03-002040EF Department Of Environmental Protection vs. James E. Moore; Santa Rosa Ii, Inc.; Santa Rosa Three, Inc.; And Lee Maddan Status: Closed DOAH Final Order on Friday, October 10, 2003.

Summary: Petitioner established dredge and fill jurisdiction over lake which was connected to a water body of the State and proved violation for purposes of imposing fine and penalties.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Complainant, )

)

vs. )

) Case No. 03 - 2040

SANTA ROSA II, INC.; SANTA ROSA )

THREE, INC.; and LEE MADDAN, )

)

Respondents. )

)

FINAL 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 Complainant: 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

For the Respondents: James E. Moore, Esquire

Post Office Box 746

Nic eville, Florida 32588

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 Oka loosa County, Florida; 2) if DEP's dredge

and fill permitting jurisdiction is established, whether

Respondents qualify 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

Respondents are guilty of the violations alleged in the Notice

of Violation and Orders for Corrective Action issued by the

Director of District Management for the Office of the DEP

Northwest District on May 13, 2003.

PRELIMINARY STAT EMENT

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. Moore, 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 footbridges

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. The NOV sought a total

administrative penalty and economic benef it against the owners

of $2,500, and total a administrative penalty and economic

benefit against Maddan of $5,000. The Orders for Corrective

Action included removal of the fill, replanting of the affected

area, and removal of the pedestrian footbridges.

O n May 21, 2003, the Respondents filed a timely Demand for

Administrative Hearing, which was forwarded to the Division of

Administrative Hearings (DOAH) on June 2, 2003, and assigned

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

Administrative Hearing was Respondents' Motion for Consolidation

of this case with DOAH Case No. 03 - 1499, a previously - filed

pending action involving DEP's denial of Respondent Maddan's

application (DEP application No. 46 - 0199306 - 001 - EE) for

exemption from dredge and fill permit ting jurisdiction in order

to place a modular home on a fill pad in Lake Blake. By order

entered June 9, 2003, and without objection, DOAH Case Nos. 03 -

1499 and 03 - 2040 were consolidated for hearing which was

conducted on July 22 - 23, 2003.

On July 17, 2 003, 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 Final Order to the extent material and

necessary to the resolution o f 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

District of Florida. The stipulated concl usions have law have

been incorporated herein.

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 an expert in

the application of laws and ru les 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 Delineation Section,

accepted as an expert in wetla nd 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 th e

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 were received in evidence. DEP's

Motion Re questing Withdrawal from Admissions was granted.

Respondents presented the testimony of Lee Maddan.

Respondents also presented Exhibits 1 - 19 and 21 - 28, which were

received in evidence. Respondents further proffered Exhibit 29,

the June 30, 2003, depositi on of Dr. John Tobe, which exhibit

was rejected on timely objection raised by DEP.

A transcript of the hearing was filed September 5, 2003.

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

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

2003. Respondents filed Proposed Findings of Fact and

Conclusions of Law on September 26, 2003. The proposed findings

of fact and conclusions of law filed by the parties have been

considered in the rendering of this Final Order.

These cases were c onsolidated for the orderly expedition of

the factual presentation at hearing, and many of the factual

findings, particularly those relating to the assertion of DEP's

dredge and fill permitting jurisdiction over Lake Blake, are

common to each case. At thi s 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 i n Case No. 03 - 1499. All

citations are to Florida Statutes (2002) unless otherwise

indicated.

FINDINGS OF FACT

Parties

1. The Department of Environmental Protection (DEP) is the

agency of the State of Florida vested with the power and duty to

enforce th e provisions of Chapters 373 and 403, Florida Statutes,

and the rules promulgated in Chapter 62, Florida Administrative

Code. DEP is the only agency involved in these proceedings.

2. Respondent, Santa Rosa Three, Inc. (the Corporation), is

the fee simpl e title holder of certain property in unincorporated

Okaloosa County, Florida, located between Lewis Street and

Clifford Street in Sections 2 and 3, Township 2 South, Range

West. The property includes the subject water body, Lake Blake.

Santa Rosa II, In c., is a corporate predecessor in interest to

the Corporation.

3. Respondent, Lee Maddan (Maddan), is a long - time resident

of Okaloosa County. Maddan is the Petitioner in DOAH Case No.

03 - 1499. Maddan has personally observed activities occurring at

the Lake Blake property for more than 38 years, including the

excavation of the lake. Maddan holds equitable title to the Lake

Blake property and is in the process of purchasing 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. L ake 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

center 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 Florida.

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 owner of the property began

excavating a borrow pit on the property. The excavation s

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. During the excavation period, and until approximately

1976, the land around the borr ow 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 stormwater flow from the

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

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

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

the nearest surface waters of the State of Florida.

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

known as Mayflo wer 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, an

eastern and western section. A concrete culvert divided the

sections of the borrow p it.

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 di scharge 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 stormwater retention pond. The water body that

formed in the borrow pit would come to be c alled 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 public 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 ope rations. The physical operations had

actually ceased a few years before the DER order.

14. Lake Blake resulted from collected rainfall, as well as

underground water intrusion in the original borrow pit. At the

present time, additional diverted stormwa ter runoff collects in

the lake as a result of Okaloosa County's stormwater drainage

system. Lake Blake today is an artificial body of water owned

entirely by one person. Residential housing is located on

property surrounding Lake Blake. The lake is occ asionally

utilized for recreational purposes, including fishing. The

property surrounding the lake is not open to the general public,

and the entrances to the property are fenced. For purposes of

this proceeding, there are no threatened or endangered pla nts 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

st ormwater discharge from surrounding areas which have been

previously developed. Residential neighborhoods are close to the

area, specifically the Berkshire Woods Subdivision. Indeed, as a

condition for the development of the Berkshire Woods Subdivision

i n 1976, the Okaloosa County Planning Commission required that

former owner, Ron Blake, excavate the lake and make it ready for

stormwater drainage from the proposed development of the

Berkshire Woods Subdivision. In addition to the residential

areas and t he public school to the south, there is a private

school to the north across the road on Clifford Street which also

diverts water to the lake from its campus and parking lots.

16. Okaloosa County has installed at least seven 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. Oka loosa County's stormwater discharge system serving

Lake Blake is integrated into a series of interconnecting

underground stormwater 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,

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

underground installation of stormwater pipes is sufficient to

establish a ser ies of excavated water bodies which connect Lake

Blake to Cinco Bayou.

19. Prior to the installation of Okaloosa County'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

property since its installation in the 1960's to the present.

20. Lake Blake was not originally designed, constructed nor

permitted a s 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 acquire d title to Lake Blake for use as part of its

existing stormwater drainage system.

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 - 2 031, 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 permit 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 composition of the soil the

berms were not successfully established.

22. In 1984, DE R 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 owners 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 Disch arge 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 exempt from stormwater permitting

requirements of the Department pursuant to F lorida 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

exemption, 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.

Dr edge 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 permitting jurisdiction which applied to

the property and Lake Blake. Under c urrent law, the Northwest

District of Florida is governed by separate jurisdictional

determination provisions. In order to initially establish DEP's

dredge and fill permitting jurisdiction over wetlands and

surface waters in the Northwest District, DEP mu st demonstrate

that the wetlands and surface waters are connected to the

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

all of the rest of the State of Florida are regulated by DEP

without regard to any connection to the surface waters of t he

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, except for

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

dir ectly 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

wetlands that infrequently flow or otherwise exchange water with

a described w ater 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 Lake 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 issued 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 t he 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 the issuance of the April 24, 2001, non -

jurisdictional letter, certain empl oyees of Okaloosa County (not

specifically named in these proceedings) contacted DEP seeking

reconsideration of DEP's decision. These Okaloosa County

employees thereafter met with DEP employees at the property and

communicated by telephone with DEP employ ees 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 - jurisdictional decision.

30. By letter dated October 24, 2001, DEP advised S anta

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 jurisdiction,

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 and signed by

Martin Gawronski on behalf of Larry O'Donnell.

31. Between April 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

property and the lacustrine wetland. Maddan also built two

pedestrian footbridges over the lake to the small island in the

middle of the lake.

32. DEP ass erted 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 excess 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 DEP'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 Wetland 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 Enforcement 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 placement 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 County Board of

Commissioners and Lloyd D. Junger (a lessor con ducting 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,

requiring Okaloosa County to make payment to DER and take

correcti ve 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,

unpermitted fill in a finger of Lake Blake, and unpermitted fil l

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 inf ormed 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 for Lake Blake which

identified the location of the culvert o n 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

tracked 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 water

body of the State for the purpose of establishing DEP's d redge

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

that an underground pipe connection would satisfy DEP's dredge

and fill jurisdictional requirements.

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

wetland delineation team visi ted 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 completed

and filed a Field Report for Lake Bl ake, 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 the 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 an abnormal

drought conditions the area was then experiencing. Maddan, who

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

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

that date. Dr. Tobe conducted a further examination of the area

to determine the ordinar y 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, for purposes of

establishing DEP's dredge and fill juris diction. 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 the criteria set in this Memo randum 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

wetland 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 that unpermitted fill had been

pla ced within the surface waters of the State and in lacustrine

wetland.

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

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

filling or construction activities at Lake Blake without

obtaini ng 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 20, 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 the 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 intervals. Such discharged water fr om Lake

Blake ultimately is conveyed through the Okaloosa County

stormwater drainage system and released into the surface waters

of Cinco Bayou, a water body of the State of Florida.

49. The Okaloosa County stormwater drainage system

connecting Lake Blak e 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 permitting jurisd iction 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 author ity 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 - 3 12.050, Florida Administrative Code, sets out

the recognized exemptions to DEP's dredge and fill permitting

jurisdiction.

54. Respondents primarily rely on Rule 62 - 312.050(4),

Florida Administrative Code, which provides that "[n]o permit

under this chap ter shall be required 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 th e water management 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 therefore qualify

for this exemption.

55. Respondents also cite 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 m eets the test of

construction 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 exemptions established by Rule 62 -

312.050, Respondents cite 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 entire ly by one person other than 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 of not only

its "possible discharge " but because of its actual discharge on

the surface waters of Cinco Bayou.

57. Respondents also cite 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

are designed, constructed operated and maintained for stormwater

treatment, flood attenuation, or irrigation." Although Lake

Blake at least since 1976 has been utilized as part of Oka loosa

County's stormwater drainage system, which is located landward

of Cinco Bayou, it was not designed or constructed for

stormwater treatment, flood attenuation or irrigation, and it is

2 3

not being operated or maintained for stormwater treatment, flood

at tenuation or irrigation.

58. Lake Blake does not qualify for an exemption from

DEP's dredge and fill permitting jurisdiction.

CONCLUSIONS OF LAW

59. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

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

Burden of Proof

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

preponderance of the evidence its dredge and fill permitting

jurisdiction by showing that Lake Blake is connected to the

surface waters of th e State of Florida.

61. If DEP meets this burden, Respondents have the burden

of establishing by a preponderance of the evidence that their

activities in the surface waters and wetlands of Lake Blake are

otherwise exempt from dredge and fill permitting.

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

Respondents' activities are not otherwise exempt from dredge and

fill permitting, then DEP must prove the allegations of the NOV

by the preponderance of the evidence that the Respondents are

resp onsible for the violation. Section 403.121(2)(d).

Law Applicable in the Northwest District

63. 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 prog ram for the

Northwest 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 sh all

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 a t the time and which, 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

64. With respect to the enforcement of permitting

activities in waters o f the state, Rule 62 - 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 territoria l

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 prov ides in pertinent part:

. . . [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 determin ed in accordance with 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 Administ rative 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 Distric t of Florida.

65. 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 d redging 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 Northwe st Florida

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

Florida Administrative Code.

66. In construing these provisions, the interpretation of

an administering agency, here DEP, of its own statutes and rules

is "entitled to great defere nce 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

67. DEP has established by a preponderance of the evidence

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

jurisdiction.

68. DEP established by a preponderance of the evidence

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

of underground pipes exiting a culvert in Lake Blake and that

water frequently flows from Lake Blake to Cinco Bayou.

69. Bayous and excavated water bodies which connect

directly or via an excavated water body or series of excavated

water bo dies to bayous are surface waters of 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 "clear ly erroneous" and is therefore entitled to great

deference.

70. "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 inc luded within the dredge and fill

jurisdiction 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." C arter v. Penisular Fire

Insurance Company , 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 application of the intent expressed in Rule 62 -

312.045 does not mitigate against the exercise of DEP's dredge

and fill permitting jurisdiction.

Exemptions

71. Respondents have not proved their entitlement to a

specific exem ption from DEP's dredge and fill jurisdiction.

Respondents have not proved that any exemption cited is squarely

applicable to Lake Blake.

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

forth specific requirement to qualify for an exemption fr om

dredge and fill jurisdiction. 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

Coun ty's stormwater treatment 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 Ru le 62 - 312.050(4) are satisfied.

73. 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 Respondents di d not show were

supported in the record.

74. 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 nor maintained for sto rmwater treatment, flood

attenuation, or irrigation.

75. Respondents have not proved by a preponderance of the

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

jurisdiction squarely applies to Lake Blake.

Proof of Violation

76. DEP establis hed by a preponderance of the evidence

that the Respondents are responsible for the unpermitted fill

within surface waters of the State and lacustrine wetland.

Section 403.121(2)(d).

77. Unless specifically exempt, permits shall be required

for filling or placing material in, or over surface waters of

the state as provided in Rule 62 - 312.030, Florida Administrative

Code. Fla. Admin. Code R. 62 - 312.060.

78. "Filling is the deposition, by any means, of materials

in waters of the state." Fla. Admin. Code R. 62 - 312.020(11).

79. In spite of a non - jurisdictional letter being issued

on April 24, 2001, Respondents were aware that Lake Blake was

within DEP's dredge and fill jurisdiction prior to placing the

fill which is the subject of the present proceeding as evidenced

by the October 24, 2001, jurisdictional letter sent to

Respondents which stated, "this is a correction to the April 24,

2001 letter . . . ." Then on August 29, 2002, Respondent Maddan

applied for a dredge and fill permit to place a modular ho me on

a fill pad. By letter dated September 27, 2002, DEP informed

Mr. Maddan that the fill pad was considered unauthorized fill

placed in jurisdictional waters of the state, Lake Blake, and

that the dredge and fill permit has been denied.

80. The place ment of the two footbridges were activities

for which a permit may have been obtained from DEP.

81. In accordance with Section 403.121(3)(c), a $2,000

administrative penalty shall be assessed against Santa Rosa II,

Inc., and Santa Rosa Three, Inc., for p lacing unpermitted fill

within one - tenth of an acre of waters of the State, which

includes wetlands. DEP also assessed an additional fine of $500

for costs and expenses incurred by DEP. The total fines and

penalties assessed against Santa Rosa II, Inc., and Santa Rosa

Three, Inc., are $2,500.

82. Because the placement of the two pedestrian bridges

were activities in which a permit could have been obtained had

the Respondents sought a permit, DEP would have assessed an

additional $500 administrative fine for economic benefit of non -

compliance if the pedestrian bridges were allowed to remain in

place.

83. DEP ordered that all unpermitted fill, including the

two pedestrian bridges (also known as footbridges) be removed

and restoration to the impacted ar eas take place within 30 days

of the Notice of Violation.

84. Section 403.121(3)(c), provides that DEP shall assess

a $5,000 penalty against Lee Maddan as the contractor or agent

of the owner that conducts unpermitted filling.

85. DEP has identified co sts pursuant to Section

403.121(f) in the amount of $500 which are substantiated by the

record.

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ordered that a total of $2,500 in administrative

fines which includes the costs of this proceeding, and penalties

is hereby assessed against Santa Rosa II, Inc., and Santa Rosa

Three, Inc., jointly. Payment shall be made by cashier's check

or money order payable to the State of Florida, Department of

Environmental Protection, and sh all include thereon OGC Case No.

02 - 2049, and the notation "Ecosystem Management and Restoration

Trust Fund." The payment shall be sent to DEP, Northwest

District Office, 160 Governmental Center, Pensacola, Florida

32501 - 5794. All unpermitted fill shall be removed within 30

days of the effective date of this Order. Paragraphs 20 through

22 of the Orders for Corrective Action contained in the Notice

of Violation issued May 13, 2003, are hereby adopted as the

corrective actions mandated in the Final Order (Office of

General Counsel Case No. 02 - 2049, DOAH Case NO. 03 - 2040.)

It is further ordered that a $5,000 administrative fine is

assessed against Lee Maddan, individually, and that payment

shall be made within 30 days of the effective date of this Final

O rder. Payment shall be made by cashier's check or money order

payable to the State of Florida, Department of Environmental

Protection, and shall include thereon OGC Case No. 02 - 2049, and

the notation "Ecosystem Management and Restoration Trust Fund."

The payment shall be sent to DEP, Northwest District Office, 160

Governmental Center, Pensacola, Florida 32501 - 5794.

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

Tallahassee, Leon County, Florida.

S

RICHARD A. HIXSON

Administrative Law Judge

Divisi on of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 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 32399 - 3000

James E. Moore, Esquire

Post Off ice 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

Depart ment 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 Douglas Building, Mail Station 35

3900 Common wealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is 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 in the Appellate District

where the party resides. The notice of appeal must be filed

within 30 days of rendition of this Final Order.