The Issue Whether Respondents have violated Chapter 403, Florida Statutes by dredge and fill activities at Sampson Lake, Bradford County, Florida, and should therefore be subject to corrective action and costs, as set forth in Notice of Violation and Orders for Corrective Action, dated March 4, 1982. This case arises from Petitioner's filing of a Notice of Violation and Orders for Corrective Action against Respondent Dudley P. Hardy on March 4, 1982, alleging that he conducted dredge and fill activities on property which he owned adjacent to Sampson Lake without obtaining a departmental permit for such activities. The notice further alleged that such activities created a stationary installation reasonably expected to be a source of pollution, and sought to have the Respondent take corrective action by restoring the affected area, and also to nay investigative costs, pursuant to Chapter 403, Florida Statutes. Respondent Hardy responded to the Notice of Violation and therein requested an informal administrative hearing pursuant to Section 120.57(2), Florida Statutes. He also averred that he only owned a one-half interest in the subject property, and that the other one-half interest was owned by J. D. Odom, Jr. and Vernie Phillips Odom, his wife. Based upon Petitioner's request, a formal hearing under Section 120.57(1), Florida Statutes, was scheduled for July 14-15, 1982, but pursuant to Petitioner's Motion for Continuance, the hearing was rescheduled for August 12- 13, 1982, by Order dated May 24, 1982. Petitioner thereafter amended its notice of violation to include J. D. Odom, Jr. and Vernie Phillips Odom as Respondents in the proceeding as indispensable parties. By Order dated July 7, 1982, Petitioner's Motion for Leave to Amend was granted. By Order of Consolidation dated April 28, 1982, this case was consolidated with five other cases involving similar activities at Sampson Lake. (DOAH Cases Nos. 82-907and 02-909 - 82-912) However, prior to the scheduled hearing, counsel for Petitioner advised the Hearing Officer that the other cases had been resolved by consent orders. At the hearing, Respondent J. D. Odom, Jr. appeared without counsel and was advised of his rights in a Chapter 120 administrative proceeding. He acknowledged his understanding of such rights and elected to proceed without counsel. Petitioner presented the testimony of three witnesses and submitted ten exhibits. Respondent testified in his own behalf and submitted two exhibits. After the conclusion of the hearing, Respondent J. Odom submitted a letter to the Hearing Officer, dated August 17, 1982, which enclosed a copy of a survey which had been previously received in evidence as Petitioner's Exhibit 1, and photographs which had not been received in evidence at the hearing. Petitioner filed a Motion to Strike these matters, and the motion is hereby partially granted. The additional photographs presented by Respondent can not be taken into consideration in this Recommended Order because they were not admitted in evidence at the hearing. Petitioner's post-hearing Proposed Findings of Fact, Conclusions of Law, and Proposed Recommended Order has been fully considered, and those portions not adopted herein are deemed either unnecessary or irrelevant, or unsupported in law or fact. In like manner, the statements made by Respondent Odom in his post-hearing letter that are unrelated to the photographs have been fully considered.
Findings Of Fact By warranty deed, dated March 12, 1980, Sampson Lake Properties, Inc. conveyed a parcel of the land located in Bradford County, Florida to Respondent, Dudley P. Hardy. The property is bordered by Sampson Lake on the west and Rowell Canal on the south. By warranty deed, dated July 10, 1980, Hardy conveyed an undivided one-half interest in the property to Respondents J. D. Odom, Jr. and Vernie Phillips Odom, his wife. (Testimony of J. Odom, Petitioner's Exhibits 5-6, Respondents' Exhibit 1) Rowell Canal is a man-made canal which is designated as Class III waters of the State, and connects lakes Rowell and Sampson, also Class III waters of the State. Lakes Sampson and Rowell are natural lakes that are owned by more than one person. Each lake is larger than ten acres with an average depth of more than two feet existing throughout the year, and neither becomes dry each year. (Testimony of Scott, Farmer, Petitioner's Exhibit 1) Respondents' property lies immediately west of a railroad right-of-way, and a railroad ditch lies parallel to the property next to a railroad trestle. The ditch was approximately 45 feet wide at Rowell Canal and some 215 feet long at the time Respondents acquired the property. (Testimony of Scott, Farmer) At some undisclosed date in 1981, Respondent J. Odom widened and deepened the west side of the ditch with a backhoe in order to create a canal which would enable him to launch boats at the Rowell Canal. The dirt removed from the ditch was piled along the side of the newly created canal. When finished, the canal was some 213 feet long, 20 to 30 feet wide, with depths ranging from 2 to 7 feet. At the present time, a natural earthen plug remains between the excavated canal and the Rowell Canal. During the rainy season, water overflows the plug and any waters from the Odom Canal would interchange to some degree with those of Rowell Canal. (Testimony of Scott, Farmer, Barber, Petitioner's Composite Exhibit 2, Respondents' Composite Exhibit 2) Respondent Odom did not apply for a permit to conduct the dredging and filling activities on his property. After Petitioner became aware of the situation in September, 1981, two members of the enforcement section of Petitioner's St. Johns River Subdistrict visited the site and determined that the Department had enforcement jurisdiction due to the fact that the dominant vegetation for approximately the first hundred feet of Respondents' canal from Rowell Canal to the north was a band of cypress trees (Taxodium Sp.). Such a wetland species serves as a guide to determining the landward extent of waters of the State, pursuant to Rules 17-4.02(17) and 17-4.28, Florida Administrative Code. There is also a large number of pine trees on the property. Thereafter, by letter of November 30, 1981, Petitioner's St. Johns River Subdistrict Manager sent a letter to Respondent Hardy placing him on notice concerning unauthorized dredging and filling activities. (Testimony of Scott, Farmer, Petitioner's Exhibits 3-4, Respondents' Exhibit 2) By warranty deed, dated July 26, 1982, Respondent Hardy conveyed his interest in the property to J. D. Odom, Jr. and Vernie Phillips Odom. (Testimony of Farmer, Petitioner's Exhibit 7) On August 10, 1982, DER personnel took dissolved oxygen readings of the dredged canal. Analysis of the water samples reflected depressed dissolved oxygen levels throughout the canal in violation of water quality standards for Class III waters. (Testimony of Farmer, Petitioner's Exhibit 9) A dead-end canal reasonably can be expected to cause pollution due to the fact that organic matter decays on the bottom and becomes a nutrient trap, thus depressing the dissolved oxygen in the water. During the inspection by DER personnel, gas bubbles were observed in the canal, thus indicating the presence of hydrogen sulphate, which is indicative of anaerobic conditions. The presence of fish in the canal at the present time indicates there is enough dissolved oxygen to sustain life, however. (Testimony of Scott, Farmer, Petitioner's Exhibit 9) Until a few years ago, Sampson Lake had not been developed. However, at the present time many canals have been built and Petitioner has issued twelve notices of violations in the area. Canals such as that of Respondents' can be expected to have an adverse cumulative impact on the waters of Rowell Canal and Sampson Lake due to the entry of water containing excessive nutrients. (Testimony of Barber) Respondent Odom Intended to remove the earthen plug at the end of his canal in order to gain access to Rowell Canal from his proposed cement boat ramp to provide access to Sampson Lake. About twelve to fifteen years ago, a dam was built on Sampson Lake to control the water level. Prior to construction of the dam, a road existed around the lake which could be driven upon approximately 50 percent of the time during dry season. At the present time, Respondent can transport a boat through his property to Rowell Canal with difficulty because of the existing trees. Prior to the dredge and fill activity of Respondent, a boat could be moved through the property to Rowell Canal, generally in the area where the present dredged canal is located. (Testimony of Respondent Odom) Petitioner expended $132.34 in costs of investigating Respondents' dredging and filling activities. (Testimony of Barber, Petitioner's Exhibit 10)
Recommendation That Petitioner issue a final order requiring Respondents to take corrective action with regard to their dredge and fill activities as specified in the Notice of Violation and Orders for Corrective Action, and to pay departmental investigative costs, but withhold the effective date thereof to provide Respondents a period of thirty days to make application for an "after- the-fact" permit pursuant to Rule 17-4.28, F.A.C. If they fail to make such application within the required period, the final order should then become effective. If application is made, the effect of the final order should be staved until conclusion of proceedings on the application. DONE and ENTERED this 7th day of September, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1982. COPIES FURNISHED: Cynthia K. Christen, Esquire Assistant General Counsel and Michael Tammaro, Certified Legal Intern DePartment of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Dudley P. Hardy, Esquire Post Office Drawer 1030 Starke, Florida 32091 J. D. Odom, Jr. and Vernie Phillips Odom, his wife Post Office Box 517 Starke, Florida 32091 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION, Petitioner, vs. CASE NO. 82-908 DUDLEY P. HARDY, J.D. ODOM, JR., and VERNIE PHILLIPS ODOM, Respondents. /
The Issue The issue to be determined in this case is whether Petitioner’s proposed activities qualify for the seawall construction exemption from permitting in section 403.813(1)(i), Florida Statutes (2014).
Findings Of Fact The Parties The District is a multi-purpose water management district with its principal office at 3301 Gun Club Road, West Palm Beach, Florida. It has been granted powers and assigned duties under chapter 373, Florida Statutes, to regulate construction activities in wetlands and other surface waters. Petitioner William B. Swaim is the contract purchaser of real property located at Section 22, Township 45 South, Range 43 East, Palm Beach County Parcel Identification number 46-43-45-22-00-005-0020, in the Town of Ocean Ridge, Palm Beach County (“the property” or “Petitioner’s property”). The western side of the property contains a healthy stand of red mangroves. It is inundated on high tides. The eastern portion of the property is beneath the open waters of Spanish Creek. This submerged portion contains productive benthic habitat for a number of fish, invertebrates, oysters, conchs, clams, mussels, barnacles, and crabs. The Department of Environmental Protection could not determine whether Spanish Creek was navigable at the date of statehood (1845) and, therefore, is subject to a claim of State ownership under chapter 253, Florida Statutes, as “sovereignty submerged lands.” Petitioner did not present competent evidence that all of the land upon which the proposed project would be constructed is contained within the property which he has contracted to purchase. Petitioner showed his title would extend to the centerline of Spanish Creek, but he did not establish where the centerline is located. Petitioner’s evidence was not sufficient to show that he has a colorable claim to all of the open water area that he proposes to wall off and fill. The Proposed Project In his request for exemption verification, Petitioner identified the following proposed development activities: (1) construction of approximately 950 feet of batter pile concrete seawall around three sides of the approximate boundaries of the property; (2) filling within the seawalls to an approximate elevation of 8.0 feet above sea level with offsite fill; and (3) construction of an access road to the south of the property. Petitioner later modified his proposal to construct 1,117 feet of batter pile concrete and steel sheet seawall and to fill within the seawalls to an approximate elevation of 6.0 feet above sea level. At the final hearing, Petitioner withdrew his plan to place riprap on the outside of the eastern seawall. Petitioner still proposes to place 300 feet of riprap along the western boundary of the property. The Seawall Construction Exemption Section 403.813(1)(i) provides an exemption from permitting for the following activities: The construction of private docks of 1,000 square feet or less of over-water surface area and seawalls in artificially created waterways where such construction will not violate existing water quality standards, impede navigation, or affect flood control. This exemption does not apply to the construction of vertical seawalls in estuaries or lagoons unless the proposed construction is within an existing manmade canal where the shoreline is currently occupied in whole or part by vertical seawalls. Whether Petitioner Proposes to Construct Seawalls The term “seawall” is not defined in the statute. It is defined in section 2.0(a)91 of the Applicant’s Handbook as “a man-made wall or encroachment, except riprap, which is made to break the force of waves and to protect the shore from erosion.” The District’s definition of “seawall” is similar to its dictionary definition as “a wall or embankment to protect the shore from erosion or to act as a breakwater.” Webster’s New Collegiate Dictionary at 1035 (1979). Petitioner’s proposed project is not intended to protect a shore from erosion. The property has no shore. Petitioner’s project is more accurately described as construction of retaining walls to form a frame within which to place fill dirt so that about three acres of wetlands and open water can be transformed into uplands. Petitioner’s purpose is to create a buildable residential lot. Petitioner’s project is not the construction of seawalls. Therefore, the proposed seawalls will be referred to hereafter as walls. Whether Spanish Creek is an Artificially Created Waterway The term “artificially created waterway” is not defined in section 403.813(1)(i) or in the rules of the District. However, the term “artificial waters” is defined in section 2.0(a)10 of the Applicant’s Handbook as “bodies of water that were totally excavated from uplands, do not overlap historic wetlands or other surface waters, and were not created as a part of a mitigation plan.” The District interprets the term “artificially created waterway” in section 403.813(1)(i) as having the same meaning as “artificial waters”; that is, it does not include natural waterbodies that have been dredged. The District conducted an extensive review of over 160 years of mapping data, including certified historic maps from the 1800s, aerial photography, the National Wetlands Inventory database, topographic and hydrographic data, soil surveys and maps, and historic photographs. The evidence clearly establishes that Spanish Creek is a naturally-occurring waterbody, having appeared on historic documents since at least 1872. Some dredging was conducted in Spanish Creek, probably in the 1950s or 1960s. The western portion of Petitioner’s property where the red mangroves are located was not dredged. The preponderance of the evidence indicates that the property once included a larger area of shallow marsh or mangrove vegetation and a smaller area of open water, but dredging decreased the area of vegetated wetlands and increased the area of open water. Spanish Creek does not meet the District’s definition of “artificial waters” because it is not totally excavated from uplands. Spanish Creek meets the definition of “stream” in section 2.0(a)101 of the Applicant’s Handbook, which is “any river, creek, slough, or natural watercourse in which water usually flows in a defined bed or channel.” The definition includes a statement that “[t]he fact that some part of the bed or channel shall have been dredged or improved does not prevent the watercourse from being a stream.” Petitioner’s reference to U.S. Army Corps of Engineers characterizations of waters in the area as “residential canals” is not controlling, nor persuasive. Spanish Creek is not a canal. Spanish Creek is a natural waterbody, which has been artificially widened by dredging. Petitioner argues that the plain meaning of “artificially created waterway” applies to Spanish Creek, but “artificially created” does not have the plain meaning of being artificially altered. Spanish Creek was altered by dredging. It was not created by dredging. It was widened by the dredging and probably deepened, at least initially, but no evidence was presented to compare historical and current depths. Petitioner suggests that Spanish Creek was not a waterway before it was dredged based on his unproven assumption that Spanish Creek was only navigable after it was dredged. However, the first dictionary entry for “waterway” is “a way or channel for water.” Webster’s New Collegiate Dictionary, at 1314. Spanish Creek was a way or channel for water before it was dredged. Spanish Creek is not an artificially created waterway. Whether the Project Would Violate Water Quality Standards Other than submitting a turbidity control plan that Petitioner adapted from a plan he found in the District files for another project, Petitioner did not address water quality issues in his request for exemption verification. At the final hearing, Petitioner did not present competent evidence regarding the potential water quality impacts associated with his proposed project. Petitioner is proposing to construct an access road that will be located on properties owned by Palm Beach County and Spanish Creek, LLC, which currently consist of mangrove wetlands, but he has not obtained their permission for the construction. The area contains muck soils, which would have to be removed to construct the road. Petitioner did not address with competent evidence the potential water quality impacts associated with the muck removal. Petitioner stated that if he is unable to transport the muck and fill material over the access road, he will use a barge and tug boat. Because of the shallow depth of Spanish Creek, these vessels would likely disturb the submerged soils and the organisms that live in or use these soils. Petitioner’s proposed project would extend a box- shaped land form into the open waters of Spanish Creek that would affect water currents and sediment movement. Tidal flushing would be impeded. Erosion would likely be caused by currents and waves reflecting off and flowing around the proposed walls. Shoaling would likely occur. Petitioner did not present competent evidence that the proposed construction activities can be conducted without causing violations of state water quality standards. The preponderance of the evidence indicates that Petitioner’s proposed activities would violate state water quality standards for turbidity, dissolved oxygen, and species diversity in the area. Whether the Project Would Impede Navigation The proposed project would cause a substantial narrowing of Spanish Creek, leaving about 75 feet of open water between the eastern wall of Petitioner’s property and the Wellington Arms Condominium seawall. Wellington Arms has docks which extend out 34 feet from its seawall. The docks are currently being used for boats that extend beyond the end of the docks. Less than 40 feet would separate the vessels moored at Wellington Arms from Petitioner’s proposed eastern wall. If Petitioner’s proposed project were built, maneuvering a boat in and out of the docks at Wellington Arms or between the docks and Petitioner’s proposed eastern wall would be difficult. It would be unsafe in windy conditions. The proposed project would impede navigation. Whether the Proposed Project Would Affect Flood Control The District presented evidence to support its contention that the proposed project would affect flood control, but the evidence was not persuasive. The property is surrounded by waters of the Intracoastal Waterway and Atlantic Ocean and the District’s evidence did not adequately explain how the project could have more than an insignificant effect on these dominant forces which determine water levels in the area. Whether Petitioner Proposes Only Backfilling Rule 62-330, entitled “Exempt Activities,” is applicable to all exemption requests. Rule 62-330.051(12)(a) addresses the exemption for construction of seawalls and states that the exemption includes “only that backfilling needed to level the land behind seawalls.” Petitioner proposes to fill approximately three acres behind the walls. Currently, there is no land (uplands) behind the proposed walls to level. The purpose of the fill is not to level land behind the walls. The purpose of the fill is to create a buildable lot. Petitioner does not know how much fill is required to stabilize the walls. Less than three acres of fill is required. Petitioner’s proposed project does not include only that backfilling needed to level the land behind the walls.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the District enter a Final Order determining that Petitioner’s proposed development activities do not qualify for the seawall construction exemption from permitting under section 403.813(1)(i), Florida Statutes. DONE AND ENTERED this 14th day of May, 2015, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 2015. COPIES FURNISHED: Alison L. Kelly, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) William B. Swaim 5455 Via Delray Delray Beach, Florida 33484 (eServed) Blake C. Guillory, Executive Director South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed) Kirk Burns, General Counsel South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 (eServed)
Findings Of Fact Respondent Cole seeks to construct a weed barrier approximately 40 feet from the end of a dead-end canal. Petitioner Weitershausen's property begins approximately 48 feet from the end of the canal. The only two property owners whose access to the canal will be restricted by the weed barrier are Respondent Cole and Mr. Wheeler, both of whom consent to the placing of the barrier. Throughout most of the year weeds are not a problem in the canal. However, under certain conditions hydrilla is blown into the canal and backs up at the end adjacent to Mr. Cole's property. Without a weed barrier these weeds are blown to the end of the canal and remain there where they settle to the bottom, break down, and because of the decomposition smell and are otherwise objectionable. The weed barrier as proposed will keep the hydrilla floating longer and reduce this settling and decomposition. The weed barrier does not create a safety hazard. The weed barrier will not interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest nor will it result in the destruction of oyster beds, clam beds, or marine productivity to such am extent as to be contrary to the public interest. The weed barrier will not create a navigational hazard, or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters, so as to be contrary to the public interest. The 8 feet of distance between the weed barrier and Mr. Weitershausen's property provides a catch basin for the buildup of weeds short of Mr. Weitershausen's property. So long as the weeds are properly cleaned out this catch basin is sufficient to prevent weeds from building up along Mr. Weitershausen's property.
Recommendation It is, therefore, RECOMMENDED that the permit as applied for be issued with the condition that the applicant be required to remove the weeds from in front of the weed barrier at least once a month and at any time the weeds should back up to the extent that they substantially encroach on Mr. Weitershausen's waterfront. ENTERED this 17th day of September, 1976 in Tallahassee, Florida. CHRIS H. BENTLEY, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: R. L. Caleen, Esquire Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 Mr. Jerry E. Cole Route 6, Box 871Y Brooksville, Florida 33512 Mr. R. C. Weitershausen Route 6, Box 871X Brooksville, Florida 33512
The Issue The issue for determination in this case is whether Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority because the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
Findings Of Fact The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the National Pollution Discharge Elimination (NPDES) permitting program in Florida. The Department promulgated the rules in Florida Administrative Code Title 62 that are applicable to the permitting of wastewater discharges. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. IP owns and operates a paper mill in Cantonment, Escambia County, Florida. IP is the applicant for the Department authorizations that are the subject of DOAH Case Nos. 08-3922 and 08-3923. Background When this rule challenge was filed, DOAH Cases Nos. 08-3922 and 08-3923 (the permit cases) involved challenges by these same Petitioners to four Department authorizations for IP: an NPDES permit, a Consent Order, an approved exemption for the experimental use of wetlands pursuant to Florida Administrative Code Rule 62-660.300, and a waiver related to the experimental use of wetlands. IP later withdrew its request for the experimental use of wetlands exemption and the related waiver. Petitioners were ordered to show cause why their claim regarding the invalidity of Florida Administrative Code Rule 62- 660.300 was not rendered moot by IP’s withdrawal of its request for the exemption. Subsequently, the challenge to the validity of Florida Administrative Code Rule 62-660.300 was dismissed as moot. At the commencement of the final hearing on June 22, 2009, FOPB and James Lane announced that they were withdrawing their rule challenges except with respect to Florida Administrative Code Rule 62-302.300(6), and that the only legal ground being asserted for the invalidity of the rule is that it is vague and vests unbridled authority in the Department. Petitioners’Standing Jacqueline Lane, James Lane and a substantial number of the members of FOPB swim, boat, and make other uses of Perdido Bay. Perdido Bay would be affected by IP's wastewater effluent. The challenged rule was applied by the Department to determine that IP's proposed industrial wastewater discharge was in the public interest. The Challenged Rule Florida Administrative Code Rule 62-302.300, is entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Subsection (6) of the rule states: Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. Most of the permits that are issued by the Department are issued to private entities whose primary purposes are personal uses or the production of private incomes and profits, rather than solely to provide facilities or benefits to the general public.
The Issue There are two sets of issues to be considered in this matter which require separate determination. The issues in D.O.A.H. Case No. 83-2133 pertain to a notice of violation and orders for corrective action filed against Michael H. Hatfield related to the alleged construction of a causeway from a mainland shoreline to an island owned by Hatfield. In particular, that action by the Department alleges certain violations of environmental law and demands restoration of the area in which the causeway was constructed. The companion case, D.O.A.H. Case No. 84-0465, concerns Hatfield's request to construct a causeway from the mainland to the island in a location apart from the existing causeway. The Department has denied Hatfield's request for necessary permission to install that causeway.
Findings Of Fact Michael H. Hatfield is the owner of property in Marion County, Florida. That property is located on Lake Nicatoon, a 307 acre nonmeandered water body. Lake Nicatoon is a Class III water body as defined in Chapter 17-3, Florida Administrative Code. To gain access to the island from the mainland, Hatfield sought permission from the Department of Environmental Regulation to construct a causeway from the mainland to the island. The area between the mainland and the island is subject to water level fluctuations in that at times it is essentially dry and other times is under the waters of Lake Nicatoon. His application for environmental permits was filed on May 13, 1980. A copy of that application may be found as Department's Exhibit No. 4, admitted into evidence. His proposed project calls for the placement of approximately 525 cubic yards of fill in wetlands and littoral zones adjacent to the mainland and island. Per the application, the causeway would be 7 yards wide at the bottom and a length of approximately 73 yards and is to be constituted of sand and crushed concrete block. In particular, Hatfield wishes access to allow construction of a residence on the island and to gain entrance to the residence after construction. The Department of Environmental Regulation reviewed the application and on May 27, 1980, made a request to Hatfield to provide additional information related to his proposal. A copy of that request for additional information may be found as part of Department Environmental Regulation's Exhibit No. 3, admitted into evidence. Among the items requested was information from local government related to that entity's approval of the project in accordance with Section 253.124, Florida Statutes. This request was made based upon the perception by the Department of Environmental Regulation that Lake Nicatoon was found in the Florida Lakes Gazateer of Meandered Water bodies. The Department continued to operate on this erroneous assumption throughout the permit review process. Unknown to the Department, the lake was a nonmeandered lake which was discovered by Hatfield and verified on September 8, 1980, through an affidavit of the Division Director of State Lands for the State of Florida. A copy of that affidavit may be found as Hatfield's Exhibit No. 2, admitted into evidence. In effect, although the Department had made a good faith request for information pursuant to chapter 253.124, Florida Statutes, that information was not necessary because Lake Nicatoon is nonmeandered and not subject to Chapter 253, Florida Statutes, jurisdiction. Additionally, the requested hydrographic information pertaining to Chapter 253, Florida Statutes, was not needed. Among the other items requested in the way of additional information was item No. 6, pertaining to the placement of fill. That request was not complied with. Requested information related to a plan view was not complied with. Requested information in the category of "notes and drawings" was not complied with. Requested information pertaining to plans for complying with state water quality standards for Class III waters as related in Section 17- 3.121, Florida Administrative Code, was not complied with. These materials were relevant to the permit review process and the request for the information was never modified nor abandoned by the Department, notwithstanding discussions between the parties in an attempt to reconcile their differences in the permit assessment process. Those suggested alternatives to grant Hatfield access were not satisfactory to Hatfield and the original description of his project as set forth in his application of May 1980, has remained constant throughout the permit review process to include the final hearing. Generally, the parties' discussion of the installation or a bridge between the mainland and the island or the placement of a temporary steel road during the course of construction of his residence on the island did not promote a modified permit application. Finally the indication by staff members of the Department of Environmental Regulation that the project envisioned by his original application would not likely be approved did not cause a change in the obligation to respond to the request for additional information. Even though Hatfield became aware that it was unlikely that the staff would look with favor upon the project as proposed, in making its recommendation as to the issuance or nonissuance of the permit, the staff attitudes in the review process could only have become accepted with finality at the point of entering the Recommended Order. Consequently, it was incumbent upon Hatfield to respond to the request for additional information, in that the information sought was relevant to a consideration of the project which would be examined in the course of the final hearing. The discussions, related to the grant of permission to gain access by placement of a structure between the landslide and the island, entered into by the Department and Hatfield, briefly mentioned before, involved 1) the possibility of the construction of a bridge, 2) use of a metal roadway during the buildout of his residence and 3) his proposal as offered through the application. The bridge proposal advanced by Hatfield was for a span of 20 to 30 feet end the Department desired a span of 200 feet. The reason for the length of bridge required by the Department was to assure protection of a reasonable amount of the lake ecosystem between the landside and the island. Hatfield found the Department's proposed bridge length to be unacceptable due to financial reasons. He likewise did not like the idea of a temporary utilization of a steel roadway to the island during the construction of his residence. Hatfield preferred a permanent road allowing vehicular traffic from the mainland to the island. In conjunction with this alternative offered by the Department, Hatfield could later access the island by utilization of a boat on those occasions when the waters of Lake Nicatoon stood between the landside and the island. While Respondent's application for dredge and fill permit was being considered, an inspection of the property made in the summer of 1982, revealed that a causeway connecting the mainland and Hatfield's island property had been constructed. This causeway is depicted in red on Department's Exhibit No. 10, admitted into evidence, a series of aerial photographs. Ground shots of the causeway may be found as Department of Environmental Regulation's photographic Exhibits No. 8 and No. 9, admitted into evidence. The causeway was primarily constructed by the dredge of material and placement of the material immediately next to the dredge site with an overlay of offsite fill. Respondent was responsible for the construction of this causeway. The causeway is not found in the location contemplated by his permit application and permission was not given by the Department of Environmental Regulation to construct the causeway. This construction occurred in an area dominated by the vegetative species beak rush (Rhynchospora tracyi). Having placed the causeway in this location, Hatfield has created a stationary installation which caused pollution in the course of that construction and can reasonably be expected to be a future source of pollution, in that the dredging and placement of fill and the effects of the structure after construction have emitted and shall emit in the future, substances that are harmful to plant and animal life, in contravention of the Department of Environmental Regulation's rules. By this installation, an alteration in the chemical, physical and biological integrity of the waters of the state has been occasioned by the destruction of submerged land vegetational communities which provide water treatment, and food and habitat for fish and wildlife. When the fill was placed, the filtration and assimilation system of Lake Nicatoon was adversely affected through the removal of existing wetland vegetation. Were the applicant granted the opportunity to install the proposed causeway, the same adverse effects or problems could be expected with that installation. Having discovered the existence of the causeway, and after warning Hatfield that this installation was in violation of regulatory statutes and rules related to the Department's responsibility in environmental matters, Hatfield was served with a notice of violation and orders for corrective action from the Department of Environmental Regulation. The date of this action was June 1983. A copy of that document may be found as Department's Exhibit No. 3, admitted into evidence. In this same time frame, the Department continued to evaluate the permit application of Hatfield related to the proposed causeway and an application appraisal for that proposal was made on June 6, 1983. A copy of that appraisal may be found as Department's Exhibit No. 2, admitted into evidence. Subsequent to that time, and having failed to receive the aforementioned requested additional information from the Respondent, the Department issued its intent to deny the application related to the proposed causeway. A copy of the intent to deny may be found as Department's Exhibit No. 5, admitted into evidence. The date of the denial was November 4, 1983. A more detailed examination of the area in question on the northern shoreline of the lake on the mainland side, shows that natural vegetation has been replaced with a Bahla type of grass. The gradient dropping toward the lake proper reveals upland grasses giving way to submerged species such as maiden cane (Panicum hemitom), pickerelweed (Pontederia lanceolata) and pond lilies (Nymphaea). In this area, the transitional species to be found include St. John's wort (Hypericum fasculatum) and switch grass (Panicum virgatum). Between the landside and the island, in the direction of the island, there are less rooted plants. The dominant plants in this vicinity are pond lilies. The distance to be traversed between the landside and the island related to landward extent of the lake on the landside and island where the proposed causeway would be located is approximately 550 feet, and net the 225 feet described in the application. As you approach the island from the landside, the last approximately 150 feet along the proposed causeway's alignment is dominated by transitional freshwater species to include doheen holly (Ilex cassine), button bush (Cephalanthus occidentalis), St. John's wort (Hypericum fasculatum), and switch grass (Panicum virgatum). The island, itself, is dominated by live oak and sable palm. To summarize, the area between the landside shoreline along the lake and the island shoreline, is dominated by submerged and transitional freshwater species as found in Rule 17-4.02(17), Florida Administrative Code. In the area of the proposed causeway are found detrital feeders, the most numerous of which are amphipods. There ore also larval insects and gastropods, bivalves and freshwater shrimp. Crayfish, frogs and tadpoles are found in this area. In addition, species of fish include mosquito fish, least killfish, shiners, blue spotted sunfish, juvenile largemouth bass, silverside and juvenile catfish. Bird species observed in the area are blue heron, snowy egret, lympkins and ibis. Soft-shell turtles have also been observed in the vicinity of the project site. Should the construction of the causeway be allowed, short and long-term adverse effects on surface waters of Lake Nicatoon can be expected and these effects will be negative. With installation of the causeway, there would be a permanent elimination of the water bodies' littoral zone vegetative community which is important in converting available dissolved nutrients into food material in the aquatic ecosystem. The vegetation also assists in the cleansing of the ambient water and by that action reducing pollution loading. With the construction of the causeway, state water quality standards related to biological integrity, Section 17-3.121(7), Florida Administrative Code; nutrients, Section 17-3.121(17), Florida Administrative Code; and turbidity, Section 17-3.061(2)(r), Florida Administrative Code, can reasonably expected to be violated. Hatfield has failed to give reasonable assurances that the short and long-term impacts of the construction of the causeway would not violate and continue to violate water quality standards as alluded to. These problems as described exist while the unauthorized causeway remains. Hatfield, by actions involving private parties and the State of Florida, Department of Environmental Regulation, has sought necessary easements to gain access to his island property. While successful in this undertaking, these successes do not include the grant of a prohibition against the Department of Environmental Regulation performing its regulatory responsibility. In particular the decisions in the Circuit Court of the Fifth Judicial Circuit, in and for Marion County, Florida, Case No. 83-1826-C, Michael Hatfield, Plaintiff v. State of Florida, Department of Environmental Regulation, Defendant, granting partial Summary Judgment for the plaintiff and Defendant's Motion to Dismiss do not bar the Department from fulfillment of its regulatory charge. A copy of these decisions of court are found as Hatfield's Exhibit No. 7, admitted into evidence. In order to return the area where the unauthorized causeway has been placed to its prior existing condition, it would be necessary to remove the fill material and return elevations at the site to their prior level before the construction of the causeway. In addition, beak rush should be replanted in the areas where this dominant vegetation has been removed. An amount of $30.75 has been incurred in the way of cost to prosecute D.O.A.H. Case No. 83-2133
Findings Of Fact By application filed on October 29, 1980, Respondent/Applicant, Harvey B. Ulano, sought the issuance of a permit from Respondent, Department of Environmental Regulation, to authorize the construction of a private pier for mooring a sailboat at 2640 Northwest Collins Cove Road, Stuart, Florida. A copy of the permit application may be found as DER Exhibit 1. The property in question lies on the North Fork of the St. Lucie River in St. Lucie County. The River is classified as a Class III Water of the Sate. Respondent/Applicant's proposal was received by the Department and reviewed for compliance with applicable State water quality standards. The Department concluded that all statutory and rule requirements, criteria, standards and provisions had been met, including those pertaining to biological productivity impact, water quality and navigation. On January 23, 1981, the Department issued its Letter of Intent to Issue a permit with certain conditions therein, including a prohibition against any dredging and filling associated with the project, the required restoration of submerged lands disturbed by construction activities to their original configuration, the employment of an effective means of turbidity control, and a prohibition against live aboards on boats docked at the pier. A copy of the Letter of Intent to Issue may be found as DER Exhibit 2. The applicant intends to construct a 276 foot long pier from an existing concrete retaining wall on his property which fronts the St. Lucie River. The pier will be built at a perpendicular angle with the shoreline and will be 6 feet wide for the first 240 feet, and 12 feet wide for the remainder of its length. There will be no building or boathouse constructed on the dock, nor will pilings extend above the docking until the area where the boats will be tied. The river is approximately 1500 to 2000 feet wide at the proposed project site. However, the depth of the water close to the shoreline is not sufficient to moor larger boats at low tide. Therefore, it is necessary that the length of the pier be 276 feet in order to insure a minimum 3-foot water depth at all times. Applicant's lot is odd-shaped in size. The waterfront footage is approximately 135 feet. Its sides measure approximately 330 feet on the north boundary and 200 feet on the south. The property of Petitioner, Werner Jungmann, adjoins that of Applicant on the south side and also fronts the river. The pier will be constructed on the northwest corner of Ulano's property, which is the most distant point from Jungmann. Because of the odd shapes of the Applicant's and Petitioner's lots, the end of the pier will project slightly within the lakeward extension of Jungmann's property line. However, the design of the pier is such that it should not obstruct or impair the view of the river now enjoyed by the Petitioner. Navigation in the river and existing channel adjacent to the pier will not be affected by the proposed activity. The shallow water depth in the river next to the shoreline already precludes movements by boats close to the shore. The Department has imposed certain conditions upon the construction and future use of the pier (DER Exhibit 2). These conditions, together with the plans submitted by Applicant (DER Exhibit 1), constitute reasonable assurances that the short-term and long-term effects of the proposed activity will not result in violations of the water quality criteria, standards, requirements and provisions of the Florida Administrative Code, and that the proposed activity will not discharge, emit or cause pollution in contravention of Department standards, rules or regulations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Environmental Regulation issue Respondent/Applicant, Harvey B. Ulano, a permit to construct a private pier for mooring a sailboat on the North Fork, St. Lucie River, subject to those conditions set forth in the Department's Letter of Intent to Issue dated February 23, 1981. DONE and ENTERED this 29th day of May, 1981, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1981. COPIES FURNISHED: Ernon N. Sidaway, III, Esquire Post Office Box 3388 Fort Pierce, Florida 33454 Alfred J. Malefatto, Esquire Assistant General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32301 Edward B. Galante, Esquire Suite 310 Florida National Bank Building 301 East Ocean Boulevard Stuart, Florida 33494
Findings Of Fact On September 1, 1976, Dennis E. Andrews, trustee of the Fannin Springs Trust (hereinafter "Trust"), applied to the Department of Environmental Regulation for a permit under Chapters 253 and 403, Florida Statutes, and for water quality certification under Public Law 92-500, for the construction of a floating barricade across Fannin Springs Run near its entrance to the Suwannee River in Levy County, Florida. Fannin Springs Run extends to Fannin Springs and the outer limits of the springs are about 400 feet from the Suwannee River. The Trust, composed of four trustees, owns the land surrounding the springs and extending to the river. This property is not commercialized, but permission is periodically granted to church and civic groups to use it for social and money- making purposes. In such instances, the particular group operates a soft drink concession stand and charges fifty cents admission to swimmers using the Trust dock and beach area at the springs. However, the Trust insists that any such groups carry liability insurance to indemnify it against any injuries arising from the use of the land and facilities. The property is not open to the general public unless incident to one of the above authorized uses. (Testimony of Usher, Exhibit 6) The proposed floating barrier would be constructed of styrofoam ballast with a wood frame approximately five feet wide and eighteen inches high to be moored on either side of the run by cables secured on the banks. The purpose of the barricade is to prevent boats from proceeding into the springs where a hazard to swimmers has existed for some time. Some of these craft have customarily maneuvered in and around the main swimming area known as the "boil" and utilized the Trust facilities, including dock and beach area, without permission or otherwise paying the concession fee, thus creating hard feelings between the swimming and boating groups. The presence of the boats also causes resentment by those on shore due to the litter composed of beer cans and the like deposited by their occupants. During summer weekends and holidays, the area becomes quite congested with perhaps several hundred individuals enjoying the springs, together with as many as one hundred boats in the area. Incidents have arisen in the past involving reckless boat operation in the springs. Some were reported to the Levy County Sheriff's Office; however, the former sheriff was unable to verify any of the complaints made to his office. It is conceded by all parties to the proceeding, and those members of the public who testified, that a definite safety hazard exists in the area. (Testimony of Usher, Berry, Hartley, Dean, Brown, Judah, Bancroft, Shifflette, A. Andrews, Locke, Exhibits 1, 2, 6) After receiving the permit application, Marcia Elder, an environmental specialist with the Department of Environmental Regulation, inspected the site and concluded that there was a definite need for the barricade, but that the proposed location, approximately 110 feet from the mouth of the "run," would effectively constitute a denial of public access to the springs. She therefore concluded that a diagonal barrier across the springs would serve the same purpose of safety to swimmers, but also provide the necessary access to those arriving by boats. She further determined that such a barrier would create no adverse effects on water quality or plant and animal life and other natural resources to any appreciable extent. (Testimony of Elder, Exhibit 7) Based on Elder's investigation, the Department of Environmental Regulation indicated to the Trust its intent to deny the application. After the parties were unable to resolve the matter informally, the Trust filed a petition for an administrative hearing on September 1, 1976. Formal notification of the Department's intent to deny the application was stated in a letter of December 7, 1976, which advised the Trust that the proposed denial was based on the fact that the barricade would not allow navigation into Fannin Springs, but would create a navigational hazard or a serious impediment to navigation on navigable waters, so as to be contrary to the public interest. (Exhibit 8) The petition was forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer. Subsequent to the filing of the petition in this Division, the parties negotiated further and arrived at a compromise settlement of the matter. It was agreed that if the Trust would place the barrier across the run at a point closer to the springs than previously requested, the necessary permit would be granted. Petitioners Berry and Bancroft, who had previously objected to any barrier at all, were notified by a letter of the Department, dated April 29, 1977, of the Department's intent to issue the modified permit. Thereafter, on May 11, 1977, they petitioned the Department of Environmental Regulation for a hearing, claiming that the proposed barrier would create a navigational hazard, impede navigation and not be in the public interest. The petition further alleged that the contemplated location of the barrier would be in an area where the water would be too deep for children to have access to the shallow water of the swimming area beyond the barrier. At the hearing, however, petitioners acknowledged the existence of a swimming hazard at the springs and Ms. Bancroft agreed that a diagonal barrier as originally proposed by Elder would be unobjectionable. (Testimony of Berry, Bancroft, Petition) If the barrier is placed across the run as agreed to by the Department and the Trust, it would be close to the mouth of the springs in an area of varying depths of 6 to 8 feet and at times 20 feet. The width of the run where the barrier is contemplated is approximately 110 feet. If boats are stopped in that area, congestion would result and boat passengers attempting to swim to the shallow water near the beach or to the land would be endangered by the boat traffic. It is possible, also, that fees would be charged such individuals to exit on the land of the Trust. If the diagonal barrier were permitted, there would be a much larger area for the use of boats, and access to the swimming area would be greatly facilitated. (Testimony of Usher, Berry, Dilger, Seykera, Judy) On July 19, 1977, the Board of County Commissioners of Levy County, Florida, passed a resolution stating that an extremely dangerous situation existed at Fannin Springs because of boaters encroaching upon swimmers. The resolution further stated that application would be made to the Division of Marine Resources of the Department of Natural Resources for the purpose of having Fannin Springs declared a restrictive area pursuant to Section 371.522, Florida Statutes, and having a floating barrier erected at the mouth of the springs to prevent boats from entering the swimming area. (Exhibit 5) On August 22, 1977, the Trust agreed to abide by the provisions of a proposed Department of the Army Corp of Engineers permit to install the barricade at a position across Fannin Springs Run 170 feet from the Suwannee River, subject to providing upland access when the barricade is installed and not charging a fee for the use of the barricade provided upland facilities are not used. (Exhibit 3)
Recommendation That the Department of Environmental Regulation issue a modified permit as set forth above to Fannin Springs Trust to construct a floating barrier in the Fannin Springs area, pursuant to Section 403.813(1)(d), Florida Statutes, and Rule 17-4.29(e), Florida Administrative Code. Done and Entered this 29th day of September, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of September, 1977. COPIES FURNISHED: Segundo J. Fernandez, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301 William D. Ryals, Esquire Post Office Drawer J Gainesville, Florida 32602 Mrs. Thomas Berry 8375 35th Avenue, North St. Petersburg, Florida 33710 Ms. Julia Bancroft 1414 Cleveland Street Apartment No. 1 Clearwater, Florida 33515 Appendix A List of Public Witnesses Name Address Bruce W. Dilger Suwannee River on U.S. 19 Camp Ground Old Town, Florida 32600 Mrs. Carl Shifflette Executive Vice President Suwannee River Citizens Assoc. Bell, Florida Peggy Seykora Route 3, Box 35 Old Town, Florida 32680 A.D. Andrews Post Office Box 1126 Chiefland, Florida 32626 Wayne C. Locke Post Office Box 147 Chiefland, Florida Fred Judy Route 3 Old Town, Florida
Findings Of Fact By Joint Application for Works in the Waters of Florida filed January 14, 1993, Richard and Claudia Cowart requested permission to construct a concrete seawall with sloping riprap along their property, which is bordered by the Caloosahatchee River. The application describes the length of the seawall as 130 feet. The application describes the length of the riprap as "up to 130 [feet]" and the width of the riprap as five feet. The application states that the Cowarts are the record owner of the property and that Brian Bevan is an owner of adjacent property. There are seawalls for some distance on both sides of the proposed seawall, including along the property of Mr. Bevan. The seawall on the side opposite that of Mr. Bevan is indicated on the drawing accompanying the application. The drawing attached to the application depicts an existing retaining wall waterward of the approximate mean high water line and the proposed seawall landward of the approximate mean high water line. The proposed seawall would travel parallel to the river's shoreline for a distance of about 130 feet. At both ends, the wall turns away from the river and runs an additional 25-30 feet perpendicular to the river. At the southerly end of the proposed seawall, the drawing also indicates a "wetland enhancement area" where 100 one-gallon red mangrove trees would be planted. A second drawing attached to the application consists of a cross- section of the proposed activity. The cross-section drawing depicts, among other things, the riprap to be placed waterward of the proposed seawall, which is perpendicular to the surface of the water. The proposed riprap has no discontinuities. By letter to the Cowarts dated January 20, 1993, the Department of Environmental Regulation (DEP) stated that it found that the proposed activity was exempt from the need for a wetland resource permit, pursuant to Rule 17- 312.050(1)(t), Florida Administrative Code. Within a couple of months after issuance of the letter, the Cowarts constructed a seawall. Petitioners challenged the determination by filing a petition on February 4, 1993. The proposed seawall would not violate existing water quality standards, impede navigation, or adversely affect flood control.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Environmental Protection enter a final order dismissing the petition of the Bevans and declining to award attorneys' fees and costs against them or any of them. ENTERED on October 28, 1994, in Tallahassee, Florida. ROBERT E. MEALE 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 on October 28, 1994. APPENDIX Rulings on Petitioners' Proposed Findings Petitioners filed a proposed recommended order without proposed findings of fact. To the extent that anything in the proposed recommended order may be construed to be a proposed finding of fact, it is rejected as irrelevant or unsupported by the appropriate weight of the evidence. Rulings on Cowarts' Proposed Findings 1-11: adopted or adopted in substance. 12: rejected as unnecessary. COPIES FURNISHED: Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Kenneth Plante, General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 John L. Chaves, Assistant General Counsel Douglas H. McLaughlin, Assistant General Counsel Department of Environmental Protection Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Brian Bevan 1200 Masanabo Lane Ft. Myers, FL 33919 Richard A. Lotspeich Landers & Parsons Box 271 Tallahassee, FL 32302
Findings Of Fact Jaime Fernandez was transferred in 1977 to Clearwater Traffic Engineering Department as an electrician's helper from the Clearwater Pollution Control Department. Prior to coming to Water Pollution Control, Respondent had been a CETA employee in the Parks Department from which he was fired for incompetence (Respondent's testimony). Although the exact situation was not made clear to the Hearing Officer, it appeared that Respondent appealed his firing from the Parks Department alleging some type of discrimination, and, following a hearing, the City was required to reemploy him. At all times here relevant, Respondent was an employee in the Classified Civil Service of Clearwater. Respondent testified that the evaluations he received at Water Pollution Control were satisfactory overall, and the request for a transfer was initiated by him. As an electrician's helper, Respondent was one of six or seven electrician's helpers. When he was subsequently transferred to the position of ET helper, he was the only ET helper in the Traffic Engineering Department. With a larger number of electrician's helpers it was easier to assign trench digging, painting and other similar menial jobs to Respondent without detracting from the overall efficiency of the Department than it was when Respondent became the only ET helper in a group with two ET's. Respondent served as an electrician's helper in the Traffic Engineering Department for approximately two years before he was transferred to the position of ET helper. During these two years as an electrician's helper, Respondent failed to get a satisfactory overall evaluation and never received a merit pay increase. He was transferred to the electronics shop as an ET helper in late 1979. In the six months follow-up review of Respondent's unsatisfactory evaluation report dated 2-9-80, the Director of the Traffic Engineering Department recommended Fernandez be terminated for incompetence. This recommendation was rejected by the Personnel Department because of insufficient documentation of the events giving rise to the recommendation. On August 25, 1978, Respondent was given a letter of reprimand following an accident involving a truck, driven by Respondent, and a building in which Respondent's inattention contributed to the accident (Exhibit 6). On April 14, 1980, Respondent was suspended from duty without pay for three days on charges of incompetence and inefficiency in his work product, errors in daily time cards and other reports, and continuous performance evaluations indicating improvement needed. On the instant charges the evidence was unrebutted that during the period August 1, 1980, through March 15, 1981, 19 errors were made by Respondent on the time sheets he submitted. Twenty-seven other employees in the same Department fill out time sheets and, during the same period, the next highest number of errors was eight. Most of the employees made only one or two errors in completing their time sheets. During the period February 2, 1981 to February 5, 1981, Respondent was given a work order to construct and install back boards in two transit controllers (Exhibit 1). Included in the work order was a drawing showing how the panel was to be connected and detailed instructions on how the work was to be performed. Despite close supervision, Respondent failed to follow the instructions, cut the wires longer than the maximum three feet lengths as shown on the work order, installed grounding bar in the wrong location, and did not properly lace the harness. This work order was within the capability of a reasonably qualified ET helper to complete in twenty hours. Respondent took forty-seven hours to accomplish this work and made numerous errors which had to be corrected by others. During a period in mid-February; 1981, Respondent was assigned a detector to repair. Repair of this equipment was also within the capability of a reasonably qualified ET helper in about four hours. After working on this detector for twenty-one hours, Respondent was still unable to repair it. It was given to an electronics technician who repaired the detector in approximately one hour. Respondent, in work order 136, was given an LT 169 load pack to repair. Test equipment is set up in the petitioner's shop for trouble shooting this equipment. After testing this load pack, Respondent replaced the part he thought defective but, when tested by someone else, the equipment was still inoperative. The part replaced by Respondent was the part most frequently found defective in this load pack. In this instance, this part was not the cause of the equipment being in operative. This was a routine work order that a reasonably qualified ET helper should have been able to complete. Respondent has been counselled and evaluated numerous times by different supervisors in the Traffic Engineering Department for the past three years and has yet to be assigned a satisfactory evaluation. No other employee has been retained in a position with the City of Clearwater for such an extended period with unsatisfactory evaluations. Respondent testified that he has completed a two-year course in electronics at Pinellas County Vocational School and has one year of college. Accordingly, he deemed himself better qualified as an ET helper than as an electrician's helper. He felt he should have been disciplined for incompetency as an electrician's helper during the two years he worked in that Division, rather than as an ET helper in which position he has worked for approximately one year. Respondent's testimony, that he was denied earned leave or pay for this leave when he was dismissed, was not rebutted. However, the City of Clearwater's regulations relating to leave were not presented to the Hearing Officer, and without access to these regulations, Respondent's claim cannot be resolved.
Findings Of Fact The parties stipulated and agreed that the allegations contained in Paragraphs 1, 2, 3, 4, 5, 6, and 8 of the Notice of Violation issued by the Department could be accepted as true without the need for any further proof. The allegations are as follows: The Department of Environmental Regulation is the administrative agency of the State of Florida charged with the duty to protect Florida's air and water resources and to administer and enforce the Florida Air and Water Pollution Control Act, Chapter 403, Florida Statutes, and the rules promulgated thereunder, Chapter 17, Florida Administrative Code. Respondents, Robert and Velda Elbert, own a parcel of land located at 123 Gulfview Boulevard, Hudson, Florida, adjacent to waters of the Gulf of Mexico at Yellow Point, Pasco County. Respondent, Marvin Mattix, is a resident of Pasco County whose occupation includes the construction of seawalls. The Department has previously informed Respondents Elbert that Respondents had, on the aforesaid property, violated the Florida Air and Water Pollution Control Act, Chapter 403, Florida Statutes, and applicable rules, Chapter 17, Florida Administrative Code. The Department informed Respondents of these violations by sending Respondents official correspondence on April 3, 1979, attached as Exhibit A. On or before January 30, 1979, Respondent Elbert and Mattix constructed or caused to be constructed a seawall on submerged lands and in waters on the Gulf of Mexico adjacent to Respondents Elberts' aforesaid property, and placed fill on submerged land and in waters of the Gulf of Mexico in connection with construction of the seawall. The aforesaid seawall and associated fill was placed in waters of the State on a submerged lands in, adjacent to the continuous with the waters and shoreline of the Gulf of Mexico in an area dominated by plant species listed in Section 17-4.02(17), Florida Administrative Code, including red mangrove (rhizophora mangle) and black mangrove (avicennia germinous). Respondents' seawall construction and associated filling activity was undertaken without an appropriate and valid permit from the Department as required by Section 17-4.03 and 17-4.28, Florida Administrative Code, and Section 403.087, Florida Statutes. 8. The Department incurred costs and expenses while investigating this matter as outlined in Exhibit B. As to Paragraph 4, the parties stipulated that fill was not placed in behind the seawall because after the Elberts were advised by the Department that the fill would be illegal, they ceased further activity. The parties stipulated and agreed that Paragraphs (a), (B), (C), (D), and (E) from the Petition for Formal Administrative Hearing could be accepted as true without the need for any further proof. These facts are as follows: NAME AND ADDRESS OF AFFECTED AGENCY - Department of Environmental Regulation, Twin Towers Office Building, 2600 Blair Stone Road, Tallahassee, Florida 32301. (Agency's file number unknown). NAMES AND ADDRESSES OF PETITIONERS - Robert F. Elbert, P. O. Box 357, Cape Canaveral, Florida 32920 and Velda L. Elbert, P. O. Box 357, Cape Canaveral, Florida 32920. DISPUTED ISSUES OF MATERIAL FACT - There are no disputes with the material facts presented. CONCISE STATEMENT OF THE ULTIMATE FACTS, THE ACTIONS TAKEN BY THE PETITIONERS AND THE REASONS FOR ENTITLING THE PETITIONER TO RELIEF - Petitioners allege (sic) that a contract was negotiated with a local sea wall builder (Mr. Mattix) who was recommended by the bank financing the sea wall (Community Bank of Pasco). Mrs Mattix informed Mrs. Elbert that a permit was not required and our seawall was one of the last two he could build without his obtaining a permit. Both petitioners (R.F. Elbert and V. L. Elbert) met with Mr. Mattix at the building site and per Mr. Mattix's suggestion, the sea wall location was selected so that the petitioner's sea wall would be 'in line' (lined up) with the other sea walls already built on the street. This appeared to be the logical location and the sea wall was built accordingly. After the sea wall was completed and paid, the petitioners were notified, both verbally and in writing, that the sea wall was built in violation of existing environmental regulations. To that point, the petitioners were unaware of violating any rules or regulations. Had the petitioners been aware of any regulations, they definitely would have complied and assured the builder also comply. INFORMAL ACTION - No informal actions were taken by the petitioner except to talk to DER in Tampa (Mr. Resico). Mr. Resico informed the petitioners that the agency and Mr. Mattix (sea wall builder) held meetings and that Mr. Mattix informed the agency that he had misinterpreted the agency's regulations. At no time did Mr. Mattix inform the petitioner about his actions with your agency. The Elberts own a parcel of land in Pasco County adjacent to the Gulf of Mexico. They are planning to utilized the property as a retirement residence. The desired to build a seawall so that they could park a boat adjacent to their property. The bank that financed the seawall recommended that they retain Marvin Mattix to construct the seawall. The Elberts contracted with Mattix to construct it. The location for the seawall was chosen because it lined up with other seawalls near to the Elberts' property. The Elberts would have preferred the seawall be built further into the Gulf, but they were advised by Mattix that it should line up with other seawalls. Some of the other seawalls were apparently constructed without any permit from the Department of Environmental Regulation, and the Department has taken some steps to investigate the alleged violations, although no formal notices have been issued. The Elberts discussed with Mattix whether any permits from government agencies would be required, and they were advised that they would not need any permits. The builder advised the Elberts that he had approval from the Federal corps of Engineers, but the Elberts were later advised by the Corps that they had no knowledge of the project. The Elberts were not aware that they were violating any standards when they constructed the seawall. The seawall was in line with other seawalls on the street, and it will be expensive and difficult to remove it. The Elberts have been totally cooperative in their dealings with the Department of Environmental regulation, and it is apparent that they would not have taken any steps to construct the seawall without appropriate permits except for the advice of the builder. The Notice of violation issued by the Department was directed not only to the Elberts, but also to the builder, Marvin Mattix. The notice was forwarded to Mattix with a return receipt, and Mattix did not sign for the notice. Mattix did not request a hearing with respect to the allegations of the Notice of Violation. The seawall is located approximately eight feet seaward of the mean high water line adjacent to the Elberts' property. There are no seawalls directly adjacent to the Elberts' property but there is a seawall two lots down which also apparently was constructed without a permit. The Elberts' nex-door neighbor applied to construct a seawall at the same location as the Elberts' seawall but was told that a wall could not be placed that far into the water. The Elberts' property does not actually face directly into the Gulf of Mexico. It is on an estuary, and is approximately two lots down from the open waters of the Gulf. It is not a residential canal. Prior to the hearing, the Department incurred $182.60 in costs and expenses while investigating this matter.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is, hereby RECOMMENDED: That a final order be entered requiring that Robert and Velda Elbert and Marvin Mattix take the following corrective action: Within thirty (30) days of the date of the final order, they should remove the seawall and associated fill, and restore the area to its original condition; They should make payment to the Department in the amount of $182.60 to compensate the Department for expenses in tracing, controlling nd abating the violation. That enforcement action be taken first against the builder, Marvin Mattix, so that the cost of removing the seawall and restoring the area is borne by the party who caused the violation; and that only upon the failure of enforcement against Marvin Mattix should final enforcement action be taken against the Elberts. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 10th day of December, 1979. C. STEVEN PFEIFFER Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of December, 1979. COPIES FURNISHED: Robert F. and Velda L. Elbert Post Office Box 357 Cape Canaveral, Florida 32920 Alfred W. Clark, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
