07-004526 St. Johns River Water Management District vs. A. Duda And Sons, Inc. Status: Closed Recommended Order on Tuesday, June 22, 2010.

Summary: SJRWMD proved that Respondent constructed works that required permits; Duda`s defenses (exemptions, already permitted, res judicata, estoppel, laches) not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JOHN'S RIVER WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 07-4526

)

A. DUDA AND SONS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On January 7-11 and 16-17, 2008, a formal administrative

hearing was held in this case in Altamonte Springs and

Tallahassee, Florida, before J. Lawrence Johnston, Administrative

Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth G. Oertel, Esquire

M. Christopher Bryant, Esquire

Oertel, Fernandez, Cole &

Bryant, P.A.

301 South Bronough Street, Fifth Floor

Post Office Box 1110

Tallahassee, Florida 32302-1110

For Respondent: Timothy A. Smith, Esquire

William H. Congdon, Esquire

St. Johns River Water

Management District

4049 Reid Street

Palatka, Florida 32178-2529

STATEMENT OF THE ISSUES

The issues in this case include: whether certain were

ditches dug and certain wetlands were filled by A. Duda and Sons,

Inc. (Duda) without required permits, as alleged by the St. Johns

River Water Management District (SJRWMD) in its Administrative

Complaint; if so, whether Duda proved one or more of its

affirmative defenses to SJRWMD's enforcement action, which

include the agricultural exemption set out in Section 373.406(2),

Florida Statutes, the maintenance exemption set out in Section

403.813(2)(g), Florida Statutes, authorization by permit, res

judicata , estoppel, and laches; and, absent a proven affirmative

defense to a proven violation, what remedy should be required.

PRELIMINARY STATEMENT

Before SJRWMD filed its Administrative Complaint against

Duda, Duda filed a rule challenge pertaining to SJRWMD's

interpretation of the agricultural exemption set out in Section

373.406(2), Florida Statutes. The rule challenge was given DOAH

Case No. 07-3545RU. Subsequently, SJRWMD filed its enforcement

action against Duda for filling wetlands and digging ditches

without a permit. Duda petitioned for a hearing, denying the

charges and raising several affirmative defenses, including the

agricultural exemption set out in Section 373.406(2), Florida

Statutes. Duda's enforcement petition was referred to DOAH,

given DOAH Case No. 07-4526, and consolidated for final hearing

with the rule challenge petition.

The consolidated cases were scheduled for final hearing on

January 7-11 and 15-18, 2008, in Altamonte Springs. The parties

filed a Joint Prehearing Stipulation on January 4, 2008.

At the final hearing, SJRWMD called: several employees,

Jennifer Cope, Marc Van Heden, Karen Garrett-Krause, Peter Brown,

and Jeff Elledge; a consultant with expertise interpreting aerial

photographs, Peter Gottfried; and Steve Johnson, president of The

Viera Company and a Duda vice-president. SJRWMD Exhibits 1, 6,

7, 9, 10, 13, 15, 17-19, 24, 26, 27, 29, 31 (pages 1406-07), 34,

(pages 1519-20), 36, 37 (pages 1577-78), 46-48, 63, 76, 80

(except for the length of the ditches, which was hearsay), 100,

102, 107-110, 115, 117, 120, 121, 123, 128-137, 138 (pages 4987

and 4989), 139-141, 153 (and summary book), 154, 156, 158, 159,

163-168, 170 (except for the polygons and ditches drawn on it,

which was hearsay), 171, 172, 174, 176, 177, 179, 185, and 193a-g

were admitted in evidence. SJRWMD Exhibits 157, 160, 161, 162,

and 190 were officially recognized. Ruling was reserved on

objections to SJRWMD Exhibits 51, 54-56, 80, 118, 124-126, and

170. Except for the hearsay objections to SJRWMD Exhibits 80 and

170, which are sustained, those objections are overruled at this

time, and the exhibits are admitted in evidence.

At the final hearing, Duda called: its vice-president,

Larry Beasley; retired Duda ranch manager, David Willis;

professional engineer, Hassan Kamal; soil scientist, Lewis

Carter; farmer and rancher, James Sartori; former Duda

professional engineer, Mike Howeller; Duda professional and

agricultural engineer, Pete Coultas; ecologist, William Lites;

and attorney, Terry Cole. Duda also introduced the transcripts

of depositions of District employees Vince Singleton (Duda Ex.

13A), Janice Unger (Duda Ex. 13B), and Victor McDaniel (Duda Ex.

13C). Duda Exhibits 1, 1A, 2-4, 13A-C, 15, 18-22, 24, 25, 28,

29, 31, 33-36, 38, 45, 52, 62 (page 2 of 4), 66-68, 71, 73, 77,

and 78 were admitted in evidence. Ruling was reserved on

objections to Exhibit 1 to Duda Exhibit 13C and to Duda Exhibits

46, 54-57, 59, and 91. At this time, those objections are

overruled, and the exhibits are admitted in evidence.

As agreed, at the end of the hearing, the consolidated cases

have been severed for entry of a separate Recommended Order in

this case, using the evidentiary record made in the consolidated

final hearing. The parties ordered a Transcript, which was filed

(in ten volumes) on January 29, 2008. The parties requested and

were given until March 10, 2008, to file proposed recommended

orders (PROs), which have been considered in the preparation of

this Recommended Order.

On March 21, 2008, SJRWMD filed a Notice of Supplemental

Authority pertinent to the standard of proof to be imposed on

SJRWMD, to which Duda responded "in opposition" (without moving

to strike) because the supplemental authority--a SJRWMD Final

Order, with DOAH Recommended Order, and appellate decision

affirming the Final Order--was not new or "inadvertently

overloaded [sic]." Duda's Exhibit 66 is the very Final Order

included as so-called supplemental authority, which necessarily

leads to research of the corresponding Recommended Order and

appellate decision. Although it is not necessary to refer to the

"supplemental authority," there is no reason not to do so.

FINDINGS OF FACT

History of the Property

1. In the 1950's Duda started acquiring property in Brevard

County between the St. Johns River system (including Lakes Winder

and Washington) and the Atlantic Ocean. Eventually, 38,000 acres

was acquired. The area is fairly flat but drains into the River.

Duda put the property to use for cattle ranching and other

agricultural uses, and it became known as Duda's Cocoa Ranch.

2. As early as the 1950's, ditches were dug on the Cocoa

Ranch. The primary purpose of these ditches was generally to

control groundwater levels to maintain the proper moisture

content within the root zone in the soil. This is most critical

on parts of the Ranch used for sod farming, and extensive ditch

networks were dug in those areas. This is because either too

little or too much moisture will inhibit crop production or kill

the crop. A somewhat less extensive network of ditches was dug

for areas of improved pasture. Even for unimproved, native range

pasture land on the Ranch, cattle forage was enhanced by

controlling groundwater levels to some extent. Enhanced forage

increased the carrying capacity of the improved and unimproved

land--i.e. , the number of cattle that could productively graze on

the land. Also, having groundwater too close to the surface was

undesirable for cattle grazing because cattle standing in water

can lead to hoof problems, and cattle should not sleep in

standing water. By 1981 numerous ditches of these kinds had been

dug throughout the ranch.

3. In addition to cattle and sod production, Duda used

portions of the Cocoa Ranch for timber production and for

harvesting cabbage palm trees to be sold live for landscaping

purposes. Construction of ditches allowed Duda to bring in the

necessary equipment to cut and haul out the timber, or to dig up

and transport the cabbage palms. In some areas, fill roads were

constructed to provide access to areas for timber harvesting. In

one case in the early 1990's, when construction of a fill road

would have blocked or hampered the operation of an existing

ditch, Duda dug a new connection to the ditch to change the flow

to avoid impounding water.

4. The ditches which are the subject of this proceeding

alter the topography of the land. They connect, directly or

indirectly through other ditches, to larger canals or ditches

that cut across the Cocoa Ranch in an east/west direction. These

larger canals are known as the Two-Mile, Four-Mile, Six-Mile, and

Seven-Mile canals, and the southern perimeter canal, all of which

drained by gravity flow to the St. Johns River. The southern

perimeter canal connects to the Two-Mile and Four-Mile canals,

and there also are culvert connections from the perimeter canal

southwest into a marsh between the perimeter canal and Lake

Washington.

5. The ditches in the sod farm portion of the Cocoa Ranch

are set out in grid patterns to better control groundwater

levels. They have control structures that allow water to be

either directed to the land under crop production in times of too

little moisture, or drained away in times of too much moisture

and either impounded in reservoirs for subsequent use or drained

into the larger ditch and canal system and ultimately to the

River.

6. The ditches in the improved and unimproved pasture lands

were dug in a random pattern generally connecting lower areas

that naturally pond. Some of these random ditches also have an

outfall ditch which drains to the larger ditch and canal network.

Some have control structures; some do not.

Pertinent Regulatory History of the Cocoa Ranch

7. In April 1987 Duda and other farmers and ranchers in

the Upper St. Johns River Basin signed a consent order with the

Department of Environmental Regulation (DER) to address water

quality concerns with discharges agricultural discharges to the

River. The Consent Order required the farmers and ranchers to

obtain permits for pumped discharges within five years.

8. In accordance with the Consent Order, on February 17,

1992, Duda applied to SJRWMD for a general permit for the pump-

drained, northern area of the Cocoa Ranch. The application

included a drainage study prepared by Mr. Hassan Kamal of BSE

Consultants, which recommended the excavation of various canal

cross sections and the replacement and/or abandonment of various

culverts, as shown on BSE drawings and also recommended that some

ditch sections be dug deeper than "shown on the plans." These

recommended improvements were on the gravity-drained, southern

portion of the Cocoa Ranch. A table showed that 660,000 cubic

yards of additional excavation was recommended.

9. In March 1992 SJRWMD asked in a request for additional

information (RAI) whether any of the improvements recommended by

BSE had been made. If so, the RAI asked for the permit covering

the work, or for a copy of the "no permit required letter." If

any improvements were made without a required permit, the RAI

required that the pending application be amended to include the

construction (in effect, to apply for an after-the-fact permit

for that construction).

10. Initially, Duda resisted making the gravity-drained

part of the Cocoa Ranch a part of its application. In a July

1992 response to the RAI, Duda acknowledged that some recommended

improvements had indeed been done, with excavation in the major

canals occurring in 1988 through 1991 and culvert replacements

occurring in 1989.

11. SJRWMD responded with another RAI in September 1992

that repeated the previous RAI, but added more detail, asking for

a list of all the improvements, a location map for each

improvement, a detailed description of each improvement, and pre-

and post-improvement cross section drawings, and an analysis to

demonstrate compliance with SJRWMD's permitting rules. The

September 1992 RAI also prohibited any new construction,

including land clearing, until a permit was issued.

12. On November 4, 1992, Duda responded to the September

1992 RAI with "a list of all improvements" and a "location map"

of them. The RAI response went on to describe specific work in

the major canals, which was represented to be all of the

modifications to the drainage system done by Duda.

13. On December 22, 1992, SJRWMD sent another RAI to Duda

that referenced the November 1992 response to RAI and asked Duda

to amend its application to include a detailed description of

each improvement, including engineering information to show that

the improvements complied with permitting requirements. As

before, this RAI also prohibited any new construction, including

land clearing, until a permit was issued.

14. In February 1993 Duda declined to provide the requested

assurances that improvements met the applicable permitting

requirements due to the enormity of the undertaking. Instead,

Duda relied on its response to the previous RAI.

15. In April 1993 SJRWMD staff prepared a Technical Staff

Report (TSR) recommending approval of the pump-drained portion of

the application and disapproval of the gravity-drained portion

because "the applicant has refused to respond to District staff's

requests to demonstrate the post-improved condition did/will not

result in higher peak discharge rates which may increase

downstream flooding" and referencing the permit requirements not

satisfied for that reason.

16. Within a month after the issuance of the TSR, and

before the Governing Board took action on its recommendations,

Duda entered into a Consent Order with SJRWMD recognizing that

Duda was operating the pump-drained area after expiration of the

DER Consent Order expired on May 18, 1992, and agreeing to submit

within 60 days the information requested in the RAI of

December 22, 1993, to propose remediation of any work in the

major canals not meeting permitting requirements, and restoring

any unpermitted work in the major canals "if issuance of the

permit does not occur within one year." In separate provisions,

the SJRWMD Consent Order authorized Duda to construct a detention

pond in accordance with plans received by SJRWMD on February 17,

1993, and authorized continued operation of the drainage pumps in

the pump-drained part of the Ranch, provided certain operating

conditions were met. The SJRWMD Consent Order expired on June 1,

1993.

17. To provide reasonable assurances for the pump-drained

part of the Ranch and for the work in the major canals, Duda

submitted stormwater routing models. No other supporting

documentation was submitted by Duda.

18. On May 10, 1994, SJRWMD's Governing Board issued permit

#4-004-0435 to Duda. The permit described itself as:

A Permit Authorizing: Construction of a 452

acre wet detention reservoir to serve 2935

acres of pumped drained pasture also for the

continued operation of two pump stations

which drain 1830 acres of pasture and

drainage improvements recently completed in

the major canals draining 25,000 acres of

ranch.

Duda's Viera Development

19. In the 1980's, recognizing that its Cocoa Ranch was

next in line to accommodate Brevard County's population growth,

Duda formed Duda Lands, Inc. to get into the development

business.

20. Preliminary to filing a Development of Regional Impact

(DRI) application for the part of the Ranch east of I-95, Duda

retained Mr. Kamal of BSE Consultants to study the Ranch's

drainage system. BSE's preliminary report, entitled "Cocoa

Ranch-Duda DRI Preliminary Drainage Investigation, was dated

August 1988. The final report was provided as support for Duda's

application for the pump-drained part of the Ranch filed in

February 1992.

21. The objective of the BSE drainage study was "to

determine what improvements and modifications are necessary to

provide adequate drainage and flood protection for both existing

and proposed land uses." The drainage study analyzed the Ranch's

existing drainage characteristics and "recommended that the

improvements listed . . . be closely coordinated with the ongoing

land development."

22. In 1990 the DRI was approved, resulting in a 3,000-acre

DRI called Viera East. Duda Lands was renamed the Viera Company.

In 1993 the Viera Company submitted an application for a

substantial deviation from its approved DRI for a 5,800-acre

expansion onto the west side of I-95. The Master Plan map in the

substantial deviation application's executive summary showed

SJRWMD Purchases of Duda Land

23. In 1999 SJRWMD purchased from Duda approximately 14,000

acres of the Cocoa Ranch. The land purchased by SJRWMD was

parallel and adjacent to the St. Johns River. Currently, the

Ranch lies west of I-95, east of the River and Lake Winder, and

north of Lake Washington.

24. The land sold to SJRWMD along the perimeter canal

included the fill road paralleling the canal to its southwest.

2006 Dredge and Fill at the Perimeter Ditch

25. In August 2006 SJRWMD discovered that in June or July

of that year, Duda had excavated the perimeter ditch and

deposited the fill on the northwest side of the canal to create a

new fill road for Duda's use. The newly-created fill road was

approximately 16,000 feet long and 30 feet wide. At the same

time, SJRWMD discovered that Duda had cleaned out a ditch feeding

the perimeter canal labeled ditch F-17 and placed the spoil next

to ditch F-17.

26. The evidence proved that the spoil from the excavation

of the perimeter canal and ditch F-17 in 2006 was deposited in

wetlands as defined by Florida Administrative Code Rule Chapter

62-340, the wetland delineation rule of the Department of

Environmental Protection (DEP).

27. The only witness giving contrary evidence was Lewis

Carter, who acknowledged that the hydric soils and vegetation

necessary for a wetland were present where the fill was deposited

but he thought the area "probably would not meet the hydrology

requirement of a wetland . . . even though it still had the

hydric indicators and vegetation."

28. Mr. Carter's testimony was based on observations on a

single day. From that observation, he concluded that the

perimeter canal would exert such a strong influence that the

groundwater table would be two and a half to three feet below the

land surface where the fill was deposited next to the canal.

However, the evidence was that before the excavation in 2006 the

canal was only about a foot deep. At that depth, the canal would

not exert as much influence as it did after excavation, which

deepened the canal to 3-4 feet deep according to the evidence.

29. DEP's wetland delineation rule allows a hydrologic

analysis to refute a delineation based on soils and vegetation.

See Fla. Admin. Code R. 62-340.550. However, such an analysis

must be based on data "of such a duration, frequency, and

accuracy to . . . be representative of the long-term hydrologic

conditions." Id. Mr. Carter's single-day observation was not

enough to refute a wetland determination based on soils and

vegetation. Mr. Carter admitted he was unable to say whether the

area would be inundated for at least seven days or saturated for

at least twenty consecutive days, which the rule requires for a

hydrologic analysis to refute a delineation based on soils and

vegetation.

The Enforcement Ditches

30. In October 2006, while investigating the perimeter

canal violations, SJRWMD staff reviewed aerial photographs from

1994 and 1995 and discovered that ditches had been excavated

between those dates on various parts of the Cocoa Ranch not sold

to SJRWMD. For identification, SJRWMD referred to these ditches

by their location in seven different areas of the Ranch, labeled

A through G, and by number--e.g. , A-1. Collectively, SJRWMD

referred to them as the "enforcement ditches." Some have since

been deleted from the list of enforcement ditches after further

investigation and discovery in this case.

31. The enforcement ditches are in the native rangeland

parts of the Ranch, not in the sod farm or improved pasture

areas. All connect via the Ranch's overall surface water

management system to the main canals that drain to the St. Johns

River. Measured from the top of the banks, they are generally

from 10 to 20 feet wide; most are between 12 and 15 feet wide.

32. Based on aerial photographic interpretation, Duda

excavated the enforcement ditches between the beginning of 1987

and the end of 1993. Duda questioned whether some enforcement

ditches may have been dug earlier, become obscured by vegetation

over time, and just cleaned out at later dates. However, Duda

was unable to identify any enforcement ditches that pre-dated

1987. In addition, vegetation obscuring a ditch would form a

linear feature that an expert would be able to identify on an

aerial photograph. It is found that SJRWMD's evidence was

sufficient to prove when the enforcement ditches were dug.

33. The following enforcement ditches were dug during the

years 1984-1987: C-9, north of C-14; and C-14. The following

enforcement ditches were dug during the years 1987-1990: A-1; A-

2; F-1; and G-1 through G-9. The following enforcement ditches

were dug during the years 1990-1992: C-2; C-3; E-1 through E-11;

F-6 through F-8; F-10; F-11; and F-14 through F-16. The

following enforcement ditches were dug during the years 1992-

1993: C-1 through C-8; C-10 through C-13; C-15 through C-28; D-1

through D-7; F-2 through F-5; and F-9. The northern and southern

ends of Ditch B-1 were dug before 1969, but the middle section

was dug during 1990 through 1992. Only the middle section is

considered to be an enforcement ditch.

34. The enforcement ditches drain approximately 2,300 acres

of native rangeland on the Ranch. This approximation was

reasonable for purposes of SJRWMD's case.

35. SJRWMD proved that some of the lands drained by the

enforcement ditches are wetlands. The acreage of wetlands

drained by the enforcement ditches was not precisely determined

but was approximated to be between 500 and 650 acres.

36. SJRWMD's approximation was determined using DEP's

current wetland delineation Rule Chapter 62-340, not the wetland

delineation rule in effect before 1994, which might not include

some wetlands captured by the current rule. Nonetheless, based

on the totality of the evidence, the low end of the approximation

(i.e. , approximately 500 acres) would be a reasonable

approximation of the acreage of wetlands affected by the

enforcement ditches for purposes of SJRWMD's case.

Agricultural Exemption Defense

37. Neither construction of the perimeter canal by dredge

and fill in wetlands, nor the construction of the enforcement

ditches that drained wetlands, was consistent with the practice

of agriculture. See Final Order, DOAH Case No. 07-3545RU.

38. Even if those activities might be considered to be

consistent with the practice of agriculture, they had the

predominant purpose of impounding or obstructing surface waters.

The enforcement ditches obstructed surface waters in that they

had the effect of more-than-incidentally diverting surface water

from its natural flow patterns into the ditches, which drained

the wetlands affected by the ditches. SJRWMD reasonably

determined that the predominant purpose of the enforcement

ditches was to obstruct surface waters. See Final Order, DOAH

Case No. 07-3545RU.

Maintenance Exemption Defense

39. The enforcement ditches were new ditches when dug

between 1987 and 1993. Duda was not maintaining pre-existing

ditches.

40. The spoil from the excavation of the perimeter canal in

2006 was not deposited on a self-contained, upland spoil site

which would prevent the escape of the spoil material into waters

of the state. To the contrary, it was placed in wetlands and at

a site that would allow discharges to the canal and eventually to

the St. Johns River.

41. In addition, Duda did not prove that none of the

perimeter canal was dug deeper or wider in 2006 than initially

permitted. To the contrary, it appears that Duda dug it deeper

and wider in places.

1994 Permit Defense

42. While geographically covering the entire Cocoa Ranch as

it existed at the time, the 1994 Permit only permitted the

reservoir and works in the pump-drained area and, in the gravity-

drained area, the works in the major canals specifically

identified and supported by appropriate documentation in Duda's

application submittals. It did not permit the enforcement

ditches.

Res Judicata Defense

43. As part of the process leading to the 1994 Permit, the

1993 Consent Order addressed the detention pond and continued

operation of the drainage pumps in the pump-drained part of the

Ranch and the works in the major canals in the gravity-drained

part of the Ranch. It did not address the undisclosed

enforcement ditches.

Estoppel Defense

44. Duda takes the position that it understood from the

application process itself and from statements made by Carol

Fall, SJRWMD's lead employee on the processing of the Duda

application, and other SJRWMD staff that all existing ditches,

culverts, and control structures on the Cocoa Ranch would be

included in the individual permit ultimately issued to Duda in

1994 (or "grandfathered").

45. It was unreasonable for Duda to infer from the

application process that the undisclosed enforcement ditches

would be included in the eventual permit or "grandfathered."

Likewise, it was unreasonable for Duda to infer from statements

made by SJRWMD staff that the undisclosed enforcement ditches

would be included in the eventual permit or "grandfathered." It

was reasonable for Duda to believe that the obvious, extensive

network of feeder ditches in the sod farm and perhaps improved

pasture portion of the Ranch would be included in the eventual

permit or "grandfathered," but not undisclosed ditches in the

less accessible native rangeland and timbered parts of the

38,000-acre Ranch, many of which were being dug during the

application process.

46. Even if it were reasonable for Duda to infer from the

application process itself or from statements made by SJRWMD

staff that existing enforcement ditches would be included in the

eventual permit or "grandfathered," Duda did not prove that it

actually relied on any such inference. To the contrary, Mr.

Beasley testified that Duda believed the ditches being dug during

the application process were exempt from permitting.

Laches Defense

47. Duda presented evidence from which it seeks an

inference that SJRWMD staff had actual knowledge of the existence

of at least some of the enforcement ditches 15 years ago and a

finding that the delay in bringing this action has prejudiced

Duda.

48. SJRWMD staff was on the 38,000-acre Ranch from time to

time for various reasons. Most of the time, SJRWMD staff

accessed the Ranch using the roads alongside the main canals and

some of the other roads mostly in the more intensively-used parts

of the Ranch. Carol Fall once drove by Ditches F-1, F-12, and

F-13. It was suggested that she or other SJRWMD staff also may

have seen other enforcement ditches while on the Ranch. But it

was not clear from the evidence that any of the enforcement

ditches were visible to any SJRWMD staff, or (if they were)

whether SJRWMD staff actually saw any enforcement ditches, or (if

they did) whether SJRWMD would have had any way of knowing that

the ditches were unlawful as opposed to grandfathered ditches dug

before the Warren S. Henderson Wetlands Protection Act in 1984.

49. SJRWMD takes the position that Duda suffered no

prejudice from any delay in bringing enforcement proceedings

because SJRWMD is seeking now only what it would have sought on a

timelier basis. Depending on how timely the enforcement

proceedings, that might be true as to the older enforcement

ditches. But it also is possible that, again depending on how

timely the enforcement proceedings, Duda might have chosen not

dig some of the subsequent enforcement ditches and would not be

faced with either having to undergo after-the-fact permit

proceedings or expensive restoration as to the subsequent

enforcement ditches. Nonetheless, the alleged prejudice was

speculative and not proven by a preponderance of the evidence.

50. The only other evidence of prejudice from the delay in

bringing enforcement proceedings was the possibility that

witnesses to refute SJRWMD's case-in-chief or support Duda's

affirmative defenses no longer can be found and some of Duda's

witnesses no longer could remember specifics related to SJRWMD's

case-in-chief or Duda's affirmative defenses, including the

laches defense. However, Duda did not prove more than a

possibility that such evidence helpful to Duda's case could have

been presented in timelier enforcement proceedings, or that it

might have been helpful enough for Duda to prevail on the issues.

51. Finally, Duda did not prove that it has "clean hands"

for its laches defense. In light of the RAIs issued in the

application process leading to the 1994 Permit, Duda had numerous

opportunities if not direct requests for information about works

on the gravity-drained part of the Ranch, which would include the

enforcement ditches. Duda also had an agreement with SJRWMD that

it would advise SJRWMD of any new ditch construction. Not having

disclosed the existence of the enforcement ditches, Duda cannot

now claim "clean hands."

Requested Corrective Action

52. SJRWMD seeks alternative corrective action for the 2006

perimeter ditch dredge and fill and for the earlier enforcement

ditches: apply for an after-the-fact permit; restore the

wetlands impacted; or a combination of after-the-fact permit and

restoration. In the case of the 2006 perimeter ditch dredge and

fill, the requested restoration would consist of removing the

fill, depositing it in an upland area, returning the area beneath

the fill to its historic grade, monitoring for the return of

appropriate wetland vegetation, and planting and monitoring

planted wetland vegetation if necessary to complete restoration.

In the case of the earlier enforcement ditches, the requested

restoration would consist of filling the ditches and roller-

chopping shrubby vegetation that invaded former freshwater

marshes after the ditches altered hydro-periods. The former

freshwater marshes to be roller-chopped are the depressions

circled in neon green on SJRWMD Exhibit 139.

53. The alternative corrective actions are reasonable.

Certainly, an after-the-fact permit and restoration of the 2006

perimeter ditch dredge and fill are reasonable. As to

restoration of impacts from the earlier enforcement ditches, the

evidence was not sufficient to specifically pinpoint all former

wetlands, as defined before 1994, affected by the enforcement

ditches. However, it is reasonable to infer that the depressions

circled on SJRWMD Exhibit 139 were freshwater marshes that were

impacted by the enforcement ditches.

CONCLUSIONS OF LAW

54. DOAH's jurisdiction over this case is undisputed and

clear. SJRWMD's jurisdiction is part of its enforcement case in

the sense that SJRWMD has the burden to prove that Duda's alleged

activities required SJRWMD permits.

55. The parties disagree as to the standard of proof

required of SJRWMD in its enforcement case. SJRWMD maintains

that it must prove its case by a preponderance of the evidence,

whereas Duda insists on clear and convincing evidence. Each

cites Dept. of Banking and Finance v. Osborne Stern Company , 670

So. 2d 932 (Fla. 1996), as support. It is concluded that, under

the rationale of that decision, SJRWMD must prove its case-in-

chief by a preponderance of the evidence. See SJRWMD v. Modern,

Inc., et al. , 784 So. 2d 464 (Fla. 1st DCA 2001), aff'g , DOAH

Case Nos. 97-4389, etc. (SJRWMD Dec. 9, 1999; DOAH June 15,

1999).

56. The parties agree that Duda has the burden of proof its

affirmative defenses. Except for Duda's exemption defenses, the

parties agree that the standard of proof to be imposed on Duda is

a preponderance of the evidence. As to the exemption defenses,

SJRWMD contends in this case that the standard of proof is clear

and convincing evidence, citing Harper v. England , 124 Fla. 296,

301-302, 168 So. 403, 406 (Fla. 1936), Samara Development Corp. v

Marlow , 556 So. 2d 1097, 1100 (Fla. 1990), and Heburn v. Dept. of

Children and Families , 772 So. 2d 561, 563 (Fla. 1st DCA 2000).

However, in SJRWMD v. Modern, Inc., et al. , supra , SJRWMD

approved and adopted a recommendation that the standard of proof

is a preponderance of the evidence. It is concluded that the

usual preponderance of the evidence standard applies to Duda's

exemption defenses.

Proof of Alleged Violations

57. Based on the findings, it is concluded that Duda

dredged and filled wetlands in and along the perimeter canal in

2006 and dug the enforcement ditches during 1987 through 1993

without the permits required under Florida Administrative Code

Rules 40C-4.041 and 40C-44.041.

Agricultural Exemption Defense

58. Section 373.406(2), Florida Statutes, states:

Nothing herein, or in any rule, regulation,

or order adopted pursuant hereto, shall be

construed to affect the right of any person

engaged in the occupation of agriculture,

silviculture, floriculture, or horticulture

to alter the topography of any tract of land

for purposes consistent with the practice of

such occupation. However, such alteration may

not be for the sole or predominant purpose of

impounding or obstructing surface waters.

59. As found, Duda's dredge and fill of wetlands in and

along the perimeter canal in 2006 and the enforcement ditches dug

during 1987 through 1993 had the effect of draining wetlands and

more-than-incidentally trapping, obstructing or diverting surface

water. For those reasons, those activities were not exempt under

Section 373.406(2), Florida Statutes. See Final Order, DOAH Case

No. 07-3545RU.

Maintenance Exemption Defense

60. Section 403.813(2)(g), Florida Statutes, has been in

effect at all times pertinent to this case. During those times,

it has stated that a permit is not required under Chapter 373 for

the "maintenance of existing . . . irrigation and drainage

ditches, provided that the spoil material is deposited on a self-

contained, upland spoil site which will prevent the escape of the

spoil material into waters of the state."

61. To be exempt under this statute, ditch excavation must

be routine and custodial, having no more than a minimal adverse

environmental impact. See St. Johns River Water Management

District v. Modern, Inc. , supra ; Save the St. Johns River v. St.

Johns River Water Management District , 623 So. 2d 1193 (Fla 1st

DCA 1993); Corporation of the President of the Church of Jesus

Christ of Latter-Day Saints v. St. Johns River Water Management

District , 489 So. 2d 59, 61 (Fla. 5th DCA 1986), rev. denied , 496

So. 2d 142 (Fla. 1986). Duda did not prove that all of the

dredge and fill of wetlands in and along the perimeter canal in

2006 was routine maintenance or that any of the enforcement

ditches dug during 1987 through 1993 was routine maintenance. In

addition, Duda did not prove that the excavation spoil was placed

in uplands, much less a self-contained upland spoil site that

would not allow discharges to the St. Johns River. For those

reasons, it is concluded that Duda's dredge and fill of wetlands

in and along the perimeter canal in 2006 and the enforcement

ditches dug during 1987 through 1993 were not exempt under

Section 403.813(2)(g), Florida Statutes.

Authorization By Permit Defense

62. The language of the 1994 Permit is unambiguous with

respect to what is authorized. See Centenial Mortgage, Inc. v.

SG/SC, Ltd. , 772 So. 2d 564, 565 (Fla. 1st DCA 2000)(internal

citations omitted)(the existence of ambiguity in a written

instrument is a question of law). Therefore, parole or extrinsic

evidence in the form of staff RAI letters cannot vary or

contradict the terms of the Governing Board's unambiguous

permit). See Bucacci v. Boutin , 933 So. 2d 580, 583 (Fla. 3d DCA

2006); Jenkins v. Eckerd Corp. , 913 So. 2d 43, 52 (Fla. 1st DCA

2005).

63. Based on the findings, it is concluded that the

enforcement ditches dug by Duda during 1987 through 1993 were not

authorized by the 1994 Permit.

Res Judicata Defense

64. The 1993 Consent Order does not bar SJRWMD's case

against the enforcement ditches. When all parts of the 1993

Consent Order are read in pari materia , it cannot be reasonably

understood as authorizing the construction and operation of the

enforcement ditches. The first clause of paragraph 9, "to bring

the construction and the continued operation of [Duda's]

agricultural surface water management into compliance," refers to

construction of a detention pond and continued operation of the

drainage pumps in the pump-drained part of the Ranch, which are

described in other paragraphs of the Consent Order. The second

clause, "to address the unpermitted alterations to the surface

water management system," refers to the work in the major canals.

The fact that the Consent Order expired in May 1994 confirms that

the Consent Order was a part of the process leading to permit

issuance and did not authorize construction and operation of the

at-that-time unknown enforcement ditches.

65. It is concluded that SJRWMD is not barred by the

doctrine of res judicata by virtue of the 1993 Consent Order from

bringing the Administrative Complaint in this case against the

enforcement ditches dug by Duda during 1987 through 1993.

Estoppel Defense

66. The doctrine of estoppel would apply in this case if

SJRWMD, by word, act, or coduct, willfully caused Duda to believe

it could construct the enforcement ditches without a permit, and

thereby induced Duda to excavate those ditches, to its injury.

See Dept. of Health and Rehab. Services v. S.A.P. , 835 So. 2d

1091, 1096-97 (Fla. 2002). In addition, the word, act, or

conduct upon which Duda relied must be an action on which Duda

had a right to rely. See Monroe County v. Hemisphere Equtiy

Realty, Inc. v. Dept. of Labor and Employment Security , 634

So. 2d 745, 747 (Fla. 3d DCA 1994). Finally, equitable estoppel

will apply against a governmental entity only in rare instances

and under exceptional circumstances. See Associated Industries

Ins. Co., Inc. v. Dept. of Labor and Employment Security , 923

So. 2d 1252, 1254-55 (Fla. 1st DCA 2006).

67. It is concluded that Duda did not prove that SJRWMD is

estopped by virtue of statements or actions taken during the

process leading to issuance of the 1994 Permit from bringing the

Administrative Complaint in this case against the enforcement

ditches dug by Duda during 1987 through 1993.

Laches Defense

68. To establish laches, Duda had to prove: (1) that

SJRWMD had knowledge of Duda's violations but unreasonably

delayed in beginning enforcement action; and (2) injury or

prejudice to Duda as a result of the delay. See Nelson v. City

of Sneads , 921 So. 2d 760, 761 (Fla. 1st DCA 2006). Laches also

requires clean hands. See Goodwin v. Blu Murray Ins. Agency,

Inc. , 939 So. 2d 1098, 1105 (Fla. 5th DCA 2006).

69. It is concluded that SJRWMD is not barred by laches

from bringing the Administrative Complaint in this case against

the enforcement ditches dug by Duda during 1987 through 1993.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Governing Board enter a Final

Order requiring Duda to apply for the necessary after-the-fact

permit and/or restore wetland impacts, as described in Findings

52-53, supra .

DONE AND ENTERED this 25th day of April, 2008, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of April, 2008.

COPIES FURNISHED:

Kenneth G. Oertel, Esquire

M. Christopher Bryant, Esquire

Oertel, Fernandez, Cole &

Bryant, P.A.

301 South Bronough Street, Fifth Floor

Post Office Box 1110

Tallahassee, Florida 32302-1110

Timothy A. Smith, Esquire

William H. Congdon, Esquire

St. Johns River Water

Management District

4049 Reid Street

Palatka, Florida 32178-2529

Kirby B. Green, III, Executive Director

St. Johns River Water

Management District

4049 Reid Street

Palatka, Florida 32178-2529

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.