STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 80-1481

) CHARLIE BRUCE d/b/a CHARLIE BRUCE ) & SONS BACKHOE SERVICE, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice an administrative hearing was held before P. Michael Ruff, Hearing Officer with the Division of Administrative Hearings, on October 22, 1980 in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Randall E. Denker, Esquire

State of Florida, Department of Environmental Regulation

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

For Respondent: Robert Huth, Jr., Esquire

Trial Lawyers Building

633 Southeast 3rd Avenue, Suite 301 Ft. Lauderdale, Florida 33301

On June 12, 1980 the Department of Environmental Regulation (Petitioner, Department) issued a Notice of Violation and Order for Corrective Action against Mr. and Mrs. George Theoharis and Charles Bruce d/b/a Charlie Bruce & Sons Backhoe Service, Inc., charging those Respondents with destroying a strand of mangrove trees in submerged lands along the North Fork of the Middle River in Ft. Lauderdale, and pushing soil and debris into the river, which activity constituted dredging, and filling without a permit as defined and required by Section 403.161(a)(b), Florida Statutes and Rules 17-4.02(16)(17), 17-4.28 and 17.429, Florida Administrative Code. The Respondents are charged with a violation of Section 403.161(1)(a), Florida Statutes in that they are alleged to have destroyed the mangrove trees and thus to have destabilized the shoreland of the river causing turbidity and potential harm to plant and animal life, and pollution as defined by Section 403.031(2), Florida Statutes. Accordingly, pursuant to Section 403.121(2), Florida Statutes, the Department is seeking to establish liability for violations, and to recover damages for injuries to waters and property, animal, and plant or aquatic life, and, pursuant to Section 403.141(2), Florida Statutes, to establish joint and several liability on the

part of the Theoharises, as well as the Respondent Charlie Bruce Backhoe Service, Inc., alleging that the injury is an indivisible one.

Pursuant to a settlement agreement entered into between the Petitioner and Respondents, Mr. and Mrs. George Theoharis, those Respondents have been released from further prosecution in this proceeding in return for their payment of

$1,000 attributable to the transaction at bar. The issue involved is thus whether the remaining Respondent, Charlie Bruce and Sons Backhoe Service, Inc., has illegally engaged in dredging and filling without a required permit, caused pollution, and, accordingly, whether that Respondent is to be required to pay for environmental damage, plus expenses incurred in the prosecution of this proceeding.

FINDINGS OF FACT

1. The Respondents, the Theoharises, own the property in question, which is located on the corner of Northeast 26th Street and Federal Highway in Ft. Lauderdale, which property is contiguous to the North Fork of the Middle River, a navigable waterbody within the State of Florida. The subject property is more particularly described as lying within Section 25, Township 49 South, Range 42 East, Broward County, Florida.

   
   

2. The site is connected to and is a part of the North Fork of the Middle River with which it regularly exchanges tidal waters. The dominant plant species was white mangroves, a submerged species for purposes of Section 17- 4.02(17), Florida Administrative Code. The North Fork of the Middle River is part of a marine estuary system and as such is important as a spawning or nursery ground for commercially important fish and other marine life in their early life stages, as well as for bluefish, snook, tarpon, flounder and other commercially or recreationally important species.

   
   

3. On August 24, 1979 the Respondent and his agents, at the request of the Theoharises, the owners of the property, brought a backhoe on the site and commenced clearing trees, shrubs, and other vegetation from the subject property, including the scooping out or uprooting of a stand of mature white mangroves growing along the river on the submerged portion of the property.

   This activity was observed by a landowner directly across the river who contacted the Department, who then sent its representative, Mr. Wittkamp, to inspect the work in progress on the Theoharises' site. Mr. Wittkamp identified himself to Mr. Bruce, the Respondent, as an inspector for the Department and informed him that, inasmuch as he did not have a permit authorizing the removal of the mangrove trees and the associated "dredging and filling" operation, he would have to discontinue the work immediately. The Respondent, however, proceeded to continue the removal of the mangroves and clearing the other vegetation, and the grading of the property, all of which was for the purpose of extending a parking lot for the Owner's restaurant. He ultimately completed the job in spite of the warning by the Department's inspector. No permit authorizing this activity was ever obtained.

   
   

4. Upon completion of the job the Respondent and his agents had, without a permit, destroyed and removed 2,000 square feet of submerged lands constituting the total destruction of the stand of mangrove trees, and also pushed a quantity of soil, or fill, as well as trash and debris, into the Middle River below the mean high water line.

   
   

5. An inspector for the City of Ft. Lauderdale, Mr. Robert Schimmel, visited the site in question prior to the destruction of the mangrove trees and

   established at the hearing that the trunk diameters of the mangroves before their removal was an aggregate of 98 caliper inches. Based on those measurements, Mr. Reis, an expert witness for the Department, established that the canopy cover provided by the destroyed mangrove trees was approximately 2,000 square feet, or 0.046 acres. If monetary damages are sought to be based on lost detrital value, as the Department seeks to do here, then that productivity loss represented by the removed mangroves can be more accurately measured by determination of the size of the canopy cover rather than other methods. In order to verify his calculation of the extent of the lost mangrove canopy cover Mr. Reis measured other mangrove canopies with similar trunk dimensions.

   
   

6. That witness then took the 2,000 square foot dimension and calculated the value of the destroyed mangroves with reference to a scientific study, "The Tree Nobody Liked" by R. Gore published in the May, 1977 issue of National Geographic which ascribed a value of $4,000 per acre per year for South Florida mangroves. Other methods of economic valuation of mangrove stands were shown by reference to generally accepted authoritative scientific studies, to be as high as $84,000 per acre per year, and indeed, in 1974 Nicholas and Blowers, consultants to Deltona Corporation, published The Socioeconomic Impact of the Marco Island Development and set fourth values for mangrove trees per acre ranging from $34,000 to $100,000 per acre per year. So too, in 1974, Heald, Odum and Tabb published Mangroves in the Estuarine Food Chain, which cited average values for South Florida mangrove productivity equivalent to approximately $25,800 per acre per year. Thus the Petitioner used the lowest generally accepted method and figures for arriving at the value of the mangrove trees and there was no contradiction of the showing by the Department's expert witness that an acre of mangroves is actually worth considerably more than the figures used by the Department in calculating the alleged damages in this case.

   
   

7. The unrefuted means of calculating the pertinent environmental loss is a conservative one especially because it only includes loss of the detrital value of the removed mangrove trees. Detrital value is the value of the accumulation of leaves, branches and seeds in the estuary in which the mangroves grow and which serves as an essential element in the estuarine food chain. The vegetable matter dropping in the water from the trees is decomposed by organisms such as algae, fungi and bacteria. The leaf particles dropped by the trees are coated with protein in the form of these microorganisms and then become available as a food source to zooplankton, which are in turn harvested by small fish and intermediate fish, which serve as food for larger species of fish which may be commercially valuable. The reduction in the mangrove population thus weakens the basis of the estuarine food chain and thus reduces the size of the aquatic community or species populations which can be supported by such a food source.

   
   

8. Mangroves are additionally valuable because they serve a water cleansing function in that they filter out contaminants in the water in which they grow. They are particularly beneficial in controlling pollution from upland runoff. Nutrient uptake and assimilation is particularly important to the geographical area involved in this case because the North Fork of the Middle River is burdened with nutrient discharge from sewage treatment plants, as well as stormwater drainage. Thus the maintenance of healthy mangrove populations along the waterway is directly related to maintenance and restoration of good water quality and the prevention of eutrophication. In addition to the above benefits, mangroves serve as a shoreline stabilizer in that they prevent the erosion by wave action against the shore by storms or boat wakes, and provide shelter, food and breeding areas for fish and other forms of marine life.

   Mangrove wetlands aid in flood prevention, conservation of water during drought periods, produce oxygen and sequester heavy metals and other poisonous substances in the anaerobic muds they produce. Additionally, they serve as nesting and roosting habitat for birds and as a place of shelter for many terrestrial animals.

   
   

9. Mangrove wetlands also, by serving as nursery areas for the rearing of fish and marine life, constitute an important basis of support for the area's sport fishing and commercial fishing industries. The Petitioner's assessment of the damages involved in this case from the destruction of the trees and shoreline area did not take into account any potential damage to the fishing industry or any damage attributable to the resultant loss of shoreline stabilization, however. Elimination of mangroves thus has an adverse effect on the water quality and interferes with and potentially injures the conservation and propagation of fish and other marine life, as well as terrestrial wildlife and other natural resources.

   
   

10. The Petitioner, in establishing damages by the lowest proven method of evaluation, demonstrated a value of an acre of such mangrove trees per year of

    $4,000. Then, given that a mangrove seedling takes approximately 15 years to reach maturity, this annual loss of productivity should be multiplied by 15 years, times the total of 2,000 square feet of mangrove canopy destroyed or .046 acres.

    
    

11. This unrefuted means of quantifying environmental injury caused by the acts of the Respondent establishes damages to be in the amount of $2,760.

    
    

12. Various items of costs involved in tracing, investigating and preparing for the prosecution of this case were alleged by the Petitioner, including cost for preparation and attendance of the various expert witnesses. All of the witnesses were paid state employees, however, and although they doubtless spent a great number of hours preparing for this proceeding, the evidence does not establish the specific amount of costs and expenses for investigation, preparation and attendance of witnesses separately attributable to this case, as opposed to those incurred in the course of Petitioner's employees normal duties. Moreover, although the Petitioner entered into a settlement with the Respondents, the Theoharises, for a portion of the damages to the pollution violation here involved, there was no showing whether or not the $1,000 paid by the Theoharises to the Petitioner's warning notices and voluntarily agreed to replant mangrove seedlings in response to the Department's Order for Corrective Action and to pay $1,000 of the Department's estimate of damages. This agreement was signed by the Theoharises and took the form of a consent order (See Exhibit 1). The instant Respondent, Charlie Bruce, neither personally nor on behalf of his corporation, entered into the settlement negotiations involving the Theoharises.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Pursuant to Section 403.121(2), Florida Statutes, the Department of Environmental Regulation has authority to seek an administrative hearing to establish liability for violations, and to recover damages for injury to air, waters, or property, including animal, plant or aquatic life of the state caused by any violation of the provisions of Chapter 403 and rules promulgated thereunder. Such an administrative proceeding may be instituted in order to prevent, abate, or control the conditions creating the violations, or other appropriate corrective

    action may be taken. Pursuant to Section 403.121(2)(c), Florida Statutes, the Department's Notice of Violation properly alleged joint and several liability on the parts of the Respondent, the Theoharises, and the Respondent and his corporation pursuant to Section 403.141(2), Florida Statutes, because the injury in controversy here, and the damages thereby caused are indivisible between the joint tort-feasors who acted in concert.

    
    

14. Section 403.031 defines pollution, in pertinent part, as man-induced alteration of the physical, biological or chemical integrity of water in quantities or at levels which may be potentially harmful to human health or welfare, animal or plant life or property. The destruction of the mangroves involved and pushing soil and other debris into the water by the Respondent has destabilized the shoreline in question and extinguished the function of the mangrove population along the subject property of filtering out pollutants, stabilizing the shoreline and preventing turbidity in the water and therefore has contributed in the water and therefore has contributed in an important way to the detriment of the marine, animal and plant life in the surrounding estuarine habitat, all of which constitutes pollution.

    
    

15. By thus causing pollution the Respondent has violated Section 403.161(1)(a), Florida Statutes, which provides in pertinent part that it shall be a violation of Chapter 403, and shall be prohibited to cause pollution in such a way as to harm or injure human health or welfare, animal, plant or aquatic life or property.

    
    

16. The Respondent, and its agents, by digging out the mangroves and pushing debris, soil and uprooted vegetation and other material into the Middle River, a navigable water body, was engaged in digging, dredging, filling or extending land within the meaning of Sections 253.12, 253.1221, 253.123 and 253.124, Florida Statutes, as well as Section 17-4.02(16), Florida Administrative Code. No permit was obtained by the Respondent for this activity. Sections 253.123 and 253.124 provide that dredging and filling means the extending of or adding to, any existing land bordering on, or being in navigable waters of the state, which is clearly the situation involved here. Accordingly, there is no question but that the Respondent has violated these statutory provisions by the unpermitted performance of these acts.

    
    

17. Filling is defined by Section 17-4.02(16) Florida Administrative Code as, in pertinent part: "... the deposition by any means, of materials onto submerged lands or the transitional zone of a submerged land." 1/ "Submerged Land" is defined by Section 17-4.0(17), Florida Administrative Code as an area directly connected to or contiguous with a navigable river, or stream or natural tributary thereto (See Section 17-4.28, Florida Administrative Code) which is dominated by enumerated species of plant life, as pertinent hereto - the white mangroves, which are the main species definitive of this area as submerged land. 2/

    
    

18. Dredging is defined by Section 17-4.02(12), Florida Administrative Code as the excavation, by any means, of submerged lands or the transitional zone of a submerged land. The term is applicable herein to the action of the Respondent in using a backhoe to pull, push, scoop out or excavate and remove the white mangroves in question which, by their very existence on that site identified it as submerged land, the dredging or filling of which is precluded without the appropriate permit pursuant to the a above authority.

    
    

19. In summary, the Respondent has been demonstrated by competent, substantial evidence to have been engaged in dredging and filling within the

    meaning of the above statutory authority, as well as the above-cited rules, none of which activity was legitimized by the issuance of proper permit authority.

    Therefore, since the Respondent did not have a dredge and fill permit required by Sections 17-4.28 and 17-2.49 Florida Administrative Code, as well as the above-cited statutory authority, he is guilty of violating Section 403.161(1)(a)(b) Florida Statutes by causing pollution and failing to obtain the proper permit and is thus liable for damages pursuant to the remedy provided under Section 403.121(2) Florida Statutes.

    
    

20. The Petitioner's release of the jointly and severally liable Respondents herein, the Theoharises, did not serve as a release of the Respondent. The Petitioner had the legal right to drop one jointly and severally liable party pursuant to that settlement agreement and elect to proceed severally against the other. Salcedo vs. Southeastern Natural Gas Company, 171 So.2d 399 (Fla. 3 DCA 1965). See also Fincher Motor Sales, Inc. v. Lakin, 156 So.2d 672 (Fla. 3 DCA 1963); Ruis vs. Holloway, 139 So.2d 745 (Fla. 2 DCA 1962).

    
    

21. The damages to be awarded should be paid into the State of Florida Pollution Recovery Fund, which was created by Sections 403.165 and 403.0615, Florida Statutes as a fund for the restoration of water bodies such as the North Fork of the Middle River. Should the revegetation effort be ineffective or only partially effective, the funds obtained from this Respondent should then be used to complete the restoration, and if the funds are not needed for that purpose they should be made available for other environmental restoration projects within the state. Section 403.16(2) Florida Statutes (1979).

RECOMMENDATION

Having considered the competent, substantial evidence in the record, as well as the pleadings and arguments of counsel, it is recommended that the Respondent Charlie Bruce d/b/a Charlie Bruce and Sons Backhoe Service, Inc. pay damages for the above violations in the amount of $1,760. Said sum represents the total environmental damages proven to be caused by that Respondent, after deduction of the $1,000 damages already paid by the Respondents, the Theoharises and the alleged figures for costs and expenses which were not proven to be entirely attributable to this Respondent. The sum of $1,760 shall be payable to the State of Florida Pollution Recovery Fund c/o the Department of Environmental Regulation, Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida, 32301 within ninety (90) days from the date of entry of a final order herein.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 9th day of December, 1980.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings Room 101 Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1980.

ENDNOTES

1/ It should be noted that in Case No. 80-1065R the Hearing Officer has invalidated Rules 17-4.02(17) and 17-4.02(19) as well as Rule 17-4.28(2), Florida Administrative Code regarding the definitions of submerged lands and transitional zones in the dredge and fill permit requirements. The Deparment of Environmental Regulation has appealed the Hearing Officer's Order which automatically stays any proceedings with regard to those rules. A motion to vacate that stay has been denied which order of denial is also presently on appeal. It should be pointed out, parenthetically, that the rules have also been validated by that same Hearing Officer in Cases No. 80-1299R and 80-895-R on other grounds. Even if the subject rules are ultimately determined to be invalid, the finding of guilt on the part of this Respondent stands independently of that eventuality since the violations found to exist constitute activity proscribed by Chapter 253, Florida Statues as unpermitted dredging and filling of submerged lands, as "dredging", "filling," and "submerged lands" are defined in that chapter, as well as constituting an unpermitted pollution violation for purposes of Section 403.161(1)(a) and (b). Thus the outcome of this case should not be altered even if the subject rules are overturned inasmuch as the facts of this case clearly establish a violation of the above statutory provisions.

2/ Ibid.

COPIES FURNISHED:

Randall E. Denker, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Robert Huth, Jr., Esquire Trial Lawyers Building Suite 301

633 Southeast 3rd Avenue

Ft. Lauderdale, Florida 33301

Docket for Case No: 80-001481

Orders for Case No: 80-001481