06-002314 David And Patty Cole vs. Paul Crum And Department Of Environmental Protection Status: Closed Recommended Order on Friday, December 22, 2006.

Summary: Petitioners Brooks and Cole presented no evidence at the hearing and thus failed to prove their standing. Petitioner Jones failed to prove that the proposed dock would significantly impede access to a nearby tidal creek.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA BROOKS , CHARLIE JONES, )

AND DAVID COLE, )

)

Petitioner s, )

)

vs. ) C ase Nos. 06 - 2312

) 06 - 2313

PAUL CRUM AND DEPARTMENT OF ) 06 - 2314

ENVIRONMENTAL PROTECTION , )

)

Respondent . )

)

RECOMMENDED ORDER

A formal administrative hearing in this case was held on

November 9, 2006, in Jacksonville, Florida, before Bram D. E.

Canter, an Administrative Law Judge of the Division of

Admi nistrative Hearings (“DOAH”).

APPEARANCES

For Petitioners: Richard L. Maguire, Esquire

Charles F. Mills, III, Esquire

Rogers Towers, P.A.

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207 - 9000

For Respondents Paul Crum, Sr., and Paul Crum, Jr. 1

Marcia Parker Tjoflat, Esquire

Angela M. Sarabia, Esquire

Pappas, Metcalf, Jenks & Mil ler, P.A.

245 Riverside Avenue, Suite 400

Jacksonville, Florida 32202 - 4926

For Respondent Florida Department of Environmental

Protection:

Timothy E. Markey, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue in this ca se is whether Respondents Paul Crum,

Sr. , and Paul Crum, Jr. (the "Crums") , are entitled to the

Noticed General Permit issued by the Department of Environmental

Protection ("Department") for the construction of a single -

family residential dock and associat ed structures.

PRELIMINARY STATEMENT

On December 6, 2005, the Department gave notice of its

Determination of Qualification for Noticed General Permit

No. 16 - 253057 - 002 - EG ("the Permit”) to the Crums for a single -

family residential dock located at 15696 Sh ark Road West,

Jacksonville, Duval County, Florida. Donna Brooks, Charlie

Jones, David Cole, and Patty Cole timely filed petitions for

hearing to challenge the proposed agency action, and the

Department referred the matters to DOAH. The cases were

subseq uently consolidated for hearing. Before the final

hearing, Petitioner Patty Cole filed a Notice of Voluntary

Dismissal.

Petitioners stipulated that all the regulatory and

proprietary criteria applicable to the proposed dock were

satisfied except with reg ard to the criteria related to the

effect of the proposed dock on navigability in public waters.

Petitioners contend that the proposed project will significantly

impede navigability by obstructing access to a small tidal creek

near the proposed dock.

At t he final hearing, the Crums presented the testimony of

Ernest Frey, P.E., who was accepted as an expert in civil

engineering, with a specialty in environmental engineering and

in design and permitting of dredge and fill projects in aquatic

preserves; Paul Crum, Sr.; and Randall Armstrong, who was

accepted as an expert in navigation and piloting and in marine

biology. The Department presented the testimony of James Maher,

P.E., Submerged Lands/Environmental Resource Program

Administrator for the Department’ s Northeast District. Joint

Respondent Exhibits 1 through 19 were admitted into evidence

without objection. Petitioners presented the testimony of

Charlie Jones. Petitioners’ Exhibits 1, 2, 3, 3A1, 3A2, 3B1,

3B2 , and 3C were admitted into evidence witho ut objection.

Upon the request of the Crums, and without objection,

official recognition was taken of Chapters 253 and 258, Florida

Statu t es (2005); Florida Administrative Code Rules 18 - 20, 18 - 21,

62 - 113, 62 - 341, and 62 - 343.075; as well as the Operating

Ag reement Concerning Regulation Under Part IV, Chapter 373,

F lorida S tatutes , and Aquaculture General Permits Under Section

403.814, F lorida S tatutes. Between St. Johns River Water

Management District and Department of Environmental Protection

(“Operating A greement”); and the Nassau River - St. Johns River

Marshes and Fort Clinch State Park Aquatic Preserves Management

Plan April 1986.

No party ordered a transcript of the hearing. The parties

timely filed Proposed Recommended Orders that were carefully

consid ered in the preparation of this Recommended Order.

FINDINGS OF FACT

Background

1. The Crums are the owners of the riparian property

located at 15696 Shark Road West, Jacksonville, Florida. The

Crum property is adjacent to Pumpkin Hill Creek, which lies

w ithin the Nassau River - St. Johns River Marshes Aquatic

Preserve. Extending from the Crum property into Pumpkin Hill

Creek is an existing wood dock approximately 90 feet long and

four feet wide, with a platform near the landward end of the

dock.

2. Petiti oner Brooks owns the property immediately

adjacent to and north of the Crum property. Petitioner Brooks

has a dock and boat lift.

3. Petitioner Cole owns the property immediately adjacent

to and southeast of the Crum property. The Cole property is

locat ed on a salt marsh and has no dock.

4. Petitioner Jones lives approximately 3,200 feet north

of the Crum property, on a tributary to Pumpkin Hill Creek.

Petitioner Jones has fished Pumpkin Hill Creek and the

surrounding waters for over 25 years.

5. Noti ced General Permits are a type of environmental

resource permit granted by rule for those activities which have

been determined to have minimal impacts to water resources.

Florida Administrative Code Rule 62 - 341.427 grants by rule a

general permit to cons truct a single family pier, along with

boat lifts and terminal platforms, provided certain specific

criteria are met.

6. In August 2005, the Crums applied for a Noticed General

Permit to extend their existing dock into deeper water. The

Department issued a Notice of Determination of Qualification for

Noticed General Permit, but later rescinded the authorization

after Petitioner Brooks complained to the Department that the

landward end of the existing dock is located only 21 feet from

her property boundary and, therefore, did not comply with

Florida Administrative Code Rule 18 - 21.004(3)(d) , which requires

that a dock be set back a minimum of 25 feet "inside the

applicant's riparian rights lines."

7. In November 2005, the Crums re - applied for a Noticed

Gene ral Permit. Their revised plans called for removal of the

existing dock and construction of a new dock extending

approximately 255 feet out into Pumpkin Hill Creek. The

proposed dock would be located a minimum of 25 feet inside the

Crums' riparian rights lines.

8. On December 6, 2005, the Department issued a Notice of

Determination of Qualification for a Noticed General Permit for

the revised dock, stating that the project satisfied the

requirements of Florida Administrative Code Rule 62 - 341.427, as

well as the conditions for authorization to perform activities

on state - owned submerged lands set forth in Florida

Administrative Code Rule 18 - 21 and for activities in an aquatic

preserve under Florida Administrative Code Rule 18 - 20.

9. In April 2006, Petitio ners filed three petitions for

hearing with the Department alleging that the proposed dock

significantly impedes navigation by restricting access to a

tidal creek and extends more waterward than necessary to access

a water depth of (minus) - 4 feet at mean low water, which is

prohibited for docks in aquatic preserves under Florida

Administrative Code Rule 18 - 20.005(3)(b)3.

10. Petitioners attached to their petitions a copy of a

bathymetric survey showing the elevations of the submerged lands

in the vicinity of the proposed project. In response to the

information contained in the survey, the Crums revised their

plans to shorten the dock to its currently proposed length of

186.56 feet. A new Notice of Determination of Qualification for

a Notice General Permi t was then issued by the Department on

October 16, 2006.

11. The final dock project consists of: (a) removal of

the existing wood dock; (b) construction of a four - foot wide,

186.56 - foot long, single family residential dock consisting of

an access pier, a 12 - foot by 12 - foot terminal platform, and a

14 - foot by 20 - foot open boat lift with catwalk (the “proposed

dock”).

12. The proposed dock will terminate where the water will

be four feet deep at mean low water.

Navigating in and Near the Tidal Creek

13. T o the south of the Crum property is a wide expanse of

salt marsh. Within the salt marsh are unnamed tidal creeks.

The mouth of one tidal creek that flows to Pumpkin Hill Creek is

located approximately 90 feet south of the existing Crum dock.

The tidal c reek is shallow and is not navigable at or near low

tide.

14. Petitioner Jones owns an 18 - foot flatboat which he

sometimes keeps at his residence and sometimes at Petitioner

Brooks' property. The boat draws about one foot of water.

Petitioner Jones uses this boat to fish in the tidal creek

located near the Crum property about ten times every month.

15. No evidence was presented to show that Petitioner

Brooks or Petitioner Cole ever navigate in or otherwise use this

tidal creek.

16. There are many other tidal creeks located in the

marshes associated with Pumpkin Hill Creek. Petitioner Jones

boats and fishes in most of them.

17. Petitioner Jones said that, currently, he must wait

two hours past low tide for the water depth to be sufficient for

him to ge t into the tidal creek near the Crum property. His

usual course to the creek lies just beyond the end of the

existing Crum dock. He claims there is a channel there, but no

channel is shown on the survey or in any of the parties'

photographs. After the p roposed dock is constructed, Petitioner

Jones' usual course to the tidal will be obstructed. He

contends that the new course he would have to take to the tidal

creek will take him across shallower areas of Pumpkin Hill Creek

so that he will have to wait t wo more hours (a total of four

hours) after low tide to get into the creek. Therefore,

Petitioner Jones' alleged injury is the reduction of the hours

available to him to navigate in and out of the tidal creek for

fishing.

18. The existing Crum dock termi nates on a broad mud flat

which is exposed at mean low water. However, the bathymetric

survey shows the mud flat is at a lower elevation near the end

of the dock so water covers this area before it covers the rest

of the mud flat. However , the bathymetri c survey also shows the

elevation of the bottom rising as one moves south from the

existing dock. At the mouth of the tidal creek the elevation is

1.0 feet NGVD (National Geodetic Vertical Datum, an official,

surveyed reference point). Because the tidal creek drains into

the main body of Pumpkin Hill Creek, a reasonable inference can

be made that the bottom elevations in the creek generally become

higher (and the water depths decrease) as one moves up the creek

toward dry land.

19. Prop scars in the expo sed bottom at the end of the

existing dock indicate that boats have traveled over this area

when the water was so shallow that the engine props were

striking the bottom. Prop scarring can cause turbidity and

damage to benthic organisms.

20. The bathymetr ic survey indicates that mean high water

in this area of Pumpkin Hill Creek is 3.03 feet NGVD , and the

mean low water is - 1.78 feet NGVD. The mean tidal fluctuation

between mean low water and mean high water is thus 4.81 feet.

21. Randall Armstrong, who was accepted as an expert in

navigation and piloting, explained that in this area, where

there are two daily tides, the water elevation will generally

increase by 1/12 of the mean tidal fluctuation in the first hour

after mean low water, another 2/12 of th e fluctuation in the

second, and 3/12 in the third hour. Applying this general rule

to the tidal fluctuation here of 4.81 feet results in an

estimated 1.2 - foot increase in water elevation two hours after

low tide and a 2.4 - foot increase three hours after low tide.

Based on the mean low water elevation of - 1.78 feet NGVD, the

water elevation would usually be about - 0.6 f oo t NGVD two hours

after low tide and 0.6 f oo t NGVD three hours after low tide.

22. Therefore, the tidal creek (with a bottom elevation o f

1.0 f oo t NGVD at the mouth) would usually be "dry" two hours

after low tide and would usually have less than a foot of water

three hours after low tide. That evidence contradicts

Petitioner Jones' statement that he now navigates into the tidal

creek two hours after low tide. That might occasionally be

possible, but the bathymetric survey indicates the creek would

usually be too shallow at that time. In fact, the evidence

suggests that the tidal creek is only reliably navigable without

causing prop scar s to the bottom by using boats with very

shallow draft and waiting until high tide (or shortly before or

after) when the water depth at the mouth of the creek would be

about two feet.

23. It was Mr. Armstrong's opinion that the 1.0 - foot NGVD

elevation at the mouth of the tidal creek determines when and

how long the tidal creek is navigable, and those times would not

be affected by the proposed dock. He described the new course

that a boater would use to navigate into the tidal creek after

the proposed doc k is built. He used the bathymetric survey to

show that when the water is deep enough to navigate into the

tidal creek, the water depth is also sufficient to navigate the

new course.

24. The proposed dock might, as Petitioner Jones alleges,

cause boaters to traverse a longer section of the mudflat then

they do currently. However, the more persuasive testimony

supports the Crums' position that the navigability of the tidal

creek is controlled by its shallowest point at the 1.0 - foot NGVD

elevation and that the proposed dock will not interfere with

navigation of the tidal creek by requiring boaters to traverse

shallower areas.

25. Petitioner Jones testified that he regularly navigates

his boat close to the existing Crum dock. The evidence does not

indicate that the proposed dock would cause an unreasonable risk

of collision for boaters using the new course to the tidal

creek.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2006). 2

27. The Department is the state agency authorized by Part

IV , Chapter 373, Florida Statutes ; Title 62, Florida

Administrative Code ; and the Operating Agreement to i mplement a

regulatory program to prevent harm to the water resources of the

District, and to administer and enforce Part IV , Chapter 373,

Florida Statutes.

28. The Department is the state agency authorized by

Chapter 253, Florida Statutes, and Florida Adm inistrative Code

Chapter 18 - 21 to review and authorize certain uses of state -

owned submerged lands.

29. The Department is the state agency authorized by

Chapter 258, Florida Statutes, and Florida Administrative Code

Rule 18 - 20, to review and authorize act ivities in aquatic

preserves.

30. The Nassau River - St. Johns River Marshes Aquatic

Preserve Management Plan, adopted by the Board of Trustees of

the Internal Improvement Trust Fund in April 1986, provides

policy guidelines for state agencies that have jur isdiction to

maintain the natural resources and environmental quality of

designated aquatic preserves.

31. Under Subsection 120.569(1), Florida Statutes, formal

administrative proceedings are limited to persons whose

substantial interests will be determin ed by an agency. Neith e r

Petitioner Brooks nor Petitioner Cole presented evidence at the

hearing. No evidence was presented that they have ever used the

tidal creek for boating or fishing. The only evidence in the

record relevant to their standing is th eir ownership of

properties adjacent to the Crum property and Brooks' ownership

of a dock and boat. That evidence is not sufficient to

establish that these petitioners have a substantial interest in

navigating the tidal creek, which is the interest they a lleged

would be adversely affected. Their interest in the navigability

of the creek, therefore, was not shown to be greater than the

general interest that any citizen of Florida might have in the

matter. Petitioners Brooks and Cole failed to prove their legal

standing in this case.

32. The Crums also argue that Petitioner Jones lacks legal

standing. However, Petitioner Jones presented evidence that he

frequently boats and fishes in the tidal creek, and there is no

dispute that the proposed dock will aff ect how Petitioner Jones

will gain access to the creek. His evidence was sufficient to

prove he has a substantial interest that will be affected.

Petitioner Jones' failure to prove his claim that navigation of

the tidal creek will be significantly impede d by the proposed

dock does not negate his standing. Standing and the merits of a

claim are different concepts. See , e.g. , Village Park Mobile

Home Ass'n., Inc. v. State Dept. of Business Regulation , 506 So.

2d 426, 433 (Fla . 1st DCA 1987) ; St. Martin's Episcopal Church

v. Prudential - Bache Securities , 613 So. 2d 108, 109 n. 4 (Fla.

4th DCA 1993) . If standing was based on whether a claim was

proved, every losing petitioner would lack standing.

33. As the applicants for the Noticed General Permit, the

Cru ms have the ultimate burden of proving their entitlement to

the permit by a preponderance of the evidence. Dept. of Transp.

v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

34. In order to prove their entitlement to the Noticed

General Permit, th e Crums must provide reasonable assurances

that the proposed dock meets all applicable regulatory and

proprietary criteria. However, the parties stipulated that the

only criteria at issue in this case are the following:

Whether the activity will significa ntly

impede navigability in the water body.

(Fla. Admin. Code R. 62 - 341.427(2)(c))

Whether the Proposed Project is an activity

contrary to the public interest in that it

adversely affects the traditional

recreational uses of fishing and boating by

advers ely affecting the navigability of the

water body. (Fla. Admin. Code R. 18 -

21.004(1)(a))

Whether the Proposed Project is inconsistent

with maintenance of the sovereignty

submerged land of Pumpkin Hill Creek for the

traditional public recreational uses of

b oating and fishing. (Fla. Admin. Code R.

18 - 21.004 (2)(a))

35. The applicant's burden is to provide reasonable

assurances, not absolute guarantees. McCormick, et al. v. City

of Jacksonville , 12 F.A.L.R. 960 (Fla. Dept. of Env. Reg. 1990).

36. The evide nce presented by the Crums provides

reasonable assurance that the depth of the water at the mouth of

the tidal creek is the limiting factor for navigating the tidal

creek and that , when the depth at the mouth of the tidal creek

is sufficient to navigate in and out without damaging the

submerged resources, the depth will also be sufficient

throughout the new course around the proposed dock to the tidal

creek. Therefore, the proposed dock will not significantly

impede navigability in Pumpkin Hill Creek, 3 inc luding the unnamed

tidal creek, and will not adversely affect or prevent the

maintenance of traditional public uses.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Secretary of the Florida Departme nt of

Environmental Protection enter a final order that grants Noticed

General Permit No. 16 - 253057 - 002 - EG to the Crums.

DONE AND ENTERED this 2 2nd day of December , 2006 , in

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

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

Di vision of Administrative Hearings

this 2 2nd day of December , 2006 .

ENDNOTES

1/ The challenged permit was issued to "Paul Crum, Jr., Et AL."

The real property involved is owned by Paul Crum, Sr., and Paul

Crum, Jr. The three petitions for hearing named only Paul Crum

as the permittee.

2/ U nless otherwise indicated, all references to the Florida

Statutes are to the 2006 codification.

3/ The channel of Pumpkin Hill Creek lies waterward of the

p roposed dock . No evidence was presented that the Proposed

Project would impede navigation in that channel.

COPIES FURNISHED :

Timothy E. Markey , Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Richard L. Maguire , Esquire

Charles F. Mills, III, Esquire

Rogers Towers, P.A.

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207 - 9000

Marcia Parker Tjoflat, Esquire

Angela M. Sarabia, Esquire

Pappas, Metcalf, Jenks & Miller, P.A.

245 Riverside Avenue, Sui te 400

Jacksonville, Florida 32202 - 4926

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Greg Munson, General Counsel

Department of Environme ntal Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Colleen M. Castille, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3 000

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.