The Issue The issues to be determined in this case are whether Petitioner Highway 60 and 301 Center, Inc., has standing to challenge the proposed Environmental Resource Permit issued to Respondent Big Bend Center, LLC, by Respondent Southwest Florida Water Management District ("District"), and, if so, whether Big Bend Center is entitled to issuance of the proposed permit.
Findings Of Fact The Parties Petitioner owns real property located at 105 U.S. Highway 301 South, in Tampa, which Petitioner leases to commercial businesses. Respondent Big Bend Center owns real property located at 110 U.S. Highway 301 South, which is across Highway 301 from Petitioner's property. Big Bend Center is named in the District's agency action and is the permittee. The site affected by the proposed permit modification is about 2.5 acres in size. It is part of a larger development owned by Big Bend Center, encompassing about 30 acres. The 30-acre site was the subject of a permit issued by the District in 1988. The 1988 permit approved a master drainage plan applicable to all 30 acres. The permit modifications discussed herein are modifications to this initial permit. Respondent Enterprise Holdings leases the 2.5-acre site at 110 U.S. Highway 301 South, which Enterprise uses for the operation of a car and truck rental business. When Petitioner filed its petition with the District, it named Enterprise Holdings, Inc., as a Respondent, even though Enterprise Holdings was not named in the permit. Neither Petitioner nor the District ever questioned the right of Enterprise Holdings to participate as a party. Respondent Southwest Florida Water Management District is the administrative agency charged with the responsibility to administer and enforce chapter 373, Florida Statutes, and the rules promulgated pursuant thereto in Florida Administrative Code Chapter 40D. The Permit The petition for hearing challenged the District's approval of a proposed permit designated 44003983.007. The permit authorized the construction of a building over existing pavement and the addition of a dumpster pad. After the petition for hearing was filed, Big Bend Center requested and the District approved a modification, designated .008, which included the .007 changes and, in addition, authorized the construction of a section of sidewalk and landscape islands in the parking lot. Enterprise then requested and the District approved another modification, .009, which authorized all the changes addressed in .008 and, in addition, authorized changes to the paved parking lot. Standing Petitioner contends that proposed permit, modification .009, would injure Petitioner because the authorized changes would result in flooding of Highway 301 that could reach Petitioner's property or, even if it did not reach that far, would interfere with traffic on Highway 301 in a manner that would disrupt Petitioner's business. The sole factual allegation upon which Petitioner bases its claim of flooding is that the previously-installed pipes that convey runoff to a retention pond may be too small; smaller than was required by Big Bend Center's 1988 permit. Petitioner's expert, Clifford Laubstein, stated that a boundary survey in the permit file shows two 18-inch diameter pipes connected to a 24-inch diameter pipe. Big Bend Center's 1988 permit required these pipes to be 24 inches and 30 inches, respectively. Laubstein admitted that the "as built" construction drawings that were submitted to the District by Big Bend Center after the construction of the master drainage system certifies that the pipes are the required, larger size. Laubstein did not have firsthand knowledge of the size of the pipes. He did not know which document was correct, the survey or the as built drawings. His position was simply that if the survey information was correct, Big Bend Center's stormwater system would fail to function properly and flooding could occur. Laubstein did not know whether the system had failed to function properly in the past or had ever caused flooding. Laubstein did not determine what storm event or volume of runoff would result in flooding of Highway 301, or the extent of flooding that would occur under various storm events. Because as built constructions drawings are prepared by an engineer and submitted to the District for the very purpose of certifying that a system has been constructed in accordance with the requirements of the permit, information in the as built drawings about components of the system would generally be more reliable than such information in a survey that was prepared for another purpose. Furthermore, Enterprise's expert witness, Steve Boggs, measured the pipes and determined they were 24 and 30 inches, as required by the permit. By refuting Petitioner's claim that the pipes "may" be undersized, Respondents refuted Petitioner's claim that Highway 301 or Petitioner's property "may" be flooded if the proposed permit modification is issued by the District. The stormwater system for the proposed project is properly sized to handle the stormwater runoff. Petitioner failed to meet its burden to prove by a preponderance of the evidence that it could be injured by the proposed permit modification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the District dismiss the petition and issue Environmental Resource Permit 44003983.009. DONE AND ENTERED this 4th day of March, 2013, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of March, 2013.
Findings Of Fact At final hearing, the parties stipulated to the following facts: The Department of Environmental Regulation is an administrative agency of the State of Florida created by Chapter 75-22, Laws of Florida, and vested with the power and duty to implement and enforce the provisions of the Florida Air and Water Pollution Control Act, Part I, Chapter 403, Florida Statutes. Pursuant to these Acts, the Department is authorized to regulate the construction and operation of solid waste disposal facilities and stationary installations reasonably expected to be sources of pollution. Respondent, City [of North Miami], owns the property on which is located a solid waste facility known as "Munisport Sanitary Landfill" located at 14301 Biscayne Boulevard, North Miami, Dade County, Florida; latitude 25 degrees 54' 9" North, longitude 80 degrees 9' 5" West in Sections 21 and 22, Township 52 South, Range 42 East. Respondent, Munisport, operates a solid waste disposal facility under contract with the City. On March 7, 1977, the Department issued to the City of North Miami permit/certification number 13-31-028GM (hereinafter "dredge and fill permit") which modified and superseded permit/classification number 13-31-0286. The permit was issued under the provisions of Sections 253.123, 253.124, and 403.087, Florida Statutes, and Chapter 17-4, Florida Administrative Code. The permit also provided water quality certification required by Public Law 92-500. The dredge and fill permit was issued for the purpose of constructing a continuous 5,000 foot-long earthen dike with a modified top width of 12 feet aligned waterward of the mean high water line such that the waterward toe of the dike would be on or landward of the property line. Approximately 6,000 cubic yards of material would be dredged from the 63-acre tract located behind the dike and waterward of the mean high water line. Portions of the tract would be excavated to minus 35 feet mean low water to form nontidal lakes. Approximately 1,000,000 cubic yards of fill material would be enplaced as follows: Clean fill to be utilized to produce an elevation of a minimum of two feet above the calculated ground water table, after which fresh refuse and a two-foot final cover of clean fill would be placed. Within a zone of 100 feet from the landward crest of the dike, yard trash and construction debris would be the only types of solid waste acceptable as fill, and A ten-foot wide by three-foot deep circulation canal would be dredged on the outside perimeter of the dike. General condition 13 of the dredge and fill permit provides that the permit does not indicate an endorsement or approval of any other Department permit/approval that may be required for other aspects of the total project. A solid waste operation permit would also be required. On June 8, 1979, the City and Munisport received from the Department Operation Permit No. SWO-13-5152 (hereinafter "solid waste operation permit"). The purpose of the solid waste operation permit was to allow and regulate the placement of solid waste (refuse, yard trash and construction debris) in the area behind the dike described above and on adjacent uplands in order to generate an appropriate elevation for a golf course. General condition number two of the solid waste operation permit states that: This permit is valid only for the specific processes and operations indicated in the attached drawings or exhibits. Any authorized deviation from the approved drawings, exhibits, specifications, or conditions of this permit shall constitute grounds for revocation and enforcement action by the Department (emphasis added). Specific condition number six of the solid waste operations permit provides that the subject facility be operated at all times at the maximum level of efficiency so as to minimize the adverse effect on the environment of contaminated storm water runoff or leachates which cause degradation of surface or ground waters. Specific condition number nine of the solid waste operation permit provides that "no solid waste shall be placed within thirty feet of any existing or future lake". Prior to the issuance of the solid waste operation permit, Respondents' permit application was subjected to a de novo review during a Section 120.57(1), Florida Statutes, hearing requested by the Florida Audubon Society and others. The record of these proceedings explained and expanded upon the application and, therefore, became a part thereof. Respondents' consultant testified in these proceedings as follows: We have an agreement with the Department of Environmental Regulation that goes back several years that we would not dig up any old land fill material nor would we place any land fill material in an area that would eventually become a lake. Testimony of Mr. Thomas Joseph Checca on October 18, 1978; Transcript of proceedings in Florida Audubon Society, et al. v. State of Florida, Department of Environmental Regulation, City of North Miami, Florida and Munisport, Inc., DOAH Case No. 78-316. On October 25, 1979, an inspection of the above-described facility was made by Mr. Scott Quaas, an employee of the Department, who observed that two lakes had been constructed in old waste on the site without the required 30-foot setback as required by the aforementioned permit conditions. A letter of notice was issued by the Department regarding that and other violations on November 16, 1979. On December 18, 1979, a follow-up inspection of the subject facility was made by Mr. Quaas, at which time it was observed that two more lakes had been excavated through waste previously deposited at the site, thereby causing such waste to come in direct contact with the water in the lakes adjacent thereto. It was also observed that no 30-foot setback was provided at the new lakes. Notice of these additional violations was provided to Munisport on January 16, 1980. An on-site meeting regarding the above-described violation was held on January 24, 1980, at which time it was agreed that Respondents would reply by February 1, 1980, as to whether corrective actions would be taken regarding the aforementioned violations. As of the date of final hearing in this cause, corrective action had been taken to eliminate these violations. Specific condition number 13 of the solid waste operation permit requires the posting of a performance bond or other security acceptable to the Department which adequately covers the cost of monitoring and final closing procedures required under the permit and Chapter 17-7, Florida Administrative Code, and procedures listed in the application for permit which may become necessary to correct any pollution detected at the site in violation of Department rules. No such bond or security has been posted with the Department. Extensive discussions between the Department and representatives of the City and Munisport have failed to produce agreement regarding the terms of a performance bond or security. The parties were notified of this violation and were given an opportunity to respond. Leachate (runoff containing pollutants) has been allowed to enter lakes on the site. A leachate plume containing ammonia has been detected beneath the subject sanitary landfill site, which plume has reached ground waters of the State and is being observed to be moving off the site in an east- southeast direction, toward Biscayne Bay. This leachate plume contains total Ammonia-Nitrogen (NH3-N) in amounts which are substantially in excess of the water quality standards of .5 milligrams per litre for Dade county, Florida. See, Chapters 24-11(4), Dade County Code. It was not anticipated when Operation Permit Number SWO-13-5152 was issued that leachate would be allowed to enter the lakes or that a leachate plume would form in the manner which is presently being observed. In addition to being a pollutant, Ammonia-Nitrogen is the first substance generally observed when a leachate plume forms. There exists a significant possibility that other pollutants contained in solid waste deposited at the site will also begin to reach ground waters of the State and the waters of Biscayne Bay. General condition number eight of the solid waste operation permit states that: This permit does not relieve the permittee from liability for harm or injury to human health or welfare, animal, plant, or aquatic life or property and penalties therefore caused by the construction or operation of this permitted source, nor does it allow the permittee to cause pollution in contravention of Florida Statutes and department rules, except where specifically authorized by an order from the department granting a variance or exception from department rules or state statutes. Specific condition number 15 of the solid waste operation permit states that: These permit conditions do not exempt the applicant from complying with pollution control requirements of other Federal, State, Municipal, County or Regional water pollution control rules, regulations, ordinances or codes, nor does it authorize any violation thereof.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered revoking the permits and certification which are the subject of this proceeding in their entirety or such lesser action as may be deemed appropriate by the Department in the exercise of its discretion as the State agency charged with the power and duty to control and prohibit the pollution of air and water under Section 403.061, Florida Statutes, and as the agency responsible for the implementation and enforcement of the provisions of the Florida Resource Recovery and Management Act which regulates the appropriate disposal of solid waste and landfill operation in this State. DONE and ENTERED this 24th day of February, 1981, in Tallahassee, Leon County, Florida. WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of February, 1981. COPIES FURNISHED: William P. White, Jr., Esq. Deputy General Counsel Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32301 Willard K. Splittstoesser, Esq. 776 N.E. 125th Street North Miami, FL 33161 Marvin P. Sadur, Esq. 2000 L. Street, N.W., Suite 612 Washington, D.C. 20036
The Issue Whether the costs incurred by the Department of Environmental Protection, Bureau of Emergency Response (Department) in connection with its response to Incident Number 97-02-0234 may be recovered from Petitioner pursuant to Chapters 376 and 403, Florida Statutes.
Findings Of Fact The Department is a state regulatory agency charged with the responsibility of administering and enforcing the provisions of Chapters 376 and 403, Florida Statutes. Orchard View Development, Limited (Orchard View) is an Ontario, Canada corporation. Its president is William T. Lamsom. Orchard View is now, and has been since approximately two to six months prior to the incident which is the subject of this proceeding, the owner of a triangular, three-quarter acre parcel of undeveloped land (Orchard View's Parcel or the Parcel) located on the fringe of a Boca Raton, Florida residential neighborhood. There are children in the neighborhood who pass by the Parcel on their way to and from school. City streets border Orchard View's Parcel on all sides. Across one of these streets is a creek. Orchard View owns an additional 78 acres of undeveloped land (Orchard View's Acreage or the Acreage) to the north of its Parcel. Only a street separates the Acreage from the Parcel. Orchard View first acquired the Acreage in approximately 1975 and sold it about 14 or 15 years later. During this 14 or 15-year period, the Acreage was used by others, without Orchard View's approval or authorization, as a dumping ground. Numerous items, including boats, automobiles, tires, baby carriages, mattresses and landscaping material, were left abandoned on the property. Steps taken by Orchard View (which was well aware of the problem) to deter such dumping, including posting "no trespassing" signs on the property and erecting a 10-foot dirt barrier on one side of the property, were ineffective. Orchard View also complained to the police about the problem, but the making of these complaints did not result in an amelioration of the situation. Orchard View reacquired the Acreage at approximately the same time it acquired the Parcel. Since Orchard View's reacquisition of the Acreage, unauthorized persons have driven their all-terrain vehicles on the property without the approval or authorization of Orchard View, notwithstanding the "no trespassing" signs on the property. Although aware of the dumping problems in the area, Orchard View has not, at any time after its acquisition of the Parcel, posted "no trespassing" signs on the Parcel or erected a fence or other barrier around the Parcel, nor has it taken any other measure designed to discourage or prevent dumping on the Parcel. On June 9, 1997, at 11:10 a.m., the Department was notified by Lieutenant John Johnson of the Boca Raton Fire Department that four drums, which were labelled “poison and toxic,” had been discovered on the Parcel. The drums did not belong to Orchard View. They had been dumped on the Parcel by some person or persons not associated with Orchard View without Orchard View's knowledge, approval or authorization. Catherine Porthouse, an Environmental Specialist II with the Department, promptly responded to the scene (where she met Lieutenant Johnson) and served as the Department's on-scene coordinator. Because the drums were labelled “poison and toxic” and their contents were unknown, Lieutenant Johnson would not allow anyone, including Porthouse, to approach the drums without "Level B" protective clothing and equipment. Porthouse therefore initially viewed the drums from a distance using binoculars. She noted that three of the drums were leaking and that there was stained soil in the area of the drums. She also saw other solid waste materials nearby. Porthouse learned that Orchard View was the owner of the property on which the drums were located. At 12:49 p.m. on June 9, 1997, Porthouse telephoned Lamson and advised him that the drums were on the Parcel and that they needed to be removed by an "emergency response contractor." When informed about the presence of the drums on the Parcel, Lamson was not surprised. He realized (as he testified at hearing) that the area was "a good dumping ground." Lamson told Porthouse that he would ask his son, a general contractor who lived and worked near the Parcel, to remove the drums. Porthouse, however, explained to Lamson that the removal of the drums needed to be done by someone qualified, under state and federal law, to handle and transport hazardous substances. Lamson thereupon asked Porthouse to provide him with a list of "emergency response contractors" qualified to remove the drums. Porthouse gave Lamson her office and cellular phone numbers and asked him to call her back within no more than three hours to update her on his efforts to hire an "emergency response contractor" to remove the drums. Following Porthouse's telephone conversation with Lamson, the Department faxed to Lamson the list of qualified contractors Lamson had requested during the telephone conversation. After speaking with Porthouse, Lamson attempted to telephone his son. Lamson's son was not in, so Lamson left a message on his son's answering machine telling his son about his telephone conversation with Porthouse concerning the abandoned drums on the Parcel. In his message, Lamson asked that his son look into the matter. Neither Lamson, nor his son, made any arrangements for a qualified "emergency response contractor" to remove the drums from the Parcel; nor did either of them contact Porthouse and advise her that such arrangements had been made or would soon be made. Accordingly, at approximately 4:00 p.m. on June 9, 1997, after having waited over three hours for Lamson to provide her with such information, Porthouse hired Magnum Environmental Services (Magnum), a qualified "emergency response contractor" with whom the Department had a contract, to properly dispose of the four abandoned drums (and their contents), as well as the stained soil, on the Parcel. Magnum personnel (with "Level B" protective clothing and equipment) responded to the scene shortly thereafter. By approximately 6:30 or 7:00 p.m. that day (June 9, 1997), Magnum personnel had overpacked, removed from the Parcel and taken to an off-site hazardous waste storage facility the four abandoned drums (and their contents), as well as a fifth drum which contained the stained soil from the site (which Magnum had excavated). Before it had overpacked the drums and removed them from the Parcel, Magnum had examined and sampled the contents of each drum. The samples that Magnum had collected from the drums were sent to the laboratory for analysis. The analysis revealed the following: drum number 11 contained oil, barium, lead and toluene and had a flashpoint of less than 100 degrees Fahrenheit; drum number 2 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 3 contained oil mixed with water, as well as barium and lead, and had of flashpoint of between 101 and 139 degrees Fahrenheit; drum number 4 contained oil mixed with water, as well as barium, lead and chromium, and had of flashpoint of over 200 degrees Fahrenheit; drum number 5 contained the soil that had been contaminated by spillage from drum numbers 2, 3 and 4 and had of flashpoint of between 101 and 139 degrees Fahrenheit. Magnum properly disposed of the drums based upon the results of its analysis. The Department paid Magnum $6,135.00 from the Water Quality Assurance Trust Fund for the services Magnum performed. In requesting Magnum to perform these services and in paying Magnum $6,135.00 for having done so, the Department acted reasonably and prudently. The amount it paid Magnum was not excessive.2 The Department reasonably incurred other expenses (also paid from the Water Quality Assurance Trust Fund) totaling $390.13 in connection with its response to the report it had received concerning the abandonment of the four drums on the Parcel. The total amount the Department paid from the Water Quality Assurance Trust Fund to have these abandoned drums properly removed from the Parcel and disposed of was $6,525.13. The Department is requesting that Orchard View reimburse the Department for these costs.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department finding that it is entitled to recover from Orchard View, pursuant to Chapters 376 and 403, Florida Statutes, the $6,525.13 in costs it reasonably incurred in connection with its response to Incident Number 97-02-0234. DONE AND ENTERED this 15th day of June, 1998, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June, 1998.
The Issue The issue for determination in this case is whether Florida Administrative Code Rule 62-302.300(6) is an invalid exercise of delegated legislative authority because the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency.
Findings Of Fact The Parties The Department is the state agency authorized under Chapter 403, Florida Statutes, to regulate discharges of industrial wastewater to waters of the state. Under a delegation from the United States Environmental Protection Agency, the Department administers the National Pollution Discharge Elimination (NPDES) permitting program in Florida. The Department promulgated the rules in Florida Administrative Code Title 62 that are applicable to the permitting of wastewater discharges. FOPB is a non-profit Alabama corporation established in 1988 whose members are interested in protecting the water quality and natural resources of Perdido Bay. FOPB has approximately 450 members. About 90 percent of the members own property adjacent to Perdido Bay. James Lane is the president of FOPB. Jacqueline Lane and James Lane live on property adjacent to Perdido Bay. IP owns and operates a paper mill in Cantonment, Escambia County, Florida. IP is the applicant for the Department authorizations that are the subject of DOAH Case Nos. 08-3922 and 08-3923. Background When this rule challenge was filed, DOAH Cases Nos. 08-3922 and 08-3923 (the permit cases) involved challenges by these same Petitioners to four Department authorizations for IP: an NPDES permit, a Consent Order, an approved exemption for the experimental use of wetlands pursuant to Florida Administrative Code Rule 62-660.300, and a waiver related to the experimental use of wetlands. IP later withdrew its request for the experimental use of wetlands exemption and the related waiver. Petitioners were ordered to show cause why their claim regarding the invalidity of Florida Administrative Code Rule 62- 660.300 was not rendered moot by IP’s withdrawal of its request for the exemption. Subsequently, the challenge to the validity of Florida Administrative Code Rule 62-660.300 was dismissed as moot. At the commencement of the final hearing on June 22, 2009, FOPB and James Lane announced that they were withdrawing their rule challenges except with respect to Florida Administrative Code Rule 62-302.300(6), and that the only legal ground being asserted for the invalidity of the rule is that it is vague and vests unbridled authority in the Department. Petitioners’Standing Jacqueline Lane, James Lane and a substantial number of the members of FOPB swim, boat, and make other uses of Perdido Bay. Perdido Bay would be affected by IP's wastewater effluent. The challenged rule was applied by the Department to determine that IP's proposed industrial wastewater discharge was in the public interest. The Challenged Rule Florida Administrative Code Rule 62-302.300, is entitled "Findings, Intent, and Antidegradation Policy for Surface Water Quality." Subsection (6) of the rule states: Public interest shall not be construed to mean only those activities conducted solely to provide facilities or benefits to the general public. Private activities conducted for private purposes may also be in the public interest. Most of the permits that are issued by the Department are issued to private entities whose primary purposes are personal uses or the production of private incomes and profits, rather than solely to provide facilities or benefits to the general public.
The Issue The issue to be determined by this Order is whether the Request for Administrative Hearing filed by Petitioner with the Department of Environmental Protection (“DEP”) on February 15, 2013, was timely1/ and, if not, whether the application of the doctrine of equitable tolling would serve to relieve Petitioner of the consequences of having failed to file a petition for hearing within the time allotted by applicable notice provisions.
Findings Of Fact The Parties Petitioner, SRQUS, LLC, is an active Florida, limited- liability corporation, and is the owner of submerged lands and adjacent upland property contiguous to Sarasota Bay. Petitioner is a closely held entity, the only members being Achim and Erika Ginsberg-Klemmt. Respondent, Department of Environmental Protection, is an agency of the State of Florida having jurisdiction for permitting Municipal Separate Storm Sewer Systems (MS4), including duties as a federally-approved state program for the implementation of the Federal National Pollutant Discharge Elimination System (NPDES) Program, pursuant to authority conferred under section 403.0885, Florida Statutes. Respondents, Sarasota County, City of Sarasota, City of Venice, Town of Longboat Key, and Department of Transportation (“DOT”) (collectively the “Applicants”) are responsible for certain existing stormwater point-source discharges to waters of the state from those portions of MS4 facilities owned or operated by one or more of the individual Applicants. The DEP issued a notice of proposed agency action to issue a renewal of an existing MS4 Permit to the Applicants. On January 30, 2013, Sarasota County arranged for the notice to be published in the Sarasota Herald-Tribune, which is a newspaper of general circulation in Sarasota County. The notice provided as follows: STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION NOTICE OF INTENT TO ISSUE PERMIT AND REQUEST FOR ADMINISTRATIVE HEARING The Department of Environmental Protection gives notice of its intent to issue a permit to Sarasota County, 1660 Ringling Boulevard, Sarasota, Florida 34236 within its jurisdiction and including the following co- permittees: Florida Department of Transportation District One, Town of Longboat Key, City of North Port, City of Sarasota, and City of Venice, for renewal of a Municipal Separate Storm Sewer System [MS4] permit. Any person whose substantial interests are affected by the proposed permitting decision of the Department may petition for an administrative hearing in accordance with Sections 120.569 and 120.57 of the Florida Statutes (F.S.). The petition must contain the information set forth below and must be filed (received) in the Department of Environmental Protection, Office of General Counsel, Mail Station 35, 3900 Commonwealth Boulevard, Tallahassee, Florida 32399-3000. Petitions must be filed within fourteen days of publication of this public notice or within fourteen days of receipt of the notice of intent, whichever occurs first. A petitioner must mail a copy of the petition to the applicant at the address indicated above, at the time of filing. The failure of any person to file a petition [or a request for mediation, as discussed below] within the appropriate time period shall constitute a waiver of that person?s right to request an administrative determination (hearing) under Sections 120.569 and 120.57, F.S., or to intervene in this proceeding and participate as a party to it. Any subsequent intervention will be only at the discretion of the presiding officer upon the filing of a motion in compliance with Rule 28-5.207 of the Florida Administrative Code. A petition must contain the following information: The name, address and telephone number of each petitioner, the Department Permit Number and the county in which the MS4 is located; A statement of how and when each petitioner received notice of the Department?s action; A statement of how each petitioner?s substantial interests are affected by the Department?s action; A statement of the material facts disputed by the petitioner, if any; A statement of facts that the petitioner contends warrant reversal or modification of the Department?s action; A statement of which rules or statutes the petitioner contends require reversal or modification of the Department?s action; and A statement of the relief sought by the petitioner, stating precisely the action that the petitioner wants the Department to take. Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the final action of the Department may be different from the position taken by it in the notice of intent. Persons whose substantial interests will be affected by any such final decision of the Department on the permit revision have the right to petition to become a party to the proceeding, in accordance with the requirements set forth above. Mediation under Section 120.573, F.S. is not available for this proceeding. The permit application file and supporting data are available for public inspection during normal business hours, 8:00 a.m. to 5:00 p.m., Monday through Friday, except legal holidays, at Department of Environmental Protection, NPDES Stormwater Section, 2600 Blair Stone Rd. Room 560, Tallahassee, Florida 32399-2400, phone number (850) 245-8430. Date of pub. January 30, 2013. Because a portion of the Town of Longboat Key extends into Manatee County, the Town of Longboat Key arranged for the notice to be published in the Bradenton Herald, which is a newspaper of general circulation in Manatee County. The notice was published on February 4, 2013. The substance of the notice, except for the date of publication, was identical to that published in the Sarasota Herald-Tribune. Neither Petitioner, nor its representatives, saw either of the published notices prior to the filing of the Petition. On or about February 8, 2012, as a result of the filing of a pre-hearing stipulation in related litigation involving an Environmental Resource Permit (“ERP”) issued by the Southwest Florida Water Management District (“SWFWMD”), Petitioner became aware of the existence of the MS4 Permit. Erika Ginsberg-Klemmt obtained a copy of the permit online, and on February 12, 2013, sent an e-mail to employees of the DEP Ft. Myers? office expressing her general concern with water quality from the disputed stormwater outfall. She expressed her belief that Sarasota County was in violation of the existing MS4 permit, and requested that the recipients of her e-mail “[p]lease be so kind as to look into this matter and let us know what could be done to prevent this unacceptable condition to continue unchecked like it did in the past.” The e-mail did not request any information regarding the MS4 Permit renewal application, nor did it request any information regarding notices or deadlines related to the application. On February 13, 2013, Christopher Wright, a consultant for Petitioner, called the DEP to gather information and do some “legwork” related to Petitioner?s challenge to the SWFWMD?s ERP. The purpose of the call was to determine if information submitted to the DEP in conjunction with the MS4 application, particularly drainage basin maps, could have been of use in the SWFWMD litigation. Mr. Wright spoke with DEP employee, Heather Ritchie, regarding the drainage basin maps that had been submitted to the DEP. During the course of their discussion, Ms. Ritchie advised Mr. Wright that a Notice of Intent to issue the MS4 Permit had been issued by the DEP. However, Ms. Ritchie did not know when Sarasota County had published the notice or when the deadline for challenging the proposed agency action was to run. In short, Ms. Ritchie expressed to Mr. Wright that “she didn?t know what the status of things were.” The discussion then went back to the primary substance of the call, which was watersheds and discharge points. Ms. Ritchie agreed to provide Mr. Wright with an electronic copy of a drainage map from the MS4 Permit file. At 12:43 p.m., on February 13, 2013, Ms. Ritchie sent a map to Mr. Wright via e-mail, and indicated that “[i]f you have additional questions or comments, you may call or e-mail me.” Later on the afternoon of February 13, 2013, Mr. Wright decided that he should ask Ms. Ritchie for a copy of the Notice of Intent. At 5:59 p.m., on February 13, 2013, after the close of business for the day, Mr. Wright wrote to Ms. Ritchie thanking her for her “rapid response to my inquiry today,” and providing her with comments on various basin areas and discharge structures. Mr. Wright concluded his e-mail by stating that “at this time I would also like to request a copy of the Notice of Intent to Issue the MS4 Permit.” The next morning, February 14, 2013, Ms. Ritchie provided Mr. Wright with the Notice of Intent to Issue the MS4 Permit as requested. Later that morning, Mr. Wright inquired as to the time for filing a challenge to the permit. Ms. Ritchie replied at 2:34 p.m. that afternoon that the MS4 Permit “was publicly noticed by the county on January 30th with a 14 day window. The window closed yesterday.” There is no evidence that Ms. Ritchie had any specific information as to the date of publication or the deadline for filing a challenge prior to that communication with Mr. Wright. Petitioner filed the Petition on February 15, 2013. The disputes identified in the Petition were directed exclusively at a 46-acre drainage basin in downtown Sarasota, and a related discharge structure that discharges stormwater from the basin to Sarasota Bay just south of the intersection of U.S. Highway 41 and Fruitville Road. The disputed basin and discharge point are located in Sarasota County.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Environmental Protection, issue a final order dismissing Petitioner?s Request for Hearing and Amended Petition for FLS000004-004 on the ground that the Petition was not timely filed. DONE AND ENTERED this 18th day of October, 2013, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 18th day of October, 2013.
Findings Of Fact At all times relevant hereto respondents, Selma Fruman and others, were the owners of a 14-unit apartment complex known as the Greenville Apartments located at 1701 North Treasure Drive North Bay Village Florida. Respondents hold license number 23-8285 issued by petitioner, Department of Business Regulations Division of Hotels and Restaurants (Division), and are subject to that agency's regulatory jurisdiction. On or about September 2D 1985, a Division environmental health specialist conducted a routine inspection of respondents' facility to determine if health and safety standards were being maintained. All such facilities must be inspected at least twice during each fiscal year. The inspection was made in the presence of respondents' representatives. The specialist found the following items to be in noncompliance with Division rules: fire extinguishers were not recharged as required by Rule 7C-1.04(1), Florida Adminis- trative Code, combustible and flammable materials were stored in the electric meter room in viola- tion of Rule 7C-1.03(2), Florida Administra- tive Code, the building had flaking and peeling paint in contravention of Rule 7C-1.03(1), Florida Administrative Code, and trash, debris and junk were lying in the rear of the property in violation of Rule 7C- 1.03(5) and (7), Florida Administrative Code. Through testimony at hearing it was established that the deviations from agency rules constituted a threat to the tenants' healthy safety and welfare. A copy of the report listing the above violations was sent to respondents by certified mail. The report warned that all violations must be corrected within ten days of receipt of the notice. The notice included the name and telephone number of the specialist who conducted the inspection. On October 23, 1985, the Division specialist returned to respondents' facility to ascertain if the deficiencies had been corrected. The specialist found none of the four items had been corrected. A notice to show cause was then issued by the Division on November 1, 1985. However, respondents apparently requested an informal conference to discuss the violations and one was scheduled on a later date. After missing the conference, the manager of respondents' facility (and brother of one of the owners) wrote a letter on December 20, 1985 requesting a second conference and advising that "the four items mentioned to be corrected Items a, b and c, have been done and the building has been scheduled for painting the second week of January, 1986." On January 24, 1986, the specialist made a return visit to the facility and found items a and b had been corrected while the violations in items b and c were unrepaired. At an informal conference held on January 29, 1986, respondents disputed the findings of the Division and requested a formal hearing. That prompted the instant proceeding.
Recommendation Based on the foregoing, it is RECOMMENDED that respondents be found guilty as charged in the notice to show cause, and that a $2,000 civil penalty be imposed to be paid within thirty days from date of the final order entered in this proceeding. DONE and ORDERED this 15th day of May, 1986, in Tallahassee Florida. DONALD R. ALEXANDER 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 15th day of May, 1986. COPIES FURNISHED: Lynne A. Guimby, Esquire Department of Business Regulation 725 S. Bronough Street Tallahassee Florida 32301 Mr. Morris Liebman 1701 N. Treasure Drive North Bay Village, Florida 33141 Mr. R. Hugh Snow, Director Division of Hotels & Restaurants Department of Business Regulation 725 S. Bronough Street Tallahassee Florida 32301
The Issue The issues are whether David Boston should be issued an environmental resource permit and sovereign submerged lands authorization allowing him to construct 96 linear feet of rip rap revetment; construct a private dock of less than 1,000 square feet; and place 3,500 square feet of fill in non-jurisdictional areas; and whether he qualifies for a general permit to place a fill pad in isolated wetlands adjacent to the St. Johns River, a Class III waterbody.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this permitting dispute between neighbors, Petitioner, Vincent R. D'Antoni, Jr., contends generally that Respondent, David Boston (Boston), will cause flooding to Petitioner's property by reason of placing too much fill on an isolated wetland, which lies in the center of Boston's property. The filling is in conjunction with Boston's efforts to construct a single-family residence and private dock on his property, purchased in June 1998, which lies adjacent to the St. Johns River, a Class III waterbody, in Duval County, Florida. In preliminary decisions made on November 5, 1998, and January 21, 1999, Respondent, Department of Environmental Protection (DEP), "acknowledge[d] receipt" of Boston's intent to use a noticed general permit "to fill less than 4,000 square feet of an isolated wetland to facilitate construction of a single family home" on his lot (Case No. 99-2861), and gave notice of its intent to issue Boston an environmental resource permit and sovereign submerged lands authorization allowing him to construct a rip rap revetment and a dock and to place 3,500 square feet of fill in mainly non-jurisdictional areas (Case No. 99-1916). Although a number of objections were raised by Petitioner in his original filings, as clarified at the final hearing, Petitioner now contends that Boston placed excessive fill on his lot, including an isolated wetland, and that the fill has resulted in flooding, saturated soil, or standing water on Petitioner's property. He also contends that the location of Boston's proposed dock will affect the ability to use his own dock. Because no evidence was presented on the docking issue, and through admissions Petitioner acknowledged that there will be no adverse environmental impacts, no consideration will be given to those objections. Finally, Petitioner does not object to the placement of the rip rap revetment on the shoreline. Accordingly, the request for an environmental resource permit and consent to use sovereign submerged lands in Case No. 99-1916 should be approved. The property in issue lies just south of the Jacksonville University Country Club and a few blocks west of University Boulevard North on Wayland Street, which fronts the eastern side of the St. Johns River in a tract of land known as University Park. Except for the Boston lot, all other waterfront lots are now developed. When facing the river from Wayland Street, Petitioner's lot lies to the right of Boston's lot, while another lot owned by Robert Henderson (Henderson) lies to the left of Boston's lot. The lots are up to 500 feet deep; Boston's lot is around 96 feet wide, while Petitioner's lot has a similar width but narrows to only 20 feet or so near the river. At the river end of the D'Antoni, Boston, and Henderson lots is an area of contiguous wetlands. Until 1995, DEP regulated those wetland areas and this prevented D'Antoni and Henderson from placing any fill in those areas. Under DEP's current wetland delineation rule, however, such areas are non- jurisdictional, and any placement of fill at the river end is outside the purview of DEP's jurisdiction. Before Boston's lot was cleared and filled, it was about a foot lower in elevation than the D'Antoni lot; this was true even though Petitioner has never changed the natural grade of his property since it was purchased and developed. Therefore, water tended to flow naturally from an upland area north or east of the D'Antoni lot, through the D'Antoni lot to Boston's lot, and then through the lower part of the Henderson lot populated by "very mature cypress trees," and eventually into the St. Johns River. According to a 1977 aerial photograph, the Boston lot contained what appears to be a tidal connection from an uplands area through the wetlands on his property to the river. However, construction on property adjacent to the Henderson lot sometime after 1977 severed this connection, and a tidal connection (direct hydrologic connection) to the river no longer exists. Under Rule 62-341.475(1)(f), Florida Administrative Code, "a single family residence" is exempt from the Environmental Resource Program permitting and a general permit will be granted "as long as it is not part of a larger plan of common development," and "the total area of dredging or filling in isolated wetlands for the residence and associated residential improvement shall not exceed 4000 square feet." Since there is no longer a direct hydrologic connection between the wetlands on Boston's property and the St. Johns River, the wetlands are isolated within the meaning of this rule. Availing himself of the foregoing provision, on October 19, 1998, Boston gave notice to DEP "of [his] intent to use a noticed general permit to fill less than 4,000 square feet of an isolated wetland" on his property. He also provided certain drawings and other information (prepared by his surveyor) to show that he qualified for the permit. DEP does not "issue" a noticed general permit; rather, it only determines whether the applicant qualifies for a permit and then "acknowledges" this fact. Accordingly, on November 5, 1998, DEP "acknowledge[d] receipt" of Boston's notice. Although DEP encourages the user of such a permit to notify affected or adjoining property owners, there was no legal requirement that Boston do so, and he proceeded to clear the lot and then fill a part of the wetland area with two or three feet of dirt without giving notice to Petitioner or Henderson, his two neighbors. The filling raised the elevation of the Boston property at least two feet above the D'Antoni and Henderson lots and impeded the prior natural flow of water. At the same time, Boston constructed a three to four-foot timber wall (consisting of railroad ties) on the Henderson property line to retain the fill and a similar two-foot wall on Petitioner's line. These changes had the effect of impounding the water which had previously flowed naturally in a north-south direction through the wetlands from the D'Antoni lot to the Boston lot to the Henderson lot. It also generated runoff from the Boston lot to the D'Antoni lot, which had not previously occurred. When Petitioner observed the adjacent lot being cleared and filled, and the resulting erosion of fill onto his property, pooling of water, and damage to his chain link fence after a heavy rain in January 1999, he filed a complaint with DEP. An inspection was made by DEP, and Boston was told to stop work until corrective changes were made to ensure that such flooding would not occur. After a series of changes were made which satisfied DEP's concerns, the stop work order was lifted. Boston also signed a consent order and paid a $100.00 fine. However, pending the outcome of these cases, no further construction work has occurred. Petitioner has contended that Boston has placed more than 7,200 square feet of fill on his property in violation of the rule, which limits the amount of fill to less than 4,000 square feet. While this amount of filling has in fact occurred, approximately 3,500 square feet of fill was placed in non- jurisdictional areas between the shoreline and the isolated wetlands, and the rule only requires that Boston limit his fill to less than 4,000 square feet on the isolated wetland. Thus, contrary to a suggestion by Petitioner's engineer, the jurisdictional and non-jurisdictional filling are not totaled together to determine whether the threshold within the rule has been exceeded. Through photographs received in evidence and testimony by Petitioner and his wife, it was established that flooding or standing water has occurred on Petitioner's property during heavy rainfalls since the filling occurred, even as recently as January 2000. The evidence further shows that Petitioner's chain link fence has been damaged through the weight of the fill pressing against the fence. In addition, Petitioner has suffered the loss of "a couple of trees" because of "mucky" and "oversaturated" soil caused by excessive water. Also, a dog house on a raised platform in the back yard which was previously dry now "stays in water." These affected areas lie immediately adjacent to the filled area of the isolated wetland on Boston's property. Finally, there is an erosion problem beyond the isolated wetland consisting of sand and silt flowing from Boston's lot onto Petitioner's lot during heavy rainfalls. Despite these problems, Petitioner does not object to the development of the lot; he only asks that Boston do so in a manner which prevents these conditions from recurring in the future. Petitioner's engineering expert, Ronnie D. Perron (Perron), a professional engineer who visited the site in August 1999, ran a computer model (Interconnected Channel and Pond Routing, Version 2.11) showing runoff both before and after the fill was placed on Boston's lot. He concluded that "there was over one and a half feet of flooding in that wetlands due to filling Mr. Boston's lot" during a "mean annual storm event," which assumes five inches of rain during a 24-hour period. Even when he used more conservative estimates, Perron still arrived at water accumulations ranging from 0.6 feet to 1.5 feet. This excessive runoff is caused by the retaining wall and fill, which "blocks off" the water and causes it to "spread out in [Petitioner's] whole back yard." In response to Perron's model, a DEP professional engineer, David P. Apple (Apple), ran another computer model (PONDS, Version 2.25) received in evidence as Respondent's Exhibit No. 14. That model shows that during a three-year, one- hour storm event, the small depressed area on Boston's property (including the isolated wetland) had sufficient storage capacity to absorb up to six inches of runoff from off-site areas and not overflow back onto Petitioner's property. This size of storm event (which produces two and one-half inches of rain in an hour) is typically used by the Department in calculations for single- family residential property when the impervious area site is less than fifty percent. In this case, Apple didn't "feel that the impervious area out there was greater than [fifty] percent." Therefore, Apple concluded that the storm event used by Perron was too large, and that the smaller event used in his model was more appropriate. He also concluded that the Boston property could retain all water in a normal storm event without discharging any stormwater onto the D'Antoni lot. He did not, however, address the issue of the fill and retaining wall on the Boston lot impounding the water on his neighbor's lot. In developing the input perameters for his model, Apple assumed that water falling at the front (Wayward Street) side of the D'Antoni property drained to the front roadway; in fact, much of that water drains to the rear of the lot into the wetland area. A similar incorrect assumption was made regarding runoff on the Boston lot. If modifications were made to account for the proper drainage patterns, the Apple model would show larger amounts of water staging on the Boston property during rainfall events, which would increase the possibility of runoff onto the D'Antoni lot. Apple questioned the accuracy of the Perron model given the fact that Perron had used a larger storm event than he (Apple) believed was appropriate. However, even if Perron had used a three-year, one-hour storm event on his computer model, as advocated by Apple, he established that it would have resulted in flood staging on Petitioner's property between 0.97 and 1.64 feet during a smaller storm event. DEP proposed no solutions to the water problems on the D'Antoni lot, presumably because it concluded that the rule was satisfied; that by filling the Boston lot, it was no longer the "stormwater pond for the neighborhood runoff"; and that DEP had no other regulatory authority to solve this peculiar situation. The record shows clearly, however, that if no changes are made, water will continue to back up on Petitioner's property by virtue of the higher elevation on the Boston lot, and the possibility of runoff from Boston's lot exists during certain storm events. Neither condition existed before the fill was added. To correct the foregoing conditions, Perron proposes two corrective measures. First, Boston should install a yard drain (underground culvert) beginning in the wetlands area of his property and outfalling to the cypress trees on the adjacent Henderson lot. Besides providing an outfall for the excess water, this would also help recharge the mature cypress trees on the Henderson lot. Second, D'Antoni should install a series of "yard drains" using high-density polyethylene pipes to convey the standing water on his lot directly into the St. Johns River. The expert opined that neither activity would require a permit from DEP. These modifications are reasonable and appropriate and should be used by the factioning parties. Accordingly, the installation of a yard drain should be a condition for Boston to use his noticed general permit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Environmental Protection enter a final order granting the application for a permit and consent in Case No. 99-1916 and confirming that David Boston qualifies for use of a noticed general permit in Case No. 99-2861 provided, however, that such use be conditioned on Boston constructing an underground culvert with a yard drain from the wetland area on his lot to the St. Johns River. DONE AND ENTERED this 22nd day of March, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 2000. COPIES FURNISHED: Kathy Carter, Agency Clerk Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Vincent R. D'Antoni, Jr. 3824 Wayland Street Jacksonville, Florida 32277 David Boston 2262 Orchard Street Jacksonville, Florida 32209 Francine M. Ffolkes, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000 Teri Donaldson, General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
The Issue The issue is whether Respondents should have an administrative penalty assessed, take corrective action on their property to remove fill, and pay investigative expenses for the reasons stated in the Notice of Violation, Orders for Corrective Action, and Administrative Penalty Assessment (Notice) issued by the Department of Environmental Protection (Department) on July 5, 2017.
Findings Of Fact Respondents’ residence is located at 3100 Victoria Drive, St. Augustine. The property, purchased in 2009, faces Victoria Drive to the west. The high point of the lot is where it abuts the street. It then slopes downward to a small creek which lies at the rear of the parcel. The largest elevation drop is at the front of the property. The Department has the authority to institute a civil or administrative action to abate conditions that may create harm to the environment. In this case, it filed a Notice directed against Respondents for allegedly placing fill on 0.11 acres of jurisdictional wetlands (around 5,000 square feet) located on their property. Mr. Ravan admits that he placed fill on his property without a permit, but he disputes the Department’s assertion that the filled area covers 0.11 acres of wetlands. Wetlands are areas that are inundated and saturated with water for a long enough period of time to support vegetation that can adapt to that environment. Fla. Admin. Code R. 62- 340.200(1). If the landward extent of a wetland cannot be determined by direct application of the rule definition, i.e., without significant on-site work, field verification using the wetland delineation methodology in Florida Administrative Code Rule 62-340.300 is required. Field verification involves a visual inspection of the site to evaluate vegetation, soil conditions, and other hydrologic indicators on the property. If two of these characteristics are found, the Department identifies the area as a wetland. In this case, field verification was necessary. In 2016, Mr. Ravan was involved in a dispute with a neighbor whose dog was repeatedly “messing” in his backyard. After words were spoken by the two, Mr. Ravan believes the neighbor informed the County that Mr. Ravan was placing fill in his back yard. This assumption probably is true, as emails from the County to the Department state that the case arose a few days later as a result of a “citizen complaint.” Pet’r Ex. 18. After receiving the citizen complaint, a County employee visited Respondents’ property. The employee informed Mr. Ravan that fill material (dirt) had been placed on jurisdictional wetlands without a permit. A few days later, the County reported the alleged violation to the Department. In response to the County’s referral, in September 2016, Ms. Sellers, a Department Environmental Specialist III, inspected the property with a County representative. In preparation for her visit, she reviewed aerials of the property to determine the elevation of the area, reviewed soil mapping layers, and drove around the site to verify the drainage patterns on the property and whether it had any connections to a water body. During her inspection, Ms. Sellers performed “a good analysis of the property” and took photographs of the filled area. The results of her inspection are found in a Chapter 62- 340 Data Form accepted in evidence as Exhibit 17. It supports a finding that the filled area consists of wetlands and covers around 0.11 acres. Respondents submitted no contrary evidence. After her inspection, Ms. Sellers informed Mr. Ravan that he must remove the fill. The Notice was issued on July 5, 2017. On a follow-up visit a year after her initial inspection, Ms. Sellers observed that some of the fill piles had been removed, the remaining fill had been spread throughout the area, and some of the vegetation observed in September 2016 was now covered. In a visit a few weeks before the final hearing in April 2018, Ms. Sellers observed that some fill still remained. To comply with the law, Mr. Ravan must remove the fill, obtain a permit, or enter into a consent order. If a permit is obtained, besides the cost of the permit ($420.00), Mr. Ravan would have to offset the environmental impacts by purchasing a mitigation bank credit, an expensive undertaking. If the fill is removed, it must be extracted with a small device, such as a wheelbarrow or other small piece of equipment, as a vehicle cannot be driven into the backyard. This will be a tedious and time-consuming process. The Department’s preferred option is to remove the fill. Because of the slope of the lot, mainly at the front of the parcel, Mr. Ravan has experienced drainage problems since he purchased the home in 2009. The drainage problem is caused by a County-owned culvert that runs along Victoria Drive, stops at the corner of his lot, and then dumps the runoff into his yard. Despite Mr. Ravan’s repeated efforts to obtain relief, the County has refused to correct the problem. During heavy rain events, the blocked culvert overflows into his yard and runs down the side of his property to the rear of the lot. Photographs support Mr. Ravan’s claim that the drainage problem has caused severe erosion on his property. Mr. Ravan testified that some of the fill was in place when he purchased the property from the prior owner in 2009. Because of its age, he contends the fill should be “grandfathered.” However, Ms. Sellers established that “historic fill” must be at least 20 years old in order to be immune from enforcement action. In this case, there is no proof that the fill qualifies for this exception. Mr. Ravan has cooperated fully with the Department throughout this proceeding. The evidence shows that Mr. Ravan acted in good faith and is only attempting to prevent runoff from the culvert, which has resulted in deep channels in the side and rear of his yard and washed away much of the top soil. There is no evidence regarding the derivation of the Department’s “investigative expenses” of at least $500.00. At hearing, Ms. Sellers summarized the proposed corrective action. This is a reasonable corrective action.1/ Mr. Ravan disputes her assertion that in some areas of the backyard, up to two feet of fill must be removed. He contends that if two feet of soil is removed, the water table would be reached. However, this issue must be resolved during the corrective action process.
