STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT B. CHANDLER, )

)

)

Petitioner, )

)

vs. ) CASE NO. 91-7224

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on February 25, 1992, in Port Charlotte, Florida.

APPEARANCES

For Petitioner: Robert B. Chandler, Pro se

410 E. DeSoto Drive

Harbour Heights, Florida 33983

For Respondent: Francine M. Ffolkes, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

Whether Petitioner's application for a permit to remove existing earthen plugs between Coral Creek and two man-made canals is exempt from the permitting requirements of Chapter 403, Florida Statutes.

PRELIMINARY STATEMENT

On or about September 23, 1990, the Petitioner, Robert B. Chandler, requested the Respondent, State of Florida, Department of Environmental Regulation (Department) to exempt from permitting requirements what Chandler considered maintenance dredging of two man-made canals located in the Placida Point Subdivision, Charlotte County, Florida. This request was verbally denied, but the Department advised Chandler that a written application for permit and exemption could be filed. Chandler filed a written application with the Department on or about October 10, 1990. A Notice Of Permit Denial was served on Chandler by mailing on January 4, 1991, which determined that the proposed dredging was not exempt from the permitting requirement and that the application for permit was denied. This notice advised Chandler of the availability of the

hearing process under Chapter 120, Florida Statutes. However, Chandler requested specific reason why the Department did not consider this dredging exempt. By letter of January 7, 1991, the Department advised Chandler that "the proposed work indicates that it is not for maintenance purposes and therefore it does not fit the maintenance exemption". By letter dated September 5, 1991, Chandler requested a formal hearing, and this proceeding ensued.

At the hearing, Chandler testified in his own behalf, but presented no other witnesses. Petitioner's Exhibits 1, 9-19 and 22 were received as evidence without objection. Petitioner's Exhibits 2-8 were received into evidence over the objection of the Department with the understanding that unless the issue of water classification was determined to be relevant in this proceeding these exhibits would not be considered. Petitioner's Exhibits 20 and 21 were received into evidence over the hearsay objection by the Department with the understanding that these exhibits could be used only to supplement or explain other evidence.

The Department presented the testimony of John Fellows. The Department's Exhibits 1 and 2 were received as evidence in this case.

Chapters 120 and 403, Florida Statutes, and Chapter 17-312, Florida Administrative Code, were Officially Recognized.

At the close of the hearing, the parties were given fifteen days from the mailing of the transcript to the Division of Administrative Hearings to file their Proposed Findings of Fact and Conclusions of Law. However, the original transcript was inadvertently mailed to Chandler. This error was not discovered until Chandler filed his Proposed Findings of Fact and Conclusions of Law with the Division of Administrative Hearings. As a result, the Department requested and extension of time for filing its Proposed Findings of Fact and Conclusions of Law which was granted. The parties timely filed their Proposed Findings of Fact and Conclusions of Law under the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made.

1. Chandler sought exemption from permitting requirement from the Department to perform certain dredging in two artificial dead-end canals located in Placida Point Subdivision (formerly Porto-Fino Subdivision), Charlotte County, Florida.

   
   

2. The Department has denied the exemption on the basis that "the proposed work indicates that it is not for maintenance purposes, and therefore, it does not fit the maintenance exemption".

   
   

3. The dredging proposed by Chandler would remove the existing earthen plugs between Coral Creek (an adjacent creek) and the two canals. Coral Creek is a natural body of water and is waters of the State.

   
   

4. The two canals were excavated (constructed) during the latter part of 1969 and early 1970 (before April 1970).

5. Although no original design specifications were offered into evidence, there is sufficient competent evidence to show that at the time the canals were constructed earthen plugs were left between the canals and Coral Creek which restricted the water exchange between the canals and Coral Creek. The exchange of water apparently occurred at mean high water, and navigation, if any, was restricted to small boats.

   
   

6. Porto-Fino Realty Co., Inc., (Porto-Fino) developed the Porto-Fino Subdivision in 1971, and in early 1971 applied to the Board of Trustees of the Internal Improvement Trust Fund (Board) for a dredge permit to connect the certain existing canals, which included the canals in question, to Coral Creek.

   
   

7. As part of the application review, a site inspection was made, and it was found that the earthen plugs left between Coral Creek and the canals when they were constructed allowed water to ebb and flow during periods of high tide.

   
   

8. As a result of this site inspection, it was recommended that before any further consideration be given the permit application, that the applicant be advised that the canals had to be adequately diked.

   
   

9. The record is not clear on whether this permit was granted, but apparently it was not because this subject was raised again in 1974 with Lou Fusz Motor Company, the present owner of Porto-Fino Subdivision, by the Board and the Department of Army, Corps of Engineers (Corps). Apparently, it was determined by the Board, and possibly by the Corps, that the plugs had washed out and needed to be repaired.

   
   

10. In 1975, at the request of the Board, the earthen plugs were repaired and culverts placed in the plugs to allow flushing of the canals.

    
    

11. The earthen plugs are presently in existence in the mouth of the canals, and are colonized by mangroves, Brazilian pepper and Australian pine.

    
    

12. The mangroves are mature trees 10-15 feet in height, and approximately 10-15 years old.

    
    

13. The plugs do not show any signs of any recent dredging in or around the mouths of the canals.

    
    

14. The plugs form a barrier to navigation between the canals and Coral Creek. The canals have not been used for navigational access to Coral Creek since they were repaired in 1975.

    
    

15. The canals have not been previously dredged to maintain navigational access for boat traffic to Coral Creek, and are not presently used for navigational access to Coral Creek.

    
    

16. There is sufficient competent substantial evidence to establish facts to show that the earthen plugs, as they presently exist, are man-made barriers that separated the two canals from Coral Creek.

    
    

17. There is insufficient evidence to show that the repair of the earthen plugs in 1975 by the developer was illegal.

    
    

18. The repair of the earthen plugs in 1975 by the developer was necessary because the original plugs had not been properly constructed or had washed out over the period of years.

19. Coral Creek and the canals in question are surface waters of the state as defined in Rule 17-312.030(2), Florida Administrative Code.

    
    

20. Canals which are used for navigation have to be periodically dredged to maintain navigational access.

    
    

21. There is sufficient competent substantial evidence to establish facts to show that the dredging proposed by Chandler would not be "maintenance dredging" as contemplated by Rule 17-312.050(1)(e), Florida Administrative Code.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

23. Dredging in, on, or over the surface waters of the state requires a permit from the Department unless specifically exempted by statute or Department rule. Section 403.913(1), Florida Statutes, and Rule 17-312.030(1), Florida Administrative Code. Therefore, the canals and Coral Creek being surface waters of the state, any dredging such as requested by Chandler would require a permit unless specifically exempt by statute or Department rule.

    
    

24. Rule 17.312.050(1)(e), Florida Administrative Code, grants an exemption for maintenance dredging of existing canals (all canals constructed before April 3, 1970 and to those canals constructed after April 3, 1970, pursuant to all necessary state permits) under certain conditions. However, this rule specifically provides that the exemption does not apply to the removal of a natural or man-made barrier separating a canal or canal system from adjacent waters of the state.

    
    

25. Chandler contends that the repair of the earthen plugs in 1975 by the developer was illegal. Therefore, the dredging of the plugs would be maintenance dredging because it would be restoring the canals to their original design specifications as provided for under Rule 17-312.050(1)(e), Florida Administrative Code, and exempt from the permitting requirements. However, Chandler has failed to show that the repair of the earthen plugs in 1975 was illegal.

    
    

26. The proposed dredging by Chandler is neither "maintenance dredging" nor can it be considered dredging to restore the canals to their original design specifications. See: Church of Latter-Day Saints v. St. Johns River Water Management District, 489 So. 2d 59, (5 DCA Fla. 1986).

    
    

27. Chandler has the burden of establishing by a preponderance of the evidence facts necessary to show that he is entitled to the requested exemption. Florida Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (1 DCA Fla. 1981); Rule 17-103.130(1), Florida Administrative Code. Chandler has failed to sustain his burden in this regard.

RECOMENDATION

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

RECOMMENDED that the Department enter a Final Order denying Chandler the exemption requested for dredging the earthen plugs between Coral Creek and the two canals in question.

DONE and ENTERED this 2nd day of June, 1992, in Tallahassee, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of June, 1992.

APPENDIX TO RECOMMENDED ORDER

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

Rulings on Proposed Findings of Fact Submitted by the Petitioner

Because of the mix-up with the transcript the Petitioner submitted an addendum to his initial Proposed Findings of Fact. In my response the Proposed Findings of Fact will be referred to as A-1, etc.

1. Adopted in substance as modified in Finding of Fact 4.

   
   

   A-1. Adopted in substance as modified in Finding of Fact 4.

   
   

   2.-4 Rejected as not being supported by substantial competent evidence in the record.

   
   

   A-2. Rejected as not being supported by substantial competent evidence in the record.

   
   

   A-3. The first two sentences are adopted in substance as modified in Finding of Fact 6. The balance is rejected as not being supported by competent substantial evidence in the record. But see Finding of Fact 5.

   
   

   A-4. Adopted in substance as modified in Finding of Fact 1, otherwise neither material nor relevant.

   
   

   5.-6. Neither material nor relevant.

   
   

   A-5. Adopted in substance as modified in Finding of Fact 7.

   
   

   A-6. Rejected as not being supported by competent substantial evidence in the record. But see Finding of Fact 10.

   7.. Rejected as not being supported by competent substantial evidence in the record.

   
   

   A-7. Rejected as not being supported by competent substantial evidence in the record. But see Findings of Fact 5 and 10.

   
   

   8.-10. Not Findings of Fact but more of an argument.

   
   

   A-8. Neither material not relevant. But see Finding of Fact 2.

   
   

   A-9. Rejected as not being supported by competent substantial evidence in the record.

   
   

   Rulings on Proposed Findings of Fact Submitted by the Respondent

   
   

   1. Each of the following Proposed Findings of Fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which adopts the Proposed Finding of fact: 1(2); 2(1); 3-4(2); 5-6(3); 7(1); 8(4); 9(5); 10-11(6); 12(9); 13-14(10); 15(11); 16- 17(1^0);18(11); 19(12); 20(13); 21-22(14); 23-24(15) and 25(20).

COPIES FURNISHED:

Robert B. Chandler,

410 E. DeSoto Drive Harbour Heights, FL 33983

Francine M. Ffolkes, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Carol Browner, Secretary

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, Esquire General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

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: 91-007224

Orders for Case No: 91-007224