95-000159 Dr. Robert B. Tober vs. Department Of Environmental Protection Status: Closed Recommended Order on Friday, May 26, 1995.

Summary: Applicant failed to provide reasonable assurance for net improvement in substandard water quality or project not contrary to public interest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT B. TOBER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-0159

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in

Naples, Florida, on April 12, 1994, before Robert E. Meale, Hearing Officer of

the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows:

For Petitioner: Miles L. Scofield, Qualified Representative

Turrell & Associates, Inc.

3584 Exchange Avenue, Suite B

Naples, Florida 33942

For Respondent: Christine C. Stretesky

Assistant General Counsel

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner is entitled to a dredge and

fill permit in order to construct a boatslip and dredge a small area in a canal

in front of the boatslip.

PRELIMINARY STATEMENT

At the hearing, Petitioner called three witnesses and offered into evidence

11 exhibits. Respondent called one witness and offered into evidence three

exhibits. The parties jointly offered three exhibits. All exhibits were

admitted.

No transcript was ordered. Rulings on timely filed proposed recommended

orders are in the appendix.

FINDINGS OF FACT

1. By Joint Application for Works in the Waters of Florida filed June 22,

1994, Petitioner requested a permit to dredge about 500 square feet of uplands

for a boatslip and to maintenance dredge 1700-1900 square feet in an adjacent

canal, removing 125 cubic yards of material waterward of mean high water. The

Application describes the work as including a vertical concrete seawall running

92 feet inside the boatslip, a cat walk from the boatslip to the canal, and a

roof over the boatslip.

2. A drawing attached to the Application depicts the proposed boatslip at

the east end of the Petitioner's lot and with rounded corners to facilitate

flushing.

3. By Notice of Permit Denial executed October 24, 1994, Respondent

advised that the permit was denied. The Notice states that water quality in the

surrounding canal system is generally poor with low dissolved oxygen (DO)

levels. The shoreline vegetation is primarily mangroves, which are tall but not

robust. The proposed dredge area consists of a healthy littoral shelf with live

oysters and shells.

4. Based on the foregoing site description, the Notice denies the permit

because of impacts to the conservation of fish and wildlife and marine

productivity and a degradation of the current condition and relative value of

the affected area. The Notice relates all of these factors to the loss of the

mangroves and dredging of the adjacent canal bottom. The Notice adds that the

project would have an adverse cumulative impact on water quality and public

resources if similar projects were constructed.

5. In the alternative, the Notice suggests that Petitioner eliminate the

dredging into the uplands and canal and instead construct a boat shelter in the

canal in an area of existing adequate water depth.

6. By letter dated November 7, 1994, Petitioner challenged the denial.

The letter states that Petitioner has maintained an environmentally productive

shoreline consisting of mangroves, oysters, and rip rap, rather than concrete

seawalls, as are found along the shoreline of most of his neighbors. The letter

suggests that, if Petitioner followed Respondent's suggestion and built a slip

in the canal, Petitioner would be permitted to do maintenance dredging in the

artificial canal. The letter concludes that the maintenance dredging and

shading of an over- the-water boathouse would have more impact on the

environment than dredging uplands and a small access channel to the slip.

7. Petitioner's residence is located in Aqualane Shores,

which is an established residential subdivision located between Naples Bay on

the east and the Gulf of Mexico on the west. Petitioner's lot is located about

two-thirds of the distance down a long, relatively wide artificial canal known

as Jamaica Channel. Jamaica Channel intersects Naples Bay to the east of

Petitioner's property. Jamaica Channel is a Class III waterbody.

8. Petitioner owns about 200 feet of shoreline at the corner of Jamaica

Channel and a shorter, narrower canal. The entire area is heavily canalized and

completely built-out with nearly exclusively single family residences.

9. Most of the shoreline in the area is bulkheaded with concrete seawalls.

Jamaica Channel was dredged in the early 1950s. Early riprap revetment crumbled

into the water and in some areas became colonized by oysters, which supply food

and filter impurities from water. Shoreline owners weary of repairing riprap

installed vertical seawalls, thereby destroying the oyster beds and intertidal

habitat. But much of the riprap adjacent to unbulkheaded shoreline eventually

was stabilized by mangrove roots.

10. The absence of concrete seawalls along Petitioner's shoreline has

permitted a significant colony of oysters to populate the 25-foot littoral shelf

running along Petitioner's shoreline. The oysters form a hemisphere, thickest

at the middle of Petitioner's shoreline and narrowest at the east and west

edges, narrowing to a width of as little as 6-10 feet.

11. In recent years, Australian pines were removed from Petitioner's

shoreline. As a result, mangrove seedlings have successfully occupied much of

the shoreline.

12. The proposed boatslip would be located at the east end of the

shoreline where there is a natural gap in the mangroves. As a result, only three

mangroves would have to be removed, and a relatively narrow band of oysters

would be dredged and, as offered by Petitioner, relocated.

13. The proposed dredging involves uplands and submerged bottom. As to

the uplands, Petitioner intends to create a slope in the slip with the rear one

to one and one-half feet shallower than the front, although this slope is not

reflected on the Application. The purpose of the slope is to facilitate

flushing. Petitioner evidently intends to dredge sufficient material to fill the

rear of the slip with two feet of water at mean water and the front of the slip

with three feet of water at mean water.

14. The dredging in Jamaica Channel would involve an 18-20 foot wide path

leading to the slip. Beyond the oysters, the bottom is fine sandy substrate

with scattered rock. The relocation of oyster-covered rocks might be

successful, if there are sufficient areas suitable for colonization that have

not already been colonized. However, the dredged areas would not be recolonized

due to their depths.

15. Presently, the Application discloses level dredging down to an

elevation of -5 NGVD. Petitioner's intent to slope the boatslip has been

discussed above. Although Petitioner did not reveal a similar intent to slope

the area dredged in Jamaica Channel, Petitioner's witness, Naples' Natural

Resource Manager, testified that he would insist on similar sloping the entire

length of the dredged area, so that the deepest area would be most waterward of

the boatslip.

16. If the dredged canal bottom were not sloped, Petitioner proposes

removing about 4.25 feet of material about ten feet from shore, about 3.4 feet

of material about 22 feet from shore, about 1.8 feet of material about 30 feet

from shore, and about 0.5 feet of material about 40 feet from shore.

17. Petitioner did reveal that the cross-section indicating a dredged

depth of -5 feet applies only to the centerline of the dredge site, which would

be tapered off to the east and west. The slope of the taper was not disclosed,

but it is evident that the affected areas within 20 feet of the shoreline would

be dredged at least two feet deeper and, in most areas, three feet deeper.

18. The deepening of Jamaica Canal in the vicinity of the shoreline would

not only eliminate existing oyster habitat, but would also eliminate habitat

currently used by small fish.

19. The deepening of Jamaica Channel in the vicinity of the shoreline

would also impact water quality in the area. Water quality in Naples Bay and

Jamaica Channel is poor and violates water quality standards for DO. Due to

poor mixing of freshwater infusions and saltwater, DO levels deteriorate with

depth. Where DO levels are probably adequate in the shallows around

Petitioner's shoreline, the proposed dredging would likely result in depths at

which violations could be expected to occur.

20. Petitioner offers to install an aerator to introduce oxygen into the

water. Ignoring the fact that the aerator was to operate only in the boatslip

and not in the remainder of the dredged area, Petitioner did not show the effect

on DO levels of this proposal. Even if the aerator had been shown to result in

a net improvement in area DO levels, Petitioner also failed to show how the

operation of the aerator would be guaranteed to extend indefinitely, or at least

until the dredged areas were permitted to regain their pre-dredged depths.

21. Petitioner argues that he could construct an over-the- water boathouse

and maintenance dredge, and the resulting environmental impact would be greater.

Several factors militate against this proposed alternative and thus preclude

consideration of this alternative against the proposed project. Most

significantly, the oysters have occupied the littoral shelf adjacent to

Petitioner's shoreline for a period in excess of 20 years. There is

considerable doubt as to whether Petitioner would be permitted to maintenance

dredge under these and other circumstances.

22. Respondent argues more persuasively the issue of cumulative impacts.

There are about 350 residences in Aqualane Shores, of which only 150 have

boatslips similar to that proposed by Petitioner. This raises the prospect of

an additional 200 boatslips as a cumulative impact on water and biological

resources.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties. Section 120.57(1), Florida Statutes. (All

references to Sections are to Florida Statutes. All references to Rules are to

the Florida Administrative Code.)

24. Petitioner is required to obtain a permit for the proposed project.

Rule 62-312.030. But Respondent may not issue the permit unless Petitioner

provides "reasonable assurance that state water quality standards . . . will not

be violated and reasonable assurance that such activity in, on, or over surface

waters or wetlands ... is not contrary to the public interest." Section

373.414(1).

25. The affected waters already violate water quality standards for DO.

Section 373.414(1)(b) provides, in such cases, that Respondent shall consider

mitigation measures "that cause net improvement of the water quality in the

receiving body of water for those parameters which do not meet standards."

Although sloping bottoms in the boatslip and dredged area would help flush the

area, Petitioner did not provide reasonable assurance that these efforts would

result in a net improvement of the water quality of Jamaica Channel. Likewise,

Petitioner did not provide similar reasonable assurance as to the aeration

proposal.

26. The criterion of public interest requires balancing of seven factors

set forth in Section 373.414(1)(a). The relevant factors are that the proposed

project, which is permanent in nature, would adversely affect the conservation

of fish and wildlife and fishing values through net reductions in available

habitat and deterioration in DO levels. Also significant is that the affected

area is functioning well at present.

27. Respondent must also consider the cumulative impacts of the proposed

project, existing or approved projects, and projects that may be reasonably

anticipated. Consideration of likely cumulative impacts, given 200 nearby lots

without boatslips, militates against approval of the permit.

28. Consideration of the alternative of an over-the-water boatslip and

maintenance dredging as a factor to be considered in the evaluation of the

proposed project is precluded by the failure of Petitioner to demonstrate his

likely entitlement to such an alternative.

RECOMMENDATION

It is hereby

RECOMMENDED that the Department of Environmental Protection enter a final

order denying the application.

ENTERED on May 26, 1995, in Tallahassee, Florida.

___________________________________

ROBERT E. MEALE

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

on May 26, 1995.

APPENDIX

Rulings on Petitioner's Proposed Findings

1-2: adopted or adopted in substance.

3: rejected as irrelevant.

4-5 (first sentence): adopted or adopted in substance.

5 (remainder)-6: rejected as irrelevant.

7: rejected as recitation of evidence.

8: adopted or adopted in substance.

9: rejected as unsupported by the appropriate weight of the evidence.

10: rejected as unsupported by the appropriate weight of the evidence,

irrelevant, and not findings of fact.

11-12 (first sentence): adopted or adopted in substance.

12 (remainder): rejected as recitation of evidence and as unsupported by

the appropriate weight of the evidence.

13: rejected as unsupported by the appropriate weight of the evidence.

Rulings on Respondent's Proposed Findings

1-20: adopted or adopted in substance.

21-25: rejected as unnecessary.

26-29: adopted or adopted in substance.

30: rejected as unnecessary.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Kenneth Plante, General Counsel

Department of Environmental Protection

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Miles L. Scofield

Qualified Representative

Turrell & Associates, Inc.

3584 Exchange Ave., Suite B

Naples, FL 33942

Christine C. Stretesky

Assistant General Counsel

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this 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 contact the agency that will issue the final

order in this case concerning agency 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.