89-004315 Northwest Florida Water Management District vs. Dogwood Lakes Homeowners Association Status: Closed Recommended Order on Tuesday, July 10, 1990.

Summary: Dam case; dangerous dam ordered repaired by owners; although district can fix and place lien on property, it can't collect because land is valueless.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 89-4315

)

BEN CAMPEN, JACK MAITLAND, )

KEVIN O'SULLIVAN, SHEILA )

WALKER, THE DOGWOOD LAKES )

HOMEOWNER'S ASSOCIATION, AND )

HOLMES COUNTY, FLORIDA, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on February 15 and 16, 1990 in

Bonifay, Florida, by Stephen F. Dean, Hearing Officer, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Gary J. Anton, Esq.

Stowell, Anton & Kraemer

P.O. Box 11059

Tallahassee, Florida 32302

For Respondents: Gerald Holley, Esq.

P.O. Box 268

Chipley, Florida 32428

Jack Faircloth and Jack Libolt,

Lay Persons

Office of the Property Appraiser

Holmes County Courthouse

201 North Oklahoma Street

Bonifay, FL 32425

STATEMENT OF THE ISSUES

Who are the owners of the two dams in question?

Are there structural deficiencies in the two dams that render them unsafe,

and what repairs and improvements should be required?

What are the steps and methods by which the deficiencies should be

corrected, and who should make the corrections?

Is the breaching of the two dams, as urged by the Northwest Florida Water

Management District, an appropriate remedy?

BACKGROUND

This cause arose out of the filing of an Administrative Complaint/Notice of

Violation and Order by the Northwest Florida Water Management District dated

March 14, 1989 against Respondents, Ben Campen, Jack Maitland, Kevin O'Sullivan,

Sheila Walker, and the Dogwood Lakes Homeowner's Association. The Administrative

Complaint alleged that certain deficiencies existed in two dams and their

appurtenant works located in Holmes County, Florida, within the Dogwood Lakes

subdivision. The Administrative Complaint alleged that the Respondents owned,

controlled or had a beneficial interest in the properties, including the

impoundments and dams, and ordered the Respondents to take corrective actions to

repair the deficiencies. The Administrative Complaint further provided that, if

the Respondents failed to act, the District would consider the dams to be

abandoned and would breach the dams and drain the impoundments in order to

eliminate the hazards to downstream property owners.

The Administrative Complaint was filed pursuant to the provisions of

Chapter 373, Florida Statutes, including, but not limited to, Sections 373.119,

373.404, 373.416, 373.423, 373.433, 373.436, and 373.439, as well as the

provisions of Chapter 40A-4, Florida Administrative Code, including Rules 40A-

4.011, 40A- 4.041, 40A-4.461, and 40A-4.481.

On April 3, 1989, the District received from the Dogwood Lakes Homeowner's

Association (hereinafter "Association"), a response to the Administrative

Complaint. The Association's response generally denied the allegations of the

Administrative Complaint and requested a formal administrative hearing. On May

11, 1989, the District entered its order denying the request for hearing without

prejudice and with leave to amend on the ground that the response did not

adequately explain how Respondent's substantial interests would be affected by

the District's proposed action. The order allowed the Association 60 days

within which to submit a more detailed request which would comply with Rule 40A-

1.521, F.A.C., pertaining to requests for formal administrative proceedings. On

July 10, 1989, the District received the Association's amended request for

hearing which again denied the allegations of deficiencies in the dams and again

requested a formal administrative hearing.

On August 3, 1989, the District entered its order granting the request for

formal administrative hearing and referred the matter to the Division of

Administrative Hearings.

On November 6, 1989, the District served its motion to join Holmes County,

Florida, and to amend the Administrative Complaint. Holmes County did not

object to the amendment. On November 13, 1989, an order was entered permitting

the joinder for Holmes County and the filing of the Amended Administrative

Complaint. On November 21, 1990, Holmes County submitted its response to the

Amended Administrative Complaint which denied any ownership interest in the dam

and generally denied the allegations of the deficiencies in the operation and

maintenance of the dams.

A duly-noticed final hearing was held on February 15 and 16, 1990, in the

Holmes County Courthouse in Bonifay, Florida. Respondents, Campen, Maitland,

O'Sullivan, and Walker did not appear or participate in the final hearing. At

the commencement of the hearing, the District stated its intent to dismiss the

Administrative Complaint against Respondent, Walker, based upon the evidence

obtained during discovery. Ms. Walker was dismissed without objection from the

other participating Respondents.

In support of its position, the District presented the testimony of Mr.

Fernando Recio (Recio), Richard J. Musgrove (Musgrove), P. E., Lance Laird

(Laird), E. I., Donald Esry (Esry), P. E., Carolyn Whitehurst, and Melvin

Rhodes. Messrs. Musgrove, Laird, and Esry were accepted as experts in their

respective fields. The District also submitted Petitioner's Exhibits 1 through

18 which were received in evidence without objection. The Association presented

the testimony of Musgrove and Curtis P. Majors, who was accepted as an expert in

real estate appraisals. The Association did not tender any exhibits. Holmes

County did not present any independent witnesses or submit any exhibits.

The Hearing Officer called as his witness, Jack Faircloth, who also serves

as the Holmes County Property Appraiser. The Hearing Officer also permitted and

received public comment from Ms. Wynona Lewis, Robert Moore, Carolyn Whitehurst,

and Louise Schriefer.

A transcript was filed on May 4, 1990 and Proposed Findings of Fact were

filed on May 23, 1990 by the District and on May 25, 1990 by the County. The

Association filed a letter on May 24, 1990 setting forth the assertions

regarding ownership of the property based upon post hearing research which was

disregarded as being outside the record. The Proposed Findings of Fact were

received and considered. The Appendix attached hereto and by reference made a

part hereof sets forth those findings which were adopted and those which were

rejected and why.

FINDINGS OF FACT

1. The Complainant, Northwest Florida Water Management District

(hereinafter "District"), is a public agency authorized by and operating

pursuant to Chapter 373, Florida Statutes, and Chapter 40A, Florida

Administrative Code, with it headquarters located in Gadsden County, Florida.

2. In approximately 1962, two earthen dams were constructed in what is

known as the Dogwood Lakes Subdivision located in Holmes County, Florida

(Petitioner's Exhibit 11 at p. 5; Esry, T at 230). An inspection in 1983

revealed that there were serious deficiencies in the maintenance of these dams

and their appurtenances.

3. The District has undertaken various title searches prior to the hearing

to determine ownership of the two dams; however, ownership of the dams could not

be determined due to conflicting claims. The District noticed all those persons

who had an ownership interest or potential interest in the dams. The District

also notified Holmes County and the Dogwood Lakes Homeowners Association (Recio,

T 61-62).

4. Respondent, The Dogwood Lakes Homeowner's Association, is a voluntary

association of property owners in the Dogwood Lakes subdivision. The

Association does not claim title ownership to either of the dams or the lakes;

however, the Association claims a beneficial interest in the impoundments, which

its members use for recreational purposes, and an interest in maintaining the

lakes, which substantially enhance the value of the property within the Dogwood

Lakes subdivision, particularly the property surrounding the two lakes.

5. The dams, lakes, and property surrounding the lakes are within Holmes

County, Florida (hereinafter "County"), which was noticed and made a Respondent

in this case. Holmes County has expressed concern that removal of the dam could

result in lower tax assessments for the properties surrounding the lakes (see,

e.g., County's response to Amended Administrative Complaint). The road running

along the top of the dam, Sherwood Drive, has not been dedicated to or accepted

by the County for maintenance. The County does not have an ownership interest

in the dam.

6. Deeds received in evidence as Petitioner's Exhibits 1 and 2 reveal that

Respondent, Ben Campen, may own the bottom of all existing lakes, and easements

for roadways, water lines, utilities and other ingress and egress to the golf

courses, lakes, ponds and waterways (Petitioner's Exhibits 1 and 2).

7. Petitioner's Composite Exhibit 3 reveals that Respondent, John

Maitland, owns a significant portion of the undeveloped lands, including the

northerly right-of-way line of Sherwood Drive and Parcel 10, which includes much

of dam number 1. The evidence further shows that Respondent, Maitland, owns

Parcel 17, which includes the westerly edge of dam number 2 (Petitioner's

Exhibit 3).

8. Respondent, O'Sullivan, admitted in Answers to Interrogatories that he

owns the two lake bottoms at Dogwood Lakes (Petitioner's Exhibit 4, answer to

interrogatory numbers 2 and 12).

9. Respondents, Ben Campen, Jack Maitland, and Kevin O'Sullivan, have

ownership claims to all or portions of the two dams. While the County and the

Association have interests sufficient to permit them to be heard in this matter,

they do not have any ownership interests. No other persons have asserted claims

of ownership of the dams (Recio T, 65-66 and 68).

10. The two dams, designated dam number 1 and dam number 2, were designed

in 1960 and 1961 by the Soil and Conservation Services as low-risk facilities

for agricultural purposes which assumes no downstream hazards and only

agricultural runoff from the watershed (Musgrove, T at 93 and 95; Esry, T at

229-230; Petitioner's Exhibit 10). Agricultural runoff coefficients were used

in designing the dams based upon the agricultural use of the surrounding

property (Esry T at 220 & 238-39), and the dams were built prior to significant

development around the lakes or below the dams.

11. Dam number 1, the larger of the two dams, is constructed of earthen

materials and is 800 feet long, 29.5 feet high, 21 feet wide at the crest, and

190 feet wide at the base (Musgrove, T 96-97). Dam number 1 impounds a 49-acre

lake (Petitioner's Exhibit 11 at page 14), which lake contains 372 acre feet of

water impounded at the normal lake level and 468 acre feet at flood storage

capacity (Musgrove, T at 116).

12. The principal spillway for dam number 1 consisted of an 18-inch

corrugated metal pipe (CMP) riser with a 15-inch CMP barrel running through the

base of the dam which discharged at the back slope (Musgrove T 97; Petitioner's

Exhibit 11 at p. 16). The initial design of the principal spillway called for

asphalt-coated pipe to be used, but little or no coating was used on the pipe

(Petitioner's Exhibit 11 at p. 16).

13. The emergency spillway for dam number 1 is a natural outlet designed

to provide flow over a 10 0-foot wide area along the northeastern side of

impoundment for dam number 1 (Petitioner's Exhibit 11 at p. 20; Musgrove, T at

98).

14. Sherwood Drive, the major access road through the Dogwood Lakes

subdivision, runs the entire length of dam number 1 (Musgrove, T at 99). Local

traffic, including school buses, use this road.

15. The smaller of the two dams, dam number 2, is 700 feet long, 21.5 feet

high, 14 feet wide at the crest, and 150 feet wide at the base (Musgrove, T at

97). Dam number 2 impounds an 18-acre lake (Petitioner's Exhibit 11 at p. 23)

which contains 82 acre feet of water at the normal pool level and 109 acre feet

of water at the flood storage level (Musgrove, T at 116).

16. The principal spillway for dam number 2 consists of an 18-inch CMP

riser and a 12-inch CMP barrel. Dam number 2 does not have an emergency

spillway but discharges excess water through a canal, which connects lake number

2 with lake number 1, and out its emergency spillway (Musgrove, T at 98;

Petitioner's Exhibit 11 at p. 26).

17. The principal spillway components for both dams (riser and discharge

barrel) had a design-useful life of 20 to 25 years (Esry T at 230).

18. Over the years, neither dam nor its control mechanisms have been

maintained properly. Both dams have trees and other woody vegetation growing on

the front and back slopes of the dams (Esry T at 237, 241, and 244; Musgrove T

at 125 and 133)

19. The development of the Dogwood Lakes subdivision, including

construction of houses, streets, and a golf course around the subject lakes,

changed the nature of the land use from agricultural to residential (Musgrove T

at 25 and 98).

20. There are three permanent residences located below and within the

flood plain of dam number 1 (Musgrove T at 114, Petitioner's Exhibit 13; Carolyn

Whitehurst, T at 254-255; Melvin Rhodes T 261-263).

21. Melvin Rhodes lives approximately 800 feet downstream of dam number 1

and resides there on a permanent basis with his family, including his two young

children, ages 2 and 4 (Rhodes, T at 261-262).

22. In approximately September of 1982, the principal spillway for dam

number 1 failed causing an uncontrolled release of water. Respondent,

O'Sullivan, attempted to repair the spillway mechanism but in the process,

irreparably damaged the principal spillway (Musgrove, T at 120). The discharge

barrel in dam number 1 was plugged to prevent a continued, uncontrolled release

of water (Musgrove, T at 105-106). Plugging the discharge barrel caused the

couplings of the corrugated pipe to blow out, creating multiple leaks deep in

the dam (Musgrove, T at 107-109). The principal spillway for dam number 1 is no

longer operational as a result of failures and unpermitted attempts to repair

the spillway in 1982 (Musgrove T at 105-106).

23. Respondent, O'Sullivan, subsequently attempted unpermitted repairs to

the principal spillway by excavating down to and crushing the discharge barrel,

removing the riser pipe and refilling the entire area with earth materials

covered with a layer of bentonite, a low permeability clay or water sealant, to

prevent any further flow through the discharge barrel (Musgrove, T 122-123).

24. The blowout in the principal spillway for dam number 1 further caused

the out fall of the discharge barrel to fall 5 feet from its originally designed

and constructed height (invert elevation) (Musgrove T at 122).

25. The blowout of the discharge barrel has resulted in erosion on the

back slope, water seepage through the dam, and infiltration of the earthen

embankment materials through the discharge barrel (Musgrove, T 126-128).

26. The emergency spillway for dam number 1 has not been maintained and

has trees and other growth which restricts the flow of water (Petitioner's

Exhibit 11 at p. 20).

27. The principal spillway for dam number 2 is also inoperable because it

is plugged with debris and material, including concrete (Musgrove, T at 138).

28. Water seepage through dam number 2 has also been noted in its back

slope (Musgrove, T 138-139).

29. In March, 1983, the District was called out to the Dogwood Lakes

subdivision because of extremely high water within the two lakes which has

inundated yards and caused septic tanks to back up (Musgrove, T 104-106). The

high-water levels had been caused by the plugging and damage to the two

principal spillways of both dams (Musgrove T 104-105).

30. Attempts by the District to have Respondent, O'Sullivan, submit a

permit application to make the necessary repairs was unsuccessful (Petitioner's

Exhibit 11 at p. 11-12).

31. The District made emergency repairs to dam number 2 during the period

of May 4 through 25, 1983, by installing eight-inch siphons to draw down the

water levels (Petitioner's Exhibit 11 at p. 12-13).

32. In June and July, 1983, the District made emergency repairs to dam

number 1 by installing 2 eight-inch PVC pipes through the dam, across and under

Sherwood Drive, to provide a temporary spillway to control the lake level

(Petitioner's Exhibit 11 at page 13).

33. On October 10, 1983, District officials again met with directors of

the Association in Marianna, Florida, to discuss the situation involving the

dams and to make recommendations to the Association on how to repair the dams

(Recio, T 64-66; Petitioner's Exhibit 7).

34. On August 8, 1984, officials of the District again met at the Dogwood

Lakes clubhouse with directors of the Association to discuss the continuing

problems of the lakes and dams and to arrive at some solution thereto

(Petitioner's Exhibit 11 at p. 13; Petitioner's Exhibit 6; Recio T 63-64).

35. While no permanent solution was reached at the August 1984 meeting,

the Association's directors agreed that a control breach in dam number 2 was

necessary as a temporary measure to relieve flood pressure on the dam. The

control breach was constructed in September of 1984 (Recio, T at 60;

Petitioner's Exhibit 11 at p. 13-14; Petitioner's Exhibit 6; Musgrove, T at

135).

36. The temporary measures, including the control breach in the dam number

2 and the 2 eight-inch PVC pipes constructed under dam number 1, are not

permanent in nature and do not obviate the need to repair either dam (Musgrove,

T 143- 144)

37. The District follows the engineering standards set forth in the

National Dam Safety Standards Program, as promulgated by the Army Corps of

Engineers in conjunction with Public Law 92-367. These standards are also

followed by the Bureau of Reclamation, the Federal Emergency Management Agency

(FEMA) and the Soil Conservation Service (Musgrove, T 99-104).

38. The standards used by the District also establish hazard criteria,

promulgated by the Federal Dam Safety Program, which establishes hazard classes

for the various different sizes of dams and incorporates acceptable hydraulics

and spillway capacities for dams. These standards are found in the reference

book, Design of Small Dams by the Bureau of Reclamation, Department of Interior,

Third Edition, as well as the textbook, Safety of Small Dams, compiled by the

American Society of Civil Engineers (Musgrove, T 102-104).

39. The application of these standards was supported by the expert

testimony of the District's experts, who established that these standards are

reasonable. The principal spillways for both dams are undersized, according to

these standards.

40. Dam number 1 does not comply with the applicable engineering and

design standards for dam safety and is a threat to public health, safety and

welfare because:

a. The principal spillway is totally inoperable;

b. Damage has occurred to the principal spillway

barrel via the plugging of the pipe and the

erosion and water seepage along the backslope,

including the disjointing of the pipes;

c. The discharge barrel downstream of the principal

spillway has been crushed;

d. The principal spillway pipe has outlived its

design-useful life;

e. The principal spillway is undersized for the

present runoff conditions of the developed

watershed;

f. There is a significant growth of trees on the

front and backslopes; and

g. Lack of maintenance on the emergency spillway has

resulted in the growth of woody vegetation and

trees which constricts the normal emergency

outflow;

41. Under the applicable design and safety criteria, dam number 2 is

unsafe and presents a risk to the health, safety and welfare of the public

because:

a. The principal spillway has been plugged and closed

off;

b. There is no emergency spillway;

cees are growing on the backslopes;

d. There has been limited or no maintenance of the

dam;

e. The components of the principal spillway have

exceeded their design-useful life; and

f. Water seepage is occurring in the dam.

42. In order to bring dams 1 and 2 up to proper standards and render them

safe, the following must be undertaken:

a. The existing principal spillway components for dam

number 1 must be removed and replaced with a 120-

inch CMP riser and 60-inch CMP barrel;

alternatively

b. The owners or interested persons must submit

engineering design specifications to complete

remedial repairs and alterations of the dam and

its appurtenant works to the Districts;

c. The trees and woody vegetation, including all root

systems, must be properly removed from the front

and back slopes of both dams;

d. All root systems must be fully removed, voids

refilled with like materials and properly

compacted. Side slopes of the dam should be

graded to design conditions (3:1 slopes) and all

disturbed areas must be mulched and grassed for

future maintenance;

e. The principal spillway on dam number 2 must be

removed and replaced with a 36 inch CMP riser and

24 inch CMP;

f. An emergency spillway must be constructed on the

southern end of dam number 2 equal to the

hydraulic capacity of the present "control

breach";

g. The temporary spillway pipes and excavated areas

in dam number 1 and the control breach in dam

number 2 must be removed and/or refilled and the

embankments restored to properly designed

conditions;

h. The proper channel hydraulics for the diversion

channel must be restored by excavating and

removing soil and vegetated materials. The side

slopes of the channel should then be properly

slopped and grassed to prevent erosion; and

i. A complete analysis of hazardous conditions below

each dam must be provided to determine if remedial

measures are necessary below the dams to limit any

impact to structures or facilities.

43. The District has estimated that the total cost of bringing the two

structures into compliance is approximately $115,000.00 (Petitioner's Exhibit 11

at page 32-33).

44. The upgraded spillway sizes are predicated upon restoring the dams and

lakes to their original design height and lake levels (Laird, T 221). The

spillway designs and specifications could be down sized, depending upon other

design criteria, such as lower lake levels (Laird, T 224-225). Such

modifications of the original specifications would have to be considered and

approved by the District in the application process.

45. A catastrophic failure of either dam would most likely occur at

existing principal spillways due to the existing deterioration and damage to

both the dams and pipes, including the piping conditions, the age of the pipe

and corrosion thereof (Musgrove, T 114 and 142).

46. A catastrophic failure in dam number 1 would result in the inundation

of the three residences below that dam, with at least 1 to 3 feet of water,

lasting approximately 6 hours (Laird, T 199-00). The intensity of this

inundation was based upon minimal rainfall conditions impacting the existing

rivers and creeks. In actuality, the likelihood of a catastrophic failure with

low water levels in the creeks and rivers below the dams is unlikely. It is

more reasonable to expect the dams to fail when there has been substantial local

rainfall and the rivers and creeks are at or near flood stage. The water level

and duration of flooding under less favorable assumptions would be devastating

downstream.

CONCLUSIONS OF LAW

47. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, this proceeding.

48. The District is charged with regulating surface waters and the

regulation of dams, impoundments and their appurtenant works within the

District's geographic boundaries, which includes the County. See Chapter 40A-4

and Rule and 17-101, Florida Administrative Code; Chapter 373, Part IV, Florida

Statutes; Public Law 92-367, USCA; and the Federal Dam Safety Standards Program

as implemented by the Army Corps of Engineers.

49. Pursuant to Section 373.423, Florida Statutes, the District may

inspect the construction or alteration of any dam or impoundment or appurtenant

work to protect the public health and safety of the natural resources of the

State. Pursuant to Section 373.119, Florida Statutes, the District is

authorized to issue administrative complaints when the District has reason to

believe that a violation of any provision of Chapter 373 or any rules

promulgated thereunder has occurred, is occurring, or is about to occur.

Pursuant to Section 373.409, Florida Statutes, the District can require the

owner of any dam or appurtenant works to install and maintain headgates, valves

and other devices. Pursuant to Section 373.436(1), Florida Statutes, if the

owner fails to do so, the District may cause such alterations or repairs to be

made. Pursuant to Section 373.439, Florida Statutes, authorizes the District to

take emergency measures to employ any remedial means necessary to protect life

and property in an emergency situation. Any costs to the District of

alterations or repairs shall be a lien against the property of the landowner on

whose lands the alteration or repairs are made. See Section 373.436, Florida

Statutes. 1/ However, this case

involves the safety of the dams. Therefore, the ownership of the dams for

purposes of assessing costs is not an issue.

50. Because the statutes and rules provide that notice be provided to

everyone identified as having or potentially having an ownership interest in the

property, the interests of various parties were considered. Respondents,

Campen, Maitland and O'Sullivan have ownership interests in the dams, and Campen

and O'Sullivan have ownership interests in the lake bottom. No evidence was

presented that the County has an ownership interest in either of the dams nor

was any evidence presented that Sherwood Drive had been dedicated to and

accepted by the County for maintenance. No evidence was presented that the

Association has an ownership interest in the lakes or dams.

51. Evidence was presented that notice was provided to the parties named

above and Ms. Walker, who was dismissed before evidence was taken. Those

Respondents, who failed to appear, abandoned and waived their rights to

participate and be heard in these proceedings. Together with those Respondents

who participated in these proceedings, they are bound by these proceedings.

52. An issue arose concerning the existence of standards for assessing

dams; however, the District carried its burden through competent and substantial

evidence in supporting and explicating its standards for evaluating the subject

dams through its expert witnesses under the aforesaid standards. See McDonald

v. Dept. of Banking and Finance, 346 So.2d 569, 582-584 (Fla. 1st DCA 1977);

pet. for rev. denied, 361 So.2d 199 (Fla. 1978).

53. The District provided the expert testimony of Musgrove, Esry, and

Laird, that these criteria were appropriate and reasonable, and that the dams

were unsafe when assessed under these criteria. Based upon these criteria,

these experts set forth what must be fixed to bring them into compliance with

current standards for non-agricultural uses, the costs for such repairs, and the

alternatives to making the repairs. This evidence was quite credible, and it is

concluded that dams number 1 and 2 do not comply with the applicable engineering

and design standards for dam safety and are a threat to public health, safety

and welfare. The steps necessary to bring dams 1 and 2 up to proper standards

and render them safe are set forth in the findings above.

54. The failure to make the necessary repairs in a timely fashion will

result in a continuing threat to the public health, safety and welfare, given

the instability of both dams and possibly catastrophic failure of one or both of

the dams. Dam number 1 presents a particularly hazardous condition, given its

numerous deficiencies, the permanent residences below the dam, and the existence

of a road which traverses the entire length of dam number 1.

55. In short, the District must act to protect the public safety.

Pursuant to the statutes cited above, at its discretion, the District can (1)

direct the owners to repair the dams and their appurtenances, (2) de-water the

lakes or (3) repair the dams itself. If the District repairs the dams, it can

get liens against the property upon which the dams are is meaningless in terms

of collecting the expenditures. The District could undertake to design and

repair the dams in conjunction with the Association and County, who are the

principal beneficiaries of the dams. However, if they cannot agree to

apportioning the costs, the District may de-water the reservoir.

RECOMMENDATION

Based upon the above Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED as follows:

(1) Respondents, Maitland, Campen, and O'Sullivan, who have ownership

interests in the dams or parts thereof, be ordered to submit an application to

the District within 30 days of the date of the Final Order for the repair of the

subject dams in accordance with applicable safety design and engineering

standards for dams and as outlined in the Findings of Fact, above;

(2) In the event that Respondents, Maitland, Campen or O'Sullivan do not

make application to the District as hereinabove directed, the Association, the

County or other interested parties may submit applications to the District for a

permit to repair the dams in accordance with the aforementioned standards within

60 days of the date of the Final Order;

(3) If either application is approved, the required repair work to the

dams and the appurtenant works shall be completed within 120 days of the

issuance of the necessary permits by the District;

(4) In the event that no permit application is submitted to the District,

or if the work is not timely completed, then the District may, in its

discretion, complete the repairs or de-water the impoundments by breaching the

dams in order to eliminate the existing safety hazards; and

(5) The Administrative Complaint against Respondent, Sheila Walker, be

dismissed.

DONE and ORDERED this __10th__ day of July, 1990, in Tallahassee, Florida.

_________________________

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this __10th__ day of July, 1990.

ENDNOTES

1/ The owner(s) of the lake bottom would benefit from dewatering the reservoir

because they possibly could have new lots to sell. Homeowners, who have only the

benefits of the lakes created by the dams, enjoy waterfront property as a result

of the dams but do not own the lake bottom or dams. Although the District can

place a lien against the owner of the property upon which the dam is located,

the land on which the dams were located essentially is unsaleable. Because the

lien cannot be collected unless the property is sold, it is unlikely that the

District could recoup its costs. The statute lacks a mechanism to place the

liens on property which adjoins the dams, appurtenances, or reservoir and which

is benefited by the dams which themselves may be of little or no financial value

and would never be sold.

APPENDIX

The Proposed Recommended Orders were read and considered. The following is

a list of the findings adopted and the findings rejected and why.

County's Proposed Recommended Order:

1, 2, 3, 4 Adopted

5 Summarize District Proposed Recommended Order #14

6 Summarize District Proposed Recommended Order #29

7 Duplicates District Proposed Findings

8 Duplicates District Proposed Recommended Order #29

9 Duplicates District Proposed Recommended Orders

#2 and #3

10 Duplicates District Proposed Recommended Orders

#7 and #8

11 Duplicates District Proposed Recommended Order #43

12 Duplicates District Proposed Recommended Order #44

13 Duplicates District Proposed Recommended Order #45

District's Proposed Recommended Order:

1-43, 45-47 Adopted

44 Rejected as contrary to fact.

48 Adopted in part. Rewritten in part to emphasize the

gravity of the problem.

Copies furnished to:

Doug Barr, Executive Director

Northwest Florida Water Management

District

Route One, Box 3100

Havana, FL 32333

Gary J. Anton, Esq.

P.O. Box 11059

Tallahassee, FL 32302

Gerald Holly, Esq.

P.O. Box 268

Chipley, FL 32428

Jack Faircloth

Holmes County Courthouse

201 North Oklahoma Street

Bonifay, FL 32425

Margaret M. Libolt, President Pro-Tem

Dogwood Lakes Homeowner's Association

P.O. Box 174

Bonifay, FL 32425

Ben Campen

P.O. Drawer 1209

Gainesville, FL 32602

Kevin O'Sullivan

32 Seventh Avenue, No. 128

Shalimar, FL 32579

Sheila Walker

1510 E. Clay Avenue

Panama City, FL 32401

Jack Maitland

c/o Edward McCormick

144 Main Street

P.O. Box 318

Norfolk, MA 02056