STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GEORGE W. ROBERTS, VIRGINIA F. DARBY, ) EUGENE M. LONG, KEITH ROBERTS, and ) BRUCE DURDEN, )

)

Petitioners, )

)

vs. ) CASE NO. 86-1448

)

STATE OF FLORIDA, DEPARTMENT OF )

ENVIRONMENTAL REGULATION and )

DIXIE COUNTY, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted on September 17, 1987, at Cross City, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were present at the hearing as follows:

For Petitioner: Frederick M. Bryant, Esquire

Moore, Williams & Bryant, P.A.

306 East College Avenue Post Office Box 1169 Tallahassee, Florida 32302

For Respondent J. Doyle Thomas, Esquire Dixie County: County Attorney

Post Office Box 339

Cross City, Florida 32628

For Respondent Ann Cowles-Fewox, Legal Intern, and Department: Karen Brodeen, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 ISSUES

This is a case involving an application for a dredge and fill permit.

Dixie County has applied for a dredge and fill permit for the purpose of expanding the public dock at Horseshoe Beach in Dixie County, Florida. The Petitioners, all landowners in the vicinity of the proposed dock expansion, oppose the issuance of the permit. The ultimate issue is, of course, whether the Department of Environmental Regulation should issue the disputed permit.

INTRODUCTION AND BACKGROUND

Prior to the hearing the parties executed a Pretrial Statement in which they narrowed the issues and stipulated to certain facts. At the hearing the County presented the testimony of C. W. Stevenson, a County Commissioner for Dixie County, Danny Kight, a City Councilman for the City of Horseshoe Beach, and Herbert Raker, who was qualified as an expert in surveying. The Department presented the testimony of the following witnesses: Al Poppell, who was qualified as an expert in coastal mapping, interpretation of navigational charts and maps, and in determining boundaries of riparian rights; Ken Echternacht, who was qualified as an expert in hydrograpic engineering; Jack Neely, who was qualified as an expert in navigation and in commercial fishing boat practice; Barbara Gianikas, who was qualified as an expert in evaluating the impacts of dredge and fill project on the physiological and biologic environment; and Jeremy Tyler, who was qualified as an expert in water quality and environmental impacts of dredge and fill projects, and the application of Department rules and statutes to dredge and fill projects.

Petitioners presented the testimony of Keith Roberts, Tina Brotherton, Leslie Diggs, and Bruce Durden. Mr. Durden was qualified as an expert in surveying.

All parties offered exhibits at the hearing. The following exhibits were admitted into evidence without objection: DER and Dixie County's Joint Composite Exhibit 1, Dixie County's Exhibits Numbered 1 through 3, DER's Exhibits Numbered 1 through 7, and Petitioners' Exhibits Numbered 1 through 4 and 6 through 14. Petitioners' Exhibit Numbered 5 was admitted in illustration of Keith Robert's testimony. Objection to Petitioners' Exhibit Numbered 15 was sustained.

Upon conclusion of the hearing, all parties agreed to a deadline of October 16, 1987, for the filing of their proposed recommended orders. Timely proposed recommended orders were filed by all parties. All of the proposed findings of fact submitted by the parties are specifically addressed in the Appendix which is attached to and corporate into this recommended order. Careful consideration has been given to the parties' proposed recommended orders in the preparation of this recommended order.

On October 23, 1987, the Department filed a Motion To Strike, by means of which it seeks to have certain material stricken from the Petitioners' proposed recommended order. The Motion To Strike is denied because, short of obscene or indecent matter, parties are generally free to propose whatever facts they wish. The extent to which such proposals are adopted is, of course, limited by considerations of relevance and competent substantial evidence. In the normal course of events, facts found in other cases are not competent substantial evidence of those facts which can be bootstrapped into another case via the stratagem of official recognition

FINDINGS OF FACT

1. Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact.

   
   

   Facts admitted by all parties

   
   

2. The water quality standards contained in Rule 17-3.111, Florida Administrative Code will not be violated by this project.

   
   

3. There are no aquatic macrophytes located in the area of the proposed project.

   
   

4. The proposed project is located within 500 feet of the incorporated municipality of Horseshoe Beach, Florida.

   
   

5. The proposed project is located within Class II waters of the State not approved for shellfish harvesting.

   
   

6. The project will not adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats.

   
   

7. The proposed project will be of a permanent nature.

   
   

8. The project will not adversely affect or will not enhance significant historical or acheological resources under the provisions of Section 267.061, Florida Statutes.

   
   

   The rest of the findings

   
   

9. The Applicant, Dixie County, applied for a dredge and fill permit to construct a dock which would expand the existing public dock at Horseshoe Beach. In accordance with the revised plans dated October 23, 1986, the proposed facility would consist of a pier 6 feet wide and 120 feet long designed to accommodate six boat slips, each 30 feet wide and 40 feet long. The boundaries of the boat slips will be demarcated by pilings set 10 feet apart. Four of the boat slips would be primarily for the use of commercial fishing boats and commercial shrimping boats. The other two boat slips (the two slips closest to the land) would be reserved for the exclusive use of recreational and other small vessels. By adding a catwalk 3 or 4 feet wide down the middle of the two slips reserved for recreational vessels, the usefulness of those slips to recreational vessels would be greatly enhanced and the narrowness of the resulting slips would preclude their use by large vessels. Adding the two catwalks would be a minor addition to the proposed project which would greatly enhance the usefulness of the project and at the same time avoid the possibility that large vessels in the two slips closest to the land would impede ingress and egress at the nearby boat lift, boat fueling facility, and boat ramp. Adding a reasonable number of permanent trash or garbage containers would also enhance the usefulness of the proposed project and minimize the possibility of improper disposal of trash and garbage which is generated by the normal use of a dock by fishermen and boaters.

   
   

10. The proposed project site is located in the Gulf of Mexico at Horseshoe Beach, Florida, and would extend into the waters of the Gulf, which is a tidally influenced water body adjacent to Dixie County, Florida. The water along the shoreline of the area is shallow for a considerable distance

    waterward, except where basins and channels have been dredged. The Horseshoe Beach area is relatively unpolluted. The existing public dock at Horseshoe Beach is used primarily by recreational vessels, but there is also extensive commercial fishing and Shrimping boat activity in the area. The project is located at the mouth of a canal with direct access to the Gulf. Several commercial fishhouses operate from the canal bank, which generates extensive commercial boat traffic past the proposed project site. Large numbers of commercial shrimp boats presently dock along the canal that ends near the proposed project site.

    
    

11. The proposed project requires no dredging. The only filling required by the proposed project is the placement of pilings into the bottom of the Gulf of Mexico. Even though the plans do not specify whether concrete or wooden pilings will be used, this lack of specificity in the plans is irrelevant. Regardless of what types of pilings are used on this project, the filling activity will not violate the water quality criteria contained in Rule 17- 3.051(1), Florida Administrative Code. The placement of the pilings will not adversely affect the public health, safety, and welfare. Further, the proposed project will not adversely affect any property interests of the Petitioners within the scope of Chapter 403, Florida Statutes.

    
    

12. The Gulf bottom in the area of the proposed project has already been disturbed. The presently existing suspension of particulate material in the water column, a natural occurrence in the area of the project, results in low visibility which means that seagrass beds and other marine vegetation, which provide shelter and detrital deposits for fish and other marine resources, will not grow.

    
    

13. Coast Guard regulations prohibit commercial fishing vessels from depositing materials into the water within three miles of the coast line. Commercial fishing vessels must prominently display a sticker reciting that regulation and it is the practice of commercial fishing vessels operating in the vicinity of Horseshoe Beach to comply with this Coast Guard no discharge requirement by cleaning nets and scrubbing decks outside the three mile limit. It is not the practice of Commercial fishing vessels to deliberately discharge diesel fuel, fish parts or other material into the water while docked. Further, the limited number of commercial fishing vessels which could dock at the proposed facility at the same time cannot reasonably be expected to create discharges in amounts creating a nuisance, posing any danger to the public health safety or welfare, or violating the water quality criteria contained in Rule 17-3.051(1), Florida Statutes. Although small amounts of diesel fuel can become mixed with bilge water and be discharged by automatic bilge pumps while commercial fishing vessels are docked, there is no evidence that this would be in amounts Sufficient to create a nuisance or violate water quality criteria.

    To the contrary, notwithstanding a large amount of commercial boat traffic past the proposed site and notwithstanding the fact that large numbers of shrimp boats dock up the canal from the proposed site, the water in the area of the proposed site has remained relatively unpolluted.

    
    

14. The proposed project will not affect the normal wind and wave action in the area of the proposed project. Such wind and wave action presently results in free exchange between the waters of the open Gulf and the waters near the shore. This free exchange of waters means that any pollutant discharges in the area of the proposed project will be diluted and rapidly dispersed into the Gulf of Mexico. There will be no measurable difference in the wind and wave

    action, or in the water exchange, after the proposed project is built. No harmful shoaling or erosion is expected to result from construction of the proposed project.

    
    

15. Any docking structure extending out into the Gulf of Mexico will obviously have some effect on navigation in the area of the dock, but there is no evidence that the proposed dock will present a hazard to navigation or any significant interference with customary navigation patterns. The distance between the nearest channel marker and the waterward end of the proposed project is more than 200 feet. The angle of the proposed dock and its Spatial relation to the main Horseshoe Beach turning basin cause no impediment to navigation. The placement of Coast Guard Safety lights on the dock would minimize any potential for impeding navigation or posing a danger to the public health or safety during hours of darkness.

    
    

    CONCLUSIONS OF LAW

    
    

16. Based on the foregoing findings of fact and on the applicable statutes, rules, and court decisions, I make the following conclusions of law.

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

    
    

18. The Department of Environmental Regulation has permitting jurisdiction over the proposed project pursuant to Chapter 403, Florida Statutes. See also Chapters 17-3, 17-4 and 17-12, Florida Administrative Code.

    
    

19. Reasonable assurances have been provided that the proposed project itself will not violate water quality standards or criteria relating to Class II waters and established pursuant to Chapter 403, Florida Statutes, and Rules 17-

    3.051 and 17- 3.111, Florida Administrative Code.

    
    

20. "Secondary impacts", those non-speculative environmental impacts reasonably expected to be associated with the use or further development of a permitted project, must be considered when evaluating a permit application. Del Campo v. Department of Environmental Regulation, 452 So.2d 1004 (Fla. 1st DCA 1984).

    
    

21. Although the Petitioners have voiced concerns about a number of hypothetical horribles, the only secondary impacts associated with the proposed project which are supported by competent substantial evidence as being likely to occur are potential discharges of diesel fuel mixed with bilge water from commercial fishing vessels. The possible use of the expanded dock as a gathering place for undesirable persons engaging in uncouth language and behavior is not a secondary impact within the scope of Chapter 403, Florida Statutes.

    
    

22. The unrebutted expert testimony presented by the Department demonstrates that polluting discharges, were any to occur from the commercial fishing vessels utilizing the proposed facility, would be quickly diluted and would rapidly dissipate. Therefore, reasonable assurances have been provided that the Water Quality Standards and criteria contained in Rules 17-3.051 and

    17-3.111, Florida Administrative Code, will not be violated by secondary impacts of the proposed project.

    
    

23. For Class II non-Outstanding Florida Waters such as those involved here, Section 403.918(2), Florida Statutes, requires a balanced consideration of

seven separate public interest criteria to determine whether a project is contrary to the public interest. By a preponderance of the evidence, the Respondents have demonstrated that there will be no adverse impacts caused by the proposed project to any of the interests itemized in the statutory criteria. In this regard the Petitioners have argued that the proposed project will impact upon their riparian rights and that such impact constitutes an adverse effect on "the property of others" within the meaning of Section 403.918(2)(a)1, Florida Statutes. The argument fails for two reasons. First, the evidence as to any impact on the Petitioners' riparian rights is sketchy, at best, and does not Provide any competent substantial basis for a conclusion that such rights would be adversely affected by the proposed project. Second, the following language from Miller v. State, Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987), makes it clear that property interests such as riparian rights are beyond even the penumbra of Section 403.918(2)(a)1, Florida Statutes:

Appellant presents as a second issue on appeal the contention that DER erred in construing Section 403.918(2),

Florida Statutes, against extending its authority to consider non-environmental impacts on "property of others." We find no merit in that contention. The statutory reference to property of others has no logical meaning outside an environmental context in light of the jurisdiction to adjudicate all actions involving the title and boundaries of real property conferred upon circuit courts by Section 26.012(2), Florida Statutes. And, as noted by appellee, agencies would not, by their nature, ordinarily have jurisdiction to decide issues of law inherent in evaluation of private property impacts.

RECOMMENDATION

Based on all of the foregoing, I recommend that the Department of Environmental Regulation issue a Final Order in this case granting the permit applied for by Dixie County. It is also recommended that the permit be made subject to the following additional conditions:

1. That one or more Coast Guard safety lights be placed on the proposed expansion to the dock;

   
   

2. That catwalks be added down the middle of the two most landward of the proposed boat slips; and

   
   

3. That a reasonable number of trash or garbage receptacles be permanently located on the proposed expansion to the dock to minimize the possibility of trash and garbage being thrown overboard.

DONE AND ENTERED this 30th day of October, 1987, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-1448

The following are my specific rulings on all of the proposed findings of fact submitted by all of the parties. The paragraph numbers referred to below are references to the paragraph numbers in the parties' respective proposed recommended orders.

Ruling on findings proposed by the Petitioners:

Paragraph 1: Accepted.

Paragraph 2: Accepted.

Paragraph 3: Accepted.

Paragraph 4: First sentence is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than a proposed finding of fact. Second and third sentences are rejected as repetitious

Paragraph 5: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case.

Paragraph 6: Entire paragraph rejected as unnecessary speculative generalizations in light of the other evidence in this case.

Paragraph 7: Rejected as contrary to the greater weight of the evidence.

Paragraph 8: Entire paragraph is rejected as appearing to be more in the nature of an introduction to a discussion of legal issues than proposed findings of fact.

Paragraph 9: Entire paragraph rejected as contrary to the greater weight of the evidence; construction of the dock may be expected to bring about some changes in the nature of the boat traffic in the immediate area, but nothing of the nature or magnitude suggested by these proposed findings.

Paragraph 10: Rejected as contrary to the greater weight of the evidence.

Paragraph 11: First sentence is rejected as contrary to the greater weight of the evidence. Second sentence is accepted in part and rejected in part.

Rejected portion is irrelevant. Third sentence is rejected as irrelevant. Fourth Sentence is accepted. Fifth sentence is rejected as contrary to the greater weight of the evidence and as repetitious Sixth sentence is rejected as contrary to the greater weight of the evidence.

Paragraph 12: Entire paragraph rejected as contrary to the greater weight of the evidence.

Rulings on findings Proposed by the Respondent: Paragraph 1: Accepted.

Paragraph 2: Accepted in substance.

Paragraph 3: First two sentences accepted in substance. Last sentence rejected as irrelevant.

Paragraph 4: Accepted.

Paragraph 5: Accepted.

Paragraph 6: Accepted.

Paragraph 7: Rejected as unnecessary recitation of opposing party's contentions and not proposed finding of fact.

Paragraph 8: Accepted in substance. Paragraph 9: Accepted in substance. Paragraph 10: Accepted.

Paragraph 11: Accepted in substance. Paragraph 12: Accepted.

Paragraph 13: First sentence accepted in substance. Second sentence accepted in part and rejected in part; rejected portion concerns riparian rights, which are irrelevant to whether this permit should be issued.

Paragraph 14: Entire paragraph rejected as irrelevant. Paragraph 15: Accepted in substance.

Paragraph 16: Accepted.

Paragraph 17: Accepted in substance.

COPIES FURNISHED:

Frederick M. Bryant, Esquire Moore, Williams & Bryant, P.A. Post Office Box 1169 Tallahassee, Florida 32302

J. Doyle Thomas, Esquire County Attorney

Post Office Box 339

Cross City, Florida 32628

Ann Cowles-Fewox, Legal Intern Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Karen Brodeen, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301

Dale Twachtmann, Secretary Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Docket for Case No: 86-001448

Orders for Case No: 86-001448