STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM J. WIEGAND, )

)

Petitioner, )

)

vs. ) CASE NO. 76-250

) Application No. 76-140

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursuant to notice on February 10, 1976, in the District Headquarters of the Southwest Florida Water Management District Conference Room, Brooksville, Florida, before Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

The case arose upon the application after the fact for a permit to maintain a bulkhead or seawall on the applicant's property on Lake Eustis. The matter was set and noticed for formal hearing by Southwest Florida Water Management District, and the Division of Administrative Hearings was requested to provide a Hearing Officer.

APPEARANCES

For Petitioner: No Appearance For Respondent: Jay T. Ahern

Staff Attorney

Southwest Florida Water Management District Post Office Box 457

Brooksville, Florida 32780 SUMMARY

Oliver De Witt, an engineer employed by the Southwest Florida Water Management District, was called and testified to the following facts as revealed in his investigation of the seawall.

The seawall was constructed by the applicant prior to application. When notified that this structure was in violation of the Board's rules, the owner then applied for a permit. There was no evidence presented as to when the seawall was constructed, although it was in existence on November 6, 1975.

From Exhibit 1, a photograph identified by DeWitt, the seawall clearly is within the waters of Lake Eustis, and was within the mean annual floodplain of the lake. DeWitt further testified that there had been fill placed behind the said seawall.

Because there was fill placed within the mean annual floodplain of the lake and a seawall also constructed thereupon, the staff recommended denial pursuant to provisions of Rule 16J-1.06(4)(a), F.A.C.

The basic provision of Rule 16J-1.051 are as follows: "(1) Unless otherwise expressly exempted,

a permit shall be required to connect to,

withdraw from, discharge water into, place construction within or across, or otherwise make use of a work of the District. . ." (Emphasis supplied.)

Subsection (4) of Rule 16J-1.06, F.A.C., provides as follows in part: "(4) Issuance of a permit will be denied if

the permitted activity:

1. Will place fill material, or any non-water use related structure within the mean annual floodplain of a lake or other impoundment, or of a, stream or water course." (Emphasis supplied.)

RECOMMENDATION

The Hearing Officer having considered the law and the facts would recommend denial of the application.

DONE and ORDERED this 23rd day of February, 1976.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Jay T. Ahern, Esquire Counsel for SWFWMD

Willian J. Wiegand

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

AGENCY FINAL ORDER

================================================================= SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

WILLIAM J. WIEGAND,

Petitioner,

vs. ORDER NO. 76-12

Application No. 76-140

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,

Respondent,

/

FINAL ORDER

A Hearing having been held On the above Application No. 76-140 To Construct Within A "Work Of The District" namely Lake Eustis, in Lake County, Florida, before a Hearing Officer of the Division of Administrative Hearings and a Recommended Order submitted for consideration at a Hearing before the Governing Board of the Southwest Florida Water Management District on May 5, 1976 in the Board Room, District Headquarters, 5060 U. S. 41 South, Brooksville, Florida.

The Governing Board having reviewed the Findings of Fact, Conclusions of Law and the Recommended Order, and hearing testimony from District staff that the applicant has, subsequent to the hearing on February 10, 1976 before the Hearing Officer, removed all construction in violation of Chapter 16J- 1.06(1)(a), Florida Administrative Code, prohibiting fill or construction within the mean annual floodplain of Lake Eustis; and that applicant's revised proposed construction complies with all conditions for a permit under the District's Rule 16J-1.06(3) and (4), Florida Administrative Code.

It is further found by the Governing Board that the staff recommends that a permit be granted on Application No. 76-140 as revised by applicant to build a seawall within Lake Eustis, a "Work of the District" and the Findings of Fact, Conclusions of Law and Recommended Order submitted for consideration are no longer applicable to this application.

It is Thereupon

ORDERED

That the Hearing Officer's Recommended Order be rejected because of applicant's voluntary correction of any construction in violation of Chapter 16J-1.06(1)(a), F.A.C.; the Findings of Fact and Conclusions of Law in said Recommended Order are no longer applicable to this matter; and the Governing Board of the Southwest Florida later Management District finds the applicant meets the conditions for a permit as set forth in Chapter 16J-1.06(3) and (4),

F.A.C. and directs the staff of the District to issue a revised Application No. 76-140.

DATED: October 6, 1976

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

DERRILL S. McATEER, CHAIRMAN

SEAL

THOMAS M. VAN DER VEER, SECRETARY

Docket for Case No: 76-000250

Orders for Case No: 76-000250