State officials say the 45-year-old fence across the Pithlachascotee River 1,000 feet west of Little Road will have to come down.
David DeCubellis, whose land straddles that portion of the river, says it won't.
"I don't intend to remove it, really," DeCubellis said Friday. "I don't think I am going to have to remove it. It's been there 45 years."
That doesn't matter, say officials in the Division of State Lands. In September, state surveyors determined that the river is "tidally influenced," that is, it rises and falls with the tides. The U.S. Supreme Court has ruled that land beneath the high water mark of tidally influenced water belongs to the state and, by extension, the public. Unless private property owners have a special permit from the governor and Cabinet, they cannot block passage, said DEP attorney Eugene "Mac" McClellan.
County and state records show no record of DeCubellis having such a permit.
The fence became a matter of contention in August, after Rick Swendsen and Diane McMahon opened the D & R Cotee River Bait, Tackle and Canoe Rental in downtown New Port Richey. Within days, their customers began coming back with complaints that their passage had been blocked by the barbed wire fence.
At least three of them complained to state Rep. Phil Mishkin. Mishkin asked the state Department of Environmental Protection in Tallahassee to look into the matter.
On Sept. 13 Bureau Chief Terry Wilkerson visited the site and decided it warranted further investigation. He sent state surveyors to see if the water in the river moved up and down with the tides. It did.
"We're trying to cooperatively work out with the landowner's attorney to get the obstacle removed," said Dianna Dartland, assistant director of the Division of State Lands. DeCubellis, who owns about 2,400 acres that border the river, will be given time to order and install a fence to keep his cattle confined, she said. This will mean either blocking their access to the river or getting permission from the state to let him fence down far enough into the water to keep them from escaping.
Either way, there will be an opening in the fencing wide enough to let boats and canoes pass through, Mrs. Dartland said.
The fence issue was complicated in August when a state DEP official told DeCubellis that his fence had been "grandfathered in." DEP investigator Don DePra said he based his decision on the fact that the fence was installed before the state began requiring permits for them.
This convinced DeCubellis that he has the right to keep his fence in place.
The matter of a permit for a fence was beside the point, said other state officials. Some, including DEP attorney McClellan, said it would be determined by the U.S. Supreme Court decision regarding tidal lands. Some, including state archivist Joe Knetsch, thought it might be determined by "navigability," that is, the ability to traverse the water in a commercial craft.
The Division of State Lands came down clearly on the side of tidal influences. So does Mishkin.
"I firmly believe that (river) is considered tidal and a person has no legal right to fence it off," he said Friday.
"Anything below mean high water line is regulated by the (state) board," Mrs. Dartland said.
Despite DeCubellis' combative words, Mrs. Dartland said she doesn't anticipate a lawsuit to get him to remove the fence.
"We want to re-establish the public's use of the public waterway without doing him any unnecessary harm," she said.