STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEMON BAY CONSERVANCY, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-0471

) STATE OF FLORIDA, DEPARTMENT OF ) NATURAL RESOURCES and CHARLOTTE ) COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Port Charlotte, Florida on June 16 & 17, 1991, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

For DNR: Dana M. Wiehle, Esquire Department of Natural Resources 3900 Commonwealth Blvd.

Mail Station 35

Tallahassee, Florida 32399

For Charlotte Co: Philip E. Perry, Esquire

Patricia A. Petruff, Esquire Dye & Scott, P.A.

P.O. Drawer 9480 Bradenton, Florida 34206

ISSUES

The issue for consideration in this case is whether Charlotte County should be issued a permit to dredge Stump Pass and Deposit the spoil therefrom on the beach south of the pass.

PRELIMINARY MATTERS

In December, 1986, Charlotte County filed an application with the Department of Natural Resources, (DNR), for a coastal construction permit to dredge Stump Pass and place the dredged material on the beaches south of the pass. The application was modified in November, 1989 as the result of DNR request and was declared complete by the Department in August, 1990. On October 11, 1990, the Department signed a Notice of Intent to Issue the permit and Lemon

Bay Conservancy timely filed a petition for hearing in opposition thereto. The matter was forwarded to the Division of Administrative Hearings by letter dated January 18, 1991, and was initially set for hearing by the undersigned, by Notice of Hearing dated February 17, 1991, for June 5 - 7, 1991 in Port Charlotte. Extensive motion practice ensued and the matter was ultimately heard on June 16 & 17, 1991.

At the hearing, the County presented the testimony of Dr. Michael F. Stephen, principal scientist and founding partner of Coastal Engineering, Inc., and an expert in coastal geology and engineering geology; Charles R. LeBuff, retired wildlife biological technician and an expert in sea turtle biology and conservation; Daniel E. Collette, a charter boat captain; and Captain Overton B. Pettit, Jr., a boat captain and salesman and expert in navigational safety. The County also introduced County Exhibits 1- 26, all of which except #10 were received into evidence.

The Department presented the testimony of Mark E. Leadon, professional engineer administrator with DNR and an expert in coastal engineering and coastal processes. It also introduced DNR Exhibits 1 & 2.

Petitioner presented the testimony of Ashley N. Davids and James T. Dixon, both commercial fishermen and longtime residents of the area; Joseph Volker, member of the Lemon Bay Conservancy, Inc.; and David H. Atwater, Jr., President of the Conservancy. Petitioner also introduced Petitioner's Exhibits 1 - 4a and 5 - 8.

A transcript was provided and all parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Petitioner, Lemon Bay Conservancy, Inc., was a nonprofit corporation in the State of Florida whose membership is made up of individuals affected by the health of Lemon Bay. The Department of Natural Resources is the state agency responsible for the regulation and issuance of coastal construction permits pursuant to Chapter 161, Florida Statutes, and Charlotte County is a political subdivision of the State of Florida and the applicant for the permit to dredge Stump Pass which is located within its geographical boundaries.

   
   

2. Stump Pass is a maintained coastal inlet located on the west coast of Florida between Manasota Key to the North and Knight Island to the South. It has been in approximately the same location since 1925. It is a wave dominated pass, which means the wave energy, which comes predominantly from the west/northwest, is greater than the tidal energy in the pass, and this wave action has caused the Pass channel to migrate to the south since 1974. The Pass was last dredged in 1980.

   
   

3. For various reasons, in November, 1986, the County applied to DNR for a coastal construction permit to "maintenance dredge" a portion of the Pass and utilize the dredged material for renourishment of adjacent beaches on Knight Island. A permit for this type of work is required by the provision of Section 161.041, Florida Statutes.

   
   

4. As the application was being reviewed by the Department, several areas were identified for modification. Among these were a reduction in the amount of material to be dredged to 136,000 cubic yards; more specific identification of

   the beach area to be renourished, (3,000 feet along the west side of Knight Island); and the development and submittal of a Sea Turtle Protection Plan. These modifications were made and submitted by the County in November, 1989, and the application was deemed complete on August 27, 1990.

   
   

5. On October 11, 1990, the Department issued its Notice of Intent to Issue the permit. In doing so, it recommended the inclusion of 10 specific conditions. Since the proposed project was determined not to have a significant adverse effect on the sandy beaches, no mitigation plan was required. Since the placement of the sand from the dredging would be on the beach at Knight Island, which is downdrift of the water flow, it was consistent with the requirements of Section 161.142, Florida Statutes.

   
   

6. Stump Pass, at its most restrictive point, is less than 100 feet wide. It is an unmarked channel. The existing channel is approximately one mile in length. The channel proposed by Charlotte County, as approved by the Department, would be approximately one half mile in length.

   
   

7. In preparing its application for submittal to the Department, the County retained Dr. Michael S. Stephen, a consultant with Coastal Engineering, Inc., and an expert in coastal geology and engineering geology, to evaluate the proposed dredging project, one purpose of which is to provide a safe, navigable channel between the Gulf of Mexico and Lemon Bay and the west coast of Florida waterway system. In the course of his evaluation, Dr. Stephen took bathometric measurements at Stump Pass which were used to define and create a map of the water depths in the area. According to his proposal, the fill from the dredging would be placed on the shore south of the pass in an area which is accompanied by a 10 foot wide public easement which parallels the shoreline and runs north and south along the beach. In light of this, the proposed project would not interfere with the public's right to access to the area except during the construction period. This project is significantly similar to a prior dredging in 1980 and the channel will be essentially the same as on that occasion. A significant difference, however, is that the spoil will, in this case, be placed south of the pass whereas in the previous dredging it was placed on the state park to the north.

   
   

8. One of the factors considered by the County in its decision to apply for the permit for this project was the determination that the existing channel is not safe for boats to navigate other than during calm weather in a single file. Dr. Stephen believes that the proposed channel would be safer to navigate because it is shorter than the existing channel; provides a more direct access from the inland waters to the Gulf; and avoids the cross-wave and cross-wind impacts experienced by the use of the current pass. There is substantial evidence by experienced boaters who are commercial fishermen as well as recreational boaters who contend that the safety of the pass at the present time is not an issue. Most of these opponents indicate they have had little if any difficulty in traversing the pass under all but the most extreme conditions, and that preparation plus good judgement will, in most cases, result in a safe transit. A more comprehensive discussion of this subject will be found in several paragraphs below.

   
   

9. Historical documentation considered by Dr. Stephen in his analysis of information dating back to between 1895 to 1975, shows that the inlet has been in much the same location since 1925. In 1895, however the pass was north of its present location.

10. Another concern of the Department when determining the appropriateness of a coastal construction application is engineering data relating to inlet stability. This concept considers the inlet as a whole and directs examination of three areas. One is lateral movement; a second is cross sectional stability, (the ability of the inlet to remain open); and a third is hydraulic stability. As was noted above in the discussion concerning the location of the inlet back to 1895, the fact that it has remained in its same location since 1925 indicates that from a migratory standpoint, it is considered stable. In addition, the throat of the pass, the actual area where the water comes through from Lemon Bay out to the Gulf, is also stable in terms of cross sectional stability or "closure parameters." Only the continuation of the channel out into the Gulf has moved to a significant degree.

    
    

11. It is this outer portion, the outer channel of the inlet, where the proposed dredging is to take place. It is presently in a north/south configuration, having migrated from the predominantly east/west direction in which it was dredged in 1980. Expert testimony indicates that this migration has been the result of the west/northwest dominant wave action.

    
    

12. Evidence also indicates that if this outer channel were not maintained once dredged as proposed, it would return to the location it currently occupies. As a result, Charlotte County seeks to include a maintenance dredging plan at 3 to 5 year intervals as part of its proposed management scenario. Petitioners claim that the current inlet and channel are in their natural locations, and that the channel which will result from the proposed dredging will be unstable and immediately begin to migrate back to the location of the "natural" channel which it presently occupies. In response, the County asserts that while the current channel may indicate stability in the short run, given the historic hydraulic instability of the channel, its current location and alignment are likely to change in the future. As the channel has moved toward the south, it has tended to lengthen and as a channel lengthens, the less hydraulically stable it is as a result of the frictional drag of the water flow through the channel. The longer the channel, the greater the drag, and the greater the drag, the greater the potential for flow interruption. When the channel becomes hydraulically unstable, therefore, hydraulic pressures cause a tendency to cut through the shoals lining the channel and it is the County and Department position that a shortening of the channel, as the proposed project would do, would improve the hydraulic stability of the new channel. Nothing was presented by Petitioners to dispute this and it is so found.

    
    

13. The statute also requires the Department to take into consideration shoreline stability when considering an application for a coastal construction permit. While there has been little erosion or accretion to the shoreline north of the pass where the spoil from the 1980 dredging was placed, the area south of the pass has experienced significant erosion due, in part, it would appear, to the southerly migration of the outer channel.

    
    

14. Immediately to the south of Monument 23, over a stretch approximately 3,000 feet long, sand has been accreting to the extend of approximately 50 to 60 feet per year. However, south of that area, for approximately 5,000 to 11,000 feet south of the inlet, the shoreline has eroded at approximately 10 feet per year. It is in this eroding area that the sand dredged from the channel would be placed.

    
    

15. There are varying theories as to the cause of the shoreline instability the area has experienced. Some place the blame on the 1980 dredging project; others on the current location of the outer channel. Other factors may

    play a part, however, including major storms, and there is insufficient evidence available to justify the establishment of a causal relationship. Nonetheless, as a condition of the permit, the Department has indicated a requirement for the County to conduct detailed monitoring of the area to determine whether any adverse impacts are being caused by the project, so as to allow the taking of immediate mitigative action through its inlet management plan to moderate the impacts.

    
    

16. Ordinarily, the Department, by its standing policy, requires applicants for permits to conduct inlet maintenance activities to submit an inlet management plan prior to approving the application. This plan is required to address various impacts that the activity would have on adjacent coasts and shorelines, and is primarily a means of providing protection of the inlet and coastal system from the harmful effects of construction activities. Here, at the time the County's application was filed, that policy had not been adopted. As a result, no management plan was filed. However, the filing of a management plan within 6 months of the dredging done under the permit has been made a condition of the permit, and any plan filed will require approval by the Governor and Cabinet.

    
    

17. It is, generally, the policy of the Department to not allow coastal construction activities in natural inlets. A natural inlet is one that has developed by the natural coastal formulation process, and which has not been modified by man. The Department contends that Stump Pass is not a natural inlet but instead, a "maintained" inlet because portions of the original 1980 dredging are still in place and only the outer channel is subject to the present application. Though the channel dredged in 1980 may have cut through the natural point of entry and exit of water from the Gulf to Lemon Bay and return, the fact is that the depth of the channel is the result of that 1980 dredging and the channel has maintained itself naturally thereafter. It cannot be said, however, that Stump Pass is a natural pass since it includes more than just the outer channel and that additional area, the throat, is still under the influence of the 1980 dredging.

    
    

18. Petitioners claim that the Department's program directive 950, which prohibits the alteration or maintenance of any inlet or pass unless a management plan is submitted along with the permit application has not been complied with here and, therefore, approval of the instant application is prohibited.

    Further, Petitioners urge that the maintenance plan being prepared by the county is not an inlet management plan, which is called for by the program directive.

    The Department asserts, however, that though the directive was signed by the Executive Director of the Department, it was intended as an internal policy directive only to be used as a tool for coordination between the Department's separate divisions, and because of concerns expressed by various division within the Department, it has never been implemented. It is currently still under revision and the Department has elected not to apply its provisions to this case. In fact, in a previous application, the Department allowed the applicant to proceed with its project without a management plan. The management plan was required, subsequent to accomplishment of the work, as a condition of the permit.

    
    

19. Another factor for consideration is the impact of the proposed project on the beach dune system and its effect on the habitat of the sea turtle. The expert testimony of record establishes that the project, rather than having an adverse effect on the turtle population, would have a more beneficial effect by providing a more suitable location for nesting. The site established for the deposition of the dredged spoil is an area of beach currently suffering severe

    erosion problems, and the placement of sand at that location would provide beach profiles similar to those currently existing on the County's natural beaches.

    In addition, to protect the existing nesting habitat of the turtle, the Department has required and approved a sea turtle protection plan which, it contends, will guarantee that the project will not have an impact on nesting populations of sea turtles. The testimony of Mr. LeBuff, clearly an expert in the management of the sea turtle population, establishes that the beach area provided to the turtles as a result of this project will consist of a sandy, natural, compatible beach material that is not going to be harmful, and the final slope of the reconstructed beach will be compatible with the natural slope of the beaches within the County. As a result, he is satisfied, and it is found, that there will be no detrimental effect to the turtle population.

    
    

20. In its application in support of the permit, the County, and the Department in defense thereof, both contend that the primary purpose for the dredging of Stump Pass is to provide a safe, navigable channel between the Gulf and the waters of Lemon Bay. In support of its claim, the County presented the testimony of several charter boat captains, professional fishermen who have lived in the area for a number of years and who are totally familiar with the pass, having traversed it on numerous occasions under just about every condition. Captain Collette contends that the current maximum depth of the pass is between 4.5 and 5 feet. In the winter tide, it is much shallower with a depth often under 3 feet. Captain Collette refuses to run night charters through the pass because, he contends, it is too dangerous. During foggy weather and thunderstorms, because of the lack of visibility and a paucity of proper markers on the channel, he will not use it. The closest other pass to his anchorage is

    13 miles away which, at normal running time, takes between 45 to 60 minutes. Stump Pass is only 3 miles, or 15 minutes, from his anchorage. He has experienced trouble with the channel, especially when the wind is from the west, and he believes that the proposed channel, with its more east/west orientation, will be safer than the current channel. In his opinion, additional markers in the channel would help, but not much. In order to be safer, the channel would have to be a non-moving channel, and he believes that since the proposed channel will be maintenance dredged, it would qualify as such.

    
    

21. Petitioner, on the other hand, contends that the channel is safe and is used by numerous boaters safely on a regular basis. The current depth of the channel at the throat of the pass is between 13 to 15 feet at mean low tide. At waypoint 2, in the outer channel, it is 9 to 10 feet, and at waypoint 4, at the southern end of the outer channel, it is 7 feet at mean low tide. The normal tide range at Stump Pass is 1.5 feet, with the exception that during winter and summer, the tides may be as much as 3.5 feet. Petitioner urges, and it is found, that the current channel at Stump Pass has been, since 1985, safely navigated by loaded commercial fishing boats as large as 39 feet in length and which draw in excess of 5 feet of water. Many of these commercial fishermen use the pass at night and in periods of low visibility, though Captain Collette may choose not to. If a boater can read the seas and the breaker bar, Captain Davids, testifying on behalf of the Petitioner, contends that local knowledge of the pass is not necessary. Unfortunately, however, many recreational boaters who make up by far the greatest percentage of users of the pass, may not have the requisite skills to the degree Captain Davids does. Nonetheless, under most conditions, Stump Pass can be safely navigated by recreational boaters who use common sense and who traverse it in a careful, cautions manner.

    
    

22. Mr. Atwater, President of the Lemon Bay Conservancy, and himself an experienced boater, opined that the average recreational boater who uses the pass as access to the Gulf has a boat equipped with a compass, depth sounder,

    VHF radio, and LORAN radio signal navigation device. This may be a more optimistic than factual appraisal of the average boater's equipment, however. In sum, and considering the evidence, it is found that as it currently exists, Stump Pass is less than optimum in its navigability to many average boat owners a good portion of the time, but there has been no evidence presented to conclusively establish that it constitutes a serious safety hazard to the average recreational boater who utilizes common sense in traversing it.

    
    

23. The County's application, along with the supporting information accompanying it, was received initially by the Department in December, 1986. It was an application for a maintenance dredging of Stump Pass back to its 1980 condition, and the Department views the project as primarily a maintenance dredging of the outer channel through the ebb tidal shoal.

    
    

24. The application was assessed by the Department staff, along with engineering information submitted, and the Department then prepared an agenda item for the Governor and Cabinet recommending approval with special permit conditions. These include, among other things: the standard conditions required for approval of developments seaward of the coastal construction line; the submittal of plans and surveys for the project prior to the start of work; written authority for subsequent maintenance dredging prior to their accomplishment and the placing of future spoil; no additional maintenance dredging without the approval of the Governor and Cabinet of a management plan, (the purpose for this is to allow the Department to monitor the performance and evaluate and provide for mitigation of adverse impacts); the submittal of a sea turtle protection plan before issuance of a notice to proceed, (the subject plan has been received and approved); review of the permit at the five year point; and a proper placement of the spoil. A majority of those conditions have been treated in the findings previously made.

    
    

25. The standards used to review the application are found in the provisions of Chapter 161.041, Florida Statutes, and Rule 16B-24, F.A.C.. In its analyses, the Department considered those factors required by the statute and as to the engineering, found it to be adequate. As to the design and effect on the inlet and adjacent beaches, those factors were found to justify approval of the project. Design features were found to be acceptable, and any adverse impact potential to the beach and dunes system were found to be minimal to the point there was none anticipated. Taken together, the Department concluded that the project was consistent with the requirements of both the statute and the rule.

    
    

26. On cross examination, Mr. Leadon, the Department's expert, admitted that the proposed channel has the potential to, and a likelihood of, migrating to the south. Department policy is to let natural passes and systems take their natural course. However, this inlet has moved to the point where, in the Department's opinion, it is creating erosional stress to Knight Island. Should the pass continue to move in its current direction, it might create additional erosion of that island. The inlet has been left to take its course since its last dredging in 1980. As a result, it is much like a natural channel at this time, but for the purposes of this application, the Department considers the proposal to be a maintenance dredging of a previously dredged channel, though there has been no other maintenance dredging since 1980. Usually, a maintained channel is dredged every 2 to 3 years, but while the outer channel has migrated, the throat, which was dredged in 1980, has maintained the width and depth of that dredging. This position is found to be reasonable and sustainable.

    CONCLUSIONS OF LAW

    
    

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

    
    

28. In this case, the Petitioner objects to the granting by the Department of a permit to Charlotte County to engage in maintenance dredging of Stump Pass. The criteria for evaluation and approval decision on such a project is found in Section 161.041, Florida Statutes.

    
    

29. In any permitting action, the applicant has the burden to prove entitlement to the permit at issue. Once the applicant has established, by prima facie evidence, a showing of his entitlement to the permit, the burden then shifts to the objecting party to show why the project should not be permitted.

    
    

30. At Section 161.142, Florida Statutes, the public policy relating to improved navigation inlets is stated and notes, in pertinent part:

    
    

    The Legislature hereby recognizes the need for maintaining navigation inlets to promote commercial and recreational uses of our coastal waters and their resources. The Legislature further recognizes that inlets alter the natural drifty of beach-quality sand resources, which often results in these sand resources being deposited around shallow outer-bar areas instead of providing natural nourishment to the downdrift beaches. Therefore:

    All construction and maintenance dredging of

    beach-quality sand should be placed on the downdrift beaches; or, if placed elsewhere, an equivalent

    quality and quantity of sand from an alternate location should be placed on the downdrift beaches.

    (2) On an average annual basis, a quantity of sand should be placed on the downdrift beaches equal to the natural net annual longshore sediment transport.

    
    

31. Consistent therewith, the procedure for approval of projects is set out in Section 161.161, Florida Statutes, where a beach management plan is called for which shall, inter alia:

    
    

    (1)(b) Evaluate each improved coastal beach inlet

    and determine whether the inlet is a significant cause of beach erosion. With respect to each inlet determined to be a significant cause of beach

    erosion, the plan must include:

    1. The extent to which such inlet causes beach erosion and recommendations the erosive impact of the inlet, including, but not limited to, recommendations

       regarding inlet sediment bypassing, ... , and disposal of spoil material; ...; and beach restoration and beach renourishment; ...

       * * *

       (e) Identify causes of shoreline erosion and change, ...

       * * *

       (g) Identify short-term and long-term economic

       costs and benefits of beaches, including recreational value to user groups, tax base, revenue generated, and beach acquisition and maintenance costs.

       * * *

       (i) Identify areas used by marine turtles and develop strategies for protection of the turtles and their nests and nesting locations.

       
       

32. In fulfilling that function, the legislature provided for the consideration of and balancing of certain criteria, as set forth in Section 161.161(2), Florida Statutes, which include those elements contained in subparagraphs (a) through (k) encompassing such matters as the estimated demand that would be served by the area; the extent of existing and threatened damage due to erosion; the potential need for future renoursihment; the total anticipated costs of the project; the degree of public access to the beach; the extent of public support for the project; and the anticipated impact of the project on natural resources, including turtle nesting.

    
    

33. In general, with some exceptions, the applicant has satisfied the criteria set forth by statute. The stated primary purposes of the project in issue here include the renourishment of the badly eroding beach south of the pass and the improvement of navigation through the channel. Section 161.041 of the statute provides, in pertinent part, for a permit from the Department for the:

    
    

    ... excavation or maintenance dredging of inlet channels, or other deposition or removal of beach material

    
    

34. It also provides:

    
    

    No such development shall interfere, except during construction, with the use by the public of any area of a beach Except

    for deepwater ports ..., the department shall not issue any permit for the ...

    excavation or maintenance of such an [coastal] inlet if the activity authorized by the

    permit will have a significant adverse impact on the sandy beaches of this state without a mitigation program approved by the department.

    
    

35. The evidence satisfies this requirement for public access.

    
    

36. At subparagraph (2), the statute calls for the submittal, in support of the permit application, of:

    
    

    (a) Adequate engineering data concerning inlet and and shoreline stability ...

    * * *

    (c) Potential impacts of the location of such structures or activities, including potential cumulative effects ... upon such coastal inlet, which, in the opinion of the department, clearly justifies such a permit.

37. Petitioner asserts that the Respondents failed to present adequate engineering data to demonstrate that the proposed channel location is more stable than the current channel location or other alternative as are required to be considered by the statute.

    
    

38. To the contrary, the evidence presented by Dr. Stephen shows that the inlet stability, as measured by lateral, cross sectional and hydraulic parameters, is best classified as stable. The inlet has been in much the same location since 1925. In addition, the throat of the pass has remained stable and relatively free of sedimentation, and it is only that portion of the channel which extends out into the Gulf, the area where the maintenance dredging is to take place, that has moved to any significant degree. Even so, examination of the aerial photographs shows that former channel is still observable. In sum, then, it is clear that the proposed channel, as maintained, would be more stable than the existing channel which continues its migration.

    
    

39. Petitioners also assert that Respondents failed to provide evidence sufficient to carry their burden of proof concerning shoreline stability. Again to the contrary, the evidence introduced by the County reflects that the erosion currently taking place is the result of the migration of the channel to the south, and if the historic channel is restored and maintained, the deposit of spoil on the shoreline as a result thereof will not be eroded and, in fact, there is the likelihood of some accretion.

    
    

40. Petitioners also claim that since administrative agencies have no inherent rulemaking authority, the Department should not consider navigational safety or capacity of the inlet when reviewing a coastal construction permit such as here. Section 161.142 of the statute clearly states that public policy relating to the maintenance of this type of inlet calls for a need to maintain navigation inlets to promote commercial and recreational use of coastal waters and resources. In this case, the evidence clearly supports the proposition that while the current channel is navigable, the clearing of the previously dredged east/west channel would be a significant enhancement to the navigational opportunities afforded commercial fishermen and recreational boaters who use the inlet. As to the concern for the sea turtle population, the evidence shows that these concerns have been met as well.

    
    

41. The Department's experts have thoroughly analyzed the County's application and have concluded that the criteria set forth by statute have been satisfied. With regard to policy considerations and the submittal of an inlet management plan, it is clear that the Department has required the County to provide this plan, including detailed monitoring data, as a condition of the proposed permit. It has allowed a subsequent submittal of the required plan and has recognized the general policy, which requires a pre-approval submittal but has nonetheless determined that in this case an exception was appropriate. It based this determination on the fact that the application here predated the development and promulgation of the policy statement requiring the plan, and on a historical precedent in another case which allowed a post-approval submittal.

    
    

42. Taken together, the evidence clearly establishes that both the statutory and policy criteria for the evaluation of coastal construction permits have been met.

    
    

43. Petitioners appear to have strong objections to the granting of the instant permit but did not elucidate, through the introduction of demonstrative evidence, a basis for their objection. The dispute here appears to be more of a

political than substantive nature and formal hearings under Section 120.57(1), Florida Statutes, are not the forum for the resolution of political disagreements.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that a Final Order be entered granting to Charlotte County a coastal construction permit to maintenance dredge Stump Pass and place the dredged material on the Knight Island shorelines consistent with the conditions imposed thereon by the Department.

RECOMMENDED in Tallahassee, Florida this 14th day of August, 1991.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of August, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0471

The following constituted my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER LEMON BAY CONSERVANCY, INC.

1. & 2. Accepted and incorporated herein.

3. - 5. Accepted and incorporated herein.

1. Rejected as not proven.

2. - 10. Accepted.

1. Accepted.

2. & 13. Accepted.

1. Accepted and incorporated herein.

2. Accepted.

3. Not a Finding of Fact but a comment on the evidence.

4. Not a proper Finding of Fact.

5. Rejected.

6. Accepted.

7. Not a proper Finding of Fact.

8. Accepted.

9. First sentence accepted. Balance not a Finding of Fact but a Conclusion of Law.

10. Accepted.

11. Accepted in part and rejected in part. The shoreline described has moved little during the time described, but as the channel moved south in later years, the shoreline to the south on Knight Island has eroded.

12. & 27. Accepted as comment on the evidence.

1. Not a Finding of Fact but a Conclusion of Law.

2. Accepted.

3. Not a Finding of Fact but a Conclusion of Law.

4. Not a Finding of Fact but a Conclusion of Law.

5. Not a Finding of Fact but argument.

6. & 34. Not a Finding of Fact but a comment on the sufficiency of the evidence.

1. Accepted.

2. Accepted.

3. - 40. Accepted and incorporated herein.

41. - 43. Accepted and incorporated herein.

44. - 46. Accepted.

1. Rejected as not supported by the evidence or record.

2. Not a Finding of Fact but speculation.

3. Accepted.

4. - 53. Accepted.

54. & 55. Accepted.

1. Not a Finding of Fact but legal argument.

2. & 58. Accepted.

1. Legal Argument.

2. & 61. Irrelevant legal argument.

1. Rejected.

2. Not a Finding of Fact but a Conclusion of Law.

3. Irrelevant and exhibit not admitted.

FOR THE RESPONDENT, CHARLOTTE COUNTY

1 - 3. Accepted and incorporated herein.

4. - 6. Accepted and incorporated herein.

7. & 8. Accepted.

9. & 10. Accepted and incorporated herein,

11. & 12. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. Accepted.

4. Accepted.

5. Accepted and incorporated herein.

6. Accepted and incorporated herein.

7. - 22. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. & 25. Accepted.

1. Accepted.

2. No such proposed Finding of Fact.

3. & 29. Accepted.

1. Accepted.

2. Accepted.

FOR RESPONDENT, DEPARTMENT OF NATURAL RESOURCES

1. & 2. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted.

3. & 6. Accepted and incorporated herein.

7. & 8. More a citation of authority that a Finding of Fact, but accepted.

1. Accepted.

2. & 11. Accepted and incorporated herein.

14. & 15. Accepted.

16. - 20. Accepted and incorporated herein in substance.

1. Not a Finding of Fact but a comment on evidence and background.

2. Accepted.

3. & 24. Accepted.

25. & 26. Accepted and incorporated herein.

27. - 29. Accepted.

30. & 31. Accepted but not controlling.

COPIES FURNISHED:

Thomas W. Reese, Esquire

123 Eighth Street North

St. Petersburg, Florida 33701

Dana M. Wiehle, Esquire Department of Natural Resources 3900 Commonwealth Blvd.

Mail Station 35

Tallahassee, Florida 32399

Philip E. Perry, Esquire Patricia A. Petruff, Esquire Dye & Scott, P.A.

P.O. Drawer 9480 Bradenton, Florida 34206

Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Blvd.

Mail Station 10

Tallahassee, Florida 32399-3000

Ken Plante General Counsel DNR

3900 Commonwealth Blvd.

Mail Station 10

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000471

Orders for Case No: 91-000471