11-001016EF Department Of Environmental Protection vs. Leona Brock Status: Closed DOAH Final Order on Tuesday, July 26, 2011.

Summary: DEP proved filling wetlands without a permit. Mitigating circumstances. $500 fine.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner, )

)

vs. ) Case No. 11 - 1016EF

)

LEONA BROCK, )

)

Respondent. )

)

FINAL ORDER

On June 23, 2011, a final administrative hearing was held

in this case by video teleconference before J. Lawrence

Johnston, Administrative Law Judge (ÐALJÑ), Division of

Administrative Hearings .

APPEARANCES

For Petitioner: Matthew Smith - Kennedy, Esquire

Department of Environmental Protection

3900 Commonwealth B oulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent: Leona Brock

5624 206th Terrace North

Loxahatchee, Florida 33470 - 2216

STATEMENT OF THE ISSUE

The is sue in this case is whether Respondent, Leona Brock ,

should be penalized, and have to take corrective actions, for

illegally filling wetlands on h er property in Loxahatchee

without a permit .

PRELIMINARY STATEMENT

On January 25, 2011, t he Department of Environmental

Protection (DEP ) filed and served a Notice of Violation, Orders

for Corrective Action, and Civil Penalty Asses sment, DEP OGC

File No. 10 - 3454 . Respondent requested an administrative

hearing under sections 120.569 and 403.121(2)(d), Florida

Statu t es.

A final hearing was held via video teleconf erence at sites

in Tallahassee and Wes t Palm Beach . At the final h earing, DEP

calle d Katy Collins, an en vironmental specialist with DEP . DEP

also had its Exhibits 1 - 7, 9, and 11 - 12 admitted in evidence.

Respondent testified at the final hearing and had her Exhibits 1

and 2 admitted in evidence. After the evidence was presented,

DEP re duce d the amount of the penalty it was requesting from

$1,000 to $500 .

N either party requested a tr anscript of the final hearing.

Respondent timely filed a Ðrebuttal,Ñ which has been considered

to the extent that it proposed findings of fact and conclusio ns

of law and argued the evidence presented at the final hearing,

but was not considered as additional evidence . On July 21,

2011, DEP filed a Proposed Final Order, which also has been

considered.

FINDINGS OF FACT

1. Respondent owns five acres of property at 5624 206th

Terrace North , Loxahatchee, Florida . There are wetlands and a

small lake or pond in the eastern third of t he property . The

western two - thirds of the property are uplands. RespondentÓs

house is in the center of the property. There is a driveway

from 206th Terrace North on the west to and south of the house.

2. RespondentÓs property is in an area with other parcels

that are similar in size and nature. In early 2010, Respondent

contacted DEP and other agencies because a neighbor two lots to

the south was filling the property with construction debris.

Respondent was concerned about flooding impacts to her property

and water quality impacts to the groundwater that is the source

of RespondentÓs and her neighborsÓ drinking water. Ultimately,

Respondent asked DEP to determine whether her neighbor was in

violation.

3 . In addition to seeking help from DEP and the other

agencies, Respondent decided to protect her land from flooding

by having cypre ss mulch spread roughly in the shape of a

horseshoe around but not immediately adjacent to her house. No

mulch was placed south of RespondentÓs driveway and house, in

the northeast corner of the property, or in the southeast corner

of the property.

4 . In February 2010, Katy Collins, an environmental

specialist with DEP, inspected the neighborÓs fill and

determined that there were no violations. During the

inspection, Ms. Collins noticed the mulch being spread on

RespondentÓs property. Suspecting that some of the mulch was

being spread in wetlands on RespondentÓs property, Ms. Collins

and other DEP staff conducted a site visit to RespondentÓs

property on March 18, 2010 .

5 . When DEP arrived for the site visit , Respondent was

surprised because she did not think any prior notice had been

given. As the site visit proceeded, including a wetland

delineation, Respondent advised Ms. Collins that she already had

a wetland delineation on the property that would show that she

was not filling wetlands with the m ulch. Respondent went into

the house to find the previous delineation, and DEP proceeded

with the site visit and wetland delineation. By the time the

site visit and wetland delineation concluded, Respondent had

found a non - binding wetland delineation tha t had been done by

DEP in August 2002.

6 . DEP notified Respondent that, according to its wetland

delineation, mulch on the southeastern lobe of the Ð horseshoe Ñ

extended into the wetlands (the mulch violation area ) and had to

be removed . In addition, DE P cited Respondent for pine logs and

vegetative debris that were piled up farther to the southeast in

the wetlands on RespondentÓs property . There was no evidence

that the two violation areas, combined, were greater than a

quarter acre.

7 . Respondent believed the 2002 wetland delineation proved

that none of the mulch was in wetlands . Respondent testified

that she was intimidated by the presence of law enforcement

officers with weapons and agreed to remove the mulch as

instructed by DEP n otwithstanding her belief that it was not in

the wetlands . ( It is not clear who Respondent meant by law

enforcement officers with weapons. )

8 . Respondent complains that DEP insisted on pulling the

mulch back out of the violation area without the use of a

machinery , which made it more difficult. Respondent had the

mulch pulled back out of some but not all of the violation area.

9 . Respondent has not removed the pine logs and vegetative

debris from the southeastern corner of RespondentÓs property .

He r position is that they were from trees that were toppled and

vege tation that was killed during storms. Respondent had them

moved into the wetlands and piled up with the intention of

eventually burning them. RespondentÓs position is that they do

not constitute fill.

10 . As to the mulch violation, DEPÓs 2010 wetland

determination followed the current wetl and delineation procedure

set out in Florida Administrative Code Chapter 62 - 340.

Especially in light of the mulch that had been placed on the

property, it was not possible to delineate the landward extent

of the wetlands on RespondentÓs property by direct application

of the definition of wetlands in rule 62 - 340.200(19) . This had

to be determined using rule 62 - 340.300(2) , based on vegetation,

hydrologic indicators, and soil conditions.

11 . The vegetative canopy in the mulch violation area was

limited to slash pine and ear - leaf acacia . Ms. Collins chose

not to use the canopy to determine plant dominance because it

was less than ten percent of the areal extent and, in her

judgment , not indicative of the hydrologic conditions on the

site. She determined t hat the ground cover was the stratum most

indicative of onsite hydrologic conditions, considering the

seasonal variability in the amount and distribution of rainfall.

These were reasonable scientific judgment s .

12 . The groundcover in the mulch violatio n area itself was

difficult to determine . However, i n and around the area there

was Cephalanthus occidentalis ( buttonbush ) , Cladium jamaiceense

( sawgrass ) , Fuirena scirpoidea ( umbrella grass ) , Ludwigia

peruviana ( water - primrose ) , Persea palustris ( swamp bay ) , Salix

caroliniana ( Carolina willow ) , Xyris spp. ( yellow - eyed grass ) ,

Blechnum serrulatum ( swamp fern ) , and Pluchea spp. ( stink weed ) .

A ll of these plants are obligate plants , except that swamp fern

and stink weed are facultative wet plants . See Fla . Admin. Code

R. 62 - 340.450. Ms. Collins determined, by exercise of

reasonable scientific judgment, that yellow - eyed grass appeared

to be the domina nt ground cover in the area; that the areal

extent of obligate plants in the ground cover was greater than

the areal extent of all upland plants in the ground cover; and

that the areal extent of obligate or facultative wet plants, or

combinations of them , was equa l to or greater than 80 percent of

all the plants in the ground cover in the area.

13 . Ms. Collins also considered hydrologic indicators.

There were water marks on some of the trees in the mulch

violation area , near the apparent upland/wetland boundary, as

well as morphological plant adaptations (adventitious roots).

These are considered t o be hydrologic indicators of a wetland.

See Fla. Admin. Code R. 62 - 340.500(9) and (13).

14 . A soil sample was taken at the eastern edge of the

mulch violation area. (It was not taken in the middle of the

violation area because one to two feet of mulch covered the

violation area.) Ms. Collins testified that the sample had

enough red mottling (3 - 4 percent of the sample) to indicate

Ðsandy redoxÑ from the oxidation of iron and manganese. This

would be an indicator of soil that is saturated, flooded, or

ponded long enough during the growing season to develop

anaerobic conditions in the upper part of the soil profile .

This is an ind icator of hydric soil. See Fla. Admin. Code R.

62 - 340.200(8 ). The percentage of red mottling was a n estimate,

not an object ive measurement.

1 5. Using tests A and B under rule 62 - 340.300(2),

Ms. Collins determine d the mulch violation area to be wetland.

1 6. R espondent believed the 2010 wetland determination was

unfair and erroneous in part because it greatly expanded the

area of wetlands delineated on her property, as compared to the

2002 delineation. She expressed concern that a future wetland

delineation might extend the wetlands more, even to the

foundation of her house. This fear is not reasonable. M ost of

the apparent expansion of designated wetlands on the 2010

delineation was in the northeast corner of the property, which

was not the focus of Ms. Collins work. The expansion in the

mulch violation area was minor.

17 . RespondentÓs perception of the difference between the

two delineations in the mulch violation area was deceived by

differences in the shapes of RespondentÓs property on the aerial

photographs on which the delineations were drawn. On the

photograph used to depict the 2010 delineation, RespondentÓs

property appears to be shorter along the east - west axis and

taller along the north - south axis than on the photograph used to

depict the 2002 delineation . Adjusted for those differences,

the two delineations are very similar in the mulch violation

area. The mulch violation area actually extends very little, on

the northwestern edge, into the area depicted as uplands on the

2002 delineation.

18 . Respondent contends that saw p alme tto , which is not an

obligate or facultative wet plant, dominated the ground cover in

the mulch violation area and that the area was a Ðpine

flatwood , Ñ which would make it an upland. See Fla. Admin. Code

R. 62 - 340(2)(c )4. There was some saw palmetto on the fringe of

the wetlands on RespondentÓs property, near the boundary between

the wetlands and uplands , but saw palmetto did not dominate the

ground cover in the mulch violation area. RespondentÓs

testimony that numero us saw palmettos might have been bull - dozed

and covered over when the mulch was spread is speculative and

not believable.

19 . Respondent contended that recent changes made more of

her property appear to be wetlands at the time of DEPÓs site

visit than a ctually were. First, she contends that her

neighborÓs fill flooded her property. Second, she testified

that rainfall for February and March 2010 was five inches above

average . Third, she contended that the mulch was holding

moisture on her property longer. However, if her neighbor was

not in violation for filling wetlands without a permit, the

neighborÓs fill should not have caused extensive or long - term

flooding on Responde ntÓs property. Also, the recent rainfall

would not explain the vegetative, hydrologic, and hydric soil

indicators, all of which would require persistent wetland

conditions over a longer period of time. Similarly, recent rain

in combination with the place ment of mulch would not have

converted the mulch - filled area into a wetland (assuming that,

in the short term, the mulch actually would increase soil

moisture from the rain).

CONCLUSIONS OF LAW

2 0. Section 403.121(2)(b) , Florida Statutes, authorizes

DEP to institute an adm inistrative action to prevent, abate, or

control the conditions creating a violation, and impose an

administrative penalty up to $1 0 ,000 .

2 1. U nder section 403.121 (2) (d) , DEP has the burden of

proving , by a preponderance of the evidence, that Respondent is

responsible for a violation .

2 2. A ÐwetlandÑ is defined in rule 62 - 340.200(19). If the

landward extent of a wetland cannot be determined by direct

application of the rule definition to observed vegetative

communities, the w etland delineation methodo logy set out in rule

62 - 340.300 must be used. DEP used this methodology to prove

that the mulch violation area was a wetland, as was the area

where the pine logs and vegetative debris were piled.

23 . It was a violation of section 373.430 and rule 62 -

343 . 050 , and therefore also section 403.161 (2)(b) , to fill the

mulch violation area without a permit . In addition, moving pine

logs and vegetative debris into a wetland can result in the

filling of the wetland. (ÐÓFillingÓ is the deposition, by any

means, of materials in waters of the state .Ñ Fla. Admin. Code

R. 62 - 312.200(11). ) These violations should be corrected by

removing the fill from the wetlands.

24 . Section 403.121(3)(c) sets the penalty for violating

rule 62 - 343. 050 at $1,000 . Section 403.121(10) authorizes the

administrative law judge to reduce penalties by up to 50 percent

if it is shown that Respondent made Ðgood faith efforts to

comply prior to or after discovery of the violations by the

department . Ñ DEP agrees that the penalty should be reduced to

$500 under this statute .

25 . Section 403.121(10) authorizes a further penalty

reduction Ð [ u ] pon an affirmative finding that the violation was

caused by circumstances beyond the reasonable control of the

r esp ondent and could not have been prevented by RespondentÓs due

diligence . . . . Ñ No further reduction under this statute is

warranted in this case.

2 6 . DEP also seeks the recovery of investigative costs

under s ection 403.141(1 ). Section 403.141(1 ) provides:

Ð Whoever commits a violation specified in s. 403.161(1) liable

to the state for any damage caused to the air, waters, or

property, including animal, plant, or aquatic life, of the state

and for reasonable costs and expenses of the state in trac ing

the source of the discharge, in controlling and abating the

source and the pollutants, and in restoring the air, waters, and

property, including animal, plant, and aquatic life, of the

state to their former condition . . . .Ñ DEP asked for and

proved $500 of i nvestigative costs and expenses, which are

recoverable under section 403.141(1).

27 . Section 403.121(11) provides that penalties "shall be

deposited in the Ecosystem Management and Restoration Trust Fund

or other trust fund designated by statut e and shall be used to

fund the restoration of ecosystems, or polluted areas of the

state, as defined by the department, to their condition before

pollution occurred. Ñ No other trust fund appears to have been

designated by statute. In addition, section 4 03.1651(2)(a)

provides that the Ecosystem Management and Restoration Trust

Fund "shall be used for the deposit of all moneys recovered by

the state" under chapter 403 .

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, Respondent shall : remove the mulch, pine logs, and

vegetative debris from the violation areas within 45 days; and

pay a $5 00 administrative penalty and $500 in investigative

costs, for a total of $1,000, within 6 0 days, by cashier's check

or money order made payabl e to the "State of Florida Department

of Environmental Protection" and including the notations OGC

File No. 10 - 3454 and "Ecosystem Management and Restoration Trust

Fund" to be mailed to DEP's Southeast District office at 400

North Congress Avenue , Suite 20 0, West Palm Beach, Florida

33401 .

DONE AND ORDERED this 26th day of July, 2011, 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

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of Ju ly , 2011

COPIES FURNISHED :

Matthew Smith - Kennedy, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Leona Brock

5624 206th Terrace North

Loxahatchee, Florida 33470 - 2216

Herschel T. Vinyard, Jr ., Secretary

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Lea Crandall, Agency Clerk

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 s ection 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 m ust be filed within 30 days of rendition of the order to

be reviewed.