceptable. However, Petitioner feels that the dredging proposed may, if the bottom where they dredge is of peer quality, be very bad for the bottom in the deposit area.
In that regard, it has been shown that the tests done already indicate that the material to be dredged out of the channel is beach quality sand. Other evidence, in the form of samples of the bottom taken in the disposal area, show it is made up of sand with small shells. In neither location is there any evidence of silt, sludge, or slime. In fact, the expert testimony indicates clearly there would be no damage to water quality in either area. A more comprehensive discussion of this subject will be presented below.
Petitioner also fears for the manatees and the sea turtles which sometimes come into the area. The expert testimony to be discussed further below readily shows these fears are groundless.
It would appear that there may be some reason for Petitioner's interest in this project other than the stated environmental and ecological concerns stated above. By his own testimony, he revealed he had offered to buy this highly valuable 3/ spoil for $400,000. Mr. Aston, of COE, further testified that as late as one week prior to this hearing, Petitioner called him and indicated the matter could be disposed of quite easily if the COE would put the spoil on his property.
The Notice of Intent to Issue and the permit to which it relates are not for a one-time dredge. The permit will be for 5 years, but it 15 subject to extension by letter for an additional 5 years. In the analysis of the application, the environmental concerns and the concerns of the public were not taken lightly. The DNR, by letters dated March 9 and June 28, 1983, expressed its lack of objection to the proposal and granted the authority required under Section 253.77, Florida Statutes. The contract is to begin in September, 1984, and be completed by April, 1985. These months were chosen because (a) they take advantage of the northeast winds prevailing then; and (b) there is no sea turtle
nesting during this period. Consequently, there would be no risk of harm to the sea turtles. In addition, the risk of harm to the manatees is minimal. They, as a rule, do not frequent these waters, preferring the quiet backwaters of the rivers and bays to the fast moving waters of the channel or the ocean, and they are generally fast enough to avoid both the dredge and the dump. To be doubly safe, however, the contract calls for a "manatee watch" to be conducted and a log kept of all manatees sighted.
Another area covered in the contract is water turbidity. Turbidity will be monitored and actions taken to maintain state water quality standards outside the mixing zone--that area inside of which the water temporarily does not meet state standards and outside of which it must. In this case, this zone would extend not more than 150 meters from each point of interest. COE's application contained reasonable assurances that the state's turbidity standards would not be exceeded more than 150 meters from both the dredge and spoil areas. Tests already run on anticipated turbidity show a rapid (4-minute) settlement out due to the fact that the substance being dredged is heavy sand, not light silt.
Continuing with an analysis of the impacts of the project which cannot be avoided, on life in both the dredge and the fill areas, it is seen that:
Some nonmobile animal life attached to the sea bottom (worms, etc.) in the spoil area which cannot escape being covered by the spoil will be killed.
Some sea life sucked up by the dredge and moved will be killed even though they are dumped back into the water in the spill area.
However, wherever some death occurs, it will be individuals, not entire populations, and the dump area will be quickly repopulated by sea life from the surrounding area in addition to the live population brought through the pipeline. Full repopulation can be expected within six months.
In a more detailed discussion of the disposal site, it is clear that because of the wave action and the hard bottom, one would expect no grass beds, and there are none, nor are there any natural reefs. A survey of the bottom in the disposal area was done by utilizing loran to accurately locate 12 stations throughout the spoil disposal area with three samples to be taken at each site. At seven of the twelve stations, the scientists found the bottom hard and no sample was produced. At only one of the stations, Station 6, some samples were gathered, and what was acquired was very similar to the surf area near the shore.
Dr. Atmar admits that the dumping will create some damage to the bottom life and repeated dumping may have a cumulative effect. However, since, as was stated above, complete repopulation can be expected within six months, the damage caused by dredging and dumping every 16 months, even of large amounts of spoil, will be, in his words, "inconceivably insignificant," and that which does occur will be short-lived.
Turning then to the question of the impact of the spoil disposal on the beach property adjacent to the disposal area, Dr. Dean explained the prospective results, as well. In conjunction with other experts in sediment transport and based on at least 20 years of accumulated documentation, he
developed a model which, when applied to a given situation with variables, can generally permit accurate predictions of what will happen. Applying this model to the dredging area, it is seen that the primary factor which leads to sediment transport here is the wave action which primarily comes from the northeast.
This will transport sediment from the north to the south. When the present channel was dug, it interrupted the normal cycle, which, in an attempt to return to the natural flow, fills up the channel. This necessitates new dredging.
Applying the model to the disposal area, again the waves play an important part. Based on all available pertinent information, the spoil deposited would generally transport to the south with a very minor amount, + 5 percent going west and another + 5 percent going north. Both the westward and the northward movement would be very slow. The remaining 90 percent of the spoil would move to the south and would reach the shore a mile or two south of the southern boundary of the proposed disposal area. Of this 90 percent, 50 percent would reach the beach within three to four years--the remainder would take longer. The amount of deposited spoil that would go due west to the adjacent beach would be less than would accrete during the normal seasonal accretien. What is more, the proposed disposal activity would have an imperceptible effect on the elevation of the dunes which already exist. The difference between Dr. Dean's estimate of 10 Percent drift to the north and west and COE's estimate of 20 percent sand drift in those two directions is not significant. Both are estimates, and not specifics.
As was stated previously, the spoil in question here is a highly valuable beach quality sand with no evidence of muck, slime or silt. If it were to be deposited further out to sea than is proposed here, where the wave action could not get to it, it would be lost to the littoral transport action and would never come to the beach. This would result in the loss of a high quality resource to the beach in an area to the south where the beach is in need of replenishment, and further beach erosion to the south where the existing dunes are eroding due to the effect of the building of the previously mentioned jetty and because of the worldwide rise in the sea level. Admitting he was hired to testify by the COE after the decision was made as to where to deposit the spoil, Dr. Dean contends that had he been asked where to put it before the decision was made, he would have recommended a site closer to shore, but at the same latitude.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding.
Petitioner contends this project will cause pollution in the Atlantic Ocean which will adversely affect aquatic life and property rights of the beachfront owners as a result of the artificial buildup of sand dunes, in violation of Sections 253.123 and 253.124, Florida Statutes (1983).
Section 283.123(3)(d) permits the dredging of sand from the navigable waters of the state and the submerged bottom thereof:
(d) For other purposes when, but only when, the department has determined, after consideration of a biological survey and an ecological survey and
a hydrographic survey, if such hydrographic survey is required by the department, made
by or under the supervision of the department of the area from which such sand, rock, or earth is proposed to be removed, that such surveys and studies show that such removal will not interfere with the conservation of fish, marine and other wildlife, or other natural resources, to such an extent as to be contrary to the public interest, and will not result in the destruction 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 interests.
The competent evidence presented by the Respondents shows that the proper permission was received from DNR, that a definite need exists for the project both from the standpoint of the dredging of the channel and the deposit of the spoil to curb beach erosion, and that the project will have no lasting adverse effect on the environment or aquatic and marine life in either site to such an extent as to be contrary to the public interests. This substantial evidence has not been offset by the Petitioner's evidence or that of the Intervenor, all of which, from both, consists primarily of unscientific opinions, observations, and preferences. Section 253.124, Florida Statutes (1983), deals with the filling of land with spoil taken from the water and is not applicable here.
Petitioner also urges, in a multiple section citation of various subsections of chapter 403, Florida Statutes (1983), that he is entitled to block the issuance of the permit because, if the project is permitted, the ocean water and the surrounding area will be polluted and "irrefutably" injured, the aquatic life of the area will suffer, and Petitioner's enjoyment of bathing and fishing in the area will be materially injured and damaged.
Section 403.061, Florida Statutes (1983), gives the DER the power and the duty to control and prohibit pollution of the air and waters of the State of Florida, which include the coastline water, bays, inlets, and the like, pursuant to the provisions of Rule 17-4.28(2), Florida Administrative Code. Section 403.031, Florida Statutes (1983), defines pollution as:
[T]he presence in the outdoor atmosphere or waters of the state of any substances, contaminants, noise, man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of air or water in quantities or at levels which are or may be potentially dangerous to human health or welfare, animal or plant life, or property, or unreasonably interfere with the enjoyment of life or property, including outdoor recreation.
Sections 403.087 and 403.088, Florida Statutes (1983), provide a requirement for a permit when pollution will occur; and Section 403.161, Florida Statutes (1983), provides the penalty for unlawful pollution. Again, Petitioner's presentation and that of Intervenor, while undoubtedly motivated by the purest and most sincere of motives, consist primarily of the unsupported, undocumented, and unproven assertions that the proposed activity will cause irreparable harm to the aquatic wildlife and will adversely affect the property rights of at least the Intervenor. To counter this, Respondents presented impressive scientific testimony from recognized experts in the field to establish that (1) the activity was needed both as to dredging and beach replenishment; (2) the effect on the marine life in both areas would be "inconceivably insignificant" and of short duration; and (3) the accretien to the beach near Intervenor's property would be less than that caused by normal wave action without spoil disposal.
In substance, then, Petitioner and Intervener have failed to present credible evidence that this project will produce the proscribed pollution or injury. Instead, Respondents have shown the project will not do so, but is needed and in the public interest.
Intervenor contends that since the application is for only a one-time dredging operation, it would be improper for the permit to provide for multiple dredgings. Intervenor provides no authority for that position; and it seems most reasonable to conclude that, considering the assurances given and the provision for modification of the permit by DER, if necessary, strict limitations requiring repeated hearing procedures would be unnecessarily burdensome, non-cost effective, counterproductive and, therefore, net required.
Intervener and Respondents have filed proposed recommended orders which include 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.
RECOMMENDED THAT Respondent State of Florida, Department of Environmental Regulation, issue a permit, as requested, to Respondent United States Army Corps of Engineers to dredge Ponce de Leon Inlet channel and to dispose of the spoil in the Atlantic Ocean as proposed.
RECOMMENDED this 20th day of April, 1984, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1984.
1/ The latest bathometric survey conducted in December, 1983, shows the 12-foot depth of the channel has moved north as much as 100 feet from where originally dredged.
2/ Her property runs down to the vegetation line at the seaside.
3/ Dr. Dean estimated that this "beach quality sand" would cost 56 per cubic yard to "put on the beach." Since approximately 800,000 cubic yards are to be removed, it could be valued at nearly $5,000,000.
Sid C. Peterson, Jr., Esquire
George A. Speer, Jr., Esquire Speer and Speer, P.A.
Dennis R. Erdley, Esquire Department of Environmental
Harrison D. Ford, Esquire Stephen C. Calvarese, Esquire Department of the Army Jacksonville District, COE Post Office Box 4970 Jacksonville, Florida 32232
Ms. Victoria Tschinkel Secretary
