STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HOMOSASSA RIVER PRESERVATION ) ASSOCIATION, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1189

) STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, ) RIVERVIEW ESTATES, INCORPORATED, ) BILLY G. BLACK and CHARLES )

LENZ. )

)

Respondents. )

)

RECOMMENDED ORDER

This matter came on for hearing in Inverness, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Robert T. Benton, II, on August 23, 1977. The parties were represented by counsel:

APPEARANCES

For Petitioner: Mr. Ben Daniel, Jr., Esquire

101 Northwest Third Street Ocala, Florida 32670

For Respondent: Mr. Alfred Clark, Esquire Department of 2562 Executive Center Circle, East Environmental Montgomery Building

Regulation Tallahassee, Florida 32301

For Respondents: Mr. John Montgomery Greene, Esquire Carles A. Lenz, 19 North Pine Street

Billy G. Black Ocala, Florida 32670 and Riverview

Estates, Inc.

Respondent Department of Environmental Regulation proposed to enter into a consent agreement with co-respondents Messrs. Lenz and Black, as principal stockholders of co-respondent Riverview Estates, Inc. (Riverview) "for the purpose of compromise and settlement" of claims under Section 403.087, Florida Statutes (1975), to which Riverview's non-permitted dredging of a canal connecting with Battle Creek in Citrus County had given rise. By letter from its chairman, petitioner requested a hearing pursuant to Section 120.57, Florida Statutes (1975), in "order to present additional evidence which was not taken into account" when the department was drafted. The Department of Environmental Regulation referred the matter here.

FINDINGS OF FACT

1. The canal that Riverview dredged is paralleled on either side by canals of like length, man-made at an earlier time, which also connect with Little Battle Creek in Citrus County. Little Battle Creek (which was itself deepened by dredging in 1960) flows into the Homosassa River.

   
   

2. Riverview dredged the canal and filled surrounding marshland without first securing a permit from any governmental agency. At the time Riverview undertook these dredge and fill operations, respondent Department of Environmental Regulation was not in existence. The Department of Pollution Control and the Board of Trustees of the Internal Improvement Fund, state governmental agencies which were in existence at that time, took no formal action of any kind on account of Riverview's activities.

   
   

3. Garcia Road, originally a causeway through a marsh, runs perpendicular to the canals. Before Riverview filled, water from marshland lying east of Garcia Road drained through culverts under Garcia Road into the canals and the creek. Since Riverview filled, however, rain storms result in standing water on Garcia Road, which may persist for as long as a week. The day before the final hearing water on Garcia Road was a foot deep. Such drainage as now occurs involves water moving across a stretch of Garcia Road north of the obstructed culverts, and through homeowners' yards, which has precipitated dramatic erosion of the property affected.

   
   

4. The topsoil covering the fingers of land on either side of the canal that Riverview dredged is sand fill, which is not very stable. A man is able to penetrate ten feet with a reinforcing rod, without hammering. On both of these fingers, roads running their respective lengths constitute the highest elevation. There are lift stations on either peninsula, the tops of which are flush with the ground. The to of the septic tank system installed across Garcia Road from the canal is two or three feet above ground.

   
   

5. The vegetation in the canal indicates nocturnal deficiencies of dissolved oxygen. By studying water amples, an employee of respondent Department of Environmental Regulation determined that microscopic life exists in some diversity where Battle Creek joins the Homosassa River, in less variety upstream from the canal that Riverview dredged, and in still less diversity in the mouth of the canal that Riverview dredged. At the end of the canal opposite the creek, there was at most a single species of microscopic organism. Coliform bacilli are not present in the canal in significant numbers.

   
   

6. Respondent Charles A. Lenz owns 70 percent of the stock issued by respondent Riverview Estates, Inc., and respondent Billy G. Black owns 20 percent. Messrs. Lenz and Black or one of them negotiated with Mickey Bryant, an environmental specialist employed by respondent Department of Environmental Regulation, to reach the proposed consent agreement received in evidence as the Department's exhibit No. 1. Essentially, the agreement contemplates that Riverview will shorten both fingers of land by removing fill dirt from the ends of the peninsulas in a specified manner; dispose of the fill dirt in a manner specified by the agreement; take specified steps to prevent erosion of the truncated fingers of land; plug the canal so as to convert the end opposite the creek into a holding or treatment pond separate from the canal; and convey to the State of Florida a tract of land in excess of 58 acres, which borders the creek along the bank opposite the canal. During a recess at the final hearing, negotiations began which have since eventuated in an addendum to the proposed consent agreement, providing that Riverview shall

   (within 90 days restore drainage conditions from the lands lying East of Garcia Road opposite the project identified in this agreement to those which existed prior to the dredging and filling activities conducted by Riverview as aforesaid. It is understood that this undertaking may require the opening or replacement of a culvert under Garcia Road and the extension of a drainage system from its Western end to a canal spilling into Battle Creek.

   
   

   It is also understood that completion of this undertaking shall be subject to permission and direction of the proper authorities of Citrus County.

   
   

   CONCLUSIONS OF LAW

   
   

7. Petitioner maintains that Chapter 403, Florida Statutes (1975), is unconstitutional in its entirety as a delegation of legislative power to the Department of Environmental Regulation, part of the executive branch. Such a contention is properly addressed to the courts, rather than to the Division of Administrative Hearings, which is itself part of the executive branch of state government and, therefore, without authority to declare statutes unconstitutional.

   
   

8. Even if Chapter 403, Florida Statutes (1975), is constitutional, argues petitioner, it does not authorize respondent Department of Environmental Regulation to enter into consent agreements of any kind. This argument fails to take into account statutory language empowering the Department of Environmental Regulation to:

   
   

   Encourage voluntary cooperation by persons and affected groups to achieve the purposes of this act.

   
   

   Advise, consult, cooperate, and enter into agreements with other agencies of the state, the Federal Government, other states, interstate agencies, groups, political subdivisions, and industries affected by the provisions of this act, rules, or policies of the department. Section 403.061(19) and (24), Florida Statutes (1975).

   
   

   Common sense, the interests of efficiency, and principles of sound administration also militate in favor of the view that the Department of Environmental Regulation need not litigate matters when it is able to achieve its objectives through agreements, obviating the necessity for litigation.

   
   

9. In any event, petitioner maintains, the particular consent agreement proposed here is beyond the Departments authority to enter into because it does not specify just how water will drain over the peninsulas on either side of the canal, and because the agreement has not spelled out what steps the Department would take to enforce the consent agreement, if Riverview should fail to comply.

   For these propositions, petitioner has cited no legal authority, presumably because there is none.

   
   

10. After the final hearing, petitioner's counsel wrote the hearing officer suggesting certain modifications of the consent agreement to make it more explicit with respect to where water from the peninsulas should drain, and urging that the "proper authorities of Citrus County" mentioned in the addendum be specified. But it is not for the hearing officer to draft a consent agreement for the parties. The Department of Environmental Regulation has the responsibility to administer Chapter 403, Florida Statutes (1975). So long as the Department stays within lawful bounds in doing so, the Division of - Administrative Hearings has no authority to supervise or to interfere by rewriting agreements the Department proposes to enter into. It is irrelevant whether or not the proposed agreement in the present case might be more explicit. Petitioner has failed to meet its burden to show that the proposed consent agreement is unlawful.

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED:

That petitioner's objections to the proposed consent agreement be deemed no impediment to respondents' entry into the agreement.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Carlton Building

Room 530

Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 23 day of September, 1977.

COPIES FURNISHED:

Mr. Ben Daniel, Jr., Esquire

101 Northwest Third Street Ocala, Florida 32670

Mr. Alfred Clark, Esquire

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

Mr. John Montgomery Greene, Esquire

19 North Pine Street Ocala, Florida 32670

CONSENT AGREEMENT

This Consent Agreement made and entered into this 29th day of July, 1976, by and between the State of Florida Department of Environmental Regulation (hereafter the Department), and Mr. Billy G. Black, Mr. Charles A. Lenz and Riverview Estates, Incorporated, Citrus County, Florida (hereafter Riverview).

WHEREAS, on or before a period of time from July to September, 1972, Riverview or its predecessors has dredged and connected a canal to Battle Creek, Citrus County; Florida, and filled marsh lands adjacent to said Battle Creek without an appropriate and valid permit from the Department.

WHEREAS, the Department maintains that Riverview or its predecessors by engaging in the above described dredging and filling activities did violate Chapter 403.087 Laws of Florida which states that:

"No stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department,

unless exempted by department rule."

NOW, THEREFORE, for the purpose of compromise and settlement of the claims set forth above and in consideration of the Department's forebearance from civil litigation of any kind and forebearance of Riverview from civil litigation of any kind, the parties hereto, hereby stipulate, consent and agree to the following items and conditions:

I

For the purpose of this Agreement, all references to specific items and geological locations in or adjacent to Battle Creek, Citrus County, Florida, shall be directed to the drawing labeled Riverview Estates, J. Frederic Blitstein, Inc., Environmental Planners and Arden-Green Architects, Inc., attached hereto as Attachment "A", aerial photograph attached hereto as Attachment "B", and DER survey attached hereto as Attachment "C".

II

Riverview hereby consents and agrees to:

1. Within 90 days, remove all fill materials from Areas I & II, as shown on Attachment "C", and restore said areas to preexisting marsh grade and elevation. The ground level elevation of the adjacent undisturbed marsh lying across Battle Creek shall be used as a guide if necessary. Fill materials removed may be placed in the canal to raise the depth of the canal to -5' MLW and/or upon uplands as defined by Chapter 17-4.02, Florida Administrative Code. No fill shall be placed upon any other location otherwise requiring a permit from the department. A natural sawgrass fringe and dirt berm shall be left at the westernmost (waterward) extreme of Areas I & II while fill is being removed. This berm will serve as a temporary siltation barrier and reduce siltation of Battle Creek during fill removal operations. Upon removal of all fill, the temporary berm shall be removed, leaving the undisturbed perimeter fringe of sawgrass.

2. If natural marsh grasses do not sufficiently revegetate the area of fill removal so as to provide a marsh cover within one year, the department will require Riverview to re-establish the marsh cover by replanting with sawgrass and cattail clumps.

   
   

3. Within 90 days install a plug in the canal at the location shown on Attachment "C". Construction of the plug shall be in accordance with the drawing shown on Attachment "A".

   
   

4. Within 90 days, install a riprap bulkhead at the eastern edge of Areas I and II.

   
   

5. Utilize the upland portion of the plugged canal as a catch basin for water runoff from the adjacent filled areas.

   
   

6. Leave existing perimeter vegetation in along the canal between the plug and Battle Creek.

   
   

7. Perform no further dredging, filling, or other works in or on the undisturbed transitional or submerged zones, as defined by Chapter 17-4.28, Florida Administrative Code, of Battle Creek, prior to receiving written authorization from the Department or receiving notice from the Department that the proposed activities are exempt from permitting requirements.

   
   

8. Allow duly authorized representatives of the Department access to the property at reasonable times for the purpose of inspecting progress of the aforementioned work.

   
   

9. Donate to the Florida Board of Trustees of the Internal Improvement Trust Fund approximately 58.4 acres of land shown on Attachment "B" and further described as follows:

   
   

   The north 58.4 acres of the west 1/2 of SW 1/4 of 531, Tl9S, R17E, lying northerly of the westerly prolongation of the north line of that certain parcel described in Official Records Book 3, Page 103, Public Records of Citrus County, Florida, as follows:

   Beginning at a point in the SW corner of Lot 59 of the Homosassa Company

   Subdivision of the SW 1/4 of Section 31, Township 19 South, Range 17 East, and thence running North 233 feet coincidental with the west line of said Lot 59 to a point in the said west line, as the Point of Beginning; thence westerly 453 feet to a point; thence northerly 480 feet to a point; thence easterly 453 feet to a point, which is the NW corner of said Lot 59; thence continuing southerly along the west line of said Lot 59, 480 feet to the Point of Beginning Less and except any westerly portion of the filled lands of Riverview Estates which may

   lie within the west 1/2 of the SW 1/4 of 531, Tl9S, Rl7E.

   III

   
   

   The Florida Department of Enviromental Regulation for and in consideration of the foregoing hereby consents and agrees to:

   
   

   1. Not require additional removal of fill materials or restoration of sawgrass marsh under lots number 1-40.

      
      

   2. Not require backfilling of the artificial canal east or west of the plug.

      
      

   3. Not require removal of any electrical or sewer improvements westerly of the end of the road pavement and within the restoration areas.

      
      

   4. Not hold Riverview liable for civil damages or penalties described in Chapter 403.141, Florida Statutes.

      
      

      DONE AND EXECUTED this 29th day of July, 1976, in the Office of the State of Florida, Department of Environmental Regulation, Tallahassee, Leon County, Florida.

      
      

      RIVERVIEW ESTATES, INC. STATE OF FLORIDA DEPARTMENT

      OF ENVIRONMENTAL REGULATION

      
      

      Charles A. Lenz, as a Joseph W. Landers, Jr. principal stockholder Secretary

      P.O. Box 980 2562 Executive Center Cir., E. Homasassa Springs, FL Montgomery Building

      32647 Tallahassee, FL 32304

      
      

      Billy G. Black, as a principal stock holder

      P.O. Box 886

      Homasassa Springs, FL 32646

      
      

      ADDENDUM TO CONSENT AGREEMENT

      
      

      The Consent Agreement dated July 29, 1976, which Billy G. Black, Charles A. Lenz and Riverview Estates, Inc. (referred to therein and herein as Riverview) have offered to enter into with the State of Florida Department of Environmental Regulation (the Department) is hereby amended and Riverview' s offer extended and enlarged by adding to Article II an additional paragraph designated "(j)" which shall provide as follows:

      
      

10. Within 90 days restore drainage conditions from the lands lying East of Garcia Road opposite the project identified in this agreement to those which existed prior to the dredging and filling activities conducted by Riverview as aforesaid. It is understood that this undertaking may require

the opening or replacement of a culvert under Garcia Road and the extension of a drainage system from the culvert into the basin described in II (e). If the drainage into this basin is not feasible, Riverview may propose other alternatives which shall be subject to the approval of the Department.

It is also understood that completion of this undertaking shall be subject to permission and direction of the proper authorities of Citrus County.

When executed by the Department, this shall become a part of the Consent Agreement aforesaid.

EXECUTED by Riverview this day of November, 1977.

RIVERVIEW ESTATES, INC.

by:

Billy G. Black Charles A. Lenz

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JOSEPH W. LANDERS, JR.

Secretary

2562 Executive Center Circle, E. Montgomery Building

Tallahassee, Florida 32301

Docket for Case No: 76-001189

Orders for Case No: 76-001189