97-004943 Patricia Moreland vs. City Of Gulf Breeze And Department Of Environmental Protection Status: Closed Recommended Order on Friday, February 6, 1998.

Summary: City of Gulf Breeze entitled to construct a concrete jetty at mouth of bayou, to widen the bayou's mouth, and to dredge bayou to a depth of minus eight feet.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA MORELAND, )

)

Petitioner, )

)

and )

)

JAMES S. CAMPBELL and ROBERT )

SWITZER, )

)

Intervenors, )

)

vs. ) Case No. 97-4943

)

CITY OF GULF BREEZE and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

___________________________________)

RECOMMENDED ORDER

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

on January 15, 1998, in Pensacola, Florida, before the Division

of Administrative Hearings, by its designated Administrative Law

Judge, Suzanne F. Hood.

APPEARANCES

For Petitioner: Patricia J. Moreland, pro se

86 Highpoint Drive

Gulf Breeze, Florida 32561

For Respondent City of Gulf Breeze:

Matt E. Dannheisser, Esquire

Matt E. Dannheiser, P.A.

504 North Baylen Street

Pensacola, Florida 32501

For Respondent Department of Environmental Protection:

Ricardo Muratti, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

and

Thomas L. Mayton, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Intervenors James S. Campbell and Robert Switzer:

Mary Jane Theis, Esquire

Beggs and Lane

Post Office Box 12950

Pensacola, Florida 32576

STATEMENT OF THE ISSUE

The issue is whether Respondent Department of Environmental

Protection properly determined that Respondent City of Gulf

Breeze was entitled to construct a concrete jetty at the mouth of

Gilmore Bayou, to widen the mouth of the bayou an additional 35

feet, and to dredge sections of the bayou to a depth of minus

eight feet.

PRELIMINARY STATEMENT

On or about July 28, 1997, Respondent Department of

Environmental Protection (DEP) gave notice of its intent to issue

Draft Permit No. 572874961 to Respondent City of Gulf Breeze

(Gulf Breeze). Petitioner Patricia Moreland (Petitioner) filed

an Amended Petition to the State of Florida, Department of

Environmental Protection to Deny Permit on September 30, 1997.

The undersigned issued a Notice of Hearing dated

November 13, 1997. Said notice scheduled the hearing for January

15, 1998.

On December 24, 1997, Intervenors James S. Campbell and

Robert Switzer (Intervenors) filed a Petition for Leave to

Intervene. An order dated January 8, 1997, granted this

petition.

At the final hearing, Gulf Breeze offered eight (8) exhibits

which were admitted into evidence. DEP did not offer any

exhibits. Invervenors did not offer any exhibits. Petitioner

offered three (3) exhibits which were admitted into evidence.

The parties did not file a transcript of the proceedings.

Gulf Breeze and DEP jointly submitted a Proposed Recommended

Order on January 30, 1997. Petitioner did not file proposed

findings of fact and conclusions of law.

FINDINGS OF FACT

1. On March 22, 1996, Gulf Breeze applied for a wetlands

resource permit from DEP to allow the following: (a) dredging of

the entrance channel to Gilmore Bayou in order to return the

channel to its original width and depth; (b) construction of

bulkheads on either side of the channel; and (c) construction of

two jetties on the east side of the channel to slow the accretion

of sediments in the channel.

2. The proposed project is located in the waters of the

state at the southwestern end of Gilmore Bayou where it opens

into Pensacola Bay.

3. The project is adjacent to and north of 406 Navy Cove

Road, in the City of Gulf Breeze, Florida, Section 6, Township

35N, Range 29W.

4. The Petitioner's home is located at 86 Highpoint Drive,

Gulf Breeze, Florida. Her residence is downstream from the

project at the northeastern end of Gilmore Bayou.

5. The channel at the southwestern end of Gilmore Bayou was

originally dredged in the mid-1950s. Since that time, the

channel has provided a navigable outlet to Pensacola Bay for use

by property and boat owners along Gilmore Bayou. The channel has

also provided for water circulation and tidal flushing within the

Bayou.

6. Maintenance dredging has been performed almost annually

to keep the Gilmore Bayou channel open. The purpose of the

proposed project is to reduce the need for the frequent

maintenance dredging and to provide for better water circulation

in the bayou.

7. A wetlands resource permit to perform maintenance

dredging has not been required in the past because that activity

was exempt from the permitting process.

8. On July 28, 1997, the Department issued Gulf Breeze a

Notice of Intent to Issue Draft Permit Number 572874961 to

construct one seventy (70) foot long concrete jetty at the mouth

of Gilmore Bayou, widen the mouth of Gilmore Bayou an additional

thirty-five feet and dredge sections of the Bayou to a depth of

minus eight feet. In issuing the Notice of Intent to Issue, the

Department also considered Gulf Breeze's application for a five-

year sovereign, submerged land easement for the location of the

jetty.

9. Gulf Breeze published the Notice of Intent to Issue in a

newspaper of general circulation in accordance with DEP

requirements and Section 373.413(4), Florida Statutes, and Rule

62-343.090(2)(k), Florida Administrative Code. Thereafter,

Petitioner filed a petition requesting that the permit be denied.

10. Petitioner has a substantial interest in the permitted

activity, as she owns property and resides on Gilmore Bayou.

11. Petitioner's request that the permit be denied is

primarily based on her opinion that water quality in Gilmore

Bayou has deteriorated as a result of the original and continuous

dredging of the channel at the southwestern end of Gilmore Bayou.

She is concerned that the permitted activity will result in

further water quality degradation and result in a further

movement of the spit of land which extends in front of her home

out to Deadman's Island on the northern side of the Bayou.

12. The ecosystem in Gilmore Bayou today is a hea lthy

system which supports various marshes and fish. The ecosystem

thrives despite water quality degradation resulting from

development and urbanization along its shores. More

specifically, septic tanks, fertilizer runoff, and stormwater

discharge have caused water quality to degrade in the Bayou. The

most persuasive evidence indicates that the dredging of the

channel over time has not caused the water quality to degrade.

13. The permitted activity will have a positive effect on

water quality in Gilmore Bayou, as it will enhance tidal flushing

through the channel.

14. The jetty, which is a part of the permitted activity,

will slow the transport of sand into the channel, allowing for

better flushing and reducing the need for maintenance dredging in

the channel. Construction of the jetty is recommended and

supported by the hyrdographic study of Kenneth L. Echternacht,

Ph.D., P.E. Gulf Breeze obtained and submitted this study to DEP

to assist in evaluating the project.

15. The permitted activity will have no significant impact

on the location of the spit of land extending from Petitioner's

property to Deadman's Island. The shifting of the spit of land

over the years has been caused by numerous factors which are

identified in a 1993 study by Dr. James P. Morgan, Ph.D. These

factors include development of the area, erosion of the

surrounding bluffs, the location of the Pensacola Bay bridge, and

storms and sand drift into channels to the east of the spit.

16. Without this project or frequent mai ntenance dredging,

the channel at the southwestern end of Gilmore Bayou would fill

with silt. Eventually, the silt would inhibit water circulation

and result in further water quality degradation in the bayou.

17. The permitted activity is not contrary to the public

interest. Instead, it will benefit the public interest. The

project will make it possible to maintain the Gilmore Bayou

channel more efficiently. The project will allow for increased

flushing of the bayou. The increased flushing will improve water

quality in the bayou.

18. The permitted activity will not have any adverse effect

on the conservation of fish or wildlife, or any endangered

species or their habitats.

19. The permitted activity will not adversely affect

navigation or flow of water or cause any harmful erosion or

shoaling. It will have a positive effect on navigation and water

flow and act to prevent harmful erosion or shoaling.

20. The permitted activity will have no adverse effect on

fishing or recreational values or marine productivity in the

vicinity of the project.

21. The permitted activity will provide for permanent

jetties and bulkheads at the entrance to Gilmore Bayou.

22. The permitted activity will have no adverse effect on

historical or archeological resources on Deadman's Island or in

the vicinity of the project.

23. The permitted activity will have a positive impact on

the recreational functions and use of the channel and Deadman's

Island.

CONCLUSIONS OF LAW

24. 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.

25. Gulf Breeze, as the applicant for the permit, has the

ultimate burden of proof in demonstrating entitlement to the

permit sought. Department of Transportation v. J.W.C. Company,

Inc. , 396 So. 2d 788 (Fla. 1st DCA 1981).

26. A DEP permit is required for this proposed project

under Rule 62-343, Florida Administrative Code. This rule

provides that a DEP permit must be obtained if dredging or

filling is to be conducted in state waters, unless otherwise

exempted by statute or rule.

27. The proposed project involves dredging and filling and

placement of a jetty in waters of the state as defined in Rule

62-343.050, Florida Administrative Code.

28. Section 343.414, Florida Statues, prohibits DEP from

issuing a permit unless the applicant has provided reasonable

assurance based on the plans, test results, or other information

that the proposed project will not violate water quality

standards.

29. The applicant has provided reasonable assurance that

the proposed project will not cause water quality violations.

30. Section 373.414(1), Florida Statutes, prohibits DEP

from issuing a permit for projects, in, on or over surface waters

of the state unless the applicant has provided reasonable

assurance that the project is not contrary to the public

interest.

31. The applicant has provided reasonable assurance that

the project is not contrary to the public interest.

32. A state grant of public easement to use sovereign

submerged lands is required for this proposed project under Rule

18-21.004, Florida Administrative Code. This rule requires an

applicant to obtain a state grant of a public easement to use

sovereign submerged lands if an activity is to be conducted on

sovereign submerged lands, unless otherwise exempted by statute

or rule.

33. The proposed project (specifically the jetty) involves

activity on sovereign submerged lands of the state as defined in

Rule 18-21.003(50), Florida Administrative Code.

34. Rule 18-21.004(1), Florida Administrative Code,

prohibits the state from granting a public easement to use

sovereign submerged lands unless the applicant has provided

reasonable assurance that the project is not contrary to the

public interest.

35. The applicant has provided reasonable assurance that

the proposed project is not contrary to the public interest.

36. Rule 18-21.004(2), Florida Administrative Code,

prohibits the state from granting a public easement to use

sovereign submerged lands unless the applicant has provided

reasonable assurance that all sovereignty lands shall be

considered single-use lands and shall be managed primarily for

the maintenance of essentially natural conditions, propagation of

fish and wildlife, and traditional recreational uses such a

fishing, boating and swimming.

37. The applicant has provided reasonable assurance that

the project shall be considered single use lands and shall be

managed primarily for the maintenance of essentially natural

conditions, propagation of fish and wildlife, and traditional

recreational uses such as fishing, boating and swimming.

38. Rule 18-21.004(2), Florida Administrative Code,

prohibits the state from granting a public easement to use

sovereign submerged lands unless the applicant has provided

reasonable assurance that the project will not result in

significant adverse impacts to sovereignty lands and associated

resources.

39. The applicant has provided reasonable assurance th at

the proposed project will not result in significant adverse

impacts to sovereignty lands and associated resources.

RECOMMENDATION

Based upon the findings of fact and conclusions of law, it

is,

RECOMMENDED:

That the Department of Environmental Protection issue a

Final Order determining that its Notice of Intent to Issue

Permit, together with Permit No. 572874961, is final agency

action.

DONE AND ENTERED this 6th day of February, 1998, in

Tallahassee, Leon County, Florida.

__________________ _________________

SUZANNE F. HOOD

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

this 6th day of February , 1998.

COPIES FURNISHED:

Mary Jane Thies, Esquire

Beggs and Lane

Post Office Box 12950

Pensacola, Florida 32576-2950

Ricardo Muratti, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Patricia J. Moreland

86 Highpoint Drive

Gulf Breeze, Florida 32561

Matt E. Dannheisser, Esquire

504 North Baylen Street

Pensacola, Florida 32501

Kathy Carter, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

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.