STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 83-3239

)

WILBURN J. FLEMING, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings, by its duly designated Hearing Officer, Robert T. Benton, II, on January 4, 1984. The parties were represented by counsel:

For Petitioner: Eugenia L. Williamson, Esquire

2600 Blair Stone Road Tallahassee, Florida 32301

For Respondent: Fletcher Fleming, Esquire

Shell, Fleming, Davis & Menge Post Office Box 1831 Pensacola, Florida 32598

In its notice of violation and orders for corrective action, dated August 18, 1983, petitioner Department of Environmental Regulation (DER) alleged that respondent "placed or caused to be placed . . . fill material within the landward extent of Choctawhatchee Bay . . . [in a marsh, destroying its] assimilative and filtrative functions" and depriving wildlife of food and habitat, thereby damaging the environment and causing petitioner expense, all without a dredge and fill permit, in violation of provisions of Chapter 403, Florida Statutes and Chapter 17, Florida Administrative Code.

After respondent filed a petition for formal administrative proceeding, the matter was referred to the Division of Administrative Hearings, pursuant to Section 120.57, Florida Statutes (1983).

ISSUE

Whether respondent, who did not have a permit, placed or caused to be placed fill within the landward extent of the waters of Choctawhatchee Bay?

FINDINGS OF FACT

1. The parties stipulated that respondent Wilburn J. Fleming owns the property in question, Lot 1, LaGrange Bayou Estates, in Section 32, Township 1 South, Range 19 West in Walton County, Florida, and that he, or somebody at his direction, placed 100 to 150 cubic yards of fill there, over an area of

   approximately 3500 square feet to a depth of about one foot, in May of 1982; and that he never had a permit to place the fill.

   
   

2. The lot lies on the north side of Choctawhatchee Bay, just west of LaGrange Bayou. Choctawhatchee Bay is salt water, Class III. On respondent's lot, the ground is elevated at the water's edge, along a stretch that reaches 65 to 75 feet inland. Abutting this elevated area inland is a marsh. The marsh lies about two feet lower than the higher ground. At its landward edge, the marsh gives way to piney woods, palmetto and gum trees. Paralleling the shoreline, the marsh lies over parts of several waterfront lots.

   
   

3. Mr. Fleming bought his lot on March 26, 1982. Thereafter, but before he placed fill in the marsh, the owner of the adjoining property dug a ditch on the adjacent land, running from the marshy area through elevated ground to the Bay, in an effort to drain the marsh. The neighbor dug the ditch three feet deep, but it has since almost filled up with earth. In May of 1982, and as late as December of 1982, Mr. Snowden, who works for DER as an environmental specialist, saw water in the ditch moving from the marsh to the Bay. No witness recalled seeing water move the other way

   
   

4. In the marsh, on either side of the filled area, grow sedges, cattails, switch grass, soft rush (Juncus effusus), (Spartina patens), black needle rush (Juncus roemerianus) and bullrush (Scirpus Americanus). As a group, these species are the dominant vegetation in the marsh. Only two of these plant species, the Spartina patens and the Juncus roemeriamus are "saltwater species" and the latter has also been found in freshwater environments, albeit rarely.

   
   

5. Rainwater is the principal source of water in the marsh. The marsh water was not shown ever to have stood mere than ankle deep, and water is not always present, according to uncontroverted testimony. The elevated area, described by one of petitioner's witnesses as high and dry, supports bay trees and other upland vegetation, except where it narrows east of respondent's property. There a corridor of Spartina patens links the marsh and the Bay. This corridor, the Spartina patens in the marsh itself and the Juncus roemerianus in the marsh were the basis for uncontroverted expert opinion that saltwater reaches the marsh occasionally.

   
   

6. Marshes like the one that stretches onto respondent's lot serve an ecological function roughly analogous to that of the human kidney. They provide biologic filtration of storm-water flowing to the Bay, taking up nutrients that would otherwise have entered the Bay, at least before the ditch filled in.

   
   

7. The parties stipulated that paragraphs one through four of the proposed orders for corrective action amounted to a reasonable restoration plan, in the event restoration should be found necessary.

   
   

8. The parties filed proposed recommended orders (respondent's was styled "final order") and respondent's counsel submitted a letter setting forth argument in support of respondent's position. To the extent proposed findings of fact have not been adopted, they have been deemed unsupported by the weight of the evidence, immaterial, cumulative or subordinate.

   
   

   CONCLUSIONS OF LAW

   
   

9. Respondent has conceded he held no DER Permit to place fill on his property, and counsel have commendably narrowed the issues to the question whether a DER permit was necessary. In its proposed Recommended Order, DER

   asserts regulatory jurisdiction over the area in question and consequently the need for a fill permit on two bases: First, that the marsh area lies within the landward extent of Choctawhatchee Bay by virtue of contiguous, dominant "index vegetation" and therefore within DER's dredge and fill jurisdiction; and second, that the marsh is connected directly to the waters of Choctawhatchee Bay by the ditch and lies within DER's dredge and fill jurisdiction for that reason. DER also contends that placing fill in the marsh amounted to the creation of a stationary installation reasonably expected to be a source of pollution, but there has been no contention that respondent needed any permit other than a fill permit.

   
   

   SALT V. FRESH

   
   

10. As to the first theory, DER proved that Spartina patens was dominant in an area between the marsh and the Bay well east of the fill site. With respect to the fill site itself, however, the testimony was that a group of various species predominated, in the aggregate. Among the dominant species at the fill site were Spartina patens, listed in Rule 17-4.02(17), Florida Administrative Code, as a "tra[ns]itional marine species" and Juncus roemerianus, listed in Rule 17-4.02(1), Florida Administrative Code, as a "submerged marine species," but it was not established whether they, as opposed to the fresh water species which also grew at the fill site, were dominant.

    
    

11. Respondent's argument at hearing and since that only saltwater species should be looked to in defining the landward extent of a body of saltwater has considerable logical force, and has not been refuted by anything in this record. Because the evidence did not establish that submerged or transitional marine (saltwater) species or any combination of them were the dominant vegetation at the fill site, DER failed to prove its contention that the marsh lies within the waters of Choctawhatchee Bay, on the basis of index vegetation.

    
    

12. The expert witnesses testified that the saltwater species in the marsh, whatever their quantity or dominance, indicate at least the occasional presence of saltwater there. But the dredge and fill rule provides:

    
    

    The department recognizes that the natural border of certain water bodies listed in this section may be difficult to establish because of seasonal fluctuations in water levels and other characteristics unique to a given terrain. The intent of the vegetation indices in Section 17-4.02(17), F.A.C., is to guide in the establishment of the border of the water bodies listed in this section. It is the intent of this rule to include in the boundaries of such water bodies areas which are customarily submerged and exchange waters with a recognizable water body (i.e., areas within the landward extent of waters of the state as defined in Section 17-4.02(17).

    Isolated areas which infrequently exchange water with a described water body or provide only insignificant benefit to the water quality of a water body are intended to be designated as uplands. The vegetation indices in Section 17-4.02(17), F.A.C., presumed to

    accurately delineate the landward extent of such water bodies.

    Rule 17-4.28(2), Florida Administrative Code.

    
    

    The proof did not establish that the waters of Choctawhatchee Bay and the marsh exchanged "frequently" within the meaning of the rule.

    
    

    CONNECTION EXISTED

    
    

13. DER's dredge and fill permitting jurisdiction extends, however, not only to waters of the state like Choctawhatchee Bay, but also to any area "connected directly or via an excavated water body or series of excavated water bodies," Rule 17-4.28(2), Florida Administrative Code, to waters like those of Choctawhatchee Bay. The ditch connected the marsh to the Bay at the time the fill was placed. Even if water from the Bay did not reach the marsh through the ditch, water did flew from the marsh to the Bay, water that did not have the benefit of filtration by the vegetation covered over with unpermitted fill.

    
    

    CONNECTION NOT PLEADED

    
    

14. DER proceedings on notices of violation which may result in orders for damages or costs are akin to license revocation proceedings which have been said to be "`penal' in nature." State ex rel. Vining v. Florida Real Estate Commission, 201 So.2d 487, 491 (Fla. 1973); Kozerowitz v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974); Bach v. Florida State Board of Dentistry,

    378 So.2d 34 (Fla. 1st DCA 1979)(reh. den. 1980). At the formal hearing, petitioner had the burden to establish its jurisdiction and to do so by clear and convincing evidence of the facts pleaded in the notice of violation to show jurisdiction. See Walker v State, 322 So.2d 612 (Fla. 3d DCA 1975); Reid v. Florida Real Estate Commission, 188 So.2d 846 (Fla. 2d DCA 1966). See The Florida Bar v. Rayman, 238 So.2d 594 (Fla. 1970).

    
    

15. At no time has any notice for leave to amend the notice of violation been filed. In these circumstances, DER's case in chief would properly have been limited to what was pleaded in the notice of violation. Department of Natural Resources v. Sheffield, 420 So.2d 892, 893 (Fla. 1st DCA 1982). Even though evidence to prove jurisdiction on a connection theory came in without objection, it would be a violation of due process to find jurisdiction, the only element of the violation respondent has contested, on a basis not pleaded in the notice of violation. Wray v. Department of Professional Regulation, 435 So.2d

312 (Fla. 1st DCA 1983). There may also be federal constitutional restrictions on punitive administrative action when there has been inadequate notice. See Whisenhunt v. Spradlin, 104 S.Ct. 404 (1983)(Brennan, J., dissenting).

RECOMMENDATION

Upon consideration of the foregoing, it is RECOMMENDED: That petitioner dismiss the notice of violation.

DONE and ENTERED this 15th day of March, 1984, in Tallahassee, Florida.

ROBERT T. BENTON, II, 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 15th day of March, 1984.

COPIES FURNISHED:

Eugenia L. Williamson, Esquire 2600 Blair Stone Road Tallahassee, Florida 32301

Fletcher Fleming, Esquire Shell, Fleming, Davis & Merge Post Office Box 1831 Pensacola, Florida 32598

Victoria Tschinkel Secretary

Department of Environmental Regulation 2600 Blair Stone Read

Tallahassee, Florida 32301

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATIONS

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,

Petitioner,

DOAH Case No.: 83-3239

vs. OGC File No.: 83-0491

WILBURN J. FLEMING,

Respondent.

/

FINAL ORDER

On March 14, 1984, the Division of Administrative Hearings' hearing officer in the above styled case submitted his Recommended Order to me. A copy of that order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)8., Florida Statutes, and Florida Administrative Code Rule 17-103.200, all parties to the proceeding were allowed ten days in which to file exceptions to the Recommended Order. On March 23, 1984, I entered an order granting an extension of time to file exception in order to allow the Petitioner, Department of Environmental Regulation (hereafter the "department"), an opportunity to obtain a transcript of the proceeding. The department's exceptions were timely filed on April 9, 1984. A copy of the exceptions is attached as Exhibit B.

RULINGS ON EXCEPTIONS

The department takes exception to a number of findings of fact and conclusions of law and to the hearing officer's recommendation. In ruling on the exceptions to findings of fact, I note the standards of review contained in Section 120.57(1)(b)9., Florida Statutes. That section provides that an agency may not reject or modify the hearing officer's findings unless it "determines from a review of the complete record . . . that the findings of fact were not based upon competent substantial evidence . . ."

The department's first exception is to the hearing officer's finding that a department representative visited the site on two occasions in 1982 and saw water in a ditch moving from the site to Choctawhatchee Bay. A complete review of the record supports the department's position that only one such visit occurred and that was in May of 1983. The department's first exception is accepted.

Second, the department requests that an additional finding of fact be made

- specifically that Choctawhatchee Bay was connected to the marsh on Respondent Fleming's property by a corridor of Spartina patens for a distance of about 30 to 40 feet. The hearing officer's finding did not address the distance of this corridor. The uncontroverted testimony in the record establishes that the distance was 30 to 40 feet, thus the department's second exception is accepted.

The third exception also requests an additional factual finding. While the hearing officer takes note of the various plant species in the marsh that constitute the dominant plant community, he does not state whether those species are listed in Florida Administrative Code Rule 17-4.02(17) which is the basis for establishing the landward extent of the department's jurisdiction over waters of the state. A review of the record indicates that those species are indeed listed in the rule. There being no evidence of record to the contrary, the department's third exception is accepted.

The department's final exception to the findings of fact requests that a finding be made regarding the costs and expenses sought by the department in its Notice of Violation. Since those costs were stipulated to by the parties, the department's fourth exception is accepted.

In addition to its exceptions to findings of fact, the department also takes exception to several of the hearing officer's conclusions of law. The first two exceptions relate to the interpretation of one of the department's own rules, Florida Administrative Code Rule 17-4.28(2).

In finding that the department lacked jurisdiction the hearing officer construed the department's rule to require that the dominant vegetation at the site consist of saltwater vegetation on the department's submerged and transitional lists. He reached this conclusion because Choctawhatchee Bay is a body of salt water

I have previously rejected this interpretation of Rule 17-4.28 in Goldring

v. Department of Environmental Regulation, DOAH Case No. 83-748 (Final Order entered November10, 1983), and reject it in this case. There is no basis in either Section 403.817, Florida Statutes, or the department's implementing rules for making a distinction between saltwater and freshwater plant species. The hearing officer appears to take the position that, to be within the landward extent of a water body, an area must be periodically flooded by that water body. As I noted in Goldring, inundation may involve a one-way exchange of waters as opposed to regular flooding. To hold otherwise would ignore the significant contribution to good water quality made by a marsh system such as one on the Respondent's property.

The hearing officer's reliance on the language in Rule 17-4.28(2) that immediately follows paragraph (g) is misplaced. That language has been held to be simply a statement of intent and not a jurisdictional test for determining the landward extent of waters of the state. The only appropriate test for that purpose is the vegetation index contained in Rule 17-4.02(17). Occidental Chemical Company v. Department of Environmental Regulation, DOAH Case No. 80-89R (Final Order entered November 26, 1980), aff'd per curiam 411 So.2d 388 (Fla.

1st DCA 1981).

The department's next exception is to the conclusion of law that a notice of violation issued by the department assessing damages or costs is penal in nature. It is not clear in the recommended order how this conclusion is relevant to any other conclusion of law or to the hearing officer's ultimate recommendation. Thus without addressing the merits of the conclusion or the department's exception at this time; I reject the conclusion of law as irrelevant.

The department's fourth exception to a conclusion of law objects to the burden of proof required by the hearing officer. As noted in the department's exception, the appropriate burden on the department to establish its jurisdiction is by the preponderance of the evidence. To the extent that the hearing officer imposed a different test, his conclusion is rejected.

Finally, the department takes exception to the hearing officer's conclusion that since the department did not plead facts concerning a direct connection to the bay via a ditch or channel that evidence adduced at the hearing on that point could not be considered. The department contends that, since the issue was tried by implicit consent of the parties, it was unnecessary to amend the pleadings.

Having concluded that the department has jurisdiction based on a connection to the bay by dominant vegetation, I find it unnecessary to rule on this point.

In addition to specific exceptions to findings of fact and conclusions of law, the department also takes exception to the hearing officer's recommendation that the Notice of Violation be dismissed. Since this recommendation was based on his finding that the department did not establish its jurisdiction at the site of the violation, a finding I have rejected, I must also reject the recommendation.

Accordingly, having the pleadings and record in this matter, it is ORDERED that:

The department's Notice of Violation is adopted as the agency's final action and the orders for corrective action shall be carried out as set forth therein.

DONE AND ENTERED this 12th day of June, 1984.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. TSCHINKEL

Secretary

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

Telephone: (904) 488-4805

Docket for Case No: 83-003239

Orders for Case No: 83-003239