95-001072 Linda L. Braswell (No. 082646365) vs. Department Of Environmental Protection Status: Closed Recommended Order on Wednesday, April 24, 1996.

Summary: Exemption from permitting for seawall. Hearing Officer has no authority to order enforcement.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LINDA L. BRASWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1072

)

KURT AUSCHRA and DEPARTMENT OF )

ENVIRONMENTAL PROTECTION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, William F. Quattlebaum, held a formal hearing in the

above-styled case on January 29, 1996, in Ft. Myers, Florida. The hearing

officer conducted the proceeding by videoconference.

APPEARANCES

For Petitioner: Robert E. Turffs, Esquire

227 South Nokomis Avenue South

Post Office Box 1767

Venice, Florida 34284-1787

For Respondent DEP: Christine Stretesky, Esquire

2600 Blair Stone Road

Tallahassee. Florida 32399-2400

For Respondent Auschra: No appearance

STATEMENT OF THE ISSUE

The issue in this case is whether the construction activities of Respondent

Auschra were exempt from applicable permitting requirements on the basis of the

application and whether the construction activities exceeded the scope of the

exemption. Further, the Petitioner seeks an Order directing the Department of

Environmental Protection to initiate an enforcement action against the Auschra

project. The Department asserts that the Hearing Officer is without

jurisdiction to require the Department to initiate an enforcement action.

PRELIMINARY STATEMENT

By Petition for Administrative Hearing dated February 17, 1995, Petitioner

Linda L. Braswell challenged the determination by the Department of

Environmental Protection that a project proposed by Respondent Kurt Auschra was

exempt from permitting requirements. The Department forwarded the petition to

the Division of Administrative Hearings, which scheduled the proceeding. The

case was transferred to the undersigned Hearing Officer on December 20, 1995.

At the hearing, the Petitioner presented the testimony of three witnesses,

testified on her own behalf, and had exhibits numbered 4, 10, 12, 13, 15 and

15A, 18, and 20 admitted into evidence. Respondent DEP presented the testimony

of one witness.

A transcript of the hearing was filed. The Petitioner and Respondent DEP

filed proposed recommended orders. The proposed findings of fact are ruled upon

either directly or indirectly as reflected in this Recommended Order, and in the

Appendix which is attached and hereby made a part of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Linda L. Braswell owns and resides at 5190 Latham Terrace

Port Charlotte, Florida. The property is located at Lot 88 of the Gulf Cove

subdivision in Charlotte County, Block 1864, Section 54.

2. Respondent Kurt Auschra owns Lot 90, located adjacent to Lot 88.

3. Mr. Auschra did not appear and was not represented at the hearing.

4. An application dated January 5, 1995, was filed on behalf of Mr.

Auschra, seeking approval of seawall construction at his property.

5. The application appears to be signed by Eugene Exejet of the Charlotte

County Seawall Company.

6. Respondent Department of Environmental Protection is responsible for

the permitting and regulation of projects such as the Auschra project.

7. The relevant properties back up to the Latham Waterway, a man-made

residential canal.

8. The Petitioner asserts that the Auschra property was landlocked and did

not have access to the water prior to construction of the seawall.

9. A property is "waterfront" if the mean high waterline touches the

property.

10. Evidence of the apparent mean high water line, including subdivision

plats and location of vegetation, establishes that the Auschra lot was a

"waterfront" lot prior to construction of the seawall.

11. Existing residential canal systems are classified as artificially

created waterways by applicable administrative rules.

12. The Auschra application was reviewed by Peggy Hellenbach, an employee

of the Department.

13. After the application was filed, and prior to the Department

determination that the project was exempt, the Petitioner communicated her

concerns to two members of the Department staff, including Ms. Hellenbach.

14. At the time of her review, the application contained sufficient

information for Ms. Hellenbach to determine the location and the type of project

being proposed.

15. Ms. Hellenbach reviewed the application and determined that the

project was exempt from permitting requirements.

16. In determining that the project was exempt from permitting, Ms.

Hellenbach considered whether the proposed project would violate existing water

quality standards, impede navigation or adversely affect flood control.

17. Ms. Hellenbach determined that based on the location of the seawall

and the applicant's intended use of turbidity screens during construction, water

quality standards would not be violated.

18. Turbidity screens were used during construction of the seawall.

19. Because the construction site is at the "dead-end" of the waterway,

Ms. Hellenbach determined that the project would not impede navigation either

during or after construction.

20. Because the location of the seawall does not impact water flow, Ms.

Hellenbach determined that the project would not adversely affect flood control.

21. By letter to Mr. Auschra dated February 6, 1995, the Department stated

as follows:

Based solely upon the documents submitted

to the Department, the project has been

determined to qualify as an activity which

is exempt from the need for a wetland resource

permit pursuant to Florida Administrative Code

(F.A.C.) Rule 62-312.050 (1) 62-312.050(1)(g).

22. The letter also provided:

The determination that your project qualifies

as an exempt activity pursuant to Rule

62-312.050 (1) 62-312.050(1)(g), F.A.C., may

be revoked if the installation is substantially

modified, or if the basis for the exemption is

determined to be materially incorrect, or if

the installation results in water quality

violations. Any changes made in the construc-

tion plans or location of the project may

necessitate a permit or certification from

the Department. Therefore, you are advised to

contact the Department before beginning the

project and before beginning any work in waters

or wetlands which is not specifically described

in your submittal.

23. Ms. Hellenbach did not visit the site prior to making her

determination. There is no evidence that Ms. Hellenbach was required to visit

the site prior to making her determination.

24. Construction of the project was initiated prior to the issuance of the

Department's February 6 letter of exemption.

25. Given Ms. Hellenbach's subsequent review of the project after

construction and her continuing assertion that the project meets applicable

exemption criteria, it is unlikely that a site visit prior to construction would

have impacted installation of the seawall.

26. The greater weight of the evidence establishes that, based on the

information set forth in the application, the project was exempt from permitting

requirements.

27. There is no evidence that the project violated existing water quality

standards, impeded navigation or adversely affected flood control.

28. Department policy requires that new seawalls be built in a "continuum"

with existing seawalls to prevent water quality problems caused by altered water

circulation. The Auschra seawall appears to be in a continuum with the existing

Latham Waterway seawalls.

29. There is evidence that vegetation, including mangroves, located both

on the Auschra property and on adjoining property, was removed during the

construction of the seawall.

30. Removal of vegetation is typical during installation of a seawall.

31. Based on the existing vegetation at the site, the removed vegetation

most likely consisted of a thin line of red mangroves at the waterline with a

large stand of Brazilian Pepper behind the mangroves and along the banks of the

waterway.

32. There is no evidence that a permit was required for removal of the

vegetation on the Auschra property.

33. Applicable administrative rules do not authorize removal of mangroves

from adjacent properties unless the property is owned or controlled by the

person performing the removal of the vegetation or unless the land is adjacent

State-owned land lying waterward of the parcel of property on which the exempt

activity is occurring.

34. There is no evidence that a permit was issued for removal of the

vegetation on the adjoining property.

35. There is evidence that as constructed, the seawall encroaches onto the

property of adjoining owners and that during construction, property of adjoining

owners may have been excavated.

36. There is no evidence that the seawall encroaches onto the property of

the Petitioner.

37. The evidence fails to establish that the amount of material excavated

during construction of the seawall was excessive in relation to the size of the

structure.

38. Ms. Hellenbach conducted a site visit after the construction of the

seawall. Based on her review of the seawall construction and her knowledge of

the application, Ms. Hellenbach determined that the project continues to be

exempt from permitting requirements.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has jurisdiction over the

parties to and subject matter of this proceeding. Section 120.57(1), Florida

Statutes.

40. In relevant part, Rule 62-312.050, Florida Administrative Code,

provides as follows:

(1) No permit shall be required under this

chapter for dredging or filling...for the

projects listed below.

* * *

(g) Construction of seawalls or riprap,

including only that backfilling needed to

level the land behind the seawalls or riprap,

in artificially created waterways where such

construction will not violate existing water

quality standards, impede navigation or adversely

affect flood control. An artificially created

waterway shall be defined as a body of water

that has been totally dredged or excavated and

which does not overlap natural surface waters

of the state. For the purpose of this exemption,

artificially created waterways shall also include

existing residential canal systems....

41. The evidence in this case establishes that the project proposed by

Respondent Auschra for installation on his property was exempt from permitting

requirements by operation of the rule.

42. The Petitioner asserts and presented evidence that vegetation located

on the property of adjoining owners, including some mangroves, was removed

during the construction of the seawall. There is no evidence that a permit was

issued for the removal of the vegetation.

43. In relevant part, Rule 62-321.060, Florida Administrative Code,

provides as follows:

(1) No permit under this rule is required

for the alteration of mangroves:

(a) on property by a person who owns or

controls the property and on adjacent State-

owned lands lying waterward of the parcel of

property in conjunction with and as essential

for any of the activities exempted from wet-

lands resource permit requirements by...Rule

62-312.050, F.A.C.,...provided that the

alteration is limited to the minimal amount

necessary to construct the authorized works....

44. Despite the apparent unpermitted removal of vegetation from the

adjoining property, Ms. Hellenbach asserted that there are no violations of

statute or rule warranting agency enforcement action. The Hearing Officer is

without authority to require that allegations of improper removal of vegetation

be reviewed by the Department.

45. Additionally, the Petitioner asserts and presented evidence that as

constructed, the seawall encroaches onto the property of adjoining owners and

that during construction property of adjoining owners may have been excavated.

There is no evidence of encroachment onto the Petitioner's property.

Additionally, this matter is outside the jurisdiction of this proceeding.

RECOMMENDATION

Based on the foregoing, it is hereby RECOMMENDED that the Department of

Environmental Protection enter a Final Order dismissing this case.

DONE and RECOMMENDED this 24th day of April, 1996 in Tallahassee, Florida.

___________________________________

WILLIAM F. QUATTLEBAUM

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 24th day of April, 1996.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1072

To comply with the requirements of Section 120.59(2), Florida Statutes, the

following constitute rulings on proposed findings of facts submitted by the

parties.

Petitioner

The Petitioner's proposed findings of fact are accepted as modified and

incorporated in the Recommended Order except as follows:

3. Rejected, subordinate.

4. Rejected, unnecessary.

5-6. Rejected, subordinate.

7-8. Rejected. Recitation of testimony is not Finding of Fact.

9. Rejected, unnecessary. The greater weight of the credible evidence

establishes that the location of the seawall and quantity of dredged material do

not render the project non-exempt.

10-12. Rejected. Recitation of testimony is not Finding of Fact.

13-14. Rejected, cumulative.

15. Rejected as to statement that "the property did not have sufficient

area on the canal to build a seawall." Not supported by greater weight of the

evidence.

16. Rejected. Recitation of testimony is not Finding of Fact.

17. Rejected, unnecessary.

18-22. Rejected, subordinate.

23-24. Rejected, unnecessary.

26-27. Rejected, fails to comply with Rule 60Q-2.031(3) requiring citation

to transcript.

30. Rejected. The evidence that a "new waterway" was dredged is

insufficient to be persuasive.

Respondent DEP

The Respondent's proposed findings of fact are accepted as modified and

incorporated in the Recommended Order except as follows:

12. Rejected, unnecessary.

17. Rejected. There was evidence presented as to ownership of adjoining

property.

24. Rejected, subordinate.

26. Rejected, unnecessary.

COPIES FURNISHED:

Virginia B. Wetherell, Secretary

Department of Environmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Kenneth Plante, General Counsel

Department of Environmental Protection

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Robert E. Turffs, Esquire

227 South Nokomis Avenue South

Post Office Box 1767

Venice, Florida 34284-1787

Kurt Auschra

Hinter der Linah 50

21614 Buxtehude Germany

Christine Stretesky, Esquire

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee. Florida 32399-2400

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 ten 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.