STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3076

)

CRAIG BUTTERFIELD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on December 17, 1984, in Tavares, Florida.

APPEARANCES

For Petitioner: Larry R. Morgan, Esquire

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

For Respondent: H. D. Robuck, Jr., Esquire

131 West Main Street Tavares, Florida 32778

BACKGROUND

This matter arose when petitioner, Department of Environmental Regulation, issued a Notice of Violation and Order-for Corrective Action to respondent, Craig Butterfield, alleging that prior to August 1983, respondent unlawfully engaged in filling certain areas of Wolf Branch and the landward extent of the stream in Lake County, Florida, without an appropriate and valid dredge and fill permit. The Notice also alleged that respondent's activities had resulted in "the alteration of the chemical, physical and biological integrity of the water," had "adversely affected" the pollutant filtration and assimilation system of the stream, and had resulted in "harm and injury to animal, plant and aquatic life." The Order for Corrective Action directed respondent to restore the filled areas and to remove all fill material from the site. It also required respondent to pay $290.15 for expenses incurred by the agency in investigating this matter.

Respondent disputed the above allegations and requested a formal hearing to contest the proposed agency action pursuant to Subsection 120.57(1), Florida Statutes. The matter was forwarded by petitioner to the Division of Administrative Hearings on August 27, 1984, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated October 5, 1984, the final hearing was scheduled for November 14, 1984, in Leesburg,

Florida. A motion for continuance was thereafter filed by respondent and the matter was rescheduled to December 7, 1984, at the same location. At the request of respondent, and without objection by petitioner, the final hearing was rescheduled to December 17, 1984, at Tavares, Florida.

At the final hearing petitioner presented the testimony of Edwin Edmundson, Lawrence N. Sellers, Jr., Cathy L. Trott, Dale Becker, David Girardin, Richard

1. Ford, and William E. Darling. It also offered petitioner's exhibits 1-9; all were received except exhibit 7. Respondent testified on his own behalf and presented the testimony of Benjamin W. Breedlove. He also offered respondent's exhibits 1-9; all were received except exhibit 8.

   
   

   The transcript of hearing was filed on January 10, 1985. Proposed findings of fact and conclusions of law were filed by petitioner and respondent on January 21 and 25, 1985, respectively. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial, or unnecessary. The issue herein is whether respondent unlawfully engaged in filing activities in waters of the state and their landward extent without obtaining a necessary dredge and fill permit from petitioner.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, Craig Butterfield, is the owner of approximately 5 acres of land located in Section 33, Township 19 South, Range 27 East in Lake County, Florida. The property lies less than a mile east of the City of Mount Dora in an area known as Sunset Valley Marsh. It fronts on the south side of State Road

      46 which runs between Mount Dora and Sanford, Florida.

      
      

   2. Butterfield is in the asphalt paving business. He intends to construct an office building on his property, and to this end, he began adding construction and demolition material and clean fill on his property in early 1983. When these activities were undertaken, Butterfield was unaware that any regulatory agency approval or permitting was required, and consequently he did not obtain a dredge and fill permit.

      
      

   3. In May 1983, an environmental specialist employed by the St. Johns Water Management District (SJWMD) observed the filling activity on Butterfield's property and made an on-site inspection. This led to a meeting attended by representatives of petitioner, Department of Environmental Regulation (DER), SJWMD employees and Butterfield in September 1983, at which time permitting requirements were discussed. Eventually, SJWMD advised respondent in January 1984, that he did not require a permit from SJWMD since the filling activity involved less than 5 acres of wetlands. Butterfield thereafter renewed his filling activities and continued to do so until DER instituted this proceeding. In all, respondent placed some 600 cubic yards of fill material on his property.

      
      

   4. On or about August 1, 1984, petitioner, through its district manager in Orlando, Florida, issued a Notice of Violation and Order for Corrective Action alleging that Butterfield's filling activities were unlawful, and that corrective action should be taken to restore the site to its original condition. The issuance of the Notice and Order precipitated the instant action.

   5. Wolf Branch is a stream that runs near respondent's property. Although the evidence is conflicting as to whether it is a "water of the state," the more persuasive evidence supports a finding that it is. This finding is based upon testimony that the stream is perennial in nature rather than intermittent, that it has a well-defined bed, and flowing water. Moreover, it has been identified as a perennial stream on a United States Geological Survey map since as early as the 1960's. The stream originates to the north of Sunset Marsh, meanders southward (downgrade) into and through the Marsh, passes through a culvert under State Road 46, and flows adjacent to respondent's property. It eventually ends up in a pond and sink which lie to the south of the fill area. Together with rainfall, the stream is the primary source of water in the area where Butterfield has placed his fill material. The dominant vegetation in the filled area is Arrowhead, Maidencane and Pickerelweed. All three are on the species list contained in Rule 17-4.02(17), Florida Administrative Code. Under that rule, a site is considered to be within the "landward extent of waters of the state" if the site is dominated by species on the list. In the case at bar, there is a continuum of dominant wetlands vegetation extending from Wolf Branch to the area filled by Butterfield.

      
      

   6. The landward extent of Wolf Branch in relationship to Butterfield's property extends from an area of Myrtles surrounded by Maidencane on the western edge of the filled area on a line through an area of Black Gum trees to another area of Myrtles on the eastern edge of the fill area.

      
      

   7. During the period from 1979 until November 1984, the area was customarily submerged by water. However, most of this accumulated water was due to blockage in a culvert under a railroad track which lies southeast of Butterfield's property. After the culvert was unplugged in early November 1984, virtually all of the standing water in the area disappeared. Indeed, only a small area in the southwestern corner of Butterfield's property now has any standing water, and it is approximately 250 feet from the filled area.

      
      

   8. There is no evidence of record that the filling activities of Butterfield can reasonably be expected to be a source of pollution and result in emitting substances harmful to plant and animal life in quantities prohibited by Department rules. Although petitioner disputes this finding, there is no specific testimony that any environmental harm has occurred by virtue of respondent's activities. 1/

      
      

   9. In investigating this matter, the parties agree that DER incurred expenses totaling $290.15, and if DER prevails, it is entitled to that amount of reimbursement from respondent.

      
      

   10. If restoration of the filled area is required, the appropriate restoration line is reflected on petitioner's exhibit 1 received in evidence.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

       
       

   12. According to the Notice of Violation and Order for Corrective Action, it is alleged that Butterfield engaged in filling activity which "took place in waters of the state (Wolf Branch) and their natural landward extent is defined in Section 403.031(3), Florida Statutes, and Florida Administrative Code Rule 17-4.02(17)." It is further alleged that the filling activity constituted a

       violation of Subsections 403.087(1) and 403.161(1)(b), as well as Rules 17-4.03 and 17-4.28, Florida Administrative Code. These statutes and rule require a valid permit before dredging or filling in waters of the State. Additionally, the agency has charged that Butterfield's activities also constitute a violation of Subsection 403.161(1)(a), Florida Statutes, which makes it unlawful to "cause pollution so as to harm or injure animal, plant or aquatic life." Finally, DER seeks to recover $290.15 as reimbursement for expenses incurred in making an investigation in the matter.

       
       

   13. Subsection 403.087(1), Florida Statutes, provides in part:

       
       

       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 current valid permit issued by the department, unless exempted by department rule.

          
          

   14. Rule 17-4.28, Florida Administrative Code, is also pertinent to the case at bar. Section (2) thereof reads as follows:

       
       

       (2) Pursuant to Sections 403.061, 403.087 or 403.088, F.S., those dredging or filling activities which are to be conducted in, or connected directly or via an excavated water body or series of excavated water bodies to, the following categories of waters of the state to their landward extent as defined by Section 17-4.02(17), F.A.C. require (a) permit from the department prior to being undertaken:

       
       

       1. rivers and natural tributaries thereto;

       2. streams and natural tributaries thereto;

       3. bays, bayous, sounds, estuaries, and natural tributaries thereto;

       4. natural lakes, except those owned entirely by one person and except for lakes that become dry each year and are without standing water together with lakes or no more than ten (10) acres of water area at a maximum average depth of two (2) feet existing throughout the year;

       5. Atlantic Ocean out to the seaward limit of the State's territorial boundaries;

       6. Gulf of Mexico out to the seaward limit of the State's territorial boundaries;

       7. natural tributaries do not include intermittent natural water courses which act as tributaries only following the occurrence of rainfall and which normally do not contain contiguous areas of standing water.

       
       

       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., (are) presumed to accurately delineate the landward extent of such water bodies.

       
       

       Therefore, the appropriate test of jurisdiction is whether the proposed activity is connected to a listed water body, and if so, whether the activity is within the landward extent of the water body, i.e., whether the site is dominated by species on a list contained in Rule 17-4.02(17), Florida Administrative Code.

       See, for example, E. Peter Goldring v. Department of Environmental Regulation, DOAH Case No. 82-748, Final Order entered on November 10, 1983.

       
       

   15. In brief, the agency contends that jurisdiction lies since Wolf Branch is a water of the state, that the proposed activity is connected to that stream, and is within the landward extent of the water body, and that the site is dominated by species on the vegetation indices set forth in Rule 17-4.02(17). Respondent counters by arguing that his property does not exchange water with a recognizable water body within the meaning of Rule 17-4.28(2)(g), and therefore is not subject to the permitting requirements of DER. He also alleges that there is no showing that, any environmental harm has occurred by virtue of his filling activities.

       
       

   16. Requiring resolution at the outset is whether Wolf Branch is "a water of the state" within the meaning of Rule 17-4.28(2). The more persuasive evidence supports a finding that Wolf Branch constitutes a perennial stream and that it is the primary source of water in the filled area. Further, the filled area is dominated by three species of vegetation contained on the list set forth in Rule 17-4.02(17), and as such, is within the landward extent of the water body. Therefore, jurisdiction lies under Rule 17-4.28, Florida Administrative Cod. 2/

       
       

   17. Although respondent suggests that no permit is required unless it is shown that the proposed activity is expected to cause environmental harm, such a contention is rejected. Rule 17-4.28(2) is controlling and provides that "those

       . . . filling activities which are to be conducted in . . . the . . . waters of the state to their landward extent as defined by Section 17-4.02(17), Florida Administrative Code, require (a) permit from the department prior to being undertaken." Therefore, it is concluded that Butterfield was required to obtain a permit prior to filling his property.

       
       

   18. Respondent's motion for a directed verdict has been treated as a motion to dismiss. Having considered the same, it is hereby DENIED.

   19. Since the activity took place without a requisite permit, reasonable investigative costs ($290.15) incurred by petitioner should be reimbursed by respondent. Further, respondent should restore the filled areas in accordance with the instructions set forth in the Order for Corrective Action.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner enter a final order requiring respondent to

restore that portion of Sunset Valley Marsh upon which fill material was placed south of the restoration line as drawn on petitioner's exhibit 1 and to pay costs of $290.15. The restoration process should be conducted as outlined in the Order for Corrective Action.

DONE and ORDERED this 8th day of February, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 8th day of February, 1985.

ENDNOTES

1/ In making this finding, the undersigned has reviewed the testimony of witnesses Edmundson and Sellers as well as petitioner's exhibit 4 and can find no support for petitioner's proposed finding.

2/ Such a conclusion is consistent with the holding in a number of prior agency orders recited in petitioner's posthearing brief. It is noted, however, that a literal interpretation of Rule 17-4.28(2) could produce a different result, for it appears to be at variance with Section 403.817(2), Florida Statutes.

Specifically, the rule suggests that the jurisdictional test is whether the area is "customarily submerged" and "exchanges waters with a recognizable water body."

COPIES FURNISHED:

Larry R. Morgan, Esquire Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, Florida 32301

H. D. Robuck, Jr., Esquire

131 W. Main Street Tavares, Florida 32778

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

AGENCY FINAL ORDER

================================================================= DEPARTMENT OF ENVIRONMENTAL REGULATION

STATE OF FLORIDA DEPARTMENT DOAH CASE NO: 84-3076 OF ENVIRONMENTAL REGULATION, OGC FILE NO: 84-0486

Petitioner,

v.

CRAIG BUTTERFIELD,

Respondent.

/

FINAL ORDER

On February 8, 1985, the Division of Administrative Hearings' hearing officer who conducted a Section 120.57(1), Florida Statutes, hearing in the above-styled cause submitted his Recommended Order to the Department and all parties. A copy of the Recommended Order is attached as Exhibit A.

Pursuant to Section 120.57(1)(b)8, Florida Statutes, and Florida Administrative Code Rule 17-103.200(1), the parties were allowed ten days in which to submit written exceptions to the Recommended Order. Neither the Department nor Craig Butterfield submitted exceptions, and the Recommended Order thereafter came before me as Secretary for final agency action.

Having considered the Recommended Order and being otherwise fully advised, it is:

ORDERED:

1. The Hearing Officer's Recommended Order is adopted in toto as final action of this agency;

   
   

2. The Findings of Fact and Conclusions of Law in the Department's Notice of Violation are adopted in toto. The Department finds that Craig Butterfield has committed the violations alleged in the Notice of Violation.

   
   

3. The orders for corrective action in the Notice of Violation are final and binding upon Craig Butterfield.

Any party to this Order has the right to seek judicial review of the Order pursuant to section 120.68, Florida Statutes, by the filing of a Notice of

Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32301; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fee with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days of the date this Order is filed with the Clerk of the Department.

DONE AND ORDERED on February 25, 1985, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

VICTORIA J. TSCHINKEL

Secretary

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Telephone: 904/488-9730

Docket for Case No: 84-003076

Orders for Case No: 84-003076