STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT B. TOBER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0159

) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Naples, Florida, on April 12, 1994, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows:

For Petitioner: Miles L. Scofield, Qualified Representative Turrell & Associates, Inc.

3584 Exchange Avenue, Suite B Naples, Florida 33942

For Respondent: Christine C. Stretesky

Assistant General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to a dredge and fill permit in order to construct a boatslip and dredge a small area in a canal in front of the boatslip.

PRELIMINARY STATEMENT

At the hearing, Petitioner called three witnesses and offered into evidence

11 exhibits. Respondent called one witness and offered into evidence three exhibits. The parties jointly offered three exhibits. All exhibits were admitted.

No transcript was ordered. Rulings on timely filed proposed recommended orders are in the appendix.

FINDINGS OF FACT

1. By Joint Application for Works in the Waters of Florida filed June 22, 1994, Petitioner requested a permit to dredge about 500 square feet of uplands for a boatslip and to maintenance dredge 1700-1900 square feet in an adjacent canal, removing 125 cubic yards of material waterward of mean high water. The Application describes the work as including a vertical concrete seawall running

   92 feet inside the boatslip, a cat walk from the boatslip to the canal, and a roof over the boatslip.

   
   

2. A drawing attached to the Application depicts the proposed boatslip at the east end of the Petitioner's lot and with rounded corners to facilitate flushing.

   
   

3. By Notice of Permit Denial executed October 24, 1994, Respondent advised that the permit was denied. The Notice states that water quality in the surrounding canal system is generally poor with low dissolved oxygen (DO) levels. The shoreline vegetation is primarily mangroves, which are tall but not robust. The proposed dredge area consists of a healthy littoral shelf with live oysters and shells.

   
   

4. Based on the foregoing site description, the Notice denies the permit because of impacts to the conservation of fish and wildlife and marine productivity and a degradation of the current condition and relative value of the affected area. The Notice relates all of these factors to the loss of the mangroves and dredging of the adjacent canal bottom. The Notice adds that the project would have an adverse cumulative impact on water quality and public resources if similar projects were constructed.

   
   

5. In the alternative, the Notice suggests that Petitioner eliminate the dredging into the uplands and canal and instead construct a boat shelter in the canal in an area of existing adequate water depth.

   
   

6. By letter dated November 7, 1994, Petitioner challenged the denial. The letter states that Petitioner has maintained an environmentally productive shoreline consisting of mangroves, oysters, and rip rap, rather than concrete

   seawalls, as are found along the shoreline of most of his neighbors. The letter suggests that, if Petitioner followed Respondent's suggestion and built a slip in the canal, Petitioner would be permitted to do maintenance dredging in the artificial canal. The letter concludes that the maintenance dredging and shading of an over- the-water boathouse would have more impact on the environment than dredging uplands and a small access channel to the slip.

   
   

7. Petitioner's residence is located in Aqualane Shores,

   which is an established residential subdivision located between Naples Bay on the east and the Gulf of Mexico on the west. Petitioner's lot is located about two-thirds of the distance down a long, relatively wide artificial canal known as Jamaica Channel. Jamaica Channel intersects Naples Bay to the east of Petitioner's property. Jamaica Channel is a Class III waterbody.

   
   

8. Petitioner owns about 200 feet of shoreline at the corner of Jamaica Channel and a shorter, narrower canal. The entire area is heavily canalized and completely built-out with nearly exclusively single family residences.

   
   

9. Most of the shoreline in the area is bulkheaded with concrete seawalls. Jamaica Channel was dredged in the early 1950s. Early riprap revetment crumbled into the water and in some areas became colonized by oysters, which supply food

   and filter impurities from water. Shoreline owners weary of repairing riprap installed vertical seawalls, thereby destroying the oyster beds and intertidal habitat. But much of the riprap adjacent to unbulkheaded shoreline eventually was stabilized by mangrove roots.

   
   

10. The absence of concrete seawalls along Petitioner's shoreline has permitted a significant colony of oysters to populate the 25-foot littoral shelf running along Petitioner's shoreline. The oysters form a hemisphere, thickest at the middle of Petitioner's shoreline and narrowest at the east and west edges, narrowing to a width of as little as 6-10 feet.

    
    

11. In recent years, Australian pines were removed from Petitioner's shoreline. As a result, mangrove seedlings have successfully occupied much of the shoreline.

    
    

12. The proposed boatslip would be located at the east end of the shoreline where there is a natural gap in the mangroves. As a result, only three mangroves would have to be removed, and a relatively narrow band of oysters would be dredged and, as offered by Petitioner, relocated.

    
    

13. The proposed dredging involves uplands and submerged bottom. As to the uplands, Petitioner intends to create a slope in the slip with the rear one to one and one-half feet shallower than the front, although this slope is not reflected on the Application. The purpose of the slope is to facilitate flushing. Petitioner evidently intends to dredge sufficient material to fill the rear of the slip with two feet of water at mean water and the front of the slip with three feet of water at mean water.

    
    

14. The dredging in Jamaica Channel would involve an 18-20 foot wide path leading to the slip. Beyond the oysters, the bottom is fine sandy substrate with scattered rock. The relocation of oyster-covered rocks might be successful, if there are sufficient areas suitable for colonization that have not already been colonized. However, the dredged areas would not be recolonized due to their depths.

    
    

15. Presently, the Application discloses level dredging down to an elevation of -5 NGVD. Petitioner's intent to slope the boatslip has been discussed above. Although Petitioner did not reveal a similar intent to slope the area dredged in Jamaica Channel, Petitioner's witness, Naples' Natural Resource Manager, testified that he would insist on similar sloping the entire length of the dredged area, so that the deepest area would be most waterward of the boatslip.

    
    

16. If the dredged canal bottom were not sloped, Petitioner proposes removing about 4.25 feet of material about ten feet from shore, about 3.4 feet of material about 22 feet from shore, about 1.8 feet of material about 30 feet from shore, and about 0.5 feet of material about 40 feet from shore.

    
    

17. Petitioner did reveal that the cross-section indicating a dredged depth of -5 feet applies only to the centerline of the dredge site, which would be tapered off to the east and west. The slope of the taper was not disclosed, but it is evident that the affected areas within 20 feet of the shoreline would be dredged at least two feet deeper and, in most areas, three feet deeper.

    
    

18. The deepening of Jamaica Canal in the vicinity of the shoreline would not only eliminate existing oyster habitat, but would also eliminate habitat currently used by small fish.

19. The deepening of Jamaica Channel in the vicinity of the shoreline would also impact water quality in the area. Water quality in Naples Bay and Jamaica Channel is poor and violates water quality standards for DO. Due to poor mixing of freshwater infusions and saltwater, DO levels deteriorate with depth. Where DO levels are probably adequate in the shallows around Petitioner's shoreline, the proposed dredging would likely result in depths at which violations could be expected to occur.

    
    

20. Petitioner offers to install an aerator to introduce oxygen into the water. Ignoring the fact that the aerator was to operate only in the boatslip and not in the remainder of the dredged area, Petitioner did not show the effect on DO levels of this proposal. Even if the aerator had been shown to result in a net improvement in area DO levels, Petitioner also failed to show how the operation of the aerator would be guaranteed to extend indefinitely, or at least until the dredged areas were permitted to regain their pre-dredged depths.

    
    

21. Petitioner argues that he could construct an over-the- water boathouse and maintenance dredge, and the resulting environmental impact would be greater. Several factors militate against this proposed alternative and thus preclude consideration of this alternative against the proposed project. Most significantly, the oysters have occupied the littoral shelf adjacent to Petitioner's shoreline for a period in excess of 20 years. There is considerable doubt as to whether Petitioner would be permitted to maintenance dredge under these and other circumstances.

    
    

22. Respondent argues more persuasively the issue of cumulative impacts. There are about 350 residences in Aqualane Shores, of which only 150 have boatslips similar to that proposed by Petitioner. This raises the prospect of an additional 200 boatslips as a cumulative impact on water and biological resources.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

    
    

24. Petitioner is required to obtain a permit for the proposed project. Rule 62-312.030. But Respondent may not issue the permit unless Petitioner provides "reasonable assurance that state water quality standards . . . will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands ... is not contrary to the public interest." Section 373.414(1).

    
    

25. The affected waters already violate water quality standards for DO. Section 373.414(1)(b) provides, in such cases, that Respondent shall consider mitigation measures "that cause net improvement of the water quality in the receiving body of water for those parameters which do not meet standards." Although sloping bottoms in the boatslip and dredged area would help flush the area, Petitioner did not provide reasonable assurance that these efforts would result in a net improvement of the water quality of Jamaica Channel. Likewise, Petitioner did not provide similar reasonable assurance as to the aeration proposal.

26. The criterion of public interest requires balancing of seven factors set forth in Section 373.414(1)(a). The relevant factors are that the proposed project, which is permanent in nature, would adversely affect the conservation of fish and wildlife and fishing values through net reductions in available habitat and deterioration in DO levels. Also significant is that the affected area is functioning well at present.

    
    

27. Respondent must also consider the cumulative impacts of the proposed project, existing or approved projects, and projects that may be reasonably anticipated. Consideration of likely cumulative impacts, given 200 nearby lots without boatslips, militates against approval of the permit.

    
    

28. Consideration of the alternative of an over-the-water boatslip and maintenance dredging as a factor to be considered in the evaluation of the proposed project is precluded by the failure of Petitioner to demonstrate his likely entitlement to such an alternative.

RECOMMENDATION

It is hereby

RECOMMENDED that the Department of Environmental Protection enter a final order denying the application.

ENTERED on May 26, 1995, in Tallahassee, Florida.

ROBERT E. MEALE

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 on May 26, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-2: adopted or adopted in substance. 3: rejected as irrelevant.

4-5 (first sentence): adopted or adopted in substance.

5 (remainder)-6: rejected as irrelevant. 7: rejected as recitation of evidence. 8: adopted or adopted in substance.

9: rejected as unsupported by the appropriate weight of the evidence. 10: rejected as unsupported by the appropriate weight of the evidence,

irrelevant, and not findings of fact.

11-12 (first sentence): adopted or adopted in substance.

12 (remainder): rejected as recitation of evidence and as unsupported by the appropriate weight of the evidence.

13: rejected as unsupported by the appropriate weight of the evidence.

Rulings on Respondent's Proposed Findings

1-20: adopted or adopted in substance. 21-25: rejected as unnecessary.

26-29: adopted or adopted in substance. 30: rejected as unnecessary.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Miles L. Scofield Qualified Representative Turrell & Associates, Inc.

3584 Exchange Ave., Suite B Naples, FL 33942

Christine C. Stretesky Assistant General Counsel

Department of Environmental Protection 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: 95-000159

Orders for Case No: 95-000159