98-002006 Edmond Blount, Jr.; Edmond Blount, Sr.; Robert Davenport; And Gerard Murnan vs. City Of Mexico Beach And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, November 10, 1998.

Summary: The City is entitled to joint coastal permit and consent to use sovereign submerged lands to dredge and excavate for municipal projects.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EDMOND BLOUNT, SR.; EDMOND BLOUNT, JR.; )

ROBERT DAVENPORT; and GERARD MURNAN, )

)

Petitioners, )

)

vs. ) Case No. 98-2006

) OGC No. 98-1186

CITY OF MEXICO BEACH and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_________________________________________)

)

EDMOND BLOUNT, JR.; ROBERT DAVENPORT; )

and GERARD MURNAN, )

)

Petitioners, )

)

vs. ) Case No. 98-2007

) OGC No. 98-0156

CITY OF MEXICO BEACH and DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents. )

_________________________________________)

RECOMMENDED ORDER

On July 29, 1998, and continuing on August 6, 1998, a formal

hearing was held in this case. Authority for conducting the

hearing is set forth in Sections 120.569 and 120.57(1), Florida

Statutes. The hearing location was the City of Mexico Beach

Civic Center, Mexico Beach, Florida. The hearing was conducted

by Charles C. Adams, Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Edmond Blount, Sr., pro se

Post Office Box 13855

Mexico Beach, Florida 32410

Edmond Blount, Jr., pro se

Post Office Box 13854

Mexico Beach, Florida 32410

Robert Davenport, pro se

Post Office Box 13926

Mexico Beach, Florida 32410

Gerard Murnan, No appearance

Post Office Box 13378

Mexico Beach, Florida 32410

For Respondent City of Mexico Beach:

Paul G. Komarek, Esquire

Daniel and Komarek, Chartered

315 East 4th Street

Post Office Box 2547

Panama City, Florida 32402

For Respondent Department of Environmental Protection:

Ricardo Muratti, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

Is the City of Mexico Beach (the City or Applicant) entitled

to the issuance of a joint coastal permit and consent to use of

sovereign submerged land for the Mexico Beach Canal (Main Canal)

and a municipal flushing outlet adjacent to 8th Street (8th

Street outlet)? Those permits would be issued by the Department

of Environmental Protection (DEP) in response to DEP Application

File No.: 0124938-001JC and DEP Application File No.: 0129039-

001JC, respectively.

PRELIMINARY STATEMENT

On June 13, 1997, the City applied to DEP for the necessary

permits to conduct maintenance activities in association with the

8th Street outlet. This was followed by its application to DEP

for necessary permits associated with maintenance dredging of the

Main Canal. The latter application was made on June 30, 1997.

On January 13, 1998, DEP gave notice of its intent to issue

necessary permits in association with Main Canal. On March 16,

1998, DEP gave notice of its intent to issue necessary permits in

association with the 8th Street outlet. The intent to issue

necessary permits in association with the Main Canal was

protested by written petitions from Edmond Blount, Jr.; Robert

Davenport; and Gerard Murnan. The intent to issue necessary

permits in association with the 8th Street outlet was contested

by those Petitioners and Edmond Blount, Sr.

The petitions in opposition to the grant of the permits

were forwarded to the Division of Administrative Hearings for

assignment of an administrative law judge to conduct an

evidentiary hearing to resolve their disputes in accordance with

Section 120.57(1), Florida Statutes. Those requests for

assignment were received by the Division on April 30, 1998. The

transmittal of the petitions was accompanied by the DEP motion to

consolidate the petitions for consideration by the Administrative

Law Judge. That motion was unopposed. The motion to consolidate

was granted on June 12, 1998.

The City and DEP filed separate motions to dismiss the

petitions challenging the intent to grant necessary permits.

Petitioners offered a written response to the motions which more

specifically identified their interests affected by the grant of

the permits. Having in mind that information provided by the

Petitioners and being otherwise advised in the premises, the

motions to dismiss were denied, in an order which reminded the

parties that the case would be considered in keeping with the

statutes and rules which had pertinence to the notices of intent

to issue the permits and in keeping with the issues identified in

the petitions in challenge to the intent to grant. The order

denying the motions to dismiss was entered on June 12, 1998.

On June 12, 1998, a Notice of Hearing was sent setting forth

July 28 and 29, 1998, for hearing in Panama City, Florida, at the

City Hall.

There ensued written communications from the public

requesting a change in the hearing location and asking that

members of the public be allowed to testify at the hearing. The

parties were noticed of these communications and given the

opportunity to file responses. That notification was made on

July 2, 1998. In the notice of communications provided on

July 2, 1998, the parties were given until July 13, 1998, at

their option, to file responses to the public requests to change

the hearing location to Mexico Beach and to testify as members of

the public. The parties were informed by that notice of

communications that a decision would be made concerning the

public request to change the hearing venue and to be provided the

opportunity to testify at the hearing as members of the public.

Counsel for the City moved to continue the July 28, 1998

hearing date in view of a scheduling conflict. DEP did not

oppose the motion. Petitioners filed a written objection to the

motion. On July 2, 1998, an order was entered continuing the

July 28, 1998 hearing date, leaving in place the July 29, 1998

hearing date and scheduling August 6, 1998, as a substitute

hearing date.

On July 9, 1998, the parties were provided additional

written communications from members of the public concerning the

hearing location and the opportunity for public comment. A third

notice of communications was provided on July 20, 1998,

concerning the hearing location, opportunity for public comment

and other related matters.

The parties presented written responses to the request to

change the hearing location and to allow public testimony during

the hearing. On July 20, 1998, an order was entered which

changed the hearing location from Panama City Beach to Mexico

Beach, allowing public testimony to be presented on August 6,

1998, from 6:00 p.m. to 9:00 p.m. CDT.

At hearing DEP presented the testimony of Robert M.

Brantly, Jr. The City presented Peter M. Sylvester, M.D.;

Charles Parker; Mary Leonard; and Jon DeClerk as witnesses.

Petitioners presented Gary Gaddis; Howard Spann; Robert

Davenport; Edmond Blount, Jr.; Robert Brantly; Frederick Sheer;

and Jon DeClerk as its witnesses. Petitioners presented Exhibits

1, 2, 2A and 3 through 33 as its exhibits. Exhibits 25 and 26

were denied admission. Ruling was reserved on the admission of

Petitioners' Exhibit 31. All other exhibits by Petitioners were

admitted. Upon further consideration, Petitioners' Exhibit 31 is

denied admission. DEP Exhibits 1-9 were admitted. City Exhibits

1-4 were admitted.

A transcript of the hearing was filed on September 8, 1998.

The deadline for filing proposed recommended orders was

September 18, 1998. The City requested an extension of time to

file proposed recommended orders. By requesting an extension of

time to file proposed recommended orders, the parties waived the

requirement that the recommended order be entered within 30 days

of receipt of the transcript. See Rule 28-106.216, Florida

Administrative Code. That motion was unopposed. The parties

were advised that the new deadline for submitting proposed

recommended orders was September 25, 1998. The parties submitted

proposed recommended orders which were considered in preparing

the recommended order.

FINDINGS OF FACT

THE PARTIES

1. Petitioners Edmond Blount, Sr.; Edmond Blount, Jr.; and

Robert Davenport are residents of the City of Mexico Beach,

Florida. As residents they have access to the Main Canal, the

public beaches adjacent to the Main Canal, and beaches adjacent

to the 8th Street outlet.

2. Edmond Blount, Jr., and Robert Davenport oppose the

issuance of any permits by DEP which would allow the City to

conduct dredging and the placement of dredge materials associated

with the Main Canal. Those Petitioners and Edmond Blount, Sr.,

oppose the grant of necessary permits by DEP upon the application

by the City to conduct occasional maintenance excavation at the

8th Street outlet to alleviate potential damage through erosion

to properties adjacent to the 8th Street outlet.

3. The City of Mexico Beach is a municipality in Florida

which serves as the local government for that community. The

City owns the Main Canal and 8th Street outlet.

4. DEP is an environmental regulator with authority to

issue or deny joint coastal permits and to grant or deny consent

to use sovereign submerged lands belonging to the State of

Florida.

5. The joint coastal permitting authority and right to

grant consent to use is pursuant to Chapters 161, 253, and 373,

Florida Statutes, and Chapters 18-21 and 62B-49, Florida

Administrative Code.

6. In particular, DEP has joint coastal permitting

authority upon sovereignty lands in the State of Florida below

the mean high waterline (MHWL) of any tidal water of the State.

The reference to sovereign land is an association with lands

below MHWL held in trust by the State of Florida. The term tidal

waters refers to waters in which there is an astronomical effect

on the elevation of that water. The Gulf of Mexico which fronts

the City is a tidal water of the State of Florida. The MHWL is

established along the coastal regions in Florida, to include the

Gulf coast that fronts the City. The MHWL is set based upon

charting information concerning the local mean high tide, the

average height of the high waters, and where this average

intersects the land.

PERMIT APPLICATION

FOR MAIN CANAL

7. On June 30, 1997, the City applied to DEP for a ten-year

permit/water quality certification and authorization to use

sovereign submerged lands owned by the Board of Trustees of the

Internal Improvement Trust Fund (the Trustees), which would allow

the City to maintenance dredge the Main Canal entrance and place

the dredge material on the beach east of the canal below the

water's edge. This task would be accomplished by the use of

hydraulic dredging device. In the course of these activities,

approximately 660 cubic yards of material would be removed

approximately four times a week.

8. The application file number for the requested permit in

the Main Canal project was: 0124938-001 JC.

9. The City, through its application, provided a complete

and appropriate application with adequate engineering data to

support the proposed project.

10. The Main Canal is located in the western part of the

City and is partially located in sovereign submerged lands of the

State of Florida where the canal intersects the Gulf of Mexico

below the MHWL.

11. On January 13, 1998, DEP gave notice of its intent to

issue necessary permits for the activities to allow dredging and

the placement of fill in association with the Main Canal.

12. More specifically, the hydraulic dredge the City

intends to use in the maintenance dredging of the Main Canal is a

floating device which excavates the sand from the bottom of the

entrance of the Main Canal and pipes the material onto the beach

immediately east of the dredge site. The dredging activities may

only be conducted in a manner designed to protect the beach-dune

system, water quality and habitat for marine turtles. These

restrictions in the conduct of the dredging are in accordance

with the proposed joint coastal permit.

13. The dredging activity is to remove and deposit clean

beach sand that has been transported by coastal processes and

deposited in the lee of the jetty within the Main Canal. There

is no intent, nor permission under the proposed permit, that

would allow disturbance of any sediments more landward of the

extent of the canal.

14. The dredging is necessitated because the entrance of

the Main Canal slowly fills with sand being transported from west

to east along the shoreline.

15. The Main Canal is stabilized on both sides by jetties.

The western-most jetty extends further out than the eastern-most

jetty. The Main Canal has seawalls along its inside.

16. A recreational area is located on the western side of

the Main Canal.

17. The Main Canal is highly utilized for purposes of

commerce and recreation. The Main Canal constitutes an economic

support for many residents of the City.

18. The Main Canal in proximity to the Gulf and the Gulf

itself are not considered outstanding Florida waters or aquatic

preserves. The waters in the Main Canal and Gulf are Class III

marine waters when considering the parameters for water quality

under DEP statutes and rules.

19. Competent evidence was presented concerning water

quality sampling and results in the analysis of those samples for

fecal coliform bacteria and total coliform bacteria in relation

to the Main Canal at its entrance where dredging would take place

under the terms of the permit. Some values for fecal coliform

and total coliform exceeded the allowable limits for those

parameters as envisioned by Section 62-302.530, Florida

Administrative Code, as preexisting conditions. However, the

dredge operations will not lead to further degradation of the

existing Class III marine waters in the Main Canal and

degradation of the Gulf.

20. The relatively clean sand being excavated does not

contain fines or organics, which, through the dredging and

placement of the sand on the beach following the dredging, would

contribute to degradation of water quality standards.

21. The activity associated with the dredging and placement

of those materials on the beach will not cause a significant

adverse impact to the beach-dune system, nor will the transport

of sand from west to east along the beach as it presently exists

be interrupted by the dredging and placement of the sand. The

dredged material is being placed immediately east of the dredge

operation avoiding a disruption of the natural processes of

transport. The proposed disposal area is located on the beach at

least 100 feet east of the canal below the waters edge at

approximately minus 0.5NGVD. Finally, the deposit of the sand on

the beach contributes to beach stabilization as opposed to

depriving the beach of sand.

22. The proposed permit requires that the dredge pipeline

be retracted upon a daily basis during marine turtle nesting

season from May 1 until October 31 each year. By this limitation

in the operation of the dredge pipeline, marine turtles are not

hindered in their behavior nor is their habitat unduly disturbed.

The placement of the dredged sand on the beach would not be in

the dry upland where the turtles would typically nest. The DEP

Bureau of Protected Species Management reviewed the permit

application for any significant adverse impact on nesting sea

turtles and recommends the approval subject to specific

conditions such as have been described.

23. The dredging of the sand from the Main Canal and

placement of that material on the beach will not cause

significant adverse impact to the property of others.

24. The Main Canal project will not create any significant

erosion or turbidity. Given the small volume and coarseness of

the dredged sand, elevated turbidity levels are not expected.

25. The dredging of material from the mouth of the Main

Canal and placement on the adjacent beach does not block lateral

access to the beach, because the hydraulic dredge pipeline is

placed at the water's edge with a discharge of dredge material

being made at the water's edge in the area of the intertidal zone

where water comes up to the beach. The exact discharge point is

seaward of the area described as the intertidal zone.

26. Given that the project associated with the Main Canal

is located in Class III marine waters, it must not be contrary to

the public interest. The project is not contrary to the public

interest.

PERMIT APPLICATION FOR

8TH STREET OUTLET

27. On June 13, 1997, the City applied to DEP for a ten-

year permit/water quality certification and authorization to use

sovereign submerged lands owned by the Board of Trustees. This

would allow the City to conduct occasional excavation of the 8th

Street municipal flushing outlet which connects to the Gulf,

having in mind the alleviation of potential damage to adjacent

beachfront properties. That potential damage would be expected

to occur in the instance where there was an uncontrolled breach

of the berm surrounding the 8th Street outlet due to high

incidence of rainfall, thus eroding adjacent beachfront

properties. With the advent of scheduled maintenance, excavation

of the outlet that erosion is expected to be deterred.

28. The application file number for the requested permit in

the 8th Street outlet project was File No.: 0129039-001 JC.

29. The City, in its application for necessary permits to

conduct excavation at the 8th Street outlet, submitted a complete

and appropriate application setting forth adequate engineering

details.

30. More specifically, the permit application contemplates

the removal of approximately 20 to 40 yards of beach sand per

excavation, with the material excavated being placed on the beach

near the water's edge. The excavation would be approximately 4

to 5 feet wide, 50 feet long, and 2 to 3 feet deep. Ordinarily,

the frequency of excavation would be one to two times per month.

The excavation practices would be by the use of a backhoe other

than in the sea turtle nesting season. While sea turtles are

nesting, the plans contemplate excavation by hand by use of a

shovel or similar tool. In addition, during the turtle nesting

season the application contemplates that the excavation would be

done during daylight hours, only twice a month, to reduce

potential flooding of marine turtle nests due to a meandering

outflow from the outlet. Other than in the marine turtle nesting

season the excavation would be done on an "as needed" basis.

31. On March 16, 1998, the DEP gave notice of its intent to

issue a permit for the dredging at the 8th Street outlet.

32. The conditions associated with the intended permit for

dredging of the 8th Street outlet deter any significant adverse

impacts to the beach-dune system.

33. In the area of the 8th Street outlet, a large box

culvert runs underneath U.S. 98, the main highway in the city.

That highway runs parallel to the beach. Once the water flows

through the culvert, it accumulates in the outlet south of the

road. In the instance where rainfall is diminished, the flushing

outlet does not flow to the Gulf and the beach berm, which

accretes seaward of the outlet, traps the water that is being

released via the culvert.

34. By contrast, in instances where heavy rainfall occurs,

the water in the outlet collects to a point that it begins to

flow away from the culvert in the direction of the Gulf. If the

beach berm has built up over time, the path of that flow in high

incidence of rainfall can encroach on buildings that are adjacent

to the culvert on the south side of U.S. 98. When the rainfall

is sufficient, and the water begins to flow, it reaches a

sufficient velocity to move sand as a bed load. Under those

circumstances, when the water strikes a ridged object, like a

house foundation, the local water velocity will act to carry away

the sand more readily from that location where the house

foundation is found, by scouring out the sand near the

foundation, undermining the building and risking the collapse of

the building onto the beach. In the course of this process the

water breaches the beach berm and flows towards the Gulf. In the

instance where the berm on the beach has been breached, the water

that has been released begins to scour the beach and establish a

pattern that can run down the beach roughly parallel to the Gulf

for a distance before flowing into the Gulf.

35. By contrast, the controlled release of water from the

outlet would cause less of an impact, in that it would create an

immediate access through the beach berm to the Gulf without

creating the potential for harm to upland property or causing

erosion or scouring of dunes and vegetation in beach areas, some

of which might contain turtle nests.

36. Unlike the circumstances with high incidence of

rainfall where adjacent property is eroded and damaged, the use

of controlled maintenance excavation to relieve the outlet would

not cause significant and adverse impact to adjacent property

owners. The controlled release of the water in the outlet,

unlike the natural release of that water in high incidence of

rainfall, is more in the interest of the public when considering

adverse impacts to property.

37. The introduction of the water in the outlet, and its

constituents, onto the beach and its consequences, is no more a

problem whether based upon the natural event of high incidence of

rainfall or the routine release contemplated by the project.

Therefore, the alternative method of releasing the water by use

of scheduled excavation is not contrary to the public interest.

If anything, the use of periodic excavation to relieve the outlet

would limit the breadth of discharge and the amount of discharge.

38. The 8th Street outlet and the Gulf area adjacent to

that outlet are not within outstanding Florida waters or aquatic

preserves. The project site for the 8th Street outlet and the

Gulf are within Class III marine waters.

39. The existing Class III marine water quality parameters

for fecal coliform and total coliform when considered in

accordance with Rule 62-302.530, Florida Administrative Code,

have been exceeded in the 8th Street outlet. This is borne out

by test results from samples gathered at the 8th Street outlet

presented at hearing. However, as with the circumstance with the

Main Canal, the effect of periodic excavation to relieve the

outlet will not further degrade state waters found in the outlet.

The results of water quality tests performed following sampling

that relate to the amount of fecal coliform and total coliform in

the Gulf that could be expected at the entrance of the Main Canal

and as the discharge of water within the 8th Street outlet enters

the Gulf show low values for those parameters. Therefore, it is

not anticipated that the release of the water from the 8th Street

outlet to the Gulf under controlled conditions contemplated by

the permit application would cause a violation of the parameters

for fecal coliform and total coliform in the Gulf, the receiving

body of water, especially when compared to the existing release

of water from the 8th Street outlet to the Gulf in high incidence

of rainfall. This finding is also influenced by the fact that

the most excessive values for total coliform and fecal coliform

in the 8th Street outlet system were found 600 to 800 feet up the

water course described as the 8th Street outlet.

40. Similar to the Main Canal, the project contemplated at

the 8th Street outlet would not require mitigation before being

permitted by DEP.

41. The 8th Street outlet project would not create

significant adverse impacts on coastal sediment transport.

42. The DEP Bureau of Protective Species Management

reviewed the 8th Street outlet application and recommended

approval with specific conditions. Those conditions offer

adequate protection to marine turtles and their habitat. The

conditions include project excavation that does not create

parallel trenches in the sand that inhibit movement on the beach

by sea turtles.

43. The 8th Street outlet project will not create

significant erosion concerns or turbidity concerns.

44. The 8th Street outlet project does not block lateral

beach access to the public, in that the excavation to relieve the

outlet on a periodic basis is temporary, that is to say only in

effect when the water is being released from the outlet to the

Gulf.

CONSENT TO USE

SOVEREIGN SUBMERGED LANDS

45. The 8th Street outlet project, as well as the Main

Canal project, involves sovereignty submerged lands below the

MHWL constituted of the beach and ocean bottom.

46. The facts show that the City is entitled to consent of

use to work on sovereign submerged lands in the Main Canal and

8th Street outlet projects.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in

accordance with Sections 120.569 and 120.57(1), Florida Statutes.

48. Petitioners' Edmond Blount, Sr.; Edmond Blount, Jr.;

and Robert Davenport have standing to bring challenges to the DEP

intent to grant necessary permits under application File No.:

0124938-001 JC, the Main Canal, and application File No.: 129039-

001 JC, the 8th Street outlet.

49 . Both projects involve activities subject to regulation

under Chapter 161, Florida Statutes, pertaining to beach and

shore preservation. As such, permits are required in accordance

with Section 161.041, Florida Statutes, before undertaking the

activities called for in the permit applications. Those

applications are subject to review by DEP.

50. The type permit contemplated by Part I of Chapter 161,

Florida Statutes, at Section 161.041, is referred to as a coastal

construction permit.

51. Chapter 62B-41, Florida Administrative Code, further

establishes requirements for obtaining coastal construction

permits.

52. Both projects involve surface waters regulated by DEP

and are subject to the regulatory process set forth in Part IV of

Chapter 373, Florida Statutes, involving the management and

storage of surface waters.

53. The permit required by Part IV of Chapter 373, Florida

Statutes, is referred to as an environmental resource permit.

54. Both projects involve the use of sovereignty lands of

Florida held by the Trustees. Those are lands below MHWL of a

tidal water of the state and are classified as sovereign

submerged lands.

55. Given the intent to use sovereign submerged land held

by the Trustees, responsibilities of DEP reference that land are

implicated in Chapter 253, Florida Statutes, and Rules 18-21.0040

and 18-21.0051, Florida Administrative Code. Those provisions

allow for DEP to review and make decisions upon the use of

sovereign submerged land held by the Trustees.

56. To facilitate consideration of the request for coastal

construction permits, environmental resource permits, and

proprietary use of sovereign submerged lands owned by the

Trustees, the permit applications for both projects have

undergone review in accordance with Chapter 62B-49, Florida

Administrative Code, which allows for the consideration of the

permit applications and consent to use sovereign submerged land

in one application per project. This process of permit review

and consideration of a request to use sovereign submerged lands

recognizes the delegation provisions of Chapter 18-21, Florida

Administrative Code, from the Trustees to DEP in making decisions

concerning the use of sovereign submerged lands. Chapter 62B-49,

Florida Administrative Code, also takes into account the

standards and criteria for issuance of environmental resource

permits and coastal construction permits in satisfaction of

requirements set forth in Title 62, Florida Administrative Code.

Given the nature of both projects, the dredge and fill

requirements set forth in Chapter 62-312, Florida Administrative

Code, must be met by the City to include Rule 62-312.065, Florida

Administrative Code, setting forth additional requirements for

this concurrent review. Implicated by the challenges brought by

these Petitioners, are the water quality standards for Class III:

Marine Waters, for the parameters of Bacterial Quality (fecal

coliform bacteria) and (total coliform bacteria). See Rule 62-

302.530, Florida Administrative Code.

57. The City, as the applicant, bears the burden of proving

its entitlement to the joint coastal construction permits and

environmental resource permits together with the proprietary

opportunity to use sovereign submerged lands for these projects.

See Department of Transportation v. J.W.C. Co., Inc. , 396 So. 2d

778 (Fla. 1st DCA 1981). That proof must be by a preponderance

of the evidence.

58. The proposed projects do not interfere with the use by

the public of areas of the beach seaward of MHWL, other than the

limited activity of protecting endangered upland structures near

the 8th Street outlet, nor do the projects require the provision

of alternative public access to the beach. See Section 161.041,

Florida Statutes.

59. The proposed projects will have no significant adverse

impact on the beach-dune system or shoreline stability.

Therefore, mitigation that affects the project is not required.

See Section 161.041, Florida Statutes, and Rule 62B-41.005,

Florida Administrative Code.

60. Reasonable condit ions have been set forth in the

proposed permits for both projects to protect marine turtles and

their habitat. See Rule 62B-41.0055, Florida Administrative

Code.

61. Nothing involved with the proposed projects will

constitute a taking of marine turtles or their habitat or an

interference with their essential behaviors. Therefore, DEP is

not prohibited from issuing the requested permits. See Section

370.12(1), Florida Statutes.

62. The City must satisfy the requirements of Section

373.414, Florida Statutes, in relation to water quality standards

pertaining to the Main Canal, the 8th Street outlet, and the Gulf

by virtue of the activity called for by both projects. The City

must provide reasonable assurance that the state water quality

standards set forth in the Florida Administrative Code will not

be violated as a result of the activity. Reasonable assurance

has been given that state water quality standards will not be

violated by virtue of the activities in the proposed projects.

The activities in the proposed projects will not violate the

water quality standards by degrading the water quality below the

standards. In particular, the proposed activities for these

projects will not cause a violation of the parameters in the

Class III marine waters associated with the project for fecal

coliform and total coliform. See Rule 62-302.530, Florida

Administrative Code. To the extent conditions exist which have

led to violations of the parameters for fecal coliform and total

coliform, as evidenced by sampling and analysis of water in the

area of the proposed projects, the activity in the proposed

projects will not further degrade the water in the Main Canal,

and 8th Street outlet, or cause degradation of water quality in

the Gulf below acceptable parameters for fecal coliform and total

coliform. See also Rule 62-312.080(1), Florida Administrative

Code.

63. Section 373.414, Florida Statutes, makes it incumbent

upon the City to give reasonable assurance that the activities

involving the Main Canal, 8th Street outlet, and the Gulf are not

contrary to the public interest. Reasonable assurance has been

given that the activities for the proposed projects are not

contrary to the public interest.

64. The City having shown that this project is not contrary

to the public interest is entitled to the DEP

authorization/consent to use the sovereign submerged lands

involved with the projects. See Rule 18-21.004, Florida

Administrative Code.

65. The proposed projects by the City have been

demonstrated to be unharmful to the water resources regulated by

DEP. See Section 373.414, Florida Statutes.

66. The City in all other respects required by the

referenced statutes and rules has shown its entitlement to the

permits and consent to use sovereign submerged lands.

RECOMMENDATION

Based upon the facts found and the conclusions of law

reached, it is

RECOMMENDED:

That DEP issue a final order granting the City the joint

coastal permits and consent to use sovereign submerged lands in

accordance with application File Nos.: 0124938-001JC and

0129039-001JC respectively, subject to specific conditions

contained therein.

DONE AND ENTERED this 10th day of November, 1998, in

Tallahassee, Leon County, Florida.

CHARLES C. ADAMS

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 10th day of November, 1998.

COPIES FURNISHED:

Edmond Blount, Sr.

Post Office Box 13855

Mexico Beach, Florida 32410

Edmond Blount, Jr.

Post Office Box 13854

Mexico Beach, Florida 32410

Robert Davenport

Post Office Box 13926

Mexico Beach, Florida 32410

Gerard Murnan

Post Office Box 13378

Mexico Beach, Florida 32410

Paul G. Komarek, Esquire

Daniel and Komarek, Chartered

Post Office Box 2547

Panama City, Florida 32402

Ricardo Muratti, Esquire

Department of Environmental

Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

John McInnis, City Manager

City of Mexico Beach

Post Office Box 13425

Mexico Beach, Florida 32410

Kathy Carter, Agency Clerk

Department of Environmental

Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

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.