STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 82-908

) DUDLEY P. HARDY, J.D. ODOM, JR., ) and VERNIE PHILLIPS ODOM, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in the above-captioned matter, after due notice, at Starke, Florida, on August 12, 1982, before Thomas C. Oldham, Hearing Officer.

APPEARANCES

For Petitioner: Cynthia K. Christen, Esquire

Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

and

Michael Tammaro, Certified Legal Intern Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent: Dudley P. Hardy: None For Respondent: J. D. Odom, Jr.

For Respondent Vernie Phillips

Odom: None

ISSUE PRESENTED

Whether Respondents have violated Chapter 403, Florida Statutes by dredge and fill activities at Sampson Lake, Bradford County, Florida, and should therefore be subject to corrective action and costs, as set forth in Notice of Violation and Orders for Corrective Action, dated March 4, 1982.

This case arises from Petitioner's filing of a Notice of Violation and Orders for Corrective Action against Respondent Dudley P. Hardy on March 4, 1982, alleging that he conducted dredge and fill activities on property which he

owned adjacent to Sampson Lake without obtaining a departmental permit for such activities. The notice further alleged that such activities created a stationary installation reasonably expected to be a source of pollution, and sought to have the Respondent take corrective action by restoring the affected area, and also to nay investigative costs, pursuant to Chapter 403, Florida Statutes.

Respondent Hardy responded to the Notice of Violation and therein requested an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. He also averred that he only owned a one-half interest in the subject property, and that the other one-half interest was owned by J. D. Odom, Jr. and Vernie Phillips Odom, his wife.

Based upon Petitioner's request, a formal hearing under Section 120.57(1), Florida Statutes, was scheduled for July 14-15, 1982, but pursuant to Petitioner's Motion for Continuance, the hearing was rescheduled for August 12- 13, 1982, by Order dated May 24, 1982.

Petitioner thereafter amended its notice of violation to include J. D. Odom, Jr. and Vernie Phillips Odom as Respondents in the proceeding as indispensable parties. By Order dated July 7, 1982, Petitioner's Motion for Leave to Amend was granted.

By Order of Consolidation dated April 28, 1982, this case was consolidated with five other cases involving similar activities at Sampson Lake. (DOAH Cases Nos. 82-907and 02-909 - 82-912) However, prior to the scheduled hearing, counsel for Petitioner advised the Hearing Officer that the other cases had been resolved by consent orders.

At the hearing, Respondent J. D. Odom, Jr. appeared without counsel and was advised of his rights in a Chapter 120 administrative proceeding. He acknowledged his understanding of such rights and elected to proceed without counsel.

Petitioner presented the testimony of three witnesses and submitted ten exhibits. Respondent testified in his own behalf and submitted two exhibits.

After the conclusion of the hearing, Respondent J. Odom submitted a letter to the Hearing Officer, dated August 17, 1982, which enclosed a copy of a survey which had been previously received in evidence as Petitioner's Exhibit 1, and photographs which had not been received in evidence at the hearing. Petitioner filed a Motion to Strike these matters, and the motion is hereby partially granted. The additional photographs presented by Respondent can not be taken into consideration in this Recommended Order because they were not admitted in evidence at the hearing.

Petitioner's post-hearing Proposed Findings of Fact, Conclusions of Law, and Proposed Recommended Order has been fully considered, and those portions not adopted herein are deemed either unnecessary or irrelevant, or unsupported in law or fact. In like manner, the statements made by Respondent Odom in his

post-hearing letter that are unrelated to the photographs have been fully considered.

FINDINGS OF FACT

1. By warranty deed, dated March 12, 1980, Sampson Lake Properties, Inc. conveyed a parcel of the land located in Bradford County, Florida to Respondent,

   Dudley P. Hardy. The property is bordered by Sampson Lake on the west and Rowell Canal on the south. By warranty deed, dated July 10, 1980, Hardy conveyed an undivided one-half interest in the property to Respondents J. D. Odom, Jr. and Vernie Phillips Odom, his wife. (Testimony of J. Odom, Petitioner's Exhibits 5-6, Respondents' Exhibit 1)

   
   

2. Rowell Canal is a man-made canal which is designated as Class III waters of the State, and connects lakes Rowell and Sampson, also Class III waters of the State. Lakes Sampson and Rowell are natural lakes that are owned by more than one person. Each lake is larger than ten acres with an average depth of more than two feet existing throughout the year, and neither becomes dry each year. (Testimony of Scott, Farmer, Petitioner's Exhibit 1)

   
   

3. Respondents' property lies immediately west of a railroad right-of-way, and a railroad ditch lies parallel to the property next to a railroad trestle. The ditch was approximately 45 feet wide at Rowell Canal and some 215 feet long at the time Respondents acquired the property. (Testimony of Scott, Farmer)

   
   

4. At some undisclosed date in 1981, Respondent J. Odom widened and deepened the west side of the ditch with a backhoe in order to create a canal which would enable him to launch boats at the Rowell Canal. The dirt removed from the ditch was piled along the side of the newly created canal. When finished, the canal was some 213 feet long, 20 to 30 feet wide, with depths ranging from 2 to 7 feet. At the present time, a natural earthen plug remains between the excavated canal and the Rowell Canal. During the rainy season, water overflows the plug and any waters from the Odom Canal would interchange to some degree with those of Rowell Canal. (Testimony of Scott, Farmer, Barber, Petitioner's Composite Exhibit 2, Respondents' Composite Exhibit 2)

   
   

5. Respondent Odom did not apply for a permit to conduct the dredging and filling activities on his property. After Petitioner became aware of the situation in September, 1981, two members of the enforcement section of Petitioner's St. Johns River Subdistrict visited the site and determined that the Department had enforcement jurisdiction due to the fact that the dominant vegetation for approximately the first hundred feet of Respondents' canal from Rowell Canal to the north was a band of cypress trees (Taxodium Sp.). Such a wetland species serves as a guide to determining the landward extent of waters of the State, pursuant to Rules 17-4.02(17) and 17-4.28, Florida Administrative Code. There is also a large number of pine trees on the property. Thereafter, by letter of November 30, 1981, Petitioner's St. Johns River Subdistrict Manager sent a letter to Respondent Hardy placing him on notice concerning unauthorized dredging and filling activities. (Testimony of Scott, Farmer, Petitioner's Exhibits 3-4, Respondents' Exhibit 2)

   
   

6. By warranty deed, dated July 26, 1982, Respondent Hardy conveyed his interest in the property to J. D. Odom, Jr. and Vernie Phillips Odom. (Testimony of Farmer, Petitioner's Exhibit 7)

   
   

7. On August 10, 1982, DER personnel took dissolved oxygen readings of the dredged canal. Analysis of the water samples reflected depressed dissolved oxygen levels throughout the canal in violation of water quality standards for Class III waters. (Testimony of Farmer, Petitioner's Exhibit 9)

   
   

8. A dead-end canal reasonably can be expected to cause pollution due to the fact that organic matter decays on the bottom and becomes a nutrient trap, thus depressing the dissolved oxygen in the water. During the inspection by DER personnel, gas bubbles were observed in the canal, thus indicating the presence

   of hydrogen sulphate, which is indicative of anaerobic conditions. The presence of fish in the canal at the present time indicates there is enough dissolved oxygen to sustain life, however. (Testimony of Scott, Farmer, Petitioner's Exhibit 9)

   
   

9. Until a few years ago, Sampson Lake had not been developed. However, at the present time many canals have been built and Petitioner has issued twelve notices of violations in the area. Canals such as that of Respondents' can be expected to have an adverse cumulative impact on the waters of Rowell Canal and Sampson Lake due to the entry of water containing excessive nutrients. (Testimony of Barber)

   
   

10. Respondent Odom Intended to remove the earthen plug at the end of his canal in order to gain access to Rowell Canal from his proposed cement boat ramp to provide access to Sampson Lake. About twelve to fifteen years ago, a dam was built on Sampson Lake to control the water level. Prior to construction of the dam, a road existed around the lake which could be driven upon approximately 50 percent of the time during dry season. At the present time, Respondent can transport a boat through his property to Rowell Canal with difficulty because of the existing trees. Prior to the dredge and fill activity of Respondent, a boat could be moved through the property to Rowell Canal, generally in the area where the present dredged canal is located. (Testimony of Respondent Odom)

    
    

11. Petitioner expended $132.34 in costs of investigating Respondents' dredging and filling activities. (Testimony of Barber, Petitioner's Exhibit 10)

    
    

    CONCLUSIONS OF LAW

    
    

12. Petitioner seeks to take enforcement action against the Respondents pursuant to Section 403.161(1), Florida Statutes, which provides pertinently as follows:

    
    

    403.161 Prohibitions, violations, penalty, intent.--

    1. It shall be a violation of this chapter, and it shall be, prohibited:

       1. to cause except as otherwise provided in this chapter, so as to harm plant, or aquatic life or property.

       2. to fail to obtain any permit required this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit or certification

    adopted or issued by' the department pursuant to its lawful authority.

    
    

13. Rule 17-4.28, Florida Administrative Code, Provides that 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 specified categories of State waters, including natural lakes such as Lake Sampson, require a departmental permit prior to being undertaken. The rule further provides that included within the boundaries of such water bodies are areas customarily submerged and which exchange waters with the protected water body in question within its landward extent. The landward extent of State waters is defined in Rule 17-4.02(17) F.A.C., based on vegetation indices. That rule provides that the landward extent of waters of the State is, pursuant to Section 403.817, F.S., that portion of a surface water body indicated by the presence of certain

    dominant species, including pond cypress (Taxodium Ascendens). The evidence at the hearing established that that species is dominant in the area constituting the first hundred feet of Respondents' canal from Rowell Canal. It is therefore apparent that Petitioner has jurisdiction over the area in question.

    Respondents' failure to obtain a permit as required under Rule 17-4.28 therefore provides a basis for enforcement action. Respondents have not applied for or obtained an appropriate permit under the rule authorizing such activities. This being so, it is unnecessary to determine whether or not the presence of the earthen plug at the Rowell Canal end of Respondents' canal prevents a connection to Sampson Lake, or whether pollution has actually occurred. It is sufficient that, pursuant to the rule which implements Section 403.087 (1), Florida Statutes, it has been shown that the stationary installation created by the Respondents reasonably may be expected to be a source of pollution.

    
    

14. Pursuant to Section 403.141(1), Florida Statutes, Respondents are liable for payment to the Petitioner of $132.34 as its reasonable investigative costs.

    
    

15. In view of the foregoing, Petitioner can require that Respondents take the necessary corrective actions spelled out in Paragraph 20 of its Notice of Violation and Orders for Corrective Action. However, it is also concluded that prior to requiring corrective action, Respondents should be provided an opportunity to apply for an appropriate "after-the- fact" permit in order to demonstrate, if possible, that completion of the project, including removal of the earthen plug at the end of their canal, would provide sufficient flushing and interchange of waters to enable them to provide the reasonable assurances required under Rule 17-4.28(3), F.A.C., that the effects of the activity will not result in water quality violations.

RECOMMENDATION

That Petitioner issue a final order requiring Respondents to take corrective action with regard to their dredge and fill activities as specified in the Notice of Violation and Orders for Corrective Action, and to pay departmental investigative costs, but withhold the effective date thereof to provide Respondents a period of thirty days to make application for an "after- the-fact" permit pursuant to Rule 17-4.28, F.A.C. If they fail to make such application within the required period, the final order should then become effective. If application is made, the effect of the final order should be staved until conclusion of proceedings on the application.

DONE and ENTERED this 7th day of September, 1982, in Tallahassee, Florida.

THOMAS C. OLDHAM

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 7th day of September, 1982.

COPIES FURNISHED:

Cynthia K. Christen, Esquire Assistant General Counsel

and

Michael Tammaro, Certified Legal Intern

DePartment of Environmental Regulation

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

Dudley P. Hardy, Esquire Post Office Drawer 1030 Starke, Florida 32091

J. D. Odom, Jr. and

Vernie Phillips Odom, his wife Post Office Box 517

Starke, Florida 32091

Victoria Tschinkel, Secretary Department of Environmental

Regulation

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

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Petitioner,

vs. CASE NO. 82-908

DUDLEY P. HARDY, J.D. ODOM, JR., and VERNIE PHILLIPS ODOM,

Respondents.

/

FINAL ORDER

On September 7, 1982, the Division of Administrative Hearings' hearing officer in the above-styled case submitted his Recommended Order to the Department of Environmental Regulation ("Department"). A copy of the Recommended Order is attached as Exhibit "A" Pursuant to Section 120.57(1)(b)8., Florida Statutes and Florida Administrative Code Rule 17-1.68(1), the parties were allowed ten (10) days in which to file written exceptions to the Recommended Order. Counsel for the Department filed exceptions on September 17, 1982. The Recommended Order thereafter came before me, as head of the Department, for final agency action.

RULINGS ON EXCEPTIONS

In her written exceptions, counsel for the Department requests that I reject the hearing officer's conclusion of law that the Respondents should be allowed to apply for an after-the-fact permit prior to the Notice of Violation becoming effective and that I make several additional conclusions of law.

The hearing officer's recommendation that the Respondents be allowed to seek an after-the-fact permit is neither supported by findings of fact in the Recommended Order nor based on any citation to applicable law. In fact, the hearing officer specifically concludes elsewhere in his order that the Respondents' failure to obtain a permit prior to undertaking activities within the landward extent of waters of the state was a violation of Department rules and statutes and that the Department could require the Respondent to take the corrective actions spelled out in the Notice of Violation.

Neither Chapter 403, Florida Statutes, nor the rules of the Department require that a violator be allowed to seek an after-the-fact permit prior to issuance of an enforcement order. There are, however, other mechanisms available to a party who wishes to resolve with the Department alleged violations (see Fla. Adm. Code Rule 17-1.53 Informal Conference; and Fla. Adm. Code Rule 17-1.58(3) Consent Order).

I must therefore reject the hearing officer's conclusion that the effective date of this order should be delayed to allow Respondents the opportunity to file an after-the-fact permit application.

Counsel for the Department also requests that I make three additional conclusions of law. First, although the hearing officer concluded that the Department did have jurisdiction, he based that only on the dominance of vegetation on the Department's submerged species list (Fla. Adm. Code Rule 17- 4.02(17)). As Department counsel correctly points out, the hearing officer's finding of fact that there is an exchange of water between the Odom and Rowell canals supports jurisdiction on a second basis. Thus, I Specifically conclude that the Department has jurisdiction over Respondents' activities in the Odom canal because it is directly connected to waters of the state. (Fla. Adm. Code Rule 17-4.28(2)).

I must also agree that the finding that violations of the Department's standard for dissolved oxygen were occurring in the Odom canal Supports a conclusion that the canal is a Source of pollution.

Finally, it is unnecessary for me to make any additional conclusion of law related to the after-the-fact permit application since I have previously rejected the hearing officer's conclusion on that point.

Counsel for the Department also requests that a "clarification" be made to Finding of Fact No. 8 by changing "hydrogen sulfate" to hydrogen sulfide." It is not clear from the context that this is simply a typographical error.

Therefore, since no transcript has been provided for my review, I am without authority to change the hearing officer's findings of fact. Booker Creek Preservation Inc. v. Department of Environmental Regulation, 7 F.L.W. 1077 (May 21, 1982)

ORDER

Accordingly, having considered the Recommended Order and record in this case, it is hereby

ORDERED that:

1. The hearing officer's findings of fact are adopted in toto.

   
   

2. Except as specifically rejected above, the hearing officer' s conclusions of law are adopted with the following additional conclusions requested by the Department.

   
   

   1. It is concluded that the Department has jurisdiction over the Respondents' canal pursuant to Florida Administrative Code Rule 17-4.28(2) because it is directly connected to waters of the state.

      
      

   2. It is concluded that the existence of depressed levels of dissolved oxygen in Respondents' canal in violation of Florida Administrative Code Rule 17-3.121(14) constitutes pollution in violation of Section 403.161, Florida Statutes.

      
      

3. The Orders for Corrective Action contained in the Notice of Violation (a copy of which is attached as Exhibit "B") are hereby adopted as part of this Final Order. Accordingly, within 90 days from the effective date of this Final Order, Respondents shall take the following corrective actions:

   
   

   1. All dredged areas within the landward extent of Sampson Lake shall be filled to the natural elevations that existed prior to excavation;

      
      

   2. All fill around the dredged area within the landward extent of Sampson Lake shall be removed to the natural elevation that existed prior to filling; *

* NOTE: The remaining pages of this Agency Final Order were not filed with the Division and are therefore not available in this ACCESS document. 10/17/82 has been used in the ACCESS index as the approximate FO issue date.

Docket for Case No: 82-000908

Orders for Case No: 82-000908