09-001725 Goose Bayou Homeowner&Apos;S Association vs. Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, September 16, 2009.

Summary: Petitioner did not prove entitlement to a maintenance-dredging exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GOOSE BAYOU HOMEOWNER'S )

ASSOCIATION, )

)

Petitioner, )

)

vs. ) Case No. 09-1725

)

DEPARTMENT OF ENVIRONMENTAL PROTECTION, )

)

)

Respondent. )

)

RECOMMENDED ORDER

On July 29, 2009, a final administrative hearing in this

case was held by video teleconference in Tallahassee and Panama

City before J. Lawrence Johnston, Administrative Law Judge (ALJ),

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Bill Britton, Qualified Representative

Goose Bayou Homeowner's Association

4002 Valencia Court

Panama City, Florida 32405-3221

For Respondent: Brynna J. Ross, Esquire

Hillary Copeland, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Environmental Protection (DEP or Department) should exempt

Petitioner's alleged maintenance-dredging from wetland resource

permitting under Florida Administrative Code Rule 62-

312.050(1)(e). 1

PRELIMINARY STATEMENT

On December 4, 2007, the Department determined that

Petitioner's proposal was not exempt and gave notice of intent to

deny Petitioner's application for an exemption for alleged

maintenance dredging. On March 27, 2009, Petitioner filed a

second amended petition for an administrative hearing. On

April 2, 2009, DEP referred the petition to DOAH for appointment

of an ALJ. The matter was scheduled for a final hearing on

May 27, 2009, but the parties jointly moved for an abeyance,

which was granted. On July 10, 2009, the parties requested a

final hearing, which was scheduled for July 29, 2009, by video

teleconference.

The parties filed a Joint Pre-Hearing Stipulation on

July 23, 2009, which was amended before the final hearing. The

Amended Joint Pre-Hearing Stipulation was filed after the

hearing, on July 31, 2009.

The parties stipulated to the admission of Exhibits 1, 4,

40, 48, 52, and 73-99. Petitioner called Michael Mathews,

Environmental Supervisor II employed in DEP's Panama City office

DEP. DEP called Mr. Mathews and Jim Stoutamire, a Program

Administrator employed in DEP's Tallahassee office.

After the presentation of evidence, DEP requested a

Transcript of the final hearing, and the parties were given ten

days from the filing of the Transcript in which to file proposed

recommended orders (PROs). The Transcript was filed on

August 11, 2009. The parties' timely PROs have been considered.

FINDINGS OF FACT

1. Petitioner has applied for a maintenance-dredging

exemption from wetland resource permitting for two channels in

Goose Bayou on the two ends of a U-shaped upland cut canal

adjacent to Goose Bayou.

2. Rule 62-312 provides in pertinent part:

(1) No permit shall be required under this

chapter for dredging or filling . . . for the

projects listed below.

* * *

(e) The performance of maintenance dredging

of existing manmade canals, channels, and

intake and discharge structures, where the

spoil material is to be removed and deposited

on a self-contained, upland spoil site which

will prevent the escape of the spoil material

and return water from the spoil site into

surface waters of the state, provided no more

dredging is performed than is necessary to

restore the canal, channels, and intake and

discharge structures to original design

specifications, and provided that control

devices are used at the dredge site to

prevent turbidity and toxic or deleterious

substances from discharging into adjacent

waters during maintenance dredging. This

exemption shall apply to all canals

constructed before April 3, 1970, and to

those canals constructed on or after April 3,

1970, pursuant to all necessary state

permits. This exemption shall not apply to

the removal of a natural or manmade barrier

separating a canal or canal system from

adjacent waters of the state. Where no

previous permit has been issued by the Board

of Trustees of the Internal Improvement Trust

Fund or the United States Army Corps of

Engineers for construction or maintenance

dredging of the existing manmade canal or

intake or discharge structure, such

maintenance dredging shall be limited to a

depth of no more than 5 feet below mean low

water.

3. There was no evidence of any dredging or application for

dredging in the vicinity of the proposed alleged "maintenance-

dredging" prior to 1971. There was evidence and a stipulation

that Heritage Homes of Fort Walton, Inc. (Heritage Homes),

applied to the State of Florida in or around 1971 to dredge two

navigation channels in Goose Bayou for a project known as

Venetian Villas and to remove two plugs separating a land-locked

U-shaped canal from Goose Bayou. The navigation channels were to

be 50 feet wide by five feet deep. The southern channel was to

be 640 feet long, while the northern channel was to be 450 feet

long. This proposal did not receive any governmental

authorization.

4. There was evidence and the parties stipulated that in

1973, based on the proposed project modifications, the State of

Florida Department of Pollution Control (DPC), a predecessor of

DEP, issued water quality certification, and the State of Florida

Board of Trustees of the Internal Improvement Trust Fund (BOT)

issued a permit for the project, as modified.

5. It appears that the issuance of the water qualify

certification and BOT permit was part of some kind of settlement

reached between Heritage Homes and the State of Florida for

dredge-and-fill violations. It appears that the settlement also

involved the conveyance of ten acres of land to the State of

Florida in lieu of payment for the spoil used in filling the

marsh lands between Goose Bayou and the U-shaped canal.

6. There was evidence and the parties stipulated that, at

some point in time, the DPC certification and a BOT permit were

transferred from Heritage Homes to West Florida Construction

Company (West Florida).

7. There was evidence and the parties stipulated that, as

of July 13, 1973, neither Heritage Homes nor West Florida had

applied to the United States Army Corps of Engineers (Corps) for

a permit.

8. There was evidence and the parties stipulated that, over

time and after receiving comments from various governmental

agencies, West Florida's proposed project changed to involve a

yacht basin/marina, a proposed southern channel, elimination of

the proposal for a northern channel, and plugging the U-shaped

canal to keep it separate from Goose Bayou. The location of the

single, southern channel under this proposal was different from

the proposed location of the southern channel under the Heritage

Homes proposal, which was to start at the southernmost arm of the

U-shaped canal. Instead, under West Florida's proposal, the

single, southern channel was to be located directly north of the

southernmost arm of the U-shaped canal.

9. There was evidence and the parties stipulated that, by

August 21, 1974, West Florida applied to the Corps for a permit

to dredge the single, southern channel (50 feet wide, 565 feet

long, and four feet deep), to keep the northern canal plugged,

and to construct a yacht basin/marina.

10. There was evidence and the parties stipulated that, the

United States Department of the Interior Fish and Wildlife

Service (FWS) and the United States Environmental Protection

Agency (EPA) recommended several changes to the project before

they could recommend that the Corps issue a permit for the 1974

application; however, it does not appear that the recommended

changes were ever made or that the Corps ever took any action on

the 1974 application or issued any permit for the proposed

project.

11. At some point in time after 1974, the two plugs were

removed, which connected the U-shaped canal to Goose Bayou.

There is now a wide, shallow channel from the waterward ends of

the U-shaped canal into Goose Bayou. The evidence did not prove

that these channels, which Petitioner now seeks to maintenance-

dredge, were ever dredged by man. Their width and shallow depth

are more consistent with natural scouring from surface water

runoff leaving the canal system at low and extreme low tides than

with dredging. There was no evidence of soil borings, which

could have verified whether the channels had been dredged by man.

12. Even if originally dredged, there was no evidence that

a dredged channel had been maintained over the years.

Mr. Stoutamire testified that DEP does not consider maintenance-

dredging to include the restoration or rebuilding of a channel

that has not been maintained and no longer exists. This

interpretation of the maintenance-dredging exemption is

reasonable.

13. Mr. Stoutamire also testified that DEP interprets the

last sentence of Rule 62-312.050(1)(e), limiting maintenance-

dredging to no more than five feet below mean low water where no

previous permit has been issued, to refer to canals constructed

before April 3, 1970, since maintenance-dredging of canals

constructed after that date would not be exempt if not previously

permitted. This interpretation is reasonable. 2

14. Petitioner's application did not state that control

devices would be used to prevent turbidity and toxic or

deleterious substances from discharging into adjacent waters

during dredging.

CONCLUSIONS OF LAW

15. As applicant, Petitioner had the burden of proving

entitlement to the maintenance-dredging exemption. See Hough v.

Menses , 95 So. 2d 410, 412 (Fla. 1957); Key vattman , 959

So. 2d 339, 345 (Fla. 1st DCA 2007).

16. Petitioner failed to meet its burden of proof of

entitlement to a maintenance-dredging exemption under Rule 62-

312.050(1)(e). The evidence did not prove that the channels

sought to be maintenance-dredged were previously dredged and

maintained, or that previous dredging was "pursuant to all

necessary state permits." Fla. Admin. Code R. 62-312.050(1)(e).

17. Because Petitioner did not prove entitlement to exempt

maintenance-dredging, it is not necessary to determine whether an

exemption would include--as a matter of law, and despite not

being included in Petitioner's application--the use of "control

devices . . . at the dredge site to prevent turbidity and toxic

or deleterious substances from discharging into adjacent waters

during maintenance dredging." Id.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a final order denying

Petitioner a maintenance-dredging exemption under Rule 62-

312.050(1)(e).

DONE AND ENTERED this 16th day of September, 2009, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of September, 2009.

ENDNOTES

1/ All rule references are to the version of the Florida

Administrative Code in effect at the time of the final hearing.

2/ Mr. Stoutamire also testified that, in the rare case of a

dredging permit issued before April 3, 1970, maintenance-dredging

would be limited to the design specifications of the permit, but

that interpretation is not germane to this case.

COPIES FURNISHED :

Brynna J. Ross, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Bill Britton

Goose Bayou Homeowner's Association

4002 Valencia Court

Panama City, Florida 32405-3221

Michael W. Sole, Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.