STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BIG BLUE SPRINGS PROPERTY )

OWNERS' ASSOCIATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-1151

)

BOARD OF TRUSTEES OF THE ) INTERNAL IMPROVEMENT TRUST FUND ) OF THE STATE OF FLORIDA, and the ) DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in the above style cause pursuant to notice on August 23, 1995 by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, in Inverness, Florida.

APPEARANCES

For Petitioner: Clark A. Stillwell, Esquire

Brannen, Stillwell & Perrin, P.A.

320 Highway 41 South Post Office Box 250

Inverness, Florida 32651-0250

For Respondent: Evelyn Davis Golden, Esquire

John W. Costigan, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

Based upon an initial stipulation of the parties, the following narrow issue was presented to the hearing officer upon a motion for a summary finding of fact:

Whether the Petitioner was authorized to fill the breach in the dike at the time, in the place, and in the manner it was filled?

Based the hearing officer's finding to the issue presented above, the parties entered into a further stipulation which resolved the existing conflict between the parties.

PRELIMINARY STATEMENT

Historically, Big Blue Springs is a natural spring that flowed into the Withlacoochee River which was immediately adjacent to the springs. Sometime in the early 1960's, the previous owner of the upland property adjoining Big Blue Springs built a dike around the springs separating it from the Withlacoochee River, and deepened a slough by dredging to permit the water contained by the dike to be diverted approximately 1/2 mile in a northerly direction to rejoin with the Withlacoochee River. Because of a low bridge at the northerly terminus of the slough, access to Big Blue Springs was limited. The dike, which was about 10 feet tall and steep, also limited access from the river.

Limiting access to the springs by construction of the dike created a festering local conflict which persisted for years and finally resulted in the mysterious breach of the dike which resulted in the waters from Big Blue Springs flowing directly into the Withlacoochee River through the breach in the dike.

The new owner of the property, who is the Petitioner, obtained permission from the Army Corp of Engineers and the state to repair the breach. The repair was made, and the Petitioners applied for a 25 year public easement to maintain the dike. This request for a 25 year public easement was presented to the Governor and Cabinet acting as the Board of Trustees of the Internal Improvement Fund (Board). The Board denied the easement to the Petitioners, rescinded the letter of April 6, 1993 from the Department of Natural Resources (DNR) authorizing repair of the breach and directed the staff to remove the dike and restore the area. This action gave rise to the instant hearing.

At the formal hearing in the instant case on August 23, 1995, the Petitioner withdrew its allegations that the Respondents acted contrary to the facts and law regarding denial of the 25 year public easement and directions to staff to remove the dike and restore the area. The Petitioner expressed its concern about future liability to the county and state for its acts in reconstructing the dike. The parties were able to enter into a stipulation regarding the facts related to reconstruction of the dike. Based upon these facts, the Petitioner moved for a summary factual finding on the narrow issue of whether the Petitioner was authorized to fill the breach in the dike at the time, in the place, and in the manner it was filled. Based upon the hearing officer's summary finding of fact, the parties entered into a second stipulation which resolved the pending controversy and settled the case.

The parties submitted a joint proposed order whose facts were adopted without meaningful change.

FINDINGS OF FACT

The parties stipulated to the following facts and introduction of the following exhibits:

1. The Petitioner filed an application, Respondent's Exhibit 6, with the Army Corp of Engineers and the State of Florida Department of Environmental Regulation to reconstruct the breach in the dike surrounding Big Blue Springs.

   
   

2. The Petitioner sought and obtained a letter granting an exemption from the State of Florida Department of Environmental Regulation dated February 3, 1993, Respondent's Exhibit 2, which permitted the placement of 280 cubic yards of fill into the breach of the dike around Big Blue Springs.

3. The Petitioner sought and obtained a letter dated April 6, 1993, Respondent's Exhibit 3, from the Department of Natural Resources, which states that the proposed activity (reconstruction of the dike) was exempt from the need for a wetland resource permit.

   
   

4. The Petitioner obtained a letter dated July 19, 1993, Respondent's Exhibit 4, from the Army Corp of Engineers approving reconstruction of the dike surrounding Big Blue Springs.

   
   

5. The dike and springs are not located in an aquatic preserve, in Monroe County or contiguous to an unbridged, undeveloped coastal barrier island. See Tx-Page 13, line 24 et seq.

   
   

6. Public notice was given of the intent to issue a permit for the reconstruction of the dike. See Tx 14, line 18 et seq.

   
   

7. After receiving the aforementioned approvals, the Petitioner repaired the breach in the dike.

   
   

8. Respondent's Exhibit 1 is a certified copy of the agenda item for the Governor and Cabinet, Board of Trustees' meeting of November 9, 1993, which reflects that the Petitioners' request for a 25 year public easement to maintain the dike was denied, that the staff was directed to restore Big Blue Springs to its natural features, and that the letter of April 6, 1993 regarding filing and restoration of the dike and breach in the dike was rescinded. The transcript of the Trustees' November 9,1993 meeting, Exhibit 5, was received into evidence.

   
   

9. The Petitioner withdraws any contention or allegation that the Respondents acted contrary to the facts or law with regard to Trustees' denial of the 25 year public easement and the Trustees' direction to staff to restore the spring to its natural features. Tx-9.

   
   

10. Big Blue Springs lies below the ordinary high water line. Tx-12.

    
    

11. The Petitioners' sole assertion is that the Trustees' could not rescind retroactively the approval to repair the breach after Petitioners had repaired the breach.

    
    

12. The decision of the Trustees on November 9, 1993 was intended to be prospective in nature, and did not indicate that the filling and reconstruction of the breach was done contrary to federal or state law.

    
    

    Based upon the foregoing stipulations, the Petitioner moved that the Hearing Officer make summary factual findings on the issue of whether the Petitioner was authorized to fill the breach in the dike at the time, in the place, and in the manner it was filled.

    
    

13. The Petitioner was authorized to fill the breach in the dike at the time, in the place, and in the manner it was filled.

    
    

    Thereafter, the parties further stipulated that:

    
    

14. The Respondents will not pursue any action against the Petitioner asserting that the filling or reconstruction of the breach in the dike was unlawful or contrary to law.

15. The Petitioner will not pursue any action against the Respondent to recover any expense or damage allegedly incurred by filling and reconstructing the dike.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter presented herein, pursuant to Section 120.57(1), Florida Statutes.

    
    

17. The Florida Department of Environmental Protection (DEP) has jurisdiction over this projected pursuant to Section 253.77, Florida Statutes. The Board of Trustees of the Internal Improvement Trust Fund holds title to sovereignty submerged lands not otherwise alienated or conveyed in tidally influenced navigable water bodies, waterward of the mean high water line or mean water level in the State of Florida pursuant to Section 253.001, 253.02, 253.03, and 253.04, Florida Statutes. DEP has the duty to protect sovereignty lands pursuant to Section 253.04, Florida Statutes.

    
    

18. The Petitioner concedes that the Board of Trustees did not act contrary to law or the facts in denying the Petitioner's request for a 25 year public easement and it directing the staff of the Department to remove the dike and restore the springs to its natural state. Therefore, this is no longer at issue and no conclusions are made concerning these issues.

    
    

19. The sole issue is whether the Petitioner was authorized to fill the breach in the dike at the time, in the place, and in the manner it was filled. By motion, Petitioner requested a summary finding of fact on this issue. After careful consideration of the exhibits and the stipulated facts, which are substantial and competent evidence, it was determined that the Petitioner duly filed an application with the appropriate agencies to obtain the approval to do the things necessary to repair the dike; that Petitioner received the approval of the various agencies necessary prior to repairing the breach; and that Petitioner repaired the breach pursuant to those approvals in the place, in the time and in the manner which had been approved.

    
    

20. The further stipulation of the parties regarding their mutual promises not to pursue legal remedies arising out of reconstruction of the breach is merely recorded in this order and this order in no way approves their agreement and stipulation.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is,

RECOMMENDED:

Based upon the stipulation of the parties, there are no further controversies pending between the parties. Therefore, this case is closed and notice thereof is provided to the parties by copy of this order.

DONE and ENTERED this 29th day of September, 1995, in Tallahassee, Florida.

STEPHEN F. DEAN, 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 29th day of September, 1995.

COPIES FURNISHED:

Clark A. Stillwell, Esquire Brannen, Stillwell & Perrin, P.A.

320 Highway 41 South Post Office Box 250

Inverness, Florida 32651-0250

Evelyn Davis Golden, Esquire John W. Costigan, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Virgina B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Floirda 32399-2400

Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Floirda 32399-2400

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. 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: 94-001151

Orders for Case No: 94-001151