Judges: LINDA M. RIGOT
Agency: Department of Environmental Protection
Latest Update: Feb. 17, 1987
Summary: Approval of application to install weedgate and associated fencing at mouth of dead-end canal wich would result in improved water quality in canal.
86-0599.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LOIS SIMPSON, )
)
Petitioner, )
)
vs. ) CASE NO. 86-0599
) JOHN H. VOORHEES and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
) PHILIP ANDES and BETTY ANDES, )
)
Petitioners, )
)
vs. ) CASE NO. 86-0600
) JOHN H. VOORHEES and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
) HAROLD PUCKETT, )
)
Petitioner, )
)
vs. ) CASE NO. 86-0601
) JOHN H. VOORHEES and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
) MR. and MRS. BERN JOHNSON, )
)
Petitioners, )
)
vs. ) CASE NO. 86-0954
) JOHN H. VOORHEES and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
) JAMES H. & MARY B. THOMAS, )
)
Petitioners, )
)
vs. ) CASE NO. 86-0955
) JOHN H. VOORHEES and DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
RECOMMENDED ORDER
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on November 18, 1986, in Key West, Florida.
The Petitioners in these consolidated cases were represented by H. Ray Allen, Esquire, Key West, Florida; Respondent John H. Voorhees appeared on his own behalf; and Respondent Department of Environmental Regulation was represented by Douglas H. MacLaughlin, Esquire, and Ann Foster, Certified Legal Intern, Tallahassee, Florida.
Respondent Voorhees filed with Respondent Department of Environmental Regulation an application for a permit to install a weedgate and associated fences at the mouth of a canal in Big Pine Key in Monroe County. When the Department preliminarily approved that application, Petitioners filed these consolidated proceedings. Accordingly, the issue for determination herein is whether Voorhees' permit application should be approved.
Petitioners presented the testimony of two witnesses, Respondent Voorhees presented the testimony of ID witnesses, and Respondent Department of Environmental Regulation presented the testimony of two witnesses.
Additionally, Petitioners Thomas' Exhibit numbered l, Petitioners' Exhibits 1-3, Joint Exhibits l- 3, Respondent Voorhees' Exhibits numbered 1-6, and Respondent Department of Environmental Regulation's Exhibits numbered 1-5 were admitted in evidence.
Only the Respondents submitted posthearing proposed findings of fact in the form of proposed recommended orders. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.
FINDINGS OF FACT
The Department of Environmental Regulation (hereinafter "DER") issued a letter of "intent to issue" a permit based upon an application submitted by Respondent John H. Voorhees for a weedgate and associated fences to be placed at the mouth of the Hollerich Subdivision canal in Big Pine Key, Monroe County, Florida.
The majority of owners of lots in the Hollerich Subdivision are in favor of the gate.
The Hollerich Subdivision canal is approximately 1,200 feet long. it is an east-west dead-end canal with its mouth facing east.
Floating seaweeds, grasses and detritus (a/k/a wrack are blown into the canal by the prevailing east and southeast winds.
Although some surface wrack may blow back out of the canal with the occasional west wind, the sunken weeds will not.
The accumulation of windblown wrack results in a stench caused by hydrogen sulfide gas from rotting weeds.
The odor causes nausea, sore throats, and sneezing.
Water quality tests of dissolved oxygen (DO) taken both in April 1985 and in November 1986 show the water in the canal to be below state standards.
The low DO levels found in the canal are primarily due to the rotting weeds although the nutrients leaching from the surrounding yards also contribute to those low levels.
The area outside the canal is better able to diffuse and absorb the wrack problem than the area inside the carnal. Accumulations of wrack outside the canal are more temporary and therefore produce less navigational difficulty and less deterioration of water quality.
The navigational problems caused by weeds choking the canal range from difficulty in steering to poor visibility. The decaying wrack also causes growth on boat bottoms, can damage boat cooling systems, and turns the water in the canal red.
The amount of wrack entering the canal and accumulating there has been increasing over the last five years.
The proposed structure will stop wrack from entering the canal and will function as a weedgate.
The design of the gate will not cause any navigational hazards, although the weedgate should have navigational aids to assure safety.
Although the weedgate will not improve water quality in the canal so as to meet state standards, it will result in an improvement.
DER has no jurisdiction to resolve property disputes. The proposed weedgate is to be placed in front of the canal with no on-land attachments, and Respondent Voorhees has given reasonable assurances that the proposed gate is not on privately owned property.
The proposed structure will be placed in Class III Outstanding Florida Waters. DER has balanced the positive public interest effects that will accrue to the owners of property along the canal against the' negative public interest effects that may accrue to owners of property at the mouth of the canal. Respondent Voorhees has given reasonable assurances that the project will be clearly in the public interest.
Respondent Voorhees has given reasonable assurances that the proposed project will meet all applicable DER rules and standards.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
The Department of Environmental Regulation has jurisdiction over the construction of and the maintenance of the proposed weedgate and associated fences at the proposed location, pursuant to Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4, Florida Administrative Code. Respondent Voorhees has met his burden of providing reasonable assurances that the proposed weedgate and associated fences to be located at the mouth of the Hollerich Subdivision canal will comply with all applicable rules and regulations of the Department of Environmental Regulation. In fact, the evidence is clear that the proposed weedgate will result in an improvement in the water quality in the canal although it is unlikely that the water in the canal will ever achieve state standards.
The evidence is clear that the project will be located in Class III Outstanding Florida Waters. Accordingly, Section 403.918(2), Florida Statutes, requires that the applicant provide reasonable assurance that the project will be "clearly in the public interest." In this situation, the Department appears to interpret the residents living along the canal as the "public" to which the public interest test must be applied. The Department presented evidence that the seven statutory criteria set forth in Section 403.918(2)(a), Florida Statutes, have been considered and balanced and that the project has been found to be clearly in the public interest.
In its letter of "intent to issue" the Department has proposed specific conditions to be attached to the permit sought by Respondent Voorhees in this proceeding. Those proposed conditions include obtaining approval to use land owned by the Department of Natural Resources, posting conspicuous reflectors and signs warning boaters to proceed slowly, removal of the weedgate and fences if they are not properly maintained, a specific mesh size for the weedgate and fences, a maintenance plan to be approved by the Department of Environmental Regulation prior to construction, and the requirement that the project comply with applicable state water quality standards. All of those conditions are required in order to assure that the project will be constructed as designed and maintained as promised. Additionally, any permit issued should contain a further condition that all construction and maintenance on both the weedgate and associated fences be done from the water unless prior consent is obtained from the owners of the lots at the mouth of the canal (some of the petitioners herein) to enter upon their property In order to either construct or maintain the weedgate and associated fences by land.
RECOMMENDATION
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered (1), granting Respondent
Voorhees' permit application and (2), authorizing the issuance of a permit subject to all permit conditions contained in the Department's letter of Intent to Issue the permit and also including the condition that no trespassing occur on the property at the mouth of the canal attendant to either the construction or the maintenance of the weedgate and associated fences.
DONE and RECOMMENDED this 17th day of February, 1987, at Tallahassee, Florida.
LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1987.
APPENDIX TO RECOMMENDED ORDER,
CASE NOS. 86-0599, 86-0600, 86-0601,
86-0954, and 86-0955
l. Respondent Department of Environmental Regulation's proposed findings of fact numbered 1-5, 9, 10, 12-15, 17-20, the first and last sentences of 21, 23, 28, and
29 have been adopted in this Recommended Order either verbatim or in substance. The remainder of the Department's proposed findings have been rejected as follows: 6-8, 11 and 16, as being unnecessary for determination herein; the remainder of 21 and 22
as being immaterial to the issues herein; and 24-27 as being subordinate.
2. Respondent Voorhees' proposed findings of fact numbered l, 3, 8, and 13 have been adopted in this Recommended Order. The remainder of Voorhees' proposed findings
of fact have been rejected as follows: 2 and 16 as being subordinate; 9 and 10 as being unnecessary; and 11, 12,
14 and 15 as not being supported by the evidence in this cause.
COPIES FURNISHED:
Douglas H. MacLaughlin, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
John H. Voorhees Route 1, Box 612 F
Big Pine Key, Florida 33043
H. Ray Allen, Esquire 618 Whitehead Street Key West, Florida 33040
Dale Twachtmann Secretary
Department of Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Docket for Case No: 86-000599
Orders for Case No: 86-000599
| Issue Date |
Document |
Summary |
|
Feb. 17, 1987 |
Recommended Order
|
Approval of application to install weedgate and associated fencing at mouth of dead-end canal wich would result in improved water quality in canal.
|
