STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL PROTECTION, )

)

Petitioner, )

)

)

vs. ) CASE NO. 93-0855

) RIO DE ST. JOHN PROPERTIES, INC. )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 26, 1995, in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned hearing officer of the Division of Administrative Hearings, substituting for the prior hearing officer.

APPEARANCES

For Petitioner: David Thulman, Esquire

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

For Respondent: Preston Fields, Esquire

Post Office Box 188 Palatka, Florida 32178

STATEMENT OF THE ISSUE

The Department of Environmental Protection seeks to impose costs and specific restoration requirements resulting from unpermitted dredging and filling by Respondent. Inherent in that issue are the following:

1. Whether the property at issue was within the Department's dredge and fill jurisdiction at the time the property was filled; and

   
   

2. The amount of the Department's costs, if any.

   
   

   PRELIMINARY STATEMENT

   
   

   The Petitioner herein is the Department of Environmental Protection, successor agency to the Department of Environmental Regulation. That agency commenced this action by issuing a Notice of Violation and Orders for Corrective Action. Respondent Rio de St. John Properties, Inc. timely filed a petition for formal hearing. The charging document was subsequently amended and the issues limited as set out above.

   Petitioner charged that Respondent had filled property within the landward extent of waters of the state without a permit. Respondent denied that a permit was required.

   
   

   At formal hearing, Petitioner presented the oral testimony of Mike Adams, Jack Dunphy, and Mike Eaton, and had Exhibits P1-4 (but not P-5) admitted in evidence. Respondent presented the oral testimony of Mike Adams and Jack Buchansky and had Exhibits R-2A, 2B, 3, 4, and 5 (but not R-1) admitted in evidence. Exhibits P-4 and P-5 are videotapes and were admitted for limited purposes only.

   
   

   Two joint exhibits were admitted: the Joint Prehearing Stipulation and the part of Chapter 17-301 F.A.C. in effect at all times material.

   
   

   At the close of Petitioner's case-in-chief, Respondent moved for a judgment of acquittal which was treated as a motion for summary recommended order and taken under advisement for disposition in this recommended order.

   
   

   No transcript was filed, but the undersigned has had the benefit of listening to the audio tapes of the formal hearing. Cf -- See below.

   
   

   The Petitioner timely filed a proposed recommended order, the findings of fact of which are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

   
   

   Respondent's late-filed proposed order was also to have been considered pursuant to the terms of an order entered April 7, 1995. Also pursuant to the terms of the April 7, 1995 order, Petitioner was permitted to supplement its post-hearing proposal. Petitioner's supplemental material was only legal argument, not proposed facts, and not subject to Section 120.59(2) F.S. Respondent filed a response thereto without leave to do so. That response was struck by an order entered May 4, 1995.

   
   

   Due to a short inaudible portion of the audio tape the Department used to preserve the record, an order was entered May 24, 1995. The parties selected one of the options provided for in that order and stipulated, by a pleading filed June 13, 1995, to the content of just the inaudible portion of Mr.

   Buchansky's testimony.

   
   

   By agreement, Respondent was permitted to amend its proposed recommended order. Respondent's amended proposed order was filed June 15, 1995. The proposed findings of fact of that amended proposal are ruled upon in the appendix to this recommended order, pursuant to Section 120.59(2) F.S.

   
   

   FINDINGS OF FACT

   
   

   1. The parties' stipulated to the following facts: Petitioner agency has the authority to administer and enforce Chapter 403 F.S. and the rules promulgated thereunder, specifically Title 62 F.A.C., formerly Title 17 F.A.C. Respondent is the developer of a parcel of real property located in Section 10, Township 9 South, Range 27 East, Putnam County, Florida, known as Lot 85, Rio de St. John Subdivision, located at the northwest corner of the intersection of South Main and Southwest 6th Terrace. The property is a wetland area. On February 13, 1992, agency personnel inspected and found fill material had been placed on two areas of the parcel: an area approximately 88 feet by 83 feet for residential development (area 1) and an area approximately 83 feet by 25 feet

      for an access driveway (area 2). The fill material was placed by Respondent without a permit and covers 0.2 acres of the parcel. In Warning Notice WN-92- 0118-DF54 NED, dated February 17, 1992, the agency informed Respondent that its activities violated Chapter 403 F.S. and Title 17 F.A.C. Respondent has never applied for a permit and has proposed no mitigation for the filling done without a permit.

      
      

   2. Jack Dunphy is the supervisor of Petitioner's dredge and fill enforcement section for its Northeast District. He earned a B.S. in biology and has taken postgraduate courses in plant morphology, plant taxonomy (the identification of plants) and wetlands ecology. He has had further annual training by the agency in wetland plant identification. He was accepted as an expert in the identification of wetland species and agency enforcement procedures.

      
      

   3. At all times material, Mr. Dunphy used the version of Chapter 17-301

      F.A.C. accepted as Joint Exhibit B in making his determination that the agency has dredge and fill jurisdiction of Lot 85. The Respondent contended that the agency had no dredge and fill jurisdiction because Lot 85 is an isolated wetland.

      
      

   4. At all times material, the rules did not place isolated wetlands within agency jurisdiction. See, specifically, Rule 17-312.045 F.A.C. The rules were amended effective July 1, 1994 to give the agency jurisdiction over isolated wetlands.

      
      

   5. Both parties place substantial reliance upon Rule 17-312.030(2)(d)

      F.A.C. which provided in pertinent part:

      
      

      1. For the purposes of this rule, surface waters of the state are those waters listed below and excavated water bodies, except for

         waters exempted by [rule], which connect directly or via an excavated water body or series of

         excavated water bodies to those waters listed below:

         * * *

         (d) rivers, streams and natural tributaries thereto, excluding those intermittent streams, tributaries or portions thereof defined in [statute]. Standard hydrological methods shall be used to determine which streams constitute

         intermittent streams and intermittent tributaries. An intermittent stream or intermittent tributary means a stream that flows only at certain times

         of the year, flows in direct response to rainfall, and is normally an influent stream except when the ground water table rises above the normal wet season level. Those portions of a stream or tributary which are intermittent and are located upstream of all nonintermittent portions of the stream or tributary are not subject to the dredge and fill permitting unless there is a continuation of jurisdiction as determined pursuant to [rule].

         
         

   6. The agency used the procedures outlined in Chapter 17-301 F.A.C. to determine whether Lot 85 was connected either vegetatively or hydrologically to a named water body.

   7. Chapter 17-301 F.A.C. lists both the wetland plants and the method for determining dominance of those species.

      
      

   8. It is undisputed that, under the applicable rules, an area is connected vegetatively to a state water if there is a domination of wetland plants connecting the area to a named water body.

      
      

   9. It is undisputed that, under the applicable rules, an area is connected hydrologically to a state water if there is an open water connection from the area to a named water body.

      
      

   10. On the ground, an area may be physically connected to a state water either vegetatively (dominant named species) or hydrologically (by water). On the ground, an area may be physically connected vegetatively and hydrologically.

       
       

   11. Mr. Dunphy, on behalf of the agency, interpreted the agency's rules to establish a jurisdictional connection if an area is connected by a combination of water and vegetation. Respondent contended this is a clear misinterpretation of the agency's own rule.

       
       

   12. The agency's standard operating procedure at the time Respondent placed the fill was to interpret its rules in para materia to require that its personnel "ground truth" the area in question by first identifying surface waters (a named water body, in this case, Mason Branch and its unnamed tributaries) and proceed landward, by ground, to establish the connection. As long as there was water or dominant jurisdictional vegetation, the agency pronounced a jurisdictional connection.

       
       

   13. Mr. Dunphy determined that Lot 85 was dominated with wetland vegetation and that the water on that parcel flowed through a culvert under South Main Street and off to the east of the property.

       
       

   14. South Main Street is a dirt road which has been in place for approximately twenty years. South Main Street physically separates Lot 85, which contains jurisdictional vegetation, from jurisdictional vegetation growing to the east of South Main Street. It does not separate Lot 85 from the lot immediately north of Lot 85, which is also covered with jurisdictional vegetation. The water on Lot 85 and this adjacent lot drains through the same culvert, (hereafter culvert A) under South Main Street to the east.

       
       

   15. Mr. Dunphy drove through the area and identified what he considered to be an hydrologic connection between Lot 85 and an unnamed tributary of Mason Branch.

       
       

   16. There is no dispute that Mason Branch is a water of the state. It appears on maps going back to the nineteen-sixties. The unnamed tributary was identified on P-3, the United States Department of the Interior Geological Survey (USGS) Quad Map. Mr. Dunphy traced the tributary's approximate route in red on Exhibit P-3. Although Respondent succeeded in getting some witnesses to admit that the unnamed tributary could not be described as a "bubbling stream," witnesses Adams, Dunphy, and Eaton all testified to having seen on the ground what they were able to identify as, "an unnamed tributary of Mason Branch."

       
       

   17. As one responsible for enforcing the agency's dredge and fill rules, Mr. Dunphy commonly refers to aerial maps, USGS maps, wetland inventory maps, and aerial photographs to determine jurisdiction.

   18. Using such photographs and maps (P-2 and P-3), Mr. Dunphy indicated in red ink approximately how Lot 85 is connected to the Mason Branch tributary.

       
       

   19. In general, water flows from Lot 85 to the lot north of Lot 85 (designated with a blue 5 in a circle on P-2), through culvert A north of Lot 85 and under South Main Street, then through a wetland area marked by jurisdictional vegetation east of South Main Street where it connects to an excavated ditch. The excavated ditch turns to the north where it empties into another wetland area marked by jurisdictional vegetation, and then through culvert B under another dirt road. From there, the water flows through jurisdictional vegetation to the unnamed tributary connecting to Mason Branch.

       
       

   20. The water course from the end of culvert A to the beginning of the excavated ditch cannot be seen on P-2, an aerial photograph, because of the canopy of the wetland trees. The western beginning of the ditch is indicated by a blue 1 in a circle and the eastern end of the ditch is indicated by a blue 2 in a circle.

       
       

   21. Mr. Dunphy visited the vicinity of Lot 85 eight times between the agency's discovery of the unpermitted fill in 1992 and formal hearing in 1995. Each of the eight times Mr. Dunphy visited the site, water was flowing through culvert A running under South Main Street and Lot 85 was inundated. Water also was running through culvert B.

       
       

   22. On his first visit to the area, Mr. Dunphy walked from the eastern side of South Main Street, opposite Lot 85, into the woods and saw a small, approximately seven foot wide, defined channel where the water flowed over jurisdictional vegetation east to the ditch. He saw quite a bit of water through this area and water flowing through the channel prior to reaching the ditch.

       
       

   23. According to Mr. Dunphy, the area east of South Main Street but west of the ditch contained cypress and tupelo trees with buttressed (expanding out) trunks and water lines, lichen lines and moss lines which appeared to be above the level of the street due to periodic inundation of the area. This is the type of hydrologic indicator from which scientific judgment may conclude that inundation or saturation is frequent, whether or not a specific agency rule to that effect is in place. Indeed, it is fairly simple cause and effect logic, and therefrom the undersigned infers, that water in the area has frequently stood higher than the road and may have overflowed the road. Also, on a visit in the month preceding formal hearing, Mr. Dunphy observed that some of the dirt roads in the area were heavily washed out in places by high water.

       
       

   24. Mr. Dunphy's walking the parcel and tracing the runoff constituted "ground truthing."

       
       

   25. Because Respondent challenged agency jurisdiction, Mr. Dunphy requested that the agency's Jurisdictional Evaluation Team from Tallahassee also make a determination as to whether or not Lot 85 was within the agency's dredge and fill jurisdiction. The Jurisdictional Evaluation Team consisted of David Bickner, a botanist, and Dr. Jim Cooper, a soil scientist. Petitioner agency has assigned them the responsibility for making similar jurisdictional determinations around the state. As an expert in enforcement procedures, Mr. Dunphy regularly relies on the team's opinion concerning jurisdiction. He went

       to the area with the team during their ground-truthing inspection and relied on the team's report. The report also explains and supplements Mr. Dunphy's direct evidence.

       
       

   26. That October 26, 1993 report concluded from a visit to the site on October 19, 1993 that Lot 85 was within the agency's jurisdiction and listed the vegetation which connects Lot 85 to the unnamed tributary of Mason Branch.

       
       

   27. The report states, in pertinent part, as follows:

       
       

       The . . . property was inspected 19 October 1993. The property had been timbered recently and most of the canopy trees were gone. Those trees remaining were the same species as the trees on adjacent properties on all sides . . . which were covered with mature swamp hardwood forest. Many

       of the stumps on the . . . property were sprouting, so they could be identified to species and these were also the same as those on adjacent properties.

       The dominant canopy species on the adjacent properties were black gum (Nyssa sylvatica var. biflora) and

       bald cypress (Taxodium distichum). Other species present included dahoon holly (Ilex cassine), red maple (Acer rubra), and slash pine (Pinus elliottii). The gum and cypress tended to make up 80 to 85 percent of the areal coverage of the canopy, with dahoon and maple being the majority of the remainder. Much of the groundcover vegetation . . . consisted of invader species which had moved into the areas of fill. All other species present were wetland plants. A list of the plants found on this property is attached . . .

       The property was inundated at the time of the inspection. Water exited the property at its north- west corner through a culvert under South Main Street, flowing east into the swamp on the other side of the street. This swamp ran northeast and where it ended a ditch approximately 7 ft. wide turned north to connect to another swamp near Southeast Second Avenue. Water from this swamp passed under Southeast Second Avenue through another culvert and continued into another swamp on the north side of the road. This swamp ran north, turning gradually to the east where it connected to a tributary of Mason Branch. This point of connection was by means of a ditch which flowed through a wet hardwood hammock forest. Flow

       in all of these waterways was brisk at the time of the inspection and all points of connection were visited and inspected. Mason Branch is a water of the State, therefore all waterways and wetlands connected to it are also waters of the State . . . The property is vegetated by plant species which are currently listed in Sections 17-301.400(2) and

       1. Florida Administrative Code. (emphasis supplied)

1. The agency concluded that Lot 85 is within the headwaters of a larger wetland area that constitutes the headwaters of the unnamed tributary of Mason Branch, a water of the state.

2. In 1991, the Respondent had employed Mike Adams to analyze its property for purposes of planned development and to render advice as to what state and federal permits would be required. He visited the area six times and Lot 85 twice. He initially advised Respondent that Lot 85 and the other parts of the subdivision were located in wetlands subject to the jurisdiction of Petitioner agency and the Army Corps of Engineers, and that development required permitting by both those agencies and possibly by St. John's Water Management District.

   
   

3. Mr. Adams has a B.A. in biology and an M.S. in environmental management. At the time of formal hearing, he was a Natural Resources Manager for the Florida National Guard. He is a Certified Environmental Professional. He was accepted as an expert in wetland plant identification.

   
   

4. In his work as a private consultant for the Respondent, Mr. Adams had determined that Lot 85 was within the Department's jurisdiction. In making that determination, he analyzed whether or not Lot 85 was dominated by wetland plants. Then he determined whether or not the vegetative composition of the wetland plants on Lot 85 extended off-site.

   
   

5. In determining that wetland plants were dominant both on-site and off- site, Mr. Adams employed the plant species and the method for determining dominance set out in the Department rules in effect at all times material.

   
   

6. Lot 85 was covered with jurisdictional wetland plants such as cypress, sweet gum, black gum and red maples.

   
   

7. In Mr. Adams' opinion, Lot 85 was within the Department's dredge and fill jurisdiction because it was part of a headwater wetland.

   
   

8. In formulating his opinion, Mr. Adams walked the entire length of the connection between Lot 85 and the waters of the state, starting at culvert A crossing under South Main Street, through the wetlands to the east of South Main Street, along the excavated ditch, across the street to the north and as far as the unnamed tributary of Mason Branch.

   
   

9. Mr. Adams drew the path of the connection beginning at the west end of the ditch shown on Petitioner's Exhibit P-2, an aerial photograph of a portion of Putnam County. On P-2, he designated Lot 85 with a green circle with an "85" in it and the culvert under South Main Street with the letter "A". The aerial photograph and oral testimony clearly demonstrated jurisdictional vegetation dominates between culvert A and the west end of the ditch, from the east end of the ditch to culvert B, parallel to both sides of the ditch for the entire length of the ditch. Mr. Adams also drew in green the path of the connection and outlined Lot 85 and designated it as such on P-3, the USGS Quad Map.

   
   

10. Exhibit P-3 as printed by the Department of the Interior does not show a wetland connection. However, Mr. Dunphy and Mr. Adams are agreed that quad sheets like P-3 are not 100 percent accurate in identifying water courses. Mr. Adams never relies solely on quad sheets for determining and advising clients concerning Petitioner state agency's jurisdiction. In his expert opinion, the information on the quad sheets must be ground-truthed.

11. In response to questioning as to why various exhibits did not show all the intervening property between Lot 85 and Mason Branch as "wetlands," Mr. Dunphy testified that the USGS maps only depict wetlands in a general way, both because of the scale and how they are created. The USGS Quad Map itself contains a disclaimer stating that its information is not field checked. "Field check" is synonymous with "ground truth." Mr. Dunphy further testified and pointed out that the National Wetlands Inventory Map created by the United States Department of the Interior (R-3) contains a similar disclaimer which specifically provides that map is not an indication of wetland extent as determined by other federal, state and local regulations.

    
    

12. Mr. Adams determined that there was an intact vegetative connection for Lot 85 to the unnamed tributary of Mason Branch; that the excavated ditch was full of water and that the excavated ditch and/or the spoilage (earth thrown up parallel on either side of the ditch when it was dug) was also dominated with wetland plants covered by agency rule. More specifically, although the excavated ditch appears to start at the edge of the wetland area to the east of South Main Street on P-2, Mr. Adams' green markings demonstrated that it actually starts some distance into the wetland area. The ditch feathers out at both its west and east ends, but identifiable wetland vegetation links up to the hydrologic connection. Thus, in Mr. Adams' opinion, there was an unbroken chain of wetland vegetation from Lot 85 to the tributary of Mason Branch except for the roads, where the water (a hydrologic connection) flowed through culverts under the roads.

    
    

13. At the time Mr. Adams walked the connection route, the area to the east of South Main Street had pockets of standing water but did not have water flowing through it. Although water was not flowing through the area, Mr. Adams concluded that water typically did flow through that area because of the depth of the standing water which initially caused him not to notice culvert A, which was overgrown, and because the plants present in that area were wetland plants.

    
    

14. Admittedly, Mr. Adams was less than articulate when examined about the effects of seasonal rains, intermittent rains, and intermittent flow of the water on the ground, but he eventually made himself clear. He first testified that he thought the flow of water from Lot 85 was "intermittent," but he later clarified that he was not using that word as contemplated by the statute and rule. At one point, he testified that by "intermittent," he intended to mean "seasonal," but did not intend to also indicate that the connection met the definition of "intermittent stream" in the statute or rule. He was perfectly candid that the ditch on the east side of the road did not connect water body to water body but connected vegetation to vegetation and water ran through the ditch from vegetation to vegetation. He agreed that if "hydrologic connection" can only mean "water connecting to water" then there is no hydrologic connection between Lot 85 and the unnamed tributary. However, from the whole of his testimony, it is apparent that surface and ground waters are both involved; water flow depends upon rain regularly depositing water upland, and the water stands, flows slowly, or flows rapidly, dependent upon how deep the water gets, to the tributary; there is probably an exchange of waters with the tributary; this is not dependent upon a specific wet season but during drought periods, no flow will be observed. These explanations do not alter or diminish Mr. Adams' opinion that, applying standard scientific indicators of soil, vegetation composition and hydrology, there is a regular connection by surface and ground water between Lot 85 and the unnamed tributary. He was also definite that there was standing water in the whole area when he was there and that he interprets "isolated" as used in the rule to mean no hydrologic or vegetative connection

    whatsoever exists and that the water would have to exit Lot 85 without going to the water source (state water) only as a result of periodic flow, which he does not believe to be the situation here.

    
    

15. Respondent's Exhibits P-4 and P-5 were videotapes. Respondent's witness, Jack Buchansky, was unable to independently identify most of the footage of either P-4 or P-5.

    
    

16. Exhibit P-4 was irrelevant in large degree.

    
    

17. At most, the two videotapes together show a single occasion shortly before formal hearing when South Main Street, Lot 85, and areas in the vicinity were dry, but even so, they show dirt roads with ditches parallel on each side containing standing water and vegetation. Standing water and vegetation also appear in the culvert shown and in the depression between tire tracks or ruts on the roads. The nature of the vegetation was not explained.

    
    

18. Except for asserting that the dirt roads have been high and dry for 20 years and during hundreds of his visits and that water only flows in the ditches during heavy rains, Mr. Buchansky testified much to the same effect as the other witnesses: that the area across the street from Lot 85 (the same area identified by other witnesses with an X in a circle on P-2) was a natural drainage or spill area and that he never went back there because the water stands there after each rain; that the vegetation is the same throughout the area except for the barriers created by the roads; and that water drains away from his property toward the east by way of culvert A.

    
    

19. The greater weight of all credible competent evidence is that jurisdictional vegetation grows on Lot 85; that jurisdictional vegetation grows on the lot to the north; that jurisdictional vegetation grows everywhere east of South Main Street, even in the man-made ditch and/or on the ditch's "spoil" connecting two patches of jurisdictional vegetation, and that the depressed water channel over vegetation between culvert A and the west end of the man-made ditch and the man-made ditch itself collect and funnel rain and ground water because each is lower than the surface soil; and that jurisdictional vegetation dominates from the east end of the ditch to culvert B and between culvert B and the tributary. The roads create a barrier to jurisdictional vegetation, but the culverts carry the water between the areas of jurisdictional vegetation. Wherever the water goes, it is possible for seeds to travel and propagate dominant plant species, dependent upon which plants are involved, and the water flows regularly to the tributary.

    
    

20. Unrefuted competent testimony shows that restoration of Lot 85 is necessary because Respondent's fill has caused the wetland to lose some of its functions, including filtering ability, habitat for wildlife dependent on the wetlands, and water storage for flood control. Appropriate restoration will require that the fill be removed to the original grade and that a mixture of red maple, cypress, dahoon holly, tupelo and gum trees be planted. The trees should be three-gallon size. The cypress and tupelos should be planted in the lowest areas and the red maples should be planted in the highest areas.

    
    

21. Mike Eaton was accepted as an expert in the agency's dredge and fill procedures and permit criteria. He visited the site with Mr. Dunphy to determine whether the fill on the property could be permitted. He concluded it could not be permitted without mitigation.

22. The agency prepared an exhibit itemizing expenses it claimed to have incurred in the course of its investigation. The exhibit was not listed in the Joint Prehearing Stipulation and some parts of it may have applied to charges dropped when the charging document was amended. It was not admitted in evidence over objection. Mr. Dunphy testified that he totalled reasonable expenses at

    $981.16, but his breakdown of what the expenses were and how they were incurred was insufficient to relate the agency's financial expenditures to the sole charge remaining after the amendment. Respondent did not diminish that figure through cross-examination, but stipulated that $250.00 constituted the Department's reasonable expenses.

    
    

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

    
    

24. Respondent is a "person" within the meaning of Section 403.031(5) F.S. and is subject to the provisions of Chapter 403 F.S. and the rules promulgated by the Department in Title 17 F.A.C.

    
    

25. Respondent's activities constituted "filling" as defined by Section 403.911(4) F.S.

    
    

26. Rule 17-312.030(1) F.A.C. requires that a person obtain a permit before dredging and/or filling conducted in, on or over those surface waters of the state unless an exemption applies.

    
    

27. The Respondent filled or caused to be filled the parcel without a permit.

55. Rule 17-312.030(2) (d) F.A.C. 1/ tracks most of Section 403.913(5) F.S., and provides in pertinent part:

(2) For the purposes of this rule, surface waters of the state are those waters listed below and excavated water bodies, except for waters exempted by 62-312.050(4),F.A.C., which connect directly or via an excavated water body or series of excavated water bodies to those waters listed below:

* * *

(d) rivers, streams and natural tributaries thereto, excluding those intermittent streams, tributaries or portions thereof defined in Subsection 403,913(5), F.S. Standard hydrological methods shall be used to determine which streams constitute intermittent streams and intermittent tributaries. An intermittent stream or intermittent tributary means a stream that flows only at certain times of the year, flows in direct response to rainfall, and is normally an influent stream except when the ground water table rises above the normal wet season level. Those portions of a stream or tributary which are intermittent and are located upstream of all nonintermittent portions of the stream or tributary are not subject to the dredge

and fill permitting unless there is a continuation of jurisdiction as determined pursuant to F.A.C. Section 62-3.022. (emphasis supplied)

1. Rule 17-3.022 F.A.C. was transferred to Rule 17-301.400 F.A.C. All the named rules have been renumbered.

   
   

2. Rule 17-301.400 F.A.C. sets forth that the line demarcating the landward extent of the surface waters of the state shall be established through the procedures set forth therein to establish the dominant plant species.

58. Rule 17-312.045 F.A.C. 2/ states:

Jurisdictional Intent. The Department recognizes that the natural border of certain water bodies listed in Section 62-312.030, F.A.C., may be difficult to establish because of seasonal fluctuations in water levels and other charac- teristics unique to a given terrain. The intent of the vegetation indices in Sections 62-3.022 and 62-3.021(15), F.A.C., is to guide in the establishment of the border of the water bodies listed in Section 62-312.030, F.A.C. It is the intent of this rule to include, in the boundaries of such water bodies, areas which are customarily

submerged and which are contiguous to a recognizable water body (i.e., areas within the landward extent of waters of the state as defined in Sections 17- 3.021(16) and (17), F.A.C.). Isolated areas that infrequently flow into or otherwise exchange water with a described water body are not intended to be included within the dredge and fill jurisdiction

of the department. The vegetation indices in Sections 17-3.021(16) and 17-3.022, F.A.C., are presumed to accurately delineate the landward extent of such water bodies. (emphasis supplied)

1. The parties are agreed that the Department has no jurisdiction if Lot

   85 is an isolated wetland as contemplated by the applicable rule.

   
   

2. Respondent's pending motion for summary recommended order is couched in terms of the duty of Petitioner agency to establish that an exemption does not exist. That is, Respondent asserted that the Department failed to prove in its case-in-chief that the stream was not intermittent. 3/ The Petitioner agency responded that the establishment of an exception or exemption is in the nature of an affirmative defense, which means that the burden to establish the exemption, that is, to put on affirmative proof that an intermittent stream exists, was upon Respondent. It is not necessary to explore here whether proof of a negative constitutes an affirmative defense. Petitioner agency's case in chief established that the flow or stream of water was not "intermittent" as contemplated by the rule due to regular water flow through a combined vegetative and hydrologic connection. The motion is denied.

   
   

3. The landward extent of a surface water body is to be determined using the methods described in Chapter 17-301 F.A.C.

4. Rule 17-301.400(1), F.A.C., provides that the landward extent of surface waters is established by dominant plant species. Subsection (a) of that rule provides that the existence of a surface water shall first be identified.

   
   

5. Mason Branch is a named water of the state. The unnamed tributary was "eyeballed" and expertly identified by three witnesses on numerous occasions. Accordingly, the unnamed tributary is not an "intermittent" stream under the rule. Like Mason Branch, it is clearly a "water of the state."

   
   

6. Therefore, Respondent's theory of nonjurisdiction must be grounded upon there being only intermittent flow of water from Lot 85 to the permanent tributary.

   
   

7. The plant species which are used to determine dominance are found in Rule 17-301.400, F.A.C. Rule 17-312.045 F.A.C. creates the presumption that the vegetation indices accurately delineate the landward extent of the waters of the state.

   
   

8. Despite testimony by both Mr. Adams and Mr. Dunphy that each expert considers there to be an intact, unbroken chain of the wetlands from Lot 85 to the unnamed tributary, Respondent asserted that neither a continuous vegetative nor a continuous hydrologic connection exists from Lot 85 to the tributary, because the dirt roads with culverts A and B constitute a barrier to continuous wetlands vegetation and because the hydrologic connection of the man-made ditch starts some distance into the controlling jurisdictional vegetation east of culvert A, that ditch feathers out into more jurisdictional vegetation and only after culvert B does the last stretch of jurisdictional vegetation actually abut the unnamed tributary. There is no question the connection is there, but only a dispute because it is a combination of linked hydrological and vegetative connectors.

   
   

9. Mr. Dunphy, on behalf of the agency, interpreted this situation to satisfy jurisdictional Rule 17-312.030(2)(d) F.A.C. So did the agency's expert evaluation team.

   
   

10. An agency's interpretation of its rules and the statutes which it is charged to administer is to be given great deference. See, Griffith v. Department of Business Regulation, 613 So. 2d 930 (Fla. 3d DCA 1993); Maclen Rehabilitation Center v. Department of Health and Rehabilitative Services, 588 So. 2d 12 (Fla. 1st DCA 1991); Department of Business Regulation v. Martin County Liquors, Inc. 574 So.2d 170 (Fla. 1st DCA 1991); Island Harbor Beach Club v. Department of Natural Resources, 405 So. 2d 209 (Fla. 1st DCA 1986); Department of Environmental Regulation v. Goldring, 477 So. 2d 532 (Fla. 1985); Public Employees Relations Commission v. Dade County Police Benevolent Association, 467 So. 2d 987 (Fla. 1985). Likewise, an administrative construction of a statute by an agency responsible for its administration is entitled to great weight and should not be overturned unless clearly erroneous. See, Shell Harbor Group, Inc. v. Department of Business Regulation, 487 So. 2d 1141 (Fla. 1st DCA 1986).

    
    

11. Given the language of intent contained in Rule 17-312.045 F.A.C., the agency's recognition within that same rule of how difficult it is to establish such matters, and the legislature's similar recognition in Section 403.817 F.S., Mr. Dunphy's reading is a fair and reasonable interpretation of Rule 17- 312.030(2)(d) F.S. In reaching this conclusion, the undersigned has been significantly impressed by the expert and fact testimony of both Mr. Adams and Mr. Dunphy to the effect that the very existence of the dominant named

    vegetative species is proof that there is water in that location a majority of the time; by Mr. Adams' testimony that even though he did not see water flowing in the area east of culvert A, he saw standing water that convinced him that water frequently did flow through there; and by Mr. Dunphy's testimony that he saw tree trunks that evidenced even higher water flow and inundation than that which he personally observed. The evaluation team report speaks of a "brisk flow" through "swamps." The inherent logic is that but for the man-made structures, there would be an unbroken vegetative connection. In any case, jurisdictional vegetation is propagating throughout the whole area via water, and water is regularly flowing to the unnamed tributary.

    
    

12. There is no doubt Respondent's property contains jurisdictional vegetation. The fact that this property is surrounded by dirt roads does not render it "isolated" as that term is used in the rules. Lot 85 and all the areas delineated by jurisdictional vegetation indices are presumed, by rule, to be within the landward extent of the waters of the state. The presence of the named vegetation proves frequent inundation of water. Also, the testimony of Mr. Adams and Mr. Dunphy, both of whom had walked in the woods and who had expert, specialized knowledge, was that any water falling on the parcel eventually was connected to the waters of the unnamed tributary. In Mr. Adams' opinion, there also was probably an exchange of waters.

    
    

13. Respondent's interpretation of the rule as an either/or proposition is too narrow under the expressed purpose of Chapter 403 F.S., which purpose is to protect waters of the state and natural drainage patterns thereto by applying the standard hydrologic methods and indicators of the rule. A similar narrow interpretation of a predecessor rule was overturned by the Florida Supreme Court in Department of Environmental Regulation v. Goldring, supra. The court's reasoning is enlightening.

    
    

    The issue here is the appropriate standard for determining the landward extent of state waters for Department of Environmental Regulation's (DER) regulatory jurisdiction over dredge and fill operations.

    * * *

    The legislature enacted chapter 403 to protect the air and waters of Florida from pollution and degradation. S. 403.021, Fla.Stat. (1983).

    The provisions of statutes enacted in the public interest should be given a liberal construction in favor of the public. State v. Hamilton, 388 So. 2d 561 (Fla. 1980). DER liberally construed

    section 403.817 when it adopted the administrative rules implementing that statute. Courts should accord great deference to administrative interpretations of statutes which the administrative agency is required to enforce. Pan American World Airways, Inc. v. Florida Public Service Commission, 427 So. 2d 716, 719 (Fla. 1983).

    * * *

    The opinion goes on to discuss the need for rule interpretations to be in tune with the remedial purpose of Chapter 403 F.S., and concludes simply,

    
    

    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.

    
    

14. Here, the Department has established a dominance of listed jurisdictional vegetation on the subject property along with an exchange of waters from the subject property to the unnamed tributary of Mason Branch, a water of the state. The purpose of the statute and rule is to protect receiving waters whether they are fed through named vegetation or pure hydrologic connection or a combination of the two.

    
    

15. Under the circumstances of this case, the Petitioner has established its jurisdiction, but not its costs above $250.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Protection enter a Final

Order finding Respondent guilty of the charged violations and requiring:

1. That Respondent shall, within thirty days of the final order, remove from Lot 85 all fill from the Property, which has been placed within the landward extent of the Tributary of Mason Branch in accordance with the restoration plan, attached and incorporated as Exhibit I in the Amended Notice of Violation. All fill shall be removed down to natural, pre-fill elevations and gradings, and shall be disposed of in a site approved by the Department; and

   
   

2. Within thirty days of the fill removal, Respondent shall plant a mixture of red maple, cypress, dahoon holly, tupelo and gum trees, spaced 10 feet apart. The trees should be three-gallon size. The cypress and tupelos should be planted in the lowest areas and the red maples should be planted in the highest areas.

   
   

3. Within thirty days of the fill removal, Respondent shall tender $250 to the agency as costs.

RECOMMENDED this 15th day of August, 1995, at Tallahassee, Florida.

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of August, 1995.

ENDNOTES

1/ Rule 62-312.030 was formerly numbered Rule 17-312.030. Before that, it was Rule 17-12.030. The last substantive change was 3/26/89.

2/ Rule 62-312.045 was formerly numbered Rule 17-312.045. Before that, it was Rule 17-12.045. The last substantive change was 3/26/89.

3/ Respondent asserted that Mr. Adams' testimony was based solely upon a vegetative connection and established that the drainage system flow was intermittent within statutory definitions, and that therefore the parcel is an isolated wetland area. Respondent further contended that Mr. Dunphy's testimony was based solely upon a hydrological connection, simply because he had conceded that the roadways were not breached by wetlands vegetation and, accordingly, but for the hydrological connection (i.e. the culverts and eastern area drainage ditch), the parcel is an isolated wetland area. Respondent argued that the two expert opinions were incompatible, and therefore Petitioner failed to prove its case-in-chief. This is a mischaracterization of the evidence as a whole, which is set out more accurately in the Findings of Fact, supra., and ignores the obvious, that all testimony supports a finding that Lot 85 is not an isolated wetland because water regularly travels through it as evidenced by the specifically named jurisdictional vegetation.

APPENDIX TO RECOMMENDED ORDER 93-0855

The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1 - 12 Accepted.

13 - 20 Accepted except for unnecessary , subordinate and/or cumulative material.

21 - 32 Accepted as modified to more clearly express the record evidence.

33 - 36 Accepted.

37 - 39 Accepted as modified to more clearly express the record evidence.

40 - 64 Accepted as modified to more clearly express the record evidence and eliminate subordinate, nondispositive and/or cumulative material and purely conclusory material and unsupported hearsay.

65 - 66 Accepted only as covered within the recommended order for the reasons given there. The remainder is rejected as not supported by the evidence.

67 - 71 Accepted.

72 - 77 Rejected as intermixed proposed facts and legal argument, but substantively covered within the recommended order.

Respondent's Amended PFOF:

1 - 11 Accepted.

12 - 14 Covered in the preliminary statement.

15 - 18 Accepted except for unnecessary, subordinate, and/or cumulative material.

19 - 25 Rejected as stated, because as stated is not supported by the record and contains interspersed legal argument.

26 - 27 Accepted.

1. Rejected for the reasons set forth in the recommended order which conforms to the record evidence.

2. - 40 Accepted except for unnecessary, subordinate, and/or cumulative material.

1. Rejected as stated in the introductory clause; otherwise accepted.

2. Accepted.

3. - 44 Rejected as legal argument or as mischaracterization of the record. Covered substantively in the recommended order.

1. Accepted in part and rejected in part as set out in the recommended order for the reasons set out there.

2. Accepted.

3. - 56 Accepted that the parties stipulated to this part of Mr. Buchansky's testimony. The findings of fact within the recommended order embrace both this stipulated material and the audible portions of his testimony.

COPIES FURNISHED:

David Thulman, Esquire

Department of Environmental Protection Twin Towers Office Building

2600 Blair Stone Road Tallahassee, FL 32399-2400

Preston Fields, Esquire Post Office Box 188 Palatka, FL 32178

Virginia Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, FL 32399

Kenneth Plante, General Counsel Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, FL 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 93-000855

Orders for Case No: 93-000855