76-001103 Crystal River Protective Association, Inc., Et Al. vs. Florida Power Corporation, Central Development Company Status: Closed Recommended Order on Friday, September 16, 1977.

Summary: Subject to acceptance of project and necessary approval of Trustees of the Internal Improvement Fund (TIITF), grant permit to construct power lines on two islands and adjacent waterways.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRYSTAL RIVER PROTECTIVE )

ASSOCIATION, INC., et al. , )

)

Petitioner , )

)

vs. ) CASE NO. 76-1103

)

STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL REGULATION , )

FLORIDA POWER CORPORATION and )

CENTRAL DEVELOPMENT COMPANY , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D.

Tremor, Hearing Officer with the Division of Administrative Hearings, in the

City/County Building Auditorium, 123 N.W. Highway 19, Crystal River, Florida,

commencing at 9:30 a.m. on July 27, 1977, and continuing on July 28 and 29,

1977. The captioned matter was consolidated for hearing purposes with Case No.

76-1102 (involving Central Development Company's application with the Department

of Environmental Regulation to construct a bridge), Case Nos. 77-849 and 77-850

(involving the Department of Environmental Regulation application of the Banana

Island Recreation Association, Inc. to construct a boardwalk), and Case No. 77-

960 (involving the granting of consent by the Department of Natural Resources

for the proposed bridge, power poles and lines and/or boardwalk). Separate

recommended orders are being entered for Case Nos. 76-1102, 77-849 and 850, and

77-960.

APPEARANCES

For Petitioners : Kenneth F. Hoffman, Esquire

Post Office Box 1872

Tallahassee, Florida 32302

For Respondents Alfred W. Clark, Esquire

Department of Assistant General Counsel

Environmental Department of Environmental Regulation

Reggulation: 2562 Executive Center Circle, E.

Montgomery Building

Tallahassee, Florida 32301

For Florida Mr. H. A. Evertz, III

Power Florida Power Corporation

Corporation: Post Office Box 14042

St. Petersburg, Florida 33733

For Central Baya Harrison, III, Esquire

Development: Post Office Box 391

Tallahassee, Florida 32302

APPEARANCE OF THOSE INVOLVED IN OTHER CONSOLIDATED CASES

For Florida David Gluckman, Esquire

Audubon Society : 3348 Mahan Drive

Tallahassee, Florida 32303

For Department Kent Z. Zaiser, Esquire

of Natural Assistant Department Attorney

Resources: Department of Natural Resources

Crown Building

Tallahassee, Florida

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, as well as a personal view of the subject premises by the undersigned,

the following relevant facts are found:

1. By an application submitted to the Department of Environmental

Regulation in January of 1976, Florida Power Corporation seeks a permit to

construct and maintain three electrical power poles, two on Banana Island and

one on Parker Island in the King's Bay area of Crystal River. Two spans of wire

are to exist between the three poles. The minimum clearance of the bottom wire

of the lines spanning between Parker and Banana Islands will be forty-four (44)

feet. The wires crossing Banana Island will be some 29 feet in height. The

wires will be stretched in a vertical fashion with three wires spaced one above

the other, and will carry 12,470 volts of power. Because a mean high water

survey was not performed, it is not known whether the three poles will be

located on privately or sovereignty-owned land. Inasmuch as Florida Power

Corporation has applied for the applicable permits from both the Department of

Environmental Regulation and the Department of Natural Resources (See Case No.

77-960), a finding on this issue is not necessary.

2. Darrell F. Howton, a field inspector with the Department of

Environmental Regulation, conducted two on-site visits and an appraisal of the

permit application. He recommended approval of the project. Finding that the

"short-term or immediate impact of the project will deal almost strictly with

the transportation of equipment to and from the site," the only recommendation

he made was that, in order to minimize the crushing of vegetation, a direct

route to the sites be taken with little moving around in the area with vehicles

or equipment. Mr. Howton considered potential impediments to navigation

resulting from the overhead wires, but found none due to their proposed heights.

3. The dredge and fill section of the Department of Environmental

Regulation gave notice of its intent to issue the permit applied for by the

Florida Power Corporation. Thereafter, the petitioners herein filed a request

for a hearing on the permit application, the Department of Environmental

Regulation transferred the petitions to the Division of Administrative Hearings

for hearing, Central Development Company as the owners of Parker and Banana

Islands intervened as a party-respondent, and the undersigned Hearing Officer

was duly designated to conduct the hearing. This matter was consolidated for

hearing purposes with Case Nos. 76-1102, 77-849, 77-850 and 77-960, for which

separate recommended orders are being entered.

4. The majority of testimony presented by the petitioners related to the

issue of whether or not the proposed power lines would create a hazard or a

serious impediment to navigation in the area between Parker and Banana Islands.

As noted above, the minimum clearance of the wires extending between these

islands is 44 feet. The depth of this area at high tide is between four and

five feet. The greater weight of the evidence was to the effect that sailboats

with masts higher than 35 to 40 feet were too large to use this particular

channel because their draft would be too great for the depth of the channel.

Deeper navigable waters exist on the west side of Banana Island, and it would

not be prudent for a large sailboat owner to risk the expenses and dangers of

becoming grounded in the more shallow waters. It was the testimony of the

distribution engineering supervisor for Florida Power Corporation that if the

power lines created any problems after their installation with respect to

sailboat masts, Florida Power would correct the situation by raising the lines

to accommodate local traffic.

5. Seaplanes (five or six per year) occasionally utilize the air space

between Banana and Parker Islands, depending upon the prevailing wind direction.

6. There would be no harmful or adverse effect upon the manatee by the

existence of the power poles or lines.

7. Several waterfront property owners testified that they felt their view

of the waters would be obstructed by the existence of the proposed power lines.

CONCLUSIONS OF LAW

8. The petitioners in this proceeding have failed to present sufficient

evidence that the proposed installation and maintenance of the power poles and

lines would create any adverse impact upon the water quality, air quality or

aquatic life or resources of the King's Bay area of Crystal River. Nor have

petitioners demonstrated that the power lines would create a hazard or serious

impediment to navigation in the area. Those sailboats with masts high enough to

confront the 44 foot high bottom wire of the lines between Parker and Banana

Islands would not reasonably use this pass because of the depth of the water in

the pass. Deeper waters without electrical wires are accessible to the larger

sailboats on the other side of Banana Island. The evidence did not reveal a

sufficient number of seaplanes which utilize this immediate area as to negate

the public interest in allowing the poles and lines to be permitted.

9. The common law riparian rights of waterfront property owners to an

unobstructed view of the channel and waters of King's Bay will not be violated

by the existence of the power lines. The diameter of each of the vertically

spaced lines is insufficient to block any property owners' view, and the owners

who testified live at a far enough distance from the proposed lines as to render

their effect minimal.

10. In summary, the evidence as a whole clearly demonstrates that the

installation and maintenance of the power poles and lines will comply with the

permitting provisions within the Department of Environmental Regulation's

jurisdiction under Florida Statutes, Chapters 253 and 403, specifically Section

253.123(2)(b) and 403.087(1). Prior to the issuance of any permit by the

Department of Environmental Regulation, the applicant must obtain and present to

the Department of Environmental Regulation the necessary form of consent from

the Board of Trustees of the Internal Improvement Trust Fund. Florida Statutes

Section 253.77(1976).

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is

recommended that Department of Environmental Regulation issue to the Florida

Power Corporation a permit authorizing and allowing the installation and

maintenance of the power poles and lines contained in its application. This

permit should not be issued unless and until the applicant receives and exhibits

the necessary form of consent from the Trustees of the Internal Improvement

Trust Fund, pursuant to Florida Statutes Section 253.77 (1976).

Respectfully submitted and entered this 16th day of September, 1977, in

Tallahassee, Florida.

___________________________________

DIANE D. TREMOR, Hearing Officer

Division of Administrative Hearings

Room 530, Carlton Building

Tallahassee, Florida 32304

[phone]

COPIES FURNISHED:

Kenneth F. Hoffman, Esquire

Post Office Box 1872

Tallahassee, Florida 32302

Alfred W. Clark, Esquire

Assistant General Counsel

Department of Environmental Regulation

2562 Executive Center Circle, E.

Montgomery Building

Tallahassee, Florida 32301

Baya Harrison, III, Esquire

Post Office Box 391

Tallahassee, Florida 32302

David Gluckman, Esquire

3348 Mahan Drive

Tallahassee, Florida 32303

Mr. H. A. Evertz, III

Florida Power Corporation

Post Office Box 14042

St. Petersburg, Florida 33733

Kent A. Zaiser, Esquire

Assistant Department Attorney

Department of Natural Resources

Crown Building

202 Blount Street

Tallahassee, Florida

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

AGENCY FINAL ORDER

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

BEFORE THE STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

CRYSTAL RIVER PROTECTION

ASSOCIATION, INC., et al.,

Petitioner,

vs. CASE NO. 76-1103

STATE OF FLORIDA, DEPARTMENT

OF ENVIRONMENTAL REGULATION,

FLORIDA POWER CORPORATION and

CENTRAL DEVELOPMENT COMPANY,

Respondent.

________________________________/

FINAL ORDER

BY THE DEPARTMENT:

On September 16, 1977, the duly appointed Hearing Officer in the above-

styled case entered and submitted by mail to the Department of Environmental

Regulation (hereafter the Department) and all parties a Recommended Order

consisting of Findings of Fact, Conclusions of Law and a Recommendation. A copy

of the Recommended Order is attached hereto as Exhibit A.

Pursuant to Department Rule 17-1.26(2), Florida Administrative Code, and

Section 120.57(1)(b )8., Florida Statutes, the parties were given an opportunity

to submit written exceptions to the Recommended Order. The Petitioners have

submitted Exceptions to Recommended Orders and a Request for Oral Argument, and

Respondent Central Development Company (hereafter Respondent) has submitted a

Response to Exceptions to Recommended Orders.

After due notice, oral arguments were presented before the Assistant

Secretary of the Department on November 1, 1977. As Assistant Secretary, I have

been expressly authorized by the Secretary of the Department to take final

agency action in this case during the Secretary's current absence from the state

on official business.

The basic issue to be resolved by these proceedings is whether Florida

Power Corporation (hereafter Applicant) should be issued a permit pursuant to

Sections 253.123 and 403.087, Florida Statutes, to construct three (3) power

poles in navigable waters of the state in Kings Bay, Citrus County. After

conducting an administrative hearing pursuant to Section 120.57, Florida

Statutes, the Hearing Officer, except as noted herein, has recommended that the

requested permit be issued.

Petitioners have raised numerous issues in their Proposed Recommended Order

previously submitted to the Hearing Officer and in their Exceptions. The issue

of immediate concern is whether the Applicant has complied with the requirements

of Section 253.77(1), Florida Statutes, and if it has not, what action should be

taken.

Section 253.77(1), Florida Statutes, provides:

"No department, including any division, bureau,

section, or other subdivision thereof, or any

other agency of the state possessing regulatory

powers involving the issuance of permits shall

issue any permit, license, or other evidence

of authority involving the use of sovereignty

or other lands of the state, title to which is

vested in the Board of Trustees of the Internal

Improvement Trust Fund or the Department of

Natural Resources under chapter 253, until the

applicant for such permit, license, or other

evidence of permission shall have received

from the Board of Trustees of the Internal

Improvement Trust Fund the required lease,

license, easement, or other form of consent

authorizing the proposed use and exhibited it

to such agency or department or subdivision

thereof having regulatory power to permit such use."

The Applicant has not yet complied with this section, but concedes its

applicability.

The Hearing Officer, in her Conclusions of Law and Recommendation,

recognized the applicability of Section 253.77, Florida Statutes. She states:

"This permit should not be issued unless and until the Applicant receives and

exhibits the necessary form of consent from the Trustees of the Internal

Improvement Trust Fund, pursuant to Florida Statutes Section 253.77 (1976)."

It has been suggested that a permit could be issued with the stipulation

that construction not begin until the appropriate Trustees' authorization has

been obtained. It is my opinion that this approach is precluded by that portion

of Section 253.77(1) which states, "No department . . . shall issue any permit .

. ."

It has also been suggested that this Department could withhold any action

until compliance with Section 253.77(1), Florida Statutes, has been

demonstrated. However, Section 120.60 (2), Florida Statutes, requires that the

application for a permit be approved or denied within forty-five (45) days after

a recommended order is submitted to the agency. If this time requirement is not

met, the application will be deemed approved. Therefore, agency action may not

be withheld.

Since the lack of Trustees' authorization in itself precludes the

Department from issuing the requested permit, the remaining issues raised by

Petitioners' Exceptions and Proposed Recommended Order need not be reached at

this time. Other than as it relates to Section 253.77(1), Florida Statutes,

this order shall not be construed to be an adoption or rejection of the Hearing

Officer's Recommended Order.

There is one additional issue which must be addressed. In oral argument,

Petitioners contended that the authority to take final agency action in this

case could not be delegated to the Assistant Secretary. The position of

Assistant Secretary was created by Section 4 of Chapter 75-22, Laws of Florida.

Section 6 of this act enumerated certain duties of the Secretary (not relevant

here) and stated that those duties were addition to those powers and duties of

heads of departments set forth in Chapter 20, Florida Statutes . . ."

Section 20.05(1)(b), Florida Statutes, provides that the head of a

department shall "[h]ave authority . . . to execute any of the powers, duties,

and functions vested in said department . . . through such assistants and

deputies as shall be designated by the head of the department . . . unless the

head of the department is explicitly required by law to perform the same without

delegation."

Since neither Section 403.087, supra, Section 253.123, supra, nor Chapter

120, Florida Statutes, explicitly require that the permit requested herein be

issued by "the Secretary", and since the power and duty to take action herein is

vested in "the department" by Sections 8 and 10, Chapter 75-22, Laws of Florida,

it is clear that the authority to take final agency action on the Recommended

Order submitted in thin case may be delegated to the Assistant Secretary.

After having considered the Recommended Order and record submitted herein,

together with Petitioners' Exceptions to Recommended Orders, Respondent's

Response to Exceptions, and oral argument, it is clear that the Applicant lacks

the authorization for use of sovereignty lands which is required by Section

253.77(1), Florida Statutes. Accordingly, it is

ORDERED that the permit requested by the Applicant must be and hereby is

denied. Upon submission of written evidence that proper authorization pursuant

to Section 253.77(1), Florida Statutes, has been obtained, the Department will

reconsider its final agency action in this matter and act within ten (10) days

of submission of such evidence.

DONE AND ENTERED this 3rd day of November, 1977, at Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL REGULATION

______________________________

VICTORIA J. TSCHINKEL

Assistant Secretary

2562 Executive Center Circle,

East

Montgomery Building

Tallahassee, Florida 32301

Copies furnished to:

Alfred W. Clark, Esquire

Baya Harrison, III, Esquire

W. E. Bishop, Jr., Esquire

Kent A. Zaiser, Esquire

H. A. Evertz, III, Esquire

David Gluckman, Esquire

Kenneth F. Hoffman, Esquire

Mr. Jim Brindell, Div. of Env. Perm.

Mr. Paul Parks, Office of Enforcement

Mr. David Puchaty, Southwest District