STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 85-0404

) OGC CASE NO. 83-0519

DANIEL LEAGUE and )

JANICE N. LEAGUE, )

)

Respondents. )

)

RECOMMENDED ORDER

Notice was given, and on August 9, 1985, in Jacksonville, Florida, a formal Section 120.57(1), Florida Statutes, hearing was held to resolve this controversy. A transcript had been prepared and it was reviewed prior to the entry of this Recommended Order. In addition, the parties have submitted proposed findings of fact. Those proposals have been considered and are discussed in an attached appendix to this Recommended Order.

APPEARANCES

For Petitioner: Debra A. Swim, Esquire

State of Florida Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

For Respondents: Daniel League

5201 Hyde Park Circle Jacksonville, Florida 32210

and Nancy Moureau

4348 Woodmere Street

Jacksonville, Florida 32210 ISSUES

Petitioner had filed Notice Of Violation And Orders For Corrective Action and Supplemental Notice Of Violation And Orders For Corrective Action related to the placement of fill material on property owned by the Respondents in Duval County, Florida. This action by the agency was in accordance with the provisions of Chapter 403, Florida Statutes, based upon the belief that this fill material was placed within the landward extent of waters of the state. Through this case, the Petitioner attempts to cause the removal of the fill and the restoration of the area in question to a natural state and requests the award of $350.00 in expenses for investigation of this matter. Respondents requested hearing on these allegations, asserting their right to place the fill.

Respondents' posture is one of opposing the jurisdiction of the Petitioner to take action, in that the Respondents believe that the fill was not placed on property over which the Petitioner has any regulatory authority.

WITNESSES AND EVIDENCE

During the hearing, Petitioner called as witnesses Ken Deurling, Dar-Guam Cheng and Sydney Brinson. Nine exhibits were offered by the Petitioner and those exhibits were received as evidence. Respondents testified and presented Richard League as a witness. Respondents offered an exhibit marked as Exhibit A. That exhibit was not admitted.

FINDINGS OF FACT

1. Respondents own property in Jacksonville, Duval County, Florida, as recorded in Plat Book 12-74, 75 of the public/records of Duval County as Lots 23, 24 25, 26 and 27, Hyde Park Circle. The property which is the subject of this dispute is within those boundaries. This property is further depicted in Petitioner's Exhibit Number 9, which roughly describes then placement of fill in the area in question. The yellow cross-hatching on this exhibit represents fill material placed prior to June 1983. The red cross-hatching represents fill material that was not there in June 1983 but was in place by October 1984. The blue cross-hatching represents fill that was not there at the time of the placement of the fill material shown in the red cross-hatching but which was in place by May 1985. Petitioner's Composite Exhibit Number 3 is a series of photographs taken at various times as described on the face of that composite exhibit, indicating the types of materials which were used to fill the area in question, to include building materials, felled trees and fill dirt. Petitioner's Exhibit

   Number 7 is a composite exhibit constituted of aerial photographs indicating the appearance of the site as of January 5, 1981, and on February 10, 1985. Those photographs show the decrease in the over-story of trees on February 10, 1985, as contrasted with January 5, 1981. Petitioner's Exhibit Number 8 is constituted of maps which depict the connection of the Cedar River to the Ortega River to the St. Johns River, waters of the state. The property in question fronts Wills Branch, a further water body of the state which flows into the Cedar River. Wills Branch is shown on Petitioner's Exhibit Number 9 at the top of that drawing.

   
   

2. Respondents' own additional lots which are shown in Petitioner's Exhibit Number 9 in the area on the right side of that exhibit which depicts a house and outbuildings. The lots where the house and outbuildings are found had also been filled prior to June 1983. That filling activity is not the subject of this dispute. Some filling had also been done in the eastern- most lot of the lots described as 23 through 27 in the immediately preceding paragraph, and the filling in that

   eastern-most lot in that grouping is not the subject of dispute. Therefore, it is not depicted in the colored cross-hatching found on Petitioner's Exhibit Number 9.

   
   

3. At the time Respondents took up residence in the area adjacent to the questioned site, the road known as Hyde Park Circle, which fronts their property, and a golf course further upland from Wills Branch were already in place. In addition there was a water flow across the property in dispute through a flow-way and into Wills Branch. The flow-way is also part of state waters. At present that flow-way area is depicted in blue cross-hatching on Petitioner's Exhibit Number 9. In the

   past and at present this unnamed flow-way allowed for the flow pattern across the property in dispute and into Wills Branch. As briefly discussed, this water coming off the property in question would exit via Wills Branch, in turn into the Cedar River, the Ortega River and the St. Johns River.

   
   

4. The subject areas in which fill was placed by the. Respondents included certain low-lying areas where water had. stood in the past, and the area depicted by yellow cross- hatching is an area which had been excavated by the City of Jacksonville,. Florida prior to the placement of fill. The fill has not been placed up to the furtherest reaches of the property as it abuts. Wills Branch.

5. All told, approximately 1.4 acres have been filled by the Respondents, and that fill placement was made without benefit of any environmental permit(s) as provided by the Petitioner.

   
   

6. The fill in question as shown in the yellow, red, and blue cross-hatching in Petitioner's Exhibit Number 9 was placed within the landward extent of Wills Branch and the unnamed flow- way and as such was placed in waters of the state. The determination of the landward extent of the state waters was. through the use of plant indicators, in this instance, the presence of Fraxinus carolinaina (water oak) and Nyssa sylvatica var, biflora (black gum), formerly referenced as Nyssa biflora, (swamp tupelo), as the dominant canopy species and by the presence of Osmunda regalis (royal fern) and Orontium acquaticum (golden club) as the dominant ground cover species in the filled area prior to and during fill placement. These species are listed in the "species list" related to wetland indicators, as found in Rules 17-4.02, Florida Administrative Code, as amended and renumbered to be Rule 17-4.022, Florida Administrative Code, in October 1984.

   
   

7. The trees in the filled area are buttressed to a height of approximately half a meter and the soil in the filled area is hydric. This buttressing and the type of soil are indicators of a wetlands system. That type of soil tends to indicate that the filled area is subject to regular and periodic inundation by water. The testimony reveals that Wills Branch inundates the property on the occasion of high incidence of rainfall. Other sources of water for the site are provided from rainwater falling directly on the site and the pattern of water flow across the property caused by water coming onto the property from a location upland of the property. This is related to a lake located on the golf course on the other side of Hyde Park Circle. Normally any overflow conditions onto the subject fill. area occurs in the vicinity of the flow-way. Conditions must be more extreme for these off-site influences to discharge water onto the filled areas other than the flow-way.

   
   

8. As of June 24, 1983, the filled area was approximately 2,700 square feet in dimension. At that time, the Petitioner advised the Respondents that the fill had been placed in violation of Chapter 403, Florida Statutes, and requested that the Respondents not place any additional fill. By October 3, 1984, Respondents had expanded the amount of fill to approximately 55,500 square feet and subsequently, on May 9,

   1985, that amount of fill material approached 58,500 square feet of fill.

   
   

9. A more complete description of the fill material indicates its constituents as being roofing materials, other forms of building materials, wood, insulation materials, dirt and household trash. The major component of the fill is roofing products.

   
   

10. The difference in appearance in over-story shown in Petitioner's Exhibit Number 8 can be accounted for in that the vegetation has died as a result of the filling activities or the direct removal of that vegetation by the Respondents. The disposition of the fill material has caused and continues to cause water pollution and to lower the water quality in Wills Branch and the rivers downstream. Prior to the placement of the fill, the natural wetlands vegetation and soil served the purpose of absorbing and assimilating runoff from properties up- land of the site. This included cleansing insecticide and pesticide-laden runoff from the golf course area previously described. In placing the fill, the wetlands system has been destroyed, with its animal, plant and aquatic life components, and no longer provides wildlife habitat or acts as a source of food within the aquatic ecosystem or provides for flood storage. It is probable that some of the fill material, such as the roofing, will provide additional pollution through leaching.

    The presence of these materials may reasonably be expected to degrade and cause water pollution in Wills Branch and those major water systems connected to Wills Branch through this process.

    
    

11. The previous factual findings demonstrate the propriety of the removal of the fill materials and the restoration of the site to its previous character within six months of the entry of the Final Order.

    
    

12. The Petitioner has incurred costs of investigation in the amount of $350.00.

    
    

13. Respondents needed a dredge and fill permit for the placement of the fill and proceeded to place further fill even after being told of the necessity to obtain a permit and have never sought a permit prior to the placement of any of the fill in question or after the fact.

    
    

    CONCLUSIONS OF LAW

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

    
    

15. The unnamed flow-way found on Respondents' property, Wills Branch, the Cedar River, the Ortega River and the St. Johns River are waters of the state within the definition set forth at Section 403.031(12), Florida Statutes, and as contemplated by Section 403.817, Florida Statutes. These water bodies are further found to be surface waters within the meaning of Rule 17-3.161, Florida Administrative Code

    
    

16. The landward extent of the aforementioned water bodies is determined in accordance with Section 403.817, Florida Statutes, and Rule 17-4.02, Florida Administrative Code, and its successor provision Rule 17-4.022, Florida Administrative Code, dating from October 1984. The landward extent of those water bodies encompasses the area within which the fill material at issue was placed. This determination was reached based upon an examination of the plant indices as described in the Findings of Fact. Therefore, it was incumbent upon the Respondents to obtain an environmental permit before placing the fill within the area in question, and the failure to comply with that requirement as specifically addressed at Rule 17-4.28(2), Florida Administrative Code, violated that provision as well as Section 403.161(1)(b), Florida Statutes.

    
    

17. The fill material constitutes a "stationary installation" within the meaning of Section 403.087, Florida Statutes, and an "installation" as defined by Section 403.031(4), Florida Statutes. Further, this fill material and its by-products constitute pollution as defined by Section 402.031(7), Florida Statutes. Being a "stationary installation" which is in fact a source of pollution and may reasonably, through its by-products, be expected to be a source of pollution, the dredge and fill permit contemplated by Rule 17- 4.28(2), Florida Administrative Code, was necessary and to proceed without the benefit of that permit constitutes a violation of the requirement to obtain a permit as set forth in Section 403.087, Florida Statutes, as well as a violation of Section 403.161(1)(b), Florida Statutes, and the dredge and fill rule, Rule 17-4.28(2), Florida Administrative Code.

    
    

18. When the Respondents placed the fill in question, it presented a direct or potential harm or injury to animals, plants or aquatic life in violation of Section 403.161(1)(a), Florida Statutes.

    
    

19. When the Respondents placed the fill material, it was an act of depositing solid waste as defined in Section 403.703(9), Florida Statutes, and Rule 17-7.02(56), Florida Administrative Code. This activity was contrary to the expressed prohibition set forth in Sections 403.708(1)(a) and 403.161(1)(b), Florida Statutes, and Rule 17-7.04(3), Florida Administrative Code.

    
    

20. In view of the Respondents' actions and the violations shown, it is appropriate to cause the Respondents to remove the fill material and restore the site and six months should afford the Respondents ample opportunity to effect these repairs.

    
    

21. The Respondents having been found in violation of. Section 403.161, Florida Statutes, Petitioner is entitled to recover the expense of investigation in amount of $350.00 as envisioned by Section 403.141, Florida Statutes.

    
    

22. Respondents argue that the fill material was not placed within the landward extent of the waters of the state nor placed in an area regularly and periodically inundated by any waterway, notwithstanding the presence of wetlands indicators. Therefore, according to the Respondents, who rely on Goldring v. State Dept. of Environ. Reg., 452 So. 2d 968 (Fla. 3d DCA 1984), jurisdiction to require permits does not exist. This opinion has been overturned in the case of. Department of Environmental Regulation vs. E. Peter Goldring, 10 F. L. W. 429 (Fla. August 29, 1985). At page 430 the Florida Supreme Court make the following observations:

    
    

    In this case DER interpreted its rules to require an exchange of waters through the flow of water from the Goldring property to the state waters of Florida Bay. We agree that an exchange of water need not be a two- way flow, an exchange occurs wherever water meets water. The district court's interpretation. of an exchange of waters as requiring an inundation of the subject property by state waters ignores the need for regulatory control over pollution which may flow from the property into state waters. The district court's decision requires DER to base its jurisdiction over the landward extent of state waters by using high tide or flood-plain lines. Not only is

    this interpretation contrary to the remedial purpose of Chapter 403, it also conflicts with Falls Chase, where the court rejected DER's attempt to assert dredge and fill jurisdiction based upon "ordinary high water mark" rather than the predominance of listed aquatic vegetation. 424 So. 2d at 792-93.

    We hold that DER's dredge and fill jurisdiction depends upon the predominance of listed aquatic vegetation on the subject property along with an exchange of waters, whether one-way or two-way, with state waters. We quash Goldring and vacate the attorney's fee award.

    
    

23. This opinion of the Florida Supreme Court countenances the holding in the case at issue, and Respondents' arguments on the subject of jurisdiction are rejected in favor of a finding of jurisdiction by the Petitioner to take the action contemplated by this Recommended Order.

Based upon the Findings of Fact and Conclusions of Law reached, it is,

RECOMMENDED:

That a final order be entered which notes the violations as referred to in the Conclusions of Law and requires the payment of the investigative costs to the Petitioner within thirty days and further requires the removal of the fill material which was the subject of this dispute, described as the landward extent of Wills Branch and the unnamed flow-way, and the restoration of the land to previous elevations, vegetation type, and soil conditions to those that existed prior to filling, using construction techniques which would prevent water quality standards violations set forth in Chapter 17-3, Florida Adminis- trative Code, and ensure the protection of adjacent areas of the landward extent of the subject waters from incursion during the removal and restoration process unless allowed by the Petitioner. This Final Order should also provide for and alert Respondents to the right of access-by the Petitioner to the property at reasonable times to ensure compliance with the terms of the final order.

DONE AND ENTERED this 28th day of October, 1985, at 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 28th day of October, 1985.

APPENDIX

The proposed facts offered by the parties are substantially reported in the Findings of Fact of the Recommended Order, with the following exceptions:

Respondents' proposed facts set forth in the unnumbered page 3, at the unnumbered paragraph 3, last sentence to that paragraph, is rejected as it relates to the discussion of pollution through leaching, given the finding of fact at paragraph 10 which indicates that leaching could form the basis of pollution, and is further rejected in that proposal related to discussion of emitting restricted chemicals, for reason that the phrase is determined to be irrelevant.

COPIES FURNISHED:

Debra A. Swim, Esq. Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Daniel League and Janice N. League 5201 Hyde Park Circle Jacksonville, Florida 32210

Nancy Moureau

4348 Woodmere Street Jacksonville, Florida32210

Victoria Tschinkel

Secretary

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Docket for Case No: 85-000404

Orders for Case No: 85-000404