STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 86-4761

)

SQUARE TWO, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This case was heard pursuant to notice on January 8, 1987 in Tallahassee, Florida by Stephen F. Dean, assigned hearing officer of the Division of Administrative Hearings. This case was presented upon a Notice of Violation filed by the Petitioner which directed Respondent to take corrective action by removing fill from waters of the state and stabilizing the site in question to control erosion. At hearing the Respondent did not deny that it was responsible for placement of the fill aterial, but controverted whether the fill was placed in waters of the state. Respondent also raised as affirmative defenses that it had acted pursuant to a county permit and that the Petitioner was estopped from enforcing its rights under state law. Only the Petitioner filed Proposed Findings of Fact which were read, considered and adopted.

APPEARANCES

For Petitioner: Richard L. Windsor,

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent: Ben H. Ervin, Esquire

ERVIN & REICHMAN

Post Office Box 41 Monticello, Florida 32344

ISSUE

Two issues, one of fact and one of law, are raised in this case as follows: Was the fill material placed in the waters of the state?

Is the Petitioner estopped to assert its regulatory powers against the Respondent by the issuance of a permit by the county in which the site is located?

FINDINGS OF FACT

1. In early 1986 the Respondent caused approximately 663 cubic yards of fill material (See Petitioner's Exhibit 4) to be placed on the property at Lake Jackson containing approximately .73 acres (hereafter referred to as the site) described briefly as Section 32, Township 2 North, Range 1 West, Leon County, Florida.

   
   

2. Respondent did not deny placing or causing the fill to be placed on the site. Respondent asserted that the point at which the fill was placed was not "waters of the state."

   
   

3. In 1980, a predecessor in title to .47 acres of the .73 acres owned by Respondent applied for and received a permit from Leon County for filling on the

   .47 acres of the present site. This permit provided in part "Additional permits may be required by other regulatory agencies for the proposed projects. Any other required permits should be secured prior to initiation of any excavation or fill activities on these projects."

   
   

4. Neither Respondent nor any of its predecessors in interest made application for or received a permit from the Florida Department of Environmental Regulation (DER) to place fill material in waters of the state on the site.

   
   

5. When Respondent placed or caused the fill material to be placed on the site in 1986, the Respondent did not implement any of the special conditions or directives contained in the 1980 permit issued by the county. In February 1986, two months after the fill material was placed on the site, the county notified the Respondent by mail to remove the fill because it violated Leon County Ordinances and did not have the required DER dredge and fill permit. See Petitioner's Exhibit 9.

   
   

6. Lake Jackson is located in Leon County, Florida. Its waters are waters of the state. The water level of Lake Jackson rises and falls, and would have submerged periodically the original elevation of the site at the point at which the fill was placed. See photographs of area taken in 1980, 1986, and 1987.

   
   

7. On March, 1980 David Bickner visited the site. Bickner, a DER Field Inspector, observed and photographed a concrete and stone wall which had been built on the site roughly parallel to U.S. Highway 27. During the period of Bickner's inspection, the water level of Lake Jackson was lower than the elevation of the site; however, willows (Salix spp.) were growing landward of the wall. See Petitioner's Exhibit 8.

   
   

8. In February and March of 1986 Roger Menendez visited the site. Menendez, a DER Field Inspector, observed and photographed the wall described above and the fill which had been placed landward of the wall, between the wall and U.S. Highway 27, and in the area north of the line of hay bales. Juncus Effusus, Nymphaea and willow, plant species identified by rule as submerged wetland species, were observed and photographed growing in the filled area and on the area adjacent to it. See Photographs, Petitioner's Exhibit A and B.

   
   

9. In late 1986 and the week before the hearing, Todd Campbell visited the site. Campbell, a DER employee with degrees in zoology and ecology, observed the plant species growing in the undisturbed area adjacent to the filled area. All the plants (90-100 percent of the ground cover) were submerged species. Willows were observed by Campbell growing on the fill itself. Campbell made

   test borings on the fill site in many locations. The borings revealed that the soil beneath the fill was hydric soil typical of the soil immediately adjacent to the filled area. See Petitioner's Exhibits 6 and 7. It was Campbell's opinion based upon his observations of plant species and test borings of soil type that similar vegetation had grown at the original elevation of the site prior to the introduction of the fill.

   
   

10. The 88 foot contour line has been established as the ordinary high water line for Lake Jackson based upon the agency's prior experience. All of the area filled was below the 88 foot contour line. See Petitioner's Exhibit 1.

    
    

11. The site upon which the fill was placed is waters of the state based upon vegetation observed and photographed by Bickner, Menendez and Campbell. This finding is consistent with the fill being placed below the 88 foot contour line.

    
    

    CONCLUSIONS OF LAW

    
    

12. This Order is entered pursuant to Chapter 120, Florida Statutes. The Department of Environmental Regulation has broad powers "to order the prevention, abatement, or control of the conditions creating `unlawful pollution' ... or other appropriate corrective action."

    
    

13. The vegetative species growing on and adjacent to the site filled by Respondents establish the agency's jurisdiction to regulate dredge and fill activities in the waters of the State.

    
    

14. Petitioner introduced credible and uncontroverted evidence that the site's dominant vegetation were submerged species and that the soils beneath the fill were hydric soils.

    
    

15. Using the statutory method (dominant vegetation) mandated by Sections 403.817-403.8171, Florida Statutes, the area in which the fill was placed is "waters of the State."

    
    

16. Respondent's counsel argued that the 88 foot contour line was not the ordinary high water line of Lake Jackson. While the contour line is not the method mandated by State law for determining the landward extent of waters of the State, evidence about the contour is supportive of the evidence of vegetation and soil types.

    
    

17. Respondent argued that the agency should be estopped because nearby owners of similar property have received permits, issued by county or state agencies, for excavation, fill and development. Respondent neither made application for nor received a permit from DER before placing fill in the wetlands. Estoppel does not apply.

    
    

18. Respondent argued that an ancient survey line called the "Randolph Meander Line" delimits the landward extend of waters of the State at Lake Jackson. While the meander line may have some bearing on ownership of the land, see Section 403.817(), Florida Statutes, the Florida Legislature has established by Statute that dominant vegetative species are the test for establishing the waters of the State.

    
    

19. Respondent argued that the county permit obtained in 1980 by a prior owner of the .47 acres of site operates to prevent the State agency from enforcing its regulations and ordering the removal of the fill placed on the

    site in 1986. However, the conditions of the county permit were not followed although the county permit specifically states:... "additional permits may be required by other regulatory agencies for the proposed projects ..." The county's issuance of a permit in no way estops the State from enforcing its rights. Respondent's failure to comply with the State's regulatory requirements would limit application of the estoppel doctrine even if DER had issued the permit.

    
    

20. Respondent's argument that the regulatory rule in 1980 listing the vegetative species necessary for dredge and fill enforcement was different from the list of jurisdictional species in 1986 when the (Petitioner) State agency commenced the statutory enforcement proceedings is without merit. The pre-1986 list included Juncus effusus, Nymphaea and willow. Under the standard which existed at the time the fill was placed on the site, the site was "waters of the State" and a permit was required for dredge or fill.

    
    

21. The Petitioner's evidence at the hearing established the violation of Sections 403.087(1) , 403.161(1)(b) and 403.913(1), Florida Statutes, and Rule 17-12.030, Florida Administrative Code, and established that the Orders for Corrective Action requiring removal of the unauthorized fill from the waters of the State are reasonable and appropriate pursuant to Section 403.141, Florida Statutes.

RECOMMENDATION

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

RECOMMENDED That the Notice of Violation and Orders for Corrective Action should be made final against the Respondent.

DONE and ORDERED this 30th day of March 1987, in Tallahassee, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of March, 1987.

COPIES FURNISHED:

Richard L. Windsor, Esquire Assistant General Counsel State of Florida, Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Ben H. Ervin, Esquire ERVIN & REICHMAN

Post Office Box 41

Monticello, Florida 32344 Dale

Twachtmann, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esquire General Counsel

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

CASE NO. 86-4761 RECOMMENDED ORDER ADDENDUM "A"

LEGAL DESCRIPTION

Commence at a concrete monument marking the Northeast corner of Section 5, Township 1 North, Range 1 West, Leon County, Florida, thence with the Easterly line of said Section run South 01 degrees 27 minutes 04 seconds East 587.15 feet, thence North 87 degrees 56 minutes 04 seconds West 6.24 feet to a point on the Southerly boundary of a 30 foot roadway thence with said Southerly Boundary run North 87 degrees 56 minutes 04 seconds West 1449.67 feet to a point of curve to the right on the Northeasterly right of way line of State Road No. 63 (U.S, No. 27), thence with said right of way line run with a radius of 11,519.20 feet, through a central angle of 03 degrees 00 minutes 46 seconds for an arc distance of 605.71 feet, thence North 42 degrees 36 minutes 52 seconds West 613.60 feet to the POINT OF BEGINNING, thence North 52 degrees 20 minutes 01 seconds East

66.06 feet to a point on the Randolph Meander Line of Lake Jackson, thence with said Meander Line run North 37 degrees 24 minutes 12 seconds West 149.48 feet, thence leaving said Meander Line run South 52 degrees 20 minutes 01 seconds West

82.29 feet to a point on the Northeasterly Right of Way of State Road No. 63 (U.S. No. 27), thence with said Northeasterly Right of Way run South 42 degrees

36 minutes 52 seconds East 150.00 feet to the POINT OF BEGINNING, containing

0.255 acres, more or less.

Commence at a concrete monument marking the Northeast corner of Section 5, Township 1 North, Range 1 West, Leon County, Florida, thence with the Easterly line of said Section, run South 01 degrees 27 minutes 04 seconds East 587.15 feet, thence North 87 degrees 56 minutes 04 seconds West 6.24 feet to a point on

the Southerly boundary of a 30 foot roadway, thence with said Southerly boundary, run North 87 degrees 56 minuets 04 second West 1449.67 feet to a point of curve to the right; to North easterly Right of Way of State Road No. 63 (U.S. No, 27), thence with said right of way run with a radius of 11,519.20 feet through a central angle of 03 degrees 00 minutes 46 seconds, for an arc distance of 605.71 feet, thence North 42 degrees 36 minutes 52 seconds West 763.60 feet to the POINT OF BEGINNING. From said POINT OF BEGINNING run thence North 52 degrees 20 minutes 01 seconds East 82.29 feet to a point on the Randolph Meander Line of Lake Jackson, thence with said Meander Line run North 36 degrees 24 minutes 12 seconds West 218.24 feet, thence leaving said Meander Line run South

52 degrees 20 minutes 01 seconds West 105.99 feet to a point on the Northeasterly Right of Way of State Road No. 63 (U.S. No. 27), thence with said Northeasterly Right of Way run South 42 degrees 36 minutes 52 seconds East

219.00 feet to the POINT OF BEGINNING, containing 0.47 acres, more or less.

Docket for Case No: 86-004761

Orders for Case No: 86-004761