00-002100 Henry Ross vs. City Of Tarpon Springs And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, August 4, 2004.

Summary: The application for authorization to use sovereignty submerged lands for maintenance dredging project should be approved. Application meets all applicable requirements of chapters 373, 253, and 258, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY ROSS, )

)

Petitioner, )

)

vs. ) Case No. 00 - 2100

)

CITY OF TARPON SPRINGS AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER FO LLOWING REMAND

Pursuant to the Second Order of Remand filed on

November 24, 2003, this matter was submitted to the Division of

Administrative Hearings and its duly - designated Administrative

Law Judge, Carolyn S. Holifield, on the rec ord in this case

without further evidentiary hearing.

APPEARANCES

For Petitioner: Henry Ross, pro se

1005 South Florida Avenue

Tarpon Springs, Florida 34689

For Respondent City of Tarpon Springs:

Thomas Jask, Esquire

Frazer, Hubbard, Bran dt & Trask, LLP

595 Main Street

Dunedin, Florida 34698

For Respondent Department of Environmental Protection:

Doreen Jane Irwin, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boule vard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue is whether Petitioner should be granted

Authorization to Use Sovereignty Submerged Lands to conduct

proposed dredging activity.

PRELIMINARY STATEMEN T

This matter began on or about March 24, 2000, when

Respondent, Department of Environmental Protection, issued its

Consolidated Notice of Intent to Issue Environmental Resource

Permit and Authorization to Use Sovereignty Submerged Lands.

The permit and the authorization allow for the d redging of

existing channels in order to improve/maintain navigation for

commercial and recreational boaters. The proposed dredging

activity is located in and adjacent to the Anclote River, Tarpon

Bayou, Kreamer Bayou, Sunset Lagoon, Spring Bayou, Minetta

Bayou, Innes Bayou, and Lake Lutea in the Pinellas County

Aquatic Preserve.

After a challenge to the proposed agency action was filed

by Petitioner, Henry Ross, the final hearing was conducted on

April 14 and 15, 2003. In the Recommended Order entered on

October 7, 2003, the undersigned recommended that based on the

Findings of Fact and Conclusions of Law therein, the application

for an Environmental Resource Permit be issued.

The Department of Environmental Protection issued a Second

Order of Remand 1/ i n this matter on November 20, 2003, which was

filed with the Division of Administrative Hearings on

November 24, 2004. The Second Order of Remand was for the

limited purpose of the undersigned's making recommended findings

of fact and conclusions of law r elated to Respondent, City of

Tarpon Springs', request for Authorization to Use Sovereignty

Submerged Lands in the Pinellas County Aquatic Preserve. These

findings are necessary because in cases such as this, where the

applicant seeks both an Environmenta l Resource Permit and an

Authorization to Use Sovereignty Submerged Lands, the

"concurrency permit review" prohibits the issuance of the

Environmental Resource Permit unless the applicant demonstrates

that the requirements for granting the related Authori zation to

Use Sovereignty Submerged Lands are also satisfied. See

§ 373.427, Fla. Stat. (2003), and Fla. Admin. Code

R. 62 - 343.075.

On December 9, 2003, the Department filed with the Division

the two - volume Transcript (Volumes 1A, 1B and II) of the final

hearing and the exhibits received in evidence at that

proceeding.

On April 2, 2004, a telephone conference call was held on

the Second Order of Remand. Pursuant to an Order issued that

same date, the parties were requested to submit on April 12,

2004, pr oposed findings of fact and proposed conclusions of law,

limited to Respondent, City of Tarpon Springs', request to use

sovereignty submerged lands in the Pinellas County Aquatic

Preserve.

Respondents timely filed a Joint Proposed Recommended Order

as it relates to the Second Order of Remand. Petitioner did not

file proposed findings of fact and conclusions of law related to

the Second Order of Remand. The Joint Proposed Recommended

Order and the record in this case have been carefully considered

in prep aration of this Recommended Order Following Remand.

FINDINGS OF FACT

Based on the entire record in this case, the Transcript of

the proceeding, and the documentary evidence received at

hearing, the following findings are made. 2/

1. Respondent, Departm ent of Environmental Protection

("Department"), is charged with the responsibility to regulate

activities in, on, or over surface waters and wetlands of the

State of Florida pursuant to Chapter 373, Florida Statutes

(2003), and the rules promulgated thereu nder.

2. The Department, as the delegated staff of the Board of

Trustees of the Internal Improvement Trust Fund ("Board"), is

empowered to grant requests for Authorization to Use Sovereignty

Submerged Lands, which are considered "proprietary

authorizatio ns," and are so designated for purposes of this

Recommended Order Following Remand. See Chaps. 253 and 258,

Fla. Stat. (2003) , and Fla. Admin. Code Chaps. 18 - 20 and 18 - 21.

3. The Department is responsible for reviewing and taking

final agency action on all Environmental Resource Permit

("regulatory permit") applications for projects constructed,

operated, or maintained by the Southwest Florida Water

Management District pursuant to the operating agreement

concerning regulation under Part IV, Chapter 373, Florida

Statutes (2003), and Aquiculture General Permits under Section

403.814, Florida Statutes (2003), between Southwest Florida

Water Management District and the Department.

4. Respondent, City of Tarpon Springs ("City" or "Tarpon

Springs"), applied f or a regulatory permit and a proprietary

authorization for a dredging project. The regulatory permit and

proprietary authorization forms are part of a linked process,

which requires that one action be taken by the Department with

regard to both the regula tory permit and the proprietary

authorization. In practical terms, the Department cannot

approve one and deny the other.

5. Tarpon Springs is located in Pinellas County, Florida,

and by rule, all sovereignty submerged lands in that county are

in an area designated as an aquatic preserve and are considered

Outstanding Florida Waters.

6. An aquatic preserve is designated as an area that needs

special protection and has special habitat values or a certain

uniqueness that requires it to have a special level of

protection more than certain other bodies of water. See Fla.

Admin. Code R. 18 - 20.003(43).

7. The purpose of the City's dredging project is to create

a maintenance level of water depth at mean low water to create

safe navigation for both commercial an d recreational boaters

through the bayous and tributaries.

8. The dredging project consists of 11 different areas

within Tarpon Springs, all of which are sovereignty submerged

lands.

9. As a result of a request by the Department, Tarpon

Springs modified its application, and it is the modified

application which is at issue in this proceeding.

10. The application, as modified, establishes the width

and length of channels and the location of the proposed dredging

in accordance with field measurements. As proposed, these are

safe navigational widths.

11. The Department has different requirements for using

sovereignty submerged lands depending on whether a project is

new dredging or maintenance dredging. 3/ In instances where there

is going to be new dre dging, it is the Department's practice to

require a public easement that clearly defines the area which is

proposed to be dredged. In projects that are determined to

involve maintenance dredging, the Department requires that the

entity carrying out the dr edging project obtain consent to use

state lands.

12. The City's proposed project is a dredging project for

the maintenance of an existing navigational channel, with the

exception of Area 6, which is the area east of the Anclote River

Bridge on the Anclot e River.

13. The Department properly determined that Area 6

involved new dredging. Therefore, in order for the City to

dredge the sovereignty submerged lands in Area 6, it would have

to obtain a public easement in order to undertake new dredging.

14. With regard to the areas other than Area 6, the

Department properly determined that those areas, which the City

proposes to dredge, involve maintenance dredging. The

Department's determination is based on the fact that these areas

were existing and functional navigational channels.

Accordingly, in order for the maintenance dredging in these

areas to proceed, Tarpon Springs must obtain from the Department

consent to use state sovereignty submerged lands.

15. As part of the City's joint application process, th e

City's consultant, Blastand, Bouck and Lee, Inc., and its

subcontractor conducted environmental impact studies. The

studies conducted as part of the application process included a

bathymetric survey and chemical analysis. The results of these

completed studies were attached to the joint application.

16. The bathymetric survey maps the bottom of the areas to

be dredged to determine the depths of those areas relative to

the channels, and then to determine the material that has to be

removed to obtain th e proper clearance for navigation.

17. The chemical analysis was performed on the materials

that would be removed from the area to determine the impact, if

any, in areas to be dredged and to identify the proper disposal

of the material. Based on the chemi cal analysis, there are no

environmental impacts to the areas to be dredged.

18. During the dredging process, the water quality will be

maintained by using double - silt barriers to contain the

materials that would come into suspension. The use of the

doubl e - silt barriers allows these materials to settle back down

into the area that is being dredged and not impact the adjacent

bodies of water.

19. In conjunction with the proposed dredging project,

Pinellas County required the City to complete two submerged

a quatic vegetation surveys to determine if there was sea grass

located within the area proposed to be dredged, Area 6. The

results of these surveys were that no sea grass was observed in

that area. However, as noted above, any dredging of Area 6 is

consid ered new dredging, and prior to undertaking such activity,

the City would have to obtain a public easement.

20. The Florida Fish and Wildlife Commission

("Commission") properly determined that the areas to be dredged

pursuant to the application, as modifie d, are limited to those

considered maintenance dredging. With regard to sea grass, the

Commission also appropriately determined that the maintenance

dredging project, as proposed, will adequately avoid sea grass.

Finally, the Commission properly determin ed that the proposed

dredging activity will not adversely affect the conservation of

fish and wildlife, including endangered or threatened species or

their habitats.

21. The Commission believes that the conditions placed on

the City as a condition for issu ance of the regulatory permit

will adequately offset any impacts to manatees.

22. The Save the Manatee Club ("STMC") always opposes

dredging projects, like the one which is the subject of this

proceeding. However, STMC recommended that the City implement

certain measures as a condition of the regulatory permit being

issued.

23. Should the regulatory permit be issued, the City will

be required to implement the standard construction conditions or

controls required by the Department to protect the manatee.

24. Based on a thorough review of the application and the

proposed dredging area, the Department properly determined that

the proposed maintenance dredging activity will not be harmful

to the water resources in the area and the water quality

standards wi ll not be violated. The notice of intent includes

conditions requiring the City to meet state water quality

standards during the dredging operation. If the water quality

standards are not adhered to, the state has the power to enforce

the water quality s tandards and to shut down the dredging

operation.

25. The City has provided reasonable assurances that the

proposed activity, considering the direct, secondary, and

cumulative impacts, is in the public interest.

CONCLUSIONS OF LAW

26. The Division of Admin istrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to Section 120.569 and Subsection

120.57(1), Florida Statutes (2003).

27. The City seeks to obtain regulatory permits 4/ and

proprietary authoriz ations to carry out dredging projects in the

bayous in Pinellas County, Florida, which have been designated

as an aquatic preserve and Outstanding Florida Waters.

28. The title to lands under navigable waters in the State

of Florida, such as those which ar e relevant in this proceeding,

is held by the state in trust for all the people. Art. X, § 11,

Fla. Const., and § 253.12(1), Fla. Stat. (2003) . The sale of

such lands may be authorized by law, but only when in the public

interest; and private use of suc h lands may be authorized by law

only when not contrary to the public interest.

29. The Board comprised of the Governor and Cabinet, is

vested and charged with responsibilities related to the

acquisition, administration, management, control, supervision,

c onservation, protection, and disposition of all state - owned

land. See § 253.03(1)(b), Fla. Stat. (2003) .

30. T he Board is authorized to delegate these duties to

the Department, but any delegation by the Board to the

Department to take final agency actio n on authorizations to use

sovereignty submerged state - owned lands must be by rule. 5/

§ 253.002(1) and (2), Fla. Stat. (2003) .

31. The Board is authorized to adopt rules to implement

the provisions of Chapter 253, Florida Statutes (2003). See

§ 253.03(7) (a), Fla. Stat. (2003) .

32. Pursuant to its rulemaking authority, the Board

promulgated Florida Administrative Code Rule Chapter 18 - 21,

entitled "Sovereignty Submerged Lands Management." 6/

33. The scope of Florida Administrative Code Chapter 18 - 21

is de scribed as follows:

(1) These rules are to implement the

administrative and management

responsibilities of the board and department

regarding sovereign submerged lands.

Responsibility for environmental permitting

of activities and water quality protect ion

on sovereign and other lands is vested with

the Department of Environmental Protection.

These rules are considered cumulative.

Therefore, a person planning an activity

should consult other applicable department

rules as well as the rules of the Depar tment

of Environmental Protection.

Fla. Admin. Code R. 18 - 21.002.

34. Florida Administrative Code Rule 18 - 21.004 establishes

the management policies, standards, and criteria to be used in

determining whether to approve, approve with conditions or

modifi cations, or deny requests for activities on sovereignty

submerged lands and provides, in pertinent part, the following:

(1) General Proprietary

(a) For approval, all activities on

sovereignty lands must be not contrary to

the public interest , except for sales which

must be in the public interest.

(b) All leases, easements, deeds or other

forms of approval for sovereignty land

activities shall contain such terms,

conditions, or restrictions as deemed

necessary to protect and manage sovereignty

la nds.

* * *

(2) Resource Management

(a) 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 as fishing, boating,

and swimming. Compatible secondary purposes

and uses which will not detract from or

interfere with the primary purpose may be

allowed.

* * *

(c) The Department of Environmental

Protection biological assessments and

rep orts by other agencies with related

statutory, management, or regulatory

authority may be considered in evaluating

specific requests to use sovereignty lands.

Any such reports sent to the department in a

timely manner shall be considered.

(d) Activiti es shall be designed to

minimize or eliminate any cutting, removal,

or destruction of wetland vegetation (as

listed in Rule 17 - 4.020(17), Florida

Administrative Code) on sovereignty lands.

* * *

(g) Severance of materials from

sovereignty lands shall be approved only if

the proposed dredging is the minimum amount

necessary to accomplish the stated purpose

and is designed to minimize the need for

maintenance dredging.

* * *

(i) Activities on sovereignty lands shall

be designed to minimize or elimin ate adverse

impacts on fish and wildlife habitat.

Special attention and consideration shall be

given to endangered and threatened species

habitat.

35. Public interest is defined in Florida Administrative

Code Rule 18 - 21.003(40), as follows:

(40) "Pu blic 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 prop osed 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 sai d use, sale, lease, or

transfer of lands or materials.

36. The City's proposed maintenance dredging project is

consistent with criteria set forth in the Florida Administrative

Code Rule 18 - 21.004. The evidence established that the proposed

maintenance dr edging activity is not contrary to the public

interests, but is clearly in the public interest. That public

interest is to provide safe navigation for commercial and

recreational boaters who use the area or channels. Moreover,

the evidence established th at the regulatory permit, which is

associated with this project, contains conditions which will not

detract from or interfere with the primary purpose (navigation

and fishing) of the affected sovereignty lands. The evidence

also established that the Depar tment properly used biological

assessments and reports of other agencies with related

statutory, management, or regulatory authority in determining

that the proposed maintenance dredging was designed to minimize

or eliminate the adverse impact on fish and wildlife habitat,

including endangered or threatened species or their habitats.

Finally, the evidence established that the severance of

materials from the sovereignty lands, as required for the

dredging project, is the minimum amount necessary to maintain

the existing navigational channels.

37. The sovereignty submerged lands included in the

boundaries of Pinellas County have been declared by the

Legislature to be an aquatic preserve. See Chapter 72 - 663, Laws

of Florida, and § 258.39(27), Florida Statute s (2003). An

aquatic preserve is "an exceptional area of submerged lands and

its associated waters set aside for being maintained essentially

in its natural or existing condition." 7/ See § 258.37(1), Fla.

Stat. (2003).

38. The City's proposed maintenanc e dredging project will

occur on sovereignty submerged lands, which are in an aquatic

preserve. Therefore, the activity must be authorized by and

meet the elevated requirements in Chapter 258, Part II, Florida

Statutes (2003), the Aquatic Preserve Act of 1975 ("Aquatic

Reserve Act"), 8/ and the applicable rules promulgated thereunder.

See Fla. Admin. Code R. 18 - 20.003(43).

39. The approval of dredging or filling of submerged lands

in aquatic preserves are limited to those activities enumerated

in Subsectio n 258.42(3)(a), Florida Statutes (2003). One

activity that the Board may authorize is "maintenance dredging

as may be required for existing navigation channels." See

§ 258.42(3)(a)4., Fla. Stat. (2003) .

40. Pursuant to Subsection 258.43(1), Florida Stat utes

(2003), the Board is authorized to adopt rules to implement the

Aquatic Preserve Act and " 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 pres erve, such as sport and commercial fishing, boating,

and swimming."

41. Pursuant to its rulemaking authority, the Board

adopted Florida Administrative Code Chapter 18 - 20, which

establishes policies that govern the management and use of

sovereignty lands w ithin an aquatic preserve.

42. Florida Administrative Code Rule 18 - 20.001 provides,

in pertinent part, the following:

Intent.

(1) All sovereignty lands within a

preserve shall be managed primarily for the

maintenance of essentially natural

conditions , the propagation of fish and

wildlife, and public recreation, including

hunting and fishing where deemed appropriate

by the Board, and the managing agency.

(2) Aquatic preserves which are described

in Part II of Chapter 258, Florida Statutes,

were est ablished for the purpose of being

preserved in an essentially natural or

existing condition so that their aesthetic,

biological and scientific values may endure

for the enjoyment of future generations.

(3) The preserves shall be administered

and managed in accordance with the following

goals:

(a) To preserve, protect, and enhance

these exceptional areas of sovereignty

submerged lands by reasonable regulation of

human activity within the preserves through

the development and implementation of a

compre hensive management program;

(b) To protect and enhance the waters of

the preserves so that the public may

continue to enjoy the traditional

recreational uses of those waters such as

swimming, boating, and fishing;

* * *

(e) To encourage the prot ection,

enhancement or restoration of the

biological, aesthetic, or scientific values

of the preserves, including but not limited

to the modification of existing manmade

conditions toward their natural condition,

and discourage activities which would

degra de the aesthetic, biological, or

scientific values, or the quality, or

utility of a preserve, when reviewing

applications, or when developing and

implementing management plans for the

preserves;

(f) To preserve, promote, and utilize

indigenous life fo rms and habitats,

including but not limited to: sponges, soft

coral, hard corals, submerged grasses,

mangroves, salt water marshes, fresh water

marshes, mud flats, estuarine, aquatic, and

marine reptiles, game and non - game fish

species, estuarine, aquatic and marine

invertebrates, estuarine, aquatic and

marine mammals, birds, shellfish and

mollusks; . . . .

43. Florida Administrative Code Rule 18 - 20.004 provides

for the management policies, standards, and criteria to be used

in determining whether to appro ve, approve with conditions or

modifications, or deny all requests for activities on

sovereignty lands in aquatic preserves. That rule provides, in

pertinent part, the following:

The following management policies,

standards and criteria are supplemental to

Chapter 18 - 21, Florida Administrative Code

(Sovereignty Submerged Lands Management) and

shall be used in determining whether to

approve, approve with conditions or

modifications, or deny all requests for

activities on sovereignty lands in aquatic

prese rves.

(1) GENERAL PROPRIETARY

(a) In determining whether to approve or

deny any request, the Board will evaluate

each on a case - by - case basis and weigh any

factors relevant under Chapter 253 and/or

258, Florida Statutes. The Board, acting as

Trust ees for all state - owned lands, reserves

the right to approve, modify or reject any

proposal.

* * *

(e) A lease, easement or consent of use

may be authorized only for the following

activities:

* * *

2. maintenance of an existing

navigational cha nnel;

* * *

(f) For activities listed in paragraphs

18 - 20.004(1)(e)1. - 10., Florida

Administrative Code above, the activity

shall be designed so that the structure or

structures to be built in, on or over

sovereignty lands are limited to structures

necessary to conduct water dependent

activities. . . .

44. In evaluating applications for proposed activities

within the preserves, the Board is also required to consider the

cumulative impacts of the project. Florida Administrative Code

Rule 18 - 20.006 p rovides the following:

Cumulative Impacts.

In evaluating applications for activities

within the preserves or which may impact the

preserves, the Board recognizes that, while

a particular alteration of the preserve may

constitute a minor change, the cu mulative

effect of numerous such changes often

results in major impairments to the

resources of the preserve. Therefore, the

particular site for which the activity is

proposed shall be evaluated with the

recognition that the activity may, in

conjunction w ith other activities, adversely

affect the preserve which is part of a

complete and interrelated system. The

impact of a proposed activity shall be

considered in light of its cumulative impact

on the preserve’s natural system. The

evaluation of an activi ty shall include:

(1) The number and extent of similar

human actions within the preserve which have

previously affected or are likely to affect

the preserve;

(2) The similar activities within the

preserve which are currently under

consideration b y the department and the

water management districts;

(3) Direct and indirect effects upon the

preserve and adjacent preserves, if

applicable, which may reasonably be expected

to result from the activity;

(4) The extent to which the activity is

cons istent with management plans for the

preserve, when developed;

(5) The extent to which the activity is

permissible within the preserve in

accordance with comprehensive plans adopted

by affected local governments, pursuant to

Section 163.3161, Florida S tatutes, and

other applicable plans adopted by local,

state, and federal governmental agencies;

(6) The extent to which the loss of

beneficial hydrologic and biologic functions

would adversely impact the quality or

utility of the preserve; and

(7) The extent to which mitigation

measures may compensate for adverse impacts.

45. The evidence established that there would be no

cumulative impacts because of the proposed maintenance dredging

project.

46. The Department is authorized to adopt proce dural rules

requiring concurrent application submittal and establishing a

concurrent review procedure for any activity regulated under

Part IV, Section 373.427, Florida Statutes (2003), and that

requires any approvals for proprietary authorization under

Ch apter 253 or Chapter 258, Florida Statutes (2003), to use

submerged lands owned by the Board. § 373.427, Fla. Stat.

(2003).

47. Florida Administrative Code Rule 62 - 343.075

establishes additional requirements and procedures for

concurrent review of the rel ated application and provides in

pertinent part:

(1) A single application shall be

submitted and reviewed for activities that

require an individual or standard general

environmental resource permit under Part IV

of Chapter 373, F.S., and a proprietary

a uthorization under Chapters 253 or 258,

F.S., to use sovereign submerged lands.

(2) No application under this section

shall be approved until all the requirements

of applicable provisions of Part IV of

Chapter 373, F.S., and proprietary

authorization under Chapters 253 . . .,

F.S., and rules adopted thereunder for both

the individual or standard general

environmental resource permit and the

proprietary authorization are met. The

approval shall be subject to all permit

conditions imposed by such rules.

48. The ultimate burden of proof is upon the City, as the

applicant, to demonstrate by a preponderance of the evidence

that it is entitled to a regulatory permit and proprietary

authorization. Florida Department of Transportation v. J.W.C.

Company, I nc. , 396 So. 2d 778, 788 (Fla. 1st DCA 1981).

49. Once the City has made a prima facie showing that it

is entitled to the authorization sought, Petitioner must rebut

that prima facie case and support the allegations of his

petition challenging the proposed action. Florida Department of

Transportation v. J.W.C. Co. , supra , at 789. Unless Petitioner

presents "contrary evidence of equivalent quality" to the

evidence presented by the City and the Department, the

regulatory permit must be approved. Id. at 789 - 790.

50. Petitioner cannot carry the burden of presenting

contrary evidence by mere speculation concerning what "might"

occur. Chipola Basin Protective Group, Inc. v. Department of

Environmental Regulation , 11 F.A.L.R. 467, 480 - 81 (DER 1988).

Any allege d injury or threat of injury must be both real and

immediate; hypothetical or conjectural allegations of injury are

not sufficient. Village Park Mobile Home Association v.

Department of Business Regulation , 506 So. 2d 426 (Fla. 1st DCA

1987).

51. The evi dence established that the construction and

operation of the activity will not result in violations of the

water quality standards set forth in Florida Administrative Code

Chapters 62 - 302, 62 - 522, and 62 - 550 and will not degrade the

ambient water quality i n Outstanding Florida Waters pursuant to

Florida Administrative Code Rule 62 - 4.242.

52. In addition, the City has provided reasonable

assurances that its activities will not adversely impact

Outstanding Florida Waters or Class II waters and will not

con tribute to boat traffic in a manner that will adversely

impact the manatee.

53. The evidence also demonstrates that the proposed

maintenance dredging activity, including consideration of the

direct, secondary, and cumulative impacts, is clearly in the

pu blic interest pursuant to Subsection 373.414(1)(a), Florida

Statutes (2003).

54. In this case, the City has satisfied its burden and

established that the City's proposed maintenance dredging

activity, as detailed in the modified application, meets all th e

requirements of applicable provisions of Part IV of Chapter 373,

Florida Statutes (2003); proprietary authorization under

Chapters 253 and 258, Florida Statutes (2003); and the rules

promulgated thereunder.

RECOMMENDATION

Based upon the foregoing Findin gs of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Environmental Protection

enter a final order granting the City of Tarpon Springs

Authorization to Use Sovereignty Submerged Lands to dredge the

9,153 cubic yards of sediment from a total of 3.16 miles of

existing channels in order to improve/maintain navigation for

commercial and recreational boaters.

DONE AND ENTERED this 4th day of August, 2004, in

Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of August, 2004.

ENDNOTES

1/ The Department first issued an Order of Remand in this case

on or about February 6, 2002, after an appellate court decision

holding that Petitioner had not received adequate notice of the

evidentiary hearing on a discovery matter. See Henry Ross v.

City of Tarpon Springs and the Department of Environmental

Protection , Case No. 2D01 - 114 (Fla. 2d DCA 2001). Pursuant to

the First Order of Remand, a hearing on the discovery mat ter was

noticed and conducted. See Order issued on October 11, 2002, in

Henry Ross v. City of Tarpon Springs and the Department of

Administrative Hearings , Case No. 00 - 2100.

2/ These findings are supplemental to those made in the

Recommended Order in th is case issued on October 7, 2003.

3/ " Maintenance dredging" is defined under Florida

Administrative Code Rule 18 - 20.003(30) as "mechanical or other

methods used to remove sovereignty submerged land in existing

channels where navigation by vessels presen tly occurs." For the

purpose of this rule, requests to dredge previously dredged

areas that have regained their former natural characteristics

due to lack of use, lack of upkeep, or other factors or requests

to change the design specification of previously dredged areas,

shall not be considered as maintenance dredging, but shall be

considered new dredging.

4/ The issues relative to the regulatory permit is addressed in

the Recommended Order issued in this case on October 7, 2003.

5/ Pursuant to Florida Administrative Code Rule 18 - 21.0051(2),

"[t]he Secretary of the Department of Environmental

Protection . . . [is] delegated the authority to review and

take final agency action on applications to use sovereignty

submerged lands when the application involve s an activity for

which that agency has permitting responsibility . . . ."

6/ "Sovereignty submerged lands" means those lands, including,

but not limited to, tidal lands, islands, sand bars, shallow

banks, and lands waterward of the ordinary or mean hi gh water

line, beneath navigable fresh water or beneath tidally -

influenced waters, to which the State of Florida acquired title

on March 3, 1845, by virtue of statehood, and which have not

been heretofore conveyed or alienated. For the purposes of this

ch apter sovereignty submerged lands shall include all submerged

lands title to which is held by the Board. . . . See Fla.

Admin. Code R. 18 - 21.003(55).

7/ Aquatic preserves established under Chapter 258, Florida

Statutes (2003), "include only lands or wa ter bottoms owned by

the state as set forth in s. 253.03." § 258.40(1), Fla. Stat.

(2003) .

8/ The Aquatic Preserve Act of 1975 designates aquatic

preserves, provides guidelines for maintenance of aquatic

preserves, and establishes criteria for the regul ation of human

activity within aquatic preserves. §§ 258.39 - 258.43, Fla.

Stat. (2003) .

COPIES FURNISHED :

Doreen Jane Irwin, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Henry Ross

1005 South Florida Avenue

Tarpon Springs, Florida 34689

Thomas Jask, Esquire

Frazer, Hubbard, Brandt & Trask, LLP

595 Main Street

Dunedin, Florida 34698

Kathy C. Carter, Agency Clerk

Department of Environmental Pro tection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahas see, 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.