STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES M. BROWN, )

)

Petitioner, )

)

v. ) CASE NO. 80-1172

) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, P. Michael Ruff, held a hearing in this cause on July 8,1981, in Key West, Monroe County, Florida.

APPEARANCES

For Petitioner: David Paul Horan, Esquire

513 Whitehead Street Key West, Florida 33040

For Respondent: H. Ray Allen, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

On June 9, 1980, the Department of Environmental Regulation (Department) issued a Notice of Intent to Deny the Petitioner's application for an "after the fact" permit for dredge and fill activity. The Notice of Intent to Deny announced the Department's position that the Petitioner's proposal to deposit (after the fact) approximately 374 cubic yards of oolite limestone fill on pre- existing roadways in Monroe County, adjacent to the Torch Ramrod Channel, would destroy mangrove wetlands and is in fact already causing such destruction.

A previous proceeding was conducted between these parties in DOAH Case No. 78-1234 in which a Final Order was entered on September 14, 1979, which adopted in toto the Hearing Officer's Order in that case of Department of Environmental Regulation vs. James Brown, d/b/a Ramrod Development Company. the findings in that Recommended Order and Final Order are adopted in their entirety in this case, and the record in that case was stipulated into evidence in this proceeding by the parties. The Hearing Officer in the earlier proceeding found that between August 1, 1976, and January 27, 1977, the Petitioner placed or caused to be placed crushed limerock fill in submerged lands in or adjacent to Torch Ramrod Channel on the east edge of and adjacent to Lot 12 of Block 2, Ramrod Shores Marina Section, Section 29, Township 66 South, Range 29 east, Ramrod Key and Monroe County, Florida.

The Hearing Officer found that the filling took place in the waters of the State as defined in Section 403.031(3), Florida Statutes, and the submerged lands or transitional zone of submerged lands of such waters, as defined in Section 1704.02, Florida Administrative Code. The Hearing Officer found that activity was conducted without the permit required by Sections 17-4.03 and 17- 4.28(2)(c), Florida Administrative Code, as well as Section 403.087(1), Florida Statutes. He found that activity resulted in the alteration of the chemical, physical and biological integrity of the waters of the State by destruction of submerged and transitional species within the landward extent of the State waters involved as well as by the discharge of fill on to submerged and transitional biota in waters of the State.

The Hearing Officer and the Department in its Final Order required the Respondent to submit a proposed restoration plan and compliance schedule to the Department for approval or submit an application for a permit for the subject filling project. The Respondent, the Petitioner herein, chose to submit an application for a permit, hence the advent of this proceeding.

The Petitioner called no witnesses in this proceeding, relying on cross- examination and legal argument as well as the record in the prior case. The Respondent called four witnesses and introduced six exhibits into evidence. The Petitioner introduced one exhibit and joint exhibits one and two were introduced by both parties. The Respondent's witnesses, John Meyer, an environmental specialist, biologist and field appraiser, Mr. Curtis Kurer, a biologist with the United States Army Corp. of Engineer, Mr. Richard Helbling, a biology supervisor with the Department and Mr. Jerome Craft, an environmental specialist with the Department, all testified in support of the Department and all were accepted as expert witnesses, respectively, in the areas of biology, marine biology, the environmental impacts of dredge and fill projects and in particularly their impacts on water quality.

All proposed findings, conclusions and supporting arguments of the parties have been considered. To the extent that the proposed findings and conclusions submitted by the parties, and the arguments made by them, are in accordance with the findings, conclusions and views stated herein, they have been accepted, and to the extent such proposed findings and conclusions of the parties, and such arguments made by the parties are inconsistent therewith, they have been rejected. Certain proposed findings and conclusions have been omitted as not relevant or as not necessary to a proper determination of the material issues presented. To the extent the testimony of various witnesses is not in accord with the findings herein it is not credited.

FINDINGS OF FACT

1. The Petitioner, James M. Brown, d/b/a Ramrod Development Company, is seeking to develop as residential property, the subject land on Ramrod Key, Monroe County, Florida, adjacent to the Torch Ramrod Channel. The specific filling project which is the subject of this hearing involves Mariposa Road and Angelfish Road which lie within the property described above on Ramrod Key and which appear on a subdivision plat filed in the official records of Monroe County in 1960 and on revisions of that plat, one of which was filed in 1963 and the more recent of which was filed in 1969. Since February 9, 1960, Monroe County has been the owner of that roadway known as Mariposa Road located on Ramrod Key and which is depicted on the subject plat of Ramrod Shores, Marina Section.

2. Since the county became the owner of that roadway in 1960, through the date of the hearing, it has never given authorization or approval for any person, firm or corporation to place fill material or any other matter upon that dedicated roadway (which includes a section of Angelfish Road as well as Mariposa Road).

   
   

3. Monroe County, Florida, has given the Department of Environmental Regulation authorization to require removal of fill material placed on any dedicated county roadway in violation of any law or administrative rule of the Department. On January 27, 1977, the Department personnel visited the subject site and determined dredge and fill activities had indeed taken place on a tidal Red Mangrove fringe area on the shore line of Torch Ramrod Channel without an appropriate permit issued by the Department. The Petitioner, James M. Brown, in sworn testimony, in the earlier proceeding here involved (DOAH Case No. 78- 1234), admitted that since 1969 he has, on numerous occasions, placed fill material in the Mariposa and Angelfish Road areas, which are the subject matter of this proceeding. He also admitted doing so without a permit issued by the Department of Environmental Regulation (See testimony of Brown in DOAH Case No. 77-1409, Atwater vs. Department of Environmental Regulation).

   
   

4. In the earlier proceeding involving the Petitioner, DOAH Case No. 78- 1234, Mr. Sayward Wing described the placing of fill on the northern end of Mariposa Road by Monroe County, but this area is not the area now in controversy, which is on the southern part of Mariposa Road from its intersection with Angelfish Road south to Old State Road 4A. Witness Wing in that proceeding did not observe the county or its agents or employees place any fill in the subject area of Mariposa or Angelfish Road.

   
   

5. The fill placed on Mariposa Road, between Old State Road 4A and the intersection with Angelfish Road, by the Petitioner, contained approximately 96 cubic yards of fill as of January 27, 1977. The fill placed on Angelfish Road from the Mariposa Road intersection westerly approximately 50 feet, contained approximately 178 cubic yards of fill as of that same date.

   
   

6. The area west of Mariposa Road where the dredge and fill work was performed is predominantly vegetated by red mangroves (rhizophora mangle). The red mangroves are then superseded by white mangroves (laguncularia racemosa), black mangroves (avicennia germinans), as well as transitional vegetation. The red mangroves are the dominant vegetative species in the area. These species are found in the vegetative index which defines the Department's jurisdiction in Section 17-4.02, Florida Administrative Code. Witnesses Meyer and Kurer observed large numbers of small fish, predominantly gambusia affinis, in the inundated mangrove area lying on the west side of Mariposa Road. A fringe of red mangroves 50 to 80 feet wide vegetates the area east of Mariposa Road, along the Torch Ramrod Channel shoreline. The sandy mud intertidal and shallow subtidal water bottoms in this area are vegetated by benthic algae and sea grasses. The red mangroves are also the dominant species in this area. Benthic algae (halimeda sp., penicillus sp., gracellaria sp.) and sea grasses (thallassia testudinum and halodule wrightii) are also found in the vegetative index contained in Section 17-4.02, Florida Administrative Code, which delineates the Department's jurisdiction over State waters. The sampling and observations conducted by witnesses Kurer and Meyer in this area yielded silver side anchovies, mosquito fish, killifish, lane snapper, toadfish, needlefish, blennies, barracuda, various juvenile fish species, stonecrabs, amphipods, blue crabs, pink shrimp, isopods, nemerteans, polychaetes, tunicates, gastropods, and bivalves.

7. The mangroves described, as well as associated wetland vegetation found in the area, provide filtration of sediments and nutrients contained in stormwater run-off from adjacent upland areas, as well as from tidal flows.

   This filtering process is essential in maintaining water quality in the adjacent open bay estuarine or marine system. The nutrients in the tidal waters as well as run-off waters are stockpiled in the sediments retained by the mangrove roots and are transformed into vegetative leaf matter by the mangroves as they live and grow. The extensive root system of the mangroves and their associated vegetation also provides stabilization of estuarine shoreline sediments and attenuation of storm-generated tides. Mangrove wetlands provide unique and irreplaceable habitats for a wide variety of marine as well as upland wildlife species.

   
   

8. The Petitioner's activities, conducted without the appropriate approval and permit, have resulted in the alteration of the chemical, physical and biological integrity of State waters in the area of Mariposa and Angelfish Roads by the destruction of wetlands which provide food and habitat for wildlife, and which provide a filtrative and assimilative capacity to remove nutrients and other pollutants from the adjacent bay waters. the discharge of fill on to the mangrove areas, in waters of the State, has resulted in harm and injury to the biological community that existed there before the activity was completed. Specifically, as the testimony of Mr. Helbling (a biologist and water quality expert) establishes, the mangrove community to the east of Mariposa Road was shown not to be in a stressed condition in 1977 or at the time of the hearing. Mr. Helbling's testimony also establishes, however, that the mangrove system to the west of Mariposa Road, in effect inland from the filled portion of the road, is now in a stressed condition as manifested by mangrove trees in this area which area dead, or in the process of dying. This stress is caused primarily by the fact that the waters in the mangrove system to the west of Mariposa Road are impounded by the fill and no longer experience tidal flow or exchange daily. Therefore, being impounded, they are becoming more and more saline through the process of evaporation, to the extent that the mangrove trees are being poisoned. The mangrove tree community was not in this stressed condition in 1977 when this witness first observed it, but is at the present time. The primary reason for the imminent loss of this mangrove community is thus due to Mariposa Road being filled to such a level that there is no longer any tidal exchange of water with Torch Ramrod Channel.

   
   

9. Witness Kurer established that the proposed plan of restoration set forth in the Department's exhibit two in Case No. 78-1234 and which has been adopted and admitted into evidence herein, would constitute an acceptable resolution of the dispute at bar. Removal of the fill would allow tidal exchange across Mariposa and Angelfish Roads and allow the mangrove system to restore itself and contribute to the protection and enhancement of the productive and valuable marine resource system in the adjacent bay area.

   
   

10. Thus, the discharge of fill on to the mangrove areas involved herein which is within waters of the State, has resulted in harm and injury to that biological community which existed there before the activity was commenced and completed. The quality of waters in the Florida Keys is directly related to the degree of shoreline development by activity such as that undertaken by the Petitioner. The greater the degree of shoreline alteration, then the greater the degree of deterioration in water quality and the greater damage to biological productivity. The mangroves, in addition to their valuable filtrative function, also contribute leaf or detrital matter to the surrounding State waters and estuarine system in the form of decayed leaf litter. This organic component forms the basis of the marine food chain and is used directly

    for food by a variety of marine organisms, including small fish. A variety of important commercial and sports fish species feed directly on the mangrove detritus or on those fish or other forms of marine life which themselves feed on the detrital matter. Consequently, the destruction of the mangroves contributes directly to the deterioration of water quality through the loss of their filtrative function, as well as to the deterioration of an economically and biologically important sports and commercial fishery. Consequently, the restoration plan proposed by the Department is more of a desirable alternative than leaving the fill in place, in that it would restore the mangrove vegetation which provides the filtrative, assimilative functions in removing nutrients and other pollutants, and also provides food and habitat for fish and wildlife. The Petitioner's activities continue to be a source of pollution which was created without an appropriate and valid permit issued by the Department.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57(1) and 120.60, Florida Statutes.

    
    

12. The area filled by the Petitioner is characterized by a dominance of vegetational species listed in Section 17-4.02(17), Florida Administrative Code, and is contiguous, adjacent and directly connected to Torch Ramrod Channel. The area, therefore, was within the landward extent of waters of the State and under the dredge and fill permitting jurisdiction of the Department. See Section 17- 4.28, Florida Administrative Code, and Section 403.031(3), Florida Statutes.

    
    

13. The Petitioner's activity was undertaken without an appropriate and valid permit as required by Section 17-4.03 and 17-4.28(2), Florida Administrative Code, as well as Section 403.087(1), Florida Statutes, and in violation of Section 403.161(1)(b), Florida Statutes.

    
    

14. Section 403.161(1)(a) and (b) provide as follows:

    
    

    * * *

    1. To cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property.

    2. 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, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.

       
       

       The Petitioner's filling resulted in the alteration of the chemical, physical and biological integrity of waters of the State by the destruction of wetlands which provide food and habitat for wildlife and which filter deleterious substances from upland run-off. This activity has also resulted in harm and injury to animal, plant and aquatic life. Thus, the Petitioner has violated Section 403.161(1)(a), Florida Statutes.

       
       

15. Section 17-4.28(3), Florida Administrative Code, in dealing with standards for issuing or denying permits provides:

    The applicant for a dredge and/or fill permit or a federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurance to the department that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. . . .

    
    

    The Petitioner herein has not met its affirmative burden of showing reasonable assurance that the activity involved in the filling operation will not cause pollution or violations of water quality requirements of Chapter 17-3, Florida Administrative Code, in contravention of the above authority and thus has not met its burden of showing its entitlement to a license. The "after the fact" permit should, therefore, be denied. See Section 17-4.07, Section 28-6.08 and 17-1.59, Florida Administrative Code; Bob Graham, et al., vs Estuary Properties, Inc., Case No. 58,485 (Fla. S.Ct. April 16, 1981), and Florida Department of Transportation vs. J. W. C., Inc., and Department of Environmental Regulation,

    396 So.2d 778 (Fla. 1st DCA 1981). The Department on the other hand has demonstrated by competent and substantial evidence that a violation of the State statutes, rules and regulations regarding pollution and harmful alteration of the chemical, physical and biological integrity of State waters has occurred and that restoration of the illegal fill site would be an appropriate measure.

    
    

16. The issue sought to be raised by the Petitioner concerning the status of title of the subject property on which the filling operation occurred and which it affected is irrelevant. The ownership of the property does not affect the regulatory authority of the Department over the filling operation which the Petitioner performed. Section 403.187, Florida Statutes, which provides legislative authorization for the determination of the natural landward extent of waters of the State for regulatory purposes (specifically the vegetative index of Section 17-4.02(17) and (19), Florida Administrative Code), provides as follows:

    
    

    1. It is recognized that the levels of the waters of the state naturally rise and fall, depending upon tides and other hydrological, meteorological, and geological circumstances and features. The natural rise and fall of the waters is essential to good water quality, but often makes it difficult to determine the natural landward extent of the waters. Therefore, it is the intent of the Legislature that the Depart- ment of Environmental Regulation establish a method of making such determinations, based upon ecological factors which represent these fluctuations in water levels.

    2. In order to accomplish the legislative intent expressed in subsection (1), the department is authorized to establish by rule, pursuant to chapter 120, the method for determining the landward extent of the waters of the state for regulatory purposes.

    Such extent shall be defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. The application of plant indicators to any areas shall be by dominant species.

    * * *

    (5) The landward extent of waters as determined by the rules authorized by this section shall be for regulatory purposes only and shall have no significance with respect to sovereign ownership. (Emphasis added)

    
    

    This police power regulatory jurisdiction of the Department over the property in question in this proceeding exists regardless of the sovereign or private nature of the ownership of the property.

    
    

17. Accordingly, it must be concluded that the Petitioner has failed to meet its burden and has provided no evidence that its project will not have a detrimental effect in either the short-term or long-term on the quality of the subject State waters. Thus, until such assurances have been provided by the Petitioner, the permit must be denied. Section 17-4.28(3), Florida Administrative Code.

RECOMMENDATION

In consideration of the foregoing Findings of Fact and Conclusions of Law, the candor and demeanor of the witnesses and pleadings and arguments of counsel, it is

RECOMMENDED:

1. That the Department of Environmental Regulation enter a Final Order denying the application for an "after the fact" permit.

   
   

2. That a Final Order be entered requiring the Petitioner to completely restore the unauthorized fill site to its original contours and elevations and to revegetate the affected area, pursuant to a restoration plan and compliance schedule approved by the Department, which restoration plan and compliance schedule should be supplied to the Department by the Petitioner within 20 days subsequent to the effective date of the Final Order herein; and that the Petitioner be required within 20 days following approval of the said restoration plan to commence the restoration work which shall be accomplished in such a fashion as to prevent further damage to the marine and estuarine environment involved. It is further required that Petitioner complete the said restoration plan and project within 60 days following the approval of the restoration plan by the Department.

DONE AND ENTERED this 21st day of September, 1981, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301 904/488-9675

Filed with the Clerk of the Division of Administrative Hearings this 21st day of September, 1981.

COPIES FURNISHED:

David Paul Horan, Esquire

513 Whitehead Street Key West, Florida 33040

H. Ray Allen, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 80-001172

Orders for Case No: 80-001172