STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MR. AND MRS. GILBERT LEE SWARTZ, )

)

Petitioners, )

)

vs. ) CASE NO. 80-042

) SEMINOLE COUNTY BOARD OF COUNTY ) COMMISSIONERS and DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its assigned Hearing Officer, Michael Pearce Dodson, held a public hearing in this case on February 20, 1980, in Sanford, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Mr. Gilbert Lee Swartz, Pro se

Route 1, Box 228 DD South Sylvan Lake Drive Sanford, Florida 32771

For Petitioner: Mr. Raymond Lipton, Pro se

Route 1, Box 60-A Longwood, Florida 32750

For Respondent: Nikki Clayton

Seminoile County Seminole County Courthouse Board of County Room 302, 301 North Park Avenue Commissioners Sanford, Florida 32771

For Respondent: Segundo J. Fernandez, Esquire Department of and Stanley J. Niego, Esquire Environmental Twin Towers Office Building Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301 PROCEDURAL BACKGROUND

These proceedings began on December 10, 1979, when Petitioners, Mr. and Mrs. Gilbert Lee Swartz requested a hearing on the issuance of a dredge and fill permit to Seminole County. On January 4, 1980, the matter was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a hearing.

By notice to all parties the hearing was scheduled for and held on February 20, 1980. During the progress of the hearing, Mr. Raymond Lipton requested

permission to join as an Intervenor on the side of the Petitioners. Without objection he was allowed to intervene as long as he took the proceedings as he found them. Also during the course of the hearing the Seminole County Board of County Commissioners (County) amended its application, without objection, to provide that any removal of aquatic vegetation would be done by hand, without the aid of machinery.

The issue in this case is whether the County has given the Department of Environmental Regulation (Department) reasonable assurance that the project as proposed will not violate the water quality standards set out in Chapter 403, Florida Statutes (1979) and Chapters 17-3 and 17-4, Florida Administrative Code. The Department presented as its witness, Mr. Glenn Vause. the County presented Mr. C. M. (Butch) Alexander, Jr. The Department's exhibits A, B C and D were received into evidence without objection. No other party offered any exhibits. Neither the Petitioners nor the Intervenor presented any evidence but they did present argument against the proposed project.

FINDINGS OF FACT

1. The County applied on August 24, 1979, for a permit to construct a swimming beach on the southwest shore of Sylvan Lake in the northwest part of Seminole County, Florida. On December 4, 1979, the Department gave notice of its intent to grant the permit.

   
   

2. As proposed, the beach would be 150 feet in length along the shoreline and be approximately 65 feet deep, 40 feet on the land side of the waterline and

   25 feet on the lake side of the shore waterline. Three dock structures are also proposed. The first is a boat dock to be 6 feet wide, which will extend into the lake for 25 feet with a 15 foot "L" at its end. In addition, a 6 foot wide,

   20 foot long fishing pier is proposed with a 6 by 20 foot "T" on its end. Finally, the County proposes constructing a 6 foot wide 15 foot long aquatic study platform that would terminate in a 6 by 30 foot "T".

   
   

3. The County plans to remove vegetation from an area of 150 feet long by

   25 feet. As agreed at the hearing, this removal would be by hand only.. No machinery would be used.

   
   

4. The site of the project is owned by the County. As part of its application, the County agrees to leave undisturbed 2,630 feet of the remaining shoreline it owns.

   
   

5. At the present time approximately 20 percent of the lake's total shoreline is occupied by developed residential property. Many of the homeowners have removed the vegetation from their shorelines. The County's agreement not to alter 90 percent of its shoreline would therefore be beneficial to preserving the natural state of the lake.

   
   

6. Sylvan Lake is an oligotropic spring-fed lake of 160 acres. Its well vegetated shoreline alternates between large grassy marshes and well-defined uplands. The lake bottom in the project site is firm sand with little potential for causing a turbidity problem. The lake has excellent water quality. It is a valuable habitat for fish and aquatic dependent birds and mammals.

   
   

7. The vegetation along the shoreline of the project site consist of sawgrass, pickerelweed, and some arrowhead on the land side with spatterdock and mats of floating maidencane on the water side. In a freshwater closed system such as this lake the rooted emergent plants are vital to maintaining the

   quality of the water. The plants stabilize nutrients, expert oxygen and keep the water cool. The removal of this vegetation from a 150 foot strip will have an adverse but insignificant impact on the biological resources and the water quality of the lake. The construction of the fishing pier, boat dock, and observation platform will have no lasting environmental impact and the limited turbidity which may be generated during their construction can be well contained by the use of turbidity curtains.

   
   

8. The swimming beach is a part of the County's plan for a diverse recreational park to provide the public with facilities for nature trails, baseball, picnicking, etc.

   
   

9. The water classification of Sylvan Lake is Class III. CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1979).

    
    

11. In this proceeding the Respondent, County, has the burden of proving that it has given reasonable assurances that the short term and long term effects of the proposed project will not result in violations of the water quality standards of Chapter 17-3, Florida Administrative Code. Section 17- 4.28(3), Florida Administrative Code; Dowdy v. Department of Environmental Regulation, Case No. 79-219, Recommended Order (DOAH July 19, 1979). That burden has been carried.

    
    

12. The water quality standards of a Class III body such as Sylvan Lake are set out in Section 17-3.09, Florida Administrative Code. There is a preponderance of competent and substantial evidence that those standards in either the long term or in the short term will not be violated by the proposed project. The requisite reasonable assurances have therefore been given by the applicant.

    
    

13. Hand removal of aquatic vegetation from a 150 foot strip of shoreline on a 186 acre lake, will have at most, a de minimus impact on the marine life, water quality or neighboring biota of Sylvan Lake. The applicant has met the criteria for the issuance of a permit, pursuant to Section 17-4.07, Florida Administrative Code.

RECOMMENDATION

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

That a final order be entered by the State of Florida, Department of Environmental Regulation determining that the requested dredge and fill permit be issued subject to the usual conditions and subject to the applicant's stipulation that any vegetation removal will be performed by hand and subject to any conditions contained in the Notice of Intent To Issue Permit.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of April, 1980.

MICHAEL PEARCE DODSON

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Mr. & Mrs. Gilbert Lee Swartz Route 1, Box 228 DD

South Sylvan Lake Drive Sanford, FL 32771

Nikki Clayton

Seminole County Courthouse Room 302, 301 N. Park Avenue

Sanford, FL 32771

Segundo J. Fernandez, Esq. and Stanley J. Niego, Esq. Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32301

Mr. Raymond Lipton Route 1, Box 60-A Longwood, FL 32750

Docket for Case No: 80-000042

Orders for Case No: 80-000042