STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACK E. MOORE, )

)

Petitioner, )

)

vs. ) CASE NO. 84-1067

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, P. Michael Ruff, held a public hearing in this cause on August 8, 1984, in Fort Myers, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: William Gemmill, Esquire

1274 Cape Coral Parkway Cape Coral, Florida 33910

For Respondent: Paul R. Ezatoff, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

This dispute involves one of two separate controversies presently pending before the Division of Administrative Hearings in DOAH Case Nos. 83-1487 and 84- 1067, involving these parties.

In this proceeding, Petitioner Jack E. Moore has requested a formal administrative hearing pursuant to the provisions of Section 120.57(1), Florida Statutes, to contest DER's notice of intent to deny Moore's application for a permit to excavate a basin, build a fishing dock., and perform filling on property located in Fort Myers Beach, Florida. Moore contends that he has provided reasonable assurance that the proposed work will not cause violations of DER standards and rules and that all necessary information has been submitted.

At the final hearing, Moore appeared as a witness on his own behalf. Moore offered Exhibits A and 1 through 6, which were received into evidence. DER called as its witnesses Richard Cantrell and Rae Ann Boylan. DER offered Exhibits 1 through 24, which were received into evidence. Each of the parties has submitted proposed findings of fact for consideration by the Hearing Officer.

All proposed findings of fact, conclusions of law, and supporting arguments have teen considered.

To the extent that they are in accordance with the findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they are rejected. Certain proposed findings and conclusions are omitted as not relevant nor as necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. See, Sonny's Italian Restaurant v.

Department of Business Regulation, 414 So.2d, 1156, 1157 (Fla. 3rd DCA 1982); Sierra Club v. Orlando Utilities Commission, 436 So.2d 383 (Fla. 5th DCA 1983).

FINDINGS OF FACT

1. Petitioner, Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay.

   
   

2. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built.

   
   

3. On April 19, 1983, Petitioner applied to DER for a permit to dredge approximately 1480 cubic yards to a depth of 4' mean low water to create a boat basin behind his house on the property referenced above, and to construct a walkway and fishing dock encompassing approximately 1,235 square feet. The proposed project lies and would be performed in waters of the State of Florida.

   
   

4. On April 25, 1983, DER notified Petitioner that his application was incomplete and that certain specified information was necessary to evaluate the application and to deem it complete. On May 24, 1983, DER received additional information from Petitioner, in response to its request. However, certain information was still lacking, including aerial photographs, a hydrographic survey, and consent from the Department of Natural Resources (DNR) for the use of state-owned lands which may be involved in the project.

   
   

5. On June 1, 1983, DER notified Petitioner that all of the requested information had not been submitted. Petitioner did not respond to DER's correspondence. On July 19, 1983, DER requested Petitioner to notify DER if he wanted to proceed with his application. Petitioner responded on August 1, 1983, that he needed additional time to supply requested information.

   
   

6. On September 20, 1983, Petitioner sought advice from DER about whether he could delete the dredging portion of his project and get approval only for the proposed walkway and dock. DER responded by letter on September 28, 1983, notifying Petitioner that the proposal was a major modification of his application, and enclosing a form to be submitted to DER along with such modification. The letter notified Petitioner that even if only the dock was sought to be permitted, DNR approval would still be required, and DER has no control over the DNR approval process.

   
   

7. Petitioner did not contact DER in response to its latest correspondences. On November 28, 1983, DER then issued a notice of intent to deny the application for Petitioner's failure to provide necessary information which would render the application complete and fully reviewable by the DER staff.

8. Petitioner has still not provided aerial photographs, a hydrographic survey, or DNR approval to DER, and offered no such evidence at hearing. The aerial photographs are necessary to review the project's potential impacts on surrounding properties and water bodies. The hydrographic survey is essential since Petitioner is proposing to entrain a large body of water which may not be able to meet State water quality standards. DNR approval is required by statute before DER can issue a permit that may involve state-owned lands.

   
   

9. The Petitioner's testimony and evidence merely established his belief that he originally thought the dock and channel project exempt, that he thought settlement of federal litigation with the U.S. Army Corps of Engineers and his predecessor in title, permitted the installation of his rip-rap seawall and fill and that, at DER's behest, he later dismantled the dock and partially refilled the hand-dug channel leading to it. Nowhere in Petitioner's case was evidence offered of reasonable assurances that the "pollution events, envisioned by the authority cited below, will not occur, nor that DNR approval of the use of State submerged lands for the project has been secured.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

    
    

11. Section 403.087(1), Florida Statutes, provides, in part, that:

    
    

    1. No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and cur- rently valid permit issued by the department, unless exempted by department rule. . . .

       
       

12. Florida Administrative Code Rule 17-4.03 provides:

    
    

    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. The Department may issue such permit only after it is assured that the installation will not cause pollution in violation of

    any of the provisions of Chapter 403, F.S., or the rules and regulations promulgated thereunder.

    
    

13. Florida Administrative Code Rule 17-4.28(2) provides:

    
    

    Those dredging or filling activities which are to be conducted in, or connected directly or via an excavated water body or

    series of excavated water bodies to the following categories of waters of the State (including the submerged lands of such waters and transitional zone of a submerged land) shall obtain a permit from the Department prior to being undertaken:

    * * *

    (c) bays, bayous, sounds, estuaries, and natural tributaries thereto. . . .

    
    

14. Estero Bay and Indian Bayou are waters of the State within the meaning of Section 403.031(3), Florida Statutes.

15. Florida Administrative Code Rule 17-103.130 states in pertinent part: (1)(a) In licensing (permit) proceedings,

    including variance, exception, exemption, site specific alternative criteria, or other similar proceedings, the applicant shall have the burden of establishing, by a preponderance of the evidence, entitle- ment to the requested license, variance, exception, exemption, site specific alternative criteria, or other relief.

    
    

16. Florida Administrative Code Rule 17-4.28(3) states in pertinent part:

    
    

    (3) 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 Department shall, upon denying any application, furnish the applicant an official statement specifying with particularity the reasons for denial, including a precise statement of those violations of water quality criteria, standards, requirements and provisions,

    it expects to be caused by such activity and the manner in which such effects are expected to be caused.

    * * *

    1. Additionally, the following requirements shall apply and, where in conflict, shall supersede those contained in Part I of Chapter 17-4, Florida Administrative Code.

       1. Within thirty (30) days after receipt of an application for a permit under this section, the Department shall examine the application, notify the applicant of any apparent errors or

    omissions, and request any required additional information. The Department may deny a permit application if the applicant, after receiving timely notice, fails to correct errors, omissions, or supply additional information.

    
    

17. Based on the foregoing facts, it is specifically concluded as a matter of law that Petitioner has failed to carry its burden of showing entitlement to a permit. Petitioner did not submit information to DER after numerous requests, and all the requested information was necessary for proper evaluation of the application. Additionally, pursuant to Section 253.77, Florida Statutes, DER is specifically prohibited from issuing a permit without necessary approval from DNR. Also, the applicant failed to offer proof of reasonable assurances that various water quality criteria will be complied with, if the permit were granted. Therefore, in accordance with the above-quoted authority, the application for a permit should be denied.

    
    

18. Accordingly, based upon the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore

RECOMMENDED:

That a Final Order be entered by the Department of Environmental Regulation DENYING Petitioner's application for a permit.

DONE and ENTERED this 9th day of January, 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 9th day of January, 1985.

COPIES FURNISHED:

William Gemmill, Esquire 1724 Cape Coral Parkway Cape Coral, Florida 33910

Paul R. Ezatoff, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 84-001067

Orders for Case No: 84-001067