STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A. B. COOK, JR., SEAFOOD COMPANY, )

)

Petitioner, )

)

vs. )

)

FERNANDINA MARINE TERMINAL, INC. ) CASE NO. 84-3422 and DEPARTMENT OF ENVIRONMENTAL )

REGULATION, STATE OF FLORIDA, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, on January 4, 1985, at Fernandina Beach, Florida, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Mr. and Mrs. A. B. Cook, Jr.

Post Office Box 146

Fernandina Beach, Florida 32034

For Respondent Arthur I. Jacobs, Esquire Fernandina Marine Post Office Drawer I

Terminal, Inc.: Fernandina Beach, Florida 32034

For Respondent Ross S. Burnaman, Esquire DER: 2600 Blair Stone Road

Tallahassee, Florida 32301 ISSUE PRESENTED

Whether the application of Respondent Fernandina Marine Terminal, Inc. for a permit/water quality certification under Chapters 253 and 403, Florida Statutes, and Public Law 92-500, to perform dredge and fill activities in the Amelia River should be approved.

Petitioners appeared at the hearing unaccompanied by legal counsel. The Hearing Officer thereupon explained their rights and the procedures to be followed in the administrative hearing. They acknowledged that they understood their rights and elected to represent themselves.

Petitioners presented the testimony of Mrs. A. B. Cook, Jr., Captain Earl Cook, Captain Clifton Little, and submitted one exhibit in evidence. The applicants presented the testimony of Lake Ray, Jr., Captain Benjamin B. Thompson, Captain Oliver R. Ferguson, Bill Johnson, Captain William H.

Cavanaugh, and submitted four exhibits in evidence. The Department of Environmental Regulation presented the testimony of Timothy Deuerling, Dr. Marvin Collins, III, and submitted three exhibits in evidence.

At the commencement of the hearing, the parties stipulated that the only matter in issue in this proceeding is the question of whether or not the construction of a proposed dock by the applicants would constitute a navigational hazard.

A proposed recommended order was filed by the Department of Environmental Regulation. All matters therein have been ruled on directly or indirectly herein, except where proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary. A post-hearing letter from Petitioner has been considered, but additional unauthorized exhibits attached thereto have been disregarded.

FINDINGS OF FACT

1. On February 9, 1984, Respondent Fernandina Marine Terminals, Inc., by its agent Harbor Engineering Company, filed a joint application with the Department of the Army/Florida Department of Environmental Regulation for the rehabilitation of its existing marine facility located on the Amelia River at Fernandina Beach, Florida. The application was subsequently amended several times and eventually included the construction of a 1,000 foot dock to be constructed on the applicant's property parallel to the shoreline. (Testimony of Ray, FMT Exhibits 1-3, DER Exhibit 2)

   
   

2. An environmental supervisor of the Department of Environmental Regulation inspected the site on March 17 and April 17, 1984, and prepared a permit application appraisal on May 21, 1984, in which he determined that the Department had permitting jurisdiction under Chapter 253, Florida Statutes, due to the fact that the Amelia River constitutes navigable waters of the state. He found that the proposed dock would extend some 42 feet farther into the river than a previously existing dock which presently consists mostly of old pilings. He further determined that from a navigational standpoint, the proposed dock should present no problem. This view was concurred in by his supervisor Dr. Marvin Collins, III, who recommended issuance of the permit. On September 6, 1984, the Department issued a Notice of Intent to issue the requested permit. Thereafter, by letter of September 14, 1984, Petitioners requested a hearing to contest the issuance of the permit. On July 9, 1984, the Department of the Army/Corps of Engineers had issued a permit to the applicant to perform the requested work. (Testimony of Deuerling, Collins, DER Exhibits 1, 3, FMT Exhibit 4)

   
   

3. Petitioner A. B. Cook, Jr., Seafood Company is located immediately to the south of the proposed site. Shrimp boats unload at the north end of Petitioner's dock. The boats average from 60 to 70 feet in length. Petitioner is concerned that the cement pilings of the applicant's proposed pier will interfere with and prohibit the dockage of the shrimp boat due to the fact that a strong current is generated at the site where the Bells River joins the Amelia River. Petitioner therefore believes that the proposed placement of the applicant's dock would constitute a navigational hazard and that therefore it should be constructed further to the north or closer to the shoreline. (Testimony of Mrs. Cook, Petitioner's Exhibit 1)

   
   

4. Applicant's design engineer took cognizance of the need for shrimp boats to unload at the Cook dock. At the time the project was designed he

   conducted surveys of the uplands to ensure that adequate land was available for the proposed facility. In his expert engineering opinion, which is accepted, the proposed site is ideal for a marine terminal since no maintenance dredging will be required and because the river curves at the site, thus making it the widest place of the river in the vicinity. The planned length of the dock is sufficient to enable the docking of two vessels at the same time. If the proposed dock were to be placed further north, it would he unable to berth two vessels. If it were placed closer to shore, it would be necessary to utilize the adjoining marsh area and-would require constant dredging. Although the dock will extend some 42 feet into the Amelia River on the southwest end, it is almost in line with the applicant's property because of the bend in the river.

   The dock will be located approximately 115 feet from the Cook dock. The existing dilapidated dock is only approximately 50 feet from the Cook dock, although it is more in line or more parallel to the Cook dock. (Testimony of Ray, Cavanaugh, E. Cook, DER Exhibits 1 (photos), 2, FMT Exhibits 1-3)

   
   

5. Expert testimony from riverboat captains presented by both the applicants and petitioners is in conflict as to the extent of difficulty that will be encountered in docking shrimp boats at the Cook pier after the applicant's dock is built, and as to whether it will constitute a navigational hazard. The proposed dock will be put on pilings to avoid eddies which would be caused by a bulkhead, and will prevent change in existing currents. It is acknowledged even by the applicant's experts that a problem would exist with a falling tide and a west wind, and also in conditions of fog. However, the president of Johnson Petroleum Company which operates what is known as the "Gulf" dock located 100 feet south of the Cook dock, is familiar with the tide in the area and testified that the tide is used to spring vessels in and out of the docking area.

   
   

6. In light of all the evidence presented, it is found that although the alignment of applicant's proposed pier will to some degree make it more difficult for boats to dock at the Cook pier, it nevertheless constitutes an appropriate use of the applicant's property and sufficient evidence has been presented to show that it will not constitute a navigational hazard or a serious impediment to navigation. (Testimony of Ray, Thompson, Ferguson, Mrs. Cook, E. Cook, Little, Johnson, Cavanaugh)

   
   

   CONCLUSIONS OF LAW

   
   

7. The parties have stipulated that the sole issue for determination in this proceeding is whether or not the proposed dock would constitute a navigational hazard. The Department's Rule 17-4.29 (6), Florida Administrative Code, provides pertinently as follows:

   
   

   17-4.29 Construction, dredging or filling activities in, on or over navigable waters; permits required pursuant to Chapter 253, F.S.

   * * *

   (6) The Department shall net issue a permit unless the biological survey, ecological study and hydrographic survey, if any, together with information and studies provided by the appli- cant affirmatively show:

   * * *

   (b) 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.

   
   

8. As heretofore found, the applicant's proposed project will comply with the above-cited rule and, accordingly, the requested permit should be approved.

   
   

9. In view of the foregoing, it is RECOMMENDED that the application of Fernandina Marine Terminal, Inc. should be approved and the requested permit should issue, subject to standard conditions and those special conditions set forth in the Intent to Issue, dated September 6, 1984.

DONE and ENTERED this 31st day of January, 1985, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 January, 1985.

COPIES FURNISHED:

Mr. and Mrs. A. B. Cook, Jr. Post Office Box 146

Fernandina Beach, Florida 32034

Arthur I. Jacobs, Esquire Post Office Drawer I

Fernandina Beach, Florida 32034

Ross S. Burnaman, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Honorable Victoria Tschinkel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 84-003422

Orders for Case No: 84-003422