St. Johns River Water Management District v. Molica

83 So. 3d 765, 2011 Fla. App. LEXIS 13029, 2011 WL 3627412
CourtDistrict Court of Appeal of Florida
DecidedAugust 19, 2011
DocketNo. 5D09-2460
StatusPublished

This text of 83 So. 3d 765 (St. Johns River Water Management District v. Molica) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
St. Johns River Water Management District v. Molica, 83 So. 3d 765, 2011 Fla. App. LEXIS 13029, 2011 WL 3627412 (Fla. Ct. App. 2011).

Opinion

GRIFFIN, J.

St. Johns River Water Management District [“the District”] appeals a final declaratory judgment in which the trial court decreed that the District lacked authority to take administrative action against Frank H. Molica and Linda M. Molica [“the Molieas”] for the clearing, dredging and filling of wetlands on approximately three and one-half acres of their land, which they use for agriculture. Although the legislative scheme is about as clear as ditch water, we conclude that the District does have that authority. Accordingly, we reverse.

On August 8, 2008, the District filed an administrative complaint and proposed order directed to the Molieas’ activities, which included the following findings of fact and conclusions of law:

FINDINGS OF FACT
1[.] The District, a special taxing district created by Chapter 373, Florida Statutes (FS), is charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, FS, and the rules promulgated thereunder[.]
2[.] The District is specifically authorized to administer and enforce the management and storage of surface waters and the environmental resource permitting programs in Sections 373[.]413 and 373[.]416, FS[.] In part, the District has implemented these statutes through Chapter 40C-4, Florida Administrative Code (FAC)[.]
3[.] Respondents own or control approximately 3[.]47 acres of real property, hereinafter “the property”, located in Brevard County, Floridaf.] The Bre-vard County Property Appraiser identifies the real property as Parcel No[.] 24-36-15-00-00764 0-0000 00 and gives it a location of the southwest quarter of the southeast quarter and part of lot 4 lying east of North Tropical Trail as described in ORB 173 Page 154 of the official records of Brevard County, Florida[.] 4[.] Beginning in 2004, Respondents cleared vegetation on the property, excavated earth on the property, including dredging in a hardwood swamp wetland on the property, and placed fill in the hardwood swamp wetland on the property[.]
5[.] The Respondents undertook land clearing, dredging, and filling in the wetland on the property without having a current, valid permit from the District^] 6[J Rule 40C~4[.]041(2)(b)8, FAC, states that a permit must be obtained from the District prior to construction of a surface water management system which is wholly or partially in a wetland[.]
CONCLUSIONS OF LAW
7[.] The District has jurisdiction over Respondents, the subject property, and [767]*767the activities thereon described in paragraphs 4 and 5 above[.] Sections 373[.]069(2)(c), 373[.]413, 373[.]414, 373[.]416, FS[J
8[.] The District is authorized to administer and enforce the permitting programs established by section 373[.]413, 327[.]414,1 and 373[.]416, FS[J The District has implemented these statutes, in part, through Chapter 40C-4, FAC, and the Applicant’s Handbook Management and Storage of Surface Waters (A H), incorporated by reference in rule 40C-4[.]091, FAC[J
9[.] Rule 40C-4[.]041(2)(b)8, FAC, requires that a permit be obtained “prior to the construction [or] operation of a surface water management system which is wholly or partially located in, on, or over any wetland[.]”
10[.] The term “construction is defined in rule 40C-4[.]021(7), FAC, to mean “any activity including land clearing [or] earth moving which will result in the creation of a system[.]” The term “operation” means “to cause or to allow a system to function[.]” Rule 20(11), A H[J
11[.] Rule 40C-4[.]021(27), FAC, defines “surface water management system” or “systems” to include areas of dredging or filling in wetlands[.]
12[.] Respondents’ activities described in paragraphs 4 and 5 constitute the construction and operation of a surface water management system and are prohibited unless authorized by a permit issued by the District[.] Therefore, the Respondents’ activities described in paragraphs 4 and 5 constitute a violation of Part IV of Chapter 373, FS, and Chapter 40C-4, FAC, in that the Respondents did not obtain a permit from the District prior to undertaking the construction or operation^] Sections 373[.]413(1), 373[.]416(1), 373[.]430(l)(b), FS, and rules 40C-4[.]041(1) and (2), FAC[J

The Molicas requested an evidentiary hearing and an administrative law judge entered a notice of hearing, describing the issue to be heard as follows:

ISSUE Whether Respondents should take certain corrective actions for allegedly dredging and filling property in Brevard County, Florida, without a permit, as alleged in the Administrative Complaint and Proposed Order issued on August 8, 2008[.]

The Molicas thereafter filed a complaint in the circuit court seeking declaratory judgment with respect to their rights under Chapter 373, Part IV, Florida Statutes and sought a temporary injunction with respect to the administrative action. After several amendments by the Molicas, the case proceeded on their second amended complaint. There, they presented the issues in dispute as follows:

Issues in Dispute
7[.] Plaintiffs intend, and seek to, utilize the FARM in furtherance of their aforesaid agricultural activities, and said activities include, or may include, without restriction as to location on the property, the building of access roads, reservoirs or cisterns, the building of contours for watering, the changing of the topography of the land, and the planting of palms trees and other vegetation in various locations, all contained within the FARM[.] Defendant has informed Plaintiffs that their farming activities are restricted, and it is Defendant’s contention(s) variously, and they have so stated to Plaintiffs, that Plaintiffs’ property is a “stormwater management system”, or is a “works”, or is not [768]*768following agricultural practices, or contains a “wetland”, which can change in location or new ones develop over time, and therefore Plaintiffs must apply for, obtain, and pay for, a permit before they can continue with and do the aforementioned activities on the FARM[.] It is Plaintiffs’ belief that they are not required to obtain a permit for those activities on their FARM because it is not within the permitting ambit of Chapter 373, Part IV, FS [.] Plaintiffs also dispute Defendant’s communication to Plaintiffs that once a permit is issued to Plaintiffs, they must allow Defendant to inspect their FARM upon Defendant’s demand to do so, or be subject to a civil or administrative action being brought against them[.] It is Plaintiffs’ belief that Defendant has no authority to cause or require Plaintiffs to submit their privately owned FARM to inspections by Defendant under Chapter 373 Part IV FS[.]

The trial court heard the Molicas’ motion for summary judgment in which they contended that the District lacked authority under the color of Chapter 373, Part IV, Florida Statutes, over their property and could not require them to obtain a permit for clearing, dredging or filling.

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Cite This Page — Counsel Stack

Bluebook (online)
83 So. 3d 765, 2011 Fla. App. LEXIS 13029, 2011 WL 3627412, Counsel Stack Legal Research, https://law.counselstack.com/opinion/st-johns-river-water-management-district-v-molica-fladistctapp-2011.