Findings Of Fact Petitioner is the record owner of Lot 11, Block 4 and Lot 12, Block 2 of Ramrod Shores Marina Section subdivision on Ramrod Key in Monroe County, Florida. These lots lie across Angelfish Road from each other. They both lie across Mariposa Road from Torch Ramrod Channel which leads into Niles Channel which leads into the Gulf of Mexico to the north; to the south Torch Ramrod Channel leads into Newfound Harbor which opens onto the Atlantic Ocean. Mariposa Road appears on a subdivision plat filed in the official records of Monroe County in 1960, and on revisions of the original plat, one of which was filed in 1963, and the more recent of which was filed in 1969. On the two earlier plats, it is recited that "[r]oads shown hereon not previously dedicated or owned by the State or County are hereby dedicated to the perpetual use of the public." The evidence did not show whether Monroe County or any other governmental body had accepted the dedication of Mariposa Road. Cape Sable Corporation, a predecessor in title to petitioner, trucked in oolite fill to construct Mariposa Road; and repaired the road after occasional washouts, a practice which petitioner's immediate predecessor in title, James Brown, continued. Because the rock which was used to build Mariposa Road is loosely packed, water from the channel percolates through the road even when it is not high enough to move across the road in a sheet, which sometimes happens. There are also low lying places in the road through which tidal waters flow onto petitioner's property. Salt water up to a foot deep regularly stands on petitioner's property, which is overgrown with spider mangroves and red mangroves. The mangroves stabilize the shoreline on account of their root systems, which also serve to filter out certain substances which would otherwise run off into the channel. Decaying plant matter produced by the mangroves supports various microorganisms which constitute an early link in the food chain that results in commercial fisheries. Killifish, needlefish, jelly fish and wading birds all frequent petitioner's property in its present state. Covering petitioner's lots with fill would destroy or displace the marine life now flourishing there. Respondent has requested James Brown to remove the fill along Mariposa Road, citing Chapter 403, Florida Statutes, and the Army Corps of Engineers has taken similar action under applicable federal laws. Mr. Brown evinced an intent at the hearing not to comply with these requests, but to work instead to persuade Monroe County to blacktop Mariposa Road. Paving Mariposa Road with blacktop would involve compacting rock or otherwise creating an underbed impermeable to water. Mr. Brown envisions Mariposa Road being upgraded to the level of State Road 4, which it intersects, before being paved. If Mariposa Road were upgraded and paved in this fashion, it would act as a dam keeping tidal waters out of petitioner's lots, unless culverts were installed. In the event Mariposa Road is upgraded and paved and no culverts are installed, the marine habitat which now exists on petitioner's property would be doomed and filling the lots would hasten the process at worst.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for fill permit unless and until Mariposa Road is upgraded, without installation of culverts, and paved, so that it acts as a dam impervious to the waters of Torch Ramrod Channel. DONE and ENTERED this 17th day of February, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 904/488-9675 COPIES FURNISHED: Mr. Edward B. Johnson, Jr., Esquire 410 Fleming Street Key West, Florida 33040 Mr. Louis F. Hubener, Esquire Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION FRANCIS X. ATWATER, Petitioner, vs. CASE NO. 77-1409 DEPARTMENT OF ENVIRONMENTAL REGULATION, Respondent. /
Findings Of Fact Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range 24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built. Sometimes during July, 1982, Moore used a shovel to excavate a channel from the open waters of Estero Bay to a dock existing at the edge of the fill pad. Approximately 48 cubic yards of excavated material was piled up along the banks of the channel. The channel measured approximately 1.5 feet deep (at low tide) by 9 feet wide by 70 feet long. The channel was dug so that Moore could got his boat in and out from the dock at medium tide. The passage to the deck was already possible at high tide, as Moore had a shallow draft pontoon boat. In July, 1981, Moore constructed a rip-rap revetment with backfill the northern side of his house fill pad. The back fill area contains approximately 160 cubic yards of fill, and is approximately 10 feet wide by 110 feet long. Red mangrove and black mangrove are and were the dominant vegetational species in the area where the channel was dug, where the excavated material was placed, and where the revetment and fill was constructed. The area of dominant mangrove vegetation extends from the work areas to the open waters of Estero Bay. Moore did not apply for or receive a permit from DER prior to undertaking the work referenced above. Upon discovery of the work in September, 1982, DER notified Moore that a permit was needed for the excavation and filling he conducted. In October, 1982, Moore agreed to fill in the channel and remove all unauthorized fill by January 19, 1983. Inspection by DER on January 26, 1983, showed that restoration had not been started, and in fact more work had been done on the channel. DER issued a Notice of Violation and Orders for Corrective Action (NOV) to Respondent on March 29, 1003, alleging violations of Chapter 403, Florida Statute's, and DER rules and requiring restoration of the areas dredged and filled. Upon service of the Notice of Violation by the Sheriff, Respondent petitioned for this hearing. DER incurred costs of 5101.88 in investigating the violations alleged in the NOV. As of the date of the hearing, restoration work still had not been performed. Although the spoil piles alongside the channel are now diminished, the channel itself was deep as it previously had been and the rip-rap revetment and backfill had not been removed.
Findings Of Fact The applicant proposes, on the west shore of the Indian River to: (1) Dredge an access channel 3' deep, 801 wide, and 1,500' long, Construct a vertical seawall of 600 linear feet along the waterward side of the proposed fill area, and Disposit some 4,000 cubic yards of spoil in a 200' x 400' area enclosed by the seawall. This proposed seawall will be in line with and connect to an existing seawall along the adjacent north property. A hydraulic dredge and a silt screen will be used during dredging operation. Petitioner acquired the submerged lands fronting his property on the west bank of the Indian River at Melbourne, Florida to the bulkhead line, by purchase from the Trustees of the Internal Improvement Trust Fund (IITF) in 1963 and 1964. The submerged land just north of Petitioner's property was likewise acquired from the Trustees, bulkheaded and filled, circa 1963 where a commercial marina is now operated by one Rathman. Indian River in the vicinity of Melbourne has become in the nature of a basin by reason of the Eau Gallie Causeway to the north and the Melbourne Causeway to the south. These causeways have materially reduced the flushing of this stretch of the Indian River and increased the turbidity of the water. Normal turbidity of the Indian River in the vicinity of the lands here involved is such that the bottom cannot be seen at depths greater than 1.5 to 2 feet. Surface drainage from U.S. 1, which runs just west of Shablowski`s property, and an area of some 5 square miles just west of U.S. 1 runs into the Indian River through culverts just north and south of Petitioner's property. No evidence was submitted that this surface runoff goes through debris or settling traps before being discharged into the Indian River. Rathman's marina and the area there filled is bounded on the south by a bulkhead normal to the shoreline of Indian River and extending into the river some 200 feet. This creates a pocket where some debris accumulates on the north end of Petitioner's property. Granting the applied for permit would result in moving this pocket 400 feet to the south. Although the Indian River, between the causeways above noted, is in an ecologically stressed condition due primarily to the effects of the causeways and the surface water drainage into Indian River, it is not dead. Cuban Shoalweed grows in the shallow water areas of the Indian River (less than 3 feet deep) and provides a source of food to the marine life in the area. The submerged lands owned by Petitioner are sparsely covered (10 percent to 25 percent) with patches of Cuban Shoalweed. The area proposed for filling has an average depth of approximately 1.5 feet with some areas near the eastern edge of the property having depths of up to 3.5 feet. However, these are primarily holes or former channels. A significant amount of animal life exists on the property in question. These consist of blue crabs and numerous small fishes such as silversides, mojarra, needlefish, mullet, sheepshead, leather jack and snook. Benthic samples collected include polychaetes, amphipods, sphaeromid isopods, cumaceans, small shrimp, gem clams, paper mussels, gobies and pipe fish. Petitioner's proposal to dredge an access channel 3 feet deep, 80 feet wide, and 1500 feet long from the eastern edge of the property riverward will not have a significant adverse impact on marine biological resources or water quality. (Exhibit 3). Silt screens will be used in connection with the hydraulic dredging and the shallow depths to which Petitioner proposes to dredge will not cause permanent damage to the bottom grasses, if any, in the dredged area. The vertical bulkhead proposed by Petitioner would increase the possibility of scouring in the areas; however Petitioner agreed at the hearing to install rip rap along this bulkhead. This will eliminate scouring and promote the propagation of marine life. Granting the application will result in the loss of approximately 2 acres of moderately productive bottom land in the Indian River, or approximately 0.1 percent of the total area of the Indian River in the basin between the two causeways. Respondent generally acknowledges that filling of the area in question will not have a significant effect upon the ecology of the area; however, if others also fill productive bottom lands the cumulative effect could be significant. Petitioner has not determined the use to which the property will be put if the application is granted. At such time as construction is instituted DER can establish requirements for surface water runoff containment to protect the receiving waters.
The Issue Whether the Respondents have polluted by dredging and filling within the landward extent of waters of the state, to wit: Choctawatchee Bay, without a permit for said dredging and filling. Whether the Orders for Corrective Action requiring removal of the fill material and restoration of the disturbed wetlands are reasonable and appropriate.
Findings Of Fact Ralph Ritteman has owned some interest in property which has been developed as a subdivision known as Sunset Point, including Sunset Point Addition, since approximately 1970. This property adjoins Choctawhatchee Bay and the Intercoastal Waterway in Walton County, Florida. In early 1984, a subdivision plat was recorded far lots 1-13. That plat showed two areas specifically not to be a part of it. Those two areas were the site of dredging and filling activities by Ralph Ritteman, wherein he had eleven ponds excavated and the spoil placed on the property. The Department of Environmental Regulation asserts that the excavation of the ponds and the placement of the spoil occurred in jurisdictional wetlands of the state. Ritteman asserts that the property is not jurisdictional and that no permit was needed. The primary dredge and fill activities occurred between June and October, 1984. Ritteman represented that these were the dates of the activity in an after-the-fact permit application which he filed with DER but later withdrew. In the course of his testimony in this proceeding, Ritteman took the position that he did the dredging and filling after a November 14, 1985, seminar presented by DER regarding wetland regulations wherein he was misled by a document distributed by DER entitled "State of Florida Joint Application for Permit," which covered dredge and fill guidelines. Specifically Ritteman testified that he did the dredging and filling after that seminar. It can only be concluded that Ritteman's testimony in that regard is false and that Ritteman did the unpermitted dredging and filling in 1984 and knew at the time that his activities were at the every least questionable. Specifically, (1) The 1983 plat shows these exact wetland areas as excluded; (2) A February 14, 1985, buyback agreement between Ritteman and Jerry Johnson, a purchaser of a lot on which the dredging and filling activity had occurred, showed that there was an existing concern about future action by a public agency to require restoration of the property to its prior condition; (3) John Brett, a Respondent herein because he purchased a lot from Ritteman in the affected area, bought the lot in 1985 with the existing ponds in place except for a land bridge which Ritteman had excavated (in 1985) and the fill placed for Brett to use as a homesite; and (4) Richard Sczcepanski, a Respondent herein, bought his lot in February, 1985, and the ponds and spoil were already in existence. Further, observation of Ritteman during his testimony and appearance at this proceeding leads this fact finder to the conclusion that Ritteman was less than candid in all of his testimony and dealings. After engaging in this unpermitted dredging and filling activity, Ritteman divided the affected area into lots and sold these lots to John and Dorothy Brett, Richard Szczepanski, Joe Williams, Jerry Johnson, Mohamed Yazdi, and Reza Toossi. A plat of the newly created lots was recorded as the Sunset Point Addition. All of these purchasers were named by DER in its Notice of Violation. Only the Respondents herein requested a hearing. The lots were sold by Ralph Ritteman and the Florida-Minnesota Land Company. However, that corporation's authority to do business in Florida was revoked on November 10, 1983, by the Secretary of State's Office. The DER discovered the unpermitted activity in 1986 and conducted an investigation to determine if the property impacted by the dredging and filling had been jurisdictional wetlands. The sites described in the Notice of Violation are vegetated with plant species consisting of black needlerush (Juncus roemerianus), sawgrass (Cladium iamaicense), salt meadow cordgrass (Spartina patens), salt grass (Disticalus spicata), and giant reed (Phraomites australis). The Department's investigation, using core samples, located the former surface of the undisturbed wetland beneath approximately 1 1/2 feet of dredged spoil material; the plant species Juncus roemerianus was also identifiable beneath the layer of spoil material placed on top of it by Ralph Ritteman. A beach berm is present at the shoreline interface of the marsh areas with Choctawhatchee Bay. Beach berms such as this one are typically built up in most marshes by the wave action. On the site are piles of unconsolidated fill material that was excavated from the pond areas. Included in this excavated material is muck and black silt-type material associated with salt marsh and gray clay material which was the underpan or confining layer. The Soil Survey Report of 1985 for Walton County shows that on the south site of the dredging activities, the soil type (prior to the excavation and filling) was Duckston muck, which is found in frequently flooded areas in very poorly drained sandy soils in marshes bordering salt water bays. Duckston muck consists of a 4-inch surface layer of black muck over loamy sand. The northern site soil type is Dirego muck, also found in frequently flooded areas with very poorly drained organic soils that occur in tidal marshes. Dirego muck consists of about 28 inches of muck overlying fine sand and loamy fine sand. A 1982 aerial photo clearly shows the delineation between the marshgrass area and the uplands. The current conditions at the site are entirely consistent with the delineation shown in this photo. There are remaining wetlands at the site in an area denoted as the homeowners park on the plat map of the Sunset Point Addition. There is an interchange of water between the remaining wetlands and the bay. Based on all the data, including, but not limited to, aerial photographs, remnant and existing vegetation, site observations, topography, hydrological data and soil types, it is clearly established that, prior to this unpermitted activity, there was a regular, periodic interchange and exchange of water between these wetlands and waters of the state. The two areas of unpermitted activity clearly fall within the jurisdictional wetlands of the state. Choctawhatchee Bay is brackish water and is tidally influenced. In a misapplication of the statute and rule, Ritteman offered into evidence a survey which purported to show the 1 in 10 year flood event elevation. This elevation line was set by surveyor Basil Boles memory of rainfall and his observation of the rack-line or detritus on the beach as it existed in October, 1988. This elevation was not developed by the appropriate engineering techniques required by Section 403.8171, Florida Statutes, and is therefore given no weight. The unpermitted dredging and filling has resulted in pollution as defined by statutes and it eliminated and destroyed plant life in jurisdictional wetlands. It also eliminated the interchange of waters and the contribution of that interchange to the ecology and viability of the marsh system in the area. The Department expended in excess of $494.23 in investigating this violation, but it sought only $494.23 in the Notice of Violation.
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 and therein: Find Ralph Ritteman guilty of the violations charged for the unpermitted dredge and fill activity within the landward extent of waters of the state. Order Ritteman to bear the cost of and to perform restoration as specified in the Orders for Corrective Action. Order Ritteman to pay $494.23 to the Department of Environmental Regulation for the investigation of this violation. Order John and Dorothy Brett, Joe Williams and Richard Szczepanski to provide cooperation and site access during the restoration activities. DONE and ENTERED this 18th day of January, 1989, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2900 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NOS. 88-2560/88-3532/88-3533 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific' Rulings on Proposed Findings of Fact Submitted by Petitioner Department of Environmental Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1 (1, 6 & 7); 2 (3 & 5); 3(6 & 8); 4(9); 5(10); 6(15); 7(16); 8 first paragraph (2); and 9(18). The last two paragraph of proposed finding of fact 8 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Ralph Ritteman 1. The proposed findings of fact and conclusions of law and argument are so intermixed in Rittemans proposed order that specific rulings are difficult. However, to the extent that proposed facts are not actually contained in this Recommended Order, they are rejected as being unsupported by the credible, competent, substantial evidence. Specific Rulings on Proposed Findings of Fact Submitted by Respondent Szczpanski 1. The proposed findings of fact and conclusions of law and arguments are so intermixed in Respondents proposed order that specific rulings are difficult. Further, Respondents attempt to introduce new evidence regarding current condition of the property and the adjoining waterbodies and engineering standards. To the extent that proposed findings of fact are not actually contained in this Recommended Order, they are rejected as being unsupported by the credible, competent, substantial evidence introduced at hearing. COPIES FURNISHED: Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Richard L. Windsor Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Ralph Ritteman Post Office Box 1747 Santa Rosa Beach, FL 32459 John Brett 532 Clifford Street Ft. Walton Beach, FL 32548 Joe Williams 10 Marlborough Road Shalimar, FL 32579 Richard Szczepanski Post Office Box 855 Shalimar, FL 32579
Findings Of Fact The Petitioner has an option to purchase property located at 301-307 Island Way Boulevard, Island Estate, Clearwater, Florida, on which he proposes to construct ten townhouses. Initially Petitioner asked for two variances. The first variance was for 25.12 feet to allow construction on a lot only 124.88 feet wide. This variance was granted for this nonconforming lot. The second variance, for 13.24 feet to allow construction of the ten townhouse complex 12 feet from the side property line, was denied by the Clearwater Code Adjustment Board. The Board concluded the variance requested did not meet the requirements of Section 45.24 of the Clearwater Land Development Code. Petitioner presented evidence that if the lot had been 150 feet wide they would have had 90 feet to build on without requesting any variance. However, since the lot was nonconforming, in order to have 89 feet on which to place the building, the requested variance would be necessary. Petitioner also presented evidence that the construction of ten townhouses on this lot is necessary for the project to be on a solid economic basis. Subsequent to the denial of this variance by the Development Code Adjustment Board, Petitioner submitted plans, which have been approved by the City of Clearwater, to erect nine townhouses on this property without any variance needed. However, these townhouses would be smaller than would be the ten townhouses initially proposed and would provide a lesser return on the capital invested.
Findings Of Fact On October 19, 1983 the City of Jacksonville, Florida made application to the State of Florida, Department of Environmental Regulation for permission to replace an existing stormwater outfall structure discharging into the St. Johns River, in Duval County, Florida. The St. Johns River is a Class III waterbody within the meaning of Chapter 17, Florida Administrative Code. By this project the applicant would remove an existing 27 inch RCP outfall pipe and headwall and install a new 48 inch RCP outfall pipe with headwall. The project also envisions the construction of a 16 by 20 foot erosion protection mat. The system envisioned is a stepdown system as it approaches the St. Johns River. Approximately 117 cubic yards of material would be dredged, 38 cubic yards of which would be taken from an area below the mean highwater line. In association with the project 10 cubic yards of fill would be deposited landward of the mean highwater line. The purpose of this project is to provide more effective drainage of an existing residential development constituted of approximately 150-200 homes. This request was made in furtherance of a court mandate to improve the stormwater drainage within this residential area of the community. In the vicinity of the proposed project, the home sites have lawn grass and ornamental shrubbery and the upland vegetation is otherwise' dominated with hickory, pines and oaks with scattered hickory and magnolia. At the project site the river bank is approximately 15 feet high and terraced. Elephant ear dominates the shoreline vegetation along with some bald cypress and red maple. Eelgrass is common to the area but was not found at the exact location of the project site. The sediments in the area are predominantly sand with some silt and detritus. The site selected for this project was chosen after looking at a number of alternatives and presents the better choice of alternatives reviewed. With the advent of the change approximately five (5) times the amount of volume of water will be discharged as contrasted with the present discharge point. No significant increase in velocity is expected in the discharge system. Consequently increased erosion is not expected to occur, in that velocity not volume promotes erosion. Steps will be taken to insure against erosion of property adjacent to the outfall site to include protection of the bulkhead related to Petitioner Coltrane's property which is adjacent to the project site. Inspection of this site by permit assessment officials within the Department of Environmental Regulation established that minimal environmental harm or impact is expected if the project is permitted. The project would eliminate a small amount of river bottom and the associated biota and its available pollution filtering capacity and wildlife habitat. That loss is not significant on the subject of biological resources or water quality of the St. Johns River. The effects of turbidity will be adequately addressed from the point of view of the experts of the Department, whose opinions are accepted. The erosion is addressed by mats which constitute control structures. The area of land which is constituted of the property of the State of Florida at the site is approximately 20 by 15 feet. Although a certain amount of sedimentation will occur, that sedimentation is not significant and will tend to settle on the protection mats. No particular examination was made of the water quality of the stormwater being discharged through the pipe. 1/ The question of water quality was limited to an examination of the receiving waters in the St. Johns River. The volume and velocity of the stormwater being discharged was considered by the department and was not found to be a significant problem. As stated before this opinion on volume and velocity is accepted. 2/ This project will not interfere with conservation of fish, marine and wildlife or the natural, resources in a way that is contrary to the public interest, and will not result in the destruction of oyster beds, clam beds, or marine productivity, to include but not be limited to, destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, nor interfere with the established marine soil suitable for producing plant growth of a type useful as nursery or feeding ground for marine life. The project will not interfere with natural shoreline processes to such as to be contrary to the public interest. The project is not expected to create a navigational hazard or serious impediments in navigation or to substantially alter or impede the natural flow of navigable waters, such to be contrary to the public interest. Turbidity controls are contemplated to prohibit a turbidity problem exceeding 29 NTU's above background. The Petitioners Coltrane and Khosravi challenged the grant of the dredge and fill permit. Coltrane is concerned about problems of erosion, that the project will be unsightly in its appearance and that it will tend to disturb the river bottom while the construction is occurring. Khosravi speaks in terms of damage to the natural condition and ecological factors of the surrounding area on the banks of the St. Johns River. Both of these petitioners live adjacent to the project site on home sites by the St. Johns River. As described above, the concerns of the petitioners have been adequately addressed in the project design. Coltrane's testimony and depiction of the circumstance in another outfall of the City of Jacksonville in the vicinity of the project site, where adverse impact is shown, was not demonstrated to be sufficiently similar to the present project to cause alarm. See Coltrane's composite Exhibit No. 1 as admitted into evidence, photographs of that site. The City of Jacksonville has been granted an easement by the State of Florida, Department of Natural Resources for the use of the state owned submerged land.
The Issue Whether the Department should issue a dredge and fill permit to the Navy to construct an extension to an existing breakwater in the vicinity of Bayou Grande and Pensacola Bay?
Findings Of Fact The Parties. The Department is the agency responsible for the issuance of dredge and fill permits in the waters and wetlands of the State of Florida. The Navy is an applicant for the subject dredge and fill permit. The parties have standing to participate in this proceeding. The Application and its Review. On June 12, 1985, the Department received a dredge and fill application from the Navy requesting a permit for the construction of an 850-foot extension of a breakwater in the vicinity of Bayou Grande and Pensacola Bay. The application was received by the Northwest Florida district office of the Department The Navy filed its application on DER Form 17-1.203(1). In a letter dated January 20, 1986, to the Jacksonville District, Corps of Engineers, the Bream Fishermen Association (hereinafter referred to as the "BFA"), raised several issues they believed needed to be addressed concerning the proposed project: (1) The effect on safety; (2) the effect of the existing breakwater on submerged grasses; and (3) pollution in Bayou Grande. In a letter dated January 28, 1986, to the Northwest Florida district office of the Department the BFA again expressed their concerns about the proposed project. In response to the BFA's letter of January 28, 1986, the Department asked Dr. Kenneth Exchternacht, the Department's hydrographic engineer, to evaluate the proposed project. In a memorandum dated February 20, 1986, Dr. Exchternacht requested that the Navy provide the following additional information: Provide documentation and [sic] to the tidal flow direction and amplitude in Pensacola Bay south of the proposed work area and north of the mouth to Bayou Grande for both ebb and flood. Mean current speeds and trajectories as well as maximum midtide velocites are needed. Provide estimates of the net littoral drift direction and volume to the north of the mouth of Bayou Grande and to the south of the work area along Magazine Point. The Navy performed the additional hydrographic survey requested by the Department and submitted the information to the Department. The submission of the hydrographic survey requested by the Department completed the application for the extension of the breakwater. The application submitted by the Navy was a "short-form" application. It was properly filed with the Department's district office. The proposed project does not involve in excess of 10,000 cubic yards of material to be placed in the waters of the State. The completed application involved in this proceeding was not received prior to October 1, 1984. The application as submitted by the Navy complied with the requirements of the applicable Florida Statutes and the Department's rules. The Department completed its Permit Application Appraisal on May 14, 1986 and issued an Intent to Issue with regard to the Navy's proposed project on June 4, 1986. The Petitioners timely filed a petition for administrative hearing challenging the Department's proposed intent to issue the permit requested by the Navy. The Proposed Project. The Navy has proposed a permanent extension of an existing breakwater by 850 feet. The existing breakwater was constructed in 1966. No dredge and fill permit was required by the Department or any other agency when the existing breakwater was constructed. A channel exists at the site of the existing breakwater. It runs parallel to the breakwater on its southward side. The channel has been in place since the mid-1940's. The proposed extension of the breakwater will consist of approximately 7,650 cubic yards of concrete rubble. It will cover an area of 1.12 acres. It is properly and adequately designed. As originally filed, the Navy's application reflected that the location of the breakwater was 30 degrees 21'23" Latitude and 87 degrees 15'33" Longitude. This is not the correct location of the breakwater. The correct coordinates of the breakwater and the proposed extension are 30 degrees 22'25" N Latitude and 87 degrees 15'45" W Longitude. The correct location of the project was discernable from other information in the application The breakwater is located at the entrance from Pensacola Bay to Bayou Grande at a promontory of land known as "Magazine Point". The existing channel and breakwater and the proposed extension run east and west with Pensacola Bay on the east and Bayou Grande on the west. Water Quality Standards. Bayou Grande and Pensacola Bay are Class III waters. The project will not degrade the existing water quality in Bayou Grande or Pensacola Bay or in any way increase the introduction of pollutants into Bayou Grande. Tidal waters exit Bayou Grande during ebb tide flow. They also exit Bayou Chico to the north at approximately the same time. The project will, therefore, not have a significant funneling effect allowing an increase of polluted water from Bayou Chico or any other area into Bayou Grande. The proposed project will serve to stabilize the volume exchange of water between Bayou Grande and Pensacola Bay. The size of the existing breakwater and the proposed extension will have no measurable effect on the circulation of waters in Pensacola Bay. The circulation of Pensacola Bay is controlled primarily by tide flow and secondarily by the wind. The tidal cycle of Pensacola Bay is 24.8 hours. The ebb tide, combined with the Coriolis effect, causes the water flow to hug the left or northwest bank of Pensacola Bay as it ebbs sought toward the Gulf of Mexico. The hydrographic study information provided by the Navy to the Department was sufficient to indicate that the general circulation of Pensacola Bay will not be significantly affected by the project. A hydrographic study of a bay could include numerous sampling stations collecting data over a significant period of time. Such an extensive study is not necessary or available in this proceeding. An adequate hydrographic study was submitted by the Navy to the Department. The study was conducted as requested by the Department. Based upon the hydrographic study performed by the Navy and other available information, the proposed project will not adversely affect circulation patterns in Bayou Grande or Pensacola Bay to an extent necessary to require a more comprehensive study. Any degradation in the water quality of Bayou Grande is and has been due to runoff from developed areas around the shoreline of the bayou. It is not clear what types of seagrasses have existed in Bayou Grande historically or are in existence today. Seagrasses that have existed or do exist in Bayou Grande include thallassia testidinium (turtle grass), halodule wrighti (cuban shoalweed) and ruppia maritima (widgeon grass). Turtle grass and cuban shoalweed thrive in water with a high salinity concentration. Widgeon grass prefers a lower salinity concentration. Historically, seagrasses have increased and decreased in coverage in Bayou Grande. The cause or causes of the fluctuations in the coverage of seagrasses in Bayou Grande is unknown. The evidence failed to prove that the existing breakwater has had, or that the proposed project will have, any effect on seagrasses in Bayou Grande. No studies have been conducted in the proposed project area which identify seagrasses, the extent of their growth, the effect of salinity on existing seagrasses or any causal connection between the existing breakwater or its proposed extension and the decline or increase of seagrasses. Based upon all of the evidence the proposed project should not adversely effect the salinity concentration in Bayou Grande or any seagrasses in the vicinity. With the development around Bayou Grande, if the channel were allowed to close, it is likely that the water of Bayou Grande would become extremely poor. The Public Interest. The area to be filled is shallow, bare, sandy bay bottom. There are no sea grasses in the area that will be covered by fill. The existing biological community of the area to be filled is of relatively low diversity. Only a very small number of organisms may be buried during construction of the breakwater extension. The area of the project is a high wave action area. The biological community of the immediate area of the breakwater extension is a wave stressed community. The area is not a coral reef or shellfish producing area. There are no identified endangered species located in the area of the project or Bayou Grande. The burial of any organisms will be offset by the colonization of algae and other fouling community organisms. Algae is important to the food chain by providing food to higher level organisms. The expected fouling community will be more productive and diverse than the existing sandy bottom community. Bayou Grande is an estuary and serves as a nursery for a wide variety of marine life and aquatic birds. In the distant past, marine life in Bayou Grande thrived. In the past 40 to 50 years there has been a decline in marine life in Bayou Grande. During the past 4 to 5 years Bayou Grande has improved as a nursery estuary. The evidence failed to prove that the breakwater directly affected the nursery function of Bayou Grande. The nursery function of Bayou Grande will not be adversely affected by the proposed project. The extension of the breakwater will not cause a safety hazard. The project will have a positive effect on navigation by contributing to keeping the channel open for use by boats. The water at the end of the existing breakwater is 1.7 feet deep. The depth of the water will increase to 5.9 feet at 800 feet of the proposed extension and to 10 feet at the end of the 850 feet of the proposed extension. An experienced boat operator should have little difficulty in avoiding the breakwater. The channel entrance is marked with a day marker and there is a light in the middle of the breakwater. Extension of the breakwater will help prevent boats from running aground on the shallow sandy bottom. The extension will also provide protection for small vessels seeking protection from storms. The extension will provide a windbreak from southern winds and enable vessels to more easily reach the shelter of Bayou Grande. On the night of October 19, 1986, a speedboat ran into the existing breakwater. According to a passenger on the boat, the light of the breakwater was not visible. The proposed project will not cause any harmful erosion or shoaling. The project will prevent shoaling by acting as a permeable barrier to natural sand transport. This will in turn help to keep the channel open and minimize dredging operations. The channel has been subject to repeated dredgings to maintain the channel. The last dredging took place in 1982. Bayou Grande is used for recreational purposes, including fishing and boating. The proposed project will not adversely affect the fishing and boating activities in Bayou Grande. The proposed project will not adversely affect any significant historical or archaeological resources. The Navy has been granted a permit as of January 3, 1986, to expand is marina facilities in an area adjacent to Bayou Grande. Access to the marina from Pensacola Bay is through the channel at Magazine Point. The proposed project will not adversely affect water quality standards or the public interest, even considering the permit granted to the Navy for the expansion of its marina facilities.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department issue to the Navy the dredge and fill permit applied for by the Navy pursuant to application number 17 1054501. DONE and ENTERED this 19th day of August, 1987, in Tallahassee, Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NUMBER 86-2880 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioners' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 This proposed "finding of fact" is a conclusion of law. 2 1. 3-4 These proposed "findings of fact" are conclusions of law. 5 3. The first sentence is accepted in paragraphs 5 and 11. The second sentence is a conclusion of law. The rest of the proposed finding of fact is irrelevant. Irrelevant or not supported by the weight of the evidence. 8 20. 9 42. 17, 42 and 51. The existing breakwater was established in 1966 and not 1969. Not supported by the weight of the evidence. The exhibits referred to were not accepted into evidence. See paragraphs 32-34. Irrelevant. Although this proposed finding of fact is true, the evidence failed to prove the cause of the decline in productivity in Bayou Grande. Irrelevant. 14-18 Not supported by the weight of the evidence. The Navy's Proposed Finding of Fact 1 4 and 21. 2-3 20. 4 8 and 9. 5 17 and 19. 6 17. 7 46. 8 23. 9-10 Hereby accepted. 11 22. 12 18. 13 51. 14 55. 15 19. 16-19 Cumulative. 20 Irrelevant. 21 49. 22 52. 23-24 42. 25 51. 26 Irrelevant. 27 33. 28-29 37-39. 30 40. 31 33. 32 14. 33 56. 34 6 and 7. The date of the letter was January 28, 1986. 35 8. 36 9. 37 10. 38 53. 39 44 and 45. 40 Cumulative. 41-42 47. 43 12. This proposed "finding of fact" is a conclusion of law. Summary of testimony. Irrelevant. Hereby accepted. Cumulative. Not supported by the weight of the evidence. Not supported by the weight of the evidence. 51 38. 52 44. 53 27. 54 28. 55 36. 56 25. 57 Hereby accepted. 58 35. 59 29. 60 29. Not supported by the weight of the evidence. Cumulative. Hereby accepted. Irrelevant. Cumulative or irrelevant. Cumulative. 67 48. Cumulative or irrelevant. Hereby accepted. Irrelevant. 71-72 Cumulative. The Department's Proposed Findings of Fact 1 4 and 19. 2 17. 3 23. 4 37. 5 38. 6 39. 7 41. 8 42 and 43. 9 33. 10-11 32. 12 30. 13 Irrelevant. 14 56. 15 50. 16 45. 17 44, 48 and 49. 18 34. 19 35. 20 25. 21 26 22 24 and 31. 23 27. COPIES FURNISHED: Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mary M. Callaway, Esquire Post Office Box 3697 Pensacola, Florida 32516 Robert Boasberg, Jr. Commander, JAGC, U.S. Navy Staff Judge Advocate Naval Air Station Pensacola, Florida 32508-5000 Karen Brodeen, Esquire Douglas Wyckoff, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: The respondent Mariner Properties, Inc., also referred to herein as the "applicant", is the owner of South Seas Plantation, a vacation resort located on Captiva Island. This resort development comprises some 300 acres, with two miles of gulf-front beaches and four miles of bayfront. Located on the northern end of the Island is an existing large yacht basin or marina with facilities for docking boats up to 100 feet in length. While this marina does have slips for about eight small boats (under 24 feet in length), the facility is not well suited for the docking of small boats because of the height of the docks. Fueling services are available at this marina and an active search and rescue service operates out of the marina, with no charge to boaters in distress. A smaller boat basin exists on the southern portion of the Island, which basin was enlarged by the applicant pursuant to a permit issued by DER in 1975. The applicant has also been granted a permit to construct boat docking facilities within the small boat basin. Finger slips for about 43 small boats - - up to 24 feet in length, are planned, but construction has not yet begun. The small boat basin will not have fueling facilities for the boats. If the requested permit is granted, the rescue service which operates out of the larger yacht basin plans to dock one of its service boats in the small basin. The small basin will also serve as a refuge area for small boaters during a storm or inclement weather. In May of 1977, Mariner Properties, Inc., submitted its application to the DER to modify an existing permit by dredging an access channel to connect its small boat basin to the waters of Pine Island Sound. In its present modified form, the applicant requests a permit to maintenance dredge a channel 250 fee long, fifteen feet wide, to a depth of -3.0 feet, mean low water. Approximately 195 cubic yards of material will be excavated to construct this channel and the spoil will be unloaded on an upland area. The project will involve the destruction of almost 4,000 square feet of seagresses. Mr. Kevin Erwin, an environmental specialist with the Department of Environmental Regulation, made site inspections and performed a biological assessment of the area as it relates to the proposed project. It was his conclusion and recommendation that the application be denied based on the expected significantly adverse immediate and long-term impacts upon water quality and marine resources. Mr. Erwin was concerned with the elimination of almost 4,000 square feet of productive vegetated estuarina bottoms. Seagrasses provide an essential habitat to many marine species, act as an important nursery and feeding ground for young fish and shrimp, stabilize marine bottoms and contribute nutrients to the foodweb. The witness further felt that there was a potential for water quality violations within the channel. Mr. Erwin did observe cuts or propeller scars in the grass beds adjacent to the proposed channel. Such cuts or scars take a long period, up to fifteen years, to heal. He felt that boat traffic to and from the small boat basin should be restricted by a marked easement, as opposed to a dredge channel. Mr. Erwin's District Manager, Phillip R. Edwards, reviewed the subject application and observed the area in question. It was his oral recommendation to Tallahassee that the permit be granted. Mr. Edwards observed the seagrass cuts in the area adjacent to the proposed dredging project and concluded that more damage would result without a channel. While Mr. Edwards agreed that a potential for water quality standards existed, he felt that a channel would minimize the overall damage caused by boats continuing to travel over the adjacent seagrass areas. Mr. Forrest Fields, an environmental specialist with DER, reviewed the present application and Mr. Erwin's biological assessment of the area. He did not concur with Erwin's conclusion regarding violations of water quality standards, and felt that the applicant had given reasonable assurances to the contrary. Mr. Fields was of the opinion that a minimal channel would be less damaging to grass beds than the uncontrolled ingress and egress of boats utilizing the small boat basin. The public interest concerns of the basin being opened to the boating public and the basin being used by a rescue service without charge to boaters in distress were also expressed in the notice of intent to issue the permit prepared by Mr. Fields. Mr. Ross McWilliams, an environmental specialist with DER who reviews the work and recommendations of Mr. Fields, also recommended that the permit application be granted. Mr. McWilliams balanced the definable public loss which would ensue from the elimination of the 4,000 square feet of grass beds against the public benefit to be gained for the availability of the project to the boating public and the operation of a marine rescue service form the small boat basin. It was his conclusion that the proposed project would not be contrary to the public interest. A considerable portion of the testimony of this proceeding was devoted to the issue of whether a previous channel existed on the proposed site. Taken as a whole, the evidence establishes that the area which the applicant seeks to deepen is presently deeper than the surrounding grass flats. Aerial photographs received into evidence indicate by a straight while line some human activity and that the area in question has been used as a channel. All expert witnesses agreed that at least the shorewared 20 to 25 feet of the area appeared to have been disturbed. It could not be conclusively determined whether and when a channel had been dredged and, if so, the extent of the same. It is clear, however, that the specific area had been used as an access channel for the small boat basin in question. The area over which the applicant seeks to dredge is a shallow grass flat inhabited by turtle grass (Thallasia) and Cuban Shoal weed (Halodule), and is a very productive area in the marine ecosystem. The waters are within the Pine Island Sound Aquatic Preserve, A Class II body of water. No rules, regulations or management plan have been promulgated by the Department of Natural Resources for the Pine Island Sound Aquatic Preserve. The proposed channel is to be of a "box-cut" design with a flat bottom and vertical walls. Such a design is likely to create the need for frequent maintenance due to the possibility that the soft sides will slough inward. If further maintenance dredging becomes necessary, a permit for the same from the Department of Environmental Regulation would be required. If granted authority, the applicant would accomplish the dredging by utilizing either the "mud cat" type of dredge or a clam shell dragline mounted on a barge. Turbidity curtains will used to minimize the effects of loosening the bay bottoms and proliferation of silt by the dredging operation. All material excavated from the proposed channel will be deposited on an upland site. The petitioners in this cause either own or manage waterfront property within the Pine Island Sound Aquatic Preserve, and utilize the waters thereof. They have adequately demonstrated their substantial interest in the proposed project.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the Department of Environmental Regulation issue to Mariner Properties, Inc. a permit for the channel dredging project to the conditions set forth in Section III (B) of the Department's Proposed Order of Issuance executed on November 0, 1978, and subject to any forms of consent which may be required under Florida Statutes, Section 253.77. Respectfully submitted and entered this 11th day of April, 1978, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: David Gluckman Casey J. Gluckman 5305 Isabelle Drive Tallahassee, Florida 32301 Kenneth G. Oertel Truett and Oertel, P.A. 646 Lewis State Bank Building Tallahassee, Florida 32301 Ray Allen Assistant General Counsel Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 Secretary Jake Varn Department of Environmental Regulation 2600 Blairstone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION SANIBEL-CAPTIVA CONSERVATION FOUNDATION, ROBERT RAUSCHENBERG and FLORIDA AUDUBON SOCIETY, Petitioner, vs. CASE NO. 78-2422 DEPARTMENT OF ENVIRONMENTAL REGULATION and MARINER PROPERTIES INCORPORATED, Respondent. / By the Department:
Findings Of Fact The Respondents, Noel S. Brown and Carolyn D. Brown, are the owners of a parcel of land on the shore of the Yellow River, situated near the northeast corner of Government Lot 3, Section 30, Township 1 North, Range 27 west, in Santa Rosa County, Florida. In August, 1980, while engaged in an aerial inspection, an employee of the Department of Environmental Regulation noticed what appeared to be unauthorized filling activities on this property. These filling activities occurred in the Yellow River marsh system. The Yellow River is classified as a Class II water of the State, an Aquatic Preserve, and an Outstanding Florida Water. These classifications entitle the Yellow River to special protection from degradation to its natural landward extent. In response to the violation report submitted by the DER inspector, a warning letter was sent to the Respondents, the purpose of which was to provide them with notice of the alleged violation and the statutes and rules which DER sought to enforce. Such a warning letter is one means by which DER initiates an enforcement proceeding. Several pieces of correspondence were exchanged between DER and the Respondents. DER repeatedly gave the Respondents notice of the statutes and rules which it alleged were being violated. In this correspondence the Respondents acknowledge receipt of the Department's communications. The Respondents also questioned the integrity and character of certain DER personnel and threatened the Department with a lawsuit for trespassing. Due to the threatened trespass action, DER personnel deemed it advisable to obtain a search warrant prior to conducting an on-site inspection of the subject property. Such a warrant was obtained from the County Judge for Santa Rosa County. On June 29, 1981, DER personnel conducted the on-site inspection, and determined that fill activities had taken place in a marsh area adjacent to and contiguous with the Yellow River without a permit from the Department. Access to the property was obtained pursuant to the search warrant. The filling and bulkheading activities conducted by the Respondents around the boatslip occurred in an area dominated by cattail (Typha sp.), with lesser amounts of needle-rush (Juncus roemerianus) and sawgrass (Cladium jamaicensis). Each of these species is listed in Section 17-4.02(17), Florida Administrative Code. The area landward of the boatslip consisted of a broad band of transitional species dominated by salt meadow cordgrass (Spartina patens) and salt grass (Distichlis spicata), both of which are listed in Section 17-4.02(17), Florida Administrative Code, with some Fimbristyus spadicea. The transitional species listed above were, prior to the filling, adjacent and contiguous to an area dominated by needle-rush (Juncus roemerianus) which has, due to the fill, been isolated and impounded. Holes were dug in the fill, and the vegetation covered by the fill consisted of Juncus roemerianus and/or Cladium jamaicensis. The Respondents at no time had a permit from DER to dredge and/or fill, issued pursuant to Chapter 403, Florida Statutes. This activity of the Respondents resulted in the alteration of the chemical, physical, and biological integrity of the waters of the Yellow River, including the marsh area fringing the river, by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the lake waters. The discharge of fill onto the marsh areas in waters of the State has resulted in injury to the biological community that existed there. As a result of the violations found on the property of the Respondents, DER served a Notice of Violation and Orders for Corrective Action on them. The Notice of Violation gave the Respondents notice of what DER considered to be violations on their property, and informed them of each statute and rule which DER considered to be violated. The Orders of Corrective Action set forth the following requirements: "A. The Respondents shall conduct no further dredging or filling activities or other construction in waters of the State unless they have obtained the required permit from the Department or unless the Respondents receive notice from the Department that the project is exempted pursuant to Chapter 17-4, Florida Administrative Code. Within 30 days of the effective date of the Orders for Corrective Action, the Respondents shall reimburse the Department for expenses incurred in investigating the violation in the sum of $483.60. Within 45 days of the effective date of the Orders for Corrective Action, the Respondents shall submit a plan of total restoration which shall include the following minimum criteria: Removal of all fill material in the jurisdictional marsh areas to their original contour elevations as indicated by the adjacent marsh areas and by any remaining root mats of marsh grass underlying the fill material. Removal of the bulkhead from the waters of and landward extent of the Yellow River. If natural revegetation or recruitment is determined to be insufficient, the Respondents shall within 30 days of such notice, revegetate the areas with an appropriate, suitable wetland vegetation. The vegetation shall be obtained from adjacent undisturbed marsh areas and planted utilizing 3" x 3" plugs centered 18" apart. Excess spoil materials shall be placed in an approved upland area. The Respondents shall take measures necessary to control and prevent sediment and/or runoff from entering Yellow River during construction, restoration and stabilization of the affected areas. The Respondents shall initiate the restoration immediately upon notification of approval by the Department. In no event shall the restoration period exceed 180 days. In the event the Respondents' restoration plan is not acceptable or in accordance with the minimum features outlined in these Orders, the Respondents shall implement a plan of restoration as directed by the Department. The Respondents shall allow authorized representatives of the Department access to and on the property during reasonable (daylight) hours for the purpose of determining compliance with the Final Order and/or rules and regulations of the Department. Within 60 days of the effective date of the Final Order, the Respondents shall pay to the Department's Pollution Recovery Fund the sum of $4,837.58 for damages occurring to the waters of the State including its landward extent as a result of the unauthorized placement of fill material." The restoration plan proposed by DER is a more desirable alternative to the status quo, in that it would restore much of the marshland vegetation which provides the filtrative and assimilative functions in removing nutrients and other pollutants. In addition, these orders are reasonable and are capable of being completed within the designated time periods. The Notice of Rights contained in the Notice of Violation and Orders for Corrective Action advised the Respondents of their right to contest the DER findings, and informed them how to do so. By letter dated October 8, 1981, the Respondents requested a hearing. This request was sent to the Division of Administrative Hearings on October 20, 1981. The Respondents continue to operate and maintain the stationary installation, consisting of a bulkhead and fill, on the subject property without an appropriate and valid permit from DER.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation issue a Final Order to the Respondents requiring the following actions: Pursuant to Section 403.141(1), Florida Statutes, the Respondents shall, within 30 days of the effective date of the Final Order, pay to DER the sum of $483.60 for expenses of the State in tracing, controlling, and abating the source of pollution constructed and maintained on the Respondents' land. Within 45 days of the effective date of the Final Order, the Respondents shall submit plans and a compliance schedule for restoration of the unauthorized dredge and fill site, as set forth in the Order for Corrective Action (recited above) or as otherwise acceptable to DER. The Respondents shall completely restore the unauthorized dredge and fill site pursuant to the plan contained in the Order for Corrective Action (recited above), or other plan acceptable to DER, within 180 days from the effective date of the Final Order. Within 60 days of the effective date of the Final Order, the Respondents shall pay damages as outlined in the Order for Corrective Action (recited above). THIS RECOMMENDED ORDER entered on this 3rd day of February, 1982, in Tallahassee, Florida. WILLIAM B. THOMAS, 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 3 day of February, 1981. COPIES FURNISHED: Mr. Noel S. Brown and Mrs. Carolyn D. Brown 10 Hopson Road Jacksonville Beach, Florida 32250 E. Gary Early, Esquire Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301
