STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2944

)

DANNY F. NAIL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its designated Hearing Officer, Michael Pearce Dodson, held the final hearing in this case on March 26, 1982, in Cocoa Beach, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Nancy E. Wright, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: Allen C.D. Scott II, Esquire

MAXWELL & SCOTT, P.A.

12 North University Boulevard Jacksonville, Florida 32211

BACKGROUND

These proceedings began on October 9, 1981 when Petitioner, Department of Environmental Regulation (DER) entered a Notice of Violation against Respondent, Danny F. Nail. On November 17, 1981 Respondent served his Response and requested a formal administrative hearing on the allegations in the Notice of Violation. On November 23, 1981 the case was forwarded to the Division of Administrative Hearings for the assignment of a Hearing Officer and the scheduling of a final hearing. Petitioner subsequently moved for leave to file an amended Notice adding Mary Jane Nail as a co-Respondent. The Motion alleged that Ms. Nail is the wife of Danny F. Nail and is a tenant by the entireties in the land in question. This Motion was granted on February 8, 1982.

At the final hearing both parties presented the testimony of witnesses.

Petitioner offered Exhibits 1-17 which were received into evidence. Respondent offered Exhibits A and C-J which were received into evidence. Respondent's Exhibit B was received but only for purposes of illustrating the testimony of

Respondent's witnesses. At the close of Petitioner's case, Respondent moved for a dismissal of the Amended Notice of Violation as it related to Mary Jane Nail. The Motion was granted because Petitioner failed to offer any evidence connecting her with either the land in question or to any of the filling which took place on it.

Petitioner submitted a Proposed Recommended Order containing Findings of Fact. To the extent that the proposed findings are not reflected in this Order, they are rejected as being either not supported by the weight of admissible evidence or as being irrelevant to the issues determined here. Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d 1156, 1157 (Fla. 3d DCA 1982).

FINDINGS OF FACT

1. Respondent Danny F. Nail owns a parcel of land on the west side of Merritt Island in Brevard County, Florida, at Section 22, Township 23 South, Range 36 East. The land which fronts on the Indian River, a navigable Class III water of the State of Florida, is approximately 1/2 mile north of the town of Courtney.

   
   

2. Mr. Nail originally purchased the land in 1977 for a homesite but later decided to develop it for sale. At a cost of $5,000 he hired a contractor in the Spring of 1981 to place fill on his land in a rectangular area beginning 40 to 60 feet east of the mean high water mark of the Indian River. The fill extends 160 feet along a north-south line and 160 feet along an east-west line.

   
   

3. The eastern edge of the fill covers a slough which runs north to south beyond the limits of Respondent's property. To the south the slough enters the Indian River.

   
   

4. During the years 1959-60 the Brevard Mosquito Control District (District) ditched the slough and placed spoil in piles along the ditch banks. These spoil mounds formed a low berm along the west side of the slough on Respondent's property. There is another higher-berm immediately to the north of Respondent's property which was also the result of District works.

   
   

5. None of the activities of the Brevard Mosquito Control District has resulted in a change of the type or distribution of vegetation on Mr. Nail's land in the area of filling. Aerial photography taken prior to 1959 show marine and transitional vegetation species in the fill area. This evidence was supported by witness testimony that the filled area was part of a salt marsh prior to any mosquito control works.

   
   

6. The original earth and the spoiling of the District's works are sandy gray soil with an overlay of decayed organic matter. The fill which Respondent placed on his property is a distinctly yellow sand which is readily distinguishable from the original earth.

   
   

7. The dominant vegetation in the area 1/ of the fill is white mangroves (Laguncularia racemosa). Numerous white mangroves were knocked down and covered by placement of the fill. The area is also inhabited by Batis (Batis maritima), red mangroves (Rhizophora mangle) and glasswort (Salicornia). All of Respondent's property to the west off and including the now filled slough is within the landward extent of waters of the State of Florida. This is not an

   "isolated area" as described in Section 17-4.28(2)(g), Florida Administrative Code which has only an infrequent exchange with a water body such as the Indian River. The fill in question here covers a slough which is a contiguous part of the Indian River.

   
   

8. Respondent neither applied for nor obtained a permit from the Department of Environmental Regulation to allow placement of fill in waters of the state. The placement of the fill killed white mangroves in the fill area. As a result, the beneficial effect which marine vegetation has on maintaining water quality has been eliminated. This damage to the waters of the state can be remedied only by the removal of the fill and replanting of vegetation of the species recently destroyed.

   
   

9. Petitioner has incurred expenses in the amount of $253.65 in investigating the nature of the fill and its resultant damage.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case. Section 120.57(1), Florida Statutes (1981).

    
    

11. The Department of Environmental Regulation has jurisdiction to regulate activities which affect the quality of waters of the State of Florida. Chapter 403, Florida Statutes (1981), the Florida Air and Water Pollution Control Act. Those waters include the Indian River in Brevard County, Florida. Sections 403.031(3) and 403.817, Florida Statutes (1981). In order to determine the boundary of state waters the Legislature has provided in Section 403.817, Florida Statutes (1981):

    
    

    1. It is recognized that the levels of the waters of the state naturally rise and fall, depending upon tides and other

       hydrological, meteorological, and geologi-

       cal circumstances and features... The natural rise and fall of the waters is essential to good water quality, but often makes it dif- ficult to determine the natural landward ex- tent of the waters. Therefore, it is the intent of the Legislature that the Depart- ment of Environmental Regulation establish

       a method of making such determinations, based upon ecological factors which repre- sent these fluctuations in water levels.

    2. In order to accomplish the legisla- tive intent expressed in subsection (1), the department is authorized to establish

       by rule, pursuant to chapter 120, the method for determining the landward extent of the waters of the state for regulatory purposes. Such extent shall be defined by species of plants or soils which are characteristic

       of those areas subject to regular and peri- odic inundation by the waters of the state. The application of plant indicators to any areas shall be by dominant species...

       Pursuant to that section DER has promulgated Section 17-4.02, Florida Administrative Code which provides:

       
       

       Definitions. When used in this Chapter, the following words shall have the indicated meanings unless the context clearly indicates otherwise:

       (17) "Landward extent of waters of the state" is, pursuant to Section 403.817, F.S., that portion of a surface water body indica- ted by the presence of one or a combination of the following as the dominant species:

       Batis Batis maritima

       Red mangrove Rhizophora mangle

       White mangrove Laguncularia racemosa

       
       

12. Because the dominant vegetation in the area where Mr. Nail placed his fill is white mangroves, the area is within the landward extent of the Indian River.

    
    

13. Section 17-4.28, Florida Administrative Code requires:

    
    

    (2) Pursuant to Sections 403.061,

    1. or 403.088, F.S., those dredging or filling activities which are to be conducted in, or connected directly or via an excavated water body or series

       of excavated water bodies to, the follow- ing categories of waters of the state to their landward extend as defined by Section 17-4.02(17). F.A.C. require permit from the department prior to being undertaken:

       1. rivers and natural tributaries thereto; (Emphasis added)

    
    

    Mr. Nail did not obtain a permit authorizing the filling in issue here. He has therefore violated the foregoing rule of the Department. In addition, the placement of the fill has destroyed white mangroves in the fill area. This injury to plant life is contrary to Section 403.161(1)(a), Florida Statutes.

    
    

14. When such injury occurs Section 403.141(1), Florida Statutes (1981) provides:

    
    

    Whoever commits a violation specified in s. 403.161(1) is liable to the state for any damage caused to the air, waters, or property, including animal, plant, or aquatic life, of the state and for reasonable costs and expenses of the state in tracing the source of the dis- charge, in controlling and abating the source and the pollutants, and in restoring the

    air, waters, and property, including animal, plant and aquatic life, of the state to their former condition,...

    
    

    Mr. Nail is therefore liable to the state for the $253.65 in expenses which the Department incurred to investigate the unlawful fill.

15. In order to prevent adding to state waters through the activities of mosquito control districts Section 403.817(2), Florida Statutes (1981) provides:

    
    

    ... no landowner shall suffer any pro- perty loss or gain because of vegetation changes due to mosquito control activities conducted upon his property, provided these activities are or have been undertaken as part of a governmental mosquito control program. To the extent that certain lands have come within department jurisdiction pursuant to this section or chapter 253 solely due to insect control activities, these lands shall not be subject to permit- ting requirements for the discharge of dredge and fill material.

    
    

    Respondent asserted that the vegetation on his land was altered by the works of the Brevard Mosquito Control District. The facts do not support his assertion; therefore, the exemption of Section 403.817(2) from the use of vegetative indices does not apply.

    
    

16. In his argument at the final hearing, Mr. Nail requested that he receive an after-the-fact permit in order to allow the fill to remain in place. His request was based on the financial burden of restorative measures. This request may not be granted as Mr. Nail has failed even to file a permit application as required by Section 17-4.05, Florida Administrative Code.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the Department of Environmental Regulation enter a Final Order pursuant to Section 403.121(2), Florida Statutes (1981), requiring Respondent, Danny F. Nail, to abate the condition caused by his unauthorized fill as provided for in paragraph 16 of the Notice of Violation entered herein.

DONE and RECOMMENDED this 19th day of November, 1982, in Tallahassee, Florida.

MICHAEL P. DODSON

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 November, 1982.

ENDNOTE

1/ An area bordered on the north by Respondent's northern property line; on the west by the Indian River; on the east by the eastern edge of the filled slough and on the south by Respondent's southern property line.

COPIES FURNISHED:

Nancy E. Wright, Esquire Department of Environmental

Regulation

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

Allen C.D. Scott II, Esquire MAXWELL & SCOTT, P.A.

12 North University Boulevard Jacksonville, Florida 32211

Mary F. Smallwood, Esquire General Counsel

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental

Regulation

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

Docket for Case No: 81-002944

Orders for Case No: 81-002944