STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA AUDUBON SOCIETY AND )
NATIONAL AUDUBON SOCIETY, )
)
Petitioners, )
)
vs. ) CASE NO. 87-5578
) RUSSELL E. AND MARILYN F. SCOTT, ) CALOOSA TELEVISION CORP., AND ) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )
)
Respondents. )
)
RECOMMENDED ORDER
The final hearing in this case was held on June 23, 1988 in Ft. Myers, Florida, and on July 11, 1988 in Tallahassee, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings. The parties were represented as follows:
APPEARANCES
For Petitioners: Charles Lee, Senior, Vice President
Florida Audubon Society 1101 Audubon Way
Maitland, Florida 32751
For Respondents: Russell P. Schropp, Esquire
Post Office Box 280
Fort Myers, Florida 33902 (Russell E. and Marilyn F. Scott
and Caloosa Television Corporation)
James K. Sturgis, Esquire Post Office Box 24680
West Palm Beach, Florida 33416
(South Florida Water Management District)
The issue in this case is whether the South Florida Water Management District (District) should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation (Caloosa) for the construction and operation of a surface water management system to serve a television signal tower and control building in southeast Lee County, Florida.
Specifically, the parties disagree as to whether the tower and guy wires constitute a part of the surface water management system, and if so, whether they will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which feed on biomass in such waters, thereby maintaining water quality. The Florida Audubon and National Audubon Societies (Audubon) oppose the issuance
of this permit. By Order entered on February 8, 1988, Charles Lee was accepted as a qualified representative on behalf of Audubon, pursuant to Rule 22I-6.008, Florida Administrative Code.
At the hearing, Caloosa called five witnesses and introduced thirteen exhibits, while the District called one witness, but did not introduce any exhibits. Audubon called seven witnesses and introduced sixteen exhibits; one exhibit which Audubon sought to introduce was rejected as irrelevant. Official recognition was taken of matters which may be judicially noticed, pursuant to Rule 22I-6.020, Florida Administrative Code. The final volume of the transcript was filed on August 3, 1988, and the parties were allowed to file proposed recommended orders, including proposed findings of fact, on or before August 15, 1988. The Appendix to this Recommended Order contains a ruling on the parties' timely filed proposed findings of fact.
On August 15, 1988, Audubon filed a Motion To Strike the District's proposed findings of fact since they do not contain citations to the record. Rule 22I-6.031(3), Florida Administrative Code. No prejudice to Audubon has been shown by the District's failure, and, in fact, any prejudice that results from this failure is to the District itself, rather than any other party.
Accordingly, the Motion To Strike is denied.
FINDINGS OF FACT
On or about September 14, 1987, Caloosa filed Application Number 09147- B, for a surface water management permit, with the District. This application was for the construction and operation of a surface water management system to serve a 1249 foot high television transmission tower and control building in southeast Lee County, Florida.
The proposed location of Caloosa's project is approximately one mile north of the boundary of the Corkscrew Swamp Sanctuary, which is owned and operated by Audubon, and specifically, approximately two and one-half miles north of a wood stork colony located within the Sanctuary. This rookery is the largest rookery of wood stork, a federally endangered wading bird, in the United States.
The project site is 60 acres in size, and approximately square in shape. It is improved agricultural land, with a circular cypress wetland of about 5.5 acres located near the center of the site. Extending outward from the cypress wetland are two ditches, one running due east and the other due west. The existing surface water flow varies with the seasons and intensity of storm events. During dry seasons, the rainfall runoff flows into the cypress wetland and percolates into the ground. However, during wet seasons, water builds up in the cypress wetland and flows into the two ditches. In larger storm events, the project site is entirely under water, and sheet flows occur to the southwest. The proposed project should have a negligible impact on the existing surface water system since the total impervious area will only be approximately one acre, or 1.7 percent of the total project area of 60 acres.
The project consists of a radio tower and guy wires, a 3150 square foot control building, fill pad and parking area, guy wire anchor slabs, and approximately 1650 feet of lime rock road with an equalizer culvert to maintain existing flow. Three sets of six guy wires will extend from the 1249 foot high tower and connect to the ground at anchor slabs located near the edge of the project site. The entire project is located outside of the limits of the existing wetland, but one set of guy wires does cross the western edge of the
cypress wetland. Caloosa proposes to use the tower as a "community tower" which will be capable of supporting more than one transmitting antennae. In addition to Caloosa's antennae, the tower will be able to support up to five commercial radio stations and up to sixty two-way communication antennae. Caloosa has had contacts from several commercial radio stations and governmental agencies which have expressed interest in co-locating their antennae on Caloosa's tower.
After review of this application, District staff advised Caloosa, on November 23, 1987, that it was recommending approval of the application since it was felt that any impact from the project on wood storks would not result from the construction and operation of this project. At hearing, the District supported the issuance of this permit, but urged that the tower and guy wires are not a part of the surface water management system over which the District has any permitting jurisdiction. Audubon timely filed its request for a hearing on the District's intent to issue this permit, and at hearing opposed the issuance of this permit to Caloosa, urging that the tower and guy wires were an integral part of the surface water management system, and therefore subject to the District's permitting jurisdiction.
The wood stork and other wading birds are an important link in the biological and ecological chain. They are the main mechanism for removing certain species of fish from ponds, lakes and waters of the state. If there is no predation by wading birds, then an increase in the biomass of the water system would be expected, water quality would decrease, and fish kills would result. Ponds that receive biomass reduction by wading birds have a reduction in fish biomass of approximately 75%, with no loss in species, while ponds that do not receive wading bird predation lose almost all individual aquatic animals through reduced water quality resulting from retention of up to 94% of the biomass from dead fish. The reduction in biomass is in direct proportion to the number of birds feeding in a pond, and therefore a 5% reduction in birds will result in a 5% lessening of the biomass reduction. Water quality will be reduced by a lowering of oxygen levels in such waters due to the excessive retention of nutrient laden biomass.
During the nesting season, wood storks feed in various ponds and wetland areas that surround the rookery. Their primary feeding areas are within ten miles of the rookery. The proximity of these sites allow the birds to make several flights per day between the colony and the feeding site, and to do so with less energy expended than with feeding sites that are farther away.
Caloosa's project site is located between the rookery and a primary feeding area to the north that is within ten miles of the rookery. The proximity of this feeding area allows the birds to fly low, at tree top level, to the site, without the use of thermal updrafts that they use to attain altitudes of up to 5000 feet when traveling greater distances. Thus, if the tower is built, it would be likely that wood storks would fly in the direction of, and at the height of, the tower to reach this primary feeding area.
However, it was not established how many such birds actually feed in this nearby area, or how many fish are in these ponds and wetlands.
The wood stork colony at Corkscrew Swamp Sanctuary has been experiencing a decline in productivity from approximately 6000 nesting pairs in 1960 and 1966, there has been a steady decline in the number of nesting pairs in the colony, and in 1987, there were no nesting pairs in the colony. During 1988, 750 nesting pairs have been observed. The steady decline in the wood
stork colony population is the result of already existing developmental pressures and changes in drainage patterns which have adversely affected the birds' feeding habitats.
For nesting to be successful, two adult birds are required per nest during the nesting season, which usually occurs from November to March. This allows one adult bird to be away from the nest obtaining food while the other adult keeps the nest warm and safe from predators. If a nest is left unattended through the loss of one adult bird, it is likely that the entire nest will be lost since the fledglings are very vulnerable throughout the nesting season to predators and changes in temperature. There are usually two or three fledglings per nest. For this reason, the loss of five adult birds per year, for example, results in a total loss to the colony of between ten to fifteen fledglings.
This loss compounds each year, as birds lost one year are not available to reproduce in following years.
Generally, transmission towers can pose a hazard to birds due to the potential for collisions. Illuminating such towers at night does not decrease this danger since the birds are simply attracted to lights. Strobe lighting has also been tried, but it appears that birds ignore, or are not deterred, by strobes. In this case, Caloosa has agreed to accept conditions placed upon the approval of this project by the Lee County Board of Zoning and Adjustments on March 16, 1987, which include placement of aircraft warning balls on the guy wires and the tower itself, habitat improvement including the creation of a wetland and a wildlife through way, if necessary, and commencement of a monitoring system to identify any problems with wood stork mortality as soon as possible.
A very extensive study of bird kills and transmission towers was conducted over a thirty year period involving the WCTV tower in Tallahassee, Florida. The WCTV tower was found to kill 3.9 wading birds per year on average. Based in part upon this data, the U.S. Fish and Wildlife Service concluded that wood stork collisions with the tower will not result in significant mortality, and an "incidental take" of five wood storks per year should result. This is a level of mortality which is noteworthy, since any loss to an endangered species is significant, but is clearly below that which would cause jeopardy to the species. Although Audubon correctly pointed out that the conditions present in the WCTV study do not exactly match those present in this case, such as the fact that there are almost three times as many wading birds in the area of the Caloosa tower as were in the area of the WCTV tower, as well as the differences in the geographical relationship of the tower to nearby wading bird colonies and feeding areas, nevertheless, the WCTV study is relevant and should be considered by the District since it is the most exhaustive study of its kind ever conducted.
Caloosa presented evidence of a study it conducted over approximately a one month period in May and June, 1988, of a comparable existing radio tower, the WHEW tower, located near the subject property to the east. Although substantial wood stork and other wading bird activity was observed around the WHEW tower, there were no collisions of wood storks with this 1010 foot high tower. While not a scientific study in the strictest sense, and although it was not conducted for as extensive a period as the WCTV study, nevertheless, the District should consider the WHEW study conducted by Caloosa since it involves a comparable tower in close proximity to the subject property, and the person who conducted the study for Caloosa and who testified at hearing, Robert E. Gatton, appeared particularly credible.
The Federal Communications Commission has approved the location of Caloosa's tower.
I5. The Florida Game and Fresh Water Fish Commission has recommended that the proposed location for Caloosa's tower be changed to an alternate site which would present a less serious obstacle to the Corkscrew wood stork nesting colony and other wading birds. This recommendation is based on the policy that the mortality of even one wood stork is too much and may present a danger to the population of the wood stork rookery. It was not shown, however, that a basis in fact exists for concluding that the loss of five or fewer wood storks per year would present such a danger. The Commission's recommendation is also based upon a concern that transmission towers will proliferate in the area, and thereby further interfere with the flight paths of wood storks and other wading birds to their feeding locations. However, the fact that Caloosa is seeking to construct a "community tower" to be shared with several governmental agencies, as well as broadcasting stations, will actually serve to decrease this potential proliferation.
While there is a potential for wood storks or other wading birds in the area to be killed or injured by striking Caloosa's tower or the guy wires while in flight, the extent of this danger is speculative, but would not appear to exceed five wood storks per year. Under these circumstances, there would not be a significant threat to the population, or continued viability, of the Corkscrew rookery.
It has not been shown, by the evidence in this record, that any loss of wood storks and other wading birds caused by this project will result in fish kills through a significant reduction of predation and the resulting failure to remove accumulated biomass in ponds and waters in the area. It was not demonstrated that a fish kill will, or is even likely, to occur. While the loss of five wood storks would result in a certain amount of biomass not being removed from the area's wetlands, nothing in the record suggests that this amount will have an adverse impact on the state's water resources or will otherwise be significant. Therefore, any relationship between the tower proposed by Caloosa and impacts associated with biomass accumulation is purely speculative and de minimis.
Fish kills occur naturally as water levels in seasonal marshes and ponds lower in the dry season. The water quality impact of such kills is relatively short-lived, lasting up to two months or until the next wet season begins, at which time water quality parameters return to normal.
The evidence produced at hearing does not establish that the project and its surface water management system will have any significant or measurable effect on drainage of surface water runoff from the subject property, or on adjacent properties. The drainage system proposed by Caloosa will utilize the existing ditches and the natural cypress pond on the property. It was established that the post-construction effect of the project on drainage would be insignificant. There are, therefore, no drainage impacts associated with this project.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), Florida Statutes. The party seeking a permit has the burden of proving entitlement by a
preponderance of the evidence. Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Therefore, in this case, Caloosa bears the ultimate burden of proof.
Section 373.413(1), Florida Statutes, confers upon the District the authority to issue surface water management permits for the construction of "works" which will not be harmful to the water resources of the District. The terms "works" is defined by Section 373.403(5), Florida Statutes, to include all artificial structures placed in or across the waters of the state. By definition, a surface water management system includes "works" as defined in Section 373.403(5). Since the tower and guy wires which are an integral part of Caloosa's project will be placed across one end of the cypress wetland located on the subject property, Audubon argues that the entire project is a "works", which is subject to the permitting jurisdiction of the District. Caloosa urges, supported by the District, that in order for any artificial structure or collection of devices to constitute a surface water management system, it must control, impound, or obstruct surface waters. Rule 40E-4.021(5), Florida Administrative Code. Since the project, and particularly the tower and guy wires, do not control, impound or obstruct surface waters, they maintain these artificial structures do not constitute a surface water management system, and are therefore not subject to the District's permitting authority.
While it is well-settled that great deference should be given to an agency's interpretation of its own statute and rules, the plain meaning of the words used in these enactments cannot be ignored. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987,989 (Fla. 1985); Department of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1984); Kearse v. Department of Health and Rehabilitative Services, 474 So.2d 819 (Fla. 1st DCA 1985); Gadsden State Rank v. Lewis, 348 So.2d 343, 345 at n. 2 (Fla. 1st DCA 1977). The plain meaning of the words used by the District in Rule 40-4.021(5) is that the term being defined therein, surface water management system, includes "works" as defined in Section 373.403(5). The fact that Rule 40E-4.021(5) contains preceding language which includes within the definition devices which control, impound or obstruct surface waters, does not limit the specific statement in the rule whereby the term, surface water management system, is stated clearly and without reservation to include "works."
The project under review, including the tower and guy wires which are an integral part thereof, are therefore "works" within the statutory definition found at Section 373.403(5), because they are comprised of artificial structures placed, in part, across the waters in the state. As such, Caloosa's project is subject to the permitting jurisdiction of the District since it includes "works" and is, therefore, a surface water management system. This conclusion is consistent with, although not dependent upon, statements of public policy contained in statute, rule and judicial decision which recognize and establish that the District's responsibilities include the preservation of the State's natural resources, fish and wildlife, as well as insuring that permits which it grants will not result in adverse environmental impacts. Section 373.016(2)(e), Florida Statutes; Rule 40E-4.301(1), Florida Administrative Code; Challancin v. Florida Land and Water Adjudicatory Commission, 515 So.2d 1288 (Fla. 4th DCA 1988); Governor's Executive Order 88-25.
Having determined that Caloosa's project is subject to the District's permitting jurisdiction, the evidence produced at hearing has been considered against the permit conditions set forth in Rule 40E-4.301, Florida Administrative Code. The District supports the issuance of this permit, and therefore at hearing, Caloosa and the District initially presented a prima facie
case which was followed by Audubon's case in chief raising specific concerns about this project, to which Caloosa then offered rebuttal evidence. Florida Department of Transportation v. J.W.C. Co., Inc., supra at 789. It is clear from the record of this case that Caloosa has provided "reasonable assurances" that its surface water management system will meet the permitting criteria of the District.
It has been shown that the project provides adequate flood protection and drainage since there is no evidence that the project will in any way alter existing drainage on the subject property in any adverse manner. Although Audubon attempted to establish that the project will cause adverse water quality through a significant reduction of wading birds, and a resulting decrease in predation, Audubon did not establish the causal link between this project and significant wading bird destruction from collisions with the tower. It was not shown that there was any reasonable likelihood that the wood stork colony at Corkscrew Swamp Sanctuary would be reduced to any significant extent from collisions with the tower or guy wires. All indications were speculative, but in any event the conclusion drawn is that if five wood storks are lost per year through collisions, and this results in the annual loss of ten to fifteen fledglings, this would still not represent a significant threat to the continued viability of the rookery. It was not, however, established that five wood storks would, in fact, collide with the tower and guy wires per year. This project has not been shown to be inconsistent with public policy, nor to be harmful to the water resources of the District. No adverse environmental impacts will result, and there will not be any adverse impacts on surface and groundwater levels and flows. Therefore, reasonable assurances have been given that this project is consistent with the conditions for issuance of a surface water management permit by the District, which are set forth in Rule 40E-4.301.
Based upon the foregoing, it is recommended that the District enter a Final Order approving Caloosa's application for surface water management permit number 09147-B, subject to the conditions, agreed to by Caloosa, which were imposed by the Lee County Board of Zoning and Adjustment in its approval of this proposed development.
DONE AND ENTERED this 29th day of August, 1988, in Tallahassee, Leon County, Florida.
DONALD D. CONN
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 29th day of August, 1988.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5578
Rulings on Audubon's Proposed Findings of Fact:
1. Adopted in Findings of Fact 1, 3.
2-3. Adopted in Finding of Fact 4, but otherwise Rejected as a conclusion of law rather than a finding of fact.
4-5. Adopted in Finding of Fact 5, but otherwise Rejected as unnecessary, irrelevant and as a summation of testimony.
6. Adopted in Finding of Fact 2. 7-8. Adopted in Finding of Fact 7. 9-10 Adopted in Finding of Fact 8.
11. Adopted in Finding of Fact 11.
12-15. Adopted and Rejected, in part, in Finding of Fact 12.
Adopted in Findings of Fact 8, 10, but otherwise Rejected as irrelevant and unnecessary.
Adopted in Finding of Fact 9.
Adopted in Findings of Fact 10, 12, but otherwise Rejected as cumulative and as argument on the evidence.
Rejected in Finding of Fact 13, and otherwise as simply a summation of the testimony and argument on the evidence.
20-21. Adopted in Finding of Fact 6.
22-23. Rejected in Findings of Fact 15-17.
24. Adopted in Finding of Fact 15.
Rulings on Caloosa's Proposed Findings of Fact:
Adopted in Findings of Fact 1, 2.
Adopted in Finding of Fact 4.
Adopted in Finding of Fact 13.
Adopted in Finding of Fact 1.
Adopted In Finding of Fact 5.
Adopted in Finding of Fact 19.
Adopted in Finding of Fact 5, but otherwise Rejected as a conclusion of law and as simply a summation of testimony.
Adopted in Finding of Fact 16. 9-10. Adopted in Finding of Fact 12.
Adopted in Findings of Fact 12, 13.
Adopted in Finding of Fact 11.
Adopted in Findings of Fact 4, 15.
Adopted in Finding of Fact 6. 15-16. Adopted in Finding of Fact 17.
17. Adopted in Finding of Fact 18, but otherwise Rejected as irrelevant and as cumulative.
Rulings on the District's Proposed Findings of Fact: 1-2. Adopted in Finding-of Fact I.
3. Adopted in Finding of Fact 2. 4-5. Adopted in Finding of Fact 3.
Adopted in Finding of Fact 4.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 8.
Adopted in Findings of Fact 12, 14, 16.
Adopted in Finding of Fact 12.
11. Adopted in Finding of Fact | 13. |
12. Adopted in Finding of Fact | 16. |
13. Adopted in Finding of Fact | 15. |
14. Adopted in Finding of Fact | 11. |
15. Rejected as irrelevant. | |
16. Adopted in Finding of Fact | 11. |
17. Adopted in Finding of Fact | 6. |
18-19. Adopted in Finding of Fact | 5. |
COPIES FURNISHED:
Charles Lee
Senior Vice President Florida Audubon Society 1101 Audubon Way
Maitland, Florida 32751
Russell P. Schropp, Esquire Post Office Box 280
Fort Myers, Florida 33902
James K. Sturgis, Esquire Post Office Box 24680
West Palm Beach, Florida 33416
John R. Wodraska Executive Director
South Florida Water Management District Post Office Box 24680
West Palm Beach, Florida 33416
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA AUDUBON SOCIETY and NATIONAL AUDUBON SOCIETY,
Petitioners,
v. CASE NO. 87-5578
RUSSELL E. and MARILYN F. SCOTT, CALOOSA TELEVISION CORP., and SOUTH FLORIDA WATER MANAGEMENT DISTRICT,
Respondents.
/
FINAL ORDER
The Hearing Officer's Recommended order came to be heard before the Governing Board of the South Florida Water Management District (District) at its Regulatory meeting on October 6, 1988. Petitioners, Florida Audubon Society and National Audubon Society, were represented by Charles Lee; respondents Russell
E. and Marilyn F. Scott, and Caloosa Television Corporation were represented by Attorney Russell Schropp; and the District was represented by Attorney James Sturgis.
The Governing Board considered the Findings of Fact, Conclusions of Law, and Recommended Order of the Hearing Officer dated August 29, 1988; petitioners' Exceptions To Findings Of Fact, Conclusions Of Law, And Recommended Order filed with the District on September 12, 1988; the District's Exceptions To Recommended Order Regarding Jurisdiction filed on September 16, 1988; Caloosa Television Corporation's Exceptions To Recommended Order filed September 16, 1988; District's Response To Exceptions Filed By Petitioners filed on September 27, 1988 and District's Response To Exceptions Filed By Respondent, Caloosa Television Corporation filed September 28, 1988. Because exceptions to the Hearing Officer's Findings of Fact have been filed by the petitioners, the Governing Board members were furnished a complete transcript of the hearing of this matter, and each Governing Board member reviewed the transcript.
STATEMENT OF THE ISSUES
As stated by the Hearing Officer the issue in this case is whether the District should issue a surface water management permit to Russell E. and Marilyn F. Scott, and Caloosa Television Corporation for the construction and operation of a surface water management system to serve a television signal tower and control building in Southeast Lee County, Florida. There are no significant water resource impacts related to the management of surface water by the proposed project. The harm at issue in this case is the potential for wood storks and other wading to strike the tower and guy wires which are not structures related to management and storage of waters. The parties disagree as to whether the District has jurisdiction to consider the bird impacts related to collisions with the tower and guy wires, and if so, whether the tower and guy wires will have a significant adverse impact on the water resources of the state through a reduction of wood storks, an endangered species, and other wading birds which through feeding on fish remove biomass from such water, thereby maintaining water quality. In determining jurisdiction in this case, the parties disagree on the meaning of "works" and "surface water management system" as used in Chapter 373, F.S. and Rule 40E-4, F.A.C. The petitioners argue that since one set of guy wires will be placed across one end of the cypress wetland located on the subject property, the entire project including the guy wire and tower is a "works" and part of the surface water management system, which is subject to the permitting jurisdiction of the District. The District and respondent Caloosa Television Corporation contend that the tower and guy wires are not structures related to surface water management and are not "works" nor part of the surface water management system, and therefore, bird mortality, as a result of hitting the tower and guy wires, is not subject to the permitting jurisdiction of the District.
FINDINGS ON EXCEPTIONS
At the Governing Board meeting of October 6, 1988, the petitioners waived Findings of Fact exceptions 1 and 2 of Petitioners' Exceptions to Finding of Fact, Conclusions of Law, and Recommended Order. Therefore, Findings of Fact exceptions 1 and 2 are rejected. The petitioners' exceptions 1, 2, and 3 to Conclusions of Law of the Recommended Order are rejected as set forth in the District's Response To Exceptions Filed by Petitioners filed on September 27, 1988, and attached hereto as Exhibit B and made part of this Final Order.
The Governing Board accepts the exceptions filed by the District and the respondent, Caloosa Television Corporation, as set forth herein under Conclusions of Law.
FINDINGS OF FACT
The District adopts as part of its Final Order thy Hearing Officer's Findings of Fact as set forth in the Recommended Order, attached hereto as Exhibit A and made a part of this Final Order.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Section 120.57(1), F.S. The party seeking a permit has the burden of proving entitlement by a preponderance of the evidence. Florida Department of Transportation v. J.W.C., Co. Inc., 396 So.2d 778 (Fla. 1st DCA 1981). Therefore, in this case, Caloosa bears the ultimate burden of proof.
The District's authority to manage surface waters is governed by Part IV, Management and Storage of Surface Waters, Chapter 373, F.S. Subsection 373.413(1), F.S., states:
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 dam, impoundment, reservoir, appurtenant work, or works will not be harmful to the water resources of the District. The Department or the Governing Board may delineate areas within the District wherein permits may be required. (emphasis added).
The District has adopted rules and criteria contained in Chapter 40E-4, F.A.C., to implement Part IV, Chapter 373, F.S., relating to manage and storage of surface waters. In order to obtain a surface water management permit, the surface water management system is required to meet the conditions set forth in Rule 40E-4.301, F.A.C.
Surface water management system is defined in Rule 40E-4.021(5), F.A.C. as: the collection of devices improvement or
natural systems whereby surface waters are
controlled, impounded, or obstructed. The term includes dams, impoundments, reservoir,
appurtenant works and works as defined in subsection 373.403(1)-(5), F.S. (emphasis added)
There is no dispute that the tower and guy wires are not a dam, appurtenant work, impoundment, or a reservoir as defined by subsections 373.403(1)-(4), F.S. The only issue is whether the tower and guy wires are works as defined in section 373.403, F.S., and included in Rule 40E.021(5), F.A.C. Subsection 373.403(5), F.S., states:
"works" means all artificial structures, including, but not limited to, ditches, canals, conduits, channels, culverts, pipes, and other construction that connects to, and draws water from, drains water into, or is placed in or across the waters in the state.
The Hearing Officer concludes that the guy wires and tower are works since they are artificial structures and cross above the western edge of the on-site cypress wetland. The District disagrees based upon the doctrine of ejusdem generis.
Under the doctrine of ejusdem generis, where general words follow the numeration of specific things, the general words will be construed to refer to the things of the same general nature or class of those enumerated, unless an intention to the contrary is clearly shown Soverino v. State 356 So.2d 269 (Fla. 1978); Arnold v. Shumpert 217 So.2d (Fla. 1968); Mayo v. City of Sarasota, 503 So.2d 347 (Fla. 2nd DCA 1987). Application of this doctrine to subsection 373.403(S), F.S., results in "artificial structures" being limited to the class of surface water management structures enumerated in subsection 373.403(5), F.S. "Ditches, canals, conduits, channels, culverts, and pipes" denote a class of surface water management structures which controls surface waters. Guy wires and towers are not in this class of surface water management structures.
Furthermore, this interpretation of "works" would be consistent with the definitions contained in subsections 373.403(1) through (4), F.S., which also specify classes of surface water management related structures.
The District's interpretation of subsection 373.403(5), F.S., is consistent with the way "works" is incorporated in Rule 40E-4.021(S), F.A.C., and makes that rule meaningful in all its parts. Rule 40E-4.021(5), F.A.C., defines surface water management system as the collection of devices, improvement or natural systems whereby surface waters are controlled, impounded, or obstructed. Rule 40E-4.021(5), F.A.C., specifically includes "works" (as defined by subsection 373.403(5), F.S.) as part of the surface water management system. "Works" is a logical subset of the surface water management system, since it denotes a, class of structures related to surface water management.
The District staff charged with implementing Part IV, Management and Storage of Surface Waters, Chapter 373, F.S., has determined that the guy wire crossing above the wetland is not part of the surface water management system as defined in Rule 40E-4.021(5), F.A.C. Great deference should be given to an agency interpretation of its own statute and rules as long as that interpretation is consistent with legislative intent. Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So.2d 987 (Fla. 1985); Department of Environmental Regulation v Goldring, 477 So.2d 532 (Fla. 1984); Kearse v. Department of Health and Rehabilitative Services, 474 So.2d 819 (Fla. 1st DCA 1985).
The District's interpretation of subsection 373.403(5), F.S., and Rule 40E- 4.021(5), F.A.C., is consistent with the intent of Part IV which is to regulate the management and storage of surface waters to prevent harm to the water resources of the state including wildlife and fish. The District's interpretation of its statutes and rules does not prevent the District from vigorously regulating management and Storage of surface waters in order to preserve the state's natural resources including fish and wildlife in accordance with Chapter 373, F.S., and Governor's Executive Order 88-25. Furthermore, it is undisputed that in this case there is no harm related to the management and storage of surface water permitted by the subject application. However, the District's interpretation is not so broad as to give the District jurisdiction over the impacts of bird mortality resulting from collisions with guy wires which are non-surface water management structures and have no impact on the proposed surface water management system.
The Hearing Officer determined that the guy wires and tower were part of the surface water management system so that the District did have jurisdiction over the impacts of bird mortality resulting from collisions with the tower and guy wires. The Hearing Officer considered the evidence produced at the hearing on the bird mortality and determined that the applicant has provided reasonable assurances that the surface water management system (including the tower and guy wires) will meet the permitting criteria of the District set forth in Rule 40E- 4.301, F.A.C. The District adopts this conclusion of the Hearing Officer as set forth on pages 13 through 15 of the Recommended Order. Therefore, even if the District does have jurisdiction over the impacts resulting from bird collisions with the tower and guy wires, the applicant has given reasonable assurances that the project will not be harmful to the water resources of the District and meets the conditions for issuance set forth in Rule 40E-4.301, F.A.C.
ORDER
NOW THEREFORE, it is ORDERED that:
The Governing Board Orders the issuance of the subject surface water management permit, Application No. 09147-B, subject to the conditions, agreed to by Caloosa during the hearing, which were imposed by the Lee County Board of Zoning and Adjustments in its approval of this proposed development.
DONE and ORDERED this 6th day October, 1988 at a public meeting held at West Palm Beach, Florida.
SOUTH FLORIDA WATER MANAGEMENT DISTRICT
Chairman
ATTEST:
Secretary
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished to Charles Lee, Senior Vice President, Florida Audubon Society, 1101 Audubon Way, Maitland, Florida 32751, and Russell P. Schropp, Esquire, Henderson, Franklin, Starnes, & Holt, P.A., Post Office Box 280, Ft. Myers, Florida 33902-0280, by
U.S. Mail this 10th day of October, 1988.
JAMES K. STURGIS
FILED WITH THE CLERK OF THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT
10-10-88
DEPUTY CLERK
| Issue Date | Proceedings |
|---|---|
| Aug. 29, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Oct. 07, 1988 | Agency Final Order | |
| Aug. 29, 1988 | Recommended Order | SWM permit issued. Works defined. Tower and guy wire were works. Wire crossed wetland edge. SFWMD had authority over tower and impact on birds in area. |
