95-003589 Sarah E. (Betty) Berger vs. Southern Hy-Power Corporation, Board Of Trustees Of The Internal Improvement Trust Fund, And Department Of Environmental Protection Status: Closed Recommended Order on Friday, January 12, 1996.

Summary: Petitioner failed to prove lease of land for hydroelectric power generation in Greenway Corridor was contrary to deed restrictions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SARAH E. BERGER, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3589

)

SOUTHERN HY-POWER CORPORATION, )

BOARD OF TRUSTEES OF THE INTERNAL )

IMPROVEMENT TRUST FUND and )

STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Respondents, )

and )

)

WITHLACOOCHEE AREA RESIDENTS, INC., )

and BERNARD CAMPBELL, )

)

Intervenors. )

____________________________________)

RECOMMENDED ORDER

The final hearing in this case was held before Larry J. Sartin, Hearing

Officer, on November 3, 1995, in Inglis, Florida.

APPEARANCES

For Petitioner: Peter B. Belmont, Esquire

511 31st Avenue North

St. Petersburg, Florida 33704

For Respondents, Board of Trustees of the Internal

Improvement Trust Fund and Florida Department of

Environmental Protection:

Evelyn Davis Golden

Assistant General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent, Southern Hy-Power Corporation:

Daniel H. Thompson, Esquire

Berger & Davis, P.A.

215 South Monroe Street, Suite 804

Tallahassee, Florida 32301

For Intervenors: Scott Shirley, Esquire

Timothy P. Atkinson, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A.

Post Office Box 6507

Tallahassee, Florida 32314-6507

STATEMENT OF THE ISSUE

The issue in this case is whether the Board of Trustees of the Internal

Improvement Trust Fund should approve the execution by the Florida Department of

Environmental Protection of a sublease of lands owned and administered by the

Board of Trustees of the Internal Improvement Trust Fund to Southern Hy-Power

Corporation.

PRELIMINARY STATEMENT

On or about April 25, 1995, the Governor and Cabinet, sitting as the Board

of Trustees of the Internal Improvement Fund, approved a request from Southern

Hy-Power Corporation to sublease property located near Inglis, Florida, for the

purpose of producing electric power. The Florida Department of Environmental

Protection was authorized to enter into a sublease of the property to Southern

Hy-Power Corporation.

Petitioner, Sarah E. Berger, filed a letter challenging the decision of the

Board of Trustees of the Internal Improvement Fund and requesting a formal

administrative hearing. The request for hearing was referred to the Division of

Administrative Hearings by Request for Assignment of Hearing Officer and Notice

of Preservation of Record filed July 5, 1995.

The Board of Trustees of the Internal Improvement Fund and the Department

of Environmental Protection filed a Motion to Dismiss on August 8, 1995. That

motion was denied by an Order Denying Motion to Dismiss.

On September 1, 1995, the Withlacoochee Area Residents, Inc., and Bernard

Campbell filed a Petition for Intervention Into Formal Administrative Hearing.

Intervention was granted by an Order Granting Intervention. That Order

incorrectly referred only to the Withlacoochee Area Residents, Inc., and not

Bernard Campbell. Mr. Campbell is also an Intervenor in this proceeding.

On October 16, 1995, Southern Hy-Power Corporation filed a Motion to Strike

and Motion in Limine. Argument concerning the motions was heard during a

prehearing conference held on October 17, 1995. At the conclusion of the

prehearing conference the parties were given an opportunity to file pleadings

concerning the issues raised in the motions. The Board of Trustees of the

Internal Improvement Fund and the Department of Environmental Protection filed

Respondents' Memorandum of Law Regarding Impact of the Florida Legislature's

Declaration of Compatibility. Petitioner filed Petitioner's Memorandum in

Opposition to Respondent Hy-Power's Motion to Strike/in Limine. Intervenors

filed a Memorandum in Opposition to Motion to Strike and in Limine. The parties

were informed during a telephone conference on or about November 2, 1995, that

the motions were granted in part and denied in part.

At the final hearing the Board of Trustees of the Internal Improvement Fund

and the Department of Environmental Protection presented the testimony of Bruce

Staskiews, Karen S. Kuhlman and David Bowman. Twelve exhibits were offered by

the Board of Trustees of the Intervenal Improvement Fund and the Department of

Environmental Protection. Those exhibits were accepted into evidence.

Southern Hy-Power Corporation presented the testimony of Robert Karow.

Souther Hy-Power Corporation offered 6 exhibits. Those exhibits were accepted

into evidence.

Petitioner presented no witnesses and offered no exhibits. Petitioner

filed an Amended Petition for Hearing at the commencement of the final hearing.

Intervenors presented the testimony of Bernard Campbell. Intervenors

offered five exhibits. Those exhibits were accepted into evidence.

A transcript of the final hearing was filed November 20, 1995. Proposed

recommended orders were, therefore, required to be filed on or before December

11, 1995. A Motion for Extension of Time, requesting permission to file

proposed recommended orders on or before December 15, 1995, was subsequently

granted.

All of the parties timely filed proposed orders. Petitioner and

Intervenors filed a joint proposed order. A ruling on each proposed finding of

fact proposed by the parties has been made either directly or indirectly in this

Recommended Order or the proposed finding of fact has been accepted or rejected

in the Appendix which is attached hereto.

FINDINGS OF FACT

A. The Parties.

1. It was stipulated at the commencement of the hearing that the facts

alleged by Petitioner, Sarah E. Berger, and Intervenors, the Withlacoochee Area

Residents, Inc. (hereinafter referred to as "WAR"), and Bernard Campbell in

support of their standing were correct.

2. Southern Hy-Power Corporation (hereinafter referred to as "Hy-Power"),

is an applicant for a lease of property owned by the State of Florida. The

president of Hy-Power is Robert Karow.

3. The Board of Trustees of the Internal Improvement Fund (hereinafter

referred to as the "Board of Trustees"), consists of the Governor and Cabinet.

The Board of Trustees is charged with responsibility for the administration of

the property at issue in this proceeding.

4. The Department of Environmental Protection (hereinafter referred to as

the "Department"), is an agency of the State of Florida. The Department holds a

sublease from the Board of Trustees of the property at issue in this proceeding.

B. The Lease Property.

5. Hy-Power has proposed to lease property owned by the State of Florida.

6. The property at issue (hereinafter referred to as the "Property"), is

located in Levy County, Florida. The Property is an irregularly shaped parcel

consisting of approximately .61 of an acre. The Property is approximately 500

feet by 75 feet.

7. The Property is located adjacent to, and on the south side of, a lock

known as the Inglis Lock By-Pass Channel Spillway Dam (hereinafter referred to

as the "Spillway Lock").

8. The Spillway Lock is located on the Inglis By-Pass Channel (hereinafter

referred to as the "Spillway Channel"). The Spillway Channel connects Lake

Rousseau with the Withlacoochee River. Lake Rousseau is located on a completed

portion of a canal known as the Cross Florida Barge Canal.

9. The Spillway Channel allows water to flow from Lake Rousseau and a

portion of the Cross Florida Barge Canal which splits the Withlacoochee River

into that portion of the Withlacoochee River which continues on to the Gulf of

Mexico, approximately 11 miles upstream and to the west of the Property.

C. Ownership of the Property.

10. The Property was part of a larger parcel of property previously owned

by George and Mertice Hawkins (hereinafter referred to as the "Hawkins

Property").

11. The Hawkins Property was conveyed without restriction by the Hawkins

to the Cross Florida Barge Canal Authority (hereinafter referred to as the

"Canal Authority"), on February 1, 1965. The Hawkins Property is identified by

a pink outline on DEP exhibits 1 and 3.

12 The Hawkins Property included parcels identified as 2000 E-5 and 2000-

2.

13. The upland portion of the Property is located within parcel 2000 E-5.

Parcel 2000 E-5 is identified by a blue outline on DEP exhibits 1, 2 and 3. The

remainder of the Property, approximately 45 feet at the westerly end of the

Property, is located in parcel 2000-2. The portion of the Property located in

parcel 2000-2 is located entirely within the Spillway Channel.

14. In 1966 the Canal Authority transferred ownership of parcel 2000-2 to

the United States for use in the Cross Florida Barge Canal project.

15. In 1967 the Canal Authority granted a permanent easement on parcel

2000 E-5 to the United States for use in the Cross Florida Barge Canal project.

Other than the permanent easement held by the United Sates, the State of Florida

has held continuous ownership of Parcel 2000 E-5 since 1965.

16. The Cross Florida Barge Canal project was originally intended to

provide navigation capacity across the State of Florida from just north of

Crystal River on the Gulf of Mexico to the eastern terminus of the St. Johns

River near Jacksonville, Florida.

17. The United States conveyed its interest in parcels 2000-2 and 2000 E-5

to the State of Florida through the Board of Trustess by quit claim deed dated

July 26, 1993.

18. On June 8, 1993, the Canal Authority conveyed its interest in parcel

2000 E-5 to the Board of Trustees.

D. Abandonment of the Cross Florida Barge Canal Project.

19. In 1990 the United States abandoned the Cross Florida Barge Canal

project and proposed to transfer lands intended for use in the project to the

State of Florida. Section 402 of P.L. 101-640. Subsection "B" of Section 402

of P.L. 101-640 required that the State of Florida agree to certain conditions

before ownership of lands which were intended for use as part of the Cross

Florida Barge Canal project were transferred to it.

20. During the 1990 session of the Florida Legislature, Chapter 90-328,

Laws of Florida, was enacted providing for the use of former Cross Florida Barge

Canal project property as part of the "Cross Florida Greenbelt State Recreation

and Conservation Area".

21. In January of 1991 the Governor and Cabinet passed a Resolution

agreeing, on behalf of the State of Florida, to the terms and conditions of the

abandonment of the Cross Florida Barge Canal project, including Subsection "B"

of Section 402 of P.L. 101-640, imposed by the United States. Pursuant to the

Resolution, it was stated that deauthorization of the Cross Florida Barge Canal

project would be pursued "for the purpose of preserving, to the maximum extent

possible, a greenbelt corridor of unspoiled wetlands, forests, and waterway, to

provide a habitat for many endangered species and for public recreation."

22. On August 30, 1992 the Board of Trustees approved the Florida

Greenways State Recreation and Conservation Management Plan (hereinafter

referred to as the "Management Plan"). The Management Plan sets out the

intended uses of lands which were originally intended to be used as part of the

Cross Florida Barge Canal, including the Property.

23. The Management Plan was ratified by the Florida Legislature in 1993.

Chapter 93-213, Section 48, 1993 Laws of Florida. Sections 48 and 49 of Chapter

93-213, Laws of Florida, was enacted to provide guidance and alternatives for

establishing greenway boundaries and developing and maintaining greenway

activities. No specific management plan recommendation was required to be

implemented except as specified by statute.

24. The Legislature has enacted Section 253.7829(1)(c), Florida Statutes:

The development of hydro-electric power is a

compatible use of greenway land and may be

considered by the [Board of Trustees] as a

allowable use within the greenways of Lake

Rousseau and the lower Withlacoochee River,

provided that such hydro-electric power complies

with all requisite state and federal environmental

and water management standards.

25. The Board of Trustees leased the Hawkins Property to the Department's

Office of Greenways and Trails by a Lease Agreement dated October 27, 1993.

E. The Proposed Use of the Property.

26. Hy-Power has proposed to construct and operate a hydroelectric power

generating facility with an installed capacity of 2.8 to 3.0 megawatts on the

Property.

27. The proposed facility will consist of a single-pit turbine with gears,

generator, and all appurtenances necessary to produce electric power.

28. The proposed facility will utilize the available flows of water from

Lake Rousseau passing through the Spillway Lock and Spillway Channel on the way

to the lower Withlacoochee River. Such a facility is known as a "run-of-the-

river" facility.

29. Water flowing down the Spillway Channel will enter the upstream side

of the facility, pass through the turbine rather than through the Spillway Lock

gates, and be discharged into the existing tailrace 50 feet below the end of the

Spillway Lock downstream wing wall.

30. In order to construct the facility that will house the turbine an area

immediately adjacent to, and south of, the Spillway Lock will be excavated. The

proposed facility has been described, in part, as follows:

It is proposed to construct a powerhouse adjacent

to the By-pass Channel Dam on the south side of

the conduit and will be about 28 feet wide by 115

feet long, plus an additional open concrete inlet

channel of approximately 45 feet, drawing water

from the Inglis By-pass Channel conduit, passing

it through a single pit type turbine and dis-

charging downstream of the Inglis By-pass Dam.

Physical features of the proposed project are

arranged for the installation of the pit type

of generating unit. The waterway and powerhouse

will be below grade with only the controls house

and substation above grade. The forebay will be

formed between the entrance to the By-pass Channel,

the Inglis By-pass Dam and the turbine inlet. The

intake will consist of an open channel, conrate

and rip-rap, with the normal channel width of 98

feet widened to include the powerhouse along side

the existing dam. The intake to the turbine would

be protected by a long boom and trash rack. There

is another trash rack at the entrance to the By-

pass Channel.

The rip-rapped portion of the intake channel (both

sides) is approximately 175 feet long and 143 feet

at its widest. . . . A small one story control

building, approximately 10 feet by 20 feet in plan,

will be the only portion of the powerhouse above

existing ground level. A low profile substation

about 25 feet by 25 feet in plan will be located

adjacent to the control building. . . .

See Southern exhibits 2 and 5.

31. Part of the shoreline of the Spillway Channel will be eliminated to

create ingress and egress of water from the Spillway Channel through the

facility. Cofferdams will be used during construction.

32. Once completed, no part of the facility will extend into the existing

Spillway Channel. Rip-rap will be placed in part of the Spillway Channel to

facilitate the flow of water through the facility.

33. One power pole will also be placed on the Property to allow connection

with an existing power line located on an existing Spillway Channel access road.

F. The Proposed Sublease of the Property.

34. The Lease Agreement to the Department's Office of Greenways and Trails

requires that prior written consent of the Board of Trustees to any assignment

of the lease, in whole in part, be obtained by the Department.

35. On April 25, 1995, the Board of Trustees agreed to the execution by

the Department of a 30-year sublease of the Property to Hy-Power with two, ten-

year extensions (hereinafter referred to as the "Proposed Sublease"). It is the

proposed approval of the Proposed Sublease that Ms. Berger and the Intervenors

have challenged in this proceeding.

36. The Proposed Sublease authorizes use of the Property "for purposes of

producing electrical power subject to all the requirements and conditions

contained herein."

37. The Proposed Sublease requires that the sublessee, Hy-Power, "prevent

any unauthorized use of the subleased premises not in conformity with the

sublease agreement."

38. The Proposed Sublease also provides that Hy-Power is responsible for

"security, including fencing of the subleased premises as required by the

sublessor."

G. Conditions of the July 26, 1993 Quit Claim Deed.

39. The July 26, 1993 quit claim deed from the United States to the State

of Florida provides, in part, the following conditions:

(2) The State agrees to preserve and maintain

a greenway corridor open to the public for

compatible recreation and conservation activities

along the project route over lands conveyed herein

and lands acquired by the State or State Canal

Authority and lands acquired along the project

route in the future by the State or State Canal

Authority, to the maximum width possible, as

determined in the management plan to be developed

by the State for former project lands. Such

greenway corridor shall not be less than 300

yards wide, except for the following areas:

(A) Any area of the project corridor

where, as of 28 November 1990, no land

was owned by the State or State Canal

Authority.

(B) Any area of the project corridor

where, as of 28 November 1990, the land

owned by the State or State Canal

Authority was less than 300 yards wide.

(C) Any area of the project corridor where

a road or bridge crosses the project

corridor.

. . . .

(4) The State agrees, consistent with paragraph

(2) above, and paragraph (5) and (6) below, to

preserve, enhance, interpret and manage the water

and related land resources of the area containing

cultural, fish and wildlife, scenic and recrea-

tional values in the remaining lands and interests

in land acquired for the project, lying west of

Sections 20 and 29, Township 15 South, Range 23

East, as determined by the State, for the benefit

and enjoyment of present and future generations

of people and the development of outdoor recreation.

Intervenors' exhibit 2 and DEP exhibit 6. Attached to the deed as Exhibit "A"

is a copy of the January 22, 1991 Resolution of the Governor and Cabinet.

40. Exhibit "B" to the July 26, 1993 quit claim deed describes "Recreation

Areas and Facilities" being transferred. Among other things, Exhibit "B"

includes the "INGLIS RECREATION AREAS LOCATED ON TRACTS 2000-1 and 2000-2".

41. In particular, the Inglis Recreation Area is described on Exhibit "B"

as including "[e]leven picnic sites" and "[o]ne playground area."

42. The portion of the Property to which the conditions of the July 26,

1993 quit claim deed from the United States apply consists of a part of parcel

2000-2 completely located within the Spillway Channel and an easement interest

in the upland portion of the Property which was part of parcel 2000 E-5.

H. Maximum Width of the Greenway Corridor.

43. The maximum width of the greenway corridor at the site of the Property

is approximately 1,525 feet. At the eastern end of the Property, the width of

the greenway corridor is approximately 1,450 feet.

44. The width of the portion of the greenway corridor from the northern

edge of the Property to the northern boundary of the greenway corridor is

approximately 230 feet.

45. The width of the portion of the greenway corridor from the southern

edge of the Property to the southern boundary of the greenway corridor is

approximately 1,200 feet.

46. The evidence failed to prove that the greenway corridor will be "less

than 300 yards wide" as a result of the Proposed Sublease of the Property.

I. Public Access.

47. A gravel road provides vehicular access to the north side of the

Spillway Lock.

48. Pedestrian access to land located to the south of the Spillway Channel

and north of a portion of a completed Cross Florida Barge Canal is currently

available across the Spillway Lock. A gate prevents vehicular access over the

Spillway Lock.

49. The area located to the south of the Spillway Channel and north of a

completed portion of the Cross Florida Barge Canal is used for recreational

purposes such as bird watching and fishing.

50. Two other points of access to the land located to the south of the

Spillway Channel and north of a completed portion of the Cross Florida Barge

Canal exist. One is a dirt road which runs from U.S. Highway 19 west of the

Spillway Channel to the south side of the Spillway Lock. The other access point

is located approximately 1 and 1/4 miles to the east of the Spillway Lock. Both

access points are gated, allowing only pedestrian traffic.

51. Access from the east requires a 1 and 1/4 mile walk. Access from the

west requires a longer walk. The evidence, however, failed to prove that access

to the area located immediately to the south of the Spillway Lock could not

reasonably be provided by some other means, i.e., opening the area to vehicular

traffic or building a foot bridge over the Spillway Channel at some other

location.

52. The evidence also failed to prove that access across the Spillway Lock

will necessarily be prevented. While it is true that the Proposed Sublease

requires that the Property be fenced, that requirement is limited to fencing "as

required by the [Department]." The weight of the evidence concerning this

requirement failed to prove that the Department will necessarily require that

the fencing be placed on the Property in such a way as to prevent public access.

It is possible that fencing could be required in such a way to prevent access to

the facility to be constructed on the Property and still allow pedestrian access

through a fenced corridor across the Spillway Lock and the Property.

J. Recreational Uses of the Property.

53. The evidence failed to prove that the Property itself is used for

recreational purposes. There are recreational activities that take place around

the Property. The evidence failed to prove that the proposed use of the

Property will curtail the continuation of those recreational activities.

54. The picnic sites and playground area referred to on Exhibit "B" of the

July 26, 1993 quit claim deed are located just to the north of the Spillway

Lock. They are located on part of parcel 2000-2. There is also a portable

toilet located in the same area. The location of these facilities is circled in

blue on DEP exhibit 2. At one point there were also 2 trash cans located south

of the Spillway Lock.

55. The area where the picnic sites are located has been in existence

since 1992 or 1993. The area was designated as a "park" as part of an Adopt-A-

Park program of the United States Army Corps of Engineers. WAR "adopted" the

"park". The "park" is known as "Spillway Park". WAR considers Spillway Park to

include the area immediately to the north and the south of the Spillway Lock.

The evidence failed to prove the exact boundaries of Spillway Park or that any

formal boundaries have ever been established.

56. There are no recreational amenities south of the Spillway Lock and

Spillway Channel.

K. Florida Power Corporation Deed Restrictions.

57. Lake Rousseau was originally impounded by construction of a dam known

as the Inglis Dam for use in the production of electrical power. Florida Power

Corporation operated a hydroelectric facility at Inglis Dam. Inglis Dam is

located near the head of the Spillway Channel, east of the Spillway Lock.

58. On April 7, 1965, Florida Power Corporation deeded certain lands to

the State of Florida. Those lands are located in Citrus and Levy Counties and

include the Inglis Dam.

59. The April 7, 1965 Florida Power Corporation deed contains the

following restriction:

This grant is made and accepted upon condition

that the lands, buildings, structures and improve-

ments herein conveyed shall be used exclusively

for public park and recreational purposes only,

except those lands utilized in the operation of

the Cross Florida Barge Canal, provided that no

part or portion of any of those lands conveyed

therein, together with the existing building,

lock, dam, and waterways located thereon, or

any buildings or structures hereinafter con-

structed on said lands, shall be utilized in

any way for the generation or production of

electric energy.

DEP exhibit 9.

60. The water that flows from Lake Rousseau through the Spillway Channel

passes through the property conveyed by the April 7, 1965 Florida Power

Corporation deed.

61. The Property is not located on any property conveyed by the April 7,

1965 Florida Power Corporation deed. The Property is located at least one mile

from the property conveyed by the April 7, 1965 Florida Power Corporation deed.

62. Hy-Power's proposed use of the Property does not entail the use of any

property conveyed by the April 7, 1965 Florida Power Corporation deed.

63. The evidence failed to prove that the Proposed Sublease of the

Property is inconsistent with the April 7, 1965 Florida Power Corporation deed.

CONCLUSIONS OF LAW

A. Jurisdiction.

64. The Division of Administrative Hearings has jurisdiction of the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes (1993).

B. Burden of Proof.

65. The burden of proof, absent a statutory directive to the contrary, is

on the party asserting the affirmative of the issue of the proceeding. Antel v.

Department of Professional Regulation, 522 So.2d 1056 (Fla. 5th DCA 1988);

Department of Transportation v. J.W.C. Co., Inc. 396 So.2d 778 (Fla. 1st DCA

1981); and Balino v. Department of Health and Rehabilitative Services, 348 So.2d

249 (Fla. 1st DCA 1977).

66. The Respondents were required to initially prove that Hy-Power had

sought approval of the Proposed Sublease and that the Board of Trustees had

approved the execution of the Proposed Sublease by the Department. The

Respondents met their burden.

67. Ms. Berger then had the ultimate burden to establish that the Proposed

Sublease should not have been approved by the Board of Trustees. Ms. Berger

failed to meet her burden.

C. Standing and Appropriate Forum.

68. The facts alleged by Ms. Berger and the Intervenors in support of

their standing to participate in these proceedings are sufficient to conclude

that they are substantially affected by the proposed action of the Board of

Trustees and the Department.

69. Hy-Power has questioned the standing of Ms. Berger and the Intervenors

suggesting that, in order for them to "enforce restrictive convenants", they

must first show that the convenants were made for their benefit. See Palm Point

Property Owners' Association of Charlotte County, Inc. v. Pisarski, 626 So.2d

195 (Fla. 1993).

70. Hy-Power's argument is rejected. Ms. Berger and the Intervenors are

not attempting to "enforce" the restrictive convenants. They are merely

challenging the proposed actions of the Board of Trustees and the Department.

They are suggesting that the Board of Trustees and the Department, in going

forward with the Proposed Sublease, must comply with any restrictions on the

Property--they are not seeking enforcement of the restrictions on their behalf.

71. In order to conclude that Ms. Berger and the Intervenors have standing

to participate in this proceeding, they must only prove that the proposed agency

action at issue substantially affects them. The facts which they have alleged,

which were stipulated as being correct, support a conclusion that the proposed

agency action at issue in this proceeding substantially impacts Ms. Berger and

the Intervenors.

72. Hy-Power has also questioned whether this is the appropriate forum to

raise issues concerning alleged violations of federally imposed deed

restrictions. Hy-Power's argument is rejected. This is not an action to

enforce federal deed restrictions. The only issue to be decided in this

proceeding is whether the Board of Trustees' proposed agency action, approval of

the Proposed Sublease, and the execution of the Sublease by the Department is

consistent with Florida law.

D. The Motion to Strike and Motion in Limine.

73. Ms. Berger challenged the approval of the Proposed Sublease arguing

that substantive state and federal permitting laws and rules had not yet been

met, that the public trust doctrine precluded the proposed use of the Property

and that certain restrictions in deeds involving the Property precluded the

proposed use of the Property.

74. Intervenors attempted to raise additional issues in their petition to

intervene.

75. In response to Hy-Power's Motion to Strike and Motion in Limine, the

undersigned limited the issue to be heard in this proceeding to the question of

the legal authority of the Board of Trustees to approve the Proposed Sublease.

In particular, the issue to be heard was limited essentially to the question of

whether there were restrictions in deeds involving the Property which prohibited

the use of the Property authorized in the Proposed Sublease which the Board of

Trustees should honor in deciding whether to approve the Proposed Sublease.

76. Ms. Bergers' attempt to raise issues concerning the environmental

suitability and compatibility of the proposed project was rejected because of

the clear authorization of the Florida Legislature concerning use of certain

property owned by the State, including the Property, contained in Section

253.7829(2), Florida Statutes:

The development of hydro-electric power is a

compatible use of greenway land and may be

considered by the [Board of Trustees] as an

allowable use within the greenways of Lake

Rousseau and the lower Withlacoochee River,

provided that such hydro-electric power complies

with all requisite state and federal environ-

mental and water management standards.

77. The only limitation on the use of the Property for the generation of

the hydro-electric power is compliance with state and federal environmental and

water management standards. This requirement has been met in the Proposed

Sublease by the requirement that the continued use of the Property by Hy-Power

is conditioned upon Hy-Power's ability to obtain all applicable permits and its

ability to comply with all applicable permits, regulations, ordinances, rules

and laws of the State of Florida and the United States or of any political

subdivision or agency of either.

78. Despite the foregoing condition of the Proposed Sublease, Ms. Berger

and the Intervenors suggested that the Board of Trustees was required to be

satisfied that Hy-Power could comply with all environmental regulatory

requirements before obtaining approval of the Proposed Sublease. To accept this

argument would in effect have required that the Board of Trustees make

determinations which may more easily be decided by other appropriate state and

federal regulatory bodies and require that Hy-Power prove its ability to meet

environmental regulatory requirements before the Board of Trustees and then by

other state and federal agencies. Based upon the specific authorization of the

Legislature to use the Property for the generation of hydro-electric power and

the condition imposed by the Board of Trustees on the continued use of the

Property by Hy-Power, it was concluded that this argument was without merit.

79. Ms. Berger also attempted to raise other issues in her initial letter

requesting a hearing which were determined to be irrelevant to this proceeding.

For example, the issues raised in paragraphs (d) and (e) of her letter.

80. In paragraph (f) of Ms. Berger's letter she alleged violations of

unspecified rules and the alleged inadequacy of repairs by Hy-Power without

reference to Board of Trustee obligations.

81. In paragraphs (c) and (g) of Ms. Berger's letter she raised concerns

over a possible dam collapse. How this concern relates to the Board of

Trustees' responsibilities is not explained.

82. Efforts to raise issues concerning the doctrine of public trust have

been rejected based upon the conclusion that the undersigned has no authority

over constitutional issues and the conclusion that the provisions of Chapter

253, Florida Statutes, concerning protection of the public trust do not apply to

the Property.

83. The Intervenors' effort to raise issues not raised by Ms. Berger has

also been determined to be improper. See Lewis Oil Co., Inc. v. Alachua County,

496 So.2d 184 (Fla. 1st DCA 1986):

Generally speaking, an intervening party's

rights are subordinate to the principal issues

raised by the original parties to an administrative

action, and the intervening party is limited to

litigating only his interests as affected by the

principal issues.

E. Alleged Deed Restrictions.

84. Ms. Berger and the Intervenors have argued that the conditions of the

July 26, 1993 quit claim deed from the United States quoted in finding of fact

39 and the restrictions contained in the April 7, 1965 Florida Power Corporation

deed quoted in finding of fact 59 preclude the use of the Property allowed by

the Proposed Sublease.

85. The conditions of the quit claim deed quoted in finding of fact 39 are

substantially identical to language contained in 16 U.S.C. s. 460tt(b), enacted

pursuant to Pub.L. 101-640 directing deauthorization of the Cross Florida Barge

Canal project "by operation of law immediately upon the Governor and Cabinet of

the State of Florida adopting a resolution specifically agreeing . . . to all of

the terms of the agreement prescribed in subsection (b) . . . ."

86. The Governor and Cabinet did in fact adopt the required resolution in

July of 1991.

87. As a result of the federal deauthorization of the project, the Florida

Legislature adopted Chapter 93-213, Laws of Florida. Nothing in the Proposed

Sublease is contrary to the authorized use of the Property contained in Chapter

93-213, Laws of Florida. Additionally, the use of the Property allowed by the

Proposed Sublease, the generation of hydro-electric power, is consistent with

the specific authorization contained in Section 253.7829(2), Florida Statutes.

88. As pointed out by Hy-Power in its proposed recommended order, in order

for Ms. Berger and the Intervenors to prevail in this proceeding they were

required to prove the following:

(a) That there are deed restrictions which

apply to the Property; and

(b) That the proposed facility conflicts with

those deed restrictions.

89. While Ms. Berger and the Intevenors presented proof that there are

deed restrictions which apply at least to part of the Property, they failed to

prove that those restrictions will be violated by the Proposed Sublease.

90. The evidence failed to prove that the use of the Property authorized

by the Proposed Sublease will prevent the greenway corridor from being preserved

and maintained as "a greenway corridor open to the public for compatible

recreation and conservation activities . . . ." Except for a very small area

where the facility will be located, the evidence failed to prove that continued

use of the greenway corridor in the area of the facility for recreation and

conservation activities will be unreasonably curtailed.

91. The evidence also failed to prove that the use of the Property

authorized by the Proposed Sublease is inconsistent with the requirement that

the greenway corridor be maintained "to the maximum width possible." This

restriction of the July 26, 1993 quit claim deed only requires that the maximum

width be persevered "as determined in the management plan to be developed by the

State. . . . ." The restriction also provides that the width of the greenway

corridor should be maintained at a width of at least 300 yards. This suggests

that modifications of the width of the greenway corridor may be made as long as

the width of the corridor is modified consistent with the overall management

plan developed by the State and a width of at least 300 yards is maintained.

The evidence failed to prove that the width of the greenway corridor at the site

of the Property will not be maintained at a width of at least 300 yards or at a

width that is inconsistent with the State's management plan. See Sections 48

and 49 of Chapter 93-213, Laws of Florida.

92. The evidence also failed to prove that the Proposed Sublease is

inconsistent with the April 7, 1965 Florida Power Corporation deed. The

evidence proved that the Property was not conveyed by the April 7, 1965 Florida

Power Corporation deed. The restrictions contained therein, therefore, have no

application to the Property.

93. The suggestion that the restrictions of the April 7, 1965 deed apply

because water passes through the property subject to the deed and ultimately may

pass through the facility is without merit. See Village of Tequestra v.

Jupitoer Inlet Corporation, 371 So.2d 6623 (Fla. 1979).

RECOMMENDATION

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

RECOMMENDED that a final order be entered by the Board of Trustees of the

Internal Improvement Trust Fund approving the execution by the Florida

Department of Environmental Protection of the Proposed Sublease and dismissing

the petitions of Ms. Berger and the Intervenors.

DONE AND ENTERED this 12th day of January, 1996, in Tallahassee Florida.

___________________________________

LARRY J. SARTIN, Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of January, 1996.

APPENDIX

Case Number 95-3589

The parties have submitted proposed findings of fact. It has been noted

below which proposed findings of fact have been generally accepted and the

paragraph number(s) in the Recommended Order where they have been accepted, if

any. Those proposed findings of fact which have been rejected and the reason

for their rejection have also been noted.

Ms. Berger's and the Intervenor's Proposed Findings of Fact

1 Accepted in 1.

2 Accepted in 6-7, 26-27 and 29-30.

3 Accepted in 35-36.

4 Accepted in 37-38.

5 See 38. But see 52.

6 Accepted in 6-7.

7 Accepted in 7-9, 22 and 25.

8 Accepted in 16 and hereby accepted.

9 See 21 and hereby accepted.

10 Accepted in 19, 22 and hereby accepted.

11 Accepted in 21.

12 Accepted in 49 and hereby accepted.

13 Accepted in 54.

14 These proposed findings are based upon an unidentified document.

They are hearsay. See 55.

15 Accepted in 48 and 50. But see 51-52.

16-17 See 50-51.

18 Too speculative. Not supported by the weight of the evidence. See

51-52.

19 Accepted in 10-11 and hereby accepted.

20 See 12-15.

21 Accepted in 15 and hereby accepted.

22 Accepted in 12, 17, 39 and hereby accepted.

23 Accepted in 41. But see 42.

24 Accepted in 39.

25 See 39. But see 40.

26-28 These proposed "findings" are argument. They are not supported by

the weight of the evidence.

29 Not supported by the weight of the evidence. See 51-52.

30 See 39 and 43-45. The last two sentences are not supported by the

weight of the evidence.

31 Accepted in 57-58 and hereby accepted.

32 Accepted in 59.

33 These proposed "findings" are argument. They are not supported by

the weight of the evidence. See 63.

The Board of Trustees' and the Department's Proposed Findings of Fact

1 Accepted in 10-11.

2 Accepted in 18. See 15.

3 Accepted in 25 and 35.

4 Accepted in 34.

5-6 Accepted in 13.

7 Accepted in 14.

8 Accepted in 13.

9 Accepted in 15.

10 Accepted in 17.

11 Accepted in 61.

12 Accepted in 6.

13 Accepted in 43-45.

14 Accepted in 39.

15 Accepted in 49 and 55.

16 See 55.

17 Accepted in 50-51.

18 Hereby accepted.

19 See 61.

20 Accepted in 22.

21 Accepted in 23.

Hy-Power's Proposed Findings of Fact

1 Accepted in 2.

2 Accepted in 4, 25 and 34.

3 Accepted in 35.

4-5 Hereby accepted.

6 Accepted in 7 and 26.

7 Accepted in 8-9.

8 Accepted in 9.

9 Accepted in 28 and hereby accepted.

10 Accepted in 29.

11 Accepted in 30.

12 See 30.

13 Accepted in 31-32.

14 Accepted in 32.

15 Accepted in 33.

16 Hereby accepted.

17 Accepted in 6.

18 Accepted in 22 and 25.

19 Accepted in 43.

20 Accepted in 44-45.

21 Accepted in 10-11.

22 Accepted in 13.

23 Accepted in 15 and 18.

24 Accepted in 12 and 14.

25-26 Accepted in 13.

27 Accepted in 17.

28 See 39.

29 See 21 and 39.

30 Accepted in 22-23.

31 Accepted in 23.

32 Accepted in 24.

33 Accepted in 54.

34 Accepted in 47.

35 Accepted in 55.

36-37 Hearsay. See 55.

38 Accepted in 55-56.

39 Accepted in 48.

40 Accepted in 50.

41 Hereby accepted.

42 Too speculative. Not relevant.

43-46 Hereby accepted.

47-48 Too speculative. Not relevant.

49 Hereby accepted. See 51-52.

50 Accepted in 38.

51-52 Hereby accepted. See 52.

53 See 59.

54 Accepted in 59.

55 Accepted in 57, 61 and hereby accepted.

56 Accepted in 61.

COPIES FURNISHED:

Peter B. Belmont, Esquire

511 31st Avenue North

St. Petersburg, Florida 33704

Evelyn Davis Golden

Assistant General Counsel

Department of Environmental

Protection

3900 Commonwealth Boulevard, M.S. 35

Tallahassee, Florida 32399-3000

Daniel H. Thompson, Esquire

215 South Monroe Street, Suite 804

Tallahassee, Florida 32301

Scott Shirley, Esquire

Timothy P. Atkinson, Esquire

Post Office Box 6507

Tallahassee, Florida 32314-6507

Bob Bradley, Secretary

Florida Land & Water Adj. Comm.

Executive Office of the Governor

1601 Capitol

Tallahassee, Florida 32399

Gregory Smith, Esquire

Florida Land & Water Adj. Comm.

Executive Office of the Governor

1601 Capitol

Tallahassee, Florida 32399

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.