02-004406 John M. Williams vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Monday, July 28, 2003.

Summary: Petitioner filed jurisdictional wetlands with "above-ground" septic tank system without a dredge and fill permit from the Department. System must be removed, but a fine is not appropriate as county erred in issuing a septic tank construction permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHN M. WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 02 - 4406

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

FINAL ORDER

This case was heard by David M. Maloney, Administrative Law

Judge of the Division of Administrative Hearings, on

May 7 and 8, 2003, in Destin, Florida.

APPEARANCES

For Petitioner: Parker B. Smith, Esquire

1219 Airport Road, Suite 311

Destin, Florida 32541

For Respondent: Robert Stills, Jr., Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUE

Whether Respondent John M. Williams deposited fill in

waters of the state without a permit from the Department of

Environmental Protection. If so, what is the appropriate

corrective action and penalty?

PRELIMINARY STATEMENT

On November 15, 2002, the Department of Environmental

Regulation ("DEP" or the "Department"), by a "Request for

Assignment of Administrative Law Judge and Notice of

Preservat ion of Record," notified the Division of Administrative

Hearings ("DOAH") that it had received a petition for an

administrative proceeding. The Secretary of DEP "having decided

not to act as hearing officer," DEP accordingly requested that

the matter be a ssigned to an administrative law judge to conduct

all necessary proceedings.

Attached to the notification was a document entitled

"Verified Petition for Administrative Proceeding," submitted by

counsel for John M. Williams. The petition requested a forma l

hearing in connection with matters set forth in a Notice of

Violation and Orders for Corrective Action (the "NOV") served on

or about July 16, 2002, on Mr. Williams.

The NOV, attached to the verified petition, charged that

DEP in February 2001 had dete rmined that Mr. Williams had

constructed a septic tank in a flood plain wetland, adjacent to

the Choctawhatchee River, without authorization from the

Department and in violation of Rule 62 - 312.060(1), Florida

Administrative Code. The NOV further ordered t hat the septic

tank be removed and that Mr. Williams pay $1,750 (the sum of an

administrative fine, economic benefit of non - compliance and

costs to the Department.)

The request of DEP was honored. The matter was assigned

DOAH Case No. 02 - 4406 and an admi nistrative law judge was

designated to conduct the proceedings. The matter was set for

hearing in March 2002. In the meantime, the matter was

transferred to the undersigned administrative law judge and was

continued to May 7 and 8, 2003.

At final hearin g, Petitioner testified and presented the

testimony of two witnesses: David Gurganus and Charles Riley.

Petitioner offered 15 exhibits marked as P1 - P15. All were

admitted into evidence. The Department called four witnesses to

the stand: Gary Woodiwiss ; Jack Wu, P.E.; Rod Maddox; and

John Tobe, Ph.D., an expert in wetland delineation and

identification. Twenty one exhibits, marked as R1 through R21

were offered by DEP. All were admitted into evidence.

On May 20, 2003, DEP filed a memorandum of law th at states,

"[i]n summation, Chapter 62 - 312 and 62 - 340 Florida

Administrative Code are the appropriate provisions for dredge

and fill activities in surface waters and wetlands located in

the geographical jurisdiction of the Northwest Florida Water

Managemen t District . . . ." The Department requested,

therefore, that the rules and statutes attached to its Request

for Judicial Notice submitted March 10, 2003, and re - submitted

March 27, 2003, be officially recognized. In response to the

memorandum, Petitione r stated that he "agrees with the position

of the Department (Respondent) concerning the law applicable to

this case." Petitioner's Submission of Law Applicable to Case ,

filed June 13, 2003. An O rder was entered on June 16, 2003,

granting the Department' s request and setting July 1, 2003, as

the deadline for filing proposed orders.

The transcript was filed on June 4, 2003. Petitioner filed

a timely Proposed Final Order. The Department opted not to file

a proposed order and filed a notice of its intenti on not to do

so on July 15, 2003. This F inal O rder follows.

FINDINGS OF FACT

Mr. Williams and the Cowford Subdivision

1. Petitioner John M. Williams is a retired mechanic. In

1992, he became acquainted with the Cowford subdivision in

Walton County, nea r Bruce, Florida. The subdivision fronts the

Choctawhatchee River.

2. Mr. Williams purchased lot 29 of the subdivision.

Three or four years later, he bought lot 30. All told,

Mr. Williams paid approximately $47,000 for the lots, an

electric power line and an "above - ground" septic tank. The

purchase price of the lots was $38,000. Running an electric

line and installation of an electric light pole cost about

$4,000. Mr. Williams paid about $5,000 for the septic tank and

its installation.

3. Mr. Will iams' ultimate goal in purchasing the lots and

adding the improvements was to build a house on the property for

use in his retirement.

Attempt to Obtain the Necessary Permits

4. The septic tank was not purchased by Mr. Williams until

after he had obtained a permit for its construction.

5. At the county offices where he went to obtain the

necessary permit, he was "sent over to the power company."

(Tr. 216). At hearing, he described what happened there:

I paid my money to get my power and they --

well, t hey informed me . . . once I got my

power on I had 6 months to get my septic

tank in the ground or they would turn my

lights off.

So here I had a $3,500 light pole put up and

I couldn't very well see this thing going

down. So, I went ahead to the Health

Department.

( Id. ) Mr. Williams' testimony is supported by a Walton County

Environmental Health Notice dated March 8, 1999, that states,

"The Walton County Building Department will not be issuing

approval for power for any residence until final approval o f the

septic system is obtained from the Walton County Environmental

Health Office." P7, the first page after Page 3 of 3, marked in

the upper right hand corner as PAGE 10.

6. At the Health Department, on April 12, 1999,

Mr. Williams applied for an "Onsi te Sewage Treatment and

Disposal System" permit on a form bearing the following heading:

STATE OF FLORIDA

DEPARTMENT OF HEALTH

ONSITE SEWAGE DISPOSAL SYSTEM

APPLICATION FOR CONSTRUCTION PERMIT

Authority; Chapter 381, FS &

Chapter 10D - 6, FAC

P7, page 1 o f 3. According to the form, he paid the $200 fee

for the permit on April 29, 1999. The payment was made within a

month or so after the installation of the power line.

7. An attachment to the "Walton County Environmental

Health Onsite Sewage Treatment a nd Disposal System Application,"

made out by Mr. Williams on April 12, 1999, contains the

following warning:

OTHER AGENCY PERMITS:

As the owner or agent applying for an

OSTDS permit it is my responsibility to

determine if the proposed development is in

co mpliance with the zoning requirements of

Walton County. I further assume

responsibility to obtain any applicable

permits from other State and Local

Government Agencies.

P15, page 2. (emphasis supplied) ( See also P7, the second page

after Page 3 of 3, m arked in the upper right hand corner as PAGE

11).

8. On May 5, 1999, about three weeks after Mr. Williams

submitted the construction permit application, the site where

the septic tank would be installed was evaluated by an EH

Specialist, an inspector. O n the same day, an Onsite Sewage

Treatment and Disposal System Construction Permit was issued for

an "above - ground" 900 - gallon septic tank.

Installation

9. With county personnel present and under county

supervision, the septic tank was installed on a rid ge on

Mr. Williams property about 17 feet above mean sea level. Fill

dirt was brought onto the site and placed on top of the tank to

create a septic tank mound. No dredging of the property was

done in connection with the installation.

Chance Discovery

1 0. After a complaint was registered with DEP about dredge

and fill activity on one of the lots near Mr. Williams,

Gary Woodiwiss, then an environmental specialist in the

Department assigned to conduct inspections in Walton and Holmes

Counties, visited the Cowford subdivision in July 2000.

11. During the visit, Mr. Woodiwiss noticed the septic

tank mound on Mr. Williams' property and that the mound, in

part, consisted of fill dirt. Being of the opinion that the

both the fill dirt and the septic tank syst em constituted "fill"

and that the fill may have been deposited in jurisdictional

wetlands, that is, "waters of the state," Mr. Woodiwiss

consulted with DEP personnel about the status of the site and

DEP jurisdiction. Ultimately, DEP determined that the s ite of

the septic tank mound, within the flood plain of the

Choctowhatchee River, was jurisdictional wetlands. The

Department took action.

DEP Action

12. On November 16, 2000, Mr. Woodiwiss issued a

memorandum to the DEP file with regard to "John Willia ms.

Unauthorized Fill in Flood Plain." The memo states:

Site is located next to Charles Riley who is

the subject of Department action for filling

jurisdictional wetlands. Williams was

erroneously given a permit by Walton County

health Dept. to install a septic system in

1999, which he subsequently installed. I

visited the site with the administrator for

the septic tanks program in Walton and she

indicated that they would pay for the

installation of a new system on a new lot

for Mr. Williams.

I recommen d that the removal of the system

and relocation of the inhabitants of the lot

to an area outside of the immediate flood

plain.

P6. (emphasis supplied)

13. Five days later, on November 21, 2002, a warning

letter was generated by Mr. Woodiwiss under the signature of

Bobby A. Cooley, Director of District Management for DEP. The

letter advised Mr. Williams as follows:

Recent Department survey data established at

your property has determined that your

entire lot is below the mean annual flood

line of the Ch octawhatchee River and is

subject to dredge and fill jurisdiction of

the Department. Any construction on the

property including placement of a mobile

home, septic tank and drainfield or other

structures must first receive a dredge and

fill permit from the Department.

Preliminary assessment of your proposed

development of the property indicates that

you may not meet the public interest

criteria of Chapters 403 and 373 Florida

Statutes for qualifying for a permit.

R5. By this letter the Department informe d Mr. Williams both

that he was in violation of the law by not having secured a

permit for the filling of the site and warned that, on the basis

of a preliminary assessment, it was not likely that he would be

eligible for an after - the - fact permit. The ass essment of

whether the site was eligible for a permit was re - stated in

writing again, but with added certainty in a Compliance

Assessment Form (the Form) prepared by DEP personnel. In

Section V. of the form, there appears, together with the

signature of the "Section Permit Processor and a date of

"11/09/2000", the following:

Project is not permittable due to type of

wetland system being impacted and project

must not be "Contrary to the Public

Interest". The project could affect the

public health, safety and welfare and

property of others. The project is of a

permanent nature.

P13.

14. Although the permit processor entered her assessment

on November 9, 2000, and other sections of the form were entered

on November 1, 2000, by Mr. Woodiwiss, the Complian ce Assessment

Form bears a final date of February 1, 2001. The Form shows the

"Event Chronology" that led to the issuance of the NOV. The

chronology, consistent with the testimony at hearing, reveals

the following:

25 Jul.00. Complaint inspection for fi ll in

wetlands on adjacent lot. Found isolated

fill areas in a slough and adjacent to an

apparent upland area. Vegetation is 100%

jurisdictional but soil is composed of

alluvial deposits in ridge like

configurations, one of which the respondent

wished to live on. Solicited the

jurisdictional team for a district assist in

determining jurisdiction.

21 Aug.00. District assist. Hydrologic

indicators and vegetation present in

sufficient quantities to establish

jurisdiction. John Tobe PhD. Requested that

t he mean annual flood be established on the

site in order to augment his determination.

October 11, 2000. District assist by Bureau

of Survey and mapping and the establishment

of a survey line of the 2.33 year (16.42

feet above MSL) mean annual flood elev ation

on the adjacent violation site. The whole

site is clearly under the MAF, which extends

approximately 200 meters up grade towards SR

20. The elevation of the MAF is consistent

with hydrological indicators (porella

pinnatta) that indicate such a floo d

elevation, as reported in previous studies.

November 7, 2000. Met with Crystal Steele

and Mike Curry of Walton County DOH to

establish why Mr. Williams has a septic tank

permit. They indicated that the permit was

issued in error and that they would re quire

the system to be moved. Ms. Steele stated

that the County would pay for Mr. Williams

to have a new system installed on another

site because of the oversight. There are

currently two moveable vehicles on the site,

one of which is connected to the sy stem, the

other has a contained service for sewage.

November 21, 2000. WLI [presumably Warning

Letter Issued]

November 27, 2000. Call to Mr. Williams.

He wants to get money back or swap property

for higher. I advised him to approach the

owner Mr. Mar tin and make his situation

known.

January 22, 2000. Mr. Williams has refused

to remove the fill and requests an NOV.

P13, (emphasis supplied)

MAF and Wetland Delineation

15. There was considerable testimony introduced at hearing

about establishment of the mean annual flood ("MAF") line for

the purpose, among others, of its relationship to the elevation

of the septic tank mound. The issue stemmed, no doubt, from

Dr. Tobe's request that MAF be established in order to "augment

his determination" with reg ard to DEP jurisdiction based on

employment of the methodology in DEP's wetland delineation rule,

see paragraph 13, above.

16. Resolution of the issue is not necessary to augment

the determination that all of lots 29 and 30 of the Cowford

subdivision are located in wetlands that constitute "waters of

the state." That the septic tank and the fill dirt were

deposited on wetlands under the jurisdiction of DEP was clearly

established by Dr. Tobe in his testimony at trial and the

evidence in support of it. Pe titioner concedes as much in his

Proposed Final Order.

Environmental Harm and Human Health Exposure

17. Wetlands whose surface area is covered by the septic

tank mound have been filled. The filling has caused

environmental damage. An assessment of the d amage was not

offered at hearing but it appears from this record that the

damage is minimal.

18. During the time the septic tank has been on

Mr. Williams' property, it has never been below the flood waters

of the Choctawhatchee River and therefore has not yet caused

direct hazard to human health.

Corrective Action and Penalty

19. It will be expensive to remove the septic tank; the

expense will be more than the cost of installation. Petitioner

fears, moreover, that it will render his property worthless.

2 0. There is no evidence that Petitioner's violation of

Department permitting requirements was willful. He has no

history of violations previous to this one.

21. Options to continued retention of a septic system

through use of a portable wheeled waste re mover or use of an

upland drain field on another property are either not viable or

so problematic as to be impractical.

DEP Modification of its Position

22. At the outset of the hearing, DEP announced that it no

longer intended to seek civil penalties of $1,500 as it had

intended when the NOV was issued. All that is sought by DEP by

way of corrective action or penalty is removal of the septic

tank and monetary reimbursement for the cost of the

investigation of $250 ( see Tr. 9, lls. 17 - 25, and Tr. 10, lls.

1 - 5.)

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding. Sections 120.569 and 120.57, Florida Statutes.

24. "If a person timely files a petition challenging a

no tice of violation, . . . [t]he department has the burden of

proving with the preponderance of the evidence that the

respondent is responsible for the violation. No administrative

penalties should be imposed unless the department satisfies that

burden. Fo llowing the close of the hearing, the administrative

law judge shall issue a final order[ 1 ] on all matters . . . ."

Section 403.121(2)(d), Florida Statutes.

25. The Department has carried its burden of proving by a

preponderance of the evidence that the violation charged in this

case occurred.

26. "Unless specifically exempt, permits shall be required

for . . . filling . . . or placing of material in, on or over

waters of the state listed in Rule 62.312.030, F.A.C." Rule

62.312.060, Florida Administra tive Code.

27. "'Filling' is the deposition, by any means, of

materials in waters of the state." Rule 62 - 312.020(11), Florida

Administrative Code.

28. Section 403.031(13), Florida Statutes, defines

"[w]aters" as "rivers, lakes, streams, springs, impou ndments,

wetlands , and all other waters or bodies of waters, including

fresh, brackish, saline, tidal, surface, or underground waters."

(emphasis supplied)

29. There is no question that Mr. Williams filled wetlands

on Lot 29 of the Cowford Subdivision in Walton County by

deposition of a septic tank and dirt fill in the form of a

septic tank mound without a permit. This was clearly

established by his own testimony and by the testimony of DEP

personnel, including Dr. Tobe. The only question is what should

be the appropriate corrective action and penalty.

30. The deposition of the septic tank and the dirt fill

would not have been eligible for a permit. Just as Mr. Williams

now recognizes that the property filled was wetlands under the

jurisdiction of DEP , he recognizes that his "project" would not

have been eligible for DEP permitting. The appropriate

corrective action since the project could not have been

permitted is removal of the septic tank system and all of the

dirt fill that constitutes the septic tank mound.

31. Nonetheless, Mr. Williams argues for a fine rather

than an order of removal because of the expense in removing the

tank in what has already become an expensive proposition and

because of the likelihood, in his view, that without the sept ic

tank, he will not be able to use his property at all.

32. As much sympathy as Mr. Williams' argument produces,

particularly since the County issued the septic tank

construction permit in error and actually supervised the

installation of the tank, it w ould not be appropriate to allow

the septic tank to remain. The septic tank and the dirt fill in

the mound in which it sits must be removed.

33. Mr. Williams was shown to be nothing other than a law -

abiding citizen who attempted to obtain what he though t was

appropriate governmental permission for installation of a septic

tank. The septic tank construction permit application that he

filled out warned that it was his responsibility to obtain any

other necessary state permits. Balancing his failure to

di scover that he needed to obtain a permit from DEP for his

filling activity, and that he would not be able to obtain such a

permit and therefore not be able to install the system, however,

is that the septic tank construction permit was issued by

government al authorities in error and the error was compounded

when the County supervised the installation of the septic tank

system.

34. Mr. Williams has no past history of violations and the

septic tank has not yet imperiled human health. It is

appropriate unde r the circumstances for the Department not to

seek civil penalties. As was stated at hearing, removal of the

septic tank at Mr. Williams' expense is punishment enough. The

state is entitled to be reimbursed $250 for the cost of the

investigation.

ORDER

Wherefore, it is ordered that Mr. Williams remove the

septic tank system and all fill dirt associated with it from the

lots owned by him in the Cowford Subdivision in Walton County

and that he reimburse the Department of Environmental Protection

$250 for i ts costs associated with this case.

DONE AND ORDERED this 28th day of July, 2003, in

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, 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 28th day of July, 2003.

ENDNOTE

1/ There is uncertainty as to whether this orde r should be a

recommended order or a final order. See the last sentence in

Section 403.121(2)(d). It may be that DEP's decision not to

pursue administrative penalties announced after the commencement

of final hearing concomitantly retains DEP's final ord er

authority. On the other hand, issuance of a NOV seeking

administrative fines may have fixed the status of DOAH

proceedings culminating in a final order. In any event, the

parties have acquiesced to the issuance of a final order:

Mr. Williams by filin g a Proposed Final Order and DEP by not

filing any proposed order and by not otherwise asserting

retention of final order authority.

COPIES FURNISHED:

Parker B. Smith, Esquire

1219 Airport Road, Suite 311

Destin, Florida 32541

Robert Stills, Jr., Esq uire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

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 JUDICIAL REVIEW

A party who is adversely affected by this Final Order i s

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be f iled within 30 days of rendition of the order to

be reviewed.