96-002941 James Bunch And Santa Rosa County Board Of County Commissioners vs. Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, January 14, 1997.

Summary: Applicant meets all requirements for dredging permit exemption.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES BUNCH AND SANTA ROSA COUNTY )

BOARD OF COUNTY COMMISSIONERS, 1 )

)

Petitioners, )

)

vs. ) CASE NO. 96-2941

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

____________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on October 25, 1996, in Pensacola, Florida, before the Division

of Administrative Hearings, by its designated Administrative Law

Judge, Don W. Davis.

APPEARANCES

For Petitioner James Bunch:

William W. Goodell, Jr., Esquire

LL and E Tower

909 Poydras Street, Suite 2550

New Orleans, Louisana 70112-4000

For Petitioner Santa Rosa County:

Thomas V. Dannheiser, Esq uire

Santa Rosa County Board of County Commissioners

6865 Caroline Street Southeast

Milton, Florida 32570-4978

1 The style of this case has been amended to properly reflect the status

of Santa Rosa County as a Petitioner, a matter clarified at final hearing.

For Respondent Department of Environmental Protection:

Lynette L. Ciardulli, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Whether Petitioners are entitled to permit exemption with

regard to proposed dredging of an existing canal.

PRELIMINARY STATEMENT

This matter began on May 21, 1996, whe n Petitioner James

Bunch requested formal administrative proceedings with regard to

Respondent's denial of the application for permit exemption filed

by Petitioner Santa Rosa County.

Subsequently, the Petition For Administrative Hearing was

referred to the Division of Administrative Hearings for conduct

of formal proceedings.

Final hearing was convened on October 25, 1996, at which

time counsel for Petitioner Bunch (Bunch) sought, in concert with

counsel for the Board of County Commissioners of Santa Rosa

County (County), to amend the initial Petition to include the

County as a party petitioner. The motion for amendment was

granted.

At the final hearing, Petitioners jointly presented the

testimony of nine witnesses and 16 exhibits of which 15 were

admitted into evidence. Respondent presented testimony of two

witnesses and four exhibits, all of which were admitted. A

transcript of the final hearing was filed with the Division of

Administrative Hearings on December 3, 1996.

The parties requested and were granted leave to file

posthearing submissions more than 10 days after the filing of the

transcript, and in accordance with Rule 60Q-2.031, Florida

Administrative Code, waived provisions of Rule 28-5.402, Florida

Administrative Code.

The parties’ proposed recommended orders have been reviewed

and utilized in the preparation of this recommended order.

FINDINGS OF FACT

1. Bunch owns a house on a lot leased from the County. The

lot is located on Navarre Beach Finger Canal Number 2. Bunch

purchased the house, in part, to use the canal for access to

Santa Rosa Sound in his pursuit of recreational boating

activities. If permitted, the opening of the canal will allow

Bunch to have easier access to his house with his boat. Denial

of the maintenance dredging exemption to date has impaired

Bunch’s full use of the property.

2. The County applied for a permit to dredge and perform

certain activities to enhance navigability of Navarre Beach

Finger Canal Number 2 on March 5, 1996. The application was

submitted by the County on behalf of residents with property

located on the Canal.

3. As part of the permit review process, Respondent’s

personnel determined that the maintenance dredging exemption of

Section 403.813(2)(f), Florida Statutes was not applicable to the

requested dredging of a sand bar at the mouth of Navarre Beach

Finger Canal Number 2.

4. Navarre Beach Finger Canal Number 2 is a man-made water

body meeting the definition of the term “canal” contained in

Rule 62-312.050(3), Florida Administrative Code.

5. As documented by evidence presented at the final

hearing, Navarre Beach Finger Canal Number 2 is currently

navigable and functional. The Canal is accessed and navigated by

different types of recreational water craft, inclusive of a 23

foot pleasure craft with a two and a half foot draft, john

boats, jetskis and a 27 foot Rendezvous Bayliner Boat. The

average size of recreational residential boats in Florida is 23

feet. During the 1960’s, the Canal was open and accessed by

similiar fishing and pleasure boats.

6. Navarre Beach Finger Canal Number 2 has progressively

widened and deepened in recent years. Plugged from at least 1970

until 1992, the Canal was opened by the natural event of

Hurricane Opal which removed a solid sand dune separating the

Canal from Santa Rosa Sound. Recent measurements establish that

the Canal depth is three feet at the mouth where the sand bar is

located, 12 feet just inside the sand bar, and then varying

depths ranging between four to seven feet for the length of the

Canal. At the lowest tide conditions, the depth at the sand bar

is approximately one and one half feet and increases to four feet

or more at high tide.

7. The mouth of Navarre Beach Finger Canal Number 2 since

Hurricane Opal varies from 40 to 50 feet in width at high tide to

six to ten feet wide at the lowest tide conditions.

8. Water depths in Santa Rosa Sound and connected waters

vary with tide stage and time of year. Average water depth in

the Sound in the area of Navarre Beach Finger Canal Number 2 is

five to six feet. Sometimes, on a winter low tide, one can walk

100 feet out into the Sound and still be on dry land. During a

four to five consecutive day period in August of 1996, mid (not

high or low) tide yielded a depth of three feet at the sand bar

across an area of 10-20 feet at the mouth of the Canal.

Extremely low tide conditions were observed by Respondent’s

employee on an October 14, 1996 inspection of the area which

revealed an estimated depth of one and a half feet at the mouth

of the Canal across an area of approximately six feet. Under

average conditions, the mouth of the Canal corresponds to the

August 1996 measurements with a 10 to 20 width and a three foot

depth at the sand bar.

9. Navarre Beach Finger Canal Number 2 is not presently

closed and regularly exchanges water with Santa Rosa Sound.

10. Constructed sometime between 1962 and 1964, Navarre

Beach Finger Canal Number 2 was originally dredged all the way

to Santa Rosa Sound. There was no sand bar at the mouth. The

Canal was fully navigable and freely accessed by fishing and

pleasure boats from the Sound. Historical plats, engineering

drawings, plats and survey drawings corroborate testimony of

witnesses at the final hearing that the Canal was open and

functional in the 1960’s and 70’s and was maintained.

11. Between 1972 and 1984, sand accumulated at the mouth of

Navarre Beach Finger Canal Number 2. There was a periodic flow

between the Canal and the waters of Santa Rosa Sound and pumping

or dredging of sand took place. Generally, this ongoing

maintenance was accomplished informally without permits or

written authorization. Boats occasionally went in and out of the

Canal. Over the years following 1980, the flow decreased but

there was always some water flowing in and out of the Canal in

connection with the waters of the Sound.

12. In the early to mid 1980’s approximately 900 feet of

the sides and bottom of Navarre Beach Finger Canal Number 2 were

dredged, but sand at the mouth of the Canal was left alone. A

permit exemption for the purpose of maintenance dredging of the

Canal was previously granted in 1980.

13. Barrier island shorelines, such as Santa Rosa Island,

change frequently and are considered to be “dynamic areas”. If

considered to be maintenance dredging, the removal of the sand

bar at the mouth of Navarre Beach Finger Canal Number 2

qualifies as a typical, routine type of maintenance common in

this type of coastal setting.

14. Petitioners maintain that the proposed maintenance

dredging activity will be conducted so that all the spoil

material will be placed on an upland disposal site without any

discharge of materials into waters of the State of Florida; will

be accomplished only to the extent necessary to restore Navarre

Beach Finger Canal Number 2 to it’s previously dredged design and

without any dredging below five feet of the mean low water line;

will have no adverse effect on fish and wildlife conservation,

including endangered or threatened species; will not adversely

affect navigation or flow of water; will not cause harmful

shoaling or erosion results; will not affect fishing,

recreational values or marine productivity in the vicinity; will

have permanent results with regard to functionality of the Canal;

and will not adversely affect significant historical or

archaeological resources or the current condition in relative

value of functions being performed in the areas affected by the

proposed activity.

15. Petitioners’ application for exemption from the

dredging permit process addressed matters other than the

maintenance exemption sought in this proceeding. As established

by testimony at the final hearing, those activities will not be

conducted as part of the proposed maintenance dredging exemption.

16. Dan Garlick, Petitioners’ expert in water quality,

coastal ecology, and marine contracting, supervised the

preparation of a December 8, 1995 report of the hydrographic

conditions at Navarre Beach Finger Canal Number 2. The purpose

of the report was to estimate the flushing potential of the Canal

when opened. By comparing present conditions in the adjacent and

similar Navarre Beach Finger Canal Number 1 to anticipated post

dredge conditions in Navarre Beach Finger Canal Number 2, a

“worst case scenario” documented in the report shows a flushing

time of 5.9 hours for Navarre Beach Finger Canal Number 2. This

is an exceptional flushing time.

17. 1995 and 1996 water quality sampling in Navarre Beach

Finger Canal Number 2 reveals that the Canal water generally

exceeds applicable class III standards. Bacteria counts in Santa

Rosa Sound have exceeded those found in the Canal.

18. Removal of the remainder of the sand barrier at the

mouth of Navarre Beach Finger Canal Number 2 will result in a

water quality as good as that in nearby Navarre Beach Finger

Canal Number 1--a quality that meets all applicable state

standards. Degradation of water quality of waters of the State

of Florida will not result from opening of Navarre Beach Finer

Canal Number 2.

19. Sailmaker Cove Canal is situated approximately 3 miles

from Navarre Beach Finger Canal Number 2 and opens into Santa

Rosa Sound. From 1989 until the permitting of maintenance

dredging in 1993 or 1994, there was no exchange of water between

Sailmaker Cove Canal and Santa Rosa Sound. In that instance,

Respondent’s personnel determined that a maintenance dredging

exemption was appropriate.

20. Petitioner James Bunch is included in the list of

affected property owners whose names and addresses were included

with the application to Respondent for permission to conduct the

dredging activity which is the subject of this proceeding.

Petitioner Bunch and Petitioner Santa Rosa County Commission have

standing to bring this proceeding.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction over this subject matter and the parties to this

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

22. Bunch, as an owner of a residence on Navarre Beach

Finger Canal Number 2 with substantial interests which may be

affected by Respondent’s agency action with regard to the pending

application for permit dredging exemption, and Petitioner Santa

Rosa County Commission have standing to bring this proceeding.

23. Navarre Beach Finger Canal Number 2 is presently

navigable and functional as evidenced by current usage of the

Canal by watercraft of various sizes. Respondent argues that

granting the requested permit will allow dredging for restoration

as opposed to maintenance of the Canal. Respondent has not

defined the term “restoration” in its administrative rules.

Respondent’s argument would be more persuasive absent the

intervention of natural forces which have opened the Canal to

navigation. The Canal’s present navigability is well documented

by the proof presented at the final hearing.

24. The determination of applicability of the maintenance

dredge exemption depends upon the functionality of the canal at

issue. This determination is made on a case-by-case basis.

Church of Jesus Christ v. St. Johns Water Management District ,

489 So. 2d 59 (Fla. 5th DCA 1986); Manasota-88, Inc. et. al. v.

Hunt Building Corp. and State of Florida DEP , 13 FALR 927, 929-

930.

25. The requisite facts necessary to obtain the proposed

maintenance dredging exemption available pursuant to Rule 62-

312.050(1)(e), Florida Administrative Code, are established.

Navarre Beach Finger Canal Number 2 was dredged prior to 1970; is

of artificial construction; only a small portion of the Canal at

the mouth requires maintenance dredging at present; spoil

material will be removed and deposited on a self-contained upland

spoil site; dredging will be limited to the rule’s requirements;

and pollutant discharges into waters of the State will be

prevented during dredging.

RECOMMENDATION

Based upon the foregoing findings of fact and the

conclusions of law, it is,

RECOMMENDED :

That a final order be entered granting the requested

maintenance dredging exemption.

DONE and ENTERED this 14 th day of January, 1997, in

Tallahassee, Leon County, Florida.

___________________________________

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings th

this 14 day of January, 1997.

COPIES FURNISHED:

Thomas V. Dannheiser, Esquire

Santa Rosa County

Board of County Commissioners

6865 Caroline Street SE

Milton, FL 32570-4978

Lynette L. Ciardulli, Esquire

Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

William W. Goodell, Jr., Esquire

LL and E Tower

909 Poydras Street, Suite 2550

New Orleans, LA 70112-4000

Virginia B. Wetherell, Secretary

Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Perry Odom, Esquire

Department of Environmental

Protection

3900 Commonwealth Boulevard

Tallahassee, FL 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.