The Issue This case concerns the issue of whether the Petitioner should be granted an exemption to construct approximately 2,100 linear feet of seawall along the western and southwestern shorn of Fisher Island, located in Biscayne Bay, Florida. In the alternative Petitioner seeks to obtain a permit for such construction nod accompanying fill in the event that it does not qualify for an exemption. At the final hearing Petitioner called as witnesses John f. Guttman, Jon Staiger, J. Van De Kreeke and Howard Teas. Tee Respondent called as witnesses Richard E. Walesky and Jeremy Allen Craft. The Petitioner offered and had admitted into evidence 93 exhibits. The Respondent offered and had admitted into evidence 7 exhibits. Subsequent to the final hearing the parties submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings of fact and conclusions of law are inconsistent with this order, they are rejected as being unsupported by the evidence or as unnecessary to a resolution of this cause.
Findings Of Fact At the final hearing the parties stipulated to certain facts and based upon that stipulation those facts are found as follows: Petitioner FISHER ISLAND, a Florida limited partnership, owns the entire western and southwestern shore of the artificial spoil island known as Fisher Island, located between Virginia Key and the southern tip of Miami Beach, immediately south of the Port of Miami facilities, in Sections 9 and 10, Township 54 South, Range 42 East, in Dade County, Florida. FISHER ISLAND owns the submerged lands lying between the existing seawall and the line of mean high water. The Board of Trustees of the Internal Improvement Trust Fund (Fund) sold the lands in question in 1920, and FISHER ISLAND has purchased those lands along with most of the island. The lands owned by FISHER ISLAND are set forth in the legal descriptions contained in Deed Nos. 16,336, 16,336c, and 18110 from the Board of Trustees of the Internal Improvement Trust Fund and in two deeds dated October 31, 1979, from Fisher Island Associates, Inc., and Cocolobo Corporation to Island Developers, Ltd. Acting through the Department of Natural Resources (DNR), the Board has admitted FISHER ISLAND'S ownership of the submerged lands that Petitioner proposed to fill and reclaim, and the Board and DNR have raised no objection to Petitioner's application for a permit to restore a seawall. On or about October 27, 1981, FISHER ISLAND applied to Department of Environmental Regulation (DER) for a dredge and fill permit to restore an existing seawall and thereby bulkhead about 2 100 linear feet of the southwestern shoreline of the island at a distance of IS feet or greater from the shoreline. FISHER ISLAND initially asked that DER approve the proposed project as exempt from the requirements for a dredge and fill permit, under the exemption contained in Section 403.812(2)(a) of the Florida Statutes and Rule 17-4.04(9)(h) of the Florida Administrative Code. On December 9, 1981, Richard Walesky and Larry O'Donnell of the South Subdistrict Office in West Palm Beach, submitted their report of a visual inspection of the site made by Mr. Walesky in November, 1981. Mr. O'Donnell did not inspect the site. Mr. Walesky walked along the shoreline and swam over the area just offshore in which the applicant's consulting engineer had plotted the line of the seawall. He took no measurements and no soil, water, or any other kind of samples. He did take panoramic photographs of the shoreline. Mr. Walesky observed in his report that 8 to 10 mangroves were scattered over several hundred feet of the area at issue, along with some Australian pines, and that a large dredging pipe was tied up to the trees along the same portion of the shore. He concluded that because water completely covered the allegedly existing seawall except for some pilings in a line along the northern portion of the southwestern shoreline, waterward of the existing mean high water line, and because he found no other visual evidence of the seawall, it was not "a functional seawall and clearly [did] not fit the requested exemption." On the basis of the report of Mr. Walesky's visual inspection of the site, DER informed Petitioner FISHER ISLAND that its project did not qualify for the exemption. Accordingly, DER proceeded to process the application for a standard dredge and fill permit. On January 4, 1983, Mr. Walesky returned to the site for an inspection of the site's biological characteristics and value and an assessment of the projected impacts of the proposed seawall restoration on the environment. Again, he took no measurements or samples. He did not note the presence of any grass beds, oyster beds, or clam beds. He did take certain photographs of the shoreline. Mr. Walesky noted that cost of the area was sandy and clean, with algae-covered boulders the main form of life present. On the basis of Mr. Walesky's two inspections, DER issued its Intent to Deny the permit requested by FISHER ISLAND, on April 15, 1983. The shoreline along which Petitioner wishes to place the proposed seawall runs primarily along the southwest side of Fisher Island. This area is adjacent to a channel called Norris Cut. The depth of the water along Norris Cut drops abruptly from as little as 2 feet to as deep as 18 feet. Over the past years there has been substantial erosion along this shoreline. However, there is a very gradual slope from the shoreline to a point off-shore where there is an abrupt and steep drop-off into the cut. The point where this drop- off occurs is in a straight line along this shoreline and is in direct line with the old seawall located along the Garwood Estate which is located in part along the same shoreline but east of the proposed seawall area. This area of the shoreline is constantly impacted by strong currents and wave action. Aerial photographs from as early as 1945 reveal that the straight line along which the abrupt drop- off occurs has remained straight and in the same position since 1945. This line and the resulting contours are very unusual along shores of is lands in this area and is consistent with the existence of an artificial structure such as a seawall holding the sand along the shore in place. Typically shorelines in this area which are exposed to this type of tidal, wave and current action have a more gradual slope and a more meandering slope or shoreline. Those same aerial photographs reveal continual erosion along this shoreline and in recent years the rate of erosion has accelerated. This erosion problem would be eliminated by the proposed seawall. There presently remains along the western tip, two rows of tieback pilings, totaling 80 in number. These tiebacks at one time were part of the seawall which was built along this shoreline. Seaward of one of these groups of tiebacks there remains a small area where the pilings and planks of the old seawall are still visible. A second group of tiebacks is located along the southwest shore and number 42. These two groups of pilings appear to be parallel to the line of drop-off and functioned as part of a seawall along this shore. In the early 1960's pilings along the drop-off line extended above water level and were visible along approximately 50 per cent of the area of the proposed seawall. These pilings were a navigational hazard and in 1981 were nipped off at the sand bottom in order to avoid boating accidents. These piles were part of the old seawall. Just east of the area of the proposed seawall there is a marina entrance which has been cut into the shoreline, dredged, and bulkheaded. At one point during the construction of the bulkhead that runs along the shore the contractor veered off course a small amount and hit the remaining portion of the old seawall in that area. The old seawall was stable enough that pilings could not be driven and so the pilings, planks and cables of the old seawall were removed. In order to dredge and clear the entrance to the marina it was also necessary to remove the old seawall located in the entrance area. The various experts called by Petitioner and Respondent gave different definitions of a seawall. John R. Guttman, an expert in civil and coastal engineering, marina planning and seawall construction, testified that the purpose of a seawall is to retain fill and that a "functioning seawall" did not have to be visible above water. Dr. Jacobus Van De Kreeke, an expert and Ph.D. in coastal and oceanographic engineering, testified that the function of a seawall is to retain lands, to prevent land from sliding into the ocean, and to protect, uplands from wave action. Dr. Van De Kreeke based his definition primarily upon the Shore Protection Manual of the Army Corps of Engineers and opined that the structure along the drop-off line in the area of the proposed seawall is still a functioning seawall. Mr. Walesky, who is an expert in marine ecology, testified that a seawall functions to separate the land from the sea. Jeremy Craft, an expert in water quality and marine ecology, argued with the definition of a seawall given by Mr. Walesky. Mr. Walesky and Mr. Craft are employees of the Respondent, DER, and Mr. Guttman and Dr. Van De Kreeke testified on behalf of Petitioner. The term "seawall" is not defined in the DER rules or in the Florida Statutes. Up to some point in time in the past there was a complete and functioning seawall along the shore involved in this application. The subsurface portion of that seawall remains to date and continues to perform the function of that portion of a seawall which lies below the surface and in the soil. The shoreline involved, at one time bad 8 to 10 white mangroves growing in and among the Australian pines which grew along the shore in the same area. The mangroves were in a line no more than one plant deep. Prior to Mr. Walesky's second inspection these mangroves were apparently pulled out by dredge pipes which had been anchored to them by someone other than Petitioner. It is likely that without the Australian pines these mangroves would have been washed away. Of the three types of mangroves the white mangrove lives farther up- shore and is less susceptible to growing or becoming established in the inter- tidal zone. Red mangroves live out in the water, grow farther into the inter- tidal zone and are considered to be of higher value than white mangroves in a mangrove eco-system. A mangrove eco-system is beneficial to the environment. A few singular mangroves do not constitute a mangrove eco-system. Mangroves become established by seedlings becoming trapped along shore and taking root. In this area of the Fisher Island shoreline, the shore is constantly washed by swift currents and tidal and wave action. There are no extended periods of no motion because of the rapid turnover and change in direction of tides in this area. Some of the swiftest currents in the area of Norris Cut and Fisher Island occur directly along and adjacent to this shoreline. The result is that suspended materials such as mangrove seedlings have no opportunity to accumulate along the shoreline. These same factors also result in a very sparse rack line in this area. It is highly unlikely that this shoreline would support a mangrove fringe. In the fall of 1983 when Dr. Howard Teas, an expert marine biology, water quality, and coastal and mangrove ecology, inspected the area involved he found no mangrove seeds along the rack line on Fisher Island when they were present elsewhere in the area. Dr. Teas as well as Dr. John Steiger, opined that this high energy shoreline is not conducive to the establishment of a mangrove fringe and it is highly unlikely that a mangrove fringe will become established along this shore. Mr. Walesky in his inspection prior to the final hearing observed sesuvium grass along the shoreline and saw one red mangrove seedling which had become rooted in the sesuvium grass. Mr. Walesky agreed that this shoreline is a high velocity area, but opined that a number of years from now mangroves may begin to grow along this shoreline. Some grass beds do appear in the inter-tidal area which would be filled under this application. These grass beds cover about 3.8 to 4 per cent of the total area involved. These beds are sparse with very low density. Haladule and halophila are the grasses found along this shore. The numerous photographs and aerial photographs presented in evidence revealed no human activities or construction along this shoreline which could have prevented the establishment or growth of these grass beds in this area over the last three or four years. Both haladule and halophila can become established in one year. Brownish algae also appears along this shoreline and forms a thin felt-like mat in the areas where it appears. The water in this area is very turbid and there are no oyster or clam beds. The number and density of organisms along this shoreline are both very low. The area along this shoreline is one of poor productivity. Samples taken by Petitioners expert in the vicinity of this shoreline had a density of organisms approximately 1710 the absolute density of typical areas of Biscayne Bay. The soil along the shoreline involved is primarily sandy silt. This type of soil has some cohesiveness but not very much. Neither party in the Instant case did testing to determine the specific cohesive properties of the soil along Fisher Island and Norris Cut. The proposed seawall will begin at a point approximately 70 to 100 feet west of the marina entrance. Approximately 500 to 530 feet of the westernmost portion of the proposed seawall will be located beyond or outside of the boundary of the Biscayne Bay Aquatic Preserve. The seawall will be constructed of a slab and pile concrete system. This construction approach is an acceptable method of constructing a seawall in this area and is identical to the structure that was permitted by DER in 1979 for another area of shoreline of Fisher Island. There is a cap along the top of the proposed seawall which will prevent stormwater runoff from the island into the adjacent waters of Norris Cut.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a final order granting the exemption of Petitioner's seawall as requested. DONE and ENTERED this 9th day July, 1984. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 9th day of July, 1984. COPIES FURNISHED: Timothy A. Smith, Esquire 1401 Brickell Avenue, PH-1 Miami, Florida 33131 Gary Early, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 =================================================================
The Issue Should the Respondent, STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION, grant the applicant, JEMAAM, INC., a dredge and fill permit pursuant to the Notice of Intent dated March 2, 1988, in File No. 361414445?
Findings Of Fact The Respondent, JEMAAM, INC., is the owner and the developer of real property contiguous to state waters in Lee County, Florida. The condominium project on the property is known as Island's End Condominiums. As part of Phase III of the condominium project, Respondent JEMAAM built a dock. This dock is the subject of this administrative hearing because the Respondent JEMAAM wants to reconfigure and relocate portions of the dock structure. Respondent JEMAAM filed an application for a dredge and fill permit with the Respondent DER in order to modify the exiting dock. The Respondent JEMAAM seeks to modify the dock by relocating a 3.92' x 61' section of the existing dock to a more waterward location. This area of the dock is the southerly extension, which fronts the Petitioners' condominium unit. The application process was begun on November 3, 1987, and completed on February 26, 1988. A Notice of Intent to Issue a dredge and fill permit for the proposed project was issued on March 2, 1988, by the Respondent DER. The dock is subject to the Respondent DER's permitting requirements because the construction activity is to take place in state waters and the dock structure exceeds 1,000 square feet in size. In addition, the Respondent JEMAAM has agreed not to undertake further dredge or fill work or any other construction in wetland areas under the Respondent DER's jurisdiction unless a valid permit had been obtained for such activities. The Petitioners, LEO J. BERGER and KATHLEEN D. BERGER, are the owners of Condominium Unit Number 102 in Phase III of Island's End Condominiums in Lee County, Florida, which is adjacent to Respondent JEMAAM's dock. The Petitioners filed an administrative complaint in which they disputed the appropriateness of the Intent to Issue dated March 2, 1988. In support of their position, the Petitioners identified a number of areas of controversy and alleged that the Respondent JEMAAM's application did not meet the "reasonable assurances" required for permit issuance. The Petitioners' allegations, which are properly before the Hearing Officer, are as follows: Shallow water in the area where the new dock configuration is to be located would result in propeller dredging of littoral shallows. The proposed waterward relocation of a portion of the dock would present a navigational hazard in the channel as well as in the shallows and around the dock. The proposed relocation would cause harmful shoaling in the area, which would affect boating safety as well as the habitat. The dock relocation and associated boat traffic will disrupt and harm bird and fish habitats. The dock may be within the Estero Bay Aquatic Preserve. Based upon the evidence adduced at hearing, I find as follows as to the allegations raised by the Petitioners in their administrative complaint: There are sufficient water depths, based upon the Bathymetric profile and a number of reviews by the Respondent DER in the proposed relocation area, to prevent harmful propeller dredging by boats using the dock. However, to assure that harmful turbidity and propeller dredging does not occur, the dock extension arm can be completely handrailed in the shallow, landward area. The addition of a shielded, steady burning light and navigational markers should minimize any impediment to navigation caused by the dock relocation. The main channel is not far from this area, and most boating traffic in the general area is confined to the main channel. The additional markers and lighting requirements combine with the current conditions to alert all reasonable and prudent boaters to the hazards and challenges of the area. The evidence is inconclusive as to the extent to which the dock structure has increased shoaling in the area. Much of the shoaling is attributed to the natural conditions of the area, a back-bay coastal zone. The shoaling which has occurred is thought to be beneficial by the experts who testified at hearing because the development of grasses has increased. This creates a positive habitat for Cuban shoalweed, brittle starfish, and several species of crab. Relocation of a portion of the dock will not substantially affect the shoaling activity in the area. The bird and fish habitats in the area do not appear to be adversely affected by the current dock. It is not anticipated that the relocation of a portion of the dock will change the ongoing development of the habitats. The bird roosting area on the sandbar includes a larger variety of species now than it did before the current dock was built, according to studies done by James W. Beever III. The installation of the additional channel markers was suggested by Beever, an expert witness in the case, as a means to enhance the viability of the sandbar as a habitat. The markers aid in steering boat traffic away from the area and prevent the beaching of boats on the sandbar. James W. Beever III is the current resource and research coordinator of the Estero Bay Aquatic Preserve. Based upon his testimony, the proposed dock relocation is not within the aquatic preserve. The areas of controversy raised by the Petitioners in their administrative complaint were sufficiently met by the reasonable assurances of the Respondent JEMAAM that the purported harms would not occur. The project is not contrary to the public interest under the criteria set forth in Section 403.918, Florida Statutes, as represented by the Respondent DER in the Notice of Intent to Issue and proved at hearing.
The Issue The issue to be determined in this case is whether Petitioner’s proposed activities qualify for the seawall construction exemption from permitting in section 403.813(1)(i), Florida Statutes (2014).
Findings Of Fact The Parties The District is a multi-purpose water management district with its principal office at 3301 Gun Club Road, West Palm Beach, Florida. It has been granted powers and assigned duties under chapter 373, Florida Statutes, to regulate construction activities in wetlands and other surface waters. Petitioner William B. Swaim is the contract purchaser of real property located at Section 22, Township 45 South, Range 43 East, Palm Beach County Parcel Identification number 46-43-45-22-00-005-0020, in the Town of Ocean Ridge, Palm Beach County (“the property” or “Petitioner’s property”). The western side of the property contains a healthy stand of red mangroves. It is inundated on high tides. The eastern portion of the property is beneath the open waters of Spanish Creek. This submerged portion contains productive benthic habitat for a number of fish, invertebrates, oysters, conchs, clams, mussels, barnacles, and crabs. The Department of Environmental Protection could not determine whether Spanish Creek was navigable at the date of statehood (1845) and, therefore, is subject to a claim of State ownership under chapter 253, Florida Statutes, as “sovereignty submerged lands.” Petitioner did not present competent evidence that all of the land upon which the proposed project would be constructed is contained within the property which he has contracted to purchase. Petitioner showed his title would extend to the centerline of Spanish Creek, but he did not establish where the centerline is located. Petitioner’s evidence was not sufficient to show that he has a colorable claim to all of the open water area that he proposes to wall off and fill. The Proposed Project In his request for exemption verification, Petitioner identified the following proposed development activities: (1) construction of approximately 950 feet of batter pile concrete seawall around three sides of the approximate boundaries of the property; (2) filling within the seawalls to an approximate elevation of 8.0 feet above sea level with offsite fill; and (3) construction of an access road to the south of the property. Petitioner later modified his proposal to construct 1,117 feet of batter pile concrete and steel sheet seawall and to fill within the seawalls to an approximate elevation of 6.0 feet above sea level. At the final hearing, Petitioner withdrew his plan to place riprap on the outside of the eastern seawall. Petitioner still proposes to place 300 feet of riprap along the western boundary of the property. The Seawall Construction Exemption Section 403.813(1)(i) provides an exemption from permitting for the following activities: The construction of private docks of 1,000 square feet or less of over-water surface area and seawalls in artificially created waterways where such construction will not violate existing water quality standards, impede navigation, or affect flood control. This exemption does not apply to the construction of vertical seawalls in estuaries or lagoons unless the proposed construction is within an existing manmade canal where the shoreline is currently occupied in whole or part by vertical seawalls. Whether Petitioner Proposes to Construct Seawalls The term “seawall” is not defined in the statute. It is defined in section 2.0(a)91 of the Applicant’s Handbook as “a man-made wall or encroachment, except riprap, which is made to break the force of waves and to protect the shore from erosion.” The District’s definition of “seawall” is similar to its dictionary definition as “a wall or embankment to protect the shore from erosion or to act as a breakwater.” Webster’s New Collegiate Dictionary at 1035 (1979). Petitioner’s proposed project is not intended to protect a shore from erosion. The property has no shore. Petitioner’s project is more accurately described as construction of retaining walls to form a frame within which to place fill dirt so that about three acres of wetlands and open water can be transformed into uplands. Petitioner’s purpose is to create a buildable residential lot. Petitioner’s project is not the construction of seawalls. Therefore, the proposed seawalls will be referred to hereafter as walls. Whether Spanish Creek is an Artificially Created Waterway The term “artificially created waterway” is not defined in section 403.813(1)(i) or in the rules of the District. However, the term “artificial waters” is defined in section 2.0(a)10 of the Applicant’s Handbook as “bodies of water that were totally excavated from uplands, do not overlap historic wetlands or other surface waters, and were not created as a part of a mitigation plan.” The District interprets the term “artificially created waterway” in section 403.813(1)(i) as having the same meaning as “artificial waters”; that is, it does not include natural waterbodies that have been dredged. The District conducted an extensive review of over 160 years of mapping data, including certified historic maps from the 1800s, aerial photography, the National Wetlands Inventory database, topographic and hydrographic data, soil surveys and maps, and historic photographs. The evidence clearly establishes that Spanish Creek is a naturally-occurring waterbody, having appeared on historic documents since at least 1872. Some dredging was conducted in Spanish Creek, probably in the 1950s or 1960s. The western portion of Petitioner’s property where the red mangroves are located was not dredged. The preponderance of the evidence indicates that the property once included a larger area of shallow marsh or mangrove vegetation and a smaller area of open water, but dredging decreased the area of vegetated wetlands and increased the area of open water. Spanish Creek does not meet the District’s definition of “artificial waters” because it is not totally excavated from uplands. Spanish Creek meets the definition of “stream” in section 2.0(a)101 of the Applicant’s Handbook, which is “any river, creek, slough, or natural watercourse in which water usually flows in a defined bed or channel.” The definition includes a statement that “[t]he fact that some part of the bed or channel shall have been dredged or improved does not prevent the watercourse from being a stream.” Petitioner’s reference to U.S. Army Corps of Engineers characterizations of waters in the area as “residential canals” is not controlling, nor persuasive. Spanish Creek is not a canal. Spanish Creek is a natural waterbody, which has been artificially widened by dredging. Petitioner argues that the plain meaning of “artificially created waterway” applies to Spanish Creek, but “artificially created” does not have the plain meaning of being artificially altered. Spanish Creek was altered by dredging. It was not created by dredging. It was widened by the dredging and probably deepened, at least initially, but no evidence was presented to compare historical and current depths. Petitioner suggests that Spanish Creek was not a waterway before it was dredged based on his unproven assumption that Spanish Creek was only navigable after it was dredged. However, the first dictionary entry for “waterway” is “a way or channel for water.” Webster’s New Collegiate Dictionary, at 1314. Spanish Creek was a way or channel for water before it was dredged. Spanish Creek is not an artificially created waterway. Whether the Project Would Violate Water Quality Standards Other than submitting a turbidity control plan that Petitioner adapted from a plan he found in the District files for another project, Petitioner did not address water quality issues in his request for exemption verification. At the final hearing, Petitioner did not present competent evidence regarding the potential water quality impacts associated with his proposed project. Petitioner is proposing to construct an access road that will be located on properties owned by Palm Beach County and Spanish Creek, LLC, which currently consist of mangrove wetlands, but he has not obtained their permission for the construction. The area contains muck soils, which would have to be removed to construct the road. Petitioner did not address with competent evidence the potential water quality impacts associated with the muck removal. Petitioner stated that if he is unable to transport the muck and fill material over the access road, he will use a barge and tug boat. Because of the shallow depth of Spanish Creek, these vessels would likely disturb the submerged soils and the organisms that live in or use these soils. Petitioner’s proposed project would extend a box- shaped land form into the open waters of Spanish Creek that would affect water currents and sediment movement. Tidal flushing would be impeded. Erosion would likely be caused by currents and waves reflecting off and flowing around the proposed walls. Shoaling would likely occur. Petitioner did not present competent evidence that the proposed construction activities can be conducted without causing violations of state water quality standards. The preponderance of the evidence indicates that Petitioner’s proposed activities would violate state water quality standards for turbidity, dissolved oxygen, and species diversity in the area. Whether the Project Would Impede Navigation The proposed project would cause a substantial narrowing of Spanish Creek, leaving about 75 feet of open water between the eastern wall of Petitioner’s property and the Wellington Arms Condominium seawall. Wellington Arms has docks which extend out 34 feet from its seawall. The docks are currently being used for boats that extend beyond the end of the docks. Less than 40 feet would separate the vessels moored at Wellington Arms from Petitioner’s proposed eastern wall. If Petitioner’s proposed project were built, maneuvering a boat in and out of the docks at Wellington Arms or between the docks and Petitioner’s proposed eastern wall would be difficult. It would be unsafe in windy conditions. The proposed project would impede navigation. Whether the Proposed Project Would Affect Flood Control The District presented evidence to support its contention that the proposed project would affect flood control, but the evidence was not persuasive. The property is surrounded by waters of the Intracoastal Waterway and Atlantic Ocean and the District’s evidence did not adequately explain how the project could have more than an insignificant effect on these dominant forces which determine water levels in the area. Whether Petitioner Proposes Only Backfilling Rule 62-330, entitled “Exempt Activities,” is applicable to all exemption requests. Rule 62-330.051(12)(a) addresses the exemption for construction of seawalls and states that the exemption includes “only that backfilling needed to level the land behind seawalls.” Petitioner proposes to fill approximately three acres behind the walls. Currently, there is no land (uplands) behind the proposed walls to level. The purpose of the fill is not to level land behind the walls. The purpose of the fill is to create a buildable lot. Petitioner does not know how much fill is required to stabilize the walls. Less than three acres of fill is required. Petitioner’s proposed project does not include only that backfilling needed to level the land behind the walls.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the District enter a Final Order determining that Petitioner’s proposed development activities do not qualify for the seawall construction exemption from permitting under section 403.813(1)(i), Florida Statutes. DONE AND ENTERED this 14th day of May, 2015, 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 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2015. COPIES FURNISHED: Alison L. Kelly, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) William B. Swaim 5455 Via Delray Delray Beach, Florida 33484 (eServed) Blake C. Guillory, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Kirk Burns, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed)
The Issue Whether or not the applicant has provided reasonable assurances that the proposed project meets the requirements of Chapter 403 F.S. and Chapter 17 for issuance of a dredge and fill permit, and if so, how those assurances may be incorporated into the permit as finally issued. BACKGROUND AND PROCEDURE On May 3, 1989, the applicant, Johnny P. Hires, applied to the Department of Environmental Regulation (DER) for an "after the fact" dredge and fill permit to authorize the existence of a dock and associated structures which had already been constructed on Miller's Creek in Duval County, Florida. On July 28, 1989 DER executed its Notice of Permit Denial for the project. On May 29, 1990, negotiations between Hires and DER resulted in a Notice of Permit Issuance which approved the project subject to a specific condition (Specific Condition No. 7) to which Mr. Hires had already agreed. On June 8, 1990, DER received Gilmour and Gray's petition challenging DER's approval of the permit. On June 13, 1990, the petition was referred to the Division of Administrative Hearings for formal hearing pursuant to Section 120.57(1) F.S. and was assigned DOAH Case No. 90-3690. Prior to formal hearing, DER personnel reassessed the agency position once again with the result that at formal hearing DER asserted that Specific Condition No. 7 of the proposed permit was not stringent enough and sought to present evidence that Specific Condition No. 7 should be modified if the permit is to be issued at all. Neither Petitioners nor Hires objected to this procedure, so the parties' positions at hearing were, by agreement, as follows: Mr. Hires wanted the proposed permit finalized as drafted; the Department wanted the proposed permit issued, with a modified Specific Condition No. 7; and Petitioners wanted the proposed permit denied.
Findings Of Fact Mr. Hires constructed a dock, boathouse, and three catwalks in February or March of 1989, without a permit, within the landward extent of Miller's Creek. The dock is 40 feet by 5 feet with a 24-foot "L" at the waterward end. The catwalks form two boat slips, which are 16 feet by 32 feet and 8 feet by 24 feet. These slips are more or less covered by a roof 32 feet by 24 feet. The boathouse is as yet incomplete. Miller's Creek flows into the St. Johns River near the base of the Hart Bridge in Jacksonville, Florida. This location subjects the project to DER's jurisdiction of Class III (recreational use) waters. It is also near Atlantic and Beach Boulevards. Mr. Hires' property is on the west side of the Creek. At low tide, the creek bottom is exposed, except for a channel which is located near the eastern edge of the creek. The channel is approximately 110 feet from the boat slips. DER's original permit denial stated: Use of the slips by boats would result in continuous bottom scour by prop dredging of the area within the slips and between the slips and the channel. This area is approximately 110 feet in length. Prop dredging creates turbidity and moves bottom material into other areas of the creek which can alter the physical, chemical and biological nature of the water body. The movement of bottom material into the existing channel will cause shoaling within adjacent sections of the creek, altering habitat and affecting flows of water and navigation. Increased turbidity in the water column results in reduced light penetration and photosynthetic oxygen production which together with the resuspension of organic bottom material can increase oxygen demand and release pesticides, heavy metals and hydrogen sulphide into the water column. Therefore the project can be expected to have a long-term detrimental impact on water quality and biological resources of the river. Specific Condition No. 7 of the proposed permit issuance document requires that: At no time shall any motorized vessel utilizing the dock disturb the bottom sediments causing prop dredging or generating turbidity which exceeds the State Water Quality Standard. Mr. Hires has indicated his intent to comply with Specific Condition No. 7 and sincerely believes that he will be able to do so. DER has adopted water quality standards within Ch. 17 F.A.C. These may apply to primary turbidity, that is, turbidity due to actual construction of the project, or secondary turbidity, that is, turbidity resulting from subsequent use of the completed project. Turbidity is the resuspension of bottom material into the water column. Prop dredging from motorboats causes turbidity and changes the bottom contours of a waterway. The amount of turbidity which is generated depends, among other things, upon the kind of sediment which comprises the bottom of a waterway. The bottoms of water bodies in Florida range from fine particles, called mud or silt, to larger particles, known as sand. The creek bottom of Miller's Creek is composed of mud and silt. Because of the lighter weight of mud and silt particles, they are more easily resuspended and stay resuspended longer than the larger, sand particles. The environmental impacts of turbidity depend, among other things, upon pollutants, such as heavy metals, which may become mixed with the natural sediments. Pollutants are more likely to be trapped in fine sediments, such as mud and silt, than they are likely to be trapped in coarser, sandy sediments. Runoff from Beach and Atlantic Boulevards and possible past contamination from a nearby shipyard make sediment contamination in Miller's Creek a distinct possibility. Neither DER nor Mr. Hires has performed a sediment study to determine whether pollutants were present. In approximately May of 1989, a small "access trough" was prop dredged over the 110 foot distance between the channel and Mr. Hires' dock. No permit was issued by DER for this dredging and, if a permit application for such prop dredging were submitted, no permit would be issued. The tidal range of Miller's Creek is approximately 1.5 feet. Thus, at high tide, the water is reasonably expected to be 1.5 feet above the creek bottom that is exposed at low tide. No study of the depth of the water in the access trough was presented to DER, although Mr. Hires estimated its depth at high tide to be 4 feet. Mr. Hires represented, and there is no evidence to refute his statement, that the maximum use of his own boat in this area over the last year preceding formal hearing (September 1989-September 1990) has been twelve times. Despite the credible evidence that the access trough was created by prop dredging, Mr. Hires maintained that it was not possible for his boat, which is equipped with a tunnel hull design, to further dredge the area because he can only operate his boat on idle speed on high tide in this area. Because the props on Mr. Hires' boat are recessed upward from the bottom of the boat, Mr. Hires maintained his boat would not further dredge the access trough or the remainder of Miller's Creek. However, without accurate information as to natural water depth and only vague information as to what might occur if the tide changed while Mr. Hires was out in his boat, what might occur if Mr. Hires used another boat, or what might occur if other types of boats docked at the Hires dock, Mr. Hires' information about his current boat does not constitute a reasonable assurance that no further prop dredging of Miller's Creek will occur. Mr. Tyler submitted that Hires could pole or row his boats from his dock to the channel when there is sufficient water so as to avoid prop dredging. Mr. Hires volunteered to post a bond to ensure that there would be no scouring from his use of motorized boats from his dock to the channel, but there was insufficient expert evidence to establish how high a bond would be reasonable or that DER would regard such bonding as any more substantial assurance than the applicant's policing himself under Specific Condition No. 7 as now drafted. There also was no evidence that bonding has been a successful inhibitor of prop dredging in the past, that any insurer is available to issue such a bond, or that Mr. Hires could post a sufficient cash bond. Upon the expert testimony of Jeremy Tyler and the keen observations of the lay witnesses, it is found that, through natural processes, the access trough may be reasonably expected to, with time, silt in and return to a depth consistent with the existing creek bottom. It is further found that prop dredging may be reasonably expected to cause adverse environmental impacts at this location. Upon Mr. Tyler's expert testimony, it is further found that Hires' dock and the dock's associated structures which have already been installed are not reasonably expected to cause any adverse environmental consequences. Contrary to DER's initial permit denial document, there is no vegetation in the area which might be adversely affected by shade from the dock and associated structures. If the pilings were driven into place at low tide, some temporary turbidity would have been generated by the dock and boathouse construction. However, no evidence of such turbidity can be seen at the present time. The only habitat effects of the constructed items and those planned but not completed would be the loss of the habitat which is displaced by the pilings themselves, an effect which, at this location, is inconsequential. The non-expert testimony of Petitioners with regard to endangered species was without appropriate predicate and is not probative with regard to habitat. No competent evidence was offered by Petitioners to suggest that the dock and associated structures themselves would adversely affect water quality or the public interest test criteria.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED the Department of Environmental Regulation enter a Final Order establishing the Department's proposed permit issuance action as final, provided, however, Specific Condition No. 7 of the draft permit should read: "At no time shall any motorized vessel utilize the dock." DONE and ENTERED this 18th day of October, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 18th day of October, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioners' PFOF: Covered in preliminary material. Accepted. Subordinate. Accepted in part; remainder rejected as mere argument. Respondent Hires' PFOF: Covered in preliminary material. First sentence rejected as not proved. Second sentence accepted in part and rejected in part as set out in the Recommended Order. Third sentence accepted so far as it goes but is rejected as a whole for the reasons set forth in FOF 12. Accepted that the offer was made; rejected that it provides reasonable assurances. Respondent DER's PFOF: 1-11 Accepted as modified to more accurately reflect the record evidence as a whole. Copies furnished to: COPIES FURNISHED: Kay E. Gilmour Lois O. Gray 1347 Morier Street Jacksonville, Florida 32207 Johnny P. Hires 1321 Morier Street Jacksonville, Florida 32207 William H. Congdon Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue in this case is whether the construction activities of Respondent Auschra were exempt from applicable permitting requirements on the basis of the application and whether the construction activities exceeded the scope of the exemption. Further, the Petitioner seeks an Order directing the Department of Environmental Protection to initiate an enforcement action against the Auschra project. The Department asserts that the Hearing Officer is without jurisdiction to require the Department to initiate an enforcement action.
Findings Of Fact Petitioner Linda L. Braswell owns and resides at 5190 Latham Terrace Port Charlotte, Florida. The property is located at Lot 88 of the Gulf Cove subdivision in Charlotte County, Block 1864, Section 54. Respondent Kurt Auschra owns Lot 90, located adjacent to Lot 88. Mr. Auschra did not appear and was not represented at the hearing. An application dated January 5, 1995, was filed on behalf of Mr. Auschra, seeking approval of seawall construction at his property. The application appears to be signed by Eugene Exejet of the Charlotte County Seawall Company. Respondent Department of Environmental Protection is responsible for the permitting and regulation of projects such as the Auschra project. The relevant properties back up to the Latham Waterway, a man-made residential canal. The Petitioner asserts that the Auschra property was landlocked and did not have access to the water prior to construction of the seawall. A property is "waterfront" if the mean high waterline touches the property. Evidence of the apparent mean high water line, including subdivision plats and location of vegetation, establishes that the Auschra lot was a "waterfront" lot prior to construction of the seawall. Existing residential canal systems are classified as artificially created waterways by applicable administrative rules. The Auschra application was reviewed by Peggy Hellenbach, an employee of the Department. After the application was filed, and prior to the Department determination that the project was exempt, the Petitioner communicated her concerns to two members of the Department staff, including Ms. Hellenbach. At the time of her review, the application contained sufficient information for Ms. Hellenbach to determine the location and the type of project being proposed. Ms. Hellenbach reviewed the application and determined that the project was exempt from permitting requirements. In determining that the project was exempt from permitting, Ms. Hellenbach considered whether the proposed project would violate existing water quality standards, impede navigation or adversely affect flood control. Ms. Hellenbach determined that based on the location of the seawall and the applicant's intended use of turbidity screens during construction, water quality standards would not be violated. Turbidity screens were used during construction of the seawall. Because the construction site is at the "dead-end" of the waterway, Ms. Hellenbach determined that the project would not impede navigation either during or after construction. Because the location of the seawall does not impact water flow, Ms. Hellenbach determined that the project would not adversely affect flood control. By letter to Mr. Auschra dated February 6, 1995, the Department stated as follows: Based solely upon the documents submitted to the Department, the project has been determined to qualify as an activity which is exempt from the need for a wetland resource permit pursuant to Florida Administrative Code (F.A.C.) Rule 62-312.050 (1) 62-312.050(1)(g). The letter also provided: The determination that your project qualifies as an exempt activity pursuant to Rule 62-312.050 (1) 62-312.050(1)(g), F.A.C., may be revoked if the installation is substantially modified, or if the basis for the exemption is determined to be materially incorrect, or if the installation results in water quality violations. Any changes made in the construc- tion plans or location of the project may necessitate a permit or certification from the Department. Therefore, you are advised to contact the Department before beginning the project and before beginning any work in waters or wetlands which is not specifically described in your submittal. Ms. Hellenbach did not visit the site prior to making her determination. There is no evidence that Ms. Hellenbach was required to visit the site prior to making her determination. Construction of the project was initiated prior to the issuance of the Department's February 6 letter of exemption. Given Ms. Hellenbach's subsequent review of the project after construction and her continuing assertion that the project meets applicable exemption criteria, it is unlikely that a site visit prior to construction would have impacted installation of the seawall. The greater weight of the evidence establishes that, based on the information set forth in the application, the project was exempt from permitting requirements. There is no evidence that the project violated existing water quality standards, impeded navigation or adversely affected flood control. Department policy requires that new seawalls be built in a "continuum" with existing seawalls to prevent water quality problems caused by altered water circulation. The Auschra seawall appears to be in a continuum with the existing Latham Waterway seawalls. There is evidence that vegetation, including mangroves, located both on the Auschra property and on adjoining property, was removed during the construction of the seawall. Removal of vegetation is typical during installation of a seawall. Based on the existing vegetation at the site, the removed vegetation most likely consisted of a thin line of red mangroves at the waterline with a large stand of Brazilian Pepper behind the mangroves and along the banks of the waterway. There is no evidence that a permit was required for removal of the vegetation on the Auschra property. Applicable administrative rules do not authorize removal of mangroves from adjacent properties unless the property is owned or controlled by the person performing the removal of the vegetation or unless the land is adjacent State-owned land lying waterward of the parcel of property on which the exempt activity is occurring. There is no evidence that a permit was issued for removal of the vegetation on the adjoining property. There is evidence that as constructed, the seawall encroaches onto the property of adjoining owners and that during construction, property of adjoining owners may have been excavated. There is no evidence that the seawall encroaches onto the property of the Petitioner. The evidence fails to establish that the amount of material excavated during construction of the seawall was excessive in relation to the size of the structure. Ms. Hellenbach conducted a site visit after the construction of the seawall. Based on her review of the seawall construction and her knowledge of the application, Ms. Hellenbach determined that the project continues to be exempt from permitting requirements.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a Final Order dismissing this case. DONE and RECOMMENDED this 24th day of April, 1996 in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 24th day of April, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1072 To comply with the requirements of Section 120.59(2), Florida Statutes, the following constitute rulings on proposed findings of facts submitted by the parties. Petitioner The Petitioner's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: Rejected, subordinate. Rejected, unnecessary. 5-6. Rejected, subordinate. 7-8. Rejected. Recitation of testimony is not Finding of Fact. 9. Rejected, unnecessary. The greater weight of the credible evidence establishes that the location of the seawall and quantity of dredged material do not render the project non-exempt. 10-12. Rejected. Recitation of testimony is not Finding of Fact. 13-14. Rejected, cumulative. Rejected as to statement that "the property did not have sufficient area on the canal to build a seawall." Not supported by greater weight of the evidence. Rejected. Recitation of testimony is not Finding of Fact. Rejected, unnecessary. 18-22. Rejected, subordinate. 23-24. Rejected, unnecessary. 26-27. Rejected, fails to comply with Rule 60Q-2.031(3) requiring citation to transcript. 30. Rejected. The evidence that a "new waterway" was dredged is insufficient to be persuasive. Respondent DEP The Respondent's proposed findings of fact are accepted as modified and incorporated in the Recommended Order except as follows: 12. Rejected, unnecessary. 17. Rejected. There was evidence presented as to ownership of adjoining property. 24. Rejected, subordinate. 26. Rejected, unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Kenneth Plante, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Robert E. Turffs, Esquire 227 South Nokomis Avenue South Post Office Box 1767 Venice, Florida 34284-1787 Kurt Auschra Hinter der Linah 50 21614 Buxtehude Germany Christine Stretesky, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee. Florida 32399-2400
The Issue The ultimate issue in this proceeding is whether the Department should issue a permit to the Applicant. In its request for hearing, Petitioner asserted that the proposed dock extension would constitute a navigational hazard and would cause certain adverse environmental consequences. At the hearing, Petitioner withdrew its contentions as to adverse environmental consequences. The only issues raised during the course of the hearing relate to whether the proposed dock extension will result in navigational hazards to adjoining property owners.
Findings Of Fact The Applicant owns a lot which includes 52 feet of frontage along a cove which is located to the south of the Fort Pierce Inlet. Applicant presently has a dock which extends 85 feet out from his shoreline. The dock is 4 feet wide and has an 8-foot by 14-foot platform at the end, forming an "L" shape. The Applicant presently uses the dock for two of his own boats. Additionally, he rents four or five additional docking spaces. The Applicant is proposing to extend his dock an additional 72 feet out from his property. He proposes to remove the existing platform and place a 12-foot by 24-foot platform at the end of the extended dock, maintaining the "L" configuration. The Applicant has had problems mooring his own commercial fishing boat at his present dock due to shallow depths at low-water periods. He proposes to utilize the dock extension to moor one of his own boats in a deeper area and to moor a commercial fishing boat which is owned by his son. The platform at the end of the extended dock would be used for fishing by the Applicant and his family and guests. When completed, the Applicant's present dock and proposed addition would extend 157 feet northward from the Applicant's property. There is space for two boats to be moored on the east of the present dock. Applicant does not propose to allow the mooring of additional boats on the east side of the extension. Docking would be expressly prohibited on that portion of the proposed dock. The Petitioner, 1010 Seaway Drive, Inc., owns land immediately to the east of the Applicant's property. The Petitioner's property includes approximately 118 feet of water frontage. The Petitioner operates a commercial marina on its property. Petitioner has a dock which extends considerably farther to the north than the Applicant's present dock and also considerably farther than the Applicant's dock with the proposed extension. Petitioner contends that permitting the proposed extension would result in a navigational hazard for boats that are moored at Petitioner's dock. This contention is not supported by the evidence. There is more than 25 feet between the proposed extension of the Applicant's dock and any structure connected with Petitioner's dock. The closest structures are mooring poles, not the dock itself. The Applicant's dock as proposed for extension will continue to allow boats ample ingress and egress to Petitioner's dock. If the mooring and docking of boats were permitted on the east side of the Applicant's proposed extension, however, a significant navigational hazard would result. The property immediately adjacent to the Applicant's property to the west is owned by the Books. The Books' property includes 40 feet of water frontage. The Books presently moor their boat at a small dock which runs along their shoreline. The proposed extension of the Applicant's dock would require the Books to exercise more caution in docking their boat, but it would not significantly interfere with their ingress and egress. The 24-foot platform at the end of the proposed extension could cause some problems. The Applicant, however, has indicated his willingness to shorten the platform to 14 feet. Thus shortened, the proposed extension and platform will cause no significant interference with the Books' ingress and egress. Furthermore, the Books are left with adequate room to build a dock in the future.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the Applicant, Robert R. Phifer, to construct an addition to his existing dock in accordance with his application. The permit should contain all of the specific conditions included in the Department's letter of intent issued October 15, 1982. In addition, the platform at the end of the proposed extension should be reduced from 24 feet to 14 feet in length. RECOMMENDED this 29th day of April, 1983, in Tallahassee, Florida. G. STEVEN PFEIFFER Assistant Director Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1983. COPIES FURNISHED: Ross A. McVoy, Esquire Madigan, Parker, Gatlin, Swedmark & Skelding Post Office Box 669 Tallahassee, Florida 32302 Alfred J. Malefatto, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Mr. Robert R. Phifer 1006 Seaway Drive Fort Pierce, Florida 33449 Ms. Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Kevin X. Crowley, Esquire Department of Natural Resources 3900 Commonwealth Blvd., Suite 1300 Tallahassee, Florida 32303
The Issue Whether the orders for corrective action DER proposes to enter should be made final against the persons to whom the notice of violation is addressed for the reasons alleged in the notice?
Findings Of Fact Eugene and Marian O. Black, Thomas A. Johnson, Dennis Black, Daniel V. Black and Ronald E. Black do business under the name Gulf Bait & Tackle. Mr. Johnson and Mr. R. E. Black fish for bait from boats that the business moors in a canal on Hernandez Point in Santa Rosa County. The canal enters Class II waters approved for shellfish harvesting in Escambia Bay near East Bay. By 1986, shoaling at the mouth of the canal began to interfere with ingress and egress. The Blacks attributed the shoals to the failure of the sea walls along the canal sides near the mouth. Three hurricanes in rapid succession had left a tattered remnant of the creosote-soaked wooden structures. Vandalism and a ditch the county dug behind the western wall, which stood on county property, also contributed. In October of 1986, perhaps half the sea wall paralleling the eastern canal bank survived. At the southern end of this segment, the sea wall turned a corner and ran east till it reached shore. What had been land inside the corner was badly eroded. Only the four easternmost panels of the southern portion of the sea wall east of the canal remained intact. Water moved freely past wooden piles resembling, in their disconnectedness, a skeleton which most of the flesh had let go. DER's Exhibit No. 1. On January 28, 1986, the Blacks bought "Lot 37, Garcon Subdivision," the Partly submerged parcel once protected by perpendicular seawalls east of the canal. DER's Exhibit No. 8. West of the canal mouth, the Blacks volunteered their time and equipment to install a concrete seawall abutting the county property. Neither the county nor the Blacks sought or obtained a permit for this work. Joseph Charles Harp, a dredge and fill inspector in DER's employ, testified that the western seawall was exempt from permit requirements, although it extends into the bay beyond the mean high water line. Lot Resold The Blacks and Mr. Johnson agreed to sell Lot 37, Garcon Subdivision, to James F. Richardson and Susan M. Richardson for what they had paid for it, and to construct a sea wall, if the Richardsons would furnish materials for the job, as Santa Rosa County had done, for the sea wall west of the canal. In keeping with this agreement, a deed was executed in favor of the Richardsons, DER's Exhibit No. 9, who furnished materials with which, in two weeks' time, the Blacks constructed a vertical, concrete seawall and dredged the canal, using a bulldozer, a crane and a dragline. Before the work was undertaken, neither the Blacks nor the Richardsons sought or obtained a DER permit. The new seawall stands in about the same place the wooden seawall on the eastern side of the canal, which "had been nonfunctional for years," once stood, consisting, as the older structure had, of two perpendicular sections. The new southern leg runs east along a line about one foot south of its predecessor, until it intersects the shore of the bay. DER Finds Project Work on the Richardsons' seawalls was almost done when it came to DER's attention on April 1, 1987. In conversations on site, the Blacks asked Mr. Harp, the dredge and fill inspector, if they could go forward with capping the seawall. The seawalls were in place, and sand dredged from the canal had been deposited between the seawalls and the mean high water line, but the walls had not yet been capped. Mr. Harp, who in any event lacked authority to order work stopped, told them they might. Nobody from DER ever told the Blacks, Mr. Johnson or anybody else that seawalls east of the canal would not require a DER permit. When DER's Mr. Harp told Whitfield Casey that Mr. Casey could repair his own seawall, without a permit, he made it clear that the exemption depended on the seawall's being "functional," when repaired. After the sea wall had been built, Mr. Harp suggested making application for a dredge and fill permit. He assisted Mr. Richardson in filling out an application for an after the fact permit. The Blacks wrote the $100 check in favor of DER that accompanied the Richardsons' application for a permit to dredge and fill, after the fact. Resold Lot Resold In a telephone conversation with Mr. Richardson Mr. Harp learned, about three weeks after the fact, that Mr. Johnson and the Blacks were once again the owners of Lot 37. It was in the course of this conversation that Mr. Richardson relayed an offer to place riprap against the south side of the southern seawall. Having decided against building on Lot 37 after all, Mr. and Mrs. Richardson had reconveyed to Mr. Johnson and the Blacks by warranty deed filed at the courthouse in Milton on May 4, 1987. The way the Richardsons calculate it, the Blacks owe them about $7,000, and they are sure the Blacks and Mr. Johnson will do the right thing by them. In the same telephone conversation in which he apprised Mr. Harp of the reconveyance, Mr. Richardson told him he should, in the future, deal with Mr. Johnson and the Blacks. Mr. Harp understood him to ask that the pending application for an after the fact permit be withdrawn. At hearing, however, Mr. Richardson testified that he never requested that the application be withdrawn. DER sent Mr. Richardson a check for $100, refunding the permit application fee. The check reached him in North Carolina in July, and eventually one of the Blacks. The status of the application was apparently unknown or unclear to Messrs. R. E. Black and Johnson before the final hearing in the present case, however. They expressed a desire to pursue a permit application. Enforcement Proceedings In August of 1987, a meeting among various DER employees, Mr. Johnson and the Blacks yielded more heat than light, and the notice of violation with which the present proceedings began ensued. Perhaps friction at the meeting also inspired the false and wholly baseless insinuations or allegations against DER personnel which mar the petition for administrative proceedings.
The Issue The issues in this case are: (1) whether Respondent contracted to perform certain marine specialty construction services and, if so, whether Respondent failed to obtain a building permit before starting such work; and (2) whether Respondent abandoned the job, thereby committing mismanagement or misconduct and causing financial harm to the owner.
Findings Of Fact Respondent, Clayton Kettles, is a certified marine specialty contractor who holds license number C-4046 (RX0062838). Respondent is and, at all times relevant hereto, was the qualifying contractor for and has done business as Kettles Construction Company, Inc. (Kettles Construction). In addition to being the qualifying contractor for Kettles Construction, Respondent is also the sole shareholder, officer, and director of the company. The principal place of business of Kettles Construction is 2401 17th Street South, St. Petersburg, Florida. Respondent has been employed in the marine construction business for a total of 46 years. For the last 16 years, Respondent has been self-employed by Kettles Construction. At all times relevant hereto, David Lee (Lee) was an estimator for Kettles Construction, having been hired by Respondent in December 1998. Before Lee was hired, Respondent spoke with Lee's father, Harry Lee, owner of Gulfcoast Marine Construction, Eugene Birney, and a long-time superintendent of Kettles Construction, to discuss the hiring of Lee. On the basis of these discussions, Respondent was convinced that Lee would be a good employee for Kettles Construction. At all times relevant hereto, Leo Calzadilla (Calzadilla) owned and resided in a single-family waterfront dwelling located at 16116 4th Street East, Redington Beach, Florida. Calzadilla was somewhat familiar with Kettles Construction, having first heard of the company from one of his neighbors. The neighbor told Calzadilla that he had used Kettles Construction to do some work on his seawall. Calzadilla also had seen trucks in the neighborhood with "Kettles Construction Company" painted on the sides of them. In January 1999, Lee went to Calzadilla's house, apparently to solicit business. Lee informed Calzadilla that he was doing other work in the neighborhood and had extra materials. Lee gave Calzadilla a business card from Kettles Construction that indicated Lee was an "estimator" for the company. Although the business card clearly identified Lee only as an estimator, Lee told Calzadilla that he was a "partner" with Kettles Construction. During or soon after his initial discussions with Lee, Calzadilla decided to have Lee perform certain work. Pursuant to these discussions, Calzadilla negotiated with Lee and eventually they agreed upon terms that were memorialized in a written contract (Contract I). The contract was dated and signed by Calzadilla and Lee on January 25, 1999. Contract I was on a Kettles Construction contract form and provided spaces for the following: a description of the services that would be provided; the date the work was to commence and to be completed; the total cost of providing the specified services, including labor and materials; and the signature of the owner of the property and the representative of Kettles Construction. Contract I provided for the removal of Calzadilla's existing tie pole and the replacement of the tie pole at a cost of $198.00, and for the rebuilding of Calzadilla's dock at a cost of $900.00. Contract I did not include the dates on which the work was to commence and be completed. Although the contract form contained spaces on which to provide the dates for commencement and completion of the work, these spaces were left blank. On January 25, 1999, the day Contract I was executed, Calzadilla paid Lee a deposit of $100.00 for the removal and replacement of the tie pole. That same day Calzadilla gave Lee a deposit of $800.00 for the rebuilding of the dock. Calzadilla paid both the $100.00 deposit and the $800.00 deposit to Lee in cash. The reason that Calzadilla paid the aforementioned deposits in cash was that Lee told him that Respondent wanted all payments made in cash. At or near the time Contract I was executed, but prior to January 26, 1999, Lee began working at Calzadilla's property. At this time, Lee's work appeared to be limited to tearing down Calzadilla's old dock. After Lee tore down the dock, he asked Respondent if he could use a Kettles Construction truck. According to Lee, he had a personal job repairing Calzadilla's dock and needed the truck to remove the debris. Respondent acquiesced and allowed Lee to use the truck to remove the debris from Calzadilla's property. Respondent even went to Calzadilla's property and assisted Lee in removing the debris and loading it onto the truck. Respondent did not find Lee's request to use a company truck unusual. Even though Lee worked as an estimator with Kettles Construction, he was not precluded from taking on independent projects not associated with his duties as an estimator for Kettles Construction. Furthermore, based on his statements to Respondent, the work that Lee was performing, repairing Calzadilla's dock, could be properly performed by Lee because such a project did not require a permit. While Respondent was on Calzadilla's property to assist Lee in loading the debris onto the Kettles Construction truck, Calzadilla asked Respondent about constructing a 50-foot seawall cap replacement at Calzadilla's residence. After Calzadilla expressed an interest in Respondent's constructing a seawall, Respondent did several things in contemplation of constructing the seawall replacement project for Calzadilla. First, Respondent prepared a proposed contract for the Calzadilla seawall project and gave the contract to Lee for delivery to Calzadilla. Next, Respondent sent a notarized letter to Pinellas County officials in which he authorized Lee to pick up the permit for the proposed Calzadilla seawall project. Finally, on January 31, 1999, Respondent obtained an engineer's sealed drawing for the Calzadilla seawall project from a professional engineer. The notarized letter referred to in paragraph 16 was dated January 27, 1999, and signed by Respondent. In the letter, Respondent, acting on behalf of Kettles Construction authorized Lee to pick up the permits for two projects: the proposed Calzadilla seawall project; and a project for Calzadilla's next door neighbor. The letter notified appropriate Pinellas County officials that Lee was authorized to pick up permits for projects at two sites in Redington Beach, Florida: 16116 4th Street East, Calzadilla's address, and 16114 4th Street East, the address of Calzadilla's neighbor. Respondent's letter expressly stated that the authorization was limited to "these job addresses only" and requested that all inquiries regarding the authorization be directed to Respondent at his pager number. The authorization for Lee to pick up the permits was contingent on the homeowners' accepting Respondent's proposals for the specified projects and then on Respondent's successfully applying for the required permits. Apparently, Calzadilla's neighbor referred to in the authorization letter entered into an agreement with Respondent. Thereafter, Respondent applied for the required permit and after officials at the Pinellas County Authority verified that Lee was authorized to pick up the permit, he was given the permit for the 16114 4th Street East project. However, Respondent never applied for a permit for the proposed Calzadilla project because Calzadilla never accepted Respondent's written offer regarding the project. Respondent prepared the January 27, 1999, authorization letter because Pinellas County Water and Navigation Control Authority (Pinellas County Authority) required specific authorization from Respondent, as qualifying contractor for Kettles Construction, in order to allow Lee or anyone else to pick up permits for Kettles Construction projects. Lee never delivered to Calzadilla the proposal prepared by Respondent that offered to have Kettles Construction build a seawall on Calzadilla's property. Moreover, Lee never informed Respondent that he had failed to do so. Calzadilla never saw Respondent's proposed agreement, was unaware that it existed, and thus, never signed the agreement. Rather than his delivering Respondent's proposal to Calzadilla, Lee met with Calzadilla on January 26, 1999, and discussed performing certain work for Calzadilla, including construction of a seawall. Following this discussion, Lee and Calzadilla entered into a second contact (Contract II). The contract was signed by Lee and Calzadilla on January 26, 1999. Contract II was on a Kettles Construction contract form identical to the form described in paragraph 8 above. Pursuant to Contract II, Lee agreed to perform the following work at Calzadilla's property: (1) remove and replace the existing seawall cap; (2) install tie backs; and (3) install a personal water craft lift system manufactured by Dolphin Marine Equipment. This work required permits and Contract II provided that the "contractor" would obtain these permits. Contract II provided that the work required under the agreement would commence approximately 10 days from the contract date and be completed approximately 14 days thereafter. A hand- written note next to this provision indicated that "there will be $100.00 deducted per day if the job is not completed 2-12-99." The total amount to be paid by Calzadilla under Contract II was $4,213.00. According to the terms of the contract, $1,615.00 of the total contract amount, the price of the water craft lift, was to be paid "with check payable directly from homeowner [Calzadilla] to Dolphin Marine Equipment, Inc." With regard to Contract I, Lee had instructed Calzadilla to make all payments in cash. However, on January 26, 1999, when Calzadilla told Lee that he did not have enough cash to make the payments required under the Contract II, Lee agreed to accept checks, but told Calzadilla to make the checks payable to Lee. Calzadilla complied and, except for the check to Dolphin Marine, made all payments under Contract II payable to Lee, rather than to Respondent or Kettles Construction. It is unclear when work under Contract II commenced and what, if any, work was performed by Lee. However, under the terms of the Contract II, 50 percent of the contract amount was to be paid when the contract was executed, with the remaining balance due upon completion of the project. On January 26, 1999, the day Contract II was executed, Calzadilla gave Lee two checks: one for $1,615, made payable to Dolphin Marine; and a check in the amount of $1,500.00, made payable to David Lee. Three days later, on January 29, 1999, Calzadilla gave Lee a check payable to Lee in the amount of $1,000.00. After the January 29, 1999, payment, the remaining balance owed by Calzadilla under the terms of Contract II was $98.00. The last time that Calzadilla had personal contact with Lee was January 29, 1999, the date Calzadilla made the last payment to Lee. The only work performed by Lee was demolition of Calzadilla's existing dock. Based on misrepresentations made to him by Lee and because the name Kettles Construction was printed on the contract form presented to him by Lee, Calzadilla mistakenly believed that he had entered into contract with Kettles Construction. Despite this belief, at no time during the negotiations and execution of Contracts I and II did Calzadilla have any contact with Respondent. The telephone number of Kettles Construction was printed on both the business card and Contracts I and II that Lee gave Calzadilla. Nevertheless, Calzadilla made no effort to contact Respondent at the business number to verify that it was proper to make payments to Lee in cash or by check made payable to Lee rather than to Kettles Construction. Calzadilla first contacted Respondent in late February 1999 to complain that Lee was no longer working at Calzadilla's home. This was several weeks after Lee had obtained the funds from Calzadilla and abandoned the work at Calzadilla's home. Prior to Calzadilla's telephoning him, Respondent was unaware that Lee had prepared and signed Contracts I and II and had no knowledge that the contracts existed. When Calzadilla notified Respondent that Lee had abandoned the work at the Calzadilla property, Lee was no longer an employee of Kettles Construction. Before Respondent was initially contacted by Calzadilla, Respondent had learned of another unrelated incident where Lee had acted outside the scope of his authority as an estimator for Kettles Construction. Upon learning of Lee's actions, Respondent had fired Lee. Subsequently, Respondent cooperated with the Pinellas County law enforcement authorities to incarcerate Lee. Contrary to Calzadilla's mistaken belief, Respondent never entered into a contract with Calzadilla to perform any work. Accordingly, Respondent was not required to apply for or pull required permits for work to be done on Calzadilla's property. Because there was never a contract between Respondent and/or Kettles Construction, Respondent was neither required to nor did he perform work on Calzadilla's property. Notwithstanding Lee's misrepresentation, Respondent never delegated to Lee nor has he ever delegated to anyone the authority to negotiate or sign contracts on behalf of Kettles Construction or Respondent. In the 16 years that Respondent has been in business, he has always signed every contract on behalf of Kettles Construction. Respondent never authorized Lee to speak for him except to prepare proposed work estimates. These estimates were to be used by Respondent to prepare proposed contracts which would be executed by Respondent and the owner if the parties agreed to the terms of the agreement. Respondent never gave Lee authority to accept funds from anyone on behalf of Respondent or Kettles Construction. Moreover, Respondent never instructed Lee to advise customers that all payments to Kettles Construction should be paid in cash or by check made payable to Lee. Respondent has always requested that customers make checks for work performed by Kettles Construction payable to Kettles Construction. Respondent was unaware that Calzadilla had given money to Lee and never received funds from Calzadilla, either directly or indirectly. Respondent never approved or ratified any of the statements made to Calzadilla by Lee or the written agreements executed by Lee and Calzadilla.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMEND that Petitioner, Pinellas County Construction Licensing Board enter a final order that: Dismisses Counts One and Two of the Administrative Complaint and finds that Respondent did not violate the provisions of Chapter 89-504, Section 24(d)(h)(j)(m) and (n), Laws of Florida. Dismisses Counts Three and Four of the Administrative Complaint with prejudice. DONE AND ENTERED this 30th day of December, 1999, 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 30th day of December, 1999. COPIES FURNISHED: William J. Owens, Executive Director Pinellas County Construction Licensing Board 11701 Belcher Road, Suite 102 Largo, Florida 34647-5116 G. Barry Wilkinson, Esquire Lefter, Cushman & Wilkinson, P.A. 696 First Avenue North, Suite 201 St. Petersburg, Florida 33701
The Issue The issues are whether Respondents dredged and filled within wetlands and surface waters without a permit and, if so, what penalty and corrective action should be imposed.
Findings Of Fact The Trust owns the Property, and Freeman is the sole trustee of Trust and its sole beneficiary. The Property, which is located in Lake County, abuts Lake Nettie, a 45-acre lake with no outlet, under ordinary water conditions. A portion of the Property occupies wetlands and surface waters of Lake Nettie. Much of the upland abutting the lake in the vicinity of the Property is developed, although no other seawalls are visible. The shoreline in the vicinity of the Property is not heavily developed, but it bears clear signs of maintenance to control the growth of vegetation in the sandy beach. Sometime after October 29, 2003, Freeman's late mother purchased the Property, on which is located a single-family home. At the time, the Property did not have a dock or seawall. Shortly after Ms. Freeman acquired the Property, Freeman, an accountant, or his mother hired a contractor to build a dock. The dock was constructed in early 2004. Because it did not exceed 1000 square feet over water, this activity qualified for a noticed general permit, under Florida Administrative Code Rule 62-341.475(1)(a), although the record does not reveal whether Ms. Freeman provided the notice required for this activity. Nothing in the record suggests that the construction of the dock altered the pattern of limited vegetation of the Property waterward of the wetlands line. However, nothing in the record suggests that erosion, siltation, or turbidity has been a problem at the waterward end of the Property. The only evidence touching on the issue of drainage into the lake is that, in the vicinity of the Property, runoff enters the lake by sheetflow. In 2007, by which time title to the Property had passed to the Trust, Freeman sought to add a roof to the dock that his mother had had constructed. Finding that the contractor who had built the dock was no longer in business, Freeman obtained the required local building permit and did the work himself. Shortly after completing this job, Freeman constructed the seawall, obtaining the fill from a neighbor who was excavating a basement. In connection with this dispute, Petitioner has established a wetlands line on the Property. The wetlands line is amply supported by the evidence, including careful analysis by Petitioner's representatives of the vegetation and soils, as well as hydrologic indicators, such as algal mats, that are present on the Property within the area of the Seawall Project. Based on this wetlands line, the Seawall Project is in the wetlands, so that the construction of the project constituted dredging and filling of wetlands. The waterward face of the seawall is entirely in wetlands, as are the return walls that run upland from the seawall face and the fill placed upland of the seawall face. DEP Exhibit 11, which is incorporated by reference herein, accurately depicts the wetlands line on the Property. There is some confusion in Petitioner's pleadings between the surface area of wetlands that Freeman filled and the amount of fill. The surface area of disturbed wetlands is about 500 square feet. According to Freeman, whose testimony is credited, the amount of fill was about what would be contained in a small dump truck, so it might be in the neighborhood of five cubic yards. In the NOV, Petitioner describes the corrective action that it is imposing on Respondents. Within 45 days of the NOV, "Respondent" would be required to conduct certain preliminary activities and then: 1) remove the seawall and all associated fill waterward of the wetland line; 2) place the removed fill in a contained upland location where it will not discharge into wetlands or surface waters; 3) during and after regrading, stabilize with vegetation all slopes adjacent to the restored area as soon as possible (not more than 72 hours after attaining final grade) to prevent erosion, siltation, or turbid runoff into the wetlands and surface waters; remove nuisance and exotic vegetation prior to planting; replant the restoration area with listed wetland species on three-foot centers within elevation- based zones depicted on an attached drawing; plant healthy, nursery-grown stock from a state-licensed nursery; provide receipts for all plants used in the restoration area; monitor the restoration area at four-month intervals until the restoration area contains less than ten percent coverage of nuisance and exotic species and 80 percent of the plantings have survived for at least one year and are viable, reproducing plants; submit monitoring reports to Petitioner; and allow Petitioner's representatives access to the Property at reasonable times to determine compliance with the NOV conditions. Petitioner does not seek corrective action for the addition of the roof to the dock, which resulted in the addition of about 216 square feet to the original, 1000 square-foot dock. Presumably, this decision acknowledges the relative ease of obtaining a standard general permit for a dock of no more than 2000 square feet serving a single-family home under Florida Administrative Code Rule 62-341.427(1)(a)2. For this reason, the violation arising out of the Dock Project is relatively minor. The corrective actions focus on the seawall because the violation arising out of the Seawall Project is more significant. Under Florida Administrative Code Rule 62-341.475(1)(c), this activity involved 400 square feet more than the 100 square feet of dredging and filling that is allowed as a "minor system" under a noticed general permit. An individual environmental resource permit would be required for this project, and there is no reason to assume that Respondents would be able to obtain such a permit. Corrective action is therefore necessary in the form of the removal of the entire Seawall Project, including all of the fill, and the restoration of the pre-project grade. The question concerning corrective action is the extent of Respondents' liability for undertaking the planting scheme outlined above in the NOV. The record fails to establish the restorative nature of this activity because, immediately before the commencement of the Seawall Project, the shoreline in the impacted area was unvegetated. If Respondents had applied for permits for these two activities, Petitioner would have charged the fee for the proposed activity that carried the higher fee, which is the Seawall Project. The application fee would have been $600. By not applying for and obtaining this permit, Respondents wrongly obtained an economic benefit of $600. The fact that Respondents will only be allowed to keep the product of the Dock Project suggests that the final economic benefit should be based on the reduced fee associated with this activity, but, for reasons stated in the Conclusions of Law, this point is irrelevant because Petitioner is not authorized to recover either application fee in this case. Two of Petitioner's representatives testified as to the cost of their investigatory services in this case. Based on the total hours expended, at their respective hourly rates, without regard to any fringe benefits, the cost of the investigation is about $1700, but, for the reasons stated in the Conclusions of Law, this fact is also irrelevant because Petitioner is not authorized to recover these costs in this case.
The Issue This case concerns the issue of whether the Respondents, B. W. and Mildred Peake, should he granted a permit to construct an addition to an existing dock located on the north shore of Old River in Pensacola, Florida. The Petitioner, Mrs. A. K. Doyle, testified on her own behalf and also called as a witness, Mildred N. Peake, one of the applicants. The Petitioner offered no exhibits into evidence. Mr. B. W. Peake testified on behalf of himself and his wife Mildred N. Peake. The Peakes offered and had admitted into evidence Exhibits 1-7. The Department of Environmental Regulation called as witnesses Mark Snowden and Richard Fancher. The Department offered and had admitted Exhibits 1-6. Subsequent to the final hearing, Counsel for the Petitioner and the two Respondents submitted proposed findings of fact and conclusions of law for consideration by the Hearing Officer. To the extent that those proposed findings and conclusions are inconsistent with this order, they were rejected as not being supported by the evidence or as unnecessary to the resolution of this cause.
Findings Of Fact The Respondents, B. W. and Mildred N. Peake, have filed an application for a permit to construct an addition to an existing private pier located on the north shore of Old River, adjacent to Innerarity Point. It will be centered on a lot located at 878 Innerarity Road, Pensacola, Florida. B. W. and Mildred N. Peake are the owners of the property where the existing dock is located. On December 23, 1982, the Department of Environmental Regulation by letter notified the applicants that the Department intended to grant the permit application. The Petitioner, Mrs. A. K. Doyle, filed an objection to the issuance of that permit. Mrs. Doyle's property is adjacent to the eastern boundary of the Peake property. The application, as modified, seeks to extend the existing pier by sixteen (16) feet. The existing pier is five feet wide and approximately 185 feet long. The addition is to be constructed of the same materials used in the existing pier and will rest on treated pine pilings. The purpose of the pier is to allow temporary berthing for two additional sailboats. There will be no fuel pumps or toilets on the pier. The pier will be used for private purposes only and will involve no commercial operation. Upon completion of the addition, the Peake's pier would be approximately 110 feet from the Intercoastal Waterway Channel and will not create a hazard to navigation. The Peakes have obtained approval from the U.S. Army Corps of Engineers to construct the pier extension. They have not obtained consent from the Department of Natural Resources to use the state owned lands beneath the proposed addition. The addition to the pier will total approximately 80 square feet and will require 4 pilings. There is currently an extensive grass bed consisting of Cuban Shoalweed approximately 90 feet from the shoreline. Jetting of pilings for the addition will occur approximately 103 feet from the closest point of this grass bed. The proposed addition will have no significant impact on the existing grass beds. The grassbeds in this area stop growing at the edge of the photic zone or that point at which sunlight can no longer penetrate the water. At this site, this occurs at a depth of 1.5 meters or approximately 4.8 feet. The depth of the water at the site of the proposed addition is from 8 to 10 feet. There are no grasses growing in the immediate area of the project site. The grass beds in the area contain a wide diversity of benthic microinvertebrates. The number of species and density of benthic microinvertebrates were less at the addition site. The proposed addition will not interfere with marine life or destroy marine productivity. The substrate at the immediate project site consists of coarse sand with some fines associated with the sand. During the piling installation, these fines will become suspended in the water, thus creating turbidity. The use of a turbidity screen or control device during construction would limit turbidity to the project site with very temporary, limited violation of water quality. The project will have no deleterious effect on water quality. All boats using the pier will have Coast Guard approved marina heads. These marine heads will not discharge into the waters in the area. Garbage from the boats will be disposed of at the Peake home adjacent to the pier. The pier is presently being used to permanently moor one sailboat.
Recommendation Based upon the foregoing findings of fact and conclusions of law it is, RECOMMENDED: That the Department of Environmental Regulation issue a permit for the applicants, B. W. and Mildred N. Peake, to construct an addition to their existing dock in accordance with the application as modified. The permit should contain all the specific conditions included in the Department's letter of intent dated December 23, 1982. In addition, the necessary approval from the Department of Natural Resources should first be obtained. DONE AND ORDERED this day of April 1984, in Tallahassee, Florida. MARVIN E. CHAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 FILED with the Clerk of the Division of Administrative Hearings this 27th day of April 1984. COPIES FURNISHED: Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 E. Gary Early, Esquire Division of Administrative Hearings Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Ralph A. Peterson, Esquire Post Office Box 12950 Pensacola, Florida 32576 James M. Wilson, Esquire Post Office Drawer 1832 Pensacola, Florida 32598
