Thursday, September 3, 2009

Some Words About the DEP

If you’ve been following my posts then you already know that I have worked with the DEP in the past, as well as for this current issue. I’ve been all over the internet and read much about the DEP, mostly from angry people voicing their opinions when the DEP penalized them. I have to wonder, though, where we’d be without an agency to protect our environment.

Sure, we all have different opinions of what is important on this Earth, different agendas, and different interests. I’m sure that the majority of us are mostly concerned with how things affect us individually, and don’t give too much thought to the larger consequences of their actions. I have been guilty of that, and do try as I age to think “bigger”. All these different entities involved with my current issue clearly have differing goals. The neighbors want their fire line, for their own reasons. I want the wetlands and creek fixed. The DOF wants something else, and the SJRWMD got the fine task of being in the middle of it all. I suppose the SJRWMD frequently has a hard time being in the middle of people, agencies, developers, etc. who all want different things.

So how does this get resolved? Look at the law.

I recently ran across a forum posted by Flagler Estates, who has long been battling wetlands and water issues. There was a post from the DEP which I thought summed it up nicely. It reads:

Title: WETLAND information from TALLAHASSEE
Post by: jrichards on March 13, 2006, 01:17:31 PM

I'm in the Tallahassee office and I don't know what particular circumstances are happening in your area. I've contacted our Jacksonville office and Mike Eaton [ 904/807-3300 Ext. 3328 ] or Matt Kershner [904/807-3300 Ext. 3326 ] of that office can help you.

In the meantime, the state, all Florida counties, and all other state and local governmental entities that have authority over development that may affect wetlands and wetland protection in the state of Florida (except for the Army Corps of Engineers) utilize the same methodology to determine if an area is a wetland and where the boundaries of the wetland are located (how far out the wetland area extends to). This methodology is ratified in the Florida Statutes, so it's Florida law, and all entities must follow the same methodology. If you are interested in that methodology it is contained in Rule 62-340, Florida Administrative Code and is described in a book, The Florida Wetlands Delineation Manual, which is available to read on our web site at

Other tools for wetland delineation, such as help with plant identification and recognition of hydric soil characteristics are available at

The staff of the DEP (my agency) and the St. John's River Water Management District are very well trained in identifying and delineating wetlands. I would follow the information from these agencies on whether or not there are wetlands before I would follow the information from anyone else. And it's better to be safe then pay the fines for illegally filling wetlands.

As for those area you noticed that "were wetlands," I'm sure that some of that developed land was also high and dry upland. The state of Florida has an evaluation process that allows a person developing a parcel of land to first try to reduce or eliminate their proposed wetland impacts, then, if there are wetland impacts remaining they may mitigate for those impacts, which means they need to preserve or enhance wetlands and the important functions wetlands provide either on the property they are developing or on property within the same watershed, so that the downstream areas still benefit from the improvements. This is a complicated evaluation process that also is now standardized in Rule 62-345, F.A.C. This is the site to the F.A.C.

You can scroll down to Chapter 62 and find the rules I have cited.

Katherine Gilbert
Submerged Lands & Environmental Resources
Fl. Dept. Environmental Protection
Tallahassee, FL 32399-2400
850/245-8482; FAX 850/245-8499
SC 205-8482


So there we have it. One set of procedures for all to follow (except for the Army Corps. of Engineers), Ms. Gilbert writes.

The DEP, at least when working with us in the past, was very open and informative. They were willing to spend time with us and answer any questions we had, and gave us plenty of avenues through which we learned about the value of our wetlands.

I can’t really fault the DEP too much with this current situation, either. There are a couple of things I wonder about, such as why didn’t they write up an investigative report when they visited this site and were prepared to issue a Consent Order for the wetlands to be restored. I wonder what changed their mind from determining that there was no bona-fide silviculture practice going on next door to (after talking with Mr. Bruce Hill with the DOF, as I understand it) suddenly there IS. And I wonder why they are not addressing the damage to our property which is not silviculture in any way, shape or form. Perhaps they don’t know about the most current developments. Based on what Mr. Jensen (DEP) said, violations certainly exist, and the area where the damage happened is wetlands.

So we all come to an impasse. Square One. It remains that these wetlands, which help our entire neighborhood drain, are damaged. The DEP deferred to the SJRWMD, and the SJRWMD says the damage to our wetlands property is not a violation of their regulatory.

Whose then?

Wednesday, September 2, 2009

The Reveal

It’s time to start letting you know who some of the players are. I’ve been trying to keep my neighbors’ names out of this fiasco, but I need to post the latest and greatest letters from the SJRWMD. Because of this, it’s pretty impossible to keep things “under wraps” so here goes:

Without going into a lengthy dissertation about the jurisdictional ping-ponging (like I said I was going to do), I'll just say that wetlands violations fell to the St. Johns River Water Management District (SJRWMD) instead of the DEP to handle due to my neighbors’ alleged silviculture land use.

On August 5, 2009, Mr. Dale Lovell, and Mr. Vern Wickline with the SJRWMD inspected the fire line and sent the following letter dated August 24, 2009 to my neighbor.

SJRWMD August 24 2009 Letter Page 1 SJRWMD August 24 2009 Letter Page 2

What the letter doesn't mention is that this is wetlands. Please refer back to the same Mr. Lovell's letter dated May 27, 1997 (you’ll see it again later in this post) where he mentions the Walker property being located in the wetlands. That is my property. The wetlands doesn't end at my property line. It continues on to the neighbor's property as shown on the DOF and the US Fish and Wildlife National Wetlands Inventory.

I am baffled why, when Mr. Lovell specifically mentions the DOF's Silviculture Best Management Practices manual, he neglects to address the wetlands, or even mention the creek in his letter.

Let's take a look at that manual, shall we? You can download a copy of the manual here. To make it short and sweet for you, I was quickly able to pull out a couple of key pages:

DOF BMP Page 17 DOF BMP Page 33
The whole manual is chock full of special procedures the MUST be followed in wetlands. None of these procedures were followed. These pages CLEARLY state fire line plowing should be avoided in the wetlands.

Question: Why does Mr. Lovell mention the North boundary and nothing on the west boundary where the most significant damage occurred even to the creek? He merely mentions one area where the equipment bogged down. There were two, and one was dead smack in the creek.

Question: Why is Mr. Lovell giving the “green light” for grading? He doesn’t specify who must do that grading. That means anyone can take a tractor or bulldozer into the wetlands and tear it up some more. Since when is this allowed in wetlands with no permit? By the way, I recently received a letter from the DEP stating it will cost $250.00 for a permit to put up a post and wire fence in the wetlands, yet grading, bulldozing, and the neighbor’s post hole digging is OK with no permit? HUH?

Further, Mr. Lovell states the damage to my property is not “a violation of District regulatory". Whose is it then? The DEP again, for the third time? They’ve already washed their hands of it…hmmm, I’m wondering if the DEP even knows about the DOF’s and the SJRWMD’s decisions….

The Fritch neighbor certainly has not expressed any desire whatsoever to right these wrongs. So again, I guess our only avenue is litigation, and we were trying to avoid that.

Now, you may come to the conclusion that Mr. Lovell does not think this area is wetlands. Here is another letter dated August 31, 2009 addressed to me.

SJRWMD August 31 2009 Letter Page 1 SJRWMD August 31 2009 Letter Page 2

SJRWMD August 31 2009 Letter Page 3 SJRWMD August 31 2009 Letter Page 4

SJRWMD August 31 2009 Letter Page 5

As you can see, Mr. Wickline included a copy of Mr. Lovell’s 1997 letter. I might as well tell you some background on this:

We called a meeting with my attorney Jennifer Springfield, Dale Lovell (SJRWMD), Vern Wickline (SJRWMD), and Mike Green (County) on August 5, 2009 to discuss a drainage problem from water coming from Highway 315C to our neighborhood. This highway water contributed greatly to the washout of Blueberry Hill Road. Mr. Green with the County presented a plausible plan to relieve the area of this water problem and all three men asked me if I would help them to contact several of the neighbors about the proposal. I agreed. During this meeting, I expressed great concern for the road and my neighbors, and was just recently seeing the horrific washout since I had been out of town for awhile. I told the men that clearly work needed to be done, that the road was in very bad shape, and asked if they could give some guidance to the neighborhood so that the work could go on unhindered. The SJRWMD guys agreed and prepared the above letter in response to that request. Unfortunately, Mr. Wickline sent everyone in the neighborhood a copy of the 1997 letter that included my notes. There had previously been some neighborhood meetings during which apparently there had been some hard feelings and hostilities expressed…I don’t know too much about that because I was out of town and was not able to attend the meetings, and what I have heard about them has strictly been word of mouth scuttle through the neighborhood. But during the last meeting, the Spokesperson indicated that “someone was out there trying to cause problems and THEY HAD BETTER QUIT!”

So, I guess everyone will think now that I am that person. Wrong.

Oh well. Thanks, guys! Good luck to me now trying to get folks to cooperate with the drainage proposal.

After that meeting was over, Mr. Green left since he was there only to discuss the County Road 315C drainage issues. Mr. Wickline and Mr. Lovell then took a few minutes to look at the fire line, and then left to go speak with the neighbors. They weren’t down there long, maybe about 10-15 minutes.

Anyway, that brings us current with the above August 31st letter, at least as far as the SJRWMD goes. In that letter Mr. WIckline again addresses the wetlands, includes the 1997 letter which acknowledges that the information in that letter holds true today, and in the attached 1997 letter my property is mentioned (#8 Walker property), along with a diagram (illustrative purposes only I am sure) to show the wetlands and creek. That letter also specifically states that my property is wetlands.

Again I must ask? Why no wetlands violations? Why is there no permit required?

If I did these things, the DEP would be all over me, and rightfully so.

Tuesday, September 1, 2009

After, and After

April 26,2009


August 28, 2009

The top image (April 26, 2009) is of an area right beside our garden where we enjoyed sitting, watching butterflies, and watching things grow. It's shady there...we've spent many enjoyable hours in those chairs. This image is a captured frame still of a video we took two days after the FDOF bulldozed on April 24, 2009.
The bottom left and right images (August 28, 2009) are of the same area. The angle is a little different, and I apologize for the picture quality. These images were taken with a cell phone. As you can see, the area is no longer useable, much less enjoyable. The DOF fire line is mere feet beyond the edge of the little blue fence at the rear of the image. There is a ridge of debris and dirt built up from the bulldozer tracks, so this area can no longer drain to the lower elevation at the east of us as it has always done in the past. Never in 10 years has this area looked like this, so we can only attribute the ugly change to the fire line. We tried to show this to the St. Johns River Water Management District when they were here, but no one seems interested in the changes to our living space that have happened due to the fire line construction.
The muck area is getting bigger by the day.

Saturday, August 29, 2009

Similar Actions Have Been Prosecuted!

Here are links to a few articles showing that similar actions have been prosecuted.

I’ve intentionally listed only very small, minor violations.

When you’re looking at these links, keep in mind that at least 2 DOF bulldozers destroyed a path approximately 1/2 mile in length, and crossed a creek twice!

We’re told there is no violation – why is it ignored here?

These are only a few of many examples.

Again I must ask, how can it be ok to drive a bulldozer through the wetlands and through a creek?








Thursday, August 27, 2009

I Digress...

I think it's time you had a little more background on this

We bought this property in June 1999. We were captivated
the moment we saw it. We were up in the sand hills "on the
Ridge", but here was this heavily wooded vibrantly green
gem. There were berries aplenty, red maples, HUGE tupelos,
loblolly bays, water oaks, sweet bays, red bays, cinnamon
ferns galore, and things we had never seen before that
looked like something right out of the Jurassic era. We
explored it pretty quickly after our purchase and found the
creek in the back and were entranced. It didn't take but a
moment to decide to leave it as natural as we could, and
that's exactly what we did. We pulled miles of catbrier and
grape from the trees, clipped down the scrub in the front,
and removed the dead stuff. Grass started to grow around
the house. Our chosen landscape surrounding us is our
woods, which we love.
nyssa sylvatica

In 2000, we had the property surveyed and put in PVC to mark
each survey stake. We knew by then that this was a very wet

We began having some trouble with excess water running down our driveway, into our front yard, and under our house and discovered a culvert needed to be replaced. When we had the folks out to replace the culvert, the neighbor came by (one of the ones who now denies any knowledge of wetlands) and told us,

"You can't do that! Your property is wetlands!"

We looked around at the "crawdaddy patties" and all the foliage and thought "Oh S**T, maybe it is!" One neighbor gave us a copy of a letter from the St. John's River Water Management District dated May 27, 1997 , above left, which said that our property is wetlands (referred to as the“Walker” residence on Page 2).

So my wife started making calls, more calls, and even more calls, to everyone: the Army Corps. Of Engineers, the Property Appraiser's Office, the County, the DEP, and lots of other folks. (We kept all of these records.) In March, 2001 after many calls, she finally got the opportunity to speak with Mr. David Mayo, Environmental Specialist, Northeast District, Gainesville, Florida DEP. Mr. Mayo offered to ride out to the house and look around. He did, and stayed most of the day. What he found here confounded him because there were obvious wetlands species growing here, but then there were things growing that didn't normally grow in wetlands. He asked if he could come out the next day with his boss. Both gentlemen came back the next day and stayed a good portion of the day. You see, my wife had already spent a great deal of time identifying much of the flora, and really, she enjoyed the visit with these guys. They took the time to walk out to the highway and traced excess water flow coming from there. They also looked at the creek, and around the house. They walked all over this property and looked at everything. What they left us with is this: This property beginning at the woods is wetlands, around the house is a transitional area that has been burdened with a lot of excess water from the highway, and out by our road was not wetlands. They even pointed out that the property to the east of us showed even more wetlands characteristics than ours. They told us to leave the woods alone, to not pull up any plants or dig, and that anything we wanted to do back there would require a wetlands permit. We discussed our plans for additional drainage ditches and culverts, so they left us with the proper permit to fill out, which was a Joint Application for Environmental Resource Permit/Authorization to Use Sovereign Submerged Lands/Federal Dredge and Fill Permit.

Mr. Mayo took the time to check off the areas of the application that we needed to fill out and asked us to prepare a plan for our project and fax it to him. We did that on March 29, 2001. Mr. Mayo collaborated with Mr. Mike Eaton and Mr. Rusty Price in the Jacksonville office because of the transitional area around the house. Mr. Mayo was also kind enough to leave a lot of educational material about wetlands, including a book on invasive species.

covers of materials Mr. Mayo left with us

My wife enjoyed working through the materials and learned much from these two men during their two day visit. We continued our wetlands studies, and still do to this day.

During the next several years, we worked on the natural landscape close to the house and frequently went into the woods to look at some of the endangered plants growing there, and to pick the berries, which were abundant. We have photos of some of the wild rhododendrons that grew back in the woods, and drawers of photos of the other species and our gardening projects.
(top right: rhododendron viscosum (L.) Torr., top left: Gordonia lasianthus,
Bottom two: rhododendron canescens endangered)

We kept journals of what we found and everything we did, made diagrams of where things grew, and hunted with the binoculars. My wife even made candles one Christmas out of the wax from the Wax Myrtles, and jelly for the neighbors from the blackberries. We even toyed with the idea of starting a company; “Loblolly Bay Botanicals” specializing in natural skin care products. Our land was very much a part of our lives. We abided by all of the wetlands laws and found ways to co-exist with this special environment that didn't involve making major changes. We have a wealth of wildlife and frequently sat on the decks watching the hawks, red fox, and deer. We treated the land with care and respect and looked at the woods with awe.

You already know, if you've been following my posts, that the neighbor came over and told us the fire line was to be done and that I even went with him to make sure all the property line markers were visible. I expressed concern for my trees and the creek and specifically requested the fireline be moved back off of the property line so that nothing would be damaged. When the Division of Forestry came and bulldozed through our property and the creek, we were at first sort of dumbfounded while we watched it happen, and thought,

"How can this be?
We are required to get a permit for everything,
and the DOF can bring these huge bulldozers in and destroy things like this?

Sink their bulldozers?

Did they get a permit?

Who issued that?

What about our trees? The creek?

What about the endangered stuff?

Who do we contact about this?"

It really was appalling to us and we had so many questions. We got in touch with the DOF to see what they would do to help us and initially spoke with Mr. Barry Coulliette who said he looked on his computer and there were no fire lines on the schedule for April 24th. He made a call to Mr. Kevin MacEwen and had Mr. MacEwen contact us about the damage. I almost got to meet Mr. MacEwen. I say almost, because when I extended my hand to shake his, he put his in his pocket and walked away. I then tried to introduce him to my wife and he turned his back and walked off before I even got a chance to say her name. There was little concern expressed, not even a comment from Mr. Kevin MacEwen about the creek. We did not get to address any of our questions. Mr. Kevin MacEwen was the one who said there wasn't much damage, our trees were worthless, and that no one wanted “those trees” anyway.

He left.

The same neighbor came over to our house and said, "I don't know what else I could have done! I'm sorry some of your trees got hurt, but just think of it this way...the property line is cleared so y'all can put you up a fence now!" I asked him if he had talked with the DOF about moving the fire line over and he admitted he had not.

He left.
He never came back.

Subsequent phone calls to other DOF folks led nowhere. One DOF individual (Myron) actually told me that the fire line was being bulldozed to stop the fire that was burning. I replied, "There is no fire burning!" He said, "There could be!"

No other neighbor, in particular, Ms. Neighbor who owns the lot next door, came to speak with us about the damage. No one offered to help us clean up the mess, or pay for any of the damage. No other apologies or concern. In fact, the other neighbor took his tractor into the wetlands and proceeded to do a lot of additional damage (he denied this to the DEP). The DOF kept coming back on Fridays from 9AM until 11AM to work, but it was odd...I wouldn't see them come in, but would see them leave (believe it...I was watching!), or I would see them come in, hear them work, but then never see them leave.

What the neighbor and the DOF
didn't know is that I have two exterior security cameras
that film the road and the side of the yard where the damage is.

We patiently waited for the DOF to get back with us.
No one did.

My wife tried to track down Mr. Dave Mayo with the DEP, but their offices had undergone some restructuring and no one seemed to know where Mr. Mayo was. She was finally put in touch with Mr. Don Jensen with the DEP who made an appointment to see the damage. We wanted to meet with Mr. Jensen to get it on record that we did not do this illegal thing since some of the fire line was on our property. We felt we needed to establish that we were not responsible for the damage to the creek and wetlands, and that we did not participate in the neighbors' wildfire mitigation program. The DOF and the neighbors had left us in a very bad position with regard to wetlands laws and regulations. Mr. Jensen said that he certainly saw violations and would "get right on it." Mr. Jensen was acquainted with Mr. Mayo and reviewed the materials we had kept from our previous work with the DEP. We also gave Mr. Jensen some video tapes.

When it became clear to us that we weren't going to get any help from the DOF or the neighbors, we retained an attorney in mid-June. We needed some advice, and needed some help with communications with the various agencies involved. We had specifically discussed the best way to handle this case with the attorney and we thought that in order to keep the peace in our neighborhood, it would be best to approach the DOF directly and to work with them (even though there were other options available to us). We were only trying to get the wetlands restored, and be reimbursed for the damage and our out-of-pocket expenses.

After having the initial meeting with the DEP, and the retention of our attorney, things took a decidedly hostile turn with regard to my neighbor's attitudes. I won't go into all the silly things the neighbors have done lately in retribution. It's not even worth my time. It also would be in bad taste to state why the particular location of this fire line is so aggravating over and above the sheer destruction of the wetlands and creek, but I will try to be as diplomatic as possible and simply say that everyone has an agenda.

Our agenda?
To live peacefully and enjoy the wonders this property is capable of showing us.

Well, you'd have to ask them, but I would bet my life their answer would be about as truthful as their statements to the DEP, SJRWMD, and the DOF have been.

We've never done anything to these neighbors to invoke their wrath, and over the course of ten years have consistently "turned the other cheek" when little affronts from their direction have happened. I mean, really, we tried to be as neighborly as possible and gave everyone ample opportunity to make things right.

When Mr. Bruce Hill with the DOF came to speak with my wife and our attorney on August 5, 2009 about "what it would take to make us happy", he prefaced the whole discussion with this statement:

"I am not here to listen to whatever issues you have with your neighbors"

as if WE were the ones that caused all of this havoc. Mr. Hill should have been living in this house during these past few months and he would have known where all the issues stem from, and it isn't from within our four walls. Mr. Hill was not in the position to acknowledge that any wrongdoing had happened but did admit that the work that was performed here was not indicative of the work typically performed by the DOF. He admitted the bulldozers had "buggered up the creek” and that some rehabilitative work needed to be done. Mr. Hill had initially agreed to send out a Biologist, Heather Venter, to work with my wife on some restoration plans, but then our attorney received a letter from Mr. John W. Costigan, Assistant General Counsel for the Department of Agriculture and Consumer Services, who is now handling this case for his client, the DOF. This letter (which I’ll post later) advised her that she and we must refrain from any further contact with the DOF, that Ms. Venter would not be meeting with us, and to contact him directly to discuss any restoration.

Our attorney phoned Mr. Costigan to discuss this matter, as his letter requested. He told our attorney that we had misrepresented the facts, that he doubted our truthfulness, and that he felt our motives in pursuing this case is simply to "stick it to our neighbors". For crying out loud!!! How could these facts possibly be misrepresented? The DOF admits their bulldozers caused the damage. It is clear that the bulldozer went on our property since they managed to leave each and every property line marker intact, and we have surveys to show where the property line officially is. Not truthful? What can be lied about here? The wetlands is what it is and the DOF did what they did. Stick it to my neighbors? How so? We didn’t do this bulldozing!

The DOF won't admit the area is wetlands even though their own reports and other agencies' reports say it is. They won't admit it because to do so would be an admission of guilt to a crime, since bulldozing wetlands while committing multiple criminal trespasses, and the destruction of endangered wetlands flora are crimes. The DOF just wants to throw their "immunity" out there and call US liars.

Does it make me mad?
Of course it does.

You bet.

But it is not the petty annoyances of some immature neighbors that does it. What sends me over the top is the folks at the DOF who will not step up to the plate, admit that a wrong thing has happened and take responsibility for their mistake. They, in my humble opinion, are far worse than vengeful neighbors. My attorney summed it up nicely when she said that what we have here is one governmental agency running around violating another governmental agency's regulations (and their own!) all at the taxpayers' expense.


These guys are in the position to be upstanding citizens and obligated to be public servants, empowered by taxpayers to protect property and uphold and enforce wetlands protection laws, but do they?

Instead, they speak denials vehemently like children.

"Denial ain't just a river in Egypt." - MARK TWAIN

My next post will address the ping-ponging jurisdictional quagmire that happened after the DEP's initial visit, so I'll hold off on that one until later.