STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3142

) OGC FILE NO 83-0490

WILLIAM BURCH, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal Section 120.57(1), Florida Statutes, hearing was held in this case on February 1, 1984, in the Richard P. Daniel Building, 111 E. Coastline Drive, Jacksonville, Florida, before Charles C. Adams, Hearing Officer with the Division of Administrative Hearings. This Recommended Order is entered following the receipt and review of proposed Recommended Orders offered by counsel for the parties, the last of which was received in the office of the Division of Administrative Hearings on February 21, 1984. In addition, Petitioner's counsel has provided a memorandum of law in support of his Recommended Order. That, too, has been considered. To the extent that the proposals and argument are consistent with the Recommended Order, they have been utilized. To the extent that the proposals are not consistent with the Recommended Order, they are rejected as contrary to facts found, conclusions of law reached, contrary to the recommended disposition or they are found to be immaterial or irrelevant.

APPEARANCES

For Petitioner: David K. Thulman, Esquire

2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent: Lacy Mahon, Jr., Esquire

350 South Adams Street Jacksonville, Florida 32202

ISSUES

The issues in this action are promoted through a notice of violation and orders for corrective action filed by the Petitioner against the Respondent in which the Respondent is accused of violating various provisions of Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code, related to fill material allegedly found in waters of the state adjacent to property of the Respondent, without the benefit of a permit from the Petitioner which would allow the existence of that fill material in the questioned area. To remedy this condition, Petitioner seeks to have Respondent remove the material and restore the area to its natural condition. Finally, Petitioner requests reimbursement of cost incurred in the investigation of this case.

FINDINGS OF FACT

1. Respondent is the owner of a parcel of property located in Jacksonville, Duval County, Florida, described as Lot 8, Yvonne Park, recorded in Plat Book 21, page 97, of the public records of Duval County. The street address of that property is 6775 Yvonne Lane, Jacksonville, Florida. That property borders on Pottsburg Creek, a body of water over which Petitioner has Chapter 403, Florida Statutes, jurisdiction for regulatory purposes. Pottsburg Creek, in turn, is connected to the St. Johns River, another waterbody over which the Petitioner has similar jurisdiction.

   
   

2. Fill material has been placed in the landward extent of Pottsburg Creek at the Respondent's property site at 6775 Yvonne Lane, Lot 8, Yvonne Park. That fill material in the landward extent is approximately 6 feet thick and is constituted of building materials, to include roofing, dirt, household trash and other assorted debris. The fill area is approximately 190 feet wide by 100 feet deep. Dominant plant species in the fill area in question include bald cypress (Taxodium distichum) and water ash (Fraxinus caroliniana). These species are set forth in the species list of Rule 17-4.02, Florida Administrative Code, and generally delineate the landward extent of the Pottsburg Creek. For its claim of jurisdiction, a more exact measurement of the landward extent of Pottsburg Creek has been established by drawing an imaginary line between two bald cypress trees on adjacent property through the filled area on the Burch property. The area waterward of the imaginary line is established as waters of the state and the area landward is outside that jurisdiction. This line is depicted on Petitioner's Exhibit No. 4, a photograph of the area in question. In particular, the imaginary line is shown in blue. This method of establishing jurisdiction was elected because in the placement of fill, the identifying species of bald cypress and water ash were removed. The fill was placed between April 26, 1974 and January 3, 1981 as established by an examination of aerial photographs (Petitioner's Exhibits No. 6 and 7) taken on those respective dates. The clearing that was done to allow the placement of fill increased and continues to increase water pollution and lower the water quality in Pottsburg Creek and the St. Johns river. Before the land was cleared, the natural vegetation absorbed and assimilated pollutants born in the runoff from the upland. Now, not only is that valuable function destroyed, the fill itself becomes a source of pollution through leaching of the materials that constitute the fill pack. Those materials degrade and cause water pollution in Pottsburg Creek. The water quality in that creek is already less than desirable, especially related to dissolved oxygen, and the introduction of organic pollutants from from the fill bank would aggravate that circumstance.

   
   

3. In the pursuit of this action, the Petitioner has incurred cost and expenses in the amount of $71.03 related to its investigation.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this action. See Section 120.57(1), Florida Statutes.

   
   

5. Pursuant to Section 403.087 and 408.88, Florida Statutes, fill material such as is involved at the location of the Burch property, where it is placed in waters of the state or tends to affect those waters, is subject to requirements of permitting. This material, i.e., the fill, is a stationary installation which has been a source of pollution and will continue to be a source of

   pollution in the future. It is the kind of pollution referred to in the definition set forth in Section 403.031(2), Florida Statutes. This stationary installation has not been permitted nor has permitting been sought pursuant to Rule 17-4.28, Florida Administrative Code, which sets out the requirements for obtaining a permit to place fill in waters of the state as identified through Rule 17-4.02, Florida Administrative Code. By the use of the index set forth in Rule 17-4.02, Florida Administrative Code, the fill is found within waters of the state based upon the proximity of the dominant species, bald cypress and water ash, which are found in the area of the fill in question. If the fill remains, it can reasonably be expected to cause harm or injury to animal, plant or aquatic life within the meaning of Section 403.161, Florida Statutes.

   Respondent has violated Section 403.161(1), Florida Statutes, by failing to obtain necessary permits and by creation of a pollution source which is injurious to animal, plant and aquatic life. In addition, this fill material is solid waste within the definition of Section 403.703(9), Florida Statutes, and Rule 17-7.02(49), Florida Administrative Code. The deposition of such solid waste material constitutes a violation of Section 403.708(1)(a), Florida Statutes, and Rule 17-7.04(3)(b), Florida Administrative Code.

   
   

6. Given the fact that Respondent maintains the fill material at issue in waters of the state and does so without permission from the Department of Environmental Regulation, and given the adverse effects of such arrangement, removal of that material and restoration of the site is a reasonable and necessary outcome. The responsibility for that undertaking resides with Respondent as owner of the property adjacent to the Pottsburg Creek where the fill is found. Moreover, pursuant to Section 403.141(1), Florida Statutes, Petitioner is entitled to $71.03, related to cost in investigating this case, based upon Respondent's violation of Section 403.161(1), Florida Statutes.

   
   

7. The Respondent moved to dismiss this action following the presentation of the Petitioner. Upon consideration of that motion, it is denied.

   
   

8. Ruling was reserved on the admission of Petitioner's Exhibits 6 and 7. After consideration of argument, these exhibits are admitted.

RECOMMENDATION

Based upon the facts found and the conclusions of law reached, it is recommended:

That a Final Order be entered which finds the Respondent responsible for the pollution caused by the placement of the fill, that awards $71.03 in costs of investigation to the Petitioner, that requires the Respondent to remove all fill materials placed within the landward extent of Pottsburg Creek as determined herein, that requires the restoration of the land elevation and soil condition existing prior to the placement of fill, and that requires, during the restoration activities, that the adjacent area over which the Department of Environmental Regulation has jurisdiction not be adversely impacted.

DONE AND ENTERED this 21st day of March, 1984, in Tallahassee, Florida.

CHARLES C. ADAMS

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 March, 1984.

COPIES FURNISHED:

Lacy Mahon, Jr., Esquire

350 South Adams Street Jacksonville, Florida 32202

Victoria Tschinkel Secretary

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 22301

David K. Thulman, Esquire 2600 Blair Stone Road Tallahassee, Florida 32201

Docket for Case No: 83-003142

Orders for Case No: 83-003142