10-002196EF Department Of Environmental Protection vs. Richard H. League And Nancy A. League Status: Closed DOAH Final Order on Thursday, March 24, 2011.

Summary: Respondents must pay a monetary penalty and reimburse the Department's investigative costs for filling in surface waters and wetlands without a Department permit.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Petitioner , )

)

vs. ) Case No. 10 - 2196EF

)

RICHARD H. LEAGUE AND NANCY A. )

LEAGUE , )

)

Respondents . )

)

FINAL ORDER

The final hearing in this case was held on February 21,

2011, by video teleconference at sites in Tallahassee and

Jacksonville, Florida, before Bram D. E. Canter, an

Administrative Law Judge of the Division of Administrative

Hearings (" DOAH").

APPEARANCES

For Petitioner: Christopher Thomas Byrd, Esquire

Krystle V. Macadangdang, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondents: Richard H. League, pro se

1160 River Road

Orange Park, Florida 32073

STATEMENT OF THE ISSUES

The issues to be determined in this case are whether

Respondents, Richard H . League and Nancy A. League, violated a

Depa rtment of Environmental Protection ("Department") rule that

prohibits filling in wetlands and surface waters without a

Department permit ; and if so, whether Respondents should pay the

administrative penalty and investigative costs and undertake the

correct ive actions that are demanded by the Department.

PRELIMINARY STATEMENT

On April 12, 2010, the Department issued a Notice of

Violation, Orders for Corrective Action, and Administrative

Penalty Assessment (ÐNOVÑ), which included three counts against

Respon dents . R espondents timely filed a re quest for an

administrative hearing to contest the charges. The Department

referred th e matter to DOAH to conduct a n evidentiary hearing

and issue a final order . The Department was subsequently

granted leave to file a n amended NOV, which deleted one count.

The amended NOV has two counts: Count I for filling in wetlands

and surface waters without a permit ; Count II for the recovery

of the Department's investigative costs.

At the final hearing, the Department presente d the

testimony of James R. Maher, Matthew Kershner, and Heather

Anthony. The Department's E xhibits 1 through 3, 5 through 20,

and 22 through 24 were admitted into evidence. Respondent

Richard League testified on behalf of himself and his wife ,

Nancy Lea gue. RespondentsÓ Exhibits 1 and 2 were admitted into

evidence.

A court reporter recorded the hearing, but no part y order ed

a transcript. The parties filed post - hearing submittals which

were considered in the preparation of this Final Order .

FINDINGS OF FACT

1. The Department is the state agency having the power and

duty to protect FloridaÓs air and water resources and to

administer and enforce the provisions of c hapters 373 and 403,

Florida Statutes, and the rules promulgated pursuant thereto in

Flor ida Administrative Code Title 62.

2. R espondents own property located at 1160 River Road,

Orange Park, Clay County , Florida . The p roperty is adjacent to

the St. Johns River.

3. Sometime before 1995 , pieces of concrete were placed in

the water along th e bank of the St. Johns River in an area that

includes the shoreline of the League property, in an apparent

effort to prevent or r educe shoreline erosion.

4. On August 14, 1995, the Department issued Permit No.

102752932 to Richard League to construct a dock and replace a

stormwater ditch with a covered culvert. The 1995 p ermit did

not authorize a seawall, riprap, or other erosion control

structure .

5. A drawing attached to the 1995 p ermit shows the

Ðtypical concrete fill pieces at waterÓs edge , Ñ which are the

concrete pieces that had been placed along shoreline before

1995. The Department referred to the existing concrete pieces

as a riprap revetment.

6. Following the issuance of the permit, Mr. League

d iscussed with Michael Eaton, Environmental Man ager for the

Submerged Lands and Environmental Resources Program for the

Department's Northeast District Office, Mr. League's desire to

restore the riprap material along his shoreline because,

according to Mr. League, the concrete pieces had been displaced

by storm waves and were no longer protecting his shoreline from

erosion.

7. On October 27, 1995, Mr. Eaton sent a letter to

Mr. League regarding the "Existing Riprap Revetment," stating

that " movement and rearranging of the riprap material along the

rev etment w ill not require a permit from the Department." The

l etter did not authorize the construction of a seawall or the

placement of new material along Respondents' shoreline .

8. In May 2005, the Department received an anonymous

complaint that Responde nts were constructing an unauthorized

dock at the ir property . An investigation was conducted , but no

major violation was found .

9. Mr. League claims that, at the time of the 2005

investigation, he had completed 60 percent of the wall structure

that is t he subject of this proceeding. Mr. League also claims

that the Department investigators saw the structure, but

expressed no objection to the structure. However, there is no

photographic or other evidence to support Mr. League's claim

that the structure w as observable in May 2005. No mention was

made in the Department's investigative report that a seawall or

similar structure was under construction at the League property .

The normal practice of the Department is to describe such

structures and activities in the investigative report. The

aerial photographs in evidence support the Department's claim

that the structure did not exist in May 2005.

10. In April 2009, the Department received an other

anonymous complaint that Respondents were constructing an

un authorized structure at the shoreline . The investigation of

the c omplaint revealed that Respondents were constructing a wall

of pre - existing concrete pieces and new concrete pieces . The

wall or seawall was not located at the bank, but was 12 to 21

feet w aterward of the bank.

11 . It was apparently Respondents' intent to place fill

behind the seawall to extend the upland property waterward.

When D epartment employees conducted another inspection in

January 2010, they found that wetlands and surface waters which

had previously been observed behind (landward of) the seawall

had been partially filled.

12. At the hearing Respondents claim ed that the structure

qualifies as riprap. However, i n their post - hearing submittal,

Respondents alternately claimed that the structure was a

seawall, an upland retaining wall, or riprap, depending on what

rule or statute Respondents perceived as helpful in arguing that

the structure did not require a permit.

13. Florida Administrative Code Rule 62 - 341.021(15)

defines "rip rap" as " a sloping retaining or stabilizing

structure made to reduce the force of waves and to protect the

shore from erosion, and consists of unconsolidated boulders,

rocks, or clean concrete rubble with no exposed reinforcing rods

or similar protrusions. " Respondents' structure is a

consolidated wall, made by stacking relatively flat pieces of

concrete. It has v irtually no slope . It is not an

unconsolidated , sloping pile of material. In addition,

Respondents' structure is not placed at the bank for th e purpose

of retaining the existing bank.

1 4 . The Department contends that Respondents' structure is

a seawall , which is defined in r ule 62 - 341.021(16) as " a man -

made wall or encroachment, except riprap, which is made to break

the force of waves and to p rotect the shore from erosion. "

1 5 . T he waters of the St. Johns River reach and extend

landward of the seawall constructed by Respondents. Photographs

of the seawall show water stains and rafted debris at the base

deposited by the waters of the St. John s River . There was

w etland vegetation behind the seawall. Mr. League admitted at

the hearing that the waters of the St. Johns River sometimes

move through the porous wall and fill the void between the wall

and the bank. The landward extent of the St. Jo hns River is

landward of Respondents' structure.

1 6 . The Department showed that the value of the time spent

by Jim Maher , Matthew Kershner , and Heather Anthony to

investigate this matter exceeded $1,000. However, the

Department is only seeking $1,000 fr om Respondents for the

Department's investigative costs .

CONCLUSIONS OF LAW

1 7 . The Department's NOV charges Respondents with a

violation of a rule that implements the provisions of Part IV of

c hapter 373, Florida Statutes. The Department may enforce th e

provisions of Part IV of Chapter 373, using the procedures in

section 403.121(2). See § 373.129(7), Fla. Stat. (2010).

1 8 . The Department may institute an administrative

proceeding to establish liability, to recover damages, and to

order corrective ac tions pursuant to section 403.121 when the

Department seeks administrative penalties , which cannot exceed

$10,000. See § 403.121(2), F la. Stat .

1 9 . The Department has the burden to prove by a

preponderance of the evidence that Respondents violated the l aw

as alleged in the a mended NOV. See § 403.121(2) (d), F la. Stat .

20 . When the Department s eeks administrative penalties,

the Administrative Law Judge is to issue a final order on all

matters. See § 403.121 (2)(d).

2 1 . C ount I of the amended NOV char ges Respondents with

filling in wetlands and surface waters without a permit in

violation of r ule 62 - 343.050(1) , which states in pertinent part:

[A] noticed general, standard general, or

individual environmental resource permit

must be obtained from the de partment . . .

prior to construction, alteration,

operation, maintenance, abandonment, or

removal of any stormwater management system,

dam, impoundment, reservoir, or appurtenant

work or works, including dredging or filling

in, on, or over wetlands and oth er surface

waters . . . ."

2 2 . "Filling" is defined in section 373.403(14), Florida

Statutes, as " the deposition, by any means , in surface waters o r

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

2 3 . Respondents claim that the structure did not require a

permit because it was landward of the mean high water line

( " MHWL " ). However, the jurisdiction of the Department over

Respondent's structure is based on the fact that it constitutes

filling in "wetlands or other surface waters." The Department's

jurisdic tion is not limited to filling waterward of the MHWL.

2 4 . The construction of the wall and the backfilling by

Respondents constitute filling and w ere done in wetlands and

other surface waters. Therefore, a permit was required for

the se activities .

2 5 . The Department's interpretation of the definition of

"riprap" in r ule 62 - 431.021(15) is a reasonable one and, under

that interpretation, Respondents ' structure is not riprap.

2 6 . Respondents did not obtain a permit for the

construction of a concrete wal l or for filling behind the wall .

Neither the 1995 permit nor the Eaton letter authorized these

activities.

2 7 . Following the hearing, Respondents submitted

additional exhibits without leave of the Administrative Law

Judge . However, no objection was ra ised by the Department.

These exhibits include incomplete copies of emergency orders

issued by the Department following hurricanes and were

apparently submitted to support Respondents' claim that the

structure was authorized by these orders without the ne ed to

obtain a permit . However, in some cases the orders do not apply

to Clay County. Furthermore, the emergency orders only allow

the repair, restoration or replacement of pre - existing, legal

structures. The orders do not authorize new structures.

2 8 . Respondents cite s ection 403.813(1)(o), Florida

Statutes, which creates a statutory exemption from permitting

for private seawalls in wetlands or other surface waters where

the seawall adjoins at both ends existing seawalls . T here are

no seawalls adjoin ing Respondents' structure. Respondents'

structure does not qualify for the exemption in section

403.813(1)(o).

29 . Although not clear, Respondents seemed to contend that

the water bottom beneath the old riprap material was no longer

state - owned submerg ed lands because the riprap material was

above the MHWL of the St. Johns River and, consequently ,

Respondents did not need a permit to build a structure on top of

the riprap material . However, Respondents (1) did not establish

the location of the MHWL, (2 ) did not show what statute or legal

doctrine would cause the placement of riprap material to change

the legal title to the submerged lands beneath the riprap, and

(3) did not show what rule or statute allows a structure to be

built on top of riprap materi al without a Department permit.

3 0 . The Department proved by a preponderance of the

evidence that Respondents violated r ule 62 - 343.050(1).

3 1 . Section 403.121(3)(c) provides that, for dredge and

fill violations, the Department shall assess a penalty of $1,000

for unpermitted or unauthorized filling. T herefore, Respondents

are liable for $1,000 for the violation charged in Count I.

32. Evidence may be received in mitigation and the

Administrative Law Judge may reduce a penalty up to 50 percent

for mit igating factors. See § 403.121(10). The record evidence

does not justify a reduction in the penalty. It was not

reasonable for Respondents to believe that the structure could

be built without a permit from the Department.

3 3 . Count II of the a mended N OV charges Respondents with

liability for the Department's investigative costs in an amount

not less than $1 , 000.

3 4 . The recovery of i nvestigative costs is authorized by

s ection 373.129(6).

3 5 . The Department proved by a preponderance of the

evidence that it is entitled to $1,000 of investigative costs.

CORRECTIVE ACTIONS

3 6 . The corrective actions sought by the Department in the

amended NOV are reasonable and are incorporated below , except

that the Department's proposed action to require Respondents to

comply with the law is deleted as unnecessary, as all persons

must comply with the law.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that:

1 . Within 30 days from the effective date of this Final

Order , R espondents shall completely remove the seawall and a ny

associated fill material such as wood, stones or rocks, mortar,

or grouting, from the St. Johns River.

2 . Within six months of the effective da te of this Final

Order:

a. Respondents may relocat e enough stones or rocks

necessary to construct a riprap revetment along the p roperty

shoreline. Riprap is defined as a sloping retaining or

stabilizing structure made to reduce the force of waves and to

protect the shore from erosion, and consists of unc onsolidated

boulders, rocks, or clean concrete rubble with no exposed

reinforcing rods or similar protrusions. Boulders, rocks, or

clean concrete rubble should consist of pieces not less than

three inches in diameter. Respondents shall install

constructi on filter cloth or filter fabric behind and underneath

all riprap to prevent erosion.

b. If Respondents elect to construct a riprap

revetment, Respondents shall ensure the riprap revetment is

completed with a slope of 0.5 , which is 1 unit rise in the

vertical for every 2 units of run in the horizontal.

c. I f Respondents elect to construct a riprap

revetment, Respondents shall not locate or place construction

materials farther waterward than t he extent required to

construct a slope profile having 2 units of run for every 1 unit

of rise, but not to exceed a maximum extent of 90 feet as

measured perpendicular from the center line of the River R oad

right - of - way. The existing top of earthen river bank to the

existing toe of earthen river bank shall b e the length of the

rise. The existing toe of slope of the river bank to the most

waterward extent of the proposed clean concrete riprap revetment

shall be the run.

d. Respondents shall remove any excess riprap and/or

fill materials to a suitable up land disposal site.

3 . Turbidity b arriers such as siltation curtains shall be

utilized while implementing these corrective actions, pursuant

to Chapter 6 of The Florida Land Development Manual, A Guide to

Sound Land and Water Management prior to the comm encement of

dredging, filling, or construction activity, shall remain

functional at all times, and shall be maintained on a regular

basis. Turbidity and/or sedimentation resulting from any

activities associated with the project shall not be allowed to

ent er waters of the State. The turbidity barriers shall be

maintained and shall remain in place until the removal actions

are completed.

4 . Within 10 days of this Final Order, Respondents shall

pay $ 2 ,000 to the Department for the administrative penalties

and investigative costs assessed herein. Payment shall be made

by cashierÓs check or money order payable to the ÐState of

Florida Department of Environmental ProtectionÑ and shall

include thereon the OCG Case N umber 09 - 4254 and the notation

ÐEcosystem Man agement and Restoration Trust Fund.Ñ The payment

shall be sent to the Department of Environmental Protection,

SLERP, Compliance and Enforcement Manager, 7825 Baymeadows Way,

Suite B200, Jacksonville, F lorida 32256 - 7590.

5 . Respondents shall allow author ized representatives of

the Department access to the p roperty at reasonable times for

the purpose of determining compliance with this Final Order and

the rules of the Department .

6 . I f the p roperty is sold during the corrective action

periods, Respondent s shall remain obligated to perform the

corrective actions. Before or at the closing of the sale of the

p roperty, Respondents shall inform the purchaser of RespondentsÓ

obligations under this Final Order and shall deliver a copy of

this Final Order to the purchaser. Respondents shall also

notify the Department in writing of the sale of the p roperty

within 15 days of the closing.

DONE AND ORDERED this 24th day of March , 2011 , in

Tallahassee, Leon County, Florida.

S

BRA M D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of A dministrative Hearings

this 24th day of March , 2011 .

COPIES FURNISHED :

Christopher Thomas Byrd, Esquire

Krystle V. Macadangdang, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Richard H. League

Nancy A. League

1160 River Road

Orange Park, Florida 32073

L ea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Herschel T. Vinyard, Jr., Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonw ealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceeding are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original notice of appeal with the Clerk of the

Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the District Court of

Ap peal, 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 the order to

be reviewed.