STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6200

) CHARLES W. COXWELL, SR., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing in the above styled case was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings, on February 23, 1993, in Niceville, Florida.

APPEARANCES

For Petitioner: Richard L. Windsor, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 For Respondent: No appearance.

STATEMENT OF THE ISSUES

Did the Respondent, Charles W. Coxwell, Sr., excavate in statutorily- protected waters of the State of Florida in March of 1992, as alleged in the Department's Notice of Violation (NOV).

PRELIMINARY STATEMENT

On June 25, 1992, Petitioner, Department of Environmental Regulation (Department), issued a Notice of Violation (NOV) finding that Respondent, Charles W. Coxwell, Sr., had excavated in statutorily-protected waters of the State of Florida in March of 1992. The NOV specified that the excavation had been done without the permit required by Rule 17-312.060, Florida Administrative Code, and Section 403.913, Florida Statutes. It ordered Respondent to restore the wetland area to its preexisting contours and elevations and to revegetate the site with indigenous wetland plant species. The NOV also ordered Respondent to pay Department costs and expenses in the amount of $404.51.

Respondent filed a petition for an administrative hearing, as provided for by Chapter 120.57, Florida Statutes, which petition included numerous constitutional objections to the Department's jurisdiction, to Chapter 403, Florida Statutes, and argued that administrative proceedings amounted to an abusive and oppressive denial of due process. Respondent's petition admitted ownership of the site and admitted the relevant findings of the NOV, except for

the determination that the excavated site was wetlands or otherwise subject to the Department's regulatory authority.

At the hearing, Department employee, Eric Buckelew, testified concerning Respondent's unauthorized excavation was within statutorily-protected waters of the State. Mr. Buckelew testified that he had personally discussed the wetlands protections and permitting requirements with Respondent, on the site, on several occasions before the 1992 violation. Mr. Buckelew described the flowing spring system on Respondent's site and the flowing stream which ran through the swampy wetland area there. Mr. Buckelew testified to his personal observation of the jurisdictional wetland plant species which dominated the wetland area.

Department employee, Charles Harp, testified that he had gone to the site in 1990 at Respondent's request and had determined that the flowing springs and swampy area were statutorily-protected waters of the State. The Department introduced a writing with a diagram which had been submitted by Respondent in an earlier unsuccessful permit application. Respondent, himself, had labeled and depicted the swampy area as wetland. Department witnesses offered proof of the appropriateness of the orders for corrective action and proof of the $404.51 of Department costs and expenses.

Notice of this proceeding was given to the Respondent. The Respondent filed various pleadings in the case and participated in the case to the extent that he sought to remove this case, unsuccessfully, to circuit court. The Respondent, Mr. Coxwell, did not attend the hearing or file posthearing pleadings. The Petitioner submitted proposed findings which were read considered and adopted.

FINDINGS OF FACT

1. In back of Respondent's house, on property owned by the Respondent, is a spring system where underground streams of water flow to the surface and out into an area formerly dominated by wetland plant species, to include: Fetterbush (Lyonia Iucida), Sweet Gallberry (Ilex Corjacea), and Sweet Bay Magnolia (Magnolia Virginiana).

The stream continues over property owned by other persons, ultimately flowing into Grassy Lake which connects to Choctawhatchee Bay. All of this water is statutorily protected and within the regulatory jurisdiction created and assigned to the Department by the Legislature.

1. In 1990, Respondent applied for a permit from the Department to construct a small impoundment where the springs flow out, on his property (and before the waters flow onto the property of other downstream landowners).

   
   

2. The application form for the permit sought by Respondent in 1990 required him to list the adjoining landowner, who was, in fact, a Mr. Finch. Mr. Finch expressed his concern that an improperly built impoundment might be unsafe.

   
   

3. The Department made a number of requests to Respondent for specific design specifications and drawings of the impoundment and its outfall structure. Respondent had discussions with Department staff in which he acknowledged that a permit was required; however, he declined to respond satisfactorily to the Department's "incompleteness requests" for additional information. Ultimately, the permit application was denied on May 16, 1991.

4. Respondent did not pursue administrative remedies in the matter of the permit denial.

   
   

5. In approximately March of 1992, Respondent caused 0.3 acres of the statutorily-protected waters and wetlands where the springs emerge behind his house to be excavated without the permit required by Florida law.

   
   

6. Respondent knew that permits for such excavation were required by Florida law.

   
   

7. The NOV assessed $404.51 (four hundred and four dollars and fifty-one cents) in enforcement costs.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, pursuant to Section 120.57(1), Florida Statutes.

   
   

9. Pursuant to Chapter 403, Florida Statutes, the Department implements and enforces protection of the waters of the State from various aspects of pollution.

   
   

10. Section 403.031, Florida Statutes, provides a definition of "waters" which is used in construing the environmental laws and regulations:

    
    

    (13) "Waters" include, but are not limited to, rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water. Underground waters include, but are

    not limited to, all underground water passing through pores or rock or soils or flowing through in channels whether manmade or natural . . .

    
    

11. Section 403.913(1), Florida Statutes, provides:

    
    

    No person shall dredge or fill in, on, or over surface waters without a permit from the department, unless exempted by statute or department rule.

    
    

12. "Dredging" is defined in Section 403.911, Florida Statutes, as:

    
    

    (2) . . . excavation, by any means, in waters. It also means the excavation, or creation of a water body which is, or is to be, connected to waters, directly or via an excavated water body or series of excavated water bodies.

    
    

13. Many people apply for and receive permits from the Department for projects affecting waters of the State and which involve dredging or filling in

    the waters, or both. An application and a fee are required. The applications receive what is called a "permitting review" by Department employees with training and experience.

    
    

14. The law recognizes and protects wildlife habitat and the beneficial aspects of wetlands in the treatment or filtering of pollution from upland sources and runoff.

    
    

15. The law prohibits dredging and filling in waters of the State without a permit. These violations fall generally into two groups: people who do not realize that what they are doing requires a permit, and people who know that their intended activity requires a permit and just ignore that requirement.

    
    

16. Respondent planned and executed the actions which are the subject of the NOV knowing full well the requirements of the law and its applicability to the flowing spring system and adjacent wetland area.

    
    

17. Respondent intentionally violated the environmental laws of Florida which protect waters of the State.

    
    

18. The Orders for Corrective Action are an appropriate way to redress Respondent's environmental violations and to restore the affected wetlands and waters of the State.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, the findings of the Department's Notice of Violation were proven by substantial and competent evidence, and it is

RECOMMENDED that the Orders for Corrective Action set out in the Notice of Violation and restated below be made final:

1. Respondent shall immediately cease and desist from either dredging and/or filling within waters of the State as defined in Florida Administrative Code Rules 17-4.022 and 17-312 prior to receiving the necessary permit form the Department or notice that the proposed activity is exempt from the permitting requirements of the Department.

   
   

2. Within 30 days of the effective date of the Final order, Respondent shall reimburse the Department for expenses incurred in investigating the violation in the sum of $404.51. Payment shall be made by certified check, cashiers' check or money order submitted to the Department's Northwest District Office, 160 Governmental Center, Pensacola, Florida 32501-5794. See Exhibit 3 Attached.

   
   

3. Within 60 days of the effective date of the Final Order, Respondent shall restore the excavated area as identified on the drawings attached hereto as Exhibit 2. The excavated material shall be regraded so as to re-establish pre-existing contours and elevations as indicated by the adjacent undisturbed areas. Respondent shall revegetate the restored site as identified in paragraph d below. Respondent shall stabilize the site as needed to retain sediment on- site during restoration. Respondent shall utilize turbidity control devices throughout the restoration including the use of staked filter cloths in the vegetated wetlands and floating screens where needed in the open waters.

4. Within 15 days of the effective date of the Final Order, Respondent shall submit a planting plan and schedule to the Department for approval prior to revegetating the regraded site as identified in Exhibit 2. No work to revegetate the site shall be undertaken until the plan is approved by the Department. Respondent's plan shall address and institute measures necessary to insure successful revegetation. The restoration area shall be planted with indigenous tree species of no less than 2 feet in height, such as Fetterbush (Lyonia Iucida), Sweet Gallberry (Ilex Corjacea), and Sweet Bay Magnolia (Magnolia Virginiana). The trees shall be planted on ten (10) foot centers. Respondent shall implement the restoration plan within 10 days of Department approval.

   
   

5. Upon completion of the restoration work required by paragraph c above, Respondent shall maintain the restored area as follows: the revegetation effort shall be considered successful if, after one year or one growing season - whichever is less, 80% of the revegetation effort yield values of less than 80%, then the unsuccessful areas shall be replanted to meet, at a minimum, the required percentage.

DONE AND ENTERED this 29th day of March, 1993, in Tallahassee, Florida.

STEPHEN F. DEAN

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 29th day of March, 1993.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Daniel H. Thompson, Esquire Acting General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, FL 32399-2400

Richard L. Windsor, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Charles W. Coxwell, Sr. 1133 White Point Road Niceville, FL 32578

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 92-006200

Orders for Case No: 92-006200