08-002081EF Department Of Environmental Protection vs. John Jozsa Status: Closed DOAH Final Order on Monday, September 22, 2008.

Summary: Respondent dredged and filled 1.4 acres of wetlands without a permit. It is ordered that a $3,000.00 fine be imposed and extensive corrective actions imposed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 08-2081EF

)

JOHN JOZSA, )

)

Respondent. )

_______________________________ )

FINAL ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

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

in Bushnell, Florida.

APPEARANCES

For Petitioner: Alissa Blank Meyers, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

For Respondent: John Jozsa, pro se

1978 County Road 652A

Bushnell, Florida 33513-9006

STATEMENT OF THE ISSUE

The issue is whether Respondent, John Jozsa, should have a

$6,000.00 administrative penalty imposed, take corrective action,

and pay investigative costs for allegedly dredging 0.91 acres of

wetlands and filling 0.52 acres of wetlands without a permit on

his property located in unincorporated Sumter County, Florida, as

alleged in a Notice of Violation, Orders for Corrective Action,

and Administrative Penalty Assessment (Notice) issued by

Petitioner, Department of Environmental Protection (Department),

on March 13, 2008.

PRELIMINARY STATEMENT

On March 13, 2008, the Department filed a three-count Notice

under Section 403.121(2), Florida Statutes, 1 alleging that during

an inspection of Respondent's property in November and December

2006 Department representatives observed that he had "dredged

approximately 0.91-acres of wetlands on the property without a

permit" and had "filled approximately 0.52-acres of wetlands

without a permit" in violation of Florida Administrative Code

Rule 62-343.050. The Notice further alleged that by doing so,

Respondent had also violated Section 403.161(1)(b), Florida

Statutes, which makes it unlawful to violate a Department rule.

For violating the statute and rule, the Department seeks to

impose administrative penalties in the amount of $6,000.00,

require Respondent to take certain corrective actions to restore

the property to its original condition, and recover reasonable

costs and expenses of not less than $500.00 incurred while

investigating this matter.

Through counsel, on April 15, 2008, Respondent filed with

the Department his Petition for Formal 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 April 24, 2008,

with a request that an administrative law judge be assigned to

conduct a hearing. By Notice of Hearing dated May 1, 2008, a

final hearing was scheduled on July 15, 2008, in Bushnell,

Florida.

On May 13, 2008, Respondent's counsel filed a Motion for

Withdrawal of Counsel, and then an Amended Motion for Withdrawal

of Counsel, which was granted by Order dated May 27, 2008. 2 That

Order also rescheduled the hearing to July 29, 2008, and granted

Respondent additional time to respond to outstanding discovery.

Thereafter, Respondent, a lay person, represented himself in this

proceeding.

Prior to hearing, numerous procedural and discovery disputes

arose between the parties. Most of these disputes were resolved

through multiple orders entered on June 30, July 3, and July 15,

2008. On July 21, 2008, the Department filed a Motion for

Partial Summary Final Order, which was denied at hearing on the

ground disputed facts still existed regarding whether the

property in question was wetlands and whether Respondent had

"graded" his property. On July 25, 2008, the Department filed a

Motion in Limine to exclude the testimony and exhibits of two

experts retained by Respondent. That portion of the Motion

seeking to prevent the testimony of the two experts was rendered

moot when they did not appear at the final hearing. 3

At the final hearing, the Department presented the testimony

of David Brian Brown, a Department Environmental Specialist III

and accepted as an expert; Lee W. Hughes, a Department

Environmental Specialist II; Lindsay L. Brock, a former

Department employee; and Respondent. Also, it offered

Department's Exhibits 1-22, which were received in evidence.

Respondent did not present any witnesses but offered Respondent's

Exhibits 1a. through k., 2a. through j., 3, and 4, which are the

items listed on his exhibit list filed on July 28, 2008. 4 Some

of the exhibits duplicate exhibits offered by the Department.

Respondent's Exhibits 2.d. and 2.e. are the reports of two

experts (Dr. Taylor and Mr. Czerwinski). The Department has

objected to their admissibility on the ground the reports are

hearsay since the witnesses were not present. Subject to that

objection, the reports and other documents have been received and

considered to the extent they are relevant and probative of the

issues in this case.

On August 1, 2008, Respondent filed a notebook containing

documents and photographs marked as Respondent's Exhibits 1-16.

Presumably, these were intended to be a substitute for the

exhibits originally offered. Also, on August 23, 2008,

Respondent filed a paper styled "Notice," which indicated that a

deposition of David Brian Brown, a Department employee deposed by

Respondent on July 8, 2008, had "finally . . . been transcribed"

and received by Respondent the previous day. On August 28, 2008,

a copy of the deposition was filed with the Clerk's Office. Both

filings (the exhibits and the deposition) were made after the

record was closed on July 29, 2008, and without notice to the

Department or authorization by the undersigned.

On August 25, 2008, the Department filed a Motion to

Suppress Deposition and Objection to and Motion to Strike All

Documents Filed After the Final Hearing (Motions). The following

day, Respondent filed a Motion to Strike that filing. A paper

styled "Respondent's Addition/Correction to his Motion to Deny"

(which was presumably intended to supplement his Motion to

Strike) was filed by Respondent on August 27, 2008. Because

Respondent did not seek leave, nor was he authorized, to late-

file documents after the hearing, and he did not have the

agreement of the opposing party, the Department's Motions are

hereby granted.

Finally, the undersigned granted the Department's Request

for Judicial Notice [Official Recognition] of Chapters 373 and

403, Part IV, Florida Statutes; Sections 373.019, 373.403,

373.421(1), 403.031, 403.061, 403.121, 403.141, and 403.161,

Florida Statutes; and Florida Administrative Code Rule Chapter

62-340 and Rule 62-343.050.

There is no transcript of the hearing. By agreement of the

parties, the time for filing proposed findings of fact and

conclusions of law was extended to thirty days after the final

hearing, or by August 28, 2008. A Proposed Final Order and

Proposed Recommended Order were filed by the Department and

Respondent on August 26 and 27, 2008, respectively, and they have

been considered by the undersigned in the preparation of this

Final Order. On September 8, 2008, Respondent filed a paper

styled "Respondent's Exceptions and Responses to Petitioner's

Proposed Final Order and Request for Judicial Notice." On

September 9, 2008, he filed a paper styled "Respondent's Motion

to Amend his Exceptions and Responses and Judicial Notice to

Petitioner's Proposed Final Order." Because the filings are

neither authorized nor contemplated under the Uniform Rules of

Procedure, they have not been considered. 5

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

A. The charges

1. Respondent owns an approximate 4.5-acre parcel of land

located at 1978 County Road 652A in unincorporated Sumter County,

Florida. The parcel identification number is N29A003. The

property is generally located east of Interstate 75, west of

U.S. Highway 301, and just south of the City of Bushnell.

According to aerial photographs, County Road 652A appears to

begin at U.S Highway 301 and runs in a westerly direction where

it forms the southern boundary of Respondent's parcel and

terminates a short distance later. Southwest 80th Street also

runs west from U.S. Highway 301 and forms the northern boundary

of the property, while Southwest 20th Terrace runs in a north-

south direction adjacent to its western boundary. Respondent

purchased the parcel on September 27, 1993, and constructed a

home on the site several years later. The property is contiguous

to Mud Lake, a Class III waterbody lying to the southeast of

Respondent's property. According to Respondent's Exhibit 2.b.,

at least a portion of the property is in the Federal Emergency

Management Agency's (FEMA's) 100-year flood zone.

2. While conducting a site inspection near Respondent's

property on September 27, 2006, Brian Brown, an Environmental

Specialist III in the Department's Tampa District Office, heard

"heavy equipment" operating nearby and drove to Respondent's

home. There he observed a "tracked vehicle" resembling a

bulldozer "knocking down trees" and grading an area that appeared

to be wetlands. Mr. Brown took photographs of the cleared land

and the tracked vehicle to confirm his observations. See

Department's Exhibits 2a. through d. At hearing, Respondent

acknowledged that he had borrowed the equipment from a friend,

Leo, to "level and smooth" the "uplands" and "other areas."

3. After returning to his office, Mr. Brown first confirmed

through information from the Sumter County Appraiser's Office

that Respondent owned the property in question. He then reviewed

aerial photographs of Respondent's property taken in 1993, 1997,

2002, and 2006 to determine the condition of the property in

earlier years. These photographs reflected that before 2006, the

parcel had no large cleared area like the one that he had

observed on the northern half of the property. Mr. Brown also

studied a soil survey of the area to determine the type of soils

on Respondent's property, and he reviewed the Florida Wetlands

Delineation Manual which is used to determine if property is

wetlands or uplands. Finally, information in the Department's

database revealed that Respondent had not applied for a permit to

conduct the observed activities.

4. Based on this preliminary information, Mr. Brown

generated a request for a formal inspection of Respondent's

property by filling out a complaint form. (Respondent continues

to believe that Mr. Brown was not conducting a "routine"

inspection in the area but rather was in the area because a

neighbor had filed a complaint; however, the complaint was

triggered by Mr. Brown, who filed a complaint form himself based

on the observations he made on September 27, 2006.) Mr. Brown

then contacted Respondent by letter to set up a date on which the

property could be formally inspected to verify "that Wetlands and

or Surface Waters of the State are not being impacted." In

response to Mr. Brown's letter, Respondent advised the Department

that it could inspect his property.

5. Around 1:30 p.m. on November 14, 2006, Mr. Brown and Lee

W. Hughes, another Department employee, inspected Respondent's

property to determine whether Respondent's activities were

conducted within wetlands and to what extent wetlands were

impacted. Respondent was present during the inspection. The

employees' observations are memorialized in photographs received

in evidence as Department's Exhibits 11A through 11N. The two

observed a "large" area north of Respondent's home that had been

totally cleared and deforested. The center of the cleared

property had been dredged or scraped to create a pond-like area

several feet lower than the adjoining land, while the soils

removed from the pond-like area had been used to create

sculptured white side-casting perhaps ten inches high on the

edges of the pond, filling additional wetlands. However, the

pond was empty because of drought conditions.

6. The Department's inspection revealed that the cleared

area was wetlands because of the presence of various plant

species which are indicative of wetlands, including Swamp Tupelo,

Red Maple, American Elm, Swamp Dogwood, Dahoon Holly, Buttonbush,

Swamp Laurel Oak, Carolina Willow, Elderberry, Soft Rush,

Smartweed, and Dayflower. Also, there were hydrologic indicators

such as water stain lines, elevated lichen lines, and

hypertrophied lenticels. Finally, there were hydric soils found

on the property. This was confirmed by ground-truthing (an on-

site evaluation of the wetlands and their parameters to verify

the on-site conditions), which revealed dark top soil at least

four inches thick and the presence of muck. Collectively, these

indicators are sufficient to make a finding that the impacted

area was wetlands. See Fla. Admin. Code R. 62-340.200 and

Department's Exhibit 9. The fact that the "home-site ha[d] [not]

been delineated [as wetlands] by any other governmental agency,"

as asserted by Respondent in his Proposed Recommended Order, is

not dispositive of the issue. Respondent's assertion that no

dredged materials were taken off-site, and no fill was brought

onto the property, was not challenged.

7. A second inspection was conducted by Mr. Brown and

Lindsay L. Brock, then a Department employee, on December 19,

2006, for the purpose of mapping the actual size of the impacted

area with Global Positioning Satellite (GPS) equipment. 6 The

second inspection was necessary since the Department's GPS

equipment was inoperative during the first inspection. Based on

Ms. Brock's GPS calculations, which have been received in

evidence as Department's Exhibit 19, the Department determined

that the total area dredged was 0.91 acres, while the filled area

was 0.52 acres. The total impacted area was 1.4 acres of

wetlands. This amount was calculated by measuring the size of

the pond, 0.91 acres, with the side-casting accounting for the

remaining 0.52 acres. During the inspection, the area was also

photographed a second time, and these photographs have been

received in evidence as Department's Exhibits 12A through 12K.

8. An Enforcement Inspection Report (Report) was later

prepared by Mr. Brown summarizing the findings of the two

inspections. That Report has been received in evidence as

Department's Exhibit 10 and Respondent's Exhibit 1.e. At

hearing, Mr. Brown reaffirmed that the findings in the Report

were correct. Specifically, the wetlands in the disturbed area

were characterized as having a dominance of Obligate and

Facultative Wet species and numerous hydrologic indicators, as

well as soils typically found in wetlands. A jurisdictional

determination established that the impacted property was

wetlands; that there were adverse impacts caused by the

violations, i.e. , impacts described in Sections 3.2.3.2, 3.2.3.3,

3.2.3.4(a), and 3.2.3.7 of the Basis of Review of the Southwest

Florida Water Management District; and that there were cumulative

and secondary impacts associated with the violations, i.e. , the

actual loss of 1.4 acres of forested hardwood wetlands (Gum

Swamp-613), habitat loss, the alteration in the normal flow of

detrital material to Mud Lake, and the reduction in the system's

ability to cycle and control nutrient and pollutant levels.

Because the impacted lands were wetlands, a permit is required in

order to perform any dredging and filling. See Fla. Admin. Code

R. 62-343.050. The Report recommended that a Notice be issued.

9. On February 13, 2007, the Department's Tampa District

Office sent Respondent a Warning Letter advising him "of possible

violations of law for which [he] may be responsible, and to seek

[his] cooperation in resolving the matter." Department's Exhibit

22 and Respondent's Exhibit 1.h. The letter also requested that

Respondent meet with Mr. Brown to discuss the alleged violations.

A meeting was held at the District Office on March 12, 2007, but

efforts to resolve the matter were unsuccessful.

10. During the informal discussions between the parties,

and prior to the issuance of a Notice, Respondent requested an

exemption under Section 373.406(1) and (6), Florida Statutes. 7

The first subsection provides that no Department rule,

regulation, or order affects the right of any person to capture,

discharge, and use water "for purposes permitted by law." The

second subsection provides that the Department may exempt "those

activities that the . . . department determines will have only

minimal or insignificant individual or cumulative adverse impacts

on the water resources of the district." At hearing, Mr. Brown

indicated that he did not respond to the exemption request

because Respondent did not qualify. This is because dredging and

filling of wetlands is not "permitted by law" without first

obtaining a permit, and because, for the reasons cited in its

Report, the Department construed the activities as having more

than "minimal or insignificant" impacts. Given these

circumstances, the statutory exemptions do not apply. The Notice

was not issued until a year later on March 13, 2008. The reason

for the delay is not of record.

11. Besides contending that Mr. Brown's testimony was not

credible, through examination of witnesses and the submission of

various exhibits, Respondent raised numerous points to support

his contentions that (a) the property is not wetlands, (b) no

dredging or filling occurred, and (c) the activities are exempt

from Department permitting requirements under several statutes. 8

He also argued that the Department's decision to initiate an

enforcement action against him was flawed or biased. The latter

argument has been considered and rejected.

12. Respondent first asserts that the wetlands on his

property were already stressed and in bad condition, and that

clearing the area and replanting vegetation in and around the

pond area created a healthier environment for the vegetation and

plants. While Mr. Brown conceded that the wetlands may have been

stressed, that in itself does not cause the impacted property to

lose its wetlands character, and a permit to dredge and fill the

site is still required.

13. Respondent also pointed out that the impacted area was

dry before and after the activities occurred, and therefore the

wetlands determination was incorrect. He further points out that

the Department's representatives agreed that no water or moisture

on the ground surface were observed during their two inspections.

Given the number of wetland indicators found on the site even

during drought conditions, the argument that the property is not

wetlands has been rejected. See Finding of Fact 6, supra .

14. Respondent also argued that an authoritative source

(Hydric Soils of Florida Handbook) indicates that the soils in

that area of the County are not the type typically found on

wetlands. Specifically, the predominant soil on his property is

identified as "Kanapaha sand, bouldery subsurface (25)," which is

not considered a hydric soil. Mr. Brown explained, however, that

notwithstanding what another source may state, it is necessary to

verify the type of soil by performing field tests at the site.

Ground-truthing performed during the first inspection confirmed

the presence of soils typically found in wetlands. See Finding

of Fact 7, supra .

15. Respondent also questioned the accuracy of the

Department's Exhibit 18, which is an aerial of Respondent's

property created by Mr. Brown in February 2008 depicting a pond

filled with water in the middle of the cleared area. Respondent

contended that the map could not be accurate since the pond area

was dry in February 2008 due to drought conditions. In response

to this criticism, Mr. Brown noted that the map was not supposed

to represent an actual aerial photograph taken in 2008. Rather,

it was created for the purpose of superimposing on the property

the pond-like area (with water added) observed during the 2006

inspections and was intended only to demonstrate the pond's size

in relation to the size of the entire parcel. The exhibit was

not tendered for the purpose of proving that the dredging and

filling had occurred.

16. Through examination of Mr. Brown, Respondent attempted

to show that he qualified for a stormwater exemption under

Section 403.813(2)(q), Florida Statutes, on the theory that his

activities fell within the purview of that law. The statute

exempts from permitting requirements the construction, operation,

and maintenance of a stormwater management facility which is

designed to "serve single-family residential projects, including

duplexes, triplexes, and quadruplexes, if they are less than 10

acres total land and have less than 2 acres of impervious surface

and if the facilities" satisfy three conditions. One condition

is that the facility must "discharge into a stormwater discharge

facility exempted or permitted by the department under this

chapter which has sufficient capacity and treatment capability as

specified in this chapter and is owned, maintained, or operated

by a city, county, special district with drainage responsibility,

or water management district . . . ." Id. Therefore, even if

the pond-like area could be characterized as a stormwater

facility, Respondent still does not meet the requirements of the

statute since his "facility" does not discharge into another

exempt or permitted facility as defined in the statute. In this

case, the waters eventually discharge into Mud Lake, which was

not shown to be an exempt or permitted stormwater facility.

17. Respondent also questioned the manner in which the

Department calculated the size of the impacted area for purposes

of assessing an administrative penalty. See Department's Exhibit

21 and Respondent's Exhibit 1.j., in which penalties are assessed

based on the dredged and filled areas each being "greater than

one-half acre but less than or equal to one acre." Specifically,

he argues that the combined dredged and filled areas exceed one

acre in size, and under the terms of Section 403.121(3)(c),

Florida Statutes, the administrative penalty schedule in the

cited statute does not apply. To support this contention,

Respondent noted that in responding to discovery, the Department

acknowledged that the total impacted area was 1.4 acres.

18. Section 403.121(3)(c), Florida Statutes, provides in

relevant part that "the administrative penalty schedule shall not

apply to a dredge and fill violation if the area dredged or

filled exceeds one acre." In assessing penalties under the

statute, the Department considers the dredging and filling as two

separate violations. See Counts I and II, Notice. Therefore, it

did not combine the two impacted areas for purposes of

calculating a penalty under the administrative penalty schedule.

While the statute is inartfully drawn and is arguably susceptible

to more than one interpretation, the Department's interpretation

is a reasonable and permissible one, and its computation is

hereby accepted. (If Respondent's construction of the statute

was approved, and the two impacted areas were combined, this

would not mean that the Department could not assess a penalty.

Rather, it appears the Department would then have the choice of

(a) filing an action in circuit court seeking the imposition of

civil (rather than administrative) penalties, or (b) assessing an

administrative penalty under Section 403.121(9), Florida

Statutes, which did not exceed $5,000.00 per violation or

$10,000.00 for all violations.)

19. Respondent also contended that he was simply performing

landscaping and gardening activities with a tracked vehicle, and

that no "excavation" within the meaning of Section 373.403(13),

Florida Statutes, occurred. That statute defines dredging as

"excavation, by any means, in surface waters or wetlands." 9 On

the other hand, "filling" is defined in Section 373.403(14),

Florida Statutes, as "the deposition, by any means, of materials

in surface waters or wetlands." On this issue, the evidence

shows that Respondent used a tracked vehicle to remove, scrape,

and/or push soils from the wetlands to create the pond-like area

and then deposited those materials in other wetlands around the

sides of the pond to create the side casting. This activity

constituted dredging and filling, as defined above.

20. The remaining arguments of Respondent have been

carefully considered and rejected. The preponderance of the

evidence supports a finding that Respondent engaged in dredging

and filling in wetlands without a permit, as alleged in the

Notice, and that the charges have been sustained.

B. Mitigation

21. In its Proposed Final Order, the Department contends

that Respondent presented no mitigation and therefore the

administrative penalties should not be reduced. Mitigating

circumstances include, among other things, "good faith efforts

[by the violator] to comply prior to or after discovery of the

violations by the department." § 403.121(10), Fla. Stat. After

the area was dredged and filled, Respondent replanted some trees

and plants while landscaping his back yard. Also, prior to

hearing, he engaged the services of two experts to prepare an

evaluation of the charges in the Notice, inspect the property,

and submit suggested corrective actions for restoring the

impacted area to its original condition. Although the two

experts did not appear at hearing, they did render reports which

contained proposed corrective actions, and their work should

arguably be construed as a good faith effort by Respondent to

comply with the Department's requirement that the property be

restored to its original condition.

C. Corrective Actions

22. The Department has proposed extremely lengthy and

detailed corrective actions which are contained in paragraphs 17

through 31 of the Notice and are designed to restore the property

to its original condition. (Presumably, these are standard

corrective actions imposed in cases such as this for restoring

dredged and filled wetlands.) At hearing, Mr. Brown described

the nature and purpose of these conditions, which can generally

be summarized as (a) requiring that the entire 1.43-acre area be

filled and/or regraded to its original contour elevation so that

the replanting efforts will be successful, and (b) requiring a

rigorous replanting and five-year monitoring schedule.

Paragraphs 17 through 31 are set forth below:

17. Respondents [sic] shall forthwith comply

with all Department rules regarding dredging

and filling within a surface water or

wetland. Respondent shall correct and

redress all violations in the time periods

required below and shall comply with all

applicable rules in Fla. Admin. Code Chapter

62-343 and 62-340.

18. Within 30 days of the effective date of

this Notice of Violation, the Respondent

shall attend a pre-construction conference

with a representative of the Department's

Environmental Resources staff to review the

work authorized by this Notice of Violation.

19. Prior to the commencement of any

earthmoving authorized in this Notice of

Violation, the Respondent shall properly

install and maintain Erosion and

Sedimentation Control devices around the

impacted area to prevent siltation and turbid

discharge in to adjacent wetlands and surface

waters (See Figure 2 attached hereto and

incorporated herein). The Erosion and

Sedimentation Control devices (i.e. staked

silt screen) shall be installed no further

than one-foot from the toe of the impacted

area and shall remain in place until the

restoration actions are completed to the

Department's satisfaction.

20. The Respondent shall re-grade the

approximate 1.43 acres of impacted wetland to

a grade consistent with the adjacent,

unaltered wetlands, as illustrated in Figures

1 and 2 attached hereto and incorporated

herein.

(a) Only fill material excavated from the

impacted area shall be used in the

restoration of the site. If it is determined

that there is an insufficient amount of the

fill to obtain the required grade, the

Respondent shall cease all work and notify

the Department so an alternative restoration

plan can be developed, if necessary.

21. During and after re-grading, Respondent

shall stabilize all side slopes as soon as

possible to prevent erosion, siltation, or

turbid run-off into waters of the State, but,

in any event, no later than 72 hours after

attaining final grade.

22. Any re-grading or filling of the

restoration areas shall be conducted so as

not to affect wetlands and surface waters

outside the restoration area.

23. Within 30 days of completing the

requirements outlined in paragraph 20 above

and prior to planting, the Respondent shall

submit a certified topographic survey of the

1.43 acres of restored wetlands to the

Department for review and approval. The

Department shall notify the Respondent if the

re-grading is acceptable and whether the re-

grading is at the correct elevation to ensure

that the restoration area will function as a

wetland as defined in Chapter 62-340, Florida

Administrative Codes (sic). If the re-

grading is unacceptable to the Department,

Respondent shall have 21 days in which to

correct the problems identified by the

Department and shall submit a new survey upon

completion of the required work. The survey

shall include the following information for

the restoration area:

(a) The boundary lines of the Respondent's

property.

(b) Restoration area on the Respondent's

Property (in total square footage or acres of

restored wetlands)[.]

(c) Topographic survey of the restoration

area completed by a certified land surveyor.

The survey shall illustrate one-foot interval

on 25 foot transects throughout the

restoration area. The transects shall

commence and terminate 30 feet beyond the

limits of the restoration area.

24. Once grading has been approved by the

Department, the Respondent shall plant 270 of

the following species in any combination

throughout the 1.43-acres of restored

wetlands: Swamp Tupelo (Nyssa syvatica), Red

Maples (Acer rubrum), American Elm (Ulmus

Americana L.), Swamp Dogwood (Cornus amomum

Mill.), [and] Dahoon Holly (Ilex cassine L.).

The tree species shall be planted on 15 foot-

centers throughout the restoration area and

shall be 3-gallon, well-rooted, nursery grown

stock.

25. Within 30 days of completion of the

planting outlined in paragraph 24 above, the

Respondent shall submit a "Time Zero"

Monitoring Report, which includes the

following information:

(a) Respondent's name, address, and OGC Case

number;

(b) Date the Corrective Actions were

completed;

(c) Enough color photographs to accurately

depict the completion of the wetland

restoration actions outlined in paragraphs 20

through 24 above. The photographs shall be

taken from fixed reference points shown on a

plan-view drawing;

(d) Nursery receipts for all plants used in

the Restoration Action;

(e) Number, size and spacing of each species

planted; and

(f) Description of any exotic vegetation

removal or control conducted to date

including the acreage of exotic vegetation

removal and how vegetation removal or control

was conducted.

26. Subsequent monitoring reports shall be

submitted for a period of 5 years following

completion of the Corrective Actions: semi-

annually for the first year and annually for

year two through five. The purpose of the

monitoring shall be to determine the "success

of the restoration." The monitoring reports

shall include the following information:

(a) Respondent's name, address, and OGC Case

number;

(b) Date the inspection was completed;

(c) Color photographs taken from the same

fixed reference points previously established

during the Time-Zero monitoring report so

Department personnel can observe the current

site conditions and evaluate the success of

the restoration plan;

(d) The percentage of each planted tree

species within the restoration area that has

survived;

(e) The average height of the planted tree

species;

(f) The percent canopy cover by planted tree

species within the restoration area; a tree

shall be defined as a woody species that has

a diameter at breast height (DBH) of at least

1.5 inches and a vertical height of 10 feet

as measured from the substrate;

(g) The percent cover within the restoration

area by planted and naturally recruiting

native, "non-nuisance," wetland species, as

defined in Chapter 62-340, Florida

Administrative Code;

(h) The percent cover of Brazilian Pepper

(Schinus terebinthifolius), Water Primrose

(Ludwigia peruviana) and other nuisance

species including those species listed or not

listed in Chapter 62-340, Florida

Administrative Code; and

(i) A written summary describing the success

of the restoration area including steps

needed and/or taken to promote future success

such as replanting and/or nuisance or exotic

species removal. Description should also

include water levels observed within the

restoration area.

27. "Success of the Restoration" means at

the end of the monitoring schedule the

following success criteria are met in the

restoration area:

(a) The total percent cover within the

restoration area by native wetland vegetation

exceeds 85 percent;

(b) Average height of the planted tree

species exceeds 10-feet;

(c) The total percent canopy cover by

planted and naturally recruited native

wetland trees exceeds 30 percent;

(d) The total contribution to percent cover

by nuisance, non-wetland or species not

listed in Rule 62-340, Florida Administrative

Code is less than 10 percent; and

(e) The Department has inspected the

restoration area and the Department has

informed the Respondent in writing that the

restoration area meets the definition of a

wetland as defined in Rule 62-340.200,

Florida Administrative Code.

28. If it is determined by the Department,

based on visual inspection and/or review of

the monitoring reports, that the restoration

area is not meeting the above specified

success criteria, an alternative Restoration

Plan shall be submitted to the Southwest

District Office and shall meet the following

requirements:

(a) Shall submit the plan within 30 days of

notification by the Department of failure to

meet the success criteria.

(b) Shall implement the alternative plan no

later than 90 days after receiving Department

approval.

(c) Shall restart monitoring and maintenance

program.

29. Should the property be sold during the

monitoring period, the Respondent shall

remain responsible for the monitoring and

notify the new owners of the Respondent's

obligation to continue the monitoring and

maintenance until the Department has

determined that the success criteria has been

met. The Respondent shall notify the new

owner(s) of this in writing and shall provide

the Department with a copy of the

notification document within 15 days of the

sale of the property.

30. Prior to the submittal of each required

monitoring report, the Respondent shall

remove all exotic and nuisance vegetation

from the restored wetland area. Nuisance and

exotic vegetation removal shall include but

not be limited to Brazilian Pepper (Schinus

terebinthifolius) and Water Primrose

(Ludwigia peruviana).

31. All exotic vegetation shall be removed

from the restoration area using hand-held

equipment in a manner that will minimize

impacts to the existing wetland plants and

will not cause ruts in the wetland soils,

which will impede or divert the flow of

surface waters.

23. More than any other aspect of this case, Respondent

questions the nature and extent of the corrective actions being

proposed by the Department on the ground they are too extensive,

complex, and unnecessary and will cost tens of thousands of

dollars. When asked to quantify or estimate the cost of the

corrective actions, Mr. Brown could not. It is fair to infer,

however, that the cost of the restoration work will be expensive

and probably far exceed the amount of the proposed penalties.

The two experts' reports, which are hearsay and cannot be used as

a basis for a finding of fact, essentially corroborate

Respondent's argument that the corrective actions may be onerous

and too far-reaching. The difficulty, however, in evaluating

Respondent's claim is that the record is limited to Mr. Brown's

testimony justifying the conditions, the hearsay reports of the

two experts, and a few exhibits tendered by Respondent.

24. A precise description of the impacted area before the

work was undertaken is not a part of the record at hearing.

Therefore, the original condition is not known. Through the

submission of exhibits and the questioning of Mr. Brown,

Respondent contended that a natural depression existed in the

area where the pond now sits, that he was merely leveling off the

depression while removing dead trees and plants, and that very

little soil was actually removed from the pond area. Given these

circumstances, he contends that there are insufficient fill

materials on site to bring the pond to grade. In his Exhibit 3,

Respondent estimates that just to fill the pond area and bring it

to the grade of the surrounding land, he would be required to

haul in approximately 4,200 cubic yards of sand or fill material.

Also, Respondent's Exhibit 2.c. purports to be a copy of an

elevation survey of the property containing elevations at

different points on the property. The handwritten numbers on the

exhibit, which Respondent represents were taken from a certified

survey (which is not otherwise identified), reflect the property

(presumably before the work was undertaken) gradually sloping

from a higher elevation on the southern boundary (around 67 feet)

to the road on the northern boundary (around 66 feet), with a

lower elevation of around 64 feet in the middle of the parcel,

indicating a slightly lower elevation in the middle of the

property. Also, a part of the property lies within the FEMA 100-

year flood zone. Thus, it is fair to infer that the pond area

replaced an area with a slight depression and on which water

would accumulate during heavy storm events. This circumstance

would logically reduce the amount of fill necessary to restore

the pond area to its original contour elevation. Therefore, in

implementing the corrective actions, the Department should give

consideration, in the manner it deems appropriate, to the fact

that the area contained a natural depression before the illicit

activities occurred.

25. The evidence supports a finding that the proposed

corrective actions, although extensive and costly, should be

approved. To the extent Respondent has replanted the impacted

area with trees and plants that fit within the Department's

restoration scheme, he should also be credited for this work.

D. Reasonable costs and expenses

26. The Department established at hearing that its Tampa

District Office employees incurred expenses of more than $500.00

while investigating this matter. This is based upon the number

of hours devoted to the case times the hourly salary rate of the

employees. Therefore, the Department is entitled to be

reimbursed in the amount of $500.00 for reasonable investigative

expenses and costs. Respondent has not disputed the amount of

time expended by the employees or their hourly compensation but

contends in his Proposed Recommended Order that the matter could

have been cleared up by a "simple phone call and a few minutes of

effort." Respondent's argument is hereby rejected.

CONCLUSIONS OF LAW

27. 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.

28. 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.

29. In Count I of its Notice, the Department alleged that

Respondent "dredged approximately 0.91-acres of wetlands on the

property without a permit," while Count II alleged that he

"filled approximately 0.52-acres of wetlands on the property

without a permit." Count III seeks the recovery of "expenses

incurred to date while investigating this matter in the amount of

not less than $500.00."

30. Wetlands are defined in Florida Administrative Code

Rule 62-340.200(1)(19) as meaning:

those areas that are inundated or saturated

by surface water or ground water at a

frequency and a duration sufficient to

support, and under normal circumstances do

support, a prevalence of vegetation typically

adapted for life in saturated soils. Soils

present in wetlands generally are classified

as hydric or alluvial, or facultative or

obligate hydrophytic macrophytes that are

typically adapted to areas having soil

conditions described above. These species,

due to morphological, physiological, or

reproductive adaptations, have the ability to

grow, reproduce or persist in aquatic

environments or anaerobic soil conditions.

Florida wetlands generally include swamps,

marshes, bayheads, bogs, cypress domes and

strands, sloughs, wet prairies, riverine

swamps and marshes, hydric seepage slopes,

tidal marshes, mangrove swamps and other

similar areas. Florida wetlands generally do

not include longleaf or slash pine flatwoods

with an understory dominated by saw palmetto.

31. Dredging is defined in Section 373.403(13), Florida

Statutes, as

excavation, by any means, in surface waters

or wetlands, as delineated in s. 373.421(1).

It also means the excavation, or creation, of

a water body which is, or is to be, connected

to surface waters or wetlands, as delineated

in s. 373.421(1), directly or via an

excavated water body or series of water

bodies.

32. Filling is defined in Section 373.403(14), Florida

Statutes, as

The deposition, by any means, of materials in

surface waters or wetlands, as delineated in

s. 373.421(3).

33. By a preponderance of evidence, the Department has

established that the impacted property was wetlands within the

meaning of the rule, that Respondent dredged and filled that

area, as defined above, and that he failed to obtain a permit, as

required by Florida Administrative Code Rule 62-343.050.

Therefore, the charges in Count I and II have been sustained.

Respondent's contentions that the property was not wetlands, that

the activities did not constitute dredging and filling, and that

he qualifies for an exemption have been considered and rejected.

34. Throughout the proceeding, Respondent has questioned in

two respects the amount of the administrative penalty being

imposed by the Department under Section 403.121(3)(c), Florida

Statutes. One argument has been considered and rejected in

Findings of Fact 17 and 18, supra . Respondent has also argued

that, assuming the administrative penalty schedule in the statute

applies, it was improperly calculated. Paragraph (3)(c) provides

in relevant part that "the department shall assess a penalty of

$1,000 for unpermitted or unauthorized dredging and filling . . .

plus $2,000 if the dredging and filling occurs in an aquatic

preserve, Outstanding Florida Water, conservation easement, or

Class I or II surface water, plus $1,000 if the area dredged or

filled is greater than one-quarter acre but less than or equal to

one-half acre, and plus $1,000 if the area dredged or filled is

greater than one-half acre but less than or equal to one acre."

Respondent apparently assumes that the Department assessed

$1,000.00 for unpermitted dredging and filling, and another

$2,000.00 because the activities occurred in "an aquatic

preserve, Outstanding Florida Water, conservation easement, or

Class I or Class II surface water." Because the wetlands are

contiguous to Mud Lake, a Class III water body, he argues that

the additional $2,000.00 fine should not be assessed. In this

case, the Department assessed the mandatory penalty of $1,000.00

for unlawful dredging or filling in wetlands, an additional

$1,000.00 because the area dredged or filled was more than one-

quarter acre but less than or equal to one-half acre, and another

$1,000.00 because the area dredged or filled was greater than

one-half acre but less than or equal to one acre in size, or a

total of $3,000.00 for each violation that exceeded one-half acre

but was less than or equal to one acre. Even though the statute

is not drafted in clear and precise language, the Department's

"stacking" of the penalties in the manner described above is not

inconsistent with its terms. Therefore, Respondent's argument

has been rejected.

35. Section 403.121(10), Florida Statutes, provides the

following broad guidelines on the issue of mitigation:

(10) The administrative law judge may

receive evidence in mitigation. The

penalties identified in subsection (3),

subsection (4), and subsection (6) may be

reduced up to 50 percent by the

administrative law judge for mitigating

circumstances, including good faith efforts

to comply prior to and after the discovery of

the violation by the department. Upon an

affirmative finding that the violation was

caused by the circumstances beyond the

reasonable control of the respondent and

could not have been prevented by the

respondent's due diligence, the

administrative law judge may further reduce

the penalty.

36. Respondent presented no direct evidence in mitigation

of the violations. As noted in Finding of Fact 21, however, once

the Notice was issued in this case and the matter set for

hearing, Respondent hired two consultants to evaluate the alleged

violations and prepare proposed corrective actions to restore the

property to its original condition. Although the experts did not

appear at hearing, and their reports must be treated as hearsay

evidence, the fact that this step was taken arguably constitutes

a good faith effort by Respondent to comply with Department

requirements after the discovery of the violations. The

mitigation presented justifies a fifty percent reduction in the

proposed administrative penalties, or from $6,000.00 to

$3,000.00. A further reduction in the penalties is not warranted

as there is no evidence to show that "the violation was caused by

circumstances beyond the reasonable control of the respondent and

could not have been prevented by the respondent's due diligence."

While Respondent may have been well-intentioned in trying to

landscape his back yard or even prevent flooding, at a minimum, a

reasonable and diligent person would have contacted the

Department or water management district before any work began for

the purpose of verifying whether the work could be lawfully

performed.

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

Department to recover the "reasonable costs and expenses of the

state" in investigating matters such as this. Here, even though

the Department has established that its expenses were much

higher, it is only seeking recovery of $500.00. That amount is

found to be reasonable and is hereby approved.

38. The proposed corrective actions recited in Finding of

Fact 22, while extensive and costly, are also approved. In

administering them, and in the manner it deems appropriate, the

Department should give consideration to the fact that the area

contained a natural depression before the activities occurred.

This would logically reduce the amount of fill necessary to

restore the pond area to its original contour elevation.

Respondent should also be given credit for any replanting of

trees and plants which is consistent with the Department's

corrective actions.

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

provides that "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." In this case, the Department is the prevailing

party. However, it made no request for the "prevailing party"

costs, and it presented no evidence on their amount. Therefore,

they cannot be included in this Final Order.

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the charges in the Notice of Violation, Orders

for Corrective Action, and Administrative Penalty Assessment are

sustained, and Respondent shall pay a $3,000.00 administrative

fine, pay $500.00 in investigative costs and expenses, and take

the corrective actions described above. Such fines and costs

shall be paid within 30 days of the effective date of this Order

by cashier's check or money order payable to the "State of

Florida Department of Environmental Protection" and shall include

thereon the OGC Case number (08-0127) assigned to this case and

the notation "Ecosystem Management and Restoration Trust Fund."

The payment shall be sent to the Florida Department of

Environmental Protection, Attn: David Brian Brown, 13051 North

Telecom Parkway, Temple Terrace, Florida 33637-0926.

DONE AND ORDERED this 22nd day of September, 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 22nd day of September, 2008.

ENDNOTES

1/ All statutory references are to the 2007 version of the

Florida Statutes.

2/ In his Proposed Recommended Order, Respondent cited numerous

complaints about the conduct of his attorney prior to his

withdrawal from the case. Such complaints are beyond the scope of

this proceeding.

3/ On an undisclosed date, Respondent engaged the services of two

consultants, Dr. Taylor and Mr. Czerwinski, to inspect his

property and prepare reports. The report of one consultant,

Dr. Taylor, was faxed to the Tampa District Office on July 8,

2008. On July 17, 2008, the Department filed a Motion to Expedite

Answers to Department's Second Set of Interrogatories. The

interrogatories were designed primarily to elicit additional

information about the consultants and their opinions; the

Department also asked for a copy of Mr. Czerwinski's report, which

had not yet been tendered to counsel. Due to the proximity of the

hearing, at a pre-hearing conference conducted by telephone on

July 23, 2008, the undersigned orally instructed Respondent to

answer the interrogatories and provide counsel with a copy of the

Czerwinski report by the close of business the following day. For

scheduling purposes, Respondent was also advised that his experts

would not be allowed to testify at hearing until after the

Department had completed its case-in-chief, which might consume

the entire morning of the hearing. When the interrogatories were

not timely and fully answered, and the Czerwinski report given to

counsel did not include attachments referenced in the report, on

July 25, 2008, the Department filed a Motion in Limine seeking to

exclude the testimony and reports of both consultants. The Motion

was taken up at the hearing on July 29, 2008. Because the

witnesses were not present at the hearing, that portion of the

Motion was rendered moot. At that time, Respondent represented

that the two consultants advised him prior to the hearing that

they could not attend because they did not have the time to "sit

around" for several hours waiting to testify. At the conclusion

of the hearing, however, Respondent essentially asserted that he

had been denied due process because he was not allowed to present

the testimony of his experts. However, neither expert voluntarily

appeared at the final hearing, and Respondent did not have

subpoenas issued to compel their attendance. Thus, there was no

basis to continue the hearing or leave the record open to hear

their testimony. Contrary to Respondent's assertion, no ruling

was made prior to hearing which "blocked [them] from being able to

testify as expert witnesses."

4/ Exhibit 2.f. (the resume of Dr. Taylor) and that part of

Exhibit 2.i. identified on the exhibit list as the "Operating

Agreement btwn FSWWMD and FDEP" were never filed with the

undersigned or submitted at hearing. Therefore, they have not

been considered. Because the record is now closed, Respondent may

not late-file those documents with the Clerk's Office. Finally,

Section 403.813(7)(u), Florida Statutes, is listed as an item

under Exhibit 2.j. Because there is no paragraph (7)(u), it is

assumed that Respondent was referring to Section 403.813(2)(u),

Florida Statutes, which authorizes an exemption for the "removal

of organic detrital material from freshwater rivers or lakes that

have a natural sand or rocky substrate and that are not Aquatic

Preserves or for the associated removal and replanting of aquatic

vegetation for the purpose of environmental enhancement."

However, this statute has no application to this proceeding.

5/ For the benefit of Respondent, who is not an attorney, no

further papers regarding the merits of this case should be filed

with the undersigned. His appellate rights are described in the

Notice of Right to Judicial Review section set forth on the last

page of this Final Order.

6/ Throughout this case, Respondent has placed considerable

significance on the fact that in one of the Department's answers

to Respondent's interrogatories filed on May 27, 2008, Ms. Brock,

who signed the interrogatories, made an error regarding the names

of the Department employees who performed the two inspections. He

argues that this error largely undermines the credibility of the

Department's case. While the answer was incorrect, the error was

minor in nature and did not affect the accuracy or reliability of

either inspection or the GPS calculations.

7/ Respondent also cited Section 373.406(10), Florida Statutes,

as a basis for granting an exemption. That statute refers to

"[i]mplementation of interim measures or best management practices

adopted pursuant to s. 403.067 that are by rule designated as

having minimal individual or cumulative adverse impacts to the

water resources of the state." However, it has no application

here.

8/ Respondent began searching for a statute or rule which would

serve as the basis for exempting his activities after the dredging

and filling had already occurred and the warning letter issued.

This resulted in Respondent citing numerous statutes throughout

the proceeding, none of which apply. Had Respondent followed the

proper sequence of events, before any clearing of the land began,

he would have first described the proposed work to the Department

or water management district for the purpose of determining

whether such work could be performed without a permit.

9/ Dredging is also defined in the same statute as meaning

"the excavation, or creation, of a water body which is, or is to

be, connected to surface waters or wetlands, as delineated in

s. 373.421(1), directly or via an excavated water body or series

of water bodies." In his Proposed Recommended Order, Respondent

argues that because he never created a "water body," his

activities do not constitute dredging. But the Department has not

alleged that Respondent's activities fall within the definition in

the second part of the statute; rather, the Department's proof in

this case was designed to support the theory that his activities

constitute dredging, as defined in the first part of the

definition, that is, the "excavation, by any means, in surface

waters or wetlands, as delineated in s. 373.421(1)," and that he

did so without a permit.

COPIES FURNISHED:

Alissa Blank Meyers, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

John Jozsa

1978 County Road 652A

Bushnell, Florida 33513-9006

Tom Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order 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 agency clerk of the Division of

Administrative Hearings and a copy, accompanied by filing fees

prescribed by law, with the District Court of Appeal, First

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

District where the party resides. The Notice of Appeal must be

filed within 30 days of rendition of this Final Order.