The Issue The issue in this case is whether Niagara Bottling Company, LLC (Niagara), is entitled to Consumptive Use Permit (CUP) No. 114010 issued by the St. Johns River Water Management District (District), which authorizes Niagara to withdraw and use 484,000 gallons per day (gpd) of groundwater to produce bottled water at a facility in Lake County.
Findings Of Fact The Parties Groveland is a municipal corporation located in Lake County. Niagara is a water bottling company registered to do business in Florida. Niagara currently owns and operates six water bottling facilities in the United States, including a bottling facility in unincorporated Lake County, northwest of Groveland. Niagara currently operates one bottling line at its Groveland facility, which can be used to bottle either spring water or purified water. The District is a special taxing district created by the Florida Water Resources Act of 1972, with jurisdiction over a sixteen-county area that includes Groveland and the site of Niagara’s proposed water withdrawal. The District administers a permitting program for the consumptive use of water. The Proposed Permit The top geologic layer in the region is the surficial aquifer, which starts at the ground surface and extends down about 50 feet to the Intermediate Confining Unit. Below the Intermediate Confining Unit is the Upper Floridan Aquifer, which starts at a depth of about 150 feet and extends downward to about 550 feet below the ground surface. Below the Upper Floridan Aquifer is the Middle Semi-Confining Unit, which extends down another 450 feet. Below the Middle Semi-Confining Unit is the Lower Florida Aquifer, which extends down to about 2,200 feet below sea level. Nearly all of the groundwater withdrawn for consumptive uses in central Florida comes from the Upper Floridan Aquifer. Groveland’s public water supply wells, for example, withdraw water from the Upper Floridan Aquifer. The proposed CUP authorizes Niagara to withdraw 484,000 gpd from the Upper Floridan Aquifer to produce bottled water. The CUP authorizes the installation of three water supply wells for the facility: a 16-inch production well, a 16-inch backup well, and a 4-inch supply well for domestic uses at Niagara’s facility. Of the 484,000 gpd that Niagara would withdraw, approximately 454,000 gpd would be treated and bottled as “purified water” and approximately 30,000 gpd would be used for cooling some of the equipment used in the bottling process. Under federal regulations, bottled water sold as purified water must meet certain maximum contaminant levels, including a total dissolved solids (TDS) level of less than 10 parts per million. By regulation, purified water is distinct from tap water and from bottled spring water. Niagara would treat the groundwater by filtration and reverse osmosis (RO), primarily to remove TDS. At a customer’s request, minerals can be added to the water to enhance taste. Also before the water is bottled, it disinfected with ozone. The RO process at the Niagara facility is projected to turn 454,000 gpd of groundwater into about 363,000 gpd of purified drinking water for bottling and 91,000 gpd of RO concentrate/wastewater. Reject water from the cooling water system would add some additional wastewater. Niagara has arranged to send its RO concentrate to the Frozen Grove Wastewater Treatment Facility to be blended and used for irrigation at the Mission Inn Golf and Tennis Resort in Howey-in-the-Hills. The City of Minneola has also agreed to take Niagara’s RO concentrate. Niagara and the District requested that the proposed CUP be modified to add the City of Minneola wastewater treatment facility as an alternative recipient for Niagara’s RO concentrate. Niagara and the District propose the following change to Condition 10 of the Technical Staff Report: Withdrawals of groundwater from Well Nos. 1 (GRS Id No 145009) and 2 (GRS Id No 145010 for commercial/industrial type use shall not be initiated until Niagara Bottling LLC and the Frozen Grove WWTF or alternatively Niagara Bottling LLC and the City of Minneola WWTF have obtained all necessary permits to create and use the blend of process waste water (R/O concentrate) and reclaimed water for irrigation, as described in Attachment 4 of the application materials submitted to the District on May 9, 2008 for the Frozen Grove WWTF and the material submitted to the District on March 4, 2009 for the City of Minneola WWTF. The permittee shall provide documentation to the District that the necessary permits have been obtained within 30 days of initiating withdrawals of groundwater for commercial/industrial type use from Well Nos. 1 (GRS Id No 145009) and 2 (GRS Id No 145010). The proposed CUP includes a conservation plan with provisions for monitoring water use, repairing leaks, conducting quality assurance inspections, using totalizing flow meters, and minimizing spillage. Niagara’s proposed CUP contains conditions for environmental monitoring. Niagara would be required to collect water level and rainfall data, and basic vegetation and soils conditions at Lake Arthur. Lake Arthur was selected for monitoring because hydrologic modeling indicated that Niagara’s greatest potential impact to the water table was near Lake Arthur. The monitoring is intended to detect any unexpected adverse environmental impacts caused by Niagara’s proposed withdrawal so that they can be addressed. The proposed permit has an expiration date of December 31, 2013. Stipulations and Withdrawn Claims Before the final hearing, Groveland withdrew a number of allegations made in its Second Amended Petition for Hearing. Groveland stated that its intent was to withdraw the claims that its substantial interests were affected by Niagara’s proposed groundwater withdrawal. Groveland no longer contends that it would be specially injured by the proposed water use. In the parties’ Joint Pre-Hearing Stipulation, Groveland stipulated that Niagara’s proposed water use would not interfere with any legal uses of water. Groveland also stipulated that Niagara’s proposed use would not cause adverse or significant impacts to lake stages or vegetation, would not impact adjacent land uses, would not cause significant saline water intrusion, would not cause or contribute to flood damage, would not harm the quality of the water source, would not cause or contribute to a violation of state water quality standards, would not impact minimum flows and levels established by the District, would not cause the water table or aquifer potentiometric surface to be lowered so that lake stages or vegetation would be adversely and significantly affected, would not affect spring flows or water levels, and would not use water reserved by the District from consumptive use. The record evidence supports the stipulations identified above. Economic and Efficient Utilization The Upper Floridan Aquifer is capable of producing the requested amount of water. Florida Administrative Code Rule 40C-2.301(4)(a) and Section 10.3(a) of the Applicant’s Handbook require that a water use be in such quantity as is necessary for economic and efficient utilization. The District’s determination of economic necessity focuses on preventing “water banking,” which is securing rights to water in excess of an applicant’s actual needs, for possible future use. Niagara’s 484,000 gpd allocation is based on the peak maximum daily output of the processing equipment operating at 74 percent capacity, which is the average capacity that Niagara achieves at its bottling facilities. Groveland contends that the consumer demand for bottled water could be met by other water bottlers and, therefore, there is no need for Niagara’s proposed withdrawal. However, no statute or rule requires Niagara to demonstrate that this particular CUP is the only means to meet the consumer demand for bottled water. The District’s evaluation of need focuses on the applicant’s need for the requested volume of water. In determining whether a requested use of water is necessary, the District does not evaluate the appropriateness of the associated business or activity, but only whether the applicant can reasonably be expected to use the requested volume of water, and do so efficiently based on industry standards. The evidence presented regarding the bottled water market and Niagara’s position in the market was sufficient to demonstrate that the requested volume of water is necessary through the duration of the CUP. The 30,000 gpd that Niagara would use for its cooling system is a reasonable amount of the water for that purpose. The technology to be used at Niagara’s facility is state-of-the- art, using constant online monitoring to reduce reject water. The cooling equipment and its operation have been designed to minimize water use. RO is the industry treatment standard for production of purified bottled water. It is the most cost-efficient treatment method in terms of energy use and water consumption. The proposed RO equipment and its operational parameters are designed to optimize treatment efficiencies. The volume of RO concentrate that would be produced depends on the TDS levels in the groundwater. The estimate of 91,000 gpd of RO concentrate is conservatively high, based on the TDS levels in groundwater samples. The actual volume of RO concentrate produced by Niagara could be smaller. Groveland was critical of Niagara’s wastewater volume, contending that the conversion of 91,000 gpd of groundwater to wastewater is inefficient and contrary to the public interest. The fact that Niagara’s bottling process would produce 91,000 gpd of wastewater does not make it inefficient. Nearly every commercial and industrial water use has a wastewater component. In the context of water bottling processes and water treatment systems, Niagara’s operation is efficient. Groveland asserts that sending Niagara’s RO concentrate to the Mission Inn golf course or the City of Minneola for irrigation purposes is inefficient because a large portion of irrigation water is usually lost to evaporation and does not recharge the aquifer. This assertion fails to account for the fact that every gallon of RO concentrate used for irrigation reduces by one gallon the volume of groundwater that would otherwise be withdrawn for irrigation. Using Niagara’s wastewater for irrigation contributes to the efficiency of Niagara’s proposed use. There is typically a deficit of reclaimed water from public wastewater treatment systems in the summer when the demand for reclaimed water for irrigation and other purposes increases. Niagara’s supply of RO concentrate, however, would remain constant throughout the year. Mission Inn and Minneola would benefit if they were able to use Niagara’s RO concentrate. Niagara’s conservation plan for water use at its facility is equal to or better than the conservation plans incorporated into the CUPs that the District has issued to other beverage bottlers. Niagara’s proposed use was shown to be of such a quantity as is necessary for economic and efficient utilization. Sources of Lower Quality Water Florida Administrative Rule 40C-2.301(4)(f) states that reclaimed water must be used if it is “readily available.” Section 10.3(g) of the Applicant’s Handbook requires that the “lowest acceptable quality water source, including reclaimed water or surface water” must be used for a consumptive use, unless the applicant demonstrates that the use of a lower quality water source is not economically, environmentally, or technologically feasible. The requirement to use a lower water quality source, however, is not applicable when the water is for “direct human consumption” or human food preparation. § 10.3(g), Applicant’s Handbook. Groveland argues that the word “direct” should mean unaltered and, therefore, Niagara’s bottled water is not intended for direct human consumption because the water is treated before it is bottled. The District, however, does not interpret or apply the term “direct human consumption” to mean drinking water directly from the source without treatment. In the case of the water delivered to households and businesses by public water suppliers, which also must be treated before it is delivered, the District regulates the water as being for direct human consumption. The fact that Niagara would filter the groundwater, apply RO treatment, add acid to prevent mineral buildup in the RO equipment, and add minerals for taste if requested by customers, does not disqualify Niagara’s bottled water as being for direct human consumption. Because 454,000 gpd of Niagara’s proposed water withdrawal would be processed for direct human consumption, Niagara did not have to seek to use a source of lower water quality for that volume. The requirement to use available sources of lower quality water would apply to the 30,000 gpd that Niagara intends to use for cooling. There are technical and economic problems associated with using water of lower quality for the cooling process at the Niagara facility because higher TDS levels would damage the cooling equipment. Using water with higher TDS levels would also require greater volumes of water to achieve cooling. Niagara’s cooling system is designed to reject water when the dissolved solids reach a certain high level, and to replace the reject water with fresh water. Operating at higher dissolved solid levels would cause the system to reject water more frequently, so greater volumes of water would be needed for cooling and greater volumes of wastewater would be generated. Using surface water from the St. Johns River, which has TDS levels much higher than in the groundwater, would require twice as much water to operate Niagara’s cooling system. In addition, a 44-mile pipeline would be needed to convey water from the St. Johns River to the Groveland facility, which would involve much higher costs. Seawater has even higher TDS levels and would require desalinization and a different cooling system. Using seawater would require much greater volumes of water for treatment and cooling. Disposal of the brine concentrate generated by the treatment process would create additional costs. The use of seawater would require the construction of a 120-mile pipeline, which would involve large capital and operating costs. Groveland insists that the much higher costs associated with these sources of lower quality water are still economically feasible for Niagara based on Niagara’s projected income from its bottling operations. The District does not determine feasibility based on the balance sheet of the individual permit applicant. The District evaluates relative costs of alternative sources in the context of normal practices and expected benefits. Reliable volumes of reclaimed water to use in Niagara’s cooling system are not readily available to Niagara from domestic wastewater treatment facilities in the area. The spring water sources that Niagara is currently using are not sources of lower quality water. These sources are of equivalent quality to the groundwater that Niagara proposes to withdraw. Groveland contends that Niagara did not investigate the quality of the Lower Floridan Aquifer as a potential source of lower water quality water for Niagara’s proposed use. Groveland believes, but did not prove, that the Lower Floridan has lower quality water. Studies conducted by the U.S. Geological Survey indicate that the water quality of the Lower Floridan Aquifer is about the same or better quality than the quality of the water in the Upper Floridan Aquifer. Water quality data from a Lower Floridan well in the vicinity also indicates that the quality of the water in the Lower Floridan is as good as, or better than, the water quality in the Upper Floridan in this area. Withdrawals from the Lower Floridan create a risk of saline water intrusion into the fresh portion of the Lower Floridan or Upper Floridan. Niagara demonstrated that it is not technically nor economically feasible to use a source of lower quality water for its cooling water. Individual Effect on Wetlands and Lakes To identify the “zone of influence” of Niagara’s proposed withdrawal of water and to assess the individual and cumulative effects of the drawdown associated with the withdrawal, Niagara’s consulting hydrogeologist used a steady- state numerical groundwater model developed by the District, known as the East Central Florida (ECF) groundwater model. It is a steady-state model, which produces a value that represents a long-term average effect. The ECF model predicts the level of drawdown in the surficial aquifer. The model assumes that wetlands and other surface waters are directly connected to the surficial aquifer so that a given drawdown of the surficial aquifer causes the same drawdown of the water levels in wetlands and other surface waters. The ECF model is calibrated to water level data from 1995. A drawdown predicted by the model is a drawdown from 1995 water levels. The ECF model results are graphically depicted as drawdown contours that are overlaid on aerial photography. The District considers the condition and functions of the surface waters in and around the withdrawal site to determine how they might be affected by a predicted drawdown. The dominant surface waters in the area of the proposed withdrawal are sand hill lakes. There are few wetlands. In sand hill lake systems, water table levels fluctuate widely, as much as eight or ten feet. Consequently, these systems are colonized by herbaceous plants that are adapted to widely fluctuating water levels. The wetlands and lakes in the area are not currently showing signs of environmental harm as a result of existing groundwater withdrawals. Niagara’s modeling predicted that the proposed water withdrawal, by itself, would cause a maximum drawdown in the surficial aquifer of 0.1 feet, except for one small area where the predicted drawdown was 0.2 feet. All the expert witnesses were in agreement that Niagara’s drawdown, by itself, is unlikely to cause environmental harm. In fact, the impacts of such a small drawdown on the physical conditions or functions of wetlands or lakes in the area would probably be impossible to detect. Cumulative Effect on Wetlands and Lakes For the analysis of cumulative impacts, the ECF model takes into account all permitted withdrawals for the year 2013, because that is the key year for the regulation of water uses in the Central Florida Coordination Area (CFCA), which includes the site of Niagara’s bottling facility. The CFCA is discussed in greater detail later in this Recommended Order. The ECF model predicated that the cumulative surficial aquifer drawdown within the area of influence of Niagara’s proposed withdrawal would be less than one foot except for one small area where the drawdown is predicted to be 1.1 feet. Niagara submitted an environmental assessment report, the Lotspeich report, with its permit application. The Lotspeich report concluded that no ecological harm would be caused by Niagara’s proposed withdrawal. Subsequently, Niagara’s consulting ecologist, Dr. Shirley Denton, who has extensive experience with the effects of drawdowns on wetlands and other surface waters, reevaluated the potential effects of Niagara’s proposed withdrawal. Dr. Denton visited all of the natural systems in the field. It was her opinion that the cumulative drawdown would not cause unacceptable harm to these natural systems. The District’s environmental expert agreed with Dr. Denton. In the Central Florida sand hill lakes area, a drawdown of this magnitude is not an uncommon cumulative impact from groundwater withdrawals that the District has determined to be acceptable. Groveland presented the testimony of Dr. Jay Exum who opined that the cumulative drawdown in the area of Niagara’s proposed withdrawal would adversely impact wetlands. Dr. Exum’s opinion was based on his prediction that the cumulative drawdown would result in a substantial reduction in the size of the wetlands in the area. However, his opinion about the loss of wetland acreage is not persuasive because of the unconventional methodology2/ that he used and the unreasonable assumptions upon which his opinion was based. Dr. Exum reviewed land cover maps of Lake County, calculated the size and topography of eight wetlands in the area (only one was within Niagara’s zone of influence), came up with an estimated reduction in wetland acreage for these wetlands, and then extrapolated from that number a prediction of the total area of wetlands within Niagara’s area of influence that would be lost as a result of the cumulative drawdown. Dr. Exum did not account for the fact that the wetlands and lakes in the area already reflect most of the cumulative drawdown. The cumulative drawdown predicted by the modeling is not a drawdown below today’s average water levels; it is a drawdown below 1995 levels. In addition, Dr. Exum assumed that a drawdown in the surficial aquifer of .5 foot will cause the future loss of the vegetation at the outer edges of a wetland in an amount that can be calculated simply by determining how much area .5 feet of water would occupy. That assumption would only apply in a hypothetical, unnatural situation where water levels are constant and the wetland vegetation will not survive if the water table drops .5 feet. However, the actual situation is that the water table fluctuates widely in these natural systems and the vegetation is adapted to the fluctuations. The area “formerly” occupied by the .5 feet of water could still be inundated frequently enough to sustain the vegetation. Dr. Exum’s opinion about the environmental effects that would be caused by the cumulative drawdown of the surficial aquifer was given less weight than the opinions offered by Niagara’s and the District’s ecologists because Dr. Exum has little or no prior experience with the effects of drawdowns on natural systems. Dr. Exum’s professional experience is almost entirely with the impacts associated with construction activities in or near wetlands, which would not acquaint him with the unique, long-term responses of natural systems to water table drawdowns caused by groundwater withdrawals. Dr. Denton, who has over 25 years of experience with monitoring wetlands affected by groundwater withdrawals, stated that drawdowns in the surficial aquifer do not usually cause reductions in the size of a wetlands. The more persuasive evidence in the record demonstrates that Niagara’s proposed withdrawal would not cause adverse impacts to wetlands on an individual or a cumulative basis. Niagara provided reasonable assurance that any environmental harm caused by the proposed use has been reduced to an acceptable amount. The five-year duration of the permit is reasonable and appropriate. Public Interest Section 9.3 of the Applicant’s Handbook defines “public interest” as: those rights and claims on behalf of the people in general. In examining whether an application is consistent with the public interest, the District considers whether a particular use of water is going to be beneficial or detrimental to the overall collective well-being of the people or to the water resource in the area, the District and the State. The policy and practice of the District has been to limit its public interest analysis to matters directly related to water resources and the management of those resources. Other matters, such as vehicle traffic generated by the applicant, are not considered by the District. Groveland suggests that Niagara’s proposed use, and perhaps all commercial/industrials uses, are less important and worthy than public water supply uses like its own, and should not be allowed to take water that a public water supplier might need in the future. As discussed in the Conclusions of Law, all reasonable beneficial uses of water are equal under Chapter 373, except in certain contexts which are not applicable here. Commercial and industrial activities that make consumptive uses of water, when conducted in conformance with regulations established to efficiently use and protect the water resources, are generally beneficial to the collective well-being of the people. Groveland also claims that Niagara’s CUP is not in the public interest because a portion of Niagara’s bottled water will be shipped out of Florida. Although Niagara cannot project precisely the amount of bottled water that would end in the hands of consumers residing out-of-state, an estimate of 20 percent was given. For beverage bottlers or any other commercial or industrial water users that incorporate water into their products, the District deems the location of the water use to be where the water is bottled or incorporated into the products. The District does not look to where products are ultimately purchased by a retail consumer. Therefore, the District did not consider the fact that a portion of Niagara’s bottled water would be consumed outside of Florida as a factor in the District’s determination of whether the proposed water use is in the public interest. Niagara’s withdrawal is within the Central Florida Coordination Area (CFCA), an area covering parts of the jurisdiction of three water management districts and which includes the City of Groveland and the site of Niagara’s proposed water withdrawal. The CFCA is a highly productive area for groundwater withdrawals, but the water management districts have determined that it does not have sufficient water to serve water needs above the levels that have been allocated through the year 2013. To protect the water resources of the CFCA, rules were adopted to require public water suppliers and other water users within the CFCA to use “supplemental water supplies” to meet their increases in demand after 2013. Supplemental water supplies are identified in the CFCA rules as reclaimed water, stormwater, surface water, and seawater desalinization. Niagara is not requesting additional water above its 2013 demand and, therefore, is not subject to the restrictions imposed by the various CFCA rules. Nevertheless, the District treated Niagara’s location within the CFCA as a matter affecting the public interest. The District determined that it was inconsistent with the public interest to allow Niagara to withdraw groundwater in the CFCA unless Niagara was required to participate in the development of supplemental water supplies. Therefore, Niagara is required by “Other Condition” 14 in the District’s Technical Staff Report, to identify potential partners for the development of supplemental water supply projects, determine the viability of developing the partnerships, evaluate potential supplemental water supply projects available, and submit a comprehensive written report evaluating whether identified projects are feasible future water supply sources for Niagara. The District imposed a permit expiration date of December 31, 2013, to enable the District and Niagara to reevaluate Niagara’s ability to use a lower quality water source after that date. Groveland does not believe the conditions imposed by the District go far enough and asserts that Niagara’s water withdrawal from the CFCA is still contrary to the public interest. Niagara’s proposed withdrawal is also within a Priority Water Resource Caution Area (PWRCA) designated by the District. The District designates priority water resource caution areas as part of its water supply 20-year planning process. In the PWRCA, the District has determined that there is inadequate groundwater in the Floridan Aquifer to meet all existing and future water needs, without having unacceptable impacts on the water resources. The District stated that the designation of a priority water resource caution area is strictly a planning tool and does not preclude the issuance of permits. CUPs are commonly issued for proposed withdrawals in priority water resource caution areas in the District.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District enter a final order granting Consumptive Use Permit No. 114010 with the conditions specified in the Technical Staff Report and the additional condition proposed by the District and Niagara and set forth in paragraph 12, above. DONE AND ENTERED this 7th day of August, 2009, in Tallahassee, Leon County, Florida. BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 2009.
The Issue The issue to be determined in this case is whether the Florida Fish and Wildlife Conservation Commission (“Commission”) is entitled to the requested minor modification of its existing Environmental Resource Permit and Sovereign Submerged Lands Authorization, which would authorize the backfilling of a portion of Fisheating Creek as part of a restoration project.
Findings Of Fact The Parties The Department is the state agency responsible for regulating construction activities in waters of the State. The Department has also been delegated authority to process and act on applications for authorization from the Board of Trustees for activities on sovereignty submerged lands. The Commission is the state wildlife management agency. The Commission is the applicant for the minor modification at issue in this proceeding. Petitioner, Save Our Creeks, Inc., is a non-profit Florida corporation with its offices in Lake Place, Florida. Save Our Creeks’ members are interested citizens and groups devoted to the conservation of natural resources, especially creeks and small waterways. Save Our Creeks owns property on Fisheating Creek in Glades County, approximately nine miles upstream of Cowbone Marsh. Petitioner, Environmental Confederation of Southwest Florida, Inc. (ECOSWF), is a non-profit Florida corporation with its offices in Sarasota, Florida. A substantial number of the members of Save Our Creeks and ECOSWF use and enjoy the waters of Fisheating Creek for a variety of purposes, including canoeing, boating, fishing, and wildlife observation. Their interests would be affected by the proposed project. Fisheating Creek and Cowbone Marsh Fisheating Creek flows from Highlands and Desoto Counties south and east through Glades County. The Creek runs in a northeastern direction through Cowbone Marsh before draining into Lake Okeechobee. The Creek contributes approximately nine percent of the flow into Lake Okeechobee. Fisheating Creek is designated as Class III waters. Cowbone Marsh is located about eight miles west of Lake Okeechobee. It is a mile and a half long and two miles wide, covering about 2,500 acres. Fisheating Creek and Cowbone Marsh are within the Fisheating Creek Wildlife Management Area. In 1929, the United States Army Corps of Engineers ("USACOE") prepared a survey map which shows Fisheating Creek as an open water route from Lake Okeechobee through Cowbone Marsh and continuing beyond. The accuracy of the course of the Creek as it is depicted in the 1929 map is not disputed by the parties. The 1929 map does not describe the depth or width of the Creek. Some evidence about historical widths and depths was presented, but it was incomplete. There was credible evidence showing that some segments of Fisheating Creek were four to five feet deep and 20 to 30 feet wide. There was also credible evidence that other segments of the Creek were shallower and narrower. The record shows only that canoes, kayaks, and other vessels drawing twelve inches of water or less have been used on the Creek. For a number of years, much of Fisheating Creek has been choked by vegetation and “tussocks.” Tussocks are floating mats of vegetation. Carolina willow now dominates Cowbone Marsh, having replaced areas that were previously open water or covered with herbaceous marsh communities. The vegetation in the Creek made navigation difficult or impossible through Cowbone Marsh. The 1998 Judgment and 1999 Settlement Agreement In 1989, Lykes Bros., Inc., asserted ownership of Fisheating Creek and tried to prevent public access to the Creek. The Board of Trustees responded with a civil action against Lykes Bros., seeking a determination that Fisheating Creek throughout Glades County is navigable and, consequently, the title to its bottom is held by the Board of Trustees as sovereignty submerged lands. Petitioners in this administrative proceeding intervened in the circuit court case on the side of the Board of Trustees. The jury found Fisheating Creek navigable throughout Glades County and the court entered a judgment in 1998 determining that the Creek is sovereignty land held in trust by the Board of Trustees. The judgment did not include any findings about the widths and depths of Fisheating Creek. The court retained jurisdiction to determine the boundaries of the Creek, but the boundaries were never determined. The circuit court case was appealed, but in May 1999, the parties entered into a settlement agreement pursuant to which Lykes Bros. agreed to sell to the Board of Trustees a conservation easement on upland areas adjacent to Fisheating Creek, to be held and managed for the benefit of the public. The conservation area is known as the Fisheating Creek Expanded Corridor. The settlement agreement also called for the Board of Trustees to lease the Fisheating Creek Expanded Corridor to the Commission, who the Board of Trustees designated as the managing agency. The settlement agreement acknowledges the public's "right to boat and canoe on Fisheating Creek throughout the entire Expanded Corridor.” With respect to navigation, the settlement agreement provides: Protection of Navigation. The navigability of Fisheating Creek throughout the entire Expanded Corridor shall be maintained and enhanced through a navigation maintenance program which includes aquatic weed control and removal of fallen logs and similar obstructions. This section does not authorize dredging. The Cookie-Cutter Project In January 2009, the Commission aerially applied an herbicide to kill the vegetation along the course of the Creek. In April 2010, the Commission contracted with A & L Aquatic Weed Control (“A & L”) to “[m]echanically dismantle floating tussocks.” The Commission directed A & L to perform the project by “shredding vegetation and accumulated organic material to re-open the navigation across Cowbone Marsh.” The Commission instructed A & L to re-open a channel "approximately 2.2 miles long and 18-20 feet wide,” and to clear some areas of the Creek “as wide as 35-feet wide occasionally as necessary to turn shredding equipment during the shredding process.” The Commission did not direct A & L to dredge a deeper channel. The vessel used by A & L to perform the work is known as a “cookie-cutter.” The cookie-cutter has two cutting wheels at the front of the vessel to shred and side-cast vegetation. The cutting wheels also act as propellers to propel the cookie- cutter forward. The cookie-cutter can clear woody vegetation up to four inches in diameter. The two cutting wheels can be lowered or raised in order to cut vegetation at various depths in the water. Evidence was presented to show how the cutting wheels could be lowered two to three feet, but it was not made clear whether the cutting wheels could be lowered even more. No evidence was presented to establish how deep the cookie-cutter blades were lowered into Fisheating Creek during the work performed by A & L. No evidence was presented to establish what depth of soil the cookie-cutter was capable of dredging through if the cutting wheels cut into the Creek bottom. The cookie-cutter began on the eastern side of Cowbone Marsh and moved upstream. The parties disputed the point of beginning. Petitioners contend it was farther upstream, but the more persuasive evidence for the point of beginning was presented by the Commission. The cookie-cutter generally followed the course of Fisheating Creek as depicted on the 1929 USACOE map. However, there are three areas where the cookie-cutter deviated from the 1929 map. One deviation is about 100 feet off-line. The other two deviations are 25 to 30 feet off-line. No explanation was given for the deviations, but the cookie-cutter operator generally followed the path of dead vegetation killed by the aerial spraying of herbicide and the line may have deviated from the true course of the Creek in these three areas. During the cookie-cutter project, water levels within the Creek and Marsh fluctuated. At some point, the project was postponed due to low water conditions. A sandbag dam was placed in the channel to artificially raise the water level so the cookie-cutter could continue. In July 2010, the Department and USACOE ordered the Commission to stop the project due to its adverse environmental impacts, including the draining of Cowbone Marsh. Before the cookie-cutter stopped, it had cleared about two miles of Fisheating Creek. Where the cookie-cutter stopped there is a discernible channel continuing west, but it is shallower and narrower than the channel created by the cookie-cutter. At this terminus, the cookie-cutter was dredging a deeper and wider channel than existed naturally. Additional evidence of dredging along the Creek channel is the soil cast up on the banks, and the removal of peat soils in the bottom of the Creek and exposure of underlying mineralized soil. The cookie-cutter altered the natural conditions of the Fisheating Creek in some areas by dredging the sides and bottom of the Creek. The dredging by the cookie-cutter altered the hydrology of the Creek and Marsh. The Marsh drained rapidly to Lake Okeechobee. In addition, large quantities of soil, muck, silt, and debris disturbed by the cookie-cutter were carried downstream toward Lake Okeechobee. Some of the soil and debris settled out at the mouth of the Creek, causing shoaling. The sides of the channel in many areas is continuing to erode. The Department’s Emergency Final Order In July 2010, the Department issued an Emergency Final Order, which directed the Commission to: (a) remove the cookie- cutter and immediately stop all activities associated with the cookie-cutter; (b) place temporary emergency flow restrictors in the channel to reduce flow velocities and minimize downstream sediment transport, as well as raise the water level to minimize surface and groundwater flow from the adjacent marsh into the channel; and (c) develop a long-term remedial plan to return water levels within the Marsh to pre-impact conditions and apply to the Department for an Environmental Resource Permit to implement the plan. In August 2010, pursuant to the Emergency Final Order, the Commission constructed an aluminum weir in the Creek to decrease flow velocities, reduce erosion, and maintain the hydration of the Marsh. The weir was placed approximately half a mile downstream from where the cookie-cutter stopped. During the wet season of 2010, the aluminum weir was completely submerged. Erosion and shoaling occurred immediately downstream. The Commission determined that the weir was ineffective and removed it. The EPA Compliance Orders In March 2011, the EPA issued an Administrative Compliance Order in which it alleged the Commission had engaged in "unauthorized activities associated with the excavation and construction of a channel within Cowbone Marsh.” The Commission was ordered to construct an initial check dam in the upper reaches of the Marsh to minimize the loss of groundwater and prevent further adverse impacts. In April 2011, EPA issued a second Administrative Compliance Order, directing the Commission to construct five additional check dams. The order describes the check dams as "initial corrective measures" and states that the “final restoration plan will include measures for backfilling the unauthorized cut through Cowbone Marsh.” The Initial Permits In May 2011, the Department issued to the Commission an Environmental Resource Permit and Sovereign Submerged Lands Authorization, which authorized the construction of six earthen check-dams within the portion of Fisheating Creek where the cookie-cutter had operated. The purpose of the check dams was to improve the hydrology of Cowbone Marsh and promote the accumulation of sediments within the channel to restore the natural depth and width of Fisheating Creek. The check dams were constructed using sand bags, marine plywood, coconut matting, and pressure-treated posts. The check dams have ten-foot wing walls which extend into the surrounding marsh. The wing walls are to prevent erosion around the dams and to direct water into the marsh. The installation of the check dams was completed in July 2011. Since that time, some repair efforts have been required to replace lost sandbags and to address erosion that has occurred around the check dams. The check dams have been somewhat successful in maintaining higher water levels in the Marsh. However, they have not restored natural hydrologic conditions, or prevented erosion along the channel. The Proposed Modification In June 2012, the Commission applied for a "minor modification" to the existing permits, which the Department granted. The modified permits authorize the Commission to backfill the channel cleared by the cookie-cutter with approximately 27,000 cubic yards of sand. The check dams would not be removed. The sand for the backfilling would be excavated from a "borrow" area located about a mile away. Petitioners contend that the borrow area is in wetlands, but the more persuasive evidence is that it is uplands. A 1.164-mile temporary access road would be constructed from the borrow area through uplands and wetlands to a 100-square-foot staging area adjacent to Fisheating Creek where the backfilling would begin. Wetland impacts would be minimized by constructing the temporary access road and staging area with interlocking mats. Petitioners did not show that the route or manner in which the temporary road would be constructed and used would have unacceptable adverse impacts to the environment or otherwise fail to comply with applicable criteria. The sand would be dumped into the Creek and then compacted. As the Creek was filled, the compacted sand would be used as a roadway for the trucks to transport sand to the end of the filled area to dump more sand, until the backfilling was completed. The proposed backfilling would not restore a typical stream profile, deepest in the middle and becoming more and more shallow moving toward the banks. That kind of profile can be seen in the photographs of Fisheating Creek taken before the cookie-cutter project. The proposed modification calls for filling the cut channel from "bank to bank": Final Grade: Fill must be compacted and ground surface elevations must be the same as the adjacent marsh ground surface elevations (within a tolerance of +6/-6 inches) The filled channel would be seeded and fertilized to grow native vegetation. The proposed seed mixture is mostly water grasses, but has some willow included. Compliance with Criteria Florida Administrative Code Rule 62-343.100 provides that a modification is treated as either minor or major depending on the magnitude of the changes and the potential for environmental impacts that differ from those addressed in the original permit: modification shall be considered to be minor only where the modification does not: Require a new site inspection by the Department in order to evaluate the request; or Substantially: Alter permit conditions; Increase the authorized discharge; Have substantially different or increased impacts on wetlands and other surface waters. . . ; Decrease the retention/detention specified by the original permit; Decrease any flood control elevations for roads or buildings specified by the original permit; or Increase the project area. At the final hearing, it was not shown how the modification meets the criteria for a minor modification. The proposed modification does not meet the criteria because it required new site visits, substantially alters the original permit conditions, and has a substantially different impact on wetlands. The criteria applicable to an application for a major modification were not identified, nor was it shown how the evidence presented at the final hearing satisfies the requirements for such an application. The proposed backfilling plan would not restore the natural conditions that existed in Fisheating Creek. The Commission did not show that it made a reasonable effort to determine the pre-disturbance conditions throughout the disturbed area. The proposed modification would not restore the natural depths in the Creek. The backfilling plan calls for a finished grade of plus or minus six inches above the level of the adjacent marsh. A final grade of zero to plus six inches would essentially eliminate Fisheating Creek. The maximum allowed depth of minus six inches below the level of the adjacent marsh would be shallower than the natural depths in portions of the Creek. Even the Department described the Creek was "one to two feet deep" before the cookie-cutter project. Adequate measures are not included in the permits to ensure that after backfilling and planting, the Creek would have the ordinary attributes of a creek. The proposed modification would not restore the pre- existing hydrologic conditions of the Creek. The modified Environmental Resource Permit requires strict compliance with the terms of the 1999 settlement agreement. The modification would not be consistent with the 1999 settlement agreement because the backfilling and planting would destroy the navigability of the Creek. Petitioners want to preserve the current depths of Fisheating Creek, but some of those depths are unnatural, being the result of dredging by the cookie-cutter. However, the proposed backfilling would not restore the natural depths in some parts of the Creek and would not maintain the navigability of the Creek, even for shallow draft vessels such as canoes and kayaks.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the Department deny the requested modification to the Commission's Environmental Resource Permit and Sovereignty Submerged Lands Authorization. DONE AND ENTERED this 3rd day of July, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 2013. COPIES FURNISHED: W. Douglas Beason, Esquire Department of Environmental Protection Douglas Building, Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Alisa A. Coe, Esquire Joshua D. Smith, Esquire Bradley I. B. Marshall, Esquire Earthjustice 111 South Martin Luther King, Jr., Boulevard Tallahassee, Florida 32301 Harold "Bud" Viehauer, General Counsel Ryan Osborne, Esquire Florida Fish and Wildlife Conservation Commission Bryant Building 620 South Meridian Street Tallahassee, Florida 32399-1050 Herschel T. Vinyard, Jr., Secretary Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Matthew Z. Leopold, General Counsel Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Lea Crandall, Agency Clerk Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Whether Proposed Rule 46-4.0081(2)(d), Florida Administrative Code, providing that, beginning January 1, 1998, no person shall fish with, set, or place in the water any seine with a mesh size larger than two inches stretched mesh, is a valid exercise of the delegated legislative authority of Respondent, Marine Fisheries Commission, and whether said rule was proposed in accordance with the statutory standards Respondent must follow pursuant to Section 375.025, Florida Statutes.
Findings Of Fact Existing rules of the MFC require that the main body of a seine net be constructed of two-inch mesh or smaller. Wings with larger mesh may be used. [Rule 46-4.0081(1)(g), Florida Administrative Code] The challenged rule amendment [Proposed Rule 46-4.0081(2)(d)] deletes the provision that allows a wing with larger mesh to be attached to a two-inch mesh seine. The unrefuted evidence is that the proposed rule amendment will reduce the "catchability rate" of a single such seine net for many types of fish and not be commercially feasible for mullet, except possibly in "roe season,"3 and that a seine net as currently permitted with larger mesh in the wings only is commercially feasible for mullet as well as other fish. "Catchability rate" is defined as "that fraction of a fish stock which is caught by a unit of fishing effort." "Roe season" is that part of the year in which there is greater schooling and movement of adult mullet, approximately two years old and eleven or more inches in length, which hopefully have already reproduced. However, legal size is not a guarantee that a fish has reproduced. See below, Finding of Fact 49. The term "stretched mesh" means that the mesh is measured by pulling it to its maximum length. A two-inch stretched mesh forms approximately a one inch square when fully open. Generally, there are two types of nets used to catch fish: those that corral the fish by concentrating them into any area small enough that they can be easily landed; and those that catch the fish by entangling them in net material. Gill nets fall into the latter category. Gill nets catch fish when a fish enters a mesh opening, finds that it is too large to pass through the mesh opening, and entangles its gills in the mesh when it attempts to back out of the net. The fish then dies due to lack of water or lack of undissolved oxygen, or it can be pulled through the net manually and released. Fish mortality from gill nets is higher in warm months. From a fish's or an environmentalist's viewpoint, pulling the fish through a net is an exercise in futility because pulling the fish through a net removes its natural slime, and without its natural slime, a fish will die soon after release. The size of fish entangled in a gill net is a function of the size of the mesh. Larger mesh nets gill larger fish, while smaller mesh nets gill smaller fish. Which small fish are gilled varies from time to time and place to place, dependent upon many factors, including but not limited to how and where the net is deployed, how rapidly it is hauled in, and which fish are targeted. To some extent, it is fair to say that all nets are gill nets, because all nets entangle some fish of some size, but this is an oversimplification. Mesh size has long been used by Florida's MFC and even by other states as a management tool for limiting the harvest of a variety of fish. "By-catch" is marine life which is not targeted by the fisher deploying the net, but which nonetheless is captured in some manner by the net. For instance, in shrimp nets, the "by- catch" of fin fish typically outnumbers the catch of shrimp (the targeted specie) by four to one. Juvenile (pre-reproductive age) fish of the targeted specie can also be "by-catch" when netted with their elders. All nets capture by-catch to some degree. Depending upon net deployment methodology, any net will also pick up "gumbo," a term employed here to delineate by- catch, undissolved algae, plant debris, and other items which do not contribute to a commercial fish crop. On November 8, 1994, Florida voters approved the adoption of Article X, Section 16, of the Florida Constitution. That amendment, which took effect July 1, 1995, prohibited the use of gill or entangling nets anywhere in state waters, and placed a 500 square foot limitation on "other nets" in nearshore and inshore Florida waters.4 Seine nets constitute "other nets" under the net ban amendment. Landings for mullet are significantly down since the amendment, from more than 16 million pounds per year to five million pounds. This has had a direct and favorable impact on the increase of the "spawning potential ratio" for mullet. "Spawning potential ratio" ("SPR") means egg production per year that is available from a fish stock. It is the ratio of a single specie's eggs available in stock that has been fished, over the eggs that would be available in unfished stock. SPRs are scientifically established for each fish specie by the MFC. The Commission considers that if the stock falls below those levels there is a real risk that the stock specie will decline abruptly to some much lower level and not be able to recover. Once the SPR rises to the targeted level, there is greater assurance of specie recovery and preservation, but there are still many reasons to manage the fishery in an optimal use of that resource. The maximum practicable stock abundance mandated by law might be at a level higher than MFC's threshold. The SPR is basically a minimum reproductive goal for fish, per specie. Some species continue to be in an overfished condition since the net ban amendment took effect. However, without taking into account the proposed two- inch mesh limitation, the SPR for mullet would reach the MFC's minimum goal of 35 percent within one to two years, even though it was originally thought such numbers might only be reached within nine years after the effective date of the constitutional amendment. Although it is important to understand that MFC's SPR goals are thresholds only, it is clear that the so-called "net ban" is beginning to have the desired environmental effect.5 Petitioners maintain that the only feasible place to fish with the proposed 500 square foot, two-inch mesh nets would be inshore where smaller mullet feed, which sets up a situation in which more juvenile fish, particularly juvenile mullet, will die before they have a chance to reproduce, and therefore more non-targeted by-catch will be wasted than would be wasted if the rule is not amended. On this theory, they also contend that the proposed rule would not permit reasonable means and quantities of harvesting of fish, particularly mullet, and is otherwise inadequate for reasons related in Sections 370.025(2)(a), (b), (c), and (g), Florida Statutes. MFC is not a constitutional agency, but Florida's Legislature has mandated its mission, in pertinent part, as: Section 370.027, Florida Statutes. Rulemaking authority with respect to marine life. -- Pursuant to the policy and standards in s. 370.025, the Marine Fisheries Commission is delegated full rulemaking authority over marine life, . . . *** Exclusive rulemaking authority in the following areas relating to marine life, with the exception of endangered species, is vested in the commission; . . . Gear specifications; Prohibited gear; *** In 1997, the Florida Legislature further provided a net ban statute, implementing the constitutional amendment, and clearly authorized its legislatively-created agency, the MFC, to promulgate rules to implement that statute and the constitutional amendment, as follows: Illegal use of nets. -- It is unlawful to take or harvest, or to attempt to take or harvest, any marine life in Florida waters with any net that is not consistent with the provisions of s. 16, Article X of the State Constitution. (2)(a) Beginning July 1, 1998, it is also unlawful to take or harvest, or to attempt to take or harvest, any marine life in Florida waters with any net, as defined in subsection (3) and all attachments to such nets, that combined are larger than 500 square feet and have not been expressly authorized for such use by rule of the Marine Fisheries Commission under s. 370.027. The use of currently legal shrimp trawls and purse seines outside nearshore and inshore Florida waters shall continue to be legal until the commission implements rules regulating those types of gear. The use of gill or entangling nets of any size is prohibited, as such nets are defined in s. 16, Article X of the State Constitution. Any net constructed wholly or partially of monofilament or multifilament material, other than a hand thrown cast net, or a handheld landing or dip net, shall be considered to be an entangling net within the prohibition of s. 16, Article X of the State Constitution unless specifically authorized by rule of the commission. Multifilament material shall not be defined to include nets constructed or braided or twisted nylon, cotton, linen twine, or polypropylene twine. This subsection shall not be construed to apply to aquaculture activities licenses issued pursuant to s. 370.26. As used in s. 16, Article X of the State Constitution and this subsection, the term "net" or "netting" must be broadly construed to include all manner or combination of mesh or webbing or any other solid or semisolid fabric or other material used to comprise a device that is used to take or harvest marine life. Upon the arrest of any person for violation of this subsection, the arresting officer shall seize the nets illegally used. Upon conviction of the offender, the arresting authority shall destroy the nets. Any person who violates this section shall be punished as provided in s. 370.092(4). The Marine Fisheries Commission is granted authority to adopt rules pursuant to ss. 370.025 and 370.027 implementing the prohibitions and restrictions of s. 16, Article X of the State Constitution. To these ends, the Legislature has also established purpose and standards for the MFC to follow in proposing/enacting rules: Section 370.025 Marine fisheries; policy and standards. The Legislature hereby declares the policy of the state to be management and preservation of its renewable marine fishery resources, based upon the best available information, emphasizing protection and enhancement of the marine and estuarine environment in such a manner as to provide for optimum sustained benefits and use to all the people of this state for present and future generations. All rules relating to saltwater fisheries adopted by the department pursuant to this chapter or adopted by the Marine Fisheries Commission and approved by the Governor and Cabinet as the Board of Trustees of the Internal Improvement Trust Fund shall be consistent with the following standards: The paramount concern of conservation and management measures shall be the continuing health and abundance of the marine fisheries resources of this state. Conservation and management measures shall be based upon the best information available, including biological, sociological, economic, and other information deemed relevant by the commission. Conservation and management measures shall permit reasonable means and quantities of annual harvest, consistent with maximum practicable sustainable stock abundance on a continuing basis. When possible and practicable, stocks of fish shall be managed as a biological unit. Conservation and management measures shall assure proper quality control of marine resources that enter commerce. State marine fishery management plans shall be developed to implement management of important marine fishery resources. Conservation and management decisions shall be fair and equitable to all the people of this state and carried out in such a manner that no individual, corporation, or entity acquires an excessive share of such privileges. Federal fishery management plans and fishery management plans of other states or interstate commissions should be considered when developing state marine fishery management plans. Inconsistencies should be avoided unless it is determined that it is in the best interest of the fisheries or residents of this state to be inconsistent. The MFC was well aware of the post amendment reduced landings, increased SPRs, and fish recovery rates when it proposed the rule herein. In promulgating the rule herein, the MFC did not conduct or commission any formal economic or sociological studies on the constitutional amendment's impact on wholesale and retail seafood markets, restaurants and consumers to date or on the proposed rule's potential further impact on these elements. It did, however, consider testimony at rule hearings and written presentations on those issues by the Petitioners and others. At the formal hearing herein, Petitioners showed the same information that had been presented to the MFC, that Florida Panhandle coastal restaurant revenues typically have dropped nearly 30 percent since the constitutional amendment, and that revenues in Panhandle wholesale fish houses have typically dropped 75 percent. There is anecdotal, but statistically imprecise, evidence that the retail market for mullet has been drastically depressed and consumer prices therefor drastically increased in the Panhandle and Jacksonville areas since the amendment, that this situation creates a greater burden on low- income consumers, particularly those low-income consumers who have, for economic or ethnic reasons, traditionally made mullet a staple of their diets, and that this situation may worsen with implementation of the proposed rule if the proposed rule further drastically reduces the availability of mullet. For the reasons set out infra., further drastic reduction in the availability of mullet is not anticipated by the MFC. MFC prepared a statement of regulatory impact or estimated regulatory costs for the proposed rule as part of its 1997 rule amendment package, based on all the evidence it had gathered. Even seine nets produce some by-catch, and some of the by-catch produced by seine nets results from small fish being gilled in the mesh of the net. Admittedly, small mesh sizes result in gilled by-catch that is pre-reproductive and smaller in size. However, seine nets, other than "purse seines," which were banned before the constitutional amendment, operate by "corralling" fish with a net that functions as a wall that captures the fish by confining them inside the net without entangling any more of them than absolutely necessary. For that reason, beach seine nets and haul seine nets, for instance, have not historically been considered to be gill or entangling nets. The MFC has historically managed seine nets differently than gill nets because of the better possibility of releasing by-catch from seine nets. The MFC's Executive Director, and expert, Dr. Russell Nelson, testified that the Agency believes the constitutional amendment does not require that there be no legitimate by-catch and further, that a complete absence of by-catch would be impossible. (TR-346). One purpose of proposed Rule 46-4.0081(2)(d) is to clarify what is a "gill net" subject to the constitutional prohibition as contrasted to a "seine net," which is not prohibited. The proposed rule also should be easier to administer and enforce because the net mesh and square footage will be easily ascertainable without regard to what specie or size fish is caught. In formulating this proposed rule, the MFC decided that the allowance for small seine nets in Article X, Section 16 of the Florida Constitution implied a functional definition. Therefore, the proposed rule amendment was designed to effectively remove existing Rule 46-4.0081(1)(g)'s exception for a larger wing mesh size from the two-inch mesh size required of the seine panel, because that exception is obsolete in light of the constitutional amendment. The functional definition of "seine nets" utilized by the MFC was nets that functioned to guide, herd, gather, or corral fish, rather than gill or entangle them. This definition had been previously codified in an existing rule.6 Based upon its interpretation of the constitutional amendment, statute, and existing rule, and based upon common historical net usage, the MFC concluded that nets designed to function primarily to gill or entangle fish could not be considered to be seine nets. Petitioners are correct that between the date of the constitutional net ban and the date of formal hearing on this rule challenge, the MFC did not conduct or cause to be conducted any tests with a 500 square foot two-inch mesh seine net. However, in formulating the proposed rule, the Commission was presented with extensive comments, technical information, and post-amendment updates of earlier surveys. Prior to first publishing its proposed rule and since, the MFC has examined the historical functions of seine and gill nets. The competent, substantial, credible evidence adduced at formal hearing is substantially the same as MFC's collected data. Historically, seine nets were very large and some were even thousands of yards in area. Prior to the passage of the constitutional amendment, commercially licensed fishermen used seine nets of many sizes and meshes. Most were approximately 600 yards long. Historically, seine nets had wings on one or both sides of the main body, which was sometimes called a "panel," "bag," "pouch," or "pocket." The "wings" were the portion of the net used to herd the fish into the main body. The wings contained larger mesh size than the main body. The fish were actually captured in the main body, not the wing portion. Historically, in Florida, the mesh size of gill nets was significantly larger than the mesh size of seine nets. Gill nets historically used to catch mullet employed stretch mesh three inches or greater. Currently, the constitutional amendment, the statute, and existing rules limit seine nets to a total of 500 square feet. Existing Rule 46-4.0081(1)(g), Florida Administrative Code, sought to be repealed, permits seines of a two-inch stretch mesh or less in the main body of the seine, and up to three-inch mesh in its wings. Due to the 500 square foot restriction, the MFC believes that a mesh size exception permitting three-inch mesh in seine wings is obsolete. Three-inch mesh in the wings of seine nets would gill larger, commercially viable mullet. There is no practical way to construct a seine with wings and a workable pocket since the entire seine net is now limited to a total of 500 square feet, but if the three-inch mesh continues to be permitted for the wings, fishermen will be able to construct 500 square foot seine nets that are 90 percent wing and 10 percent panel, thus converting what is technically a seine net into one which actually gills or entangles fish over 90 percent of the net's surface. Such a result would be contrary to any common historical understanding of what constitutes a "seine net," and contrary to the intent of the constitutional amendment and subsequent legislation. Agency staff advocated drafting the proposed rule more stringently so as to reduce the permissible stretched mesh size to a one- and one-half-inch size, but in formulating the proposed rule under challenge, the MFC ultimately proposed the two-inch stretched mesh rule based on its review of historical mesh sizes which were already in legal use. This decision was reasonable and may serve to lessen the impact of the rule change on commercial fishermen. Different species of fish behave differently, and the credible, competent evidence herein permits no blanket pronouncement on running patterns of juveniles and adult (reproductive) fish in every fish specie. There is direct conflict between Petitioners' and MFC's experts, most notably Messrs. Rudloe and Winner, on whether or not juvenile mullet, or fish generally, run with schools of adults. After consideration, Mr. Winner's opinion that juvenile mullet typically do not run with their elders, at least in roe season, is accepted.7 Also, the greater weight of the credible evidence is that all types of fish small enough to be entangled in a two-inch mesh would not generally be found with adult mullet. Petitioners contend they cannot determine what other types of fish are running with the adult mullet they target and cannot guarantee that some juvenile mullet and other fish would not be among the inadvertent by-catch netted when they target adult mullet. Only fifty percent of 11-inch (legal size) mullet are sexually mature, anyway. Upon the testimony of MFC's experts, Mr. Winner and Dr. Nelson, and upon testimony by various commercial fishermen, it is found that fishermen can target adult mullet based on the way adult mullet move, jump, and make wakes. It is not commercially feasible to target any illegal, juvenile fish. In 1993, MFC promulgated rules which varied mesh size for mullet and other species. These rules were intended to harvest targeted species of only appropriate age and size. Studies before the 1993 rule amendments showed that the vast preponderance of mullet taken in a two-to two-and-a- quarter-inch mesh seine were 13 inches and 95 to 98 percent were legal size. In 1993, the two-inch mesh for the seine panel/pouch was created by rule, and has remained in effect since then.8 In 1997, in formulating the proposed rule here challenged, the MFC concluded, on the basis of updated studies and testimony and presentations before it, that although the proposed rule may result in more juvenile fish being caught in the smaller mesh, or even gilled therein, the proposed rule amendment will ultimately result in fewer total fish being gilled. The MFC is prepared to accept this result because only a small proportion of juvenile mullet or other fish encountered will actually be gilled, no dangerous level of unnecessary killing or waste will occur, and the rule will enhance the overall fish population recovery effects already in progress. Even with a small increase in the number of juveniles being gilled under the proposed rule, the MFC expects landings of legal-size mullet to increase due to the recovery of fish populations in progress and due to fishermen acquiring even more skill with the 500 square foot nets, which size is still relatively new. Some commercial fishermen testified that it is the existing reduced square footage (500 square feet) factor alone which causes adult mullet to jump the net, not the proposed mesh size reduction. However, the MFC has no authority to alter this constitutional requirement. Some commercial fishermen testified that they could fish mullet commercially with the existing five hundred square foot nets as long as the nets still had three inches or larger mesh in their wings. A video tape showing several sets (strikes) or parts of sets of a net was introduced in evidence. It showed some fish jumping the net and other fish gilled in the net. It purportedly showed use of a net which would be legal under the proposed rule, but testimony to that effect was contradicted by one of the same witnesses when he gave specific dimensions of the net showing it to actually be considerably larger than the 500 square foot requirement which the MFC has no authority to alter. (TR-270) The video tape was not made in roe season. Its net's deployment in some sets was arguably unusual for this type of fishing. The number of fish gilled was low. Accordingly, although the video tape might support the theory that size of mesh is one factor in causing legal-size mullet to jump a net, it does not present credible evidence that legal-size mullet cannot be caught with a 500 square foot net which would be legal under the proposed two-inch rule or even that legal mullet can now be caught with a larger net. It certainly does not establish that the proposed rule will waste more juvenile fish than are being wasted under the existing rules. However, upon the evidence of current landings, it is found that legal-size mullet can be caught with the nets now legal. It is further found, upon the evidence as a whole including that of Dr. Nelson and Mr. Winner, that use of a single seine net which would be legal under the proposed rule, that is, one which is made of only two-inch mesh throughout its total 500 square foot surface, is not commercially feasible for fishing mullet, except possibly in roe season. Nonetheless, there are at least two ways the new net could be used commercially. It is possible for two fishermen working together to deploy two separate 500 square foot, two-inch mesh seine nets to capture and corral legal size mullet. It is possible to use two legal seine nets in the same way with a third person manning a cast net. The seine nets would be channeling, or herding, the fish, and the cast net would be gathering or dipping them out of the water. Under this type of operation, neither type of net would entangle or gill fish. According to MFC's Director Nelson, the MFC considered these two methodologies of fishing for mullet with more than one net to be both legal and commercially feasible when it proposed the challenged rule.9 Use of a single seine net which would be legal under the proposed rule is commercially feasible for catching fish other than mullet. This proposed gear rule applies equally to all unit stocks of fish and affects all fisheries, some of which are still overfished and some for which there is incomplete data to determine the status. The proposed rule compliments previously adopted fishery management plans and will help recovery of unmanaged species. The rule does not conflict with any federal management plan. The proposed rule has no relationship to quality control for fish coming to market. The proposed rule applies to everyone and provides no individual or corporation an excessive share of fishery resources.
The Issue The issues to be resolved in this proceeding are whether the Department of Environmental Regulation has jurisdiction over the Petitioner's property and the project proposed by Petitioner; and, if so, whether the Petitioner's application for a permit should be granted or denied. Petitioner contends that his property is not within the Department's jurisdiction. Petitioner also contends that his proposed project would have no negative impact upon the water quality in areas adjoining his property. The Department contends that it has jurisdiction over the property and that Petitioner has not provided reasonable assurance that the proposed project will not result in violation of the Department's water quality standards.
Findings Of Fact The Petitioner owns five acres of land in Oak Hill, Volusia County, Florida. The property straddles "River Road" and is bounded on the east by the Indian River. Approximately 1.5 acres of the property lies to the east of River Road. The remainder lies to the west. In its natural condition, Petitioner's property was a salt marsh area contiguous to the river. The construction of River Road did not cut the Petitioner's property off from the Indian River because there was a bridge or culvert system which allowed water from the Indian River to flow onto Petitioner's property during wet seasons. Approximately eighteen to twenty years ago, Volusia County engaged in a mosquito control program. Ditches were dug adjacent to the property which Petitioner now owns, and across the property. The effort was to turn the area into an "impoundment area" by blocking the culverts which connected the area to the Indian River. In this manner, water could be kept at a higher level in the impoundment area so as to render the area unviable as mosquito breeding territory. The culverts which provide the only potential connection between the waters of the Indian River and Petitioner's property lie approximately 1,000 feet south of Petitioner's property. At various times, sandbags have been placed across the culvert openings so as to prevent the interchange of waters between the impounded area and the Indian River. The Mosquito Control District has replaced these sandbags on at least two occasions during the past twenty years. The bags have been removed by unknown persons. At the time of the hearing, these sandbags were not in place. Water levels in the Indian River were quite high at the time of the hearing as a result of the rainy season, and water from the river was flowing freely through the culverts into the impoundment area. Saltwater from the river could flow easily through the mosquito control ditches onto Petitioner's property. It appears that the focus of the mosquito control program in Volusia County is to maintain high water levels in the impoundment area during the heavy mosquito-breeding months. The county's mosquito control program does not systematically block the culverts at the beginning of mosquito breeding seasons, then remove them at the end. Rather, the mosquito control program from time to time observes the culverts to see whether they are blocked and occasionally replaces sandbags that have been removed. It appears that whether sandbags are in place or not depends upon whether the culverts have been recently inspected, and whether persons unknown have removed them. Thus, whether water from the Indian River reaches Petitioner's land depends in part upon rather unpredictable human activities. Submerged freshwater vegetational species are the dominant vegetation on the petitioner's property. Cattails, blue-green alga mats, leather fern, maiden cane, and primrose willow are the dominant species. These are species listed in the Department of Environmental Regulation's wetland indicators list set out at Rule 17-4.02(.17), Florida Administrative Code. Petitioner'S property remains sufficiently wet to support this vegetation as a result of storm water runoff from upland areas, groundwater levels, and occasionally, as at the time of the hearing, inflow from the Indian River. The area can no longer be called a saltwater marsh. It is primarily freshwater. At the time of the hearing, there was sufficient inflow from the Indian River to render the water brackish. Petitioner is seeking a permit to modify the mosquito control ditches so as to ring his property with a perimeter canal. Materials dredged from the perimeter canal system would be placed on his property so as to raise its surface elevation to a level sufficient for it to remain dry. Petitioner envisions constructing his retirement home on this newly filled land. The mosquito control ditches that presently partially encircle Petitioner's property and partially cross it are connected to the Indian River by the culvert system. When the culvert is not blocked, water from the impoundment area flows along the ditches through the culvert and into the Indian River. During high water episodes, water from the Indian River flows through the culverts, along the ditches, and onto Petitioner's property. Upland runoff is able to cross Petitioner's property before it enters the mosquito control ditches and finds its way to the Indian River. The vegetation on Petitioner's property serves to filter and assimilate pollutants from the upland runoff before it enters the river. Water quality in the mosquito control ditches appears presently to only marginally meet Class III water quality standards. Removing the "kidney-like" function that is served by the wetland vegetation on Petitioner's property would serve to lower the water quality in the mosquito control ponds, and thus lower the quality of water that enters the Indian River from the impoundment area. The point where the culvert discharges into the Indian River is located less than 1,500 feet away from an aquatic preserve known as the Mosquito Lagoon Aquatic Preserve. Waters in the preserve are designated as Class II waters. Otherwise, the waters of the Indian River, including water in the mosquito control ditches during times that the ditches are connected to the Indian River, are Class III waters. It is difficult to measure the precise impact that eliminating the wetland vegetation on Petitioner's property would have upon adjoining waters. It is clear, however, that the impact would be negative in water quality terms and that water quality in adjoining waters is already only marginally meeting standards. Furthermore, if other wetland areas within the impoundment area were similarly eliminated, water quality violations would be very likely to occur. It appears that petitioner's project could be undertaken in such a manner as to eliminate the danger of excess turbidity during and after construction. It also appears that the Petitioner's project would not interfere with the mosquito control functions.
Findings Of Fact Respondent Cole seeks to construct a weed barrier approximately 40 feet from the end of a dead-end canal. Petitioner Weitershausen's property begins approximately 48 feet from the end of the canal. The only two property owners whose access to the canal will be restricted by the weed barrier are Respondent Cole and Mr. Wheeler, both of whom consent to the placing of the barrier. Throughout most of the year weeds are not a problem in the canal. However, under certain conditions hydrilla is blown into the canal and backs up at the end adjacent to Mr. Cole's property. Without a weed barrier these weeds are blown to the end of the canal and remain there where they settle to the bottom, break down, and because of the decomposition smell and are otherwise objectionable. The weed barrier as proposed will keep the hydrilla floating longer and reduce this settling and decomposition. The weed barrier does not create a safety hazard. The weed barrier will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest nor will it result in the destruction of oyster beds, clam beds, or marine productivity to such am extent as to be contrary to the public interest. The weed barrier will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest. The 8 feet of distance between the weed barrier and Mr. Weitershausen's property provides a catch basin for the buildup of weeds short of Mr. Weitershausen's property. So long as the weeds are properly cleaned out this catch basin is sufficient to prevent weeds from building up along Mr. Weitershausen's property.
Recommendation It is, therefore, RECOMMENDED that the permit as applied for be issued with the condition that the applicant be required to remove the weeds from in front of the weed barrier at least once a month and at any time the weeds should back up to the extent that they substantially encroach on Mr. Weitershausen's waterfront. ENTERED this 17th day of September, 1976 in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. L. Caleen, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Jerry E. Cole Route 6, Box 871Y Brooksville, Florida 33512 Mr. R. C. Weitershausen Route 6, Box 871X Brooksville, Florida 33512
Findings Of Fact Respondent Danny F. Nail owns a parcel of land on the west side of Merritt Island in Brevard County, Florida, at Section 22, Township 23 South, Range 36 East. The land which fronts on the Indian River, a navigable Class III water of the State of Florida, is approximately 1/2 mile north of the town of Courtney. Mr. Nail originally purchased the land in 1977 for a homesite but later decided to develop it for sale. At a cost of $5,000 he hired a contractor in the Spring of 1981 to place fill on his land in a rectangular area beginning 40 to 60 feet east of the mean high water mark of the Indian River. The fill extends 160 feet along a north-south line and 160 feet along an east-west line. The eastern edge of the fill covers a slough which runs north to south beyond the limits of Respondent's property. To the south the slough enters the Indian River. During the years 1959-60 the Brevard Mosquito Control District (District) ditched the slough and placed spoil in piles along the ditch banks. These spoil mounds formed a low berm along the west side of the slough on Respondent's property. There is another higher-berm immediately to the north of Respondent's property which was also the result of District works. None of the activities of the Brevard Mosquito Control District has resulted in a change of the type or distribution of vegetation on Mr. Nail's land in the area of filling. Aerial photography taken prior to 1959 show marine and transitional vegetation species in the fill area. This evidence was supported by witness testimony that the filled area was part of a salt marsh prior to any mosquito control works. The original earth and the spoiling of the District's works are sandy gray soil with an overlay of decayed organic matter. The fill which Respondent placed on his property is a distinctly yellow sand which is readily distinguishable from the original earth. The dominant vegetation in the area 1/ of the fill is white mangroves (Laguncularia racemosa). Numerous white mangroves were knocked down and covered by placement of the fill. The area is also inhabited by Batis (Batis maritima), red mangroves (Rhizophora mangle) and glasswort (Salicornia). All of Respondent's property to the west off and including the now filled slough is within the landward extent of waters of the State of Florida. This is not an "isolated area" as described in Section 17-4.28(2)(g), Florida Administrative Code which has only an infrequent exchange with a water body such as the Indian River. The fill in question here covers a slough which is a contiguous part of the Indian River. Respondent neither applied for nor obtained a permit from the Department of Environmental Regulation to allow placement of fill in waters of the state. The placement of the fill killed white mangroves in the fill area. As a result, the beneficial effect which marine vegetation has on maintaining water quality has been eliminated. This damage to the waters of the state can be remedied only by the removal of the fill and replanting of vegetation of the species recently destroyed. Petitioner has incurred expenses in the amount of $253.65 in investigating the nature of the fill and its resultant damage.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Environmental Regulation enter a Final Order pursuant to Section 403.121(2), Florida Statutes (1981), requiring Respondent, Danny F. Nail, to abate the condition caused by his unauthorized fill as provided for in paragraph 16 of the Notice of Violation entered herein. DONE and RECOMMENDED this 19th day of November, 1982, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 1982.
Findings Of Fact Petitioner failed to present any evidence in support of her contention that the permit in question should be issued for 10 rather than 5 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Protection issue permit no DO29-221380 to Petitioner herein, Vicki L. Woodward, for a period of 5 years. RECOMMENDED this 23rd day of September, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 23rd day of September, 1993. COPIES FURNISHED: Vicki L. Woodward Happy Traveler Campground 2710 Fountain Boulevard Tampa, Florida 33609 Susan Schwartz, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issues concern Petitioners' challenge to Respondent's decision to construct a sanitary sewer system to be known as the "Ladybird Waste Water Collection System." That system would be constructed in Escambia County, Florida, and would be funded in part by levying a special assessment on abutting property owners in accordance with Section 153.05, Florida Statutes. Petitioners' property is an abutting property on Ferguson Drive.
Findings Of Fact On November 30, 1989, Respondent passed a resolution calling for the design and construction of a waste water collection system known as the Ladybird Waste Water Collection System. Construction would involve the imposition of special assessments on the lots and parcels to be served by the system. These assessments are contemplated by Section 153.05, Florida Statutes. One of the streets to be served was Ferguson Drive. Petitioners' property is adjacent to that street. The project would be located in Escambia County, Florida. Although the residents in the area to be served by the system, when given the opportunity to request the construction of that system, did not favor the installation by a majority of residents answering the survey, the decision was reached to move forward with the project. The reason for this choice was that an alternative policy reason for carrying out the project, separate and apart from the request by persons living in the neighborhood, would be a determination that the construction needed to be carried out to alleviate a hazard to public health. The public health concerns form the basis for the decision to construct the waste water collection system as found in the Escambia County Utility Authorities Resolution No. 89-19 passed on November 30, 1989, as alluded to before. A survey of the general conditions in the area in question related to soil types and serviceability of the septic tank systems that were employed by the residents in the neighborhood, together with an understanding of the flow regime of sheet flow or storm water runoff, led to the conclusion that this area presents a health problem through the continued use of septic tanks in lieu of the waste water treatment system contemplated here. That perception is borne out by the facts presented at the hearing. The lots on Ferguson Drive average 0.63 acre and some have more than a single family residence located on them. Petitioners' lot is approximately one acre. The smaller lots on Ferguson Drive present problems with the performance of existing septic tanks due to the limited lot size. The area contemplated for service by the subject system is within a natural drainage basin bounded on the east by Interstate 10, on the south by a ridge line, on the west by a sparsely developed area, and on the north by a water body, Carpenter's Creek. The soils in the area are a sandy loam for several feet down. Then from four to ten feet down is hardpan which forms an impermeable layer restricting the percolation of effluent being discharged into the septic tank drainfield. In effect, there is a perched water table which causes problems with the function of the transport and treatment effectiveness. The treatment effectiveness refers to biological treatment. This is especially true in wet seasons. Consequently, water quality problems are promoted. When the drainfields overflow health problems are presented. In 1989 when the survey was being made to consider the appropriateness of the installation of the waste water treatment system, 124 lots were involved in the survey. Fifty-five of the lots were showing present or recent septic tank problems including raw sewage or waste water standing in the yard, running in the streets and in ditches adjacent to those yards. In addition to the health problems caused by the raw sewage, persons living in the neighborhood have disconnected their washing machines because of the inadequacies of the drainfields in addressing treatment of that washwater and by discharging the washwater onto the surface of the yards, they have discharged pathogens. Those pathogens from washwater are another form of health problem. When the surface water runoff or storm water runoff is moving across these properties it picks up the effluent creating greater problems during the transport. With the advent of the waste water treatment system these health problems would be alleviated in a manner that the septic tanks are incapable of providing. Of the areas which Respondent is aware of in Escambia County, which need attention for waste water problems, the neighborhood contemplated for service by the Ladybird Waste Water Collection System presents the most serious problems. Carlton Steen, who has lived in the neighborhood for 30 years, identified some of the problems which he has had with his septic tank. Ten times the septic tank has backed up and allowed the effluent to run into the house ruining his carpet. On June 8, 1991, he had problems with his septic tank, a point in time when it had not rained for four days before June 8, 1991. He has his septic tank maintained in the sense of pumping it out. His problems are so severe that he can't take showers in sequence and he cannot flush the toilets in his house as frequently as he would like due to the septic tank complications. He has disconnected his washing machine and allowed it to put washwater on the surface of the yard. He has seen raw sewage and washwater standing in his yard on raining days. Water stands on his yard frequently and he receives runoff from other properties. In addition to seeing the sewage, he has detected the sewage by its smell. Robbie Underwood lives in the neighborhood adjacent to the Porters. He has lived there for two years. His septic tank is in the back yard and he has experienced problems with it. He has problems with standing water south of where the septic tank is located. Water stands in his yard constantly. He has seen sewage and washwater in the yard and detected it by its appearance and odor. During the two years that he has lived at the residence he has had his septic tank system pumped out once but it filled back up in five days. The problems are so severe with his septic tank that he does not allow his six kids into that portion of the back yard where the septic tank drainfield is found. By contrast Petitioners and Katherine Johnson who also lives on Ferguson Drive have not experienced problems with their septic tanks. Notwithstanding the good fortune of the Porters and Ms. Johnson, the proof at hearing demonstrates a prevalent condition of ineffective septic tank systems in the neighborhood and the need to install the waste water treatment system to remediate the condition and protect public health. The surface water or storm water flow regime is such that the dangerous effluents make their way into Carpenter's Creek and affect the water quality of that water body. In addition to conducting a survey to ascertain the position of the residents in the neighborhood concerning the installation of a sanitary sewer system, Respondent received petitions that had their origins with certain residents in the neighborhood. The latter petitions did not lead to the action to construct the system. The final decision to construct the Ladybird Waste Water Collection System was reached by action of the Escambia County Utility Authority in Resolution No. 91-7 passed on January 31, 1991, following the publication of notice in a newspaper published in Escambia County. That notice reflected that the meeting would be held on January 31, 1991. Petitioner Ronnie M. Porter attended that meeting and could have spoken in opposition to the decision. He elected not to offer his remarks, preferring instead to file the petition which lead to the present hearing. Petitioners' complaints concern the contention that people didn't read the legal notices within the newspaper that alerted the public to the pending meeting of January 31, 1991. Nonetheless, Petitioner Ronnie M. Porter found out about the meeting and attended. He further observed that given the formal survey by the Respondent which did not eventuate in a majority of respondents calling for the installation of the waste water treatment system and the actions of citizens in the neighborhood not leading to sufficient interest in the project to cause it to occur to his knowledge, he was not concerned that the project would be pursued. Eventually he found out that the project had not been abandoned. It can be inferred that this resulted in his attendance at the meeting in which the decision was reached to pursue the project. Mr. Porter believes that if some specific mailout had been directed to the residents in the neighborhood a greater number of those persons would have had knowledge of the pendency of a decision on the project which was reached on January 31, 1991. In particular, he has no confidence that the newspaper advertisement and notice placed in accordance with Section 153.05, Florida Statutes, was effective in the neighborhood. On the other hand, he recognizes that the legal notice in the newspaper suffices and that the mailout was not mandatory. Mr. Porter also complains that those persons in the neighborhood who do favor the installation of the waste water treatment system do not recognize the true cost to them by way of assessment to support the system. Mr. Porter realizes that small lot sizes such as exists with a number of lots of Ferguson Drive can cause a failure in the septic tank system; however, he believes that people with those problems should bear the burden of the cost of the installation of the system. In this thinking, assessing him for a system he does not need is not fair.
Recommendation Based upon consideration of the fact found and the conclusion of law reached, it is, RECOMMENDED that a final order be entered which dismisses the petition for review of the decision to construct the Ladybird Waste Water Collection System and to fund a portion of the costs through an assessment. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of July, 1991. CHARLES C. ADAMS, 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 9th day of July, 1991.
