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:

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

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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 Mike.Eaton@dep.state.fl.us ] or Matt Kershner [904/807-3300 Ext. 3326 Matthew.Kershner@dep.state.fl.us ] 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

http://www.dep.state.fl.us/water/wetlands/delineation/manual.htm

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

http://www.dep.state.fl.us/water/wetlands/delineation/pubs.htm

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. http://fac.dos.state.fl.us/

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?

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.

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:

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.

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.

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.