STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 79-790

)

J. DAVID WOOD and DIANE C. WOOD, ) and RAY E. DUGAN, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on January

9 and 10, 1980, in the City Hall, Cedar Key, Florida. The issue for determination at the hearing was whether respondents are guilty of violating certain provisions of Chapter 403, Florida Statutes, and Chapters 17-3 and 17-4 of the Florida Administrative Code, and must comply with the Orders for Corrective Action dated March 12, 1979.

APPEARANCES

For Petitioner: Silvia Morell Alderman

Assistant General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent Larry Levy

Wood: Dickinson, Levy and Taylor

346 Barnett Bank Building Tallahassee, Florida 32301

For Respondent Dugan: No appearance

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The respondents J. David Wood and Diane C. Wood are the record owners, as trustees, of a certain parcel of land located in Levy County in the vicinity of Cedar Key, Florida.

   
   

2. The Notice of Violation issued by the Department of Environmental Regulation alleges that the respondent Ray E. Dugan is the record owner of lands located immediately adjacent to the the Wood's land. No evidence was received

   or offered at the hearing to support this allegation, and no appearance was made by the respondent Dugan.

   
   

3. When the Woods first occupied the subject property in 1975, a portion of the upland property was being used to dump solid and household waste. It had been used for this purpose for many years, and some water run-off and drainage from the dump flowed into a marsh area at the south end of the dump site. The Woods began a cleanup project to remove the accumulated dump matter, and such work was done over a period of some two years.

   
   

4. After the dump area was cleaned, it was bulldozed out so as to create an upland body of water referred to as Lake Boomerang. The depth of this body of water was originally about eighteen inches to two feet. An elbow canal was also created on the east side of the property and was at some point in time joined to Lake Boomerang. Lake Boomerang was used by respondent Wood and Mr. Harvey Hanley as a testing place for a hovercraft project experiment. The hovercraft is a vessel which rides on a cushion of air over the water and can run over smooth land or land subject to only gradual inclines or declines. During the testing of hovercraft, it was necessary to wade out and stand along side the craft. Deep water was detrimental to this. Mr. Hanley did not want or need access to the Gulf For his tests. The Gulf is located to the south of Lake Boomerang and is separated by a land mass.

   
   

5. During the early part of March, 1978, the Florida Marine Patrol entered the Wood property and complained of certain dredging and filling activity thereon. Thereafter, certain representatives from the Department of Environmental Regulation and from the United States Corps of Engineers made on- site visits to the subject property and had various discussions with respondent

   J. David Wood.

   
   

6. On or about March 9, 1978, David B. Scott, an environmental specialist with the Petitioner, and Melvin Rector, visited the site for the purpose of making a determination as to whether a permit was necessary for the work being done on the subject properties. Mr. Scott was tendered and accepted as an expert witness in the field of ecology. While on the property during that visit, Mr. Scott observed that dredging had been done parallel to the shoreline and that spoil had been placed in the marsh on the waterward side of the canal. Mr. Scott told Mr. Wood that it appeared that he was in violation of dredging and filling laws and that he would need a permit. Mr. Wood acknowledged that the spoil placed in the marsh was a mistake and would be removed. Some discussion was had regarding an after-the-fact Permit. No commitment to approve such a permit was made by DER representatives, and no application for such a permit was filed by Mr. Wood.

   
   

7. On or about March 24, 1978, Steve Hart from DER and David Ferrell, a biologist and project manager for the United States Corps of Engineers, visited the subject property. Mr. Farrell had cone to investigate a spoil mound and dragline on the property which he had observed earlier in March. Mr. Ferrell was told by Mr. Fisher, a caretaker on the property, that the spoil material that had been placed in the marsh would be removed and that the large spoil mound would be spread out on the uplands.

   
   

8. On March 27, 1978, Mr. Wood met with David Scott in the Gainesville DER office. They discussed a plan of restoration for the property which included the removal of all spoil from the marsh area and the filling in of excavated areas within the jurisdiction of DER. The construction of a dike was not discussed.

9. On March 29, 1978, Mr. Wood met with David Ferrell and Carlos Espinosa at the Corps of Engineers office in Palatka, Florida, to discuss a plan of restoration. This plan included taking the spoil material out of the marsh and pushing it back into the tidal creek area to its original elevation and configuration. Mr. Wood recalls that a dam or a dike was discussed at this meeting, but neither Mr. Ferrell nor Mr. Espinosa instructed him to construct a dike at this meeting.

   
   

10. On or about April 5, 1978, Mr. Ferrell again visited the site to see what progress was being made on the restoration plan. Mr. Ferrell observed that the restoration was proceeding as agreed. He observed the land mass area which had been graded down somewhat and told Mr. Wood that this land mass should remain intact. Mr. Wood asked Mr. Ferrell if fill could be added on top of the land mass area and Mr. Ferrell replied in the affirmative.

    
    

11. The next visit to the site occurred on April 19, 1970, with David Scott and David Ferrell present to approve the restoration. On this visit, Scott and Ferrell observed that a dike about two feet high had been constructed approximately eighty (80) feet south or waterward of the original land mass. They further observed that the upland water body had been widened and lengthened so as to extend into DER's jurisdiction and that a channel had been dredged from the dike to the open waters of the Gulf of Mexico. Mr. Ferrell discussed with Mr. Wood a further plan of restoration which included moving the dike northward out of the marsh area and filling in and restoring the area. No specific restoration plan was agreed upon. Respondent's witnesses did recall that Mr. Ferrell had Placed stake marks and boot marks to indicate where the dike was to be moved. Mr. Scott with DER was unwilling to make a further commitment regarding restoration because he felt that the area had changed so drastically that it was difficult to see what changes had occurred. He wanted to review photographs to determine the extent of the violation and necessary restoration. Subsequent to this April 19th visit, DER issued its official notice to the Woods that violations had occurred.

    
    

12. Mr. Ferrell and Mr. Espinosa from the Corps of Engineers again went on site on April 28 and May 30, 1978. On April 28, 1978, they observed no additional work having been accomplished. There was testimony from the respondent's witnesses that the dike had been moved northward about eight feet on the eastern end and 20 to 25 feet on the western end subsequent to the April 19, 1978, meeting on the property. Mr. Wood was advised that the dike would have to be removed to the original land mass area and that the tidal creek configuration would have to be restored. On the 30th of May, Mr. Ferrell observed that the upland canal had been connected to a side canal to the east and that the dike had been elevated to approximately six feet. Thereafter, the Corps forwarded the matter to their enforcement section.

    
    

13. Mr. Scott, with expertise in ecology; Stephen Gatewood, with expertise in vegetation identification and aerial photography interpretation; and Landon Ross, with expertise in biology, all testified regarding the areas of DER's jurisdiction according to its rules regulations and statutes. This testimony was based upon identification of vegetation in the area, site verifications of landmarks and signatures of vegetation when comparing photographs taken at different time periods. There was also testimony from the respondents regarding a fire ditch or fire break somewhere in the vicinity of the current location of the dike and the vegetation located in said fire ditch. Inasmuch as there was a rather substantial deviation in the testimony of the respondents' witnesses with regard to the exact location of the fire ditch and testimony that neither pine

    trees growing within the ditch nor the hardness of the soil contained therein would be indicative of DER's jurisdiction, no finding can be based upon testimony concerning the fire ditch. The undersigned finds from the testimony and documentary evidence that the work accomplished by Mr. Wood was undertaken within submerged lands and the transitional zone of submerged lands of waters of the State, thus coming within the jurisdiction of DER. This work includes the waterward channel, the dike, the fill and a portion of the water body dredged landward of the dike.

    
    

14. The dredging and filling activities which occurred on the property had the effect of eliminating important marsh areas and harming aquatic, plant and wildlife in the area. The fact that the upland area was used as a dump site for many years up to the edge of the marsh area does not eliminate the harm caused by the removal and destruction of the marsh area, though it may affect the extent of the damage done by the dredging and filling. In order to recover the biological and aquatic value of the area dredged and filled, the land needs to be restored to its preexisting elevation and revegetated. The site could not restore itself naturally within a reasonable period of time.

    
    

15. The Department of Environmental Regulation incurred expenses totalling

    $661.86 in the process of investigating the work being done on the subject property prior to the issuance of the Notice of Violation which initiated this proceeding.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Notice of Violation issued by the Petitioner generally alleges violations of the Department's dredging and filling permit requirements and harm and injury to animal, plant and aquatic life as a result of the unauthorized activity. The Orders for Corrective Action provide for the complete restoration of the unauthorized dredged and filled sites. This is to be accomplished by removing the dike and filling in portions of the excavated canals within DER's jurisdiction, by returning these areas to their natural elevations existing before any dredging or filling took place and by revegetating the restored area with spartina.

    
    

17. The respondents J. David Wood and Diane C. Wood have denied the allegations of violation contained in the Notice of Violation and have asserted that petitioner is estopped to assert such as violations because the dike was constructed at the location directed by state and federal officials.

    
    

18. Stationary installations which will reasonably be expected to be a source of water pollution may not be constructed, expanded or modified without a valid permit issued by the Department of Environmental Regulation. Fla. Stats., Section 403.087(1) and Fla. Admin. Code, Ch. 17-4.03. Permits are required for dredging and filling activities which are conducted in or connected directly or via an excavated water body to the Gulf of Mexico, including its submerged lands and transitional zones of a submerged land. Fla. Admin. Code, Ch. 17-4.28(2). Failure to obtain such permits or to cause pollution so as to harm or injure animal, plant or aquatic life constitutes a violation of Chapter 403, Fla. Stats. See Fla. Stats. Section 403.11(1).

    
    

19. Here, the Department has sufficiently demonstrated that the dredging and filling activities of respondent Wood was undertaken within the area of DER's jurisdiction without the benefit of a valid Department permit in violation of the above-cited statutes and rules. There was also sufficient evidence to

    demonstrate that pollution was caused by such activities so as to harm or injure plant or aquatic life.

    
    

20. The respondents' claim of estoppel is not supported by the factual evidence adduced at the hearing. There was absolutely no credible evidence that representatives of the Department of Environmental Regulation ordered, instructed, or gave even tacit approval to the respondent to do the work which exists on the property. Indeed, the evidence is to the contrary. Even if the Department were to be bound by the actions of representatives from the United States Corps of Engineers, the respondents have not carried their burden of proof in this regard. The evidence illustrates that the dike was constructed by the respondent Wood prior to the time Mr. Ferrell visited the site on April 19, 1978. The respondent was notified in early March of the jurisdiction of DER and that permits should have to be obtained prior to any further dredge and fill work. In the latter part of March, respondent Wood was informed that the marsh area and excavated areas within DER's jurisdiction would have to be restored. The burden of proof in establishing an estoppel against the State lies with the respondent and the respondent has simply failed to satisfy such burden in this proceeding.

    
    

21. The Department has presented sufficient evidence that in order to recover the biological and aquatic value of the area which was dredged and filled, the area must be restored to its preexisting elevation and revegetated. Allowing the area to remain as is would ultimately result in the destruction of valuable marshlands and the quality of the State's waters.

    
    

22. Section 403.141(1), Fla. Stats., provides that whoever commits a violation specified in Section 403.161(1) is liable to the state for reasonable costs and expenses of the state in tracing the source of the discharge, in controlling and abating the source and the pollutants and in restoring the property, including plant and aquatic life, to its former condition. The Department has presented evidence that its costs in investigating the violations totalled $661.86. It is entitled to reimbursement in this amount from the respondents Wood.

    
    

23. The undersigned has carefully considered the proposed findings of fact and other legal memoranda submitted by the parties. To the extent that the proposed findings of fact are not incorported herein, they are rejected as being either immaterial or irrelevant to tide issues for determination or as not being supported by competent substantial evidence.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the respondents Wood be found in violation of Section 403.161(1)(a) and (b) as specified in the Notice of Violation and that the Orders for Corrective Action be made binding and final upon the respondents Wood.

Respectfully submitted and entered this 13th day of February, 1980, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

Silvia Morell Alderman Assistant General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Larry Levy

Dickinson, Levy and Taylor

346 Barnett Bank Building Tallahassee, Florida 32301

Ray E. Dugan

Florida National Bank Building St. Petersburg, Florida 33720

Honorable Jacob Varn Secretary, Department of

Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 79-000790

Orders for Case No: 79-000790