The Issue The issue is whether Respondent, Daniel A. Reynolds, should take corrective action and pay investigative costs for allegedly controlling, eradicating, removing, or otherwise altering aquatic vegetation on eighty-seven feet of shoreline adjacent to his property on Lake June-in-Winter (Lake June) in Highlands County, Florida, without an aquatic plant management permit.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Respondent is the riparian owner of the property located at 260 Lake June Road, Lake Placid, Highlands County (County), Florida. He has owned the property since 2001 and resides there with his wife and two young children. The parcel is identified as Parcel ID Number C-25-36-29-A00-0171-0000. The southern boundary of his property, which extends around eighty-seven feet, abuts Lake June. Respondent has constructed a partially covered dock extending into the waters of Lake June, on which jet skis, a canoe, and other recreational equipment are stored. The Department is the administrative agency charged with protecting the State's water resources and administering and enforcing the provisions of Part I, Chapter 369, Florida Statutes, and the rules promulgated under Title 62 of the Florida Administrative Code. The parties have stipulated that Lake June is not wholly-owned by one person; that it was not artificially created to be used exclusively for agricultural purposes; that it is not an electrical power plant cooling pond, reservoir, or canal; and that it has a surface area greater than ten acres. As such, the parties agree that Lake June constitutes "waters" or "waters of the state" within the meaning of Florida Administrative Code Rule 62C-20.0015(23), and is not exempt from the Department's aquatic plant management permitting program under Florida Administrative Code Rule 62C-20.0035. Unless expressly exempted, a riparian owner who wishes to control, eradicate, remove, or otherwise alter any aquatic plants in waters of the state must obtain an aquatic plant management permit from the Department. See § 369.20(7), Fla. Stat.; Fla. Admin. Code R. 62C-20.002(1). An aquatic plant is defined as "any plant, including a floating plant, emersed, submersed, or ditchbank species, growing in, or closely associated with, an aquatic environment, and includes any part or seed of such plant." See Fla. Admin. Code R. 62C-20.0015(1). These plants are found not only in the water, but also along the shoreline when the water recedes below the high water mark. They provide important habitat for fish, insects, birds, frogs, and other animals. Torpedo Grass and Maidencane are two common species of aquatic plants or weeds. Applications for a permit are filed with one of the Department's regional offices. After a site inspection is made, a permit is issued as a matter of right without charge or the need for a hearing, and it is effective for a period of three years. A Department witness indicated that there are approximately 1,300 active permits at the present time, including an undisclosed number of permits for property owners on Lake June.3 It is undisputed that Respondent has never obtained a permit. A statutory exemption provides that "a riparian owner may physically or mechanically remove herbaceous aquatic plants . . . within an area delimited by up to 50 percent of the property owner's frontage or 50 feet, whichever is less, and by a sufficient length waterward from, and perpendicular to, the riparian owner's shoreline to create a corridor to allow access for a boat or swimmer to reach open water." § 369.20(8), Fla. Stat. The exemption was established so that riparian owners could create a vegetation-free access corridor to the waterbody adjacent to their upland property. The statute makes clear that "physical or mechanical removal does not include the use of any chemicals . . . ." Id. If chemicals are used, the exemption does not apply. Under the foregoing exemption, Respondent could remove up to 43.5 feet of aquatic vegetation in front of his property on Lake June, or one-half of his eighty-seven foot shoreline. By way of background, since purchasing his property in 2001, Respondent has had a long and acrimonious relationship with his two next door neighbors, Mr. Slevins (to the west) and Mr. Krips (to the east).4 Neither neighbor uses Lake June for recreational purposes. After purchasing the property, Respondent says that Mr. Slevin began to verbally harass and threaten his family, particularly his wife. When Respondent observed the two neighbors repeatedly trespassing on his property, including the placing of an irrigation system and a garden over the boundary lines, Respondent built a fence around his lot, which engendered a circuit court action by the neighbors over the correct boundary line of the adjoining properties. Respondent says the action was resolved in his favor. According to Respondent, Mr. Slevins and Mr. Krips have filed "probably 100 to 200 different complaints on everything from barking dogs, to weeding the yard to calling DEP." Respondent also indicated that Mr. Slevins is a personal friend of the Highlands County Lakes Manager, Mr. Ford. As his title implies, Mr. Ford has the responsibility of inspecting the lakes in the County. If he believes that aquatic vegetation has been unlawfully removed or altered, he notifies the Department's South Central Field Office (Field Office) in Bartow since the County has no enforcement authority. Mr. Reynolds says that a personal and social relationship exists between Mr. Slevins and Mr. Ford, and through that relationship, Mr. Slevins encouraged Mr. Ford to file at least two complaints with the Field Office alleging that Respondent removed aquatic vegetation in Lake June without a permit. In 2002, the Department received a complaint about "aquatic plant management activity" on Respondent's property. There is no indication in the record of who filed the complaint, although Respondent suspects it was generated by Mr. Slevins. In any event, after an inspection of the property was made by the then Regional Biologist, and improper removal of vegetation noted, Respondent was sent a "standard warning letter" that asked him "to let it regrow" naturally. According to the Department's Chief of the Bureau of Invasive Plant Management, Mr. William Caton, Respondent "did not" follow this advice. In 2004, another complaint was filed, this time by the Highlands County Lakes Manager. After an inspection was made, another letter was sent to Respondent asking him to "let it regrow," to implement a revegetation plan, and to contact the Department's Regional Biologist. After receiving the letter, Respondent's wife telephoned Mr. Caton, whose office is in Tallahassee, and advised him that the complaint was the result of "a neighbor feud." Among other things, Mr. Caton advised her that the Department would not "get in the middle" of a neighbor squabble. At hearing, he disputed Mrs. Reynolds' claim that he told her to disregard the warning letter. He added that Respondent did not "follow through with" the corrective actions. As a result of another complaint being filed by the Highlands County Lakes Manager in 2006, a field inspection was conducted on July 12, 2006, by a Department Regional Biologist, Erica C. Van Horn. When she arrived, she noticed that the property was fenced and locked with a "Beware of Dog" sign. Ms. Van Horn then went to the home of Mr. Slevins, who lives next door, and was granted permission to access his property to get to the shoreline. The first thing Ms. Van Horn noticed was that the "lake abutting 260 Lake June Road was completely devoid of vegetation." She further noted that "on either side of that property [there was] lush green Torpedo Grass." Ms. Van Horn found it "very unusual" for the vegetation to stop right at the riparian line. Although she observed that there was "a small percentage of Maidencane" on the site, approximately ninety to ninety-five percent of the frontage "was free of aquatic vegetation." Finally, she noted that the dead Torpedo Grass on the east and west sides of the property was in an "[arc] shape pattern," which is very typical when someone uses a herbicide sprayer. During the course of her inspection, Ms. Van Horn took four photographs to memorialize her observations. The pictures were taken from the east and west sides of Respondent's property while standing on the Slevins and Krips' properties and have been received in evidence as Department's Exhibits 1-4. They reflect a sandy white beach with virtually no vegetation on Respondent's shoreline or in the lake, brown or dead vegetation around the property lines on each side, and thick green vegetation beginning on both the Slevins and Krips' properties. The dead grass to the east had been chopped into small pieces. During her inspection, Ms. Van Horn did not take any samples or perform field testing to determine if herbicides had been actually used since such testing is not a part of the Department's inspection protocol. This is because herbicides have a "very short half life," and they would have broken down by the time the vegetation turns brown leaving no trace of the chemicals in the water. Ms. Van Horn left her business card at the gate when she departed and assumed that Respondent would contact her. On a later undisclosed date, Respondent telephoned Ms. Van Horn, who advised him that he was out of compliance with regulations and explained a number of ways in which he could "come into compliance with these rules," such as revegetation. She says he was not interested. After her inspection was completed, Ms. Van Horn filed a report and sent the photographs to Mr. Caton for his review. Mr. Caton has twenty-seven years of experience in this area and has reviewed thousands of sites during his tenure with the Department. Based on the coloration of the vegetation right next to the green healthy vegetation on the adjoining properties, Mr. Caton concluded that the vegetation on Respondent's property had "classic herbicide impact symptoms." He further concluded that the vegetation had been chemically sprayed up to the boundary lines on each side of Respondent's property before it was cut with a device such as a weedeater. Based on the history of the property involving two earlier complaints, Respondent's failure to take corrective action, and the results of the most recent inspection, Mr. Caton recommended that an enforcement action be initiated. On August 11, 2006, Ms. Van Horn sent Respondent a letter advising him that a violation of Department rules may have occurred based upon the findings of her inspection. The letter described the unlawful activities as being "removal of aquatic vegetation from the span of the total adjacent shore line and significant over spray on to aquatic vegetation of neighboring properties on either side of [his] property." Respondent was advised to contact Ms. Van Horn "to discuss this matter." On May 15, 2007, the Department filed its Notice alleging that Respondent had "chemically controlled" the aquatic vegetation on eighty-seven feet of his shoreline in violation of Section 369.20(7), Florida Statutes, and Florida Administrative Code Rule 62C-20.002(1). The Notice sought the imposition of an administrative penalty in the amount of $3,000.00, recovery of reasonable investigative costs and expenses, and prescribed certain corrective action. On April 28, 2008, the Department filed an Amended Notice alleging that, rather than chemically removing the vegetation, Respondent had controlled, eradicated, removed, or otherwise altered the aquatic vegetation on his shoreline. The Amended Notice deleted the provision requesting the imposition of an administrative penalty, expressly sought the recovery of investigative costs and expenses of not less than $179.00, and modified the corrective action. After her initial inspection, Ms. Van Horn rode by the property in a Department boat on several occasions while conducting other inspections on Lake June and observed that the property "was still mostly devoid of vegetation." At the direction of a supervisor, on June 15, 2007, she returned to Respondent's property for the purpose of assessing whether any changes had occurred since her inspection eleven months earlier. This inspection was performed lakeside from a Department boat without actually going on the property, although she spoke with Respondent's wife who was standing on the dock. Ms. Van Horn observed that the area was still "devoid of vegetation but there was some Torpedo Grass growing back on the [eastern] side." She estimated that "much more" than fifty percent of the shoreline was free of vegetation. Photographs depicting the area on that date have been received in evidence as Department's Exhibits 5-7. Both Respondent and his wife have denied that they use any chemicals on their property, especially since their children regularly swim in the lake in front of their home. Respondent attributes the loss of vegetation mainly to constant use of the back yard, dock area, and shoreline for water-related activities, such as swimming, using jet skis, fishing, and launching and paddling a canoe. In addition, the Reynolds frequently host parties for their children and their friends, who are constantly tramping down the vegetation on the shoreline and in the water. He further pointed out that beginning with the house just beyond Mr. Krip's home, the next five houses have "no vegetation" because there are some areas on the lake that "naturally do not have any vegetation across them." Finally, he noted that Lake Juno suffered the impacts of three hurricanes in 2004, which caused a devastating effect on its vegetation. Respondent presented the testimony of Brian Proctor, a former Department aquatic preserve manager, who now performs environmental restoration as a consultant. Mr. Proctor visited the site in June 2007 and observed "full and thick" Torpedo Grass "growing in the east and west of the property lines." Based on that inspection, Mr. Proctor said he was "comfortable stating that at the time [he] did the site visit in June of '07 there was nothing that appeared to be chemical treatment on Mr. Reynold's property." He agreed, however, that the "shoreline vegetation was poor," and he acknowledged that it was unusual that Lake Juno was lush with aquatic vegetation in front of the neighboring properties to the east and west but stopped at Respondent's riparian lines. When shown the June 2006 photographs taken by Ms. Van Horn, he acknowledged that it "appeared" the property had been chemically treated. He was able to make this determination even though a soil test had not been performed. Photographs introduced into evidence as Respondent's Exhibits 1-4 reflect that on June 27, 2007, there was thick green vegetation on both sides of his property, although one photograph (Respondent's Exhibit 1) shows only limited vegetation along the shoreline and in the lake in the middle part of the property. The photographs are corroborated by a DVD recorded by Respondent on the day that Ms. Van Horn returned for a follow-up inspection. While these photographs and DVD may impact the amount of corrective action now required to restore the property to its original state, they do not contradict the findings made by Ms. Van Horn during her inspection on July 12, 2006. Finally, photographs taken in 2003 to depict what appears to be chemical spraying of vegetation and the construction of a bulkhead without a permit by Mr. Slevins have no probative value in proving or disproving the allegations at issue here. The greater weight of evidence supports a finding that it is very unlikely that heavy usage of the shoreline and adjacent waters in the lake by Respondent's family and their guests alone would cause ninety-five percent of the shoreline and lake waters to be devoid of vegetation when the inspection was made in July 2006. Assuming arguendo that this is true, Respondent was still required to get a permit since the amount of vegetation altered or removed through these activities exceeded more than fifty percent of the vegetation on the shoreline. More than likely, the vegetation was removed by a combination of factors, including recreational usage, mechanical or physical means, and the application of chemical herbicides on each riparian boundary line, as alleged in the Amended Notice. The fact that the Department did not perform any testing of the water or soil for chemicals does not invalidate its findings. Finally, the acrimonious relationship that exists between Respondent and his neighbors has no bearing on the legitimacy of the charges. Therefore, the allegations in the Amended Notice have been sustained. The parties have stipulated that if the charges are sustained, Respondent is entitled to recover reasonable costs and expenses associated with this investigation in the amount of $179.00. As corrective action, the Amended Notice requires that Respondent obtain a permit to remove Torpedo Grass from his property and to replant "126 well-rooted, nursery grown Pontederia cordata ("pickerelweed") at the locations depicted on the map" attached to the Amended Notice. Because the evidence suggests that some of the area in which vegetation was removed in 2006 had regrown by July 2007, the proposed corrective action may be subject to modification, depending on the current state of the property.
The Issue The issue is whether the applicant for an Environmental Resource Permit ("ERP"), the City of Deltona ("City" or "Applicant"), has provided reasonable assurance that the system proposed complies with the water quantity, environmental, and water quality criteria of the St. Johns River Water Management District's ("District") ERP regulations set forth in Florida Administrative Code Chapter 40C-4, and the Applicant's Handbook: Management and Storage of Surface Waters (2005).
Findings Of Fact The District is a special taxing district created by Chapter 373, Florida Statutes, charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The City of Deltona is a municipal government established under the provisions of Chapter 165, Florida Statutes. The Lake Theresa Basin is comprised primarily of a system of interconnected lakes extending from Lake Macy in the City of Lake Helen to the Butler Chain of Lakes (Lake Butler and Lake Doyle). The Lake Theresa Basin is land-locked and does not have a natural outfall to Lake Monroe and the St. Johns River. In 2003, after an extended period of above-normal rainfall in the Deltona area, the lakes within the land-locked Lake Theresa Basin staged to extremely high elevations that resulted in standing water in residential yards, and rendered some septic systems inoperable. Lake levels within the Lake Theresa Basin continued to rise and were in danger of rising above the finished floor elevations of some residences within the basin. On March 25, 2003, the District issued an Emergency Order (F.O.R. No. 2003-38) authorizing the construction and short-term operation of the Lake Doyle and Lake Bethel Emergency Overflow Interconnection. Since wetland and surface water impacts would occur, the Emergency Order required the City of Deltona to obtain an ERP for the system. The project area is 4.1 acres, and the system consists of a variable water structure on the west shore of Lake Doyle connected to a series of pipes, swales, water control structures, and wetland systems which outfall to a finger canal of Lake Bethel, with ultimate discharge to Lake Monroe and the St. Johns River. The first segment of the system extends downstream from the weir structure on the west shore of Lake Doyle via a pipe entrenched in the upland berm of the Sheryl Drive right-of-way. The pipe passes under Doyle Road and through xeric pine-oak uplands to the northeast shore of a large (approximately 15 acres) deepwater marsh. Water flows south through the deepwater marsh where it outfalls through four pipes at Ledford Drive. Two of the four pipes are overflow structures, controlled by canal gates. The pipes at Ledford Drive discharge into a ditch and into a large (greater than 20 acres) shallow bay swamp. The south end of the bay swamp is defined (and somewhat impounded) by a 19th Century railroad grade. Water flows through the bay swamp where it outfalls through five pipes at the railroad grade. Three of the five pipes are overflow structures, controlled by channel boards. The pipes at the railroad grade discharge to a 1500-foot long finger canal that was dug some time during the period 1940-1972 from the north central shore of Lake Bethel. The overflow interconnection system has three locations whereby the system can be shut down: 1) Lake Doyle--a control weir, controlled by three sluice gates; 2) Ledford Drive--two thirty-inch reinforced concrete pipes, controlled by canal gates; and 3) railroad grade--three thirty-inch reinforced concrete pipes, controlled by channel boards (collectively referred to as "Overflow Structures"). The Overflow Structures are designed to carry the discharge of water from Lake Doyle to Lake Bethel. With the Overflow Structures closed the system returns to pre-construction characteristics, meaning there will be no increase or decrease in the quantity or quality of water throughout the path of the system as a result of the project. An unequivocal condition of the permit is that the system would operate with all of the Overflow Structures closed. As an added assurance, the City proposes to place a brick and mortar plug in the Lake Doyle weir structure outfall pipe to prevent any discharge from the weir. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the water level in Lake Doyle rises above an elevation of 24.5 feet. The District shall require a separate permit application to be submitted for such future plans. Petitioner, Barbara Ash, has lived on Lake Theresa for 19 years. Ms. Ash lives upstream from the area of the weir that will be plugged in accordance with the ERP. She does not trust either the City of Deltona to comply with or the District to enforce the conditions of the ERP applied for by the City. Petitioner, Barbara Ash, also served as the qualified representative for Petitioners, Francell Frei, Bernard J. and Virginia Patterson, and Ted and Carol Sullivan. Ms. Ash represented that Ms. Frei has lived on Lake Theresa for 12 years, and both the Pattersons and the Sullivans live on Lake Louise, which is within the area of concern in this proceeding. Petitioner, Diana Bauer, has lived on Lake Theresa since February 2004. She fears that the lake will become too dry if the system is allowed to flow. She also believes the wildlife will be adversely affected if the water levels are too low since many species need a swampy or wet environment to thrive. She fears her property value will decrease as a result of the approval of the ERP. She also does not trust either the City to comply with or the District to enforce the conditions of the ERP. Petitioner, Howard Ehmer, lives two to three hundred yards down Lake Theresa from Ms. Bauer. He is concerned about the lake bed being too dry and attracting people on all terrain vehicles who enjoy driving around the lake bottom. He is concerned about his property value decreasing if the lake bed is dry. Further, when the lake level is too low, people cannot enjoy water skiing, boating, and fishing on Lake Theresa. Petitioner, Phillip Lott, a Florida native, has also owned and lived on property abutting Lake Theresa since 1995. Mr. Lott has a Ph.D. in plant ecology, and M.P.A. in coastal zone studies, an M.B.A. in international business, and a B.S. in environmental resource management and planning. Mr. Lott has been well acquainted with the water levels on Lake Theresa for many years. Based upon his personal observations of the lake systems in the Deltona area over the years, Mr. Lott has seen levels fluctuate greatly based upon periods of heavy and light rainfall. Mr. Lott is concerned that the District will permit the City to open the weir to let water flow through the system and cause flooding in some areas and low water levels in other areas. He fears that the District will allow the water to flow and upset the environmental balance, but he admits that this ERP application is for a closed system that will not allow the water to flow as he fears. Mr. Lott similarly does not trust the City to comply with and the District to enforce the conditions of the ERP. Petitioners, James E. and Alicia M. Peake, who were represented by Steven L. Spratt at hearing as their qualified representative, live on Lake Louise, which is interconnected with the Lake Theresa basin. The Peakes are concerned that if the level of Lake Louise drops below 21 feet, nine inches, they will not be able to use the boat launch ramps on the lake. Petitioner, Steven L. Spratt, also lives on Lake Louise, and is concerned about the water levels becoming so low that he cannot use the boat launch on the lake. He has lived on the lake since 2000, and remembers when the water level was extremely low. He fears that approval of the ERP in this case will result in low levels of water once again. Petitioner, Gloria Benoit, has live on Lake Theresa for two years. She also enjoys watching recreational activities on the lake, and feels that approval of the ERP will devalue her lakefront property. Ms. Benoit appeared at the first day of the hearing, but offered no testimony on her behalf. J. Christy Wilson, Esquire, appeared prior to the final hearing as counsel of record for Petitioners, Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow. Neither Ms. Wilson nor any of the three Petitioners she represented appeared at any time during the hearing, filed any pleadings seeking to excuse themselves from appearing at the final hearing, or offered any evidence, testimony, pre- or post- hearing submittals. Petitioner, Gary Jensen, did not appear at hearing, did not file any pleadings or papers seeking to be excused from appearing at the final hearing, and did not offer any evidence, testimony, pre- or post-hearing submittals. Both the City and the District recognize that areas downstream from the project site, such as Stone Island and Sanford, have experienced flooding in the past in time of high amounts of rainfall. The system proposed by the City for this ERP will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel. So long as the overflow structures are closed, the system will mimic pre-construction flow patterns, with no increase in volume flowing downstream. The District has considered the environment in its proposed approval of the ERP. The area abutting the project is little urbanized and provides good aquatic and emergent marsh habitat. With the exception of the western shore area of the deepwater marsh ("west marsh area"), the bay swamp and remaining deepwater marsh area have good ecological value. In the 1940's, the west marsh area was incorporated into the drainage system of a poultry farm that occupied the site. This area apparently suffered increased nutrient influxes and sedimentation that contributed to a proliferation of floating mats of aquatic plants and organic debris. These tussocks reduced the deepwater marsh's open water and diminished the historical marsh habitat. Water under the tussocks is typically anoxic owing to total shading by tussocks and reduced water circulation. Thick, soft, anaerobic muck has accumulated under the matted vegetation. Exotic shrubs (primrose willow Ludwigia peruvania) and other plants (cattails Typha spp.) dominate the tussocks. The construction of the project, from the 2003 Emergency Order, resulted in adverse impacts to 1.3 acres of wetlands having moderately high- to high ecological value and 0.2 acres of other surface waters. The 0.2 acre impact to other surface waters was to the lake bottom and the shoreline of Lake Doyle where the weir structure was installed. The 0.3 acres of wetland impacts occurred at the upper end of the deepwater marsh where the pipe was installed. The largest wetland impact (1.0 acre) was to the bay swamp. The bay swamp is a shallow body dominated by low hummocks and pools connected inefficiently by shallow braided channels and one acre is filled with a 1-2 foot layer of sediment following swamp channelization. Disturbance plants (e.g., primrose willow, Ludwigia peruvania, and elderberry Sambucus Canadensis) now colonize the sediment plume. Pursuant to the District's elimination and reduction criteria, the applicant must implement practicable design modifications, which would reduce or eliminate adverse impacts to wetlands and other surface waters. A proposed modification, which is not technically capable of being done, is not economically viable, or which adversely affects public safety through endangerment of lives or property is not considered "practicable." The City reduced and/or eliminated the impacts to the lake bottom and shoreline of Lake Doyle and deepwater marsh, to the extent practicable. The impacts were the minimum necessary to install the weir structure and pipe for the system; the weir structure and pipe were carefully installed on the edges of the wetland and surface water systems, resulting in a minimum amount of grading and disturbance. To compensate for the loss of 1.3 acres of wetlands and 0.2 acres of other surface waters, the City proposes to preserve a total of 27.5 acres of wetlands, bay swamp, marsh, and contiguous uplands. Included in this 27.5 acres are 6.4 acres of the west marsh, which are to be restored. The parties stipulated that the mitigation plan would adequately compensate for losses of ecological function (e.g. wildlife habitat and biodiversity, etc.) resulting from the project. Water quality is a concern for the District. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies for nitrogen, phosphorous, and dissolved oxygen. Water quality data for Lake Monroe indicate the lake has experienced high levels of nitrogen and phosphorous and low levels of dissolved oxygen. Prior to construction of the project, there was no natural outfall from the Lake Theresa Basin to Lake Monroe and therefore no contribution from this basin to nitrogen and phosphorous loadings to Lake Monroe. Lake Colby, Three Island Lakes (a/k/a Lake Sixma), and the Savannah are surface waters within the Lake Theresa Basin for which minimum levels have been adopted pursuant to Florida Administrative Code Chapter 40C-8. The system will operate with the overflow structures closed and a brick and mortar plug in the outfall pipe to prevent water flow from Lake Doyle to Lake Bethel, resulting in no outfall from the Theresa Basin to Lake Monroe. Minimum flows established for surface waters within the Lake Theresa Basin will not be adversely impacted. Under the first part of the secondary impact test, the City must provide reasonable assurance that the secondary impacts from construction, alteration, and intended or reasonable expected use of the project will not adversely affect the functions of adjacent wetlands or surface waters. The system is designed as a low intensity project. As proposed, little activity and maintenance are expected in the project site area. The reasonably expected use of the system will not cause adverse impacts to the functions of the wetlands and other surface waters. None of the wetland areas adjacent to uplands are used by listed species for nesting or denning. In its pre-construction state, the project area did not cause or contribute to state water quality violations. Under the second part of the secondary impact test, the City must provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of the system will not adversely affect the ecological value of the uplands to aquatic or wetland dependent species for enabling existing nesting or denning by these species. There are no listed threatened or endangered species within the project site area. Under the third part of the secondary impact test, and as part of the public interest test, the District must consider any other relevant activities that are closely linked and causally related to any proposed dredging or filling which will cause impacts to significant historical and archaeological resources. When making this determination, the District is required, by rule, to consult with the Division of Historical Resources. The Division of Historical Resources indicated that no historical or archaeological resources are likely present on the site. No impacts to significant historical and archaeological resources are expected. Under the fourth part of the secondary impact test, the City must demonstrate that certain additional activities and future phases of a project will not result in adverse impacts to the functions of wetlands or water quality violations. The City has submitted to the District preliminary plans for a future phase in which the system would be modified for the purpose of alleviating high water levels within the Lake Theresa Basin when the level in Lake Doyle rises above an elevation of 24.5 feet. Based upon the plans and calculations submitted, the proposed future phase, without additional measures, could result in minor increases in the loadings of nitrogen and phosphorous to Lake Monroe. Lake Monroe is included on the Florida Department of Environmental Protection's verified list of impaired water bodies due to water quality data indicating the lake has experienced high levels of nitrogen and phosphorous, and low levels of dissolved oxygen. Under this potential future phase, there would be an outfall from the Lake Theresa Basin to Lake Monroe. To address the impact on water quality of this potential future phase, the City has submitted a loading reduction plan for nitrogen, phosphorous, and dissolved oxygen. The plan includes compensating treatment to fully offset the potential increased nutrient loadings to Lake Monroe. Specifically, the loading reduction plan includes: Construction and operation of compensating treatment systems to fully offset anticipated increased nutrient loadings to Lake Monroe. Weekly water quality monitoring of the discharge from Lake Doyle for total phosphorous and total nitrogen. A requirement that the overflow structure be closed if the total phosphorous level reaches 0.18 mg/l or higher or the total nitrogen level reaches 1.2 mg/l or higher in any given week and will remain closed until levels fall below those limits. The implementation of these water quality mitigation measures will result in a net improvement of the water quality in Lake Monroe for nitrogen, phosphorous, or dissolved oxygen. The future phase was conceptually evaluated by the District for impacts to wetland functions. The future phase as proposed could result in adverse impacts to wetland functions. Operation of the system with the overflow structures open could impact the bay swamp and deepwater marsh. The City has demonstrated that any adverse impacts could be offset through mitigation. Based upon the information provided by the City and general engineering principles, the system is capable of functioning as proposed. The City of Deltona will be responsible for the operation, maintenance, and repair of the surface waster management system. A local government is an acceptable operation and maintenance entity under District rules. The public interest test has seven criteria. The public interest test requires the District to evaluate only those parts of the project actually located in, on, or over surface waters or wetlands, to determine whether a factor is positive, neutral, or negative, and then to balance these factors against each other. The seven factors are as follows: the public health, safety, or welfare of others; conservation of fish and wildlife and their habitats; fishing, recreational value, and marine productivity; temporary or permanent nature; 5) navigation, water flow, erosion, and shoaling; 6) the current condition and relative value of functions; and 7) historical and archaeological resources. There are no identified environmental hazards or improvements to public health and safety. The District does not consider impacts to property values. To offset any adverse impacts to fish and wildlife and their habitats, the City has proposed mitigation. The areas of the project in, on, or over wetlands do not provide recreational opportunities. Construction and operation of the project located in, on, or over wetlands will be permanent in nature. Construction and operation of the project located in, on, or over wetlands will not cause shoaling, and does not provide navigational opportunities. The mitigation will offset the relative value of functions performed by areas affected by the proposed project. No historical or archaeological resources are likely on the site of the project. The mitigation of the project is located within the same drainage basin as the project and offsets the adverse impacts. The project is not expected to cause unacceptable cumulative impacts.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered granting the City of Deltona's application for an environmental resource permit with the conditions set forth in the Technical Staff Report, and dismissing the Petitions for Formal Administrative Hearing filed by Gary Jensen in Case No. 04-2405, and by Steven E. Larimer, Kathleen Larimer, and Helen Rose Farrow in Case No. 04-3048. DONE AND ENTERED this 27th day of May, 2005, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of May, 2005. COPIES FURNISHED: George Trovato, Esquire City of Deltona 2345 Providence Boulevard Deltona, Florida 32725 Diana E. Bauer 1324 Tartan Avenue Deltona, Florida 32738 Barbara Ash, Qualified Representative 943 South Dean Circle Deltona, Florida 32738-6801 Phillip Lott 948 North Watt Circle Deltona, Florida Howard Ehmer Nina Ehmer 32738-7919 1081 Anza Court Deltona, Florida 32738 Francell Frei 1080 Peak Circle Deltona, Florida 32738 Bernard T. Patterson Virginia T. Patterson 2518 Sheffield Drive Deltona, Florida 32738 Kealey A. West, Esquire St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177 J. Christy Wilson, Esquire Wilson, Garber & Small, P.A. 437 North Magnolia Avenue Orlando, Florida 32801 Gloria Benoit 1300 Tartan Avenue Deltona, Florida 32738 Gary Jensen 1298 Tartan Avenue Deltona, Florida 32738 James E. Peake Alicia M. Peake 2442 Weatherford Drive Deltona, Florida 32738 Steven L. Spratt 2492 Weatherford Drive Deltona, Florida 32738 Ted Sullivan 1489 Timbercrest Drive Deltona, Florida 32738 Kirby Green, Executive Director St. Johns River Water Management District 4049 Reid Street Palatka, Florida 32177
Findings Of Fact On December 12, 1991, Petitioner applied to the Respondent for a permit/water quality certification to grade and level, in stages, approximately 20,000 square feet or 0.45 acres of lake front to remove and prevent the formation of berms and depressions in the exposed lake bottom adjacent to his property. The project site is located at 3955 Placid View Drive which lies along the shoreline of Lake Placid, a natural waterbody in Highlands County, Section 24, Township 37 South, Range 29 East. Lake Placid is not an aquatic preserve, and is not an outstanding Florida water. It has been designated as a Class III waterbody. Petitioner's unsubdivided lot lies at the western end of Lake Placid. The shoreline measures approximately 203 feet. The western lot line also measures 203 feet, and fronts on Placid View Drive. The water level of Lake Placid has receded in recent years which allows large expanses of what was historically lake bottom to become beaches, lawns, and areas of habaceous marsh. The specific project which the Petitioner proposes calls for the leveling of the berms and depressions which form on the exposed lake bottom from collected water, which stagnates and permits various noxious creatures, including mosquitoes, to breed in them. The berms and depressions are approximately six inches high or deep and between one and three feet wide, and generally extend the length of the shoreline. The proposed area affected is approximately 20,000 square feet or 0.45 acres of lake front, although Petitioner proposes to actually level a much smaller area in stages of approximately 2,000 square feet on an "as needed" basis. No material other than sod in the beach area is proposed to be brought from or removed to off-site locations. Petitioner is highly sensitive to mosquito bites. The area proposed for leveling was previously cleared of vegetation without authorization. Very little revegetation of the shoreline has occurred since the area was cleared. Vegetation colonizing the beach, at present, includes pennyworts (Centella asiatica and Hydrocotyle umbellata) and water- hyssops (Bacopa sp.) Blue green algae was observed in the depressions which have formed along the shore since the clearing. Fauna observed on-site included gulls (Larus sp.), small fish in the adjacent lake shallows, and water-boatmen (Order Hemiptera) in the depressions. An area landward of the wetlands considered here was also cleared previously and is proposed to be seeded. An adjacent, uncleared shoreline was vegetated with primrose willow (Ludwigia sp.), cattail (Typha sp.), flat sedge (Cyperus odorata), and other wetland species for an almost 100% plant coverage. The Petitioner proposes to use a small tractor in leveling of the shore which will cause turbidity in the lake water. No turbidity controls were proposed by the Petitioner. Petitioner failed to provide reasonable assurances that the turbidity caused by the earthmoving equipment in areas presently above water would not cause degradation of water quality in Lake Placid; would not contribute to the long-term degradation of water quality in the lake caused by upland runoff that would flow into the lake without benefit of retention or filtration by shoreland vegetation (freshwater herbaceous habitat) which would be permanently removed under Petitioner's proposal. Nutrients such a nitrogen and phosphorus and pollutants such as pesticides, herbicides and other chemicals commonly used in lawn and garden care would be included in the runoff, and would have an adverse impact on fishing and marine productivity in the lake. The project would have a minor adverse impact on erosion and soil stabilization in the area surrounding the lake. Petitioner has failed to provide reasonable assurance that the proposed project is not contrary to the public interest. Petitioner can mitigate the project by eliminating the use of heavy equipment and substitute hand equipment to smooth out ruts, berms and depressions in jurisdictional areas.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Petitioner's application for Wetland Resource Regulation permit be DENIED. DONE and ENTERED this 8th day of March, 1993, in Tallahassee, Florida. DANIEL M. KILBRIDE 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 ths 8th day of March, 1993. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Mr. Vincent J. Woeppel 3955 Placid View Drive Lake Placid, Florida 33852 Daniel H. Thompson Department of Environmental Regulation Acting General Counsel Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue here presented concerns the entitlement of the Applicant/Respondent, Walker G. Miller, to construct an addition to his existing boat house of approximately 450 square feet, and an addition to his existing chain link fence, both of which are located on Lake Down, Florida. The Respondent, Department of Environmental Regulation, has indicated its intention to grant the permit application request and the Petitioners, Milton and Gail Hess, and David Storey and others, have opposed the Department's intention to grant the permit.
Findings Of Fact The Petitioner in Case No. 80-1769, Milton Hess, is an adjacent landowner to the Applicant/Respondent, Walker G. Miller, with property located on Lake Down, near Windermere, in Orange County, Florida. The Petitioners in Case No. 80-1770, David Storey and others, are also landowners on Lake Down. Applicant's parcel is located on Down Point, which is a peninsular extending from the Lakes's southern shore. The project as contemplated by the Applicant is the construction of a 15 foot by 30 foot unenclosed addition on the north side of an existing dock/boathouse combination located on Lake Down. The 450 square foot addition is to be utilized as a storage room adjacent to the boathouse portion of his existing structure. The present structure has a total surface area of approximately 825 square feet. Additionally, by amendment to the application made on August 13, 1980, Applicant proposes to construct a chain link fence from the south property line to the dock facility. Lake Down is one of the waterbodies that constitutes the Butler Chain- of Lakes. The Lake is characterized by outstanding water quality and diversified biological resources. The Chain-of Lakes is widely recognized as the outstanding aquatic resource in the State, as far as water quality is concerned. Development on Lake Down is light, with widely scattered residential units separated by expanses of citrus groves. The construction of the addition will not significantly impact Lake Down or the Butler Chain-of Lakes, either on a long-term or short-term basis. The shading effect of the structure will result in a slight decline of rooted aguatic vegetation. However, such decline should be minimal. Further, reasonable assurances have been given that the proposed project would not result in any violations of State water quality criteria or standards. The existing dock structure now obstructs a portion of the view of the lake enjoyed by Petitioner Hess. However, by constructing the proposed addition on the north side of the existing boathouse, no further impediment of the view will occur.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a permit be granted by the Department of Environmental Regulation to Walker G. Miller to construct an addition to his boathouse and a chain link Fence on Lake Down as more specifically described in his amended application. DONE and ENTERED this 2nd day of February, 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 2nd day of February, 1981. COPIES FURNISHED: David Storey Route 3, Box 929 Orlando, Florida 32811 Jack Ezzard and Kathryn Ezzard Route 3, Box 925 Orlando, Florida 32811 Tari Kazaros Route 3, Box 924 Orlando, Florida 32811 Mrs. H. D. Barrarly Post Office Box 203 Gotha, Florida 32734 Paula M. Harrison Post Office Box 203 Gotha, Florida 32734 Ava Careton Route 3, Box 926 Orlando, Florida 32811 Nikki Clagh Route 3, Box 928 Orlando, Florida 32811 Milton and Gail Hess 4413 Down Point Lane Windermere, Florida 32786 Walker G. Miller Post Office Box 348 Windermere, Florida 32786 B. J. Heller, Esquire 644 West Colonial Drive Orlando, Florida 32804 Richard D. Lee, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background Petitioners, Ameraquatic, Inc., Applied Aquatic Management, Inc. and Aquatic Systems, Inc., are Florida corporations engaged in the business of maintaining lakes and other waterbodies by controlling or eradicating noxious aquatic weeds. Petitioner, Boliden Intertrade, Inc., is a manufacturer of heavy industrial chemicals, six of which are copper sulfates used for aquatic plant control. Petitioner, Applied Biochemists, Inc., is also a manufacturer of herbicides used for the control of aquatic plants, including copper-based herbicides. On March 5, 1993, respondent, Department of Natural Resources (DNR), published notice of its intent to adopt substantial revisions to Chapter 16C-20, Florida Administrative Code. That chapter sets forth DNR's aquatic plant management policies, including permit application requirements, exemptions from permitting, review criteria to be used by DNR in determining if a permit should be issued, management method criteria and standards, public notification requirements, and penalties for violation of the chapter. Many of the proposed rules codify existing DNR informal policies. All of the rules cite, at a minimum, Sections 369.20, 369.22 and 369.251, Florida Statutes, as the statutes implemented while they cite the same statutes (and others) as the statutory authority for their adoption. On March 26, 1993, petitioners filed their petition challenging various portions of the proposed rules. As grounds for invalidating the rules, petitioners contended that certain rules (a) exceeded the rulemaking authority or modified, enlarged or contravened the specific provisions of law implemented, (b) were vague, failed to establish adequate standards for agency decisions, and vested unbridled discretion in the agency, and (c) were arbitrary and capricious. Standing Ameraquatic, Inc., Aquatic Systems, Inc. and Applied Aquatic Management, Inc. are in the business of lake management, including the control of aquatic plants to meet lake management objectives. As such, these petitioners are subject to DNR's regulatory authority and must comply with the requirements of the proposed rules. They are accordingly affected by the agency action. Applied Biochemists, Inc. and Boliden Intertrade, Inc. are both foreign corporations and manufacture herbicides used for the control of aquatic plants, including copper-based herbicides. Although Applied Biochemists, Inc. has not registered to do business in the state, it distributes products through independent distributors and sales representatives throughout the state. Even so, by law it is not authorized to maintain an administrative action in this state, and thus it lacks standing to participate. As to Boliden Intertrade, Inc., the proposed rules place limitations on the use of herbicides for aquatic plant control, including copper-based herbicides, and its substantial interests are affected. An Overview of the Process There are over 7,700 lakes in Florida greater than ten acres in size, each with its own individual characteristics. There are also more than 300,000 natural ponds and other waterbodies under five acres in size. Aquatic plants are found in most, if not all, of these waterbodies. Statutory law defines aquatic plants as including all floating, emersed, submersed and ditch bank species of plants growing in the aquatic environment. Although the scientific community is not in total agreement as to the benefit of aquatic plants, it is commonly believed that aquatic plants are beneficial in a lake's ecosystem, providing a substrate for animals, protection from predators and changing the chemical composition of the water. Aquatic plants also provide a nursery area for small fishes, as well as carbon and food for water fowl and other vertebrates. Even so, aquatic plants may be noxious, that is, they have the potential to hinder the growth of beneficial plants, interfere with irrigation or navigation, or adversely affect the public welfare or natural resources of the state. Accordingly, DNR has been given the duty of administering the Florida Aquatic Weed Control Act and Florida Nonindigenous Aquatic Plant Control Act, as codified in Part II of Chapter 369, Florida Statutes. Under these acts, DNR has the responsibility of controlling, eradicating and regulating noxious aquatic weeds in waters of the state in such a manner as to protect human health, safety and recreation, and to the "greatest degree practicable", prevent injury to plant and animal life and property. To carry out this statutory mandate, DNR has been given the authority to adopt rules and regulations, which are now codified in chapter 16C-20. Aquatic plant control can be accomplished by chemical, biological or mechanical means. As is relevant here, it includes the application of chemical products (herbicides) used to chemically control or regulate aquatic plant growth. DNR administers the control of aquatic plants through a program of contracts and permits with various public and private entities. Under current rules, before any persons (except those having a contract) can engage in the activity of controlling noxious aquatic plants, they must make application for a permit. However, DNR has exempted from permitting requirements control activities in certain types of waterbodies. They include, among others, all waterbodies less than ten acres in size not connected to Waters of Special Concern. The rules also prescribe the general criteria to be used for reviewing permit applications, operation requirements for licensees, including conditions for applying herbicides, and penalties for violating the chapter. The existing and proposed rules apply not only to professional pesticide applicators, such as petitioners, but also to members of the general public who can purchase and apply them as lay persons. Registration of Herbicides Because herbicides are chemical poisons, they are regulated by the Federal Insecticide, Fungicide and Rodenticide Act, as amended. This act requires the Environmental Protection Agency (EPA) to assure that products entering channels of trade in the United States do so with no unreasonable adverse effect on man or the environment. The registration process of herbicides with EPA is a long, expensive and arduous one. Among other things, a company wishing to register products must conduct studies involving acute toxicity, chronic toxicity, environmental effects, effect on non-target organisms, and a chemistry package on how the product is formulated or synthesized. These studies, which must be conducted in accordance with EPA protocol, are then reviewed by the EPA staff. Once a manufacturer registers a product with EPA and has its product label stamped "Accepted", this means the product can be manufactured, distributed and sold within the channels of trade. The labeling is designed to ensure that the product, if used as directed, will cause no "unreasonable adverse effect on man and the environment" and will not reduce the quality of water below the classification established for it. It is noted that aquatic herbicides fall rather low on EPA's priority for product review. This is because they rank below other chemicals reviewed by EPA in terms of toxicity and exposure. If data submitted to the EPA indicates that when a product is used as directed it may affect either the habitat of an endangered species or the endangered species, the registration application is referred to the U. S. Fish and Wildlife Service for a jeopardy opinion. If jeopardy exists, the EPA must then review the registration packet and address these concerns, and the label is thereafter modified to protect the endangered species or its habitat. A chemical either passes the test as to environmental risk or it doesn't. There is no ranking within that determination. Therefore, two or more products may be registered for the same use without a determination as to which would be the safer of the two. None of the aquatic plant control herbicides have restricted use labels and there are no special requirements on persons who use them. Besides federal registration requirements, pesticides must be registered with the Department of Agriculture and Consumer Services (DACS) before being sold and distributed for use in Florida. For the purpose of making recommendations to the Commissioner of Agriculture regarding the sales, use and registration of pesticides, a Pesticide Review Council (PRC) has been established by the legislature and includes representatives from the Department of Health and Rehabilitative Services (HRS), DNR, DER, DACS and the Game and Fresh Water Fish Commission (Commission). In this way, DACS brings each agency's expertise to bear in determining solutions to pesticide problems. DACS does not make a comparative determination between products as to their relative safety or rank them according to safety. Also, it does not try to duplicate EPA's efforts. Rather, it assesses pesticides from the perspective of issues specific to Florida, such as groundwater and soil content, that may not have been addressed or assessed by EPA during that agency's registration process. Finally, there is nothing in law that prevents a state from imposing more restrictive uses on herbicides than does the EPA. Indeed, Florida and many other states have done so. Are the Rules Invalid? In their petition initiating this action, petitioners have challenged more than thirty proposed revisions to chapter 16C-20 on the theory they violate Subsections 120.52(9)(b)-(e), Florida Statutes. Although no objection or request for clarification was made by DNR, the petition is vague in some respects because it alleges that a "rule" is invalid for various reasons but gives no citation to the specific rule or part thereof being challenged. There is also no document filed in this case which sets out with specificity all of the language which petitioners find offensive. In addition, petitioners' proposed order does not address all matters raised in the initial petition, and it contains argument regarding the invalidity of certain rules or parts thereof which were not addressed in the initial petition, and argument that certain rules are invalid for different reasons than originally alleged. At the same time, the agency's proposed order does not provide a response to many of the allegations and argument in the petition. This has made a difficult task for the undersigned even more so. In an effort to simplify what is otherwise a factually complicated case, the undersigned has grouped what he perceives to be the challenged rules into the following broad areas of subject matter. Manatees Manatees are an endangered species in this state and must by law be accorded a very high level of protection. They are herbivores and eat more than forty species of plants and vegetation. Although relatively slow-moving, manatees are highly mobile and move as much as twenty to thirty miles in a twenty-four hour period. They are also migratory in nature, generally moving south in the winter and north during the warmer months. In an effort to provide protection to manatees from potentially harmful chemicals used in controlling aquatic plants, DNR has proposed to adopt several new rules which restrict the use of chemicals in areas where manatees congregate. These areas are known as "manatee aggregation sites" and are defined in section (14) of proposed rule 16C-20.0015 as follows: (14) "Manatee aggregation site" means a spe- cific area within a waterbody or canal system where a significant number of manatees peri- odically congregate, as identified by the department. Petitioners complain that the definition is vague and lacks definitive guidelines for the agency to use in determining whether an area constitutes a manatee aggregation site. However, for the following reasons, it is found that it would be impractical to identify specific sites, as petitioners suggest, or to provide more definite standards. To begin with, manatees tend to congregate at specific sites depending on environmental conditions and the availability of food sources. Therefore, the sites will vary as environmental conditions and food sources change from time to time. In addition, manatees have changing habits and "wide-ranging movements" and, except for a few well-known sites such as Crystal River, the areas in which significant numbers aggregate are not static. Because these sites are dependent on a number of constantly changing variables, it would be impractical, if not impossible, to name specific sites or place more definitive standards in the rule. In subparagraph (1)(a)8. of proposed rule 16C-20.0055, DNR has restricted the use of herbicides in manatee aggregation sites in the following manner: 8. Control activities using herbicides may be permitted in manatee aggregation sites at a time and in a manner specified in the permit. In addition, the last sentence in proposed rule 16C-20.0035(2) reads as follows: Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department. The above rules generally track and codify the informal policy used by DNR since 1990. Petitioners contend that subparagraph (1)(a)8. is vague, fails to establish adequate standards, or vests unbridled discretion in DNR. They also assert that the last sentence in proposed rule 16C-20.0035(2) vests unbridled discretion in DNR and is arbitrary or capricious. Because manatees are an endangered species, they will never be tested, as other animals are, to determine the impacts of chemicals. Therefore, there is insufficient evidence to determine the impacts of herbicides on the species. Also, there are no documented cases of manatees dying from chemical toxicity. Indeed, the primary cause of death to manatees is from boating accidents. However, manatees have a long life span, and to the extent chemicals are used in waterbodies that they frequent, they will suffer exposure to chemicals for a long period of time. For this reason, DNR has proposed to allow herbicides to be used in manatee aggregation sites only after prior DNR approval is obtained. Since each area is site specific, and the conditions that might be imposed in a permit could vary depending on a waterbody's individual characteristics, it would be impractical to be more precise in subparagraph (1)(a)8. The effect of copper on manatees is not known at this time. Thus, scientists do not know the normal copper level for a manatee. For the last three years, DNR has imposed a moratorium on the use of copper in systems frequented by manatees. An examination of manatees' liver tissues since 1990 reveals lower copper levels than those found in earlier studies. This suggests a correlation between the copper levels in manatees and the use of copper-based herbicides in waters that they frequent. However, it should be noted that copper is not considered to be a cumulative systemic poison. Like subparagraph (1)(a)8., rule 16C-20.0035(2) does not prohibit the use of copper-based herbicides in exempt waters that connect to waterbodies designated as manatee aggregation sites. Rather, it requires prior approval by DNR before copper- based chemicals can be used in these waters. Given the uncertainty at this time as to the long-term effects of copper on manatees, such a safeguard is consistent with the agency's mandate that, to the greatest degree practicable, it prevent injury to plant and animal life and property, and that it give special protection to the manatee. Therefore, the last sentence in proposed rule 16C-20.0035(2) is not arbitrary or capricious nor does it vest unbridled discretion in DNR. Interagency agreements Proposed rule 16C-20.0011(2) incorporates by reference an interagency agreement between DNR and DER and a memorandum of agreement between DNR and the Division of State Lands. Section (3) of the same rule incorporates by reference an interagency agreement between DNR and the Commission. In addition, proposed rule 16C-20.0055(2)(b) incorporates by reference an interagency memorandum of understanding between DNR and DACS. These agreements and memoranda are necessary for two reasons. First, the legislature has specifically directed the agencies to enter into such agreements. Second, the legislature has directed that DNR "guide and coordinate the activities of all . . . agencies . . . charged with the control or eradication of aquatic weeds and plants." Thus, as to matters pertaining to the quality of waters in the state, sovereign lands, pesticide registration and fish and wildlife habitat management, DNR has the statutory authority to coordinate these activities to the extent they impact on aquatic plant management. The rule merely carries out this mandate and, contrary to petitioners' claim, does not deviate from the statutes implemented. To the extent petitioners quarrel with the validity of the language in the underlying agreements, these issues were not raised in the initial petition and need not be addressed. Among other things, rule 16C-20.0055(2)(b) authorizes DNR employees, pursuant to the memorandum of understanding with DACS, "to remove samples from spray tanks to ascertain compliance with the terms of this chapter, and permit conditions." Under this rule, DNR employees would be able to inspect and sample spray tanks used by persons engaged in herbicide control activities to ascertain whether the user was complying with the requirements of the chapter and his permit. The source of authority is found in paragraph 11, page 9 of the DACS memorandum executed by the signatories on May 8, 1985. It provides in relevant part as follows: DACS, under authority of Section 487.13, F. S., grants to DNR authority, as agents of DACS, to enter upon and inspect vessels and vehicles for purposes of collecting informa- tion and samples necessary to determine com- pliance with provisions of pesticide product label or labeling relating to application of pesticides (herbicides) to waters of the state for aquatic plant control. DNR, in conducting inspection under authority granted by this agreement, shall adopt inspection, evidentiary and custody procedures as specified by DACS. Since the memorandum authorizes DNR to "collect . . . samples", and the rule allows DNR to "remove samples from spray tanks" for inspection purposes, the rule is consistent with the memorandum and does not exceed the grant of authority in that document. Potable water setbacks In an effort to protect potable water sources from the harmful effects of chemicals, DNR has proposed to place certain restrictions on the use of herbicides within specified distances of potable water sources. These restrictions are in the form of setbacks and vary in distance depending on whether the waterbody is a lake or river, the plants to be removed are floating or submerged, and the activity takes place upstream or downstream from the water source. The EPA has established three types of restrictions on aquatic herbicide products which are applied to potable water sources. First, there is a setback requirement which establishes a distance between potable water intake and treatment areas. Such a restriction has been imposed by EPA when it determines that the chemical is at too high a concentration for potable water. These restrictions appear on the product label. However, there are no setback requirements on copper-based chemicals because EPA considers them to be free of environmental risk when used at the prescribed rates. The second restriction is a time delay, which requires that after being treated with herbicides, the water not be used for a specified period of time. Most of the aquatic herbicides registered with EPA have time delay restrictions for swimming, fishing or irrigation. The last restriction is a tolerance restriction, which requires a monitoring program to sample water collected at the intake valve. It is noted that of the eight most commonly used aquatic herbicides, only two have setback restrictions, while the remaining six have either tolerance or time delay restrictions. Proposed rule 16C-20.0055(1)(a)2.-4. establishes setback requirements for herbicides with labels which do not indicate a potable water intake setback distance. In other words, for those products without an EPA setback requirement on the label, DNR intends to prescribe specific setback requirements for using herbicides in potable water sources. In choosing this type of restriction, DNR decided against using a tolerance or monitoring type of restriction due to vigorous opposition made at a workshop by a member of the scientific community, and its concern over the lengthy amount of time required to obtain results through a monitoring system. The proposed setback distances have been in use on an informal basis since 1985. They were established at that time through a collective effort by representatives of DNR, DER, DACS and the Commission to determine a reasonably safe distance between potable water sources and the use of chemical herbicides. The rule implements in part the DER interagency agreement which mandates that, when EPA has no setback requirement, DNR establish a "setback distance area based on available water quality monitoring data" and "with input from DER." DNR readily concedes that the proposed setback distances are not supported by scientific literature. However, they represent the best scientific judgment of four state agencies and, because the EPA does not consider Florida-specific issues during its registration process, the rule takes into account Florida's special drinking water concerns by placing restrictions on the use of herbicides in and near drinking water sources. Then, too, there is no credible evidence that the setback distances are unreasonable. Finally, the rule is in accord with the statutory mandate that DNR address by rule standards for "chemical . . . control activities", and the statutory requirement that it "protect human health, safety, and recreation and, to the greatest extent practicable, prevent injury to plant and animal life and property." Selection of herbicides Proposed rule 16C-20.0055(1)(a)5. relates generally to herbicide control activities and provides that When more than one herbicide is registered for use in an aquatic site, the department shall require the use of the herbicide which it determines has the least adverse effect upon human health, safety, recreational uses, non-target plants, fish, and wildlife. In determining which herbicide shall be used, the following criteria shall be considered: Which herbicide will provide the greatest protection to human health, safety, and recreational uses. Which herbicide will provide the greatest protection to non-target and animal life. Which herbicide will be most effective at controlling the targeted species. Under the terms of this rule, when more than one herbicide is registered for the same use and site, which is not an unusual occurrence, DNR will make a determination, based on the criteria enumerated in subparagraphs a.-c., as to which herbicide has the least adverse impact upon humans, vegetation, recreational uses, fish and wildlife. Petitioners contend that the rule goes beyond the statutory grant of authority, contravenes the statutes implemented, is vague, fails to establish adequate standards and vests unbridled discretion in the agency, and is arbitrary and capricious. Because most registered aquatic herbicides have some type of use restriction, DNR will evaluate each herbicide registered for a site to see which product provides "the greatest protection to human health, safety and recreational uses", or provides "the greatest protection to non-target plant and animal life", or which is the "most effective at controlling the targeted species". For example, an applicator may request to use a herbicide that would prevent the public from fishing for food in that waterbody for a specified number of days. If another registered product can effectively control the plants without such a restriction, DNR would approve the second product on the ground it provided "the greatest protection to human health". Similarly, if water hyacinths are intermixed with bulrush, a beneficial native plant used for fisheries, DNR would approve a herbicide that kills the water hyacinths but does not harm the bulrush. This decision would conform with the requirement that the herbicide selected offer "the greatest protection to non-target plant(s)." Finally, if a registered product is the only one that will control the targeted plant, under the last criterion DNR would have to take this factor into account in approving one of several registered products. It is noted that the criteria in subparagraphs a.-c. track the language in section 369.20 and thus do not exceed the statutory authority or enlarge, modify or contravene the statute implemented. In making a determination under the rule, DNR does not intend to review the toxicologist data for herbicides because EPA has already done so. Thus, there is no need for special in-house expertise in this area. Also, DNR will continue its existing practice of allowing the decision to be made by a DNR regional biologist in consultation with the Tallahassee office. Although the decision may be subjective to a certain extent, the guidelines in the rule merely track the language in the statute implemented and thus are not vague or otherwise lacking in standards. Given the fact that most aquatic herbicides have some type of use restriction, DNR's proposal to require the use of the least restrictive herbicide is not arbitrary or capricious. Finally, the contention that DNR lacks funding and staff to carry out its responsibilities is not a ground for invalidating the rule. Definitions Proposed rule 16C-20.0015 contains twenty-four definitions to be used in applying and interpreting the various provisions within chapter 16C-20. Of these, sections (1), (5), (11), (14) and (23) are subject to challenge on various grounds. In section (1) of the proposed rule, DNR has defined the term "aquatic plant" as follows: "Aquatic plant" means any plant, in- cluding a floating, emersed, submersed, or ditchbank species, growing in, or closely associated with, an aquatic environment, and includes any part or seed of such plant. This includes those species listed in s. 369.251, F. S. (Emphasis added) Section 369.251 lists five species of plants that fall within the category of "invasive nonnative plants". Since the more credible evidence shows that these five species are wetland and upland species of plants and are not considered to be aquatic plants, they have been improperly included within that definition. Section (5) of the rule defines the term "classes of surface water" as follows: (5) "Classes of surface water" means the classification of surface waters as defined by the Department of Environmental Regula- lation, pursuant to Rule 17-302.400, F.A.C. By its terms, section (5) adopts the same water classifications as are used by DER. Therefore, the rule does not contravene any statutes. Although the rule will obviously have to be amended at a future time if DER changes these classifications, this is not a ground to invalidate the rule. Further, by adopting this definition, DNR has not delegated its rulemaking authority to DER. Section (11) defines the term "eradication program" as follows: (11) "Eradication program" means a method for the control of non-indigenous aquatic plants in which control techniques are utilized in a coordinated manner in an attempt to kill all the target aquatic plants on a permanent basis in a given geographical area. Petitioners contend that the definition is invalid because it modifies the law being implemented. That is to say, DNR has limited the eradication program to non-indigenous plants, thus excluding all indigenous plants. However, the law implemented (s. 369.20) directs the agency to control all noxious plants, whether indigenous or not. By limiting the rule in this manner, DNR has modified the implementing statute. Section (14) of the rule defines the term "manatee aggregation site". For the reasons given in finding of fact 15, the definition is not deemed to be vague or overly imprecise. Finally, section (23) of the rule defines "waters" as follows: (23) "Waters" mean rivers, streams, lakes, navigable waters and associated tributaries, canals, meandered lakes, enclosed water systems, and all other bodies of water. This rule tracks verbatim the definition of "waters" found in subsection 369.22(1)(g), one of the statutes cited as the specific authority and statute implemented. Therefore, DNR has not exceeded its grant of rulemaking authority nor contravened the statute implemented. Permits - applications Under the current permitting scheme established in existing rule 16C- 20.002, all persons engaged in aquatic plant management activities, except those doing so in exempt waters, must file with DNR an application for a permit. Upon issuance, the permit is valid for a period of one year and may be subsequently renewed for a second year. The application now requires a listing of the acreage of the treatment site, the targeted plants, the acreage of the targeted plants, and the chemicals proposed for use. It also requires the applicant to submit a map of the water body, indicating the location of the vegetation desired for control. The existing rule does not call for the applicant to submit proof of ownership of the property being treated nor a drawing of the riparian owner's boundaries and boundary dimensions. In its revisions to rule 16C-20.002, DNR proposes to modify certain existing requirements and to add new requirements for obtaining a permit. The application form itself has not been formulated as of this time but will be filed with the Department of State upon these rules becoming effective. Petitioners contend that proposed changes in the last sentence of section (2) and paragraphs (3)(d), (5)(a) and (6)(b) of the rule are invalid for a number of reasons. The apparent offending language in paragraph (3)(d) requires that (d) All applications, except for those from government agencies, research institutions, and wastewater treatment facilities approved by the Department of Environmental Regulation, shall be in the name of and signed by the riparian owner who shall, upon request, provide proof of riparian ownership. (emphasis added) As noted above, DNR does not currently require proof of ownership of the property being treated. In addition, it is not a practice of the industry to require proof of ownership while contracting for lake management services. Indeed, the industry says it does not ask if a person owns the property being treated or where the property boundaries are. Rather, it assumes that a person would not contract and pay for such services unless he owned the property. DNR now proposes to require such proof but will do so only in rare instances and under unusual circumstances. For example, when "border wars" erupt between adjoining property owners over who owns aquatic vegetation, and one owner does not want the vegetation to be controlled, DNR would request "proof of riparian ownership" to resolve this type of dispute. When these disputes have arisen in the past, DNR has been required to ascertain the same information that it now proposes to require by rule. Given the agency's valid need for this information, and the fact that this provision in the rule will be employed sparingly, the offending language is neither arbitrary or capricious. In paragraphs (5)(a) and (6)(b) DNR proposes to add the following provisions: (5)(a) All conditions of the permit shall be stated on the permit. (6)(b) Following notice to the permittee, the department is authorized to amend a permit issued pursuant to this chapter during the term of the permit to restrict or limit the scope of the permitted activity. This shall be done if necessary to ensure the protection of human health, safety, recreation, plant and animal life, and property. Petitioners complain that paragraph (5)(a) is invalid because it fails to identify the "conditions" that may be stated on a permit. This contention overlooks the fact that it would be impractical to list every possible condition that could be stated on a permit or when that condition might be imposed. Then, too, an applicant need only review the other provisions in the chapter to learn when specific conditions may be warranted. As to paragraph (6)(b), this provision allows DNR to add conditions after a permit is issued when human health, safety, recreation and other similar issues come into play. Since the circumstances under which conditions may be imposed track the statutory language in section 369.20, the rule does not contravene the statute implemented. Further, by utilizing the statutory criteria, the rule contains adequate standards for the agency to follow. Finally, the last sentence of section (2) of the rule reads as follows: As a condition of the permit, any aquatic plants removed pursuant to an aquatic plant control permit may be required to be relocated in the control area to maintain habitat or for other environmental benefits. Petitioners contend there are no standards or criteria in the rule for determining under what conditions relocation of vegetation may be required. They also argue that the rule is arbitrary and capricious. As to the latter contention, they point to a research project performed for DNR by Dr. Canfield, a University of Florida professor, which examined the relationship of plants to fish and determined the amount of vegetation that should remain in a controlled area. Some sixty lakes were included in the study, and Dr. Canfield concluded that there is no relationship between aquatic macrophytes and fish. In other words, in those lakes with macrophyte coverage between 15 percent and 85 percent, the sport fish population was uniformly good while the population was unpredictable in lakes having below 15 percent coverage and above 85 percent coverage. The study also indicated that the effect on the population may not be the direct result of vegetation because of other factors. The study further found no strong correlation between birds and aquatic macrophytes. Rather, lake trophic status was the dominant factor. In another study performed for the EPA by Dr. Haller, also a faculty member at the University of Florida, he evaluated the effect of grass carp, mechanical harvesting and the use of herbicides on fish population in twenty-four experimental Florida ponds. This study revealed that the removal of aquatic plants was immaterial to the fish populations. Finally, experience derived from the Polk County lake system shows that the clearing of lake front does not destroy the environment on that part of the lake but simply results in a different group of species utilizing that area. DNR concedes that the Canfield study "provide(s) some broad generalities that are helpful." However, DNR chose not to accept Dr. Canfield's conclusions and instead relied upon other literature, not identified in the record, to support its theory that a correlation exists between vegetation and fish population and thus the proposed rule is justified. Since the more credible evidence supports a finding to the contrary, the last sentence of section (2) of proposed rule 16C-20.002 is deemed to be arbitrary and capricious. Permits - Criteria to be used Proposed rule 16C-20.0045 sets forth the criteria for issuing, modifying, or denying a permit application. Petitioners allege that the second and third sentences of section (1), a part of paragraph (2)(b), subparagraphs (2)(c)2. and 6., subparagraphs (2)(d)2. and 3., subparagraph (2)(e)2., paragraph (2)(h) and section (4) are invalid because they exceed the statutory authority or statute implemented in some respect. In this regard, it is noted that the rule implements sections 369.20, 369.22 and 369.251 while the general authority is found in the same sections and section 370.021. Petitioners also contend that section (2) is invalid in its entirety because it fails to establish adequate standards or vests unbridled discretion in the agency. The criteria in question are somewhat lengthy, and because they are found in petitioners' exhibit 1 received in evidence, they are not repeated here. Although proposed rule 16C-20.0045 has been substantially reworded, the criteria for issuing, modifying or denying a permit application are essentially unchanged from prior policy, and they generally track the criteria found in section 369.20. Thus, they do not exceed the rulemaking authority or contravene the statute implemented. While no specific weight has been assigned to each criterion, to do so, as petitioners suggest, would be impractical. Finally, the rules contain seven categories of criteria, some with subcategories, and are precise and understandable. Therefore, the section embodies adequate standards and does not vest unbridled discretion in the agency. Exempt waters Proposed rule 16C-20.0035 describes the waters in which no permit is required in order to engage in aquatic plant control activities. The petition initiating this proceeding suggests that four portions of the rule are invalid. They read as follows: (1)(a) Waters wholly owned by one person, other than the state, provided there is no connection to Waters of Special Concern. * * * (c) In all waters, except aquatic preserves designated in Chapter 258, F.S., where riparian owners physically or mechanically remove aquatic plants to create an access corridor of sufficient length waterward from the shore to allow access for a boat or swimmer to reach open water. This access corridor shall not exceed a total of 25 feet in width. All unvegetated areas shall be cumulatively considered when determining the exempt access corridor . . . * * * (e) In waters of ten surface acres or less provided there is no connection to Waters of Special Concern. The acreage of waters in systems with any connections shall be calculated for each individual water rather than collectively as a system. Natural connections between non-exempt waters shall be considered part of those waters. * * * (2) Although certain waters are exempt from the department's permit requirements, all aquatic plant management activities shall be conducted in a manner so as to protect human health, safety, recreational use, and to prevent injury to non-target plant and animal life, and property, to the greatest degree practicable. When applying a herbicide in exempt waters, all persons shall comply with label rates, instructions, cautions, and directions, and shall follow the public notice requirements of paragraph 16C- 20.0055(2)(c), F.A.C. No aquatic plant management activity using herbicides or mechanical harvesting equipment shall be conducted when manatees are in the control area in exempt waters. Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department. As to paragraph (1)(a), petitioners complain that it is illogical and without reason to exempt only "waters owned by one person" and not waters owned by more than one person. Since the record does not contain any evidence to support a finding that this distinction is reasonable or logical, the rule is deemed to be arbitrary and capricious. As to the cited portion of paragraph (1)(c), petitioners first point out that in the second sentence the access corridor to the riparian owner's property is only twenty-five feet in width and is unreasonably small. They suggest that a larger corridor is necessary for an owner wishing to build a dock and park his boat. As to this requirement, DNR's witness Caton acknowledged at hearing that a reasonably sized access corridor would be more like fifty feet. Since the proposed access corridor is not supported by facts or logic, the second sentence in section (1)(c) which reads: "This access corridor shall not exceed 25 feet in width" is deemed to be arbitrary. Petitioners also suggest that the first and third sentences in section (1)(c) are invalid on the grounds they are vague or impermissibly imprecise in standards or criteria. Since reasonably intelligent persons should be able to understand the requirements of the rule, the two sentences are not vague. Further, they are not so imprecise as to be invalid. Finally, paragraph (1)(e) exempts from DNR permitting requirements all waterbodies smaller than ten acres in size that do not connect to Waters of Special Concern. This exemption is logical and reasonable given the fact that most waterbodies of this size are artifically created and do not connect to other waterbodies. In section (2), DNR proposes to require applicators to adhere to label instructions and public notification requirements even when spraying herbicides in exempt waters. It also proposes to prohibit activities in exempt waters involving herbicides or mechanical harvesting equipment when manatees are observed. These requirements are consistent with the enabling statute which requires DNR to protect human health, recreational uses, animal life and property in all waters of the state, whether such waters are classified exempt or not. Therefore, the rule is not arbitrary or capricious, and it does not modify the law implemented. The allegation that the last sentence in section is invalid is discussed in other findings of fact and need not be repeated here. The use of copper-based herbicides As a part of their case, petitioners presented extensive testimony on the issue of whether copper-based products are safe for use in waterbodies of this state. They contend that these products should not be subject to any additional restrictions over and beyond those already imposed by the EPA. They point out that EPA product registrations for copper-based herbicides do not restrict water use in any way, and they are labeled for use in drinking water reserviors, fish hatcheries, and crop and non-crop irrigation. Indeed, copper has been in use as a fungicide for at least 5,000 years. Also, no alternative products for the control of algae exist that do not have water use restrictions. In the opinion of one of petitioners' experts, the copper ion used in aquatic herbicides which causes the toxicity to the treated plants is very short-lived and very rapidly complexes with other elements of the aquatic environment so that it is immobilized and no longer toxic. In addition, petitioners rely on the fact that the application rate for copper-based herbicides is less than the tolerance level set by the Food and Drug Administration for finished drinking water. Finally, petitioners cite to studies performed on sheep and apple snails which support their position that there should be no restrictions on the use of copper-based products. In 1990, DNR instituted a policy of limiting the use of copper-based herbicides in natural waterbodies and in areas frequented by manatees. Besides reserving the right to select the least harmful herbicide [rule 16C- 20.0055(1)(a)], and establishing potable water setbacks (rule 16C- 20.0055(1)(a)2.-4.), DNR also intends to codify at least a part of its existing policy as section (2) of proposed rule 16C-20.0035. That section reads as follows: (2) Although certain waters are exempt from the department's permit requirements, all aquatic plant management activities shall be conducted in a manner so as to protect human health, safety, recreational use, and to prevent injury to non-target plant and animal life, and property, to the greatest degree practicable. When applying a herbicide in exempt waters, all persons shall comply with label rates, instructions, cautions, and directions, and shall follow the public notice requirements of paragraph 16C- 20.0055(2)(c), F.A.C. No aquatic plant management activity using herbicides or mechanical harvesting equipment shall be conducted when manatees are in the control area in exempt waters. Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department. The above policy does not prohibit the use of copper in natural and non-degraded waters. Indeed, the evidence reveals that DNR has occasionally allowed the use of such products when the circumstances permitted. The underlying reason for DNR's policy, as expressed in the rules, is that copper is a very toxic metal and can migrate to areas where its level is lower, and its effect on organisms in a lake can range from death to sublethal and long term effects. Some organisms are more sensitive to copper than others and the normal levels of copper vary from organism to organism. There are many factors which affect the tissue concentration of copper in any organism, and copper may become available to organisms and aquatic plants by various mechanisms. Bioavailability means that the element is readily available to the biological organisms within a system. Since scientists have not yet determined whether copper is bioavailable, DNR has chosen to take a more cautious approach toward the use of copper until more data is available. The restrictions on copper imposed by the rule do not affect the use of copper-based herbicides in waterbodies where these herbicides have historically been used or in highly degraded artificial waters. This is borne out by the fact that each year chapter 16C-20 licensees apply approximately 21,000 pounds of copper-based products to control aquatic plants. Given the uncertainty of the scientific community as to the long-term effects of copper-based products on manatees and other species, it is not unreasonable for DNR to place restrictions on the use of copper herbicides, particularly when manatees are present, potable water sources are close by, or less restrictive herbicides are available. Moreover, because the EPA registration process does not consider Florida-specific issues, it is reasonable for the state to impose more stringent restrictions than does the EPA on the use of copper products. Accordingly, the rule is not arbitrary or capricious. j. Penalties The final revisions being challenged are found in proposed rule 16C- 20.0075, which authorizes DNR to take disciplinary action against a licensee, assess penalties for violations of the chapter, and require violators to revegetate an affected area pursuant to an approved plan. It also authorizes all law enforcement officers of the state to enforce this chapter. The relevant portions of the rule are set forth below: Following proper notice, the department is authorized to modify, revoke, suspend, annul, or withdraw any permit granted by it, or deny or modify any permit request, if the department determines that the following actions were committed by the permittee or applicant: (grounds omitted) A person violating this chapter may be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, or 775.083, F. S. The department is authorized to require any person who violates the provisions of this chapter, by controlling plants without a permit, or controlling more plants than permitted (such as a person controlling plants in non-exempt waters without a permit), to reestablish vegetation in the affected area pursuant to a revegetation plan developed and approved by the department. * * * (5) All law enforcement officers of this state and its agencies with power to make arrests for violations of state law are authorized to enforce the provisions of this chapter. As to section (1), there is no authority in the implementing statutes [ss. 369.20, 369.22, 369.251 and 403.088] for DNR to discipline a licensee. As to section (2), it essentially tracks the language found in Subsection 369.25(5)(a), Florida Statutes, which pertains to aquatic plants. However, that statute is not cited as a source of authority, and none of the cited statutes authorizes DNR to impose by rule the same penal provisions as are found in the general law. Likewise, there is no authority in the statutes for DNR to require by rule that a violator reestablish vegetation pursuant to a plan. Finally, the statutes do not authorize DNR to adopt a rule allowing all law enforcement officers in the state to enforce this chapter. Therefore, sections (2), (3), and (5) are invalid. However, for the reason stated in the conclusions of law, section (1) is not invalid.
Findings Of Fact Lake Powell Improvement Corporation is a consortium of interested owners of land comprising the majority of the Lake Powell shoreline. Camp Helen Company, one of its members, owns lake property which was formerly operated as a recreational facility for associates of Avondale Mills. Camp Helen Company now holds the property for the possibility of future development. George Jeter is one of approximately 76 persons who sent a form letter to the Department of Environmental Regulation (DER) in opposition to the designation of Lake Powell/Phillips Inlet as an Outstanding Florida Water (OFW). The rule-making proceeding to designate Lake Powell/Phillips Inlet an OFW was initiated with a petition filed on June 11, 1987, by the St. Andrews Bay Resource Management Association, a private citizens' organization formed in 1986 to help protect wildlife and resources in the St. Andrews Bay area. A public workshop was conducted by DER on September 6, 1990, in Panama City, Florida. Approximately 70 persons attended the workshop, including Bay County residents, Walton County residents, Lake Powell area property owners and representatives from various organizations. Craig Crockard, Vice President of Lake Powell Improvement Corporation, opposed the designation based on alleged degradation of property values and tax base, negative impact on growth and increase in road maintenance costs. Agency staff encouraged workshop participants and members of the public to submit information, including economic information, that would aid in the decision-making process. Only general and speculative information was received, with the exception of a response from the Department of Transportation that costs of future construction and expansion of the Phillips Inlet bridge, part of four-laning Highway 98, would be increased by $1.5 million as a result of the OFW regulations. DER sent a letter to Craig Crockard, received on April 2, 1991, requesting specifics as to the property owners' development plans and estimated economic impacts by April 5th. Crockard responded that the deadline was too short and that it was obvious that the decision had already been made. At no time, up to and including the hearing before the Environmental Regulation Commission (ERC), did Petitioners or other opponents provide information as to specific economic impacts of the proposed designation. The proposed rule would add the following area to rule 17- 302.700(9)(i), F.A.C. specifying special waters under the OFW designation: Special Waters * * * Lake Powell, Phillips Inlet, and all tributaries to Lake Powell as bounded by the following described line: Begin at the Northwest corner of Section 26, Township 2 South, Range 18 West; thence East to the Northwest corner of Section 29, Township 2 South, Range 17 West; thence South to the Northwest corner of the SW 1/4 of Section 29, Township 2 South, Range 17 West; thence East to the West line of Section 27, Township 2 South, Range 17 West, thence South to the mean high water line of the Gulf of Mexico; thence meander Northwest along the mean high water line to the West line of Section 35, Township 2 South, Range 18 West; thence North to the point of beginning ( - - 91). * * * In making its determination to recommend OFW designation for Lake Powell to the ERC, the Department compared Lake Powell to other water bodies. Lake Powell was found to be exceptionally ecologically and recreationally significant in terms of size, water quality and recreational usage. The Department makes its determination as to whether the proposed water body is exceptional by making direct comparisons to features of other water bodies, and by relying on the professional judgements of others familiar with the particular class of water bodies. Lake Powell has been compared by professionals familiar with other water bodies in the area and in their opinion it has exceptional value as an ecosystem. The Department relied on professional judgement of this type as well as its own findings when making the determination that Lake Powell was exceptional. Lake Powell is located in Bay and Walton Counties in Northwest Florida adjacent to the Gulf of Mexico. Its total surface area of 737 acres makes it the largest by far of any of a series of similar lakes in the area. Seven small streams provide fresh water to the lake; periodically Phillips Inlet, connecting the lake to the Gulf of Mexico, opens or closes. When the inlet is open, the lake becomes estuarine in nature. Most of the shoreline of Lake Powell is still undeveloped and the lake is significant in that it has experienced only minimal adverse impact from human activity. There are no permitted point source discharges to Lake Powell. It is basin-shaped, with a shallow shell, steep sandy slopes, and a flat bottom ranging from approximately 10 to 20 feet deep. Silty, high organic sediments in the water are amenable to degradation and are uniquely sensitive to pollution. Restricted flushing and the opportunity for development growth in the area add to that sensitivity. Lake Powell is a Class III waterbody. Water quality in the lake is good, and meets Class III standards; some parameters are as good as Class II standards. The low dissolved oxygen level in the lake is a result of natural conditions, is not a result of pollution, and is therefore not a violation of the Class III standard for dissolved oxygen. Lake Powell is one of the lakes in the state that is part of the water quality sampling effort known as Lake Watch. A benefit of OFW designation to this effort will be that Lake Powell, absent degradation, can serve as a control lake to compare other Lake Watch lakes throughout the State. At least 170 species of birds, (trust resources of the US Fish and Wildlife Service), have been observed and are dependent on Lake Powell. Unusual species include the piping plover (federally and state designated threatened), snowy plover (state designated threatened), least tern (state designated threatened), and bald eagle (federally designated endangered and state designated threatened). These species have a direct dependence on Lake Powell for habitat, feeding, or nesting areas. They are dependent on non-trust species such as small fishes which could be impacted by chemicals introduced to the lake. Edwin James Kepner, a biologist for the National Marine Fisheries Service, has identified three new species of nematodes which so far have been uniquely found in Lake Powell. Although nematode species are among the most abundant on earth (97,000 individuals may be found in a single rotting apple), they are a highly significant part of an ecological system and must be understood and studied for any understanding of marine communities. The lake supports a diversity of animals. At least 87 species of macrobenthic invertebrates and 67 species of fin fish inhabit the lake, a diversity based on the system's intermittent connection to the Gulf and the lake's relatively pristine condition compared to other lakes. One would expect to find even more diversity, 3 to 4 times more species, if better and more accurate sampling methods were employed. Lake Powell presents a unique nursery area, since most large predator fishes do not have access to it. The lake presently supports a variety of recreational activities, including canoeing, sailing, windsurfing, water-skiing, fishing, crabbing and picnicking. This recreational use has increased during the last five years. Lake Powell is ranked 36th out of 361 lakes statewide in a 1982 study of recreational usage. In terms of potential to the public for recreational usage, Lake Powell has three public access points to the lake, and a possible fourth. Public access is gained by a Bay County public park and by way of Gulf View Drive, which is owned by Bay County and used to launch boats. There is a public dock in Walton County which is also used extensively. The fourth access is currently the subject of an inquiry by the Bay County Audubon Society. The unusual quality of recreational experience lies in the pristine nature of the lake and the fact that it is located not far from the Miracle Strip in Panama City Beach. The ERC Commissioners, who were taken on a tour of the lake, were able to contrast the two areas and found that Lake Powell had unusual recreational value. Lake Powell provides an exceptional educational opportunity, and with its many different types of habitat it is a compact, manageable educational laboratory. As compared to the St. Andrews Bay System it would be much easier to collect samples, obtain information on biotic communities and generally conduct research on the effectiveness of regulatory programs, due to the manageable size of the lake. The proposed amendment to Rule 17-302.700(9)(i), F.A.C., to designate Lake Powell as an OFW would potentially affect future Department permit applicants by requiring they provide the Department with reasonable assurances that the proposed project is clearly in the public interest and that the proposed project would not lower existing ambient water quality standards (Rule 17-4.242, F.A.C.); by requiring that direct stormwater discharges into the lake include an additional 50% treatment level (Rule 17-25.025(9), F.A.C.); and by reducing the exemption for private residential docks from 1000 square feet to 500 square feet (Rule 17-4.04(9)(c), F.A.C.). These requirements will result in increased costs to permit applicants, although the costs cannot be calculated at this time since there are no such projects firmly proposed to the Department. The primary beneficial effect of the proposed rule would be the protection of future water quality based on existing ambient water quality standards at time of OFW designation. Pursuant to Section 120.54(2), F.S., an Economic Impact Statement (EIS) was prepared by the Department. Section 120.54(2)(b), F.S., requires the statement to include: * * * An estimate of the cost to the agency of the implementation of the proposed action, including the estimated amount of paperwork; An estimate of the cost or the economic benefit to all persons directly affected by the proposed action; An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; A detailed statement of the data and method used in making each of the above estimates; and An analysis of the impact on small business as defined in the Florida Small and Minority Business Assistance Act of 1985. Additionally, Rule 17-302.700(4)(e) provides: An economic impact analysis consistent with Chapter 120, shall be prepared which provides a general analysis of the impact on growth and development including such factors as impacts on planned or potential industrial, agricultural, or other development or expansion. It is undisputed that the EIS properly addressed the costs of implementation to the Department. The EIS identified the kind of Department permit applicant that would potentially be affected by the rule amendment, and what kinds of developmental impacts could be expected by operation of other Department rules. The EIS did not identify any specific costs that would be attributable to the rule, as the Department was unaware of any specific development plans for the lake that would be subject to the Department rules. Existing development activities are grandfathered and would not be affected by the more stringent requirements. The Department stated in its EIS that the overall costs imposed on future development due to the proposed OFW designation would depend on both the nature of the development and its impact on the ambient water quality of the lake. Since the type and nature of future development in the area is uncertain, an estimate of the potential aggregate costs associated with the proposed OFW designation could not be made at the time the EIS was prepared. The EIS properly addressed the costs of the proposed rule to the parties, based upon the facts as known to the Department. The benefits to the public of the rule were stated to be largely environmental, as a result of protection of future ambient water quality standards in the lake. The EIS cited an economic benefit to land owners around the lake in the form of enhanced property values due to water quality protections of the OFW designation, water quality being an important variable in determining property values of waterfront property. That property values would be enhanced is based on the DER economist's study of another state's experience and experience with OFW designation in other Florida counties. The EIS properly addresses the benefits of the rule. The EIS states that there will be no significant effect on competition as a result of the proposed OFW designation; Petitioners have not presented any evidence to the contrary. The EIS adequately addresses the rule's effect on competition. The EIS states that the proposed OFW designation is not expected to create any significant adverse disproportionate impacts on small businesses, as required by Section 120.54(2)(b)5., F.S. As Petitioners have not introduced any evidence to the contrary, the EIS adequately addresses this issue. The EIS states that appropriate economic analysis techniques were employed preparing the EIS. Petitioners participated in the rulemaking process; they attended the Panama City workshop when economic information was solicited; they submitted written comments, none of which provided specific economic information; and they participated in the ERC hearing but offered no evidence to the Commission regarding economic impacts of the rule. The type of information they suggest that the Department should consider was not submitted by them, or anyone else, during the rulemaking process or this hearing. The evidence shows that the Department considered all comments submitted throughout the rulemaking process in making the recommendation of OFW designation to the ERC. The EIS properly explains the data and methodology used in its preparation, and this data and methodology was adequate to estimate the economic impacts of the rule. In January 1991, the Bay County Board of County Commissioners amended the County's comprehensive plan to provide special protection for Lake Powell. These provisions include more stringent requirements for stormwater retention and detention, an objective to maintain Lake Powell's water quality at its present level, restriction on use of household septic tanks, designation of a low-density residential zone, and prohibition of point source discharges which would lower existing water quality. (Joint Exhibit #1, Appendix D) Both parties have invoked the plan amendments for their own purpose. Petitioners argue that the plan amendments provide the same or greater protection than the proposed OFW designation and that the designation is not needed. This argument ignores the fact that at least 10% of the lake lies within Walton County, outside Bay County's jurisdiction. DER did not require Bay County to amend its plan and could not require it to maintain the new Lake Powell protections indefinitely. The OFW designation does not detract from or conflict with the local government's commendable initiative, but rather augments it. Respondent, DER, addresses the plan in its modified EIS where it discusses the contention by the Department of Transportation (DOT) that OFW designation will add $1.5 million in costs to widen a road at the Phillips Inlet bridge. DER's economist concedes that designation will result in additional costs and has discussed that in the EIS. Because he has not received back-up data from DOT he is unable to confirm that the cost will be as much as DOT asserts. He also attributes the increase to the new stormwater requirements of the Bay County comprehensive plan, and concludes the additional costs due to OFW designation might be zero. (Joint Exhibit #2, p. 7) Even if misplaced, the attribution of costs does not invalidate the EIS or the proposed designation. The EIS generally describes potential costs and provides a basis to weigh the environmental, social and economic costs against the environmental, social and economic benefits. In summary, the facts above support the ERC's finding that the waters selected for designation are of exceptional recreational or ecological significance and the benefits of designation outweigh its costs.
The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue There are two sets of issues to be considered in this matter which require separate determination. The issues in D.O.A.H. Case No. 83-2133 pertain to a notice of violation and orders for corrective action filed against Michael H. Hatfield related to the alleged construction of a causeway from a mainland shoreline to an island owned by Hatfield. In particular, that action by the Department alleges certain violations of environmental law and demands restoration of the area in which the causeway was constructed. The companion case, D.O.A.H. Case No. 84-0465, concerns Hatfield's request to construct a causeway from the mainland to the island in a location apart from the existing causeway. The Department has denied Hatfield's request for necessary permission to install that causeway.
Findings Of Fact Michael H. Hatfield is the owner of property in Marion County, Florida. That property is located on Lake Nicatoon, a 307 acre nonmeandered water body. Lake Nicatoon is a Class III water body as defined in Chapter 17-3, Florida Administrative Code. To gain access to the island from the mainland, Hatfield sought permission from the Department of Environmental Regulation to construct a causeway from the mainland to the island. The area between the mainland and the island is subject to water level fluctuations in that at times it is essentially dry and other times is under the waters of Lake Nicatoon. His application for environmental permits was filed on May 13, 1980. A copy of that application may be found as Department's Exhibit No. 4, admitted into evidence. His proposed project calls for the placement of approximately 525 cubic yards of fill in wetlands and littoral zones adjacent to the mainland and island. Per the application, the causeway would be 7 yards wide at the bottom and a length of approximately 73 yards and is to be constituted of sand and crushed concrete block. In particular, Hatfield wishes access to allow construction of a residence on the island and to gain entrance to the residence after construction. The Department of Environmental Regulation reviewed the application and on May 27, 1980, made a request to Hatfield to provide additional information related to his proposal. A copy of that request for additional information may be found as part of Department Environmental Regulation's Exhibit No. 3, admitted into evidence. Among the items requested was information from local government related to that entity's approval of the project in accordance with Section 253.124, Florida Statutes. This request was made based upon the perception by the Department of Environmental Regulation that Lake Nicatoon was found in the Florida Lakes Gazateer of Meandered Water bodies. The Department continued to operate on this erroneous assumption throughout the permit review process. Unknown to the Department, the lake was a nonmeandered lake which was discovered by Hatfield and verified on September 8, 1980, through an affidavit of the Division Director of State Lands for the State of Florida. A copy of that affidavit may be found as Hatfield's Exhibit No. 2, admitted into evidence. In effect, although the Department had made a good faith request for information pursuant to chapter 253.124, Florida Statutes, that information was not necessary because Lake Nicatoon is nonmeandered and not subject to Chapter 253, Florida Statutes, jurisdiction. Additionally, the requested hydrographic information pertaining to Chapter 253, Florida Statutes, was not needed. Among the other items requested in the way of additional information was item No. 6, pertaining to the placement of fill. That request was not complied with. Requested information related to a plan view was not complied with. Requested information in the category of "notes and drawings" was not complied with. Requested information pertaining to plans for complying with state water quality standards for Class III waters as related in Section 17- 3.121, Florida Administrative Code, was not complied with. These materials were relevant to the permit review process and the request for the information was never modified nor abandoned by the Department, notwithstanding discussions between the parties in an attempt to reconcile their differences in the permit assessment process. Those suggested alternatives to grant Hatfield access were not satisfactory to Hatfield and the original description of his project as set forth in his application of May 1980, has remained constant throughout the permit review process to include the final hearing. Generally, the parties' discussion of the installation or a bridge between the mainland and the island or the placement of a temporary steel road during the course of construction of his residence on the island did not promote a modified permit application. Finally the indication by staff members of the Department of Environmental Regulation that the project envisioned by his original application would not likely be approved did not cause a change in the obligation to respond to the request for additional information. Even though Hatfield became aware that it was unlikely that the staff would look with favor upon the project as proposed, in making its recommendation as to the issuance or nonissuance of the permit, the staff attitudes in the review process could only have become accepted with finality at the point of entering the Recommended Order. Consequently, it was incumbent upon Hatfield to respond to the request for additional information, in that the information sought was relevant to a consideration of the project which would be examined in the course of the final hearing. The discussions, related to the grant of permission to gain access by placement of a structure between the landslide and the island, entered into by the Department and Hatfield, briefly mentioned before, involved 1) the possibility of the construction of a bridge, 2) use of a metal roadway during the buildout of his residence and 3) his proposal as offered through the application. The bridge proposal advanced by Hatfield was for a span of 20 to 30 feet end the Department desired a span of 200 feet. The reason for the length of bridge required by the Department was to assure protection of a reasonable amount of the lake ecosystem between the landside and the island. Hatfield found the Department's proposed bridge length to be unacceptable due to financial reasons. He likewise did not like the idea of a temporary utilization of a steel roadway to the island during the construction of his residence. Hatfield preferred a permanent road allowing vehicular traffic from the mainland to the island. In conjunction with this alternative offered by the Department, Hatfield could later access the island by utilization of a boat on those occasions when the waters of Lake Nicatoon stood between the landside and the island. While Respondent's application for dredge and fill permit was being considered, an inspection of the property made in the summer of 1982, revealed that a causeway connecting the mainland and Hatfield's island property had been constructed. This causeway is depicted in red on Department's Exhibit No. 10, admitted into evidence, a series of aerial photographs. Ground shots of the causeway may be found as Department of Environmental Regulation's photographic Exhibits No. 8 and No. 9, admitted into evidence. The causeway was primarily constructed by the dredge of material and placement of the material immediately next to the dredge site with an overlay of offsite fill. Respondent was responsible for the construction of this causeway. The causeway is not found in the location contemplated by his permit application and permission was not given by the Department of Environmental Regulation to construct the causeway. This construction occurred in an area dominated by the vegetative species beak rush (Rhynchospora tracyi). Having placed the causeway in this location, Hatfield has created a stationary installation which caused pollution in the course of that construction and can reasonably be expected to be a future source of pollution, in that the dredging and placement of fill and the effects of the structure after construction have emitted and shall emit in the future, substances that are harmful to plant and animal life, in contravention of the Department of Environmental Regulation's rules. By this installation, an alteration in the chemical, physical and biological integrity of the waters of the state has been occasioned by the destruction of submerged land vegetational communities which provide water treatment, and food and habitat for fish and wildlife. When the fill was placed, the filtration and assimilation system of Lake Nicatoon was adversely affected through the removal of existing wetland vegetation. Were the applicant granted the opportunity to install the proposed causeway, the same adverse effects or problems could be expected with that installation. Having discovered the existence of the causeway, and after warning Hatfield that this installation was in violation of regulatory statutes and rules related to the Department's responsibility in environmental matters, Hatfield was served with a notice of violation and orders for corrective action from the Department of Environmental Regulation. The date of this action was June 1983. A copy of that document may be found as Department's Exhibit No. 3, admitted into evidence. In this same time frame, the Department continued to evaluate the permit application of Hatfield related to the proposed causeway and an application appraisal for that proposal was made on June 6, 1983. A copy of that appraisal may be found as Department's Exhibit No. 2, admitted into evidence. Subsequent to that time, and having failed to receive the aforementioned requested additional information from the Respondent, the Department issued its intent to deny the application related to the proposed causeway. A copy of the intent to deny may be found as Department's Exhibit No. 5, admitted into evidence. The date of the denial was November 4, 1983. A more detailed examination of the area in question on the northern shoreline of the lake on the mainland side, shows that natural vegetation has been replaced with a Bahla type of grass. The gradient dropping toward the lake proper reveals upland grasses giving way to submerged species such as maiden cane (Panicum hemitom), pickerelweed (Pontederia lanceolata) and pond lilies (Nymphaea). In this area, the transitional species to be found include St. John's wort (Hypericum fasculatum) and switch grass (Panicum virgatum). Between the landside and the island, in the direction of the island, there are less rooted plants. The dominant plants in this vicinity are pond lilies. The distance to be traversed between the landside and the island related to landward extent of the lake on the landside and island where the proposed causeway would be located is approximately 550 feet, and net the 225 feet described in the application. As you approach the island from the landside, the last approximately 150 feet along the proposed causeway's alignment is dominated by transitional freshwater species to include doheen holly (Ilex cassine), button bush (Cephalanthus occidentalis), St. John's wort (Hypericum fasculatum), and switch grass (Panicum virgatum). The island, itself, is dominated by live oak and sable palm. To summarize, the area between the landside shoreline along the lake and the island shoreline, is dominated by submerged and transitional freshwater species as found in Rule 17-4.02(17), Florida Administrative Code. In the area of the proposed causeway are found detrital feeders, the most numerous of which are amphipods. There ore also larval insects and gastropods, bivalves and freshwater shrimp. Crayfish, frogs and tadpoles are found in this area. In addition, species of fish include mosquito fish, least killfish, shiners, blue spotted sunfish, juvenile largemouth bass, silverside and juvenile catfish. Bird species observed in the area are blue heron, snowy egret, lympkins and ibis. Soft-shell turtles have also been observed in the vicinity of the project site. Should the construction of the causeway be allowed, short and long-term adverse effects on surface waters of Lake Nicatoon can be expected and these effects will be negative. With installation of the causeway, there would be a permanent elimination of the water bodies' littoral zone vegetative community which is important in converting available dissolved nutrients into food material in the aquatic ecosystem. The vegetation also assists in the cleansing of the ambient water and by that action reducing pollution loading. With the construction of the causeway, state water quality standards related to biological integrity, Section 17-3.121(7), Florida Administrative Code; nutrients, Section 17-3.121(17), Florida Administrative Code; and turbidity, Section 17-3.061(2)(r), Florida Administrative Code, can reasonably expected to be violated. Hatfield has failed to give reasonable assurances that the short and long-term impacts of the construction of the causeway would not violate and continue to violate water quality standards as alluded to. These problems as described exist while the unauthorized causeway remains. Hatfield, by actions involving private parties and the State of Florida, Department of Environmental Regulation, has sought necessary easements to gain access to his island property. While successful in this undertaking, these successes do not include the grant of a prohibition against the Department of Environmental Regulation performing its regulatory responsibility. In particular the decisions in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, Florida, Case No. 83-1826-C, Michael Hatfield, Plaintiff v. State of Florida, Department of Environmental Regulation, Defendant, granting partial Summary Judgment for the plaintiff and Defendant's Motion to Dismiss do not bar the Department from fulfillment of its regulatory charge. A copy of these decisions of court are found as Hatfield's Exhibit No. 7, admitted into evidence. In order to return the area where the unauthorized causeway has been placed to its prior existing condition, it would be necessary to remove the fill material and return elevations at the site to their prior level before the construction of the causeway. In addition, beak rush should be replanted in the areas where this dominant vegetation has been removed. An amount of $30.75 has been incurred in the way of cost to prosecute D.O.A.H. Case No. 83-2133
