STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
HENRY ROSS,
Petitioner,
vs.
CITY OF TARPON SPRINGS AND DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondents.
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) Case No. 00-2100
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RECOMMENDED ORDER FOLLOWING REMAND
Pursuant to the Second Order of Remand filed on
November 24, 2003, this matter was submitted to the Division of Administrative Hearings and its duly-designated Administrative Law Judge, Carolyn S. Holifield, on the record in this case without further evidentiary hearing.
APPEARANCES
For Petitioner: Henry Ross, pro se
1005 South Florida Avenue Tarpon Springs, Florida 34689
For Respondent City of Tarpon Springs:
Thomas J. Trask, Esquire
Frazer, Hubbard, Brandt & Trask, LLP
595 Main Street Dunedin, Florida 34698
For Respondent Department of Environmental Protection:
Doreen Jane Irwin, Esquire
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE
The issue is whether Petitioner should be granted Authorization to Use Sovereignty Submerged Lands to conduct proposed dredging activity.
PRELIMINARY STATEMENT
This matter began on or about March 24, 2000, when Respondent, Department of Environmental Protection, issued its Consolidated Notice of Intent to Issue Environmental Resource Permit and Authorization to Use Sovereignty Submerged Lands.
The permit and the authorization allow for the dredging of existing channels in order to improve/maintain navigation for commercial and recreational boaters. The proposed dredging activity is located in and adjacent to the Anclote River, Tarpon Bayou, Kreamer Bayou, Sunset Lagoon, Spring Bayou, Minetta Bayou, Innes Bayou, and Lake Lutea in the Pinellas County Aquatic Preserve.
After a challenge to the proposed agency action was filed by Petitioner, Henry Ross, the final hearing was conducted on April 14 and 15, 2003. In the Recommended Order entered on October 7, 2003, the undersigned recommended that based on the
Findings of Fact and Conclusions of Law therein, the application for an Environmental Resource Permit be issued.
The Department of Environmental Protection issued a Second Order of Remand1/ in this matter on November 20, 2003, which was filed with the Division of Administrative Hearings on
November 24, 2004. The Second Order of Remand was for the limited purpose of the undersigned's making recommended findings of fact and conclusions of law related to Respondent, City of Tarpon Springs', request for Authorization to Use Sovereignty Submerged Lands in the Pinellas County Aquatic Preserve. These findings are necessary because in cases such as this, where the applicant seeks both an Environmental Resource Permit and an Authorization to Use Sovereignty Submerged Lands, the "concurrency permit review" prohibits the issuance of the Environmental Resource Permit unless the applicant demonstrates that the requirements for granting the related Authorization to Use Sovereignty Submerged Lands are also satisfied. See
§ 373.427, Fla. Stat. (2003), and Fla. Admin. Code R. 62-343.075.
On December 9, 2003, the Department filed with the Division the two-volume Transcript (Volumes 1A, 1B and II) of the final hearing and the exhibits received in evidence at that proceeding.
On April 2, 2004, a telephone conference call was held on the Second Order of Remand. Pursuant to an Order issued that same date, the parties were requested to submit on April 12, 2004, proposed findings of fact and proposed conclusions of law, limited to Respondent, City of Tarpon Springs', request to use sovereignty submerged lands in the Pinellas County Aquatic Preserve.
Respondents timely filed a Joint Proposed Recommended Order as it relates to the Second Order of Remand. Petitioner did not file proposed findings of fact and conclusions of law related to the Second Order of Remand. The Joint Proposed Recommended Order and the record in this case have been carefully considered in preparation of this Recommended Order Following Remand.
FINDINGS OF FACT
Based on the entire record in this case, the Transcript of the proceeding, and the documentary evidence received at hearing, the following findings are made.2/
Respondent, Department of Environmental Protection ("Department"), is charged with the responsibility to regulate activities in, on, or over surface waters and wetlands of the State of Florida pursuant to Chapter 373, Florida Statutes (2003), and the rules promulgated thereunder.
The Department, as the delegated staff of the Board of Trustees of the Internal Improvement Trust Fund ("Board"), is
empowered to grant requests for Authorization to Use Sovereignty Submerged Lands, which are considered "proprietary authorizations," and are so designated for purposes of this Recommended Order Following Remand. See Chaps. 253 and 258, Fla. Stat. (2003), and Fla. Admin. Code Chaps. 18-20 and 18-21.
The Department is responsible for reviewing and taking final agency action on all Environmental Resource Permit ("regulatory permit") applications for projects constructed, operated, or maintained by the Southwest Florida Water Management District pursuant to the operating agreement concerning regulation under Part IV, Chapter 373, Florida Statutes (2003), and Aquiculture General Permits under Section 403.814, Florida Statutes (2003), between Southwest Florida Water Management District and the Department.
Respondent, City of Tarpon Springs ("City" or "Tarpon Springs"), applied for a regulatory permit and a proprietary authorization for a dredging project. The regulatory permit and proprietary authorization forms are part of a linked process, which requires that one action be taken by the Department with regard to both the regulatory permit and the proprietary authorization. In practical terms, the Department cannot approve one and deny the other.
Tarpon Springs is located in Pinellas County, Florida, and by rule, all sovereignty submerged lands in that county are
in an area designated as an aquatic preserve and are considered Outstanding Florida Waters.
An aquatic preserve is designated as an area that needs special protection and has special habitat values or a certain uniqueness that requires it to have a special level of protection more than certain other bodies of water. See Fla. Admin. Code R. 18-20.003(43).
The purpose of the City's dredging project is to create a maintenance level of water depth at mean low water to create safe navigation for both commercial and recreational boaters through the bayous and tributaries.
The dredging project consists of 11 different areas within Tarpon Springs, all of which are sovereignty submerged lands.
As a result of a request by the Department, Tarpon Springs modified its application, and it is the modified application which is at issue in this proceeding.
The application, as modified, establishes the width and length of channels and the location of the proposed dredging in accordance with field measurements. As proposed, these are safe navigational widths.
The Department has different requirements for using sovereignty submerged lands depending on whether a project is new dredging or maintenance dredging.3/ In instances where there
is going to be new dredging, it is the Department's practice to require a public easement that clearly defines the area which is proposed to be dredged. In projects that are determined to involve maintenance dredging, the Department requires that the entity carrying out the dredging project obtain consent to use state lands.
The City's proposed project is a dredging project for the maintenance of an existing navigational channel, with the exception of Area 6, which is the area east of the Anclote River Bridge on the Anclote River.
The Department properly determined that Area 6 involved new dredging. Therefore, in order for the City to dredge the sovereignty submerged lands in Area 6, it would have to obtain a public easement in order to undertake new dredging.
With regard to the areas other than Area 6, the Department properly determined that those areas, which the City proposes to dredge, involve maintenance dredging. The Department's determination is based on the fact that these areas were existing and functional navigational channels.
Accordingly, in order for the maintenance dredging in these areas to proceed, Tarpon Springs must obtain from the Department consent to use state sovereignty submerged lands.
As part of the City's joint application process, the City's consultant, Blastand, Bouck and Lee, Inc., and its
subcontractor conducted environmental impact studies. The studies conducted as part of the application process included a bathymetric survey and chemical analysis. The results of these completed studies were attached to the joint application.
The bathymetric survey maps the bottom of the areas to be dredged to determine the depths of those areas relative to the channels, and then to determine the material that has to be removed to obtain the proper clearance for navigation.
The chemical analysis was performed on the materials that would be removed from the area to determine the impact, if any, in areas to be dredged and to identify the proper disposal of the material. Based on the chemical analysis, there are no environmental impacts to the areas to be dredged.
During the dredging process, the water quality will be maintained by using double-silt barriers to contain the materials that would come into suspension. The use of the double-silt barriers allows these materials to settle back down into the area that is being dredged and not impact the adjacent bodies of water.
In conjunction with the proposed dredging project, Pinellas County required the City to complete two submerged aquatic vegetation surveys to determine if there was sea grass located within the area proposed to be dredged, Area 6. The results of these surveys were that no sea grass was observed in
that area. However, as noted above, any dredging of Area 6 is considered new dredging, and prior to undertaking such activity, the City would have to obtain a public easement.
The Florida Fish and Wildlife Commission ("Commission") properly determined that the areas to be dredged pursuant to the application, as modified, are limited to those considered maintenance dredging. With regard to sea grass, the Commission also appropriately determined that the maintenance dredging project, as proposed, will adequately avoid sea grass. Finally, the Commission properly determined that the proposed dredging activity will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitats.
The Commission believes that the conditions placed on the City as a condition for issuance of the regulatory permit will adequately offset any impacts to manatees.
The Save the Manatee Club ("STMC") always opposes dredging projects, like the one which is the subject of this proceeding. However, STMC recommended that the City implement certain measures as a condition of the regulatory permit being issued.
Should the regulatory permit be issued, the City will be required to implement the standard construction conditions or controls required by the Department to protect the manatee.
Based on a thorough review of the application and the proposed dredging area, the Department properly determined that the proposed maintenance dredging activity will not be harmful to the water resources in the area and the water quality standards will not be violated. The notice of intent includes conditions requiring the City to meet state water quality standards during the dredging operation. If the water quality standards are not adhered to, the state has the power to enforce the water quality standards and to shut down the dredging operation.
The City has provided reasonable assurances that the proposed activity, considering the direct, secondary, and cumulative impacts, is in the public interest.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2003).
The City seeks to obtain regulatory permits4/ and proprietary authorizations to carry out dredging projects in the bayous in Pinellas County, Florida, which have been designated as an aquatic preserve and Outstanding Florida Waters.
The title to lands under navigable waters in the State of Florida, such as those which are relevant in this proceeding,
is held by the state in trust for all the people. Art. X, § 11, Fla. Const., and § 253.12(1), Fla. Stat. (2003). The sale of such lands may be authorized by law, but only when in the public interest; and private use of such lands may be authorized by law only when not contrary to the public interest.
The Board comprised of the Governor and Cabinet, is vested and charged with responsibilities related to the acquisition, administration, management, control, supervision, conservation, protection, and disposition of all state-owned land. See § 253.03(1)(b), Fla. Stat. (2003).
The Board is authorized to delegate these duties to the Department, but any delegation by the Board to the Department to take final agency action on authorizations to use sovereignty submerged state-owned lands must be by rule.5/
§ 253.002(1) and (2), Fla. Stat. (2003).
The Board is authorized to adopt rules to implement the provisions of Chapter 253, Florida Statutes (2003). See
§ 253.03(7)(a), Fla. Stat. (2003).
Pursuant to its rulemaking authority, the Board promulgated Florida Administrative Code Rule Chapter 18-21, entitled "Sovereignty Submerged Lands Management."6/
The scope of Florida Administrative Code Chapter 18-21 is described as follows:
These rules are to implement the administrative and management responsibilities of the board and department regarding sovereign submerged lands. Responsibility for environmental permitting of activities and water quality protection on sovereign and other lands is vested with the Department of Environmental Protection. These rules are considered cumulative. Therefore, a person planning an activity should consult other applicable department rules as well as the rules of the Department of Environmental Protection.
Fla. Admin. Code R. 18-21.002.
Florida Administrative Code Rule 18-21.004 establishes the management policies, standards, and criteria to be used in determining whether to approve, approve with conditions or modifications, or deny requests for activities on sovereignty submerged lands and provides, in pertinent part, the following:
General Proprietary
For approval, all activities on sovereignty lands must be not contrary to the public interest, except for sales which must be in the public interest.
All leases, easements, deeds or other forms of approval for sovereignty land activities shall contain such terms, conditions, or restrictions as deemed necessary to protect and manage sovereignty lands.
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Resource Management
(a) All sovereignty lands shall be considered single use lands and shall be managed primarily for the maintenance of
essentially natural conditions, propagation of fish and wildlife, and traditional recreational uses such as fishing, boating, and swimming. Compatible secondary purposes and uses which will not detract from or interfere with the primary purpose may be allowed.
* * *
The Department of Environmental Protection biological assessments and reports by other agencies with related statutory, management, or regulatory authority may be considered in evaluating specific requests to use sovereignty lands. Any such reports sent to the department in a timely manner shall be considered.
Activities shall be designed to minimize or eliminate any cutting, removal, or destruction of wetland vegetation (as listed in Rule 17-4.020(17), Florida Administrative Code) on sovereignty lands.
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(g) Severance of materials from sovereignty lands shall be approved only if the proposed dredging is the minimum amount necessary to accomplish the stated purpose and is designed to minimize the need for maintenance dredging.
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(i) Activities on sovereignty lands shall be designed to minimize or eliminate adverse impacts on fish and wildlife habitat. Special attention and consideration shall be given to endangered and threatened species habitat.
Public interest is defined in Florida Administrative Code Rule 18-21.003(40), as follows:
(40) "Public interest" means demonstrable environmental, social, and economic benefits which would accrue to the public at large as a result of a proposed action, and which would clearly exceed all demonstrable environmental, social, and economic costs of the proposed action. In determining the public interest in a request for use, sale, lease, or transfer of interest in sovereignty lands or severance of materials from sovereignty lands, the board shall consider the ultimate project and purpose to be served by said use, sale, lease, or transfer of lands or materials.
The City's proposed maintenance dredging project is consistent with criteria set forth in the Florida Administrative Code Rule 18-21.004. The evidence established that the proposed maintenance dredging activity is not contrary to the public interests, but is clearly in the public interest. That public interest is to provide safe navigation for commercial and recreational boaters who use the area or channels. Moreover, the evidence established that the regulatory permit, which is associated with this project, contains conditions which will not detract from or interfere with the primary purpose (navigation and fishing) of the affected sovereignty lands. The evidence also established that the Department properly used biological assessments and reports of other agencies with related statutory, management, or regulatory authority in determining that the proposed maintenance dredging was designed to minimize or eliminate the adverse impact on fish and wildlife habitat,
including endangered or threatened species or their habitats. Finally, the evidence established that the severance of materials from the sovereignty lands, as required for the dredging project, is the minimum amount necessary to maintain the existing navigational channels.
The sovereignty submerged lands included in the boundaries of Pinellas County have been declared by the Legislature to be an aquatic preserve. See Chapter 72-663, Laws of Florida, and § 258.39(27), Florida Statutes (2003). An aquatic preserve is "an exceptional area of submerged lands and its associated waters set aside for being maintained essentially in its natural or existing condition."7/ See § 258.37(1), Fla. Stat. (2003).
The City's proposed maintenance dredging project will occur on sovereignty submerged lands, which are in an aquatic preserve. Therefore, the activity must be authorized by and meet the elevated requirements in Chapter 258, Part II, Florida Statutes (2003), the Aquatic Preserve Act of 1975 ("Aquatic Reserve Act"),8/ and the applicable rules promulgated thereunder. See Fla. Admin. Code R. 18-20.003(43).
The approval of dredging or filling of submerged lands in aquatic preserves are limited to those activities enumerated in Subsection 258.42(3)(a), Florida Statutes (2003). One activity that the Board may authorize is "maintenance dredging
as may be required for existing navigation channels." See
§ 258.42(3)(a)4., Fla. Stat. (2003).
Pursuant to Subsection 258.43(1), Florida Statutes (2003), the Board is authorized to adopt rules to implement the Aquatic Preserve Act and "to provide regulation of human activity within the preserve in such a manner as not to unreasonably interfere with lawful and traditional public uses of the preserve, such as sport and commercial fishing, boating, and swimming."
Pursuant to its rulemaking authority, the Board adopted Florida Administrative Code Chapter 18-20, which establishes policies that govern the management and use of sovereignty lands within an aquatic preserve.
Florida Administrative Code Rule 18-20.001 provides, in pertinent part, the following:
Intent.
All sovereignty lands within a preserve shall be managed primarily for the maintenance of essentially natural conditions, the propagation of fish and wildlife, and public recreation, including hunting and fishing where deemed appropriate by the Board, and the managing agency.
Aquatic preserves which are described in Part II of Chapter 258, Florida Statutes, were established for the purpose of being preserved in an essentially natural or existing condition so that their aesthetic, biological and scientific values may endure for the enjoyment of future generations.
The preserves shall be administered and managed in accordance with the following goals:
To preserve, protect, and enhance these exceptional areas of sovereignty submerged lands by reasonable regulation of human activity within the preserves through the development and implementation of a comprehensive management program;
To protect and enhance the waters of the preserves so that the public may continue to enjoy the traditional recreational uses of those waters such as swimming, boating, and fishing;
* * *
To encourage the protection, enhancement or restoration of the biological, aesthetic, or scientific values of the preserves, including but not limited to the modification of existing manmade conditions toward their natural condition, and discourage activities which would degrade the aesthetic, biological, or scientific values, or the quality, or utility of a preserve, when reviewing applications, or when developing and implementing management plans for the preserves;
To preserve, promote, and utilize indigenous life forms and habitats, including but not limited to: sponges, soft coral, hard corals, submerged grasses, mangroves, salt water marshes, fresh water marshes, mud flats, estuarine, aquatic, and marine reptiles, game and non-game fish species, estuarine, aquatic and marine invertebrates, estuarine, aquatic and marine mammals, birds, shellfish and mollusks; . . . .
Florida Administrative Code Rule 18-20.004 provides for the management policies, standards, and criteria to be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty lands in aquatic preserves. That rule provides, in pertinent part, the following:
The following management policies, standards and criteria are supplemental to Chapter 18-21, Florida Administrative Code (Sovereignty Submerged Lands Management) and shall be used in determining whether to approve, approve with conditions or modifications, or deny all requests for activities on sovereignty lands in aquatic preserves.
GENERAL PROPRIETARY
(a) In determining whether to approve or deny any request, the Board will evaluate each on a case-by-case basis and weigh any factors relevant under Chapter 253 and/or 258, Florida Statutes. The Board, acting as Trustees for all state-owned lands, reserves the right to approve, modify or reject any proposal.
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A lease, easement or consent of use may be authorized only for the following activities:
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2. maintenance of an existing navigational channel;
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For activities listed in paragraphs 18-20.004(1)(e)1.-10., Florida Administrative Code above, the activity shall be designed so that the structure or structures to be built in, on or over sovereignty lands are limited to structures necessary to conduct water dependent activities. . . .
In evaluating applications for proposed activities within the preserves, the Board is also required to consider the cumulative impacts of the project. Florida Administrative Code Rule 18-20.006 provides the following:
Cumulative Impacts.
In evaluating applications for activities within the preserves or which may impact the preserves, the Board recognizes that, while a particular alteration of the preserve may constitute a minor change, the cumulative effect of numerous such changes often results in major impairments to the resources of the preserve. Therefore, the particular site for which the activity is proposed shall be evaluated with the recognition that the activity may, in conjunction with other activities, adversely affect the preserve which is part of a complete and interrelated system. The impact of a proposed activity shall be considered in light of its cumulative impact on the preserve’s natural system. The evaluation of an activity shall include:
The number and extent of similar human actions within the preserve which have previously affected or are likely to affect the preserve;
The similar activities within the preserve which are currently under
consideration by the department and the water management districts;
Direct and indirect effects upon the preserve and adjacent preserves, if applicable, which may reasonably be expected to result from the activity;
The extent to which the activity is consistent with management plans for the preserve, when developed;
The extent to which the activity is permissible within the preserve in accordance with comprehensive plans adopted by affected local governments, pursuant to Section 163.3161, Florida Statutes, and other applicable plans adopted by local, state, and federal governmental agencies;
The extent to which the loss of beneficial hydrologic and biologic functions would adversely impact the quality or utility of the preserve; and
The extent to which mitigation measures may compensate for adverse impacts.
The evidence established that there would be no cumulative impacts because of the proposed maintenance dredging project.
The Department is authorized to adopt procedural rules requiring concurrent application submittal and establishing a concurrent review procedure for any activity regulated under Part IV, Section 373.427, Florida Statutes (2003), and that requires any approvals for proprietary authorization under Chapter 253 or Chapter 258, Florida Statutes (2003), to use
submerged lands owned by the Board. § 373.427, Fla. Stat. (2003).
Florida Administrative Code Rule 62-343.075 establishes additional requirements and procedures for concurrent review of the related application and provides in pertinent part:
A single application shall be submitted and reviewed for activities that require an individual or standard general environmental resource permit under Part IV of Chapter 373, F.S., and a proprietary authorization under Chapters 253 or 258, F.S., to use sovereign submerged lands.
No application under this section shall be approved until all the requirements of applicable provisions of Part IV of Chapter 373, F.S., and proprietary authorization under Chapters 253 . . ., F.S., and rules adopted thereunder for both the individual or standard general environmental resource permit and the proprietary authorization are met. The approval shall be subject to all permit conditions imposed by such rules.
The ultimate burden of proof is upon the City, as the applicant, to demonstrate by a preponderance of the evidence that it is entitled to a regulatory permit and proprietary authorization. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778, 788 (Fla. 1st DCA 1981).
Once the City has made a prima facie showing that it is entitled to the authorization sought, Petitioner must rebut that prima facie case and support the allegations of his
petition challenging the proposed action. Florida Department of
Transportation v. J.W.C. Co., supra, at 789. Unless Petitioner presents "contrary evidence of equivalent quality" to the evidence presented by the City and the Department, the regulatory permit must be approved. Id. at 789-790.
Petitioner cannot carry the burden of presenting contrary evidence by mere speculation concerning what "might" occur. Chipola Basin Protective Group, Inc. v. Department of
Environmental Regulation, 11 F.A.L.R. 467, 480-81 (DER 1988). Any alleged injury or threat of injury must be both real and immediate; hypothetical or conjectural allegations of injury are not sufficient. Village Park Mobile Home Association v.
Department of Business Regulation, 506 So. 2d 426 (Fla. 1st DCA 1987).
The evidence established that the construction and operation of the activity will not result in violations of the water quality standards set forth in Florida Administrative Code Chapters 62-302, 62-522, and 62-550 and will not degrade the ambient water quality in Outstanding Florida Waters pursuant to Florida Administrative Code Rule 62-4.242.
In addition, the City has provided reasonable assurances that its activities will not adversely impact Outstanding Florida Waters or Class II waters and will not
contribute to boat traffic in a manner that will adversely impact the manatee.
The evidence also demonstrates that the proposed maintenance dredging activity, including consideration of the direct, secondary, and cumulative impacts, is clearly in the public interest pursuant to Subsection 373.414(1)(a), Florida Statutes (2003).
In this case, the City has satisfied its burden and established that the City's proposed maintenance dredging activity, as detailed in the modified application, meets all the requirements of applicable provisions of Part IV of Chapter 373, Florida Statutes (2003); proprietary authorization under Chapters 253 and 258, Florida Statutes (2003); and the rules promulgated thereunder.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the Department of Environmental Protection enter a final order granting the City of Tarpon Springs Authorization to Use Sovereignty Submerged Lands to dredge the 9,153 cubic yards of sediment from a total of 3.16 miles of existing channels in order to improve/maintain navigation for commercial and recreational boaters.
DONE AND ENTERED this 4th day of August, 2004, in Tallahassee, Leon County, Florida.
CAROLYN S. HOLIFIELD
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 2004.
ENDNOTES
1/ The Department first issued an Order of Remand in this case on or about February 6, 2002, after an appellate court decision holding that Petitioner had not received adequate notice of the evidentiary hearing on a discovery matter. See Henry Ross v.
City of Tarpon Springs and the Department of Environmental Protection, Case No. 2D01-114 (Fla. 2d DCA 2001). Pursuant to the First Order of Remand, a hearing on the discovery matter was noticed and conducted. See Order issued on October 11, 2002, in Henry Ross v. City of Tarpon Springs and the Department of Administrative Hearings, Case No. 00-2100.
2/ These findings are supplemental to those made in the Recommended Order in this case issued on October 7, 2003.
3/ "Maintenance dredging" is defined under Florida Administrative Code Rule 18-20.003(30) as "mechanical or other methods used to remove sovereignty submerged land in existing channels where navigation by vessels presently occurs." For the purpose of this rule, requests to dredge previously dredged areas that have regained their former natural characteristics due to lack of use, lack of upkeep, or other factors or requests to change the design specification of previously dredged areas,
shall not be considered as maintenance dredging, but shall be considered new dredging.
4/ The issues relative to the regulatory permit is addressed in the Recommended Order issued in this case on October 7, 2003.
5/ Pursuant to Florida Administrative Code Rule 18-21.0051(2), "[t]he Secretary of the Department of Environmental
Protection . . . [is] delegated the authority to review and take final agency action on applications to use sovereignty submerged lands when the application involves an activity for which that agency has permitting responsibility "
6/ "Sovereignty submerged lands" means those lands, including, but not limited to, tidal lands, islands, sand bars, shallow banks, and lands waterward of the ordinary or mean high water line, beneath navigable fresh water or beneath tidally- influenced waters, to which the State of Florida acquired title on March 3, 1845, by virtue of statehood, and which have not been heretofore conveyed or alienated. For the purposes of this chapter sovereignty submerged lands shall include all submerged lands title to which is held by the Board. . . . See Fla.
Admin. Code R. 18-21.003(55).
7/ Aquatic preserves established under Chapter 258, Florida Statutes (2003), "include only lands or water bottoms owned by the state as set forth in s. 253.03." § 258.40(1), Fla. Stat. (2003).
8/ The Aquatic Preserve Act of 1975 designates aquatic preserves, provides guidelines for maintenance of aquatic preserves, and establishes criteria for the regulation of human activity within aquatic preserves. §§ 258.39 - 258.43, Fla.
Stat. (2003).
COPIES FURNISHED:
Doreen Jane Irwin, Esquire
Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Henry Ross
1005 South Florida Avenue Tarpon Springs, Florida 34689
Thomas J. Trask, Esquire
Frazer, Hubbard, Brandt & Trask, LLP
595 Main Street Dunedin, Florida 34698
Kathy C. Carter, Agency Clerk Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
Teri L. Donaldson, General Counsel Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard
Tallahassee, Florida 32399-3000
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 18, 2004 | Agency Final Order | |
| Aug. 04, 2004 | Recommended Order | The application for authorization to use sovereignty submerged lands for maintenance dredging project should be approved. Application meets all applicable requirements of chapters 373, 253, and 258, Florida Statutes. |
| Mar. 12, 2004 | Other | |
| Dec. 17, 2003 | Other | |
| Nov. 20, 2003 | Remanded from the Agency | |
| Oct. 07, 2003 | Recommended Order | The applicant for the maintenance dredging project provided reasonable assurances that the project is clearly in the public interest and that the project will not degrade the state water quality within the dredging areas. |
