STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-1888

)

ARTHUR D. McMULLEN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on February 23, 1982, at 9:30 a.m. in the Oakland Building, Tallahassee, Florida. The issue for determination at the hearing was whether the respondent violated Florida Statutes, Chapter 403, and Florida Administrative Code, Chapter 17-4.28, and is subject to the Orders for Corrective Action set forth in the Notice of Violation dated June 9, 1981.

APPEARANCES

For Petitioner: Cynthia K. Christen

Assistant General Counsel 2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent: John R. Weed

605 South Jefferson Street Perry, Florida 32347

INTRODUCTION

At the hearing, petitioner Department of Environmental Regulation (DER) presented the testimony of David B. Scott, who was accepted as an expert witness in the areas of ecology and dredge and fill permitting, and Edward Barber, Jr., who was accepted as an expert witness in the areas of biology, the impacts of dredging and filling and water quality. Petitioner's Exhibits 1 through 4 were received into evidence. Frank DeVane and Arthur David McMullen testified on behalf of the respondent and respondent's Exhibits A through D were received into evidence.

Subsequent to the hearing the DER submitted proposed findings of fact, proposed conclusions of law and a proposed Recommended Order, and the respondent submitted a brief. These documents have been fully considered by the undersigned. To the extent that the proposed findings of fact submitted by the parties are not contained in this Recommended Order, they are rejected as being either not supported by competent, substantial evidence adduced at the hearing,

immaterial or irrelevant to the issues in dispute or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. Respondent McMullen is the owner of property located at Keaton Beach, Taylor County, Florida. The southern portion of the property borders on the Gulf of Mexico and the western portion borders on an artificial canal. Adjacent land lies to the east and north of the subject property.

   
   

2. Prior to August of 1980, respondent constructed or caused to be constructed on the southern and western portions of the property a vertical bulkhead or seawall approximately 106 feet long, with approximately 105 cubic yards of fill material behind it, creating a fill area 106 feet long by 12 feet wide. The respondent did not apply to the DER for a permit to proceed with this activity.

   
   

3. In September of 1980 and again in January of 1981, the DER sent warning notices to the respondent advising him that he was in violation of the statutes and rules governing permitting for stationary installations and dredging and filling activities. The petitioner received no response to these notices from the respondent. On June 9, 1981, the petitioner issued its "Notice of Violation and Orders for Corrective Action", alleging as facts that the bulkhead and fill area were placed within the landward extent of the Gulf of Mexico, that construction was undertaken without a permit and that the activity caused and will continue to cause pollution so as to harm and injure animal, plant and aquatic life. The "Orders for Corrective Action" included the payment of the DER's expenses and the complete restoration of the area.

   
   

4. A 1979 aerial photograph of the subject Keaton Beach area indicates that the southern property line of respondent's property formed a straight line with the southern property line of the adjacent property to the east of the respondent. The respondent's vertical seawall now extends waterward of the southern property line of the adjacent property, which is bordered with rip rap.

   
   

5. The exact determination of where the waters of the State terminate on the respondent's property cannot be made because that area is now covered by fill. The waters of the State bordering the adjacent property extend to the bands of grass behind the rip rap. This a be determined from the vegetation on the adjoining property and the condition of the shoreline. The petitioner's expert witness in ecology and dredge and fill permitting estimated that the respondent's bulkhead extends approximately 12 feet waterward of the mean high water line.

   
   

6. The area surrounding respondent's property was dredged and/or filled in the late 1950's, and at least a portion of the respondent's property was created from the fill. Loose rocks from the dredging operation were placed on the borders of the fill, and the site began to stabilize and develop its own shoreline with wetland vegetation. At least some of the property to the south of respondent's property was dredged in order to connect or provide better navigational access to the two canals to the east and west of the property. During periods of extreme low tide, both edges of the dredged area are out of the water.

7. The construction of the vertical seawall with fill placed behind it covered vegetation found in the landward extent of waters of the State and eliminated the existing littoral and intertidal zones. The grasses and vegetation which were displaced served an important filtrative function and nutrient transport has now been interrupted. Significant revegetation of the area in front of the bulkhead cannot be expected in its present condition. Erosion and runoff from the area behind the seawall can reasonably be expected to be a source of pollution so as to harm or injure animal, plant or aquatic life.

   
   

8. The placement of rip rap, or a loose aggregation of broken concrete ore rock piled up to form a wall, is a more environmentally compatible method of land retention than the construction of a vertical seawall. The rip rap has the ability to dissipate energy by breaking up waves, and retarding the erosive effects of wind and wave action. Unlike a seawall, vegetation can grow around the rip rap.

   
   

9. The respondent did have in his possession a letter dated September 28, 1977, from David B. Scott, an Environmental Specialist with the DER, which stated:

   
   

   "In regard to your letter of September 26, 1977, a permit from this agency will not be needed for seawall construction in an artificial canal. All that is required is that your seawall not impede navigation and that you do not violate existing water quality standards."

   
   

   This letter was addressed to a Mr. Dennard L. White, who was believed by respondent to be a nearby property owner. Mr. White's letter of September 26, 1977, was not presented at the hearing. The DER is not attempting in this proceeding to exert jurisdiction over the seawall built on the western side of respondent's property, which fronts the artificial canal.

   
   

10. The costs and expenses of the DER in investigating the violations alleged in this proceeding amounted to $216.76.

    
    

    CONCLUSIONS OF LAW

    
    

11. A permit is required from the DER prior to the construction of any stationary installation which will reasonably be expected to be a source of pollution to the waters of the State. Section 403.087, Florida Statutes. "Pollution" includes the presence in the waters of the State of any manmade alteration of the chemical, physical or biological integrity of the water in quantities which are or may be potentially harmful to animal or plant life. Section 403.031(2), Florida Statutes. Dredging or filling activities which are conducted in the Gulf of Mexico to its landward extent require a permit from the DER prior to being undertaken. Rule 17-4.28(2), Florida Administrative Code.

    
    

12. The evidence adduced in this proceeding demonstrates that the construction of the vertical seawall, and the placement of fill behind it, on the southern portion of the subject property can reasonably be expected to result in pollution of the waters of the State. The presence of submerged and transitional marine species on the adjacent property, as well as aerial photographs illustrating a former straight and continuous property line between the adjacent property and the respondent's property, demonstrate that the

    vertical seawall and at least a portion of the fill placed behind it are within the landward extent of the Gulf of Mexico. The elimination of the littoral and intertidal zones, as well as the potential for runoff and erosion from the fill, can reasonably be expected to result in pollution so as to harm or injure animal, plant or aquatic life.

    
    

13. One claiming an exemption from environmental permitting requirements has the burden to adequately demonstrate that his situation falls squarely within the exemption allowed. The evidence adduced in this proceeding clearly demonstrates that the construction of this seawall and the backfilling does not fall within any of the permit exemptions set forth in Rule 17-4.04(10), Florida Administrative Code. The waters to the south of the bulkhead do not constitute an artificially created waterway which is defined by Rule 17-4.04(10)(f) as

    
    

    "a body of water that has been totally dredged or excavated and did not overlap natural surface waters of the state". . .[and it includes] "existing residential canal systems".

    
    

    Whether the dredged portion of the waterbody south of respondent's property is described as a channel or a canal, it appears obvious from the photographs introduced into evidence at the hearing that the area was the Gulf of Mexico before the dredging and is presently the Gulf of Mexico. In addition, the exemption from permitting for seawalls in artificially created waterways is only applicable where construction will not violate existing water quality standards. The elimination of vegetation and organisms which serve an important filtrative function and the potential for runoff can be expected to adversely affect the quality of the waters of the Gulf. The constructed bulkhead and fill did not constitute the restoration of an existing seawall, so as to fall within the exemption of Rule 17-4.04(10)(h), and it is not between and adjoining at both ends existing seawalls, so as to fall within the subsection (s) exemption of Rule 17-4.04(10), Florida Administrative Code.

    
    

14. In summary, the record clearly illustrates that the construction and filling activities of the respondent were undertaken within the waters of the State without a valid permit, and that pollution was caused and is expected to continue so as to harm or injure plant or aquatic life. Such activity constitutes a violation of Section 403.161(1)(a) and (b), Florida Statutes. In addition to other potential penalties, one who violates Section 403.161(1) is liable to the State for the reasonable costs and expenses of the State in tracing, controlling and abating the source of discharge and the pollutants and in restoring the property to its former condition. Section 403.141, Florida Statutes. The DER's incurred costs of investigating this violation totalled

$216.76 and it is entitled to reimbursement from the respondent. Respondent is responsible for restoring the property to its former condition in the manner set forth in the Orders for Corrective Action attached to the Notice of Violation dated June 9, 1981.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that respondent be found guilty of violating Section 403.161(a) and (b), Florida Statutes, and that he be ordered to comply with and perform the Orders for Corrective Action dated June9, 1981.

Respectfully submitted and entered this 19th day of March, 1982, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of March, 1982.

COPIES FURNISHED:

Cynthia K. Christen, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

John R. Weed, Esquire

605 South Jefferson Street Perry, Florida 32347

Victoria Tschinkel Secretary

Department of Environmental Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Richard M. Davis, Esquire

Suite 320 Lewis State Bank Bldg. Tallahassee, Florida 32302

Docket for Case No: 81-001888

Orders for Case No: 81-001888