A. ABBANAT and )
MARGARET M. ABBANAT, )
vs. ) CASE NO. 84-1508
) WILLIAM O. REYNOLDS AND ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )
Respondents. )
Pursuant to notice, a formal hearing was held in this case on January 4, 1985, in Key West, Monroe County, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane K. Kiesling.
For Petitioners: J. A. Abbanat, Pro Se
For Respondent: William O. Reynolds, Pro Se
For Respondent: Douglas H. MacLaughlin
The issue in this case is whether a permit should be issued to construct a weedgate and fence in front of a dead-end canal serving the Atlantis Estates Subdivision on Big Pine Key, Florida.
The Petitioners J. A. Abbanat and Margaret M. Abbanat, presented the testimony of two witnesses, William O. Reynolds and James A. Abbanat, and had 22 exhibits admitted into evidence, Petitioners' Exhibits 2A-H, 2L, 3A-3N, 3P, 30, 6A, and 6B. Respondent Reynolds called six witnesses, Jessie Meyer, Lou House, Robert Bagnole, M. R. Fleming, Ron Groom, and Howard Wells, and had four exhibits admitted, Reynolds' Exhibits 3, and 5. Respondent DER called two witnesses, Richard W. Cantrell and Terry Kranzer, and had three exhibits admitted into evidence, DER Exhibits 1, 2, and 3.
The parties filed proposed findings of fact and conclusions of law. All proposed findings of fact and conclusions of law have been considered. To the
extent that the proposed findings and conclusions submitted are in accordance with the Findings, Conclusions and views submitted herein, they have been accepted and adopted in substance. Those findings not adopted are considered to be subordinate, cumulative, immaterial, unnecessary, or not supported by the competent and credible evidence.
At the commencement of the formal hearing, Petitioners filed a Motion for Entry of Default Order based on the alleged failure of Respondent Reynolds to submit certain exhibits and a witness list. The Motion was denied.
This cause commenced upon the filing of an application (#440816855) by William O. Reynolds to construct a weedgate and fence in front of a dead-end canal in Bogie Channel serving the Atlantis Estates Subdivision on Big Pine Key, Monroe County, Florida. The proposed project would be constructed in Class III waters of the State of Florida. An existing unpermitted weedgate exists in this location and the applicants for the proposed project are attempting to obtain a proper permit for a modified version of the existing gate.
Applicants for the proposed project are property owners in the Atlantis Estates Subdivision, whose properties are adjacent to the canal in front of which the proposed weedgate and fence are to be located. An ad hoc committee of certain of the Atlantis Estates Subdivision owners had met and decided to proceed with an application for the proposed project. However, not all subdivision landowners agreed with the proposed project, most specifically the Petitioners Margaret and J. A. Abbanat. William Reynolds signed and submitted the application for the project, and indicated in a notarized affidavit in tie application that he was acting as agent for property owners in the Atlantis Estates Subdivision. Reynolds is one of those property owners, specifically lot #17. There are 26 lots adjoining the dead-end canal. At hearing, twenty (20) of the property owners indicated their support for the project by submission of notarized statements. The members of the ad hoc committee and the vast majority of property owners authorized and supported the project and the filing of the application by Reynolds.
The permit application for the proposed weedgate and fence was submitted due to the problems caused by dead floating sea grasses and weeds (wrack) collecting in the Atlantis Estates Subdivision canal.
Wrack has collected in large quantities in the canal in the past, and at such times problems such as stench, difficulty in navigation, and fish kills have occurred.
Accumulated wrack in dead-end canals can cause water quality problems, including fish kills, and may also negatively affect navigation in the canal.
Wrack is likely to collect in the Atlantis Estates Subdivision canal due to its dead-end configuration and due to its location, since the open end of the canal faces the east and the prevailing winds in this area are from the east.
The weedgate and fence should cause no state water quality violations, should not unreasonably interfere with navigation where it is located at the mouth of the canal, and should actually improve water quality and navigation within the canal.
Water quality outside of the weedgate and fence should not be significantly decreased since the winds, tides, and currents should allow the wrack to drift away into open water and not accumulate, especially not to the extent the wrack would accumulate in the canal.
According to a proposed DER permit condition, the weedgate and fence must not cause a state water quality violation, and therefore if a water quality violation were caused by the project in waters outside the weedgate and fence, enforcement action would be required to correct the problem.
If the weedgate and fence becomes a navigational hazard, it is to be removed according to a proposed DER permit condition.
The application was not certified by a Professional Engineer. The Department's South Florida District Office did not seek such a certification from the applicant.
The proposed project consists of a stainless steel framework with vinyl covered wire fence to prevent wreck from drifting into the canal and a gate through the fence constructed of the same type of materials with a cable and counter weight system for opening and closing the gate. As proposed, the weedgate and fence should not create a navigational hazard, but should that occur, the proposed DER permit condition would require removal.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings pursuant to Section 120.57(1), Florida Statutes (1983).
The Department of Environmental Regulation has jurisdiction over the construction of the proposed weedgate and fence at this location pursuant to Chapters 403 and 253, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code.
Section 403.087(1) provides that:
No stationary installation which will reasonably be expected to be a source of air or water pollu- tion shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. .
Section 253.123(3) provides that:
The removal of sand, rock, or earth from the navigable waters of the State and the submerged bottoms thereof by dredging . . . shall not be permitted except in the following instances:
(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 sur- vey 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 study 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,
(4) and will not result in the destruction of oyster beds, clam beds, or marine productivity, includ- ing, but not limited to, destruction of natural marine habitats, grass flats suitable as nursery
or feeding grounds for marine life, and estab- lished 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.
Rule 17-4.29 contains the requirements and criteria for the issuance of permits pursuant to Chapter 253, Florida Statutes. In addition to the above quoted requirements, Rule 17-4.29(6)(b) provides:
That the proposed project will not create a navi- gational hazard, or a serious impediment to navi- gation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest.
The above findings of fact and the evidence in the record shows that the requirements of Section 253.123, Florida Statutes, and Rule 17-4.29, Florida Administrative Code, have been met. It is therefore concluded that these statutory and rule requirements are met.
The specific water quality criteria pertinent to this application and proceeding are contained in Section 17-3.061, Florida Administrative Code, as to the general criteria for surface waters, and in Section 17-3.121, Florida Administrative Code, which contains the criteria for Class III waters. Bogie Channel and the water in the dead-end canal in Atlantis Estates Subdivision are Class III surface waters of the State.
Rule 17-4.28(3) provides that the applicant must affirmatively provide the department with reasonable assurances that the short-term and long-term effects of proposed activity will not result in the violation of state water quality criteria, standards, requirements and the provisions of Chapter 17-3, Florida Administrative Code.
In permitting actions such as this, the applicant shall have the burden of establishing, by a preponderance of the evidence, entitlement to the requested permit. A preponderance of the evidence shows that no violations of state water quality, as contained in the statutory and rule sections outlined above, will be caused by this project.
The applicants did not submit an application certified by a professional engineer registered in the State of Florida. Florida Administrative Code Rule 17-4.05(3) states as follows:
Therefore, all applications for a Depart-
ment permit shall be certified by a professional
engineer registered in the State of Florida ex- cept . . . where professional engineering is not required by Chapter 471, Florida Statutes.
Section 471.003, Florida Statutes, prohibits anyone other than a registered professional engineer from practicing "engineering," but then notes certain types of projects that are exempt from this requirements. It is concluded that in small and relatively uncomplicated dredge and fill projects such as the proposed weedgate and fence in this case, where the project involves Improvement to property legally owned by the applicant, failure to have the certification by a professional engineer is not a bar to issuance of a permit. Whether Mr. Reynolds, by submitting the plans in this application, is practicing engineering under Chapter 471, or whether, if Mr. Reynolds is practicing engineering, he is exempt in this case from the requirements of Chapter 471, are not questions on which the Department of Environmental Regulation has authority to make a determination. Mr. Reynolds chose to submit the application and plans without certification by a professional engineer, and interpretation and enforcement of Chapter 471, Florida Statutes. must be carried out by the agency authorized to do so, namely the Department of Professional Regulation. Rule 17- 4.05(2), which is a rule promulgated and administered by DER, is merely a statement addressed to all permit applicants that they are subject to the requirements of Chapter 471. Therefore, although DER may deny an application for lack of adequate engineering plans to provide reasonable assurances that pollution will not occur (Section 403.087(4), F.S.), DER may not deny this permit application merely because it was not certified by a professional engineer registered in Florida.
In conclusion, the permit applicant has provided reasonable assurances that the project will not violate Department standards and rules or applicable statutes. The impact of the project on the navigable waters of the state will not be contrary to the public interest.
