STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MRS. THOMAS BERRY and )

MS. JULIA BANCROFT, )

)

Petitioner, )

)

vs. ) CASE NO. 77-023

)

FANNIN SPRINGS TRUST AND ) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, STATE OF FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Chiefland, Florida, on September 16, 1977, before the undersigned Hearing Officer.

APPEARANCES

For Petitioners: Mrs. Thomas Berry

8375 35th Avenue, North

St. Petersburg, Florida 33710 and

Ms. Julia Bancroft 1414 Cleveland Street

Apartment No. 1

Clearwater, Florida 33515

For Fannin William D. Ryals, Esquire Springs Trust: Post Office Drawer J

Gainesville, Florida 32602

Department of Segundo J. Fernandez, Esquire Environmental Assistant General Counsel

Regulation: Department of Environmental Regulation

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301 ISSUE PRESENTED

Whether a permit should be issued to Fannin Springs Trust to construct a floating barrier over Fannin Springs Run, pursuant to Chapters 253 and 403, Florida Statutes.

The hearing was originally scheduled for July 29, 1977, but at the request of petitioners it was postponed until September 16, 1977.

Petitioners were not represented by legal counsel at the hearing and, accordingly, the Hearing Officer explained their procedural rights in administrative proceedings.

At the hearing, six members of the public testified concerning the matter under consideration. A list of their names and addresses is attached hereto as Appendix A.

FINDINGS OF FACT

1. On September 1, 1976, Dennis E. Andrews, trustee of the Fannin Springs Trust (hereinafter "Trust"), applied to the Department of Environmental Regulation for a permit under Chapters 253 and 403, Florida Statutes, and for water quality certification under Public Law 92-500, for the construction of a floating barricade across Fannin Springs Run near its entrance to the Suwannee River in Levy County, Florida. Fannin Springs Run extends to Fannin Springs and the outer limits of the springs are about 400 feet from the Suwannee River. The Trust, composed of four trustees, owns the land surrounding the springs and extending to the river. This property is not commercialized, but permission is periodically granted to church and civic groups to use it for social and money- making purposes. In such instances, the particular group operates a soft drink concession stand and charges fifty cents admission to swimmers using the Trust dock and beach area at the springs. However, the Trust insists that any such groups carry liability insurance to indemnify it against any injuries arising from the use of the land and facilities. The property is not open to the general public unless incident to one of the above authorized uses. (Testimony of Usher, Exhibit 6)

   
   

2. The proposed floating barrier would be constructed of styrofoam ballast with a wood frame approximately five feet wide and eighteen inches high to be moored on either side of the run by cables secured on the banks. The purpose of the barricade is to prevent boats from proceeding into the springs where a hazard to swimmers has existed for some time. Some of these craft have customarily maneuvered in and around the main swimming area known as the "boil" and utilized the Trust facilities, including dock and beach area, without permission or otherwise paying the concession fee, thus creating hard feelings between the swimming and boating groups. The presence of the boats also causes resentment by those on shore due to the litter composed of beer cans and the like deposited by their occupants. During summer weekends and holidays, the area becomes quite congested with perhaps several hundred individuals enjoying the springs, together with as many as one hundred boats in the area. Incidents have arisen in the past involving reckless boat operation in the springs. Some were reported to the Levy County Sheriff's Office; however, the former sheriff was unable to verify any of the complaints made to his office. It is conceded by all parties to the proceeding, and those members of the public who testified, that a definite safety hazard exists in the area. (Testimony of Usher, Berry, Hartley, Dean, Brown, Judah, Bancroft, Shifflette, A. Andrews, Locke, Exhibits 1, 2, 6)

   
   

3. After receiving the permit application, Marcia Elder, an environmental specialist with the Department of Environmental Regulation, inspected the site and concluded that there was a definite need for the barricade, but that the proposed location, approximately 110 feet from the mouth of the "run," would effectively constitute a denial of public access to the springs. She therefore concluded that a diagonal barrier across the springs would serve the same purpose of safety to swimmers, but also provide the necessary access to those arriving by boats. She further determined that such a barrier would create no

   adverse effects on water quality or plant and animal life and other natural resources to any appreciable extent. (Testimony of Elder, Exhibit 7)

   
   

4. Based on Elder's investigation, the Department of Environmental Regulation indicated to the Trust its intent to deny the application. After the parties were unable to resolve the matter informally, the Trust filed a petition for an administrative hearing on September 1, 1976. Formal notification of the Department's intent to deny the application was stated in a letter of December 7, 1976, which advised the Trust that the proposed denial was based on the fact that the barricade would not allow navigation into Fannin Springs, but would create a navigational hazard or a serious impediment to navigation on navigable waters, so as to be contrary to the public interest. (Exhibit 8)

   
   

5. The petition was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. Subsequent to the filing of the petition in this Division, the parties negotiated further and arrived at a compromise settlement of the matter. It was agreed that if the Trust would place the barrier across the run at a point closer to the springs than previously requested, the necessary permit would be granted. Petitioners Berry and Bancroft, who had previously objected to any barrier at all, were notified by a letter of the Department, dated April 29, 1977, of the Department's intent to issue the modified permit. Thereafter, on May 11, 1977, they petitioned the Department of Environmental Regulation for a hearing, claiming that the proposed barrier would create a navigational hazard, impede navigation and not be in the public interest. The petition further alleged that the contemplated location of the barrier would be in an area where the water would be too deep for children to have access to the shallow water of the swimming area beyond the barrier. At the hearing, however, petitioners acknowledged the existence of a swimming hazard at the springs and Ms. Bancroft agreed that a diagonal barrier as originally proposed by Elder would be unobjectionable. (Testimony of Berry, Bancroft, Petition)

   
   

6. If the barrier is placed across the run as agreed to by the Department and the Trust, it would be close to the mouth of the springs in an area of varying depths of 6 to 8 feet and at times 20 feet. The width of the run where the barrier is contemplated is approximately 110 feet. If boats are stopped in that area, congestion would result and boat passengers attempting to swim to the shallow water near the beach or to the land would be endangered by the boat traffic. It is possible, also, that fees would be charged such individuals to exit on the land of the Trust. If the diagonal barrier were permitted, there would be a much larger area for the use of boats, and access to the swimming area would be greatly facilitated. (Testimony of Usher, Berry, Dilger, Seykera, Judy)

   
   

7. On July 19, 1977, the Board of County Commissioners of Levy County, Florida, passed a resolution stating that an extremely dangerous situation existed at Fannin Springs because of boaters encroaching upon swimmers. The resolution further stated that application would be made to the Division of Marine Resources of the Department of Natural Resources for the purpose of having Fannin Springs declared a restrictive area pursuant to Section 371.522, Florida Statutes, and having a floating barrier erected at the mouth of the springs to prevent boats from entering the swimming area. (Exhibit 5)

   
   

8. On August 22, 1977, the Trust agreed to abide by the provisions of a proposed Department of the Army Corp of Engineers permit to install the barricade at a position across Fannin Springs Run 170 feet from the Suwannee River, subject to providing upland access when the barricade is installed and

   not charging a fee for the use of the barricade provided upland facilities are not used. (Exhibit 3)

   
   

   CONCLUSIONS OF LAW

   
   

9. The general authority for the issuance of permits by the Department of Environmental Regulation is Section 403.087, Florida Statutes, which reads in pertinent part as follows:

   
   

   "403.087 Permits; general issuance; denial; revocation; prohibition; penalty.--

   1. No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule. . .

   2. The department shall adopt, amend, or repeal rules, regulations, and standards for issuance, denial, and revocation of permits.

   3. The department shall issue permits on such conditions as are necessary to effect the

      intent and purposes of this section.

   4. The department shall issue permits to construct, operate, or maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only if it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department. . ." (Emphasis supplied)

      
      

      The evidence in this case clearly shows that the proposed "installation," i.e., the floating styrofoam and wood barrier, is not expected to be a source of air or water pollution and, accordingly, the permitting standards of the Department of Environmental Regulation are inapplicable in this regard. The matter falls more properly within an exemption specified in Rule 17-4.04, Florida Administrative Code, which was officially recognized by the Hearing Officer without objection by the parties and reads as follows:

      
      

      "17-4.04 Exemptions.

      The following sources are exempted from the permit requirements of this Chapter

      (11) Any article. . .contrivance. . .or activities which the Department shall determine does not cause the issuance of air or water contaminants in sufficient quantity, with respect to ist (sic) character, quality or content, and the circumstances surrounding its location, use and operation, as th (sic) contribute significantly to the pollution problems within the State, so that the

      regulation thereof is not reasonably justified, and which does not in fact cause the issuance

      of contaminants in violation of law or of these rules and regulations. Such determination shall be made in writing and filed by the Department as a public record, Such determination may be revoked at any time. It is considered that the proposed barrier falls within the foregoing exemption and that therefore the Department of Environmental Regulation should make the necessary determination in this regard.

      
      

10. In like manner, inasmuch as the evidence fails to establish that the proposed barrier will affect established water-quality standards to any appreciable degree, it is considered that water-quality certification under Public Law 92-500 poses no problem and should be issued.

    
    

11. Although Chapter 253, Florida Statutes, does not specifically make mention of floating barriers such as that under consideration, Section 403.813 authorizes district centers of the Department of Environmental Regulation to issue permits for certain activities including (at subsection 1(d)) "The installation of buoys, signs, fences, ski ramps, and aids to navigation." It is considered that the floating barrier is akin to a "fence" as used in the statute. Further Rule 17-4.29(1)(e) (officially recognized by the Hearing Officer without objection by the parties) requires a Department permit for "Miscellaneous activities including navigational aids, commercial signs, fences or similar obstructions,. . .bridges, walkways or similar structural crossings" at or below the line of mean high water or ordinary high water in, on, or over the navigable waters of the state. The criteria for issuance of a permit under such circumstances is that the proposed activity will not interfere with the conservation of natural resources to such an extent as to be contrary to the public interest and that it will not create a navigational hazard or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters so as to be contrary to the public interest.

    
    

12. In view of the foregoing, it is considered that the project comes within the purview of Section 403.813(1)(d) and Rule 17-4.29. It is undisputed that the waters in question are navigable and that the barrier poses questions concerning an impediment to navigation or a possible navigation hazard. The proposed placement of the barrier across Fannin Springs Run, although providing a safe area for swimmers in the springs, unquestionably impedes the free flow of boat traffic into the springs proper, and also limits the maneuverability and "turn around" space for larger craft. Additionally, the proposed location, although solving one safety problem, creates another by the fact that passengers from boats will have to emerge therefrom and make their way in relatively deep water a fair distance to the swimming area beyond the barrier or walking on it to the land owned by the Trust. Neither alternative is considered a satisfactory solution to the rights of public ingress to the swimming area.

    
    

13. It is, however, considered that the original proposed placement of the floating barrier by the Department's environmental specialist as set forth in Exhibit 7 would permit the additional space necessary for safe boat operation and still provide a sufficient safety barrier for swimmers. It is therefore concluded that a modified permit should be issued to the Trust to construct the barrier at that location.

    
    

14. It should be mentioned that Section 371.522, Florida Statutes, which deals with the regulation of boats, authorizes the Division of Marine Resources

of the Department of Natural Resources to establish restricted areas when it is determined that a safety hazard exists or there is interference with navigation after investigation and upon application of the governing body of the county or municipality in which the restricted area is to be located. Since it appears that the Board of County Commissioners of Levy County has made such application for a barrier to be erected at the mouth of Fannin Springs, it may well be that the determination of boundaries of any declared restricted area necessarily may limit the Department of Environmental Regulation in its action as to the final location of any barrier.

RECOMMENDATION

That the Department of Environmental Regulation issue a modified permit as set forth above to Fannin Springs Trust to construct a floating barrier in the Fannin Springs area, pursuant to Section 403.813(1)(d), Florida Statutes, and Rule 17-4.29(e), Florida Administrative Code.

Done and Entered this 29th day of September, 1977, in Tallahassee, Florida.

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1977.

COPIES FURNISHED:

Segundo J. Fernandez, Esquire Assistant General Counsel

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

William D. Ryals, Esquire Post Office Drawer J Gainesville, Florida 32602

Mrs. Thomas Berry

8375 35th Avenue, North

St. Petersburg, Florida 33710

Ms. Julia Bancroft 1414 Cleveland Street

Apartment No. 1

Clearwater, Florida 33515

Appendix A

List of Public Witnesses

Name Address

Bruce W. Dilger Suwannee River on U.S. 19 Camp Ground

Old Town, Florida 32600

Mrs. Carl Shifflette Executive Vice President

Suwannee River Citizens Assoc. Bell, Florida

Peggy Seykora Route 3, Box 35

Old Town, Florida 32680

A.D. Andrews Post Office Box 1126 Chiefland, Florida 32626

Wayne C. Locke Post Office Box 147 Chiefland, Florida

Fred Judy Route 3

Old Town, Florida

Docket for Case No: 77-000023

Orders for Case No: 77-000023