87-005578 Florida Audubon Society And National Audubon Society vs. South Florida Water Management District (Marsh Golf Club) Status: Closed Recommended Order on Monday, August 29, 1988.

Summary: SWM permit issued. Works defined. Tower and guy wire were works. Wire crossed wetland edge. SFWMD had authority over tower and impact on birds in area.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AUDUBON SOCIETY AND )

NATIONAL AUDUBON SOCIETY , )

)

Petitioners , )

)

vs. ) CASE NO. 87-5578

)

RUSSELL E. AND MARILYN F. SCOTT , )

CALOOSA TELEVISION CORP., AND )

SOUTH FLORIDA WATER MANAGEMENT )

DISTRICT , )

)

Respondents. )

___________________________________)

RECOMMENDED ORDER

The final hearing in this case was held on June 23, 1988 in Ft. Myers,

Florida, and on July 11, 1988 in Tallahassee, Florida, before Donald D. Conn,

Hearing Officer, Division of Administrative Hearings. The parties were

represented as follows:

APPEARANCES

For Petitioners: Charles Lee, Senior, Vice President

Florida Audubon Society

1101 Audubon Way

Maitland, Florida 32751

For Respondents: Russell P. Schropp, Esquire

Post Office Box 280

Fort Myers, Florida 33902

(Russell E. and Marilyn F. Scott

and Caloosa Television Corporation)

James K. Sturgis, Esquire

Post Office Box 24680

West Palm Beach, Florida 33416

(South Florida Water Management District)

The issue in this case is whether the South Florida Water Management

District (District) should issue a surface water management permit to Russell E.

and Marilyn F. Scott, and Caloosa Television Corporation (Caloosa) for the

construction and operation of a surface water management system to serve a

television signal tower and control building in southeast Lee County, Florida.

Specifically, the parties disagree as to whether the tower and guy wires

constitute a part of the surface water management system, and if so, whether

they will have a significant adverse impact on the water resources of the state

through a reduction of wood storks, an endangered species, and other wading

birds which feed on biomass in such waters, thereby maintaining water quality.

The Florida Audubon and National Audubon Societies (Audubon) oppose the issuance

of this permit. By Order entered on February 8, 1988, Charles Lee was accepted

as a qualified representative on behalf of Audubon, pursuant to Rule 22I-6.008,

Florida Administrative Code.

At the hearing, Caloosa called five witnesses and introduced thirteen

exhibits, while the District called one witness, but did not introduce any

exhibits. Audubon called seven witnesses and introduced sixteen exhibits; one

exhibit which Audubon sought to introduce was rejected as irrelevant. Official

recognition was taken of matters which may be judicially noticed, pursuant to

Rule 22I-6.020, Florida Administrative Code. The final volume of the transcript

was filed on August 3, 1988, and the parties were allowed to file proposed

recommended orders, including proposed findings of fact, on or before August 15,

1988. The Appendix to this Recommended Order contains a ruling on the parties'

timely filed proposed findings of fact.

On August 15, 1988, Audubon filed a Motion To Strike the District's

proposed findings of fact since they do not contain citations to the record.

Rule 22I-6.031(3), Florida Administrative Code. No prejudice to Audubon has

been shown by the District's failure, and, in fact, any prejudice that results

from this failure is to the District itself, rather than any other party.

Accordingly, the Motion To Strike is denied.

FINDINGS OF FACT

1. On or about September 14, 1987, Caloosa filed Application Number 09147-

B, for a surface water management permit, with the District. This application

was for the construction and operation of a surface water management system to

serve a 1249 foot high television transmission tower and control building in

southeast Lee County, Florida.

2. The proposed location of Caloosa's project is approximately one mile

north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and

operated by Audubon, and specifically, approximately two and one-half miles

north of a wood stork colony located within the Sanctuary. This rookery is the

largest rookery of wood stork, a federally endangered wading bird, in the United

States.

3. The project site is 60 acres in size, and approximately square in

shape. It is improved agricultural land, with a circular cypress wetland of

about 5.5 acres located near the center of the site. Extending outward from the

cypress wetland are two ditches, one running due east and the other due west.

The existing surface water flow varies with the seasons and intensity of storm

events. During dry seasons, the rainfall runoff flows into the cypress wetland

and percolates into the ground. However, during wet seasons, water builds up in

the cypress wetland and flows into the two ditches. In larger storm events, the

project site is entirely under water, and sheet flows occur to the southwest.

The proposed project should have a negligible impact on the existing surface

water system since the total impervious area will only be approximately one

acre, or 1.7 percent of the total project area of 60 acres.

4. The project consists of a radio tower and guy wires, a 3150 square foot

control building, fill pad and parking area, guy wire anchor slabs, and

approximately 1650 feet of lime rock road with an equalizer culvert to maintain

existing flow. Three sets of six guy wires will extend from the 1249 foot high

tower and connect to the ground at anchor slabs located near the edge of the

project site. The entire project is located outside of the limits of the

existing wetland, but one set of guy wires does cross the western edge of the

cypress wetland. Caloosa proposes to use the tower as a "community tower" which

will be capable of supporting more than one transmitting antennae. In addition

to Caloosa's antennae, the tower will be able to support up to five commercial

radio stations and up to sixty two-way communication antennae. Caloosa has had

contacts from several commercial radio stations and governmental agencies which

have expressed interest in co-locating their antennae on Caloosa's tower.

5. After review of this application, District staff advised Caloosa, on

November 23, 1987, that it was recommending approval of the application since it

was felt that any impact from the project on wood storks would not result from

the construction and operation of this project. At hearing, the District

supported the issuance of this permit, but urged that the tower and guy wires

are not a part of the surface water management system over which the District

has any permitting jurisdiction. Audubon timely filed its request for a hearing

on the District's intent to issue this permit, and at hearing opposed the

issuance of this permit to Caloosa, urging that the tower and guy wires were an

integral part of the surface water management system, and therefore subject to

the District's permitting jurisdiction.

6. The wood stork and other wading birds are an important link in the

biological and ecological chain. They are the main mechanism for removing

certain species of fish from ponds, lakes and waters of the state. If there is

no predation by wading birds, then an increase in the biomass of the water

system would be expected, water quality would decrease, and fish kills would

result. Ponds that receive biomass reduction by wading birds have a reduction

in fish biomass of approximately 75%, with no loss in species, while ponds that

do not receive wading bird predation lose almost all individual aquatic animals

through reduced water quality resulting from retention of up to 94% of the

biomass from dead fish. The reduction in biomass is in direct proportion to the

number of birds feeding in a pond, and therefore a 5% reduction in birds will

result in a 5% lessening of the biomass reduction. Water quality will be

reduced by a lowering of oxygen levels in such waters due to the excessive

retention of nutrient laden biomass.

7. During the nesting season, wood storks feed in various ponds and

wetland areas that surround the rookery. Their primary feeding areas are within

ten miles of the rookery. The proximity of these sites allow the birds to make

several flights per day between the colony and the feeding site, and to do so

with less energy expended than with feeding sites that are farther away.

8. Caloosa's project site is located between the rookery and a primary

feeding area to the north that is within ten miles of the rookery. The

proximity of this feeding area allows the birds to fly low, at tree top level,

to the site, without the use of thermal updrafts that they use to attain

altitudes of up to 5000 feet when traveling greater distances. Thus, if the

tower is built, it would be likely that wood storks would fly in the direction

of, and at the height of, the tower to reach this primary feeding area.

However, it was not established how many such birds actually feed in this nearby

area, or how many fish are in these ponds and wetlands.

9. The wood stork colony at Corkscrew Swamp Sanctuary has been

experiencing a decline in productivity from approximately 6000 nesting pairs in

1960 and 1966, there has been a steady decline in the number of nesting pairs in

the colony, and in 1987, there were no nesting pairs in the colony. During

1988, 750 nesting pairs have been observed. The steady decline in the wood

stork colony population is the result of already existing developmental

pressures and changes in drainage patterns which have adversely affected the

birds' feeding habitats.

10. For nesting to be successful, two adult birds are required per nest

during the nesting season, which usually occurs from November to March. This

allows one adult bird to be away from the nest obtaining food while the other

adult keeps the nest warm and safe from predators. If a nest is left unattended

through the loss of one adult bird, it is likely that the entire nest will be

lost since the fledglings are very vulnerable throughout the nesting season to

predators and changes in temperature. There are usually two or three fledglings

per nest. For this reason, the loss of five adult birds per year, for example,

results in a total loss to the colony of between ten to fifteen fledglings.

This loss compounds each year, as birds lost one year are not available to

reproduce in following years.

11. Generally, transmission towers can pose a hazard to birds due to the

potential for collisions. Illuminating such towers at night does not decrease

this danger since the birds are simply attracted to lights. Strobe lighting has

also been tried, but it appears that birds ignore, or are not deterred, by

strobes. In this case, Caloosa has agreed to accept conditions placed upon the

approval of this project by the Lee County Board of Zoning and Adjustments on

March 16, 1987, which include placement of aircraft warning balls on the guy

wires and the tower itself, habitat improvement including the creation of a

wetland and a wildlife through way, if necessary, and commencement of a

monitoring system to identify any problems with wood stork mortality as soon as

possible.

12. A very extensive study of bird kills and transmission towers was

conducted over a thirty year period involving the WCTV tower in Tallahassee,

Florida. The WCTV tower was found to kill 3.9 wading birds per year on average.

Based in part upon this data, the U.S. Fish and Wildlife Service concluded that

wood stork collisions with the tower will not result in significant mortality,

and an "incidental take" of five wood storks per year should result. This is a

level of mortality which is noteworthy, since any loss to an endangered species

is significant, but is clearly below that which would cause jeopardy to the

species. Although Audubon correctly pointed out that the conditions present in

the WCTV study do not exactly match those present in this case, such as the fact

that there are almost three times as many wading birds in the area of the

Caloosa tower as were in the area of the WCTV tower, as well as the differences

in the geographical relationship of the tower to nearby wading bird colonies and

feeding areas, nevertheless, the WCTV study is relevant and should be considered

by the District since it is the most exhaustive study of its kind ever

conducted.

13. Caloosa presented evidence of a study it conducted over approximately

a one month period in May and June, 1988, of a comparable existing radio tower,

the WHEW tower, located near the subject property to the east. Although

substantial wood stork and other wading bird activity was observed around the

WHEW tower, there were no collisions of wood storks with this 1010 foot high

tower. While not a scientific study in the strictest sense, and although it was

not conducted for as extensive a period as the WCTV study, nevertheless, the

District should consider the WHEW study conducted by Caloosa since it involves a

comparable tower in close proximity to the subject property, and the person who

conducted the study for Caloosa and who testified at hearing, Robert E. Gatton,

appeared particularly credible.

14. The Federal Communications Commission has approved the location of

Caloosa's tower.

I5. The Florida Game and Fresh Water Fish Commission has recommended that

the proposed location for Caloosa's tower be changed to an alternate site which

would present a less serious obstacle to the Corkscrew wood stork nesting colony

and other wading birds. This recommendation is based on the policy that the

mortality of even one wood stork is too much and may present a danger to the

population of the wood stork rookery. It was not shown, however, that a basis

in fact exists for concluding that the loss of five or fewer wood storks per

year would present such a danger. The Commission's recommendation is also based

upon a concern that transmission towers will proliferate in the area, and

thereby further interfere with the flight paths of wood storks and other wading

birds to their feeding locations. However, the fact that Caloosa is seeking to

construct a "community tower" to be shared with several governmental agencies,

as well as broadcasting stations, will actually serve to decrease this potential

proliferation.

16. While there is a potential for wood storks or other wading birds in

the area to be killed or injured by striking Caloosa's tower or the guy wires

while in flight, the extent of this danger is speculative, but would not appear

to exceed five wood storks per year. Under these circumstances, there would not

be a significant threat to the population, or continued viability, of the

Corkscrew rookery.

17. It has not been shown, by the evidence in this record, that any loss

of wood storks and other wading birds caused by this project will result in fish

kills through a significant reduction of predation and the resulting failure to

remove accumulated biomass in ponds and waters in the area. It was not

demonstrated that a fish kill will, or is even likely, to occur. While the loss

of five wood storks would result in a certain amount of biomass not being

removed from the area's wetlands, nothing in the record suggests that this

amount will have an adverse impact on the state's water resources or will

otherwise be significant. Therefore, any relationship between the tower

proposed by Caloosa and impacts associated with biomass accumulation is purely

speculative and de minimis.

18. Fish kills occur naturally as water levels in seasonal marshes and

ponds lower in the dry season. The water quality impact of such kills is

relatively short-lived, lasting up to two months or until the next wet season

begins, at which time water quality parameters return to normal.

19. The evidence produced at hearing does not establish that the project

and its surface water management system will have any significant or measurable

effect on drainage of surface water runoff from the subject property, or on

adjacent properties. The drainage system proposed by Caloosa will utilize the

existing ditches and the natural cypress pond on the property. It was

established that the post-construction effect of the project on drainage would

be insignificant. There are, therefore, no drainage impacts associated with

this project.

CONCLUSIONS OF LAW

20. The Division of Administrative Hearings has jurisdiction over the

parties, and the subject matter in this cause. Section 120.57(1), Florida

Statutes. The party seeking a permit has the burden of proving entitlement by a

preponderance of the evidence. Florida Department of Transportation v. J.W.C.

Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Therefore, in this case, Caloosa

bears the ultimate burden of proof.

21. Section 373.413(1), Florida Statutes, confers upon the District the

authority to issue surface water management permits for the construction of

"works" which will not be harmful to the water resources of the District. The

terms "works" is defined by Section 373.403(5), Florida Statutes, to include all

artificial structures placed in or across the waters of the state. By

definition, a surface water management system includes "works" as defined in

Section 373.403(5). Since the tower and guy wires which are an integral part of

Caloosa's project will be placed across one end of the cypress wetland located

on the subject property, Audubon argues that the entire project is a "works",

which is subject to the permitting jurisdiction of the District. Caloosa urges,

supported by the District, that in order for any artificial structure or

collection of devices to constitute a surface water management system, it must

control, impound, or obstruct surface waters. Rule 40E-4.021(5), Florida

Administrative Code. Since the project, and particularly the tower and guy

wires, do not control, impound or obstruct surface waters, they maintain these

artificial structures do not constitute a surface water management system, and

are therefore not subject to the District's permitting authority.

22. While it is well-settled that great deference should be given to an

agency's interpretation of its own statute and rules, the plain meaning of the

words used in these enactments cannot be ignored. Public Employees Relations

Commission v. Dade County Police Benevolent Association, 467 So.2d 987,989 (Fla.

1985); Department of Environmental Regulation v. Goldring , 477 So.2d 532 (Fla.

1984); Kearse v. Department of Health and Rehabilitative Services, 474 So.2d 819

(Fla. 1st DCA 1985); Gadsden State Rank v. Lewis, 348 So.2d 343, 345 at n. 2

(Fla. 1st DCA 1977). The plain meaning of the words used by the District in

Rule 40-4.021(5) is that the term being defined therein, surface water

management system, includes "works" as defined in Section 373.403(5). The fact

that Rule 40E-4.021(5) contains preceding language which includes within the

definition devices which control, impound or obstruct surface waters, does not

limit the specific statement in the rule whereby the term, surface water

management system, is stated clearly and without reservation to include "works."

23. The project under review, including the tower and guy wires which are

an integral part thereof, are therefore "works" within the statutory definition

found at Section 373.403(5), because they are comprised of artificial structures

placed, in part, across the waters in the state. As such, Caloosa's project is

subject to the permitting jurisdiction of the District since it includes "works"

and is, therefore, a surface water management system. This conclusion is

consistent with, although not dependent upon, statements of public policy

contained in statute, rule and judicial decision which recognize and establish

that the District's responsibilities include the preservation of the State's

natural resources, fish and wildlife, as well as insuring that permits which it

grants will not result in adverse environmental impacts. Section 373.016(2)(e),

Florida Statutes; Rule 40E-4.301(1), Florida Administrative Code; Challancin v.

Florida Land and Water Adjudicatory Commission, 515 So.2d 1288 (Fla. 4th DCA

1988) ; Governor's Executive Order 88-25.

24. Having determined that Caloosa's project is subject to the District's

permitting jurisdiction, the evidence produced at hearing has been considered

against the permit conditions set forth in Rule 40E-4.301, Florida

Administrative Code. The District supports the issuance of this permit, and

therefore at hearing, Caloosa and the District initially presented a prima facie

case which was followed by Audubon's case in chief raising specific concerns

about this project, to which Caloosa then offered rebuttal evidence. Florida

Department of Transportation v. J.W.C. Co., Inc., supra at 789. It is clear

from the record of this case that Caloosa has provided "reasonable assurances"

that its surface water management system will meet the permitting criteria of

the District.

25. It has been shown that the project provides adequate flood protection

and drainage since there is no evidence that the project will in any way alter

existing drainage on the subject property in any adverse manner. Although

Audubon attempted to establish that the project will cause adverse water quality

through a significant reduction of wading birds, and a resulting decrease in

predation, Audubon did not establish the causal link between this project and

significant wading bird destruction from collisions with the tower. It was not

shown that there was any reasonable likelihood that the wood stork colony at

Corkscrew Swamp Sanctuary would be reduced to any significant extent from

collisions with the tower or guy wires. All indications were speculative, but

in any event the conclusion drawn is that if five wood storks are lost per year

through collisions, and this results in the annual loss of ten to fifteen

fledglings, this would still not represent a significant threat to the continued

viability of the rookery. It was not, however, established that five wood

storks would, in fact, collide with the tower and guy wires per year. This

project has not been shown to be inconsistent with public policy, nor to be

harmful to the water resources of the District. No adverse environmental

impacts will result, and there will not be any adverse impacts on surface and

groundwater levels and flows. Therefore, reasonable assurances have been given

that this project is consistent with the conditions for issuance of a surface

water management permit by the District, which are set forth in Rule 40E-4.301.

RECOMMENDATION

Based upon the foregoing, it is recommended that the District enter a Final

Order approving Caloosa's application for surface water management permit number

09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by

the Lee County Board of Zoning and Adjustment in its approval of this proposed

development.

DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon

County, Florida.

___________________________________

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of August, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578

Rulings on Audubon's Proposed Findings of Fact:

1. Adopted in Findings of Fact 1, 3.

2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a

conclusion of law rather than a finding of fact.

4-5. Adopted in Finding of Fact 5, but otherwise Rejected as

unnecessary, irrelevant and as a summation of testimony.

6. Adopted in Finding of Fact 2.

7-8. Adopted in Finding of Fact 7.

9- 10 Adopted in Finding of Fact 8.

11. Adopted in Finding of Fact 11.

12-15. Adopted and Rejected, in part, in Finding of Fact 12.

16. Adopted in Findings of Fact 8, 10, but otherwise Rejected

as irrelevant and unnecessary.

17. Adopted in Finding of Fact 9.

18. Adopted in Findings of Fact 10, 12, but otherwise

Rejected as cumulative and as argument on the evidence.

19. Rejected in Finding of Fact 13, and otherwise as simply

a summation of the testimony and argument on the

evidence.

20-21. Adopted in Finding of Fact 6.

22-23. Rejected in Findings of Fact 15-17.

24. Adopted in Finding of Fact 15.

Rulings on Caloosa's Proposed Findings of Fact:

1. Adopted in Findings of Fact 1, 2.

2. Adopted in Finding of Fact 4.

3. Adopted in Finding of Fact 13.

4. Adopted in Finding of Fact 1.

5. Adopted In Finding of Fact 5.

6. Adopted in Finding of Fact 19.

7. Adopted in Finding of Fact 5, but otherwise Rejected as

a conclusion of law and as simply a summation of

testimony.

8. Adopted in Finding of Fact 16.

9-10. Adopted in Finding of Fact 12.

11. Adopted in Findings of Fact 12, 13.

12. Adopted in Finding of Fact 11.

13. Adopted in Findings of Fact 4, 15.

14. Adopted in Finding of Fact 6.

15-16. Adopted in Finding of Fact 17.

17. Adopted in Finding of Fact 18, but otherwise Rejected as

irrelevant and as cumulative.

Rulings on the District's Proposed Findings of Fact:

1-2. Adopted in Finding-of Fact I.

3. Adopted in Finding of Fact 2.

4-5. Adopted in Finding of Fact 3.

6. Adopted in Finding of Fact 4.

7. Adopted in Finding of Fact 3.

8. Adopted in Finding of Fact 8.

9. Adopted in Findings of Fact 12, 14, 16.

10. Adopted in Finding of Fact 12.

11. Adopted in Finding of Fact 13.

12. Adopted in Finding of Fact 16.

13. Adopted in Finding of Fact 15.

14. Adopted in Finding of Fact 11.

15. Rejected as irrelevant.

16. Adopted in Finding of Fact 11.

17. Adopted in Finding of Fact 6.

18-19. Adopted in Finding of Fact 5.

COPIES FURNISHED:

Charles Lee

Senior Vice President

Florida Audubon Society

1101 Audubon Way

Maitland, Florida 32751

Russell P. Schropp, Esquire

Post Office Box 280

Fort Myers, Florida 33902

James K. Sturgis, Esquire

Post Office Box 24680

West Palm Beach, Florida 33416

John R. Wodraska

Executive Director

South Florida Water Management District

Post Office Box 24680

West Palm Beach, Florida 33416

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AUDUBON SOCIETY and

NATIONAL AUDUBON SOCIETY,

Petitioners,

v. CASE NO. 87-5578

RUSSELL E. and MARILYN F. SCOTT,

CALOOSA TELEVISION CORP., and

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT,

Respondents.

___________________________________/

FINAL ORDER

The Hearing Officer's Recommended order came to be heard before the

Governing Board of the South Florida Water Management District (District) at its

Regulatory meeting on October 6, 1988. Petitioners, Florida Audubon Society and

National Audubon Society, were represented by Charles Lee; respondents Russell

E. and Marilyn F. Scott, and Caloosa Television Corporation were represented by

Attorney Russell Schropp; and the District was represented by Attorney James

Sturgis.

The Governing Board considered the Findings of Fact, Conclusions of Law,

and Recommended Order of the Hearing Officer dated August 29, 1988; petitioners'

Exceptions To Findings Of Fact, Conclusions Of Law, And Recommended Order filed

with the District on September 12, 1988; the District's Exceptions To

Recommended Order Regarding Jurisdiction filed on September 16, 1988; Caloosa

Television Corporation's Exceptions To Recommended Order filed September 16,

1988; District's Response To Exceptions Filed By Petitioners filed on September

27, 1988 and District's Response To Exceptions Filed By Respondent, Caloosa

Television Corporation filed September 28, 1988. Because exceptions to the

Hearing Officer's Findings of Fact have been filed by the petitioners, the

Governing Board members were furnished a complete transcript of the hearing of

this matter, and each Governing Board member reviewed the transcript.

STATEMENT OF THE ISSUES

As stated by the Hearing Officer the issue in this case is whether the

District should issue a surface water management permit to Russell E. and

Marilyn F. Scott, and Caloosa Television Corporation for the construction and

operation of a surface water management system to serve a television signal

tower and control building in Southeast Lee County, Florida. There are no

significant water resource impacts related to the management of surface water by

the proposed project. The harm at issue in this case is the potential for wood

storks and other wading to strike the tower and guy wires which are not

structures related to management and storage of waters. The parties disagree as

to whether the District has jurisdiction to consider the bird impacts related to

collisions with the tower and guy wires, and if so, whether the tower and guy

wires will have a significant adverse impact on the water resources of the state

through a reduction of wood storks, an endangered species, and other wading

birds which through feeding on fish remove biomass from such water, thereby

maintaining water quality. In determining jurisdiction in this case, the

parties disagree on the meaning of "works" and "surface water management system"

as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that

since one set of guy wires will be placed across one end of the cypress wetland

located on the subject property, the entire project including the guy wire and

tower is a "works" and part of the surface water management system, which is

subject to the permitting jurisdiction of the District. The District and

respondent Caloosa Television Corporation contend that the tower and guy wires

are not structures related to surface water management and are not "works" nor

part of the surface water management system, and therefore, bird mortality, as a

result of hitting the tower and guy wires, is not subject to the permitting

jurisdiction of the District.

FINDINGS ON EXCEPTIONS

At the Governing Board meeting of October 6, 1988, the petitioners waived

Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of

Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact

exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to

Conclusions of Law of the Recommended Order are rejected as set forth in the

District's Response To Exceptions Filed by Petitioners filed on September 27,

1988, and attached hereto as Exhibit B and made part of this Final Order.

The Governing Board accepts the exceptions filed by the District and the

respondent, Caloosa Television Corporation, as set forth herein under

Conclusions of Law.

FINDINGS OF FACT

The District adopts as part of its Final Order thy Hearing Officer's

Findings of Fact as set forth in the Recommended Order, attached hereto as

Exhibit A and made a part of this Final Order.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction over the parties,

and the subject matter in this cause. Section 120.57(1), F.S. The party

seeking a permit has the burden of proving entitlement by a preponderance of the

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

778 (Fla. 1st DCA 1981). Therefore, in this case, Caloosa bears the ultimate

burden of proof.

The District's authority to manage surface waters is governed by Part IV,

Management and Storage of Surface Waters, Chapter 373, F.S. Subsection

373.413(1), F.S., states:

Except for the exemptions set forth herein,

the Governing Board or the Department may

require such permits and impose such

reasonable conditions as are necessary to

assure that the construction or alteration of

any dam, impoundment, reservoir, appurtenant

work, or works will not be harmful to the

water resources of the District. The

Department or the Governing Board may

delineate areas within the District wherein

permits may be required. ( emphasis added).

The District has adopted rules and criteria contained in Chapter 40E-4,

F.A.C., to implement Part IV, Chapter 373, F.S., relating to manage and storage

of surface waters. In order to obtain a surface water management permit, the

surface water management system is required to meet the conditions set forth in

Rule 40E-4.301, F.A.C.

Surface water management system is defined in Rule 40E-4.021(5), F.A.C. as:

the collection of devices improvement or

natural systems whereby surface waters are

controlled, impounded, or obstructed. The

term includes dams, impoundments, reservoir,

appurtenant works and works as defined in

subsection 373.403(1)-(5), F.S. (emphasis

added)

There is no dispute that the tower and guy wires are not a dam, appurtenant

work, impoundment, or a reservoir as defined by subsections 373.403(1)-(4), F.S.

The only issue is whether the tower and guy wires are works as defined in

section 373.403, F.S., and included in Rule 40E.021(5), F.A.C. Subsection

373.403(5), F.S., states:

"works" means all artificial structures,

including, but not limited to, ditches,

canals, conduits, channels, culverts, pipes,

and other construction that connects to, and

draws water from, drains water into, or is

placed in or across the waters in the state.

The Hearing Officer concludes that the guy wires and tower are works since

they are artificial structures and cross above the western edge of the on-site

cypress wetland. The District disagrees based upon the doctrine of ejusdem

generis.

Under the doctrine of ejusdem generis, where general words follow the

numeration of specific things, the general words will be construed to refer to

the things of the same general nature or class of those enumerated, unless an

intention to the contrary is clearly shown Soverino v. State 356 So.2d 269 (Fla.

1978); Arnold v. Shumpert 217 So.2d (Fla. 1968); Mayo v. City of Sarasota, 503

So.2d 347 (Fla. 2nd DCA 1987). Application of this doctrine to subsection

373.403(S), F.S., results in "artificial structures" being limited to the class

of surface water management structures enumerated in subsection 373.403(5), F.S.

"Ditches, canals, conduits, channels, culverts, and pipes" denote a class of

surface water management structures which controls surface waters. Guy wires

and towers are not in this class of surface water management structures.

Furthermore, this interpretation of "works" would be consistent with the

definitions contained in subsections 373.403(1) through (4), F.S., which also

specify classes of surface water management related structures.

The District's interpretation of subsection 373.403(5), F.S., is consistent

with the way "works" is incorporated in Rule 40E-4.021(S), F.A.C., and makes

that rule meaningful in all its parts. Rule 40E-4.021(5), F.A.C., defines

surface water management system as the collection of devices, improvement or

natural systems whereby surface waters are controlled, impounded, or obstructed.

Rule 40E-4.021(5), F.A.C., specifically includes "works" (as defined by

subsection 373.403(5), F.S.) as part of the surface water management system.

"Works" is a logical subset of the surface water management system, since it

denotes a, class of structures related to surface water management.

The District staff charged with implementing Part IV, Management and

Storage of Surface Waters, Chapter 373, F.S., has determined that the guy wire

crossing above the wetland is not part of the surface water management system as

defined in Rule 40E-4.021(5), F.A.C. Great deference should be given to an

agency interpretation of its own statute and rules as long as that

interpretation is consistent with legislative intent. Public Employees

Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987

(Fla. 1985); Department of Environmental Regulation v Goldring, 477 So.2d 532

(Fla. 1984); Kearse v. Department of Health and Rehabilitative Services, 474

So.2d 819 (Fla. 1st DCA 1985).

The District's interpretation of subsection 373.403(5), F.S., and Rule 40E-

4.021(5), F.A.C., is consistent with the intent of Part IV which is to regulate

the management and storage of surface waters to prevent harm to the water

resources of the state including wildlife and fish. The District's

interpretation of its statutes and rules does not prevent the District from

vigorously regulating management and Storage of surface waters in order to

preserve the state's natural resources including fish and wildlife in accordance

with Chapter 373, F.S., and Governor's Executive Order 88-25. Furthermore, it

is undisputed that in this case there is no harm related to the management and

storage of surface water permitted by the subject application. However, the

District's interpretation is not so broad as to give the District jurisdiction

over the impacts of bird mortality resulting from collisions with guy wires

which are non-surface water management structures and have no impact on the

proposed surface water management system.

The Hearing Officer determined that the guy wires and tower were part of

the surface water management system so that the District did have jurisdiction

over the impacts of bird mortality resulting from collisions with the tower and

guy wires. The Hearing Officer considered the evidence produced at the hearing

on the bird mortality and determined that the applicant has provided reasonable

assurances that the surface water management system (including the tower and guy

wires) will meet the permitting criteria of the District set forth in Rule 40E-

4.301, F.A.C. The District adopts this conclusion of the Hearing Officer as set

forth on pages 13 through 15 of the Recommended Order. Therefore, even if the

District does have jurisdiction over the impacts resulting from bird collisions

with the tower and guy wires, the applicant has given reasonable assurances that

the project will not be harmful to the water resources of the District and meets

the conditions for issuance set forth in Rule 40E-4.301, F.A.C.

ORDER

NOW THEREFORE, it is ORDERED that:

The Governing Board Orders the issuance of the subject surface water

management permit, Application No. 09147-B, subject to the conditions, agreed to

by Caloosa during the hearing, which were imposed by the Lee County Board of

Zoning and Adjustments in its approval of this proposed development.

DONE and ORDERED this 6th day October, 1988 at a public meeting held at

West Palm Beach, Florida.

SOUTH FLORIDA WATER

MANAGEMENT DISTRICT

_______________________________

Chairman

ATTEST:

_______________________________

Secretary

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been furnished to

Charles Lee, Senior Vice President, Florida Audubon Society, 1101 Audubon Way,

Maitland, Florida 32751, and Russell P. Schropp, Esquire, Henderson, Franklin,

Starnes, & Holt, P.A., Post Office Box 280, Ft. Myers, Florida 33902-0280, by

U.S. Mail this 10th day of October, 1988.

_______________________________

JAMES K. STURGIS

FILED WITH THE CLERK OF THE SOUTH

FLORIDA WATER MANAGEMENT DISTRICT

10-10-88

_______________________________

DEPUTY CLERK