03-000333 Bruce Lahey vs. Southwest Florida Water Management District And Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, May 7, 2003.

Summary: Project which had minimal or insignificant adverse impact on water resources qualified for exemption from regulatory review.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE LAHEY, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0333

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

P ursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on March 27,

2003, in Bartow, Florida.

APPEARANCES

For Petitioner: Bruce Lahey, pro se

5280 Waterwood Drive

Bartow, Florida 33830 - 9766

For Respondent: Martha A. Moore, Esquire

(District) Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34604 - 6899

For Respondent: Doreen Jane Irwin, Esquire

(Department) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

The issue is whether the Southwest Florida Water

Management District's (District's) proposed construction of a

temporary floating weed barrier across the mouth of the canal

exiting to the southwest side of Lake Hancock in Polk County,

Florida, is exempt from regulatory review under Section

373.406(6), Florida Statutes.

PRELIMINARY STATEMENT

This matter began on September 27, 2002, when Respondent,

Department of E nvironmental Protection (Department), advised

the District that its proposed construction of a temporary

floating weed barrier across the mouth of a canal exiting from

Lake Hancock (Lake) had only minimal or insignificant adverse

impacts on water resources and therefore the project was

exempt from regulatory review; that authorization to use

state - owned submerged lands for the construction of the

project was granted; and that the project complied with the

State Programmatic General Permit (SPGP) program.

On October 28, 2002, Petitioner, Bruce Lahey, who resides

near, and fishes and boats in, the Lake, filed with the

Department a request for an extension of time to file a

petition challenging the proposed agency action. This request

was granted, and Petiti oner filed an unsigned Petition for

Administrative Hearing on December 2, 2002. After a Motion to

Dismiss Without Prejudice was filed by the District due to a

lack of a signature on the paper, on December 31, 2002,

Petitioner filed a signed pleading. On January 29, 2003, the

matter was forwarded by the Department to the Division of

Administrative Hearings with a request that an Administrative

Law Judge be assigned to conduct a hearing.

By Notice of Hearing dated February 13, 2003, a final

hearing was sc heduled on March 27, 2003, in Bartow, Florida.

At the final hearing, Petitioner testified on his own behalf

and offered Petitioner's Exhibits 1 - 4, which were received in

evidence. The District presented the testimony of Dale

Ravencraft, a structure opera tions manager and accepted as an

expert; Brian V. Nelson, an aquatic plant management manager

and accepted as an expert; and Matthew V. Phillips, a regional

biologist and accepted as an expert. Also, it offered

District Exhibits 1 - 10, which were received in evidence. The

Department presented the testimony of Robert Stetler, an

environmental resources administrator and accepted as an

expert, and offered Department Exhibit 1, which was received

in evidence. Finally, the undersigned took official

recognitio n of Chapter 373, Florida Statutes.

The Transcript of the hearing (two volumes) was filed on

April 9, 2003. Proposed Findings of Fact and Conclusions of

Law were filed by Petitioner and jointly by Respondents on

April 21 and 24, 2003, respectively, and th ey have been

considered by the undersigned in the preparation of this

Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

a. Background

1. This proceeding involves a request by the Distri ct

for authorization to construct a temporary floating weed

barrier across the mouth of the canal exiting the southwest

side of the Lake in Polk County, Florida (County). After

reviewing the request, and based on its determination that the

project would " have only minimal or insignificant individual

or cumulative adverse impacts on the water resources of the

State," on September 27, 2002, the Department concluded that

the project qualified for an exemption from regulatory review

under Section 373.406(6) , Florida Statutes. The Department

also authorized the District to use state - owned submerged

lands, if applicable, for the construction of the project, and

it found that the project was in compliance with the SPGP

program and thus required no further perm itting from the

United States Army Corps of Engineers (Corps of Engineers).

Even if the Department had not considered the project to be

exempt, it concluded that it had sufficient information and

assurances from the District to grant a Noticed General

Env ironmental Resource Permit (ERP) authorizing the requested

activity.

2. On December 2, 2002, Petitioner, Bruce Lahey, who has

resided and owned property on the southwest side of the Lake

for 15 years and regularly uses the Lake for fishing and

recreatio nal purposes, filed a Petition for Administrative

Hearing (Petition) challenging the proposed agency action. In

his Petition, as later clarified and narrowed in the parties'

Joint Pre - Hearing Stipulation, Mr. Lahey contends that a weed

barrier is no longe r necessary since there has not been a weed

problem in the Lake since late 2002; that the placement of a

weed barrier will make access to and from the Lake more

difficult and create a safety hazard; and that in the event a

problem arises again, the more de sirable options for removing

the weeds are "a 'cookie - cutter,' mechanical harvester, or the

spraying of [the] tussocks," rather than erecting a barrier.

Finally, Mr. Lahey contends that as a matter of law, Section

369.20, Florida Statutes, bars the constr uction of a barrier.

He has not challenged the Department's authorization for the

District to use state - owned submerged lands or its

determination that the project complies with the SPGP program,

and therefore those aspects of the proposed agency action a re

not in issue. Respondents do not dispute that Mr. Lahey has

standing to bring this action.

b. The Lake and Control Structure

3. The Lake is an approximately 4,500 - acre Class III

waterbody located east of Highway 98 and Highland City,

southeast of Lakeland, and just northeast of the City of

Bartow (Bartow). It receives drainage from a significant

portion of the County, including three streams and runoff from

a surrounding 131 - square mile watershed. Waters discharge

from the Lake to Saddle Creek ( the canal), which exits at the

southwest end of the Lake and runs in a southerly direction

for around a mile and a half until it merges with the Peace

Creek, where the two then become the Peace River. At the

confluence of the canal and Peace Creek, the wa ters flow

through a broad, flat floodplain. Water moves slowly through

this area, which can affect the ability of the Lake to

discharge, especially during flood conditions. Like the Lake

and canal, the Peace Creek also has a significant contributing

basi n.

4. The canal contains a District - owned and operated

water control structure known as Water Control Structure P - 11

(the control structure) consisting of two twenty - foot radial

arm gates that are raised when necessary to manage the water

levels on the L ake and prevent the flooding of lakefront

property. The control structure is approximately 3,000 feet

or so south of the Lake and is the only control structure

regulating water levels for the Lake. The gates are d esigned

to discharge at a flow level of 1, 100 cubic feet per second

(cfs). The invert elevation of the control structure is 91.7

feet and the crest elevation is 98.7 feet. Flows from the

Lake will exceed 1,100 cfs when the water levels are higher

than the crest elevation of the structure. At th is point,

water flows over the structure’s weirs and flood control is no

longer provided.

5. The maximum desirable water elevation level for the

Lake is 98.5 feet above mean sea level (msl). Typically, the

District begins to operate, or open, the contr ol structure

when the Lake's water elevation reaches 98.25 feet msl. A

water level of 99.0 feet msl is considered minimum flood level

(or high guidance level). The low management water elevation

(low guidance level) is 96.0 feet msl. These established

w ater levels have been maintained at the Lake since

approximately 1981.

6. The District seeks to hold the water level of the

Lake close to the maximum desirable level, and typically tries

to hold the water level at 98.25 feet msl, which is slightly

below the maximum desirable level of 98.5 feet msl, to allow

storage of water and some response time.

7. The control structure is intended primarily to be a

water conservation structure that regulates the Lake's water

levels to benefit the water resources, to include the Lake and

the Peace River. In managing the Lake's levels, the District

balances conservation of the water resource and public

safety/flooding concerns.

8. The Lake's water level elevations are monitored

through the District’s Supervisory Con trol and Data

Acquisition System (SCADA), which measures the water level and

transmits hourly data to the District offices via satellite.

SCADA monitors are located immediately upstream and downstream

of the control structure. Since the tussock blockage events

in the summer and fall of 2002, described more fully below,

the District has installed an additional SCADA monitor on the

north end of the Lake so that water levels in the Lake and

canal can be compared.

9. The Lake does not have direct public ac cess or a

public boat ramp and is not easily accessible. In addition,

in the canal, there is only one unimproved location upstream

from the control structure where boats can be placed in the

water and gain access to the Lake.

10. That portion of the can al which lies between the

Lake and the control structure has not always been open to

boat access. In the 1980’s, a floating weed barrier extended

across the canal approximately 1,000 feet upstream from the

current control structure, which blocked the cana l and boat

access. This floating weed barrier was installed primarily to

address problems with water hyacinths that would float down

the canal and interfere with the control structure. This

floating barrier gave way sometime in the 1990’s. An earlier

co ntrol structure also used to exist in this area, which

blocked canal access.

11. Navigation of the canal is limited due to the

existence of the control structure and a number of other

blockages further downstream, including a low bridge where old

Highwa y 17 crosses the canal. Thus, boats coming from the

Lake cannot navigate down the canal any further than the

control structure, or slightly more than one - half mile,

without taking the boat out of the water.

12. Between 1999 and 2001, the District exper ienced one

of the most severe droughts on record. During this time, the

Lake went dry except for some isolated pools of water.

Because of these conditions, a significant amount of wetland

or aquatic vegetation began to grow on the exposed bottom of

the L ake. The Lake historically did not support much plant

growth, due to its eutrophic condition, poor water quality,

and gelatinous mucky lake bottom. The types of vegetation

currently existing in the Lake include cattails, pickerelweed,

duck potato, and primrose willow.

13. Following the return of summer rains and El Nino

conditions in 2002, the Lake rebounded to within normal water

levels. Because of the return of water in the Lake, the

buoyant pressure of the water combined with the flaccid nature

of the mucky lake bo ttom caused significant portions of

vegetation to become uprooted, which formed an extensive

amount of tussocks.

14. Tussocks are floating mats of uprooted aquatic

vegetation. They contain plant and organic material

accumulated around the plant roots, can range from a few feet

across to one hundred feet across or larger, and can reach a

height of more than four feet. Once tussocks form, they move

about the Lake by wind and water currents.

15. The amount of vegetation currently existing in the

Lake e xceeds historic levels. At the present time, the

District estimates that approximately 2,000 acres of the Lake

are covered with tussocks, and that due to the flaccid nature

of the lake bottom, the tussocks are susceptible to becoming

uprooted through fluc tuating water levels, wind, and wave

action. Therefore, there is a strong potential that much of

the currently rooted vegetation will form tussocks.

16. Tussocks first impacted the District’s ability to

operate the control structure in July 2002. Dur ing this

event, the canal became partially filled with tussocks.

Because the blockage occurred during the rainy and hurricane

seasons, the District undertook efforts to clear the canal of

tussocks. District staff used mechanical equipment commonly

called a cookie cutter to break up the tussocks and flush them

downstream through the control structure. During this tussock

event, the Lake's water levels rose briefly above the maximum

desirable level of 98.5 feet msl and then fell back to within

normal eleva tions.

18. In late August 2002, approximately three weeks after

the first tussock blockage event, a number of homeowners on

the Lake, including Petitioner's wife, contacted District

staff to advise that the water level of the Lake was rising

and floodin g their yards. A rise in water levels did not

register on the District’s water level monitoring SCADA

system. Visual observation of the Lake did reveal, however,

that there was a significant difference between the water

levels being experienced on the La ke and the water levels

reported at the control structure via the SCADA system.

19. During this tussock event, masses of tussocks had

completely filled the 3,000 - foot length of the canal all the

way to the control structure and were jamming against the

control structure gates. Tussocks had also formed a

vegetation dam approximately 900 to 1,400 feet north of the

control structure where they compacted and became lodged on

the bottom of the canal, significantly impeding the flow of

water. During this eve nt, flows out of the Lake were

significantly diminished to a fraction of what they should

have been.

20. The tussock dam caused the Lake's level to rise

above the minimum flood elevation of 99.0 feet and flood

Petitioner's yard. There was an approximat ely one to one and

one - half foot difference in the water levels in the Lake and

in the canal. In response to this disparity, t he District

installed a third water level elevation monitor at the

northern end of the Lake, so that it can monitor any

differenc es in water elevations between the Lake and the canal

and be alerted in the event that a blockage occurs in the

canal.

21. To eliminate the tussock blockage and restore flow

through the control structure, the District had to employ

mechanical means to b reak up and remove the tussocks. At the

control structure, a trac - hoe was initially used in an attempt

to force tussocks through the control structure, as tussocks

would not flow through the structure unassisted.

22. A cookie cutter was also employed, but it became

sucked into the control structure and was damaged and had to

be removed with a crane and repaired. The cookie cutter

proved ineffectual in addressing the tussock blockage problem.

23. If the canal were to again become clogged with

tussoc ks, any resulting blockage of flow from the Lake would

cause water levels to rise, which would endanger public safety

and welfare.

24. Prior to the tussock blockages experienced in the

summer and fall of 2002, problems with tussocks had never been

exper ienced at the Lake. The magnitude of the tussock

formation on the Lake is unique and has not been experienced

elsewhere in the District.

25. In 2002, the Department expended over $46,000.00 in

contracting for mechanical equipment and for spraying

herbi cide on tussocks to respond to the tussock buildup on the

Lake.

26. Since their formation after the summer of 2002,

tussocks have blocked Petitioner's access to his dock on

several occasions, thereby preventing him from being able to

take his boat out i nto the Lake or to return to the dock once

out on the Lake. The potential for similar blockages to occur

remains, regardless of whether a floating weed barrier is

erected as proposed.

27. The direction of the winds is a major factor in

determining where and how many tussocks will stack up in front

of anyone’s property along the Lake. Access to the canal

could become blocked with tussocks at any time, depending upon

how the wind blows.

28. Breaking up tussock blockages and flushing tussocks

through th e control structure does not eliminate water

resource problems for the District. Tussocks that are pushed

through the control structure cause downstream problems

requiring the District to expend resources to push the

tussocks through and under low downstr eam bridges crossing the

canal, as well as break up tussock blockages that form in

downstream waters.

29. In January 2003, tussocks again accumulated at the

control structure in such volume as to require assistance in

flushing through the control struct ure. As a result of the

large volume of tussocks pushed through the control structure,

a tussock blockage occurred at a downstream bridge crossing,

for which the District had to use mechanical equipment to

restore flow.

30. During March 2003, tussocks flushed through the

control structure created a jam downstream on the Peace River.

The tussocks were jammed up in a bend in the river and were

blocking navigational access to the river.

31. An El Nino weather cycle is currently being

experienced. Water levels, including the Lake's water level,

are already at their maximum and the ground is saturated.

Localized flooding events have occurred. A very active summer

rainy season is anticip ated, which will mean significant flood

control operations for the District. As the summer season

approaches, the District must keep the control structure open

and operational, which requires that the canal be kept open

and flowing.

32. A floating weed barrier at the entrance to the canal

would keep tussocks from clogging the canal and prevent

problems affecting operation of the control structure,

downstream tussock blockages, and possible flooding.

c. The Project

33. To address the problem of tussoc ks entering the

canal and causing blockages or possible flooding, on September

11, 2002, the District applied to the Department for a Noticed

General ERP under Rule 62 - 341.475(1)(a), Florida

Administrative Code, to authorize the construction of a

floating weed barrier at the entrance to the canal. On

September 27, 2002, the Department issued its notice of intent

to authorize the requested activity.

34. The proposed barrier will be constructed in two

sections arranged at approximately 90 - degree angles to e ach

other, with a twenty - foot opening between the sections to

allow boat access to the canal. A schematic drawing of the

barriers is found in District Exhibit 5 received in evidence.

As originally proposed, the barrier would consist of a total

of sixteen nine - inch diameter pilings driven twenty - one feet

apart, with twenty - foot sections of floating foam - filled

polyvinyl chloride pipe (pvc) connected to the pilings.

Pilings will be marked with reflective tape and five of the

pilings will have three - foot di amond - shaped reflective danger

signs reading "DANGER PILE/FLOAT BARRIER" placed on their

upstream and downstream sides. The pilings are twenty - five

feet in length and will extend above the Lake's water level

approximately twelve to fourteen feet.

35. S ince the District's submittal of the application

and the Department's authorization notice, the District has

located commercially manufactured floating booms, called

"Tuffbooms," that, if authorized, will be installed in lieu of

the foam - filled pvc pipes. Use of these booms reduces the

number of pilings needed from sixteen to eight, and their

bright orange color is more visible than pvc piping. All

other aspects of the proposed activity remain the same.

36. The change in material to be used in the

cons truction of the proposed floating barrier does not present

any water quality issues, nor does it affect the Department's

determination that the proposed activity will have minimal or

insignificant adverse impacts on the water resources.

37. The staggere d layout of the proposed floating weed

barrier is intended to keep tussocks in the Lake, where they

can remain subject to the winds, while providing boat access

to the canal in such a manner that is more difficult for

tussocks to enter the canal.

d. The Department's Exemption Process

38. The Department's Tampa District Office routinely

approves around 800 projects each year under various

exemptions authorized by statute or rule. One type of

exemption is found in Section 373.406(6), Florida Statutes,

re ferred to as the de minimus exemption, which allows the

Department to exempt from regulation those activities that are

determined will have only minimal or insignificant individual

or cumulative adverse impacts on the water resources of the

District. The Department is authorized to make this

determination on a case - by - case basis.

39. In determining whether an activity qualifies for a

de minimus exemption from permitting, the Department looks for

parallels to other specific statutory or rule exemptions a nd

analyzes the proposed activity similarly in terms of its

scope, construction methods, potential to create water quality

impacts or impediments to navigation, and other factors,

because these recognized exemptions are also deemed to have

minimal or insig nificant impacts to the water resources.

40. There is no specific exemption for a floating weed

barrier as proposed by the District, but the Department

considers this type of project to be similar in scope and

potential impacts to other specific activit ies that have been

determined to have minimal or insignificant adverse impacts to

the water resources, such as docks and other piling - supported

structures, navigational aids, and buoy systems.

41. In assessing whether a project is appropriate for

the de minimus exemption, the Department also looks to the

criteria for Noticed General ERPs for guidance in determining

whether a proposed project will have minimal or insignificant

adverse individual or cumulative impacts upon the water

resources.

42. Under Section 373.406(5), Florida Statutes, the

Department may by rule establish general permits for

activities that have, either singularly or cumulatively,

minimal environmental impact. Chapter 62 - 341, Florida

Administrative Code, sets forth the Noticed Gene ral ERPs

established by the Department.

43. Department Rule 62 - 341.475(1)(a), Florida

Administrative Code (as does District Rule 40D - 400.475(1)(a),

Florida Administrative Code), allows noticed general permits

for piling supported structures of less than 1,000 square feet

over wetlands or other surface waters, which are not

designated Outstanding Florida Waters. To qualify for a

noticed general permit for such activity, an applicant must

provide reasonable assurance that the proposed structure:

(a) Does not significantly impede

navigation and does not entail the

construction of a structure for the

launching or mooring of a boat when

navigational access to the structure does

not currently exist;

(b) Does not cause a violation of state

water quality stan dards;

(c) Does not impede the conveyance of a

stream, river or other watercourse in a

manner that would increase off - site

flooding;

(d) Does not adversely impact aquatic or

wetland dependent listed species;

(e) Does not cause the drainage of

wetland s; and

(f) Is not located in, on or over a coral

community, macro - marine algae or submerged

grassbed community.

e. Will the Project Impact Water Resources ?

44. The District’s proposed floating weed barrier will

involve less than 7.1 square feet of impact to the water

resources, which is significantly less impact in square

footage to the water resources than is allowed by Rule 62 -

341.475(1)(a), Florida Administrative Code, or occurs with

other specified exempt projects.

45. Best management practic es will be used in the

erection of the pilings and in the construction of the

barriers. Pilings will be jetted into the lake bottom without

need for any dredging or lake bottom removal.

46. Installation of a floating weed barrier will not

result in any significant detriment to existing conditions in

the Lake or the canal.

47. Installation of the proposed floating weed barrier

will benefit the public interest and the water resources by

allowing unimpeded operation of the control structure without

risk of tussocks causing blockages and flooding.

48. Installation of the proposed floating weed barrier

will not have significant adverse impacts on fishing, boating,

or recreational use of the Lake or canal. A blockage of the

canal entrance by tussocks, o r a tussock jam anywhere on the

Lake, could occur under present conditions, and similar

blockages have already occurred. The potential for tussocks

to block the opening between the sections of the floating weed

barrier is considered remote and of temporar y duration, due to

the potential for shifting winds.

49. The District’s proposed floating weed barrier is a

reasonable means of addressing the continuing potential for

tussocks to interfere with operation of the control structure.

50. Use of mechanic al equipment such as a cookie cutter

or harvester would not be an effective or economical means of

addressing tussock blockages in the canal or preventing their

occurrence and possible interference with operation of the

control structure.

51. Pushing tu ssocks through the control structure would

not be an effective means of addressing the potential for

tussocks to cause blockages and possible flooding. Merely

pushing the material through the control structure moves the

potential blockage problem downstre am and does not alleviate

the potential for tussocks to cause adverse impacts to the

water resources of the District.

52. Spraying tussocks with herbicides would not be an

effective means of addressing tussock blockages due to the

fact that, once treate d, tussocks can take weeks to die and

fall to the lake bottom. Floating tussocks are and will

continue to be treated with herbicide sprays when found in the

Lake to reduce the amount of tussocks. However, once tussocks

enter the canal, spraying serves li ttle benefit in preventing

tussocks from causing blockages or other problems.

53. Tussocks originate in the Lake and not in the canal.

Tussocks in the Lake have had and likely will continue to have

an impact on boating and recreational use of the Lake a nd

canal, as evidenced by tussock blockages to Petitioner's dock.

By confining the tussocks to the Lake, the potential for

tussocks to impact boating and recreational use of the Lake

will remain the same as current conditions, but the potential

for tussoc ks to affect operation of the control structure and

contribute to Lake flooding will be eliminated.

54. Petitioner contends that the proposed floating weed

barrier will impede navigation, either by itself or as a

result of tussocks piling up in front of the barrier. The

proposed barrier will be marked and visible through reflective

tape and signage. The barrier does not create a navigational

hazard and is not a significant impediment to access to the

canal. Constructed in two sections, the barrier pro vides an

opening that allows boat access to the canal. As noted above,

the likelihood of tussocks piling up at the barrier and

blocking the opening between the barrier sections is

considered remote and temporary.

55. Based upon the information provided by the District,

the proposed floating weed barrier will not significantly

impede navigation; will not cause a violation of state water

quality standards; will not impede the conveyance of a stream,

river, or other water course in a manner that would incr ease

off - site flooding; will not adversely impact aquatic or

wetland dependent listed species; and will not cause the

drainage of wetlands.

56. There is no evidence that the proposed activity is

located in, on, or over a coral community, macro - marine alg ae,

or submerged grassbed community or that it entails the

construction of a structure for the launching or mooring of a

boat for which navigational access does not currently exist.

57. The proposed activity would have only minimal or

insignificant indiv idual or cumulative adverse impacts on the

water resources of the District.

58. As an activity that has minimal or insignificant

adverse impacts on the water resources of the District, either

individually or cumulatively, the District’s project qualifie s

for an exemption pursuant to Section 373.406(6), Florida

Statutes, as well as a Noticed General ERP under Rule 62 -

341.475(1)(a), Florida Administrative Code.

59. The Department's exemption determination authorized

the District’s floating weed barrier fo r one year, presumably

so that the effectiveness of the barriers can be evaluated

during that period of time. If they are effective, an

extension or renewal of the authorization will be sought. If

the tussocks problem becomes less acute, or the barriers do

not achieve the desired purpose, they will be taken down. In

contrast, Noticed General ERPs authorize a particular activity

for five years.

f. Other Contentions by Petitioner

60. Petitioner has also contended that the proposed

activity may violate a condition of the District's Corps of

Engineers general permit by interfering with general

navigation. As found earlier, however, the more credible

evidence indicates otherwise. Moreover, it is presumed that

this issue was considered by the Corps of Eng ineers prior to

its approval of the project. In any event, that matter should

be raised with the Corps of Engineers, and not with the

Department.

61. Finally, Mr. Lahey contends that since at least late

2002, the Lake has been free of a tussocks problem and

therefore barriers are no longer needed. As noted above,

however, blockages have occurred at the control structure and

in the Peace River as recently as January and March 2003, and

such blockages were the direct result of tussocks which

originated in the Lake. Given the likelihood of a very active

summer rainy season, it is essential that the canal be kept

open so that the District can properly manage and control the

water resources.

CONCLUSIONS OF LAW

62. The Division of Adminis trative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes

(2001).

63. As the party seeking to have its project exempted

from regulatory review, the District carries the burden of

proving by a preponderance of the evidence that the project

qualifies for the statutory exemption. See , e.g. , Fla. Dept.

of Trans. v. J.W.C. Co., Inc. , 396 So. 2d 778, 787 (Fla. 1st

DCA 1981).

64. The criteria which must be met in order for the

District's project to be exempt from the requirement to obtain

an ERP are found in Section 373.406(6), Florida Statutes.

That provision reads as follows:

(6) Any district or the department may

exempt from regulation under this part

those activities that the district or

department determines will have only

minimal or insignificant individual or

cumulative adverse impacts on the water

resources of the district. The district

and the department are authorized to

determine, on a case - by - case basis, whether

a specific activity comes within this

exemption. Requests to qualify for this

exemption shall be submitted in writing to

the district or department, and such

activities shall not be commenced without a

written determination from the distict or

department c onfirming that the activity

qualifies for the exemption.

65. The greater weight of evidence shows that the

District has provided reasonable assurances that the proposed

activity will have only minimal or insignificant individual or

cumulative adverse imp acts on the water resources of the

District. Therefore, the requested activity should be

authorized.

66. In reaching this conclusion, the undersigned has

considered Petitioner's main contention that the floating weed

barrier will significantly impede nav igation. On this issue,

the evidence shows that access to the canal will not be

impeded after the barriers are constructed, and the barriers

will not constitute a navigational hazard or a significant

impediment to navigation. The minimal area occupied by the

barrier and any temporal loss of access to the canal that may

be attributed to tussocks floating in and around the proposed

barrier are not significant impacts to the public interest in

navigation. See , e.g. , Clarke and Traurig v. Melton and Dep't

of Env. Reg. , DOAH Case Nos. 89 - 6051 and 89 - 6135, 12 F.A.L.R.

4946, 4960 (DER Nov. 30, 1990)(minor inconveniences do not

constitute significant adverse impacts to navigation).

67. Finally, Mr. Lahey contends (without further

explication) that the project is barred by the terms of

Section 369.20, Florida Statutes. That provision is known as

the Florida Aquatic Weed Control Act and directs the

Department (rather than the District) to control, eradicate,

and regulate noxious weeds. As noted in the Findi ngs of Fact,

however, the Department is actively engaged in a spraying

program for the Lake (subject to monetary restraints imposed

by the Legislature). There is nothing in the statute which

bars the District from constructing barriers to aid it in

satisf ying its statutory responsibility of conserving,

protecting, managing, and controlling water resources within

its boundaries.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Department of Environmen tal

Protection issue a final order determining that the Southwest

Florida Water Management District's proposed project qualifies

for an exemption under Section 373.406(6), Florida Statutes;

that authorization to use state - owned lands be given; and that

the project is in compliance with the State Programmatic

General Permit program.

DONE AND ENTERED this _____ day of May, 2003, in

Tallahassee, Leon County, Florida.

___________________________________

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Cler k of the

Division of Administrative Hearings

this _____ day of May, 2003.

COPIES FURNISHED:

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Sta tion 35

Tallahassee, Florida 32399 - 3000

Bruce Lahey

5280 Waterwood Drive

Bartow, Florida 33830 - 9766

Martha A. Moore, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

Doreen Jane Irwin, Esquire

Depa rtment of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will render a final order in this matter.