Findings Of Fact Mr. George Szell was presented by the Southwest Florida Water Management District and sworn as a witness. Mr. Szell was qualified and accepted as an expert hydrogeologist employed by the District. Included within Mr. Szell's responsibilities to the District were evaluations of the subject application. An application for consumptive water use permit has been filed in proper form by Pat Nathe Groves, Inc., and admitted into evidence as Exhibit A. The water source is an existing well located on a 134-acre tract of land in Pasco County within the Withlacoochee Basin, as shown by Exhibit A. The water is to be used for irrigation purposes. The maximum daily withdrawal sought is 720,000 gallons and the average daily withdrawal sought is 130.192 gallons. Proper notice of this proceeding and application have been given to all persons entitled thereto by statute and rule. No objections to the application have been received by the District. The request of 130.192 gallons average daily withdrawal is approximagely 81.96 percent of the maximum average daily withdrawal allowed by the water crop theory set forth in Section 16J-2.11(3), F.A.C. Therefore, the requested withdrawal is not violative of the consumptive use test. Pursuant to Mr. Szell's testimony, none of the matters set forth in Subsections 16J-2.11(2), (3), and (4) exist so as to require the denial of this permit.
Findings Of Fact Respondent GL Homes filed a permit application with Respondent District for Conceptual Approval of a surface water management system. On August 28, 1996, Respondent District mailed a copy of its staff report and notice of rights to Respondent GL Homes. The staff report was the staff's summary and recommendation and Respondent District's notice of proposed agency action. The staff report indicated, among other things, that it was a "draft" and that the last date for action by the Governing Board of Respondent District was September 12, 1996. On or about August 29, 1996, Respondent District mailed a copy of the same staff report and notice of rights to interested third parties, including Petitioners. The notice of rights provided, among other things: PETITION FOR FORMAL ADMINISTRATIVE PROCEEDINGS Any person whose substantial interests are or may be affected by the action which is proposed in the enclosed Notice of Proposed Agency Action/Staff Review Summary, may petition for an administrative hearing ... Petitions for administrative hearing on the above application must be filed within four- teen (14) days of actual receipt of this Notice of Proposed Agency Action. Failure to file a petition within this time period shall constitute a waiver of any rights such person may have to request an administrative determination (hearing) under section 120.57, Florida Statutes, concerning the subject permit application. Petitions which are not filed in accordance with the above provisions are subject to dismissal. There is no dispute that this provision is clear and unambiguous. Petitioners did not receive the mailed staff report and notice of rights. Before the filing of Respondent GL Homes' permit application, Petitioners had been involved with other permit applications which had come before Respondent District and had filed petitions for administrative hearings on other applications. Petitioners were well familiar with Respondent District's process, involving permit applications, its staff reports and the notice of rights. Sometime during the first week of September 1996, while at the Respondent District's office, Petitioner Durando obtained a copy of the staff report and notice of rights. Petitioner Durando appeared at the September 12, 1966, Governing Board meeting even though the permit application had not appeared on any agenda for the Governing Board that she had received. The permit application was to be heard as part of a list of "Add On Items", which did not provide prior notice of these items to the public. At the meeting of September 12, 1996, Petitioner Durando obtained again a copy of the staff report. However, the staff report contained a cover memo, dated September 9, 1996, to the Governing Board from the Director of Respondent District's Regulation Department, with four maps included. The cover memo was written in layman's terms and was a summary of the staff report. The cover memo contained no modification of the staff report. Moreover, the staff report attached to the cover memo contained no modifications. Cover memoranda are routinely prepared for the members of the Governing Board for items on which public comment is expected. Public comment was expected on Respondent GL Homes' permit application. A problem with notice to the public, regarding the Governing Board considering Respondent GL Homes' permit application at the September 12, 1996, was brought to the attention of the Governing Board. On the recommendation of Respondent District's staff, the Governing Board decided not to address the permit application at that meeting but to re-notice the public hearing on the permit application for October 10, 1996. Petitioner Durando was concerned as to whether Respondent District had to re-publish the staff report and notice of rights. She made an inquiry to a member of Respondent District's staff regarding this issue, who was unsure if a re-publication had to occur and informed Petitioner Durando of his uncertainty. Later in the evening of the same day of Petitioner Durando's inquiry, that same member of Respondent District's staff left a message on Petitioner Durando's answering machine that no re-publication of the staff report and notice of rights was required since there was no modification or change of the staff report. Also, prior to departing the September 12, 1996, Governing Board meeting, Petitioner Durando inquired of Respondent District's counsel as to when was the due date for filing a petition for an administrative hearing on Respondent GL Homes' permit application. Respondent District's counsel informed her that she must file her petition within 14 days of receiving a copy of the staff report and notice of rights. Petitioner Durando had attended other Governing Board meetings in the past which contained permit applications as agendaed items and as add on items. No evidence was presented to show that the prior permit applications considered by the Governing Board at its meetings did not contain a cover memo from Respondent District's staff, which summarized in layman's terms the staff report. Petitioner Durando believed that she had 14 days from September 12, 1996, in which to file a petition with Respondent District for an administrative hearing on Respondent GL Homes' permit application. She filed a petition on behalf of the Petitioners on September 26, 1996. Neither prior to nor subsequent to the September 12, 1996, Governing Board meeting was a modification made to the staff report or a second staff report prepared. Petitioners' actual receipt of the proposed agency action was sometime during the first week of September 1996. If Petitioners' actual receipt was on September 2, 1996, their petition for an administrative hearing must have been filed on or before September 16, 1996. If Petitioners' actual receipt was on September 6, 1996, their petition must have been filed on or before September 20, 1996. At all times material hereto, Petitioner Durando was not an attorney. Subsequent to filing the petition for an administrative hearing, Petitioners obtained the services of an attorney.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the petition for an administrative hearing as untimely. DONE AND ENTERED in this 13th day of November 1996 in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1996.
The Issue Whether Florida Administrative Code Rules 61G15- 21.009(1)(b) and (3) and 61G15-20.0015(3) are invalid exercises of delegated legislative authority.
Findings Of Fact Based on the stipulated facts submitted by the parties and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Board of Professional Engineers ("Board") is the state agency responsible for the licensure and regulation of professional engineers in Florida. §§ 471.007, 471.008, 471.013, and 471.031, Fla. Stat. (2005).1 Mr. Hursh is an individual who applied for licensure by endorsement with the Board to be licensed as a professional engineer. Mr. Hursh is licensed in another state, so he applied for licensure by endorsement pursuant to Section 471.015(3)(b), Florida Statutes. Mr. Hursh failed to pass the required Principles and Practice Examination, provided by the National Council of Examiners for Engineers and Surveyors ("NCEES") five times since October 1, 1992, in an effort to become licensed as an engineer in Florida. In April 2004, Mr. Hursh passed the NCEES examination in Delaware, met Delaware's other licensing criteria, and, on July 14, 2004, was issued a license to practice engineering by the State of Delaware. In August 2004, Mr. Hursh filed his application for licensure by endorsement with the State of Florida and subsequently provided all supporting documentation as requested by the Board, including a Verification of Licensure from the Delaware Association of Professional Engineers. Mr. Hursh did not provide a copy of the Delaware licensing requirements. On January 19, 2005, the Application Committee of the Board denied Mr. Hursh's application, citing as the reason "5 time failure - need 12 hrs. of courses prior to endorsement." Delaware's licensing criteria was never reviewed by the Board to determine if the Delaware licensing criteria was substantially the same as Florida's licensing criteria. On February 10, 2005, the Board filed a Notice of Denial of Mr. Hursh's application for licensure by endorsement, citing as the basis for the denial that Mr. Hursh had failed the examination five times and needed to meet the additional college credit requirements of Section 471.013, Florida Statutes, and Florida Administrative Code Rule 61G15.21.007.
The Issue Did Respondent, William D. Going, willfully and intentionally violate Florida Statutes and Southwest Florida Water Management District (District) rules regulating well construction? If he did, what corrective action is appropriate?
Findings Of Fact William Going is a licensed water well contractor. He has held License Number 1564 since 2007. Mr. Going is a managing member of Going Irrigation, Inc., and conducts business under that name. Mr. Going constructed four sand point irrigation wells at a residential property in St. Petersburg, Florida. He did not have and had not applied for a Well Construction Permit (WCP). 1 All citations to Florida Statutes are to the 2020 codification unless noted otherwise. 2 The findings are based upon the evidence admitted at the hearing and the stipulations of the parties. Mr. Going did not call or otherwise contact the District to request a WCP. The District operates an online permitting system called the Water Management Information System (WMIS). The District will issue a WCP based upon a telephone call, an application on its website, a faxed application, a mailed application, or a hand-delivered application. The District routinely issues permits within two hours of receiving an application, often within ten minutes to half an hour. The District's application system operates from 7:00 a.m. to 10:00 p.m. It is infrequently offline for a few hours. While quick, the process reviews significant information. It verifies that the well location is sufficiently distant from septic systems, verifies construction methods and materials, and verifies, if the well is for drinking water, that the well is not too close to a contamination site. Mr. Going is a registered and experienced user of WMIS. The District learned of the unpermitted wells on April 28, 2020, when it received an anonymous complaint. On May 5, 2020, approximately ten days after he constructed the wells, Mr. Going submitted WCP Application 889173 for construction of the four already completed sand point irrigation wells. He did not disclose that they were already completed. He falsely represented them as proposed. The District approved the application on May 6, 2020, and issued WCP 889173 to Mr. Going. On June 11, 2020, Mr. Going submitted four Well Completion Reports for the wells, falsely representing that each was completed on May 7, 2020. This was more than 30 days after Mr. Going completed the wells. Mr. Going claimed at the hearing that he tried to apply for a WCP for four or five days before constructing the wells but was locked out of the WMIS. Mr. Going said that his son usually obtained permits online for the company. He also claimed that he tried to apply online on April 24 and 25, 2019. His claims are not persuasive. There is no question that Mr. Going knew the requirements for obtaining a permit and reporting completion. In 2009, in Order No. SWF 09- 017, the District imposed a $500.00 fine and assessed five points against his license for an almost identical offense. In that case, Mr. Going also constructed a well without a permit from the District or applying for a permit. In that case, like this one, he sought to excuse failure to apply for a permit by claiming difficulties with the website. In that case he blamed his wife's unfamiliarity with computers, rather than his own, for failure to apply. In that case, like this one, he applied for and obtained a permit after constructing the well. Mr. Going knowingly and willfully constructed four unpermitted wells, filed a WCP application more than thirty days after he completed the wells, and misrepresented the dates of completion in the WCP completion reports that he filed with the District. Mr. Going tries to characterize his after-the-fact misrepresentations as mitigation. But they were not. Mitigation would have been contacting the District to advise it of the wells' unpermitted construction and the asserted justification for it. Furthermore, his misrepresentations deprived the District of the chance to prevent construction of the wells using improper materials or near a septic tank or contaminated location.
The Issue Whether a consumptive-use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant, City of Winter Haven, submitted application No. 7500096 for a consumptive-use permit for an average daily withdrawal of 18 million gallons to be withdrawn from the Florida Aquifer in Polk County, Florida. The application is for an existing use and withdrawal is for public supply from twelve (12) withdrawal points. The center of withdrawls will be located at Latitude 25 degrees 01' 40" North, Longitude 81 degrees 43' 54" West in Polk County, Florida. Notice of the September 3, 1975 hearing was published in a newspaper of general circulation, to-wit: The Lakeland Ledger, published daily in Lakeland, Florida, on August 9 and 16, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application and map of the premises, the legal description, receipt of certified mail, copy of notice, and the affidavit of publication were received without objection and entered into evidence. No letters of objection were received, however, at the hearing the recommendation for granting the permit was conditioned upon certain things being done by the City and Mr. Cecil Thurmond, the Assistant City Engineer for the City of Winter Haven, and Mr. Jegg McKibbon, Assistant County Attorney for Polk County, objected to the conditions and it was decided that this Recommended Order would not be issued until the parties could agree and stipulate on conditions to be met by the permittee. The stipulations were entered into and are attached together with pertinent maps to this report and made a part hereof.
Recommendation Grant the requested consumptive-use permit as requested. DONE and ORDERED this 29th day of March, 1976. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. Cecil Thurmond Assistant Engineer City of Winter Haven 245 22nd Street, S.W. Winter Haven, Florida Jay T. Ahern, Esquire Staff Counsel Southwest Florida Water Management District Post Office Box 457 Brooksville, Florida 33512 STIPULATIONS CITY OF LAKELAND #7500098 and CITY OF WINTER HAVEN #7500096 Totalizing flow meters will be installed on all production wells, monthly flow meter reports will be submitted in writing to the District On April 15, July 15, October 15 and January 15, for each respective proceeding quarter. The permit will expire On December 31, 1980.
Findings Of Fact The Dunes Golf and Country Club, Sanibel, is a partnership owned by John K. Kontinos and William R. Frizzell. They operate a nine hole golf course consisting of 65 acres of the eastern portion of Sanibel Island. The golf course is open to the public and, during the winter season, some 150 to 175 persons utilize the facility daily, but in the period May--November, it is utilized by only about 15 or 20 persons per day. The golf course is presently irrigated by water obtained from the lower Hawthorn and Suwannee aquifers through a well that is approximately 737 feet deep. On the days that water is pumped from the well, the pumping duration is from 8 to 12 hours per day, but the monthly hours during which pumping occurs averages approximately 155 hours per month. There is another existing well in another portion of the applicant's property which extends 896 feet into the Suwannee aquifer. The well presently in use (well number 1) has 546 feet of casing and the well that is not in use (well number 2) has 700 feet of casing. (Testimony of Kontinos, Exhibits 2, 4) On December 15, 1977, the Dunes Golf and Country Club submitted an application to the South Florida Water Management District for a consumptive use permit to withdraw 320 acre feet of groundwater per year to irrigate an area of approximately 109 acres. The intent of the application was to obtain a sufficient quantity of water to irrigate the golf course which the applicant intends to enlarge to consist of 18 holes. The additional 9 holes would cover some 44 acres and well number 2 is intended to be activated to provide additional water for this purpose. (Testimony of Kontinos, Keiling, Exhibits 1- 2) The South Florida Water Management District issued the required public notice of the application on March 30, 1978, and objections to the application were received by that agency from the City Council of Sanibel, the Island Water Association, Inc., and George R. Campbell. Public notice of hearing on the application was duly published on March 30, 1978. (Exhibits 5-7) The staff of the South Florida Water Management District reviewed the application and recommended continuation of the applicant's existing use from the lower Hawthorn Formation and use of additional irrigation water from the Suwannee aquifer in the total amount of 320 acre feet annually. It also recommended that the issuance of a permit should be conditioned in various respects to include semiannual submission of water quality data and pumpage records for each well, installation and maintenance of well controls, and repair or replacement of well casings, valves or controls that leak or become inoperative. The staff further recommended that maximum monthly withdrawals from the lower Hawthorn Formation be limited to 7.5 million gallons and 7.6 million gallons from the Suwannee Formation. At the hearing however, the South Florida Water Management District representative changed these recommendations to 8.9 MO and 6.1 MG respectively. Additionally, the initial recommendation of 320 acre feet annual withdrawal was reduced to 200 acre feet. This amount is considerably less that the average of 600 acre feet used on other comparably sized golf courses. Further the staff representative recommended at the hearing that a further condition be attached to the issuance of the permit; i.e., Condition 15, which requires the permittee to submit analyses of total dissolved concentrations in water samples from each well within 30 days of permit issuance and, if such concentration exceeds 4,000 MG/L, logging procedures as to the affected well will be required with necessary safeguards to be employed to eliminate any interaquifer leakage. (Testimony of Gleason, Exhibit 4) The objections of the City of Sanibel and the Island Water Association, Inc. involved concerns that further withdrawals from the lower Hawthorn aquifer will affect the availability of water which is treated by the water association for general island use. In addition, there is concern about possible contamination of the lower Hawthorn aquifer from interaquifer leakage. The Water Association is a member-owned cooperative that is not under the jurisdiction of the municipality. It is concerned about the draw down in the water table which will be occasioned by additional withdrawals by the applicant. It therefore believes that pumping tests should be conducted prior to the issuance of a permit to provide information concerning the capacity and safe yield of the wells. Although an Association expert testified that the proposed Dunes' withdrawal would create a cone of depression that would extend into and influence the existing Water Association wells, the evidence shows such influence to be minimal due to the fact that the Dunes wells are almost three miles away from the nearest Association well. Further, due to the limited time that the Dunes wells are pumped each day, the aquifer recovers to a certain extent during other hours. Although concerns are felt by the Water Association that water quality will be affected because of leakage from the Suwannee aquifer to the lower Hawthorn aquifer due to possible corrosion of steel casings in the Dunes wells, no evidence was presented that such casings are in fact defective and will contribute to degradation of water quality because of additional withdrawals. The additional special condition placed upon the issuance of a permit by the South Florida Water Management District will require correction of any such leakage that is discovered in the future. Previous studies show that the lower Hawthorn aquifer is separated from the Suwannee aquifer by the Tampa Limestone Formation which would slow down any entry of poorer quality water into the Hawthorn aquifer. It is found that the lesser amounts of water recommended by the South Florida Water Management District at the hearing will further reduce the likelihood of water quality degradation or draw down in other Island wells. (Testimony of Butler, Holland, Nuzman, Gleason, Exhibits 6, 8-13) Ecological concerns were expressed at the hearing by a public witness as to the wastefulness of irrigating golf coup Yes and the requirement for fertilizer in sandy soil which causes leaching of nutrients after heavy water use. (Testimony of Webb)
Recommendation That a permit be issued to the applicant authorizing the consumptive use of the quantity of water recommended by the South Florida Water Management District staff, subject to the recommended conditions thereto. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: John H. Wheeler Post Office Box V West Palm Beach, Florida 33402 James D. Decker, Esquire Post Office Box 200 Ft. Myers, Florida 33902
The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Applicant applied for a permit for public supply of water from a single well together with off-site, sewage treatment for an existing use in a housing development known as "Cherry Creek". The well site i1is located in the Hillsborough River Basin on a 97.9 acre tract of land in Hillsborough County. The application requests a consumptive-use permit authorizing the average daily withdrawal of water from a single well of up to a maximum of 99,400 gallons. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on April 11, 18, 1975, pursuant to Florida Statutes, 373.146. Notices of said public hearing were sent by certified mail to LaMonte-Shimberg Corporation; Diaz, Seckinger and Associate, Inc.; and Mr. John Logan. No letters of objection were received. Newspaper affidavit was received in evidence together with copies of the application, receipts for certified mail and a map of the premises all marked "Exhibit 1". A map depicting the location of the sewer plant and perculation pond was received in evidence and marked "Exhibit 2". The witnesses were duly sworn and agreement reached on each point of applicant except Mr. Szell, hydrologist for the Governing Board, objected to the requested average daily withdrawal citing as 97,850 gallons per day, a figure the Board could recommend whereas the applicant requested 99,400 gallons per day. Mr. Ahern enumerated the conditions for a consumptive-use permit as required by Chapter 16J-2.11, Rules of the Southwest Florida Water Management District, and witnesses for the Board replied in a manner receptive to granting the application, except as delineated in finding (8). No objections were registered by applicant. The undersigned Hearing Officer requested and the witnesses for the parties agreed to a meeting to try to settle points in dispute and to furnish written results of such meeting to the Hearing Officer within ten (10) days. The permit application was changed and the Governing Board agreed to such changes as shown by exhibit marked "Supplement 1". The applicant agreed to such changes as shown by exhibit marked "Supplement 2".
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application 7500137 seeks an average daily withdrawal of 2.4 million gallons of water with maximum daily withdrawal not more than 2.88 million gallons from an existing well in order to process phosphate and reclaim land. This is an existing use for mining operations located southwest of Lakeland, Florida, on land consisting of 1531 acres. Notice was published in a newspaper of general circulation, to wit: The Lakeland Ledger, on November 11 & 18, 1975, pursuant to Section 373.146, Florida Statutes. The application and affidavit of publication were admitted into evidence without objection as Composite Exhibit 1, together with correspondence from James R. Brown, Vice President, Dagus Engineers, Inc., dated November 19, 1975 to the Southwest Florida Water Management District. No objections were received by the Water Management District as to the application. Mr. George Szell, hydrologist of the Water Management District testified that the application met the conditions for a consumptive use permit as set forth in Chapter 16J-2.11, Florida Administrative Code, except that the quantity of water requested to be withdrawn is 41.06 per cent over the maximum average daily withdrawal permitted under the water crop theory as set forth in Section 16J-2.11(3), F.A.C. However, the Water Management District witness recommended waiver of that provision since the mining operations will be concluded in several years and thereafter the water table and hydrologic conditions will return to normal. The Water District staff recommended approval of the application with the condition that a meter be installed on the well and that the applicant be required to take monthly readings thereof and submit quarterly reports of the readings to the District. The applicant's representative agreed to these conditions at the hearing.
Recommendation It is recommended that Application No. 7500137 submitted by Poseidon Mines, Inc., for a consumptive water use permit be granted on the condition that a meter be installed on the applicant's well and that monthly readings be taken and submitted quarterly by the applicant to the Southwest Florida Water Management District. It is further recommended that the Board of Governors of the Southwest Florida Water Management District, pursuant to Rule 16J-2.11(5), for good cause, grant an exception to the provisions of Rule 16J-2.11(3), as being consistent with the public interest. DONE and ENTERED this 19th day of January, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J.T. Ahern, Staff Attorney Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Poseidon Mines, Inc. P.O. Box 5172 Bartow, Florida
The Issue Whether a consumptive-use permit for the quantities of water as applied for should be granted.
Findings Of Fact Application No. 7500046 requested water from one (1) well for the purpose of irrigation which is an existing use. The center of withdrawals will be located at Latitude 27 degrees 30' 6" North, Longitude 81 degrees 44' 54" West in Hardee County, Florida. Total continuous acreage is 80 acres. Use is for not more than 15,000,000 gallons of water per year and not more than 1,152,000 gallons of water during any single day to be withdrawn from the Florida Aquifer. Notice was published in a newspaper of general circulation, to-wit: The Herald-Advocate, on May 29 and June 5, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were duly sent by certified mail as required by law. The application and map of the premises, the legal description, the receipt of certified mail, copy of the Notice and affidavit of publication were received without objection and entered into evidence as Exhibit 1. No letters of objection were received. The applicant has previously written a letter requesting the application to be changed from 15,000,000 gallons to 30,000,000 gallons of water per year. He stated that he wished to amend the application to increase it by that amount. The witnesses were duly sworn and agreement was reached on each point enumerated as required by Rule 16J-2.11, Rules of the Southwest Florida Water Management District and Chapter 373, Florida Statutes, as pertained to the application on hand. The staff recommended that the application for the amount of water requested be granted but that the additional amount requested by applicant by letter of June 8, 1975, to the Southwest Florida Water Management District be denied inasmuch as said amount would exceed the water crop principle.
The Issue Whether a permit should be issued for the construct in of a road over a marsh area surrounding Lake Susan in order to realign a clay road known as Hull Road near Clermont, Lake County, Florida.
Findings Of Fact On October 9, 1963, the Southwest Florida Water Management District adopted Resolution No. 63 setting forth a declaration of "The Works of the District". Rule 16J-1.03 was promulgated implementing Chapter 373, Florida Statutes, and was readopted October 5, 1974, and amended December 31, 1974. The Lake Susan area, in question here, is within the "work of the district" because it is included in the area encompassed in Rule 16J-1.03(2), "The Oklawaha River, its natural floodway and tributaries, connecting channels, lakes and canals". Lake Susan and its surrounding marshlands is subject to Rule 16J-1.06, which requires, in part, that an application be made before placing fill materials in the marshlands therein and said rule conditions a permit on whether there will be adverse effects by drainage or inundation or will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned by applicant. On November 12, 1968, the Board of County Commissioners of Lake County, Florida, adopted a resolution which stated in part: "BE IT RESOLVED by the Board of County Commissioners of Lake County, Florida, that the cutting and removal of natural vegetation from the shallow areas of our lakes and streams, except as hereinafter provided, be discouraged; and that the Governing Authorities having jurisdiction over such areas be requested to limit the removal and clearing of such vegetation; that only such permits for the disturbance of vegetation be granted for proper access to and from the shoreline of property owners to clear waters retaining as much of the natural vegetation as is possible." This resolution has never been rescinded. Hull Road is a light duty, all weather, improved service, county maintained, dead end, clay road. The road serves residential and agricultural interests as well as lake recreational purposes. Some of the lands the road serves is now being developed by subdivision developers. The Lake County Board of County Commissioners propose to realign Hull Road across the marsh and water section of the southernmost tip of Lake Susan by filling and removing from the flood plain approximately 1.5 acres for a roadway, thereby draining through the culvert some 38 acres. The proposed work requires the construction of an embankment, approximately 66 feet wide and 800 feet long. The road plan is in accordance with the Florida Department of Transportation's criteria for similar roads. No permit was applied for or secured before work began on April 9, 1975 or before a fill of some 400 feet in length and 66 feet in width had been placed. Work was ordered stopped by permittee upon discovery of said activity on April 24, 1975. Applicant had not requested a permit under the belief that the area was not navigable and that therefore no permit was needed. The fill is standing in the condition and state of construction as it was when construction was ordered discontinued on April 24, 1975. The applicant contends that: (1) the present road is hazardous to the travelling public because of two sharp curves thereon, (2) the residents and the agricultural and recreational interests would be better served by a straight road rather than the existing road, (3) one alternative to the proposed realignment was to straighten the existing curve without filling in the marsh, but this alternative was abandoned for the reason that some 14 citrus trees would have to be removed and the county would have to reimburse the property owners for their right of way. A second alternative to the proposed plan which would straighten the hazardous curves would have involved fill of the marsh along the edge of the existing road and would have involved reimbursement to property owners, (4) it is the firm policy of the Board of County Commissioners of Lake County that the county will not buy right of way for county roads and that the county will not use its power of eminent domain to condemn right of way on a road, (5) no harmful effect would be done to the lowlands so long as culverts were part of the construction plans for that portion of the road that would cross the marshlands. The Southwest Florida Water Management District contends that: (1) the applicant county failed to make an application and secure a permit before beginning to fill a marshland area that is within the work district of the permittee board as defined in Rule 16J-1.03, (2) the fill for the proposed road realigning Hull Road across the marsh area will place fill within the mean annual flood plain of a lake and will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned, leased or controlled by the applicant, (3) realignment of Hull Road to the marsh and waters of Lake Susan is not a reasonable and beneficial activity and is in violation of both the resolution of Lake County dated November 12, 1968, and the rules of the permittee, i.e., 16J-1.01(3)(4), (4) although an application has now been made for a permit for the proposed road, alternatives to filling said marshland should be explored fully before the Board is requested to waive the rules of the District. It has not been shown that the alternative routes would not better serve the safety interests of the public using the road and be more in keeping with the conservation policies of both the applicant and the permittee. Based on the foregoing it is the finding of the Hearing Officer that (1) the realignment of Hull Road is in conflict with the policy of the county established by resolution on November 12, 1968, (2) the realignment of the road across the waters and marshland of Lake Susan would increase the safety of Hull Road by eliminating two hazardous curves on the roadway in its present condition and location, (3) the alternative route which would straighten the curves without filling in the marshland is more in keeping with the previous resolution of the county and is consistent with the work of the District as promulgated in the cited rules of the permittee. No cost estimate has been made on alternative routes and no traffic studies have been made to determine the average flow of traffic.
