95-000159
Dr. Robert B. Tober vs.
Department Of Environmental Protection
Status: Closed
Recommended Order on Friday, May 26, 1995.
Recommended Order on Friday, May 26, 1995.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ROBERT B. TOBER, )
12)
13Petitioner, )
15)
16vs. ) CASE NO. 95-0159
21)
22DEPARTMENT OF ENVIRONMENTAL )
26PROTECTION, )
28)
29Respondent. )
31______________________________)
32RECOMMENDED ORDER
34Pursuant to notice, final hearing in the above-styled case was held in
46Naples, Florida, on April 12, 1994, before Robert E. Meale, Hearing Officer of
59the Division of Administrative Hearings.
64APPEARANCES
65The parties were represented at the hearing as follows:
74For Petitioner: Miles L. Scofield, Qualified Representative
81Turrell & Associates, Inc.
853584 Exchange Avenue, Suite B
90Naples, Florida 33942
93For Respondent: Christine C. Stretesky
98Assistant General Counsel
101Department of Environmental Protection
1052600 Blair Stone Road
109Tallahassee, Florida 32399-2400
112STATEMENT OF THE ISSUE
116The issue in this case is whether Petitioner is entitled to a dredge and
130fill permit in order to construct a boatslip and dredge a small area in a canal
146in front of the boatslip.
151PRELIMINARY STATEMENT
153At the hearing, Petitioner called three witnesses and offered into evidence
16411 exhibits. Respondent called one witness and offered into evidence three
175exhibits. The parties jointly offered three exhibits. All exhibits were
185admitted.
186No transcript was ordered. Rulings on timely filed proposed recommended
196orders are in the appendix.
201FINDINGS OF FACT
2041. By Joint Application for Works in the Waters of Florida filed June 22,
2181994, Petitioner requested a permit to dredge about 500 square feet of uplands
231for a boatslip and to maintenance dredge 1700-1900 square feet in an adjacent
244canal, removing 125 cubic yards of material waterward of mean high water. The
257Application describes the work as including a vertical concrete seawall running
26892 feet inside the boatslip, a cat walk from the boatslip to the canal, and a
284roof over the boatslip.
2882. A drawing attached to the Application depicts the proposed boatslip at
300the east end of the Petitioner's lot and with rounded corners to facilitate
313flushing.
3143. By Notice of Permit Denial executed October 24, 1994, Respondent
325advised that the permit was denied. The Notice states that water quality in the
339surrounding canal system is generally poor with low dissolved oxygen (DO)
350levels. The shoreline vegetation is primarily mangroves, which are tall but not
362robust. The proposed dredge area consists of a healthy littoral shelf with live
375oysters and shells.
3784. Based on the foregoing site description, the Notice denies the permit
390because of impacts to the conservation of fish and wildlife and marine
402productivity and a degradation of the current condition and relative value of
414the affected area. The Notice relates all of these factors to the loss of the
429mangroves and dredging of the adjacent canal bottom. The Notice adds that the
442project would have an adverse cumulative impact on water quality and public
454resources if similar projects were constructed.
4605. In the alternative, the Notice suggests that Petitioner eliminate the
471dredging into the uplands and canal and instead construct a boat shelter in the
485canal in an area of existing adequate water depth.
4946. By letter dated November 7, 1994, Petitioner challenged the denial.
505The letter states that Petitioner has maintained an environmentally productive
515shoreline consisting of mangroves, oysters, and rip rap, rather than concrete
526seawalls, as are found along the shoreline of most of his neighbors. The letter
540suggests that, if Petitioner followed Respondent's suggestion and built a slip
551in the canal, Petitioner would be permitted to do maintenance dredging in the
564artificial canal. The letter concludes that the maintenance dredging and
574shading of an over- the-water boathouse would have more impact on the
586environment than dredging uplands and a small access channel to the slip.
5987. Petitioner's residence is located in Aqualane Shores,
606which is an established residential subdivision located between Naples Bay on
617the east and the Gulf of Mexico on the west. Petitioner's lot is located about
632two-thirds of the distance down a long, relatively wide artificial canal known
644as Jamaica Channel. Jamaica Channel intersects Naples Bay to the east of
656Petitioner's property. Jamaica Channel is a Class III waterbody.
6658. Petitioner owns about 200 feet of shoreline at the corner of Jamaica
678Channel and a shorter, narrower canal. The entire area is heavily canalized and
691completely built-out with nearly exclusively single family residences.
6999. Most of the shoreline in the area is bulkheaded with concrete seawalls.
712Jamaica Channel was dredged in the early 1950s. Early riprap revetment crumbled
724into the water and in some areas became colonized by oysters, which supply food
738and filter impurities from water. Shoreline owners weary of repairing riprap
749installed vertical seawalls, thereby destroying the oyster beds and intertidal
759habitat. But much of the riprap adjacent to unbulkheaded shoreline eventually
770was stabilized by mangrove roots.
77510. The absence of concrete seawalls along Petitioner's shoreline has
785permitted a significant colony of oysters to populate the 25-foot littoral shelf
797running along Petitioner's shoreline. The oysters form a hemisphere, thickest
807at the middle of Petitioner's shoreline and narrowest at the east and west
820edges, narrowing to a width of as little as 6-10 feet.
83111. In recent years, Australian pines were removed from Petitioner's
841shoreline. As a result, mangrove seedlings have successfully occupied much of
852the shoreline.
85412. The proposed boatslip would be located at the east end of the
867shoreline where there is a natural gap in the mangroves. As a result, only three
882mangroves would have to be removed, and a relatively narrow band of oysters
895would be dredged and, as offered by Petitioner, relocated.
90413. The proposed dredging involves uplands and submerged bottom. As to
915the uplands, Petitioner intends to create a slope in the slip with the rear one
930to one and one-half feet shallower than the front, although this slope is not
944reflected on the Application. The purpose of the slope is to facilitate
956flushing. Petitioner evidently intends to dredge sufficient material to fill the
967rear of the slip with two feet of water at mean water and the front of the slip
985with three feet of water at mean water.
99314. The dredging in Jamaica Channel would involve an 18-20 foot wide path
1006leading to the slip. Beyond the oysters, the bottom is fine sandy substrate
1019with scattered rock. The relocation of oyster-covered rocks might be
1029successful, if there are sufficient areas suitable for colonization that have
1040not already been colonized. However, the dredged areas would not be recolonized
1052due to their depths.
105615. Presently, the Application discloses level dredging down to an
1066elevation of -5 NGVD. Petitioner's intent to slope the boatslip has been
1078discussed above. Although Petitioner did not reveal a similar intent to slope
1090the area dredged in Jamaica Channel, Petitioner's witness, Naples' Natural
1100Resource Manager, testified that he would insist on similar sloping the entire
1112length of the dredged area, so that the deepest area would be most waterward of
1127the boatslip.
112916. If the dredged canal bottom were not sloped, Petitioner proposes
1140removing about 4.25 feet of material about ten feet from shore, about 3.4 feet
1154of material about 22 feet from shore, about 1.8 feet of material about 30 feet
1169from shore, and about 0.5 feet of material about 40 feet from shore.
118217. Petitioner did reveal that the cross-section indicating a dredged
1192depth of -5 feet applies only to the centerline of the dredge site, which would
1207be tapered off to the east and west. The slope of the taper was not disclosed,
1223but it is evident that the affected areas within 20 feet of the shoreline would
1238be dredged at least two feet deeper and, in most areas, three feet deeper.
125218. The deepening of Jamaica Canal in the vicinity of the shoreline would
1265not only eliminate existing oyster habitat, but would also eliminate habitat
1276currently used by small fish.
128119. The deepening of Jamaica Channel in the vicinity of the shoreline
1293would also impact water quality in the area. Water quality in Naples Bay and
1307Jamaica Channel is poor and violates water quality standards for DO. Due to
1320poor mixing of freshwater infusions and saltwater, DO levels deteriorate with
1331depth. Where DO levels are probably adequate in the shallows around
1342Petitioner's shoreline, the proposed dredging would likely result in depths at
1353which violations could be expected to occur.
136020. Petitioner offers to install an aerator to introduce oxygen into the
1372water. Ignoring the fact that the aerator was to operate only in the boatslip
1386and not in the remainder of the dredged area, Petitioner did not show the effect
1401on DO levels of this proposal. Even if the aerator had been shown to result in
1417a net improvement in area DO levels, Petitioner also failed to show how the
1431operation of the aerator would be guaranteed to extend indefinitely, or at least
1444until the dredged areas were permitted to regain their pre-dredged depths.
145521. Petitioner argues that he could construct an over-the- water boathouse
1466and maintenance dredge, and the resulting environmental impact would be greater.
1477Several factors militate against this proposed alternative and thus preclude
1487consideration of this alternative against the proposed project. Most
1496significantly, the oysters have occupied the littoral shelf adjacent to
1506Petitioner's shoreline for a period in excess of 20 years. There is
1518considerable doubt as to whether Petitioner would be permitted to maintenance
1529dredge under these and other circumstances.
153522. Respondent argues more persuasively the issue of cumulative impacts.
1545There are about 350 residences in Aqualane Shores, of which only 150 have
1558boatslips similar to that proposed by Petitioner. This raises the prospect of
1570an additional 200 boatslips as a cumulative impact on water and biological
1582resources.
1583CONCLUSIONS OF LAW
158623. The Division of Administrative Hearings has jurisdiction over the
1596subject matter and the parties. Section 120.57(1), Florida Statutes. (All
1606references to Sections are to Florida Statutes. All references to Rules are to
1619the Florida Administrative Code.)
162324. Petitioner is required to obtain a permit for the proposed project.
1635Rule 62-312.030. But Respondent may not issue the permit unless Petitioner
1646provides "reasonable assurance that state water quality standards . . . will not
1659be violated and reasonable assurance that such activity in, on, or over surface
1672waters or wetlands ... is not contrary to the public interest." Section
1684373.414(1).
168525. The affected waters already violate water quality standards for DO.
1696Section 373.414(1)(b) provides, in such cases, that Respondent shall consider
1706mitigation measures "that cause net improvement of the water quality in the
1718receiving body of water for those parameters which do not meet standards."
1730Although sloping bottoms in the boatslip and dredged area would help flush the
1743area, Petitioner did not provide reasonable assurance that these efforts would
1754result in a net improvement of the water quality of Jamaica Channel. Likewise,
1767Petitioner did not provide similar reasonable assurance as to the aeration
1778proposal.
177926. The criterion of public interest requires balancing of seven factors
1790set forth in Section 373.414(1)(a). The relevant factors are that the proposed
1802project, which is permanent in nature, would adversely affect the conservation
1813of fish and wildlife and fishing values through net reductions in available
1825habitat and deterioration in DO levels. Also significant is that the affected
1837area is functioning well at present.
184327. Respondent must also consider the cumulative impacts of the proposed
1854project, existing or approved projects, and projects that may be reasonably
1865anticipated. Consideration of likely cumulative impacts, given 200 nearby lots
1875without boatslips, militates against approval of the permit.
188328. Consideration of the alternative of an over-the-water boatslip and
1893maintenance dredging as a factor to be considered in the evaluation of the
1906proposed project is precluded by the failure of Petitioner to demonstrate his
1918likely entitlement to such an alternative.
1924RECOMMENDATION
1925It is hereby
1928RECOMMENDED that the Department of Environmental Protection enter a final
1938order denying the application.
1942ENTERED on May 26, 1995, in Tallahassee, Florida.
1950___________________________________
1951ROBERT E. MEALE
1954Hearing Officer
1956Division of Administrative Hearings
1960The DeSoto Building
19631230 Apalachee Parkway
1966Tallahassee, Florida 32399-1550
1969(904) 488-9675
1971Filed with the Clerk of the
1977Division of Administrative Hearings
1981on May 26, 1995.
1985APPENDIX
1986Rulings on Petitioner's Proposed Findings
19911-2: adopted or adopted in substance.
19973: rejected as irrelevant.
20014-5 (first sentence): adopted or adopted in substance.
20095 (remainder)-6: rejected as irrelevant.
20147: rejected as recitation of evidence.
20208: adopted or adopted in substance.
20269: rejected as unsupported by the appropriate weight of the evidence.
203710: rejected as unsupported by the appropriate weight of the evidence,
2048irrelevant, and not findings of fact.
205411-12 (first sentence): adopted or adopted in substance.
206212 (remainder): rejected as recitation of evidence and as unsupported by
2073the appropriate weight of the evidence.
207913: rejected as unsupported by the appropriate weight of the evidence.
2090Rulings on Respondent's Proposed Findings
20951-20: adopted or adopted in substance.
210121-25: rejected as unnecessary.
210526-29: adopted or adopted in substance.
211130: rejected as unnecessary.
2115COPIES FURNISHED:
2117Virginia B. Wetherell, Secretary
2121Department of Environmental Protection
2125Twin Towers Office Building
21292600 Blair Stone Road
2133Tallahassee, FL 32399-2400
2136Kenneth Plante, General Counsel
2140Department of Environmental Protection
2144Twin Towers Office Building
21482600 Blair Stone Road
2152Tallahassee, FL 32399-2400
2155Miles L. Scofield
2158Qualified Representative
2160Turrell & Associates, Inc.
21643584 Exchange Ave., Suite B
2169Naples, FL 33942
2172Christine C. Stretesky
2175Assistant General Counsel
2178Department of Environmental Protection
21822600 Blair Stone Road
2186Tallahassee, FL 32399-2400
2189NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
2195All parties have the right to submit written exceptions to this Recommended
2207Order. All agencies allow each party at least 10 days in which to submit
2221written exceptions. Some agencies allow a larger period within which to submit
2233written exceptions. You should contact the agency that will issue the final
2245order in this case concerning agency rules on the deadline for filing exceptions
2258to this Recommended Order. Any exceptions to this Recommended Order should be
2270filed with the agency that will issue the final order in this case.
- Date
- Proceedings
- Date: 06/23/1995
- Proceedings: Final Order filed.
- Date: 05/12/1995
- Proceedings: Department of Environmental Protection's Proposed Recommended Order; Disk filed.
- Date: 05/12/1995
- Proceedings: Petitioner's Proposed Recommended Order filed.
- Date: 05/04/1995
- Proceedings: to HO from Miles L. Scofield Re: Request for Extension on PRO filed.
- Date: 05/01/1995
- Proceedings: to HO from Miles L. Scofield Request for an extension for PRO filed.
- Date: 04/12/1995
- Proceedings: CASE STATUS: Hearing Held.
- Date: 03/14/1995
- Proceedings: Order Continuing and Rescheduling Formal Hearing sent out. (hearing rescheduled for 4/12/95; 9:00am; Naples)
- Date: 02/17/1995
- Proceedings: Notice of Appearance of Counsel for Department of Environmental Protection filed.
- Date: 02/07/1995
- Proceedings: Notice of Hearing sent out. (hearing set for 3/16/95; 9:00am; Naples)
- Date: 02/01/1995
- Proceedings: Department of Environmental Protection's Response to Initial Order filed.
- Date: 01/30/1995
- Proceedings: Ltr. to HO from Miles L. Scofield re: Reply to Initial Order filed.
- Date: 01/23/1995
- Proceedings: Initial Order issued.
- Date: 01/13/1995
- Proceedings: Request for Assignment of Hearing Officer and Notice of Preservation of Record; Agency Notice of Permit Denial; Petition for Administrative Hearing, form filed.