12-003276EF Department Of Environmental Protection vs. Franklin County Status: Closed Recommended Order on Tuesday, January 29, 2013.

Summary: DEP established that County violated statutes and rule by placing unauthorized construction debris and other material in a revetment located beyond the coastal construction control line.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Petitioner , )

)

vs. ) Case No . 1 2 - 3276 EF

)

FRANKLIN COUNTY, )

)

Respondent . )

________________________________)

RECOMMENDED ORDER

After notice was given, this matter was heard before the

Division of Administrative Hearings (DOAH) by its assigned

Administrative Law Ju dge, D . R. Alexander, on November 30, 201 2 ,

in Apalachicola, Florida.

APPEARANCES

For Petitioner : Krystle V. Hoenstine, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

For Respondent: Thomas M. Shuler, Esquire

Law Office of Thomas M. Shuler, P.A.

40 4th Street

Apalachicola , Florida 32320 - 1702

STATEMENT OF THE ISSUE S

The issue s in this case are whether Franklin County (County)

violated the law by placing unauthorized construction debris and

material within a permitted revetment seawa rd of the coastal

construction control line (CCCL) ; and whether the County should

be required to take corrective action to remediate th is

violation .

PRELIMINARY STATEMENT

Pursuant to section 403.121(2) (a) , Florida Statutes, on

January 20, 2012, the Department of Environmental Protection

(Depart ment) issued a one - count Notice of Violation (NOV)

alleging that after a storm event in July 2005 , the County placed

unauthorized construction debris and other debris material in a

previously permitted rock r evetment seaward of the CCCL , and that

the debri s still remains within the footprint of the revetment .

On August 31, 2012, t he NOV was amended by adding a second count ,

which allege s that betw een 2000 and 2005 the County placed

granite rock boulders and unauthorized construction debris and

material eas t of the revetment seaward of the CCCL ; and that the

County did not obtain a permit for th e placement of the granite

rock boulders or remove the unauthorized debris and material.

The Amended NOV also include s a requirement that the County take

remedial ac tion to correct all violations; it does not seek

r eimbursement of investigative expenses or the imposition of an

administrative penalty.

In response to the Amended NOV, o n September 20, 2012, the

County filed its Amended Petition requesting a formal hear ing to

contest the charges . Allegations in the Amended Petition that

(a) the statute of limitations (section 95.11(3)(f)) bar s the

prosecution of any violations that occurred more than four years

before the issuance of the Amended NOV , and (b) the Depa rtment

failed to comply with section 403.412(2) before issuing its

Amended NOV , were stricken by Order dated November 27, 2012.

A Pre - Hearing Stipulation (Stipulation) was filed by the

parties on November 2 8 , 2012. At the beginning of the final

hearing , t he parties announced they had reached a settlement

regarding Count II and requested that the stipulated corrective

action for that Count be incorporated into this Recommended

Order .

The Department presented the testimony of Jim Martinello,

Environmental Manager with the Bureau of Beaches and Coastal

Systems , and offered Department Exhibits 1 - 20 , which were

received in evidence. The County presented the testimony of

Alan Pierce, County Planner and Director of Administrative

Services , and offered County Ex hibits 2 1 - 27 , which were received

in evidence. Finally, the County's request to take official

notice of Capital City Bank v. Dep artment of Environmental

Protection , Case No. 2012 - 39 - CA (Fla. 2d Cir. Ct., Franklin

C nty.), a pending civil action for injunct ive relief filed by a

non - party against the Department and County , was granted. 1

A Transcript of the hearing was filed on December 1 7 , 201 2 .

Th e parties timely filed P roposed R ecommended O rders, which ha ve

been considered in the preparation of this Reco mmended Order.

FINDINGS OF FACT

A. C ount I

1. Since an undisclosed date in the late 1970s, t he County

has owned and maintain ed that portion of County Road 370, also

known as Alligator Drive, located at Alligator Point in the

southeastern tip of the C ounty. Before then, the road was

classified as a secondary road owned and maintained by the

Department of Transportation (DOT) . Sometime during the late

1970s, the Legislature transferred the ownership and control of

some secondary roads , including Count y Road 370, from the State

to local governments.

2. A revetment is a man - made sloping structure , typically

using rock boulders, designed in this case to protect County

Road 370 from coastal erosion by absorbing the energy of incoming

water from the Gulf of Mexico. It is the only structure

protecting that roadway from the open winds and waters of the

Gulf of Mexico. In regulatory parlance, a revetment is

"armoring , " also known as a "rigid coastal armoring structure"

within the meaning of Florida Administ rative Code Rule 62B -

33.002(5) and chapter 161 .

3. The Department has established a CCCL for the County . A

permit is required before any person may conduct construction

activities seaward of that line. However, i f public

infrastructure is threatened or damaged by erosion related to a

storm event, as an emergency measure, a local government may

construct a temporary armoring structure without first obtaining

a permit from the Department. See § 161.085(3), Fla. Stat. Once

the temporary structure is inst alled, the local government has

60 days in which to remove it or file an application for

permanent authorization of the structure. See § 161.085(6), Fla.

Stat. ; Fla. Admin. Code R. 62 - 33.0051(5)(g). C onstruction debris

may not be used for emergency prot ection. See § 161.085(6), Fla.

Stat.; Fla. Admin. Code R. 62B - 33.0051(5)(f). Construction

debris is defined as "material resulting from the demolition of a

structure" and does not "include such material which has been

sorted, cleaned, and otherwise proce ssed such that it meets the

suitability criteria for armoring materials set forth in this

rule chapter." Fla. Admin. Code R. 62B - 33.002(15).

4 . On October 5, 1971, the Department of Natural Resources

(DNR), which was l ater merged into the Department , i ssued to DOT

Permit No. BBS 71 - 33 for the construction of a rock revetment on

the south side of County Road 370 in the area that is the subject

of the Amended NOV. See Department Ex. 2, ¶9. A Final Order

issued by DNR on May 29, 1986, states in part that while the

project was never constructed, "[s]ince 1971, DOT did place loose

rock and rubble debris on several occasions in noncompliance to

any engineering design and without construction . " Id. However,

a Department inspection in 1996 revealed that no d ebris was

located within the area where the current revetment is built.

See Finding of Fact 6, infra .

5 . On May 29 , 198 6 , DNR issued to the County CCCL Permit

No. FR - 204 for the construction of a 1,500 - foot rock revetment

seaward of the established CCCL and adjac ent to portions of

County Road 370 abutting the Gulf of Mexico. See Department

Ex. 2. The revetment was located approximately 3 5 0 feet east of

DNR's [now Department] reference monument R - 211 to approximately

150 feet we st of DNR's reference m onument R - 213. Id. at ¶ 1.

6 . On November 7, 1994, the Department issued to the County

CCCL Permit No. FR - 446 for the re - construction of the original

revetment authorized in 1986 and exten sion of the eastern limits

of the structure. Th e revetment is l ocated approximately 540

feet west of Department reference monument R - 212 to approximately

140 feet east of Department reference monument R - 213. See

Department Ex. 3. The permit did not authorize placement of any

construction debris within the revetment. On February 5, 1996,

the County certified that the revetment was constructed in

compliance with the permit. See Department Ex. 4. A final site

inspection performed by the Department revealed that no

unauthorized construction debris or other material ha d been

placed in the permitted revetment. See Department Ex. 5.

7 . In July 2005, Hurricane Dennis made landfall in the

Florida Panhandle causing damage to the shoreline along County

Road 370. A s an emergency measure a fter the storm event, the

County rep laced rock boulders that had been displaced back into

the rock revetment seaward of the CCCL. It also placed

unauthorized concrete debris and other debris material within the

footprint of t he rock revetment seaward of the CCCL. The

u nauthorized debris ma terial has never been removed. Such debris

poses a potential safety hazard to the public.

8 . On September 11, 2006, the County submitted to the

Department an application for a joint coastal permit, which would

authorize a 2.9 - mile beach and dune restorat ion project along a

segment of the Alligator Point shoreline. In 2007, a Department

site inspection (attended by County officials and its consultant)

revealed the presence of concrete debris and other debris

material stacked on top of and intermixed with the previously

permitted rock revetment. The purpose of the site inspection was

to have the County's consultant formulate a debris removal plan,

which would be incorporated as a condition in the joint coastal

permit and sovereign submerged lands authoriza tion. An

enforcement action was not initiated because the debris removal

plan, if completed, would resolve the violation.

9 . On May 11 , 2011, the County 's application for a joint

coastal permit was approved and Permit Number 0269516 - 001 - JC was

issued . S ee Department Ex. 6. Special Condition 5 of the permit

gave the County specific instructions on how to remove the

construction debris within the previously - permitted rock

revetment and included a requirement that it be place d in an

upland disposal site. Id. at p. 6 of 23. An attachment to the

permit identified the debris and derelict structures to be

removed. However, the County has never undertaken the beach re -

nourishment project or completed any of the work relating to the

debris removal plan. This is because the voters of the County

rejected the funding mechanism for the project several years

before the permit was issued.

1 0 . On January 9, 2012, the Department conducted an

inspection of the site to document how much debris was in the

revetment and where it was located. The inspection revealed the

presence of a significant amount of concrete debris and other

debris material scattered throughout the revetment and continuing

eastward . See Department Ex. 7. A NOV was issued a fter the

inspection.

1 1 . On March 8, 2012, a follow - up inspection was conducted

by the Department and County representatives. The conditions

observed at that time were essentially the same as those present

during the January inspection. During the March inspection, a

County rep resentative point ed out several pieces of concrete

debris that he believed were the remains of an old swimming pool

from an upland property that had been placed on top of the

revetment after a storm event . Prior to that time, the County

had taken no steps to remove this debris, and it had never

n otified the Department that concrete pool debris had been placed

in the revetment , apparently by an unknown third party.

1 2 . An Amended NOV was issued on August 31, 2012, which

added a Count II, relating to the ar ea east of the permitted

revetment, and identified the corrective action to be taken by

the County for both Counts . The corrective action for Count I

requires the County, within 60 days of the effective date of a

final order in this proceeding, to remove all construction debris

and other debris material, seaward of the CCCL, from and adjacent

to the footprint of the previously permitted rock revetment. It

further requires the County to promptly dispose of all debris at

an appropriate disposal facility lan dward of the CCCL. If

compliance with these conditions requires the County to remove

the debris during the Atlantic hurricane season, the time frame

to complete the removal activity shall be within 60 days after

the end of that season.

1 3 . Except for a c ontention that it is not responsible for

removing all of the debris in the revetment, t he County does not

dispute the charges in Count I . See Stip ., ¶ 7.a. In an effort

to limit its liability, t he County points to language in a 1986

DNR Final Order, whic h states in part th at "loose rock and rubble

debris" was placed in the revetment footprint by DOT "on several

occasions" in the 1970s . Department Ex. 2, ¶ 9. However, a

Department inspection of the site in 1996 just after the

structure was re built determ ined that there was no unauthorized

debris in the footprint of the permitted revetment. The results

of that inspection were not credibly disputed. The County also

contends that other debris may have been placed in or on top of

the revetment by unknown th ird parties after various storm events

in later years. But e ven if this is true, it is the

responsibility of the property owner, in this case the County, to

remove the debris.

14 . The County also seeks " equitable relief " on the ground

it lacks the necess ary finances to p erform the corrective action .

The County Director of Administrative Services stated that due to

the recession, the property tax base has been cut in half (from

$4.1 billion to $1.9 billion) between 2006 and 2011 , essentially

cutting ad va lorem property taxes by 50 percent.

15. The County further points out that the Federal

Emergency Management Agency (FEMA) is not a source of funding to

correct the violations. Several years ago, FEMA funding was

available to the County on a one - time ba sis to either construct a

bypass road for portions of Alligator Drive adjacent to the

previously permitted rock revetment or to maintain the rock

revetment. Based upon FEMA's recommendation, the County opted to

build a bypass road, which is approximately 75 percent completed,

with the remainder temporarily delayed due to pending

condemnation litigation with an affected property owner.

However, the County described the bypass road as being far less

s afe than County Road 370 because the bypass road has shar p

turns, poor driving visibility, and a much smaller right - of - way

(52 feet versus 80 to 100 feet for County Road 370). In any

event, FEMA funding for performing revetment - related work

adjacent to County Road 370 is no longer available.

1 6 . Finally, t he County estimates that there are "a hundred

[truck] loads of material to be removed from this area , " and if

the debris is removed, it will "reduce the volume of protection

that [the road] currently [has]" and increase the risk of the

road failing. The Cou nty suggests that even if the debris is

removed, it has no money to then restore the structural integrity

of the revetment. If t hat part of County Road 370 becomes unsafe

or unusable, approximately 400 homes west of the revetment will

lose the only paved hurricane evacuation route from the

coastline , and emergency services may not be able to quickly

access the area.

1 7 . As discussed in the Conclusions of Law, d espite the se

unfortunate circumstances, t he financial condition of the

violator is not a conside ration in formulating a corrective

action plan.

B. Count II

1 8 . Beginning in September 2000 , and continuing until at

least through July 2005, the County placed material, including

granite rock boulders, rock, and debris material, in a location

east of th e previously permitted rock revetment, seaward of the

CCCL. The granite rock boulders are permitted material taken

from the rock revetment. A permit for a permanent rigid coastal

armoring structure has never been obtained for the placement of

the authori zed material , and the debris material has never been

removed. Th e construction activity is located to the east of the

previously permitted rock revetment seaward of the CCCL

approximately 140 feet east of Department reference monument

R - 213 to approxim ately 80 feet east of Department reference

monument R - 214.

1 9 . To address the violations in Count II, the County has

agreed that within 60 days of the effective date of a final order

in this case , it will submit to the Department a complete

application fo r a rigid coastal armoring structure located

between Department reference monuments R - 213 and R - 214 that

complies with all Department requirements. All work shall be

completed prior to the expiration of the permit. If a complete

application is not timely submitted, or the structure is not

completed prior to the expiration of the permit, the County will

remove all material placed seaward of the CCCL pursuant to a

Department approved debris removal plan.

CONCLUSIONS OF LAW

20 . Section 403.121(2)(a) authori zes the Department "to

institute an administrative proceeding to establish liability and

to recover damages for any injury to the air, waters, or p roperty

. . . of the state caused by any violation." Un der th is process,

an enforcement action is initiated to "order the prevention,

abatement, or control of the conditions creating the violation or

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

Stat. Unless the charging document seeks to impose an

administrative penalty, the ad ministrative law j udge shall issue

a recommended order at the conclusion of the proceeding. See

§ 403.121(2)(d), Fla. Stat. The Amended NOV does not seek to

impose a penalty.

2 1 . "The department has the burden of proving by the

preponderance of the evidence that the r espondent is responsible

for the violation." Id.

2 2 . O nce a CCCL has been established , no person shall make

any excavation, remove any beach material, or otherwise alter

existing ground elevations seaward of that line except as

provided in th e law. See § 163.053(2)(a), Fla. Stat.

2 3 . Section 163.085(6) provides that a n emergency rigid

coastal armoring structure constructed under section 161.085(3)

"shall be temporary," and unless an application for a permanent

structure is submitted by the local gove rnment, the temporary

structure must be removed "within 60 days after the emergency

installation of the structure ." The statute further provides

that "[c]onstruction debris shall not be used in the construction

of a rigid coastal armoring structure." Eme rgency measures taken

pursuant to sections 161.085(3) and 161.085(6) are also subject

to the conditions specified in rule 62B - 33.0051(5).

2 4 . Count I alleges that the County used construction

debris and other debris material in the re - construction of th e

previously permitted rock revetment after Hurricane Dennis in

2005. Such activities, i f proven to be true, constitute a

violation of section 161.085(6) and rule 62B - 33.0051(5)(f). They

also constitute a violation of section 403.161(1), which makes it

a violation to fail to comply with a Department rule. By a

preponderance of the evidence, the Department has established

that the County violated these statutes and rule. The corrective

action for these violations , set forth in Finding of Fact 12 , is

reas onable and appropriate.

25. The parties have stipulated that the County is liable

under Count II, and they have agreed upon the appropriate

corrective action.

2 6 . Although the County contended in its Amended Petition

that the enforcement action should be barred by the doctrine of

equitable estoppel, no proof was submitted in support of this

allegation, and the issue was not addressed in the County's

Proposed Recommended Order. The contention is rejected.

2 7 . The County also argued at final hearing that the

enforcement action should be barred because of "unreasonable

delay" on the part of the Department in undertaking enforcement.

Although couching its argument in slightly different terms , the

County is contending again that the statute of limitations i n

section 95.11(3)(f) bars this action. For the reasons cited in

the Order on Motions dated November 27, 2012 , the argument has

been rejected.

2 8 . Finally, the County contends that , due to a substantial

decline in property valu es caused by the recession, it lacks the

necessary resources to comply with the corrective action , and its

financial status should be taken into account in formulating a

corrective action plan . A similar argument was recently raised

by a gas station operator in a n other enforcement case involving a

pollution discharge on the owner's property. See Dep't of Envtl.

Prot. v. Z.K. Mart, Inc. , Case No. 08 - 1473EF, 2009 Fla. ENV LEXIS

51 (Fla. DOAH, May 20, 2009). On appeal, i n rejecting that

contention, the court noted that "the [property owner's]

statutory responsibility for ameliorating the pollution it caused

is not linked to [its] financial status." Z.K. Mart, Inc. v.

Dep't of Envtl. Prot. , 38 So. 3d 857, 858 (Fla. 1st DCA 2010).

Therefore, while the cost involved in remediating the violations

is no doubt a genuine concern , the County's financial status is

not a defense to its liability under the Amended NOV.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Department enter a fi nal order

determining that the County is liable for the violations in Count

I. As corrective action, w ithin 60 days of the effective date of

a final order in this proceeding, the County shall remove the

existing construction debris and other material seaw ard of the

CCCL from within the footprint of the previously permitted rock

revetment and dispose of the material at an appropriate disposal

facility landward of the CCCL. If compliance with the time

period requires the County to complete activities during the

Atlantic hurricane season, the time frame for completing the

debris removal activities is 60 days after the end of the

hurricane season. It is further

RECOMMENDED that , based upon the parties' agreement at final

hearing, the Department also determin e that the County is liable

for the violations in Count II. As corrective action, w ithin 60

days of the effective date of this Order, the County shall submit

to the Department a complete application for a rigid coastal

armoring structure located between De partment reference monuments

R - 213 and R - 214 that complies with all Department permitting

rules and statutes. The County shall complete the permitted

construction prior to the expiration of the permit. If the

County does not submit a complete application within 60 days of

entry of a final order, or does not construct the structure

authorized by the permit prior to the expiration of the permit,

the County shall remove all material placed seaward of the CCCL

pursuant to a Department approved debris removal plan.

DONE AND ENTERED this 29th day of January, 2013, in

Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of January , 2013 .

ENDNOTE

1/ The issues in that civil action were summarized in an Order

Denying Motion dated November 1, 2012. Capital City Bank , which

owns upland property near or adjacent to the revetment, has a

Third Amended Complaint pending before the court ; Motions to

Dismiss that pleading have been filed by the County and the

De partment. Only a copy of the Third Amended Complaint was

submitted by the County at the final hearing.

COPIES FURNISHED:

Lea Crandall, Agency Clerk

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Thomas M. Beason, General Counsel

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Kryst le V. Hoenstine, Esquire

Department of Environmental Protection

Mail Station 35

3900 Co mmonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Thomas M . S huler, Esquire

Law Office of Thomas M. Shuler, P.A.

40 4th Street

Apalachicola, Florida 32320 - 1702

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

A ll parties have the right to submit written excep tions within 15

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

this Recommended Order should be filed with the agency that will

render a final order in this matter.