03-001499 Lee Maddan vs. Department Of Environmental Protection Status: Closed Recommended Order on Friday, October 10, 2003.

Summary: Respondent established dredge and fill jurisdiction over lake which was connected to a water body of the state. Exemptions did not apply for denial of the permit to place modular home on a fill pad.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEE MADDAN, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF ENVIRONMENTAL ) Case No. 03 - 1499

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Shalimar, Florida, on

July 22 - 23, 2003, before Richard A. Hixson, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For the Petitioner: James E. Moore, Esquire

Post Office Box 746

Niceville, Florida 32588

For the Respondent: Charles T. Collette, Esquire

Robert W. Stills, Jr., Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

STATEMENT OF THE ISSUES

The issues for determination in this case are: 1) whether

the Department of Environmental Protection (DEP) has dredge and

fill permitting jurisdiction over a certain body of water known

as Lake Blake in Okaloosa County, Florida; 2) if DEP's dredge

and f ill permitting jurisdiction is established, whether

Petitioner qualifies for an exemption from DEP's dredge and fill

permitting jurisdiction; and 3) if not otherwise exempt from

DEP's dredge and fill permitting jurisdiction, whether

Petitioner's applicatio n No. 46 - 0199306 - 001 - EE, seeking to place

a modular home on a fill pad in Lake Blake, should be approved

by DEP.

PRELIMINARY STATEMENT

On August 29, 2002, Petitioner Lee Maddan (Maddan)

submitted an application (No. 46 - 0199306 - 001 - EE) to DEP

requesting a uthorization to place a modular home on a fill pad

in Lake Blake in Okaloosa County, Florida. By letter dated

September 27, 2002, DEP notified Maddan that "the pad represents

unauthorized fill, which has been placed in jurisdictional

waters and is current ly under review by the Department's

Enforcement Section." On August 30, 2002, Maddan received the

notice of DEP's denial of his application. Maddan filed a

timely request for administrative hearing which was forwarded to

the Division of Administrative He arings (DOAH) on April 28,

2003, and assigned DOAH Case No. 03 - 1499.

On May 13, 2003, the Director of District Management for

the DEP Office of the Northwest District issued a Notice of

Violation (NOV) and Orders for Corrective Action against

James E. Moor e, Santa Rosa II, Inc., Santa Rosa III, Inc., and

Lee Maddan, Respondents. (On June 9, 2003, DEP filed an

amendment to the NOV removing James E. Moore as a Respondent).

The NOV alleged two counts against the Respondents. Count I

charged the Respondents with placing fill in the landward extent

of the waters of the State and placing pedestrian foot bridges

over the waters of the State without a Wetland Resource Permit.

Count II alleged that DEP had incurred expenses in the

investigation of this matter. T he NOV sought total

administrative penalty and economic benefit against the owners

of $2500, and total administrative penalty and economic benefit

against Maddan of $5000. The Orders for Corrective Action

included removal of the fill, replanting of the af fected area,

and removal of the pedestrian footbridges.

On May 21, 2003, the NOV Respondents filed a timely Demand

for Administrative Hearing which was forwarded to the Division

of Administrative Hearings on June 2, 2003, and assigned DOAH

Case No. 03 - 2040 . Included in the Demand for Administrative

Hearing was Respondents' Motion for Consolidation with DOAH Case

No. 03 - 1499. By order entered June 9, 2003, and without

objection, DOAH Case Nos. 03 - 1499 and 03 - 2040 were consolidated

for hearing which was con ducted on July 22 - 23, 2003.

On July 17, 2003, the parties filed a Joint Prehearing

Stipulation stating those facts which have been admitted for

purposes of these proceedings. Such stipulated facts have been

incorporated in this Order to the extent mater ial and necessary

to the resolution of these issues. The parties further

stipulated to certain conclusions of law pertaining to the

appropriate burdens of proof in these cases as well as the

relevant provisions of law applicable in the DEP Northwest

Distr ict of Florida. The stipulated conclusions of law have

been incorporated in this Order.

At hearing, DEP presented the testimony of five witnesses:

Larry O'Donnell, the DEP Environmental Manager for the

Permitting Section, a fact witness also accepted as a n expert in

the application of laws and rules applicable to dredge and fill

permitting in the Northwest District of Florida; Stacy Owens, a

DEP Environmental Specialist; Dr. John Tobe, DEP Environmental

Administrator of the Wetland Evaluation and Delineati on Section,

accepted as an expert in wetland delineation and jurisdictional

determination for waters of the State; Cliff Street, DEP

Supervisor, Engineering Support, Submerged Lands and

Environmental Resources Program of the Northwest District,

accepted as an expert in stormwater permitting and the

application of stormwater permitting laws, rules and regulations

in the Northwest District; and Richard W. Cantrell, DEP District

Director of the South Florida District. DEP also presented

Exhibits 1 - 20 which we re received in evidence. DEP's Motion

Requesting Withdrawal from Admissions was granted.

For purposes of the consolidated hearing, Respondents in

Case No. 03 - 2040, and Maddan here, presented the testimony of

Lee Maddan. Respondents also presented Exhibit s 1 - 19 and 21 - 28,

which were received in evidence. Respondents further proffered

Exhibit 29, the June 30, 2003, deposition of Dr. John Tobe,

which exhibit was rejected on timely objection raised by DEP.

A transcript of the hearing was filed September 5, 2 003.

DEP filed its Proposed Final Order (Case No. 03 - 2040) and

Proposed Recommended Order (Case No. 03 - 1499) on September 25,

2003. Maddan filed Proposed Findings of Fact and Conclusions of

Law on September 26, 2003. The proposed findings of fact and

co nclusions of law filed by the parties have been considered in

the rendering of this Order.

These cases were consolidated for the orderly expedition of

the factual presentation at hearing, and many of the factual

findings, particularly those relating to th e assertion of DEP's

dredge and fill permitting jurisdiction over Lake Blake, are

common to each case. At this point in the proceedings, however,

in light of the distinctive statutory requirements for each

proceeding, the cases are hereby severed for the purpose of the

entry of the Final Order in Case No. 03 - 2040, and the separate

entry of the Recommended Order in Case No. 03 - 1499. All

citations are to Florida Statutes (2002) unless otherwise

indicated.

FINDINGS OF FACT

Parties

1. DEP is the agency of the State of Florida vested with

the power and duty to enforce the provisions of Chapters 373 and

403, and the rules promulgated in Chapter 62, Florida

Administrative Code. DEP is the only agency involved in these

proceedings.

2. Lee Maddan (Maddan) is a long - time resident of Okaloosa

County, and the Petitioner in Case No. 03 - 1499. Maddan is a

Respondent in Case No. 03 - 2040. Maddan has personally observed

activities occurring at the Lake Blake property for more than 38

years, including the excavation o f the lake.

3. Santa Rosa Three, Inc. (the Corporation), is a

Respondent in Case No. 03 - 2040, and holds fee simple title to the

property containing Lake Blake, which is located in

unincorporated Okaloosa County between Lewis Street and Clifford

Street in Sections 2 and 3, Township 2 South, Range West. Santa

Rosa II is also Respondent in Case No. 03 - 2040, and is a

corporate predecessor in interest to the Corporation. Maddan

holds equitable title to the Lake Blake property and is in the

process of purchasi ng the fee simple title to the property from

the Corporation. Maddan is and was at all material times hereto

authorized by the Corporation to enter upon the Lake Blake

property, to proceed to develop the land, to obtain permits in

his name and to do other acts to prepare the property for

Maddan's purchase.

History of Lake Blake

4. Lake Blake is an artificially created water body in

unincorporated Okaloosa County, having a water surface area

slightly less than six acres. There is a small island in the

c enter of the lake. The property surrounding Lake Blake

presently consists of both uplands and wetlands. No other water

body is visible from Lake Blake. For DEP jurisdictional

determination purposes, Lake Blake is located in the Northwest

District of Flo rida.

5. The oldest records of the Lake Blake property dating to

1826, indicate that the property was flat land with natural

vegetation dominated by palmetto and galberry. The property

historically had no flowing streams.

6. In the 1950's the then own er of the property began

excavating a borrow pit on the property. The excavations

continued until approximately 1979. As the borrow pit

excavations continued a lake formed due to the intrusion of

underground water as well as collected rainfall.

7. Duri ng the excavation period, and until approximately

1976, the land around the borrow pit was primarily pasture land

with no trees or other vegetation. Up to 1976, there was no

wetland vegetation growing on the property.

8. Prior to 1960, the natural storm water flow from the

property was to the southwest toward Cinco Bayou, a defined water

body of the State of Florida which on a direct line is located

approximately one - quarter mile from the property. Cinco Bayou is

the body of water of the State nearest to Lake Blake.

9. During the 1960's, a road known as Lewis Street (also

known as Mayflower Avenue) was constructed along the southern

boundary of the property. At the time of the construction of

Lewis Street, the borrow pit was separated into two parts, a n

eastern and western section. A concrete culvert divided the

sections of the borrow pit.

10. At the time of the Lewis Street construction, a

stormwater discharge pipe was installed by Okaloosa County and

excess water flowed out of the borrow pit only at certain times

in direct response to rainfall. The installation of the

stormwater discharge pipe on Lewis Street was intended to drain

excess rainfall from the borrow pit.

11. Okaloosa County never acquired ownership of the borrow

pit for use as a stor mwater retention pond. The water body that

formed in the borrow pit would come to be called Lewis Street

Pond, or Blake Lake, and eventually Lake Blake.

12. The natural flow of the stormwater from the property

was further altered in the 1970's when a pu blic elementary school

was constructed by Okaloosa County on Lewis Street. The public

school is located between the property and Cinco Bayou.

13. Borrow pit operations formally ceased in September of

1980 when DEP's predecessor agency, the Department of

Environmental Regulation (DER), entered an order requiring the

cessation of mining operations. The physical operations had

actually ceased a few years before the DER order.

14. Lake Blake originally resulted from collected rainfall,

as well as undergro und water intrusion in the borrow pit. Over

the subsequent years and at the present time, additional diverted

stormwater runoff collected in the lake as a result of Okaloosa

County's stormwater drainage system. Lake Blake today is an

artificial body of w ater owned entirely by one person.

Residential housing is located on property surrounding Lake

Blake. The lake is occasionally utilized for recreational

purposes, including fishing. The property surrounding the lake

is not open to the general public, an d the entrances to the

property are fenced. For purposes of this proceeding, there are

no threatened or endangered plants on the property.

Okaloosa County Stormwater Drainage System

15. Okaloosa County has constructed a stormwater drainage

system that runs through the Lake Blake drainage area. As part

of this stormwater drainage system, Lake Blake collects diverted

stormwater discharge from surrounding areas which have been

previously developed. Residential neighborhoods are close to the

area, specifi cally the Berkshire Woods Subdivision. Indeed, as a

condition for the development of the Berkshire Woods Subdivision

in 1976, the Okaloosa County Planning Commission required that a

former owner of the property, Ron Blake, excavate the lake and

have it ma de ready for stormwater drainage from the proposed

development of the Berkshire Woods Subdivision. In addition to

the residential areas and the public school to the south, there

is a private school to the north across the road on Clifford

Street which als o diverts water to the lake from its campus and

parking lots

16. Okaloosa County has installed several pipes which carry

stormwater from the surrounding developed areas into Lake Blake.

The only drainage out of Lake Blake is via the stormwater

discharge pipe located at the southern boundary of the property

on Lewis Street which was installed by Okaloosa County in the

1960's.

17. Okaloosa County's stormwater discharge system serving

Lake Blake is integrated into a series of interconnecting

underground s tormwater pipes which route the flow of the water

for approximately one - half mile before ultimately discharging

water into Cinco Bayou.

18. Okaloosa County's stormwater discharge system which

ultimately connects Lake Blake with Cinco Bayou is composed of

buried pipes. DEP considers buried pipes or culverts which

convey stormwater as excavated water bodies. The installation of

Okaloosa County's stormwater discharge system required the

excavation of land. Under DEP's interpretation of its rules,

specifica lly Rule 62 - 312.030(2), Florida Administrative Code, the

underground installation of stormwater pipes is sufficient to

establish a series of excavated water bodies which connect Lake

Blake to Cinco Bayou.

19. Prior to the installation of Okaloosa Count y's

stormwater discharge pipe on Lewis Street in the 1960's, there

was no dredge and fill permitting jurisdiction which applied to

the property containing Lake Blake. The stormwater discharge

pipe has continuously existed on the southern boundary of the

p roperty since its installation in the 1960's to the present.

20. Lake Blake was not originally designed, constructed,

nor permitted as a stormwater treatment or retention pond. Lake

Blake incidentally resulted from the borrow pit excavations.

Okaloosa County, however, has at least since 1976 utilized Lake

Blake as part of its stormwater drainage system. Okaloosa County

never acquired title to Lake Blake.

21. In 1981, the Okaloosa County Board of Commissioners

(who were not the owners of the property) applied for, and were

issued by DER, a Construction Permit (No. RC - 46 - 80 - 2031, dated

May 27, 1981, which expired November 27, 1981), for "Blake Lake

Modifications," which permit stated it was "to modify an existing

stormwater drainage system." This permi t allowed for, among

other items, construction of "two earthen berms in Blake Lake"

and "the diversion of lake flow from the western lake to the

eastern lake." Although attempts were made to construct the two

earthen berms, due to the white clay compositi on of the soil the

berms were not successfully established.

22. In 1984 DER issued another Construction Permit (No.

460853421 dated August 20, 1984, which expired August 15, 1987)

to the Okaloosa County Board of Commissioners (who again were not

the owne rs of the property) for the purpose constructing "two

drainage channels . . . from a berm separating East and West

Blake Lake." The drainage channels were thereafter completed and

the east and west portions of the lake were eventually connected.

23. On August 14, 1984, Okaloosa County also filed a Notice

of New Stormwater Discharge with DER which proposed a re - routing

of an existing stormwater drainage system which then diverted

stormwater from the Candlewood Subdivision and Navy Street into

Lake Blake. The stated purpose of the re - routing of the

stormwater drainage system away from Lake Blake was to address

flooding problems in the Candlewood Subdivision. By letter dated

August 21, 1984, DER informed Okaloosa County that "the

stormwater discharge is ex empt from stormwater permitting

requirements of the Department pursuant to Florida Administrative

Code Rule 17 - 25.03(2)(c)." DER came to this conclusion in 1984

because the proposed project was "the modification of an existing

County stormwater management system not serving a new development

or increasing pollution loading."

24. Although Lake Blake was utilized by Okaloosa County as

part of the existing Okaloosa County stormwater drainage system,

which in 1984 qualified for a DER stormwater permitting

exe mption, nothing pertaining to this stormwater permitting

exemption supports a finding that Lake Blake was originally

constructed, permitted or designed solely for the purpose of

stormwater treatment so as to qualify for an exemption from

DEP's dredge and fill jurisdiction under Rule 62 - 312.050(4),

Florida Administrative Code.

Dredge and Fill Permitting Jurisdiction

25. Prior to the installation of Okaloosa County's

stormwater discharge pipes on the property in the 1960's, there

was no dredge and fill pe rmitting jurisdiction which applied to

the property and Lake Blake. Under current law, the Northwest

District of Florida is governed by separate jurisdictional

determination provisions. In order to initially establish DEP's

dredge and fill permitting jur isdiction over wetlands and

surface waters in the Northwest District, DEP must demonstrate

that the wetlands and surface waters are connected to the

surface waters of the State. Since 1995, isolated wetlands in

all the rest of the State of Florida are reg ulated by DEP

without regard to any connection to the surface waters of the

State. In the Northwest District under Rule 62 - 312.030(2),

Florida Administrative Code, "surface waters of the state are

those waters listed below and excavated water bodies, exce pt for

those exempted by Section 62 - 312.050(4), F.A.C., which connect

directly or via an excavated water body or series of excavated

water bodies . . ." to waters of the State. Under Rule 62 -

312.045, Florida Administrative Code, however, "[i]solated

wetla nds that infrequently flow or otherwise exchange water with

a described water body are not intended to be included within

the dredge and fill jurisdiction of the Department."

26. By letter dated April 24, 2001, DEP advised Santa Rosa

II, Inc., that the La ke Blake property was not subject to DEP's

dredge and fill jurisdiction. The letter was sent in response

to an application seeking to fill 2.5 acres of the southeastern

portion of the lake for the construction of an apartment

complex. The letter was issu ed by DEP's Northwest District, and

signed by Martin Gawronski on behalf of Larry O'Donnell, the

Environmental Manager for Permitting Section of the Northwest

District. The letter was issued after a visit to the property

by one or more DEP employees, and based on an informal

determination that Lake Blake was not connected to the waters of

the State.

27. In May of 2001, the United States Army Corps of

Engineers determined that the Lake Blake property was not within

its jurisdiction.

28. Subsequent to th e issuance of the April 24, 2001, non -

jurisdictional letter, certain employees of Okaloosa County (not

specifically named in these proceedings) contacted DEP seeking

reconsideration of DEP's decision. These Okaloosa County

employees thereafter met with DE P employees at the property and

communicated by telephone with DEP employees while DEP

considered a re - determination of its non - jurisdictional

decision.

29. The property owners were then notified that DEP was in

the process of re - evaluating its non - juris dictional decision.

30. By letter dated October 24, 2001, DEP advised Santa

Rosa II, Inc., that DEP had made a "correction" to the letter of

April 24, 2001, and had determined that the property was in fact

subject to DEP's dredge and fill permitting juri sdiction,

because the "pond" was "connected to jurisdictional waters" of

the State. The October 24, 2001 letter, like the previous

letter, was issued from DEP's Northwest District signed by

Martin Gawronski on behalf of Larry O'Donnell.

31. Between Apri l 24, 2001, and October 24, 2001, there

were no man - made alterations made to the Lake Blake property.

Between March and April 2002, Maddan filled in a portion of the

lake and lacustrine wetlands. Maddan also built two pedestrian

footbridges over the lake to the small island in the middle of

the lake.

32. DEP asserted its dredge and fill permitting

jurisdiction based upon the existence of a series of underground

pipes installed by Okaloosa County as part of its stormwater

drainage system that conveys exc ess stormwater from Lake Blake

to Cinco Bayou. Installation of the underground pipes required

excavation.

33. Neither the April 24, 2001 letter, nor the subsequent

October 24, 2001, letter issued by the Northwest District, is

binding determination of DE P's dredge and fill permitting

jurisdiction over the wetlands and surface waters of Lake Blake.

The authority to make a binding DEP dredge and fill permitting

jurisdictional determination is vested in Dr. John Tobe,

Environmental Administrator of the Wetl and Evaluation and

Delineation Section and his staff.

DEP's Site Inspections/Jurisdictional Determination

34. In April of 2002, Stacy Owens, DEP Environmental

Specialist, received a telephone call from Chuck Bonta with the

Okaloosa County Code Enforceme nt Department, and an unnamed

homeowner, complaining that Lee Maddan had built two unpermitted

pedestrian footbridges at Lake Blake and was also filling in

part of Lake Blake. Ms. Owens initially investigated whether

DEP had issued any permits for the pla cement of fill in Lake

Blake or the surrounding wetlands, and determined that no

permits had been issued. Ms. Owens further discovered that a

prior Notice of Violation and Orders for Corrective Action had

been issued by DER in 1980 against the Okaloosa Co unty Board of

Commissioners and Lloyd D. Junger (a lessor conducting mining

operations). The 1980 case pertained to the discharge of

turbidities from the Lewis Street Pond into Cinco Bayou. A

final order in that case was entered on January 5, 1981,

requi ring Okaloosa County to make payment to DER and take

corrective action.

35. On April 23, 2002, Ms. Owens followed up on these

complaints by performing a site visit to Lake Blake. At this

time Ms. Owens observed two unpermitted pedestrian footbridges,

un permitted fill in a finger of Lake Blake, and unpermitted fill

within a 20 - foot by 25 - foot lacustrine wetland area.

36. On April 25, 2002, Maddan came to Ms. Owens' office to

discuss whether permits were necessary for the placement of fill

at Lake Blake . At that time Maddan showed Ms. Owens the

previous letters of April 24, 2001, and October 24, 2001, which

had been sent from the Northwest District of DEP. Maddan stated

that in his opinion no dredge and fill permit was needed because

Lake Blake was not within the jurisdiction of DEP.

37. Ms. Owens was then informed by employees of Okaloosa

County that there were underground pipes connecting Lake Blake

to Cinco Bayou. She obtained from Gary Bogan of Okaloosa County

an aerial map of the drainage area fo r Lake Blake which

identified the location of the culvert on Lewis Street which

conveys excess flow from Lake Blake to Cinco Bayou.

38. On April 30, 2002, Ms. Owens performed another site

inspection at Lake Blake. During this site inspection, she

tracke d the connection from Lake Blake to Cinco Bayou by

personal observation.

39. After her second site inspection, Ms. Owens e - mailed

her findings to Dr. Tobe, and inquired whether the underground

pipes satisfied the DEP requirements for connection to a wate r

body of the State for the purpose of establishing DEP's dredge

and fill permitting jurisdiction. Dr. Tobe replied to Ms. Owens

that an underground pipe connection would satisfy DEP's

jurisdictional requirements.

40. On June 25, 2002, Dr. Tobe, Ms. Owe ns, and a DEP

wetland delineation team visited the Lake Blake property for the

purpose of making a jurisdictional determination. Maddan also

accompanied Dr. Tobe and his team on the day of the site

inspection. As a result of this inspection, Dr. Tobe com pleted

and filed a Field Report for Lake Blake, Okaloosa County, dated

June 25, 2002.

41. As indicated in his Field Report, Dr. Tobe and his

wetland delineation team determined that for jurisdictional

purposes, Lake Blake was connected to the waters of t he State by

reason of the culvert on Lewis Street that ultimately discharges

into Cinco Bayou.

42. At the time of his inspection on June 22, 2002,

Dr. Tobe did not observe water flowing from Lake Blake into the

Lewis Street culvert. Dr. Tobe attributed this to abnormal

drought conditions the area was then experiencing. Maddan, who

has observed this area for many years, testified that the lake

was near or slightly less than its normal water level on that

date. Dr. Tobe conducted a further examination o f the area to

determine the ordinary high water line, and concluded that Lake

Blake would at ordinary high water level flow into the Lewis

Street culvert on a sufficiently regular frequency into Cinco

Bayou, a water body of the State, in order to establish DEP's

dredge and fill jurisdiction. In determining whether water

exchange frequency is sufficient to establish jurisdiction,

there is a DEP Interoffice Memorandum of October 31, 1988,

setting out 25 - year, 24 - hour criteria which is used as guidance,

but t he criteria stated in this Memorandum have not been adopted

as a rule, and are not singularly determinative of DEP's

jurisdiction.

43. At this time, Dr. Tobe and his team also performed a

wetland boundary delineation. Dr. Tobe found hydric soils and

wet land plants dominating the area. The wetland delineation

boundary was determined by the continual interpretation of

vegetation, soils, and hydrologic indicators.

44. As a result of his inspection and wetland boundary

delineation, Dr. Tobe concluded tha t unpermitted fill had been

placed within the surface waters of the State, and in lacustrine

wetlands..

45. Thereafter on July 18, 2002, DEP sent Maddan a Warning

Letter (DF - SO - 46 - 022) requesting that Maddan cease dredging,

filling or construction activi ties at Lake Blake without

obtaining a permit.

46. Subsequent to DEP's sending Maddan the Warning Letter

of July 18, 2002, Stacy Owens visited the Lake Blake site on

numerous occasions beginning in October of 2002, and continuing

through July of 2003. On most of these site visits Ms. Owens

observed water flowing from Lake Blake through the Lewis Street

culvert. Ms. Owens documented water flowing from Lake Blake

through the Lewis Street culvert on October 29, 2002,

November 5, 2002, May 20, 2003, June 2 0, 2003, June 23, 2003,

June 27, 2003, and July 8, 2003. The area was not experiencing

abnormally excessive rainfall events at the times that Ms. Owens

documented water flowing from Lake Blake into the Lewis Street

culvert.

47. Maddan testified that in his personal observation over

many years, Lake Blake generally discharges excess stormwater

into the Lewis Street culvert only as a result from a

significant rainfall event.

48. Lake Blake discharges water into the Lewis Street

culvert at regular interva ls. The water discharged from Lake

Blake ultimately is released through the Okaloosa County

stormwater drainage system into the surface waters of Cinco

Bayou, a water body of the State of Florida.

49. The Okaloosa County stormwater drainage system

conne cting Lake Blake to Cinco Bayou is a series of excavated

water bodies.

50. Lake Blake is connected to the surface waters of Cinco

Bayou, and regularly exchanges water with Cinco Bayou.

Exemptions from DEP's Jurisdiction

51. To assert dredge and fill p ermitting jurisdiction over

this property, not only must Lake Blake be connected to the

waters of the State, but the property must not be otherwise

exempt from dredge and fill permitting jurisdiction under either

statute or rule.

52. On August 29, 2002, under the authority of the

Corporation, Maddan filed a "Joint Application for Works in the

Waters of Florida" with DEP requesting an exemption from DEP's

dredge and fill permitting jurisdiction under Rule Chapter 17 -

312, re - codified as Rule Chapter 62 - 312.

53. Rule 62 - 312.050, Florida Administrative Code, sets out

the recognized exemptions to DEP's dredge and fill permitting

jurisdiction.

54. Maddan primarily relies on Rule 62 - 312.050(4) which

provides that "[n]o permit under this chapter shall be requ ired

for dredging or filling in waters which are contained in those

artificially constructed stormwater treatment and conveyance

systems designed solely for the purpose of stormwater treatment

and that are regulated by the Department or the water managemen t

district." Lake Blake, however, is the result of excavations in

a borrow pit. Because of surrounding development, Lake Blake

receives stormwater runoff; however, the lake was not "designed

solely for the purpose of stormwater treatment," and cannot

the refore qualify for this exemption.

55. Maddan also cites Rule 62 - 312.050(1)(g), Florida

Administrative Code, which provides an exemption for the

"construction of seawalls or riprap, including only that

backfilling needed to level land behind the seawalls or riprap,

in artificially created waterways where such construction will

not violate existing water quality standards, impede navigation

or adversely affect flood control." Even assuming that the

filling of the finger of Lake Blake meets the test of

cons truction of a seawall, there is no evidence that such

filling of Lake Blake was ever subjected to appropriate water

quality tests, much less meeting such water quality tests as

well as the other requirements of this exemption.

56. In addition to the exemp tions established by Rule 62 -

312.050, Maddan cites statutory exemptions. The definition of

"waters" which are regulated under Chapter 403 as set forth in

Section 403.031(13), provides in pertinent part that "[w]aters

owned entirely by one person other tha n the state are included

only in regard to possible discharge on other property or

water." Although Lake Blake is owned entirely by one person,

this provision does not exempt Lake Blake because the lake

actually discharges on the surface waters of Cinco B ayou.

57. Maddan also cites Section 403.812, which provides that

"[t]he department shall not require dredge and fill permits for

stormwater management systems where such systems are located

landward of the point of connection to waters of the state and

ar e designed, constructed operated and maintained for stormwater

treatment, flood attenuation, or irrigation." Although Lake

Blake has been utilized by Okaloosa County's stormwater drainage

system which is located landward of Cinco Bayou, the lake was

not d esigned nor constructed for stormwater treatment, flood

attenuation or irrigation, and it is not being operated nor

maintained for stormwater treatment, flood attenuation or

irrigation.

58. Lake Blake does not qualify for an exemption from

DEP's dredge and fill permitting jurisdiction.

Dredge and Fill Permit Denial

59. On September 30, 2002, Maddan was notified of DEP's

denial of his application to place a modular home on a fill pad

in Lake Blake.

60. Because Maddan took the position that DEP did n ot have

dredge and fill jurisdiction over Lake Blake, or alternatively

that Lake was exempt from DEP's jurisdiction, an analysis of

whether Maddan's application might be approved under Rule 62 -

312.060(5), Florida Administrative Code, has not been done. DE P

has not performed any analysis of water quality standards nor

public interest assessment required by the rule, and Maddan

offered no evidence which would be necessary to make such

determinations.

CONCLUSIONS OF LAW

61. The Division of Administrative He arings has

jurisdiction over the parties and subject matter of this

proceeding. Sections 120.57(1) and 403.121(2).

Burden of Proof

62. DEP has the burden of proof to establish by a

preponderance of the evidence its dredge and fill permitting

jurisdictio n by showing that Lake Blake is connected to the

surface waters of the State of Florida.

63. If DEP meets this burden, Maddan has the burden of

establishing by a preponderance of the evidence that his

activities in the surface waters and wetlands of Lak e Blake are

otherwise exempt from dredge and fill permitting.

64. If Lake Blake is determined to be jurisdictional, and

Maddan's activities are not otherwise exempt from dredge and

fill permitting, then Maddan must prove entitlement to approval

of his ap plication No. 46 - 0199306 - 001 - EE.

Law Applicable in the Northwest District

65. The law applicable in the Northwest District of

Florida that governs this case has its source in Section

373.4145, entitled "Interim part IV permitting program for the

Northwe st Florida Water Management District." Thereby the 1993

Legislature provided that, "[w]ithin the geographical

jurisdiction of the Northwest Florida Water Management District,

the permitting authority of the department under this part shall

consist solely of the following . . . ." Among other things,

this specifically included Chapter 17 - 312, Florida

Administrative Code (now codified as Chapter 62 - 312), which

governed the Department's wetland resource (i.e., dredge and

fill) permitting at the time and whic h, by reason of the

statute, therefore continues to govern the Department's wetland

resource permitting in the Northwest District of Florida. See

Sections 373.4145(1) and (1)(b); see also , e.g. , Fla. Admin.

Code R. 62 - 312.010 (". . .the provisions of this part shall only

apply to activities in the geographical territory of the

Northwest Florida Water Management District. . .").

Enforcement and Waters of the State

66. With respect to the enforcement of permitting

activities in waters of the state, Rule 6 2 - 312.030, Florida

Administrative Code, provides in relevant part:

(1) Pursuant to Sections 403.031(12)

and 403.913, F.S., dredging and filling

conducted in, on, or over those surface

waters of the state as provided in this

section, require a permit from the

Department unless specifically exempted in

Sections 403.813, 403.913, F.S., or Rule 62 -

312.050, F.A.C.

(2) For the purposes of this rule

surface waters of the state are those waters

listed below and excavated water bodies,

except for waters exempted by Rule 62 -

312.050(4), F.A.C., which connect directly

or via an excavated water body or series of

excavated water bodies to those waters

listed below:

(a) Atlantic Ocean out to the

seaward limit of the state's territorial

boundaries;

(b) Gulf of Mexico out to the

seaward limit of the state's territorial

boundaries;

(c) Bays, bayous, sounds, estuaries,

lagoons and natural channels and natural

tributaries thereto;

* * *

Section 373.4145(1)(b) further provides in pertinent p art:

. . . [F]or the purpose of chapter 17 - 312

[now 62 - 312], Florida Administrative Code,

the landward extent of surface waters of the

state identified in rule 17 - 312.030(2) [62 -

312.030(2)], Florida Administrative Code,

shall be determined in accordance wi th the

methodology in rules 17 - 340.100 [now 62 -

340.100] through 17 - 340.600 [now 62 -

340.600], Florida Administrative Code, as

ratified in s. 373.4211. . . .

Thus, Chapter 62 - 312 and Rules 62 - 312.100 through 62 - 312.600,

Florida Administrative Code, are the controlling provisions

governing dredge and fill activities in surface waters and

wetlands located in the geographical jurisdiction of the

Northwest Florida Water Management District, i.e., located in the

Department's Northwest District of Florida.

67. This repealed statute continues to apply to dredge and

fill permitting in the Northwest District of Florida because Rule

62 - 312.060(5)(b), Florida Administrative Code, specifically

requires that the Department "evaluate [any] proposed dredging or

filling" in the geographical territory of the Northwest Florida

Water Management District in accordance with Section 403.918 and

Section 403.919, Florida Statutes (1991). See Section 373.4145

("Interim part IV permitting program for the Northwest Florida

Water Man agement District"), adopting Chapter 17 - 312 [62 - 312],

Florida Administrative Code.

68. In construing these provisions, the administering

agency's interpretation of its own statutes and rules is

"entitled to great deference and (must) be approved . . . if it

is not clearly erroneous." Florida Interchange Carrier's Ass'n

v. Clark , 678 So. 2d 1267, 1270 (Fla. 1996); 1000 Friends of

Florida, Inc. v. State Department of Community Affairs , 824 So.

2d 989 (Fla. 4th DCA 2002).

Jurisdiction

69. DEP has establi shed by a preponderance of the evidence

that Lake Blake is within DEP's dredge and fill permitting

jurisdiction.

70. DEP established by a preponderance of the evidence

that Lake Blake is directly connected to Cinco Bayou by a series

of underground pipes e xiting a culvert in Lake Blake and that

water frequently flows from Lake Blake to Cinco Bayou.

71. Bayous and excavated water bodies which connect

directly or via an excavated water body or series of excavated

water bodies to bayous are surface waters o f the state. Fla.

Admin. Code R. 62.312.030(2)(c). Under the evidence presented,

DEP's interpretation that the excavated stormwater drainage

system constitutes a "series of excavated water bodies" cannot

be deemed "clearly erroneous" and is therefore ent itled to great

deference.

72. "Isolated areas that infrequently flow into or

otherwise exchange water with a described water body [as

described in Rule 62 - 312.030, Florida Administrative Code] are

not intended to be included within the dredge and fill

j urisdiction of the Department. Fla. Admin. Code R. 62 - 312.045.

Given its natural meaning, "infrequent" is defined as "seldom

happening or occurring: RARE" or "placed or occurring at wide

intervals in space or time." Carter v. Penisular Fire Insurance

Co mpany , 411 So. 2d 960, 962 (Fla. 3d DCA 1982). Given this

ordinary meaning, it cannot be fairly concluded from the

evidence that Lake Blake exchanges water with Cinco Bayou

infrequently or only on rare or widely spaced occasions.

Accordingly, the applica tion of the intent expressed in Rule 62 -

312.045, Florida Administrative Code, does not mitigate against

the exercise of DEP's dredge and fill permitting jurisdiction.

Exemptions

73. Maddan did not prove his qualification for a specific

exemption from D EP's dredge and fill jurisdiction. Maddan did

prove that any exemption cited is squarely applicable to Lake

Blake.

74. Rule 62 - 312.050(4), Florida Administrative Code, sets

forth specific requirement to qualify for an exemption from

dredge and fill juri sdiction. These provisions cannot apply

because Lake Blake was not constructed for stormwater treatment

nor "designed solely for the purpose of stormwater treatment" as

specifically required by the rule. Even assuming Okaloosa

County's stormwater treatme nt system may be grandfathered in to

qualify for an exemption from stormwater permitting, an

exemption for stormwater permitting does not equate to an

exemption from dredge and fill jurisdiction unless the specific

requirements of Rule 62 - 312.050(4), Flori da Administrative Code,

are satisfied.

75. Rule 62 - 312.050(1)(g), Florida Administrative Code,

referring to "the construction of seawalls or ripraps" is

inapplicable under the evidence, and moreover, requires meeting

water quality standards which Maddan did not show were supported

in the record.

76. Section 403.812 likewise is inapplicable because Lake

Blake was not designed or constructed for stormwater treatment,

flood attenuation or irrigation, and the lake is not being

operated or maintained for sto rmwater treatment, flood

attenuation, or irrigation.

77. Maddan did not prove by a preponderance of the

evidence that any other exemption from DEP's dredge and fill

jurisdiction squarely applies to Lake Blake.

RECOMMENDATION

Based upon the foregoing fin dings of fact and conclusions

of law, it is recommended that a final order be entered

upholding denial of Maddan's Permit Application No. 46 - 0199306 -

001 - EE.

DONE AND ENTERED this 10th day of October, 2003, in

Tallahassee, Leon County, Florida.

S

RICHA RD A. HIXSON

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 t he

Division of Administrative Hearings

this 10th day of October, 2003.

COPIES FURNISHED :

Charles T. Collette, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 3239 9 - 3000

James E. Moore, Esquire

Post Office Box 746

Niceville, Florida 32588

Robert W. Stills, Jr., Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Teri L. Donaldson, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Kathy C. Carter, Agency Clerk

Department of Environmental Protection

The Doug las Building, Mail Station 35

3900 Commonwealth Boulevard

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 except ions to

this Recommended Order should be filed with the agency that will

issue the final order in this case.