STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONNA SPIVEY, et al., )

)

Petitioner, )

)

vs. ) CASE NO. 92-0249

)

DEPARTMENT OF NATURAL )

RESOURCES and JEAN BROWN, )

)

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 June 4, 1992, at Winter Haven, Florida.

APPEARANCES

For Petitioner: Byron P. Hileman, Esquire

Post Office Drawer 9470

Winter Haven, Florida 33993-9479

For Respondent: Nona Schaffner, Esquire

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 STATEMENT OF THE ISSUES

Whether Jean Brown should be issued a permit to control certain aquatic plant species along 75 feet of shoreline in Lake Hartridge adjacent to upland property at 3545 Highway 17 North, Winter Haven, Florida.

PRELIMINARY STATEMENT

By Application For An Aquatic Control Permit dated November 1, 1991, Ricky Weeks, on behalf of Jean Brown, seeks a permit to clear a 100 feet opening for a dock, boat parking on shore and a volley ball court at Applicant's property on Lake Hartridge, Polk County, Florida. By letter dated November 21, 1991, the Department of Natural Resources notified the Applicant of its intent to grant the requested permit. Thereafter, Donna Spivey, et al., filed a written request for formal hearing to contest the granting of the permit to control the aquatic plants for which the permit was requested. As grounds for the protest, it is alleged that granting the permit would allow the Applicant to clear the beach for commercial purposes, thereby destroying the value of the Petitioners' homes; that approval of the application will not provide an acceptable balancing of safety and recreation with the value of the species to be removed to provide food source and habitat for wildlife; that approval will destroy the natural buffer now provided between the lake and a paved parking area and allow pollution of the lake waters from storm water runoff; and will cause the quality of life of the Petitioners to deteriorate.

At the hearing, the Department called one witness, Petitioners called three witnesses, one local resident testified in opposition to the permit, and two exhibits were admitted into evidence. Proposed findings submitted by the Department are accepted. Those proposed findings not included below were deemed unnecessary to the conclusions reached. Petitioner did not timely file proposed findings. Having fully considered the evidence presented, I submit the following.

FINDINGS OF FACT

1. Lake Hamilton is a Class III water body.

   
   

2. Petitioners are generally homeowners living in the vicinity of the site proposed for aquatic plant control and have standing to challenge the permit here at issue.

   
   

3. The Applicant seeks a permit to control cattail, primrose, elephant ear, paragrass, and day flower in a swath 100 feet wide from the shoreline of its property into clear water in Lake Hartridge by the use of the chemical rodeo.

   
   

4. The aquatic plants proposed to be removed are designated noxious plants. As proposed to be granted, the permit will authorize the Applicant to maintain only 75 feet of the lakefront free of all aquatic plants for access, boating and recreational activities. Applicant accepts the modification proposed for the permit to issue.

   
   

5. The Department of Natural Resources (DNR) is the state agency designated to issue permits for control of aquatic plants. In 1991, DNR granted approximately 1700 permits for the removal of aquatic plants.

   
   

6. The commercial structure in the vicinity of which the aquatic plant control is sought has been at this location for more than 20 years, and no change in the paving or use of the facility is here proposed.

   
   

7. The primary complaint of the Petitioner is that the commercial establishment constitutes a source of noise at night, beer cans are thrown on the adjacent property, and that boats parking on the beach will cause erosion of the beach. No evidence to support the opinion regarding erosion of the beach was presented.

   
   

8. The homeowners association on Lake Hartridge has a dock some distance away from the Applicant's facility and has been issued a permit less restrictive than that here proposed to control aquatic plants.

   
   

9. The primary function of Class 3 waters is to provide recreation and a well balanced fish and wildlife population.

   
   

10. These sometimes competing uses must be balanced to obtain the best recreation compatible with minimum injury to non-target plant and animal life.

    
    

11. The application was referred to the Game and Fresh Water Fish Commission for review and comments before proposed final action was taken by DNR. As a result of this review, the corridor was reduced to 75 feet, and the Applicant will be required to remove all primrose willow and replace with a native species to provide a better habitat for wildlife.

12. This permit is good only for one year, and if further removal of aquatic plants is needed, the permit must be renewed.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

14. Section 369.20(2), Florida Statutes, provides in pertinent part:

    
    

    The Department of Natural Resources shall direct the control, eradication, and regulation of noxious aquatic weeds and direct the research and planning related to these activities . . .

    
    

15. Rules regarding control of aquatic plants are contained in Chapter 16C-20, Florida Administrative Code. Rule 16C-20.0045(4) provides:

    
    

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

    1. The aquatic plant control activity 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 control activities will result in the least amount of damage to water quality consistent with 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 plants in natural waters is consistent with Section

       16C-20.0045(6) of this chapter.

       
       

16. These criteria were considered by the Department in reviewing the application, and the application was found to be compatible with and to conform to, the requirements of Chapter 16C-20. No credible evidence was submitted that the benefits to the public will not outweigh the adverse affects of the removal of these noxious aquatic plants.

    
    

17. From the foregoing, it is concluded that Petitioner meets all requirements for the issuance of a permit to control certain plant species along

75 feet of shoreline in Lake Hartridge adjacent to upland property at 3545 Highway 17 North, Winter Haven, Florida, and that the benefits to the public from the removal of these aquatic plants outweighs the adverse effects of their removal.

RECOMMENDATION

Accordingly, it is recommended that Jean Brown be granted a permit to control cattail, day flower, paragrass, primrose willow and elephant ear in Lake

Hartridge subject to the conditions contained in DNR's Notice Of Intent To Issue Permit letter dated November 21, 1991.

RECOMMENDED this 15th day of July, 1992, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1992.

COPIES FURNISHED:

Byron P. Hileman, Esquire Post Office Drawer 9470 Winter Haven, FL 33993-9479

Nona Schaffner, Esquire Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, FL 32399

Ken Plante General Counsel

Department of Natural Resources 3900 Commonwealth Boulevard, MS 10

Tallahassee, FL 32399-3000

Virginia Wetherell, Director Department of Natural Resources 3900 Commonwealth Boulevard, MS 10

Tallahassee, FL 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 10 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.

Docket for Case No: 92-000249

Orders for Case No: 92-000249