91-006823 Friends Of The Wekiva And Florida Audubon Society vs. Jim Saboff And St. Johns River Water Management District Status: Closed Recommended Order on Wednesday, June 24, 1992.

Summary: Land clearing and construction of house,pool,driveway in Wekiva River Riparian Habitat Protection Zone requires Management and Storage of Surface Waters permit to mitigate habitat loss.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FRIENDS OF THE WEKIVA and )

FLORIDA AUDUBON SOCIETY, )

)

Petitioners, )

)

vs. ) CASE NO. 91-6823

)

JIM SABOFF and ST. JOHNS )

RIVER WATER MANAGEMENT )

DISTRICT, )

)

Respondents. )

_____________________________)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in

Orlando, Florida, on March 18-19, 1992, before Robert E. Meale, Hearing Officer

of the Division of Administrative Hearings.

APPEARANCES

For Petitioner

Friends of the Wekiva: Edmund T. Baxa, Jr.

Foley & Lardner

111 N. Orange Ave.

Suite 1800

Orlando, Florida 32801

For Petitioner

Florida Audubon Society: Charles Lee, Sr. Vice-President

Florida Audubon Society

460 Highway 436

Casselberry, Florida 32707

For Respondent

Jim Saboff: Michael D. Jones

Michael D. Jones, P.A.

P.O. Box 3567

Winter Srings, Florida 32708

For Respondent

St. Johns River Water

Management District: Attorney Kathryn L. Mennella

St. Johns River Water

Management District

P.O. Box 1429

Palatka, Florida 32178-1429

STATEMENT OF THE ISSUE

The issue in this case is the sufficiency of the language of condition 17

of the St. Johns River Water Management District permit issued to Jim Saboff for

the management and storage of surface waters.

PRELIMINARY STATEMENT

On July 16, 1991, Petitioners filed a Petition for Formal 120.57(1)

Hearing. Petitioners objected on several grounds to the issuance of a permit to

Respondent Saboff for the management and storage of surface waters.

Following receipt of a Motion to Strike filed by the St. Johns River Water

Management District, Petitioners filed an Amended Petition for Formal 120.57(1)

Hearing on November 20, 1991. Like the original petition, the amended petition

sought the denial of the permit. In the alternative, however, the amended

petition requested that the permit bear a condition imposing a conservation

easement without an exception allowing the clearing of underbrush and vegetation

up to 4" in diameter.

On January 9, 1992, Respondent St. Johns River Water Management District

filed a Motion for Partial Relinquishment of Jurisdiction to Effectuate Partial

Settlement by Allowing Entry of an Interim Order. In the motion, the District

sought leave to enter an interim final order allowing Respondent Saboff to

proceed with the construction of a residence on the land subject to the permit.

The motion describes the amended petition as "limiting the scope of the. . .

challenge to the MSSW permit to the modification in the conservation easement

condition." Although an inaccurate description of the relief sought by the

amended petition, the motion accurately discloses that Petitioners, from that

point forward, have limited the issues to the sufficiency of the language of

condition 17 in the permit.

A Partial Settlement Agreement is attached to the January 9 motion. Signed

by all of the parties, the agreement states that the above-styled proceeding

involves the validity of a permit for the construction of a home by Respondent

Saboff in the Riparian Habitat Protection Zone of the Little Wekiva River. The

agreement identifies the property in and immediately around the building pad

that was cleared of natural vegetation prior to August 1, 1991, and will be the

location of the house, mulched driveway, pool, and sidewalk. The agreement

identifies the remaining portion of the property as "undisturbed, and . . . to

be encumbered by a conservation easement pursuant to the permit." A proposed

stormwater berm is to be located on the undisturbed portion of the property.

The Partial Settlement Agreement states:

The parties agree that the only matter at

issue in this administrative proceeding is

the modification to permit condition No. 17

approved by [the District] on June 11, 1991

. . . . The parties stipulate that the permit

conditions no. 1-16 and 18 approved by the

District and the appropriateness of the

design and location of the proposed house and

other parts of the proposed water management

system, as limited by permit conditions no.

1-16 and 18, are not at issue in this

administrative proceeding. . . . Inasmuch as

the focus of the amended petition is the

sufficiency of the modification to permit

condition No. 17 (as opposed to the

construction of the residence), and Saboff is

desirous of beginning construction of his

residence, the parties agree that Saboff may

proceed to construct the single family

residence (house, mulched driveway, pool, and

sidewalk) pursuant to the terms of the

District order attached hereto as Exhibit

"B". . . .

This stipulation does not agree to any

construction, including additional clearing,

removal of underbrush, or cutting of

vegetation, at any location on the lot

outside the previously cleared area, with the

exception as set forth in Exhibit "B".

* * *

This Partial Settlement Agreement is not and

shall not be interpreted in any way to be a

consent to or a waiver of defenses to any

matters complained of in any proceeding by

Saboff. Furthermore, by this agreement Saboff

does not concede to DOAH's jurisdiction over

this matter.

By Order entered January 10, 1992, the undersigned relinquished

jurisdiction to the extent necessary to allow the District to enter the interim

final order pursuant to the partial settlement agreement.

At the hearing, Petitioners filed a Motion in Limine. The motion sought an

order limiting evidence to the modification of permit condition 17, which

provides: "The easement may allow for some limited vegetation removal of trees

less than 4 inches in diameter, and of underbrush, to be agreed upon by district

staff and the permittee." The motions states: "The adequacy of this permit

condition (including the above language) as mitigation for development

activities on the lot in the Riparian Habitat Protection Zone is the sole issue

relative to the permit which is raised in the Amended Petition . . . ."

The motion also sought an order limiting Respondent Saboff's position and

evidence by two responses contained in Requests for Admission. In the

responses, Respondent Saboff admitted that he wanted to be able to clear

underbrush and vegetation up to four inches in diameter from the entire area of

the conservation easement and he was unwilling to specify what areas within the

conservation easement would be subject to such clearing.

The undersigned granted the motion except as to the relief requesting in

the immediately preceding paragraph.

At the beginning of the hearing, Charles Lee was accepted as a qualified

representative of the Florida Audubon Society.

Petitioners called eight witnesses and offered into evidence 11 exhibits.

Respondent District called three witnesses and offered into evidence 13

exhibits. Respondent Saboff called no witnesses and offered into evidence no

exhibits. All exhibits were admitted.

The transcript was filed April 16, 1992. Petitioners and Respondent

District each filed a proposed recommended order. All of Petitioners' proposed

findings are adopted or adopted in substance except 34 and 39 (unnecessary) and

40--last sentence (unsupported by the evidence as to the sandbox and swing set).

All of the District's proposed findings are adopted or adopted in substance

except 26--second sentence (unsupported by the evidence).

FINDINGS OF FACT

1. Respondent Jim Saboff ( Saboff) and his wife own lot 39, Springs

Landing, Unit 2, as recorded in Plat Book 24, pages 24-29, public records of

Seminole County, Florida. The lot, which contains both wetlands and uplands

vegetative communities, abuts the Little Wekiva River for 135 feet. No part of

the entire lot is more than 250 feet from the river.

2. By virtue of an Interim Final Order issued by Respondent St. Johns

River Water Management District (District), Saboff has built, or commenced the

construction of, a house, pool, mulched driveway, and sidewalk on the lot. The

house is within 100 feet of the wetlands adjacent to the river, and the pool,

which is between the house and the river, is within 100 feet of the Little

Wekiva River.

3. On March 8, 1991, the District received from Saboff a Management and

Storage of Surface Waters Individual Permit Application for the construction of

a retention/detention pond with filtration. Saboff's lot, which is at the

corner of Springs Landing Boulevard and River Isle Court, is in a single-family

subdivision. The back or east side of the lot abuts the Little Wekiva River.

4. By letter dated April 4, 1991, the District requested additional

information with respect to the application for a Management and Storage of

Surface Waters ( MSSW) permit. Among 12 items of information requested was the

following: "Please demonstrate that the proposed activities will not have a

harmful effect on the functions provided by the Riparian Habitat Protection

Zone" and "Please submit any mitigation proposed to compensate for encroachments

into the Riparian Habitat Protection Zone."

5. In a response received by the District on May 1, 1991, Aquatic

Symbiotics, Inc., on behalf of Saboff, responded to the two requests for

information set forth in the preceding paragraph. In their entirety, the

responses are:

The proposed upland residence will not

negatively impact any off site wetland

dependent species as none are known to exist

within this 0.72 Ac. building lot, exclusive

of the 0.05 Ac. eastern portion of the lot

which constitutes wetlands and is proposed

for conservation. Additionally due to the

developed nature of the surrounding

subdivision, it is not likely any significant

natural resources reside within the subject

lot.

Due to the lack of impacts inherent in the

proposed residence on the 0.72 A

mitigation is proposed. Please note the

large retention pond is an impact due solely

to the requirements of the District, it was

not proposed by either the applicant nor the

consulting engineers.

6. After receiving additional information from Saboff concerning drainage,

District staff issued, on May 28, 1991, the MSSW Technical Staff Report ( TSR)

for the proposed project. Describing the application as a request to construct

a single family residence and on-site surface water management system to serve

the residence, the TSR notes that the lot is within the Wekiva River Basin,

Wekiva River Protection Area, and Riparian Habitat Protection Zone.

7. The TSR describes the lot in detail as follows:

Lot 39 contains forested uplands and forested

wetlands. The upland forest is dense and

consists of live oak, southern magnolia,

laurel oak, long leaf pine, and slash pine.

No previous encroachments have been made into

the upland or wetland portions of the lot.

The wetland portion (0.05 acre) of the lot is

densely forested. The canopy species include

loblolly bay, sweet bay, bald cypress, black

gum, red maple, sweet gum, cabbage palm, pond

cypress, ironwood, and water oak. The

subcanopy contains fetterbush, button bush,

wax myrtle, and juvenile wetland trees. The

ground cover consists of a variety of wetland

fern species, lizard tail and sabal palmetto.

The wetlands are contiguous to the Little

Wekiva River and adjacent to the "Springs

Landing Bridge." The river, in the vicinity

of this project, is vegetated with herbaceous

vegetation ( ludwidia, elephant ears).

The Little Wekiva River, forested wetlands,

and uplands within the project site provide

habitat and food sources primarily for off-

site aquatic and wetland dependent bird

species, which forage within the herbaceous

vegetation in the river and perch for

resting, and cover in the trees.

The lot is a small undeveloped parcel, within

a highly developed residential area. A

single family residence is located adjacent

to Lot 39 on the western boundary. Springs

Land Boulevard and a retention pond are

adjacent to the eastern lot boundary. The

lot is narrow and elongated (100 feet wide

and 240 feet long). The adjacent land uses,

and lot configuration have affected the use

of the habitat on this lot by off-site

aquatic and wetland dependent species to some

extent. The construction of the house and

berm will necessitate the removal of 0.3 acres

of forested uplands. Staff recommends that

the undeveloped portions of the lot be placed

into a conservation easement, and be maintained

in a forested condition to mitigate for the

impact of the residential development within

the riparian habitat protection zone.

Although a 0.3 acre loss of forested riparian

habitat protection zone will occur, the

species currently using the area will have

habitat available to use on the undeveloped

portion of the lot, provided that an easement

or deed restrictions prohibit alteration of

this habitat. These uplands and wetlands abut

a larger slough contiguous to the river and

will provide cover and resting habitat for

off-site aquatic and wetland dependent species.

For the reasons stated above the construction

of a single family residence on 0.3 acres of

forested uplands within this lot is not

anticipated to cause significant adverse

effects to the habitat or food sources of the

off-site aquatic and wetland dependent

species, within the riparian habitat

protection zone.

A small stabilized earthen berm, approximately

6 ft wide at the base, is to be constructed

along the length of the lot, to be located

upstream of seepage slopes and wetlands

adjacent to the river. The berm will be

located to minimize impact to existing trees.

The berm will serve to provide stormwater

treatment for runoff from the developed

portion of the lot, with total retention

storage of 3/4 inch of runoff from the

impervious area, which is limited to the

house, pool and sidewalk. Staff believes

that this retention area, along with a

conservation easement/deed restrictions

preventing any alterations in the remaining

ground cover, will provide stormwater treatment

equivalent to the requirements in Chapters

40C-42 F.A.C. for direct discharge into an

OFW [Outstanding Florida Water].

Staff believes that this project, with

recommended permit conditions is in

conformance with the overall goals and

objectives of the District set forth in

Chapter 40C-4, 40C-41 and 40C-42, F.A.C. . . . .

8. The key condition suggested in the TSR states:

Prior to initiating any construction, the

permittee must record a deed restriction or

conservation easement on the real property

pursuant to Section 704.06, F.S., prohibiting

all construction including clearing, dredging

or filling, except that which is specifically

authorized by the permit, within the

conservation area as delineated on plans

received by the District on 5/29/91.

9. On or about June 2, 1991, the District published notice of intended

action, at least insofar as the TSR constitutes intended agency action. The

condition set forth in the preceding paragraph evidently was described in the

notice.

10. Following receipt of the TSR, Mrs. Saboff sent the District a letter

on June 5, 1991. She indicated that she wanted the right to enjoy her backyard

and to be able to do whatever other homeowners could do in their backyards. The

letter mentions the possibility of constructing decking, a boardwalk to the

river, a fence, a treehouse, a sand box, and a swing.

11. At the June 11, 1991, meeting, the District Board approved the

issuance of the MSSW permit to the Saboffs (the Permit). In response to the

desires of the Saboffs, the Board added the following sentence to the above-

described TSR condition, which became Condition 17 to the Permit: "The easement

may allow for some limited vegetation removal of trees less than 4 inches in

diameter and of underbrush, to be agreed upon by District staff and the

permittee." 1/

12. The Saboffs never challenged administratively the action of the

District in requiring and issuing the MSSW. However, by Petition for Formal

120.57(1) Hearing filed July 16, 1991, Petitioners objected to the issuance of

the Permit on several grounds.

13. Petitioners filed an Amended Petition for Formal 120.57(1) Hearing on

November 20, 1991. Like the original petition, the amended petition sought the

denial of the Permit. In the alternative, however, the amended petition

requested that the Permit bear a condition imposing a conservation easement

without an exception allowing the clearing of underbrush and vegetation up to 4"

in diameter.

14. At some point prior to January 9, 1992, the parties entered into

Partial Settlement Agreement, which acknowledges that the above-styled

proceeding involves the validity of a permit for the construction of a home by

Respondent Saboff in the Riparian Habitat Protection Zone of the Little Wekiva

River. The agreement identifies the property in and immediately around the

building pad that was cleared of natural vegetation prior to August 1, 1991, for

the siting of the house, mulched driveway, pool, and sidewalk. The other

"distinct area" of Saboff's property identified by the agreement is the

"remainder of the lot, which is undisturbed, and which is to be encumbered by a

conservation easement pursuant to the permit." The agreement adds: "A proposed

berm for stormwater treatment was also approved to be located on a portion of

the remainder of the lot which is undisturbed." Partial Settlement Agreement,

Paragraph 2.

15. Paragraph 3 of the Partial Settlement Agreement provides:

The parties agree that the only matter at

issue in this administrative proceeding is

the modification to permit condition No. 17

approved by [the District] on June 11, 1991.

. . . The parties stipulate that the permit

conditions no. 1-16 and 18 approved by the

District and the appropriateness of the

design and location of the proposed house and

other parts of the proposed water management

system, as limited by permit conditions no.

1-16 and 18, are not at issue in this

administrative proceeding. . . . Inasmuch as

the focus of the amended petition is the

sufficiency of the modification to permit

condition No. 17 (as opposed to the

construction of the residence), and Saboff is

desirous of beginning construction of his

residence, the parties agree that Saboff may

proceed to construct the single family

residence (house, mulched driveway, pool, and

sidewalk) pursuant to the terms of the

District order attached hereto as Exhibit "B" . . . .

This stipulation does not agree to any

construction, including additional clearing,

removal of underbrush, or cutting of

vegetation, at any location on the lot outside

the previously cleared area, with the exception

as set forth in Exhibit "B".

* * *

This Partial Settlement Agreement is not and

shall not be interpreted in any way to be a

consent to or a waiver of defenses to any

matters complained of in any proceeding by

Saboff. Furthermore, by this agreement Saboff

does not concede to DOAH's jurisdiction over

this matter.

16. Each Petitioner is a Florida non-profit corporation organized for the

protection and preservation of natural resources. Petitioner Friends is

organized specifically for the protection and preservation of the Wekiva River

and its tributaries, such as the Little Wekiva River. Members of each

organization, including many members residing in the vicinity of the Little

Wekiva River, regularly use the Little Wekiva River for recreational activities,

especially canoeing. These persons would personally suffer from the loss of

aquatic and wetland habitats and species dependent upon such habitats that could

result from unlawful land uses within the Riparian Habitat Protection Zone.

17. The Little Wekiva River flows generally from south to north and

empties into the Wekiva River about three or four miles downstream from Wekiva

Springs, which, together with Rock Springs and Rock Springs Run, are the sources

of the Wekiva River. The confluence of the Wekiva River and Little Wekiva River

is just upstream from the point at which the Wekiva River terminates at the St.

Johns River, just west and downstream of Lake Monroe near Sanford. The Little

Wekiva River in the vicinity of Saboff's lot and the Wekiva River are

Outstanding Florida Waters.

18. The Little Wekiva River runs through some heavily urbanized areas in

south Seminole County until it passes State Road 434. During the first mile

downstream (i.e., north) of State Road 434, there are residential land uses,

such as the subdivision containing Saboff's lot. About a mile downstream from

State Road 434, the riverbanks regain their natural condition, highlighted by

about four miles of relatively undisturbed wetlands upstream from the junction

of the Little Wekiva River and Wekiva River.

19. Little of the vegetation along the banks of the Little Wekiva River

has been disturbed in the vicinity of Saboff's lot. The west bank, where

Saboff's lot is located, is less disturbed than the east bank. The actual

habitat found on Saboff's lot is of average quality for habitat along this

portion of the river. The underbrush on the lot is mostly saw palmetto and

covers from half to three-quarters of the area between the house and the river.

Between the house and the river, about half of the 240 trees are less than four

inches in diameter at breast height.

20. The navigability of the waterway changes at the Springs Landing

Bridge, which allows Springs Landing Boulevard to span the river. The bridge is

just downriver from Saboff's backyard. Due to the bridge's low clearance, the

ability of groups such as Petitioner Friends to clear the river channel of

undesirable vegetation choking the flow of the river has been hampered. The

Army Corps of Engineers formerly sprayed herbicide upstream of the bridge. Due

to the inability of most boats to pass under the bridge, interested persons,

such as members of Petitioner Friends, are largely left to manual means of

eradicating undesirable vegetation.

21. The landclearing required for the construction of the house, pool,

mulched driveway, and sidewalk, as well as the additional landclearing allowed

by Condition 17, as modified by the Board on June 11, adversely affects the

abundance, food sources, and habitat of aquatic and wetland dependent species of

the Riparian Habitat Protection Zone. The removal of underbrush and trees

represents a direct loss of habitat and food sources for aquatic and wetland-

dependent species.

22. The removal of underbrush and trees also represents an indirect loss

of habitat and food sources due to deteriorated drainage, increased stormwater

runoff and nutrient loading into the river, and erosion and sedimentation of the

river. The drainage of stormwater runoff and nutrients, such as fertilizer,

into the river adversely affects existing aquatic habitats and food sources.

The erosion and sedimentation directly displaces aquatic habitat by, among other

things, filling in deeper holes in the river and altering its geomorphology.

23. Various strategies exist to mitigate the loss of abundance, food

sources, and habitat of aquatic or wetland dependent species. With respect to

the direct loss of habitat resulting from landclearing, new habitat may be

created or existing habitat may be enhanced. However, these alternatives are

impractical here due to the relatively small size of the parcel involved and the

generally good condition of the habitat on the lot.

24. With respect to the loss of habitat from the drainage of stormwater

runoff and nutrients into the river, a retention/detention pond often can

capture the first, most polluted runoff accompanying a storm event. Again, due

to the small area involved, this solution is typically impractical for a single

residential lot.

25. Mitigation of the loss of abundance, food sources, and habitat of

aquatic and wetland dependent species from landclearing, stormwater runoff, and

erosion is best achieved, in this case, by the creation of a conservation

easement. The conservation easement can preserve functionally significant areas

of underbrush and canopy to allow various wildlife species to continue to pass

along the river safely, as well as to continue to occupy the area to rest and

roost. The conservation easement can simultaneously preserve the existing

vegetative buffer, which, together with the stormwater berm, can remove most of

the pollutants associated with the first runoff during a storm event before the

water reaches the river. The vegetative buffer would also arrest erosion and,

thus, sedimentation.

26. In its undisturbed state, Saboff's property is densely vegetated. The

four-inch diameter benchmark for trees is based on the fact that trees of such a

diameter, at breast height, generally provide a canopy that serves as effective

cover for wildlife. About half of the trees on the lot are of such a size.

However, many of the smaller trees are needed as underbrush habitat and for

reforestation as larger trees die.

27. Various aquatic and wetland dependent species travel along the river

corridor, especially along the west bank, and rely upon the underbrush and

canopy to escape predators and for food. Species such as limpkins, red

shouldered hawks, little blue herons, great blue herons, ospreys, egrets, and

green backed herons use the on-site wetlands for feeding and use the upland and

wetland forest for escape cover. Turtles use the wetlands for feeding and

uplands for breeding. Marsh rabbits nest and feed at the junction of the

wetlands and uplands. Snakes and green tree frogs also use the site.

28. The health of the river itself, which is an amenity upon which

Saboff's lot draws, is vital to the abundance, food sources, and habitat of

aquatic and wetland dependent species. This critical natural resource is

dependent upon maintaining flow and controlling erosion, sedimentation, and

nutrient loading. The removal of underbrush on Saboff's lot will hasten erosion

and sedimentation of the river. The vegetation problem in the river will be

exacerbated by erosion and sedimentation, as well as by the introduction of

runoff-borne fertilizers.

29. The stormwater berm is located between the river and the pool. The

25-foot contour runs generally about 30 feet riverward of the point of the house

closest to the river, although the line can be hard to locate because the 25-

foot contour line and the house do not run exactly parallel to each other. The

25-foot contour line marks the beginning of a relatively rapid slope down to the

river.

30. The efficacy of the mitigation provisions is dependent upon the degree

of specificity in Condition 17 in terms of identifying the conservation area and

describing the permitted uses within the conservation area. The Permit is

unclear as to the extent of area covered by the conservation easement. However,

the TSR and Partial Settlement Agreement indicate that the conservation area was

intended to extend over the entire lot except for the portion cleared for the

house, pool, mulched driveway, and sidewalk. This interpretation was borne out

by the testimony of Glen C. Lowe, Chief Environmental Specialist of the

District., pp. 302-03.

31. In the testimony of Mr. Lowe, as well as the proposed recommended

orders of the District and Petitioners, however, it is evident that the

conservation area may be defined more narrowly, provided that the permitted uses

are defined more specifically than they are in Condition 17 of the Permit.

32. The evidence establishes that adequate mitigation of the loss of

abundance, food sources, and habitat of aquatic and wetland dependent species

resulting from the landclearing for the house, pool, mulched driveway, and

sidewalk may be achieved by the use of a conservation easement over the portion

of the lot riverward of a line running 25 feet from the point of the house

closest to the river and parallel to the east side of the house. The conditions

of the conservation easement must prohibit any uses that would disturb the

underbrush or trees except as follows: underbrush and trees may be removed as

necessary for the construction of the stormwater berm shown on the drawing of

Land Engineering, Inc. received by the District on May 28, 1992, and identified

as District Exhibit 4; trees less than four inches in diameter at breast height

and underbrush may be removed as necessary for the construction of an elevated

boardwalk no more than four feet wide and woven, to the extent possible, through

the existing trees to connect the house or pool to a point on the river (but not

to travel laterally along the river); branches of existing trees may be trimmed

for the installation of a treehouse; underbrush may be disturbed by the

placement and use of a sandbox, swing set, picnic table, and freestanding

hammock. No other items, such as a fence or decking, may be installed, placed,

or constructed in the conservation area without an amendment to the conservation

easement and Permit.

CONCLUSIONS OF LAW

33. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties. Section 120.57(1), Florida Statutes. (All

references to Sections are to Florida Statutes. All references to Rules are to

the Florida Administrative Code.)

34. Petitioners have standing. Section 403.412(5).

35. The District has jurisdiction to require and issue MSSW permits within

the geographical boundaries of the District. Sections 373.413(1), 373.415, and

373.069(2)(c).

36. Saboff's proposed project and application for an MSSW permit is

governed by Sections 373.413, 373.415, and 373.416 and Chapters 40C-4, 40C-41,

and 40C-42, as well as the portions of the Applicant's Handbook: Management and

Storage of Surface Waters incorporated by reference by Rule 40C-4.091. Section

373.413(1) allows the District to require a permit "to assure that the

construction . . . of any . . . works will comply with [Chapter 373, Part IV]

and applicable rules promulgated thereto and will not be harmful to the water

resources of the district." Section 373.403(5) defines "works" as "all

artificial structures, including, but not limited to, . . . construction that .

. . drains water into . . . the waters in the state." The landclearing and

construction proposed by Saboff will drain water into the waters in the state.

37. Section 373.415 requires the District to adopt rules

establishing protection zones adjacent to the

watercourses in the Wekiva River System . . . .

Such protection zones shall be sufficiently

wide to prevent harm to the Wekiva River

System, including water quality, water

quantity, hydrology, wetlands, and aquatic

and wetland-dependent wildlife species,

caused by any of the activities regulated

under this part.

38. Rule 40C-4.041(2)(b)9. requires an individual or general permit prior

to the construction . . . of a surface water management system which . . . is

wholly or partly located within the Wekiva River Hydrologic Basin's Riparian

Habitat Protection Zone . . .." Rule 40C-4.021(9) defines a "surface water

management system" as . . . "works that provide. . . drainage, water storage,

conveyance, stormwater management, or other surface water management

capabilities."

39. Rule 40C-41.063(3)(e)1. identifies the Wekiva River Hydrologic Basin's

Riparian Habitat Protection Zone as the wetlands abutting, among other rivers,

the Little Wekiva River and, in the case of the Little Wekiva River, the uplands

within 550 feet landward of the stream's edge.

40. Rule 40C-41.063(3)(e)1. requires the applicant to provide

reasonable assurance that the construction or

alteration of a system will not adversely

affect the abundance, food sources, or habitat

(including its use to satisfy nesting, breeding

and resting needs) of aquatic and wetland

dependent species provided by the . . . Riparian

Habitat Protection Zone. . ..

41. Rule 40C-41.063(3)(e)2. states that the following activities are

"presumed to adversely affect the abundance, food sources, or habitat or aquatic

or wetland dependent species provided by the zone: construction of buildings, .

. . swales, and any land clearing which results in the creation of any system."

42. The evidence establishes that the District may issue the Permit only

if it contains Condition 17 in the form substantially the same as that set forth

in the Findings of Fact.

RECOMMENDATION

Based on the foregoing, it is hereby recommended that the St. Johns River

Water Management District enter a final order issuing the Permit with the

following Condition 17 (additions underlined and deletions stricken through):

* Within 90 days of permit issuance, the

permittee must record a deed restriction or

conservation easement on the real property

pursuant to Section 704.06, F.S., prohibiting

all construction including clearing, dredging

or filling, except that which is specifically

authorized by this permit, within the

*(conservation area as delineated on plans

received by the District on 5/29/91) <>

described area: riverward of a line running

parallel to the east side of the house and 25

feet from the point of the house closest to

the river.>> The easement must contain provisions

as set forth in subsections 1(a)-(h) of Section

704.05, F.S. as well as provisions indicating

that they may be enforced by the District and

may not be amended without District approval.

[[The easement may allow for some limited

vegetation removal of trees less than 4 inches

in diameter and of underbrush, to be agreed

upon by District staff and the permittee.]]

any uses that would disturb the underbrush

or trees except as follows: underbrush and

trees may be removed as necessary for the

construction of the stormwater berm shown on

the drawing of Land Engineering, Inc. received

by the District on May 28, 1992; trees less

than four inches in diameter at breast height

and underbrush may be removed as necessary

for the construction of an elevated boardwalk

no more than four feet wide and woven, to the

extent possible, through the existing trees

to connect the house or pool to a point on the

river (but not to travel laterally along the

river); branches of existing trees may be

trimmed for the installation of a treehouse;

underbrush may be disturbed by the placement

and use of a sandbox, swing set, picnic table,

and freestanding hammock. No other items,

such as a fence or decking, may be installed,

placed, or constructed in the conservation

area without an amendment to the conservation

easement and Permit.>> Within 30 days of the

date of issuance of this permit and prior to

recording, said easement must be submitted to

the District for review and approval. Within

30 days of receipt of District approval, the

permittee must provide to the District a

certified copy of the recorded easement showing

the date it was 2/ recorded and the official

records book and page number.

* Note: In the above quotation, additions recommended to the

Permit is within the <>>; deletions recommended to the

Permit is within the [[]].

RECOMMENDED this 24th day of June, 1992, in Tallahassee, Florida.

___________________________________

ROBERT E. MEALE

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 24th day of June, 1992.

ENDNOTES

1/ The remainder of Condition 17 of the Permit, as approved by the Board, is

set forth on pages 22-23 of the recommended order.

2/ Original reads: "they were".

COPIES FURNISHED:

Attorney Kathryn L. Mennella

St. Johns River Water Management District

Post Office Box 1429

Palatka, FL 32178-1429

Attorney Michael D. Jones

P.O. Box 3567

Winter Springs, FL 32708

Charles Lee

Senior Vice President

Florida Audubon Society

460 Highway 436, Suite 200

Casselberry, FL 32707

Edmund T. Baxa, Jr.

Foley & Lardner

111 N. Orange Ave., Suite 1800

Orlando, FL 32801

Wayne Flowers

Executive Director

St. Johns River Water Management District

Post Office Box 1429

Palatka, FL 32178-1429

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.

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

AGENCY FINAL ORDER

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

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT

FRIENDS OF THE WEKIVA and )

FLORIDA AUDUBON SOCIETY, )

)

Petitioners, ) DOAH CASE NO. 91-6823

v. ) SJRWMD FILE OF RECORD

) NO. 91-1107

JIM SABOFF and ST. JOHNS RIVER )

WATER MANAGEMENT DISTRICT, )

)

Respondents. )

________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings ( DOAH), by its

duly designated Hearing Officer, the Honorable Robert E. Meale, held a formal

administrative hearing in the above-styled case on March 18-19, 1992 in Orlando,

Florida.

APPEARANCES

For Petitioner Friends of the

Wekiva: EDMUND T. BAXA, JR.

Foley and Lardner

111 North Orange Avenue

Suite 1800

Orlando, Florida 32801

For Petitioner Florida

Audubon Society: CHARLES LEE

The Greater Mall

460 Highway 436, Suite 200

Casselberry, Florida 32707

For Respondent Jim Saboff: MICHAEL D. JONES

Post Office Box 3567

Winter Springs, Florida 32708

For Respondent St. Johns

River Water Management District: KATHRYN L. MENNELLA

Post Office Box 1429

Palatka, Florida 32178-1429

BACKGROUND

Mr. Saboff submitted Management and Storage of Surface Waters (" MSSW")

permit application no. 4-117-0298A to the District seeking approval to construct

a single-family residence, including related structures, on his lot abutting the

Little Wekiva River. Following a review of the application, District staff

prepared a technical staff report (" TSR") dated May 28, 1991, recommending

approval of the application with certain conditions. "Other Condition No. 2" in

the TSR contained specifications for a deed restriction or conservation easement

on the Saboff lot which would prohibit all construction including clearing,

dredging, or filling, except that specifically authorized by the permit.

On June 11, 1991, the District Governing Board approved the permit

application consistent with the District's published June 2, 1991 intended

action as contained in the TSR, except that the Board deviated from the intended

action in one relevant respect. The Governing Board modified Condition No. 17

(formerly "Other Condition No. 2" of the TSR), making it somewhat more flexible

as to potential activities which could occur by adding the following sentence:

"The easement may allow for some limited vegetation removal of trees less than

four inches in diameter and of underbrush, to be agreed upon by District staff

and the permittee."

Although Mr. Saboff filed no Section 120.57, Florida Statutes ( F.S.)

petition challenging the District's intended action or its action on June 11th,

the Petitioners responded to the June Board action by filing a Petition for

Formal 120.57(1) Hearing on July 16, 1991. This petition challenged issuance of

the MSSW permit and stated that notice of the revised District action had been

received on July 2, 1991.

On August 5, 1991, the District served a Motion to Strike all allegations

of the petition except those challenging the propriety of the revised permit

condition, on the ground that all other issues had been waived.

On November 20, 1991, Petitioners filed an Amended Petition for Formal

120.57(1) Hearing limiting the scope of their challenge.

Thereafter, the parties entered into a Partial Settlement Agreement in this

case, in which they stipulated that Mr. Saboff could undertake the construction

of his proposed residence within a previously cleared area of the lot and within

certain specified other areas, under the terms of a District Interim Order

Authorizing Limited Construction. Under this agreement and order, no other

construction was authorized on the remainder of the lot. The Partial Settlement

Agreement also stated:

The parties agree that the only matter at issue in

this administrative proceeding is the modification to

permit condition no. 17 approved by the St. Johns

River Water Management District ("District"), on June

11, 1991 (permit no. 4-117-0298).

On March 18-19, 1992, a formal administrative hearing was held in Orlando,

Florida. A Motion in Limine filed by Petitioners was argued at the beginning of

the formal hearing. In his Recommended Order, the Hearing Officer granted the

Motion except as to the relief requested regarding the clearing within the

conservation easement.

Petitioners and St. Johns River Water Management District filed Proposed

Recommended Orders.

On June 26, 1992, Mr. Meale submitted to the St. Johns River Water

Management District, and all parties to this proceeding, a Recommended Order, a

copy of which is attached as Exhibit "A". No

Exceptions were due July 13, 1992. No exceptions were filed. This matter

then came before the Governing Board on August 7, 1992, for final agency action.

STATEMENT OF THE ISSUES

The issue in this case is the sufficiency of the language of condition 17

of the St. Johns River Water Management District permit to be issued to Jim

Saboff for the management and storage of surface waters.

ACCORDINGLY, IT IS HEREBY ORDERED:

1. The Hearing Officer's recommended findings of fact and conclusions of

law contained in Exhibit A are adopted and incorporated herein.

2. The following typographical errors are corrected:

a. In Paragraph 32, the reference to the drawing received by the

District on May 28, 1992 should read May 28, 1991.

b. In the Recommendation, referenced to the drawing received by the

District on May 28, 1992 should read May 28, 1991 and reference to Section

704.05, F.S. should read Section 704.06, F.S.

DONE AND ORDERED this 7th day of August 1992, in Palatka, Florida.

ST. JOHNS RIVER

WATER MANAGEMENT DISTRICT

BY: _______________________

JOE E. HILL

CHAIRMAN

RENDERED this 13th day of August 1992.

BY: _______________________

PATRICIA C. SCHULTZ,

DISTRICT CLERK

Copies to:

EDMUND T. BAXA, JR.

Attorney for Friends of the Wekiva

Foley and Lardner

111 North Orange Avenue, Suite 1800

Orlando, Florida 32801

CHARLES LEE

Representative for Florida Audobon Society

The Greater Mall

460 Highway 436, Suite 200

Casselberry, Florida 32707

MICHAEL D. JONES

Attorney for Respondent Jim Saboff

Post Office Box 3567

Winter Springs, Florida 32708

KATHRYN L. MENNELLA

Attorney for Respondent St.

Johns River Water Management District

Post Office Box 1429

Palatka, Florida 32178-1429