92-000534 Douglas Crist And The City Of Punta Gorda vs. Board Of Trustees Of The Internal Improvement Trust Fund Status: Closed Recommended Order on Thursday, October 8, 1992.

Summary: If applicant qualifies for exception to general prohibition to dredging in an aquatic preserve and project is in public interest, BTIIT may grant casement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOUGLAS CRIST, and the )

CITY OF PUNTA GORDA, )

)

Petitioners, )

)

vs. ) CASE NO. 92-0534

)

STATE OF FLORIDA, BOARD OF )

TRUSTEES OF THE INTERNAL )

IMPROVEMENT TRUST FUND, )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

Upon due notice, this cause come on for hearing on June 3-4,

1992 in Punta Gorda, Florida before William R. Cave, a duly assigned Hearing

Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioners: Joseph W. Landers, Jr., Esquire

John T. LaVia, III, Esquire

Post Office Box 271

Tallahassee, Florida 32302

For Respondent: M. B. Adelson, IV, Esquire

Edwin Steinmeyer, Esquire

Department of Natural Resources

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Petitioner's proposed dredging from the mouth of Snook Inlet to the

Bass Inlet navigation channel comes within the exception provided for in Section

258.42 (3)(a)2. or 4., Florida Statutes, and, if so, should Petitioner be

granted an easement over sovereign submerged lands to conduct such proposed

dredging.

PRELIMINARY STATEMENT

Petitioners, Douglas Crist (Crist) and the City of Punta Gorda (Punta

Gorda) submitted an application to the Board of Trustees of the Internal

Improvement Trust Fund (Trustees) for an easement to conduct dredging across

sovereign submerged lands within the Charlotte Harbor Aquatic Preserve. After

reviewing the Petitioners' application, the Department of Natural Resources'

staff recommended denial of the application on the basis that the proposed

dredging did not come within any of the statutory exceptions to the general

prohibition on dredging in aquatic preserves. Thereafter, on October 22, 1991,

the Governor and Cabinet, sitting as the Trustees, considered Petitioners'

application. The Trustees approved the staff recommendation and denied

Petitioners' application. This matter was transferred to the Division of

Administrative Hearings by letter dated January 23, 1992, and received on

January 29, 1992, for the assignment of a Hearing Officer to conduct a formal

hearing pursuant to Section 120.57(1), Florida Statutes.

At the beginning of the hearing, in accordance with an ore tenus Motion To

View by the Trustees, a ground viewing of Snook Inlet was conducted. In

addition, the undersigned Hearing Officer and representatives of the parties

viewed the entire Charlotte Harbor Aquatic Preserve by means of a helicopter

tour.

At the hearing, the Petitioners presented the testimony of James Marvin

Stillwell, Douglas Crist, James Kurt Culter, William M. Brady and Rufus C.

Lazell. Petitioners' exhibits 1 through 22 and 24 through 28 were received as

evidence in this caseustees presented the testimony of Robert W. Repenning,

Leonard L. Nero, Michael E. Ashey and Pete Mallison. Respondent's exhibits 1

through 12 and 17 were received as evidence in this case. The parties' Joint

Exhibit 23 was received as evidence in this case.

A transcript of this proceeding was filed with the Division of

Administrative Hearings on June 22, 1992. The parties timely filed their

Proposed Recommended Order. A ruling on each proposed finding of fact submitted

by the parties has been made as reflected in an Appendix to the Recommended

Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant findings of fact are made:

BACKGROUND

1. Within the city limits of Punta Gorda lies a navigable man-made canal

(Snook Inlet) dredged from uplands prior to January 9, 1952. The submerged

lands located in Snook Inlet are owned by Petitioner, Punta Gorda. Snook Inlet

is located between Fisherman's Village, a tourist attraction, to the east and

Bass Inlet, an artificial canal leading to Punta Gorda Isles, to the west.

2. A navigation channel (Bass Inlet Channel) leads from Bass Inlet in a

northeasterly direction then runs parallel with the shoreline approximately 400

feet waterward of the mouth of Snook Inlet.

3. A navigation channel (Snook Inlet Channel) extends north from the mouth

of Snook Inlet and intersects with Bass Inlet Channel.

4. A "plug" has formed at the mouth of Snook Inlet. This plug is the

result of accretion of material that eroded from adjacent fill areas located in

Brown Park, and is partially covered with vegetation, including trees and

grasses.

5. Crist owns a parcel of land (lot 26) located on the western side of and

adjacent to Snook Inlet, and has signed a contract to purchase the four other

lots (lots 27-30) bordering the western side of Snook Inlet.

6. Crist owned lot 26 at the time the application that is the subject of

this proceeding was filed in June, 1988.

7. Punta Gorda is a water-oriented boating community with a population of

over 11,000. Approximately sixty-five miles of seawalled canals are located

within the confines of Punta Gorda, and well over half of the residents of Punta

Gorda resided on the canal system.

8. Punta Gorda owns Brown Park, a public park immediately west of and

adjacent to Snook Inlet.

9. Punta Gorda is a riparian owner. Crist is not a riparian owner.

10. In June, 1988, Crist filed an application for an easement with the

Trustees to maintenance dredge the Snook Inlet Channel over sovereign submerged

lands to Snook Inlet. Subsequent to Crist filing the application, Punta Gorda

joined Crist as a co-applicant.

11. The dimensions of the proposed maintenance dredging area for the Snook

Inlet Channel are approximately 200 feet long by 75 feet wide to a depth of

minus 5 feet mean low water. The total area is approximately one third of an

acre.

12. On August 2, 1988, the United States Army Corps of Engineers (Corps)

issued Crist a permit to maintenance dredge Snook Inlet. Snook Inlet is

approximately 100 feet wide and 5 feet deep.

13. On August 2, 1988, the Corps issued Crist a permit to maintenance

dredge the Snook Inlet Channel.

14. On June 23, 1988, the Florida Department of Environmental Regulation

(DER) issued Crist a notice of exemption authorizing maintenance dredging of

Snook Inlet.

15. On September 1, 1989, the DER issued Crist a permit to maintenance

dredge the Snook Inlet Channel.

16. On July 7, 1988 the Trustees issued Crist a Notice of Exemption,

indicating lack of jurisdiction in Snook Inlet landward of the Historical Mean

High Water Line (HMHWL). The HMHWL for purposes of this hearing is located at

1.09NGVD.

17. The Snook Inlet Channel, permitted as maintenance dredging by both the

Corps of Engineers and the DER, is the same area that is the subject of the

easement application in this proceeding.

18. The permits obtained by Crist from the Corps of Engineers and the DER

authorize Christ, without any further approvals, to dredge Snook Inlet

approximately 100 feet wide to a depth of minus five feet mean low water up to

the HMHWL. Thus, everything landward of the HMHWL, including the Snook Inlet

"plug" may be removed without any further authorization.

19. The proposed maintenance dredging area of Snook Inlet Channel lies

within the Charlotte Harbor Aquatic Preserve and is sovereign submerged lands.

20. On October 23, 1991, the Trustees denied Christ's and Punta Gorda's

application for an easement to maintenance dredge Snook Inlet Channel.

DESCRIPTION OF SUBJECT AREA

21. The Charlotte Harbor Aquatic Preserve is not a developed urban aquatic

preserve. Approximately 95% of the Charlotte Harbor Aquatic Preserve is in its

natural state and approximately 5% of the preserve is developed and more

urbanized. The proposed project is located in the more developed urbanized area

of Charlotte Harbor Aquatic Preserve.

22. In June of 1988 a small tidal channel, approximately eight to twelve

inches in depth, allowed an exchange of water at high tide between Snook Inlet

and Charlotte Harbor. Again, in August of 1991, a small tidal channel allowed

an exchange of water at high tide between Snook Inlet and Charlotte Harbor.

23. The existing shoreline in the Snook Inlet area and in the adjacent

city-owned Brown Park is suffering from severe erosion.

EXISTING NAVIGATION CHANNEL

24. For nearly thirty years, between 1952 and 1981 a clearly discernible

navigation channel ( Snook Inlet Channel) was visible leading from Charlotte

Harbor into Snook Inlet. As recently as 1981, boats could enter Snook Inlet via

Snook Inlet Channel. A boat is currently wrecked and partially submerged in

Snook Inlet.

25. In June of 1988, after the application that is the subject of this

hearing was filed with the Trustees, it was possible to navigate a small boat or

canoe from Charlotte Harbor through the Snook Inlet Channel into Snook Inlet.

26. As recently as May 7, 1992, an employee of the Trustees navigated a 21

foot boat through portions of the existing Snook Inlet Channel that are the

subject of this easement application. Currently several pilings are in place

marking the deeper portions of the Snook Inlet Channel.

27. A navigation channel as contemplated by Section 258.42 (3)(a) 4.,

Florida Statutes, exists in the area that is the subject of this easement

application.

MAINTENANCE DREDGING

28. The term maintenance dredging is not defined in Chapter 253, Florida

Statutes, or the rules adopted thereunder.

29. The DER reviewed the project and permitted it as maintenance dredging.

30. The Corps of Engineers reviewed the project and permitted it as

maintenance dredging.

31. Charlotte County reviewed the project and determined that the Snook

Inlet Project is a "maintainable navigation access way" as described in Policy

6.3 of the Charlotte County Comprehensive Plan.

32. The Punta Gorda Isles Canal Maintenance District considers the project

to be maintenance dredging within its authority to complete.

33. In a letter dated October 13, 1988, the Trustees Planning Manager,

referred to the proposed dredging as "maintenance dredging".

34. The dredging proposed as part of the easement application that is the

subject of this hearing is maintenance dredging of an existing navigation

channel as contemplated by Section 258.42(3)(a) 4., Florida Statutes.

DREDGING AUTHORIZED FOR THE CREATION OF DOCKS

35. On the uplands bordering the west side of the Snook Inlet, Crist plans

a condominium development where he will build twelve associated twenty-five foot

finger docks.

36. Although the Petitioners did not file an application for construction

of docks within the Charlotte Harbor Aquatic Preserve or Snook Inlet, the

Trustees were aware, prior to their decision to deny this application, of the

planned docks to be created with Snook Inlet. The Trustees agenda item for this

application specifically refers to the possibility of docks being constructed.

37. The Trustees agenda item lists this exception as "dredging as may be

necessary for the construction or maintenance of docks".

38. On May 7, 1992, Crist filed an application for a permit to construct

twelve 25 foot finger docks in Snook Inlet. The application is pending but

cannot be processed by Punta Gorda at this time because local zoning regulations

require that a principally permitted use be established by permit before a

permitted accessory use such as docks can be processed and receive constructions

permits. Approval of the application is anticipated.

39. Neither Chapter 258, Florida Statutes, nor the rules adopted

thereunder specifically require that docks be created on sovereign lands within

an aquatic preserve in order for the exception in Section 253.42(3)(a)2.,

Florida Statutes, to apply.

40. Snook Inlet is approximately 100 feet wide and five feet deep. The

proposed project will result in the Snook Inlet Channel being 75 feet wide and 5

feet deep. Approximately 1350 cubic yards of spoil will be dredged from the

Snook Inlet Channel and deposited on uplands.

PUBLIC INTEREST

Environmental Benefits

41. As part of the permit to maintenance dredge the Snook Inlet Channel,

the DER requires mitigation in the form of an 8,750 square foot wetland creation

and bank stabilization project. The mitigation includes the stabilization of

approximately 350 feet of the severely eroding shoreline of Brown Park, the

creation of a barrier rock revetment at the HMHWL, the planting of emergent

salt-tolerant grass (spartina alterniflora) the removal of exotic plant species

including Australian Pine and annual monitoring to guarantee 80% survival of the

spartina alterniflora. Crist is committed to completing the mitigation.

42. The DER permit to maintenance dredge Snook Inlet Channel imposes the

following additional conditions on Crist: Crist must receive a stormwater

permit from the Southwest Florida Water Management District (SWFWMD) and

approval of the stormwater plan by the DER, and Crist must enter into a binding

agreement prohibiting the sale of fuel, prohibiting any in-water boat or motor

maintenance and prohibiting the use of non-biodegradable detergents within Snook

Inlet. Crist also must submit water quality monitoring reports every six months

to the DER.

43. The DER is the state agency with the authority to regulate water

quality in Snook Inlet and Snook Inlet Channel.

44. The permits obtained by Crist from the DER represent a determination

that the project will not violate state water quality standards and will not

degrade the aquatic preserve.

45. The current dissolved oxygen levels within Snook Inlet meet state

water quality standards.

46. Currently there is only negligible flushing between Snook Inlet and

Charlotte Harbor. Reopening Snook Inlet will result in an expected flushing

time of the canal to be 6.8 tidal cycles or approximately 3.5 days. Reopening

Snook Inlet will also result in increased detrital export from the mangroves

adjacent to the canal into the Charlotte Harbor Aquatic Preserve.

47. The biological community currently present within Snook Inlet and the

"plug" is not a natural shoreline community of the Charlotte Harbor system.

48. The western boundary of Snook Inlet is seawalled for its entire

length. No organisms live on the seawall within Snook Inlet other than a thick

accumulation of filamentous green algae. However, evidence of barnacle and

oyster shells is present on the seawall indicating there once was a healthy

benthic community within the canal.

49. The submerged bottom of Snook Inlet is covered with a thick

accumulation of debris from the mangroves located on the eastern side of the

canal. This layer of debris is at least a foot in depth (Culter, T-161, L-18-

20). The only living benthic organism present in the entire canal was a single

worm.

50. Within the debris located on the bottom of Snook Inlet evidence of the

presence of sulfur bacteria exists. The presence of sulfur bacteria is

indicative of an anaerobic system that will exclude all multicellular

invertebrate species.

51. The debris has accumulated on the submerged bottom of Snook Inlet

because of the lack of detrital exchange with Charlotte Harbor. The debris

accumulated on the bottom of Snook Inlet will be removed as part of the

permitted dredging of the canal prior to its reopening.

52. The existing aquatic habitat within Snook Inlet is of a very poor

quality and is typically actively discouraged by regulatory agencies in Florida.

The diversity and abundance of invertebrate species within the canal is

extremely low and the canal is not a functional wetland.

53. The reopening of Snook Inlet will increase both the diversity and

abundance of benthic organisms within Snook Inlet. In addition, reopening the

canal will improve and enhance the water within the canal. Snook Inlet will be

a more valuable habitat once it is opened.

54. The area between the "plug" and the Bass Inlet Channel is comprised

primarily of intertidal and tidal flats. Tidal and intertidal flats are not a

unique habitat and occur throughout the entire shoreline of the Charlotte Harbor

Aquatic Preserve in areas that are not seawalled. Intertidal and tidal flats

make up nearly 90% of the shoreline of the Charlotte Harbor Aquatic Preserve and

comprise thousands of acres within the preserve.

55. No seagrasses occur in the tidal and intertidal areas or in the Snook

Inlet Channel.

56. Tidal and intertidal flats serve as foraging grounds for various

wading birds. The dredging of 1/3 of an acre of tidal and intertidal flats will

not adversely affect those species--they will be able to forage on any of the

thousands of acres of tidal and intertidal flats within the preserve including

those immediately adjacent to the Snook Inlet Channel. None of the birds that

forage in the tidal and intertidal areas are listed as endangered, threatened or

protected.

57. The depth of the existing Snook Inlet Channel varies from two to seven

feet. The fauna located in the deeper portions of the existing Snook Inlet

Channel are higher in number and diversity as compared to the tidal flat areas.

58. The deep channel areas, such as the Bass Inlet Channel, in the

vicinity of Snook Inlet are healthy and exhibit a high density and diversity of

species. The dredging of the 1/3 of an acre of tidal and intertidal flats in

the Snook Inlet Channel will increase the diversity and abundance of species in

those areas and enhance the naturally occurring habitat.

59. The maintenance dredging of the Snook Inlet Channel will not cause any

negative impacts on the estuarine benthic ecology in the Charlotte Harbor

Aquatic Preserve.

60. In summary, the benefits that will accrue to the Charlotte Harbor

Aquatic Preserve as a result of this project include: the elimination of

erosion into the preserve by stabilization of the shoreline of Brown Park; the

creation of valuable habitat in the form of spartina alterniflora grassbeds

contiguous to the preserve; an increase in both diversity and abundance of

benthic organisms in the Snook Inlet Channel; an increase in detrital export

from Snook Inlet into the preserve; and the removal of exotic species such as

Australian Pine from habitat contiguous to the preserve.

Economic and Social Benefits

61. The Trustees have not yet conducted an analysis of the social and

economic costs and benefits associated with this project.

62. Punta Gorda is currently implementing a comprehensive waterfront

redevelopment project. Part of that project includes a riverwalk that passes

adjacent to and directly south of Snook Inlet.

63. Currently, Snook Inlet is an "obnoxious eyesore" emanating unpleasant

odors and has become blighted as a result of the presence of unsightly debris,

monofilament line, gill nets and a wrecked boat. Punta Gorda has received a

large number of complaints from citizens regarding Snook Inlet's appearance and

odor.

64. Punta Gorda and Crist have entered into a Developers Agreement. The

Developers Agreement represents a unique public/private partnership. Under the

terms of the Developers Agreement, Christ will pay all of the costs of dredging

Snook Inlet and Snook Inlet Channel, and in addition all of the costs of the

wetland creation and bank stabilization mitigation project along the city-owned

Brown Park.

65. The estimated cost of completing the dredging of Snook Inlet is

$40,000, and the estimated cost of completing the wetland creation and bank

stabilization along Brown Park is $60,000. Thus, as a result of this project,

Punta Gorda and its citizens will realize a direct economic benefit of $100,00,

will have the severe erosion of Brown Park halted, and will have the eyesore

that Snook Inlet currently represents removed.

66. The improvements to Brown Park will transform the park into an

integral portion of the Punta Gorda waterfront with the ultimate result being

improvement of public land use and management.

67. Reopening Snook Inlet will positively affect the public safety and

aesthetic attributes of the project area.

68. Crist intends to construct condominiums with an approximate market

value of $4 million dollars on his property adjacent to Snook Inlet. Without

Snook Inlet being reopened, Crist's property is not developable. The increased

value of Crist's property will result in increased property tax assessment for

Charlotte County, Charlotte County School District, Punta Gorda, and SWFWMD.

69. The Trustees' Division Director of the Division of State Lands

believes that the economic benefits of the proposed project to the upland

property outweigh the costs.

70. The proposed project as designed and located will have no significant

impact on navigation in the area.

71. The proposed project is consistent with the Charlotte County/Punta

Gorda Local Comprehensive Plan.

72. The proposed project is consistent with the applicable local zoning

code and building regulations.

CONCLUSIONS OF LAW

73. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, this proceeding pursuant to Section

120.57(1), Florida Statutes.

74. Contrary to the assertion of the Trustees, a petition for formal

proceedings pursuant to Section 120.57(1), Florida Statutes, commences a de novo

proceeding intended to formulate agency action and not to review action taken

earlier and preliminarily by an agency. Florida Department of Transportation v.

J. W. C. Company, Inc., 396 So.2d 778,785 (1 DCA Fla. 1981) quoting McDonald v.

Department of Banking, 346 So.2d 569, 584 (1 DCA Fla. 1977); Hamilton County v.

Department of Environmental Regulation, 587 So.2d 1378, 1387 (1 DCA Fla. 1991).

75. Section 258.42(1)and (3)(a)2. and 4., Florida Statutes, provides as

follows:

The Board of Trustees of the Internal

Improvement Trust Fund shall maintain such

aquatic preserves subject to the following

provisions:

(1) No further sale, lease, or transfer of

sovereignty submerged lands shall be

approved or consummated by the trustees except

when such sale, lease, or transfer is in the

public interest....

. . .

(3)(a) No further dredging or filling of

submerged lands shall be approved by the

trustees except the following activities

may be authorized pursuant to a permit:

. . .

2. Such minimum dredging and spoiling as

may be authorized for the creation and

maintenance of marinas, piers, and docks and

their attendant navigation channels.

. . .

4. Such other maintenance dredging as may be

required for existing navigation channels.

76. Section 258.43(1), Florida Statutes, provides as follows:

(1) The Board of Trustees of the Internal

Improvement Trust Fund shall adopt and

enforce reasonable rules and regulations to

carry out the provisions of this act and

specifically to provide regulation of human

activity within the preserve in such a manner

as not to unreasonably interfere with lawful

and traditional public uses of the preserve,

such as sport and commercial fishing, boating,

and swimming. (Emphasis supplied).

77. The statutory framework under which this case must be analyzed

provides for exceptions to a general prohibition against dredging and filling

within aquatic preserves and further provides that certain traditional public

uses of the preserves shall not be unreasonably restricted. If a project

qualifies for at least one of the enumerated exceptions, and the project is

found to be in the public interest, then the Trustees may approve the project.

In the instant case, Petitioners assert that their application for an easement

over sovereignty submerged lands qualifies as minimum dredging authorized for

the creation of docks; and maintenance dredging for an existing navigation

channel under Section 258.42(3)(a) 2. and 4., Florida Statutes. Further,

Petitioners assert that the application is in the public interest and should be

approved by the Trustees.

78. The Trustees, acting in their proprietary capacity as owners of

sovereign submerged lands in the state are different than other state agencies

acting in a regulatory capacity. Board of Trustee v. Barnett, 533 So.2d 1202,

1206 (3 DCA Fla. 1988). However, the Trustees are not exempt from the operation

of Chapter 120, Florida Statutes. See, Barnett, 553 So.2d at 1205; Decarion v.

Martinez, 537 So.2d 1083, 1084 (1 DCA Fla. 1989). The Trustees are an "agency"

as that term is defined in Section 120.52(1)(b), Florida Statutes, and thus are

compelled to adopt rules based on their organic statutes and to take final

agency action that is consistent with those rules and statutes. See, Decarion,

537 So.2d at 1084. In addition, although it is true that the Trustees acting in

their proprietary capacity, as owners of sovereign submerged lands, are given

discretion to determine how submerged lands will be used, the discretion is not

unbridled-- the Trustees must adhere to the provisions of Chapter 258, Florida

Statutes and Chapter 18-20, Florida Administrative Code. See, Decarion, 5327

So.2d at 1084.

79. An agency's interpretation of its statute is entitled to great

deference and will not be overturned unless clearly erroneous or is not

supported by competent, substantial evidence. Drost v. Department of

Environmental Regulations, 559 So.2d 1154, 1155 (3 DCA Fla. 1990) and the cases

cited therein. Unreasonable interpretations distort fundamental principles of

statutory construction and mandate the use of reasonable interpretations.

Drost, 559 So.2d at 1156 and the cases cited therein.

80. "Maintenance dredging" and "navigation channel" are not defined by

Chapter 258, Florida Statutes, or by the Trustees' rules. However, the

Trustees' staff takes the position that in order for dredging to qualify as

"maintenance dredging" an "existing navigation channel" must be navigable

throughout its entire length.

81. From a thorough reading of Part II, Chapter 258, Florida Statutes,

commonly referred to as the Florida Aquatic Preserve Act of 1975, it is clear

that the legislature intended to set aside the aquatic preserves for the benefit

of future generations and to provide for the regulation of human activity within

the preserves in such a manner as not to unreasonably interfere with the lawful

and traditional recreational uses of the aquatic preserves, such as sport and

commercial fishing, boating and swimming. It does not appear that it was the

intent of the legislature to put such a narrow interpretation on the term

"existing navigation channel" as would require an "existing navigational

channel" to be navigable at all times throughout its entire length in order to

qualify for "maintenance dredging". In fact, such a requirement yields the

absurd result of allowing only preventative, before-the-fact dredging, as

maintenance dredging.

82. Additionally, such narrow interpretation of the term "existing

navigation channel" does not comport with the provision of Section 258.43(1),

Florida Statutes, not to unreasonably interfere with the lawful and traditional

recreational uses of the preserves in regulating the human activities within the

preserves. A well-settled tenet of statutory construction requires that

statutes on the same subject matter be read in harmony with each other without

destroying their clear intent. See, Mann v. Goodyear Tire & Rubber Co., 300

So.2d 666 (Fla. l974).

83. The construction placed on Section 258.42(3)(a)2., Florida Statutes,

by the Trustees' staff requiring that docks be located solely within an aquatic

preserve to qualify for the exception in this subsection is without merit.

Under this construction, a person with a dock located outside an aquatic

preserve who already has water access from the dock to the preserve, but in need

of minimum dredging within the aquatic preserve to utilize such access, would

not qualify for this exception, and therefore, would be unreasonably prevented

from enjoying the lawful and traditional recreational uses of the preserve.

Such a construction does not appear to comport with the legislative intent

expressed in the Florida Aquatic Preserve Act of 1975.

84. In addition to qualifying for one of the exceptions enumerated in

Section 258.42(3)(a), Florida Statutes, the Petitioners must show that the

project is in the public interest. Rule 18-20.003(25), Florida Administrative

Code, defines "public interest" as follows:

"Public interest" means demonstrable

environmental, social, and economic benefits

which would accrue to the public at large as

a result of a proposed action, and which would

clearly exceed all demonstrable environmental,

social, and economic costs of the proposed

action. In determining the public interest in

a request for use, sale, lease, or transfer of

interest in sovereignty lands or severance of

materials from sovereignty lands, the board

shall consider the ultimate project and purpose

to be served by said use, sale, lease, or

transfer of lands or materials.

85. Rule 18-210.004(2), Florida Administrative Code, establishes public

interest assessment criteria, and provides that in evaluating requests for

easements a balancing test will be utilized to determine whether the social,

economic and environmental benefits clearly exceed the costs. In applying the

balancing test to benefits provided by the proposed project the evidence clearly

establishes that the proposed project is in the public interest.

86. Petitioners, as the parties asserting the affirmative of an issue

before an administrative tribunal, have the burden to prove by a preponderance

of the evidence that they qualify for an exception to the general prohibition

against dredging in an aquatic preserve, and that the proposed project is in

the public interest. Department of Transportation v. J, W. C. Company, Inc.,

396 So.2d 778 (1 DCA Fla. 1981). The Petitioners have sustained their burden in

this regard.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the Trustees of the Internal Improvement Trust Fund enter a

final order granting Petitioners to maintenance dredge a navigation channel over

sovereign submerged lands as more fully described in Petitioners' Exhibit 8 (DER

Permit/Certification No. 081510235).

DONE and RECOMMENDED this 8th day of October, 1992, at Tallahassee,

Florida.

___________________________________

WILLIAM R. CAVE, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of October, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-0534

The following constitutes my specific rulings, pursuant to Section

120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted

by the parties in this case.

Rulings on Proposed Findings of Fact

Submitted by the Petitioner

1. Proposed Findings of Fact 1 through 72 are adopted in substance as

modified in Findings of Fact 1 through 72.

Rulings on Proposed Findings of Fact

Submitted by the Respondent

1. Proposed Findings of Fact 1, 2, 3, and 4 are adopted in substance as

modified in Findings of Fact 10, 1, 19, and 20, respectively.

2. Proposed Findings of Fact 5, 6, 7, 10, and 12 are rejected as not being

supported by competent substantial evidence in the record.

3. Proposed Findings of Fact 8 and 9 are adopted in substance as modified

in Finding of Fact 36.

4. Proposed Findings of Fact 11, 13, 14, 15, 16, 17, and 19 are adopted in

substance as modified in Findings of Fact 21, 25, 9, 9, 4, 4, and 11,

respectively.

5. Proposed Finding of Fact 8 is not relevant, but see Finding of Fact 42.

6. Proposed Finding of Fact 20 is not relevant since the SWIM Plan has not

been adopted.

COPIES FURNISHED:

Joseph W. Landers, Jr., Esquire

John T. LaVia, III, Esquire

Post Office Box 271

Tallahassee, Florida 32302

M. B. Adelson, IV, Esquire

Edwin Steinmeyer, Esquire

Department of Natural Resources

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante

General Counsel

Board of Trustees of the

Internal Improvement Trust Fund

3900 Commonwealth Boulevard

Mail Station #10

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to the Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

final order in this case concerning their rules on the deadline for filing

exceptions to this Recommended Order. Any exceptions to this Recommended Order

should be filed with the agency that will issue the final order in this case.