STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 08-2081EF

)

JOHN JOZSA, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on July 29, 2008, in Bushnell, Florida.

APPEARANCES

For Petitioner: Alissa Blank Meyers, Esquire

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: John Jozsa, pro se

1978 County Road 652A Bushnell, Florida 33513-9006

STATEMENT OF THE ISSUE

The issue is whether Respondent, John Jozsa, should have a

$6,000.00 administrative penalty imposed, take corrective action, and pay investigative costs for allegedly dredging 0.91 acres of wetlands and filling 0.52 acres of wetlands without a permit on

his property located in unincorporated Sumter County, Florida, as alleged in a Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice) issued by Petitioner, Department of Environmental Protection (Department), on March 13, 2008.

PRELIMINARY STATEMENT

On March 13, 2008, the Department filed a three-count Notice under Section 403.121(2), Florida Statutes,1 alleging that during an inspection of Respondent's property in November and December 2006 Department representatives observed that he had "dredged approximately 0.91-acres of wetlands on the property without a permit" and had "filled approximately 0.52-acres of wetlands without a permit" in violation of Florida Administrative Code Rule 62-343.050. The Notice further alleged that by doing so, Respondent had also violated Section 403.161(1)(b), Florida Statutes, which makes it unlawful to violate a Department rule.

For violating the statute and rule, the Department seeks to impose administrative penalties in the amount of $6,000.00, require Respondent to take certain corrective actions to restore the property to its original condition, and recover reasonable costs and expenses of not less than $500.00 incurred while investigating this matter.

Through counsel, on April 15, 2008, Respondent filed with the Department his Petition for Formal Administrative Proceeding in which he denied the allegations and requested a hearing to

contest the charges. The matter was referred by the Department to the Division of Administrative Hearings on April 24, 2008, with a request that an administrative law judge be assigned to conduct a hearing. By Notice of Hearing dated May 1, 2008, a final hearing was scheduled on July 15, 2008, in Bushnell, Florida.

On May 13, 2008, Respondent's counsel filed a Motion for Withdrawal of Counsel, and then an Amended Motion for Withdrawal of Counsel, which was granted by Order dated May 27, 2008.2 That Order also rescheduled the hearing to July 29, 2008, and granted Respondent additional time to respond to outstanding discovery.

Thereafter, Respondent, a lay person, represented himself in this proceeding.

Prior to hearing, numerous procedural and discovery disputes arose between the parties. Most of these disputes were resolved through multiple orders entered on June 30, July 3, and July 15, 2008. On July 21, 2008, the Department filed a Motion for Partial Summary Final Order, which was denied at hearing on the ground disputed facts still existed regarding whether the property in question was wetlands and whether Respondent had "graded" his property. On July 25, 2008, the Department filed a Motion in Limine to exclude the testimony and exhibits of two experts retained by Respondent. That portion of the Motion seeking to prevent the testimony of the two experts was rendered moot when they did not appear at the final hearing.3

At the final hearing, the Department presented the testimony of David Brian Brown, a Department Environmental Specialist III and accepted as an expert; Lee W. Hughes, a Department Environmental Specialist II; Lindsay L. Brock, a former Department employee; and Respondent. Also, it offered Department's Exhibits 1-22, which were received in evidence.

Respondent did not present any witnesses but offered Respondent's Exhibits 1a. through k., 2a. through j., 3, and 4, which are the items listed on his exhibit list filed on July 28, 2008.4 Some of the exhibits duplicate exhibits offered by the Department.

Respondent's Exhibits 2.d. and 2.e. are the reports of two experts (Dr. Taylor and Mr. Czerwinski). The Department has objected to their admissibility on the ground the reports are hearsay since the witnesses were not present. Subject to that objection, the reports and other documents have been received and considered to the extent they are relevant and probative of the issues in this case.

On August 1, 2008, Respondent filed a notebook containing documents and photographs marked as Respondent's Exhibits 1-16. Presumably, these were intended to be a substitute for the exhibits originally offered. Also, on August 23, 2008, Respondent filed a paper styled "Notice," which indicated that a deposition of David Brian Brown, a Department employee deposed by Respondent on July 8, 2008, had "finally . . . been transcribed" and received by Respondent the previous day. On August 28, 2008,

a copy of the deposition was filed with the Clerk's Office. Both filings (the exhibits and the deposition) were made after the record was closed on July 29, 2008, and without notice to the Department or authorization by the undersigned.

On August 25, 2008, the Department filed a Motion to Suppress Deposition and Objection to and Motion to Strike All Documents Filed After the Final Hearing (Motions). The following day, Respondent filed a Motion to Strike that filing. A paper styled "Respondent's Addition/Correction to his Motion to Deny" (which was presumably intended to supplement his Motion to Strike) was filed by Respondent on August 27, 2008. Because Respondent did not seek leave, nor was he authorized, to late- file documents after the hearing, and he did not have the agreement of the opposing party, the Department's Motions are hereby granted.

Finally, the undersigned granted the Department's Request for Judicial Notice [Official Recognition] of Chapters 373 and 403, Part IV, Florida Statutes; Sections 373.019, 373.403,

373.421(1), 403.031, 403.061, 403.121, 403.141, and 403.161,

Florida Statutes; and Florida Administrative Code Rule Chapter 62-340 and Rule 62-343.050.

There is no transcript of the hearing. By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to thirty days after the final hearing, or by August 28, 2008. A Proposed Final Order and

Proposed Recommended Order were filed by the Department and Respondent on August 26 and 27, 2008, respectively, and they have been considered by the undersigned in the preparation of this Final Order. On September 8, 2008, Respondent filed a paper styled "Respondent's Exceptions and Responses to Petitioner's Proposed Final Order and Request for Judicial Notice." On September 9, 2008, he filed a paper styled "Respondent's Motion to Amend his Exceptions and Responses and Judicial Notice to Petitioner's Proposed Final Order." Because the filings are neither authorized nor contemplated under the Uniform Rules of Procedure, they have not been considered.5

FINDINGS OF FACT

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

1. The charges

1. Respondent owns an approximate 4.5-acre parcel of land located at 1978 County Road 652A in unincorporated Sumter County, Florida. The parcel identification number is N29A003. The property is generally located east of Interstate 75, west of

   U.S. Highway 301, and just south of the City of Bushnell. According to aerial photographs, County Road 652A appears to begin at U.S Highway 301 and runs in a westerly direction where it forms the southern boundary of Respondent's parcel and terminates a short distance later. Southwest 80th Street also runs west from U.S. Highway 301 and forms the northern boundary

   of the property, while Southwest 20th Terrace runs in a north- south direction adjacent to its western boundary. Respondent purchased the parcel on September 27, 1993, and constructed a home on the site several years later. The property is contiguous to Mud Lake, a Class III waterbody lying to the southeast of Respondent's property. According to Respondent's Exhibit 2.b., at least a portion of the property is in the Federal Emergency Management Agency's (FEMA's) 100-year flood zone.

2. While conducting a site inspection near Respondent's property on September 27, 2006, Brian Brown, an Environmental Specialist III in the Department's Tampa District Office, heard "heavy equipment" operating nearby and drove to Respondent's home. There he observed a "tracked vehicle" resembling a bulldozer "knocking down trees" and grading an area that appeared to be wetlands. Mr. Brown took photographs of the cleared land and the tracked vehicle to confirm his observations. See Department's Exhibits 2a. through d. At hearing, Respondent acknowledged that he had borrowed the equipment from a friend, Leo, to "level and smooth" the "uplands" and "other areas."

3. After returning to his office, Mr. Brown first confirmed through information from the Sumter County Appraiser's Office that Respondent owned the property in question. He then reviewed aerial photographs of Respondent's property taken in 1993, 1997, 2002, and 2006 to determine the condition of the property in earlier years. These photographs reflected that before 2006, the

   parcel had no large cleared area like the one that he had observed on the northern half of the property. Mr. Brown also studied a soil survey of the area to determine the type of soils on Respondent's property, and he reviewed the Florida Wetlands Delineation Manual which is used to determine if property is wetlands or uplands. Finally, information in the Department's database revealed that Respondent had not applied for a permit to conduct the observed activities.

4. Based on this preliminary information, Mr. Brown generated a request for a formal inspection of Respondent's property by filling out a complaint form. (Respondent continues to believe that Mr. Brown was not conducting a "routine" inspection in the area but rather was in the area because a neighbor had filed a complaint; however, the complaint was triggered by Mr. Brown, who filed a complaint form himself based on the observations he made on September 27, 2006.) Mr. Brown then contacted Respondent by letter to set up a date on which the property could be formally inspected to verify "that Wetlands and or Surface Waters of the State are not being impacted." In response to Mr. Brown's letter, Respondent advised the Department that it could inspect his property.

5. Around 1:30 p.m. on November 14, 2006, Mr. Brown and Lee

   
   

   W. Hughes, another Department employee, inspected Respondent's property to determine whether Respondent's activities were conducted within wetlands and to what extent wetlands were

   impacted. Respondent was present during the inspection. The employees' observations are memorialized in photographs received in evidence as Department's Exhibits 11A through 11N. The two observed a "large" area north of Respondent's home that had been totally cleared and deforested. The center of the cleared property had been dredged or scraped to create a pond-like area several feet lower than the adjoining land, while the soils removed from the pond-like area had been used to create sculptured white side-casting perhaps ten inches high on the edges of the pond, filling additional wetlands. However, the pond was empty because of drought conditions.

6. The Department's inspection revealed that the cleared area was wetlands because of the presence of various plant species which are indicative of wetlands, including Swamp Tupelo, Red Maple, American Elm, Swamp Dogwood, Dahoon Holly, Buttonbush, Swamp Laurel Oak, Carolina Willow, Elderberry, Soft Rush, Smartweed, and Dayflower. Also, there were hydrologic indicators such as water stain lines, elevated lichen lines, and hypertrophied lenticels. Finally, there were hydric soils found on the property. This was confirmed by ground-truthing (an on- site evaluation of the wetlands and their parameters to verify the on-site conditions), which revealed dark top soil at least four inches thick and the presence of muck. Collectively, these indicators are sufficient to make a finding that the impacted area was wetlands. See Fla. Admin. Code R. 62-340.200 and

   Department's Exhibit 9. The fact that the "home-site ha[d] [not] been delineated [as wetlands] by any other governmental agency," as asserted by Respondent in his Proposed Recommended Order, is not dispositive of the issue. Respondent's assertion that no dredged materials were taken off-site, and no fill was brought onto the property, was not challenged.

7. A second inspection was conducted by Mr. Brown and Lindsay L. Brock, then a Department employee, on December 19, 2006, for the purpose of mapping the actual size of the impacted area with Global Positioning Satellite (GPS) equipment.6 The second inspection was necessary since the Department's GPS equipment was inoperative during the first inspection. Based on Ms. Brock's GPS calculations, which have been received in evidence as Department's Exhibit 19, the Department determined that the total area dredged was 0.91 acres, while the filled area was 0.52 acres. The total impacted area was 1.4 acres of wetlands. This amount was calculated by measuring the size of the pond, 0.91 acres, with the side-casting accounting for the remaining 0.52 acres. During the inspection, the area was also photographed a second time, and these photographs have been received in evidence as Department's Exhibits 12A through 12K.

8. An Enforcement Inspection Report (Report) was later prepared by Mr. Brown summarizing the findings of the two inspections. That Report has been received in evidence as Department's Exhibit 10 and Respondent's Exhibit 1.e. At

   hearing, Mr. Brown reaffirmed that the findings in the Report were correct. Specifically, the wetlands in the disturbed area were characterized as having a dominance of Obligate and Facultative Wet species and numerous hydrologic indicators, as well as soils typically found in wetlands. A jurisdictional determination established that the impacted property was wetlands; that there were adverse impacts caused by the violations, i.e., impacts described in Sections 3.2.3.2, 3.2.3.3, 3.2.3.4(a), and 3.2.3.7 of the Basis of Review of the Southwest Florida Water Management District; and that there were cumulative and secondary impacts associated with the violations, i.e., the actual loss of 1.4 acres of forested hardwood wetlands (Gum

   Swamp-613), habitat loss, the alteration in the normal flow of detrital material to Mud Lake, and the reduction in the system's ability to cycle and control nutrient and pollutant levels.

   Because the impacted lands were wetlands, a permit is required in order to perform any dredging and filling. See Fla. Admin. Code

   1. 62-343.050. The Report recommended that a Notice be issued.

      
      

9. On February 13, 2007, the Department's Tampa District Office sent Respondent a Warning Letter advising him "of possible violations of law for which [he] may be responsible, and to seek [his] cooperation in resolving the matter." Department's Exhibit

   22 and Respondent's Exhibit 1.h. The letter also requested that Respondent meet with Mr. Brown to discuss the alleged violations.

   A meeting was held at the District Office on March 12, 2007, but efforts to resolve the matter were unsuccessful.

10. During the informal discussions between the parties, and prior to the issuance of a Notice, Respondent requested an exemption under Section 373.406(1) and (6), Florida Statutes.7 The first subsection provides that no Department rule, regulation, or order affects the right of any person to capture, discharge, and use water "for purposes permitted by law." The second subsection provides that the Department may exempt "those activities that the . . . department determines will have only minimal or insignificant individual or cumulative adverse impacts on the water resources of the district." At hearing, Mr. Brown indicated that he did not respond to the exemption request because Respondent did not qualify. This is because dredging and filling of wetlands is not "permitted by law" without first obtaining a permit, and because, for the reasons cited in its Report, the Department construed the activities as having more than "minimal or insignificant" impacts. Given these circumstances, the statutory exemptions do not apply. The Notice was not issued until a year later on March 13, 2008. The reason for the delay is not of record.

11. Besides contending that Mr. Brown's testimony was not credible, through examination of witnesses and the submission of various exhibits, Respondent raised numerous points to support his contentions that (a) the property is not wetlands, (b) no

    dredging or filling occurred, and (c) the activities are exempt from Department permitting requirements under several statutes.8 He also argued that the Department's decision to initiate an enforcement action against him was flawed or biased. The latter argument has been considered and rejected.

12. Respondent first asserts that the wetlands on his property were already stressed and in bad condition, and that clearing the area and replanting vegetation in and around the pond area created a healthier environment for the vegetation and plants. While Mr. Brown conceded that the wetlands may have been stressed, that in itself does not cause the impacted property to lose its wetlands character, and a permit to dredge and fill the site is still required.

13. Respondent also pointed out that the impacted area was dry before and after the activities occurred, and therefore the wetlands determination was incorrect. He further points out that the Department's representatives agreed that no water or moisture on the ground surface were observed during their two inspections. Given the number of wetland indicators found on the site even during drought conditions, the argument that the property is not wetlands has been rejected. See Finding of Fact 6, supra.

14. Respondent also argued that an authoritative source (Hydric Soils of Florida Handbook) indicates that the soils in that area of the County are not the type typically found on wetlands. Specifically, the predominant soil on his property is

    identified as "Kanapaha sand, bouldery subsurface (25)," which is not considered a hydric soil. Mr. Brown explained, however, that notwithstanding what another source may state, it is necessary to verify the type of soil by performing field tests at the site.

    Ground-truthing performed during the first inspection confirmed the presence of soils typically found in wetlands. See Finding of Fact 7, supra.

15. Respondent also questioned the accuracy of the Department's Exhibit 18, which is an aerial of Respondent's property created by Mr. Brown in February 2008 depicting a pond filled with water in the middle of the cleared area. Respondent contended that the map could not be accurate since the pond area was dry in February 2008 due to drought conditions. In response to this criticism, Mr. Brown noted that the map was not supposed to represent an actual aerial photograph taken in 2008. Rather, it was created for the purpose of superimposing on the property the pond-like area (with water added) observed during the 2006 inspections and was intended only to demonstrate the pond's size in relation to the size of the entire parcel. The exhibit was not tendered for the purpose of proving that the dredging and filling had occurred.

16. Through examination of Mr. Brown, Respondent attempted to show that he qualified for a stormwater exemption under Section 403.813(2)(q), Florida Statutes, on the theory that his activities fell within the purview of that law. The statute

    exempts from permitting requirements the construction, operation, and maintenance of a stormwater management facility which is designed to "serve single-family residential projects, including duplexes, triplexes, and quadruplexes, if they are less than 10 acres total land and have less than 2 acres of impervious surface and if the facilities" satisfy three conditions. One condition is that the facility must "discharge into a stormwater discharge facility exempted or permitted by the department under this chapter which has sufficient capacity and treatment capability as specified in this chapter and is owned, maintained, or operated by a city, county, special district with drainage responsibility, or water management district . . . ." Id. Therefore, even if the pond-like area could be characterized as a stormwater facility, Respondent still does not meet the requirements of the statute since his "facility" does not discharge into another exempt or permitted facility as defined in the statute. In this case, the waters eventually discharge into Mud Lake, which was not shown to be an exempt or permitted stormwater facility.

17. Respondent also questioned the manner in which the Department calculated the size of the impacted area for purposes of assessing an administrative penalty. See Department's Exhibit

    21 and Respondent's Exhibit 1.j., in which penalties are assessed based on the dredged and filled areas each being "greater than one-half acre but less than or equal to one acre." Specifically, he argues that the combined dredged and filled areas exceed one

    acre in size, and under the terms of Section 403.121(3)(c), Florida Statutes, the administrative penalty schedule in the cited statute does not apply. To support this contention, Respondent noted that in responding to discovery, the Department acknowledged that the total impacted area was 1.4 acres.

18. Section 403.121(3)(c), Florida Statutes, provides in relevant part that "the administrative penalty schedule shall not apply to a dredge and fill violation if the area dredged or filled exceeds one acre." In assessing penalties under the statute, the Department considers the dredging and filling as two separate violations. See Counts I and II, Notice. Therefore, it did not combine the two impacted areas for purposes of calculating a penalty under the administrative penalty schedule. While the statute is inartfully drawn and is arguably susceptible to more than one interpretation, the Department's interpretation is a reasonable and permissible one, and its computation is hereby accepted. (If Respondent's construction of the statute was approved, and the two impacted areas were combined, this would not mean that the Department could not assess a penalty. Rather, it appears the Department would then have the choice of

    (a) filing an action in circuit court seeking the imposition of civil (rather than administrative) penalties, or (b) assessing an administrative penalty under Section 403.121(9), Florida Statutes, which did not exceed $5,000.00 per violation or

    $10,000.00 for all violations.)

19. Respondent also contended that he was simply performing landscaping and gardening activities with a tracked vehicle, and that no "excavation" within the meaning of Section 373.403(13), Florida Statutes, occurred. That statute defines dredging as "excavation, by any means, in surface waters or wetlands."9 On the other hand, "filling" is defined in Section 373.403(14), Florida Statutes, as "the deposition, by any means, of materials in surface waters or wetlands." On this issue, the evidence shows that Respondent used a tracked vehicle to remove, scrape, and/or push soils from the wetlands to create the pond-like area and then deposited those materials in other wetlands around the sides of the pond to create the side casting. This activity constituted dredging and filling, as defined above.

20. The remaining arguments of Respondent have been carefully considered and rejected. The preponderance of the evidence supports a finding that Respondent engaged in dredging and filling in wetlands without a permit, as alleged in the Notice, and that the charges have been sustained.

    1. Mitigation

       
       

21. In its Proposed Final Order, the Department contends that Respondent presented no mitigation and therefore the administrative penalties should not be reduced. Mitigating circumstances include, among other things, "good faith efforts [by the violator] to comply prior to or after discovery of the violations by the department." § 403.121(10), Fla. Stat. After

    the area was dredged and filled, Respondent replanted some trees and plants while landscaping his back yard. Also, prior to hearing, he engaged the services of two experts to prepare an evaluation of the charges in the Notice, inspect the property, and submit suggested corrective actions for restoring the impacted area to its original condition. Although the two experts did not appear at hearing, they did render reports which contained proposed corrective actions, and their work should arguably be construed as a good faith effort by Respondent to comply with the Department's requirement that the property be restored to its original condition.

    1. Corrective Actions

       
       

22. The Department has proposed extremely lengthy and detailed corrective actions which are contained in paragraphs 17 through 31 of the Notice and are designed to restore the property to its original condition. (Presumably, these are standard corrective actions imposed in cases such as this for restoring dredged and filled wetlands.) At hearing, Mr. Brown described the nature and purpose of these conditions, which can generally be summarized as (a) requiring that the entire 1.43-acre area be filled and/or regraded to its original contour elevation so that the replanting efforts will be successful, and (b) requiring a rigorous replanting and five-year monitoring schedule.

    Paragraphs 17 through 31 are set forth below:

    1. Respondents [sic] shall forthwith comply with all Department rules regarding dredging and filling within a surface water or wetland. Respondent shall correct and redress all violations in the time periods required below and shall comply with all applicable rules in Fla. Admin. Code Chapter 62-343 and 62-340.

       
       

    2. Within 30 days of the effective date of this Notice of Violation, the Respondent shall attend a pre-construction conference with a representative of the Department's Environmental Resources staff to review the work authorized by this Notice of Violation.

       
       

    3. Prior to the commencement of any earthmoving authorized in this Notice of Violation, the Respondent shall properly install and maintain Erosion and Sedimentation Control devices around the impacted area to prevent siltation and turbid discharge in to adjacent wetlands and surface waters (See Figure 2 attached hereto and incorporated herein). The Erosion and Sedimentation Control devices (i.e. staked silt screen) shall be installed no further than one-foot from the toe of the impacted area and shall remain in place until the restoration actions are completed to the Department's satisfaction.

       
       

    4. The Respondent shall re-grade the approximate 1.43 acres of impacted wetland to a grade consistent with the adjacent, unaltered wetlands, as illustrated in Figures

       1 and 2 attached hereto and incorporated herein.

       
       

       (a) Only fill material excavated from the impacted area shall be used in the restoration of the site. If it is determined that there is an insufficient amount of the fill to obtain the required grade, the Respondent shall cease all work and notify the Department so an alternative restoration plan can be developed, if necessary.

    5. During and after re-grading, Respondent shall stabilize all side slopes as soon as possible to prevent erosion, siltation, or turbid run-off into waters of the State, but, in any event, no later than 72 hours after attaining final grade.

       
       

    6. Any re-grading or filling of the restoration areas shall be conducted so as not to affect wetlands and surface waters outside the restoration area.

       
       

    7. Within 30 days of completing the requirements outlined in paragraph 20 above and prior to planting, the Respondent shall submit a certified topographic survey of the

       1.43 acres of restored wetlands to the Department for review and approval. The Department shall notify the Respondent if the re-grading is acceptable and whether the re- grading is at the correct elevation to ensure that the restoration area will function as a wetland as defined in Chapter 62-340, Florida Administrative Codes (sic). If the re- grading is unacceptable to the Department, Respondent shall have 21 days in which to correct the problems identified by the Department and shall submit a new survey upon completion of the required work. The survey shall include the following information for the restoration area:

       
       

       1. The boundary lines of the Respondent's property.

          
          

       2. Restoration area on the Respondent's Property (in total square footage or acres of restored wetlands)[.]

          
          

       3. Topographic survey of the restoration area completed by a certified land surveyor. The survey shall illustrate one-foot interval on 25 foot transects throughout the restoration area. The transects shall commence and terminate 30 feet beyond the limits of the restoration area.

       
       

    8. Once grading has been approved by the Department, the Respondent shall plant 270 of

       the following species in any combination throughout the 1.43-acres of restored wetlands: Swamp Tupelo (Nyssa syvatica), Red Maples (Acer rubrum), American Elm (Ulmus Americana L.), Swamp Dogwood (Cornus amomum Mill.), [and] Dahoon Holly (Ilex cassine L.). The tree species shall be planted on 15 foot- centers throughout the restoration area and shall be 3-gallon, well-rooted, nursery grown stock.

       
       

    9. Within 30 days of completion of the planting outlined in paragraph 24 above, the Respondent shall submit a "Time Zero" Monitoring Report, which includes the following information:

       
       

       1. Respondent's name, address, and OGC Case number;

          
          

       2. Date the Corrective Actions were completed;

          
          

       3. Enough color photographs to accurately depict the completion of the wetland restoration actions outlined in paragraphs 20 through 24 above. The photographs shall be taken from fixed reference points shown on a plan-view drawing;

          
          

       4. Nursery receipts for all plants used in the Restoration Action;

          
          

       5. Number, size and spacing of each species planted; and

          
          

       6. Description of any exotic vegetation removal or control conducted to date including the acreage of exotic vegetation removal and how vegetation removal or control was conducted.

       
       

    10. Subsequent monitoring reports shall be submitted for a period of 5 years following completion of the Corrective Actions: semi- annually for the first year and annually for year two through five. The purpose of the monitoring shall be to determine the "success

        of the restoration." The monitoring reports shall include the following information:

        
        

        1. Respondent's name, address, and OGC Case number;

           
           

        2. Date the inspection was completed;

           
           

        3. Color photographs taken from the same fixed reference points previously established during the Time-Zero monitoring report so Department personnel can observe the current site conditions and evaluate the success of the restoration plan;

           
           

        4. The percentage of each planted tree species within the restoration area that has survived;

           
           

        5. The average height of the planted tree species;

           
           

        6. The percent canopy cover by planted tree species within the restoration area; a tree shall be defined as a woody species that has a diameter at breast height (DBH) of at least

           1.5 inches and a vertical height of 10 feet as measured from the substrate;

           
           

        7. The percent cover within the restoration area by planted and naturally recruiting native, "non-nuisance," wetland species, as defined in Chapter 62-340, Florida Administrative Code;

           
           

        8. The percent cover of Brazilian Pepper (Schinus terebinthifolius), Water Primrose (Ludwigia peruviana) and other nuisance species including those species listed or not listed in Chapter 62-340, Florida Administrative Code; and

           
           

        9. A written summary describing the success of the restoration area including steps needed and/or taken to promote future success such as replanting and/or nuisance or exotic species removal. Description should also include water levels observed within the restoration area.

    11. "Success of the Restoration" means at the end of the monitoring schedule the following success criteria are met in the restoration area:

        
        

        1. The total percent cover within the restoration area by native wetland vegetation exceeds 85 percent;

           
           

        2. Average height of the planted tree species exceeds 10-feet;

           
           

        3. The total percent canopy cover by planted and naturally recruited native wetland trees exceeds 30 percent;

           
           

        4. The total contribution to percent cover by nuisance, non-wetland or species not listed in Rule 62-340, Florida Administrative Code is less than 10 percent; and

           
           

        5. The Department has inspected the restoration area and the Department has informed the Respondent in writing that the restoration area meets the definition of a wetland as defined in Rule 62-340.200, Florida Administrative Code.

        
        

    12. If it is determined by the Department, based on visual inspection and/or review of the monitoring reports, that the restoration area is not meeting the above specified success criteria, an alternative Restoration Plan shall be submitted to the Southwest District Office and shall meet the following requirements:

        
        

        1. Shall submit the plan within 30 days of notification by the Department of failure to meet the success criteria.

           
           

        2. Shall implement the alternative plan no later than 90 days after receiving Department approval.

           
           

        3. Shall restart monitoring and maintenance program.

    13. Should the property be sold during the monitoring period, the Respondent shall remain responsible for the monitoring and notify the new owners of the Respondent's obligation to continue the monitoring and maintenance until the Department has determined that the success criteria has been met. The Respondent shall notify the new owner(s) of this in writing and shall provide the Department with a copy of the notification document within 15 days of the sale of the property.

        
        

    14. Prior to the submittal of each required monitoring report, the Respondent shall remove all exotic and nuisance vegetation from the restored wetland area. Nuisance and exotic vegetation removal shall include but not be limited to Brazilian Pepper (Schinus terebinthifolius) and Water Primrose (Ludwigia peruviana).

        
        

    15. All exotic vegetation shall be removed from the restoration area using hand-held equipment in a manner that will minimize impacts to the existing wetland plants and will not cause ruts in the wetland soils, which will impede or divert the flow of surface waters.

        
        

23. More than any other aspect of this case, Respondent questions the nature and extent of the corrective actions being proposed by the Department on the ground they are too extensive, complex, and unnecessary and will cost tens of thousands of dollars. When asked to quantify or estimate the cost of the corrective actions, Mr. Brown could not. It is fair to infer, however, that the cost of the restoration work will be expensive and probably far exceed the amount of the proposed penalties.

    The two experts' reports, which are hearsay and cannot be used as a basis for a finding of fact, essentially corroborate

    Respondent's argument that the corrective actions may be onerous and too far-reaching. The difficulty, however, in evaluating Respondent's claim is that the record is limited to Mr. Brown's testimony justifying the conditions, the hearsay reports of the two experts, and a few exhibits tendered by Respondent.

24. A precise description of the impacted area before the work was undertaken is not a part of the record at hearing. Therefore, the original condition is not known. Through the submission of exhibits and the questioning of Mr. Brown, Respondent contended that a natural depression existed in the area where the pond now sits, that he was merely leveling off the depression while removing dead trees and plants, and that very little soil was actually removed from the pond area. Given these circumstances, he contends that there are insufficient fill materials on site to bring the pond to grade. In his Exhibit 3, Respondent estimates that just to fill the pond area and bring it to the grade of the surrounding land, he would be required to haul in approximately 4,200 cubic yards of sand or fill material. Also, Respondent's Exhibit 2.c. purports to be a copy of an elevation survey of the property containing elevations at different points on the property. The handwritten numbers on the exhibit, which Respondent represents were taken from a certified survey (which is not otherwise identified), reflect the property (presumably before the work was undertaken) gradually sloping from a higher elevation on the southern boundary (around 67 feet)

    to the road on the northern boundary (around 66 feet), with a lower elevation of around 64 feet in the middle of the parcel, indicating a slightly lower elevation in the middle of the property. Also, a part of the property lies within the FEMA 100- year flood zone. Thus, it is fair to infer that the pond area replaced an area with a slight depression and on which water would accumulate during heavy storm events. This circumstance would logically reduce the amount of fill necessary to restore the pond area to its original contour elevation. Therefore, in implementing the corrective actions, the Department should give consideration, in the manner it deems appropriate, to the fact that the area contained a natural depression before the illicit activities occurred.

25. The evidence supports a finding that the proposed corrective actions, although extensive and costly, should be approved. To the extent Respondent has replanted the impacted area with trees and plants that fit within the Department's restoration scheme, he should also be credited for this work.

    1. Reasonable costs and expenses

    
    

26. The Department established at hearing that its Tampa District Office employees incurred expenses of more than $500.00 while investigating this matter. This is based upon the number of hours devoted to the case times the hourly salary rate of the employees. Therefore, the Department is entitled to be reimbursed in the amount of $500.00 for reasonable investigative

    expenses and costs. Respondent has not disputed the amount of time expended by the employees or their hourly compensation but contends in his Proposed Recommended Order that the matter could have been cleared up by a "simple phone call and a few minutes of effort." Respondent's argument is hereby rejected.

    CONCLUSIONS OF LAW

    
    

27. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569, 120.57(1), and 403.121, Florida Statutes.

28. Section 403.121(2), Florida Statutes, prescribes the administrative enforcement process for the Department "to establish liability and to recover damages for any injury to the air, waters, or property . . . of the state caused by any violation." Under that process, the Department is authorized to "institute an administrative proceeding to order the prevention, abatement, or control of the conditions creating the violation or other appropriate corrective action." § 403.121(2)(b), Fla. Stat. The process is initiated by "the department's serving of a written notice of violation upon the alleged violator by certified mail." § 403.121(2)(c), Fla. Stat. If a hearing is requested by the alleged violator, "the department has the burden of proving with the preponderance of the evidence that the respondent is responsible for the violation." § 403.121(2)(d), Fla. Stat. Thereafter, "the administrative law judge shall issue

    a final order on all matters, including the imposition of an administrative penalty." Id.

29. In Count I of its Notice, the Department alleged that Respondent "dredged approximately 0.91-acres of wetlands on the property without a permit," while Count II alleged that he "filled approximately 0.52-acres of wetlands on the property without a permit." Count III seeks the recovery of "expenses incurred to date while investigating this matter in the amount of not less than $500.00."

30. Wetlands are defined in Florida Administrative Code Rule 62-340.200(1)(19) as meaning:

    those areas that are inundated or saturated by surface water or ground water at a frequency and a duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soils. Soils present in wetlands generally are classified as hydric or alluvial, or facultative or obligate hydrophytic macrophytes that are typically adapted to areas having soil conditions described above. These species, due to morphological, physiological, or reproductive adaptations, have the ability to grow, reproduce or persist in aquatic environments or anaerobic soil conditions.

    Florida wetlands generally include swamps, marshes, bayheads, bogs, cypress domes and strands, sloughs, wet prairies, riverine swamps and marshes, hydric seepage slopes, tidal marshes, mangrove swamps and other similar areas. Florida wetlands generally do not include longleaf or slash pine flatwoods with an understory dominated by saw palmetto.

    
    

31. Dredging is defined in Section 373.403(13), Florida Statutes, as

    excavation, by any means, in surface waters or wetlands, as delineated in s. 373.421(1). It also means the excavation, or creation, of a water body which is, or is to be, connected to surface waters or wetlands, as delineated in s. 373.421(1), directly or via an excavated water body or series of water bodies.

    
    

32. Filling is defined in Section 373.403(14), Florida Statutes, as

    The deposition, by any means, of materials in surface waters or wetlands, as delineated in s. 373.421(3).

    
    

33. By a preponderance of evidence, the Department has established that the impacted property was wetlands within the meaning of the rule, that Respondent dredged and filled that area, as defined above, and that he failed to obtain a permit, as required by Florida Administrative Code Rule 62-343.050. Therefore, the charges in Count I and II have been sustained. Respondent's contentions that the property was not wetlands, that the activities did not constitute dredging and filling, and that he qualifies for an exemption have been considered and rejected.

34. Throughout the proceeding, Respondent has questioned in two respects the amount of the administrative penalty being imposed by the Department under Section 403.121(3)(c), Florida Statutes. One argument has been considered and rejected in Findings of Fact 17 and 18, supra. Respondent has also argued that, assuming the administrative penalty schedule in the statute applies, it was improperly calculated. Paragraph (3)(c) provides

    in relevant part that "the department shall assess a penalty of

    
    

    $1,000 for unpermitted or unauthorized dredging and filling . . . plus $2,000 if the dredging and filling occurs in an aquatic preserve, Outstanding Florida Water, conservation easement, or Class I or II surface water, plus $1,000 if the area dredged or filled is greater than one-quarter acre but less than or equal to one-half acre, and plus $1,000 if the area dredged or filled is greater than one-half acre but less than or equal to one acre." Respondent apparently assumes that the Department assessed

    $1,000.00 for unpermitted dredging and filling, and another

    
    

    $2,000.00 because the activities occurred in "an aquatic preserve, Outstanding Florida Water, conservation easement, or Class I or Class II surface water." Because the wetlands are contiguous to Mud Lake, a Class III water body, he argues that the additional $2,000.00 fine should not be assessed. In this case, the Department assessed the mandatory penalty of $1,000.00 for unlawful dredging or filling in wetlands, an additional

    $1,000.00 because the area dredged or filled was more than one- quarter acre but less than or equal to one-half acre, and another

    $1,000.00 because the area dredged or filled was greater than one-half acre but less than or equal to one acre in size, or a

    total of $3,000.00 for each violation that exceeded one-half acre but was less than or equal to one acre. Even though the statute is not drafted in clear and precise language, the Department's "stacking" of the penalties in the manner described above is not

    inconsistent with its terms. Therefore, Respondent's argument has been rejected.

35. Section 403.121(10), Florida Statutes, provides the following broad guidelines on the issue of mitigation:

    (10) The administrative law judge may receive evidence in mitigation. The penalties identified in subsection (3), subsection (4), and subsection (6) may be reduced up to 50 percent by the administrative law judge for mitigating circumstances, including good faith efforts to comply prior to and after the discovery of the violation by the department. Upon an affirmative finding that the violation was caused by the circumstances beyond the reasonable control of the respondent and could not have been prevented by the respondent's due diligence, the administrative law judge may further reduce the penalty.

    
    

36. Respondent presented no direct evidence in mitigation of the violations. As noted in Finding of Fact 21, however, once the Notice was issued in this case and the matter set for hearing, Respondent hired two consultants to evaluate the alleged violations and prepare proposed corrective actions to restore the property to its original condition. Although the experts did not appear at hearing, and their reports must be treated as hearsay evidence, the fact that this step was taken arguably constitutes a good faith effort by Respondent to comply with Department requirements after the discovery of the violations. The mitigation presented justifies a fifty percent reduction in the proposed administrative penalties, or from $6,000.00 to

    $3,000.00. A further reduction in the penalties is not warranted as there is no evidence to show that "the violation was caused by circumstances beyond the reasonable control of the respondent and could not have been prevented by the respondent's due diligence." While Respondent may have been well-intentioned in trying to landscape his back yard or even prevent flooding, at a minimum, a reasonable and diligent person would have contacted the Department or water management district before any work began for the purpose of verifying whether the work could be lawfully performed.

37. Section 403.141(1), Florida Statutes, allows the Department to recover the "reasonable costs and expenses of the state" in investigating matters such as this. Here, even though the Department has established that its expenses were much higher, it is only seeking recovery of $500.00. That amount is found to be reasonable and is hereby approved.

38. The proposed corrective actions recited in Finding of Fact 22, while extensive and costly, are also approved. In administering them, and in the manner it deems appropriate, the Department should give consideration to the fact that the area contained a natural depression before the activities occurred. This would logically reduce the amount of fill necessary to restore the pond area to its original contour elevation. Respondent should also be given credit for any replanting of

    trees and plants which is consistent with the Department's corrective actions.

39. Finally, Section 403.121(2)(f), Florida Statutes, provides that "the prevailing party shall recover all costs as provided in ss. 57.041 and 57.071. The costs must be included in the final order." In this case, the Department is the prevailing party. However, it made no request for the "prevailing party" costs, and it presented no evidence on their amount. Therefore, they cannot be included in this Final Order.

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the charges in the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment are sustained, and Respondent shall pay a $3,000.00 administrative fine, pay $500.00 in investigative costs and expenses, and take the corrective actions described above. Such fines and costs shall be paid within 30 days of the effective date of this Order by cashier's check or money order payable to the "State of Florida Department of Environmental Protection" and shall include thereon the OGC Case number (08-0127) assigned to this case and the notation "Ecosystem Management and Restoration Trust Fund." The payment shall be sent to the Florida Department of Environmental Protection, Attn: David Brian Brown, 13051 North Telecom Parkway, Temple Terrace, Florida 33637-0926.

DONE AND ORDERED this 22nd day of September, 2008, in Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2008.

ENDNOTES

1/ All statutory references are to the 2007 version of the Florida Statutes.

2/ In his Proposed Recommended Order, Respondent cited numerous complaints about the conduct of his attorney prior to his withdrawal from the case. Such complaints are beyond the scope of this proceeding.

3/ On an undisclosed date, Respondent engaged the services of two consultants, Dr. Taylor and Mr. Czerwinski, to inspect his property and prepare reports. The report of one consultant,

Dr. Taylor, was faxed to the Tampa District Office on July 8, 2008. On July 17, 2008, the Department filed a Motion to Expedite Answers to Department's Second Set of Interrogatories. The interrogatories were designed primarily to elicit additional information about the consultants and their opinions; the Department also asked for a copy of Mr. Czerwinski's report, which had not yet been tendered to counsel. Due to the proximity of the hearing, at a pre-hearing conference conducted by telephone on July 23, 2008, the undersigned orally instructed Respondent to answer the interrogatories and provide counsel with a copy of the Czerwinski report by the close of business the following day. For scheduling purposes, Respondent was also advised that his experts would not be allowed to testify at hearing until after the

Department had completed its case-in-chief, which might consume the entire morning of the hearing. When the interrogatories were not timely and fully answered, and the Czerwinski report given to counsel did not include attachments referenced in the report, on July 25, 2008, the Department filed a Motion in Limine seeking to exclude the testimony and reports of both consultants. The Motion was taken up at the hearing on July 29, 2008. Because the witnesses were not present at the hearing, that portion of the Motion was rendered moot. At that time, Respondent represented that the two consultants advised him prior to the hearing that they could not attend because they did not have the time to "sit around" for several hours waiting to testify. At the conclusion of the hearing, however, Respondent essentially asserted that he had been denied due process because he was not allowed to present the testimony of his experts. However, neither expert voluntarily appeared at the final hearing, and Respondent did not have subpoenas issued to compel their attendance. Thus, there was no basis to continue the hearing or leave the record open to hear their testimony. Contrary to Respondent's assertion, no ruling was made prior to hearing which "blocked [them] from being able to testify as expert witnesses."

4/ Exhibit 2.f. (the resume of Dr. Taylor) and that part of Exhibit 2.i. identified on the exhibit list as the "Operating Agreement btwn FSWWMD and FDEP" were never filed with the undersigned or submitted at hearing. Therefore, they have not been considered. Because the record is now closed, Respondent may not late-file those documents with the Clerk's Office. Finally, Section 403.813(7)(u), Florida Statutes, is listed as an item under Exhibit 2.j. Because there is no paragraph (7)(u), it is assumed that Respondent was referring to Section 403.813(2)(u), Florida Statutes, which authorizes an exemption for the "removal of organic detrital material from freshwater rivers or lakes that have a natural sand or rocky substrate and that are not Aquatic Preserves or for the associated removal and replanting of aquatic vegetation for the purpose of environmental enhancement."

However, this statute has no application to this proceeding.

5/ For the benefit of Respondent, who is not an attorney, no further papers regarding the merits of this case should be filed with the undersigned. His appellate rights are described in the Notice of Right to Judicial Review section set forth on the last page of this Final Order.

6/ Throughout this case, Respondent has placed considerable significance on the fact that in one of the Department's answers to Respondent's interrogatories filed on May 27, 2008, Ms. Brock, who signed the interrogatories, made an error regarding the names of the Department employees who performed the two inspections. He

argues that this error largely undermines the credibility of the Department's case. While the answer was incorrect, the error was minor in nature and did not affect the accuracy or reliability of either inspection or the GPS calculations.

7/ Respondent also cited Section 373.406(10), Florida Statutes, as a basis for granting an exemption. That statute refers to "[i]mplementation of interim measures or best management practices adopted pursuant to s. 403.067 that are by rule designated as having minimal individual or cumulative adverse impacts to the water resources of the state." However, it has no application here.

8/ Respondent began searching for a statute or rule which would serve as the basis for exempting his activities after the dredging and filling had already occurred and the warning letter issued.

This resulted in Respondent citing numerous statutes throughout the proceeding, none of which apply. Had Respondent followed the proper sequence of events, before any clearing of the land began, he would have first described the proposed work to the Department or water management district for the purpose of determining whether such work could be performed without a permit.

9/ Dredging is also defined in the same statute as meaning

"the excavation, or creation, of a water body which is, or is to be, connected to surface waters or wetlands, as delineated in

s. 373.421(1), directly or via an excavated water body or series of water bodies." In his Proposed Recommended Order, Respondent argues that because he never created a "water body," his activities do not constitute dredging. But the Department has not alleged that Respondent's activities fall within the definition in the second part of the statute; rather, the Department's proof in this case was designed to support the theory that his activities constitute dredging, as defined in the first part of the definition, that is, the "excavation, by any means, in surface waters or wetlands, as delineated in s. 373.421(1)," and that he did so without a permit.

COPIES FURNISHED:

Alissa Blank Meyers, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

John Jozsa

1978 County Road 652A Bushnell, Florida 33513-9006

Tom Beason, General Counsel

Department of Environmental Protection 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The Notice of Appeal must be filed within 30 days of rendition of this Final Order.

Docket for Case No: 08-002081EF

Orders for Case No: 08-002081EF