STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 78-1234

)

JAMES BROWN d/b/a RAMROD )

DEVELOPMENT COMPANY, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing on Sugarloaf Key, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on July 10, 1979. The parties were represented by counsel:

APPEARANCES

For Petitioner: H. Ray Allen, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: David Paul Horan, Esquire

513 Whitehead Street

Key West, Florida 33040

By notice of violation dated March 8, 1978, petitioner alleged that respondent "[b]etween August 1, 1976, and January 27, 1977, . . . placed, or caused to be placed, crushed limerock fill" in "waters of the State, as defined in Section 403.031(3), Florida Statutes" and on "submerged lands or transitional zone . . . as defined in Section 17-4.02, Florida Administrative Code" without a permit, in violation of "Sections 17-4.03 and 17-4.28(2)(c), Florida Administrative Code, . . . Section 403.087(1), Florida Statutes, . . . [and] Section 403.087(a), Florida Statutes, . . . [and] Section 403.161(1)(b), Florida Statutes." The notice of violation also alleges that "[r]espondent's activities has resulted in the alteration of the chemical, physical and biological integrity of waters of the State . . . [and] injury to animal, plant and aquatic life . . . in violation of Section 403.161(1)(a), Florida Statutes."

By amended notice of violation dated October 13, 1978, petitioner alleged that respondent, after the issuance of the original notice of violation, "caused fill to be placed on top of and adjacent to the . . . fill" which was the subject of the original notice of violation; that the new "fill . . . covered .

. . mangroves adjacent to the . . . [first] fill and raised the elevation of the

. . . [first] fill in a manner which prevents tidal action from reaching

mangroves and marine organisms existing on submerged lands"; that the new filling "took place in waters of the State, as defined in Section 403.031(3), Florida Statutes, and the submerged lands or transitional zone of submerged lands of such waters, as defined in Section 17-4.02, Florida Administrative Code"; that respondent acted "knowingly without an appropriate and valid permit" in filling a second time; and that the new fill also "resulted in the alteration of the chemical, physical and biological integrity of waters of the State . . . [and] injury to animal, plant and aquatic life . . . in violation of Section 403.161(1)(a), Florida Statutes.

FINDINGS OF FACT

1. Mariposa Road appears on the plat of Ramrod Shores Marina Section subdivision (the Subdivision), which was filed in the official records of Monroe County in 1960; and on revisions of the original plan, one of which was filed in 1963, and the more recent of which was filed in 1969. On February 9, 1960, Monroe County accepted the dedication of Mariposa Road, and the County has owned it since. Mariposa Road borders the Subdivision on the east, separating it from Torch Ramrod Channel which leads into Niles Channel which leads into the Gulf of Mexico to the north; to the south Torch Ramrod Channel leads into Newfound Harbor which opens onto the Atlantic Ocean. Mariposa Road runs from State Road

   4 northerly through a tidal mangrove community along the water's edge to the northern edge of the Subdivision. Midway, Angelfish Road meets is perpendicularly.

   
   

2. Cape Sable Corporation, the original developer of the Subdivision, trucked in oolitic limestone fill to construct Mariposa and Angelfish Roads, and to repair the roads after occasional washouts. In 1968 or 1969, Sayward Wing drove a Studebaker north on Mariposa Road from its intersection with State Road

1. In 1969, James Lewis drove south on Mariposa Road. In his Lincoln, he was unable to drive up onto State Road 4 where Mariposa Road dead ends into it, but the found the road passable otherwise. By October of 1974, all fill placed on Mariposa Road south of Angelfish road had washed out. In October of 1974, or shortly before, a bulldozer cleared the road site south of Angelfish Road. In this stretch, the centerline of the marl roadbed was three to four tenths of a foot above the national geodetic vertical datum. In 1975, and again the following year, Monroe County placed fill on Mariposa Road.

   
   

   1. In June of 1976, there was fill on the site and a road ran north from Angelfish Road but there was no fill in Mariposa Road's roadbed south of Angelfish Road. In August of 1976, there was a standing water in the Mariposa roadbed between State Road 4 and Angelfish Road. By January of 1977, and possibly as early as November of 1976, rock fill had been spread in the roadbed from State Road 4 to north of Angelfish Road, however, and the roadway was complete. By October of 1977, 96 cubic yards of fill had been placed in the roadbed, but water stood on both sides of the roadway. About 278 cubic yards of fill had been placed on Angelfish Road.

      
      

   2. On the day of the hearing, fill had been placed in the Mariposa roadbed to a height two or three feet above adjacent ground, making the road two or three feet higher than it had been in January of 1977. The road was higher and wider than it had been in October of 1977. The area landward of Mariposa Road and north of Angelfish Road was dry, while much of the area immediately landward of Mariposa Road and south of Angelfish Road was wet. Sometimes water stands a foot deep west of Mariposa Road. Wetland vegetation predominated on lot 11 in block 4 and most of lots 12, 13 and 14 in block 2 of the Subdivision, all of which lie west of Mariposa Road. The tidal mangrove community intersected by

      Mariposa Road still supports wading birds and various marine for organisms, including killifish, needlefish and jelly fish. The mangroves' root systems stabilize the shoreline and filter out certain substances which would otherwise run off into the channel. Decaying plant matter produced by red and spider mangroves supports various microorganisms which constitute an early link in the food chain culminating in commercial fisheries. Mariposa Road separates plan matter on the west side of the road from the waters of Torch Ramrod Channel.

      
      

   3. In October of 1977, the rock which was used to build Mariposa Road was loosely packed. Water from Torch Ramrod Channel percolated through the road even when it was not high enough to move across the road in a sheet, which sometimes happened. There were also low lying places in the road through which tidal waters flowed to the landward side of Mariposa Road. With the addition of fill since then, water reaches wetlands west of the road only by percolation or capillary action, or in the form of rainfall. The wetlands are impounded and unable to drain into the channel. Significantly less frequent tidal inundation coupled with constant evapotranspiration will increase the salinity of the remaining water, which makes survival of the existing mangroves doubtful. These mangroves, which do not attain any great size because of the limiting effect of the caprock in the area, exhibited no signs of stress in October of 1977. On the day of the hearing, however, a biologist visited the site and concluded that the mangroves were suffering from stress and might die off altogether in as little two years, as a result of the interference with tidal action caused by the rock fill.

      
      

   4. Removal of the fill would ten to restore the mangroves west of Mariposa Road to health and would permit decaying plant matter and related microorganisms on the landward side of Mariposa Road to contribute to the ecosystem of Torch Ramrod Channel; several of the Subdivision lots would be opened to waters of the State.

      
      

   5. In October of 1977, respondent admitted repeatedly causing fill to be deposited in the Mariposa roadbed. Petitioner has never issued a permit authorizing respondent to place fill on Mariposa Road, not has respondent applied to petitioner for such a permit. Monroe County never authorized respondent place fill material or anything else on Mariposa Road. Petitioner's exhibit No. 7).

      
      

   6. Before March 8, 1979, petitioner reasonably expended six hundred four dollars and seventy-nine cents ($604.79) in investigating the source of the fill.

      
      

   7. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.

      
      

      CONCLUSIONS OF LAW

      
      

   8. Petitioner established that respondent caused colitic limerock fill to be placed on the roadbeds of Mariposa and Angelfish Roads some time between August of 1976, and January of 1977. Petitioner also established that additional fill was placed at these sites after issuance of the original notice of violation. The only facts tending to show that respondent was responsible for the additional fill were his admitted responsibility for the earlier fill and his proven status as successor to the original developer, which suggests a motive for filling. These facts are not legally sufficient, however, to

      establish that respondent caused fill to be placed after issuance of the original notice of violation.

      
      

   9. The sites on which respondent caused fill to be placed are on submerged lands within the meaning of Rule 17-4.02(17) and Rule 17-4.28(2), Florida Administrative Code. By filling, respondent displaced waters of the state, within the meaning of Section 403.031(3), Florida Statutes (1977).

      
      

   10. Respondent never applied for a permit to place fill in waters of the State, even though "filling activities which are to be conducted in or connecting to . . . bays, bayous sounds, estuaries, . . . natural tributaries thereto . . . [the] Atlantic Ocean . . . [or the] Gulf of Mexico," Rule 17- 4.28(2)(c), (e) and (f), Florida Administrative Code, require "a permit from the Department prior to being undertaken." Rule 17-4.28(2), Florida Administrative Code. Respondent contends that no permit is necessary for the improvement of a dedicated roadway. This argument might have more force if it came from the owner of the road rather than from respondent. Even the owner of an existing road, moreover, must apply for appropriate permits to alter the road. J. W. C. Company, Inc. et al v. Department of Regulation and Department of Transportation, No. 78-832 (Rec. order entered Dec. 6, 1978; adotped by final order entered Jan. 18, 1979) (complex source permit required for road widening). Pursuant to Rule 17-4.28, Florida Administrative Code, respondent should have obtained a permit before causing fill to be placed on Mariposa Road. See also Section 403.087(1), Florida Statutes (1978 Supp.), and rule 17-4.03, Florida Administrative Code.

       
       

   11. Petitioner established that respondent's filling between August 1, 1976, and January 27, 1977, after the previous fill had washed out, resulted in a violation of Section 403.161(1)(a), Florida Statutes (1977). In addition, respondent's failure to obtain a permit constitutes a violation of Chapter 403, Florida Statutes. Section 403.161(1)(b), Florida Statutes (1977). Accordingly, respondent "is liable tot he state for any damage caused . . . and for reasonable costs and expenses of the state in tracing the source. "

Section 403.141(1), Florida Statutes (1977). Although petitioner proved no money damages, petitioner did prove the costs of tracing. These costs and expenses are recoverable in an administrative proceeding. Samuel B. Love v. Department of Environmental Regulation, No. 78-279 (Final Order entered August 6, 1978); Department of Environmental Regulation v. Franklin P. Hatfield, Jr., No. 78-444 (Final Order entered July 21, 1978).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

1. That petitioner dismiss the amended notice of violation.

   
   

2. That respondent pay petitioner six hundred four dollars and seventy- nine cents ($604.79).

   
   

3. That respondent, within twenty days of entry of the final order, file an application for a permit or submit a proposed restoration plan and compliance schedule to petitioner for approval.

DONE AND ORDERED this 9th day of August 1979, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

H. Ray Allen, Esquire Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

David Paul Horan, Esquire

513 Whitehead Street Key West, Florida 33040

Docket for Case No: 78-001234

Orders for Case No: 78-001234