The Issue The issues to be decided in this case are whether Respondents are liable for the violations charged in the NOV, whether Respondents should pay the penalties assessed in the NOV, and whether Respondents should be required to take the corrective actions demanded in the NOV.
Findings Of Fact The Department is the state agency with powers and duties related to the regulation of construction activities in wetlands and surface waters, including filling in wetlands. Respondents are individuals who own real property on Bayshore Road in North Fort Myers, Florida. Some confusion exists in the record about the street number for the property. It is alternately described as 11590, 11620, 11650, and 11850. This is partly due to the fact that the property consists of at least two recorded parcels. The actual location of the filled area is not disputed, nor is it disputed that Respondents own the property where the fill was placed. The property is adjacent to the Caloosahatchee River. It contains freshwater marsh wetlands dominated by Leather Fern. The Department conducted a site inspection of Respondents’ property and determined that Respondents had filled 0.96 acres of wetlands. The Department produced evidence that it incurred costs of $1,824.50 in this case. The corrective actions ordered in the NOV, which are designed to restore the wetlands that were filled, are reasonable.
The Issue The issue for determination is whether Petitioner is liable for the costs and expenses incurred by Respondent in responding to a pollutant discharge, occurring on November 6, 1992, at the waters off John Lloyd State Park, Dania, Florida, and for damages to natural resources resulting from the pollutant discharge.
Findings Of Fact On November 6, 1992, a DC-7 airplane crashed off the Atlantic Coast of Florida, more particularly, 100 yards from John Lloyd State Park, and one quarter of a mile north of Dania Pier in Dania, Florida. The DC-7 was a chartered cargo airplane and had departed from Miami International Airport. The DC-7 was chartered from Claudio Castillo by Miguel Delpino, United States General Manager of Aerochago Airlines, to carry cargo for Aerochago Airlines. Even though Aerochago Airlines owned aircraft, its aircraft was unavailable due to maintenance work being performed. During the flight from Miami International Airport, the DC-7 developed engine trouble, i.e., two of its engines failed. The aircraft began to lose altitude. In an attempt to regain altitude, the captain of the aircraft dumped 3,000 gallons of aviation fuel. However, the DC-7 failed to regain altitude and crashed. Remaining on the crashed aircraft were 3,000 gallons of aviation fuel and 150 gallons of motor oil. When the DC-7 crashed, only the crew and two passengers were on board. One of the passengers was Mr. Castillo. On the same day of the crash, the Florida Marine Patrol (FMP) of the Department of Natural Resources, now the Department of Environmental Protection (DEP), arrived at the crash scene at 3:20 a.m. and investigated the crash. The DEP had four employees investigating the crash: three FMP officers and one employee from the Office of Coastal Protection. The remaining aviation fuel and motor oil in the crashed DC-7 was discharging into the coastal waters. The DEP employees attempted to abate the discharge. The equipment necessary for the employees' investigation of the crash and abatement of the discharge and the cost for the equipment were the following: (a) a DEP vehicle at a cost of $7.00; (b) a twin engine vessel at a cost of $120.00; (c) an underwater sealant kit at a cost of $16.66; (d) scuba tanks at a cost of $9.00; and (e) photographs at a cost of $24.00. The total hours expended by DEP's four employees were 36 hours, at a cost of $685.84. Due to the DC-7 leaking aviation fuel and motor oil into Florida's coastal waters, removal of the aircraft from the Atlantic Ocean was necessary. DEP contracted with Resolve Towing and Salvage (RTS) to remove the DC-7. RTS is a discharge cleanup organization approved by DEP. RTS' contractual responsibilities included removal of the entire DC-7 aircraft and all debris within 100 yards of the center of the aircraft; disposal of the aircraft; plugging the engines to help stop the leakage; and removal and delivery of the engines which failed to the National Transportation Safety Board (NTSB) and the Federal Aviation Authority (FAA). Because the submerged DC-7 was located in an environmentally sensitive coral and sea-plant area, RTS was required to use extreme care in removing the aircraft. The contractual cost was fixed at $34,000.00 A DEP employee, Kent Reetz, was at the scene of the crash during RTS' cleanup. His responsibility was to monitor the removal of the DC-7 by RTS and to ensure that the aircraft's removal was in compliance with DEP's standards. During the removal of the DC-7 from the water, the fuselage ruptured, scattering debris which was dangerous to the public and to the coral and sea-plants. DEP determined that RTS was not responsible for the fuselage rupturing, but that the rupture was caused by several storms, prior to the aircraft's removal, and by the aircraft being submerged for an extended period in salt water. DEP contracted with RTS to remove the dangerous debris emitted when the fuselage ruptured. The contractual cost was fixed at $9,050.00 The total contractual cost between DEP and RTS was $43,050.00. DEP paid RTS from the Coastal Protection Trust Fund. In responding to the pollutant discharge, DEP incurred a total cost of $43,912.50. DEP assessed damages to the natural resources based upon the amount of pollutants discharged which were 3,000 gallons of aviation fuel and 150 gallons of motor oil. Using the statutory formula, DEP assessed damages to the natural resources in the amount of $57,898.72. Based upon the costs incurred by DEP in responding to the pollutant discharge in the amount of $43,912.50 and the damages to the natural resources in the amount of $57,898.72, DEP sought reimbursement and compensation from Mr. Castillo in the total amount of $101,811.22. DEP invoiced Mr. Castillo for reimbursement of the costs and for compensation for the damages. DEP provided Mr. Castillo with detailed and itemized expense documents for the costs that it had incurred in responding to the pollutant discharge. The documents showed the expenses incurred, what each expense represented, and the formula for computing each expense. Further, DEP provided Mr. Castillo with a document showing the amount of the damages to the natural resources, the formula for computing the damages, and how the damages were computed. The charter of November 6, 1992, was not the first time that Mr. Delpino had chartered the same DC-7 from Mr. Castillo. Prior to and, again, at the previous charter, Mr. Castillo represented to Mr. Delpino that he, Mr. Castillo, was the owner of the DC-7. The owner of a chartered aircraft is responsible for obtaining the aircraft's crew and insurance and for maintaining the aircraft. For the previous charter, Mr. Castillo was responsible for obtaining the DC-7's crew and the insurance and for maintaining the aircraft. Mr. Delpino had no reason to expect the charter for November 6, 1992, to be any different. Furthermore, Mr. Castillo did not inform Mr. Delpino that the responsibilities would be different. For the present charter, as before, Mr. Castillo handled all matters relating to the crew, insurance, and maintenance. Regarding the insurance, Mr. Castillo presented to Mr. Delpino an insurance certificate which, after the crash, was discovered to be false. Also, regarding maintenance, prior to the crash, the two engines which failed were to be removed and repaired, but, although they were removed, they were returned without being repaired. Mr. Castillo was the owner of the DC-7. Also, the crash of the DC-7 was investigated by several federal governmental agencies, including the FAA, the U.S. Coast Guard, and the NTSB. Both the Coast Guard and the NTSB issued reports on the crash, which identified Mr. Castillo as the owner of the DC-7. Mr. Castillo was responsible for the discharge of the 3,000 gallons of aviation fuel and 150 gallons of motor oil from the DC-7 into Florida's coastal waters.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection (DEP) enter a final order assessing Claudio Castillo $43,912.50 for costs related to DEP responding to the pollutant discharge on November 6, 1992, at Florida's coastal waters off John Lloyd State Park, Dania, Florida, and $57,898.72 for damages to natural resources resulting from the pollutant discharge--all totaling $101,811.22. DONE AND ENTERED this 26th day of August, 1997, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 26th day of August, 1997.
Findings Of Fact At all times material hereto, Respondent was the holder of Pest Control Business License No. 875, Pest Control Operator's Certificate No. 667, and Identification Card No. 6415. Respondent's business was and is located at 512 South Eighth Street, Fernandina Beach, Florida. The anniversary date for purposes of renewal of Respondent's Pest Control Business License was November 30, 1978. Those persons holding identification cards issued in connection with the operation of H & K Pest Control were Respondent, Dolphus Lee White, Donna Kay Young and George Morrison Young. Respondent was licensed to conduct pest control business only in the category of Lawn and Ornamental pests. On November 28, 1978, two days before Respondent's pest control business license was to expire, HRS received an Application for Pest Control Business License and Identification Cards from Respondent requesting renewal of the aforementioned licenses and identification cards. However, the Certificate of Insurance attached to the renewal application failed to meet the requirements for minimum financial responsibility for property damage contained in Section 482.071, Florida Statutes. The Certificate of Insurance in question indicated that the limits of liability for property damage were $50,000 for each occurrence, and $50,000 in the aggregate. The statutory requirements are $50,000 for each occurrence and $100,000 aggregate. As a result, by notice dated November 29, 1978, HRS returned Respondent's application, indicating that the Certificate of Insurance did not meet the statutory standard. In addition, the November 29, 1978 letter specifically informed Respondent that . . . it is unlawful to operate a pest control business that is not licensed." HRS received a corrected Certificate of Insurance on February 27, 1979. However, this Certificate of Insurance did not indicate the name of the insured pest control business, and was, accordingly, returned to Respondent's insurance agent. Respondent's name was then apparently inserted in the Certificate of Insurance by the agent, and the corrected Certificate of Insurance was received by HRS on March 3, 1979. As a result, Respondent's application for renewal of his licenses and identification cards was not, in fact, complete until March 3, 1979. The renewal licenses and identification cards were thereafter issued on June 4, 1979. The delay between receipt of the completed application and issuance of the licenses and identification cards was apparently due to work load in the HRS Office of Entomology. Notwithstanding the fact that Respondent was licensed only in the area of Lawn and Ornamental Pest Control, H & K Pest Control performed pest control services inside buildings at the Florida Marine Welcome Station in Fernandina Beach, Florida, for the period July 1, 1978 through and including two days prior to the hearing in this cause on September 28, 1979. The State of Florida, Department of Commerce, Office of Administrative Services was billed ten dollars monthly on H & K Pest Control statements for this service, and payment was remitted by the State of Florida for these services to H & K Pest Control. In addition, on at least two occasions H & K Pest Control performed pest control services inside buildings at the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. One of these occasions occurred in November, 1978 for which H & K Pest Control billed the Florida Welcome Station in Yulee, Florida, thirty dollars on its statement dated January, 1979. At no time during the performance of pest control services inside the Florida Marine Welcome Station in Fernandina Beach, Florida, and the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida, was Kinsey C. Haddock or any other employee of H & K Pest Control licensed in the category of General Household Pests and Rodents, or in any other category that would have allowed them to treat the inside of buildings for pests. Although Respondent was never observed to have personally sprayed the insides of buildings at either Welcome Station, persons identifying themselves as employees of H & K Pest Control did perform those services, the State of Florida was billed on statement forms of H & K Pest Control for these services, and payment was remitted by check to H & K Pest Control. On December 27, 1978 an inspector from HRS visited the business location of H & K Pest Control at 512 South Eighth Street, Fernandina Beach, Florida. The business office was open and being operated by a person claiming to be an employee of H & K Pest Control who identified herself as Joyce French. Ms. French advised the inspector that she had been trained in the category of General Household Pest Control, and had performed these services inside the Florida Welcome Station on Interstate Highway 95 in Yulee, Florida. Records maintained by the Office of Entomology indicate that no identification card or other license had ever been issued to a "Joyce French" in the area of General Household Pest Control. Respondent denied that he had ever employed a "Joyce French", nor was Miss French called as a witness in this proceeding. Further, other than the statement attributed by the inspector to Ms. French, there is no evidence in this proceeding to corroborate that Ms. French did, in fact, perform pest control services of any description. Further, on December 27, 1978, Respondent did not have displayed in his business office a certified operator's certificate renewal or a current business license, as required Chapter 482, Florida Statutes. Finally, the record in this proceeding establishes, and Respondent has, in fact, admitted, that he is not a full- time employee of H & K Pest Control. In fact, the record clearly establishes that Respondent has been a full-time employee of Container Corporation of America as an engineer in the Power Department of that company since December 9, 1937. Respondent works rotating shifts in his employment at Container Corporation of America, but usually works the 8:00 a.m. to 4:00 p.m. shift an average of only five days per month. When not working the 8:00 a.m. to 4:00 p.m. shift at Container Corporation of America, Respondent operates his pest control business at the address above mentioned.
The Issue The issue in this case is whether Petitioner, Steve Lardas, is entitled to a mosquito ditch exemption, under Florida Administrative Code Rule 40D-4.051(10)1, from the wetlands jurisdiction and environmental resource permitting requirements of the Department of Environmental Protection (DEP) for Lots 4, 5, 6, 14, 15, 18, and a vacated alley of Block 44, Ilexhurst Subdivision, Holmes Beach, Manatee County.
Findings Of Fact In 1950, Petitioner's great-grandfather acquired title to Lots 4, 5, 6, 14, 15, 18, and a vacated alley of Block 44, as well as 38 other lots in the Ilexhurst Subdivision, Holmes Beach, Manatee County. In 1991, title to 28 of the lots, including Lots 4, 5, 6, 14, 15, 18, and the vacated alley of Block 44 (the Property at issue), was transferred to Petitioner and his two brothers from their grandmother. Sometime in the mid-1950's, the Manatee County Mosquito Control District dug a network of mosquito control ditches from Sarasota Bay to the east of Anna Maria Island towards the beaches on the west. The purpose of the ditching at that time was to hydrate high marsh areas favored for breeding by the black salt marsh mosquito (Aedes batis). That species of mosquito, which bites aggressively and painfully and flies great distances, must lay its eggs on damp ground and cannot lay them in standing water; the eggs then hatch when heavy rains or extraordinarily high tides flood the breeding ground. The object of the ditching is to hydrate the breeding grounds more continuously during normal rain and tide conditions so that the mosquitoes no longer can breed there. A finger of the network of ditches dug in the 1950's bisected the Property at issue approximately diagonally from the northeast corner to the southwest corner, terminating at the right-of-way of Avenue C. (There also were branches off the finger that terminated in property to the north and south.) In the early 1960's, the ditches were cleaned and widened to correct the effect of alterations to them during road construction. Because the ditches were connected to Sarasota Bay, they not only hydrated previously drier areas with salty water, they sped the introduction of mangroves (red, black, and white), whose seedlings float and can be pushed inland by tide and wind. How far inland seedlings float depends on their size. As a result, mangroves propagated themselves via the ditches in the ditches and along the banks of the ditches. It is now clear that, except for a narrow strip in the northwestern part of the Property and a small part of the extreme southwestern corner of the Property where fill placed on the adjacent parcels extended onto Petitioner's Property, Petitioner's entire parcel consists of jurisdictional wetlands containing red, black, and white mangroves and other wetlands vegetation. It is Petitioner's position on the ultimate disputed issues of material fact: that his Property contained no wetlands prior to the mosquito control ditches being dug; that the ditch was dug through uplands on his Property solely to reach property to the south which contained a pocket of targeted mosquito-breeding ground; and that his Property still would be uplands were it not for the digging of the mosquito control ditches. In support of his position, Petitioner presented extensive and detailed testimony and evidence in an attempt to prove his position. But some of Petitioner's evidence (e.g., the affidavits of Steve G. Lacios and Lawrence M. Rhodes included in DEP Exhibit 1, the application file) was not competent (i.e., hearsay not admissible over objection in a civil action and therefore insufficient to support a finding of fact by itself). Other evidence presented by Petitioner was not persuasive. (E.g., Petitioner's mother testified to the condition of "the property" when her grandfather showed it to her in the 1950's, but at the time her grandfather owned 42 lots, and the Property in question was situated two vacant lot-lengths (200 feet) and a vacant 50-foot road right-of-way east of the nearest existing road (Gulf Drive), making it questionable whether the precise Property in question actually was viewed by her. In addition, Petitioner's mother also testified that neither her father nor her grandfather ever knew there was a mosquito ditch on the Property in question even though they supposedly walked it at least once a year.) Other evidence proved some subordinate facts (e.g., that a hurricane prior to 1940 may have "over-washed" the beach dunes and deposited a "wash-over fan" of beach sand and shells on Petitioner's property, and that there were few if any mangroves on Petitioner's Property prior to mosquito control ditching). But those subordinate facts were not determinative of the ultimate disputed issues of material fact--i.e., they did not disprove the existence of any kind of jurisdictional wetlands on the Property before and after the wash-over event and before the mosquito control ditching. Meanwhile, DEP countered with its own extensive and detailed testimony and evidence, which was persuasive. It is found that the evidence, taken as a whole, did not prove Petitioner's position. To the contrary, taken as a whole, the evidence proved DEP's position--namely, that Petitioner's Property did not consist entirely of uplands prior to the mosquito control ditching; that Petitioner's Property consisted of wetlands prior to the mosquito control ditching; and that the mosquito control ditches were dug to reach mosquito-breeding wetlands on the Property as well as on property to the south. Proposed findings of fact 18-20 and 22-51 in DEP's PRO include a clear and comprehensive explanation why DEP's evidence was more persuasive on the ultimate disputed issues of material fact. These proposed findings of fact are approved and adopted except for a few scrivener's errors.2
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DEP enter a final order denying Petitioner's request for an exemption. DONE AND ENTERED this 24th day of August, 2005, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 2005.
Findings Of Fact Respondents, during all times here involved, were licensed by Petitioner as alleged and operated three separate pest control offices in Jacksonville, New Smyrna Beach and Palatka. During the period between May 1976 and April 1977 no certified operator was registered with Petitioner at the Jacksonville or New Smyrna Beach offices. During this period numerous fumigation contracts were entered into by Respondents. When these contracts were carried out all fumigation was performed under the supervision of a currently registered certified operator who was attached to the Palatka office owned by Respondents. Between June 1976 and October 1977 24-hour advance written notice of fumigation was not provided by Respondents to the health authorities in Duval County on five occasions and to the health authorities of Volusia County on six occasions. However, the health inspectors of each county apparently received telephone notice because they inspected the fumigations for which the written notice was not provided a higher percentage of times than the average inspection for fumigation for which 24-hour written advance notice was provided. Several violations involved the certified operator notifying HRS by letter that he would be certified operator for a specific office commencing on a given date and thereafter failing to submit the proper forms to obtain a current pest control identification card for the office at which he worked. Proper registration of pest control salesmen and certified operators requires the issuance of a pest control identification card for a specific location. On some occasions the charges resulted from Respondent, United Pest Control, acquiring another pest control company and continuing operations under United Pest Control without having changed the pest control identification cards of these employees. Two charges involved agents of Respondent who entered into contracts with customers. One resulted from a complaint that the agent inaccurately advised the customer that there was termite infestation and one involved a complaint of improper treatment for subterranean termites. After the customers complained to governmental authorities Respondents refunded their money. When Respondent Powell attempted to inspect the premises to verify the complaint of these two customers he was denied access to the premises by the customers. The certified operator in the Palatka office was used to supervise a fumigation contract obtained in the Jacksonville office and the New Smyrna Beach office during the period here involved. He told Respondent several times that it was a violation of the regulation for him to perform the fumigation on contracts in these other offices, but only after he reported this to HRS was the practice stopped. At the time of the hearing the Jacksonville pest control operation had been sold by Respondent United Pest Control.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Respondent owns real property located in Township 2 North, Range 7 East, Section 32, in Madison County, Florida, that has surface water flowing through it and is encompassed within what is defined as "wetlands." Respondent is in control and possession of the property in question and all work on the property that is material to this proceeding is under the control or direction of the Respondent. There were access roads on the property as early as 1973 as reflected by Respondent's exhibit 2, a 1973 aerial photograph, but the width of the roads or the existence of ditches or culverts cannot be determined from the photograph. Petitioner's exhibit 2, a 1981 aerial photograph, shows the roads still in existence in 1981 but the width of the roads or existence of ditches or culverts cannot be determined from the photograph. Sometime before the Respondent purchased the property and began construction to expand the roads, ditches and culverts were in place; however, there was no evidence as to when the ditches and culverts came to be in place. A 1976 survey of the property reflects 60 foot roads which were to provide access to platted but unrecorded lots. These roads had not been constructed when Respondent purchased the property or began construction to expand the roads. The newly constructed portions of the road indicates an attempt to build the roads in accordance with the 1976 survey. The previously existing roads attempted to follow the natural contour of the land and as a result were not always straight, and only had a negligible effect on the flow or storage of surface water in regard to the property. Sometime around October 1987, Respondent began to rebuild and construct roads on the property by straightening existing curves, removing fill material from adjacent wetlands to widen and heighten the existing roadbed or construct a new roadbed, and to increase the depth and width of existing ditches or dig new ditches. The initial portion of the existing road providing access to the property from the county graded road has been substantially rebuilt with portion of the roadbed being 40 to 43 feet wide. Ditches along this portion of the roadbed have had their width increased up to 14 feet and their depth increased up to 6 and 8 feet. Other portions of the road has been expanded beyond the previously existing roadbed by increasing the width and height of the roadbed. The increased size of the ditches and the expanded roadbed has increased the interception of surface water above that already being intercepted by the previous roadbed and ditches and, as a result, there is an increased amount of surface water impounded or obstructed. The effect is that surface water is removed from Respondent's property at a faster rate than before road construction began and, as a result, sheet flow of surface water is decreased which diminishes the storage of surface water on the property. Although new culverts were installed during road construction, there was insufficient evidence to show that these new culverts were in addition to the culverts already in place or if they replaced old culverts. There was insufficient evidence to show that the new culverts allowed water to flow in a different direction or be removed from the property at a faster rate than before or if they impounded or obstructed surface water more so than before. The previously existing roads had sufficiently served an earlier timber harvest on the property and, by Respondent's own testimony, were sufficient for his ongoing hog and goat operation. The extensive rebuilding and constructing of roads in this case was neither necessary nor a customary practice for construction of farm access roads in this area. Respondent is engaged in the occupation of agriculture in that he has a bona fide hog and goat operation. However, Respondent's silviculture occupation is somewhat limited in that he is presently harvesting the timber but shows no indication of replanting or continuing the forestry operation upon completing the present harvesting operation. The extensive rebuilding and constructing of roads in this case goes beyond what is necessary or is the customary practice in the area for a hog or goat operation or forestry operation such as Respondent's and is inconsistent with this type of agriculture or silviculture occupation. Respondent has never applied for nor received a surface water management permit from the Petitioner even though the Petitioner has informed Respondent that a permit was required for the work being done on his property. The present alteration of the topography of the land by Respondent has obstructed and impounded surface water in such a fashion that the interruption of the sheet flow of surface water has been increased, causing the storage of surface water on the property to be diminished. At the present time, Respondent has been enjoined by the Circuit Court of Madison County, Florida, from any further activity on this project. However, should Respondent be allowed to complete this project, it is evident that the sole and predominant purpose would be to impound and obstruct the sheet flow of surface water and diminish the storage of surface water on the property in question.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore, RECOMMENDED that the Petitioner, Suwannee River Management District, enter a Final Order requiring Respondent, Norman Leonard, to: (a) remove all unauthorized fill material placed within jurisdictional wetlands and return those areas to predevelopment grades and revegetate with naturally occurring local wetlands species to prevent erosion; (b) back fill excavated swale ditches, return road beds and excavated ditches to predevelopment condition and grades and seed disturbed non-wetland areas with a 50:50 mix of bahia and rye grass and; (c) refrain from any other development until and unless a required permit is obtained for such development. Respectfully submitted and entered this 13th day of February, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-1445 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner 1. Adopted in Finding of Fact 1. 2.-3. Adopted in Finding of Fact 2. 4.-7. Are unnecessary findings for this Recommended Order. Adopted in Finding of Fact 18. Adopted in Finding of Fact 19. Adopted in Finding of Fact 10. Adopted in Finding of Fact 11. Subordinate to the facts actually found in this Recommended Order. Adopted in Finding of Fact 11. Adopted in Finding of Fact 12. Rejected as conclusions of law. Adopted in Findings of Fact 3 and 4. Adopted in Finding of Fact 8. Adopted in Finding of Fact 9. Adopted in Finding of Fact 9. Adopted in Finding of Fact 8. Adopted in Finding of Fact 6. Adopted in Finding of Fact 7. Adopted in Finding of Fact 6. Adopted in Finding of Fact 10. Adopted in Findings of Fact 15 and 17. 26.-29. Adopted in Finding of Fact 12. 30. Adopted in Finding of Fact 13. 31.-32. Subordinate to facts actually found in this Recommended Order. Adopted in Finding of Fact 12. Adopted in Finding of Fact 16. 35.-38. Subordinate to facts actually found in this Recommended Order. 39.-42. Rejected as not being relevant or material. Specific Rulings on Proposed Findings of Fact Submitted by Respondent 1. The first paragraph adopted in Finding of Fact 16. The balance is rejected as a conclusion of law. 2.-3. Rejected as not being relevant or material. Not a finding of fact but a statement of testimony. However, it is subordinate to facts actually found in this Recommended Order. Rejected as not supported by substantial competent evidence in the record. The more credible evidence is contrary to this finding. COPIES FURNISHED: Janice F. Baker, Esquire Post Office Box 1029 Lake City, Florida 32056-1029 Norman Leonard, Pro Se Route 2, Box 172-D Live Oak, Florida 32060 Donald O. Morgan Executive Director Suwannee River Water Management District Route 3, Box 64 Live Oak, Florida Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The Issue in this matter is whether ditching activities of the Palm Peach County Mosquito Control Authority were the sole cause of the introduction of mangroves onto the Petitioner's property. If they were, her property is excluded from the dredge and fill jurisdiction of the Department of Environmental Regulation under section 403.817(2), Florida Statutes (1985). The petition for formal proceedings not only disputed the Department's jurisdiction but also alleged the Petitioner was entitled to a dredge and fill permit because the application met statutory and rule requirements. The contention that the application meets the substantial requirements of the statutes and rules was withdrawn by the Petitioner during the final hearing.
Findings Of Fact On January 29, 1985, Petitioner applied for a dredge and fill permit to fill approximately 1.76 acres of property in the city of Ocean Ridge, Florida, immediately adjacent to the Intracoastal Waterway. On August 18, 1986, the Department of Environmental Regulation issued notice of its intent to deny the permit. Petitioner requested a formal hearing on the intention to deny the permit. The Petitioner, Lucinda MacKinley, owns several lots on a barrier island in southern Palm Beach County within the city of Ocean Ridge, lots 12, 13, 14, 15 and 16 in block 2 of the Boynton Beach Park subdivision as recorded in the public records of Palm Beach County, Florida. These 5 170' x 100' lots are bordered on the north by Coconut Lane, on the west by the Intracoastal Waterway, and on the south by residential lots fronting on Ocean Avenue and on the east by other lots. The 1.76 acres are presently vegetated with red and black mangroves. This vegetation would ordinarily subject the property to the dredge and permitting jurisdiction of the Department of Environmental Regulation. The Palm Beach County Mosquito Control Authority began digging ditches on the Petitioner's property in 1954 and has maintained the ditches since that time. Ditches were re-dug as they filled in with material and eroded over time or as the land changed. The ditches were dug by the Authority in low salt marshes and mangrove swamps along the Intracoastal Waterway. By connecting these to the Intracoastal Waterway low lying land can be drained, or tidal action and the introduction of fish and minnows into the area will control mosquitoes. There is now a mosquito control ditch on the southern end of the property which connects to the Intracoastal Waterway in an east-west direction. At high tide, however, water flows over the entire shoreline of the property, inundating the land. When Petitioner originally purchased the property with her husband in 1958, much of the property was dry and the vegetation included Australian pinetrees in the higher areas, especially along the Intracoastal Waterway. The most persuasive evidence of the historic vegetation on the site was the testimony of John G. Labie, which was based upon stereoscopic interpretation of aerial photographs of the property taken from the Florida Department of Transportation Topographic Office. In 1946, there was a bulkhead running along the Intracoastal Waterway which ended to the north of the MacKinley property. The north end of that bulkhead was not tied into the land, however, and there was a wet area between the bulkhead and the land which then provided a foothold for a small stand of young mangroves. There were mosquito control ditches north of the property running east to west. At that time there were Australian pine trees growing on the western border of the property on the Intracoastal Waterway. Seven years later in 1953, mangroves had encroached eastward along the mosquito control ditches north of the MacKinley property. At the northern terminus of the bulkhead, there was a much larger mangrove encroachment than there had been in 1946 and more water behind the bulkhead. The mangroves had also grown south along the bulkhead to the extent that the predominant vegetation on the MacKinley property was mangroves. The earliest ditching on the property shown by records of the Mosquito Control Authority occurred in 1954. There was photographic evidence of mosquito ditching completed some time before a 1956 aerial photograph, because there were ditches but no visible spoil piles from ditching in the photo. The mangroves on the property were 15-18 feet high in 1956. By 1964, the bulkhead along the Intracoastal Waterway had been removed and the shoreline of the Waterway had eroded. That shoreline had a white, sandy beach, indicating that vegetation had not had time to establish itself since the removal of the bulkhead. There was also indication of mosquito ditching having recently been done on the property, but the ditches were not dug in the same places as they had been dug in 1956. Mangroves were still the predominant vegetation. By 1968, the bulkhead which had been removed had not been replaced, and there was further erosion of the property bordering the Intracoastal Waterway. The beach was no longer white and sandy because the vegetation had taken hold. Mangroves on the property remained the predominant vegetation. The mosquito ditching, which began on the property in 1954, was not the sole cause for the introduction of mangroves onto the property. There were mangroves in 1946 in the area, just north of the MacKinley property, which reached the property by 1953. This photographic evidence is consistent with the more general testimony of Allen Steiner, the assistant director of the Palm Beach County Mosquito Control Authority, that while mosquito control ditches can cause the introduction of mangroves onto property by seeds coming up in the ditches, in most areas, the mangrove swamps were there before the Mosquito Control Authority began its ditching activities (Tr. 189). The property is covered with red and black mangroves today, and is subject to tidal inundation by the Intracoastal Waterway to the extent that there are only a few Australian pine trees left on the highest areas of the property.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the application of Ms. Lucinda MacKinley for exemption from the dredge and fill permitting requirements of the Department of Environmental Regulation on the grounds that her land has become subject to regulation by the Department solely due to insect control activities DENIED. DONE AND ORDERED this 20th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3619 The following constitute my rulings on the p'oposed findings of the parties are required by Section 120.59(2), Florida Statutes (1985). Rulings on Proposed Findindgs of Fact Submitted by Petitioner Covered in Findings of Fact 1 and 3. Generally covered in Findings of Fact 4 and 12, insofar as they indicate there are mosquito control ditches on the property now. The remainder is rejected as unnecessary. Generally covered in Finding of Fact 4. Rejected as unecessary. The testimony that in 1958 the property was totally vegetated with Australian pinetrees is rejected due to the more persuasive photographic evidence. While there were some Australian pinetrees on the higher points of he property, it was already substantially invaded with mangroves. Rejected because the Palm Beach County Mosquito Control Authority's activities did not introduce mangroves onto the property. They were more likely introduced by the intrusion of mangroves behind the bulkhead to the north of the property. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr Labie concerning he vegetation on the property from 1946, forward, is the more persuasive. The indication that the property was within an area characterized as grasslands in 1927 on a government topographic map is rejected. Those, symbols are meant to characterize much larger areas than Petitioner's 1.7 acres and therefore has little persuasive value. Moreover, the photographic interpretations of Mr. Labie were more persuasive. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary, because at high tide the property is inundated along the entire shoreline, not just because of the mosquito control ditch. Rejected because the testimony of Mr. Labie o vegetation was more persuasive. To the extent necessary, covered in Finding of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Rejected because the testimony of Mr. Labie was more presuasive on the source of the mangoves. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Testimony concerning the bulkhead is covered in Findings of Fact 7-10. Rejected as unnecessary. Covered in Findings of Fact 7-11. Covered in Findings of Fact 7 and 8. Rejected because the mangroves from the north did not arrive at the MacKinley property through mosquito control ditches but through the foothold established because the bulkhead was not tied back to the land, permitting the intrusion of mangroves behind the bulkhead from north to south to the MacKinley property. Rejected as unnecessary. Rejected as unnecessary. Rejected as unnecessary. Rejected as inconsistent with the view of the evioence expressed in the Findings of Fact. Rulings on Proposed Findinos of Fact submitted by Respondent Covered in Findings of Fact 1 and 3. Covered in Finding of Fact 1. Covered in Finding of Fact 4. To the extent necessary, covered in Finding of Fact 3. Rejected as unnecessary. First sentence, rejected as unnecessary. Second sentence, covered in Finding of Fact 4. Rejected as unnecessary. Rejected as unnecessary. Covered in Finding of Fact 3. Rejected as unnecessary. Rejected as unnecessary. Covered in Findings of Fact 1-9. Rejected as unnecessary because the more likely method of transport was encroachment from the north, although floating seeds from the Boynton Beach inlet construction could have been a source of mangroves. Covered in Findings of Fact 7 and 8. Covered in Findings of Fact 9 and 10. The purpose of mosquito ditching is covered in Finding of Fact 4. The remainder of the proposal is rejected as unnecessary. Covered in Finding of Fact 12. COPIES FURNISHED: Terrell K. Arline, Esquire 325 Clematis Street Suite B West Palm Beach, Florida 33401 Karen A. Brodeen, Esquire Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel E. Thompson, General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue This proceeding concerns a Consent Order entered into by the Department of Environmental regulation (DER), and James and Patricia Gratzer (Gratzers) regarding an allegedly unpermitted fill in Winter Springs, Florida. The ultimate issue for determination is whether DER abused its discretion in resolving the alleged violations by entering into the subject Consent Order.
Findings Of Fact In the fall of 1990, the Gratzers purchased a 4.35 acre lot located at 216 Stoner Road in Winter Springs, Florida. At the time of purchase, the Gratzers planned to divide the lot and build a residence on the two acre parcel. In preparation for construction of their new home, the Gratzers approached the Winter Springs City Council to subdivide the property and to approve of use of the fill road as ingress and egress for both lots. In February of 1991, the Gratzers and their builder obtained the proper building permits from the County and septic tank permits from the Department of Health and Rehabilitative Services. Construction began on the residence on April 9, 1992 when the Gratzers' builder brought in several trucks of dirt to the end of the existing fill road to begin the house pad. At the time the Gratzers began construction on the subject lot, they had no idea or reason to believe that they were about to build in jurisdictional wetlands of the State of Florida. On approximately April 14, 1992, the Gratzers were first made aware that they may have problems with potential wetlands on the property when an officer of the Game and Fresh Water Fish Commission visiting the site instructed the builders to halt construction, pending a review by DER. As a result of the site visit, the Gratzers investigated further with DER employees the potential wetlands on their property. They also sought the advice of an attorney and his environmental consultant regarding possible ways to solve DER's concerns. On approximately April 26, 1991, an employee of DER visited the site and made an initial determination that the property was a jurisdictional wetland subject to permitting by DER. Under present rules the Gratzer property, with exception of the filled access road, would all be in DER jurisdictional wetlands if only the natural vegetation were considered. Upon being informed of DER's initial determination, the Gratzers hired an engineer from Boyer-Singleton & Associates to make an engineering determination as to the extent of jurisdictional wetlands based upon a ten-year backstop. A ten-year backstop is a method provided by statute to determine the ultimate landward extent of DER's vegetational jurisdictional line. It is a hydrological calculation to determine water elevation levels in a certain area, subject to the ten-year recurrent storm event. By rule and statute, DER's jurisdiction over wetlands effectively stops at the upper end or limit of the ten-year flood elevation line. Claude Cassagnol, of Boyer-Singleton and Associates, an expert in hydrology, reviewed available materials, visited the site and made an initial determination of the ten-year backstop on the Gratzers' property, and ultimately mapped out his conclusions on a plat. Mr. Cassagnol's hydrological study, and his review of Federal Emergency Management Agency (FEMA) materials, led him to conclude that the ten-year backstop would leave the Gratzer's house pad out of any DER jurisdictional wetlands. As a result of his study, Cassagnol forwarded several letters to George Baragona of DER requesting that Mr. Baragona, an expert hydrologist, review his determination and ratify his conclusions. The Gratzers, on advice of counsel, allowed their building contractor to complete compaction of the house pad and begin preparations to pour the house floor. The septic tank contractor for the Gratzers completed installation of the tank and drain field prior to July 1st. After the Gratzers had recommenced construction, on approximately July 10, 1992, DER, issued a Notice of Violation (NOV) which ultimately formed the basis for the Consent Order in this case. The Gratzers immediately ceased further construction on the property and sought further negotiations with DER. Shortly after the NOV was issued, George Baragona reviewed the information, studies and plats submitted by Mr. Cassagnol regarding the ten-year backstop. Baragona made a determination of the ten-year backstop at a point more landward than Cassagnol's. It appears from the plat submitted at hearing, that Baragona's ten- year backstop line runs along the base of the fill roadway; his testimony, however, indicated that his backstop line dipped in and out near the roadway, and he simply chose the baseline of the fill road as his "worst case scenario". Baragona, because of the house pad, was required to extrapolate a line through the house pad, resulting in approximately half of the house pad area being in jurisdictional wetlands. The result of further negotiations between the parties was the Consent Order which is the subject matter of this proceeding. As settlement, the Gratzers agreed to Baragona's "worst case scenario" ten-year backstop, placing approximately half of the house pad was in DER jurisdictional wetlands. As part of the settlement, the Gratzers agreed to, and have paid, a fine of $1,400.00 to DER and have granted a conservation easement over a large portion of the remainder of their property, resulting in an 11.6 to 1 ratio of conservation easement to impacted wetlands, slightly above DER's guideline 10 to 1 ratio. In investigating the alleged violations at the subject property, DER reviewed the cumulative impacts of the project and determined that they were not great, in light of the surrounding area and its already high level of development. In making this determination, DER reviewed property lists, maps and other facts to determine the level of current development. In reviewing the alleged violations, DER also considered whether or not this project would have been able to get a permit had the Gratzers sought a permit prior to any construction. It was DER's determination that the project would have been permittable under the criteria in Chapter 403, in conjunction with the mitigation offered at the site. Finally, in its review and study of the alleged violations, DER determined there was no evidence that this project would have any adverse impact on water quality. DER made a determination that this was a "low to medium" violation, and that the impacts were properly addressed through the Consent Order which imposed the $1,400.00 fine and secured the conservation easement. Fill Road Issue A small road or driveway existed on the site at the time the Gratzers purchased the property, extending from Stoner Road from the south, to the center of their property. Although Baragona indicated the DER modelled backstop line did not always extend to the driveway, he said it sometimes appeared to "bump up" to the eastern edge of the driveway. Baragona could not say with absolute certainty where the 10 year backstop would be on the east side of the site if the driveway were not present. The type of wetland vegetation on the Gratzer property would be considered jurisdictional wetland vegetation under rules adopted pursuant to the 1984 Warren F. Henderson Wetlands Act (Section 403.91, et seq.), but would not be considered jurisdictional wetland vegetation under rules applicable prior to October 1, 1984. If the driveway on the Gratzer property was installed prior to October 1, 1984, it is legal, but if it was installed after that date it is illegal because there is no evidence it ever was properly permitted. DER does not allow illegally filled areas to cut off the extent of its wetland jurisdiction. Therefore, if the driveway on the Gratzer property were placed in DER jurisdictional wetlands without a permit, the road itself could not act as a 10 year backstop cutting off DER wetland jurisdiction to the west. There was conflicting evidence as to when the driveway was placed on the property. James Hartman, who sold the property to the Gratzers, testified he built the driveway in 1978 and 1979. William Kuyper, an expert in aerial photography interpretation, testified that based on his review of aerial photos, the road had been placed on site sometime between January 6, 1986, and March, 1989. The weight of the evidence indicates the driveway was probably placed on site before October 1, 1984, and therefore did not require a DER permit. First, the former landowner's testimony that he built the road in 1978 and 1979, must be considered more reliable than an interpretation of aerial photos taken from 12,000 feet in the air, in spite of the expertise of the photographic interpreter. A possible explanation for why the driveway "appeared" in the 1989 aerial photo but not in the 1986 aerial photo is that the road may have been disturbed, or new fill put on the road sometime between 1986 and 1989, causing the road to be more visible in 1989. Even if the 10 year backstop were to be determined without the driveway present, it would not be significantly different. While DER's 10 year backstop line "bumps up" against the road in places, it does not "bump up" in other places along the driveway, but in order to be conservative the line was placed along with driveway in all areas. The modelled location of the line north of the housepad where there is no driveway is consistent with where the line is modelled south of the housepad where the driveway is located. The Society and its Concerns The Society's corporate status was not controverted. CFWS members have been patrolling the Lake Jessup/Gee Creek area and other wetland areas and have found what they believe are violations of the law and rules intended to protect wetland resources. Although neither Michael Mingea nor his expert witness have been on the Gratzer property, they have been in the immediate area and are concerned about the cumulative impact of small dredging projects, like the Gratzers, which projects are routinely reported to DER by the Society. Beginning in May 1991, the Society corresponded regularly with Secretary Browner at DER and Secretary Williams at the Department of Health and Rehabilitative Services (HRS) and their respective staffs, regarding what the Society perceived were violations occurring through lax enforcement. The Society believed, though review of HRS and DER files, that the Gratzers' project included a septic tank placed in jurisdictional wetlands. This was not established; rather, the septic tank was erroneously placed inside a setback line, but outside the jurisdictional line, and a variance was readily obtained from HRS. DER does not have direct jurisdiction over septic tank permits and HRS' authority is derived from the statutes, not from DER. The Society's position regarding the Gratzer project is based in substantial part on its assertion that the fill road was illegally placed and that DER's jurisdiction extended through the entire property. The Society, however, did not rebut the sound evidence by George Baragona of the 10-year backstop. Nor did it present competent evidence of any alleged water quality violations. Only one other actual violation of permit requirements was established, and DER has required the developer to move the project from jurisdictional wetlands.
Recommendation Based on the foregoing, it is hereby, recommended that the Consent Order that is the subject of this proceeding be adopted as Final Agency Action. RECOMMENDED this 24th day of July, 1992, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-0104 The following constitute specific rulings on the findings of fact proposed by Petitioners: 1.-3. Adopted in preliminary statement and paragraph 19. 4. Adopted in substance in paragraph 5. 5.-6. Rejected as unnecessary. 7.-8. Adopted in substance in paragraph 14. 9.-12. Rejected as unnecessary. 13. Adopted in part in paragraph 20, otherwise rejected as unnecessary. 14.-16. Rejected as unnecessary. 17.-18. Rejected as contrary to the evidence. 19. Rejected as contrary to the greater weight of evidence. 20.-22. Rejected as unnecessary. 23.-25. Rejected as contrary to the evidence. 26. Rejected as unnecessary. 27.-30. Rejected as contrary to the evidence. 31.-32. Rejected as summary of testimony or argument, rather than findings of fact. 33.-34. Rejected as contrary to the weight of evidence. 35.-36. Rejected as unnecessary. 37. Rejected as contrary to the evidence. [Section VI, pp 19-22 includes unnumbered paragraphs summarizing testimony, rather than findings of fact]. COPIES FURNISHED: Michael W. Mingea, President Central Florida Wetlands Society P.O. Box 2826 Orlando, FL 32802 Rex D. Ware, Esquire P.O. Box 1794 Tallahassee, FL 32302 Douglas H. MacLaughlin, Esquire DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Carol Browner, Secretary DER-Twin Towers Office Bldg. 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson, Esq. DER-Twin Towers Ofc. Bldg. 2600 Blair Stone Road Tallahassee, FL 32399
The Issue The issues are whether Petitioner has proved that he is entitled to two exemptions from statewide environmental resource permitting: the mosquito control activities exemption set forth in Florida Administrative Code Rule 62-340.750 and the seawall construction exemption set forth in section 403.813(1)(i), Florida Statutes (2013).
Findings Of Fact The Request, the Property, and Canal Dredging The Request After filing the Request on September 10, 2013, Petitioner paid the filing fee on October 4, 2013. At this time, Respondent deemed the Request to be complete.3/ In addition to briefly describing the maintenance dredging of the ICW, the Request4/ describes the proposed activities as: Construction of approximately 950 feet of batter pile concrete seawall along [ICW] easement line. See drawing for location. Filling of property to approximate elevation 8.0 with offsite fill. Petitioner has since reduced the length of the proposed seawall from 950 feet to about 656 feet. He also testified that the seawall would require 20-30 feet of supportive fill equal in height to, and landward of, the seawall. The record lacks a drawing locating the proposed seawall, but it contains a diagram of a typical profile of the proposed seawall, which is Respondent Exhibit 23. The cap elevation would be six feet "NGVD." Text accompanying the diagram promises the use of turbidity barriers and best management practices during construction. Finally, the Request describes the following activities in wetlands or other surface waters: Because the wetlands are a result of the Mosquito Control District's previous activities and do not affect any other wetlands or surface waters, would make the entire property effectively upland. Dredging. The spoil material is to be removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material into the waters of the state. Seawall. Construction of seawall will not violate any existing water quality standards, impede navigation, or affect flood control. The Property Petitioner does not own the property to which the Request relates, but has entered into a contract to purchase the property. Among the conditions of the contract is the issuance of permits from various governmental agencies, including Respondent. The property consists of unimproved land on the west bank of the ICW south of Boynton Beach in Palm Beach County. As described in the contract, the property is "Palm Beach County Property Control Numbers 08-43-45-34-01-0030, 08-43-45-34-01- 0040, and 08-43-45-33-00-000-1390. Described as all of lots 3 and 4 of Rousseau's Subdivision, . . . [c]ontaining approximately 7.58 acres."5/ The plat map of Rousseau's Subdivision, which is Respondent Exhibit 21, was originally recorded on June 22, 1901 (1901 plat map),6/ and further describes the eight platted lots on the map as located within the west half of the northwest quarter of Section 34, Township 45 South, Range 43 East, and situated west of the Florida Coast Line Canal and Transportation Company (FCLCTC) canal. Property Control Numbers 08-43-45-34-01-0030 and 08-43- 45-34-01-0040 are lots 3 and 4 on the 1901 plat map, less the easterly 202 feet of both lots, which is encumbered by a right- of-way easement owned by FIND for the ICW.7/ References to the "Property" will include all of lots 3 and 4, not merely the portions of these lots west of the FIND right-of-way easement, even though, for reasons explained in the preceding endnote, the sales contract is for the conveyance of only the unencumbered portion of the Property. References to the Property will also include the site prior to platting in 1901. Property Control Number 08-43-45-33-00-000-1390 is an "access parcel" measuring 30-feet by 180-feet that connects the Property with U.S. Route 1 to the west. References to the Property will not include this access parcel. The eight lots depicted on the 1901 plat map feature roughly equal frontage on the canal. The northern lot line of each lot is longer than the southern lot line of each lot. The northwest corner of the northernmost lot is the northwest corner of the above-mentioned Section 34. As shown on the plat map,8/ the Property's north lot line runs 552.7 feet, and its south lot line runs 450.5 feet, for a total of about 7.1 acres. The north and south lot lines of each of the eight lots terminate 35 feet west of the centerline of the FCLCTC canal, which is depicted as 70 feet wide. Conveyances by reference to the 1901 plat map would thus not grant any interest, by instrument, to the 35 feet west of the centerline of the FCLCTC canal. Canal Dredging The FCLCTC canal was excavated in the 1890s. Consistent with its depiction on the 1901 plat, the design width of the FCLCTC canal was 70 feet, at least in Palm Beach County, according to the legal description of the land acquired for the FCLCTC canal, which is Petitioner Exhibit 3. However, at least in the vicinity of the Property, the FCLCTC canal did not generally achieve its design width. According to Petitioner's geologist and wetlands delineator, Michael Czerwinski, the FCLCTC canal was dredged to form the ICW in the 1940s. This may be true. Pre-dredging surveying and engineering materials, which are discussed immediately below, were prepared in the early 1930s, so the dredging did not occur earlier than the mid 1930s. Other evidence suggests that the initial dredging had taken place by May 1941.9/ Mr. Czerwinski testified that the initial dredging of the ICW out of the FCLCTC canal resulted in a waterway that was 125 feet wide. He also testified that a second dredging of the ICW, also in the 1940s, widened the waterway to 300 feet. This testimony is credited in part. As discussed below, the ICW was initially dredged a little wider than 125 feet, at least at the Property. Later dredging of the ICW produced a 300-foot width in the vicinity of the Property, but not until sometime between 1964 and 2008.10/ At least in the vicinity of the Property, at some point between 1947 and 1964, the ICW was dredged to 200 feet wide. Mr. Czerwinski's testimony can be credited that this intermediate widening took place in the 1940s, although it would have had to have taken place after 1947 due to an aerial photograph described below.11/ A January 1931 survey prepared for FIND, which is Respondent Exhibit 22, shows that the FCLCTC canal was about 40-50 feet wide along the northern three-quarters of the Property, but equaled or slightly exceeded its design width of 70 feet along the southern one-quarter of the Property. The survey indicates that this additional width along the southern one- quarter of the Property was achieved by additional dredging along the east bank of the canal.12/ The 1931 FIND survey locates FIND's 300-foot right-of- way easement,13/ including the above-described 202 feet of this easement encumbering about three acres of the eastern end of the Property. The remaining 28 feet of the 300-foot right-of-way easement14/ encumbers the western end of property along the east bank of the ICW. The east property line of the Property has remained about 656 feet, regardless of whether it was measured along the water's edge prior to the dredging of the ICW or along FIND's right-of-way easement. Obviously, the 202-foot easement reduced the depth of the unencumbered Property to about 350 feet along the north lot line and 248 feet along the south lot line. The record does not contain any as-built drawings of the initial dredging of the ICW. However, in preparation for the excavation, the U.S. Engineer Office prepared and revised typical cross-sections on January 19, 1932, and May 25, 1933, respectively (1932/1933 Proposed ICW Cross-Sections), which is Petitioner Exhibit 9. The 1932/1933 Proposed ICW Cross-Sections details conditions at widely spaced profiles. Profile 1500 is about 1000 feet south of the Property and, as discussed below, characteristic of the conditions at the Property.15/ This profile shows a design width at maximum water depth of about 100 feet and a design width at water's surface of about 160 feet.16/ After accounting for the 70 feet of FCLCTC canal, about 90 feet would have had to have been dredged to achieve a total width of 160 feet. Subsequent aerial photography, as discussed immediately below, shows that all later dredging was located on the west bank of the ICW, so the initial dredging took up the 28 feet of the east bank subject to the FIND right-of-way easement,17/ leaving the remaining 62 feet of width to be dredged out of the Property.18/ This initial dredging of the ICW had taken place by the time of the above-mentioned 1947 aerial photograph, which is Respondent Exhibit 13.l, that shows the width of the ICW at the Property as approximately 150-160 feet. Between 1947 and 1964, FIND widened the ICW at the Property to 200 feet, as reflected by a 1964 aerial photograph, which is Respondent Exhibit 13.p.19/ A comparison of the 1947 and 1964 aerial photographs confirms that the widening to 200 feet was achieved by dredging the ICW's west bank, not east bank. Harmonizing the aerial photographs with Mr. Czerwinski's testimony places the widening to 200 feet in the late 1940s. After the removal of a total of 100 feet of the Property in two widening projects over ten to fifteen years ending in the late 1940s, a final widening project, between 1964 and 2008, removed another 100 feet of the Property, as reflected in 2011 aerial photography, such as Respondent Exhibit 13.r. The cumulative effect of these three widening projects, which removed 200 feet of the Property, reduced the depth of the Property by almost half and brought the canal waters 200 feet closer to what remained of the Property. Depictions of the Property and Surrounding Area A. 1800s The Property has been depicted on maps, charts, surveys, aerial photographs, and hand-drawn diagrams over a period of nearly 170 years. Certain of these depictions facilitate determinations, over time, of the extent to which the Property may have been wetlands or uplands. However, the weight to be assigned to particular depictions depends on a number of factors, including the scale of the depiction and its purpose. The earliest depiction of the Property is a quad sheet prepared in 1845 and revised in 1872 by the U.S. Surveyor General's Office (1845/1872 map), which is Respondent Exhibit 5. Covering all of Township 45 South, Range 43 East, west of the Atlantic Ocean, this map captures 24 sections--or 24 square miles. The scale of the map is quite small; the Property is no larger on this map than the size of one of the letters in "Atlantic Ocean." However, the main purpose of this map is to facilitate surveying, and the map documents the meandering of major waterbodies, the location of uplands in the form of "spruce pine scrub," and the location of wetlands in the forms of "inundated marsh" and "marsh." The 1845/1872 map depicts the southern terminus of Lake Worth about one and one-half miles north of the Property. The three vegetative communities identified in the preceding paragraph are generally depicted in long, north-south bands: the western band is "inundated marsh" (encompassing a small peninsula of "pineland and palmetto" in the southwest corner of the map), the central band is "spruce pine scrub," and the eastern band is "marsh." As reflected better in a blowup of this map, which is Respondent Exhibit 13.d, the boundary between the "spruce pine scrub" and "marsh" bisects the Property, so that the eastern part of the Property is depicted as wetlands, and the western part of the Property is depicted as uplands. The next depiction of the Property is the same 1845 quad sheet overlaid by an 1884 U.S. Coast and Geodetic Survey (USCGS) map (1845/1884 map), which is Respondent Exhibit 29. The scale of this map is the same as the previous one, so it is very small. The main purpose of the 1845/1884 map is the same as the 1845/1872 map; the most visible addition to the older map is the location of the corners and midpoints of surveying sections. But the 1845/1884 map also revises the older map by relocating the boundary between the marsh and the spruce pine scrub in the vicinity of the Property. The newer map moves this boundary several hundred feet to the west, so that the Property now lies entirely within the marsh. It is possible that, in the ensuing 12 years, wetlands spread several hundred feet to the west of where the older map had found them, but the record is silent as to major land alterations or storms during this time period. It is also possible that the older map located the wetlands/uplands boundary too far to the east, and the newer map corrected this error. But it is unlikely that the older map depicted the wetlands/uplands boundary accurately, and the newer map changed the boundary so as to depict it inaccurately. Whether documenting changes on the ground or correcting the work of the older map, the newer map is entitled to greater weight in its depiction of wetlands occupying the entire Property prior to the dredging of the FCLCTC canal. B. 1920s and 1930s The next depiction of the Property derives from aerial photography taken on February 27, 1927, which would be in the dry season. Working from these aerial photographs, in 1930, the USCGS published a vegetative map, which is Petitioner Exhibit 7. Among the purposes of this 1930 map are wetlands/uplands delineations, but this map unfortunately lacks a legend to explain the meaning of the many vegetative communities that it depicts. Additionally, the small scale of the map makes it difficult to read the symbols assigned to the Property.20/ This 1930 map is thus of no use in determining whether wetlands occupied the Property at that time. The next depiction of the Property is the 1932/1933 Proposed ICW Cross-Sections, which has been discussed above in connection with canal dredging. As already noted, the 1932/1933 Proposed ICW Cross-Sections displays numbered profiles of the proposed excavated channel following widening. Less than 200 feet south of the southeast corner of the Property is Profile 1510. As already noted, roughly 1000 feet south of the southeast corner of the Property is Profile 1500. About one-half mile north of the northeast corner of the Property is Profile 1550. Profiles 1500 and 1550 receive more detailed treatments elsewhere in the exhibit. Profile 1500 depicts the material to be excavated on the west side of the ICW as "mud." Profile 1550 depicts the material to be excavated on the west side of the ICW as "mud and sand." Profile 1500 is a better illustration of pre-excavation conditions at the Property's eastern edge partly because Profile 1500 is closer to the Property than Profile 1550. Additionally, another series of 1932 cross-sections, which is the second page of Petitioner Exhibit 9, reveal that the shape of the area to be excavated at Profile 1510, which is immediately south of the southeast corner of the Property, is almost identical to the shape of the area to be excavated at Profile 1500 and substantially different from the shape of the area to be excavated at Profile 1550. This too suggests that Profile 1500 is the better comparable. The notation of mud at Profile 1500 therefore suggests the existence of wet conditions on the eastern end of the Property. A USCGS map published in 1937 depicts the Property based on surveying done in 1930 and 1935. This small-scale map, which is Petitioner Exhibit 11, is a bathymetric chart of interior navigable waters. Referring to the canal by its new designation as the ICW, the 1937 map, which depicts marsh, but not other types of wetlands, does not indicate the presence of marsh on the Property. Because this map is primarily a navigational chart, rather than a map of vegetative communities, it is impossible to assign it much weight in determining whether the Property was occupied by wetlands or uplands at the time. 1940s to Present Maps A USCGS chart published in 1943 of the same area depicted by the 1937 USCGS chart is almost identical to the earlier chart. For the same reasons that applied to the 1937 USCGS chart, the 1943 USCGS chart, which is Petitioner Exhibit 12, is also of little use in determining whether the Property was occupied by wetlands or uplands at the time. The Property is depicted in somewhat larger scale on a USCGS quad map published in 1945, which is Petitioner Exhibit 13. The map, which depicts land cover primarily in terms of whether it is vegetated, indicates that all of the parcels on the west side of the ICW in Section 34 had been cleared of vegetation except for the Property. Although this 1945 quad generally indicates only whether areas are vegetated, it uses two symbols to indicate, in certain areas, the type of vegetation: one symbol indicates marsh and one symbol is unclear, possibly indicating mangrove. The Property bears neither symbol, but this fact is of little importance because the primary purpose of the 1945 quad map was to indicate the vegetated versus cleared areas, not to delineate wetlands.21/ However, the 1945 quad map reliably reports that the Property is entirely below the five-foot contour, which runs in a north-south direction between U.S. Route 1 and the ICW. South of Lake Worth, the ICW occupies a topographic depression between elevations as great as 35 feet west of U.S. Route 1 and spot elevations as great as 10 feet between the ICW and the Atlantic Ocean. Unaffected by dredging, the location of this five-foot contour illustrates the same slough-like feature south of Lake Worth that was depicted on the 1845/1884 map. The Property's location within this long basin is consistent with wet conditions that would support wetlands. 2. Field Notes of County Mosquito Control Department Field notes of the Palm Beach County Mosquito Control Department from the early 1940s to the late 1960s (Field Notes) provide additional information about the Property.22/ Field Notes, which is Respondent Exhibit 8, contains large-scale, hand- drawn diagrams with carefully prepared measurements. The purpose of Field Notes was to document field work done by a crew, but detailed observations were routinely recorded. The oldest notes pertaining to the Property are dated May 6, 1941, which is the end of the dry season. At this time, the parcels abutting the Property to the north and south were plant nurseries and may have been since at least 1930.23/ Respondent Exhibit 8, page 54. (Fifteen years later, Field Notes identifies these nurseries as Held's Nursery to the north and Merkle's Nursery to the south. Id. at 10. For ease of reference, this recommended order will refer to these parcels by these names at this earlier point in time.) As of 1941, Field Notes documents a dike running along the entire canal frontage of Held's Nursery. The dike was four feet tall at the base and six feet tall at the top. Id. at 54- About 470 feet north of the boundary between Held's Nursery and the Property, Field Notes indicates the presence of an existing ditch that was five feet wide and three feet deep; because it had good circulation, no work was done at that time. Id. at 54. Field Notes indicates another ditch with the same dimensions along the boundary between Held's Nursery and the Property; because it had good circulation, no work was done at that time. Id. at 55. The only other notes for Held's Nursery state that workers filled holes throughout the parcel, suggesting that the removal of in-ground nursery stock had left unfilled holes. Id. at 54. For 1941, Field Notes does not indicate any ditches on the Property, but contains two notations: "elderberries & other wild growth" and "fairly high ground." Id. at 55. Elderberries occur on wetlands and uplands, so this observation is not useful. The "fairly high ground" comment is discussed immediately below. Continuing south, for 1941, Field Notes depicts another ditch at the boundary between the Property and Merkle's Nursery. The ditch runs from the canal to a point about 430 feet west of the canal. From west to east, the ditch is three feet wide and one foot deep, then four feet wide and eighteen inches deep, and, in the final 100 feet to the canal edge, four feet wide and three feet deep. The only other note for Merkle's Nursery is that holes were filled. Id. at 56. The diagrams on pages 54-56 are linked by north-south stations located at 100-foot intervals along the canal. These stations are drawn roughly to scale. The diagram on page 56 also contains three east-west stations, each referring to the distance west from the edge of the canal: 125 feet, 367 feet, and 522 feet. These stations are not drawn to scale. The notation of "fairly high ground" spans the stations that are 367 and 522 feet west of the canal; the comment occurs at a point on the diagram that would be about 200 feet south of the north property line. It is not entirely clear whether this comment is placed on the diagram at the location where the high ground was encountered, or whether it was centered in the space on the page on which the comment was written. The lack of east- west scaling is unsettling. However, the notations and observations in Field Notes appear to have been carefully prepared, so it is more likely than not that the "fairly high ground" comment is written where the crew encountered fairly high ground relative to the east-west stations on the adjoining page of Field Notes. Because the east-west stations obviously do not run from the western limit of the FIND right-of-way easement, fixing the location of the "fairly high ground" observation requires knowledge of the width of the canal in May 1941.24/ The diagrams identify the canal as the "East Coast Canal," which is another name for the FCLCTC canal. But this reference does not help determine whether the FCLCTC canal had already been widened into the ICW. This is an obsolete reference; as noted in the 1937 USCGS map four years earlier, the proper name of the canal was the ICW, regardless of whether the initial widening had not yet taken place. There is no doubt that, at all times, proceeding from east to west, an elevation gain occurred at the property line separating the Property from the parcel to the west. The location of the "fairly high ground" comment would be at this property line, if the first 60 feet of the encumbered Property had already been dredged by May 1941.25/ It makes sense for the "fairly high ground" comment to be located where other evidence establishes higher elevations, so it is found that the dredging of the FCLCTC canal into the ICW had taken place by May 1941. In May to July 1956, Field Notes indicates that the County work crew cleared ditches on the Property, Held's Nursery to the north, and Merkle's Nursery to the south. Id. at 10. These notes include a detailed diagram of the network of ditches on the Property and the two nursery parcels. From north to south, there is a 628-foot long east-west ditch on Held's Nursery that appears to be the northerly ditch shown in the above-described May 1941 diagram, but the long east- west ditch at the boundary between Held's Nursery and the Property is not shown in the diagram. The 628-foot long ditch runs from the ICW almost to U.S. Route 1, so it spans the platted lot plus nearly all of the parcel adjoining the platted lot to the west. Near the boundary of Held's Nursery and the Property is a 139-foot east-west ditch that runs toward the ICW from the boundary of the Held's Nursery parcel with the adjoining parcel to the west, but stops at about the mid-point of the Held's Nursery parcel. Three 455-foot long north-south ditches connect the two east-west ditches. The western ditch runs along the property line separating Held's Nursery from the parcel to the west. The central ditch runs about 40 feet to the east of this ditch, and the eastern ditch runs about 105 feet to the east of the center ditch.26/ The eastern ditch is about 300 feet west of the ICW. The sole connection to the ICW is thus provided by the long east-west ditch that appears to have been in place for at least 15 years. Although the diagram does not so indicate, this ditch likely drains west to east into the ICW. This parcel had been used as a plant nursery since at least 1941, and it had been used as a plant nursery or citrus grove since 1930.27/ The land behind the dike was evidently dry enough to grow in-ground nursery stock, which presumably could not survive inundation by tidal waters. Fifteen years later, although the dike is omitted from the diagram and thus may no longer be present, the parcel was still used as a plant nursery, and this use presumably still required drainage into the ICW, rather than flooding from the ICW. The diagram likewise fails to indicate the direction of flow of the three north-south ditches. The only other features on the diagram for Held's Nursery are at the property line dividing Held's Nursery from the Property. From U.S. Route 1 almost to the ICW is a shell road, which likely interrupts drainage, but, at a point just east of the property line dividing Held's Nursery from the parcel to the west, a symbol indicates a culvert, which would have permitted stormwater to pass under the shell road. As confirmed by subsequent aerial photography discussed below,28/ the culvert passed stormwater from Held's Nursery to the Property, which has been vacant since its platting in 1901. The northern half of the Property has an elaborate network of ditches. The only significant east-west ditch runs about 500 feet through the center of the Property, linking the ICW to a point about in the middle of the parcel to the west of the Property; about 186 feet of this ditch is in the parcel to the west. Four north-south ditches drain into this long central ditch. The longest is about 207 feet and runs from the above- mentioned culvert. Eighty-one feet east of this ditch is a 100-foot ditch that terminates south of the shell road dividing Held's Nursery from the Property. Twenty-two feet east of this ditch is a 170-foot ditch that terminates at the shell road, and 22 feet east of this ditch is another 170-foot ditch that also terminates at the shell road. The only ditch in the southern half of the Property is slightly offset from the 207-foot north- south ditch and runs 100 feet along the property line dividing the Property from the parcel to the west. At the property line dividing the Property from Merkle's Nursery is another shell road. Along this boundary, about in the middle, is a pump station on the Property, but it is unconnected to the ditch network, and it is impossible to determine the purpose of the pump. The diagram does not show a culvert in this shell road. The diagram indicates one major east-west ditch on Merkle's Nursery totaling about 450 feet, connecting to the ICW, and terminating near U.S. Route 1. This ditch is in the middle of Merkle's Nursery. Along the north side of Merkle's Nursery is a 190-foot ditch running from the ICW to a point just east of the west property line of the platted lot. Two ditches averaging 110 feet run into the longer east-west ditch; the east ditch terminates at the 190-foot ditch. Field Notes does not reveal who constructed the ditches on the Property between 1941 and 1956. But, as Petitioner contends, it is a fair inference that they were dug by the County work crew. The Property was undeveloped wetlands, so there is little reason for the owner to try to drain the Property. Nor is there any reason for the owner of Held's Nursery to install on the Property a network of ditches downstream of the culvert. The only party with any interest in the drainage in the area was the County in its effort to control mosquitoes by overdraining wet land. But two other contentions of Respondent connected to Field Notes fail. First, as discussed above, Field Notes fails to prove that any portion of the Property was uplands. Second, Field Notes fails to prove that the ditches on the Property converted uplands to wetlands, or that the County constructed and maintained the ditches on the Property to control mosquitoes through flooding or impoundment, rather than drainage of standing water into the ICW. 3. Aerial Photography: 1940s-1960s From the 1940s, aerial photography of the Property became more routine, but problems in resolution sometimes prevent using the aerial photographs to determine the vegetative communities on the Property. Aerial photographs taken in 1940 suggest the presence of herbaceous vegetation throughout the Property with some woody vegetation at the western end of the Property. But the poor resolution of this photography prevents any finding of whether the depicted vegetation was indicative of wetlands or uplands on the Property. In March 1947, an aerial photograph, which is Petitioner Exhibit 18 and Respondent Exhibit 14, provides much better resolution. To the west of the Property is scrubby habitat, which features sandy soil. This area drains across the Property and into the ICW. An herbaceous salt marsh is more clearly visible on the Property. This photograph reveals wetlands on the Property where the Held's Nursery ditch flows through the culvert. The 1947 aerial photograph thus confirms that the Property was receiving runoff from at least two directions: the north and the west. Mr. Czerwinski testified that he found evidence of mangroves starting to take hold of the eastern end of the Property. This testimony is credited, although there is some dispute on this point. There is no dispute that two aerial photographs taken in 1953 reveal that mangroves have established themselves on the eastern half of the Property. The mangroves are dense and appear to be flourishing. By 1964, an aerial photograph shows that the mangroves have extended over the eastern two-thirds of the Property. Current Conditions The Property currently hosts a robust mangrove forest with red mangroves transitioning to black mangroves, progressing from east to west. At low tide, seagrasses emerge, interspersed among the mangroves. Some elderberry occur at the western end of the Property, which is free of nuisance exotic vegetation. The predominant soil is Kesson mucky sand, tidal classification. At low tide, the groundwater, which, rising and falling with the tide, maintains an elevation at least equal to the tidal waters of the nearby ICW and is within 6-8 inches of grade at the western end of the Property and at or above grade over the remainder of the Property. At high tide, the Property is inundated. The ICW is a class III water. According to LIDAR data from 2007-08, the average elevation of the Property is one foot NAVD88. The LIDAR data confirms a vestige of the old central ditch running from near the west property line to the ICW, evidently capturing stormwater from a depression, possibly a small stormwater retention facility, alongside U.S. Route 1. At present, this depression hydrates the mangroves by conveying freshwater from west to east and tidal water from east to west, depending, of course, on the tides and stormwater flows. The LIDAR data also confirms an abrupt loss of elevation just inside the north, west, and south property lines of the Property. Over relatively short distances, elevations drop as much as seven feet as one enters the Property from these adjoining parcels. The historic elevation of the Property is implicitly addressed in a letter sent to Petitioner dated November 20, 2013, from Rod A. Maddox, Chief, Bureau of Survey and Mapping, Division of State Lands. The letter states: "Our records indicate that the [ICW] was dredged from uplands at the subject site. Therefore, we recommend the proprietary requirements that would normally apply to state owned lands not apply to this site." By email dated November 26, 2013, to Petitioner, Chief Maddox clarified that the meaning of "uplands" in his letter is not the meaning assigned to uplands by the regulatory requirements of SWERP. As Chief Maddox used the term, "uplands" means only that the dredged site was above mean high water. Respondent's Geographer IV of its Survey and Mapping Section, Robert Schaffer, testified that the 1932/1933 Proposed ICW Cross-Sections identifies seven elevations for the Property along the west bank.29/ These elevations range from 3.3 feet to 5.3 feet above mean low water. According to the 1945 USCGS quad map, the average tidal range in the area was approximately three feet, so Chief Maddox was right, by the smallest of margins: none of the seven elevations was below mean high water, although the minimum freeboard at the canal's edge at mean high tide was less than four inches. Mr. Schaffer also determined that the average of these seven elevations along the west bank is about the same as the average 2007-08 LIDAR elevation of 1.0 foot NAVD88. Mr. Schaffer roughly averaged the seven elevations at 4.0 feet above mean low water. The actual average calculated by adding the seven values and dividing by 7 is 4.3 feet above mean low water. Mean low water was -1.2 feet NGVD29, so an elevation of 4.0 feet above mean low water would be 2.8 feet NGVD29, and an elevation of 4.3 feet above mean low water would be 3.1 feet NGVD29. In Palm Beach County, NAVD88 is about 1.5 feet lower than NGVD29, so the average of the west bank elevations was about 1.3 feet, according to Mr. Shaffer's average, or 1.6 feet NAVD88, according to the actual average. Thus, in the early 1930s, the west bank was about six inches higher than the average elevation of the entire unencumbered Property in 2007-08. Analysis Mosquito Control Activities Exemption Property Was Not Uplands Prior to Ditching The greater weight of the evidence establishes that the Property was wetlands from the earliest records. Originally a freshwater marsh, probably consisting of sawgrass, the Property evolved into a saltwater marsh due to the dredging of the FCLCTC canal and perhaps the opening of the Boynton Inlet. The opening of the inlet definitely facilitated the transport of the necessary seed material to allow the saltwater marsh to evolve into a mangrove forest. The major sources of hydration before the dredging of the FCLCTC canal were the slough-like depression south of Lake Worth that the Property occupied and stormwater runoff from the west. In the 1940s, the major sources of hydration included stormwater runoff from the west, but also tidal waters diverted by the dike on Held's Nursery and groundwater effects from the removal of 100 feet of the Property and the relocation of now 200-foot wide ICW 100 feet closer to what remained of the Property. By the mid 1950s, but possibly also as of the late 1940s, the major drivers of hydrology included all of those set forth in the preceding sentence, except possibly the dike, and two more: stormwater runoff through the culvert separating Held's Nursery from the Property and the central ditch. Although, as noted above, the effect of the central ditch at present is to convey stormwater from the west and tidal waters from the east, its effect 60 years ago presumably served its intended purpose: overdrain the Property and effectively tend to make it drier. At the very least, though, these supplemental drivers of hydrology dispel any likelihood that, originally wetlands, the Property may have reverted to uplands at some point after the dredging of the FCLCTC canal and prior to the digging of the central ditch. 2. Even if Property Had Been Uplands Prior to Ditching, Petitioner Failed to Prove that Ditching Converted Property to Wetlands Claiming that the Property was uplands, Petitioner argued that the County's mosquito control activities--in the form of building ditches on the Property--converted the uplands to wetlands. The findings that the Property was originally and continuously wetlands dispose of this contention, but, even if Petitioner had proved that the Property was uplands immediately before the construction of the central ditch, he failed to prove that the central ditch, which was the sole connection to the ICW, resulted in the inundation of the Property by tidal waters and the conversion of the Property from uplands to wetlands. In contrast to the wetlands determinations, for which ample data is available and little analysis is necessary, the complexity of hydrological functions and the inattention to these functions in the record preclude any finding as to exactly how the Property may have become wetter over the years. The Property is very wet today, possibly wetter than it has been in the past, but Petitioner has failed to prove that the central ditch is the predominant driver of the hydrology of the Property today or was in the period immediately preceding the arrival of the mangroves on the Property in the late 1940s. Petitioner proved the County dug the ditches on the Property between 1941 and 1956. The mangroves colonized the Property in the late 1940s and early 1950s. Ignoring the possibility that the mangroves preceded the central ditch, Petitioner's proof pretty much stops right here. Petitioner never offered any analysis of how the central ditch could have raised water levels on the Property or extended the periods of relatively high waters on the Property. This would have been a complicated undertaking due to the presence of other drivers of hydrology. Among other things, Petitioner would have had to explain how the central ditch, immediately upon its construction, failed of its intended purpose, which was to overdrain the Property. Originally, the Property was wet due to its location in the long slough south of Lake Worth and stormwater flows from the west. After the dredging of the ICW to a 200-foot width, by the late 1940s, the Property was wet due to the groundwater effect of the removal of 100 feet of the Property and relocation of the canal waters 100 feet closer to the remainder of the unencumbered Property, stormwater flows from the west, and tidal waters diverted by the Held's Nursery dike. By the mid 1950s, the dike may have been removed, but stormwater flows from the west and the groundwater effect of the twice-widened canal continued to hydrate the Property. By this point, and possibly as far back as the late 1940s, two more factors needed to be accounted for: stormwater flows from the north through the culvert and--Petitioner's driver of choice--the central ditch. Today, the vestige of the central ditch appears to perform one of the functions suggested by Petitioner: conveying tidal water onto the Property at high tide. But it appears still capable of conveying stormwater from the north and west across the Property and into the ICW, canal water levels permitting. In doing so, the ditch now may flush the mangroves with cycles of freshwater and saltwater and transport nutrients to the mangroves. But, even today, other major drivers of hydrology are at work. These include stormwater contributions from the west, which now includes great expanses of impervious surface replacing the nurseries that were present decades earlier and an apparent retention facility along U.S. Route 1; the above-described groundwater effects, reinforced further by the widening of the ICW by another 100 feet, all out of the Property; and even the construction of surrounding seawalls, effectively replacing the dike along Held's Nursery 70 years ago. It would have been a daunting task to assign values to these various drivers of hydrology over various points in time; perhaps this is why Petitioner did not undertake it. But ultimately Petitioner fails for two reasons: 1) even if the central ditch were present when the mangroves appeared in the late 1940s and early 1950s, so were many other drivers of hydrology, and there is absolutely no reason to doubt that, initially at least, the central ditch tended to make the Property drier, not wetter; and 2) even today, the central ditch is not the sole or even predominant driver of the hydrology of the Property. 3. Even if Property Had Been Uplands Prior to Ditching and Ditching Had Converted Property to Wetlands, Petitioner Failed to Prove that Ditching Converted Entire Property to Wetlands Petitioner's proof falls short in another important respect. Even if the Property had been uplands up to the point when the County constructed the central ditch and even if the central ditch, alone, introduced tidal waters onto the Property, Petitioner never proved that the tidal waters overtopped the central ditch and other ditches connected to the central ditch by sufficient volumes and for sufficient periods, if not permanently, to convert the entire Property from uplands to wetlands. Absent such proof, the mosquito control activities exemption would extend no farther than the footprint of the ditches--an exemption that would be of no practical use. Petitioner failed to provide detailed evidence concerning the central ditch, such as historic slopes and profiles; tidal flows at the Property; or the relationship between the central ditch and tidal flows. Thus, Petitioner failed to explain the process by which the canal water supposedly escaped the central ditch to inundate the entire Property. The role that Petitioner assigns to the central ditch would necessitate major erosion of the Property. But the evidence of such erosion is completely missing from the record.30/ During a timeframe in which aerial photographs of the Property were becoming more common, no photograph documents the scarification of the Property or the movement of substantial volumes of soil off the Property and into the ICW, both of which would have accompanied the process that Petitioner contends took place. Given the force necessary to transport soil particles in the water column--even the much stronger tidal forces at the Boynton Inlet are unable to move the sediment out of the inlet-- if Petitioner's contention were correct, large deposits of eroded sediments would have piled up in the ICW alongside the Property, eventually shoaling the channel. Yet, no such event ever took place. Seawall Construction Exemption Artificially Created Waterway As stated above, the Property was wetlands prior to the dredging of the FCLCTC canal. Although the eastern end of the Property was above mean high water at the time of the 1932/1933 Proposed ICW Cross-Sections, its lowest frontage elevation was above mean high water by less than four inches, and neither the range of frontage elevations nor the average elevation of the Property precludes the existence of wetlands. As discussed in the Conclusions of Law, because the ICW was dredged from wetlands on the encumbered Property, the ICW at this location is not an "artificially created waterway." If an "artificially created waterway" were more broadly defined to include waterways artificially created out of uplands and artificially created--or altered--out of wetlands, Petitioner still would not qualify for the seawall construction exemption because the greater weight of the evidence establishes that Petitioner has proposed to construct the seawall outside of the ICW. Most likely, Petitioner's proposed seawall would join the ends of the existing seawalls to the north and south of the Property. If so, the seawall would be mostly within the unencumbered Property and, at most, at the southern terminus, on the line dividing the unencumbered Property from the encumbered Property. In the absence of proof that FIND overdredged the ICW past the western limit of its 300-foot right-of-way easement, the proposed seawall would not be "in" the "artificially created waterway" of the ICW.31/ Seeming to endorse this location of the proposed seawall, Petitioner's proposed recommended order states that the proposed seawall would be constructed "along" the ICW. For reasons that are unclear, Respondent has assumed that the construction of the proposed seawall would be "in" the ICW, as revealed by Respondent's October 2013 letter and Respondent's proposed recommended order, which refers to construction of the proposed seawall "in" the ICW. This assumption ignores the fact that a conveyance of the property described in the sales contract would be limited to the unencumbered Property (plus the access parcel). Any proposal to construct the seawall in the ICW would thus require the permission of FIND32/ and the third-party owner of the encumbered Property--a highly contingent prospect that defeats Respondent's assumption that the proposed construction of the seawall would be in the ICW. 2. Water Quality and Flood Control The record is undeveloped as to water quality and flooding impacts. Even if the proposed seawall were located in an artificially created waterway, Petitioner has not provided reasonable assurance that the construction of the seawall would not violate existing water quality standards--specifically, turbidity and dissolved oxygen. Controlling turbidity by trapping sediments and maintaining dissolved oxygen in the water column, the mangroves require tidal flushing, but the seawall would impede tidal waters from inundating the Property. It is Petitioner's responsibility to show how, under these circumstances, the proposed construction of the seawall would not violate existing water quality standards. Consistent with Respondent's refusal to verify a de minimis exemption, it is impossible to infer an insubstantial effect on the mangroves and, thus, water quality by the construction of the seawall and addition of 20-30 feet of supportive fill behind the seawall. Likewise, Petitioner has not provided reasonable assurance that the construction of the seawall would not affect flood control. Probably after the adjoining nurseries were redeveloped to support more intense uses, both parcels received several feet of fill. The record does not reveal the extent to which these adjoining parcels retain their stormwater onsite. The construction of the proposed seawall with 20-30 feet of supportive fill would likely impound any surface waters entering the Property from the north, west, and south, raising a sufficient risk of offsite flooding to require analysis. Again, it is Petitioner's responsibility to show how, under these circumstances, the proposed construction of the seawall would not affect flood control.
Recommendation It is RECOMMENDED that the South Florida Water Management District enter a final order declining Petitioner's request to verify the mosquito control activities exemption and the seawall construction exemption. DONE AND ENTERED this 16th day of May, 2014, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 16th day of May, 2014.
