STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CRYSTAL RIVER PROTECTIVE )

ASSOCIATION, INC., et al., )

)

Petitioner, )

)

vs. ) CASE NO. 76-1103

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, ) FLORIDA POWER CORPORATION and ) CENTRAL DEVELOPMENT COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, in the City/County Building Auditorium, 123 N.W. Highway 19, Crystal River, Florida, commencing at 9:30 a.m. on July 27, 1977, and continuing on July 28 and 29, 1977. The captioned matter was consolidated for hearing purposes with Case No. 76-1102 (involving Central Development Company's application with the Department of Environmental Regulation to construct a bridge), Case Nos. 77-849 and 77-850 (involving the Department of Environmental Regulation application of the Banana Island Recreation Association, Inc. to construct a boardwalk), and Case No. 77- 960 (involving the granting of consent by the Department of Natural Resources for the proposed bridge, power poles and lines and/or boardwalk). Separate recommended orders are being entered for Case Nos. 76-1102, 77-849 and 850, and 77-960.

APPEARANCES

For Petitioners: Kenneth F. Hoffman, Esquire

Post Office Box 1872 Tallahassee, Florida 32302

For Respondents Alfred W. Clark, Esquire Department of Assistant General Counsel

Environmental Department of Environmental Regulation Reggulation: 2562 Executive Center Circle, E.

Montgomery Building Tallahassee, Florida 32301

For Florida Mr. H. A. Evertz, III Power Florida Power Corporation Corporation: Post Office Box 14042

St. Petersburg, Florida 33733

For Central Baya Harrison, III, Esquire Development: Post Office Box 391

Tallahassee, Florida 32302

APPEARANCE OF THOSE INVOLVED IN OTHER CONSOLIDATED CASES

For Florida David Gluckman, Esquire Audubon Society: 3348 Mahan Drive

Tallahassee, Florida 32303

For Department Kent Z. Zaiser, Esquire

of Natural Assistant Department Attorney Resources: Department of Natural Resources

Crown Building Tallahassee, Florida

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, as well as a personal view of the subject premises by the undersigned, the following relevant facts are found:

1. By an application submitted to the Department of Environmental Regulation in January of 1976, Florida Power Corporation seeks a permit to construct and maintain three electrical power poles, two on Banana Island and one on Parker Island in the King's Bay area of Crystal River. Two spans of wire are to exist between the three poles. The minimum clearance of the bottom wire of the lines spanning between Parker and Banana Islands will be forty-four (44) feet. The wires crossing Banana Island will be some 29 feet in height. The wires will be stretched in a vertical fashion with three wires spaced one above the other, and will carry 12,470 volts of power. Because a mean high water survey was not performed, it is not known whether the three poles will be located on privately or sovereignty-owned land. Inasmuch as Florida Power Corporation has applied for the applicable permits from both the Department of Environmental Regulation and the Department of Natural Resources (See Case No. 77-960), a finding on this issue is not necessary.

   
   

2. Darrell F. Howton, a field inspector with the Department of Environmental Regulation, conducted two on-site visits and an appraisal of the permit application. He recommended approval of the project. Finding that the "short-term or immediate impact of the project will deal almost strictly with the transportation of equipment to and from the site," the only recommendation he made was that, in order to minimize the crushing of vegetation, a direct route to the sites be taken with little moving around in the area with vehicles or equipment. Mr. Howton considered potential impediments to navigation resulting from the overhead wires, but found none due to their proposed heights.

   
   

3. The dredge and fill section of the Department of Environmental Regulation gave notice of its intent to issue the permit applied for by the Florida Power Corporation. Thereafter, the petitioners herein filed a request for a hearing on the permit application, the Department of Environmental Regulation transferred the petitions to the Division of Administrative Hearings for hearing, Central Development Company as the owners of Parker and Banana Islands intervened as a party-respondent, and the undersigned Hearing Officer was duly designated to conduct the hearing. This matter was consolidated for hearing purposes with Case Nos. 76-1102, 77-849, 77-850 and 77-960, for which separate recommended orders are being entered.

4. The majority of testimony presented by the petitioners related to the issue of whether or not the proposed power lines would create a hazard or a serious impediment to navigation in the area between Parker and Banana Islands. As noted above, the minimum clearance of the wires extending between these islands is 44 feet. The depth of this area at high tide is between four and five feet. The greater weight of the evidence was to the effect that sailboats with masts higher than 35 to 40 feet were too large to use this particular channel because their draft would be too great for the depth of the channel. Deeper navigable waters exist on the west side of Banana Island, and it would not be prudent for a large sailboat owner to risk the expenses and dangers of becoming grounded in the more shallow waters. It was the testimony of the distribution engineering supervisor for Florida Power Corporation that if the power lines created any problems after their installation with respect to sailboat masts, Florida Power would correct the situation by raising the lines to accommodate local traffic.

   
   

5. Seaplanes (five or six per year) occasionally utilize the air space between Banana and Parker Islands, depending upon the prevailing wind direction.

   
   

6. There would be no harmful or adverse effect upon the manatee by the existence of the power poles or lines.

   
   

7. Several waterfront property owners testified that they felt their view of the waters would be obstructed by the existence of the proposed power lines.

   
   

   CONCLUSIONS OF LAW

   
   

8. The petitioners in this proceeding have failed to present sufficient evidence that the proposed installation and maintenance of the power poles and lines would create any adverse impact upon the water quality, air quality or aquatic life or resources of the King's Bay area of Crystal River. Nor have petitioners demonstrated that the power lines would create a hazard or serious impediment to navigation in the area. Those sailboats with masts high enough to confront the 44 foot high bottom wire of the lines between Parker and Banana Islands would not reasonably use this pass because of the depth of the water in the pass. Deeper waters without electrical wires are accessible to the larger sailboats on the other side of Banana Island. The evidence did not reveal a sufficient number of seaplanes which utilize this immediate area as to negate the public interest in allowing the poles and lines to be permitted.

   
   

9. The common law riparian rights of waterfront property owners to an unobstructed view of the channel and waters of King's Bay will not be violated by the existence of the power lines. The diameter of each of the vertically spaced lines is insufficient to block any property owners' view, and the owners who testified live at a far enough distance from the proposed lines as to render their effect minimal.

   
   

10. In summary, the evidence as a whole clearly demonstrates that the installation and maintenance of the power poles and lines will comply with the permitting provisions within the Department of Environmental Regulation's jurisdiction under Florida Statutes, Chapters 253 and 403, specifically Section 253.123(2)(b) and 403.087(1). Prior to the issuance of any permit by the Department of Environmental Regulation, the applicant must obtain and present to the Department of Environmental Regulation the necessary form of consent from the Board of Trustees of the Internal Improvement Trust Fund. Florida Statutes Section 253.77(1976).

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that Department of Environmental Regulation issue to the Florida Power Corporation a permit authorizing and allowing the installation and maintenance of the power poles and lines contained in its application. This permit should not be issued unless and until the applicant receives and exhibits the necessary form of consent from the Trustees of the Internal Improvement Trust Fund, pursuant to Florida Statutes Section 253.77 (1976).

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

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Kenneth F. Hoffman, Esquire Post Office Box 1872 Tallahassee, Florida 32302

Alfred W. Clark, Esquire Assistant General Counsel

Department of Environmental Regulation 2562 Executive Center Circle, E. Montgomery Building

Tallahassee, Florida 32301

Baya Harrison, III, Esquire Post Office Box 391 Tallahassee, Florida 32302

David Gluckman, Esquire 3348 Mahan Drive

Tallahassee, Florida 32303

Mr. H. A. Evertz, III Florida Power Corporation Post Office Box 14042

St. Petersburg, Florida 33733

Kent A. Zaiser, Esquire Assistant Department Attorney Department of Natural Resources Crown Building

202 Blount Street Tallahassee, Florida

================================================================= AGENCY FINAL ORDER

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

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

CRYSTAL RIVER PROTECTION ASSOCIATION, INC., et al.,

Petitioner,

vs. CASE NO. 76-1103

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, FLORIDA POWER CORPORATION and CENTRAL DEVELOPMENT COMPANY,

Respondent.

/

FINAL ORDER

BY THE DEPARTMENT:

On September 16, 1977, the duly appointed Hearing Officer in the above- styled case entered and submitted by mail to the Department of Environmental Regulation (hereafter the Department) and all parties a Recommended Order consisting of Findings of Fact, Conclusions of Law and a Recommendation. A copy of the Recommended Order is attached hereto as Exhibit A.

Pursuant to Department Rule 17-1.26(2), Florida Administrative Code, and Section 120.57(1)(b)8., Florida Statutes, the parties were given an opportunity to submit written exceptions to the Recommended Order. The Petitioners have submitted Exceptions to Recommended Orders and a Request for Oral Argument, and Respondent Central Development Company (hereafter Respondent) has submitted a Response to Exceptions to Recommended Orders.

After due notice, oral arguments were presented before the Assistant Secretary of the Department on November 1, 1977. As Assistant Secretary, I have been expressly authorized by the Secretary of the Department to take final agency action in this case during the Secretary's current absence from the state on official business.

The basic issue to be resolved by these proceedings is whether Florida Power Corporation (hereafter Applicant) should be issued a permit pursuant to Sections 253.123 and 403.087, Florida Statutes, to construct three (3) power poles in navigable waters of the state in Kings Bay, Citrus County. After conducting an administrative hearing pursuant to Section 120.57, Florida Statutes, the Hearing Officer, except as noted herein, has recommended that the requested permit be issued.

Petitioners have raised numerous issues in their Proposed Recommended Order previously submitted to the Hearing Officer and in their Exceptions. The issue of immediate concern is whether the Applicant has complied with the requirements of Section 253.77(1), Florida Statutes, and if it has not, what action should be taken.

Section 253.77(1), Florida Statutes, provides:

"No department, including any division, bureau, section, or other subdivision thereof, or any other agency of the state possessing regulatory powers involving the issuance of permits shall issue any permit, license, or other evidence

of authority involving the use of sovereignty or other lands of the state, title to which is vested in the Board of Trustees of the Internal Improvement Trust Fund or the Department of Natural Resources under chapter 253, until the applicant for such permit, license, or other evidence of permission shall have received

from the Board of Trustees of the Internal Improvement Trust Fund the required lease, license, easement, or other form of consent authorizing the proposed use and exhibited it to such agency or department or subdivision

thereof having regulatory power to permit such use."

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

The Hearing Officer, in her Conclusions of Law and Recommendation, recognized the applicability of Section 253.77, Florida Statutes. She states: "This permit should not be issued unless and until the Applicant receives and exhibits the necessary form of consent from the Trustees of the Internal Improvement Trust Fund, pursuant to Florida Statutes Section 253.77 (1976)."

It has been suggested that a permit could be issued with the stipulation that construction not begin until the appropriate Trustees' authorization has been obtained. It is my opinion that this approach is precluded by that portion of Section 253.77(1) which states, "No department . . . shall issue any permit .

. ."

It has also been suggested that this Department could withhold any action until compliance with Section 253.77(1), Florida Statutes, has been demonstrated. However, Section 120.60 (2), Florida Statutes, requires that the application for a permit be approved or denied within forty-five (45) days after a recommended order is submitted to the agency. If this time requirement is not met, the application will be deemed approved. Therefore, agency action may not be withheld.

Since the lack of Trustees' authorization in itself precludes the Department from issuing the requested permit, the remaining issues raised by Petitioners' Exceptions and Proposed Recommended Order need not be reached at this time. Other than as it relates to Section 253.77(1), Florida Statutes, this order shall not be construed to be an adoption or rejection of the Hearing Officer's Recommended Order.

There is one additional issue which must be addressed. In oral argument, Petitioners contended that the authority to take final agency action in this case could not be delegated to the Assistant Secretary. The position of Assistant Secretary was created by Section 4 of Chapter 75-22, Laws of Florida. Section 6 of this act enumerated certain duties of the Secretary (not relevant here) and stated that those duties were addition to those powers and duties of heads of departments set forth in Chapter 20, Florida Statutes . . ."

Section 20.05(1)(b), Florida Statutes, provides that the head of a department shall "[h]ave authority . . . to execute any of the powers, duties, and functions vested in said department . . . through such assistants and deputies as shall be designated by the head of the department . . . unless the head of the department is explicitly required by law to perform the same without delegation."

Since neither Section 403.087, supra, Section 253.123, supra, nor Chapter 120, Florida Statutes, explicitly require that the permit requested herein be issued by "the Secretary", and since the power and duty to take action herein is vested in "the department" by Sections 8 and 10, Chapter 75-22, Laws of Florida, it is clear that the authority to take final agency action on the Recommended Order submitted in thin case may be delegated to the Assistant Secretary.

After having considered the Recommended Order and record submitted herein, together with Petitioners' Exceptions to Recommended Orders, Respondent's Response to Exceptions, and oral argument, it is clear that the Applicant lacks the authorization for use of sovereignty lands which is required by Section 253.77(1), Florida Statutes. Accordingly, it is

ORDERED that the permit requested by the Applicant must be and hereby is denied. Upon submission of written evidence that proper authorization pursuant to Section 253.77(1), Florida Statutes, has been obtained, the Department will reconsider its final agency action in this matter and act within ten (10) days of submission of such evidence.

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

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. TSCHINKEL

Assistant Secretary

2562 Executive Center Circle, East

Montgomery Building Tallahassee, Florida 32301

Copies furnished to: Alfred W. Clark, Esquire

Baya Harrison, III, Esquire

W. E. Bishop, Jr., Esquire Kent A. Zaiser, Esquire

H. A. Evertz, III, Esquire David Gluckman, Esquire Kenneth F. Hoffman, Esquire

Mr. Jim Brindell, Div. of Env. Perm. Mr. Paul Parks, Office of Enforcement Mr. David Puchaty, Southwest District

Docket for Case No: 76-001103

Orders for Case No: 76-001103