STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-1487

)

JACK E. MOORE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, P. Michael Ruff, held a public hearing in this cause on August 8, 1984 in Fort Myers, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Paul R. Ezatoff, Esquire

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

For Respondent: William Gemmill, Esquire

1724 Cape Coral Parkway Cape Coral, Florida 33910

This dispute is one of two separate controversies presently pending before the Division of Administrative Hearings and this Hearing Officer in DOAH Case Nos. 83-1487 and 84-1067, which were consolidated for final hearing only, by order of Hearing Officer Alexander on April 4, 1984. The cases were thereafter transferred to the undersigned for further proceeding.

In this case, Respondent Jack E. Moore has petitioned for a Section 120.57(1), Florida Statutes, hearing to contest the allegations of a Notice of Violation and Order for Corrective Action issued to Moore. The Notice of Violation alleged that Moore had conducted dredging and filling activities on property .7 in Fort Myers Beach without obtaining DER permits necessary for much work.

At the final hearing, Moore appeared as a witness on his own behalf. Moore offered Exhibits A and 1 through 6, which were received into evidence. DER called as its witnesses Richard Cantrell and Rae Ann Boylan. DER offered Exhibits 1 through 24, which were received into evidence. Each of the parties has submitted proposed findings of fact for consideration by the Hearing Officer.

All proposed findings of fact, conclusions of law, and supporting arguments have been considered. To the extent that they are in accordance with the

findings, conclusions and views stated herein, they are accepted. To the extent that the proposed findings, conclusions and arguments asserted are inconsistent herewith, they are rejected. Certain proposed findings and conclusions are omitted as not relevant nor as necessary to a proper determination of the material issues presented. To the extent that the testimony of various witnesses is not in accord with the findings herein, it is not credited. See, Sonny's Italian Restaurant v. Department of Business Regulation, 414 So.2d, 1156, 1157 (Fla. 3rd DCA 1982); Sierra Club v. Orlando Utilities Commission, 436

So.2d 383 (Fla. 5th DCA 1983).

FINDINGS OF FACT

1. Jack E. Moore is the owner of real property in Fort Myers Beach known as Lot 9 of Indian Bayou, a subdivision in Section 33, Township 46 South, Range

   24 East, Lee County, Florida. Moore's property is bordered on the north by the waters of Indian Bayou and Estero Bay.

   
   

2. The northern portions of Moore's property are vegetated by juvenile and mature red and black mangroves. Red and black mangrove are the dominant species of vegetation on the northernmost portions of the property, waterward of the fill pad on which Moore's house is built.

   
   

3. Sometimes during July, 1982, Moore used a shovel to excavate a channel from the open waters of Estero Bay to a dock existing at the edge of the fill pad. Approximately 48 cubic yards of excavated material was piled up along the banks of the channel. The channel measured approximately 1.5 feet deep (at low tide) by 9 feet wide by 70 feet long. The channel was dug so that Moore could got his boat in and out from the dock at medium tide. The passage to the deck was already possible at high tide, as Moore had a shallow draft pontoon boat.

   
   

4. In July, 1981, Moore constructed a rip-rap revetment with backfill the northern side of his house fill pad. The back fill area contains approximately

   160 cubic yards of fill, and is approximately 10 feet wide by 110 feet long.

   
   

5. Red mangrove and black mangrove are and were the dominant vegetational species in the area where the channel was dug, where the excavated material was placed, and where the revetment and fill was constructed. The area of dominant mangrove vegetation extends from the work areas to the open waters of Estero Bay.

   
   

6. Moore did not apply for or receive a permit from DER prior to undertaking the work referenced above. Upon discovery of the work in September, 1982, DER notified Moore that a permit was needed for the excavation and filling he conducted. In October, 1982, Moore agreed to fill in the channel and remove all unauthorized fill by January 19, 1983. Inspection by DER on January 26, 1983, showed that restoration had not been started, and in fact more work had been done on the channel.

   
   

7. DER issued a Notice of Violation and Orders for Corrective Action (NOV) to Respondent on March 29, 1003, alleging violations of Chapter 403, Florida Statute's, and DER rules and requiring restoration of the areas dredged and filled. Upon service of the Notice of Violation by the Sheriff, Respondent petitioned for this hearing. DER incurred costs of 5101.88 in investigating the violations alleged in the NOV.

   
   

8. As of the date of the hearing, restoration work still had not been performed. Although the spoil piles alongside the channel are now diminished,

   the channel itself was deep as it previously had been and the rip-rap revetment and backfill had not been removed.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

10. In Counts I through IV of the NOV, DER has charged Respondent with violations of Chapter 403, Florida Statutes for dredging and filling without permits and for causing pollution. DER has also alleged that it has incurred costs while investigating this matter.

    
    

11. Section 403.087(1), Florida Statutes, provides, in part, that:

    
    

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

       
       

12. Florida Administrative Code Rule 17-4.03 provides that:

    
    

    Any stationary installation which will reasonably be expected to be a source of pollution shall not be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the Department, unless the source is exempted by Department rule. The Department may issue such permit only after it is assured that the instal- lation will not cause pollution in violation of any of the provisions of Chapter 403, F.S., or the rules and regulations promulgated thereunder.

    
    

13. Florida Administrative Code Rule 17-4.28(2) provides that:

    
    

    Those dredging or filling activities which are to be conducted in, or connected directly or via an excavated body or series of excavated 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 Depart- ment prior to being undertaken:

    * * *

    c) bays, bayous, sounds, estuaries, and natural tributaries thereto. . . .

14. Florida Administrative Code Rule 17-4.02(17), in effect at the time of the violations alleged herein, provided that:

    
    

    'Landward extent of waters of the state' is, pursuant to Section 403.317, Florida Statutes, that portion of a surface water body indicated by the presence of one or a combination of the following as the dominant species:

    * * *

    Black mangrove Avicennia germinans

    * * *

    Red mangrove Rhizophora mangle

    
    

15. Estero Bay and Indian Bayou are waters of the State within the meaning of Section 403.031(3), Florida Statutes.

    
    

16. Respondent's channel excavation is dredging within the meaning of Florida Administrative Code Rule 17-4.02(12).

    
    

17. Respondent's construction of the rip-rap revetment and backfill is filling within the meaning of Florida Administrative Code Rule 17-4.02(15).

    
    

18. The areas where the dredging and filling took place were and are within the landward extent of waters of the State as defined by Florida Administrative Code Rule 17-4.02(17).

    
    

19. A permit is required for the dredging and filling pursuant to Section 403.087, Florida Statutes, and Florida Administrative Code Rules 17-4.03 and 17- 4.28.

    
    

20. Section 403.161, Florida Statutes, provides, in pertinent part, that:

    
    

    1. It shall be a violation of this chapter, and it shall be prohibited:

       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 tie department

pursuant to its lawful authority. . . .

1. Respondent has violated Section 403.161(1)(b), Florida Statutes, by failing to obtain DER permits for his dredging and filling activities.

   
   

2. DER's investigative costs are recoverable pursuant to Section 403.141, Florida Statutes.

   
   

3. Accordingly, based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That a Final Order be entered by the Department of Environmental Regulation finding that Respondent has committed the violations alleged in Counts I through IV of the Notice of Violation and ordering Respondent to comply with the corrective actions enumerated therein within the time periods specified.

DONE and ENTERED this 9th day January, 1985 in Tallahassee, 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 9th day of January, 1985.

COPIES FURNISHED:

Paul R. Ezatoff, Esquire Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

William Gemmill, Esquire 1724 Cape Coral Parkway Cape Coral, Florida 33910

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 83-001487

Orders for Case No: 83-001487