STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARDYTHE BAGBY, MARIE and )

CLIFTON McCOOK, and ) Dr. JONATHON and DOROTHY HILL, )

)

Petitioners, )

)

vs. ) CASE NO. 87-3838

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION and NASSAU BOARD ) OF COUNTY COMMISSIONERS, )

)

Respondents. )

)

RECOMMENDED ORDER

The formal administrative hearing in this case was held before William C. Sherrill, Jr., in Fernandina Beach, Florida, on January 6, 1988. The issue in this case is whether the Department of Environmental Regulation (DER) should issue a dredge and fill permit, file number 451193582, for the construction of a public boat ramp and associated parking lot on the St. Mary's River at Kings Ferry. Appearing for the parties were:

For Petitioners: Gordon E. Hart, Esquire

205 Center Street

Fernandina Beach, Florida 32304

For Respondent William H. Congdon, Esquire DER: Assistant General Counsel

Office of General Counsel Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent Michael S. Mullin, Esquire Nassau County: Nassau County Attorney

Post Office Box 1010

Fernandina Beach, Florida 32304

The Petitioner presented no exhibits and the testimony of Ardythe Bagby, Dr. Jonathon Hill, Mrs. Dorothy Hill, and Greg Root. The Respondents presented

6 exhibits, which were admitted into evidence, and the testimony of Charles Pickett, Chairman, Nassau County Board of County Commissioners, James Testone, County Commissioner, John Claxton, County Commissioner, Benjamin C. Lewis, William P. Davis, Burr S. Watters, III, and Jeremy Tyler. There is no transcript. The Department of Environmental Regulation filed proposed findings of fact and conclusions of law which were adopted by the County. The Petitioners did not file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. On April 28, 1987, Nassau County applied to the Department of Environmental Regulation for a dredge and fill permit to construct a public boat ramp, dock, and unpaved parking lot within the landward extent of the St. Mary's River.

   
   

2. The St. Mary's River is a class III water of the state, and is not an "outstanding" Florida water.

   
   

3. The boat ramp is designed to be 12 feet wide and 66 feet long. The dock is designed to be 60 feet by 4 feet. The unpaved parking lot is designed to be 100 feet by 80 feet. The relationship of these projects is shown by the drawing that is R. Ex. 4.

   
   

4. The jurisdiction of the Department of Environmental Regulation is determined by the dominant plant species on the land. Where there are no plant species, jurisdiction extends to the mean high waterline.

   
   

5. With respect to the proposed boat ramp, dock, and parking lot, the DER's jurisdiction extends to the area above the blue line on R. Ex. 4. Thus, the DER jurisdiction extends to a small portion of the northwest corner of the parking lot, most of the dock (a 20 foot section of the dock ramp is excluded), and 44 feet of the end of the boat ramp that extends into the St. Mary's River. The small portion of the parking lot is not a deep swamp, but is a transitional wetland. This portion of the parking lot appears to be about 50 square feet of the total of 8,000 square feet of the entire parking lot, judging from the dimensions of the ramp and the dock on R. Ex. 4.

   
   

6. The boat ramp will require the removal of 80 cubic yards of soil. The ramp is to be constructed at a place alone the river where there is no wetland vegetation of significance, and excavation will not remove any natural filtering vegetation of importance. At this point, the bank of the river is steep and the river is about 200 foot wide at this point, and has a relatively strong flow of water. The material to be excavated is fine. Any turbidity caused by excavation should be soon dissipated in the river. Physical barriers constructed during the excavation should adequately protect against excess turbidity.

   
   

7. Special condition 3 of the proposed permit requires that turbidity controls be used throughout the project to contain any turbidity generated that exceeds state water quality standards. R. Ex. 3.

   
   

8. The dock involves the placement of pilings on the river bottom along the shoreline of the river. If the dock were to be a private dock, it would be exempt from the requirement of a DER permit. The dock will not destroy wildlife habitat or cause the loss of important wetland.

   
   

9. The flow of water would continue through and around the pilings of the dock and across the end of the ramp. The project would not change the natural flow of the river, cause erosion, or be a hazard to navigation.

   
   

10. The project will not harm marine productivity.

    
    

11. The project will not adversely affect public health, safety, or welfare.

12. There are no significant historical or archeological resources affected by the project.

    
    

13. The project will enhance fishing and recreational values by providing access to fishermen and boaters to the river.

    
    

14. A small portion of the parking as shown on R. Ex. 4 will result in the destruction of a transitional wetland, but the portion is not significant in comparison with the remaining wetland. The alteration to the wetland is lessened by the fact that the parking lot will be unpaved.

    
    

15. The Petitioners presented evidence as to alternative sites that may be available to the County for a boat ramp, and evidence that the proposed public boat ramp may harm the adjacent or nearby property of the Petitioners due to noise and litter from public use.

    
    

16. There is no evidence that the project will have an environmental impact upon the property of the Petitioners.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the subject matter and parties to this proceeding.

    
    

18. The Department of Environmental Regulation has permitting jurisdiction over the proposed project as shown on R. Ex. 4, pursuant to section 403.817, Fla. Stat. (1987).

    
    

19. As required by section 403.918(1), Fla. Stat. (1987), reasonable assurances have been provided that the proposed project will not violate water quality standards or criteria established by Departmental rule.

    
    

20. The water quality standards provided in rule 17-3.121, Fla. Admin. Code, will not be violated by this project.

    
    

21. The proposed project will not be contrary to the public interest as that phrase is defined by section 403.918(2)(a), Fla. Stat. (1987). See findings of fact 8-16.

    
    

22. The project will probably have an adverse impact upon the property of the Petitioners due to increased noise and litter caused by increased public use of the boat ramp. However, these impacts are not environmental impacts, and thus cannot be addressed in this case. These considerations are beyond the 4 jurisdiction of the Department of Environmental Regulation. The District Court of Appeal has ruled that section 403.918(2)(a)1. Fla. Stat. (1987) grants to the Department of Environmental Regulation the authority to consider only the adverse environmental effects upon the property of others. Miller v. Department of Environmental Regulation, 504 So.2d 1325, 1327 (Fla. 1st DCA 1987).

RECOMMENDATION

For these reasons, it is recommended that the Department of Environmental Regulation enter its final order issuing permit number 451193582 to Nassau County with the specific conditions contained in the intent to issue dated June 26, 1987.

DONE and ENTERED this 11th day of March, 1988.

WILLIAM C. SHERRILL, JR.

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 11th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3838

The following are rulings upon findings of fact proposed by the parties which have been rejected in this Recommended Order. The numbers correspond to the numbers of the proposed findings of fact as used by the parties.

Findings of fact proposed by the Petitioner:

5 and the second sentence of 6. These proposed findings are issues of law, not fact.

Findings of fact proposed by the Respondent: None proposed.

COPIES FURNISHED:

Gordon E. Hart, Esquire

205 Center Street

Fernandina Beach, Fla. 32304

William H. Congdon, Esquire Assistant General Counsel Office of General Counsel Twin Towers Office Building 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Michael S. Mullin, Esquire Nassau County Attorney Post Office Box 1010

Fernandina Beach, Florida 32304

Dale Twachtmann, Secretary Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esquire General Counsel

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 87-003838

Orders for Case No: 87-003838