STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Petitioner, )
)
vs. ) CASE NO. 79-1560
) COMMUNITIES FINANCIAL CORPORATION ) and COQUINA WATER MANAGEMENT ) DISTRICT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on December 4-5, 1980, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Randall E. Denker, Esquire
Assistant General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
For Respondents: Gary P. Sams, Esquire
HOPPING, BOYD, GREEN and SAMS, P.A.
Post Office Box 6526 Tallahassee, Florida 32301
Dana G. Bradford, II, Esquire MAHONEY, HADLOW and ADAMS
Post Office Box 4099 Jacksonville, Florida 32201
This proceeding commenced on June 1, 1979, when the State of Florida, Department of Environmental Regulation ("DER") issued a Notice of Violation against Communities Financial Corporation and Coquina Water Management District (hereinafter "CFC", "Coquina" or "Respondents," as the context requires). In the Notice of Violation, DER alleges that Respondents were: (a) conducting dredging and filling in waters of the state, submerged lands, and transitional zones of submerged lands without a dredge and fill permit in violation of Sections 403.161(1)(a) and (b), Florida Statutes, and Rules 17-4.03 and 17- 4.28(2), Florida Administrative Code; and (b) constructing drainage ditches that are causing or reasonably may be expected to cause water pollution in waters of the state without a construction or operating permit in violation of Sections 403.087, 403.088, and 403.161(1)(a) and (b), Florida Statutes. DER also alleged
that it had incurred certain investigative costs and expenses which it seeks to recover herein.
Respondents filed an answer to the Notice of Violation, disputing the material allegations thereof, interposing affirmative defenses, and requesting a formal administrative hearing in accordance with the provisions of Section 120.57(1), Florida Statutes. Thereafter, in accordance with the provisions of Section 120.57(1)(b)(3), Florida Statutes, DER requested the assignment of a hearing officer from the Division of Administrative Hearings to conduct proceedings in this cause. Final hearing in this cause was conducted pursuant to an Amended Notice of Hearing dated September 10, 1979.
This proceeding involves essentially two questions: first, whether the State of Florida, Department of Environmental Regulation ("DER") has dredge-and- fill permit jurisdiction pursuant to Sections 403.061(7), 403.087(1), and 403.817, Florida Statutes, and Rule 17-4.28, Florida Administrative Code, and water pollution control construction and operation permit jurisdiction pursuant to Sections 403.087 and 403.088, Florida Statutes, over the activities of Respondents on 22 square miles of property in Okeechobee County; and whether Respondents have violated the provisions of Section 403.161(1)(a) and (b) , Florida Statutes, by causing pollution so as to harm human health or welfare, animal, plant, aquatic life or property by failing to obtain the permits described above.
DER contends that it has permitting jurisdiction over Respondents' activities pursuant to Sections 403.087 and 403.088, Florida Statutes, and Rule 17-4.28, Florida Administrative Code. DER contends that Respondents' activities are being conducted in and connected to state waters, submerged lands and transitional zones of state waters, thereby subjecting Respondents to DER's dredge-and-fill jurisdiction. Further, DER contends that Respondents are constructing and operating stationary installations which are and will continue to cause pollution, as that term is defined in Section 403.031(2), Florida Statutes, in waters of the state, as that term is defined by Section 403.031(3) and 403.062, Florida Statutes, and Rule 17-3.021(25) and (26), Florida Administrative Code, thus requiring construction and operation permits under Sections 403.087 and 403.088, Florida Statutes. DER further contends that Respondents' activities have been conducted in violation of Sections 403.161(1)(a) and (b), Florida Statutes, by injuring and continuing to injure animal, plant, and aquatic life and human health and by failing to acquire all necessary permits for their activities. DER contends that it is entitled to all remedies currently provided by law, including costs for investigating the alleged violations, and that whether or not Respondents are ultimately required to receive a permit or permits they must still meet water quality standards in state waters as required by Rule 17-4.28(1), Florida Administrative Code.
Respondents contend that:
Their activities are not within DER's dredge and fill and water pollution control construction or operating permit jurisdiction because:
DER and its predecessor agencies have made earlier contrary
findings;
Their rights have become vested by prior agency action and pursuant
to a determination by the Division
of State Planning under Sections 380.06(12) and 380.12, Florida Statutes;
Their construction activities involve swales, which are exempt
from DER's permitting jurisdiction pursuant to Section 403.813(2)(j), Florida Statutes;
Their construction activities are occurring in uplands, not submerged lands, and any affected water bodies
are exempt from DER's permitting jurisdiction as "isolated areas" pur- suant to Rule 17-4.28(g), Florida Administrative Code, "minimal lakes" pursuant to Rule 17-4.28(2)(d), Florida Administrative Code, and/or "intermittent water bodies" pursuant to Rule 17-4.28(2)(g), Florida Administrative Code; and
The construction of the improvements on Respondents' property does not
and will not violate any water quality or pollution control stan- dards.
DER is estopped and/or bound by prior inconsistent agency action, on which Respondents have detrimentally relied, from asserting its permitting jurisdiction over their activities;
DER's actions are impairments of Respondent's contracts with others in violation of the provisions of Article I, Section 10, of both the United States and Florida Constitutions; and
Respondents have not Violated the provisions of Section 403.161(1)(a) and (b), Florida Statutes, by causing pollution so as to harm human health or welfare, animal, plant, or aquatic life or property in failing to obtain the permits described above.
By prehearing stipulation, the parties agreed to have this matter considered on the evidence submitted at hearings held August 16 and 17, and September 14 and 26, 1979, before Judge Victor N. Cawthon of the Circuit Court of the Second Judicial Circuit in and for Leon County, Florida, in case No. 79- 1794, with the exception of testimony by and exhibits introduced through the testimony of Dr. Patrick McCaffrey. Dr. McCaffrey testified before the Hearing Officer on December 4 and 5, 1979. At final hearing before the Hearing Officer, DER introduced its exhibits numbered A through G, inclusive, and 1 through 6, inclusive, which had been received into evidence in the proceeding before Judge Cawthon referenced above. Respondents offered their exhibits numbered 1 through 18, and A through G, inclusive, which had been admitted into evidence before Judge Cawthon. Among these exhibits were the depositions of Gordon J. Pfersich, James Kearney, Douglas Jones, Roger Gallop, Warren G. Strahm, Stephen O. Peffer, John R. Maloy, Richard T. Rogers, Moseley Collins, Robert M. Riddle, Robert Lewis Birenbaum, and Patrick M. McCaffrey. In addition, Petitioner and Respondents stipulated that exhibits numbers 1 and 2 introduced into evidence in the proceeding before Judge Cawthon on behalf of the Division of Florida Land Sales and Condominiums were to be included in the record in this proceeding.
Further, at final hearing in this proceeding an index of exhibits introduced before Judge Cawthon was stipulated into the record and marked as Hearing Officer's exhibit No. 1, and the transcript of the proceeding before Judge Cawthon, in four (4) volumes, was marked and received into evidence as Hearing Officer's exhibits 2A, 2B, 2C and 2D. In proceedings before the hearing officer, DER submitted its exhibits numbers 7, 8, 10A, 11 and 12, each of which was received into evidence. Respondents submitted their exhibit C, which was received into evidence.
FINDINGS OF FACT
Respondent Communities Financial Corporation is a Florida corporation engaged in the subdivision and sale of real property. In 1971 CFC purchased approximately twenty-two sections, or 22 square miles, of real property ("the land") in Township 34 South, Range 33 East, Okeechobee County, Florida, which it proposed to sell as individual one-and-one-quarter (1-1/4) acre lots. The subsequent development of that land is the subject of this proceeding. Respondent Coquina Water Management District ("Coquina") was organized pursuant to Chapter 298, Florida Statutes, by judgment of the Circuit Court for Okeechobee County, Florida to perform drainage activities on the land.
The land which CFC purchased in 1971 was originally platted in 1912 in a grid system with roads, drainage canals, and ditches. Extensive drainage was required for use of the land because it was very flat and had a high water table. Approximately one-half of the land was subject to flooding. After it was originally platted it was utilized for cattle ranching with drainage ditches connecting the low areas to encourage runoff. Ten-acre tracts surrounded by dikes and two to three foot deep ditches were used for tomato farming. Such agricultural ditching covered approximately 15 square miles of the property. At one time a hotel was situated on a portion of the property. North-South and East-West roads and a 5,000-foot airstrip were constructed across the property. The East-West road along the South boundary of the property, which is now a state road, has an adjacent drainage ditch which received ranchland water runoff from property east of the land.
In 1971 and 1972 CFC registered the platted lots for sale with the Division of Florida Land Sales and Condominiums ("Land Sales") of the State of Florida Department of Business Regulation. In the normal course of compiling the documentation to be submitted for registration, CFC contacted several state regulatory agencies to determine whether such agencies required CFC to obtain permits for development of the property. CFC provided those agencies copies of its drainage plans, which included roads, swales, canals, and control structures. The State of Florida Department of Natural Resources ("DNR") stated that the construction of improvements as planned in the development would not be subject to that agency's jurisdiction for purposes of a dredge and/or fill permit. The State of Florida Department of Pollution Control ("DPC"), predecessor of DER, first stated in a letter of October 4, 1971, to Mr. Moseley Collins, who submitted a "plan of reclamation to DPC, that it had no regulatory responsibilities over the project:
In response to your request for comments this Department has conducted a preliminary review of the proposed plan. We have no basic objections to the overall plan of development and believe it could be platted as shown. Specific details as to drainage techniques will be reviewed at a latter [sic]
date.
It is brought to you [sic] attention that although we have no regulatory responsibili- ties in this area we will welcome the opportunity to review cross sections and details at a latter [sic] date. We thank you for the opportunity to review a project
of this magnitude at an early date. [Emphasis added.]
The DPC, in a letter of March 30, 1972, to Collins, also observed that:
This Department has conducted a review of the revised plan for the subject project and endorse the approach that you are contemplating in developing these areas. I have coordinated with other agencies and organizations and they concur with the approach. We would like to review the project at a future date to deter- mine the method of construction of the swales or greenways to move the water from one lake to another through the complete watershed area.
You and your client are to be commended on this approach. From the preliminary layout you can see the possibilities for the potential develop- ment of an area for residential usage that will retain a large percentage of the natural resources and minimize the downstream effect
on the overall watershed.
Please advise when you want to review the project in greater detail. [Emphasis added.]
In connection with the registration of the development, CFC submitted to Land Sales the above-referenced letters from DNR and DPC, detailed evidence of the proposed plan of development, and a public offering statement for use in solicitation of lot sales from the general public. Each offering statement contains several statements to the effect that "this is not a homesite subdivision." Land Sales approved use of the offering statement. In using it to solicit sales, CFC committed to the purchasers that it would complete the required road and drainage improvements by December 31, 1979.
CFC commenced sales of lots in the development in 1971. The Agreements for Deed approved by Land Sales and subsequently entered into by CFC with lot purchasers required CFC to deliver improved lots by December 31, 1979. Most of the land sales were made between 1971 and 1973. (6,412 lots were sold and 1,146 were conveyed by June 23, 1977.) Approximately eighty percent of the lots have been sold to date. Up to one-half of the approximately nine thousand lot purchasers hold legal title to their lots pursuant to deeds issued to them by CFC upon full payment.
CFC began construction of the promised improvements, consisting of roads and drainage, in 1972. At the present time approximately $1,000,000 of improvements have been completed and approximately $750,000 remain to be completed.
In 1973 or 1974, CFC and Coquina submitted plans for the surface water management system which CFC proposed to construct for the property to the South Florida Water Management District ("SFWMD"). The initial plan of development called for the construction of a road and canal system. At the request of SFWMD, the plan was subsequently changed to a road and swale system, and the configuration of one of the control structures was changed. The design changes resulted in more water retention on the property and the preservation of sensitive areas. After several years of analysis and review of the design plan, inspection of the project site, and a public hearing, SFWMD granted conceptual approval for the surface water management system to be constructed by CFC in 1977. The conceptual approval was partially based on the SFWMD staff's assessment than pollutant loadings from the property after development would be less than existing loadings, and that adverse water quality impacts as a result of the proposed development were unlikely.
The 1977 SFWMD conceptual approval of the drainage plan for the development was followed by the issuance of a construction permit for the westernmost seven sections on March 15, 1979. Throughout this period construction was continuing. The drainage system as approved consists of grassed lot, roadside, and collector "swales" together with a retention area comprised of natural wetlands in the area of the property known as Ash Slough. The volume of water leaving the property after development will be the same as that leaving the property before development. The drainage conveyances are designed with gradually sloping sides, vary to widths of over 100 feet for the larger collector conveyances, and have depths varying from 2 feet for the "lateral" swales to 3 feet for the larger collector swales. The groundwater table in the area of the project site varies from zero to approximately 30 inches below ground surface. The swales were designed at the request of SFWMD in lieu of the canals proposed within the same easements in the original drainage plan for the development. It appears from the evidence that these drainage conveyances are designed so as to contain contiguous areas of standing or flowing water only following the occurrence of rainfall or flooding. Although some testimony indicated that these conveyances contained contiguous areas of standing water, these observations were made either at isolated times during the progress of construction or soon after a major hurricane passed through the area. Since the purpose of the "swales" is to facilitate drainage from the property, it would appear necessary from an engineering viewpoint to
allow some period of time after construction of the swales for them to stabilize to make a valid determination that they will not function as designed.
Accordingly, it would not appear unusual that the swales contain areas of standing water until they have been given ample opportunity to stabilize. On the basis of the record in this proceeding, a determination simply cannot be made at this point in time that the swales will not function as designed.
Following DPC's initial determination of no jurisdiction in 1971 and 1972, it and DER, its successor agency, were not involved with the project until 1974, when DPC received an inquiry concerning land sales matters from the U.S. Department of Housing and Urban Development. In 1975, a DER staff member conducted a critical review of the Project and filed an internal memorandum faulting the project on the same essential grounds that are the basis for the Notice of Violation issued June 1, 1979. DER representatives participated in various SFWMD meetings from 1975 to 1977 when the conceptual approval of the drainage plan for the project was discussed. During this period, SFWMD forwarded copies of various materials dealing with the project to DER. Further, a DER representative attended the public hearing on September 8, 1977, when the conceptual approval of the project was granted by SFWMD.
Respondents' first indication of DER's renewed interest in the development was a letter from DER Subdistrict Manager Warren Strahm to Robert Birenbaum on June 23, 1977. This letter stated, in part, that:
The above referenced application/staff report has been supplied to this office by the South Florida Water Management District (SFWMD).
It has been determined that your project is subject to Chapters 403 and/or 253, Florida Statutes.
A review of drainage plans by our staff indicates the referenced project will comply with Chapter 403, Florida Statutes permit requirements for pollutant discharge. Since these plans have
been incorporated into the SFWMD permit, no discharge permit or monitoring in addition to SFWMD permit requirement will be required by the Department at this time.
It appears, however, that the referenced project may fall within the permitting requirements set forth in Chapter 17-4, Florida Administrative Code. Pursuant to F.A.C. 17-4.28(2) should any excavation take place in submerged lands or within the transitional zone of submerged lands, dredge and fill permits will be required by this Department prior to commencement of said activi- ties. [Emphasis added.]
Please contact Mr. Roger G. Gallop, at the Fort Pierce Branch Office, telephone (305) 464-8525, at your convenience in order to discuss the need for a construction dredge and fill permit. Thank you for your cooperation.
Three months later, in a letter from James Brindell to Coquina, Respondents were notified that:
A review, by this agency, of the plans associated with your Surface Water Management Permit Applica- tion No. 02187-A indicates that permits will be required from the Department of Environmental Regulation pursuant to Chapter 403 and/or Chapter 253, Florida Statutes for the construction con- templated. Specifically, permits will be required for the construction and operation of discharge structures as well as for any dredging and/or filling in the waters of the state including the submerged lands and transitional zone of these submerged lands. Additionally, certification pursuant to section 401 of F.L. 92-500 may be required.
Formal or conceptual appova1 of your project by the South Florida Water Management District
does not imply that your project will satisfy the requirements of this agency.
Please contact Mr. Warren G. Strahm, Subdistrict Manager, 3301 Gun Club Road, West Palm Beach, phone 305/689-5800, at your earliest convenience concerning application for these permits. (Emphasis added).
This letter was followed one-and-one-half months later by a "Letter of Notice" from DER advising Respondents that DER had reason to believe the project was in violation of Chapter 403, Florida Statutes, and requesting CFC to cease any further work. Throughout this series of correspondence, CFC and Coquina maintained that DER did not have permit jurisdiction. This position was reasserted in a letter of November 1, 1977, from Emerson Allsworth, counsel for Coquina, to DER. During this period, numerous meetings were held involving representatives of Respondents and DER in which Respondents were urged by DER to apply for permits. Respondents failed to do so, and, on June 1, 1979, DER issued its Notice of Violation.
Natural drainage from the property occurs southwestward into an area known as Ash Slough; southward from the central portion of the property into Gore Slough; and from the northeast section of the property into Company Slough. The headwaters of both Ash Slough and Gore Slough originate on the project site and periodically extend off Respondents' property to the south to join the waters of Chandler Slough. Chandler Slough, in turn, eventually empties into Lake Okeechobee 11 to 15 miles from the property. Company Slough also extends off the project site eastward onto the lands of others. There is, however, insufficient evidence in this record from which to conclude that Company Slough regularly exchanges flow with any other body of water.
A "slough", as that term is used in the context of this proceeding, is a surface conveyance pathway for waters whose lateral boundaries are not as
well-defined as a stream bed, and whose rate of flow is relatively slow. Due to the flat topography of the project site, Ash, Gore and Company Sloughs have imprecise boundaries, and their rates of flow appear to range at various times from very slow to nonexistent.
By Cease and Desist Order dated March 28, 1978, the United States Army Corps of Engineers required Respondents to halt any further work then being conducted on the project, asserting that work in progress at that time was being conducted in waters of the United States, including adjacent wetlands, without first having acquired a permit from the Corps of Engineers. This Order provided, in part, that:
Section 301(a) of the [Federal Water Pollution Control Act Amendments of 1972] makes it unlawful to discharge dredged or fill material into waters of the United States unless author- ized by a Section 404 permit issued by the Secretary of the Army acting through the Chief of Engineers. Section 10 of the River and Harbor Act of 1899 prohibits the excavation or depositing of material or erecting any struc- tures in navigable waters of the United States unless authorized by a Department of the Army permit. The work referred to in the paragraph
above is deemed to have occurred in waters subject to these statutory requirements without the requisite permits and is considered unlaw- ful by this office.
Prior to 25 July, the Corps of Engineers limited the requirement for Section 404 type permits to areas either below the mean high water line in tidal areas or below the ordinary high water line of rivers and streams which either now sup- port, had supported, or were capable of supporting interstate commerce. However, on 25 July 1975, the regulatory juris- diction of the District was expanded to all waters of the United States and adjacent wetlands. [Emphasis add.]
Subsequently, however, by memorandum dated May 17, 1978, the United States Army Corps of Engineers determined that it did not have jurisdiction over Respondent's activities for the following reasons:
In the northeast and eastern portion of the tract the flagponds and saw grass prairies are isolated with no discernible drainage sloughs or patterns.
The other area of concern, in the south west sector, contains isolated ponds and an old man-made drainage canal that comprises shallow, intermittent potholes above the natural headwaters of Ash and Gore Sloughs.
There was no recognizable flow in any part of the canal and the point at which average
annual flow appear to be 5 c.f.s. or greater is located to the south a considerable distance from the subject tract.
The project, as proposed, will not destroy or threaten any endangered species or their habitat nor adversely impact water quality
of the ultimate receiving waters in Kissimmee River and Lake Okeechobee.
In 1971, the Soil Conservation Service of the United States Department of Agriculture classified Ash and Gore Sloughs, as well as Fish Slough, to which Company Slough is alleged by DER to connect, as "intermittent". This determination is supported by hydrological data compiled by the South Florida Water Management District which shows no net flow in Chandler Slough for as many as six months in 1975 and four months in 1976. In the South Florida Water Management District report concerning flow patterns in Chandler Slough, it was pointed out that:
The climate in this portion of Florida is subtropical with warm summers and moderate winters. Rainfall is seasonal
with about 75 percent of the total occur- ring in a well-defined wet season, from May to October. This distribution of
rainfall results in considerable surface water flow during part of the year.
During the late winter and early spring many of the creeks and sloughs, such as Chandler Slough, become completely dry. [Emphasis added.]
In addition, testimony in the record in this proceeding establishes that on at least one occasion during the time in which construction on the property was being conducted, Company Slough was completely dry.
There is no data in the record quantifying the annual flow of water from Ash and Gore Sloughs into Chandler Slough. Further, there is no evidence concerning the periodicity of any such water exchanges between Ash and Gore Sloughs and Chandler Slough. As indicated above, the evidence establishes that Chandler Slough, which is the larger collector slough into which both Ash and Gore sloughs allegedly discharge, periodically becomes "completely dry." DER witnesses testified that they had observed contiguous areas of standing water in Ash, Gore and Company Sloughs during visits to the site, and had also determined the existence of an exchange of waters between Ash, Gore and Company Sloughs with other sloughs connecting to Chandler Slough by analyzing aerial photographs. However, those aerial photographs were not made a part of the record in this proceeding. Additionally, the relatively few visits to the site by these witnesses, in the absence of validly derived data establishing pertinent flow rates, is insufficient to establish "normal" conditions in the area. This is especially true in light of the aforementioned countervailing determinations based upon data compiled by the United States Army Corps of Engineers, the United States Department of Agriculture and the South Florida Water Management District.
The evidence shows that some of the types of vegetation listed in DER's vegetation indices by which DER determines whether areas are "submerged lands" or "transitional zones" of submerged lands have been found on the project site. Among the types of vegetation observed in and around Ash, Gore and Company Sloughs are maidencane, water willow, pickerelweed, button bush, saw grass and St. John's wort. Although these species were detected in some locations by visual observation, apparently no attempt was made to quantify these plants vis-a-vis other vegetative types, nor were any physical measurements made to locate their boundaries. In a report dated August 26, 1977, the SFWMD attempted to identify the acreage, but not boundaries, of wetlands on the development site. The findings of that report show that approximately 2,014 of 14,080 acres, or 14.3 percent of the total site, contains wetlands vegetation. The report also indicates that the wetlands vegetation is scattered in different locations over the site, with the median occurrence being
68 acres per 640-acre section.
DER presented quantified evidence showing turbidity readings in the Ash Slough area of the development during the construction of swales in August, 1979, of 325 Jackson Units and November and December, 1979, of 155 and 176 Jackson Units, respectively. It should be noted that these readings were performed after the filing of the Notice of Violation herein. Although samples of August 6, 1979, were taken without a background sample in Ash Slough, the evidence establishes that background readings in Ash Slough were less than 25 Jackson Units. The evidence clearly establishes that DER's water quality sampling and analysis were conducted in accordance with applicable requirements of Chapter 17, Florida Administrative Code. The evidence establishes that these readings are attributable to construction of swales and control structures and
would not be expected to continue after completion of construction. There is no evidence to show the duration of the discharges resulting in these turbidity readings, nor is there any showing of actual damage to animal, plant or aquatic life.
Petitioner and Respondent have submitted proposed findings of fact in this proceeding. To the extent that those findings of fact are not adopted in this Recommended Order, they have been specifically rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Since DER is the petitioning party in this proceeding, it bears the burden of proving by a preponderance of the evidence each of the allegations contained in the Notice of Violation. Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (3rd DCA Fla. 1976)
In Count I of the Notice of Violation, DER alleges that Respondents are conducting dredge and fill operations without a permit in Company Slough, which is alleged by DER to be ". . . a natural tributary of a stream", and "
. . . a submerged land and transitional zone of a submerged land of waters of the state . . ." as those terms are defined in Rule 17-4.02(17) and (19), Florida Administrative Code. As a result, DER further alleges that Respondent's activities violate Section 403.161(1)(b), Florida Statutes, and Rule 17-4.28, Florida Administrative Code.
Section 403.161(1)(b), Florida Statutes, provides that a violation of Chapter 403, Florida Statutes occurs in the event of failure
. . . to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.
Rule 17-4.28(2), Florida Administrative Code, insofar as here pertinent, provides that:
Those dredging and/or filling activities which are to be conducted in or connected directly or via an excavated water body or series of exca- vated water bodies to the following categories of waters of the State (including the submerged lands of such waters and transitional zone of a submerged land) shall obtain a permit from the department prior to being undertaken:
rivers and natural tributaries there to;
streams and natural tributaries, thereto;
bays, bayous, sounds, estuaries, and natural tributaries thereto;
natural lakes, except those owned entirely
by one person; and except for lakes that become dry each year and are without standing water together with lakes of no more than ten (10) acres of water area at a maximum average depth of two (2) feet existing throughout the year;
(g) natural tributaries do not include inter- mittant [sic] natural water courses which act as tributaries only following the occurence [sic] of rainfall and which normally do not contain con- tigous [sic] areas of standing water. [Emphasis added.]
Rule 17-4.02(17), Florida Administrative Code, defines "submerged lands" as:
... those lands covered by the categories of waters listed in Section 17-4.28, Florida Administrative Code, including those lands contiguous to said waters where any of the following species, or any combination of such species, constitute the dominant plant community ...
Among the list of fresh water plant species contained in this rule are maiden cane, saw grass, water willow and pickerelweed.
Rule 17-4.02(19), Florida Administrative Code, defines "transitional zone of a submerged land" as:
... that area of land between a submerged land as defined in subsection (17) above and an upland defined in subsection (18) above, and shall consist of the first fifty (50) feet landward of a line defined by the landward limit of a submerged land, or the waterward quarter (1/4) of the area between a submerged land and an upland, whichever is greater, and upon which any of the following vegetational species, or combination of such species, con- stitute the dominant plant community ....
Among the list of fresh water plant species contained in this rule are button bush and St. John's wort.
In order for DER dredge and fill permitting jurisdiction to attach, DER must show by a preponderance of the evidence that the affected waters fall among those enumerated in Rule 17-4.28(2), Florida Administrative Code, or that, in the case of "submerged lands" and their "transitional zones", those lands are either covered by or are "contiguous" to such waters. Since "contiguous" is not defined in the pertinent statutes or rules, that term is construed, for the purpose of this proceeding, to mean " . . . being in actual contact:
touching along a boundary or at a point . . ." Webster's New Collegiate Dictionary, G. & C. Merriam Company, 1974.
In the Notice of Violation, DER alleges that Company Slough constitutes "waters of the state" because it is a "natural tributary of a stream." In Rule 17-4.28(2)(g), Florida Administrative Code, DER has chosen to
negatively define "natural tributary" by excepting from that definition ". . . intermittant [sic] natural water courses which act as tributaries only following the occurrence of rainfall and which normally do not contain contiguous [sic] areas of standing water." Accordingly, in the context of a proceeding allegedly involving a violation of this rule, it is incumbent upon DER to prove that a water is a "natural tributary" by showing that it acts as a tributary at times other than following the occurrence of rainfall and that it normally contains contiguous areas of standing water. Such a showing requires more than an occasional isolated eyewitness observation of the water body in question. DER has failed to establish by a preponderance of the evidence in this proceeding that Company Slough acts as a "natural tributary" to any other water body. In fact, the record in this proceeding is devoid of any competent showing of an actual exchange of waters between Company Slough and any other portion of the Chandler Slough watershed. In addition, there is no evidence contained in this record upon which to form any conclusions with regard to "normal" conditions in Company Slough. Accordingly, Count I of the Notice of Violation should be dismissed.
In Count II of the Notice of Violation, DER alleges that Respondents are conducting dredge and fill operations in Ash and Gore Sloughs, which are alleged to be "waters of the state" in that they " . . . are shallow free- running streams which flow off Respondents' property and are connected to Chandler Creek which in turn empties its waters into the Kissimmee River . . .
." DER also alleges that "Chandler Creek" and the Kissimmee River are "waters of the state." Finally, DER also alleges that Respondents' dredge and fill activities will also be conducted in "submerged lands of waters of the state" and their "transitional zones" as those terms are defined in Rule 17-4.02(17) and (19), Florida Administrative Code. As a result, DER alleges that Respondents' activities violate Rule 17-4.28, Florida Administrative Code, and Section 403.161(1)(b), Florida Statutes, the pertinent provisions of which are set forth above, as well as Section 403.087, Florida Statutes, which provides, in pertinent part, that "[n]o stationary installation which will reasonably be expected to be a source of . . . 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.
. . ."
As indicated above, DER bears the burden of proving in this proceeding that Ash and Gore Sloughs are "waters of the state", "submerged lands of waters of the state", or "transitional zones" of such submerged lands. DER has failed to establish by a preponderance of the evidence that Ash and Gore Sloughs are either "streams" or "natural tributaries" thereto. To the contrary, the clear inference from the record is that Ash and Gore Sloughs are, at most, "intermittent", and DER has failed to demonstrate through competent testimony that Ash and Gore Sloughs act as tributaries at times other than following the occurrence of rainfall and that they normally contain contiguous areas of standing water. Accordingly, Count II of the Notice of Violation should be dismissed.
In Count III of the Notice of Violation, DER alleges that Respondents are constructing "stationary installations" in the form of "drainage ditches" which "may reasonably be expected to be a source of water pollution" in Ash and Gore Sloughs, which DER contends are "waters of the state". DER alleges that these activities constitute violations of Sections 403.161(1)(b) and 403.087, Florida Statutes, the pertinent provisions of which are set forth above, as well as Section 403.088(1), Florida Statutes, which provides, in pertinent part, that:
No person, without written authorization of the department, shall discharge into waters within the state any waste which, by itself or
in combination with the wastes of other sources, reduces the quality of the receiving waters below the classification established for them. [Emphasis added].
Section 403.031(3), Florida Statutes, provides that: "Waters" shall include, but not be limited
to rivers, lakes, streams, springs, impound- ments and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface or underground. Waters owned entirely by one person other than the state are included only in regard to possible dis- charge on other property or water. Under- ground waters include, but are not limited to, all underground waters passing through pores of rock or soils or flowing through
in channels whether man-made or natural.
It is important to note that Count III of the Notice of Violation does not charge Respondents with an actual violation of state water quality standards. DER alleged in Count III only that Respondents are constructing " .
. .without a construction permit, . . . drainage ditches that are or reasonably may be expected to cause Water pollution in waters of the state."
Although Sections 403.161(1)(b) and 403.087, Florida Statutes, make it unlawful to construct a "stationary installation" without a currently valid DER permit, Section 403.813(2)(j), Florida Statutes, specifically exempts the "construction and maintenance of swales" from Chapter 403 permitting requirements. "Swale" is defined in Section 403.803(11), Florida Statutes, as .
. . a man-made trench which only contains contiguous areas of standing or flowing water following the occurrence of rainfall or flooding." The only competent testimony of record in this proceeding establishes that Respondents' drainage conveyances are designed to operate according to the above-mentioned definition, and that they will function as designed. Accordingly, those drainage conveyances are determined, as a matter of law, to constitute "swales", and are, therefore exempt from the permitting requirements of Chapter 403, Florida Statutes.
As indicated in the Findings of Fact section of this Recommended Order, DER submitted competent evidence of violations of state water quality standards relating to turbidity contained in Rule 17-3.05(2)(d), Florida Administrative Code. It is clear from the record that these violations occurred in "waters" as that term is defined in Section 403.031(3), Florida Statutes. These violations occurred, however, in August, November and December, 1979, and there are no allegations in the Notice of Violation charging Respondents with these violations. At no time has DER requested an opportunity to amend the Notice of Violation to assert facts arising from its water quality testing performed after this proceeding was instituted.
Section 403.121(2), Florida Statutes, provides the department the following administrative remedies for violations of Chapter 403, Florida Statutes:
The department may institute an administrative proceeding to establish liability and to recover damages for any injury to the air, waters, or property, including animal, plant, or aquatic life, of the state caused by any violation.
The board may order that the violator pay a specified sum as damages to the state. Judgment for the amount of damages determined by the board may be entered in any court having jurisdiction thereof and may be enforced as any other judgment.
If the department has reason to believe a violation has occurred, it may institute an administrative proceeding to order the prevention, abatement,
or control of the conditions creating the violation or other appropriate cor- rective action.
An administrative proceeding shall be instituted by the department's serving of a written notice of violation upon the alleged violator by certified mail. The notice shall specify the provision of the law, rule, regulation, permit, certification, or order of the department alleged to be violated and the facts alleged to constitute a vio- lation thereof. An order for corrective action may be included with the notice.
However, no order shall become effective until after service and an administrative hearing, if requested within 20 days after service. Failure to request an administrative hearing within this time period shall constitute a waiver thereof.
Nothing herein shall be construed as preventing any other legal or adminis- trative action in accordance with law. [Emphasis added]
All of the factual allegations of Count III of the Notice of Violation relate to potential discharges from Respondents' property, and the gist of that count appears to be that Respondents are constructing drainage ditches without a construction permit. As indicated above, since Respondents are constructing "swales", no Chapter 403 permit is required, so that the factual allegations of Count III do not establish a violation of either Sections 403.161(1)(b) or 403.087, Florida Statutes. However, notwithstanding the fact that a permit is not required, a discharge can constitute a violation of Section 403.088, Florida Statutes so long as it has actually occurred, and has been demonstrated to violate permissible parameters contained in Chapter 17-3, Florida Administrative Code. In that event, DER may properly pursue a notice of violation, so long as
that notice sets forth the facts constituting the violation and alleges that those facts constitute a violation of Section 403.088, Florida Statutes and the appropriate sections of Chapter 17-3, Florida Administrative Code. That has not been done in this proceeding. Respondents were not charged with an actual violation of Section 403.088, Florida Statutes or Chapter 17-3, Florida Administrative Code, although the evidence would appear to support such a charge. Accordingly, Count III of the Notice of Violation should be dismissed.
In Count IV of the Notice of Violation, DER seeks to recover its costs and expenses incurred in investigating facts leading to the institution of this proceeding. No evidence having been offered on these costs and expenses, and in light of the foregoing findings and conclusions, Count IV should be dismissed.
RECOMMENDED ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:
That a Final Order be entered by the State of Florida, Department of Environmental Regulation, dismissing the Notice of Violation in its entirety.
RECOMMENDED this 14th day of March, 1980, in Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
COPIES FURNISHED:
Randall E. Denker, Esquire Assistant General Counsel State of Florida
Department of Environmental Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Gary P. Sams, Esquire
HOPPING, BOYD, GREEN and SAMS, P.A.
Post Office Box 6526 Tallahassee, Florida 32301
Dana G. Bradford, II, Esquire MAHONEY, HADLOW and ADAMS
Post Office Box 4099 Jacksonville, Florida 32201
| Issue Date | Proceedings |
|---|---|
| May 14, 1980 | Final Order filed. |
| Mar. 14, 1980 | Recommended Order sent out. CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| May 10, 1980 | Agency Final Order | |
| Mar. 14, 1980 | Recommended Order | Petitioner failed to properly frame its complaint to establish Respondents were in violation of the statute. |
