Findings Of Fact Background Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion. The exemption Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities: (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems . . . . At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992. WILLIAM J. KENDRICK 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 4th day of June 1992.
Findings Of Fact On September 1, 1976, Dennis E. Andrews, trustee of the Fannin Springs Trust (hereinafter "Trust"), applied to the Department of Environmental Regulation for a permit under Chapters 253 and 403, Florida Statutes, and for water quality certification under Public Law 92-500, for the construction of a floating barricade across Fannin Springs Run near its entrance to the Suwannee River in Levy County, Florida. Fannin Springs Run extends to Fannin Springs and the outer limits of the springs are about 400 feet from the Suwannee River. The Trust, composed of four trustees, owns the land surrounding the springs and extending to the river. This property is not commercialized, but permission is periodically granted to church and civic groups to use it for social and money- making purposes. In such instances, the particular group operates a soft drink concession stand and charges fifty cents admission to swimmers using the Trust dock and beach area at the springs. However, the Trust insists that any such groups carry liability insurance to indemnify it against any injuries arising from the use of the land and facilities. The property is not open to the general public unless incident to one of the above authorized uses. (Testimony of Usher, Exhibit 6) The proposed floating barrier would be constructed of styrofoam ballast with a wood frame approximately five feet wide and eighteen inches high to be moored on either side of the run by cables secured on the banks. The purpose of the barricade is to prevent boats from proceeding into the springs where a hazard to swimmers has existed for some time. Some of these craft have customarily maneuvered in and around the main swimming area known as the "boil" and utilized the Trust facilities, including dock and beach area, without permission or otherwise paying the concession fee, thus creating hard feelings between the swimming and boating groups. The presence of the boats also causes resentment by those on shore due to the litter composed of beer cans and the like deposited by their occupants. During summer weekends and holidays, the area becomes quite congested with perhaps several hundred individuals enjoying the springs, together with as many as one hundred boats in the area. Incidents have arisen in the past involving reckless boat operation in the springs. Some were reported to the Levy County Sheriff's Office; however, the former sheriff was unable to verify any of the complaints made to his office. It is conceded by all parties to the proceeding, and those members of the public who testified, that a definite safety hazard exists in the area. (Testimony of Usher, Berry, Hartley, Dean, Brown, Judah, Bancroft, Shifflette, A. Andrews, Locke, Exhibits 1, 2, 6) After receiving the permit application, Marcia Elder, an environmental specialist with the Department of Environmental Regulation, inspected the site and concluded that there was a definite need for the barricade, but that the proposed location, approximately 110 feet from the mouth of the "run," would effectively constitute a denial of public access to the springs. She therefore concluded that a diagonal barrier across the springs would serve the same purpose of safety to swimmers, but also provide the necessary access to those arriving by boats. She further determined that such a barrier would create no adverse effects on water quality or plant and animal life and other natural resources to any appreciable extent. (Testimony of Elder, Exhibit 7) Based on Elder's investigation, the Department of Environmental Regulation indicated to the Trust its intent to deny the application. After the parties were unable to resolve the matter informally, the Trust filed a petition for an administrative hearing on September 1, 1976. Formal notification of the Department's intent to deny the application was stated in a letter of December 7, 1976, which advised the Trust that the proposed denial was based on the fact that the barricade would not allow navigation into Fannin Springs, but would create a navigational hazard or a serious impediment to navigation on navigable waters, so as to be contrary to the public interest. (Exhibit 8) The petition was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. Subsequent to the filing of the petition in this Division, the parties negotiated further and arrived at a compromise settlement of the matter. It was agreed that if the Trust would place the barrier across the run at a point closer to the springs than previously requested, the necessary permit would be granted. Petitioners Berry and Bancroft, who had previously objected to any barrier at all, were notified by a letter of the Department, dated April 29, 1977, of the Department's intent to issue the modified permit. Thereafter, on May 11, 1977, they petitioned the Department of Environmental Regulation for a hearing, claiming that the proposed barrier would create a navigational hazard, impede navigation and not be in the public interest. The petition further alleged that the contemplated location of the barrier would be in an area where the water would be too deep for children to have access to the shallow water of the swimming area beyond the barrier. At the hearing, however, petitioners acknowledged the existence of a swimming hazard at the springs and Ms. Bancroft agreed that a diagonal barrier as originally proposed by Elder would be unobjectionable. (Testimony of Berry, Bancroft, Petition) If the barrier is placed across the run as agreed to by the Department and the Trust, it would be close to the mouth of the springs in an area of varying depths of 6 to 8 feet and at times 20 feet. The width of the run where the barrier is contemplated is approximately 110 feet. If boats are stopped in that area, congestion would result and boat passengers attempting to swim to the shallow water near the beach or to the land would be endangered by the boat traffic. It is possible, also, that fees would be charged such individuals to exit on the land of the Trust. If the diagonal barrier were permitted, there would be a much larger area for the use of boats, and access to the swimming area would be greatly facilitated. (Testimony of Usher, Berry, Dilger, Seykera, Judy) On July 19, 1977, the Board of County Commissioners of Levy County, Florida, passed a resolution stating that an extremely dangerous situation existed at Fannin Springs because of boaters encroaching upon swimmers. The resolution further stated that application would be made to the Division of Marine Resources of the Department of Natural Resources for the purpose of having Fannin Springs declared a restrictive area pursuant to Section 371.522, Florida Statutes, and having a floating barrier erected at the mouth of the springs to prevent boats from entering the swimming area. (Exhibit 5) On August 22, 1977, the Trust agreed to abide by the provisions of a proposed Department of the Army Corp of Engineers permit to install the barricade at a position across Fannin Springs Run 170 feet from the Suwannee River, subject to providing upland access when the barricade is installed and not charging a fee for the use of the barricade provided upland facilities are not used. (Exhibit 3)
Recommendation That the Department of Environmental Regulation issue a modified permit as set forth above to Fannin Springs Trust to construct a floating barrier in the Fannin Springs area, pursuant to Section 403.813(1)(d), Florida Statutes, and Rule 17-4.29(e), Florida Administrative Code. Done and Entered this 29th day of September, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1977. COPIES FURNISHED: Segundo J. Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 William D. Ryals, Esquire Post Office Drawer J Gainesville, Florida 32602 Mrs. Thomas Berry 8375 35th Avenue, North St. Petersburg, Florida 33710 Ms. Julia Bancroft 1414 Cleveland Street Apartment No. 1 Clearwater, Florida 33515 Appendix A List of Public Witnesses Name Address Bruce W. Dilger Suwannee River on U.S. 19 Camp Ground Old Town, Florida 32600 Mrs. Carl Shifflette Executive Vice President Suwannee River Citizens Assoc. Bell, Florida Peggy Seykora Route 3, Box 35 Old Town, Florida 32680 A.D. Andrews Post Office Box 1126 Chiefland, Florida 32626 Wayne C. Locke Post Office Box 147 Chiefland, Florida Fred Judy Route 3 Old Town, Florida
The Issue Whether Respondents have violated Chapter 403, Florida Statutes by dredge and fill activities at Sampson Lake, Bradford County, Florida, and should therefore be subject to corrective action and costs, as set forth in Notice of Violation and Orders for Corrective Action, dated March 4, 1982. This case arises from Petitioner's filing of a Notice of Violation and Orders for Corrective Action against Respondent Dudley P. Hardy on March 4, 1982, alleging that he conducted dredge and fill activities on property which he owned adjacent to Sampson Lake without obtaining a departmental permit for such activities. The notice further alleged that such activities created a stationary installation reasonably expected to be a source of pollution, and sought to have the Respondent take corrective action by restoring the affected area, and also to nay investigative costs, pursuant to Chapter 403, Florida Statutes. Respondent Hardy responded to the Notice of Violation and therein requested an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. He also averred that he only owned a one-half interest in the subject property, and that the other one-half interest was owned by J. D. Odom, Jr. and Vernie Phillips Odom, his wife. Based upon Petitioner's request, a formal hearing under Section 120.57(1), Florida Statutes, was scheduled for July 14-15, 1982, but pursuant to Petitioner's Motion for Continuance, the hearing was rescheduled for August 12- 13, 1982, by Order dated May 24, 1982. Petitioner thereafter amended its notice of violation to include J. D. Odom, Jr. and Vernie Phillips Odom as Respondents in the proceeding as indispensable parties. By Order dated July 7, 1982, Petitioner's Motion for Leave to Amend was granted. By Order of Consolidation dated April 28, 1982, this case was consolidated with five other cases involving similar activities at Sampson Lake. (DOAH Cases Nos. 82-907and 02-909 - 82-912) However, prior to the scheduled hearing, counsel for Petitioner advised the Hearing Officer that the other cases had been resolved by consent orders. At the hearing, Respondent J. D. Odom, Jr. appeared without counsel and was advised of his rights in a Chapter 120 administrative proceeding. He acknowledged his understanding of such rights and elected to proceed without counsel. Petitioner presented the testimony of three witnesses and submitted ten exhibits. Respondent testified in his own behalf and submitted two exhibits. After the conclusion of the hearing, Respondent J. Odom submitted a letter to the Hearing Officer, dated August 17, 1982, which enclosed a copy of a survey which had been previously received in evidence as Petitioner's Exhibit 1, and photographs which had not been received in evidence at the hearing. Petitioner filed a Motion to Strike these matters, and the motion is hereby partially granted. The additional photographs presented by Respondent can not be taken into consideration in this Recommended Order because they were not admitted in evidence at the hearing. Petitioner's post-hearing Proposed Findings of Fact, Conclusions of Law, and Proposed Recommended Order has been fully considered, and those portions not adopted herein are deemed either unnecessary or irrelevant, or unsupported in law or fact. In like manner, the statements made by Respondent Odom in his post-hearing letter that are unrelated to the photographs have been fully considered.
Findings Of Fact By warranty deed, dated March 12, 1980, Sampson Lake Properties, Inc. conveyed a parcel of the land located in Bradford County, Florida to Respondent, Dudley P. Hardy. The property is bordered by Sampson Lake on the west and Rowell Canal on the south. By warranty deed, dated July 10, 1980, Hardy conveyed an undivided one-half interest in the property to Respondents J. D. Odom, Jr. and Vernie Phillips Odom, his wife. (Testimony of J. Odom, Petitioner's Exhibits 5-6, Respondents' Exhibit 1) Rowell Canal is a man-made canal which is designated as Class III waters of the State, and connects lakes Rowell and Sampson, also Class III waters of the State. Lakes Sampson and Rowell are natural lakes that are owned by more than one person. Each lake is larger than ten acres with an average depth of more than two feet existing throughout the year, and neither becomes dry each year. (Testimony of Scott, Farmer, Petitioner's Exhibit 1) Respondents' property lies immediately west of a railroad right-of-way, and a railroad ditch lies parallel to the property next to a railroad trestle. The ditch was approximately 45 feet wide at Rowell Canal and some 215 feet long at the time Respondents acquired the property. (Testimony of Scott, Farmer) At some undisclosed date in 1981, Respondent J. Odom widened and deepened the west side of the ditch with a backhoe in order to create a canal which would enable him to launch boats at the Rowell Canal. The dirt removed from the ditch was piled along the side of the newly created canal. When finished, the canal was some 213 feet long, 20 to 30 feet wide, with depths ranging from 2 to 7 feet. At the present time, a natural earthen plug remains between the excavated canal and the Rowell Canal. During the rainy season, water overflows the plug and any waters from the Odom Canal would interchange to some degree with those of Rowell Canal. (Testimony of Scott, Farmer, Barber, Petitioner's Composite Exhibit 2, Respondents' Composite Exhibit 2) Respondent Odom did not apply for a permit to conduct the dredging and filling activities on his property. After Petitioner became aware of the situation in September, 1981, two members of the enforcement section of Petitioner's St. Johns River Subdistrict visited the site and determined that the Department had enforcement jurisdiction due to the fact that the dominant vegetation for approximately the first hundred feet of Respondents' canal from Rowell Canal to the north was a band of cypress trees (Taxodium Sp.). Such a wetland species serves as a guide to determining the landward extent of waters of the State, pursuant to Rules 17-4.02(17) and 17-4.28, Florida Administrative Code. There is also a large number of pine trees on the property. Thereafter, by letter of November 30, 1981, Petitioner's St. Johns River Subdistrict Manager sent a letter to Respondent Hardy placing him on notice concerning unauthorized dredging and filling activities. (Testimony of Scott, Farmer, Petitioner's Exhibits 3-4, Respondents' Exhibit 2) By warranty deed, dated July 26, 1982, Respondent Hardy conveyed his interest in the property to J. D. Odom, Jr. and Vernie Phillips Odom. (Testimony of Farmer, Petitioner's Exhibit 7) On August 10, 1982, DER personnel took dissolved oxygen readings of the dredged canal. Analysis of the water samples reflected depressed dissolved oxygen levels throughout the canal in violation of water quality standards for Class III waters. (Testimony of Farmer, Petitioner's Exhibit 9) A dead-end canal reasonably can be expected to cause pollution due to the fact that organic matter decays on the bottom and becomes a nutrient trap, thus depressing the dissolved oxygen in the water. During the inspection by DER personnel, gas bubbles were observed in the canal, thus indicating the presence of hydrogen sulphate, which is indicative of anaerobic conditions. The presence of fish in the canal at the present time indicates there is enough dissolved oxygen to sustain life, however. (Testimony of Scott, Farmer, Petitioner's Exhibit 9) Until a few years ago, Sampson Lake had not been developed. However, at the present time many canals have been built and Petitioner has issued twelve notices of violations in the area. Canals such as that of Respondents' can be expected to have an adverse cumulative impact on the waters of Rowell Canal and Sampson Lake due to the entry of water containing excessive nutrients. (Testimony of Barber) Respondent Odom Intended to remove the earthen plug at the end of his canal in order to gain access to Rowell Canal from his proposed cement boat ramp to provide access to Sampson Lake. About twelve to fifteen years ago, a dam was built on Sampson Lake to control the water level. Prior to construction of the dam, a road existed around the lake which could be driven upon approximately 50 percent of the time during dry season. At the present time, Respondent can transport a boat through his property to Rowell Canal with difficulty because of the existing trees. Prior to the dredge and fill activity of Respondent, a boat could be moved through the property to Rowell Canal, generally in the area where the present dredged canal is located. (Testimony of Respondent Odom) Petitioner expended $132.34 in costs of investigating Respondents' dredging and filling activities. (Testimony of Barber, Petitioner's Exhibit 10)
Recommendation That Petitioner issue a final order requiring Respondents to take corrective action with regard to their dredge and fill activities as specified in the Notice of Violation and Orders for Corrective Action, and to pay departmental investigative costs, but withhold the effective date thereof to provide Respondents a period of thirty days to make application for an "after- the-fact" permit pursuant to Rule 17-4.28, F.A.C. If they fail to make such application within the required period, the final order should then become effective. If application is made, the effect of the final order should be staved until conclusion of proceedings on the application. DONE and ENTERED this 7th day of September, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM 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 7th day of September, 1982. COPIES FURNISHED: Cynthia K. Christen, Esquire Assistant General Counsel and Michael Tammaro, Certified Legal Intern DePartment of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Dudley P. Hardy, Esquire Post Office Drawer 1030 Starke, Florida 32091 J. D. Odom, Jr. and Vernie Phillips Odom, his wife Post Office Box 517 Starke, Florida 32091 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, vs. CASE NO. 82-908 DUDLEY P. HARDY, J.D. ODOM, JR., and VERNIE PHILLIPS ODOM, Respondents. /
Findings Of Fact The Petitioner, Bocilla Waterways, Inc., is a corporate entity formed for the purpose of pursuing the subject project and installing the proposed channel. Randall Craig Noden, secretary- treasurer of that corporation, and a director of it, is a realtor who sells and develops property on Don Pedro Island, in the vicinity of the proposed project. He and other officers and directors of the Petitioner corporation have an interest in property on some, but not all, upland areas adjacent to Bocilla Lagoon, Old Bocilla Pass and Kettle Harbor, the water bodies germane to this proceeding. The Respondent, State of Florida, Department of Environmental Regulation, is a state agency charged with regulating dredge and fill projects in state waters and navigable waters pursuant to Chapters 253 and 403, Florida Statutes, and Rule Chapters 17-3 and 17-4, Florida Administrative Code. The Intervenor, Environmental Confederation of Southwest Florida (ECOSWF), is an incorporated, not-for-profit organization whose membership includes numerous environmentally concerned public interest organizations or associations located throughout southwest Florida. Members of the Intervenor use Old Bocilla Pass, Kettle Harbor, Bocilla Lagoon and Lemon Bay, an adjacent contiguous water body, for boating, swimming, fishing (both recreational and commercial), and collecting shellfish. Some of the membership of the Intervenor live in the immediate area of the proposed project. Project Description The Petitioner submitted a dredge and fill permit application to the Respondent, DER, proposing excavation of an access channel through the uplands of Don Pedro Island and adjacent transitional and submerged lands. The channel would be 100 feet wide, 450 feet long and dredged to a depth of -5.0 feet mean low water, with 2:1 side slopes grading to 3:1 at approximately +0.5 feet NGVD. The channel below mean high water would be 70 feet wide' and 670 feet long to a depth of -5.0 feet mean low water, with 2:1 side slopes. A rip-rap strip five feet wide would be placed in the littoral zone on either side of the channel. As originally proposed, the channel excavation would be performed by dragline and clamshell with spoil placed upon uplands for disposal. The excavation would progress from the west side of the project to the east, with plugs remaining at the eastern terminus of the channel until it stabilizes and the rip- rap is placed along the excavated channel. A turbidity curtain is proposed to be used to maintain water quality above state standards regarding turbidity. The applicant originally proposed to transplant seagrasses, displaced in the excavation process, back into the bottom of the excavated channel. Earthen slopes above mean high water would be vegetated in order to achieve stabilization. Some of these proposals were modified after negotiations with DER staff, such that the seagrass transplanting portion of the project would be accomplished in surrounding areas of the water bottom of Bocilla Lagoon and Kettle Harbor, specifically, bare areas and otherwise degrassed, vegetated flats. The applicant also proposes to install navigation aides in Bocilla Lagoon and Kettle Harbor in order to help maintain boat traffic in the channel, and to facilitate ingress and egress through the proposed channel. Don Pedro Island is a barrier island lying off the coast of Charlotte County, Florida. The only access to the island is by boat or helicopter. Bocilla proposes to excavate the proposed channel in order to, in part, provide better navigational access to Bocilla Lagoon which lies within Don Pedro Island. There is presently a navigational channel in the Bocilla Lagoon through what is called "Old Bocilla Pass," located at the north end of Bocilla Lagoon and communicating with Lemon Bay. Bocilla contends that the channel is somewhat tortuous and subject to shoaling, with concomitant grassbed damage by boat propellers, and that thus, a better navigational access in the form of a shorter, deeper, more direct channel from the southern end of Bocilla Lagoon to Kettle Harbor is required. The project would involve the removal of approximately .18 acres of mangroves (red and black mangroves) and .187 acres of seagrasses. Bocilla has proposed to mitigate the damage involved in the mangrove and seagrass removal by replanting mangroves, on three foot centers, along both sides of the proposed channel, and replanting or transplanting seagrasses in bare areas of Kettle Harbor, near the proposed project. Description of Pertinent State Waters Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass are designated as Class II, navigable waters of the state and are designated for shellfish propagation or harvesting. Shellfish, including clams and oysters, occur in Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass. As demonstrated by Intervenor's witnesses Wade, Cole and Wysocki, shellfish are harvestable and harvested in Bocilla Lagoon and Kettle Harbor at the present time. Bocilla Lagoon, Kettle Harbor and Old Bocilla Pass have also been conditionally approved by DNR for shellfish harvesting. DNR approves or prohibits waters for shellfish harvesting, and as a matter of policy generally prohibits shellfish harvesting in manmade "dead-end" canals. A "conditionally approved" water body, such as those involved herein, is an area approved for shellfish harvesting, but one which is more likely to be affected by pollution events. Thus, they are monitored more closely by DNR. Such events as additional residential development in an area, resulting in more septic tank sewage discharge, on-board toilet discharges from boats or the installation of a water and sewer treatment plant, can result in DNR temporarily or permanently closing a conditionally approved area to shellfish harvesting. Natural phenomenon such as the influx of red tide is also a factor which is considered by DNR in electing to classify a shellfish harvesting area as conditionally approved, and in electing to prohibit shellfish harvesting in an area. It was established through testimony of witnesses Feinstein and Setchfield of DER that long-standing DER policy provides that when DNR conditionally approves waters as being shellfish harvestable, that means they are "approved" for all shellfish harvesting purposes, but simply subjected to closer monitoring and with an increased likelihood of closure due to immediate pollution events. Therefore, the prohibition in Rule 17- 4.28(8)(a), Florida Administrative Code, prohibits issuance of dredge and fill permits in areas approved for shellfish harvesting or "conditionally" approved, since there is no difference in the "shellfish harvestable" nature of the waters until a closure occurs, which may simply occur sooner in conditionally approved waters. Bocilla Lagoon and Kettle Harbor are both naturally- formed water bodies, although some dredging has been allowed to occur in them in the past. They are not manmade, "dead-end" canals. Neither water body has the physical or biological characteristics of a "typical dead-end canal". Both are quite high quality habitats for the natural flora and fauna occurring in the marine environment in that area, and thus the general policy of DNR established by witnesses Cantrell, Fry, Feinstein and Sperling which prohibits shellfish harvesting in manmade, dead-end canals, does not apply to Bocilla Lagoon and Kettle Harbor. The water quality in both bodies of water is good and within DER standards generally. At times however, the water quality in Kettle Harbor suffers from a failure to meet DER dissolved oxygen standards contained in Chapter 17-3, Florida Administrative Code. Indeed, the water quality in Bocilla Lagoon is generally somewhat better than the water quality in Kettle Harbor. Environmental Impacts The project as currently proposed would result in the removal of approximately .18 acres of mangroves and .18 acres of seagrasses. Seagrasses and mangroves are important in providing areas of cover, food, and habitat for various estuarine species. Seagrasses serve to stabilize marine soils resulting in a decrease of suspended solids in contiguous waters with resulting decrease in turbidity in those waters. The loss of seagrasses can result in de- stabilization of the bottom sediment, such that suspended solids or turbidity increases in involved waters, which can result in decreased light penetration to the vegetated bottoms. Decreased light penetration, if of a sufficient degree, can result in the further loss of seagrasses and other bottom flora, causing in turn, increased turbidity and further decreased light penetration, with progressively destructive results to seagrass beds and other marine flora and fauna, with a substantial detrimental effect on the marine biological community in general. Mangroves serve as biological filters, trapping sediments, heavy metals, nutrients and other pollutants, uptaking them through their roots and converting them to usable plant food and thus filtering such harmful elements from state waters and rendering them into environmentally harmless substances. The removal of the mangroves at the proposed channel site will result in a loss of their beneficial effects. These beneficial effects will be absent for a greater period of time than it takes to merely plant replacement mangrove plants, since mature trees will be removed and mangrove seedlings will be replanted in their stead. Maturation of mangroves at this location would take in excess of three years, thus replacement of the beneficial filtering effects of the removed mangroves will take in excess of three years, to which time must be added the time which lapses between the original mangrove removal and the replanting of the seedlings, which would start the maturation period. Bocilla proposes to mitigate the removal of the mangroves by that replanting, as well as to transplant seagrasses removed from the channel site to other nearby areas currently bare of seagrass. Seagrass replanting is not a well-established practice. Compared to mangrove replanting, there is less experience, less information and a lower success ratio historically. Of the hundreds of dredge and fill projects occurring and approved throughout Florida, only three have involved replanting of removed seagrasses. Two of the projects involved the Port of Miami in Dade County and the "New Pass site" in Sarasota County. In both of these cases, seagrass replanting cannot be termed successful. The Port of Miami project resulted in a final survival rate of only twelve per cent of ,the grasses replanted. The New Pass project thus far has resulted in a survival rate of only 39 per cent of the seagrasses replanted, after only nine months. The Petitioner proposes that the replanting be accomplished by Mangrove Systems, Inc. That firm is headed by Robin Lewis, who oversaw the seagrass replanting project at the New Pass area in Sarasota. The location and method of replanting seagrasses at New Pass, as to water depth, type of bottom, type of grass and planting method, was generally similar to that proposed for the Bocilla project. That is, it would be accomplished by "plug planting," of "bald" spots at generally the same latitude and similar water depth. The survival rate at the end of six months at the New Pass project was 73 per cent. The survival rate at the end of nine months was 39 per cent. Mangrove Systems, Inc. and Mr. Lewis acknowledges that it is difficult to attribute the decrease in survival rates and grass shoot densities to any one cause, but that predation and a shift in sediments due to the vagaries of water currents, were probably the chief causes for the decrease in seagrass survival. Mangrove Systems, Inc. and the Petitioner propose a guarantee whereby Mangrove Systems, Inc. would replant more seagrasses, if needed, if a low survival rate occurs, which it defines to mean less than a 70 to 80 per cent survival rate after one or two years. There is no guarantee concerning the survival rate after a second planting, however. It was not established when the survival rate will be measured, in determining whether a 70 to 80 per cent survival is being achieved. In this connection, the central Florida coast where the Bocilla project is proposed, is not as conducive to seagrass growth as other more tropical marine areas, such as in the Florida Keys. In the area of the proposed project, seagrasses do not generally produce a great deal of seed and tend not to grow back very readily, once they are destroyed. Seagrasses in the Florida Keys tend to have, in comparison, much greater seed production and for this and other reasons, tend to reproduce themselves more readily once destroyed. They tend to be more amenable to transplanting in the Florida Keys marine environment. Mangrove Systems, Inc. has conducted a seagrass replanting project in the Florida Keys, however. One-third of the seagrasses planted in that project have not survived after two years. In short, the likelihood of seagrass survival has been insufficiently tested in the geographical area and latitude and in similar soils, water depths and temperatures as those involved in the instant case, such that reasonable assurance of adequate seagrass survival with the replanting project proposed will occur. Hydrographics and Maintenance Dredging The evidence is uncontradicted that the opening of the proposed channel would increase circulation in the southern end of Bocilla Lagoon. Increased circulation tends to have good effects in that it reduces stratification in water bodies. Stratification is a condition which occurs when the deeper waters of a given water body do not interchange with surface waters, but rather stratify or become characterized by layers of differing levels of dissolved oxygen, temperature, pH, etc. Typically, lower levels of a stratified body of water are characterized by low levels of dissolved oxygen. The present water quality of Bocilla Lagoon however, is not characterized by statification in any significant degree. It is very similar in water quality, in terms of dissolved oxygen, temperature, pH and other Chapter 17-3 water criteria, to that water quality of the nearby intra-coastal waterway into which the channel into and through Kettle Harbor would open. The intra-coastal waterway is agreed to be a well- circulated body of water, meeting all current State water quality standards. Accordingly, the opening of the channel and the increased circulation it may cause in the southern end of Bocilla Lagoon would have minimal, positive benefits. The change in circulation and in water current patterns and velocities caused by the opening of the direct, shorter channel from lower Bocilla Lagoon and Kettle Harbor may, negatively affect the present seagrass growth in seagrass beds in Kettle Harbor and Bocilla Lagoon in the vicinity of each end of the proposed channel, due in part to increased current velocities that would result from tidal exchange through the shorter, straight channel which would be opened. The expert witnesses in the area of hydrographics disagreed on the effect of the proposed channel on water circulation in the northern end of Bocilla Lagoon and Old Bocilla Pass, which is the north channel opening into northern Bocilla Lagoon. Witness Sperling for the Department opined that a major reduction in flows through Old Bocilla Pass channel would occur. Witness Tackney for the Petitioner acknowledged there would be some reduction in flow, and witness Olsen opined that a reduction in flow would occur, but there could also be an increase in circulation. Both witnesses Tackney and Olsen, in opining that a flow-through, enhanced circulation and flushing system may result from installing the channel, based that opinion to a significant degree, on their belief on the effects of wind on forcing water through the Pass and Bocilla Lagoon. No wind data or records were adduced however, to show the likely effects of wind on creating the Petitioner's desired "flow-through" system. Witness Sperling disagreed as to the significance of this flow-through effect, but there was no disagreement among the hydrographic experts that reduced flows through Old Bocilla Pass, which all acknowledged can occur to one degree or another, can result in increased sedimentation in Old Bocilla Pass, which can result in turn, in the need for increased maintenance dredging in Bocilla Lagoon and Old Bocilla Pass in the future. Maintenance dredging in Old Bocilla Pass may have to be increased if the proposed channel is constructed. The proposed channel itself will likely have to be periodically maintenance dredged as well. Maintenance dredging can cause environmental problems. Dredging activities result in the loss of marine habitat and the destabilization of marine sediments, with resulting increased turbidity and reduced photic effects, with concomitant detrimental effects on seagrasses and other bottom flora and fauna. Increased turbidity resulting from dredging and destabilization of sediments can directly adversely affect shellfish, including clams and oysters. Dredging impacts and siltation can negatively affect seagrass growth and water quality by increasing turbidity resulting in reduced photosynthesis in seagrass, by smothering the seagrass directly and by silting fauna and vegetation in adjacent productive grassbeds. Persons other than the officers and directors of Bocilla Waterways, Inc. own property and have riparian rights on the Old Bocilla Pass channel. These persons have in the past, and have the right in the future, to use Old Bocilla Pass for navigational purposes and could elect to maintenance dredge Old Bocilla Pass as they have in the past. If the proposed channel is constructed, there is obviously a more direct access and shorter water route between the waters of Bocilla Lagoon and Kettle Harbor. Water quality at times in Kettle Harbor has been worse than that in Bocilla Lagoon, especially in terms of low dissolved oxygen. If poorer water quality exists in Kettle Harbor due to low dissolved oxygen, an influx of red tide or some other cause, the construction of the proposed channel would increase the chance, by the more direct connection and increased flow in the southern end of Bocilla Lagoon, to contaminate the water of Bocilla Lagoon. The Public Interest Public opposition was expressed at the hearing, including that of ECOSWF, the Intervenor, some of whose members include people who live in the area of the proposed channel and use the involved waters. Local fishermen who harvest shellfish and finfish in Bocilla-Lagoon and Kettle Harbor, and use Old Bocilla Pass for navigation between Lemon Bay and Bocilla Lagoon, oppose the project, some of whom are members of the organized Fishermen of Florida, an association of approximately 25,000 members. Residents of Bocilla Lagoon and the immediate area, who habitually navigate Old Bocilla Pass, including local fishermen, have had little trouble navigating Old Bocilla Pass because they are familiar with the channel. Although the Petitioner alleges that the new channel is needed in part for the safety of people living on Bocilla Lagoon to assure quick access to the mainland in case of medical emergencies, the members of the public living on Bocilla Lagoon, (with one exception) and on surrounding areas of the island, do not wish such increased access for medical purposes. The island is presently reached from the mainland by either watercraft or helicopter. Formerly, there was a bridge connecting the island with the mainland which has since been destroyed, and not rebuilt. The residents living on Bocilla Lagoon, either full- time or part-time, buy their homes and choose to live there with knowledge of the present mode of access through Old Bocilla Pass, which is also the means they would achieve access to the mainland in case of medical emergencies or, alternatively, by helicopter transport or by transport over island roads to the ferry landing, with access to the mainland by ferry. The residents, in general, desire to maintain the isolation of life on the island as it presently exists and do not desire enhanced access between the island and the mainland, since part of the charm of having homes and living on the island is its isolation from the more populous mainland. Other than the testimony of Petitioner's witnesses, there was no testimony presented expressing any public need for the proposed channel, as for instance from public officials having knowledge of any medical or public health need for enhanced access to Bocilla Lagoon and the island. The proposed project is contrary to the public interest due to its adverse effects on seagrasses, shellfish, and water quality as delineated above. The adverse effects on seagrasses would result from the dredging itself and the destruction of a portion of the extant seagrass beds, and the resultant likelihood of poor survival rates in the attempted transplanting of seagrass as a replacement for that destroyed by the channel dredging. The proposed project is not in the public interest of those people with riparian rights on Old Bocilla Lagoon and northern Bocilla Lagoon, as there is substantial likelihood the proposed project will reduce flows through Old Bocilla Pass' channel with the resultant increased settling out of sediment and thus increased shoaling of that channel, which would concomitantly increase the need for maintenance dredging in Old Bocilla Lagoon and channel. Additional maintenance dredging and the possible negative effects of such additional dredging on marine, flora and fauna in Bocilla Lagoon and Old Bocilla Pass constitute an additional burden on these riparian owners, the bearing of which is not in their interest. The proposed project is also contrary to the public interest in that the proposed channel is deeper, wider and more direct as an entry into Bocilla Lagoon from Kettle Harbor and Lemon Bay, and would thus allow larger, deeper draft boats to enter Bocilla Lagoon with concomitant increased pollution from oils, greases and possible discharge of onboard sewage, which could have adverse environmental impacts on water quality in Bocilla Lagoon, as well as Kettle Harbor. The use of deeper draft, larger boats with larger propellers and more powerful engines could also result in damage to adjacent grassbeds in the vicinity of either ends of the proposed channel, either through direct propeller contact or through prop wash, when such boats are navigated in areas minimally deep enough to accommodate their draft. Since the installation of the proposed channel would result in a deeper, more readily used access to Bocilla Lagoon by larger boats with the remaining original channel usable also, at least for a time, there is a-substantial likelihood of increased residential development on riparian property around Bocilla Lagoon. This could have the result of reducing water quality in the lagoon, or potentially so, through septic tank leachate, stormwater runoff and other adverse environmental effects, such that the water in the lagoon traditionally approved for shellfish harvesting may be prohibited in the future.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That a Final Order be entered by the Department of Environmental Regulation denying both the variance application and the permit application sought by Bocilla Waterways, Inc. DONE and ENTERED this 24th day of January, 1985 in Tallahassee, Florida. P. MICHAEL RUFF 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 24th day of January, 1985. COPIES FURNISHED: Kenneth O. Oertel, Esquire Segundo J. Fernandez, Esquire 646 Lewis State Bank Building Tallahassee, Florida 32301 Douglas H. MacLaughlin, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Thomas W. Reese, Esquire Environmental Confederation of Southwest Florida 123 Eighth Street, North St. Petersburg, Florida 33701 Victoria Tschinkel, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Respondent Trevey is constructing condominium units on property adjacent to Oyster Creek in Charlotte County, and seeks to develop waterfront facilities for the use of condominium residents. Oyster Creek is a navigable stream flowing into Lemon Bay and thence into the Gulf of Mexico. The proposed site of Dock No. 1 is along the south bank of Oyster Creek in that portion of the stream which constitutes the main channel. Dock No. 2 would be located on a branch or loop off the main channel. The pedestrian bridge would cross this stream near the proposed site of dock No. 2 and would be part of a nature walk on Respondent Trevey's property situated on the south bank of the main channel. At some earlier time the stream was altered by the dredging of a canal which became the main channel and created the island which is the proposed site of the nature walk. In addition to this canal which forms a portion of the main channel, a network of smaller canals has been constructed on the north side of Oyster Creek, generally across from the sites of the construction proposed herein. These canals provide water access for homeowners in this area. Respondent Trevey observed some 92 boats moored in these canals. The main channel of Oyster Creak provides boater access to Lemon Hay and the Gulf of Mexico. Construction of proposed Dock No. 1 in this channel would therefore affect navigation to some degree. Dock No. 1 has a proposed length of 300 feet and a width of 4 feet. The dock would be built two to three feet away from the south bank of Oyster Creek, thus extending about six feet into the channel. The dock would be used to moor boats, on a "parallel parking" basis. Assuming a boat width of eight feet and proper mooring, protrusion into the stream would be approximately fourteen feet. Creek width in the Dock No. 1 site is about sixty feet. The water is shallow and varies with the seasons and tides. Navigation near the north bank opposite the Dock No. 1 site is not possible due to the presence of a large oyster bed. Therefore boat operators tend to maneuver their craft on the (proposed) dock side of the creek center line. The distance from the deepest part of the creek to the south bank where Dock No. 1 would be located averages about 33 feet. The proposed dock and moored boats would take up nearly half of this distance. Since boaters must stay near the deepest part of the channel, as well as avoid the oyster bed on the north bank, navigation around the dock and moored boats could prove difficult. A hazardous situation could occur when boats were passing in opposite directions in the dock area or when any Dock No. 1 boats were improperly moored. Operation of powerboats in the vicinity of Dock No. 2 is not feasible due to shallow waters nor is this branch of the stream utilized for access to open water. Therefore, construction of Dock No. 2 would not impede navigation. The presence in the area of a paved road, bridges, an industrial park, Petitioner's boat ramp and numerous canals contribute to degradation of water quality, disruption of wildlife and soil erosion. Studies made by Respondents established that water quality would not be further degraded by construction of the proposed facilities, nor would any wildlife or vegetation be significantly disturbed. The facilities are designed and located to avoid creating or contributing to soil erosion.
Recommendation From the foregoing findings of fact and conclusions of law it is RECOMMENDED that the Department of Environmental Regulation issue a permit to Howard Trevey for the construction of the proposed pedestrian bridge, nature walk and Dock No. 2, but deny that portion of the application pertaining to the proposed Dock No. 1. DONE and ORDERED this 5th day of April, 1982, in Tallahassee, Florida. R. T. CARPENTER, 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 5th day of April, 1982. COPIES FURNISHED: William A. Makela 2642 Titania Road Englewood, Florida 33533 Richard L. Smith, Esquire 2070 Ringling Boulevard Sarasota, Florida 33577 Charles G. Stephens, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida Victoria Tschinkel Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Petitioner is a property owners association. Its members own property in the Cahill Pines and Palms subdivision (hereinafter referred to as "Cahill") located on Big Pine Key in township 66 south, range 29 east, in Monroe County, Florida. Cahill is a primarily residential, waterfront subdivision with a man- made canal system. It was platted in 1955. Construction of the canal system began shortly thereafter and was completed in the early 1970's. The Cahill canal system consists of six canals: a 2300 feet long and 75 foot wide, east-west, main feeder canal that dead-ends at its eastern terminus and connects with Pine Channel at its western end /2 (hereinafter referred to as "Canal #1"); and four shorter, /3 but as wide, north-south canals which dead-end at their northern termini and either intersect with, or but for an obstruction would intersect with, Canal #1, at their southern ends (hereinafter referred to as, from west to east, "Canals #2, 3, 4, 5, and 6"). The approximate average water depths of the six canals are as follows: Canal #1, first 1500 feet, west to east: 17.1 feet; Canal #1, remaining 800 feet: 13.3 feet; Canal #2: 16.9 feet; Canal #3: 14.4 feet; Canal #4: 13.2 feet; Canal #5: 13.5 feet; and Canal #6: 15.3 feet. At the northern end of Canal #2 is a full-service commercial marina which has been in operation for at least seven years. The Cahill canal system is obstructed in two areas by earthen plugs: at the southern end of Canal #3 (hereinafter referred to as the "north plug"); and in Canal #1, approximately 1500 feet to the east of Pine Channel (hereinafter referred to as the "south plug"). The two plugs, which contain seagrasses, mangroves and other vegetation, are located on land that is privately owned and that has not been acquired by the federal government to be a part of the National Key Deer Refuge. Because of the existence of the plugs, navigational access to the open waters of Pine Channel from the Cahill canal system is available only from Canal #2 and from that portion of Canal #1 that is to the west of the south plug (hereinafter referred to as the "open or unplugged canals"). The remainder of the canal system is closed off (hereinafter referred to as the "closed or plugged canals"). The open canals contain a total of 25.964 million gallons of water and the closed canals contain a total of 38.964 million gallons of water. Neither the water in the open canals nor the water in the closed canals is presently of substandard quality. Fish and mollusks of various types are in abundant supply in the closed canals. There is a greater diversity and a larger number of living species in the open canals, however. The vegetation on the lots surrounding the Cahill canal system consists primarily of Australian Pines. The lack of other vegetation has resulted in scarification and presents a problem in terms of stormwater runoff entering the canals. This is particularly true with respect to the undeveloped lots, which are unlandscaped /4 and do not have an artificial shoreline. Of the 228 lots in the Cahill subdivision, approximately 73 are on the open canals (hereinafter referred to as the "open lots") and 155 are on the closed canals (hereinafter referred to as the "closed lots"). Approximately 44 of the open lots and approximately 75 of the closed lots are developed. Undeveloped open lots, on the average, sell for approximately $50,000.00. The average selling price of undeveloped closed lots is approximately $14,000.00 or $15,000.00. As a general rule, open lot residents of the Cahill subdivision, unlike their closed lot counterparts, have boats docked behind their homes. There is, as might be expected, considerably more boat traffic on the open canals than on the closed canals. The north and south plugs were the subject of a civil complaint filed in 1980 by the federal government in the United States District Court for the Southern District of Florida against Peace River Groveland, Inc., Charles Kinsell, Jr., and J.R. Shields. The matter was resolved by the entry of the following order by the judge assigned to the case: Whereas, the plaintiff, the United States of America, has filed a complaint in the above-styled matter, and the plaintiff and the defendant, by their respective attorneys, have each consented to the making and entry of this Final Judgment without further pleading or trial or adjudication of or finding on any issues of fact or law raised by the complaint. NOW, THEREFORE, without trial or adjudication of any issue of fact or law herein, and without this Final Judgment constituting evidence or admission by any party with respect to any issue in the pending action or in any other proceeding, and upon consent of the parties, it is hereby ORDERED, ADJUDGED AND DECREED as follows: I This Court has jurisdiction of the subject matter of this action and of the parties thereto. II The provisions of this Final Judgment shall be binding upon the parties jointly and severally, their successors and assigns; all directors, officers, agents, servants, and employees of the defendants. III For the purposes of this Order, all references to geographical locations shall be directed to the annotated Plat of the Cahill Pines and Palms Subdivision, Section 26 and 27, Township 66 South, Range 29 East, Monroe County, Florida, attached to this Order as Exhibit "A". IV Plaintiff and Defendants agree that PEACE RIVER GROVELAND, INC., owned and developed Blocks 6, 7, 8, 9, 10 of Cahill Pines and Palms Subdivision, Big Pine Key, in Sections 26 and 27, Township 66 South, range 29 East, Monroe County, Florida. During 1972 canals were excavated and plugs were left in at points "A" and "B". Between 1974 and 1979 the plugs (at Points "A" and "B") were breached two times by parties unknown. Both times the defendant, PEACE RIVER GROVELAND, INC., restored the plugs. V Defendants agree to maintain these canal plugs to the restored dimensions, unless and until an United States Army Corps of Engineers' permit to remove or otherwise alter these plugs has been granted. VI Plaintiff agrees to record this document in the official property records of Monroe County, Florida. VII Jurisdiction is retained for purpose of enabling the party to this Final Judgment to apply to this Court at any time for such further order and directions as may be necessary or appropriate for construction or carrying out of this Final Judgment, or for the modification or termination of any of the provisions thereof or for the enforcement or compliance thereof. Petitioner, on several prior occasions, has unsuccessfully sought a permit from the Department to remove the plugs. Its most recent prior application was denied by final order issued March 24, 1981, which adopted "in toto" the Recommended Order that the Hearing Officer had issued following a February 6, 1981, hearing. The permit application at issue in the instant case (hereinafter referred to as the "Application") was filed with the Department on July 19, 1991. It requests permission to permanently remove, to a depth of -5.5 feet N.G.V.D., the north and the south plugs, which, the Application accurately states, "are presently creating the blockages to property owners' access to Pine Channel and open water." The amount of material to be removed is considerably less than 10,000 cubic yards. Accompanying the Application was a letter, dated February 9, 1991, from John Cahill to Petitioner's President, the body of which read, in pertinent part, as follows: In response to your letter of January 28, 1991, we have no objections to you (as President of Cahill's Pines & Palms Property Owners Association) establishing a class action to remove the two blockages of the canals in said property. However, some years ago we sold the parcel which includes the blockages (and the present canals). At hand I do not have the addresses of the individuals that purchased this parcel but I am sure that if you contact either: Eric Kip . . . . or William Bradley . . . . They will be able to lead you in contacting them. I do appreciate that if opened these canals will connect to the canals which the County of Monroe has listed as owned by the heirs of Agnes M. Cahill[. I]f this is the reason for contacting us, you do in fact have our permission to proceed at your expense. I have not written to the County regarding this matter for the above mentioned reasons. The Department did not deem the Application complete until the spring of 1993, after it had received from Petitioner the results of a study of the Cahill canal system and its environs that had been done by John Larkin, an environmental consultant Petitioner had hired to perform the water quality sampling the Department required. Representatives of the Department and Petitioner engaged in considerable debate regarding the methods to be employed in conducting such sampling. A meeting on the matter was held on September 24, 1992, in the Department's Fort Myers office. Following the meeting, Petitioner's President sent the following letter, dated November 2, 1992, to Greg O'Connell, an Environmental Supervisor II in the Department's Water Resource Regulation Section: In regards to our meeting on September 1992 at your office for the compliance hearing, we have concluded that D.E.R. has accepted and acknowledged the completion of the original information supplied with ou[r] application with the exception of a water sample and a hydrographic survey as outlined during our meeting. The test sample stations and completion with four sample stations to be submitted to Mr. Ken Echternacht, P.E. of D.E.R. in Tallahassee. To further update our efforts and for your benefit as Superintendent of our application file, we had a meeting of our association membership and all present unanimously agreed to continue with our application to remove two plugs in the Cahill Subdivision located in Big Pine Key, Florida. The financial expense of approximately $17,000.00 is presently being negotiated. Mr. John Larkin will head these two remaining items of the completeness study. Mr. David Horan will continue as our representative and consulting attorney and continue to handle any exceptional litigations required. We would appreciate a written response to this letter and a directive from your office to the U.S. Army Corps of Engineers, Miami and the Dept. of Environmental Regulation in Marathon, Florida that our processing is being continued and that our application is not suspended at this time, as directed in your letter to these offices at an early date. Thank you for your continued work on this case. The Department responded to this November 2, 1992, letter, by sending the following letter to Petitioner's President: The Department received your letter on November 6, 1992 regarding the meeting held in the District's Fort Myers office on September 24, 1992. Water quality sampling and a hydrographic survey are the remaining items that prevent your application from being complete. As discussed in the September 24, 1992 meeting you are concerned about keeping costs down by sampling at a minimum number of stations and performing a minimum number of parameter analyses. Please be advised that the resultant data from four (4) sampling stations at unidentified locations must provide reasonable assurance that water quality will not be degraded by the proposed canal plug removal before a permit can be issued. All water quality sample results should be submitted to the Department's District Office at the above address. Application No. 441998285 remains incomplete as stated in the previous Department completeness summary letters. The Department is not pursuing denial of your application for failure to supply additional information since you have provided notification that progress is being made towards providing the remaining completeness items. Please provide the Department with an approximate date that the water quality data and hydrographic survey will be submitted. Until the completeness items are submitted, all processing of the application is suspended. If you have any questions concerning this matter, please contact Greg O'Connell at our Fort Myers office at the letterhead address or by telephone at (813) 332-6975. Water column and sediment samples were collected by Larkin in or around January of 1993. The samples were collected from four stations: two in the closed canals (one in Canal #3 and the other in Canal #5); one in the open canals, just to the south of the north plug; and one in Pine Channel. Samples from all four stations were integrated or composited and the integrated/composited samples were then tested and analyzed. The sediment samples were tested and analyzed one day after the expiration of the maximum allowable "holding time." With this one exception, the collection of the samples and their testing and analysis was accomplished in a scientifically sound manner designed to obtain accurate and reliable information regarding the composition and properties of these samples. It was Larkin's intention, if the testing and analysis of the integrated/composite samples revealed any "spike" (i.e., the presence of any contaminant in excess of minimum detection limits), to collect additional samples from each of the four stations and have them tested separately so as to determine from which station or stations the detected contaminant or contaminants had come. The testing and analysis of the integrated/composite water column samples failed to reveal the presence of any contaminants in excess of minimum detection levels, and the results of the testing and analysis of the sediment samples, considered in conjunction with the reported visual observations that had been made regarding the outstanding transparency of the water in the Cahill canal system, reflected no abnormalities of concern. Accordingly, no additional sampling, testing or analysis was done before this information was provided to the Department. In or about late February of 1993, the Department received the initial results of Larkin's study. By letter dated March 25, 1993, the Department notified Petitioner's President of what it considered to be the study's shortcomings. The body of the letter read as follows: The Department received your water quality sampling results on February 24 and 26, 1993. The sampling methodology used to collect the samples for the following parameters is not consistent with the Department and EPA procedures: WATER COLUMN Gasoline by-products Diesel by-products Pesticide scan Oils and grease SEDIMENT CHEMISTRY Aluminum Cadmium Copper lead Zinc Arsenic Diesel by-products Pesticide scan Herbicide scan Total organic carbon Specifically the background station was composited with potential impact stations (samples collected within the plugged canals) and a station located just outside of plugged canals. The data submitted does not provide representative water column and sediment quality in the plugged canals because it was mixed with the ambient station. The "integrated composites" collected and analyzed provide no means to compare the potential impact areas (plugged canals) with the ambient water quality. The purpose of collecting the water quality data is to determine if the proposed opening of the plugged canal system will have an [e]ffect on the adjacent Outstanding Florida Waters. The sampling methodology utilized is invalid and does not address the purpose of this investigation. The Department cannot make a determination of what potential impacts the opening of the plugged canal systems will have on the adjacent Outstanding Florida Waters. Reasonable assurances have not been provided that ambient water quality will not be degraded by the proposed canal plug removal. The total suspended solid samples were run after the expiration of the holding time and the resultant data is invalid. Water column total organic carbon samples were collected at depths and bottom, not mid-depth and 20 cm. above bottom as requested. Oxidation reduction potential data was collected at a sample depth of 2' and 10', not at 20 cm. above the bottom as requested. Please resample the above parameters using methodology consistent with the Department's request or request that the Department continue to process your application with the data submitted. The Department has not received the hydrographic survey requested in previous completeness summaries and discussed in the September 24, 1992 meeting held in the District's Fort Myers office. If you have any questions concerning this matter, please contact Greg O'Connell of our Fort Myers office at the letterhead address or by telephone at (813) 332-6975. Larkin, on behalf of Petitioner, responded to the Department by letter dated March 27, 1993. In his letter, Larkin argued that the sampling, testing and analytical procedures and techniques that were employed in his study were those upon which the Department and Petitioner agreed at their September 24, 1992, meeting in Fort Myers. Larkin asserted that "[t]his agreement was formed between the agency (FDER) and the Property Owners to save on exorbitant testing costs" and that the procedures and techniques agreed upon are "proven and accepted . . . throughout all agencies and . . . widely used to accomplish cost savings." Larkin then stated the following: The results were that there was no indication of any pollutant in the water column. The metals were all in normal range for any background comparison. The sediments showed counts in Fluoranthene (2700 ug/kg), Silvex (less than 0.75 ug/kg) and 2,4-D (less than 7.5 ug/kg). All parameters in the composite water column samplings were below contamination levels, even at the multiplier of 4 and found in much greater quantities throughout the Florida Keys. Consequently, no additional testing would be necessary as per our agreement. As indicated by your March 25, 1993 letter, it seems that you (FDER) are ignoring our compliance meeting on September 24, 1992 in regard to this issue. As you have stated, "the integrated composites collected and analyzed, provide no means to compare the potential impact areas (plugged canals) with the ambient water quality" is partially true. What is not stated, is that the composite water column data- at "extremely low" limits of detection- show no indication of parameters that would effect the quality of any water- anywhere- at any time, even at 4 times the minimum detection limit. Therefore, the procedure has saved the property owners several dollars in testing costs and should [as]sure F.D.E.R. that there [are] no water column pollutants in the area of the 4 stations, including the ambient areas. Ergo, the ambient water quality will not be degraded by the proposed canal plug removal and is even more clear to that fact in the individual testing included at the individual stations. In regard to the suspended solids being tested after the expiration of the holding period, please forgive the lab on record. The samples and handling of the same were completed as noted in the enclosed chain of custody record. The lab apologizes and will re-run any more TSS samples free of charge, if necessary. However, the future sampling will most likely be of better quality. As stated in the data sent to F.D.E.R., there was a 3" rain event just before sampling. As stated in the study in regard to secchi disc readings, the water clarity was improving. Please advise me if you want repeated sampling of the parameter or if you will accept the long approved method of secchi reading in lieu of the fact the ambient water was less clear than the closed canals. Water column T.O.C. samples were collected as required. The lab report only typed out the last word of the sample description. Please refer to the sample data (samples run on sample points as calibrated insitu on Jan. 13, 1993 data sheet) and also on the enclosed chain of custody record. Oxidation redux potential was not only taken as required, but was included at many other depths and stations where it was not required by F.D.E.R. Please refer to Jan. 13 & Jan. 18, 1993 sample data insitu sheets. Also please read about the RPD (Redux Potential- Discontinuity layer) in the conclusion section of my report. In light of the above facts, I request that you read the Cahill Canal Study sent to you in depth and please note that the additional data included in the study paints a picture of un-requiredthe Cahill canal eco-system,[ a] holistic view that show[s] the plugged canals as no threat whatsoever to the ambient waters. With respect to the "hydrographic survey" the Department required, Larkin promised to provide a "complete study" sometime after April 8, 1993. Following this exchange of letters in March of 1993, neither Petitioner nor anyone acting on its behalf conducted any further water column or sediment sampling, testing or analysis. On or about May 20, 1993, the Department conducted a field survey and appraisal of the project site. During its field survey and appraisal, the Department took approximately 56 dissolved oxygen readings at 19 different stations (18 in the Cahill canal system and one in Pine Channel). /5 The highest reading was 13.3 milligrams per liter, which was obtained at a station at the northern terminus of Canal #3. There were only two readings below 5.0 milligrams per liter (a 4.5 milligrams per liter reading obtained at a station in Canal #6 and a 4.6 milligrams per liter reading obtained at a station in Canal #5). The two readings obtained from the station in Pine Channel were both 9.3 milligrams per liter. The hydrographic information that Petitioner provided the Department was reviewed by Kenneth Echternacht, a hydrologist employed by the Department. After reviewing the information, Echternacht reached the following scientifically sound and credible conclusions, which he reduced to writing in a memorandum, dated June 25, 1993, that he sent to O'Connell: The estimated flushing for the presently open portion of the waterway was calculated to be 14.5 days. The flushing for the open section exceeds the 4 day flushing criterion by approximately 3.6 times. Clearly, the open portion poses a potential problem to the maintenance of acceptable water quality. For the presently closed sections of the waterway, the calculated flushing time was found to be 38.6 days. Again, this system would pose a significant potential for contamination to adjacent open waters if opened for use. The waters behind the barrier that presently appear to pose no problem would clearly become a repository for contaminants associated with boat usage. Because of the exceptionally long flushing time, contaminants would build up over time. Below standard water quality throughout the waterway would be expected and, associated with this, below standard water would be exported into adjacent clean water on each ebbing tide. Recommendation Based on hydrographic considerations, the project is not permittable. On August 20, 1993, the Department issued a notice of its intent to deny Petitioner's application for a permit for its plug removal project. In its notice the Department listed six proposed "changes to the project [that] may make the project permittable." Removal of the plugs as proposed will result, at least temporarily, in the elimination of the vegetation presently found on the plugs. Any regrowth would take six months to a year and be in the form of seagrasses or algae. Petitioner's plug removal project will also spur development in the Cahill subdivision and lead to an increase in boat traffic in the Cahill canal system, as well as in the adjacent waters of Pine Channel. Such activity will result in the discharge of additional contaminants in these waterways. As Echternacht stated in his June 25, 1993, memorandum that he sent to O'Connell, "[b]ecause of the [canal system's] exceptionally long flushing time, [these] contaminants would build up over time" and result in a significant degradation of the water quality of not only the Cahill canals, but also of Pine Channel, into which Cahill canals flow. This degradation of water quality will have an adverse effect on marine productivity and the conservation of fish and wildlife that now inhabit these waterways. Consequently, in the long run, the removal of the plugs will negatively impact fishing opportunities in the area. On the other hand, the project will have a beneficial effect on navigation and recreational boating and related activities. It will have no impact on historical and archaeological resources. Backfilling the canals to a depth of -6.0 MLW in conjunction with plug removal, as the Department suggested in its August 20, 1993, Notice of Permit Denial, would result in less deterioration of water quality than would otherwise be the case, but it would not completely solve the water quality problems caused by plug removal. Moreover, such backfilling would create an ideal habitat for the upside-down stinging jellyfish, whose presence would discourage people from using the canals for swimming and similar recreational activities. In any event, Petitioner has indicated that this proposed mitigative measure is unacceptable to it. Petitioner has proposed no mitigative measures of its own, although it has suggested that "future monitoring could be set up to determine any possible water quality deterioration" and if "there was any 'significant' water quality deterioration . . . the plugs could be reconstructed in their present location."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order denying Petitioner's application for a dredge and fill permit to remove the north and south plugs separating the open and closed canals in the Cahill canal system. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of May, 1994. STUART M. LERNER 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 May, 1994.
Findings Of Fact The Respondent owns property in Lake County, Florida which adjoins North Lake Holly. North Lake Holly is a fresh water lake. On an undetermined date between December, 1975 and September, 1976, the Respondent caused a horseshoe-shaped basin to be dredged along the shoreline of North Lake Holly adjoining his property. The fill material taken from the dredged area was deposited along the shore of the lake to farm a beach. The basin is approximately 90' long, 50' wide, and 6' deep. The Respondent has erected a dwelling house on his property, and it appears that the dredging was done in order to transform the shoreline of the lake from a vegetated littoral zone to a beach and boat basin. The Department confirmed the violations in December, 1976, and sought to negotiate a restoration plan with the Respondent. The formal Notice of Violation was issued an November 17, 1977. The dredged area was previously a shallow littoral zone dominated by wetlands vegetation. The most prevalent vegetation was sawgrass, but there were also abundant quantities of cattails, maidencane, arrowhead, and willows. The dredging activity relates to only a small portion of the shoreline of North Lake Holly. The activity nonetheless has resulted in the alteration of the characteristics of the lake. The marsh area which fringes the lake serves as habitat for fish and other wildlife, and also serves to filter runoff which enters the lake from the uplands. The Respondent's activities have obliterated a portion of the wildlife habitat, and provide an avenue for some uplands runoff to be discharged directly into North Lake Holly without the benefit of being filtered through wetlands vegetation. The quality of waters in central Florida lakes is related directly to the amount of development along the shoreline. The greater degree of alteration of the shoreline, the greater degree of deterioration of water quality, and the greater the deterioration of wildlife habitat. A project of the magnitude of that accomplished by the Respondent may have no clearly measurable impact upon water quality and wildlife habitat since the rest of North Lake Holly is surrounded by a broad littoral zone. The only impact that the project can have is, nonetheless, adverse. If a project such as the Respondent's is approved, the Department could not, consonant with due process and equal protection concepts prohibit further such alterations of the shoreline. It is likely that some aquatic vegetation will reestablish itself along the shoreline of the dredged area. Such a natural restoration will not, however, alleviate the negative impacts of the Respondent's dredging. The steep inclines of the dredged area will allow only a very narrow rim of vegetation, which cannot be expected to provide habitat and protect water quality to remotely the extent of the, previous undisturbed broad littoral zone. Furthermore, in the time since the project was completed, no significant vegetative zone has reestablished itself. It is possible for the Respondent to gain access to the lake for boating and other recreational purposes without totally obliterating the littoral zone that was in the area. The Department has offered a restoration plan which would accomplish this result. The Respondent undertook the dredge and fill activity without seeking a permit from the Department, and he continues to operate what amounts to a stationary installation which will serve as a source of pollutants to North Lake Holly without any valid permit issued by the Department. The Department has spent $229.41 in assessable costs in investigating and attempting to rectify the illegal dredge and fill activity undertaken by the Respondent.
Findings Of Fact By application filed on October 29, 1980, Respondent/Applicant, Harvey B. Ulano, sought the issuance of a permit from Respondent, Department of Environmental Regulation, to authorize the construction of a private pier for mooring a sailboat at 2640 Northwest Collins Cove Road, Stuart, Florida. A copy of the permit application may be found as DER Exhibit 1. The property in question lies on the North Fork of the St. Lucie River in St. Lucie County. The River is classified as a Class III Water of the Sate. Respondent/Applicant's proposal was received by the Department and reviewed for compliance with applicable State water quality standards. The Department concluded that all statutory and rule requirements, criteria, standards and provisions had been met, including those pertaining to biological productivity impact, water quality and navigation. On January 23, 1981, the Department issued its Letter of Intent to Issue a permit with certain conditions therein, including a prohibition against any dredging and filling associated with the project, the required restoration of submerged lands disturbed by construction activities to their original configuration, the employment of an effective means of turbidity control, and a prohibition against live aboards on boats docked at the pier. A copy of the Letter of Intent to Issue may be found as DER Exhibit 2. The applicant intends to construct a 276 foot long pier from an existing concrete retaining wall on his property which fronts the St. Lucie River. The pier will be built at a perpendicular angle with the shoreline and will be 6 feet wide for the first 240 feet, and 12 feet wide for the remainder of its length. There will be no building or boathouse constructed on the dock, nor will pilings extend above the docking until the area where the boats will be tied. The river is approximately 1500 to 2000 feet wide at the proposed project site. However, the depth of the water close to the shoreline is not sufficient to moor larger boats at low tide. Therefore, it is necessary that the length of the pier be 276 feet in order to insure a minimum 3-foot water depth at all times. Applicant's lot is odd-shaped in size. The waterfront footage is approximately 135 feet. Its sides measure approximately 330 feet on the north boundary and 200 feet on the south. The property of Petitioner, Werner Jungmann, adjoins that of Applicant on the south side and also fronts the river. The pier will be constructed on the northwest corner of Ulano's property, which is the most distant point from Jungmann. Because of the odd shapes of the Applicant's and Petitioner's lots, the end of the pier will project slightly within the lakeward extension of Jungmann's property line. However, the design of the pier is such that it should not obstruct or impair the view of the river now enjoyed by the Petitioner. Navigation in the river and existing channel adjacent to the pier will not be affected by the proposed activity. The shallow water depth in the river next to the shoreline already precludes movements by boats close to the shore. The Department has imposed certain conditions upon the construction and future use of the pier (DER Exhibit 2). These conditions, together with the plans submitted by Applicant (DER Exhibit 1), constitute reasonable assurances that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code, and that the proposed activity will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Respondent/Applicant, Harvey B. Ulano, a permit to construct a private pier for mooring a sailboat on the North Fork, St. Lucie River, subject to those conditions set forth in the Department's Letter of Intent to Issue dated February 23, 1981. DONE and ENTERED this 29th day of May, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1981. COPIES FURNISHED: Ernon N. Sidaway, III, Esquire Post Office Box 3388 Fort Pierce, Florida 33454 Alfred J. Malefatto, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Edward B. Galante, Esquire Suite 310 Florida National Bank Building 301 East Ocean Boulevard Stuart, Florida 33494
Findings Of Fact The County applied on August 24, 1979, for a permit to construct a swimming beach on the southwest shore of Sylvan Lake in the northwest part of Seminole County, Florida. On December 4, 1979, the Department gave notice of its intent to grant the permit. As proposed, the beach would be 150 feet in length along the shoreline and be approximately 65 feet deep, 40 feet on the land side of the waterline and 25 feet on the lake side of the shore waterline. Three dock structures are also proposed. The first is a boat dock to be 6 feet wide, which will extend into the lake for 25 feet with a 15 foot "L" at its end. In addition, a 6 foot wide, 20 foot long fishing pier is proposed with a 6 by 20 foot "T" on its end. Finally, the County proposes constructing a 6 foot wide 15 foot long aquatic study platform that would terminate in a 6 by 30 foot "T". The County plans to remove vegetation from an area of 150 feet long by 25 feet. As agreed at the hearing, this removal would be by hand only.. No machinery would be used. The site of the project is owned by the County. As part of its application, the County agrees to leave undisturbed 2,630 feet of the remaining shoreline it owns. At the present time approximately 20 percent of the lake's total shoreline is occupied by developed residential property. Many of the homeowners have removed the vegetation from their shorelines. The County's agreement not to alter 90 percent of its shoreline would therefore be beneficial to preserving the natural state of the lake. Sylvan Lake is an oligotropic spring-fed lake of 160 acres. Its well vegetated shoreline alternates between large grassy marshes and well-defined uplands. The lake bottom in the project site is firm sand with little potential for causing a turbidity problem. The lake has excellent water quality. It is a valuable habitat for fish and aquatic dependent birds and mammals. The vegetation along the shoreline of the project site consist of sawgrass, pickerelweed, and some arrowhead on the land side with spatterdock and mats of floating maidencane on the water side. In a freshwater closed system such as this lake the rooted emergent plants are vital to maintaining the quality of the water. The plants stabilize nutrients, expert oxygen and keep the water cool. The removal of this vegetation from a 150 foot strip will have an adverse but insignificant impact on the biological resources and the water quality of the lake. The construction of the fishing pier, boat dock, and observation platform will have no lasting environmental impact and the limited turbidity which may be generated during their construction can be well contained by the use of turbidity curtains. The swimming beach is a part of the County's plan for a diverse recreational park to provide the public with facilities for nature trails, baseball, picnicking, etc. The water classification of Sylvan Lake is Class III. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1979). In this proceeding the Respondent, County, has the burden of proving that it has given reasonable assurances that the short term and long term effects of the proposed project will not result in violations of the water quality standards of Chapter 17-3, Florida Administrative Code. Section 17- 4.28(3), Florida Administrative Code; Dowdy v. Department of Environmental Regulation, Case No. 79-219, Recommended Order (DOAH July 19, 1979). That burden has been carried. The water quality standards of a Class III body such as Sylvan Lake are set out in Section 17-3.09, Florida Administrative Code. There is a preponderance of competent and substantial evidence that those standards in either the long term or in the short term will not be violated by the proposed project. The requisite reasonable assurances have therefore been given by the applicant. Hand removal of aquatic vegetation from a 150 foot strip of shoreline on a 186 acre lake, will have at most, a de minimus impact on the marine life, water quality or neighboring biota of Sylvan Lake. The applicant has met the criteria for the issuance of a permit, pursuant to Section 17-4.07, Florida Administrative Code.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the State of Florida, Department of Environmental Regulation determining that the requested dredge and fill permit be issued subject to the usual conditions and subject to the applicant's stipulation that any vegetation removal will be performed by hand and subject to any conditions contained in the Notice of Intent To Issue Permit. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 30th day of April, 1980. MICHAEL PEARCE DODSON Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Mr. & Mrs. Gilbert Lee Swartz Route 1, Box 228 DD South Sylvan Lake Drive Sanford, FL 32771 Nikki Clayton Seminole County Courthouse Room 302, 301 N. Park Avenue Sanford, FL 32771 Segundo J. Fernandez, Esq. and Stanley J. Niego, Esq. Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32301 Mr. Raymond Lipton Route 1, Box 60-A Longwood, FL 32750
Findings Of Fact The Petitioners and an adjoining land owner have been involved in a dispute respecting the boundary between their property. The adjoining land owner developed a residential community known as the Bayside Estates subdivision. A canal system was dredged creating waterfront lots in the subdivision, and the canal system was connected to a waterway which flows to the Gulf of Mexico. The portion of the canal system which connects it to the waterway leading to the Gulf of Mexico was constructed on property owned by the Petitioners. Litigation respecting the rights of the Petitioners and adjoining land owners has been conducted in the Circuit Court of the 20th Judicial Circuit, Lee County, Florida, and in the Florida Second District Court of Appeal. Petitioners are seeking to construct a cable across the joining portion of the canal system, which they contend lies totally within their property. The canal system is a navigable waterway. The stated purpose of the Petitioners' proposed project is to prevent persons who live above the Petitioners' property from using the waterway for boating access to the Gulf of Mexico. The project would serve as a clear obstruction to navigation within the canal system. The Bayside Estates subdivision is located on the canal system above the point where the Petitioners would construct their proposed cable. There are approximately 300 property owners in the subdivision and as many as 150 of them are boat owners. These persons presently utilize the portion of the canal system which the Petitioners propose to block for water access to the Gulf of Mexico. These persons purchased property in the subdivision with the understanding and the belief that they would have water access to the Gulf of Mexico. Other than the fact that it would serve as an obstruction to navigation, the Petitioners, proposed cable would have no environmental impact, except perhaps an aesthetic one. The cable would not obstruct the flow of water, and would not be a source of pollution.
