07-002883EF Department Of Environmental Protection vs. Daniel A. Reynolds Status: Closed Recommended Order on Tuesday, August 12, 2008.

Summary: The charge that Respondent removed aquatic vegetation from property without a permit is sustained; corrective actions are required.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 07-2883EF

)

DANIEL A. REYNOLDS, )

)

Respondent. )

_______________________________ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on May 29, 2008,

in Sebring, Florida.

APPEARANCES

For Petitioner: Chadwick R. Stevens, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: Joseph D. Farish, Jr., Esquire

Law Offices Joseph D. Farish, Jr., LLC

Post Office Box 4118

West Palm Beach, Florida 33402-4118

STATEMENT OF THE ISSUE

The issue is whether Respondent, Daniel A. Reynolds, should

take corrective action and pay investigative costs for allegedly

controlling, eradicating, removing, or otherwise altering aquatic

vegetation on eighty-seven feet of shoreline adjacent to his

property on Lake June-in-Winter (Lake June) in Highlands County,

Florida, without an aquatic plant management permit.

PRELIMINARY STATEMENT

On May 15, 2007, Petitioner, Department of Environmental

Protection (Department), filed a Notice of Violation, Orders for

Corrective Action, and Administrative Penalty Assessment (Notice)

under Section 403.121(2), Florida Statutes. 1 The Notice alleged

that in July 2006, the Department conducted an inspection of

Respondent's property in Highlands County, Florida, and

discovered that the aquatic vegetation had been chemically

controlled, which resulted in eighty-seven feet of shoreline on

Lake June adjacent to Respondent's property being "devoid of

aquatic vegetation." The Notice further alleged that Respondent

had engaged in this activity without a permit in violation of

Section 369.20(7), Florida Statutes, and Florida Administrative

Code Rule 62C-20.002(1). For violating the statute and rule, the

Department sought to impose a $3,000.00 administrative penalty

and require repayment of reasonable investigative costs and

expenses. The Notice also described certain corrective actions

to be taken by Respondent.

On June 25, 2007, Respondent filed his Petition for

Administrative Proceeding in which he denied the allegations and

requested a hearing to contest the charges. The matter was

referred by the Department to the Division of Administrative

Hearings on June 29, 2007, with a request that an administrative

law judge be assigned to conduct a hearing. By Notice of Hearing

dated July 11, 2007, a final hearing was scheduled on August 28,

2007, in Sebring, Florida. On August 20, 2007, the Department

filed an unopposed Motion for Continuance of Final Hearing on the

ground the parties were seeking to settle the matter and

additional time was needed to conduct discovery. Thereafter, by

Order dated August 23, 2007, the matter was temporarily abated.

At the request of the parties, it was later rescheduled to

May 29, 2008, at the same location.

On April 24, 2008, the Department filed a Motion for Leave

to Amend Notice of Violation. By Order dated May 2, 2008, leave

to file an Amended Notice of Violation and Orders for Corrective

Action (Amended Notice) was granted. The Amended Notice modified

the original Notice by alleging that the aquatic vegetation in

Lake June had been controlled, eradicated, removed, or otherwise

altered rather than being chemically treated; eliminated the

imposition of an administrative penalty; requested recovery of

investigative costs and expenses of not less than $179.00; and

modified the corrective action by requiring Respondent to replant

126 Pickerelweed in Lake June and obtain a permit from the

Department to remove aquatic plants. Respondent's Answer to the

Amended Notice was filed on May 12, 2008. By eliminating the

request for an administrative penalty, the Department "retains

its final-order authority" in this matter. See § 403.121(2)(c),

Fla. Stat.

On May 23, 2008, the parties filed their Joint Pre-Hearing

Stipulation. By letter dated May 27, 2008, Respondent filed a

notice with opposing counsel advising that he intended to present

a previously undisclosed expert witness and offer several new

exhibits, including a digital video disc (DVD) of Respondent's

property taken in June 2007 and a series of nine photographs

taken in 2003 and 2007. In response to that notice, Petitioner

filed a Motion in Limine (Motion). Because the witness did not

appear at the hearing, that portion of the Motion was rendered

moot. With the exception of the photographs taken in 2007

(Respondent's Exhibits 1-4), the Department continues to object

to the introduction of the other photographs and DVD.

At the final hearing, the Department presented the testimony

of Respondent; Timothy C. Meier, who lives near Respondent on

Lake June; Erica C. Van Horn, a Regional Biologist with its

Bartow office and accepted as an expert; and William Caton, Chief

of the Bureau of Invasive Plant Management and accepted as an

expert. Also, it offered Department's Exhibits 1-8, which were

received in evidence. Respondent's ore tenus Motion to Dismiss

made at the conclusion of the Department's case-in-chief was

denied. Respondent testified on his own behalf and presented the

testimony of Brian Proctor, a consultant and accepted as an

expert; and Donna Reynolds, his wife. Also, he offered

Respondent's Exhibits 1-10. A ruling was reserved on Exhibits 5-

9, which are photographs of Respondent's and a neighbor's

property taken in June 2003, and Exhibit 10, a DVD of

Respondent's property recorded in June 2007, and which are the

subject of the Department's Motion in Limine. Exhibit 10 is

hereby received in evidence, while the objection to Exhibits 5-9

is sustained. 2 Finally, the undersigned has granted the

Department's request to take official recognition of Section

369.20, Florida Statutes, and Florida Administrative Code Rule

Chapter 62C-20.

A Transcript of the hearing (two volumes) was filed on

July 17, 2008. Proposed Findings of Fact and Conclusions of Law

were filed by Respondent and the Department on July 23 and 30,

2008, respectively, and they have been considered by the

undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

1. Respondent is the riparian owner of the property located

at 260 Lake June Road, Lake Placid, Highlands County (County),

Florida. He has owned the property since 2001 and resides there

with his wife and two young children. The parcel is identified

as Parcel ID Number C-25-36-29-A00-0171-0000. The southern

boundary of his property, which extends around eighty-seven feet,

abuts Lake June. Respondent has constructed a partially covered

dock extending into the waters of Lake June, on which jet skis, a

canoe, and other recreational equipment are stored.

2. The Department is the administrative agency charged with

protecting the State's water resources and administering and

enforcing the provisions of Part I, Chapter 369, Florida

Statutes, and the rules promulgated under Title 62 of the Florida

Administrative Code.

3. The parties have stipulated that Lake June is not

wholly-owned by one person; that it was not artificially created

to be used exclusively for agricultural purposes; that it is not

an electrical power plant cooling pond, reservoir, or canal; and

that it has a surface area greater than ten acres. As such, the

parties agree that Lake June constitutes "waters" or "waters of

the state" within the meaning of Florida Administrative Code Rule

62C-20.0015(23), and is not exempt from the Department's aquatic

plant management permitting program under Florida Administrative

Code Rule 62C-20.0035.

4. Unless expressly exempted, a riparian owner who wishes

to control, eradicate, remove, or otherwise alter any aquatic

plants in waters of the state must obtain an aquatic plant

management permit from the Department. See § 369.20(7), Fla.

Stat.; Fla. Admin. Code R. 62C-20.002(1). An aquatic plant is

defined as "any plant, including a floating plant, emersed,

submersed, or ditchbank species, growing in, or closely

associated with, an aquatic environment, and includes any part or

seed of such plant." See Fla. Admin. Code R. 62C-20.0015(1).

These plants are found not only in the water, but also along the

shoreline when the water recedes below the high water mark. They

provide important habitat for fish, insects, birds, frogs, and

other animals. Torpedo Grass and Maidencane are two common

species of aquatic plants or weeds.

5. Applications for a permit are filed with one of the

Department's regional offices. After a site inspection is made,

a permit is issued as a matter of right without charge or the

need for a hearing, and it is effective for a period of three

years. A Department witness indicated that there are

approximately 1,300 active permits at the present time, including

an undisclosed number of permits for property owners on Lake

June. 3 It is undisputed that Respondent has never obtained a

permit.

6. A statutory exemption provides that "a riparian owner

may physically or mechanically remove herbaceous aquatic plants

. . . within an area delimited by up to 50 percent of the

property owner's frontage or 50 feet, whichever is less, and by a

sufficient length waterward from, and perpendicular to, the

riparian owner's shoreline to create a corridor to allow access

for a boat or swimmer to reach open water." § 369.20(8), Fla.

Stat. The exemption was established so that riparian owners

could create a vegetation-free access corridor to the waterbody

adjacent to their upland property. The statute makes clear that

"physical or mechanical removal does not include the use of any

chemicals . . . ." Id. If chemicals are used, the exemption

does not apply. Under the foregoing exemption, Respondent could

remove up to 43.5 feet of aquatic vegetation in front of his

property on Lake June, or one-half of his eighty-seven foot

shoreline.

7. By way of background, since purchasing his property in

2001, Respondent has had a long and acrimonious relationship with

his two next door neighbors, Mr. Slevins (to the west) and

Mr. Krips (to the east). 4 Neither neighbor uses Lake June for

recreational purposes. After purchasing the property, Respondent

says that Mr. Slevin began to verbally harass and threaten his

family, particularly his wife. When Respondent observed the two

neighbors repeatedly trespassing on his property, including the

placing of an irrigation system and a garden over the boundary

lines, Respondent built a fence around his lot, which engendered

a circuit court action by the neighbors over the correct boundary

line of the adjoining properties. Respondent says the action was

resolved in his favor.

8. According to Respondent, Mr. Slevins and Mr. Krips have

filed "probably 100 to 200 different complaints on everything

from barking dogs, to weeding the yard to calling DEP."

Respondent also indicated that Mr. Slevins is a personal friend

of the Highlands County Lakes Manager, Mr. Ford. As his title

implies, Mr. Ford has the responsibility of inspecting the lakes

in the County. If he believes that aquatic vegetation has been

unlawfully removed or altered, he notifies the Department's South

Central Field Office (Field Office) in Bartow since the County

has no enforcement authority. Mr. Reynolds says that a personal

and social relationship exists between Mr. Slevins and Mr. Ford,

and through that relationship, Mr. Slevins encouraged Mr. Ford to

file at least two complaints with the Field Office alleging that

Respondent removed aquatic vegetation in Lake June without a

permit.

9. In 2002, the Department received a complaint about

"aquatic plant management activity" on Respondent's property.

There is no indication in the record of who filed the complaint,

although Respondent suspects it was generated by Mr. Slevins. In

any event, after an inspection of the property was made by the

then Regional Biologist, and improper removal of vegetation

noted, Respondent was sent a "standard warning letter" that asked

him "to let it regrow" naturally. According to the Department's

Chief of the Bureau of Invasive Plant Management, Mr. William

Caton, Respondent "did not" follow this advice.

10. In 2004, another complaint was filed, this time by the

Highlands County Lakes Manager. After an inspection was made,

another letter was sent to Respondent asking him to "let it

regrow," to implement a revegetation plan, and to contact the

Department's Regional Biologist. After receiving the letter,

Respondent's wife telephoned Mr. Caton, whose office is in

Tallahassee, and advised him that the complaint was the result of

"a neighbor feud." Among other things, Mr. Caton advised her

that the Department would not "get in the middle" of a neighbor

squabble. At hearing, he disputed Mrs. Reynolds' claim that he

told her to disregard the warning letter. He added that

Respondent did not "follow through with" the corrective actions.

11. As a result of another complaint being filed by the

Highlands County Lakes Manager in 2006, a field inspection was

conducted on July 12, 2006, by a Department Regional Biologist,

Erica C. Van Horn. When she arrived, she noticed that the

property was fenced and locked with a "Beware of Dog" sign.

Ms. Van Horn then went to the home of Mr. Slevins, who lives next

door, and was granted permission to access his property to get to

the shoreline.

12. The first thing Ms. Van Horn noticed was that the "lake

abutting 260 Lake June Road was completely devoid of vegetation."

She further noted that "on either side of that property [there

was] lush green Torpedo Grass." Ms. Van Horn found it "very

unusual" for the vegetation to stop right at the riparian line.

Although she observed that there was "a small percentage of

Maidencane" on the site, approximately ninety to ninety-five

percent of the frontage "was free of aquatic vegetation."

Finally, she noted that the dead Torpedo Grass on the east and

west sides of the property was in an "[arc] shape pattern," which

is very typical when someone uses a herbicide sprayer.

13. During the course of her inspection, Ms. Van Horn took

four photographs to memorialize her observations. The pictures

were taken from the east and west sides of Respondent's property

while standing on the Slevins and Krips' properties and have been

received in evidence as Department's Exhibits 1-4. They reflect

a sandy white beach with virtually no vegetation on Respondent's

shoreline or in the lake, brown or dead vegetation around the

property lines on each side, and thick green vegetation beginning

on both the Slevins and Krips' properties. The dead grass to the

east had been chopped into small pieces.

14. During her inspection, Ms. Van Horn did not take any

samples or perform field testing to determine if herbicides had

been actually used since such testing is not a part of the

Department's inspection protocol. This is because herbicides

have a "very short half life," and they would have broken down by

the time the vegetation turns brown leaving no trace of the

chemicals in the water. Ms. Van Horn left her business card at

the gate when she departed and assumed that Respondent would

contact her. On a later undisclosed date, Respondent telephoned

Ms. Van Horn, who advised him that he was out of compliance with

regulations and explained a number of ways in which he could

"come into compliance with these rules," such as revegetation.

She says he was not interested.

15. After her inspection was completed, Ms. Van Horn filed

a report and sent the photographs to Mr. Caton for his review.

Mr. Caton has twenty-seven years of experience in this area and

has reviewed thousands of sites during his tenure with the

Department. Based on the coloration of the vegetation right next

to the green healthy vegetation on the adjoining properties,

Mr. Caton concluded that the vegetation on Respondent's property

had "classic herbicide impact symptoms." He further concluded

that the vegetation had been chemically sprayed up to the

boundary lines on each side of Respondent's property before it

was cut with a device such as a weedeater. Based on the history

of the property involving two earlier complaints, Respondent's

failure to take corrective action, and the results of the most

recent inspection, Mr. Caton recommended that an enforcement

action be initiated.

16. On August 11, 2006, Ms. Van Horn sent Respondent a

letter advising him that a violation of Department rules may have

occurred based upon the findings of her inspection. The letter

described the unlawful activities as being "removal of aquatic

vegetation from the span of the total adjacent shore line and

significant over spray on to aquatic vegetation of neighboring

properties on either side of [his] property." Respondent was

advised to contact Ms. Van Horn "to discuss this matter."

17. On May 15, 2007, the Department filed its Notice

alleging that Respondent had "chemically controlled" the aquatic

vegetation on eighty-seven feet of his shoreline in violation of

Section 369.20(7), Florida Statutes, and Florida Administrative

Code Rule 62C-20.002(1). The Notice sought the imposition of an

administrative penalty in the amount of $3,000.00, recovery of

reasonable investigative costs and expenses, and prescribed

certain corrective action. On April 28, 2008, the Department

filed an Amended Notice alleging that, rather than chemically

removing the vegetation, Respondent had controlled, eradicated,

removed, or otherwise altered the aquatic vegetation on his

shoreline. The Amended Notice deleted the provision requesting

the imposition of an administrative penalty, expressly sought the

recovery of investigative costs and expenses of not less than

$179.00, and modified the corrective action.

18. After her initial inspection, Ms. Van Horn rode by the

property in a Department boat on several occasions while

conducting other inspections on Lake June and observed that the

property "was still mostly devoid of vegetation." At the

direction of a supervisor, on June 15, 2007, she returned to

Respondent's property for the purpose of assessing whether any

changes had occurred since her inspection eleven months earlier.

This inspection was performed lakeside from a Department boat

without actually going on the property, although she spoke with

Respondent's wife who was standing on the dock. Ms. Van Horn

observed that the area was still "devoid of vegetation but there

was some Torpedo Grass growing back on the [eastern] side." She

estimated that "much more" than fifty percent of the shoreline

was free of vegetation. Photographs depicting the area on that

date have been received in evidence as Department's Exhibits 5-7.

19. Both Respondent and his wife have denied that they use

any chemicals on their property, especially since their children

regularly swim in the lake in front of their home. Respondent

attributes the loss of vegetation mainly to constant use of the

back yard, dock area, and shoreline for water-related activities,

such as swimming, using jet skis, fishing, and launching and

paddling a canoe. In addition, the Reynolds frequently host

parties for their children and their friends, who are constantly

tramping down the vegetation on the shoreline and in the water.

He further pointed out that beginning with the house just beyond

Mr. Krip's home, the next five houses have "no vegetation"

because there are some areas on the lake that "naturally do not

have any vegetation across them." Finally, he noted that Lake

Juno suffered the impacts of three hurricanes in 2004, which

caused a devastating effect on its vegetation.

20. Respondent presented the testimony of Brian Proctor, a

former Department aquatic preserve manager, who now performs

environmental restoration as a consultant. Mr. Proctor visited

the site in June 2007 and observed "full and thick" Torpedo Grass

"growing in the east and west of the property lines." Based on

that inspection, Mr. Proctor said he was "comfortable stating

that at the time [he] did the site visit in June of '07 there was

nothing that appeared to be chemical treatment on Mr. Reynold's

property." He agreed, however, that the "shoreline vegetation

was poor," and he acknowledged that it was unusual that Lake Juno

was lush with aquatic vegetation in front of the neighboring

properties to the east and west but stopped at Respondent's

riparian lines. When shown the June 2006 photographs taken by

Ms. Van Horn, he acknowledged that it "appeared" the property had

been chemically treated. He was able to make this determination

even though a soil test had not been performed.

21. Photographs introduced into evidence as Respondent's

Exhibits 1-4 reflect that on June 27, 2007, there was thick green

vegetation on both sides of his property, although one photograph

(Respondent's Exhibit 1) shows only limited vegetation along the

shoreline and in the lake in the middle part of the property.

The photographs are corroborated by a DVD recorded by Respondent

on the day that Ms. Van Horn returned for a follow-up inspection.

While these photographs and DVD may impact the amount of

corrective action now required to restore the property to its

original state, they do not contradict the findings made by

Ms. Van Horn during her inspection on July 12, 2006. Finally,

photographs taken in 2003 to depict what appears to be chemical

spraying of vegetation and the construction of a bulkhead without

a permit by Mr. Slevins have no probative value in proving or

disproving the allegations at issue here.

22. The greater weight of evidence supports a finding that

it is very unlikely that heavy usage of the shoreline and

adjacent waters in the lake by Respondent's family and their

guests alone would cause ninety-five percent of the shoreline and

lake waters to be devoid of vegetation when the inspection was

made in July 2006. Assuming arguendo that this is true,

Respondent was still required to get a permit since the amount of

vegetation altered or removed through these activities exceeded

more than fifty percent of the vegetation on the shoreline.

23. More than likely, the vegetation was removed by a

combination of factors, including recreational usage, mechanical

or physical means, and the application of chemical herbicides on

each riparian boundary line, as alleged in the Amended Notice.

The fact that the Department did not perform any testing of the

water or soil for chemicals does not invalidate its findings.

Finally, the acrimonious relationship that exists between

Respondent and his neighbors has no bearing on the legitimacy of

the charges. Therefore, the allegations in the Amended Notice

have been sustained.

24. The parties have stipulated that if the charges are

sustained, Respondent is entitled to recover reasonable costs and

expenses associated with this investigation in the amount of

$179.00.

25. As corrective action, the Amended Notice requires that

Respondent obtain a permit to remove Torpedo Grass from his

property and to replant "126 well-rooted, nursery grown

Pontederia cordata ("pickerelweed") at the locations depicted on

the map" attached to the Amended Notice. Because the evidence

suggests that some of the area in which vegetation was removed in

2006 had regrown by July 2007, the proposed corrective action may

be subject to modification, depending on the current state of the

property.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569, 120.57(1), and 403.121, Florida

Statutes.

27. Section 403.121(2), Florida Statutes, prescribes the

administrative enforcement process for the Department "to

establish liability and to recover damages for any injury to the

air, waters, or property . . . of the state caused by any

violation." Under that process, the Department is authorized to

"institute an administrative proceeding to order the prevention,

abatement, or control of the conditions creating the violation or

other appropriate corrective action." § 403.121(2)(b), Fla.

Stat. The process is initiated by "the department's serving of a

written notice of violation upon the alleged violator by

certified mail." § 403.121(2)(c), Fla. Stat. If a hearing is

requested by the alleged violator, "the department has the burden

of proving with the preponderance of the evidence that the

respondent is responsible for the violation." § 403.121(2)(d),

Fla. Stat. Thereafter, "the administrative law judge shall issue

a final order on all matters, including the imposition of an

administrative penalty." Id. In the event an administrative

penalty is not sought, "[t]he department retains its final-order

authority." Id. Therefore, a recommended order is being entered

in this case.

28. In Count I of the Amended Notice, the Department has

alleged that "aquatic vegetation had been controlled, eradicated,

removed, or otherwise altered in Lake June-in-Winter adjacent to

[Respondent's] property." Count II seeks the recovery of

expenses incurred to date while investigating this matter in the

amount of not less than $179.00.

29. By a preponderance of evidence, the Department has

established that the aquatic vegetation has been controlled,

eradicated, removed, or otherwise altered in Lake June adjacent

to Respondent's property without a permit. § 369.20(7), Fla.

Stat. Therefore, the charge in Count I has been sustained.

30. Because an administrative penalty has not been sought

by the Department, it is unnecessary to consider mitigating

evidence that would otherwise be presented for mitigating the

amount of the penalty. See § 403.121(10), Fla. Stat.

31. Section 403.141(1), Florida Statutes, allows the

Department to recover "the reasonable costs and expenses of the

state" in investigating enforcement matters. The parties have

stipulated that the Department is entitled to recover $179.00.

32. In paragraphs 11 through 16 of the Amended Notice, the

Department describes the corrective action to be taken in order

to redress the violations. In general terms, Respondent is

required to apply for a permit and to plant 126 pickerelweed at

locations depicted on a map attached to the Amended Notice. This

corrective action appears to be reasonable and should be

approved. However, given that some vegetation has regrown on

Respondent's property since the 2006 inspection, the Department

should reinspect the site to determine if the corrective action

should be modified.

33. Finally, Section 403.121(2)(f), Florida Statutes,

provides in part that "[i]n any administrative proceeding brought

by the department, the prevailing party shall recover all costs

as provided in ss. 57.041 and 57.071. The costs must be included

in the final order." Because the undersigned is entering a

recommended order, and no evidence on this issue was presented,

no findings on the recovery of costs have been made. Likewise,

Respondent's request for reasonable attorney's fees and costs

pursuant to Section 57.105, Florida Statutes, is denied.

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Department

sustaining the charges in the Amended Notice. It is further

recommended that the corrective actions described in the Amended

Notice be taken by Respondent, to the extent they are now

necessary. Finally, the Department is entitled to recover

$179.00 in costs and expenses incurred while investigating this

matter.

DONE AND RECOMMENDED this 12th day of August, 2008, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of August, 2008.

ENDNOTES

1/ All references herein to the Florida Statutes are to the 2007

version.

2/ Videotapes and DVDs are admissible on the same basis as still

photographs. In this case, Respondent established a foundation

for the DVD's admission by testifying that it was a fair and

accurate depiction of his property on June 27, 2007. The

Department also objected on the ground it had no opportunity to

examine the DVD until the hearing. The record shows, however,

that the DVD was shown to the original Department counsel (who was

later replaced by present counsel) at a mediation session in

August 2007. As to the challenged photographs (Exhibits 5-9),

which depict the shorelines on both Respondent's and Mr. Slevins'

property in June 2003, as noted in Finding of Fact 21, supra , they

have no probative value in resolving the issues in this case.

3/ When a permit is issued to remove invasive plants, the

property owner may be required to replant something in its place,

depending on whether the owner has sufficient plants already on

the site to reestablish the area.

4/ Mr. Krips is spelled as "Krips" in the Pre-Hearing

Stipulation, as "Cripps" in the Transcript, and as "Kribs" by a

witness who was asked to spell the name. The first version has

been used in this Recommended Order.

COPIES FURNISHED:

Chadwick R. Stevens, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Joseph A. Farish, Jr., Esquire

Law Offices Joseph D. Farish, Jr., LLC

Post Office Box 4118

West Palm Beach, Florida 33402-4118

Lea Crandall, Agency Clerk

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

Gregory M. Munson, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within 15

days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.