Respondents. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, WILLIAM B. THOMAS, held a formal hearing in this case on January 25, 1982, in Tallahassee, Florida.
For Petitioner: E. Gary Early, Esquire
For Respondent: None.
By Notice of Hearing issued on December 7, 1981, the Respondents were advised that a final hearing would be conducted on their request for a hearing dated October 8, 1981, relative to the Petitioner's Notice of Violation which had been issued on September 23, 1981, and served on the Respondents. At the time and place designated in the Hearing Notice neither of the Respondents were present, nor did anyone make an appearance on their behalf. Thus, the hearing took place as noticed.
The Department of Environmental Regulation presented three witnesses in support of its Notice of Violation, including a Field Inspector, an Enforcement Officer, and the Permitting Supervisor from its Pensacola Office. Twelve exhibits were offered and received in evidence.
The Respondents, Noel S. Brown and Carolyn D. Brown, are the owners of a parcel of land on the shore of the Yellow River, situated near the northeast corner of Government Lot 3, Section 30, Township 1 North, Range 27 west, in Santa Rosa County, Florida. In August, 1980, while engaged in an aerial inspection, an employee of the Department of Environmental Regulation noticed what appeared to be unauthorized filling activities on this property.
These filling activities occurred in the Yellow River marsh system. The Yellow River is classified as a Class II water of the State, an Aquatic Preserve, and an Outstanding Florida Water. These classifications entitle the Yellow River to special protection from degradation to its natural landward extent.
In response to the violation report submitted by the DER inspector, a warning letter was sent to the Respondents, the purpose of which was to provide them with notice of the alleged violation and the statutes and rules which DER sought to enforce. Such a warning letter is one means by which DER initiates an enforcement proceeding.
Several pieces of correspondence were exchanged between DER and the Respondents. DER repeatedly gave the Respondents notice of the statutes and rules which it alleged were being violated. In this correspondence the Respondents acknowledge receipt of the Department's communications. The Respondents also questioned the integrity and character of certain DER personnel and threatened the Department with a lawsuit for trespassing.
Due to the threatened trespass action, DER personnel deemed it advisable to obtain a search warrant prior to conducting an on-site inspection of the subject property. Such a warrant was obtained from the County Judge for Santa Rosa County.
On June 29, 1981, DER personnel conducted the on-site inspection, and determined that fill activities had taken place in a marsh area adjacent to and contiguous with the Yellow River without a permit from the Department. Access to the property was obtained pursuant to the search warrant.
The filling and bulkheading activities conducted by the Respondents around the boatslip occurred in an area dominated by cattail (Typha sp.), with lesser amounts of needle-rush (Juncus roemerianus) and sawgrass (Cladium jamaicensis). Each of these species is listed in Section 17-4.02(17), Florida Administrative Code. The area landward of the boatslip consisted of a broad band of transitional species dominated by salt meadow cordgrass (Spartina patens) and salt grass (Distichlis spicata), both of which are listed in Section 17-4.02(17), Florida Administrative Code, with some Fimbristyus spadicea. The transitional species listed above were, prior to the filling, adjacent and contiguous to an area dominated by needle-rush (Juncus roemerianus) which has, due to the fill, been isolated and impounded. Holes were dug in the fill, and the vegetation covered by the fill consisted of Juncus roemerianus and/or Cladium jamaicensis.
The Respondents at no time had a permit from DER to dredge and/or fill, issued pursuant to Chapter 403, Florida Statutes.
This activity of the Respondents resulted in the alteration of the chemical, physical, and biological integrity of the waters of the Yellow River, including the marsh area fringing the river, by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the lake waters. The discharge of fill onto the marsh areas in waters of the State has resulted in injury to the biological community that existed there.
As a result of the violations found on the property of the Respondents, DER served a Notice of Violation and Orders for Corrective Action on them. The Notice of Violation gave the Respondents notice of what DER considered to be violations on their property, and informed them of each statute and rule which DER considered to be violated.
The Orders of Corrective Action set forth the following requirements: "A. The Respondents shall conduct no further dredging or filling
activities or other construction in waters of the State unless they have
obtained the required permit from the Department or unless the Respondents receive notice from the Department that the project is exempted pursuant to Chapter 17-4, Florida Administrative Code.
Within 30 days of the effective date of the Orders for Corrective Action, the Respondents shall reimburse the Department for expenses incurred in investigating the violation in the sum of $483.60.
Within 45 days of the effective date of the Orders for Corrective Action, the Respondents shall submit a plan of total restoration which shall include the following minimum criteria:
Removal of all fill material in the jurisdictional marsh areas to their original contour elevations as indicated by the adjacent marsh areas and by any remaining root mats of marsh grass underlying the fill material.
Removal of the bulkhead from the waters of and landward extent of the Yellow River.
If natural revegetation or recruitment is determined to be insufficient, the Respondents shall within 30 days of such notice, revegetate the areas with an appropriate, suitable wetland vegetation. The vegetation shall be obtained from adjacent undisturbed marsh areas and planted utilizing 3" x 3" plugs centered 18" apart.
Excess spoil materials shall be placed in an approved upland area.
The Respondents shall take measures necessary to control and prevent sediment and/or runoff from entering Yellow River during construction, restoration and stabilization of the affected areas.
The Respondents shall initiate the restoration immediately upon notification of approval by the Department. In no event shall the restoration period exceed 180 days. In the event the Respondents' restoration plan is not acceptable or in accordance with the minimum features outlined in these Orders, the Respondents shall implement a plan of restoration as directed by the Department.
The Respondents shall allow authorized representatives of the Department access to and on the property during reasonable (daylight) hours for the purpose of determining compliance with the Final Order and/or rules and regulations of the Department.
Within 60 days of the effective date of the Final Order, the Respondents shall pay to the Department's Pollution Recovery Fund the sum of
$4,837.58 for damages occurring to the waters of the State including its landward extent as a result of the unauthorized placement of fill material."
The restoration plan proposed by DER is a more desirable alternative to the status quo, in that it would restore much of the marshland vegetation which provides the filtrative and assimilative functions in removing nutrients and other pollutants. In addition, these orders are reasonable and are capable of being completed within the designated time periods.
The Notice of Rights contained in the Notice of Violation and Orders for Corrective Action advised the Respondents of their right to contest the DER findings, and informed them how to do so. By letter dated October 8, 1981, the Respondents requested a hearing. This request was sent to the Division of Administrative Hearings on October 20, 1981.
The Respondents continue to operate and maintain the stationary installation, consisting of a bulkhead and fill, on the subject property without an appropriate and valid permit from DER.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to this action and over the subject matter. Sections 120.57(1), 120.60, Florida Statutes (1981).
DER has authority to issue to the Respondents a Notice of Violation of the provisions of Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code, pursuant to Section 403.121(2), Florida Statutes (1981), and Section 17-1.58(1), Florida Administrative Code. DER also has authority to issue to the Respondents Orders for Corrective Action, pursuant to Sections 403.061(10), 403.121, and 403.141, Florida Statutes (1981), and Section 17- 1.58(2), Florida Administrative Code.
DER has the right to require the Respondents to make payment for expenses of the State in tracing, controlling, and abating a source of pollution under the authority of Section 403.141(1), Florida Statutes (1981).
DER has jurisdiction over the subject violation. Section 403.031, Florida Statutes, defines "waters" as including but not limited to, rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water including fresh, brackish, saline, tidal, surface, or underground. The Yellow River is a river in Santa Rosa County, Florida. As such, it qualifies under the statutory definition of "waters" of the State of Florida.
The Department asserts permitting jurisdiction under Section 403.087, Florida Statutes, and Section 17-4.28, Florida Administrative Code. The application of these two sections in no way depends on the determination of private or public ownership.
Section 403.087(1), Florida Statutes, provides that no stationary installation which is reasonably expected to be a source of water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by DER.
In this case, a clear relationship has been established between the degree of cumulative shoreline development and the deterioration of water quality. The only effect of the project will be to cause pollution.
The activities of the Respondents was undertaken without an appropriate and valid permit, as required by Sections 17-4.03 and 17-4.28(2), Florida Administrative Code, and Section 403.087(1), Florida Statutes. These activities constitute a violation of Section 403.161(1)(b), Florida Statutes.
The discharge of fill onto the submerged lands adjacent to the Yellow River, in waters of the State to their natural landward extent, has resulted in injury, and in the obliteration of animal, plant, and aquatic life. Thus, the Respondents have violated Section 403.161(1)(a), Florida Statutes. The areas which were filled are within the landward extent of waters of the State as defined in Section 17-4.02(17), Florida Administrative Code. The dominant plant community found there is salt meadow cordgrass (Spartina patens) and salt grass, (Distichlis sicata), which are species listed in Section 17-4.02(17), Florida Administrative Code. This vegetative index has been approved by the legislature in enacting Section 403.817, Florida Statutes, for the determination of the natural landward extent of waters of the State for regulatory purposes.
DER is not attempting to deny to the Respondents access to the Yellow River. Access can be achieved in a permitable fashion; however, substantial modifications will have to be made. Moreover, elimination of the bulkhead will not affect access. Consequently, DER is not unreasonably interfering with the enjoyment of the property of the Respondents, or with their riparian rights.
