STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3897

)

TOM AND LINDA MERTENS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on August 29, 1995, in Panama City, Florida.

APPEARANCES

For Petitioner: Michael C. Owens, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

For Respondent: Tom Mertens, pro se

Star Route Box 5B Ebro, Florida 32437

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Respondent, Tom Mertens, committed a dredge and fill violation within the jurisdiction of the Department by conducting dredging and filling activities in the landward extent of waters of the State, without an appropriate permit, and whether the amount of the Department's costs and expenses associated with determining and abating the pollution involved are reasonable.

PRELIMINARY STATEMENT

This cause was initiated by the serving of a Notice of Violation and Order for Corrective Action (NOV) by the above-referenced agency (Department) on the Respondents. The Respondents timely filed a Petition for Administrative Proceeding to contest that enforcement action.

In essence, the Department alleges that the Respondents improperly dredged and filled property within the landward extent of waters of the State, without the required the permit from the Department. It contends that the Department incurred reasonable, reimbursable costs and expenses in tracing and abating that source of pollution. In the petition, the Respondents denied the facts alleged in the NOV and denied causing the pollution and pollution source in question.

The cause came on for hearing as noticed, at which the Department presented the testimony of three witnesses and offered six exhibits, all of which were admitted into evidence. The Respondent, Tom Mertens, presented his own testimony and offered no other evidence. Linda Mertens did not participate.

The Department moved for official recognition of certain rules and statutes involved in this case, which was granted without objection, such that Rules 62- 301, 62-302, and 62-312, Florida Administrative Code, and Sections 403.031,

403.131, 403.141, and 403.161, Florida Statutes, were officially recognized.

Upon conclusion of the proceeding, the parties elected to order a transcript thereof and to submit proposed findings of fact and conclusions of law. Those proposed findings of fact are specifically ruled upon in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Department is an agency of the State of Florida charged with administering and enforcing the dredge and fill provisions contained in Chapter 403, Florida Statutes, and attendant rules contained in Title 62, Florida Administrative Code. The Respondent, Tom Mertens, is a citizen of the State of Florida, who owned a parcel of real property located in Section 1, Township 1 South, Range 17 West, latitude 30 degrees, 25 minutes, 50 seconds, longitude 85 degrees, 54 minutes, 30 second, in Washington County, Florida, at times pertinent hereto. Linda Mertens is named as a Respondent in this action, but no evidence concerning her involvement in the subject matter has been presented.

   
   

2. Based upon reports that it had received of certain construction or mechanical work taking place on the area in question, on the margin of the Choctawhatchee River, the Department identified the Respondent, Tom Mertens, as the owner of the property on which certain activities were allegedly occurring and arranged to meet with him to inspect the property. An inspection of the property revealed that dredging and filling activities had taken place. The inspection occurred on December 9, 1992.

   
   

3. The inspection revealed that fill material had been placed covering .36 acres, an area of the property approximately 390 feet x 25 feet ("fill road") and another area approximately 70 feet x 25 feet at the lowland end of the fill road. The fill road appeared to be newly installed based upon the appearance of the clay material used, the instability of the road bed and the lack of vegetative growth in an on the sides and adjacent to the road bed, coupled with the appearance of adjacent felled trees.

   
   

4. The clay material used for the fill road is not that normally found in a wetland area, such as the site in question. The property in question is in river-bottom land, bordering the Choctawhatchee River.

   
   

5. The Department informed the Respondent that the activities done on the property appeared to violate Chapter 403, Florida Statutes, and pertinent provisions of Title 17, Florida Administrative Code. It so informed the Respondent in a warning letter posted on December 29, 1992.

   
   

6. Dredging and filling activities in the landward extent of waters of the State require permits from the Department prior to commencing the activity. The Respondent did not have any permit for the dredging and filling activities observed to have occurred on the property. The Respondent had never applied for

   a permit for such activities. No permission of any sort had been obtained from the Department authorizing conduct of the dredge and fill activities observed on the property by Department personnel.

   
   

7. The Choctawhatchee River is a specifically-named water body of the State of Florida and is classed as an outstanding Florida water. Department employee, James Eric Buckelew, has been an environmental specialist with that agency for some 6-1/2 years. He works in the Division of Submerged Lands and Environmental Resource Permitting, formerly called the Division of Wetlands Management. That Division is in charge of dredge and fill permitting activities for the Northwest District of the Department. The jurisdiction of the Northwest District includes the property in question.

   
   

8. Mr. Buckelew routinely makes wetland determinations, including delineating the landward extent of State waters, reviewing dredge and fill applications, and insuring that State water quality standards are maintained throughout the regulatory processes within the scope of his duties. He has a Bachelor of Science degree in Environmental Resource Management and Planning and has completed all of the graduate course work for a Master's degree in Coastal Zone Management Biology. His academic courses included wetlands vegetation and ecology, plant taxonomy, botany, soil science, hydrology, geology, geography, hydrologic indicators, and training in the use of a dichotomous key. He has had additional training from the Department's Jurisdictional Evaluation Team, which provides Department employees with training on identification of vegetation, soil indicators, and hydrology, approximately every six months during his 6-1/2 years of tenure with the Department. The Department routinely relies upon his judgment in making determinations of wetland areas and delineations of the landward extent of State waters. Consequently, adequate proof being presented, Mr. Buckelew was accepted as an expert in making determinations of what areas lie within the landward extent of waters of the State and what areas are wetlands in terms of scientific application of the standards contained in the Department's organic rules, particularly the "vegetative index" to a particular site.

   
   

9. During the inspection of the property on December 29, 1992, Mr. Buckelew made a determination concerning whether the property impacted by the dredging and filling activities was within the Department's jurisdiction. He determined that it was within the landward extent of waters of the State, using both hydrological and vegetational indicators. The portions of the property impacted by the dredge and fill activities were dominated by jurisdictional vegetation, including black gum (Nyssa biflora); overcup oak (Quercus lyrata); sweet bay magnolia (Magnolia virginiana); cypress (Taxodium); water oak (Quercus nigra); sweet gum (Liquidambar styraciflua); american holly (Ilex opaca); and ironwood (Capinus caroliniana).

   
   

10. The portions of the property impacted by the Respondent's dredge and fill activities were in an area dominated by hydrologic indicators of Department jurisdiction, including staining of leaves, buttressing of tree trunk bases, the low elevation of the portion of the property involved, and its proximity to the Choctawhatchee River. The portions of the property impacted by the activities in question have been periodically inundated with water which covered the fill road. Consequently, Mr. Buckelew established that the portions of the property impacted by the dredge and fill activities, indeed, were within the landward extent of the waters of the State and thus within the Department's dredge and fill jurisdiction.

11. Mr. Buckelew walked the entire length of the connection between the areas impacted by the dredge and fill activities and the waters of the State in making this determination, tracing the vegetational and hydrologic connections from the waters of the State to the impacted areas. He did not use soil sampling or analysis in his determination of the landward extent of waters of the State because it was unnecessary in the formation of his opinion. Under the circumstances, employment of the vegetative index and its application to the site would have been sufficient alone.

    
    

12. The Department established that it incurred costs and expenses of

    $250.10 in tracing and abating this violation and pollution source. Mr. Buckelew, in establishing this expense and cost amount, also established that these were reasonable costs and expenses under the circumstances.

    
    

13. Removal of the fill material and re-grading of the impacted areas to their natural grade, as well as allowing them to revegetate with natural species that exist on site, would essentially correct the dredge and fill violations and the pollution problem they engender.

    
    

14. The Hearing Officer has considered the demeanor of the Respondent and the other witnesses, his prior sworn statement at deposition and his admissions made to Mr. Buckelew during the investigatory phase of this proceeding. Notwithstanding his testimony at hearing to the contrary, it is found that he placed the fill on the portions of the property at issue. It is, likewise, found that the Respondent or persons under his behest, direction, and control used various pieces of mechanical equipment to haul dirt to the fill sites and to perform the dredging and filling activities, including hauling of the fill to the site and its distribution on the property in the nature of that observed by the Department at the time of its inspection. It is found that the dredge site, or the portion of it referred to as the boat ramp, had straight, square-cut sides, which are inconsistent with that sloping area being caused by a flooding event, as maintained by the Respondent. The shape of the boat ramp was clearly consistent with dredging with mechanical equipment. In summary, based upon Mr. Buckelew's and Mr. Gilmore's testimony, which is accepted, regarding the fresh appearance of the fill road, the road's clay composition which is a soil type uncharacteristic of a river flood plain, as well as the demeanor of the Respondent, including consideration of his prior sworn statement at deposition, it is determined that the Respondent placed the fill material in question within the landward extent of waters of the State.

    
    

15. The Respondent, in his opening statement, candidly admitted obtaining permits from the Department in the past for other activities. It is determined that he was reasonably aware that dredging and filling on this property might require a permit from the Department.

    
    

16. Finally, based upon the totality of the credible evidence and the circumstances proven in this proceeding, the enforcement action and assessment of costs and expenses advanced by the Department are imminently reasonable. This is especially true in view of the fact that the Department has forborne attempting to fine the Respondent, within its authority, as much as $20,000.00.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1), Florida Statutes, and derivatively, Chapter 403, Florida Statutes, and Title 62, Florida Administrative Code (formerly, and at times pertinent hereto, numbered as Title 17, Florida Administrative Code).

    
    

18. The Respondent, Tom Mertens, is a "person", within the meaning of Section 403.031(5), Florida Statutes, and a citizen and resident of the State of Florida. The Choctawhatchee River is an outstanding Florida water and Class III water body of the State, as defined by Section 403.031(12), Florida Statutes, and Rules 17-301.400, 17-302.400, 17-302.600, and 17-302.700, Florida Administrative Code, and as listed in Rule 17-302.700(9)(I), Florida Administrative Code, referring to specifically-named special waters.

    
    

19. "Dredging" is the excavation by any means in waters of the State, as defined in Rule 17-312.020(7), Florida Administrative Code. "Filling" is the deposition by any means of materials in waters of the State, as defined in Rule 17-312.020(11), Florida Administrative Code.

    
    

20. The "landward extent of waters of the State" is that portion of a surface water body characterized by the presence of one or a combination of species listed in Rule 17-301.400, Florida Administrative Code, as the dominant species, as determined pursuant to Rule 17-301.400, Florida Administrative Code. The definition appears in Rule 17-301.200(4), Florida Administrative Code.

    
    

21. A portion of the property impacted by dredging and filling is a landward extent of waters of the State, as determined in accordance with Rule 17-301.400, Florida Administrative Code. Pursuant to Section 403.031(12) and 403.913, Florida Statutes, as well as Rules 17-312.030 and 17-312.060, Florida Administrative Code, dredging and filling conducted in, on, or over waters of the State, as provided in Rule 17-312, Florida Administrative Code, requires a permit from the Department.

    
    

22. Tom Mertens conducted dredge and fill activities on the property in question, in violation of Section 403.913(1), Florida Statutes, and Rules 17-

    312.030 and 17-312.060, Florida Administrative Code, which prohibit dredging or filling in, on, or over waters of the State without an appropriate and currently-valid permit issued by the Department. Those activities violated Section 403.161(1)(b), Florida Statutes, by failing to obtain a permit required by Chapter 403, Florida Statutes, or related rule. The costs and expenses

    described in Count II of the NOV and Order for Corrective Action are reasonable. The costs and expenses described in Count II are recoverable, pursuant to Section 403.141, Florida Statutes, which states that whoever commits a violation specified in Section 403.161(1), Florida Statutes, shall be liable to the State for the reasonable costs and expenses thereof.

    
    

23. The above Findings of Fact, based upon the preponderant evidence of record, prove that the violations occurred in the manner described above and that the Respondent committed them. The violations should be resolved by the Respondent's compliance with Paragraphs 15, 16, and 17 of the NOV and Order for Corrective Action, except those provisions of Paragraph 17 referring to re- vegetation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent perform the following:

1. Within thirty (30) days from the effective date of the Final Order, the Respondent shall make payment of $250.10 to the Department for the expenses incurred by the Department. Payment shall be in the form of a cashier's check or money order payable to the Department.

   
   

2. Within sixty (60) days from the effective date of the Final Order, the Respondent must complete re-grading of the areas of the fill road and boat ramp identified in Exhibit 2 to the NOV and re-grade those areas so as to re- establish the original pre-existing contours and elevations existing before the filling, as indicated by the adjacent, undisturbed areas. The Respondent must also stabilize the restored areas as needed to retain sediment on site during the restoration activities. The Respondent shall utilize turbidity control devices throughout the restored areas, including the use of filter cloth in the vegetated wetlands and floating screens in the open waters. The Respondent shall provide written notification to the appropriate Department personnel within ten (10) days of the completion of the above-described restoration work.

   
   

3. The Respondent shall immediately, upon the effective date of the Final Order, cease and desist from further dredging or filling within waters of the State prior to receiving the necessary permit from the Department or written notice from the Department that the proposed activity is exempt from the permitting requirements of the Department.

DONE AND ENTERED this 1st day of December, 1995, in Tallahassee, Florida.

P. MICHAEL RUFF, 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 1st day of December, 1995.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3897

Petitioner's Proposed Findings of Fact 1-41. Accepted.

1. Rejected, as unnecessary and immaterial.

2. Accepted.

Respondents' Proposed Findings of Fact

1-3. Accepted, but not materially dispositive.

4. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

5-6. Rejected, as immaterial and as subordinate to the Hearing Officer's findings of fact on this subject matter.

1. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

2. Rejected, as patently contrary to the preponderant weight of the evidence.

COPIES FURNISHED:

Michael C. Owens, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Mr. Tom Mertens Star Route Box 5B

Ebro, Florida 32437

Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

Kenneth Plante, Esquire General Counsel

Department of Environmental Protection Douglas Building

3900 Commonwealth Boulevard

Tallahassee, FL 32399-3000

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 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: 93-003897

Orders for Case No: 93-003897