00-002391 Department Of Environmental Protection vs. Willie R. Gainey Status: Closed Recommended Order on Thursday, March 29, 2001.

Summary: Unnamed creek on Respondent`s property is jurisdictional wetland. Unpermitted fill should be removed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Petitioner , )

)

vs. ) Case No. 00-2391

)

WILLIE R. GAINEY , )

)

Respondent , )

___________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case

on February 15, 2001, at Panama City, Florida, before Claude B.

Arrington, a duly-designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner : Lynette Ciardulli, Esquire

Ashley D. Foster, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent : Willie R. Gainey, pro se

833 West Pierson Drive

Lynn Haven, Florida 32444

STATEMENT OF THE ISSUES

Whether the subject site is within Petitioner's permitting

jurisdiction and whether an earthen dam constructed at the

subject site required a permit? Whether Respondent should be

required to remove the earthen dam and/or be required to pay

Petitioner's investigative costs?

PRELIMINARY STATEMENT

On March 28, 2000, Petitioner filed a Notice of Violation

alleging that an unpermitted earthen dam had been constructed

across an unknown creek in jurisdictional wetlands on property

owned by Respondent. In this proceeding, Petitioner asks that

Respondent be required to remove what remains of the earthen dam

and that he be required to pay its cost of investigating this

alleged violation. Petitioner is not asking for the imposition

of an administrative fine. Respondent timely challenged the

allegations of the Notice of Violation, the matter was referred

to the Division of Administrative Hearings, and this proceeding

followed.

At the final hearing, Petitioner presented the testimony of

Victor Keisker and Jeffrey Rabinowitz and offered 5 exhibits,

each of which was accepted into evidence. Mr. Keisker and

Mr. Rabinowitz are environmental specialists employed by

Petitioner.

Respondent testified on his own behalf and presented the

additional testimony of Guy Dale Pettis (a superintendent with

Bay County Roads and Bridges Division), Johnny Joseph Broxson (a

longtime resident of the subject area), James M. Christian (a

longtime employee of Bay County Engineering Department), James

Kapinos (a drainage engineer for the Florida Department of

Transportation), James Douglas Gilmore, Jr. (an environmental

consultant and former employee of the United States Army Corps

of Engineers), and Dale Eilers (a longtime resident of the

subject area). Respondent's Exhibits 1-2, and 5-20 were

accepted into evidence. In the marking of Respondent's

Exhibits, number 3 was inadvertently skipped and Respondent's

Exhibit 4 was marked for demonstrative purposes only.

In his Proposed Recommended Order, Respondent 1/ states

the issue as follows:

The issue to be decided is whether the State

of Florida can take possession of private

property for the express purpose of running

storm water through a wholly excavated ditch

on the property without easement or

compensation to the property owner.

Respondent thereafter states that the following are

elements of his version of the issue:

1. Does the Respondent own the property

as alleged by the Petitioner . And does the

Petitioner have any legal claim to the

property.

2. Is there a creek running across the

Respondent's property.

3. Does any scientific analysis show the

Respondent's property to be a natural

wetland .

4. Does the highway department have the

right to re-excavate a highway right-of-way

ditch from its properly recorded right-of-

way onto a neighboring property without

easement or compensation .

5. Does the water management district

have the right to designate private property

as a drainage right-of-way and run the water

from city streets across private property

without an easement or compensation .

6. Does the Florida Department of

Environmental Protection have jurisdiction

to take property for drainage for the

designated water district by police and

civil action without easement or

compensation .

Respondent has misconstrued the matters at issue in this

proceeding. There is no dispute that the property at issue is

located on Respondent’s private property, and there is no

dispute that Petitioner does not have an easement or other

proprietary right over the property. There is also no dispute

that, as a private property owner, Respondent has certain rights

conferred by law and guaranteed by the Florida Constitution and

the United States Constitution. Petitioner’s exercise of its

statutory jurisdiction does not deprive Respondent of those

rights. Respondent’s assertion that the Florida Department of

Transportation and the City of Calloway have infringed on his

rights as a private property owner by the way the water is

drained from the area road system is not at issue in this

matter. The only two matters relevant to this proceeding as

stated by Respondent are what he designated above as elements 2

and 3 of the main issue.

A Transcript of the proceedings was filed on March 12,

2001. Each party filed a Proposed Recommended Order, which has

been duly-considered by the undersigned in the preparation of

this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the agency of the State of Florida that

regulates dredge and fill activities conducted in wetlands

within its statutory jurisdiction as set forth in Chapters 373

and 403, Florida Statutes.

2. Respondent owns the subject property, which is located

in the 200 block of Jan Drive in Section 18, Township 4 South,

Range 13 West, Bay County, Florida.

3. On July 22, 1999, Mr. Keisker met informally with

Respondent at Respondent’s request and made a field visit to the

subject property. Mr. Keisker told Respondent that he thought

the subject property was within Petitioner’s permitting

jurisdiction. Although Mr. Keisker took soil samples, surveyed

the plant life of the area, and observed the hydrology of the

area, his visit was not intended to be an official determination

that the subject property was within Petitioner's permitting

jurisdiction.

4. There is no dispute that an earthen dam was constructed

across the unnamed creek, described in findings of fact

paragraph 5, in late 1999 or early January 2000.

5. The central issue in dispute is whether the site of the

earthen dam is within Petitioner’s permitting jurisdiction.

Respondent asserts that the area at issue is a drainage ditch

that did not naturally occur and is not within the permitting

jurisdiction of Petitioner. Petitioner asserts that the area is

an unnamed creek in a historical, natural wetland that is within

its permitting jurisdiction. The greater weight of the

credible, competent evidence established that Respondent’s

property contains an unnamed creek that is located in an area of

historically natural wetlands that was likely excavated in the

1970's by the local Mosquito Control District. This area of

natural wetlands drains and connects into Rogers Pond and

Calloway Bayou, which are Class III waters of the State of

Florida. The site is within the permitting jurisdiction of

Petitioner. 2/

6. Respondent did not receive a permit prior to the

construction of the earthen dam. Construction of the earthen

dam constitutes unpermitted fill activity in a wetland within

Petitioner's regulatory jurisdiction.

7. Shortly after Petitioner received a complaint in

January 2000 that it had been constructed, the dam was partially

breached as the result of a heavy rain event.

8. To prevent further pollution of the unnamed creek, the

remaining portion of the earthen dam should be removed by non-

mechanical means.

9. Mr. Keisker testified that he calculated Petitioner’s

investigative costs based on the amount of time he expended in

investigating this matter multiplied by his hourly rate of pay.

In calculating his hourly rate of pay, he took his annual salary

and added to that 52 percent of his annual salary for fringe

benefits. He then divided that sum by 2000, which represents 50

work weeks of 40 hours per week. He used 50 weeks to calculate

the hourly rate to adjust for two weeks of paid vacation. Based

on his calculations, Mr. Keisker testified that Petitioner

incurred costs and expenses in excess of $750.00 during its

investigation of this matter.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

jurisdiction of the parties to and the subject of this

proceeding. Section 120.57(1), Florida Statutes.

11. Petitioner established that the subject unnamed creek

is surface water and waters of the state within the meaning of

Section 373.019(16) and (17), Florida Statutes. Petitioner

therefore has permitting jurisdiction over the unnamed creek

pursuant to the provisions of Chapters 373 and 403, Florida

Statutes.

12. Petitioner also established that the earthen dam

constitutes fill within the meaning of Section 373.403(14),

Florida Statutes, and Rule 62-312.020(11), Florida

Administrative Code.

13. Unless exempt, a permit is required from Petitioner

prior to placing fill within surface water. Rules 62-312.030

and 62-312.060, Florida Administrative Code.

14. Respondent's argument that his property is exempt from

Petitioner's jurisdiction pursuant to Section 373.4211(25),

Florida Statutes, is rejected. That provision exempts from the

Petitioner's jurisdiction areas that were not historical

wetlands, but became wetlands solely because of mosquito control

activities undertaken as part of a governmental control program.

Although there was evidence that the local Mosquito Control

District had excavated the subject area, the subject area is an

historical wetland that was not created by the mosquito control

activities. Consequently, the exemption relied upon by

Respondent does not apply.

15. Petitioner established that Respondent violated the

provisions of Sections 373.430(1)(b) and 403.161(1)(b), Florida

Statutes, by failing to obtain a required permit prior to the

construction of the earthen dam in the unnamed creek. Pursuant

to the provisions of Sections 403.061(8) and 403.121, Florida

Statutes, Petitioner has the authority to require Respondent to

remove the fill from the unnamed creek.

16. Petitioner asserts that it is entitled to recover from

Respondent the costs of its investigation pursuant to Sections

376.129(6) and 403.141(1), Florida Statutes.

17. Section 373.129(6), Florida Statutes, provides, in

part, as follows:

The department . . . is authorized to

commence and maintain proper and necessary

actions and proceedings in any court of

competent jurisdiction for any of the

following purposes:

* * *

(6 ) To recover investigative costs . . .

18. The provisions of Section 373.129(6), Florida

Statutes, apply to judicial proceedings brought in courts of

competent jurisdiction, not to administrative proceedings.

Consequently, those provisions do not apply to this proceeding.

19. Section 403.141(1), Florida Statutes, provides, in

part,

(1) Whoever commits a violation specified

in s. 403.161(1) is liable to the state for

any damage caused to the air, waters, or

property, including animal, plant, or

aquatic life, of the state and for

reasonable costs and expenses of the state

in tracing the source of the discharge, in

controlling and abating the source and the

pollutants, and in restoring the air,

waters, and property, including animal,

plant, and aquatic life, of the state to

their former condition, and furthermore is

subject to the judicial imposition of a

civil penalty for each offense in an amount

of not more than $10,000 per offense. . . .

20. Petitioner presented no evidence that the manner by

which Mr. Keisker computed Petitioner’s expenses is authorized

by statute or rule or that such computation represents

Petitioner's reasonable costs and expenses within the meaning of

Section 403.141(1), Florida Statutes. It is concluded that

Petitioner failed to establish its reasonable costs and expenses

of investigating this matter. Consequently, the recommendation

that follows does not include a recovery of Petitioner's costs

and expenses.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Petitioner enter a final order

adopting the findings and conclusions contained herein and

requiring Respondent to remove the remaining portions of the

earthen dam by non-mechanical means.

DONE AND ENTERED this 29th day of March, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of March, 2001.

ENDNOTES

1/ In their Proposed Recommended Orders, the parties

erroneously refer to Mr. Gainey as the Petitioner and to the

Department as the Respondent. The references in the Recommended

Order correctly reflect that the Department is the Petitioner

and Mr. Gainey is the Respondent.

2/ The testimony of Mr. Keisker and Mr. Rabinowitz

established that the subject area is a jurisdictional wetland.

Both made field visits to the site and observed the plant life

and the hydrology of the area. Respondent’s witness, Mr.

Gilmore, agreed that the subject area would meet the criteria

for Petitioner’s permitting jurisdiction. These witnesses were

able to express their opinions without soil samples.

COPIES FURNISHED:

Lynette Ciardulli, Esquire

Ashley D. Foster, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Willie R. Gainey

833 West Pierson Drive

Lynn Haven, Florida 32444

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.