STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CENTRAL FLORIDA WETLANDS SOCIETY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0104

)

DEPARTMENT OF ENVIRONMENTAL )

REGULATION, and JAMES and )

PATRICIA GRATZER, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Mary Clark, held a formal hearing in the above- styled case on May 7, 1992, in Orlando, Florida.

APPEARANCES

For Petitioner, Central Florida

Wetlands Society: Michael W. Mingea, President

Post Office Box 2826 Orlando, Florida 32802

For Respondent, James and Patricia

Gratzer: Rex D. Ware, Esquire

Huey, Guilday, Kuersteiner & Tucker, P.A.

Highpoint Center, Suite 900

106 East College Avenue Post Office Box 1794 Tallahassee, Florida 32302

For Respondent, Department of Environmental

Regulation: Douglas H. MacLaughlin, Esquire

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The

ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.

PRELIMINARY STATEMENT

On or about October 8, 1991, DER and the Gratzers entered into a Consent Order, OGC File Number 91-1290, to resolve an alleged dredge and fill violation in Winter Springs, Florida. On or about October 21, 1991, the Central Florida Wetlands Society (Society or CFWS) filed a Petition for Formal Administrative Hearing challenging that Consent Order. After the matter was referred to the Division of Administrative Hearings, formal hearing was set for May 7, 1992.

At the commencement of the proceeding and at the direction of the Hearing Officer, Michael Mingea, as President of CFWS established that he was authorized by the Society's Board of Directors to represent that party in this proceeding. He was also qualified, for this proceeding only, as the Society's "qualified representative" pursuant to Rule 22I-6.008, F.A.C. A re-reading of Magnolia Nursing and Convalescent Center v. Department of Health and Rehabilitative Services, 428 So.2d 256 (Fla. 1st DCA 1982), pet. for rev. den., 449 So.2d 265 (Fla. 1984), requires the conclusion that this latter step was unnecessary.

Respondent, Department of Environmental Regulation presented the testimony of four expert witnesses and had five exhibits admitted into evidence, in addition to three joint exhibits. Respondents, the Gratzers, presented the testimony of three witnesses, including an expert hydrologist, and had four exhibits admitted into evidence. Petitioner, Central Florida Wetlands Society called seven witnesses, including two experts, and had 12 exhibits admitted into evidence. A thirteenth exhibit, identified for the record as Society exhibit #3, was rejected for lack of authentication.

The Gratzers orally moved on several occasions during the hearing to dismiss the proceeding. Said motions were denied during the hearing. The Gratzers have filed a separate Renewed Motion to Dismiss and Motion for Attorney's Fees and Costs which are addressed herein.

The transcript of the hearing was filed on June 22, 1992. Proposed Findings of Fact and Conclusions of Law were timely filed by all parties on or before July 2, 1992. The Respondents' proposed findings of fact are substantially adopted, and Petitioner's proposed findings are addressed in the attached Appendix.

FINDINGS OF FACT

1. In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at

   216 Stoner Road in Winter Springs, Florida.

   
   

   At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel.

   
   

2. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots.

   
   

   In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services.

3. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad.

   
   

   At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida.

   
   

4. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER.

   
   

   As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns.

   
   

5. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered.

   
   

   Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop.

   
   

6. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line.

   
   

7. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat.

   
   

   Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions.

   
   

8. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st.

   
   

9. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case.

   The Gratzers immediately ceased further construction on the property and sought further negotiations with DER.

   
   

10. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop.

    
    

    Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's.

    
    

11. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands.

    
    

12. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio.

    
    

13. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development.

    
    

    In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site.

    
    

    Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality.

    
    

    DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the

    $1,400.00 fine and secured the conservation easement.

    
    

    Fill Road Issue

    
    

14. A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property.

    
    

    Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge

    of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present.

    
    

15. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984.

    
    

    If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted.

    
    

    DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a

    10 year backstop cutting off DER wetland jurisdiction to the west.

    
    

16. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989.

    
    

17. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989.

    
    

18. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located.

    
    

    The Society and its Concerns

    
    

19. The Society's corporate status was not controverted.

    
    

20. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources.

    
    

    Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society.

21. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement.

    
    

22. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands.

    
    

    This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS.

    
    

    DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER.

    
    

23. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property.

    
    

    The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Section 120.57(1), F.S.

    
    

25. The corporate status of CFWS entitles it to intervention and standing pursuant to Section 403.412(5), F.S. Cape Cave Corp. v. DER, 498 So.2d 1309 (Fla. 1st DCA 1986).

    
    

26. Contrary to the facts in Greene v. State Department of Natural Resources, 414 So.2d 251 (Fla. 1st DCA 1982), cited in Gratzers' renewed motion to dismiss, CFWS is not initiating a Section 120.57 proceeding. This consent order proceeding substitutes for a regular permit application proceeding that would have been pending, had the Gratzers sought a permit. In this instance the agency properly required notice of proposed agency action and provided a point of entry in the text of the consent order.

    
    

27. Notwithstanding its representative's admission at hearing that he had never been on the Gratzer property, CFWS' verified petition, signed by Michael Mingea, sufficiently alleged matters within the knowledge of Mingea and other members of the organization.

    
    

28. Gratzers' motion to dismiss for lack of standing should be denied.

    
    

29. The standard of review for a challenge to a consent order of this nature is whether DER reasonably exercised its enforcement discretion. Factors to be considered regarding the reasonableness of an enforcement action include the extent to which the project would be permittable, the nature of the violation, DER enforcement priorities, and the harm that might result from attempts at restoration. The consent order must stand unless CFWS can show that DER has abused its enforcement discretion. See, Sarasota County vs. Falconer and DER, 9 FALR 1822 (1987). See also, West Coast Regional Water Supply

    Authority vs. Central Florida Phosphates, Inc. and DER, 11 FALR 1917, 1933 (1988); Abbanat vs. Reynolds and DER, 9 FALR 1898 (1987); Williams vs. Moeller

    and DER, 8 FALR 5537 (1981).

    
    

30. The facts as found herein support a conclusion that this standard of reasonableness has been met. The consent order is the type of agreement that would be entered into for a permit for this type of project. The nature of the violation was low to medium in enforcement priority for DER enforcement managers, and this resolution of the violation was consistent with other enforcement actions taken by DER. With the mitigation as proposed, the project is permittable.

    
    

31. DER properly determined the likely extent of jurisdictional wetland impacted by this project. Section 403.8171(5), F.S., provides that in no case shall the landward extent of state waters extend above the elevation of the 1- in-10-year recurring flood event (or the area of land with standing or flowing water for more than 30 consecutive days per year calculated on an average annual basis, whichever is more landward). Two professional engineers with expertise in hydrology estimated where this 10-year backstop line would be. The more conservative (more landward) line was used as a basis for determination of extent of wetlands. There was no evidence that the Gratzer property had standing or flowing water for more than 30 consecutive days per year landward of the DER estimated 10-year backstop. Nor was there any evidence that the applicable waters of the state in this case are saline or brackish or are a river whose flow is primarily provided by springs, so as to make the 10 year backstop line inapplicable.

    
    

    Attorneys' Fees and Costs

    
    

32. Respondents, the Gratzers, have moved for attorneys' fees and costs pursuant to Sections 120.57(1)(b)5., F.S. and 120.59(6), F.S.

    
    

33. That motion is DENIED, as to Section 120.57(b)(1); and denial is RECOMMENDED, as to Section 120.59(6), F.S. The CFWS is, at this point, a "nonprevailing adverse party", as provided in Section 120.59(6)(e), F.S., as it has failed to have substantially changed the outcome of the proposed agency action which is the subject of this proceeding.

1. The record, however, does not support a finding that this Petitioner participated in the proceeding for an "improper purpose", as that term is defined in either Section 120.57(1)(b)5, or Section 120.59(6)(e), F.S.

   
   

2. Unlike the Petitioners in Burke v. Harbor Estates Assoc. and DER, 591 So.2d 1034 (Fla. 1st DCA 1991) and Dolphin Plus v. Residents of Key Largo Ocean Shores and DER, 17 FLW 1331 (Fla. 3rd DCA 1992) cited by the Gratzers, CFWS made known its concerns at the earliest possible opportunity and did not unduly delay the process. It sought expert consultants and presented their testimony at hearing. Although it did not prevail, its theories were cogent.

   
   

3. CFWS had a "...reasonably clear legal justification" for filing its petition so as to defeat a request for sanctions pursuant to Section 120.57(1)(b)5, F.S. Mercedes Lighting and Electrical Supply, Inc. v. State Dept. of General Services, 560 So.2d 272, 279 (Fla. 1st DCA 1990).

   
   

4. Section 120.59(6)(c) creates a rebuttable presumption of improper purpose if it is found that the nonprevailing party has already been unsuccessful in two prior proceedings involving the same project, and the same

position in the instant proceeding could have been asserted in the prior proceedings. This is not the circumstance here, and the presumption does not apply.

RECOMMENDATION

Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action.

RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of July, 1992.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104

The following constitute specific rulings on the findings of fact proposed by Petitioners:

1.-3. Adopted in preliminary statement and paragraph 19.

4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary.

7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary.

13. Adopted in part in paragraph 20, otherwise rejected as unnecessary.

14.-16. Rejected as unnecessary.

17.-18. Rejected as contrary to the evidence.

19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary.

23.-25. Rejected as contrary to the evidence.

26. Rejected as unnecessary.

27.-30. Rejected as contrary to the evidence.

31.-32. Rejected as summary of testimony or argument, rather than findings of fact.

33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary.

37. Rejected as contrary to the evidence.

[Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact].

COPIES FURNISHED:

Michael W. Mingea, President Central Florida Wetlands Society

P.O. Box 2826 Orlando, FL 32802

Rex D. Ware, Esquire

P.O. Box 1794 Tallahassee, FL 32302

Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg.

2600 Blair Stone Road Tallahassee, FL 32399-2400

Carol Browner, Secretary

DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400

Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-000104

Orders for Case No: 92-000104