STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAN L. MOODY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-5778

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on February 10, 1993, at Bartow, Florida.

APPEARANCES

For Petitioner: Daniel D. Moody, Esquire

945 East Broadway

Fort Meade, Florida 33841

For Respondent: Nancy Leonard Harvey, Esquire

Nona R. Schaffner, Esquire Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

Whether Petitioner should be granted a permit to clear a 60 foot access corridor in which to control aquatic weeds adjacent to his property on Lake Buffum in Polk County, Florida.

PRELIMINARY STATEMENT

By Amended Petition for Formal Hearing, Dan L. Moody, Petitioner, by and through his attorney, requested a formal hearing to challenge limiting the granted permit to a 50 foot access corridor in which Petitioner can control aquatic plants adjacent to his property on Lake Buffum in Polk County, Florida. Petitioner is requesting 60 feet. The Petition was forwarded to the Division of Administrative Hearings by the Department of Natural Resources and these proceedings followed. At the hearing Petitioner testified in his own behalf, Respondent called two witnesses and 10 exhibits were admitted into evidence.

Proposed findings which were timely submitted by Respondent are accepted.

Petitioner did not timely submit proposed findings. Having considered all evidence presented, I submit the following:

FINDINGS OF FACT

1. Petitioner owns a single family residence on a lot (Lot 2) abutting Lake Buffum in Polk County, Florida. This property has a 60 foot frontage on the lake. Petitioner subsequently purchased and now owns an adjacent lot (Lot

   3) with a lake front frontage of approximately 73 feet.

   
   

2. Petitioner has placed a dock on the westerly edge of Lot 2 from which he suspends and lowers a power boat to the surface of Lake Buffum. Lot 3 is westerly of Lot 2.

   
   

3. Lake Buffum is a class III water body which classification provides for management for recreation; and propagation and maintenance of a healthy, well- balanced population of fish and wildlife.

   
   

4. Petitioner was cited for violation of Section 369.20, Florida Statutes, by spraying herbicide on aquatic plants without a permit. He subsequently applied for a permit to control aquatic plants in front of his property and was issued a permit allowing him to control an access corridor to his property 50 feet wide. Petitioner here seeks an access corridor 60 feet wide.

   
   

5. When Petitioner was issued his permit, the plat showing his dock in the center of the 50 foot access corridor was attached. Petitioner desired to clear aquatic plants on the western side of his dock as there is deeper water on that side of the dock to permit access to the dock with his boat. This is due to the angle of the shore line. The plat showing the dock in the middle of the 50 foot corridor obviously caused some confusion on the part of the Petitioner as the approach to his hoist on the dock is parallel to the shoreline. Accordingly, clear water to approach the dock from the west is what Petitioner needs to dock his boat.

   
   

6. The permit granted is for a 50 foot corridor without specifying where at right angles to the coast line the corridor should be placed. Accordingly, if desired, Petitioner could clear a corridor starting at the western side of his dock and extending 50 feet to the west.

   
   

7. In coordination with the Florida Game, Freshwater Fish and Wildlife Service, the Respondent has adopted a general policy of granting a permit to clear aquatic plants on waterfront property with a corridor of one-half width of the lot fronting the lake but limited to 50 feet for lots of 100 feet width and greater. Since Petitioner has approximately 133 feet of shoreline, he was granted a permit to control aquatic plants in a 50 foot corridor.

   
   

8. This general policy is not absolute, but varies with the quantity of aquatic plants on a particular lake and whether the permit is desired for the use of the general public, such as a public boat ramp provided by a county or municipality.

   
   

9. The amount of aquatic plants most beneficial to the propagation of fish and wildlife on lakes is between 40% and 70% coverage of the lakes. On the lakes with more than 70% coverage, Respondent may grant a 100 foot corridor in which the upland property owner is issued a permit to control aquatic plants.

   
   

10. Lake Buffum is a sparsely vegetated lake with a coverage varying between 1.8% and 4%. Although the property around the lake is sparsely developed, an extra 10 feet of aquatic plant control would have some adverse effect in this lake which is far below the average coverage. More importantly,

    however, is the cumulative impact of granting Petitioner a 60 foot corridor which would require the granting of similar corridors to all other applicants on Lake Buffum.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, these proceedings.

12. Section 369.20(7), Florida Statutes, provides in pertinent part: No person or public agency shall control,

    eradicate, remove, or otherwise alter any

    aquatic weeds or plants in waters of this state unless a permit for such activity has been issued by the department, or unless the activity is in waters expressly exempted by department rule.

    
    

13. Rule 16C-20.002(4), Florida Administrative Code, provides in pertinent part:

    
    

    (b) The Executive Director shall grant, grant with conditions, or deny a permit application [for aquatic plant control] under the following conditions:

    1. The Department of Environmental Regulation or the Game and Fresh Water Fish Commission recommends denial, modifications, or conditions to a permit.

    
    

14. In Exhibit 6 the Florida Game and Fresh Water Fish Commission recommended that Petitioner's application be modified to allow 50 feet [of aquatic plants] to remain cleared. Pursuant to Rule 16C-20.002(4)(b) above cited, Respondent is required to comply with the Florida Game and Fresh Water Fish Commission recommendations.

    
    

15. From the foregoing it is concluded that Petitioner has failed to prove that he is entitled to a permit to clear more than a 50 foot corridor of aquatic plants in front of his property on Lake Buffum, in Polk County, Florida.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dan L. Moody's petition to be granted a permit to clear a 60 foot corridor of aquatic plants below the high water line at his property on Lake Buffum be denied.

DONE AND ENTERED this 12th day of March, 1993, in Tallahassee, Leon County, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1993.

COPIES FURNISHED:

Dan D. Moody, Esquire 945 East Broadway

Fort Meade, Florida 33841

Nancy L. Harvey, Esquire Nona Schaffner, Esquire 3900 Commonwealth Boulevard

MS #35

Tallahassee, Florida 32399-3000

Donald Duden, Acting Executive Director Department of Natural Resources

3900 Commonwealth Boulevard

MS #10

Tallahassee, Florida 32399-3000

Kenneth Plante, General Counsel Department of Natural Resources 3900 Commonwealth Boulevard

MS #10

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this recommended order. Any exceptions to this recommended order should be filed with the agency that will issue the final order in this case.

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AGENCY FINAL ORDER

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

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

DAN L. MOODY,

Petitioner,

vs. DOAH CASE NO 92-5778

DNR CASE NO. 91-0119-RM

DEPARTMENT OF ENVIRONMENTAL PROTECTION, f/k/a DEPARTMENT OF NATURAL RESOURCES,

Respondent

/

FINAL ORDER

This cause came before the Secretary of the Department of Environmental Protection ("Department").

The Hearing Officer assigned by the Division of Administrative Hearings, K.

1. Ayers, served the Recommended Order on the Executive Director of the Department on March 16, 1993, a copy of which is attached as Exhibit A. Pursuant to Rule 16-5.001, Florida Administrative Code, each party was given twenty-five (25) days from the date of service of the Recommended Order to submit written exceptions thereto, including legal memoranda and proposed substituted orders. Respondent, Department of Environmental Protection 1/ , timely filed their exceptions to the Recommended Order. No exceptions were filed by the Petitioner.

   
   

   Having considered the complete record in this matter, and being otherwise fully advised in the premises, the Department makes the following findings and conclusions:

   
   

   RULING ON EXCEPTIONS

   
   

   Respondent took exception [see Exhibit B] to the Hearing Officer's conclusion of law contained in paragraph 14 of the Recommend Order.

   
   

   Respondent states that the conclusion of law in paragraph 14 incorrectly asserts that the Department "is required to comply with the Florida Game and Fresh Water Fish Commission recommendations." They argue that the Recommended Order, at paragraph 14, misinterprets the language of Rule 16C-20.002(4)(b)(1), Florida Administrative Code (F.A.C.).

   
   

   Rule 16C-20.002(4), which provides that under various conditions, different persons shall grant, grant with conditions or deny permit applications, must be read in its entirety to determine the correct interpretation. The regional

   biologist is required to grant or grant with conditions all routine permits of a non-controversial nature that are not addressed in Rule 16C- 20.002(4)(a) and (b)

   
   

   1. Final agency action on permit applications.

      
      

      1. The Governor and Cabinet shall grant, grant with conditions, or deny the permit applications subsequent to proceedings pursuant to Section 120.57, Florida Statutes.

         
         

      2. The Executive Director shall grant, grant with conditions, or deny permit applications under the following conditions.

1. The Department of Environmental Regulation or the Game and Fresh Water Fish Commission recommends denial, modifications, or conditions to a permit.

   
   

2. The application is a work plan which is part of a contractual arrangement between the Department and an applicant, as set forth in paragraph 16C-20.0025(1)(a), of this chapter.

   
   

3. The regional biologist recommends denial or the inclusion of permit conditions not satisfactory to the applicant.

   
   

4. The application is for the issuance of a permit, permit renewal, or permit amendment where the permittee has been penalized under the law during the previous two years, for violation of a permit, permit conditions, this chapter, or Florida Statutes, relating to aquatic plant control activities.

Nothing in the rule provides that the Department must deny or condition a permit based solely on the recommendations of the Game and Fresh Water Fish Commission. Rather the rule simply designates who within the Department is authorized to make the final decision on a permit when those recommendations are received.

Section 120.57(1)(b)10 of the Administrative Procedures Act allows the Department to reject or modify conclusions of law. The Department rejects the Hearing Officer's conclusion of law in paragraph 14 and adopts the Respondent's interpretation of the rule.

FINDINGS OF FACT

The findings of fact set fourth in the Recommended Order are adopted and incorporated herein by reference.

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction of the subject matter and parties to this, proceeding. Section 120.57(1), Florida Statutes.

Section 369.20(7), Florida Statutes, provides in pertinent part:

No person or public agency shall control, eradicate, remove, or otherwise alter any aquatic weeds or plants in waters of this state unless a permit for such activity has been issued by the department, or unless the activity is in waters expressly exempted by department rule.

Rule 16C-20.002 (4), Florida Administrative Code, provides in pertinent part:

(b) The Executive Director shall grant, grant with conditions, or deny a permit application [for aquatic plant control] under the following conditions:

1. The Department or Environmental Regulation or the Game and Fresh Water Fish Commission recommends denial, modifications, or conditions to permit.

In Exhibit 6 the Florida Game and Fresh Water Fish Commission recommended that Petitioner's application be modified to allow 50 feet of aquatic plants to remain cleared. The Department granted a permit to control aquatic plants in a

50 foot corridor.

From the foregoing it is concluded that Petitioner has failed to prove that he is entitled to a permit to clear more than a 50 foot corridor of aquatic plants in front of his property on Lake Buffum, in Polk County, Florida.

ORDER

Based on the foregoing findings of fact and conclusions of law, it is ORDERED as follows:

Dan L. Moody's petition requesting to clear a 60 foot corridor of aquatic plants adjacent to his property on Lake Buffum is DENIED.

DONE AND ORDERED this 31st day of August, 1992, in Tallahassee, Florida.

Filed this 31st day of August, 1993

Agency Clerk VIRGINIA B. WETHERELL Secretary of the Department Environmental Protection

ENDNOTE

1/ Pursuant to Chapter 93-213, Laws of Florida, the Departments of Natural Resources and Environmental Regulation were merged to create the Department of Environmental Protection. Pursuant to that Chapter Law, the responsibilities of the former agencies are taken over by the newly-created agency.

COPIES FURNISHED:

Daniel D. Moody, Esquire 945 East Broadway

Fort Meade, Florida 33841

Kenneth J. Plante, General Counsel Department of Environmental Protection Office of the General Counsel

2600 Elair Stone Road Mail Station 35

Tallahassee, Florida 32399-2400

Nona R. Schaffner, Esquire Assistant General Counsel

Department of Environmental Protection Office of the General Counsel

2600 Blair Stone Road Mail Station #35

Tallahassee, Florida 32399-2400

K. N. Ayers, Hearing Officer Division of Administrative Hearings The DeSoto Bldg.

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party to this proceeding has the right to request review of this order by the Governor and Cabinet, sitting as the Land and Water Adjudicatory commission, in accordance with section 3, chapter 93-213, Laws of florida. To initiate such a review, your request must be filed within twenty (20) days of the date of this order with any member of the Land and Water Adjudicatory Commission at the Carlton Building, Room 213, Tallahassee, Florida 32301-8047. A copy of the request must also be served on both the Department of Environmental Protection, Agency Clerk, 2600 Blair Stone Road, Mail Station 35, Tallahassee, Florida 32399, and on any person named in this order, within 20 days from the date of this order if the request for review is to be effective.

Docket for Case No: 92-005778

Orders for Case No: 92-005778