STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEVEN P. CHRISTMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 88-4629

)

LAKE SKINNER HOMEOWNERS ) ASSOCIATION and DEPARTMENT OF ) NATURAL RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 4, 1989, in Gainesville, Florida, before Ella Jane P. Davis, a duly assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dr. Steven P. Christman

Post Office Box 391 Hawthorne, Florida 32640

For Respondent Mr. Raymond Bragg Lake Skinner 1813 Grassington Way

Homeowners Jacksonville, Florida 32223 Association:

For Respondent Margaret S. Karniewicz Department of General Counsel

Natural Department of Natural Resources Resources: 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000 ISSUE

Whether the aquatic plant control permit requested by the Lake Skinner Homeowners Association should be granted.

PRELIMINARY STATEMENT

This proceeding was initiated by Petitioner's filing of a petition for a formal administrative hearing on the Department of Natural Resources' (DNR's) intent to grant an aquatic plant control permit to the Lake Skinner Homeowners Association (Homeowners Association). In actuality, the permit was issued on August 4, 1988 and then withdrawn pending the outcome of this proceeding.

As proponents of the permit, Respondent Homeowners Association and DNR were required to go forward in the order of proof and to bear the burden of proof.

Official recognition was taken of Chapter 16C-20, Florida Administrative Code, and pages 9590-9594, Vol. 53, NO. 6, March 23, 1988, Federal Register.

Respondent Homeowners Association presented the testimony of Belle Thoman, Molly Lloyd, Mary Outlaw, and Gil Whitton, and had its Exhibits 1-7 admitted in evidence.

Respondent DNR presented the testimony of Dean Barber, Jeffrey Schardt, and Larry Nall. Mr. Nall was accepted as an expert in herbicide usage and registration. Respondent DNR's Exhibits 1-8 were admitted in evidence.

Each Respondent adopted the testimony of the other Respondent's witnesses and each other's exhibits.

Petitioner was accepted as an expert in terrestrial and fresh water ecology and as a natural historian. Petitioner testified in narrative form on his own behalf. Petitioner's Exhibit 1 was admitted in evidence.

A transcript of the proceedings was filed in due course, and all timely proposed findings of fact have been ruled upon in the Appendix to this Recommended Order, pursuant to Section 120.59(2), F.S.

FINDINGS OF FACT

1. Lake Skinner is a 48 acre rain (not spring) lake located in Putnam County, Florida. There is no exotic vegetation in the lake. It has excessive natural vegetation due to natural water level fluctuation in the area and a wide littoral zone.

   
   

2. Prior applications by Respondent Homeowners Association for an aquatic plant control permit were denied by DNR since the activities proposed under these prior applications were considered to be excessive or because DNR did not find that the Lake Skinner aquatic vegetation was presenting sufficient problems to justify a permit. Nonetheless, in the summer of 1985, Mrs. Outlaw, a homeowner whose property abuts the lake, used the herbicide 2,4-D on her individual shoreline without first obtaining a permit as required by law. She did so out of ignorance that she must have such a permit, and then ceased herbicide use when the requirement of a permit and the nature of penalties without a permit were made known to her. Her unsupervised use has left a bare patch at her shoreline today, but the herbicide concentration used could not be determined. Also, at some time in the early 1980's, DNR permitted the use of other herbicides by another abutting homeowner, Mrs. Lloyd.

   
   

3. The Homeowners Association filed its present application for an aquatic plant control permit with DNR on June 16, 1988. This application requested the control of seven acres of bladderwort and eight acres of milfoil in Lake Skinner through the use of the herbicide, 2,4-D. All members of the Homeowners Association acquiesced in this application, with the exception of the Petitioner.

   
   

4. In the course of approving the permit, DNR conducted a survey of Lake Skinner on June 29, 1988, together with the Florida Game and Fresh Water Fish Commission, utilizing visual inspection, identification of plant species, and fathometer tracings.

5. The June 29, 1988 survey revealed there were twenty acres of myriophyllum laxum, or milfoil, and thirteen acres of utricularia, spp., or bladderwort, in Skinner Lake, that most of these submersed aquatic plants were between two and five feet below the water's surface, and that navigational access was inhibited only over two to four percent of the open water.

   
   

6. The June 29, 1988 survey also revealed that the abutting landowners were clearing and maintaining access from their respective shorelines to open water, but that without some type of maintenance or control program, this access could be blocked in the future by either submersed or immersed aquatic plants.

   
   

7. The growth of the native aquatic vegetation is seasonal, but the vegetation is most dense during the summer months. This phenomenon accounts in part for DNR studies/surveys, introduced by DNR as exhibits but cited by Petitioner, which seem to show a decrease over time in the species sought to be controlled by the present permit application. Competition among, and fluctuation in, these species and other species of aquatic plants surveyed over time also obscures the homeowners' current problem, discussed infra.

   
   

8. The native aquatic vegetation in Lake Skinner has interfered with the recreational use of the lake by the members of the Homeowners Association to some degree since 1984. The dense growth of aquatic vegetation in the lake during the summer months interferes with swimming, fishing, and boating activities by the members of the Homeowners Association.

   
   

9. Motorboats break off pieces of submersed aquatic vegetation which float to the surface and are blown onto the shoreline. Some of these fragments take root near the shoreline. Those fragments of vegetation which wash off on the shore take time to be removed. Most homeowners who testified personally are regularly removing the debris by hand. Some witnesses spend the better part of one or two days a week (all weekend) removing the material from their respective shorelines; others work at it a little every day.

   
   

10. Several members of the Homeowners Association expressed concerns for the safety of people, particularly children, swimming in the lake among the dense aquatic vegetation. In spite of legitimate concerns for future expansion of the problem and some anecdotal stories of past isolated situations, the current status of the lake's vegetation was not proved to be life-threatening but to be more in the nature of a nuisance which deprives the abutting homeowners of full enjoyment of their property and which diminishes the property's resale value. DNR considers abutting owners to be riparian owners. See, Conclusions of Law, infra.

    
    

11. On August 4, 1988, DNR issued a permit to the Homeowners Association. The permit authorized the control of four acres of bladderwort through the use of the herbicide 2,4-D, mechanical harvest, or hand removal. It authorized control of four acres of milfoil through the use of 2,4-D, mechanical harvest, or hand removal. It also authorized control of one acre of southern cutgrass through the use of mechanical harvest or hand removal.

    
    

12. The decision to issue the permit was based upon a finding, within the agency's expertise, that access for the abutting owners was impeded from the shore to open waters by southern cutgrass mixed with bladderwort and milfoil. Navigation and usage of the lake was found to be inhibited by milfoil and bladderwort which are three feet or less from the surface.

13. The permit was designed to allow the abutting owners two types of access: navigational and riparlan. The permit allows the Homeowners Association to remove one acre of bladderwort and milfoil in open waters where these aquatic plant species are found within three feet of the surface and are inhibiting navigational access. Any open water herbicide treatment plot must be at least 50 yards from shore. The permit also allows riparian access from the shoreline to open waters by controlling/removing southern cutgrass, bladderwort, and milfoil in an area not exceeding 40 percent of the riparian owners' waterfront property from the shore to open water. Any such riparian herbicide treatment plots may not extend mcre than 50 yards from shore. It may be inferred from this requirement that the agency is attempting to avoid any overlapping of herbicide treatment.

    
    

14. Although Dr. Christman challenged the permit partly on the basis that its language was unclear, vague, and subject to a variety of interpretations by each homeowner so as to result in an excessive use of 2,4-D not contemplated by the agency's permitting personnel, it is found upon the evidence as a whole that the permit is sufficiently clear as to what activities are and are not permitted, and is, in fact, conservative in nature. The permit is only good for one year, therefore renewals must be subject to agency review. The permit does not allow the eradication or control of all the aquatic vegetation in the lake, and it specifically identifies the species of aquatic plants that can be controlled by the abutting homeowners, as well as the areas in the lake where such control can take place. DNR's Rule 16C-20.0045, F.A.C., requires that all herbicides used for aquatic plant control or maintenance must be used according to the instructions contained on the respective products' labels. Commercially sold 2,4-D is labeled with instructions and directions on the use of the product. Moreover, the testimony of Jeffrey Schardt of DNR's Bureau of Aquatic Plant Management, and of Larry Nall, DNR Research Program Administrator, who qualified as an expert in herbicide usage and registration, is persuasive that when the product 2,4-D is used according to its label's instructions, there will be no direct negative impact on fish, wildlife, or non-target plants. Also, the testimony of Dean Barber, DNR Regional Biologist, to the effect that with a permit, the agency can better "police" the anti-vegetation activities on and around Lake Skinner than DNR was able to do when individual homeowners bought and administered their own herbicides without a permit, is accepted. In summary, Mr. Barber testified that the permit was designed as a justifiable management technique and is restrictive enough to keep the Homeowners Association from proceeding haphazardly.

    
    

15. The herbicide 2,4-D is one of the most widely used herbicides in the world. It is used primarily for weed control on food and non-food crops, range and pasture land, and forest management, and for aquatic plant control.

    
    

16. 2,4-D has been registered for such uses since 1948. It is presently registered with the United States Environmental Protection Agency (EPA) and the Florida Department of Agriculture and Consumer Services.

    
    

17. The EPA has classified 2,4-D in Category "D" (not classifiable as to carcinogenicity) based on the inadequate evidence of cancer in human beings and laboratory animals. Basically, this means that from the federal government's viewpoint, there is insufficient evidence to conclusively prove the suspicions of many, including Petitioner Dr. Christman, that 2,4-D is carcinogenic. Whereas the EPA's conclusions are based upon a consensus of opinion from EPA scientists, national experts on epidemiology, and the Federal Insecticide,

    Fungicide, and Rodenticide Act Scientific Advisory Panel, Dr. Christman admitted that he had no experience in aquatic toxicology, chemistry or `pharmacology, and

    that he has conducted no research studies on 2,4-D. Dr. Christman, who was accepted as an expert in terrestrial and fresh water ecology and as a natural historian, expressed the opinion that 2,4-D can be dangerous to human beings, animals, and fish on two levels: their ability to reproduce at all and their ability to produce normal offspring without any mutations in those offspring. However, Dr. Christman did not demonstrate that either of these possible results could be reasonably expected from the application of 2,4-D as limited by the conservative terms of the proposed permit. There is also clear evidence which is contrary to Dr. Christman's assertions that aquatic animal life will be negatively affected. That contrary evidence is compelling in that it arises from considerable direct experience that DNR has had with permitting the use of 2,4-D over a number of years. See Finding of Fact 20, infra.

    
    

18. DNR has long permitted the use of 2,4-D for aquatic plant control activities. 2,4-D is the first or second most frequently used aquatic herbicide in Florida. 2,4-D is the primary control method for water hyacinths and has been successful in reducing the number of hyacinths in Florida waters. The pounds of 2,4-D as an active ingredient used to control aquatic plants pursuant to a DNR permit have gone from a high of 159,666 pounds in 1984 to 62,005 pounds in 1987. One possible inference from this decline in poundage used is that the product is effective because repeat usage may be less necessary. Another inference is that its use is not authorized excessively by the agency.

    
    

19. 2,4-D will not work on all plants. It is primarily intended for the control of broad-leafed plants. Therefore, it can be targeted for the plants that create a problem. 2,4-D will have a limited effect on grasses at low concentration rates. Its use, according to Mr. Schardt, is mandated to control plants anticipated to create a problem before that problem actually arises, which means that less herbicide can be used, thereby resulting in less cost and better control than might be required later. The Florida Department of Game and Fresh Water Fish is actively controlling native bladderwort and milfoil in Lafayette County with granular 2,4-D this year.

    
    

20. In the years that DNR has permitted the use of 2,4-D for aquatic plant control activities in water bodies throughout Florida, there have been no documented fish kills, snail kills, or animal kills where the herbicide has been used. Likewise, there have been no documented reports of people being adversely affected by going into waters treated by 2,4-D

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the subject matter and parties to this cause, pursuant to Section 120.57, F.S.

    
    

22. The Department is the agency charged with the authority to direct the control, eradication, and regulation of noxious aquatic weeds so as to protect human health, safety, and recreation and, to the greatest degree practicable, prevent injury to plant and animal life and property. See, Section 369.20, F.S.

    
    

23. DNR asserts that the members of the Lake Skinner Homeowners Association are riparian owners and as such have riparian rights which are defined as "... rights of ingress, egress, boating, bathing and fishing and such others as may be or have been defined by law." See, Section 253.141(1),

    F.S. The cited statute specifically defines riparian rights as "those incident to land bordering upon navigable waters." There is considerable evidence that one can navigate upon Lake Skinner but it is unclear whether one can navigate into or out of Lake Skinner, which is not a spring-fed lake. From a strict

    linguistic viewpoint, (see, 56 Fla. Jur. 2d S. 146), a "riparian" landowner is one whose land is bounded or crossed by a stream. However, because the word is frequently applied also to ownership on the shores of a lake, because the Petitioner never disputed the right of all homeowners, including himself, to ingress and egress to their property via the lake, because it is "a matter for determination of the state within whose borders a locus for assertion is to be found", and because the agency personnel all view these homeowners as riparian owners, the agency's expertise is given great weight and its position that these are riparian owners with appurtenant entitlements is accepted. See, 56 Fla.

    Jur. 2d S. 146; Pan American Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983); Webb v. Giddens, 82 So.2d 743 (Fla.

    1955); Thiesen v. Gulf, F.& A.R. Co., 78 So. 491 (Fla. 1917)

    
    

24. Riparian rights are appurtenances to private property which are entitled to due recognition and protection, Hayes v. Bowman, 91 So.2d 795 (Fla. 1957).

    
    

25. Pursuant to its authority under Section 369.20, F.S., DNR has adopted Chapter 16C-20, F.A.C., which provides for the issuance of aquatic plant control permits. Rule 16C-2.0045, F.A.C., contains the general criteria for reviewing applications for aquatic plant control permits. It provides in part:

    
    

    1. Chemical control activities.

       1. Chemicals and their applications for aquatic plant control shall be in accordance with registrations, regulations and guidelines of the United States Environmental Protect ion Agency and/or the Florida Department of Agriculture and Consumer Services.

       2. Chemicals shall be applied in accordance with a current registered label instructions.

       * * *

       1. The benefit for the public of an aquatic plant control activity must outweigh the adverse effects of the activity. In making this determination, the Department shall find, before granting a permit, that:

          1. The aquatic plant control activities will not significantly interfere with the designated use of the waters of the state as established by Chapter 17-3, Florida Administrative Code.

          2. The aquatic plant control activities will result in the least amount of damage to water quality consistent with the effectiveness for the aquatic plant control purpose intended.

          3. The aquatic plant control activities will, to the greatest degree practicable, prevent injury to non-target plants, animal life, and property.

          4. The control of native plant species in natural waters is consistent with

       subsection 160-20.0045(6) of this Chapter.

       * * *

       1. Additional criteria for natural waters.

          1. Natural waters are generally used

             for a number of purposes. The Department shall recognize and balance the various purposes and uses of natural waters in reviewing applications for aquatic plant control work in these areas.

          2. Native aquatic plant species in

             natural waters will not normally be considered a problem unless the native species alone or when intimately intermingled with non- indigenous species are creating problem conditions.

          3. In reviewing applications for a maintenance program for native species in natural waters, the Department shall balance safety or recreation with the value the native species provide for food sources and habitat for animal life, water quality protection and erosion control.

       
       

26. From the uncontradicted evidence presented, it is clear that the native vegetation is creating problem conditions for, and interfering with, the riparian rights of the vast majority of the members of the Homeowners association, all of whom use the lake for various recreational purposes.

    
    

27. DNR's rules recognize that natural lakes will be used for a variety of purposes and provide that DNR must conduct a balancing test between the rights of riparian owners and the value the vegetation provides as a food source and habitat for animal life as well as water quality protection.

    
    

28. The members of the Homeowners Association have the right as riparian owners to have reasonable access to the lake and to engage in recreational activities on the lake, provided they do no harm to others. The Homeowners Association members seek to prohibit further encroachment on their shoreline and to insure access from their individual honesties to the rest of the lake.

    
    

29. In assessing their application to use 2,4-D for this purpose, DNR has applied the criteria set out in Rule 16C-20.0045 F.A.C., and has designed a conservative permit. This permit will allow access to the lake from the shoreline as well as the clearing of one acre of vegetation in the open waters of the lake, provided all special permit conditions are met. Since the lake itself encompasses forty-eight acres, of which twenty acres are milfoil and thirteen acres are bladderwort, the conservative nature of this proposed permit is obvious.

    
    

30. Other permit restrictions on the use of the designated herbicide, 2,4- D, together with the long-tested use of this herbicide likewise attest to the conservative nature of the permit and to the care with which the agency addressed both the application and the concerns raised in opposition to it.

    
    

31. Although it is always possible that the members of the Lake Skinner Homeowners Association will not act responsibly in carrying out the aquatic plant control activities governed by the permit, the presumption at law is contrary. See, Atlantic Coastline Railroad Company v. Mack, 58 So.2d 448 (Fla. 1952). It is more probable that with the administration of the permit, DNR will now have greater control over Homeowner Association and individual homeowner

activity in and around this natural water lake. In this particular situation, the desire of some members to obey the law has been demonstrated by their ceasing the illegal use of herbicides when the necessity of a permit was made known to them and by the Association's persistence in revising its proposals for permits until one could qualify for DNR approval under the balancing test provided by statute and rule.

RECOMMENDATION

From the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Natural Resources enter a Final Order

reissuing the August 4, 1988 permit containing all the restrictions and special conditions as it did originally, but modified to reflect a current issuance date, limit the permit's duration to one year from the current issuance date, and clearly specify that renewal is subject to complete review and survey of the lake at the time any renewal is applied for.

DONE and ENTERED this 17th day of March, 1989, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 17th day of March, 1989.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-4629

The following constitutes specific rulings pursuant to Section 120.59(2), F.S., upon the Proposed Findings Of Fact, (PFOF) of the parties.

Petitioner Dr. Christman filed no post-hearing proposals.

Respondent Lake Skinner Homeowners Association filed no post-hearing proposals. Respondent Department of Natural Resources PFOF:

1-9 Accepted except where immaterial or unnecessary.

10-21, and 23 Accepted in substance but modified to more closely conform to the credible record fact and expert evidence as a whole.

22 Rejected as subordinate and unnecessary.

COPIES FURNISHED:

Dr. Steven P. Christman Post Office Box 391 Hawthorne, FL 32640

Mr. Raymond Bragg 1813 Grassington Way

Jacksonville, FL 32223

Margaret S. Karniewicz General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Docket for Case No: 88-004629

Orders for Case No: 88-004629