96-005883 Big Blue Springs Property Owners&Apos; Association, Inc. vs. Southwest Florida Water Management District And Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, August 17, 1999.

Summary: Department of Environmental Protection proved entitlement to Noticed General Environmental Resource Permit, with condition to restore Big Blue Spring.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIG BLUE SPRINGS, INC., )

)

Petitioner, )

)

vs. ) Case No. 96-5883

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, a public )

corporation, and FLORIDA )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

PETER A. GRANT, )

)

Petitioner, )

)

vs. ) Case No. 96-5884

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, a public )

corporation, and FLORIDA )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

JOHN P. BABIARZ, )

)

Petitioner, )

)

vs. ) Case No. 96-5885

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, a public )

corporation, and FLORIDA )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

NORMA L. SPENCE and THOMAS )

SPENCE, )

)

Petitioners, )

)

vs. ) Case No. 96-5886

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, a public )

corporation, and FLORIDA )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

JUDITH K. HALL and RUSSELL )

D. HALL, )

)

Petitioners, )

)

vs. ) Case No. 96-5887

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, a public )

corporation, and FLORIDA )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

JANIFER CARLSON and )

RICHARD CARLSON, )

)

Petitioners, )

)

vs. ) Case No. 96-5888

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, a public )

corporation, and FLORIDA )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

MR. AND MRS. MANFRED )

RIENTENBACH, )

)

Petitioners, )

)

vs. ) Case No. 96-5889

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, a public )

corporation, and FLORIDA )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

A formal hearing was held in these cases before Larry J.

Sartin, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings, on May 6 and 7, 1999, in

Inverness, Florida.

APPEARANCES

For Petitioner, Big Blue Springs, Inc.:

Clark A. Stillwell, Esquir e

Brannen, Stillwell & Perrin, P.A.

Bank of Inverness Building

320 Highway 41 South

Inverness, Florida 34451-0250

For Petitioner, Peter A. Grant:

Peter A. Grant, pro se

7325 North Spring Run Terrace

Hernando, Florida 34442

For Petitioner, John P. Babiarz:

Guy Marwick, Qualified Representative

12950 Northeast First Street Road

Silver Springs, Florida 34488

For Petitioners, Thomas and Norma Spence:

Norma L. and Thomas Spence, pro se

Post Office Box 246

Holder, Florida 34445

For Petitioners, Judith K. and Russell D. Hall:

Judith K. Hall and Russell D. Hall, pro se

6875 East Halls Spring Path

Hernando, Florida 34442

For Petitioners, Janifer and Richard Carlson:

Janifer Carlson, pro se

Post Office Box 450

Marble, North Carolina 28905

For Petitioners, Mr. and Mrs. Manfred Rientenbach:

None

For Respondent, Southwest Florida Water Management District:

Margaret M. Lytle

Assistant General Counsel

Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34609-6899

For Respondent, Florida Department of Environmental

Protection:

Keith L. Williams

Assistant General Counsel

Florida Department of Environmental

Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 -3000

STATEMENT OF THE ISSUE

The issue in these cases is whether Respondent, the Florida

Department of Environmental Protection, has provided Respondent,

Southwest Florida Water Management District, with reasonable

assurances that the activities proposed in its Noticed General

Environmental Resource Permit No. 4715785.00 meet the conditions

established in Section 373.413, Florida Statutes, and

Rules 40D-400.215 and 40D-400.485, Florida Administrative Code,

for issuance of general environmental resource permits.

PRELIMINARY STATEMENT

On or about September 23, 1996, the Florida Department of

Environmental Protection submitted a permit application to the

Southwest Florida Water Management District seeking approval of a

project for the restoration of Big Blue Springs, a freshwater

spring located in Citrus County, Florida. The permit was

designated Noticed General Environmental Resource Permit No.

4715785.00.

By a letter dated October 22, 1996, the Southwest Florida

Water Management District notified the Florida Department of

Environmental Protection that it was authorized to proceed with

the restoration of Big Blue Springs pursuant to the Noticed

General Environmental Resource Permit, subject to the general

conditions of Rule 40D-400.215, Florida Administrative Code, and

the specific conditions of Rule 40D-400.485, Florida

Administrative Code.

In response to the Southwest Florida Water Management

District's decision, Petitioners timely filed petitions with the

Southwest Florida Water Management District challenging the

decision. Those petitions were filed with the Division of

Administrative Hearings by the Southwest Florida Water Management

District on December 13, 1996. The petitions were designated

Case No's. 96-5883 through 96-5889 and were assigned to the

undersigned.

On January 6, 1997, the cases were consolidated and placed

in abeyance by an Order Granting Motion for Consolidation and

Abatement of Proceeding. The cases were placed in abeyance to

give the parties an opportunity to pursue mediation of their

dispute. Efforts to reach a mediated settlement of the dispute

in these cases eventually failed.

On July 27, 1997, the Florida Department of Environmental

Protection submitted a modified plan for the Big Blue Springs'

project to the Southwest Florida Water Management District. The

modification was reviewed, approved, and incorporated into the

permit which is the subject of this proceeding.

After holding these cases in abeyance to allow the

completion of mediation efforts and to allow Petitioners an

opportunity to recover from flooding on their property, the final

hearing was scheduled for December 1998. The hearing was

subsequently continued and rescheduled for May 5 through 7, 1999.

On May 3, 1999, the parties filed a Prehearing Stipulation.

The parties narrowed the issues to be addressed in these cases

and stipulated to a few facts. Those facts have been included in

this Recommended Order.

The day before the commencement of the final hearing,

Respondents filed a Joint Motion to Dismiss Petitioners Big Blue

Springs Property Owners' Association and Guy Marwich for Lack of

Standing. Argument on the motion was heard at the commencement

of the final hearing. The motion was disposed of by substituting

Big Blue Springs, Inc., the successor in interest to Big Blue

Springs Property Owners' Association, as Petitioner in Case No.

96-5883, and by substituting John P. Babiarz, the successor in

interest to property formerly owned by Guy Marwick, as Petitioner

in Case No. 96-5885.

At the final hearing, the Florida Department of

Environmental Protection presented the testimony of Frederick

Hand, Deborah Jean Preble, and Joseph Edward Bowman. Mr. Bowman

was accepted as an expert witness. The Florida Department of

Environmental Protection also offered DEP Exhibits 1 through 20

into evidence. All were accepted.

The Southwest Florida Water Management District presented

the testimony of A. Paul Desmarais, Wojciech M. Mroz, and Leonard

F. Bartos. All three were accepted as expert witnesses. Three

Southwest Florida Water Management District exhibits were

accepted into evidence. Official recognition of District

Exhibits 4-6 was taken.

Petitioners presented the testimony of Sammy Joe Weaver,

Russell D. Hall, and Norma L. Spence. The following exhibits

were offered by Petitioners and accepted into evidence:

a. Springs Exhibits 1-11;

b. Spence Exhibits 1, 3-4, 5a and b, 6-7, 9-11, and 18-21;

c. Babiarz Exhibits 1-3;

d. Grant Exhibits 1-2; and

e. Hall Exhibits 1-2.

Petitioners in Case No. 96-5889, Mr. and Mrs. Manfred

Rietenbach, did not make an appearance at the final hearing.

A transcript of the formal hearing was filed on June 21,

1999. By agreement of the parties, Proposed Recommended Orders

were required to be filed on or before July 12, 1999.

Respondents filed a Joint Proposed Recommended Order on July 12,

1999. Petitioner, Big Blue Springs, Inc., filed a Proposed

Recommended Order on July 12, 1999. Petitioners, Norma and

Thomas Spence, and Russell and Judith Hall, filed letters

discussing the matter on July 6, 1999. Full consideration has

been given to these pleadings.

FINDINGS OF FACT

A. The Parties .

1. Big Blue Springs, Inc., owns property located adjacent

to Big Blue Springs. Big Blue Springs, Inc., acquired its

interest from Big Blue Springs Property Owners' Association, Inc.

(hereinafter referred to as the "Property Owners' Association").

2. The individual Petitioners in these cases own property

located along the current water flow from Big Blue Springs with

the exception that the evidence failed to prove whether

Mr. and Mrs. Manfred Rietenbach own property in proximity to Big

Blue Springs.

3. Respondent, the Department of Environmental Protection

(hereinafter referred to as the "Department"), is an agency of

the State of Florida.

4. Respondent, Southwest Florida Water Management District

(hereinafter referred to as the " SWFWMD"), is a public

corporation with regulatory jurisdiction over the administration

and enforcement of surface water management system rules pursuant

to Part IV, Chapter 373, Florida Statutes.

B. Big Blue Springs .

5. Big Blue Springs (hereinafter referred to as the

"Spring"), is a moderately sized freshwater spring located in

Citrus County, Florida. The pool of the Spring is approximately

75 feet in diameter.

6. Water flows from the Spring at rates which vary between

11.1 and 19.6 cubic feet per second.

7. The Spring is located immediately adjacent to the

Withlacoochee River, an "Outstanding Florida Water."

8. The Spring is located within the State of Florida's

sovereign lands. Therefore, the Spring comes under the

jurisdiction of the Department.

9. Prior to the 1960's, the Spring connected directly with

the Withlacoochee River only a few feet from the location of the

pool of the Spring. The natural flow of water from the Spring

was in an east-northeast direction. Water also flowed in a

northwesterly direction into wetlands which surrounded the

Withlacoochee River.

C. The Diversion of the Spring's Natural Flow .

10. During the 1960's a developer constructed a dike around

the Spring damming up the Spring's natural connection with the

Withlacoochee River. The dike was illegally placed on state

sovereign lands under the Department's jurisdiction.

11. The developer also dredged a canal (hereinafter

referred to as the "Spring Run") in a northwesterly direction

from the Spring. The Spring Run connected the Spring with the

Withlacoochee River. The distance from the pool of the Spring to

the Withlacoochee River is approximately one half mile.

12. The dredging of the canal and the damming of the

natural connection with the Withlacoochee River diverted the

portion of the water discharge from the Spring that had flowed

directly into the Withlacoochee River down the Spring Run. As a

result of the damning of the Spring, all water from the Spring

has flowed down the Spring Run since the 1960's.

13. The construction of the dike around the Spring and the

dredging of the Spring Run was carried out without a permit or

sovereign land-use authorization.

D. The Spring Run Today .

14. The Spring Run is not of a uniform depth or width. At

places, the Spring Run is 15 to 20 feet wide. The depth of water

in the Spring Run also varies throughout the year. At times, the

area surrounding the Spring and Spring Run is flooded. At other

times, water in the Spring Run is of minimal depth.

15. The Spring Run has developed into a functioning

ecological wetland system consisting of various marine species

and habitats.

16. A small one-lane bridge spans the Spring Run

approximately a quarter of a mile from the Spring.

E. Access to the Spring Today .

17. There is no legal access by land to the Spring. Even

if access by land were legally available, such access would be

difficult because the dike is approximately 10 feet tall and has

steep slopes.

18. Access by water to the Spring is limited to access

through the Spring Run. Access along the Spring Run to the

Spring is, however, not possible for many boats due to the lack

of water depth. When water levels are low, access is further

reduced.

19. Access along the Spring Run during times of high water

is also limited due to the small bridge that spans the Spring

Run. At times, the water is too high for even small boats to

pass under the bridge.

20. Despite its limitations, the Spring Run is navigable,

at least to small boats, the majority of the year.

F. The Board of Trustees of the Internal Improvement Fund's

Decision to Remove the Dike .

21. In March 1990, the dike around the Spring was

mysteriously breached, reconnecting the Spring and the

Withlacoochee River.

22. The Property Owners' Association obtained permission

from the Army Corps of Engineers and the Department to repair the

breach.

23. After repairing the breach in the dike, the Property

Owners' Association applied to the Governor and Cabinet, sitting

in their capacity as the Board of Trustees of the Internal

Improvement Fund (hereinafter referred to as the "Trustees"), for

an easement allowing them to maintain the dike for 25 years.

24. In response to the request of the Property Owners'

Association for an easement, a public meeting was held by the

Department in Inverness, Citrus County, Florida, in the summer of

1993. The meeting was advertised in the local newspaper as an

opportunity for the public to discuss the Spring and what should

be done about public access to the Spring. That meeting was well

attended by members of the public, including several Petitioners.

25. Following the public meeting and after discussions with

the Property Owners' Association, the Department initially

indicated that it would recommend to the Trustees that the

easement application be approved. That recommendation was based

upon negotiations with, and an offered settlement from, the

Property Owners' Association:

Staff believed that the homeowners' offer

represented a reasonable compromise for this

issue on the condition that the homeowners'

association agreed to hold the state harmless

for any liability arising out of the continued

presence of the dike and to issue a quitclaim

deed to the Board of Trustees for all lands

located below the historic ordinary high water

line of the spring.

DEP Exhibit 16. Throughout the period of time during

which the Department considered the Property Owners'

Association's requested permission to maintain the

Spring dike, the Property Owners' Association was aware

of the Department's concern over the need to ensure

public access to the Spring.

26. On October 21, 1993, the Property Owners' Association

informed the Department that it would not agree to all the terms

of the settlement the Department desired. In particular, the

Property Owners' Association was unwilling to give the Department

assurances concerning public access to the Spring. As a

consequence, the Department decided not to support approval of

the easement application.

27. The Property Owners' Association was informed of the

Department's decision by letter dated October 27, 1993. A copy

of the letter was also sent to Ms. Spence. The Department

informed the Property Owners' Association that it was going to

make the following recommendation to the Trustees:

RESCIND STAFF'S APRIL 6, 1993, LETTER, DIRECT

STAFF TO HAVE THE DIKE REMOVED, AND HAVE THE

SPRING RESTORED TO ITS NATURAL FEATURES .

28. The meeting at which the Trustees was to consider the

Property Owners' Association easement application was scheduled

for November 9, 1993. The meeting was advertised in Vol. 19, No.

43, Florida Administrative Weekly (October 29, 1993). The notice

did not specifically indicate that the Trustees would consider

the removal of the dike or the permit which is the subject of

this proceeding at the meeting.

29. The Property Owners' Association easement application

and the Department's recommendation concerning the easement and

removal of the dike were included on the agenda for the

November 9, 1993, meeting of the Governor and Cabinet.

30. The November 9, 1993, meeting of the Governor and

Cabinet was held in Tallahassee. The meeting was open to the

public and recorded. The Property Owners' Association was

represented at the meeting. Ms. Spence also attended the

meeting.

31. During the meeting a number of issues concerning the

fate of the Spring were discussed, including whether an easement

should be granted to the Property Owners' Association and whether

the Department's recommendation should be approved. Public

access to the Spring was discussed by, and constituted a primary

concern of, the trustees. The Trustees also discussed the impact

which boats would have on the Spring if allowed into the Spring,

the impact on the Spring Run if the restoration of the Spring was

ordered, and the intrusion of tannic-stained water from the

Withlacoochee River into the Spring.

32. A copy of the permit at issue in this proceeding was

not available at the November 9, 1993, Trustees' meeting. Nor

were conceptual plans for the restoration of the Spring

available.

33. The Trustees denied the requested easement and directed

the Department "to have the dike removed and the spring restored

to its natural features."

34. The Trustees' decision was subsequently challenged

before the Division of Administrative Hearings by the Property

Owners' Association. A Final Order was entered by the Trustees

on November 16, 1995, rejecting the challenge.

G. The Department's Efforts to Carry Out the Trustees'

Decision .

35. In February and May 1996, following entry of the Final

Order, the Deputy Secretary of the Department met with Department

staff. Pursuant to delegated authority, the Deputy Secretary

directed staff to proceed with the removal of a section of the

dike in order to restore the flow of the Spring into the

Withlacoochee River at the approximate location of the natural

flow from the Spring into the river.

36. On or about September 23, 1996, the Department

submitted an application to the SWFWMD for a permit to restore

the Spring. The application included the proposed removal of a

portion of the dike adjacent to the Withlacoochee River and the

stabilization of the dike with limestone rip-rap.

37. On October 22, 1996, the SWFWMD issued Noticed General

Environmental Resource Permit No. 4715785.00 to the Department

approving the Big Blue Springs Restoration Project, subject to

the general conditions of Rule 40D-400.215, Florida

Administrative Code, and the special conditions of Rule 40D-

400.485, Florida Administrative Code.

38. At the suggestion of some of the Petitioners, the

Department retained Paul Pilney, a soil scientist with the Soil

Conservation Service of the United States Department of

Agriculture. Mr. Pilney conducted soil soundings, soil borings,

and surveys of the area in an effort to estimate the location and

elevation of the original Spring runoff.

39. Using Mr. Pilney's findings, the Department modified

its proposed location of the breach in the dike and reduced the

width of the breach. The depth of the proposed breach was not,

however, modified. The Department submitted modified plans and

an amendment to its permit application to the SWFWMD on July 27,

1997. The SWFWMD reviewed and approved the modifications and

incorporated them into the permit.

40. The Department held at least one public meeting on the

proposed restoration project. The proposed restoration project

was approved by the Secretary of the Department.

H. The Proposed Restoration Project .

41. The Department's proposed restoration project

(hereinafter referred to as the "Restoration Project") is

technically simple: it entails the removal of a portion of a

water control structure, a dike, in order to partially restore

the natural flow of water between the Spring and the

Withlacoochee River.

42. In order to carry out the Restoration Project, the

Department has proposed breaching the dike by removing

approximately 500 cubic yards of earth from the dike between the

Spring and the Withlacoochee River.

43. The Department has proposed that the breach be graded

to an elevation of 31 feet above mean sea level. This depth was

based upon Mr. Pilney's findings of the estimated natural depth

of the Spring runoff. The depth is only an estimate, however.

There is no absolute way of determining the precise depth of the

natural Spring runoff into the Withlacoochee River.

44. The Department has proposed the use of floating

barriers and turbidity screens while the Restoration Project is

being carried out.

45. The Restoration Project will be completed by the

placement of limerock rip-rap along the slopes and back of the

Spring to control erosion. The limerock rip-rap will consist of

limerock boulders and/or rubble, weighing approximately 135

pounds per square foot. Limerock will be used because it occurs

naturally along the Withlacoochee River.

46. The disturbed areas around the Spring will also be

revegetated immediately after construction.

47. "No Motorboating" signs will be erected around the area

in the interest of public safety and in an effort to limit prop

dredging by boats that enter the Spring.

I. Impacts from the Restoration Project .

48. The Restoration Project will not cause pollution.

Water quality and health standards will not be violated.

49. The Restoration Project will not degrade water quality

or cause a violation of state water quality standards, including

special standards set for Outstanding Florida Waters.

50. Although dark, tannic-stained water from the

Withlacoochee River will mix with the nearly crystal clear water

of the Spring on occasion, the water quality of the Spring will

not be degraded or adversely impacted. Water from the Spring

already mixes with the Withlacoochee River. After the breach, it

will just mix with the Withlacoochee River a little sooner.

51. The Restoration Project will improve public access to

the Spring. The need to access the Spring by locating and

traversing the Spring Run will be eliminated. Accessing the

Spring illegally by land will also be eliminated. Access to the

Spring will be available by the larger boats which can navigate

the Withlacoochee River.

52. The 31-inch depth to which the Department has proposed

that the new access channel be cut is lower than the current

depth of the Spring Run. As a consequence, the amount of water

which will run down the Spring Run will be dramatically reduced

by the Restoration Project.

53. The impact of the reduced water flow in the Spring Run

will reduce the already somewhat limited navigability of the

Spring Run. The Spring Run will remain navigable only on an

intermittent basis.

54. The limited flow of water through the Spring Run will

also reduce the extent to which the Spring Run currently is a

functioning ecological wetland system.

55. If the depth to which the breach is graded were less

than the 31 inches proposed by the Department and were limited to

a depth no more than that of the flow from the Spring into the

Spring Run, there would be no appreciable decrease in the public

access to the Spring which the Department and the Trustees wish

to insure is provided by the restoration of the Spring. Public

access would still be readily available, and the negative impact

on the ecological wetland system of the Spring Run and the

navigability of the Spring Run would be decreased.

CONCLUSIONS OF LAW

A. Jurisdiction and Burden of Proof .

56. The Division of Administrative Hearings has

jurisdiction of the parties to, and the subject matter of, this

proceeding. Section 120.57, Florida Statutes (1997).

57. The burden of proof, absent a statutory directive to

the contrary, is on the party asserting the affirmative of the

issue in a proceeding before the Division of Administrative

Hearings. 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).

58. In this proceeding, it is the Department that was

asserting the affirmative: that the Department should be issued

a permit for construction or alteration pursuant to Section

373.413, Florida Statutes. The Department, therefore, had the

ultimate burden of proof. The Department was required to meet

its burden by the preponderance of the evidence. J.W.C. Co. ,

supra .

59. In order for the Department to meet its burden of

proof, it was required to present a prima facie showing of

entitlement to the permit taking into account the objections

raised by Petitioners. The Department met its burden, except

with regard to the depth to which the breach should be dredged.

60. Following the presentation of the Department's prima

facie case, Petitioners had the burden of proving the allegations

of their petitions. The evidence presented by Petitioners in

support of their petitions was required to be of at least

equivalent quality to the evidence presented by the Department.

See Hoffert v. St. Joe Paper Company , 12 F.A.L.R. 4972 (Fla.

Dept. of Env. Reg. 1990). Petitioners failed to prove that the

permit should not be issued with conditions.

B. Standing .

61. In order for any person to have standing to institute a

proceeding under Section 120.57, Florida Statutes, it must be

proved that the person is "substantially affected" by the

government action at issue in the proceeding:

Standing under the Administrative Procedure

Act ( APA) is conferred on persons whose

substantial interest will be affected by

proposed agency action. Agrico Chemical Co.

v. Department of Environmental Protection ,

406 So.2d 478 (Fla. 2nd DCA 1981), rev.

denied , 415 So.2d 1359 (Fla. 1982), and 415

So.2d 1361 (Fla. 1982). . . .

A party seeking to show a substantial injury

must demonstrate

1) that he will suffer an injury in fact

which is of sufficient immediacy to entitle

him to a section 120.57 hearing, and 2) that

his substantial injury is of the type or

nature which the proceeding is designed to

protect.

Agrico , supra at 482. Florida Society of

Ophthalmology v. State Bd. Of Optometry , 532

So. 2d 1279 (Fla. 1st DCA 1988), rev. denied ,

542 So. 2d 1333 (Fla. 1989).

Friends of the Everglades, Inc. v. Board of Trustees of the

Internal Improvement Trust Fund , 595 So. 2d 186, 188 (Fla. 1st

DCA 1992).

62. The evidence in these cases proved that all of the

Petitioners, except Mr. and Mrs. Rietenbach, own property located

in close proximity to the Spring or the Spring Run. Petitioners,

other than Mr. and Mrs. Reitenbach, have, therefore, proved that

they will be substantially affected by the Department's proposed

restoration project. See Friends of the Everglades , supra ; Town

of Palm Beach v. Department of Natural Resources , 577 So. 2d 1383

(Fla. 4th DCA 1991); and Sheridan v. Deep Lagoon Marina , 576 So.

2d 771 (Fla. 1st DCA 1991).

63. Mr. and Mrs. Rietenbach have failed to prove their

standing to institute this proceeding.

C. Permits for Construction or Alteration Projects .

64. Section 373.413, Florida Statutes, authorizes the

issuance of permits for certain construction or alteration

projects:

(1) Except for the exemptions set forth

herein, the governing board or the department

may require such permits and impose such

reasonable conditions as are necessary to

assure that the construction or alteration of

any stormwater management system, dam,

impoundment, reservoir, appurtenant work, or

works will comply with the provisions of this

part and applicable rules promulgated thereto

and will not be harmful to the water

resources of the district. . . .

65. In these cases, the SWFWMD is the "governing board"

with authority to issue a permit pursuant to Section 373.413,

Florida Statutes.

66. In order to implement Section 373.413, Florida

Statutes, the SWFWMD has promulgated Rule 40D-400.485(1), Florida

Administrative Code, authorizing the issuance of general permits

to the Department:

(1) A general permit is hereby granted to

the Department for the construction,

alteration, operation, maintenance, removal

and abandonment of systems to implement

Department environmental restoration or

enhancement projects.

67. Rule 40D-400.485(2), Florida Administrative Code,

establishes three procedures, one of which must be followed by

the Department in order for the Department to qualify for a

general permit. The procedure elected by the Department in this

matter is the following procedure:

(b) The project is approved by the

Secretary of the Department after conducting

at least one public meeting;

68. Rule 40D-400.485(3), Florida Administrative Code,

establishes the following conditions (hereinafter referred to as

the "Specific Permit Conditions") which the Department must meet

in order to qualify for a general permit:

(3) This general permit shall be subject to

the following specific conditions:

(a) A project under this general permit

shall not significantly impede navigation.

(b) All erodible ground areas and slopes

disturbed during construction shall be

revegetated with sod, mulch, seed, wetland

species, or otherwise appropriately

stabilized within 72 hours after completion

of the activity authorized under this general

permit and at any other time as necessary to

prevent violations of state water quality

standards.

69. In addition to the Specific Permit Conditions, the

SWFWMD has established general conditions for the issuance of all

general permits (hereinafter referred to as the "General Permit

Conditions"). Rule 40D-400.215, Florida Administrative Code.

70. The General Permit Conditions which must be met include

the following:

(12) Construction, alteration, operation,

maintenance, removal and abandonment approved

by this general permit shall be conducted in

a manner which does not cause violations of

state water quality standards, including any

antidegradation provisions of sections 62-

4.242(1)(a) and (b), 62-4.242(2) and (3), and

62-302.300, F.A.C., and any special standards

for Outstanding Florida Waters and

Outstanding National Resource Waters. The

permittee shall implement best management

practices for erosion, turbidity, and other

pollution control to prevent violation of

state water quality standards. Temporary

erosion control measures such as sodding,

mulching, and seeding shall be implemented

and shall be maintained on all erodible

ground areas prior to and during

construction. Permanent erosion control

measures such as sodding and planting of

wetland species shall be completed within

seven days of any construction activity.

Turbidity barriers shall be installed and

maintained at all locations where the

possibility of transferring suspended solids

into wetlands or surface waters exists due to

the permitted activity. Turbidity barriers

shall remain in place and shall be maintained

in a functional condition at all locations

until construction is completed, soils are

stabilized and vegetation has been

established. Thereafter the permittee shall

correct any erosion or shoaling that causes

adverse impacts to the water resources.

Rule 40D-400.215(12), Florida Administrative Code.

D. The Department's Restoration Project .

71. The evidence in these cases proved that the

Department's Restoration Project constitutes the "construction,

alteration, operation, maintenance, removal and abandonment of

systems to implement Department environmental restoration or

enhancement projects."

72. In particular, the project involves the "alteration" or

"removal" of a water control system (a dike) by the Department in

order to restore the natural flow of water from the Spring to the

Withlacoochee River.

73. The Restoration Project is, therefore, entitled to

general permitting pursuant to Rule 40D-400.485(1), Florida

Administrative Code, if the Department has followed one of the

specified procedures which must be followed in order to qualify

for a permit and the Department has given assurances that all the

Specific and General Permit Conditions for such permits will be

met.

E. The Qualification Procedure Elected by the Department .

74. The only one of the three qualification procedures

provided in Rule 40D-400.485(2), Florida Administrative Code,

which the Department attempted to follow in order to qualify the

Restoration Project for a permit is Rule 40D-400.485(2)(b),

Florida Administrative Code: "The project is approved by the

Secretary of the Department after conducting at least one public

meeting."

75. There was no dispute that the Secretary of the

Department approved the Restoration Project. Whether the

Department conducted the requisite "public meeting" is more

problematic. While the Department could have conducted a "public

meeting" in a more meaningful way, the weight of the evidence

proved that the Department adequately conducted a "public

meeting."

76. The SWFWMD does not provide a definition of "public

meeting." At a minimum, however, any meeting conducted by the

Department should have been conducted after notice to the public

of the meeting and should have been open to public participation.

77. The evidence concerning the meetings that were

conducted prior to the SWFWMD's proposed approval of the

Department's general permit is not in dispute. Two noticed

meetings, both of which were open to the general public, were

held prior to the Secretary of the Department's approval of the

project: one was conducted during the summer of 1993 and the

other was conducted on November 9, 1993.

78. The meeting conducted during the summer of 1993 was

locally advertised and locally conducted. Although the meeting

was not specifically noticed as a meeting to consider specific

plans to restore the natural flow of the Spring to the

Withlacoochee River, it was conducted to hear from the public

generally about what should be done about the Spring and public

access thereto.

79. The meeting conducted on November 9, 1993, was not

locally advertised and was held in Tallahassee instead of Citrus

County. It was, however, advertised, open to the public, and was

attended by some of the Petitioners in these cases.

80. The meetings, according to Petitioners, suffered from

the following deficiencies: (a) no specific plans detailing the

nature of the Restoration Project were available at either

meeting; (b) the November 9, 1993, meeting was held in

Tallahassee; and (c) notice was not given that the meetings would

be to discuss removal of a part of the dike.

81. While the deficiencies raised by Petitioners cause

concern, the meetings conducted by the Department were sufficient

for purposes of meeting the "public meeting" requirement of Rule

40D-400.485, Florida Administrative Code. The purpose of the

rule is to ensure that the public has an opportunity to be heard

and that the Department has been given the opportunity to

consider all options concerning any decision the Department might

need to make in order to restore or enhance a water control

system before it decides what course of action to take. If the

rule contemplated consideration of the specific Department plan

of restoration for a project, it would be necessary for the

Department to conduct a meeting every time it made a modification

to the project. Interpreting the rule to require such a result

would be unreasonable.

82. The meeting conducted by the Department in the summer

of 1993 was intended to fulfill the intent for the public meeting

requirement of the rule. Although the meeting was not advertised

as a meeting to consider specific restoration plans, it was

advertised as a meeting to consider what action should be taken

with regard to the Spring. All options, including restoration,

were open to discussion at the meeting and the advertisement put

the public on notice of this possibility. The meeting was also

held locally.

83. The meeting held on November 9, 1993, also was intended

to fulfill the intent of the public meeting requirement of the

rule. Again, notice published in the Florida Administrative

Weekly was broad enough to suggest that any action might be

taken. Additionally, some Petitioners were given individual

notice of the meeting and the fact that the Department intended

to recommend that the Spring be restored. Finally, a clear

alternative to the easement being sought by the Property Owners'

Association was removal of the dike or a portion thereof. While

the meeting did not include a consideration of the specifics of

the proposed restoration, the public meeting requirement of the

rule does not require consideration of every aspect of a

restoration project in order to meet the public meeting

requirement. All that is required is that the general subject of

restoration be considered and discussed at the meeting. The

November 9, 1993, meeting met this requirement. The meeting was,

therefore, noticed and open to the public. The meeting was,

therefore, a "public meeting."

84. Based upon the foregoing, it is concluded that the

procedure of Rule 40D-400.485(2)(b), Florida Administrative Rule,

was complied with by the Department.

F. Specific Permit Conditions .

85. The first Specific Permit Condition requires that the

Department give reasonable assurances that the project will "not

significantly imped navigation."

86. The parties stipulated, and the evidence supported a

finding, that the Spring Run is navigable. The evidence also

proved that the use of the Spring Run for water navigation will

be reduced by the Restoration Project. Establishing a channel

directly to the river with a depth of 31 inches will cause the

majority of water from the Spring to run into the Withlacoochee

River. Due to natural fluctuations in water flow in the Spring

and the Withlacoochee River, there will be times when very little

water will flow into the Spring Run and times when the waters of

the Withlacoochee River will flood the Spring and the Spring Run.

87. As a result of the Restoration Project, the Spring Run

will receive intermittent water flow from the Spring, rather than

the total Spring flow the Spring Run currently enjoys. As a

consequence, the times when the level of water in the Spring Run

will make navigation virtually impossible for most boats of any

size will increase after completion of the Restoration Project as

currently proposed.

88. Viewed only from the standpoint of the impact of the

Restoration Project on the Spring Run, the evidence proved that

navigation on the Spring Run, which is sovereign land of the

State, will be impeded by the Restoration Project as currently

proposed.

89. Based upon a balanced consideration of the impact of

the Department's project on the Spring Run and the Spring and

access thereto, the evidence proved that the Department's project

will enhance overall navigation to the Spring.

90. Currently, there is no legal access to the Spring

except through the Spring Run. Navigation by the general public

along the Spring Run to the Spring is limited to relatively small

boats due to the lack of depth of water in the Spring Run. When

water levels are low, that access is even further reduced because

of the lack of depth and the amount of vegetation that exists in

places. During periods of higher water levels, access may be

further limited due to the low bridge that spans the Spring Run.

As a consequence of current conditions, navigation to the Spring

by the Spring Run is limited.

91. With the restoration of the natural Spring run directly

into the Withlacoochee River, the public will have direct access

to the Spring essentially without regard to water depths. A

wider variety of water craft will be able to access the Spring.

Even with periods of low water levels from the Spring, the run

off from the Spring into the River will still constitute

sovereign lands of the State which can be traversed by the

public.

92. While Petitioners' enjoyment of the Spring Run,

including navigation thereon, will be negatively impacted more

frequently than under current conditions, the overall benefit to

the public from the return of the natural access to the Spring

from the Withlacoochee River outweighs this negative impact. See

Sullivan v. Northwest Florida Water Management District , DOAH

Case Nos. 84-4468 and 87-0124 (1987 WL 62062). The public

benefit is even more substantial when the fact that the Spring

Run was created illegally is taken into account.

93. The evidence also proved that, even if the depth of the

Department's new proposed access channel is cut no deeper than

the existing depth of the Spring Run, the public access which the

Department desires to create by restoration of the Spring will be

achievable. Cutting the channel to a deeper depth will not

enhance access appreciably over the access that could be created

by maintaining a depth equal to that of the Spring Run.

94. The final Specific Permit Condition requires that the

Department give reasonable assurances that all " erodible ground

areas and slopes disturbed during construction" will be

revegetated and stabilized. The Department has met this

condition.

G. The General Permit Conditions .

95. The evidence presented by Respondents in these cases

proved that the Department's project will have minimal impacts on

water resources of the SWFWMD. While the evidence proved that

water quantities in the Spring Run will be decreased, no evidence

was presented by Petitioners to indicate that the quality of

whatever water does traverse the Spring Run will be negatively

impacted by the Department's project.

96. The only evidence presented by Petitioners concerning

water qualities was to suggest that when the waters of the

Withlacoochee River, which are very dark and tannic stained, mix

with water from the Spring, the Spring's water will no longer be

as crystal clear as it is now. This antidotal evidence, however,

failed to counter evidence presented by Respondent that the

darkness of the water does not mean that the water is of a lesser

quality.

97. The evidence also proved that the Department will

ensure implementation of the best management practices for

erosion, turbidity, and other pollution control to prevent

violation of state water quality standards.

H. Rule 40D-400.201, Florida Administrative Code .

98. Although not argued in Big Blue Springs, Inc., in its

Proposed Recommended Order, it was suggested at hearing that the

Restoration Project is inconsistent with Rule 40D-400.210,

Florida Administrative Code, titled "Policy and Purpose"

(hereinafter referred to as the "Policy and Purpose Rule"):

The purpose of Part II of this chapter is to

provide noticed general environmental

resource permits for those activities which

have been determined to have minimal impacts

to the water resources of the District , both

individually and cumulatively. Mitigation is

neither necessary nor required for activities

that qualify for noticed general permits.

Persons wishing to use one or more of the

noticed general permits in this chapter shall

be subject to the notice provisions of

section 40D-400.211, F.A.C., before any

activity is conducted as authorized herein.

The general conditions provided pursuant to

section 40D-400.215, F.A.C., shall apply to

all of the general permits in this chapter.

Strict compliance with all of the terms,

conditions, requirements, limitations and

restrictions applicable to a desired noticed

general permit under this Part is required to

qualify for such a permit. [Emphasis added].

99. In particular, Big Blue Springs, Inc., has suggested

that the Spring Run is a "water resource of the District" and

that the Department's project will have more than "minimal

impacts" on it. This argument is not supported by the evidence

or the intent of the Policy and Purpose Rule.

100. The Policy and Purpose Rule does not establish

conditions for noticed general permits in addition to the more

specific requirements established in Chapter 40D-400, Florida

Administrative Code. The Policy and Purpose Rule is merely a

summary of the SWFWMD's rationale for promulgating Chapter 40D-

400, Florida Administrative Code. It is presumed that any

project which meets the general and specific conditions of

Chapter 40D-400, Florida Administrative Code, which apply to a

particular permit, will necessarily be in conformity with the

Policy and Purpose Rule.

101. If the Special Permit Conditions and the General

Permit Conditions are met by the Restoration Project, the

Department's project will necessarily have minimal impacts on all

water resources of the SWFWMD, including the Spring Run.

I. Conclusion .

102. Based upon the weight of the evidence, the Department

should be allowed to issue a Noticed General Environmental

Resource Permit for the Restoration Project, subject to the

conditions imposed by the SWFWMD.

103. An additional condition, however, should be added to

the permit: the permit should be conditioned upon the depth of

the breach between the Spring and the Withlacoochee Rive being

limited to a depth of no more than that of the flow from the

Spring into the Spring Run. By equaling the depths of the two

channels public access to the Spring will be provided and the

negative impact on the ecological wetland system of the Spring

Run and the navigability of the Spring Run will be decreased.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a Final Order be entered by the Southwest

Florida Water Management District authorizing the Department of

Environmental Protection to proceed with construction under

Noticed General Environmental Resource Permit No. 4715785.00,

modified to provide that the depth of the breach between the

Spring and the Withlacoochee Rive being limited to a depth of no

more than that of the flow from the Spring into the Spring Run.

It is further

RECOMMENDED that the request for hearing filed by Mr. and

Mrs. Manfred Rientenbach be Dismissed.

DONE AND ENTERED this 17th day of August, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

LARRY J. SARTIN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th d ay of August, 1999.

COPIES FURNISHED:

Clark A. Stillwell, Esquire

Brannen, Stillwell and Perrin, P.A.

Bank of Inverness Building

320 Highway 41 South

Inverness, Florida 34451-0250

Peter A. Grant

7325 North Spring Run Terrace

Hernando, Florida 34442

Guy Marwick

12950 Northeast First Street Road

Silver Springs, Florida 34488

Norma L. and Thomas Spence

Post Office Box 246

Holder, Florida 34445

Judith K. Hall and Russell D. Hall

6875 East Halls Spring Path

Hernando, Florida 34442

Janifer Carlson and Richard Carlson

Post Office Box 450

Marble, North Carolina 28905

Mr. and Mrs. Manfred Rietenbach

10825 Nina Street

Largo, Florida 33778

Margaret M. Lytle, Assistant General Counsel

Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34609-6899

Andrew J. Baumann, Assistant General Counsel

Keith L. Williams, Assistant General Counsel

Florida Department of Environmental

Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399

Kathy Carter, Agency Clerk

Florida Department of Environmental

Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399-3000

F. Perry Odom, General Counsel

Florida Department of Environmental

Protection

3900 Commonwealth Boulevard, Mail Station 35

Tallahasee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

issue the Final Order in this case.