vs. ) CASE NO. 83-2133
) OGC CASE NO. 83-0292
MICHAEL H. HATFIELD, )
Respondent. )
) MICHAEL H. HATFIELD, )
vs. ) CASE NO. 84-0464
) DER FILE NO. 42-30758-4E STATE OF FLORIDA, DEPARTMENT OF )
Respondent. )
In keeping with the notice given by the Division of Administrative Hearings, a formal hearing was held to consider the above-styled cases. That hearing was conducted on November 9 and 10, 1983, in Tavares, Florida. The Hearing Officer was Charles C. Adams. This Recommended Order is being entered following the receipt and review of proposed Recommended Orders offered by the parties. The last of those proposals was filed with the Division of Administrative hearings on December 21, 1983. To the extent that the proposals are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are inconsistent with the Recommended Order, they are rejected as being contrary to facts found, conclusions of law reached or the recommended disposition.
For Department of Dennis R. Erdley, Esquire Environmental Assistant General Counsel Regulation: Twin Towers Office Building
For Michael Frank T. Gaylord, Esquire
H. Hatfield: Gaylord, Gaylord & Osborne, P.A.
There are two sets of issues to be considered in this matter which require separate determination. The issues in D.O.A.H. Case No. 83-2133 pertain to a notice of violation and orders for corrective action filed against Michael H. Hatfield related to the alleged construction of a causeway from a mainland shoreline to an island owned by Hatfield. In particular, that action by the Department alleges certain violations of environmental law and demands restoration of the area in which the causeway was constructed. The companion case, D.O.A.H. Case No. 84-0465, concerns Hatfield's request to construct a causeway from the mainland to the island in a location apart from the existing causeway. The Department has denied Hatfield's request for necessary permission to install that causeway.
Michael H. Hatfield is the owner of property in Marion County, Florida. That property is located on Lake Nicatoon, a 307 acre nonmeandered water body. Lake Nicatoon is a Class III water body as defined in Chapter 17-3, Florida Administrative Code. To gain access to the island from the mainland, Hatfield sought permission from the Department of Environmental Regulation to construct a causeway from the mainland to the island. The area between the mainland and the island is subject to water level fluctuations in that at times it is essentially dry and other times is under the waters of Lake Nicatoon. His application for environmental permits was filed on May 13, 1980. A copy of that application may be found as Department's Exhibit No. 4, admitted into evidence. His proposed project calls for the placement of approximately 525 cubic yards of fill in wetlands and littoral zones adjacent to the mainland and island. Per the application, the causeway would be 7 yards wide at the bottom and a length of approximately 73 yards and is to be constituted of sand and crushed concrete block. In particular, Hatfield wishes access to allow construction of a residence on the island and to gain entrance to the residence after construction.
The Department of Environmental Regulation reviewed the application and on May 27, 1980, made a request to Hatfield to provide additional information related to his proposal. A copy of that request for additional information may be found as part of Department Environmental Regulation's Exhibit No. 3, admitted into evidence. Among the items requested was information from local government related to that entity's approval of the project in accordance with Section 253.124, Florida Statutes. This request was made based upon the perception by the Department of Environmental Regulation that Lake Nicatoon was found in the Florida Lakes Gazateer of Meandered Water bodies. The Department continued to operate on this erroneous assumption throughout the permit review process. Unknown to the Department, the lake was a nonmeandered lake which was discovered by Hatfield and verified on September 8, 1980, through an affidavit of the Division Director of State Lands for the State of Florida. A copy of that affidavit may be found as Hatfield's Exhibit No. 2, admitted into evidence. In effect, although the Department had made a good faith request for information pursuant to chapter 253.124, Florida Statutes, that information was not necessary because Lake Nicatoon is nonmeandered and not subject to Chapter 253, Florida Statutes, jurisdiction. Additionally, the requested hydrographic information pertaining to Chapter 253, Florida Statutes, was not needed.
Among the other items requested in the way of additional information was item No. 6, pertaining to the placement of fill. That request was not complied with. Requested information related to a plan view was not complied
with. Requested information in the category of "notes and drawings" was not complied with. Requested information pertaining to plans for complying with state water quality standards for Class III waters as related in Section 17- 3.121, Florida Administrative Code, was not complied with. These materials were relevant to the permit review process and the request for the information was never modified nor abandoned by the Department, notwithstanding discussions between the parties in an attempt to reconcile their differences in the permit assessment process. Those suggested alternatives to grant Hatfield access were not satisfactory to Hatfield and the original description of his project as set forth in his application of May 1980, has remained constant throughout the permit review process to include the final hearing. Generally, the parties' discussion of the installation or a bridge between the mainland and the island or the placement of a temporary steel road during the course of construction of his residence on the island did not promote a modified permit application.
Finally the indication by staff members of the Department of Environmental Regulation that the project envisioned by his original application would not likely be approved did not cause a change in the obligation to respond to the request for additional information. Even though Hatfield became aware that it was unlikely that the staff would look with favor upon the project as proposed, in making its recommendation as to the issuance or nonissuance of the permit, the staff attitudes in the review process could only have become accepted with finality at the point of entering the Recommended Order. Consequently, it was incumbent upon Hatfield to respond to the request for additional information, in that the information sought was relevant to a consideration of the project which would be examined in the course of the final hearing.
The discussions, related to the grant of permission to gain access by placement of a structure between the landslide and the island, entered into by the Department and Hatfield, briefly mentioned before, involved 1) the possibility of the construction of a bridge, 2) use of a metal roadway during the buildout of his residence and 3) his proposal as offered through the application. The bridge proposal advanced by Hatfield was for a span of 20 to
30 feet end the Department desired a span of 200 feet. The reason for the length of bridge required by the Department was to assure protection of a reasonable amount of the lake ecosystem between the landside and the island. Hatfield found the Department's proposed bridge length to be unacceptable due to financial reasons. He likewise did not like the idea of a temporary utilization of a steel roadway to the island during the construction of his residence. Hatfield preferred a permanent road allowing vehicular traffic from the mainland to the island. In conjunction with this alternative offered by the Department, Hatfield could later access the island by utilization of a boat on those occasions when the waters of Lake Nicatoon stood between the landside and the island.
While Respondent's application for dredge and fill permit was being considered, an inspection of the property made in the summer of 1982, revealed that a causeway connecting the mainland and Hatfield's island property had been constructed. This causeway is depicted in red on Department's Exhibit No. 10, admitted into evidence, a series of aerial photographs. Ground shots of the causeway may be found as Department of Environmental Regulation's photographic Exhibits No. 8 and No. 9, admitted into evidence. The causeway was primarily constructed by the dredge of material and placement of the material immediately next to the dredge site with an overlay of offsite fill. Respondent was responsible for the construction of this causeway. The causeway is not found in the location contemplated by his permit application and permission was not given by the Department of Environmental Regulation to construct the causeway. This construction occurred in an area dominated by the vegetative species beak rush
(Rhynchospora tracyi). Having placed the causeway in this location, Hatfield has created a stationary installation which caused pollution in the course of that construction and can reasonably be expected to be a future source of pollution, in that the dredging and placement of fill and the effects of the structure after construction have emitted and shall emit in the future, substances that are harmful to plant and animal life, in contravention of the Department of Environmental Regulation's rules. By this installation, an alteration in the chemical, physical and biological integrity of the waters of the state has been occasioned by the destruction of submerged land vegetational communities which provide water treatment, and food and habitat for fish and wildlife. When the fill was placed, the filtration and assimilation system of Lake Nicatoon was adversely affected through the removal of existing wetland vegetation. Were the applicant granted the opportunity to install the proposed causeway, the same adverse effects or problems could be expected with that installation.
Having discovered the existence of the causeway, and after warning Hatfield that this installation was in violation of regulatory statutes and rules related to the Department's responsibility in environmental matters, Hatfield was served with a notice of violation and orders for corrective action from the Department of Environmental Regulation. The date of this action was June 1983. A copy of that document may be found as Department's Exhibit No. 3, admitted into evidence. In this same time frame, the Department continued to evaluate the permit application of Hatfield related to the proposed causeway and an application appraisal for that proposal was made on June 6, 1983. A copy of that appraisal may be found as Department's Exhibit No. 2, admitted into evidence. Subsequent to that time, and having failed to receive the aforementioned requested additional information from the Respondent, the Department issued its intent to deny the application related to the proposed causeway. A copy of the intent to deny may be found as Department's Exhibit No. 5, admitted into evidence. The date of the denial was November 4, 1983.
A more detailed examination of the area in question on the northern shoreline of the lake on the mainland side, shows that natural vegetation has been replaced with a Bahla type of grass. The gradient dropping toward the lake proper reveals upland grasses giving way to submerged species such as maiden cane (Panicum hemitom), pickerelweed (Pontederia lanceolata) and pond lilies (Nymphaea). In this area, the transitional species to be found include St. John's wort (Hypericum fasculatum) and switch grass (Panicum virgatum). Between the landside and the island, in the direction of the island, there are less rooted plants. The dominant plants in this vicinity are pond lilies. The distance to be traversed between the landside and the island related to landward extent of the lake on the landside and island where the proposed causeway would be located is approximately 550 feet, and net the 225 feet described in the application. As you approach the island from the landside, the last approximately 150 feet along the proposed causeway's alignment is dominated by transitional freshwater species to include doheen holly (Ilex cassine), button bush (Cephalanthus occidentalis), St. John's wort (Hypericum fasculatum), and switch grass (Panicum virgatum). The island, itself, is dominated by live oak and sable palm. To summarize, the area between the landside shoreline along the lake and the island shoreline, is dominated by submerged and transitional freshwater species as found in Rule 17-4.02(17), Florida Administrative Code.
In the area of the proposed causeway are found detrital feeders, the most numerous of which are amphipods. There ore also larval insects and gastropods, bivalves and freshwater shrimp. Crayfish, frogs and tadpoles are found in this area. In addition, species of fish include mosquito fish, least
killfish, shiners, blue spotted sunfish, juvenile largemouth bass, silverside and juvenile catfish. Bird species observed in the area are blue heron, snowy egret, lympkins and ibis. Soft-shell turtles have also been observed in the vicinity of the project site.
Should the construction of the causeway be allowed, short and long-term adverse effects on surface waters of Lake Nicatoon can be expected and these effects will be negative. With installation of the causeway, there would be a permanent elimination of the water bodies' littoral zone vegetative community which is important in converting available dissolved nutrients into food material in the aquatic ecosystem. The vegetation also assists in the cleansing of the ambient water and by that action reducing pollution loading. With the construction of the causeway, state water quality standards related to biological integrity, Section 17-3.121(7), Florida Administrative Code; nutrients, Section 17-3.121(17), Florida Administrative Code; and turbidity, Section 17-3.061(2)(r), Florida Administrative Code, can reasonably expected to be violated. Hatfield has failed to give reasonable assurances that the short and long-term impacts of the construction of the causeway would not violate and continue to violate water quality standards as alluded to. These problems as described exist while the unauthorized causeway remains.
Hatfield, by actions involving private parties and the State of Florida, Department of Environmental Regulation, has sought necessary easements to gain access to his island property. While successful in this undertaking, these successes do not include the grant of a prohibition against the Department of Environmental Regulation performing its regulatory responsibility. In particular the decisions in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, Florida, Case No. 83-1826-C, Michael Hatfield, Plaintiff
v. State of Florida, Department of Environmental Regulation, Defendant, granting partial Summary Judgment for the plaintiff and Defendant's Motion to Dismiss do not bar the Department from fulfillment of its regulatory charge. A copy of these decisions of court are found as Hatfield's Exhibit No. 7, admitted into evidence.
In order to return the area where the unauthorized causeway has been placed to its prior existing condition, it would be necessary to remove the fill material and return elevations at the site to their prior level before the construction of the causeway. In addition, beak rush should be replanted in the areas where this dominant vegetation has been removed. An amount of $30.75 has been incurred in the way of cost to prosecute D.O.A.H. Case No. 83-2133
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction ever the subject matter and the parties to this action. See Section 120.57(1) and Section 403.121(2), Florida Statutes.
Hatfield moved to dismiss the notice of violation and orders for corrective action based upon alleged lack of jurisdiction by the Department of Environmental Regulation and violation of Hatfield's rights to due process of law. These motions are denied. Likewise, the motion to recuse, directed to the Hearing Officer sitting in lieu of the Secretary of the Department of Environmental Regulation, and directed to the Secretary of the Department of Environmental Regulation, is denied. Finally, the motion for judgment in favor of Hatfield following the presentation of the State related to its notice of violation case is denied.
Sections 403.061, 403.087, and 403.088, Florida Statutes, require that Hatfield obtain an environmental permit from the Deportment of Environmental Regulation before proceeding with the construction of the proposed causeway.
The work envisioned in the project involves dredge and fill activities. These activities, during the construction and after buildout, constitute a stationary installation, and by the construction and as the proximate result of that construction, will cause pollution as defined in Section 403.031(2), Florida Statutes, in that pollution will be introduced into waters of the State over which the Department of Environmental Regulation has permitting jurisdiction, i.e., man-induced alteration of the chemical or biological integrity of these waters in a manner which is potentially harmful to animal or plant life or property or which unreasonably interferes with enjoyment of life or property, including outdoor recreation.
Lake Nicatoon is one of the water bodies over which the Department has jurisdiction end Rule 17-4.28(2), Florida Administrative Code, more specifically requires Hatfield to obtain a dredge and fill permit from the Department before commencing the construction of the proposed causeway. This is necessary because these activities of Hatfield would occur within the jurisdictional boundaries of the Department as established by the vegetational indices set forth in Rule 17- 4.202(17), Florida Administrative Code. At the proposed location of the causeway, the jurisdictional plant delineators predominate in both submerged and transitional freshwater species.
To satisfy the substantive requirements for obtaining a dredge and fill permit pursuant to Chapter 403, Florida Statutes, and Rule 17-4.28, Florida Administrative Code, Hatfield must affirmatively provide reasonable assurances that the short and long-term effects of his construction and utilization of the causeway will not result in violations of the water quality criteria, standards, requirements or provisions of Chapter 17-3, Florida Administrative Cede. These reasonable assurances have not been given. Degradation of water quality standards will occur pertaining to biological integrity, Section 17-3.121(7), Florida Administrative Code; nutrients, Section 17-3.121(19), Florida Administrative Code; and turbidity, Section 17-3.061(2), Florida Administrative Code. The fact that this impact does not involve the entire area of Lake Nicatoon, per so, does not relieve the applicant of the obligation to satisfactorily address water quality criteria in the area of his project site. To decide otherwise would allow piecemeal violations of water quality criteria in Lake Nicatoon to a point of wholesale violations within that lake and the destruction of the environmental integrity of the water body This is not an acceptable or intended approach to the permitting responsibilities reposed in the Department of Environmental Regulation. In summary, in view of the water quality violations caused by the proposed project, Hatfield is not entitled to the grant of his permit.
Alternatively, Hatfield has argued that he is entitled to the grant of a default permit in view of the length of time which transpired between his initial application and the statement of the Department's proposed agency action through their notice of intent to deny. A default permit is not available to Hatfield. Within the 30 days envisioned by Section 120.60(2), Florida Statutes, additional information related to his permit application was requested.
Although some of the information sought pertained to Chapter 253, Florida Statutes, a regulatory statute which had no significance in this instance, the other information was relevant to the Chapter 403, Florida Statutes, permitting responsibility which is at issue. Some of the information sought pursuant to Chapter 403, Florida Statutes, was not provided. Consequently, when Hatfield failed to offer the information which was legitimately requested in the permit
review process, as described in the Findings of Fact, the Department was not obligated to respond to his application within the normal 90 days allowed for review and decision. That responsibility only would occur upon receipt of the timely requested additional information. Nonetheless, having concluded that the additional information would not be forthcoming, and having examined the merits of the application and discussed alternatives to the project as proposed, the intent to deny was issued. This series of actions on the part of the Department was in keeping with the spirit and letter of Section 120.60(2), Florida Statutes, and cannot be characterized as dilatory and does not lead to the issuance of a default permit.
On the subject of the notice of violation, Section 403.161(1), Florida Statutes, states:
It shall be a violation of this chapter, and it shall be prohibited:
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.
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.
This provision, carried forward by Section 403.087 end 403.088, Florida Statutes, has been violated by the Respondent's unauthorized construction of the existing causeway. That causeway was established in an area ever which the Department has Chapter 403, Florida Statutes, jurisdiction established on the basis of the dominant species beak rush (Rhynchospora tracyi), which is located in the area of the causeway. The building of the read caused pollution and will continue to cause pollution harmful and injurious to the welfare of animal, plant and aquatic life. The causeway was built without the benefit of a necessary permit required by Chapter 403, Florida Statutes. In view of this violation, it is appropriate that Hatfield restore the area in question in keeping with the plan envisioned by the orders for corrective action found in Department's Exhibit No. 3. Department of Environmental Regulation is also entitled to $360.75 to be paid to the State of Florida, Department of Environmental Regulation "Pollution Recovery Fund."
Conclusions of law reached on the topics of the application for permit and the notice of violation are made with an appreciation for the property rights of Hatfield, particularly the determinations in the court action, Michael Hatfield, Plantiff v. State of Florida, Department of Environmental Regulation Defendant, in the Circuit Court of the Fifth Judicial Circuit, In and for Marion County, Florida, Case No. 83-1826-C. Although Hatfield's property rights have been recognized and upheld in these court proceedings, the Department is not foreclosed from pursuing its regulatory function and by doing so, placing reasonable restrictions upon the use of property when those restrictions by statute end rule are in the interest of public health and welfare. See State, Etc. v. Oyster Bay Estate's, 384 So.2d 891 (Fla. 1st DCA 1980). This reasoning is further established in Graham v. Estuary Properties, Inc., 399 S9.2d 1374 (Fla. 1981).
Based upon a consideration of the foregoing findings of fact and conclusion of law, it is,
That the Department of Environmental Regulation enter a final order which denies the application to construct a causeway. In addition, by final order, the Department should find Hatfield in violation of Chapter 403, Florida Statutes, and require the restoration of the roadway as indicated in this Recommended Order together with the payment of cost in the amount of $360.75.
DONE AND ORDERED this 9th day of March, 1984, in Tallahassee, Florida.
CHARLES C. ADAMS
Filed with the Clerk of the Division of Administrative Hearings this 9th day of March, 1984.
Dennis R. Erdley, Esquire Department of Environmental
Frank T. Gaylord, Esquire 804 North Bay Street Eustis, Florida 32727
