STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

)

RECOMMENDED ORDER

A formal administrative hearing in this case was held on November 9, 2006, in Jacksonville, Florida, before Bram D. E. Canter, an Administrative Law Judge of the Division of Administrative Hearings (“DOAH”).

APPEARANCES

For Petitioners: Richard L. Maguire, Esquire

Charles F. Mills, III, Esquire Rogers Towers, P.A.

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207-9000 For Respondents Paul Crum, Sr., and Paul Crum, Jr.1

Marcia Parker Tjoflat, Esquire Angela M. Sarabia, Esquire

Pappas, Metcalf, Jenks & Miller, P.A.

245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202-4926

For Respondent Florida Department of Environmental Protection:

Timothy E. Markey, Esquire

Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

The issue in this case is whether Respondents Paul Crum, Sr., and Paul Crum, Jr. (the "Crums"), are entitled to the Noticed General Permit issued by the Department of Environmental Protection ("Department") for the construction of a single- family residential dock and associated structures.

PRELIMINARY STATEMENT

On December 6, 2005, the Department gave notice of its Determination of Qualification for Noticed General Permit

No. 16-253057-002-EG ("the Permit”) to the Crums for a single- family residential dock located at 15696 Shark Road West, Jacksonville, Duval County, Florida. Donna Brooks, Charlie Jones, David Cole, and Patty Cole timely filed petitions for hearing to challenge the proposed agency action, and the Department referred the matters to DOAH. The cases were subsequently consolidated for hearing. Before the final hearing, Petitioner Patty Cole filed a Notice of Voluntary Dismissal.

Petitioners stipulated that all the regulatory and proprietary criteria applicable to the proposed dock were satisfied except with regard to the criteria related to the effect of the proposed dock on navigability in public waters. Petitioners contend that the proposed project will significantly impede navigability by obstructing access to a small tidal creek near the proposed dock.

At the final hearing, the Crums presented the testimony of Ernest Frey, P.E., who was accepted as an expert in civil engineering, with a specialty in environmental engineering and in design and permitting of dredge and fill projects in aquatic preserves; Paul Crum, Sr.; and Randall Armstrong, who was accepted as an expert in navigation and piloting and in marine biology. The Department presented the testimony of James Maher, P.E., Submerged Lands/Environmental Resource Program Administrator for the Department’s Northeast District. Joint Respondent Exhibits 1 through 19 were admitted into evidence without objection. Petitioners presented the testimony of Charlie Jones. Petitioners’ Exhibits 1, 2, 3, 3A1, 3A2, 3B1, 3B2, and 3C were admitted into evidence without objection.

Upon the request of the Crums, and without objection, official recognition was taken of Chapters 253 and 258, Florida Statutes (2005); Florida Administrative Code Rules 18-20, 18-21,

62-113, 62-341, and 62-343.075; as well as the Operating

Agreement Concerning Regulation Under Part IV, Chapter 373, Florida Statutes, and Aquaculture General Permits Under Section 403.814, Florida Statutes. Between St. Johns River Water Management District and Department of Environmental Protection (“Operating Agreement”); and the Nassau River-St. Johns River Marshes and Fort Clinch State Park Aquatic Preserves Management Plan April 1986.

No party ordered a transcript of the hearing. The parties timely filed Proposed Recommended Orders that were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

Background

1. The Crums are the owners of the riparian property located at 15696 Shark Road West, Jacksonville, Florida. The Crum property is adjacent to Pumpkin Hill Creek, which lies within the Nassau River-St. Johns River Marshes Aquatic Preserve. Extending from the Crum property into Pumpkin Hill Creek is an existing wood dock approximately 90 feet long and four feet wide, with a platform near the landward end of the dock.

2. Petitioner Brooks owns the property immediately adjacent to and north of the Crum property. Petitioner Brooks has a dock and boat lift.

3. Petitioner Cole owns the property immediately adjacent to and southeast of the Crum property. The Cole property is located on a salt marsh and has no dock.

4. Petitioner Jones lives approximately 3,200 feet north of the Crum property, on a tributary to Pumpkin Hill Creek. Petitioner Jones has fished Pumpkin Hill Creek and the surrounding waters for over 25 years.

5. Noticed General Permits are a type of environmental resource permit granted by rule for those activities which have been determined to have minimal impacts to water resources. Florida Administrative Code Rule 62-341.427 grants by rule a general permit to construct a single family pier, along with boat lifts and terminal platforms, provided certain specific criteria are met.

6. In August 2005, the Crums applied for a Noticed General Permit to extend their existing dock into deeper water. The Department issued a Notice of Determination of Qualification for Noticed General Permit, but later rescinded the authorization after Petitioner Brooks complained to the Department that the landward end of the existing dock is located only 21 feet from her property boundary and, therefore, did not comply with Florida Administrative Code Rule 18-21.004(3)(d), which requires that a dock be set back a minimum of 25 feet "inside the applicant's riparian rights lines."

7. In November 2005, the Crums re-applied for a Noticed General Permit. Their revised plans called for removal of the existing dock and construction of a new dock extending approximately 255 feet out into Pumpkin Hill Creek. The proposed dock would be located a minimum of 25 feet inside the Crums' riparian rights lines.

8. On December 6, 2005, the Department issued a Notice of Determination of Qualification for a Noticed General Permit for the revised dock, stating that the project satisfied the requirements of Florida Administrative Code Rule 62-341.427, as well as the conditions for authorization to perform activities on state-owned submerged lands set forth in Florida Administrative Code Rule 18-21 and for activities in an aquatic preserve under Florida Administrative Code Rule 18-20.

9. In April 2006, Petitioners filed three petitions for hearing with the Department alleging that the proposed dock significantly impedes navigation by restricting access to a tidal creek and extends more waterward than necessary to access a water depth of (minus) -4 feet at mean low water, which is prohibited for docks in aquatic preserves under Florida Administrative Code Rule 18-20.005(3)(b)3.

10. Petitioners attached to their petitions a copy of a bathymetric survey showing the elevations of the submerged lands in the vicinity of the proposed project. In response to the

    information contained in the survey, the Crums revised their plans to shorten the dock to its currently proposed length of

    186.56 feet. A new Notice of Determination of Qualification for a Notice General Permit was then issued by the Department on October 16, 2006.

11. The final dock project consists of: (a) removal of the existing wood dock; (b) construction of a four-foot wide, 186.56-foot long, single family residential dock consisting of an access pier, a 12-foot by 12-foot terminal platform, and a 14-foot by 20-foot open boat lift with catwalk (the “proposed dock”).

12. The proposed dock will terminate where the water will be four feet deep at mean low water.

    Navigating in and Near the Tidal Creek

    
    

13. To the south of the Crum property is a wide expanse of salt marsh. Within the salt marsh are unnamed tidal creeks. The mouth of one tidal creek that flows to Pumpkin Hill Creek is located approximately 90 feet south of the existing Crum dock. The tidal creek is shallow and is not navigable at or near low tide.

14. Petitioner Jones owns an 18-foot flatboat which he sometimes keeps at his residence and sometimes at Petitioner Brooks' property. The boat draws about one foot of water.

    Petitioner Jones uses this boat to fish in the tidal creek located near the Crum property about ten times every month.

15. No evidence was presented to show that Petitioner Brooks or Petitioner Cole ever navigate in or otherwise use this tidal creek.

16. There are many other tidal creeks located in the marshes associated with Pumpkin Hill Creek. Petitioner Jones boats and fishes in most of them.

17. Petitioner Jones said that, currently, he must wait two hours past low tide for the water depth to be sufficient for him to get into the tidal creek near the Crum property. His usual course to the creek lies just beyond the end of the existing Crum dock. He claims there is a channel there, but no channel is shown on the survey or in any of the parties' photographs. After the proposed dock is constructed, Petitioner Jones' usual course to the tidal will be obstructed. He contends that the new course he would have to take to the tidal creek will take him across shallower areas of Pumpkin Hill Creek so that he will have to wait two more hours (a total of four hours) after low tide to get into the creek. Therefore, Petitioner Jones' alleged injury is the reduction of the hours available to him to navigate in and out of the tidal creek for fishing.

18. The existing Crum dock terminates on a broad mud flat which is exposed at mean low water. However, the bathymetric survey shows the mud flat is at a lower elevation near the end of the dock so water covers this area before it covers the rest of the mud flat. However, the bathymetric survey also shows the elevation of the bottom rising as one moves south from the existing dock. At the mouth of the tidal creek the elevation is

    1.0 feet NGVD (National Geodetic Vertical Datum, an official, surveyed reference point). Because the tidal creek drains into the main body of Pumpkin Hill Creek, a reasonable inference can be made that the bottom elevations in the creek generally become higher (and the water depths decrease) as one moves up the creek toward dry land.

19. Prop scars in the exposed bottom at the end of the existing dock indicate that boats have traveled over this area when the water was so shallow that the engine props were striking the bottom. Prop scarring can cause turbidity and damage to benthic organisms.

20. The bathymetric survey indicates that mean high water in this area of Pumpkin Hill Creek is 3.03 feet NGVD, and the mean low water is -1.78 feet NGVD. The mean tidal fluctuation between mean low water and mean high water is thus 4.81 feet.

21. Randall Armstrong, who was accepted as an expert in navigation and piloting, explained that in this area, where

    there are two daily tides, the water elevation will generally increase by 1/12 of the mean tidal fluctuation in the first hour after mean low water, another 2/12 of the fluctuation in the second, and 3/12 in the third hour. Applying this general rule to the tidal fluctuation here of 4.81 feet results in an estimated 1.2-foot increase in water elevation two hours after low tide and a 2.4-foot increase three hours after low tide.

    Based on the mean low water elevation of -1.78 feet NGVD, the water elevation would usually be about -0.6 foot NGVD two hours after low tide and 0.6 foot NGVD three hours after low tide.

22. Therefore, the tidal creek (with a bottom elevation of

    
    

    1.0 foot NGVD at the mouth) would usually be "dry" two hours after low tide and would usually have less than a foot of water three hours after low tide. That evidence contradicts Petitioner Jones' statement that he now navigates into the tidal creek two hours after low tide. That might occasionally be possible, but the bathymetric survey indicates the creek would usually be too shallow at that time. In fact, the evidence suggests that the tidal creek is only reliably navigable without causing prop scars to the bottom by using boats with very shallow draft and waiting until high tide (or shortly before or after) when the water depth at the mouth of the creek would be about two feet.

23. It was Mr. Armstrong's opinion that the 1.0-foot NGVD elevation at the mouth of the tidal creek determines when and how long the tidal creek is navigable, and those times would not be affected by the proposed dock. He described the new course that a boater would use to navigate into the tidal creek after the proposed dock is built. He used the bathymetric survey to show that when the water is deep enough to navigate into the tidal creek, the water depth is also sufficient to navigate the new course.

24. The proposed dock might, as Petitioner Jones alleges, cause boaters to traverse a longer section of the mudflat then they do currently. However, the more persuasive testimony supports the Crums' position that the navigability of the tidal creek is controlled by its shallowest point at the 1.0-foot NGVD elevation and that the proposed dock will not interfere with navigation of the tidal creek by requiring boaters to traverse shallower areas.

25. Petitioner Jones testified that he regularly navigates his boat close to the existing Crum dock. The evidence does not indicate that the proposed dock would cause an unreasonable risk of collision for boaters using the new course to the tidal creek.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding pursuant to Section 120.569 and Subsection 120.57(1), Florida Statutes (2006).2

27. The Department is the state agency authorized by Part IV, Chapter 373, Florida Statutes; Title 62, Florida Administrative Code; and the Operating Agreement to implement a regulatory program to prevent harm to the water resources of the District, and to administer and enforce Part IV, Chapter 373, Florida Statutes.

28. The Department is the state agency authorized by Chapter 253, Florida Statutes, and Florida Administrative Code Chapter 18-21 to review and authorize certain uses of state- owned submerged lands.

29. The Department is the state agency authorized by Chapter 258, Florida Statutes, and Florida Administrative Code Rule 18-20, to review and authorize activities in aquatic preserves.

30. The Nassau River-St. Johns River Marshes Aquatic Preserve Management Plan, adopted by the Board of Trustees of the Internal Improvement Trust Fund in April 1986, provides policy guidelines for state agencies that have jurisdiction to

    maintain the natural resources and environmental quality of designated aquatic preserves.

31. Under Subsection 120.569(1), Florida Statutes, formal administrative proceedings are limited to persons whose substantial interests will be determined by an agency. Neither Petitioner Brooks nor Petitioner Cole presented evidence at the hearing. No evidence was presented that they have ever used the tidal creek for boating or fishing. The only evidence in the record relevant to their standing is their ownership of properties adjacent to the Crum property and Brooks' ownership of a dock and boat. That evidence is not sufficient to establish that these petitioners have a substantial interest in navigating the tidal creek, which is the interest they alleged would be adversely affected. Their interest in the navigability of the creek, therefore, was not shown to be greater than the general interest that any citizen of Florida might have in the matter. Petitioners Brooks and Cole failed to prove their legal standing in this case.

32. The Crums also argue that Petitioner Jones lacks legal standing. However, Petitioner Jones presented evidence that he frequently boats and fishes in the tidal creek, and there is no dispute that the proposed dock will affect how Petitioner Jones will gain access to the creek. His evidence was sufficient to prove he has a substantial interest that will be affected.

    Petitioner Jones' failure to prove his claim that navigation of the tidal creek will be significantly impeded by the proposed dock does not negate his standing. Standing and the merits of a claim are different concepts. See, e.g., Village Park Mobile Home Ass'n., Inc. v. State Dept. of Business Regulation, 506 So. 2d 426, 433 (Fla. 1st DCA 1987); St. Martin's Episcopal Church

    v. Prudential-Bache Securities, 613 So. 2d 108, 109 n. 4 (Fla. 4th DCA 1993). If standing was based on whether a claim was proved, every losing petitioner would lack standing.

33. As the applicants for the Noticed General Permit, the Crums have the ultimate burden of proving their entitlement to the permit by a preponderance of the evidence. Dept. of Transp. v. J.W.C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

34. In order to prove their entitlement to the Noticed General Permit, the Crums must provide reasonable assurances that the proposed dock meets all applicable regulatory and proprietary criteria. However, the parties stipulated that the only criteria at issue in this case are the following:

    Whether the activity will significantly impede navigability in the water body. (Fla. Admin. Code R. 62-341.427(2)(c))

    
    

    Whether the Proposed Project is an activity contrary to the public interest in that it adversely affects the traditional recreational uses of fishing and boating by adversely affecting the navigability of the water body. (Fla. Admin. Code R. 18- 21.004(1)(a))

    Whether the Proposed Project is inconsistent with maintenance of the sovereignty submerged land of Pumpkin Hill Creek for the traditional public recreational uses of boating and fishing. (Fla. Admin. Code R.

    18-21.004 (2)(a))

    
    

35. The applicant's burden is to provide reasonable assurances, not absolute guarantees. McCormick, et al. v. City of Jacksonville, 12 F.A.L.R. 960 (Fla. Dept. of Env. Reg. 1990).

36. The evidence presented by the Crums provides reasonable assurance that the depth of the water at the mouth of the tidal creek is the limiting factor for navigating the tidal creek and that, when the depth at the mouth of the tidal creek is sufficient to navigate in and out without damaging the submerged resources, the depth will also be sufficient throughout the new course around the proposed dock to the tidal creek. Therefore, the proposed dock will not significantly impede navigability in Pumpkin Hill Creek,3 including the unnamed tidal creek, and will not adversely affect or prevent the maintenance of traditional public uses.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Secretary of the Florida Department of Environmental Protection enter a final order that grants Noticed General Permit No. 16-253057-002-EG to the Crums.

DONE AND ENTERED this 22nd day of December, 2006, in Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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 22nd day of December, 2006.

ENDNOTES

1/ The challenged permit was issued to "Paul Crum, Jr., Et AL." The real property involved is owned by Paul Crum, Sr., and Paul Crum, Jr. The three petitions for hearing named only Paul Crum as the permittee.

2/ Unless otherwise indicated, all references to the Florida Statutes are to the 2006 codification.

3/ The channel of Pumpkin Hill Creek lies waterward of the proposed dock. No evidence was presented that the Proposed Project would impede navigation in that channel.

COPIES FURNISHED:

Timothy E. Markey, Esquire

Department of Environmental Protection The Douglas Building, Mail Station 35 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Richard L. Maguire, Esquire Charles F. Mills, III, Esquire Rogers Towers, P.A.

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207-9000

Marcia Parker Tjoflat, Esquire Angela M. Sarabia, Esquire

Pappas, Metcalf, Jenks & Miller, P.A.

245 Riverside Avenue, Suite 400 Jacksonville, Florida 32202-4926

Lea Crandall, Agency Clerk

Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Greg Munson, General Counsel Department of Environmental Protection Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Colleen M. Castille, Secretary Department of Environmental Protection Douglas Building

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.

Docket for Case No: 06-002312

Orders for Case No: 06-002312