07-003207 Southwest Florida Water Management District vs. Jose Fernando Aristizabal And Liliana Urrea Aristizabal Status: Closed Recommended Order on Thursday, August 21, 2008.

Summary: Petitioner proved that the surface water management system, with the dredge and fill of wetlands, required an environmental resource permit; the agricultural exemption defenses were not proved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 07-3207

)

JOSÉ FERNANDO ARISTIZABAL and LILIANA URREA ARISTIZABAL, )

)

)

Respondents. ) )

RECOMMENDED ORDER

On July 1-2, 2008, a formal administrative hearing was held

in this case in Bartow, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph J. Ward, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604-6899

For Respondents: José Fernando Aristizabal, pro se

Liliana Urrea Aristizabal, pro se

6650 Southwest 189th Way

Southwest Ranches, Florida 33332

STATEMENT OF THE ISSUES

The issues in this case include: whether the Respondents

constructed berms and ponds and dug ditches and filled wetlands

on their Property in Highlands County without required permits,

as alleged by the Southwest Florida Water Management District

(SWFWMD) in its Administrative Complaint; and, if so, whether the

Respondents are entitled to an agricultural exemption or an

agricultural closed system exemption under Section 373.406(2)-

(3), Florida Statutes.

PRELIMINARY STATEMENT

On or about June 11, 2007, SWFWMD filed and served an

Administrative Complaint and Order on Respondents. On July 3,

2007, Respondents requested an administrative hearing. After the

request was forwarded to DOAH, a final hearing was scheduled for

November 14-16, 2007, in Bartow. However, a Joint Motion for

Continuance was granted, and the final hearing was re-scheduled

for March 5-7, 2008. For various reasons, the final hearing was

again re-scheduled, ultimately to July 1-3, 2008.

At the final hearing, SWFWMD called as witnesses:

Harry Clark Hull, Jr., its Director of Environmental Permitting;

Jessie Graham Watson, III, a Senior Field Technician with SWFWMD;

José Fernando Aristizabal; Jeffrey Brent Whealton, a Senior

Agricultural Environmental Scientist with SWFWMD; and

Alex Aycrigg, an Environmental Scientist with SWFWMD. SWFWMD

also had admitted in evidence its Exhibits 1, 3, 5, 10-22, 24-27,

34, and 43-49, plus Exhibits 4-7, 9, and 15 to the deposition of

Mr. Aristizabal, which was identified as SWFWMD 37. The

Respondents re-called Messrs. Whealton, Hull, Aycrigg, and

Aristizabal and called Kenneth Griner, a civil engineer with

SWFWMD, as their witnesses. They also had their Exhibits 1 and 8

admitted in evidence, along with SWFWMD Exhibit 59.

During the hearing, the Respondents raised a new defense

under Section 373.406(6), Florida Statutes, for "activities that

the district or department determines will have only minimal or

insignificant individual or cumulative adverse impacts on the

water resources of the district." SWFWMD objected to the new

defense as being untimely, and the objection was sustained.

After the presentation of the evidence, SWFWMD ordered the

preparation of a Transcript, and the parties were given ten days

from the filing of the Transcript to file proposed recommended

orders (PROs). The Transcript was filed on August 4, 2008, and

SWFWMD's timely-filed PRO has been considered in the preparation

of this Recommended Order. The Respondents did not file a PRO.

FINDINGS OF FACT

Respondents' Activities on the Property

1. In August 2003, the Respondents, José Fernando and

Liliana Urrea Aristizabal, bought approximately 30 acres of land

in Highlands County, near Lake Placid, south of Miller Road, to

use for a palm tree nursery. This land (the Property) is in

Section 30, Township 36 South, Range 29 East. There was a large

marsh approximately in the center of the Property with additional

wetlands surrounding the large marsh.

2. On December 31, 2003, and again in February 2004,

representatives of SWFWMD informed Mr. Aristizabal that, due to

the presence of relatively high-quality wetlands on the Property,

the plant nursery he intended to establish there would require an

application for an environmental resource permit (ERP).

3. After receiving this information from SWFWMD,

Mr. Aristizabal retained a consultant to advise him. The

consultant advised Mr. Aristizabal on how to construct an

irrigation system that would be effective and permittable;

however, the consultant cautioned him that construction would

have to avoid impacting the wetlands on the Property. The

consultant also advised Mr. Aristizabal as to the location of the

wetlands on the Property, as well as the location of "potential

wetlands."

4. In response to the consultant's advice, Mr. Aristizabal

dug a circular ditch around the large marsh in the center of the

Property, with additional linear ditches radiating from the

central, circular ditch and intersecting with a second, larger

ditch around most of the perimeter of the irrigation system,

extending along the east, north, and west sides of the Property.

The ditches are approximately 5-7 feet wide and 5-7 feet deep.

The soil from the ditches was spread between the linear ditches

to raise the ground level and create planting beds.

Mr. Aristizabal also deposited fill to the north and east of the

perimeter ditch to create a berm approximately 4-6 feet wide and

2-4 feet high.

Effects on Surface Waters of the State

5. The evidence proved that there were approximately 11.64

acres of wetlands on the Property, including the large central

marsh. Most of the ditches dug by Mr. Aristizabal and most of

the fill deposited by him between the ditches were in wetlands.

In all, approximately 0.86 acres of the wetlands on the Property

were dredged, and approximately 4.97 acres of the wetlands on the

Property were filled. The ditches intercept, divert, and impound

surface water.

6. The berms--particularly, the berm on the north side of

the Property--also obstruct the flow of surface water.

Agricultural Exemption Defense

7. The Respondents did not apply for an agricultural

exemption under Section 373.406(2), Florida Statutes, from the

requirement to obtain an ERP. Instead, they raised the exemption

as a defense to SWFWMD's enforcement action.

8. Regarding the agricultural exemption defense, Mr.

Aristizabal's berms and his ditching and filling of wetlands

impounded, impeded, and diverted the flow of surface waters.

These effects more than incidentally trapped or diverted some

surface waters, e.g. , as occurs when a pasture is plowed. For

that reason, the activities were not consistent with the practice

of agriculture.

9. Even if those activities might be considered to be

consistent with the practice of agriculture, they had the

predominant purpose of impounding or obstructing surface waters.

The berms and the ditching and filling of wetlands obstructed

surface waters in that they had the effect of more-than-

incidentally diverting surface water from its natural flow

patterns. The ditches also impounded surface waters. SWFWMD

reasonably determined that the predominant purpose of the berms

and the ditching and filling of wetlands was to impound, impede,

divert, and obstruct the flow of surface waters.

Agricultural Closed System Exemption Defense

10. The Respondents did not apply for an agricultural

closed system exemption under Section 373.406(3), Florida

Statutes. Instead, they raised the exemption as a defense to

SWFWMD's enforcement action.

11. The Respondents did not prove that their construction

resulted in an "agricultural closed system." Rather, the

evidence was that surface waters of the state are discharged

from, and onto, the Property during most years.

Requested Corrective Action

12. SWFWMD seeks alternative corrective action by the

Respondents: expeditiously apply for and obtain an after-the-

fact permit; or expeditiously submit and perform an acceptable

plan to restore the land to its natural grade and to remediate as

necessary to restore any loss of wetland functions. The

specifics of the requested alternative corrective action are set

out in paragraphs 19 and 20 of the Administrative Complaint.

13. The requested alternative corrective actions are

reasonable.

CONCLUSIONS OF LAW

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

clear. See §§ 120.569 and 120.57, Fla. Stat. (2007).

15. SWFWMD is the administrative agency charged with the

responsibility to conserve, protect, manage, and control the

water resources of the state within its geographic boundaries,

and to administer and enforce Chapter 373, Florida Statutes, and

Florida Administrative Code Rule Chapters 40D-4 and 40D-40.

SWFWMD's jurisdiction is part of its enforcement case, and SWFWMD

has the burden to prove that the Respondents' alleged activities

required SWFWMD permits.

16. SWFWMD must prove its case-in-chief by a preponderance

of the evidence. See SJRWMD v. Modern, Inc., et al. , 784 So. 2d

464 (Fla. 1st DCA 2001), aff'g , DOAH Case Nos. 97-4389, etc.

(SJRWMD Dec. 9, 1999; DOAH June 15, 1999).

17. The Respondents have the burden of proof on their

exemption defenses. Citing Hough v. Menses , 95 So. 2d 410, 412

(Fla. 1957), and Key vattman , 959 So. 2d 339, 345 (Fla. 1st

DCA 2007), SWFWMD agrees that the standard of proof to be imposed

on the Respondents as to their exemption defenses is a

preponderance of the evidence.

18. As SWFWMD points out, as a statute enacted to protect

the public health, safety, and welfare from further harm to water

resources, Chapter 373, Florida Statutes, must be "liberally

construed in order to effectively carry out its purposes."

§ 373.616, Fla. Stat. (2007). Conversely, an exemption is

strictly construed against the party claiming the exemption. See

Samara Development Corp. v Marlow , 556 So. 2d 1097, 1100 (Fla.

1990); Heburn v. Dept. of Children and Families , 772 So. 2d 561,

563 (Fla. 1st DCA 2000); Pal-Mar Water Management District v.

Martin County , 384 So. 2d 232 (Fla. 4th DCA 1984).

Proof of Alleged Violations

19. The evidence proved that the Respondents' activities--

including the berms and the dredging and filling of wetlands--

constituted the construction or alteration of a "surface water

management system," as defined by Florida Administrative Code

Rule 40D-4.021, and "works," as defined by Section 373.403(5),

Florida Statutes. As such, a permit was required under Florida

Administrative Code Rules 40D-4.041 and 40D-44.041.

Agricultural Exemption Defense

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

Nothing herein, or in any rule, regulation,

or order adopted pursuant hereto, shall be

construed to affect the right of any person

engaged in the occupation of agriculture,

silviculture, floriculture, or horticulture

to alter the topography of any tract of land

for purposes consistent with the practice of

such occupation. However, such alteration may

not be for the sole or predominant purpose of

impounding or obstructing surface waters.

21. Section 403.927(4)(a), Florida Statutes, states:

"Agricultural activities" includes all

necessary farming and forestry operations

which are normal and customary for the area,

such as site preparation, clearing, fencing,

contouring to prevent soil erosion, soil

preparation, plowing, planting, harvesting,

construction of access roads, and placement

of bridges and culverts, provided such

operations do not impede or divert the flow

of surface waters.

22. The Conference Committee Report on CS/CS/HB 1187,

Journal of the House of Representatives, May 29, 1984, page 734,

and Journal of the Senate, May 28, 1984, page 475, recommended

enactment of the Warren S. Henderson Wetlands Protection Act of

1984, were voted on, and were approved by the House of

Representatives and the Senate. Both reports stated in pertinent

part:

The language contained in s. 403.913 [now

403.927], relating to agricultural

activities, shall be construed in conjunction

with s. 373.406(2) to exempt from permitting

only those activities defined as

"agricultural activities" pursuant to this

act in accordance with the Commentary to s.

4.02.(2) of the Model Water Code.

23. The Commentary to Section 4.02.(2) states in pertinent

part:

The intent of this subsection is to allow

persons engaged in agricultural,

floricultural, and horticultural operations

to engage in ordinary farming and gardening

without obtaining a construction permit under

§4.04. Theoretically, such operations may

incidentally trap or divert some surface

water. For example, by plowing a pasture a

farmer is trapping and diverting surface

water that would have constituted part of the

runoff and eventually would have become part

of the surface water of the state. Without

this exemption the farmer would have

theoretically been required to obtain a

permit under §4.04. In addition, it would

appear that all changes of topography which

would alter natural runoff, such as contour

plowing, would also require a construction

permit under §4.04. The quantity of the

water being diverted and trapped is so small

that it would serve no practical purpose to

require a permit for such work. In addition,

the administrative burden of regulating such

operations would be enormous.

24. The Respondents' construction of berms and dredging and

filling of wetlands had the effects of impounding and more-than-

incidentally trapping, obstructing or diverting surface water of

the state. For these reasons, the activities were not exempt

under Section 373.406(2), Florida Statutes.

Agricultural Closed System Exemption Defense

25. Section 373.406(3), Florida Statutes, exempts from

permitting " the construction, operation, or maintenance of any

agricultural closed system. However, part II of this chapter

shall be applicable as to the taking and discharging of water for

filling, replenishing, and maintaining the water level in any

such agricultural closed system."

26. The Respondents did not prove that their dredging and

filling of wetlands was part of " the construction, operation, or

maintenance of any agricultural closed system" used to maintain

the water levels within the system. It was not proved that the

system was closed.

Mrs. Aristizabal is a Proper Party

27. Although the evidence was that Mrs. Aristizabal did not

participate in the dredging and filling of wetlands, she is an

owner of the Property where the dredging and filling occurred.

Unless she was made a party, SWFWMD would not be able to obtain

an enforceable remedy for its Administrative Complaint.

28. Someone who has such an interest in the subject matter

of an action that a final adjudication cannot be made without

affecting the party's interest is an indispensable party. See

Glancy v. First W. Bank , 802 So. 2d 498 (Fla. 4th DCA 2001); W.R.

Cooper, Inc. v. City of Miami Beach , 512 So. 2d 324, 326 (Fla. 3d

DCA 1987); Phillips v. Choate , 456 So. 2d 556, 557 (Fla 4th DCA

1984).

29. As an owner of the Property where the dredging and

filling of wetlands occurred, Mrs. Aristizabal not only is a

proper party, she is an indispensable party, even though she

personally may not have been involved in those activities.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

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

Order requiring the Respondents to apply for the necessary after-

the-fact permit and/or restore wetland impacts, as described in

Finding 12, supra .

DONE AND ENTERED this 21st day of August, 2008, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of August, 2008.

COPIES FURNISHED :

David L. Moore, Executive Director

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604-6899

José Fernando Aristizabal

Liliana Urrea Aristizabal

6650 Southwest 189th Way

Southwest Ranches, Florida 33332

Joseph J. Ward, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.