STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) CASE NO. 94-0135

)

BOB CHIPMAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above-styled case before the Division of Administrative Hearings, by its duly designated hearing officer, Mary Clark, on June 24, 1994, in Lakeland, Florida.

APPEARANCES

For Petitioner: Heidi Davis, Esquire

David Thulman, Esquire

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

For Respondent: Bob Chipman

Fish Haven Lodge One Fish Haven Road

Auburndale, Florida 33823 STATEMENT OF THE ISSUES

The primary issue for determination in this proceeding is whether Respondent committed the violations alleged in a notice of violations dated September 2, 1993, and if so, what remedial or other action is necessary.

Respondent admits that he conducted the activities described in the notice of violation, and that he did not receive or apply for a permit. He disputes, however, the Department's assertion of jurisdiction; he also contends that his structures are "grand-fathered" and that his "retention wall" was necessary to protect his property from further erosion.

PRELIMINARY STATEMENT

In response to the notice of violation, Respondent Chipman requested a formal hearing and the case was referred to the Division of Administrative Hearings.

At the formal hearing the Petitioner called the following witnesses: Robert Chipman, Theodore Murray, Johnny Fletcher and Mercily Toledo.

Petitioner's exhibits #1-17 were received in evidence without objection. Respondent testified in his own behalf and presented two exhibits, also received without objection.

The transcript was filed, and after a requested extension Petitioner submitted a proposed recommended order. Respondent filed a letter summarizing his argument. These have all been considered in the preparation of this recommended order. The findings of fact proposed by Petitioner are substantially adopted here.

FINDINGS OF FACT

1. The Department of Environmental Protection (Department) is the administrative agency of the State of Florida which has the authority to administer and enforce the provisions of Chapter 403, Florida Statutes and the rules promulgated thereunder, Title 17, Florida Administrative Code, as well as other laws and rules related to protection of the environment. The Department is the successor agency to the former Department of Environmental Regulation and Department of Natural Resources.

   
   

2. Respondent, Bob Chipman, owns and operates Fish Haven Lodge, One Fish Haven Road, Auburndale, Polk County, Florida. This subject property is located on the west shore of Lake Juliana in the Green Swamp Basin.

   
   

3. Fish Haven Lodge is a small mobile home park and fishing camp, with approximately fifty mobile homes and seven cottages. There is a fishing pier built in the 1960's and a boat ramp; neither structure is at issue in this action. The lodge and camp were opened in 1963, some twenty years after Mr. Chipman's grandfather bought the property.

   
   

4. Originally, the property sloped gently down to the shore of the lake. Mr. Chipman calls the lakefront a "parking lot for boats", as his patrons and tenants pull their boats up on the shore and "park" them. In the early days, poles were installed up on the shore for securing the boats.

   
   

5. Over the years, the lake has eroded the shoreline. As people rented the mobile home lots and were given access to the lake, they would ask permission of Mr. Chipman to build little walkways to get in and out of their boats. These proliferated, and now there are at least twelve such structures.

   
   

6. The property began experiencing severe erosion. Whenever it stormed, ruts were washed out, cutting into the grassy areas. Attempts to fill the ruts with dirt and sod provided only a temporary solution. Eventually, instead of a gradual slope, there was an abrupt drop into the lake waters. Mr. Chipman perceived this erosion as a hazard to his remaining property and to the people who used the lakefront. He also found it difficult to mow and maintain the neat, well-kept appearance of the property.

   
   

7. In June 1992, Mr. Chipman, without benefit of permit of any sort, commenced building small sea walls, or what he calls "retention walls" on both sides of the fishing pier and along the contour of the shore. The walls are constructed of 2 x 10 wooden boards nailed on posts. The only way to hammer the boards on the landward side of the posts was to dig, then build, then backfill the area behind the walls. The fill came from both landward and waterward of the walls. Later, more fill was placed along the walls, but this was gravel fill.

8. As the walls were built, the existing walkways, or small "docks" were removed and were replaced in a neater, more uniform fashion. The poles were repositioned and planks were replaced. There are approximately twelve of these repositioned walkways, or docks.

   
   

9. Photographs taken by Mr. Chipman during the construction show the lakewaters approaching the planks of the wall, and in one view (Petitioner's exhibit #4) the water is lapping up to the planks. The walkways or docks are well into the water. Mr. Chipman concedes that the water has risen up the bottom 2 x 10 board, and that the walls were installed during a period of high water.

   
   

10. Notwithstanding this evidence, Mr. Chipman contends that he built his walls along the edge, but not within, the jurisdiction of the "waters of the state". He contends that he was not trying to recapture property he lost to erosion, but rather, he was trying to save what he had left. He admits that the walkways or docks are in the water, but he suggests that they are "grandfathered", as they existed for several years, and some as long as twenty to thirty years.

    
    

11. A basic principle of water boundary is that it is an ambulatory line; it moves with erosion or accretion. Erosion is a natural phenomenon.

    
    

12. The Department established its jurisdictional water boundary in this case by several means. Ted Murray, an environmental specialist with the Department who was qualified at hearing without objection as an expert in jurisdictional determination, inspected the subject property and found submerged species of vegetation along the seawalls. These species included arrowhead and wild tarrow, common names for species which require the presence of water to grow. In an area where the seawalls were not built, wild tarrow was found four or five feet behind the line where the seawalls had been built, indicating that the water fluctuated naturally where unimpeded by the walls to an area landward of the walls.

    
    

13. Two hydrological indicators of the landward extent of waters of the state were noted by Mr. Murray. One was the debris line or "rackline" created by the deposit of debris by fluctuating waterlevels. The other hydrological indicator was the escarpment found north of the boat dock. This escarpment is a miniature cliff, or drop-off caused by the high water line. This is a common situation found at lakeshores.

    
    

14. In this case, Department staff located a post that already existed at the escarpment. At the request of the Department, the Southwest Florida Water Management District conducted a land survey, shooting elevations at various locations on the property. The existing post was a reference point agreed by the parties the day the survey was conducted; Mr. Chapman claimed that he had constructed his seawalls landward of that post.

    
    

15. The elevation at the post and at the base of the escarpment was measured at 132.6 feet above sea level. At a lake like Lake Juliana, the water level will tend to be the same elevation all around the lake. Any structure or fill placed above 132.6 feet elevation would be in uplands; any structure or fill placed below that elevation would be within the landward extent of Lake Juliana, and therefore within the permitting jurisdiction of the Department. Survey elevations of the seawalls, taken at several points, indicate that the seawalls and fill were placed one to two feet below the jurisdictional line.

    The fact that the Southwest Water Management District had previously established

    1. feet as the minimum flood level for Lake Juliana adds credence to the

    2. line established as described above.

    
    

16. There have been several enforcement actions on Lake Juliana, including three or four recent violations involving seawalls and associated backfill in jurisdictional waters. Mr. Chipman's is not an isolated case. As he recounts, folks saw him building this wall and told him they would like the same thing.

    
    

17. The cumulative effect of such structures on the Lake Juliana environment is substantial. Seawalls preclude vegetative shorelines that would otherwise serve as nutrient assimilation and habitat for a variety of organisms that inhabit the lake. Even though Mr. Chipman's walls are only a foot or so into the wetlands, the surface area affected by the approximate 126 feet length of the walls is close to 500 square feet, including the fill area behind the walls.

    
    

18. Loss of vegetation will lead to loss of fishes that depend on the vegetation for feeding, hiding and nesting. Although the docks or walkways can provide nesting or hiding places, their effect is still a net loss, since, as constructed, they deprive the vegetation of needed sunlight.

    
    

19. As constructed, the seawalls would not have been permitted by the Department because the same purpose could have been served by building the walls in the uplands just a few feet away. The Department staff have discussed alternatives with Mr. Chipman. The best natural defense against erosion is a gentle slope that is vegetated with native plant species. That solution may not be practical where there is an embankment and where there is constant usage by boats and people. The most practical solution based on evidence in this proceeding is for Mr. Chipman to move the walls back into the uplands and restore the shoreline.

    
    

20. There is no controversy that all of the construction by Mr. Chipman was done without permits. His business has been operating since 1963, and he felt that the effort to impede erosion of his "boat parking lot" was of no concern to the state. He has been candid and cooperative with the Department staff, and there is no basis to find that his excuse for not seeking permits is in any way bad faith.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

22. Section 403.161(1), FS (1993) provides, in pertinent part:

    
    

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

       . . .

       (b) To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regu- lation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.

       
       

23. At the time of the activities at issue, 1992, the Department's jurisdiction with regard to dredging and filing in wetlands was described in

    Chapter 403, F.S.. For example, section 403.913(1), F.S. provided simply: "No person shall dredge or fill in, or over surface waters without a permit from the department, unless exempted by statute or department rule." In 1993 and 1994, pursuant to an extensive reorganization of the state's environmental permitting agencies, the authority was transferred to Chapter 373, F.S. and the existing rules were continued in full force and effect. See section 373.414(9), F.S. (1994).

    
    

24. The primary dispute in this proceeding is the jurisdictional line established by the Department. Mr. Chipman has conceded that the walkways or docks are in the water, but he disputes that his walls were built within the landward extent of the lake. The Department presented credible, competent testimony with regard to the line and how it was established. It met its burden of proving jurisdiction by a preponderance of evidence. Mr. Chipman presented no contrary evidence nor any specifics of where the line should be; he agreed that the Department's line was "close".

    
    

25. Although he argues that his activities are "grandfathered", Mr. Chipman has presented no specific authority to support his claim. Dredge and fill permit jurisdiction predates 1984, the year of the Warren S. Henderson Wetlands Protection Act (sections 403.91-403.929). See section 403.913(6), F.S. (1991). Mr. Chipman was unable to establish any dates when the walkways were built, other than to state that some were put in as early as the 1960's. At least some of the older walkways or docks were, by his admissions, pulled out and completely replaced when the seawalls were constructed in 1992.

    
    

26. This is an enforcement proceeding rather than a permit proceeding. The remedial action proposed by the Department (removal and restoration) is reasonable in the absence of any evidence of other alternatives. If, and when, Mr. Chipman applies for some permit, the conditions to be placed on the permit would be considered.

RECOMMENDATION

Based on the foregoing, it is, hereby, RECOMMENDED:

That the Department enter its Final Order finding that Respondent, Bob Chipman, committed the violations alleged and requiring the removal and restoration described in the notice of violation and orders for corrective actions which initiated this proceeding.

DONE AND RECOMMENDED this 29th day of November, 1994, 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 29th day of November, 1994.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Kenneth Plante, Esquire General Counsel

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

David Thulman, Esquire Heidi E. Davis, Esquire Asst. General Counsel

DEP-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400

Bob Chipman

Fish Haven Lodge One Fish Haven Road

Auburndale, FL 33823

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: 94-000135

Orders for Case No: 94-000135