Findings Of Fact No evidence was adduced on which findings of fact could be based.
Recommendation It is, accordingly, RECOMMENDED: That DER deny petitioner's application for a dredge and fill permit. DONE AND ENTERED this 18th day of July, 1989, in Tallahassee, Florida. COPIES FURNISHED: Cary C. Mills Post Office Box 7015 Milton, FL 32570 Richard L. Windsor, Esquire Stephen K. Hall, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1989. Dale H. Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
Findings Of Fact Petitioner failed to present any evidence in support of her contention that the permit in question should be issued for 10 rather than 5 years.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that the Department of Environmental Protection issue permit no DO29-221380 to Petitioner herein, Vicki L. Woodward, for a period of 5 years. RECOMMENDED this 23rd day of September, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of September, 1993. COPIES FURNISHED: Vicki L. Woodward Happy Traveler Campground 2710 Fountain Boulevard Tampa, Florida 33609 Susan Schwartz, Esquire Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Virginia B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact In their Prehearing Stipulation, filed on August 14, 1990, the parties stipulate to the following: Container Corporation of America (CCA) owns and operates a pulp and paper mill in Fernandina Beach, Nassau County, Florida. The mill is authorized by various Department of Environmental Regulation (DER) permits to discharge industrial wastewater and emit air pollutants and is subject to DER's power to enforce such permits, as well as Chapter 403, F.S. and DER Rules. DER issued an Administrative Notice of Violation charging CCA with various wastewater violations, an filed a judicial action alleging violation of air pollution standards at the mill. The Notice of Violation was issued on April 24, 1990, OGC Case NO. 90-0346; and the judicial action was filed in the Circuit Court of Nassau County in June of 1989, Civ Case NO. 89- 562-CA. CCA has not yet requested a hearing on the merits of the Notice of Violation; it requested an informal conference on the charges, which tolls the time for requesting a hearing. A verbal settlement has been reached, but is not yet reduced to writing. Neither DER nor CCA has requested a hearing on the merits in the judicial action. The allegations in the complaint are, however, at issue and, absent settlement, will be tried by the court. On June 27, 1990, DER gave notice of its intent to deny an operating (renewal) permit for the No. 5 Recovery Boiler and Smelt Dissolving Tank because of the pending judicial action. Subsequent to the filing of this rule challenge petition, DER notified CCA that the Notice of Intent to Deny renewal of CCA's operating permits for the NO. 5 Recovery Boiler and the Smelt Dissolving Tank dated June 27, 1990 was issued erroneously and that the permits would be issued. [Issuance is based on expiration of the 90-day deadline for denial rather than the agency's interpretation of the rule under scrutiny.] On June 28, 1990, DER notified. CCA that it may not be able to issue.. the requested construction permits [for a new batch digester and brown stock washer] due to the pending Department enforcement action ... CCA was notified that its applications for construction of the proposed new batch digester and brown stock washer were incomplete. If the judicial action is not resolved at the time action must be taken on the application for construction permits for the new batch digester and brown stock washer, the permits will be denied in reliance on Rule 17-4.070(5)(first three sentences). By a separate letter on June 28 1990, DER also notified CCA that until the Notice of Violation was resolved the application for the construction permit for the new paper machine would be held in abeyance. CCA has been notified that its application for a construction permit for its new proposed paper machine is incomplete. Subsequent to the filing of this rule challenge petition, DER has notified CCA it will not hold CCA's application for a construction permit for its proposed new paper machine in abeyance upon the submission of the requested material, or its request to process the application without the material, but will process the permit at that time and issue either an intent to issue or deny. If, however, the Notice of Violation is not resolved by the time action must be taken on the application the permit will be denied in reliance on Rule 17-4.070(5). Until or unless the judicial action against CCA filed by DER in June 1989 is resolved, Rule 17-4.070(5)(first three sentences) requires DER to deny any permit applications filed by CCA relating to the Multiple Effect Evaporators (2), Nos. 5 and 7 Power Boilers, including electiostatic precipitators, Recovery Boilers (2) and Pulp Digester Systems (2) located at its Fernandina Beach mill. Each of the foregoing sources operate by virtue of permits issued by DER. The permits periodically expire and must be renewed. DER interprets the first sentence of Rule 17- 4.070(5) to mean that no permits for the sources listed in paragraph 10 above can be renewed unless and until the pending civil action against CCA is resolved, and the issue of reasonable assurance is not reached. [As to Intervenor Florida Pulp & Paper Association) The Florida Pulp & Paper Association is a trade association representing the vital interests of its members -- the pulp and paper companies operating mills in Florida or discharging to state waters. Rule 17-4.070(5), F.A.C., the rule which is the subject of this proceeding, regulates and affects the substantial interests of the members of the Association. Each of the mills operate [sic] under various environmental permits issued by DER. Permits must be obtained when existing permits expire or when sources are replaced or expanded. The rule at issue forbids the issuance of such permit to any source or for any activity against which the Department has filed a Notice of Violation or judicial enforcement action, which remain(s) pending. The Association's scope of interest and activity includes participating in the development of rules proposed by DER membership. Here, a senior DER official has indicated that the rule at issue will henceforth be uniformly and strictly applied, industry-wide. Accordingly, a determination of invalidity of this rule is an appropriate remedy for the Association to seek on behalf of its members
Findings Of Fact Petitioner Richard L. Buchanan owns a lot in Franklin County, which lies on the north shore of Apalachicola Bay. Shellfish harvesting is prohibited in the water adjacent to his parcel despite, or perhaps because of, oyster houses having operated in the vicinity for many years. Mr. Buchanan is not an oysterman himself, but he does fish commercially, when he is able. He owns two licensed fishing boats. He goes floundering and also fishes with gill nets. Since he acquired the property 10 or 12 years ago, Mr. Buchanan regularly loaded nets from shore and unloaded fish and nets on shore, until the prop-dredging took place, even though a dock extends out into the Bay from his property. The outboard motor is hard to handle from the dock and it is virtually impossible to load the nets from the dock without fouling them. Until the prop-dredging he could bring his boats all the way in and lay their bows on the shore along the stretch of clean sand 35 to 50 feet wide at the western end of his 145 feet of Bay frontage. There was a sheer drop to a depth, at high water, of about 3.5 feet. The Sadler boy drowned there. Before the prop-dredging disturbed it, the configuration of the bottom that allowed small boats to come all the way into shore at that point had obtained for decades. Leo Nixon Harwell, son of the former owner of petitioner's property, remembered running the Harwells' oyster boat, which drew three feet, right up on the beach. Mr. Harwell, who looked to be in his 50's, testified that there had been deep water next to the shore ever since he was "no yearly boy." The further from shore the deeper it got till you reached Two Mile Channel. Between the sandy beach and the channel there was no vegetation to speak of although there was a marshy swash to the east of the sandy beach. In 1979, when Arman Earl Cloud had to haul his bay shrimper for repairs, he floated it to the beach in back of Mr. Buchanan's house and pulled it up on the beach, using rollers. The bow floated to the water's edge. The boat had a length overall of 25 to 28 feet, a beam of nine feet and drew three to three and a half feet of water. An oyster house sits on the next parcel west of the Buchanan property. The oyster house belongs to a man named Page, and a dock 100 feet long juts out toward Two Mile Channel from the oyster house. It used to be impossible to get an oyster boat in any closer to shore. When John Paul Whitehead was oystering some years back, they used to have to anchor out and transfer the oysters to a skiff to get them to the Page oysterhouse. In fact, when Diane Collins rented the oysterhouse (from Bobby Youngblood) in 1974 or 1975 it was impossible to bring even a flat-bottomed boat in as far as the waterward end of the dock. "On dead low tide all you seen was sand on either side of the dock." According to unrebutted testimony, the Pages changed all this by prop- dredging. (Mr. Page failed to honor the subpoena requiring his attendance at the final hearing.) Prop-dredging involves fixing the bow of a boat by grounding or otherwise, and turning the propeller at speeds high enough to move soils on the bottom. Bay this technique, the Pages dredged great quantities of sand on either side of their dock. Most of the sand stayed suspended in the water only long enough to settle in front of their neighbors' property. This illegal activity was brought to the attention of the marine patrol at the time, whose warning to the Pages to desist went unheeded, and at least one employee of respondent Department of Environmental Regulation was also apprised. The prop- dredging continued for some time, usually at night, and the eventual result was "a muck hill" in front of the Miracle Seafood property abutting the Pages to the west, and a sandbar in front of Mr. Buchanan's property that completely blocks access to his sandy beach. The Pages, with 55 front feet on the Bay, can now accommodate quite a fleet at their dock. One day six to eight boats were docked there. The sandbar in front of Mr. Buchanan's property attributable to the Pages' unpermitted and illegal prop-dredging has by now been there long enough that smooth cord grass (Spartina altiflora), saw grass and maiden cane have taken root. The dredging proposed by petitioner to restore access to his shoreline would disturb some 400 square feet, on which only Spartina altiflora is growing. On about a quarter of the proposed site, there is no vegetation. The Spartina altif lora helps stabilize the shoreline, serves to filter pollutants running off into the Bay and provides a habitat and food for insects, worms, oysters, shrimp and fishes. Dredging would resuspend any heavy metals in the soil, and increase the turbidity of the water, in the immediate vicinity. There is a boat ramp 500 feet from petitioner's property. DER would issue a permit for a marine railway at the site where petitioner hopes to dredge. Apalachicola Bay is classified as Class II waters, and as outstanding Florida waters, being part of an aquatic preserve. There is a clear public interest in permitting a private citizen, who is willing to restore, at his own expense, a part of the coastline disturbed by illegal activity which he responded to the authorities at the time, to the status quo which existed for as long as anybody can remember, before the illegal activity disturbed it. In an undated letter to Mr. Buchanan, James W. MacFarland, Director, Division of State Lands, Department of Natural Resources, advised that Upon the assurance that the environmental effects are acceptable and with the understanding that DER intends to issue the permit, we will request the dredge material severance fees and issue our authorization pursuant to Section 253.77, Florida Statutes, upon the permit receipt. The credible testimony of DER staff was to the effect not that the loss of some 300 square feet of Spartina altif lora would have unacceptable environmental effects, but that the cumulative effect of projects entailing destruction of such grasses would have unacceptable environmental consequences. Respondent's proposed findings of fact, conclusions of law and proposed recommended order have largely been adopted, in substance. To the extent any proposed finding of fact has been rejected, it has been deemed immaterial or unsupported by the weight of the evidence.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That petitioner grant respondent's application for a dredging permit on such reasonable conditions, including turbidity curtains, as are necessary adequately to protect the project vicinity. DONE and ENTERED this 8th day of August, 1983, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer 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 8th day of August, 1983. COPIES FURNISHED: E. Gary Early, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Richard L. Buchanan P. O. Box 33 Apalachicola, Florida 32320 Victoria Tschinkel, Secretary Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
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
