v. ) CASE NO. 85-1457
WALTER F. DECKER, )
Respondent. )
Pursuant to notice, a formal hearing in this cause was held on October 17, 1985, in Ft. Myers, Florida, before Diane A. Grubbs, a hearing officer of the Division of Administrative Hearings.
Richard M. Tucker, Certified Legal Intern Department of Environmental Regulation 2600 Blair Stone Road
For Respondent: Walter F. Decker
P. O. Box 905
Whether the activities conducted on respondent's property required a dredge/fill permit and whether respondent violated the conditions of the permit issued on February 15, 1985.
On March 22, 1985, the Department of Environmental Regulation (DER or Department) issued a "Notice of Violation and Orders for Corrective Action and Administrative Complaint for Revocation of Permit", which charged respondent with violating various provisions of Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code. On April 29, 1985, respondent filed a petition which answered the notice and complaint and requested a formal administrative hearing pursuant to Section 120.57(1) Florida Statutes. On May 7, 1985, the Department referred the matter to the Division of Administrative Hearings for further proceedings.
The parties filed a prehearing stipulation on October 9, 1985, but it was not signed by both parties. Therefore, the prehearing stipulation was signed by both parties and refiled at the hearing.
At the hearing petitioner presented the testimony of Maureen Powers; an Environmental Specialist with DER, who was qualified as an expert on the effects of dredge and fill on water quality and on DER dredge and fill jurisdiction James W. Beaver, III, an Environmental Specialist with DER, who was qualified as an expert on mangrove ecosystems, the effects of dredge and fill on water quality, and DER dredge and fill jurisdiction Doug L. Fry, an Environmental Supervisor with DER and an expert on the environmental effects of dredge and fill projects and John Langley Adair, an Environmental Manager with DER who supervises enforcement within the South Florida District. The Department submitted thirty (30) exhibits, which were admitted in evidence Mr. Decker testified in his own behalf, and his four exhibits were admitted in evidence.
Both parties submitted proposed findings of fact and conclusions of law. A ruling has been made on each proposed finding of fact in the appendix to this order.
Respondent is the record holder of a parcel of land located within Section 35, Township 45, South, Range 21 East, in Lee County, Florida. Respondent's property is contiguous to Pine Island Sound, a Class II, Outstanding Florida Water.
Maureen Powers, an Environmental Specialist with the Department initially inspected respondent's property on May 23, 1984, after the Department received an anonymous complaint that someone was clearing away mangroves on the property. Ms.
Powers-discovered that an earthen-fill road had been constructed on the property, and a portion of the road, 24' x 43'; was located within the landward extent of the state's waters. The determination that the portion of the road was within the Department's jurisdiction was based on the dominance of black and white mangroves. There had been recent mangrove cutting in the area, and a pile of vegetative debris, the result of the cutting, had been placed in the jurisdictional wetlands contiguous to Pine Island Sound.
On June 1, 1984, Ms. Powers met with respondent in Langley Adair's office to discuss the violations observed on May 23, 1984, and to discuss the resolution of these violations. Respondent agreed to remove all of the earthen fill and vegetative debris that he had deposited within the jurisdictional wetlands. He agreed to refrain from any further work within the jurisdictional area prior to receiving a permit from the department. He also agreed to open up a flow channel in the berm along Pine Island Sound to restore circulation to the area.
On July 11, 1984, Ms. Powers conducted an on-site inspection and discovered that the vegetative debris and the fill material had not been removed. Further, it was apparent that respondent's proposed home site, outlined by string and stakes, was submerged and directly connected by water to Pine Island Sound. The water standing on the property covered a portion of the fill area.
On August 8, 1984, another inspection was performed, and it was discovered that respondent still had not removed the fill materials. The condition of the property was essentially the same as it had been on July 11, 1984. By letter dated August 20, 1984, respondent was again notified of the violations and reminded that he had agreed on June 1, 1984, to remove the vegetative and earthen fill. Respondent was informed that he needed to remove the fill materials within 30 days of receipt of the letter in order to avoid further enforcement action.
On September 5, 1984, Ms. Powers again inspected the property and found that the proposed homesite and a portion of the fill were still submerged, that the water connected directly with Pine Island Sound and the fill materials had not been removed. Also apparent was a flume of milky white water which originated at the toe of the fill and continued into Pine Island Sound. Water samples were taken which revealed that the erosion of the unauthorized fill was resulting in a violation of state
surface water quality criteria, specifically, turbidity1 greater than 29 Nephelometric Turbidity Units above natural background.
The background sample, taken upstream from the site of the discharge, had a value of 5.2 turbidity units. The water sample taken two feet from the toe of the fill had a value of 69 turbidity units, and the sample from Pine Island Sound waterward of the mangrove fringe had a value of 46 turbidity units.
On October 9, 1984, a letter was sent to respondent which pointed out that the earthen and vegetative fill had not been removed and notifying respondent that erosion of the earthen fill into the waters of Pine Island Sound had resulted in violation of surface water quality criteria. Respondent was requested to immediately cease and desist from all unauthorized. activity under the Department's jurisdiction. To clarify the situation, original photos of the site were sent with the letter which showed the earthen fill, the vegetative debris, and the turbid water leaving the site. A diagram of the site was also included to show the location fill materials that were to have been removed.
On October 25, 1984, Ms. Powers met with Mr. Decker at the site. Ms. Powers showed respondent the earthen fill and vegetative debris that should have been removed. Ms. Powers noted that the waterward 23' x 24' section of the earthen fill had become heavily colonized by black mangrove seedings and, therefore, excepted that portion of the fill from the removal requirement so that the seedlings would not be disturbed. Mr. Decker stated that he would remove the unauthorized fill within two weeks.
Meanwhile, apparently in September, respondent had submitted a permit application. Mr. Beaver was the field inspector assigned by DER to evaluate the application and make a recommendation on the feasibility of the project to the dredge and fill supervisor. On October 8, 1984, Mr. Beaver performed the field inspection at the site, and on October 23, 1984, issued his permit application appraisal recommending that the application be denied. Mr. Beaver recommended that the project be reconsidered for a permit if, among other things, the house site were removed from the landward extent of the state waters and located in the uplands, the septic tank were removed from the low lying portions of the site, and previously cut areas were allowed to regrow in native vegetation.
On November 15, 1984, Mr. Beaver met with Mr. Decker and Mr. Cantrell, the district supervisor of dredge and fill, to discuss the project. Mr. Cantrell asked how the project could be modified so that Mr. Decker could have his house in the location where he wanted it. Mr. Beaver suggested a stilt, elevated house with a small fill pad that would allow access to the entrance of the house. The house would have to be elevated
-enough so that revegetation of wetland plants could occur underneath the house structure and water flow could be maintained.
On November 19, 1984, Ms. Powers and Mr. Beaver met Mr. Decker at the property. Ms. Powers and Mr. Beaver staked the DER jurisdiction line and marked the proposed location of Mr. Decker's boardwalk. Mr. Decker asked about placing wood chip mulch on the wetlands on his property in order to beautify the area. Mr. Decker was informed that wood chip mulch was considered vegetative fill and would require modification of his permit application.
Subsequent to the meeting of November 15 and the on- site inspection of November 19, Mr. Decker modified his project. However, wood chip mulch was not mentioned. On December 7,
1984, Mr. Beaver recommended that the application be approved subject to specified conditions, which were ultimately incorporated into the permit.
On December 11, 1984, Ms. Powers inspected the site and discovered that a large pile of wood chips had been placed on the northeast end of the fill road waterward of the jurisdiction line. The vegetative debris and earthen fill that had previously been on the project had not been removed.
Respondent was notified of the violations by a Cease and Desist letter dated January 4, 1985. The letter pointed out that
respondent had been told specifically that wood chip mulch was considered vegetative fill and that dredge/fill permit would be required prior to the placement of any fill material.
On February 5, 1984, respondent met with DER, officials to discuss the violations. Mr. Decker stated that the fill had been removed as requested. The Department informed Mr. Decker that an inspection would be performed and, if the fill had not been removed, the Department would pursue formal enforcement action. On February 7, 1985, the site was inspected none of the fill material had been removed. A subsequent inspection on February 20, 1985, revealed that the wood chips had been spread throughout the jurisdictional wetlands.
On February 15, 1985, respondent received a permit to fill and to construct a dock and boardwalk. The specific conditions of the permit include the following:
2. A 20' x 16' - 4" fill pad shall be the only fill placed waterward of the jurisdictional line. This fill pad will be composed of clean sand and have the banks stabilized by a riprap revetment with a slope not greater than 2H:1V.
* * *
The house and all associated structures shall be built upon stilts with concrete footings and/or wooden pilings.
On-site turbidity control devices shall be installed and properly maintained to localize turbidity impacts to the construction area.
* * *
All vegetative debris, trash and spoil material resulting from concrete footing placement shall be removed from the landward extent of State Waters as defined by the jurisdiction line staked by the DER.
Upon completion of construction, non- filled areas beneath the stilt house and associated structures shall be returned to original grade if they were altered by construction. Wetland vegetation shall be planted in the previously cleared area and mangroves removed by construction activities shall be replaced on a 2 for 1 basis with 80% survival over a three year period.
* * *
11. The project shall comply with applicable State Water Quality Standards, namely:
17-3.051 - Minimum Criteria for All Waters at All Times and All Places.
17-3.061 - Surface Waters: General Criteria
17-3.111 - Criteria - Class II Waters Shellfish Propagation or Harvesting, Surface
Waters
General Conditions 2 and 5 of the permit provide:
2. This permit is valid only for the specific processes and operation applied for and indicated in the approved drawings or exhibits. Any unauthorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit may constitute grounds for
81' filled area was located within the landward extent of the state waters.
19. Respondent has violated several conditions of the permit issued February 15, 1985. Specific Condition #2 provided that the 20' x 16' fill pad would be "the only fill placed waterward of the jurisdictional line." Instead, respondent filled an area approximately 78' x 81' to an average height of about 2\', totaling approximately 585 cubic yards of fill. The fill was non-native fill brought onto the site. The permit did not authorize fill for a septic tank in the revocation and enforcement action by the department.
5. This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant or aquatic life or property and penalties therefor caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, unless specifically authorized by an order from the department.
On March 19, 1985, an inspection of the property revealed that Mr. Decker had totally ignored the conditions of his permit. Rather than a fill pad of 20' x 16', respondent had filled an area approximately 78' x 81'.2 The fill was unstabilized, and no turbidity control devices were in place. Fill material had been used to construct a earthen berm across a natural flow channel, blocking the flow of water onto the property. Further, the vegetative debris resulting from the construction of the boardwalk had been deposited in the mangrove wetlands.
On March 22, 1985, a Notice of Violation and. Orders for Corrective Action was sent to the respondent. Respondent received the notice on or about March 26, 1985.
The landward extent of the state waters on respondent's property, the area in which a DER permit is required for dredging and filing, was determined by the presence of red mangroves (Rhizophora mangle), black mangroves (Avicennia germinans), and saltwort (Basis maritime) as the dominant species. The jurisdiction line was originally staked on
November 19, 1984, and was reestablished on April 23, 1985, from remaining landmarks, due to the original markers being removed.
The 78' x81' filled area was located within the landward extent of the state waters.
Respondent has violated several conditions of the permit issued February 15, 1985. Specific Condition #2 provided that the 20' x 16' fill pad would be "the only fill placed waterward of the jurisdictional line." Instead, respondent filled an area approximately 78' x 81' to an average height of about 21/2', totaling approximately 585 cubic yards of fill. The fill was non-native fill brought onto the site. The permit did not authorize fill for a septic tank in the jurisdictional wetlands, but respondent placed a septic tank and drainfield in that area.3 By filling an area several times the size of the area authorized, respondent has seriously violated the conditions of the permit. A fill area of the size that now exists eliminates the habitat and water quality functions that the area historically performed.
Respondent has violated Specific Condition #4, which required that the house and associated structures be built on stilts. The purpose of such a requirement is to preserve undisturbed the existing substrate, which constitutes the base of the food chain, and to allow for a free flow of water across the site, which is essential to the health of the mangrove system. Respondent not only filled an area larger than his proposed house, he poured a solid, continuous, concrete foundation on top of the fill, which would prevent the flow of water should the water rise high enough to come onto the filled area.4 By filling the area, destroying the substrate, and preventing the flow of water into the area, respondent has violated Specific Condition #4 of the permit.
Respondent violated Specific Condition #5 of his permit in that respondent failed to install any turbidity control devices. Turbidity control devices of some sort are necessary in a fill area such as the one in this case. Turbidity screens or staked hay bales could have been used. Respondent also violated Specific Condition #8. Construction debris and vegetative debris were located throughout the area. Although respondent technically has not violated Specific Condition #9, in that it requires acts to be performed "upon
completion of construction", respondent has made compliance with that provision an impossibility because he has filled the "non- filled areas beneath the stilt house" and therefore there are no
"non-filled areas" to return to original grade.
Respondent has never requested that his permit conditions and requirements be modified.
By his actions, respondent has repeatedly shown a complete disregard for the requirements of the law, and he has totally ignored the conditions set forth in the permit.
Mr. Decker was not qualified as an expert and I did not find him to be a credible witness.
The reasonable costs and expenses incurred by the Department in relation to the enforcement aspects of this action are $866.17. These costs and expenses were incurred by the Department in its effort to control and abate pollutants and to restore the waters and property of the state to their former condition.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.
Sections 403.087(1), Florida Statutes (1983), Section 403.913(1),Florida Statutes (1984 Supp.) and rules 17-4.28(2) and 17-12.030, Florida Administrative Code require that a permit be obtained from the Department for dredging or filling in, on or over the surface waters of the state. The Department may revoke any permit issued by it if the permit holder has violated law, department orders, rules, or permit conditions. Sections 403.087(6) and 120.60(6), Florida Statutes, and Florida Administrative Code Rule 17-4.10.
Respondent's persistent violations of the law, the department rules, and the conditions of his permit, the severity of the violations, and his failure to take corrective action despite the numerous requests by the Department and the respondent's repeated promises to do so, indicate that revocation of respondent's permit is not only warranted but necessary.
The majority of respondent's violations consisted of filling in, on or over the surface waters of the state without a permit to do so. These filling activities violated the law and Department rules requiring a permit, and the filling activities
taken subsequent to February 15, 1985, violated the conditions of the permit which specifically limited the fill area to a 20' x 16' fill pad. Respondent also violated the surface water quality criteria contained in Rule 17-3.061(2)(r), Florida Administrative Code (1984 Supp.), which provides that turbidity shall not exceed 29 Nephelometric Turbidity Units above natural background. A violation of surface water quality criteria constitutes pollution. Rule 17-3.061(2) Florida Administrative Code.
Section 403.161(1)(a) and (b) provides:
It shall be a violation of this chapter, and it shall be prohibited:
Section 403.141(1) provides that anyone committing a violation specified in section 403.161(1) is liable to the state for damage caused "...and for reasonable costs and expenses of the state in tracing the source of the discharge, in controlling and abating the source and the pollutants, and in restoring the air, waters, and property, including animal, plant and aquatic life, of the state to their former condition. . . ." The state has incurred reasonable costs and expenses of $866.17 in its efforts to control and abate the pollution caused by respondent's violations and to restore the waters and property of the state to their former condition. Therefore, those costs and expenses are recoverable pursuant to section 403.141(1), Florida Statutes.
be revoked that the respondent be ordered to make payment to the Department in the amount of $866.17 for costs and expenses incurred by the state and that the following corrective action be ordered:
DONE and ENTERED this a 24th day of January, 1986, in Tallahassee, Leon County, Florida.
DIANE A. GRUBBS
FILED with the Clerk of the Division of Administrative Hearings this 24th day of January, 1986.
1/ The turbidity in the water is caused primarily by suspended sediment which interferes with the transparency of the water.
2/ The size of the area filled was disputed. However, I accept the testimony of Ms. Powers, Mr. Beaver, and Mr. Fry as to the approximate size of the fill as more credible based on the photos of the area and Mr. Decker's own drawings of the site.
3/ 0ne of the reasons for specifically limiting the fill area to a fill pad for the entryway was to prevent placement of the septic tank waterward of the jurisdictional line and thereby prevent the introduction of bacteria *to the waters of the state.
4/ Mr. Decker had been told that he could construct the forms for the concrete footings but that he should not pour the concrete.
The following constitutes my specific rulings pursuant to section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rejected, not a Finding of Fact.
Accepted generally in Finding of Fact 15.
Accepted, set forth in Background.
Accepted as modified in Findings of Fact 2 and 3.
Accepted in Findings of Facts 3, 4 and 5.
Accepted in Finding of Fact 6.
Accepted in Findings of Fact 7, 8, 11.
Accepted in Finding of Fact 13.
Accepted in Findings of Fact 13 and 14.
Accepted in Finding of Fact 14.
Accepted in Finding of Fact 16.
Accepted in Finding of Fact 18.
Accepted in Finding of Fact 17.
Accepted generally in Findings of Fact 19 and 20.
Accepted in Background.
Accepted in Finding of Fact 1.
Rejected as irrelevant in that the proposed finding deals with the impacts of the proposed project that was not approved. Accepted to the degree it is relevant in footnote 3.
Accepted in Findings of Fact 9 and 10.
Accepted in Findings of Fact 9, 10, 12 and 15.
Accepted in Findings of Fact 15 and 22.
Accepted in Findings of Fact 16, 19, 20 and 21.
Accepted in Finding of Fact 19.
Accepted in Findings of Fact 20 and 21. Rejected that Specific Condition #9 has been violated, (testimony of Fry); however, accept that respondent's activities have made compliance with that provision an impossibility (Finding of Fact 21).
Rejected as not a finding of fact, although accepted that he testified in Background.
Accepted in Findings of Fact 16 and 17.
Accepted in Findings of Fact 21, footnote 4.
Accepted to the degree it is a finding of fact in Finding of Fact 25.
Rejected as not a finding of fact.
Accepted that size of fill was disputed in Findings of Fact
16 and footnote 2.
Rejected as not a finding of fact.
Rejected as not a finding of fact.
Accepted as set forth in Finding of Fact 16.
Rejected as not a finding of fact.
Douglas MacLaughlin, Esquire Richard M. Tucker,
Walter F. Decker 15133 Captiva Drive
P. O. Box 905 Captiva, FL 33924 and
