May 26, 2009

Brief for BOCC 26 May 09 – CRCP DA hearing DA-07-03.

I refer to the documents submitted on May 15, 2009, for the Public Record and information of the Commissioners, the salient points of which are as follows:

1. The wetlands located to the east of the SUBJECT PROPERTY, together with those to the south are “Connected Wetlands”, in that they capture, cleanse and convey “Tributary” waters flowing into riverine Kings Bay via spring vents located there, an existing nexus for many millennia.

2. It follows that the wetlands and tributary flows constitute a proximate integral ecosystem of “waters of the United States”.

3. Jurisdiction Under the Clean Water Act is “the controlling rule of law” for any proposed activity or discharge at risk of degrading the water quality of Kings Bay by contaminating tributary flow.

4. Moreover, the federal rules require an applicant for a permit to undertake such an activity or discharge to affirmatively demonstrate it to be necessary and desirable under federal standards, and clearly in the public interest to do so.

5. The decision handed down by the Ninth District U.S. Circuit Court in the case of Northern California River Watch v. City of Healdsburg, No. 04-15442 (9^th Cir. Aug. 6, 2007) refers.

6. The tributary waters flow in several unconfined conduits under the SUBJECT PROPERTY.

7. In addition, Kings Bay is a navigable-in-fact listed Special Water under the classification of an Outstanding Florida Water, for which degradation of water quality from that extant on 1 March, 1979, is prohibited under Florida law.

8. The draft Citrus County Development Agreement of 5/21/09, fails to ensure protection of water quality in Kings Bay under the Clean Water Act, especially as it conveys right to the OWNER or DEVELOPER to assign rights to third parties to provide vital functions without specific a priori conditions of that Agreement to compel performance under the provisions of the Clean Water Act (paras. 16 F, 16 I, 19 A (2), and B, and 20). Paragraphs 11 and 24 appear to limit application of the Clean Water Act.

9. It also fails “to affirmatively demonstrate clear public interest” of any such proposed DEVELOPMENT on the SUBJECT PROPERTY.

In view of the forgoing, the Citrus County Board of County Commissioners is urged to deny the said CITRUS COUNTY DEVELOPMENT AGREEMENT.

Notwithstanding the above being read into the public record, the commissioners and the lawyer for the DEVELOPER declined to ask questions.
The commissioners voted to approve the CITRUS COUNTY DEVELOPMENT AGREEMENT 5 votes to 0.