STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRUCE LAHEY, )

)

Petitioner, )

)

vs. ) Case No. 03-0333

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT and ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondents. )

______________________________)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on March 27, 2003, in Bartow, Florida.

APPEARANCES

For Petitioner: Bruce Lahey, pro se

5280 Waterwood Drive

Bartow, Florida 33830-9766

For Respondent: Martha A. Moore, Esquire (District) Southwest Florida Water Management

District

2379 Broad Street

Brooksville, Florida 34604-6899

For Respondent: Doreen Jane Irwin, Esquire (Department) Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

STATEMENT OF THE ISSUE

The issue is whether the Southwest Florida Water Management District's (District's) proposed construction of a temporary floating weed barrier across the mouth of the canal exiting to the southwest side of Lake Hancock in Polk County, Florida, is exempt from regulatory review under Section 373.406(6), Florida Statutes.

PRELIMINARY STATEMENT

This matter began on September 27, 2002, when Respondent, Department of Environmental Protection (Department), advised the District that its proposed construction of a temporary floating weed barrier across the mouth of a canal exiting from Lake Hancock (Lake) had only minimal or insignificant adverse impacts on water resources and therefore the project was exempt from regulatory review; that authorization to use

state-owned submerged lands for the construction of the project was granted; and that the project complied with the State Programmatic General Permit (SPGP) program.

On October 28, 2002, Petitioner, Bruce Lahey, who resides near, and fishes and boats in, the Lake, filed with the Department a request for an extension of time to file a petition challenging the proposed agency action. This request was granted, and Petitioner filed an unsigned Petition for Administrative Hearing on December 2, 2002. After a Motion to

Dismiss Without Prejudice was filed by the District due to a lack of a signature on the paper, on December 31, 2002, Petitioner filed a signed pleading. On January 29, 2003, the matter was forwarded by the Department to the Division of Administrative Hearings with a request that an Administrative Law Judge be assigned to conduct a hearing.

By Notice of Hearing dated February 13, 2003, a final hearing was scheduled on March 27, 2003, in Bartow, Florida. At the final hearing, Petitioner testified on his own behalf and offered Petitioner's Exhibits 1-4, which were received in evidence. The District presented the testimony of Dale Ravencraft, a structure operations manager and accepted as an expert; Brian V. Nelson, an aquatic plant management manager and accepted as an expert; and Matthew V. Phillips, a regional biologist and accepted as an expert. Also, it offered District Exhibits 1-10, which were received in evidence. The Department presented the testimony of Robert Stetler, an environmental resources administrator and accepted as an expert, and offered Department Exhibit 1, which was received in evidence. Finally, the undersigned took official recognition of Chapter 373, Florida Statutes.

The Transcript of the hearing (two volumes) was filed on

April 9, 2003. Proposed Findings of Fact and Conclusions of Law were filed by Petitioner and jointly by Respondents on

April 21 and 24, 2003, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. This proceeding involves a request by the District for authorization to construct a temporary floating weed barrier across the mouth of the canal exiting the southwest side of the Lake in Polk County, Florida (County). After reviewing the request, and based on its determination that the project would "have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the State," on September 27, 2002, the Department concluded that the project qualified for an exemption from regulatory review under Section 373.406(6), Florida Statutes. The Department also authorized the District to use state-owned submerged lands, if applicable, for the construction of the project, and it found that the project was in compliance with the SPGP program and thus required no further permitting from the United States Army Corps of Engineers (Corps of Engineers). Even if the Department had not considered the project to be exempt, it concluded that it had sufficient information and

      assurances from the District to grant a Noticed General Environmental Resource Permit (ERP) authorizing the requested activity.

   2. On December 2, 2002, Petitioner, Bruce Lahey, who has resided and owned property on the southwest side of the Lake for 15 years and regularly uses the Lake for fishing and recreational purposes, filed a Petition for Administrative Hearing (Petition) challenging the proposed agency action. In his Petition, as later clarified and narrowed in the parties' Joint Pre-Hearing Stipulation, Mr. Lahey contends that a weed barrier is no longer necessary since there has not been a weed problem in the Lake since late 2002; that the placement of a weed barrier will make access to and from the Lake more difficult and create a safety hazard; and that in the event a problem arises again, the more desirable options for removing the weeds are "a 'cookie-cutter,' mechanical harvester, or the spraying of [the] tussocks," rather than erecting a barrier. Finally, Mr. Lahey contends that as a matter of law, Section 369.20, Florida Statutes, bars the construction of a barrier. He has not challenged the Department's authorization for the District to use state-owned submerged lands or its determination that the project complies with the SPGP program, and therefore those aspects of the proposed agency action are

      not in issue. Respondents do not dispute that Mr. Lahey has standing to bring this action.

2. The Lake and Control Structure

   
   

   1. The Lake is an approximately 4,500-acre Class III waterbody located east of Highway 98 and Highland City, southeast of Lakeland, and just northeast of the City of Bartow (Bartow). It receives drainage from a significant portion of the County, including three streams and runoff from a surrounding 131-square mile watershed. Waters discharge from the Lake to Saddle Creek (the canal), which exits at the southwest end of the Lake and runs in a southerly direction for around a mile and a half until it merges with the Peace Creek, where the two then become the Peace River. At the confluence of the canal and Peace Creek, the waters flow through a broad, flat floodplain. Water moves slowly through this area, which can affect the ability of the Lake to discharge, especially during flood conditions. Like the Lake and canal, the Peace Creek also has a significant contributing basin.

   2. The canal contains a District-owned and operated

      
      

      water control structure known as Water Control Structure P-11 (the control structure) consisting of two twenty-foot radial arm gates that are raised when necessary to manage the water levels on the Lake and prevent the flooding of lakefront

      property. The control structure is approximately 3,000 feet or so south of the Lake and is the only control structure regulating water levels for the Lake. The gates are designed to discharge at a flow level of 1,100 cubic feet per second (cfs). The invert elevation of the control structure is 91.7 feet and the crest elevation is 98.7 feet. Flows from the Lake will exceed 1,100 cfs when the water levels are higher than the crest elevation of the structure. At this point, water flows over the structure’s weirs and flood control is no longer provided.

   3. The maximum desirable water elevation level for the Lake is 98.5 feet above mean sea level (msl). Typically, the District begins to operate, or open, the control structure when the Lake's water elevation reaches 98.25 feet msl. A water level of 99.0 feet msl is considered minimum flood level (or high guidance level). The low management water elevation (low guidance level) is 96.0 feet msl. These established water levels have been maintained at the Lake since approximately 1981.

   4. The District seeks to hold the water level of the Lake close to the maximum desirable level, and typically tries to hold the water level at 98.25 feet msl, which is slightly below the maximum desirable level of 98.5 feet msl, to allow storage of water and some response time.

   5. The control structure is intended primarily to be a water conservation structure that regulates the Lake's water levels to benefit the water resources, to include the Lake and the Peace River. In managing the Lake's levels, the District balances conservation of the water resource and public safety/flooding concerns.

   6. The Lake's water level elevations are monitored through the District’s Supervisory Control and Data Acquisition System (SCADA), which measures the water level and transmits hourly data to the District offices via satellite. SCADA monitors are located immediately upstream and downstream of the control structure. Since the tussock blockage events in the summer and fall of 2002, described more fully below, the District has installed an additional SCADA monitor on the north end of the Lake so that water levels in the Lake and canal can be compared.

   7. The Lake does not have direct public access or a public boat ramp and is not easily accessible. In addition, in the canal, there is only one unimproved location upstream from the control structure where boats can be placed in the water and gain access to the Lake.

   8. That portion of the canal which lies between the Lake and the control structure has not always been open to boat access. In the 1980’s, a floating weed barrier extended

      across the canal approximately 1,000 feet upstream from the current control structure, which blocked the canal and boat access. This floating weed barrier was installed primarily to address problems with water hyacinths that would float down the canal and interfere with the control structure. This floating barrier gave way sometime in the 1990’s. An earlier control structure also used to exist in this area, which blocked canal access.

   9. Navigation of the canal is limited due to the existence of the control structure and a number of other blockages further downstream, including a low bridge where old Highway 17 crosses the canal. Thus, boats coming from the Lake cannot navigate down the canal any further than the control structure, or slightly more than one-half mile, without taking the boat out of the water.

   10. Between 1999 and 2001, the District experienced one of the most severe droughts on record. During this time, the Lake went dry except for some isolated pools of water. Because of these conditions, a significant amount of wetland or aquatic vegetation began to grow on the exposed bottom of the Lake. The Lake historically did not support much plant growth, due to its eutrophic condition, poor water quality, and gelatinous mucky lake bottom. The types of vegetation

       currently existing in the Lake include cattails, pickerelweed, duck potato, and primrose willow.

   11. Following the return of summer rains and El Nino conditions in 2002, the Lake rebounded to within normal water levels. Because of the return of water in the Lake, the buoyant pressure of the water combined with the flaccid nature of the mucky lake bottom caused significant portions of vegetation to become uprooted, which formed an extensive amount of tussocks.

   12. Tussocks are floating mats of uprooted aquatic vegetation. They contain plant and organic material accumulated around the plant roots, can range from a few feet across to one hundred feet across or larger, and can reach a height of more than four feet. Once tussocks form, they move about the Lake by wind and water currents.

   13. The amount of vegetation currently existing in the Lake exceeds historic levels. At the present time, the District estimates that approximately 2,000 acres of the Lake are covered with tussocks, and that due to the flaccid nature of the lake bottom, the tussocks are susceptible to becoming uprooted through fluctuating water levels, wind, and wave action. Therefore, there is a strong potential that much of the currently rooted vegetation will form tussocks.

   14. Tussocks first impacted the District’s ability to operate the control structure in July 2002. During this event, the canal became partially filled with tussocks. Because the blockage occurred during the rainy and hurricane seasons, the District undertook efforts to clear the canal of tussocks. District staff used mechanical equipment commonly called a cookie cutter to break up the tussocks and flush them downstream through the control structure. During this tussock event, the Lake's water levels rose briefly above the maximum desirable level of 98.5 feet msl and then fell back to within normal elevations.

   1. In late August 2002, approximately three weeks after the first tussock blockage event, a number of homeowners on the Lake, including Petitioner's wife, contacted District staff to advise that the water level of the Lake was rising and flooding their yards. A rise in water levels did not register on the District’s water level monitoring SCADA system. Visual observation of the Lake did reveal, however, that there was a significant difference between the water levels being experienced on the Lake and the water levels reported at the control structure via the SCADA system.

   2. During this tussock event, masses of tussocks had completely filled the 3,000-foot length of the canal all the way to the control structure and were jamming against the

      control structure gates. Tussocks had also formed a vegetation dam approximately 900 to 1,400 feet north of the control structure where they compacted and became lodged on the bottom of the canal, significantly impeding the flow of water. During this event, flows out of the Lake were significantly diminished to a fraction of what they should have been.

   3. The tussock dam caused the Lake's level to rise above the minimum flood elevation of 99.0 feet and flood Petitioner's yard. There was an approximately one to one and one-half foot difference in the water levels in the Lake and in the canal. In response to this disparity, the District installed a third water level elevation monitor at the northern end of the Lake, so that it can monitor any differences in water elevations between the Lake and the canal and be alerted in the event that a blockage occurs in the canal.

   4. To eliminate the tussock blockage and restore flow through the control structure, the District had to employ mechanical means to break up and remove the tussocks. At the control structure, a trac-hoe was initially used in an attempt to force tussocks through the control structure, as tussocks would not flow through the structure unassisted.

   5. A cookie cutter was also employed, but it became sucked into the control structure and was damaged and had to be removed with a crane and repaired. The cookie cutter proved ineffectual in addressing the tussock blockage problem.

   6. If the canal were to again become clogged with tussocks, any resulting blockage of flow from the Lake would cause water levels to rise, which would endanger public safety and welfare.

   7. Prior to the tussock blockages experienced in the summer and fall of 2002, problems with tussocks had never been experienced at the Lake. The magnitude of the tussock formation on the Lake is unique and has not been experienced elsewhere in the District.

   8. In 2002, the Department expended over $46,000.00 in contracting for mechanical equipment and for spraying herbicide on tussocks to respond to the tussock buildup on the Lake.

   9. Since their formation after the summer of 2002, tussocks have blocked Petitioner's access to his dock on several occasions, thereby preventing him from being able to take his boat out into the Lake or to return to the dock once out on the Lake. The potential for similar blockages to occur remains, regardless of whether a floating weed barrier is erected as proposed.

   10. The direction of the winds is a major factor in determining where and how many tussocks will stack up in front of anyone’s property along the Lake. Access to the canal could become blocked with tussocks at any time, depending upon how the wind blows.

   11. Breaking up tussock blockages and flushing tussocks through the control structure does not eliminate water resource problems for the District. Tussocks that are pushed through the control structure cause downstream problems requiring the District to expend resources to push the tussocks through and under low downstream bridges crossing the canal, as well as break up tussock blockages that form in downstream waters.

   12. In January 2003, tussocks again accumulated at the control structure in such volume as to require assistance in flushing through the control structure. As a result of the large volume of tussocks pushed through the control structure, a tussock blockage occurred at a downstream bridge crossing, for which the District had to use mechanical equipment to restore flow.

   13. During March 2003, tussocks flushed through the control structure created a jam downstream on the Peace River. The tussocks were jammed up in a bend in the river and were blocking navigational access to the river.

   14. An El Nino weather cycle is currently being experienced. Water levels, including the Lake's water level, are already at their maximum and the ground is saturated. Localized flooding events have occurred. A very active summer rainy season is anticipated, which will mean significant flood control operations for the District. As the summer season approaches, the District must keep the control structure open and operational, which requires that the canal be kept open and flowing.

   15. A floating weed barrier at the entrance to the canal would keep tussocks from clogging the canal and prevent problems affecting operation of the control structure, downstream tussock blockages, and possible flooding.

3. The Project

   
   

   1. To address the problem of tussocks entering the canal and causing blockages or possible flooding, on September 11, 2002, the District applied to the Department for a Noticed General ERP under Rule 62-341.475(1)(a), Florida Administrative Code, to authorize the construction of a floating weed barrier at the entrance to the canal. On September 27, 2002, the Department issued its notice of intent to authorize the requested activity.

   2. The proposed barrier will be constructed in two sections arranged at approximately 90-degree angles to each

      other, with a twenty-foot opening between the sections to allow boat access to the canal. A schematic drawing of the barriers is found in District Exhibit 5 received in evidence. As originally proposed, the barrier would consist of a total of sixteen nine-inch diameter pilings driven twenty-one feet apart, with twenty-foot sections of floating foam-filled polyvinyl chloride pipe (pvc) connected to the pilings.

      Pilings will be marked with reflective tape and five of the pilings will have three-foot diamond-shaped reflective danger signs reading "DANGER PILE/FLOAT BARRIER" placed on their upstream and downstream sides. The pilings are twenty-five feet in length and will extend above the Lake's water level approximately twelve to fourteen feet.

   3. Since the District's submittal of the application and the Department's authorization notice, the District has located commercially manufactured floating booms, called "Tuffbooms," that, if authorized, will be installed in lieu of the foam-filled pvc pipes. Use of these booms reduces the number of pilings needed from sixteen to eight, and their bright orange color is more visible than pvc piping. All other aspects of the proposed activity remain the same.

   4. The change in material to be used in the construction of the proposed floating barrier does not present any water quality issues, nor does it affect the Department's

      determination that the proposed activity will have minimal or insignificant adverse impacts on the water resources.

   5. The staggered layout of the proposed floating weed barrier is intended to keep tussocks in the Lake, where they can remain subject to the winds, while providing boat access to the canal in such a manner that is more difficult for tussocks to enter the canal.

4. The Department's Exemption Process

   
   

   1. The Department's Tampa District Office routinely approves around 800 projects each year under various exemptions authorized by statute or rule. One type of exemption is found in Section 373.406(6), Florida Statutes, referred to as the de minimus exemption, which allows the Department to exempt from regulation those activities that are determined will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District. The Department is authorized to make this determination on a case-by-case basis.

   2. In determining whether an activity qualifies for a de minimus exemption from permitting, the Department looks for parallels to other specific statutory or rule exemptions and analyzes the proposed activity similarly in terms of its scope, construction methods, potential to create water quality impacts or impediments to navigation, and other factors,

      because these recognized exemptions are also deemed to have minimal or insignificant impacts to the water resources.

   3. There is no specific exemption for a floating weed barrier as proposed by the District, but the Department considers this type of project to be similar in scope and potential impacts to other specific activities that have been determined to have minimal or insignificant adverse impacts to the water resources, such as docks and other piling-supported structures, navigational aids, and buoy systems.

   4. In assessing whether a project is appropriate for the de minimus exemption, the Department also looks to the criteria for Noticed General ERPs for guidance in determining whether a proposed project will have minimal or insignificant adverse individual or cumulative impacts upon the water resources.

   5. Under Section 373.406(5), Florida Statutes, the Department may by rule establish general permits for activities that have, either singularly or cumulatively, minimal environmental impact. Chapter 62-341, Florida Administrative Code, sets forth the Noticed General ERPs established by the Department.

   6. Department Rule 62-341.475(1)(a), Florida Administrative Code (as does District Rule 40D-400.475(1)(a), Florida Administrative Code), allows noticed general permits

      for piling supported structures of less than 1,000 square feet over wetlands or other surface waters, which are not designated Outstanding Florida Waters. To qualify for a noticed general permit for such activity, an applicant must provide reasonable assurance that the proposed structure:

      1. Does not significantly impede navigation and does not entail the construction of a structure for the launching or mooring of a boat when navigational access to the structure does not currently exist;

         
         

      2. Does not cause a violation of state water quality standards;

         
         

      3. Does not impede the conveyance of a stream, river or other watercourse in a manner that would increase off-site flooding;

         
         

      4. Does not adversely impact aquatic or wetland dependent listed species;

         
         

      5. Does not cause the drainage of wetlands; and

         
         

      6. Is not located in, on or over a coral community, macro-marine algae or submerged grassbed community.

         
         

5. Will the Project Impact Water Resources?

   
   

   1. The District’s proposed floating weed barrier will involve less than 7.1 square feet of impact to the water resources, which is significantly less impact in square footage to the water resources than is allowed by Rule 62-

      341.475(1)(a), Florida Administrative Code, or occurs with other specified exempt projects.

   2. Best management practices will be used in the erection of the pilings and in the construction of the barriers. Pilings will be jetted into the lake bottom without need for any dredging or lake bottom removal.

   3. Installation of a floating weed barrier will not result in any significant detriment to existing conditions in the Lake or the canal.

   4. Installation of the proposed floating weed barrier will benefit the public interest and the water resources by allowing unimpeded operation of the control structure without risk of tussocks causing blockages and flooding.

   5. Installation of the proposed floating weed barrier will not have significant adverse impacts on fishing, boating, or recreational use of the Lake or canal. A blockage of the canal entrance by tussocks, or a tussock jam anywhere on the Lake, could occur under present conditions, and similar blockages have already occurred. The potential for tussocks to block the opening between the sections of the floating weed barrier is considered remote and of temporary duration, due to the potential for shifting winds.

   6. The District’s proposed floating weed barrier is a reasonable means of addressing the continuing potential for tussocks to interfere with operation of the control structure.

   7. Use of mechanical equipment such as a cookie cutter or harvester would not be an effective or economical means of addressing tussock blockages in the canal or preventing their occurrence and possible interference with operation of the control structure.

   8. Pushing tussocks through the control structure would not be an effective means of addressing the potential for tussocks to cause blockages and possible flooding. Merely pushing the material through the control structure moves the potential blockage problem downstream and does not alleviate the potential for tussocks to cause adverse impacts to the water resources of the District.

   9. Spraying tussocks with herbicides would not be an effective means of addressing tussock blockages due to the fact that, once treated, tussocks can take weeks to die and fall to the lake bottom. Floating tussocks are and will continue to be treated with herbicide sprays when found in the Lake to reduce the amount of tussocks. However, once tussocks enter the canal, spraying serves little benefit in preventing tussocks from causing blockages or other problems.

   10. Tussocks originate in the Lake and not in the canal.

       
       

       Tussocks in the Lake have had and likely will continue to have an impact on boating and recreational use of the Lake and canal, as evidenced by tussock blockages to Petitioner's dock. By confining the tussocks to the Lake, the potential for tussocks to impact boating and recreational use of the Lake will remain the same as current conditions, but the potential for tussocks to affect operation of the control structure and contribute to Lake flooding will be eliminated.

   11. Petitioner contends that the proposed floating weed barrier will impede navigation, either by itself or as a result of tussocks piling up in front of the barrier. The proposed barrier will be marked and visible through reflective tape and signage. The barrier does not create a navigational hazard and is not a significant impediment to access to the canal. Constructed in two sections, the barrier provides an opening that allows boat access to the canal. As noted above, the likelihood of tussocks piling up at the barrier and blocking the opening between the barrier sections is considered remote and temporary.

   12. Based upon the information provided by the District, the proposed floating weed barrier will not significantly impede navigation; will not cause a violation of state water quality standards; will not impede the conveyance of a stream,

       river, or other water course in a manner that would increase off-site flooding; will not adversely impact aquatic or wetland dependent listed species; and will not cause the drainage of wetlands.

   13. There is no evidence that the proposed activity is located in, on, or over a coral community, macro-marine algae, or submerged grassbed community or that it entails the construction of a structure for the launching or mooring of a boat for which navigational access does not currently exist.

   14. The proposed activity would have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District.

   15. As an activity that has minimal or insignificant adverse impacts on the water resources of the District, either individually or cumulatively, the District’s project qualifies for an exemption pursuant to Section 373.406(6), Florida Statutes, as well as a Noticed General ERP under Rule 62- 341.475(1)(a), Florida Administrative Code.

   16. The Department's exemption determination authorized the District’s floating weed barrier for one year, presumably so that the effectiveness of the barriers can be evaluated during that period of time. If they are effective, an extension or renewal of the authorization will be sought. If the tussocks problem becomes less acute, or the barriers do

       not achieve the desired purpose, they will be taken down. In contrast, Noticed General ERPs authorize a particular activity for five years.

6. Other Contentions by Petitioner

1. Petitioner has also contended that the proposed activity may violate a condition of the District's Corps of Engineers general permit by interfering with general navigation. As found earlier, however, the more credible evidence indicates otherwise. Moreover, it is presumed that this issue was considered by the Corps of Engineers prior to its approval of the project. In any event, that matter should be raised with the Corps of Engineers, and not with the Department.

2. Finally, Mr. Lahey contends that since at least late 2002, the Lake has been free of a tussocks problem and therefore barriers are no longer needed. As noted above, however, blockages have occurred at the control structure and in the Peace River as recently as January and March 2003, and such blockages were the direct result of tussocks which originated in the Lake. Given the likelihood of a very active summer rainy season, it is essential that the canal be kept open so that the District can properly manage and control the water resources.

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2001).

4. As the party seeking to have its project exempted from regulatory review, the District carries the burden of proving by a preponderance of the evidence that the project qualifies for the statutory exemption. See, e.g., Fla. Dept. of Trans. v. J.W.C. Co., Inc., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

5. The criteria which must be met in order for the District's project to be exempt from the requirement to obtain an ERP are found in Section 373.406(6), Florida Statutes.

   That provision reads as follows:

   
   

   (6) Any district or the department may exempt from regulation under this part those activities that the district or department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district. The district and the department are authorized to determine, on a case-by-case basis, whether a specific activity comes within this exemption. Requests to qualify for this exemption shall be submitted in writing to the district or department, and such activities shall not be commenced without a written determination from the distict or department confirming that the activity qualifies for the exemption.

   
   

6. The greater weight of evidence shows that the District has provided reasonable assurances that the proposed activity will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the District. Therefore, the requested activity should be authorized.

7. In reaching this conclusion, the undersigned has considered Petitioner's main contention that the floating weed barrier will significantly impede navigation. On this issue, the evidence shows that access to the canal will not be impeded after the barriers are constructed, and the barriers will not constitute a navigational hazard or a significant impediment to navigation. The minimal area occupied by the barrier and any temporal loss of access to the canal that may be attributed to tussocks floating in and around the proposed barrier are not significant impacts to the public interest in navigation. See, e.g., Clarke and Traurig v. Melton and Dep't of Env. Reg., DOAH Case Nos. 89-6051 and 89-6135, 12 F.A.L.R. 4946, 4960 (DER Nov. 30, 1990)(minor inconveniences do not constitute significant adverse impacts to navigation).

8. Finally, Mr. Lahey contends (without further explication) that the project is barred by the terms of Section 369.20, Florida Statutes. That provision is known as

the Florida Aquatic Weed Control Act and directs the Department (rather than the District) to control, eradicate, and regulate noxious weeds. As noted in the Findings of Fact, however, the Department is actively engaged in a spraying program for the Lake (subject to monetary restraints imposed by the Legislature). There is nothing in the statute which bars the District from constructing barriers to aid it in satisfying its statutory responsibility of conserving, protecting, managing, and controlling water resources within its boundaries.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the Department of Environmental Protection issue a final order determining that the Southwest Florida Water Management District's proposed project qualifies for an exemption under Section 373.406(6), Florida Statutes; that authorization to use state-owned lands be given; and that the project is in compliance with the State Programmatic General Permit program.

DONE AND ENTERED this _____ day of May, 2003, in Tallahassee, Leon County, Florida.

___________________________________ DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this _____ day of May, 2003.

COPIES FURNISHED:

Kathy C. Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Bruce Lahey

5280 Waterwood Drive

Bartow, Florida 33830-9766

Martha A. Moore, Esquire

Southwest Florida Water Management District 2379 Broad Street

Brooksville, Florida 34604-6899

Doreen Jane Irwin, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 03-000333

Orders for Case No: 03-000333