STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3138

)

WILLIAM A. ROMAINE and ) B & W MARINE CONSTRUCTION, INC., )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on December 3, 1987, in Jacksonville, Florida.

The Petitioner, the Department of Environmental Regulation (hereinafter referred to as the "Department"), was represented at the formal hearing by John

P. Ingle, Assistant General Counsel of the Department. Mr. Romaine represented himself. B & W Construction, Inc. (hereinafter referred to as "B & W"), was represented by Robert E. Woodyard, the President of B & W.

INTRODUCTION

In 1986, a Notice of Violation and Orders for Corrective Action was served on Mr. Romaine and B & W alleging violations of Chapter 403, Florida Statutes. The Respondents requested an informal hearing to dispute the alleged violations. On June 8, 1987, a second Notice of Violation and Orders for Corrective Action was Served on the Respondents. Efforts to resolve the dispute between the parties concerning the alleged violations of Chapter 403 were unsuccessful and, therefore, the Department filed a Request for Assignment of Hearing Officer and Notice of Preservation of Record on July 1, 1987, with the Division of Administrative Hearings.

Prior to the commencement of the formal hearing, Mr. Romaine filed eight Requests for Information. The Department filed a Response and Objection to Respondent's "Request for Information" Dated November 15, 1987 and September 29, 1987. At the commencement of the formal hearing, the Requests for Information were denied.

At the commencement of the formal hearing, the Department made an ore tenus motion in limine. The Department requested that all evidence concerning dredge and fill operations with or without permit on other property on the St. Johns River and settlement negotiations in this case be excluded from the proceeding. This motion was granted without objection from the Respondents

Official recognition of the relevant statutory law and rules was requested and taken.

Finally, the parties stipulated that a bulkhead had been constructed on property owned by Mr. Romaine.

At the formal hearing the Department presented the testimony of John Dunphy, Jeremy Tyler, James Tison and Frances Tison. Mr. Dunphy was accepted as an expert in the determination by the Department of jurisdiction lines and the law governing permitting of dredge and fill operations in wetlands. Mr. Tyler was accepted as an expert in the determination by the Department of jurisdiction lines and the application of Chapter 403, Florida Statutes, and Chapter 17, Florida Administrative Code, to dredge and fill activities and the requirement for permits for same.

The Department also offered 12 exhibits which were accepted into evidence. Mr. Romaine testified on his own behalf and presented the testimony of

Robert E. Woodyard and Fred R. Herndon. Mr. Herndon was accepted as an expert in heavy machinery operation. Mr. Romaine also offered 10 exhibits which were marked as "Romaine" exhibits and accepted into evidence.

B & W presented the testimony of Mr. Woodyard. No exhibits were offered by B & W.

By letter dated December 7, 1987, Mr. Romaine filed corrected copies of Romaine exhibits 8, 9 and 10. To the extent that these exhibits correct errors in the original exhibits as pointed out by Mr. Romaine at the formal hearing, they will be substituted for the original exhibits.

At the conclusion of the formal hearing, the parties were given until December 31, 1987, to file proposed recommended orders, if they desired to file a proposed recommended order. The date established was conditioned on the Department providing a copy of the recording of the formal hearing to Mr.

Romaine within a reasonable time after the completion of the formal hearing.

Prior to December 31, 1987, the Department notified the undersigned that the Department had not been able to prepare a copy of the recording of the formal hearing which Mr. Romaine had requested. The Department therefore requested that the parties be given until January 31, 1988, to file proposed recommended orders. This conversation was confirmed by letter dated December 31, 1987.

On January 6, 1988, Mr. Romaine filed a Request to Dismiss. This Request was based, in part, upon the failure of the Department to provide Mr. Romaine with a copy of the tapes of the formal hearing and a list of the exhibits and to return pictures which were loaned to the Department by Mr. Romaine so that a copy of the pictures could be made. By Order dated January 12, 1988, the Request to Dismiss was denied. A deadline was also established in the Order for the Department to return the pictures borrowed by the Department. Finally, the Order of January 12, 1988, established a new deadline for the filing of proposed recommended orders. The extension of the date for filing proposed recommended orders was granted to insure that Mr. Romaine received a copy of the tapes of the formal hearing before preparing his recommended order. Mr. Romaine had been informed prior to the date of this Order that he would be given an opportunity to hear the tapes before his recommended order would be due despite the December 31, 1987, deadline conditionally set at the end of the formal hearing.

Mr. Romaine and the Department filed proposed recommended orders within the time requirement established by the Order of January 12, 1988. The proposed recommended orders contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.

ISSUES

The following issues have been raised by the Department:

1. Did the Respondents carry out any dredge, fill and bulkhead activities on Mr. Romaine's land within the "waters of Florida"; if so, to what extent?

   
   

2. If dredge, fill and bulkhead activities took place within the waters of Florida, did they cause any damage to the natural resources the Department is charged with protecting; and, if so, to what extent?

   
   

3. If such activities took place within the waters of Florida, what actions would be appropriate to remedy the violations and the damage caused?

   
   

4. What is the amount of expense and damage, if any, which the Respondents should be required to pay to the Department?

FINDINGS OF FACT

1. Mr. Romaine and his wife Purchased land along the shore of the St. Johns River on December 10, 1984. The property was purchased from Milton C. and Cheri A. Rosberg and was secured by mortgage from James L. Tison, Jr., and Frances S. Tison.

   
   

2. The land purchased by the Romaines (hereinafter referred to as the "Property") is located on the westerly bank of the St. Johns River in Clay County, Florida. The Property is more particularly described in the copy of the Warranty Deed accepted into evidence as the Department's exhibit 1.

   
   

3. The property immediately to the north of the Property is owned by Mr. Rosberg. The property immediately to the south of the Property is owned by Mr. and Mrs. Tison. The Tisons have resided on the property to the south of the Property for approximately 27 years. The Tisons formerly owned the Property. Mr. Tison mowed the grass on the Property and otherwise maintained the Property prior to its sale. The Tisons are familiar with the shoreline of the St. Johns River along the Property both before and after December of 1985.

   
   

4. During the latter part of 1985, Mr. Romaine contracted with B & W for the construction of a bulkhead along the western border of the Property and the St. Johns River.

   
   

5. From approximately December 3, 1985, to December 7, 1985, a bulkhead was built along the portion of the Property fronting on the St. Johns River.

   
   

6. No application for dredge and fill or bulkhead activities was filed with the Department with regard to the activity on the Property, and no such permit was issued by the Department.

   
   

7. Mr. Romaine relied upon B & W to obtain any permits required for the construction of the bulkhead on the Property. The Department was not asked

   whether a permit was required for the construction of the bulkhead on the Property. Other State and federal agencies were consulted concerning their jurisdiction over the construction of the bulkhead on the Property.

   
   

8. In addition to the portion of the bulkhead constructed on the Property, approximately 31 feet of bulkhead was constructed from the border of the Property with Mr. Rosberg's property north to a dock located on Mr. Rosberg's property. Mr. Rosberg gave Mr. Romaine permission to use the dock in exchange for the construction of this portion of the bulkhead.

   
   

9. For purposes of presenting evidence, the Department divided the bulkhead constructed along the Property into two sections: Area "A" and Area "B." Area A consists of a portion of the bulkhead which begins at the border of the Property and Mr. Rosberg's property and runs in a relatively straight line to the south for approximately 48.2 feet. The bulkhead then begins a gradual, then more pronounced, curve to the west. This is the end of Area A. The bulkhead in Area B goes almost perpendicular to the tangent of the curve in a southern to southwesterly direction in a straight line for approximately 23 feet. The bulkhead then makes a sharp turn to the west and proceeds in a straight line for approximately 12.5 feet where it intersects with the Property's southern boundary. Areas A and B are shown on the Department's exhibit 2 and Romaine exhibit 8. The designation of Areas A and B on these exhibits was not prepared by a licensed surveyor; the designation was intended only as an approximate drawing of portions of the Property.

   
   

10. A wetland area is an area which experiences flooding or inundation of water often enough for the area to become defined by species of plants and soils characteristic of areas subject to flooding or inundation of water.

    
    

11. Wetlands are potentially the most important part of a water body. Wetlands can maintain water quality, acting as the "kidneys" of a water body, provide habitat not found elsewhere, act as a flood storage area, protect against erosion and play an essential role in the life cycle of aquatic plant and animal life. Water quality will deteriorate if wetlands are destroyed.

    
    

12. The wetlands that border the St. Johns River act as a flood plain where water is stored during periods when the River is high.

    
    

13. The determination of the extent, if any, of the Department's jurisdiction over the bulkhead built on the Property, is more difficult in this case than in a case where a permit is applied for because of the inability of the Department's experts to examine the Property in its natural, undisturbed state. Because of the changes to the natural state of the Property, including filling activities, many of the natural indicators used to determine the Department's jurisdictional line on the Property have been eliminated or altered. If there is insufficient physical or other evidence to the contrary, the landowner should be given the benefit of any doubt the Department has in setting the Department's jurisdictional line and a line of restoration where property is examined after it has been altered.

    
    

14. In determining the extent of the Department's jurisdiction in this case, the starting point is the St. Johns River itself. The open water of the St. Johns River is a water body over which the Department has jurisdiction pursuant to the Florida Administrative Code.

    
    

15. Area B used to be a wetlands area prior to the placement of the bulkhead on the Property and the placement of fill behind the bulkhead. This

    finding of fact is supported, in part, by the location of a large cypress tree, which is a wetlands tree. This tree is the first tree encountered behind the bulkhead in Area B and is the dominant upper canopy vegetation. This tree has been marked by a red "X" on the Department's exhibits 2, 3 and 7. Additionally, the area to the east and south of the bulkhead (between the bulkhead and the St. Johns River) still remains as wetlands.

    
    

16. Because of the alteration of Area B by the bulkhead and the placement of fill behind the bulkhead, it is not possible to determine exactly how far the Department's jurisdictional line goes landward from the shore of the St. Johns River. At a minimum, the area between the dashed line and the bulkhead on the Department's exhibit 3 constitutes wetlands and lands within the Department's jurisdiction.

    
    

17. By filling the area identified in the Department's exhibit 3 as within the Department's jurisdiction, wetlands of the St. Johns River have been destroyed. This has resulted in the elimination of an area which served the functions of wetlands as explained in findings of fact 10-12. To ignore the fact that the construction of the bulkhead was completed without a permit or to now grant a permit could affect other bulkhead and fill projects along the St. Johns River. Even though the effect of the filling of Area B may be small, the cumulative impact of the destruction of multiple small areas of wetland would have an overall negative effect on the quality of the St. Johns River.

    
    

18. In order to remedy the damage in Area B the original status quo of the area should be restored. This requires the removal of the bulkhead in Area B and all fill added behind the bulkhead in Area B down to the original contour of the land and revegetating the area with indigenous wetland vegetation. During this process, steps must be taken to control turbidity and to prevent pollution of adjacent waters.

    
    

19. Additionally, it would be appropriate to require that numbered paragraphs 5c, 6, 7, 8 and 9, in the Department's exhibit 10, be complied with in restoring Area B.

    
    

20. The Department's experts were unable to say where the Department's jurisdictional line was located in Area A of the Property because there was no physical evidence remaining after construction of the bulkhead from which it could be determined where the natural shoreline of the St. Johns River was located at the time of the Department's examinations.

    
    

21. Despite the inability of the Department's experts to precisely locate the Department's jurisdictional line based upon the current condition of Area A, other evidence supports a finding of fact that the bulkhead in Area A was built within the jurisdiction of the Department. In particular, the testimony of Mr. and Mrs. Tison and the Department's exhibits 12A-12D, support a finding that the portion of the bulkhead constructed in Area A of the Property extends into the waters of the St. Johns River to the east of the former shoreline of the Property. Fill was then placed into the River between the bulkhead and the former shoreline. Mr. Tison drew a line in red on the Department's exhibit 11. This line represents the approximate former shoreline of the St. Johns River prior to the construction of the bulkhead on the Property. The area between this red line and the bulkhead is within the Department's jurisdiction.

    
    

22. B & W used a Case 410 tractor backhoe to construct the bulkhead. This tractor had outside wheels eighty-two inches apart and it weighed approximately 14,000 pounds. A bucket at the end of the tractor was used for digging. The

    bucket was approximately two feet wide and the arm, when fully extended, could perform work approximately eight feet away from the body of the tractor.

    
    

23. After digging a trench where the bulkhead was to be placed in Area A, a water jet was used to sink four-by-six posts five feet apart. Two-by-eight boards were then stacked between the posts six boards high. The backhoe was used to dig a hole approximately twelve feet behind each post where a deadman was sunk or a tieback was attached to each post.

    
    

24. The Department's exhibits 12A-12D are Photographs of Area A during the construction of the bulkhead. They all show water of the St. Johns River between the posts to the west where the shoreline of the St. Johns River was located. Based upon the size of the backhoe, Mr. Woodyard's testimony that the backhoe's wheels, while the backhoe straddled the bulkhead area to dig the trench, were on dry land is not credible.

    
    

25. The Department's exhibits 12A and 12D show a leaning cypress tree in the waters of the St. Johns River. The bulkhead posts pictured in these exhibits are several feet into the River. In Romaine's exhibits 3 and 4, and the Department's exhibit 4 the same leaning cypress tree is several feet landward of the bulkhead.

    
    

26. The Department's exhibit 12C shows the bucket of the backhoe totally submerged in the waters of the St. Johns River. This further supports a finding that dredging and filling occurred in the waters of the St. Johns River.

    
    

27. When the Department's exhibits 12A-12D (photographs of the bulkhead construction in Area A) are compared with Romaine exhibits 3 and 4 and other photographs taken after construction of the bulkhead in Area A, it is evident that fill was placed between the bulkhead and the former shoreline of the St. Johns River.

    
    

28. The construction of the bulkhead in Area A has caused the same damage that the construction of the bulkhead in Area B caused. The same remedy suggested for Area B would also be appropriate for Area A.

    
    

29. The Department incurred $730.17 in its investigation of this matter and the preparation for the formal hearing of this case.

    
    

    CONCLUSIONS OF LAW

    
    

30. The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this Proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

31. The Department is the agency in the State of Florida charged with the responsibility to protect the air and water resources of the State, and to administer and enforce Chapter 403, Florida Statutes, and the rules promulgated thereunder. Section 403.061, Florida Statutes (1987). Pursuant to Section 403.061(8), Florida Statutes (1987), the Department is authorized to:

    
    

    Issue such orders as are necessary to effectuate the control of air and water pollution and enforce the same by all appropriate administrative and judicial Proceedings.

32. Pursuant to Section 403.121(2), Florida Statutes (1987), the Department is authorized to institute administrative Proceedings "to establish liability and to recover damages for any injury to the air, water, or property, including animal, plant, or aquatic life, of the state . . ." caused by a violation of Chapter 403 as provided in Section 403.161(1), Florida Statutes. The Department is also authorized to order the "prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action." Section 403.121(2)(b), Florida Statutes (1987).

    
    

33. Among the violations of Chapter 403 specified in Section 403.161(1), Florida Statutes (1987), are the following:

    
    

    1. To cause pollution, except as otherwise provided in this chapter, so as to harm or injure human health or welfare, animal, plant, or aquatic life or property.

    2. To fail to obtain any permit required by this chapter or by rule or regulation, or to violate or fail to comply with any rule, regulation, order, permit, or certification adopted or issued by the department pursuant to its lawful authority.

       
       

34. It is clear that the placement of the bulkhead and fill in Area A of the Property is a violation of both of the above quoted provisions of Section 403.161(1), Florida Statutes (1987). "Pollution" is defined by Section 403.031(7), Florida Statutes (1987), as:

    
    

    the presence in the . . . waters of the state of any substances, contaminants, noise, or man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of water in quantities or at levels

    which are or may be potentially harmful or injurious to human health or welfare, animal or plant life, or property or which unreasonably interfere with the enjoyment of life or property, including outdoor recreation.

    
    

35. The term "water" is defined by Section 403.031(12), Florida Statutes (1987), as including, but not limited to:

    
    

    rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters. . .

    
    

36. The facts in this case proved that the Respondents placed the bulkhead and the fill behind the bulkhead in Area A of the Property in the waters of the St. Johns River. The St. Johns River is a river of the State of Florida and is clearly within the jurisdiction of the Department. The placement of the

    bulkhead and the fill in the St. Johns River also constitutes pollution. The Respondents are, therefore, guilty of violating Section 403.161(1)(a), Florida Statutes (1987).

    
    

37. The placement of the bulkhead and the fill in Area A of the Property in the St. Johns River is also a violation of Section 403.161(1)(b), Florida Statutes (1987). Section 403.913(1), Florida Statutes (1987), provides the following pertinent requirements concerning when permits are required:

    
    

    No Person shall dredge or fill in, on, or over surface waters without a permit from the department, unless exempted by statute or department rule.

    
    

38. The term "dredging" is defined as excavation, by any means, in waters of the State. Section 403.911(2), Florida Statutes (1987). "Filling" is defined as the deposition, by any means, of materials in the waters of the State. Section 403.911(4), Florida Statutes (1987). Based upon these definitions, the Respondents have dredged and filled in, on, and over the surface waters of the St. Johns River without a permit when the bulkhead was constructed in Area A of the Property. This action constitutes a violation of Section 403.161(1)(b), Florida Statutes (1987).

    
    

39. The portion of the bulkhead built in Area B of the Property and the fill placed behind this portion of the bulkhead was not directly in the waters of the St. Johns River. Section 403.031(12), Florida Statutes (1987), however, in defining the "waters" of the State, and Section 403.817, Florida Statutes (1987), recognize that the waters of the State naturally rise and fall for various reasons. Therefore, Chapter 403, Florida Statutes, provides that the waters of the State also include the "landward extent" of the various water bodies under the State's jurisdiction. Whether the placement of the bulkhead and the fill in Area B constitutes a violation of Section 403.161(1), Florida Statutes (1987), depends, therefore, on the "landward extent" of the St. Johns River into Area B.

    
    

40. In order to determine the landward extent of a water body, the Department is directed to provide, by rule, a method of determining the landward extent of the waters of the State. Section 403.817, Florida Statutes (1987). Pursuant to this directive the Department has provided a method of determining the extent of the waters of the State in Rule 17-4.022, Florida Administrative Code. That Rule, however, provides the method of determining the landward extent of the waters of the State where an application is filed for a permit before the alterations to be made have actually been made. This case does not involve an application for a permit to build a bulkhead. Rule 17-4.022, Florida Administrative Code, does not, therefore, control the determination of the landward extent of the St. Johns River into Area B of the Property.

    
    

41. In this case the bulkhead has already been built and Area B has been altered to such an extent that it is difficult, if not impossible, to determine the landward extent of the St. Johns River in Area B of the Property. Under these circumstances, it is appropriate for the Department to prove the landward extent of the St. Johns River based upon the available evidence. Based upon that evidence as presented in this case concerning Area B, it is concluded that the Respondents have violated Section 403.161(1)(a) and(b), Florida Statutes (1987), by constructing the bulkhead and placing fill behind it in Area B of the Property.

42. Even if it were appropriate to apply Rule 17-4.022, Florida Administrative Code, in determining the landward extent of the St. Johns River in Area B of the Property, the evidence supports a conclusion that the landward extent of the St. Johns River extends at least to the cypress tree marked with a red "X" on the Department's exhibits 2, 3 and 7. Pursuant to Rule 17- 4.022(1), Florida Administrative Code, the landward extent of surface waters is determined by "dominant plant species." The dominant plant species is to be determined "in a plant stratum (canopy, subcanopy, or ground cover)." To determine the dominant plant species, Rule 17-4.022(a), Florida Administrative Code, provides the following:

    
    

    The existence of a surface water, as defined in Section 403.031, F.S., shall first be identified. Vegetation shall then be inspected moving landward. [Emphasis added].

    
    

43. The "surface water" in this case is the St. Johns River. Therefore, to determine the landward extent of the St. Johns River pursuant to Rule 17- 4.022, Florida Administrative Code, vegetation is inspected beginning at the St. Johns River and moving landward. This inspection requires certain calculations and comparisons of submerged, transitional and upland species in the canopy.

    The Department did not present precise calculations of the submerged, transitional and upland species in the canopy or the other stratums. Calculations presented by Mr. Romaine, indicate, however, that the Department's jurisdiction extends, at a minimum, to the place where the cypress tree is located as indicated by a red "X" on the Department's exhibits 2, 3 and 7. That tree is a submerged specie and constitutes the only canopy vegetation between its location and the waters of the St. Johns River. Therefore, applying Rule

    17-4.022(a), Florida Administrative Code, to the area from the St. Johns River to the cypress tree indicates that the area is part of the landward extent of the St. Johns River. Being within the landward extent of the St. Johns River, the portion of Area B from the St. Johns River to the cypress tree is part of the waters of the State of Florida.

    
    

44. Placement of the bulkhead and the fill behind the bulkhead in Area B of the Property within the landward extent of the St. Johns River constitutes pollution of the waters of the State in violation of Section 403.161(1)(a), Florida Statutes (1987). The placement of the bulkhead and fill in Area B also constitutes dredging and filling in, on, and over waters of the State without a permit in violation of Section 403.161(1)(b), Florida Statutes (1987).

    
    

45. Mr. Romaine has attempted to refute the Department's actions in this case by arguing that the placement of the bulkhead on the Property was not in the waters of the St. Johns River or within the landward extent of the St. Johns River pursuant to Rule 17-4.022, Florida Administrative Code. The evidence does not support Mr. Romaine's argument concerning the placement of the bulkhead and fill in Area A. With regard to the determination of the Department's jurisdiction in Area B, Mr. Romaine has failed to recognize that Rule 17-4.022, Florida Administrative Code, is not dispositive of this case. Mr. Romaine has also failed to properly apply the Rule.

    
    

46. In attempting to apply Rule 17-4.022, Florida Administrative Code, Mr. Romaine used an arbitrary area of the Property roughly the same as the area included on the Department's exhibit 2. This area of the Property was used by the Department for illustrative purposes only and was never represented as the area of the Property to which the calculations of Rule 17-4.022, Florida

    Administrative Code, are to be applied. As quoted, supra, the calculations of the Rule are to be applied by inspecting vegetation beginning with the Surface water and then "moving landward." Thus, the determination of the landward extent of the St. Johns River in Area B would be determined by starting at the St. Johns River and moving landward, if Rule 17- 4.022, Florida Administrative Code, was dispositive of this case. Moving landward from the St. Johns River, the first canopy tree encountered in Area B is a cypress tree, a submerged species. Therefore, based upon an inspection of the area from the St. Johns River to the cypress tree, the only canopy tree indicates that the landward extent of the St. Johns River extends at least to that point. If the inspection continues further landward, eventually a point would be reached where the landward extent ends. Because of the alteration to Area B, however, it is not possible to continue the inspection beyond the cypress tree or to reasonably conclude exactly how much farther the waters of the St. Johns River extend beyond the point where the cypress tree is located. The fact that the determination must end at the cypress tree, however, does not mean that the Department's jurisdiction does not extend at least that far.

    
    

47. The evidence established that the Respondents' violation of Section 403.161(1), Florida Statutes (1987), should be corrected by requiring the Respondents to carry out the remedial actions described in Findings of Fact 18 and 19, supra. Additionally, the Respondents should be required to reimburse the Department for its costs of $730.17 incurred in its investigation of this matter and preparation for the formal hearing of this case.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued finding that the Respondents have

violated Section 403.161(1)(a) and (b), Florida Statutes (1987). It is further

RECOMMENDED that the Final Order provide that the Respondents, jointly and severally, must pay $730.17 to the Department within twenty (20) days from the date of the Final Order in this case in reimbursement of the Department's expenses. Payment shall be made by cashiers check or money order and shall be payable to the Department of Environmental Regulation. Payment shall be sent to the Department of Environmental Regulation, Northeast District, 3426 Bills Road, Jacksonville, Florida 32207. It is further

RECOMMENDED that the Final Order Provide that the Respondents are to restore the areas of the Property described in this Recommended Order within Sixty (60) days from the date of the Final Order as follows:

1. All of the vertical bulkhead located on the Property shall be removed;

   
   

2. All fill material within the jurisdiction of the Department shall be removed and placed upland of the Department's jurisdiction as described in this Recommended Order (the portion of Area A between the St. Johns River and the line drawn in red on the Department's exhibit 11 and the portion of Area B between the St. Johns River and the dashed line on the Department's exhibits 2,

   3 and 7. The area from which the fill material is removed shall be restored to the elevation which existed prior to the violation; and

   
   

3. During restoration of the Property, adjacent areas within the jurisdiction of the St. Johns River shall not be disturbed unless otherwise approved by the Department in writing.

It is further

RECOMMENDED that the Final Order provide that the Respondents shall carry out the activities described in paragraphs 5c, 6, 7, 8 and 9 of the Department's exhibit 10. It is further

RECOMMENDED that the Final Order Provide that the Respondents are not to undertake any additional dredge and fill activities within the waters of Florida, other than the restoration measures described in the Final Order, without obtaining a permit or written notice that the work is exempted from permitting from the Department. It is further

RECOMMENDED that the Final Order provide that the Respondents are to allow authorized representatives of the Department access to the Property at reasonable times for purposes of determining compliance with the Final Order in this case and with Chapter 403, Florida Statutes, and the Department's rules promulgated thereunder.

DONE and ENTERED this 2nd day of March, 1988, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 1988.

APPENDIX

The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

Petitioner's Proposed Findings of Fact:

Proposed Finding Paragraph Number in Recommended Order of Fact of Acceptance or Reason for Rejection

1 Hereby accepted.

2 1.

3 3 and 9.

4 13.

5 These proposed findings are not necessary. They affect the weight to be given to some of the evidence.

6 10.

7 11.

8 12.

9 14. The portion of this proposed finding after the first sentence constitutes proposed conclusions of law.

10. Hereby accepted.

11 13.

12 20. The portion of this proposed finding after the first two sentences constitutes proposed conclusions of law.

13-15 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 15-17.

16 This paragraph is not a proposed finding of fact. It is a summary of testimony concerning law.

17-19 These paragraphs are not proposed findings of fact. They are summaries of testimony. See 18-19 and 28.

1. These proposed findings are not necessary. They affect the weight to be given to some of the evidence.

2. Summary of testimony.

22 6.

23 29.

24-26 Summary of testimony. See 3 and 21.

The weight of the evidence did not support a finding that the fill in Area A extended into the St. Johns River approximately 20 feet at its widest point.

27 5 and 7.

28 8.

29 Hereby accepted.

30 22.

31-32 Summary of testimony. See 23-25.

33 25.

1. Not Supported by the weight of the evidence.

2. 26. The last sentence is not supported by the weight of the evidence.

3. Cumulative and unnecessary.

37 27

38-39 Conclusions of law and argument.

40-41 Hereby accepted.

Mr. Romaine's Proposed Findings of Fact:

1. The first paragraph under the Findings of Fact portion of Mr. Romaine's proposed recommended order does not contain any relevant findings of fact.

2. Summary of testimony and irrelevant proposed findings of fact.

3. Summary of evidence.

The following numbers correspond to the numbers of the sentences contained in Mr. Romaine's "Procedural Statement."

1. 1 and 3.

2. 4 and 7.

3. Hereby accepted.

4. Irrelevant.

5-6 Not supported by the weight of the evidence. See 5 and 6.

7-17, 19-27

32-39 and 42 Irrelevant or not supported by the

weight of the evidence presented at the formal hearing.

18, 28-31

and 40-41 Hereby accepted.

COPIES FURNISHED TO:

JOHN P. INGLE, ESQUIRE STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING

2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400

WILLIAM A. ROMAINE

2127 WINTERBOURNE, WEST

ORANGE PARK, FLORIDA 32073-5621

ROBERT E. WOODYARD, PRESIDENT B & W MARINE CONSTRUCTION, INC. 4611 LAKESIDE DRIVE

JACKSONVILLE, FLORIDA 32210

DALE TWACHTMANN, SECRETARY STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING

2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400

DANIEL H. THOMPSON, ESQUIRE STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL REGULATION TWIN TOWERS OFFICE BUILDING

2600 BLAIR STONE ROAD TALLAHASSEE, FLORIDA 32399-2400

Docket for Case No: 87-003138

Orders for Case No: 87-003138