Brown v. U. S. Naval Air Station

28 Fla. Supp. 2d 232
CourtState of Florida Division of Administrative Hearings
DecidedAugust 19, 1987
DocketCase No. 86-2880
StatusPublished

This text of 28 Fla. Supp. 2d 232 (Brown v. U. S. Naval Air Station) is published on Counsel Stack Legal Research, covering State of Florida Division of Administrative Hearings primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. U. S. Naval Air Station, 28 Fla. Supp. 2d 232 (Fla. Super. Ct. 1987).

Opinion

OPINION OF THE COURT

LARRY J. SARTIN, Hearing Officer.

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case [233]*233before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 27, 1987 and June 17-18, 1987, in Pensacola, Florida.

PROCEDURAL STATEMENT

The United States Naval Air Station in Pensacola, Florida (hereinafter referred to as the “Navy”), filed an application with the Department of Environmental Regulation (hereinafter referred to as the “Department”), for a dredge and fill permit to construct an extension to an existing breakwater in the vicinity of Bayou Grande and Pensacola Bay. The Department executed an Intent to Issue the requested permit. The Petitioners, J. D. Brown and the Bream Fishermen’s Association requested an administrative hearing to contest the proposed permit approval.

The Petitioners’ request for hearing was assigned case number 86-2880 and was initially assigned to P. Michael Ruff. The case was subsequently assigned to the undersigned.

At the final hearing the Department presented the testimony of the following individuals who were accepted as experts in the fields noted:

Name Expertise

Dr. Kenneth Exchtemacht Meteorology, physical oceanography, hydrographic engineering and the effect on water quality.

Charles Harp Analysis and processing of Department dredge and fill permits, the effect of dredge and fill projects on plant and animal life and water quality, and navigation.

The Department also offered 6 exhibits which were marked as “DER” exhibits and accepted into evidence.

The Navy presented the testimony of John Foot, Jose Maniwane, and Duane Sparby. The Navy offered 3 exhibits which were marked as “NAS” exhibits and accepted into evidence.

The Petitioners presented the testimony of Neil McMillan, Jr., Dr. Robert M. Ingle, Dr. Robert M. Sheely, Norman Paul Autin, J. B. Davidson, Dr. Richard G. Olsen, J.D. Brown, Ronald McAfee and Mrs. John Hanan, II. Dr. Ingle was accepted as an expert in marine biology, Dr. Sheely was accepted as an expert in environmental science and Dr. Olsen was accepted as an expert in bio-medical engineering and the environment. The Petitioners offered 14 exhibits into evidence. [234]*234All of the Petitioners’ exhibits, including 6 that were not offered into evidence, were marked as “BFA” exhibits. BFA exhibits 7-10, 12-13, and 15 were accepted into evidence. BFA exhibits 1-4 and 5-6 were not offered into evidence. A ruling on BFA exhibit 4A was reserved. That exhibit is hereby rejected. BFA exhibits 11, 14, and 18-19 were rejected. Finally, BFA exhibits 16 and 17 were accepted for illustrative purposes only.

In addition to the witnesses called by the parties, 3 public witnesses testified: S. A. Terrebone, Lawrence Russo and Richard T. Radford. One exhibit, “Public Witness # 1” was received.

Following the conclusion of the final hearing, the Department filed a Motion to Strike Petitioners’ Review of Testimony and Summary of Closing Statement. The Petitioners filed an Answer to Motion to Strike in which the Petitioners requested an assessment against the Department of costs associated with preparing and filing the Answer. Although the Petitioners have filed a document titled “Petitioner’s Review of Testimony and Summary of Closing Statement” in addition to documents titled “Proposed Findings of Fact” and “Proposed Conclusions of Law,” the Petitioners have in effect simplyfiled a proposed recommended order or brief as authorized by law. Therefore, the Department’s Motion to Strike is denied. The Petitioners’ request for costs is also denied.

The parties have filed proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUE

Whether the Department should issue a dredge and fill permit to the Navy to construct an extension to an existing breakwater in the vicinity of Bayou Grande and Pensacola Bay?

FINDINGS OF FACT

A. The Parties.

1. The Department is the agency responsible for the issuance of dredge and fill permits in the waters and wetlands of the State of Florida.

2. The Navy is an applicant for the subject dredge and fill permit.

3. The parties have standing to participate in this proceeding.

B. The Application and its Review.

[235]*2354. On June 12, 1985, the Department received a dredge and fill application from the Navy requesting a permit for the construction of an 850-foot extension of a breakwater in the vicinity of Bayou Grande and Pensacola Bay. The application was received by the Northwest Florida district office of the Department.

5. The Navy filed its application on DER form 17-1.203(1).

6. In a letter dated January 20, 1986, to the Jacksonville District, Corps of Engineers, the Bream Fishermen Association (hereinafter referred to as the “BFA”), raised several issues they believed needed to be addressed concerning the proposed project: (1) The effect on safety; (2) the effect of the existing breakwater on submerged grasses; and (3) pollution in Bayou Grande.

7. In a letter dated January 28, 1986, to the Northwest Florida district office of the Department the BFA again expressed their concerns about the proposed project.

8. In response to the BFA’s letter of January 28, 1986, the Department asked Dr. Kenneth Exchtemacht, the Department’s hydrographic engineer, to evaluate the proposed project. In a memorandum dated February 20, 1986, Dr. Exchtemacht requested that the Navy provide the following additional information:

1. Provide documentation and [sic] to the tidal flow direction and amplitude in Pensacola Bay south of the proposed work area and north of the mouth to Bayou Grande for both ebb and flood. Mean current speeds and trajectories as well as maximum midtide velocites are needed.
2. Provide estimates of the net littoral drift direction and volume to the north of the mouth of Bayou Grande and to the south of the work area along Magazine Point.

9. The Navy performed the additional hydrographic survey requested by the Department and submitted the information to the Department.

10. The submission of the hydrographic survey requested by the Department completed the application for the extension of the breakwater.

11. The application submitted by the Navy was a “short-form” application. It was promptly filed with the Department’s district office.

12. The proposed project does not involve in excess of 10,000 cubic yards of material to be placed in the waters of the State.

13. The completed application involved in this proceeding was not received prior to October 1, 1984.

[236]*23614. The application as submitted by the Navy complied with the requirements of the applicable Florida Statutes and the Department’s rules.

15.

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28 Fla. Supp. 2d 232, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-u-s-naval-air-station-fladivadminhrg-1987.