93-000855 Department Of Environmental Regulation vs. Rio De St. John Properties, Inc. Status: Closed Recommended Order on Monday, May 15, 1995.

Summary: Intent is to protect recycling state waters whether they are fed by headland waters through named jurisdiction vegetation or pure hydrologic connection.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL PROTECTION, )

)

Petitioner, )

)

)

vs. ) CASE NO. 93-0855

)

RIO DE ST. JOHN PROPERTIES, INC. )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing on January 26, 1995,

in Jacksonville, Florida, before Ella Jane P. Davis, a duly assigned hearing

officer of the Division of Administrative Hearings, substituting for the prior

hearing officer.

APPEARANCES

For Petitioner: David Thulman, Esquire

Department of Environmental Protection

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

For Respondent: Preston Fields, Esquire

Post Office Box 188

Palatka, Florida 32178

STATEMENT OF THE ISSUE

The Department of Environmental Protection seeks to impose costs and

specific restoration requirements resulting from unpermitted dredging and

filling by Respondent. Inherent in that issue are the following:

(1) Whether the property at issue was within the Department's dredge and

fill jurisdiction at the time the property was filled; and

(2) The amount of the Department's costs, if any.

PRELIMINARY STATEMENT

The Petitioner herein is the Department of Environmental Protection,

successor agency to the Department of Environmental Regulation. That agency

commenced this action by issuing a Notice of Violation and Orders for Corrective

Action. Respondent Rio de St. John Properties, Inc. timely filed a petition for

formal hearing. The charging document was subsequently amended and the issues

limited as set out above.

Petitioner charged that Respondent had filled property within the landward

extent of waters of the state without a permit. Respondent denied that a permit

was required.

At formal hearing, Petitioner presented the oral testimony of Mike Adams,

Jack Dunphy, and Mike Eaton, and had Exhibits P1-4 (but not P-5) admitted in

evidence. Respondent presented the oral testimony of Mike Adams and Jack

Buchansky and had Exhibits R-2A, 2B, 3, 4, and 5 (but not R-1) admitted in

evidence. Exhibits P-4 and P-5 are videotapes and were admitted for limited

purposes only.

Two joint exhibits were admitted: the Joint Prehearing Stipulation and the

part of Chapter 17-301 F.A.C. in effect at all times material.

At the close of Petitioner's case-in-chief, Respondent moved for a judgment

of acquittal which was treated as a motion for summary recommended order and

taken under advisement for disposition in this recommended order.

No transcript was filed, but the undersigned has had the benefit of

listening to the audio tapes of the formal hearing. Cf -- See below.

The Petitioner timely filed a proposed recommended order, the findings of

fact of which are ruled upon in the appendix to this recommended order, pursuant

to Section 120.59(2) F.S.

Respondent's late-filed proposed order was also to have been considered

pursuant to the terms of an order entered April 7, 1995. Also pursuant to the

terms of the April 7, 1995 order, Petitioner was permitted to supplement its

post-hearing proposal. Petitioner's supplemental material was only legal

argument, not proposed facts, and not subject to Section 120.59(2) F.S.

Respondent filed a response thereto without leave to do so. That response was

struck by an order entered May 4, 1995.

Due to a short inaudible portion of the audio tape the Department used to

preserve the record, an order was entered May 24, 1995. The parties selected

one of the options provided for in that order and stipulated, by a pleading

filed June 13, 1995, to the content of just the inaudible portion of Mr.

Buchansky's testimony.

By agreement, Respondent was permitted to amend its proposed recommended

order. Respondent's amended proposed order was filed June 15, 1995. The

proposed findings of fact of that amended proposal are ruled upon in the

appendix to this recommended order, pursuant to Section 120.59(2) F.S.

FINDINGS OF FACT

1. The parties' stipulated to the following facts: Petitioner agency has

the authority to administer and enforce Chapter 403 F.S. and the rules

promulgated thereunder, specifically Title 62 F.A.C., formerly Title 17 F.A.C.

Respondent is the developer of a parcel of real property located in Section 10,

Township 9 South, Range 27 East, Putnam County, Florida, known as Lot 85, Rio de

St. John Subdivision, located at the northwest corner of the intersection of

South Main and Southwest 6th Terrace. The property is a wetland area. On

February 13, 1992, agency personnel inspected and found fill material had been

placed on two areas of the parcel: an area approximately 88 feet by 83 feet for

residential development (area 1) and an area approximately 83 feet by 25 feet

for an access driveway (area 2). The fill material was placed by Respondent

without a permit and covers 0.2 acres of the parcel. In Warning Notice WN-92-

0118-DF54 NED, dated February 17, 1992, the agency informed Respondent that its

activities violated Chapter 403 F.S. and Title 17 F.A.C. Respondent has never

applied for a permit and has proposed no mitigation for the filling done without

a permit.

2. Jack Dunphy is the supervisor of Petitioner's dredge and fill

enforcement section for its Northeast District. He earned a B.S. in biology and

has taken postgraduate courses in plant morphology, plant taxonomy (the

identification of plants) and wetlands ecology. He has had further annual

training by the agency in wetland plant identification. He was accepted as an

expert in the identification of wetland species and agency enforcement

procedures.

3. At all times material, Mr. Dunphy used the version of Chapter 17-301

F.A.C. accepted as Joint Exhibit B in making his determination that the agency

has dredge and fill jurisdiction of Lot 85. The Respondent contended that the

agency had no dredge and fill jurisdiction because Lot 85 is an isolated

wetland.

4. At all times material, the rules did not place isolated wetlands within

agency jurisdiction. See, specifically, Rule 17-312.045 F.A.C. The rules were

amended effective July 1, 1994 to give the agency jurisdiction over isolated

wetlands.

5. Both parties place substantial reliance upon Rule 17-312.030(2)(d)

F.A.C. which provided in pertinent part:

(2) For the purposes of this rule, surface

waters of the state are those waters listed

below and excavated water bodies, except for

waters exempted by [rule], which connect directly

or via an excavated water body or series of

excavated water bodies to those waters listed below:

* * *

(d) rivers, streams and natural tributaries

thereto, excluding those intermittent streams,

tributaries or portions thereof defined in

[statute]. Standard hydrological methods shall

be used to determine which streams constitute

intermittent streams and intermittent tributaries.

An intermittent stream or intermittent tributary

means a stream that flows only at certain times

of the year, flows in direct response to rainfall,

and is normally an influent stream except when the

ground water table rises above the normal wet

season level. Those portions of a stream or

tributary which are intermittent and are located

upstream of all nonintermittent portions of the

stream or tributary are not subject to the dredge

and fill permitting unless there is a continuation

of jurisdiction as determined pursuant to [rule].

6. The agency used the procedures outlined in Chapter 17-301 F.A.C. to

determine whether Lot 85 was connected either vegetatively or hydrologically to

a named water body.

7. Chapter 17-301 F.A.C. lists both the wetland plants and the method for

determining dominance of those species.

8. It is undisputed that, under the applicable rules, an area is connected

vegetatively to a state water if there is a domination of wetland plants

connecting the area to a named water body.

9. It is undisputed that, under the applicable rules, an area is connected

hydrologically to a state water if there is an open water connection from the

area to a named water body.

10. On the ground, an area may be physically connected to a state water

either vegetatively (dominant named species) or hydrologically (by water). On

the ground, an area may be physically connected vegetatively and hydrologically.

11. Mr. Dunphy, on behalf of the agency, interpreted the agency's rules to

establish a jurisdictional connection if an area is connected by a combination

of water and vegetation. Respondent contended this is a clear misinterpretation

of the agency's own rule.

12. The agency's standard operating procedure at the time Respondent

placed the fill was to interpret its rules in para materia to require that its

personnel "ground truth" the area in question by first identifying surface

waters (a named water body, in this case, Mason Branch and its unnamed

tributaries) and proceed landward, by ground, to establish the connection. As

long as there was water or dominant jurisdictional vegetation, the agency

pronounced a jurisdictional connection.

13. Mr. Dunphy determined that Lot 85 was dominated with wetland

vegetation and that the water on that parcel flowed through a culvert under

South Main Street and off to the east of the property.

14. South Main Street is a dirt road which has been in place for

approximately twenty years. South Main Street physically separates Lot 85,

which contains jurisdictional vegetation, from jurisdictional vegetation growing

to the east of South Main Street. It does not separate Lot 85 from the lot

immediately north of Lot 85, which is also covered with jurisdictional

vegetation. The water on Lot 85 and this adjacent lot drains through the same

culvert, (hereafter culvert A) under South Main Street to the east.

15. Mr. Dunphy drove through the area and identified what he considered to

be an hydrologic connection between Lot 85 and an unnamed tributary of Mason

Branch.

16. There is no dispute that Mason Branch is a water of the state. It

appears on maps going back to the nineteen-sixties. The unnamed tributary was

identified on P-3, the United States Department of the Interior Geological

Survey (USGS) Quad Map. Mr. Dunphy traced the tributary's approximate route in

red on Exhibit P-3. Although Respondent succeeded in getting some witnesses to

admit that the unnamed tributary could not be described as a "bubbling stream,"

witnesses Adams, Dunphy, and Eaton all testified to having seen on the ground

what they were able to identify as, "an unnamed tributary of Mason Branch."

17. As one responsible for enforcing the agency's dredge and fill rules,

Mr. Dunphy commonly refers to aerial maps, USGS maps, wetland inventory maps,

and aerial photographs to determine jurisdiction.

18. Using such photographs and maps (P-2 and P-3), Mr. Dunphy indicated in

red ink approximately how Lot 85 is connected to the Mason Branch tributary.

19. In general, water flows from Lot 85 to the lot north of Lot 85

(designated with a blue 5 in a circle on P-2), through culvert A north of Lot 85

and under South Main Street, then through a wetland area marked by

jurisdictional vegetation east of South Main Street where it connects to an

excavated ditch. The excavated ditch turns to the north where it empties into

another wetland area marked by jurisdictional vegetation, and then through

culvert B under another dirt road. From there, the water flows through

jurisdictional vegetation to the unnamed tributary connecting to Mason Branch.

20. The water course from the end of culvert A to the beginning of the

excavated ditch cannot be seen on P-2, an aerial photograph, because of the

canopy of the wetland trees. The western beginning of the ditch is indicated by

a blue 1 in a circle and the eastern end of the ditch is indicated by a blue 2

in a circle.

21. Mr. Dunphy visited the vicinity of Lot 85 eight times between the

agency's discovery of the unpermitted fill in 1992 and formal hearing in 1995.

Each of the eight times Mr. Dunphy visited the site, water was flowing through

culvert A running under South Main Street and Lot 85 was inundated. Water also

was running through culvert B.

22. On his first visit to the area, Mr. Dunphy walked from the eastern

side of South Main Street, opposite Lot 85, into the woods and saw a small,

approximately seven foot wide, defined channel where the water flowed over

jurisdictional vegetation east to the ditch. He saw quite a bit of water

through this area and water flowing through the channel prior to reaching the

ditch.

23. According to Mr. Dunphy, the area east of South Main Street but west

of the ditch contained cypress and tupelo trees with buttressed (expanding out)

trunks and water lines, lichen lines and moss lines which appeared to be above

the level of the street due to periodic inundation of the area. This is the

type of hydrologic indicator from which scientific judgment may conclude that

inundation or saturation is frequent, whether or not a specific agency rule to

that effect is in place. Indeed, it is fairly simple cause and effect logic,

and therefrom the undersigned infers, that water in the area has frequently

stood higher than the road and may have overflowed the road. Also, on a visit

in the month preceding formal hearing, Mr. Dunphy observed that some of the dirt

roads in the area were heavily washed out in places by high water.

24. Mr. Dunphy's walking the parcel and tracing the runoff constituted

"ground truthing."

25. Because Respondent challenged agency jurisdiction, Mr. Dunphy

requested that the agency's Jurisdictional Evaluation Team from Tallahassee also

make a determination as to whether or not Lot 85 was within the agency's dredge

and fill jurisdiction. The Jurisdictional Evaluation Team consisted of David

Bickner, a botanist, and Dr. Jim Cooper, a soil scientist. Petitioner agency

has assigned them the responsibility for making similar jurisdictional

determinations around the state. As an expert in enforcement procedures, Mr.

Dunphy regularly relies on the team's opinion concerning jurisdiction. He went

to the area with the team during their ground-truthing inspection and relied on

the team's report. The report also explains and supplements Mr. Dunphy's direct

evidence.

26. That October 26, 1993 report concluded from a visit to the site on

October 19, 1993 that Lot 85 was within the agency's jurisdiction and listed the

vegetation which connects Lot 85 to the unnamed tributary of Mason Branch.

27. The report states, in pertinent part, as follows:

The . . . property was inspected 19 October 1993.

The property had been timbered recently and most

of the canopy trees were gone. Those trees

remaining were the same species as the trees on

adjacent properties on all sides . . . which were

covered with mature swamp hardwood forest. Many

of the stumps on the . . . property were sprouting,

so they could be identified to species and these

were also the same as those on adjacent properties.

The dominant canopy species on the adjacent properties

were black gum (Nyssa sylvatica var. biflora) and

bald cypress (Taxodium distichum). Other species

present included dahoon holly (Ilex cassine), red

maple (Acer rubra), and slash pine (Pinus elliottii).

The gum and cypress tended to make up 80 to 85 percent

of the areal coverage of the canopy, with dahoon and

maple being the majority of the remainder. Much of

the groundcover vegetation . . . consisted of invader

species which had moved into the areas of fill. All

other species present were wetland plants. A list of

the plants found on this property is attached . . .

The property was inundated at the time of the

inspection. Water exited the property at its north-

west corner through a culvert under South Main Street,

flowing east into the swamp on the other side of the

street. This swamp ran northeast and where it ended

a ditch approximately 7 ft. wide turned north to

connect to another swamp near Southeast Second Avenue.

Water from this swamp passed under Southeast Second

Avenue through another culvert and continued into

another swamp on the north side of the road. This

swamp ran north, turning gradually to the east where

it connected to a tributary of Mason Branch. This

point of connection was by means of a ditch which

flowed through a wet hardwood hammock forest. Flow

in all of these waterways was brisk at the time of

the inspection and all points of connection were

visited and inspected. Mason Branch is a water of

the State, therefore all waterways and wetlands

connected to it are also waters of the State . . .

The property is vegetated by plant species which

are currently listed in Sections 17-301.400(2) and

(3) Florida Administrative Code. (emphasis supplied)

28. The agency concluded that Lot 85 is within the headwaters of a larger

wetland area that constitutes the headwaters of the unnamed tributary of Mason

Branch, a water of the state.

29. In 1991, the Respondent had employed Mike Adams to analyze its

property for purposes of planned development and to render advice as to what

state and federal permits would be required. He visited the area six times and

Lot 85 twice. He initially advised Respondent that Lot 85 and the other parts

of the subdivision were located in wetlands subject to the jurisdiction of

Petitioner agency and the Army Corps of Engineers, and that development required

permitting by both those agencies and possibly by St. John's Water Management

District.

30. Mr. Adams has a B.A. in biology and an M.S. in environmental

management. At the time of formal hearing, he was a Natural Resources Manager

for the Florida National Guard. He is a Certified Environmental Professional.

He was accepted as an expert in wetland plant identification.

31. In his work as a private consultant for the Respondent, Mr. Adams had

determined that Lot 85 was within the Department's jurisdiction. In making that

determination, he analyzed whether or not Lot 85 was dominated by wetland

plants. Then he determined whether or not the vegetative composition of the

wetland plants on Lot 85 extended off-site.

32. In determining that wetland plants were dominant both on-site and off-

site, Mr. Adams employed the plant species and the method for determining

dominance set out in the Department rules in effect at all times material.

33. Lot 85 was covered with jurisdictional wetland plants such as cypress,

sweet gum, black gum and red maples.

34. In Mr. Adams' opinion, Lot 85 was within the Department's dredge and

fill jurisdiction because it was part of a headwater wetland.

35. In formulating his opinion, Mr. Adams walked the entire length of the

connection between Lot 85 and the waters of the state, starting at culvert A

crossing under South Main Street, through the wetlands to the east of South Main

Street, along the excavated ditch, across the street to the north and as far as

the unnamed tributary of Mason Branch.

36. Mr. Adams drew the path of the connection beginning at the west end of

the ditch shown on Petitioner's Exhibit P-2, an aerial photograph of a portion

of Putnam County. On P-2, he designated Lot 85 with a green circle with an "85"

in it and the culvert under South Main Street with the letter "A". The aerial

photograph and oral testimony clearly demonstrated jurisdictional vegetation

dominates between culvert A and the west end of the ditch, from the east end of

the ditch to culvert B, parallel to both sides of the ditch for the entire

length of the ditch. Mr. Adams also drew in green the path of the connection

and outlined Lot 85 and designated it as such on P-3, the USGS Quad Map.

37. Exhibit P-3 as printed by the Department of the Interior does not show

a wetland connection. However, Mr. Dunphy and Mr. Adams are agreed that quad

sheets like P-3 are not 100 percent accurate in identifying water courses. Mr.

Adams never relies solely on quad sheets for determining and advising clients

concerning Petitioner state agency's jurisdiction. In his expert opinion, the

information on the quad sheets must be ground-truthed.

38. In response to questioning as to why various exhibits did not show all

the intervening property between Lot 85 and Mason Branch as "wetlands," Mr.

Dunphy testified that the USGS maps only depict wetlands in a general way, both

because of the scale and how they are created. The USGS Quad Map itself

contains a disclaimer stating that its information is not field checked. "Field

check" is synonymous with "ground truth." Mr. Dunphy further testified and

pointed out that the National Wetlands Inventory Map created by the United

States Department of the Interior (R-3) contains a similar disclaimer which

specifically provides that map is not an indication of wetland extent as

determined by other federal, state and local regulations.

39. Mr. Adams determined that there was an intact vegetative connection

for Lot 85 to the unnamed tributary of Mason Branch; that the excavated ditch

was full of water and that the excavated ditch and/or the spoilage (earth thrown

up parallel on either side of the ditch when it was dug) was also dominated with

wetland plants covered by agency rule. More specifically, although the

excavated ditch appears to start at the edge of the wetland area to the east of

South Main Street on P-2, Mr. Adams' green markings demonstrated that it

actually starts some distance into the wetland area. The ditch feathers out at

both its west and east ends, but identifiable wetland vegetation links up to the

hydrologic connection. Thus, in Mr. Adams' opinion, there was an unbroken chain

of wetland vegetation from Lot 85 to the tributary of Mason Branch except for

the roads, where the water (a hydrologic connection) flowed through culverts

under the roads.

40. At the time Mr. Adams walked the connection route, the area to the

east of South Main Street had pockets of standing water but did not have water

flowing through it. Although water was not flowing through the area, Mr. Adams

concluded that water typically did flow through that area because of the depth

of the standing water which initially caused him not to notice culvert A, which

was overgrown, and because the plants present in that area were wetland plants.

41. Admittedly, Mr. Adams was less than articulate when examined about the

effects of seasonal rains, intermittent rains, and intermittent flow of the

water on the ground, but he eventually made himself clear. He first testified

that he thought the flow of water from Lot 85 was "intermittent," but he later

clarified that he was not using that word as contemplated by the statute and

rule. At one point, he testified that by "intermittent," he intended to mean

"seasonal," but did not intend to also indicate that the connection met the

definition of "intermittent stream" in the statute or rule. He was perfectly

candid that the ditch on the east side of the road did not connect water body to

water body but connected vegetation to vegetation and water ran through the

ditch from vegetation to vegetation. He agreed that if "hydrologic connection"

can only mean "water connecting to water" then there is no hydrologic connection

between Lot 85 and the unnamed tributary. However, from the whole of his

testimony, it is apparent that surface and ground waters are both involved;

water flow depends upon rain regularly depositing water upland, and the water

stands, flows slowly, or flows rapidly, dependent upon how deep the water gets,

to the tributary; there is probably an exchange of waters with the tributary;

this is not dependent upon a specific wet season but during drought periods, no

flow will be observed. These explanations do not alter or diminish Mr. Adams'

opinion that, applying standard scientific indicators of soil, vegetation

composition and hydrology, there is a regular connection by surface and ground

water between Lot 85 and the unnamed tributary. He was also definite that there

was standing water in the whole area when he was there and that he interprets

"isolated" as used in the rule to mean no hydrologic or vegetative connection

whatsoever exists and that the water would have to exit Lot 85 without going to

the water source (state water) only as a result of periodic flow, which he does

not believe to be the situation here.

42. Respondent's Exhibits P-4 and P-5 were videotapes. Respondent's

witness, Jack Buchansky, was unable to independently identify most of the

footage of either P-4 or P-5.

43. Exhibit P-4 was irrelevant in large degree.

44. At most, the two videotapes together show a single occasion shortly

before formal hearing when South Main Street, Lot 85, and areas in the vicinity

were dry, but even so, they show dirt roads with ditches parallel on each side

containing standing water and vegetation. Standing water and vegetation also

appear in the culvert shown and in the depression between tire tracks or ruts on

the roads. The nature of the vegetation was not explained.

45. Except for asserting that the dirt roads have been high and dry for 20

years and during hundreds of his visits and that water only flows in the ditches

during heavy rains, Mr. Buchansky testified much to the same effect as the other

witnesses: that the area across the street from Lot 85 (the same area identified

by other witnesses with an X in a circle on P-2) was a natural drainage or spill

area and that he never went back there because the water stands there after each

rain; that the vegetation is the same throughout the area except for the

barriers created by the roads; and that water drains away from his property

toward the east by way of culvert A.

46. The greater weight of all credible competent evidence is that

jurisdictional vegetation grows on Lot 85; that jurisdictional vegetation grows

on the lot to the north; that jurisdictional vegetation grows everywhere east of

South Main Street, even in the man-made ditch and/or on the ditch's "spoil"

connecting two patches of jurisdictional vegetation, and that the depressed

water channel over vegetation between culvert A and the west end of the man-made

ditch and the man-made ditch itself collect and funnel rain and ground water

because each is lower than the surface soil; and that jurisdictional vegetation

dominates from the east end of the ditch to culvert B and between culvert B and

the tributary. The roads create a barrier to jurisdictional vegetation, but the

culverts carry the water between the areas of jurisdictional vegetation.

Wherever the water goes, it is possible for seeds to travel and propagate

dominant plant species, dependent upon which plants are involved, and the water

flows regularly to the tributary.

47. Unrefuted competent testimony shows that restoration of Lot 85 is

necessary because Respondent's fill has caused the wetland to lose some of its

functions, including filtering ability, habitat for wildlife dependent on the

wetlands, and water storage for flood control. Appropriate restoration will

require that the fill be removed to the original grade and that a mixture of red

maple, cypress, dahoon holly, tupelo and gum trees be planted. The trees should

be three-gallon size. The cypress and tupelos should be planted in the lowest

areas and the red maples should be planted in the highest areas.

48. Mike Eaton was accepted as an expert in the agency's dredge and fill

procedures and permit criteria. He visited the site with Mr. Dunphy to

determine whether the fill on the property could be permitted. He concluded it

could not be permitted without mitigation.

49. The agency prepared an exhibit itemizing expenses it claimed to have

incurred in the course of its investigation. The exhibit was not listed in the

Joint Prehearing Stipulation and some parts of it may have applied to charges

dropped when the charging document was amended. It was not admitted in evidence

over objection. Mr. Dunphy testified that he totalled reasonable expenses at

$981.16, but his breakdown of what the expenses were and how they were incurred

was insufficient to relate the agency's financial expenditures to the sole

charge remaining after the amendment. Respondent did not diminish that figure

through cross-examination, but stipulated that $250.00 constituted the

Department's reasonable expenses.

CONCLUSIONS OF LAW

50. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this cause, pursuant to Section 120.57(1), F.S.

51. Respondent is a "person" within the meaning of Section 403.031(5) F.S.

and is subject to the provisions of Chapter 403 F.S. and the rules promulgated

by the Department in Title 17 F.A.C.

52. Respondent's activities constituted "filling" as defined by Section

403.911(4) F.S.

53. Rule 17-312.030(1) F.A.C. requires that a person obtain a permit

before dredging and/or filling conducted in, on or over those surface waters of

the state unless an exemption applies.

54. The Respondent filled or caused to be filled the parcel without a

permit.

55. Rule 17-312.030(2) (d) F.A.C. 1/ tracks most of Section 403.913(5)

F.S., and provides in pertinent part:

(2) For the purposes of this rule, surface

waters of the state are those waters listed

below and excavated water bodies, except for

waters exempted by 62-312.050(4),F.A.C., which

connect directly or via an excavated water body

or series of excavated water bodies to those

waters listed below:

* * *

(d) rivers, streams and natural tributaries

thereto, excluding those intermittent streams,

tributaries or portions thereof defined in

Subsection 403,913(5), F.S. Standard hydrological

methods shall be used to determine which streams

constitute intermittent streams and intermittent

tributaries. An intermittent stream or intermittent

tributary means a stream that flows only at certain

times of the year, flows in direct response to

rainfall, and is normally an influent stream except

when the ground water table rises above the normal

wet season level. Those portions of a stream or

tributary which are intermittent and are located

upstream of all nonintermittent portions of the

stream or tributary are not subject to the dredge

and fill permitting unless there is a continuation

of jurisdiction as determined pursuant to F.A.C.

Section 62-3.022. (emphasis supplied)

56. Rule 17-3.022 F.A.C. was transferred to Rule 17-301.400 F.A.C. All

the named rules have been renumbered.

57. Rule 17-301.400 F.A.C. sets forth that the line demarcating the

landward extent of the surface waters of the state shall be established through

the procedures set forth therein to establish the dominant plant species.

58. Rule 17-312.045 F.A.C. 2/ states:

Jurisdictional Intent. The Department recognizes

that the natural border of certain water bodies

listed in Section 62-312.030, F.A.C., may be

difficult to establish because of seasonal

fluctuations in water levels and other charac-

teristics unique to a given terrain. The intent

of the vegetation indices in Sections 62-3.022

and 62-3.021(15), F.A.C., is to guide in the

establishment of the border of the water bodies

listed in Section 62-312.030, F.A.C. It is the

intent of this rule to include, in the boundaries

of such water bodies, areas which are customarily

submerged and which are contiguous to a recognizable

water body (i.e., areas within the landward extent

of waters of the state as defined in Sections 17-

3.021(16) and (17), F.A.C.). Isolated areas that

infrequently flow into or otherwise exchange water

with a described water body are not intended to be

included within the dredge and fill jurisdiction

of the department. The vegetation indices in

Sections 17-3.021(16) and 17-3.022, F.A.C., are

presumed to accurately delineate the landward extent

of such water bodies. (emphasis supplied)

59. The parties are agreed that the Department has no jurisdiction if Lot

85 is an isolated wetland as contemplated by the applicable rule.

60. Respondent's pending motion for summary recommended order is couched

in terms of the duty of Petitioner agency to establish that an exemption does

not exist. That is, Respondent asserted that the Department failed to prove in

its case-in-chief that the stream was not intermittent. 3/ The Petitioner

agency responded that the establishment of an exception or exemption is in the

nature of an affirmative defense, which means that the burden to establish the

exemption, that is, to put on affirmative proof that an intermittent stream

exists, was upon Respondent. It is not necessary to explore here whether proof

of a negative constitutes an affirmative defense. Petitioner agency's case in

chief established that the flow or stream of water was not "intermittent" as

contemplated by the rule due to regular water flow through a combined vegetative

and hydrologic connection. The motion is denied.

61. The landward extent of a surface water body is to be determined using

the methods described in Chapter 17-301 F.A.C.

62. Rule 17-301.400(1), F.A.C., provides that the landward extent of

surface waters is established by dominant plant species. Subsection (a) of that

rule provides that the existence of a surface water shall first be identified.

63. Mason Branch is a named water of the state. The unnamed tributary was

"eyeballed" and expertly identified by three witnesses on numerous occasions.

Accordingly, the unnamed tributary is not an "intermittent" stream under the

rule. Like Mason Branch, it is clearly a "water of the state."

64. Therefore, Respondent's theory of nonjurisdiction must be grounded

upon there being only intermittent flow of water from Lot 85 to the permanent

tributary.

65. The plant species which are used to determine dominance are found in

Rule 17-301.400, F.A.C. Rule 17-312.045 F.A.C. creates the presumption that the

vegetation indices accurately delineate the landward extent of the waters of the

state.

66. Despite testimony by both Mr. Adams and Mr. Dunphy that each expert

considers there to be an intact, unbroken chain of the wetlands from Lot 85 to

the unnamed tributary, Respondent asserted that neither a continuous vegetative

nor a continuous hydrologic connection exists from Lot 85 to the tributary,

because the dirt roads with culverts A and B constitute a barrier to continuous

wetlands vegetation and because the hydrologic connection of the man-made ditch

starts some distance into the controlling jurisdictional vegetation east of

culvert A, that ditch feathers out into more jurisdictional vegetation and only

after culvert B does the last stretch of jurisdictional vegetation actually abut

the unnamed tributary. There is no question the connection is there, but only a

dispute because it is a combination of linked hydrological and vegetative

connectors.

67. Mr. Dunphy, on behalf of the agency, interpreted this situation to

satisfy jurisdictional Rule 17-312.030(2)(d) F.A.C. So did the agency's expert

evaluation team.

68. An agency's interpretation of its rules and the statutes which it is

charged to administer is to be given great deference. See, Griffith v.

Department of Business Regulation, 613 So. 2d 930 (Fla. 3d DCA 1993); Maclen

Rehabilitation Center v. Department of Health and Rehabilitative Services, 588

So. 2d 12 (Fla. 1st DCA 1991); Department of Business Regulation v. Martin

County Liquors, Inc. 574 So.2d 170 (Fla. 1st DCA 1991); Island Harbor Beach

Club v. Department of Natural Resources, 405 So. 2d 209 (Fla. 1st DCA 1986);

Department of Environmental Regulation v. Goldring, 477 So. 2d 532 (Fla. 1985);

Public Employees Relations Commission v. Dade County Police Benevolent

Association, 467 So. 2d 987 (Fla. 1985). Likewise, an administrative

construction of a statute by an agency responsible for its administration is

entitled to great weight and should not be overturned unless clearly erroneous.

See, Shell Harbor Group, Inc. v. Department of Business Regulation, 487 So. 2d

1141 (Fla. 1st DCA 1986).

69. Given the language of intent contained in Rule 17-312.045 F.A.C., the

agency's recognition within that same rule of how difficult it is to establish

such matters, and the legislature's similar recognition in Section 403.817 F.S.,

Mr. Dunphy's reading is a fair and reasonable interpretation of Rule 17-

312.030(2)(d) F.S. In reaching this conclusion, the undersigned has been

significantly impressed by the expert and fact testimony of both Mr. Adams and

Mr. Dunphy to the effect that the very existence of the dominant named

vegetative species is proof that there is water in that location a majority of

the time; by Mr. Adams' testimony that even though he did not see water flowing

in the area east of culvert A, he saw standing water that convinced him that

water frequently did flow through there; and by Mr. Dunphy's testimony that he

saw tree trunks that evidenced even higher water flow and inundation than that

which he personally observed. The evaluation team report speaks of a "brisk

flow" through "swamps." The inherent logic is that but for the man-made

structures, there would be an unbroken vegetative connection. In any case,

jurisdictional vegetation is propagating throughout the whole area via water,

and water is regularly flowing to the unnamed tributary.

70. There is no doubt Respondent's property contains jurisdictional

vegetation. The fact that this property is surrounded by dirt roads does not

render it "isolated" as that term is used in the rules. Lot 85 and all the

areas delineated by jurisdictional vegetation indices are presumed, by rule, to

be within the landward extent of the waters of the state. The presence of the

named vegetation proves frequent inundation of water. Also, the testimony of

Mr. Adams and Mr. Dunphy, both of whom had walked in the woods and who had

expert, specialized knowledge, was that any water falling on the parcel

eventually was connected to the waters of the unnamed tributary. In Mr. Adams'

opinion, there also was probably an exchange of waters.

71. Respondent's interpretation of the rule as an either/or proposition is

too narrow under the expressed purpose of Chapter 403 F.S., which purpose is to

protect waters of the state and natural drainage patterns thereto by applying

the standard hydrologic methods and indicators of the rule. A similar narrow

interpretation of a predecessor rule was overturned by the Florida Supreme Court

in Department of Environmental Regulation v. Goldring, supra. The court's

reasoning is enlightening.

The issue here is the appropriate standard

for determining the landward extent of state

waters for Department of Environmental

Regulation's (DER) regulatory jurisdiction

over dredge and fill operations.

* * *

The legislature enacted chapter 403 to protect

the air and waters of Florida from pollution

and degradation. S. 403.021, Fla.Stat. (1983).

The provisions of statutes enacted in the public

interest should be given a liberal construction

in favor of the public. State v. Hamilton, 388

So. 2d 561 (Fla. 1980). DER liberally construed

section 403.817 when it adopted the administrative

rules implementing that statute. Courts should

accord great deference to administrative

interpretations of statutes which the administrative

agency is required to enforce. Pan American World

Airways, Inc. v. Florida Public Service Commission,

427 So. 2d 716, 719 (Fla. 1983).

* * *

The opinion goes on to discuss the need for rule interpretations to be in tune

with the remedial purpose of Chapter 403 F.S., and concludes simply,

We hold that DER's dredge and fill jurisdiction

depends upon the predominance of listed aquatic

vegetation on the subject property along with an

exchange of waters, whether one-way or two-way,

with state waters.

72. Here, the Department has established a dominance of listed

jurisdictional vegetation on the subject property along with an exchange of

waters from the subject property to the unnamed tributary of Mason Branch, a

water of the state. The purpose of the statute and rule is to protect receiving

waters whether they are fed through named vegetation or pure hydrologic

connection or a combination of the two.

73. Under the circumstances of this case, the Petitioner has established

its jurisdiction, but not its costs above $250.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Environmental Protection enter a Final

Order finding Respondent guilty of the charged violations and requiring:

(1) That Respondent shall, within thirty days of the final order, remove

from Lot 85 all fill from the Property, which has been placed within the

landward extent of the Tributary of Mason Branch in accordance with the

restoration plan, attached and incorporated as Exhibit I in the Amended Notice

of Violation. All fill shall be removed down to natural, pre-fill elevations

and gradings, and shall be disposed of in a site approved by the Department; and

(2) Within thirty days of the fill removal, Respondent shall plant a

mixture of red maple, cypress, dahoon holly, tupelo and gum trees, spaced 10

feet apart. The trees should be three-gallon size. The cypress and tupelos

should be planted in the lowest areas and the red maples should be planted in

the highest areas.

(3) Within thirty days of the fill removal, Respondent shall tender $250

to the agency as costs.

RECOMMENDED this 15th day of August, 1995, at Tallahassee, Florida.

___________________________________

ELLA JANE P. DAVIS

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of August, 1995.

ENDNOTES

1/ Rule 62-312.030 was formerly numbered Rule 17-312.030. Before that, it was

Rule 17-12.030. The last substantive change was 3/26/89.

2/ Rule 62-312.045 was formerly numbered Rule 17-312.045. Before that, it was

Rule 17-12.045. The last substantive change was 3/26/89.

3/ Respondent asserted that Mr. Adams' testimony was based solely upon a

vegetative connection and established that the drainage system flow was

intermittent within statutory definitions, and that therefore the parcel is an

isolated wetland area. Respondent further contended that Mr. Dunphy's testimony

was based solely upon a hydrological connection, simply because he had conceded

that the roadways were not breached by wetlands vegetation and, accordingly, but

for the hydrological connection (i.e. the culverts and eastern area drainage

ditch), the parcel is an isolated wetland area. Respondent argued that the two

expert opinions were incompatible, and therefore Petitioner failed to prove its

case-in-chief. This is a mischaracterization of the evidence as a whole, which

is set out more accurately in the Findings of Fact, supra., and ignores the

obvious, that all testimony supports a finding that Lot 85 is not an isolated

wetland because water regularly travels through it as evidenced by the

specifically named jurisdictional vegetation.

APPENDIX TO RECOMMENDED ORDER 93-0855

The following constitute specific rulings, pursuant to S120.59(2), F.S.,

upon the parties' respective proposed findings of fact (PFOF).

Petitioner's PFOF:

1 - 12 Accepted.

13 - 20 Accepted except for unnecessary , subordinate and/or cumulative

material.

21 - 32 Accepted as modified to more clearly express the record

evidence.

33 - 36 Accepted.

37 - 39 Accepted as modified to more clearly express the record

evidence.

40 - 64 Accepted as modified to more clearly express the record

evidence and eliminate subordinate, nondispositive and/or cumulative material

and purely conclusory material and unsupported hearsay.

65 - 66 Accepted only as covered within the recommended order for the

reasons given there. The remainder is rejected as not supported by the

evidence.

67 - 71 Accepted.

72 - 77 Rejected as intermixed proposed facts and legal argument, but

substantively covered within the recommended order.

Respondent's Amended PFOF:

1 - 11 Accepted.

12 - 14 Covered in the preliminary statement.

15 - 18 Accepted except for unnecessary, subordinate, and/or cumulative

material.

19 - 25 Rejected as stated, because as stated is not supported by the

record and contains interspersed legal argument.

26 - 27 Accepted.

28 Rejected for the reasons set forth in the recommended order which

conforms to the record evidence.

29 - 40 Accepted except for unnecessary, subordinate, and/or cumulative

material.

41 Rejected as stated in the introductory clause; otherwise accepted.

42 Accepted.

43 - 44 Rejected as legal argument or as mischaracterization of the

record. Covered substantively in the recommended order.

45 Accepted in part and rejected in part as set out in the recommended

order for the reasons set out there.

46 Accepted.

47 - 56 Accepted that the parties stipulated to this part of Mr.

Buchansky's testimony. The findings of fact within the recommended order

embrace both this stipulated material and the audible portions of his testimony.

COPIES FURNISHED:

David Thulman, Esquire

Department of Environmental Protection

Twin Towers Office Building

2600 Blair Stone Road

Tallahassee, FL 32399-2400

Preston Fields, Esquire

Post Office Box 188

Palatka, FL 32178

Virginia Wetherell, Secretary

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, FL 32399

Kenneth Plante, General Counsel

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, FL 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.