CONSENT ORDER OGC FILE NO: 90-1386
BEFORE THE STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
Complainant,
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IN THE OFFICE OF THE
SOUTHWEST DISTRICT,
OGC FILE NO.: 90-1386
vs.
The City of Clearwater
Respondent.
CONSENT ORDER
This Consent Order is entered into between the State of Florida Department of Environmental
Protection ("Department"), and The City of Clearwater ("Respondent") to reach settlement of certain
matters at issue between the Department and Respondent.
The Department finds and the Respondent admits the following:
I. The Department is the administrative agency of the State of Florida having the power and
duty to protect Florida's air and water resources and to administer and enforce Part N of Chapters 373
and 403, Florida Statutes, and the rules promulgated and authorized thereunder, Title 62, Florida
Administrative Code. The Department has jurisdiction over the matters addressed in this Consent Order.
2. Respondent is a person within the meaning of Section 373.019(12), Florida Statutes.
3. Respondent owns real property located at 1501 North Belcher Road, Clearwater, Section
7, Township 29 South, Range 16 East, in Pinellas County, Florida. See Attachment A, attached hereto and
incorporated herein, for location Map.
4. An inspection of the above-described property by Department personnel on August 22,
1989 revealed the installation of a vertical seawall approximately 96 linear feet in length within the
landward extent of Alligator Creek, a Class III Florida Waterbody, without a valid permit from the
Department.
aGe No.: 90-1386
Page 1 of 1
Having reached a resolution of the matter Respondent and the Department mutually
agree and it is,
ORDERED:
5. Respondent shall implement the Enhancement Plan attached hereto and incorporated
herein as Attachment B in the manner and within the time frames specified therein.
6. With the exception of the activities described in the Enhancement Plan, effective
immediately and henceforth, Respondent shall not conduct any dredging, filling, or construction
activities on or within the landward extent of waters of the state without first obtaining a valid
Department permit or written notification from the Department that the activities appear to be exempt as
proposed from Department permitting requirements; nor shall Respondent conduct any activities on
state owned lands below the ordinary or mean high water lines without first obtaining a lease,
easement, or other consent of use from the Department.
7. Once the Enhancement Plan has been completed, the Respondent shall implement the
Maintenance and Monitoring Actions attached hereto and incorporated herein as Attachment C in the
manner and within the time frames specified therein.
8. Respondent agrees to pay the Department stipulated penalties in the amount of $100.00
per day for each and every day Respondent fails to timely comply with any of the requirements of
paragraphs 5, 6, and 7 of this Consent Order. A separate stipulated penalty shall be assessed for each
violation of this Order. Within 30 days of written demand from the Department, Respondent shall
make payment of the appropriate stipulated penalties to the "The Department of Environmental
Protection" by cashier's check or money order and shall include thereon the OGC number assigned to
this Consent Order and the notation "Ecosystem Management and Restoration Trust Fund." The
Department may make demands for payment at any time after violations occur. Nothing in this
paragraph shall prevent the Department from filing suit to specifically enforce any of the terms of this
Consent Order. If the Department is required to file a lawsuit to recover stipulated penalties under this
paragraph, the Department will not be foreclosed from seeking civil penalties for violations of this
Consent Order in an amount greater than the stipulated penalties due under this paragraph.
aGe No.: 90-1386
Page 2 of9
9. If any event, including administrative or judicial challenges by third parties unrelated to
the Respondent, occurs which causes delay or the reasonable likelihood of delay, in complying with the
requirements of this Consent Order, Respondent shall have the burden of proving the delay was or will
be caused by circumstances beyond the reasonable control of the Respondent and could not have been
or cannot be overcome by Respondent's due diligence. Economic circumstances shall not be considered
circumstances beyond the control of Respondent, nor shall the failure of a contractor, subcontractor,
materialman or other agent (collectively referred to as "contractor") to whom responsibility for
performance is delegated to meet contractually imposed deadlines be a cause beyond the control of
Respondent, unless the cause of the contractor's late performance was also beyond the contractor's
control. Upon occurrence of an event causing delay, or upon becoming aware of a potential for delay,
Respondent shall notify the Department orally within 24 hours or by the next working day and shall,
within seven calendar days of oral notification to the Department, notify the Department in writing of
the anticipated length and cause of the delay, the measures taken or to be taken to prevent or minimize
the delay and the timetable by which Respondent intends to implement these measures. If the parties
can agree that the delay or anticipated delay has been or will be caused by circumstances beyond the
reasonable control of Respondent, the time for performance hereunder shall be extended for a period
equal to the agreed delay resulting from such circumstances. Such agreement shall adopt all reasonable
measures necessary to avoid or minimize delay. Failure of Respondent to comply with the notice
requirements of this Paragraph in a timely manner shall constitute a waiver of Respondent's right to
request an extension of time for compliance with the requirements of this Consent Order.
10. Respondent shall allow all authorized representatives of the Department access to the
property at reasonable times for the purpose of determining compliance with the terms of this Consent
Order and the rules and statutes of the Department.
11. Entry of this Consent Order does not relieve Respondent of the need to comply with
applicable federal, state or local laws, regulations or ordinances.
12. The terms and conditions set forth in this Consent Order may be enforced in a court of
competent jurisdiction pursuant to Sections 120.69 [253.04] and 373.129, Florida Statutes. Failure to
aGe No.: 90-1386
Page 30[9
comply with the terms of this Consent Order shall constitute a violation of Section [253.04 and]
373.430, Florida Statutes.
13. Respondent is fully aware that a violation of the terms of this Consent Order may
subject Respondent to judicial imposition of damages, civil penalties of up to $10,000 per day per
violation [and administrative fines of up to $10,000 per day per violation] and criminal penalties.
14. Persons who are not parties to this Consent Order but whose substantial interests are
affected by this Consent Order have a right, pursuant to Sections 120.569 and 120.57, Florida Statutes,
to petition for an administrative hearing on it. The Petition must contain the information set forth
below and must be filed (received) at the Department's Office of General Counsel, 3900
Commonwealth Boulevard, MS-35, Tallahassee, Florida 32399-3000, within 21 days of receipt of this
notice. A copy of the Petition must also be mailed at the time of filing to the District Office named
above at the address indicated. Failure to file a petition within the 21 days constitutes a waiver of any
right such person has to an administrative hearing pursuant to Section 120.57, Florida Statutes.
The petition shall contain the following information:
(a) The name, address, and telephone number of each petitioner; the Department's Consent Order
identification number and the county in which the subject matter or activity is located; (b) A statement
of how and when each petitioner received notice of the Consent Order; (c) A statement of how each
petitioner's substantial interests are affected by the Consent Order ; (d) A statement of the material facts
disputed by petitioner, if any; (e) A statement of facts which petitioner contends warrant reversal or
modification of the Consent Order; (f) A statement of which rules or statutes petitioner contends require
reversal or modification of the Consent Order; (g) A statement of the relief sought by petitioner, stating
precisely the action petitioner wants the Department to take with respect to the Consent Order.
If a petition is filed, the administrative hearing process is designed to formulate agency action.
Accordingly, the Department's final action may be different from the position taken by it in this Notice.
Persons whose substantial interests will be affected by any decision of the Department with regard to
the subject Consent Order have the right to petition to become a party to the proceeding. The petition
must conform to the requirements specified above and be filed (received) within 21 days of receipt of
aGe No.: 90-1386
Page 4 of9
this notice in the Office of General Counsel at the above address of the Department. Failure to petition
within the allowed time frame constitutes a waiver of any right such person has to request a hearing
under Sections 120.569 and 120.57, Florida Statutes, and to participate as a party to this proceeding.
Any subsequent intervention will only be at the approval of the presiding officer upon motion filed
pursuant to Rule 28-106.205, Florida Administrative Code.
A person whose substantial interests are affected by the Consent Order may file a timely
petition for an administrative hearing under Sections 120.569 and 120.57, Florida Statutes, or may
choose to pursue mediation as an alternative remedy under Section 120.573, Florida Statutes, before the
deadline for filing a petition. Choosing mediation will not adversely affect the right to a hearing if
mediation does not result in a settlement. The procedures for pursuing mediation are set forth below.
Mediation may only take place if the Department and all the parties to the proceeding agree that
mediation is appropriate. A person may pursue mediation by reaching a mediation agreement with all
parties to the proceeding (which include the Respondent, the Department, and any person who has
filed a timely and sufficient petition for a hearing) and by showing how the substantial interests of each
mediating party are affected by the Consent Order. The agreement must be filed in (received by) the
Office of General Counsel of the Department at 3900 Commonwealth Boulevard, Mail Station 35,
Tallahassee, Florida 32399-3000, within 10 days after the deadline as Set forth above for the filing of a
petition.
The agreement to mediate must include the following:
(a) The names, addresses, and telephone numbers of any persons who may attend the
mediation;
(b) The name, address, and telephone number of the mediator selected by the parties, or a
provision for selecting a mediator within a specified time;
(c) The agreed allocation of the costs and fees associated with the mediation;
(d) The agreement of the parties on the confidentiality of discussions and documents introduced
during mediation;
aGe No.: 90-1386
Page 5 of9
(e) The date, time, and place of the first mediation session, or a deadline for holding the first
session, if no mediator has yet been chosen;
(f) The name of each party's representative who shall have authority to settle or recommend
settlement; and
(g) Either an explanation of how the substantial interests of each mediating party will be
affected by the action or proposed action addressed in this notice of intent or a statement clearly
identifying the petition for hearing that each party has already filed, and incorporating it by reference.
(h) The signatures of all parties or their authorized representatives.
As provided in Section 120.573, Florida Statutes, the timely agreement of all parties to mediate
will toll the time limitations imposed by Sections 120.569 and 120.57, Florida Statutes, for requesting
and holding an administrative hearing. Unless otherwise agreed by the parties, the mediation must be
concluded within sixty days of the execution of the agreement. If mediation results in settlement of the
administrative dispute, the Department must enter a final order incorporating the agreement of the
parties. Persons whose substantial interests will be affected by such a modified final decision of the
Department have a right to petition for a hearing only in accordance with the requirements for such
petitions set forth above, and must therefore file their petitions within 21 days of receipt of this notice.
If mediation terminates without settlement of the dispute, the Department shall notify all parties in
writing that the administrative hearing processes under Sections 120.569 and 120.57, Florida Statutes,
remain available for disposition of the dispute, and the notice will specify the deadlines that then will
apply for challenging the agency action and electing remedies under those two statutes.
15. The Department hereby expressly reserves the right to initiate appropriate legal action
to prevent or prohibit any violations of applicable statues, or the rules promulgated thereunder that are
not specifically addressed by the terms of this Consent Order.
16. The Department, for and in consideration of the complete and timely performance by
Respondent of the obligations agreed to in this Consent Order, hereby waives its right to seek judicial
imposition of damages or civil penalties for alleged violations addressed in this Consent Order.
OGe No.: 90-1386
Page 6 of9
17. Respondent acknowledges and waives its right to an administrative hearing pursuant to
Sections 120.569 and 120.57, Florida Statutes, on the terms of this Consent Order. Respondent
acknowledges its right to appeal the terms of this Consent Order pursuant to Section 120.68, Florida
Statutes, and waives that right upon signing this Consent Order.
18. No modifications of the terms of this Consent Order shall be effective until reduced to
writing and executed by both Respondent and the Department.
19. All submittals and payments required by this Consent Order to be submitted to the
Department shall be sent to the Florida Department of Environmental Protection, attention Jeff Glas,
Environmental Specialist II, 3804 Coconut Palm Drive, Tampa, Florida 33619-8318.
20. This Consent Order is a settlement of the Department's civil and administrative
authority arising under Florida law to resolve the matters addressed herein. This Consent Order is not a
settlement of any criminal liabilities, which may arise under Florida law, nor is it a settlement of any
violation, which may be prosecuted criminally or civilly under federal law .
21. This Consent Order is a final order of the Department pursuant to Section 120.52(7),
Florida Statutes, and it is final and effective on the date filed with the Clerk of the Department unless a
Petition for Administrative Hearing is filed in accordance with Chapter 120, Florida Statutes. Upon the
timely filing of a petition this Consent Order will not be effective until further order of the Department.
aGe No.: 90-1386
Page 7 of9
FOR THE RESPONDENT:
CITY OF CLEARWATER, FLORIDA
~. ~-rr;
William B. Horne, II
City Manager
Approved as to form:
Attest:
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Cyn a E. Goudeau
City lerk
QfJn~
LeslieK. Douga1t-
Assistant City Attorney'
DONE AND ORDERED this
day of
,2004,
, Florida.
10
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
1 I/o
LMc1A~~
;6eDeborah A. Getzoff
District Director
Southwest District
FILING AND ACKNOWLEDGEMENT FILED, on this date, pursuant to H20.52 Florida
Statutes'.. . the designated Department Clerk, receipt of which is hereby acknowledged.
~ ft) y
Date
cc: Larry Morgan
aGe No.: 90-1386
Page 8 of9
Enclosures:
Attachment "A" - Location Map
Attachment "B" - Enhancement Plan (2 pages)
Attachment "C" - Maintenance and Monitoring (2 pages)
aGe No.: 90-1386
Page 9 of9
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ENHANCEMENT PLAN
ATTACHMENT "B"
1. Within 30 days of the effective date of this Consent Order and prior to the initiation of
work authorized by this Consent Order, the Respondent, (or authorized agent) and the contractor,
shall attend a pre-construction conference with a representative of the Department's Submerged
Lands and Environmental Resources staff. The permittee shall notify the Department in writing
subsequent to contractor selection to request scheduling of the subject conference. The purpose of
this conference is to delineate the enhancement area boundary.
2. Within 45 days of Department approval of the enhancement area delineated in the pre-
construction conference, the Respondent shall submit to the Department a signed and sealed survey
and legal description of enhancement area.
3. Within 90 days of Department approval of the enhancement area, the Respondent shall
remove all exotic and nuisance vegetation within the enhancement area. Nuisance and exotic
vegetation, for the purposes of this Consent Order shall include; Brazilian Pepper (Schinus
terebinthifolius), grapevine (Vitis spp.), wild taro (Colocasia esculenta), castorbean (Ricinus
communis), and air potato (Dioscorea bulbifera).
a. All exotic and nuisance vegetation shall be removed from the enhancement area using
hand-held equipment in a manner that will minimize impacts to the existing wetland plants
and will not cause ruts in the wetland soils, which will impede or divert the flow of surface
waters.
b. The stumps of exotic plants previously removed shall be treated annually or as necessary to
prevent regrowth, with an appropriate systemic herbicide approved by the Department in
advance.
c. Debris from trimming and cutting shall be removed from the enhancement area and placed
in an upland location during each maintenance event.
Attachment "B"
aGe No.: 90-1386
Page 1 of2
4. The Respondent shall submit an environmental sign plan for Department review and
approval. The plan shall include the sign design and the number and locations of the proposed
sign(s) indicated on a plan view drawing. Within 30 days of receiving written approval from the
Department, the Respondent shall install the sign(s), pursuant to the approved sign plan.
Attachment "B"
aGe No.: 90-1386
Page 2 of2
MAINTENANCE AND MONITORING ACTIONS
ATTACHMENT "C"
Respondent(s) shall implement the following Maintenance and Monitoring Actions within the
timeframes specified:
1. A "Time Zero" Monitoring Report shall be submitted within 30 days of completion of the
Enhancement Plan. The report shall include the following:
a. Date Enhancement Plan was completed.
b. Enough color photographs to show the entire completed enhancement area taken from fixed
reference points shown on a plan-view drawing.
c. Description of all exotic vegetation removal or control conducted to date including the
acreage of exotic vegetation removal and how vegetation removal or control was conducted.
2. Subsequent monitoring reports shall be submitted for 3 years following completion of the
Enhancement Plan: semi-annually for the first year and annually for the 2nd and 3rd year. The purpose
of the monitoring shall be to determine the "success of the enhancement". The monitoring reports shall
include the following information:
a. Respondent's name, address, and OGC number.
b. Date of the inspection.
c. Color photographs taken from the previously established fixed benchmark locations, to
accurately depict site conditions.
d. Percentage cover of nuisance species including: Brazilian Pepper (Schinus terebinthifolius),
grapevine (Vitis spp.), wild taro (Colocasia esculenta), castor bean (Ricinus communis),
and air potato (Dioscorea bulbifera); or species not listed in Chapter 62-340 F.A.C.
e. A written summary describing the success of the enhancement area including steps needed
and/or taken to promote future success such as planting and/or nuisance or exotic species
removal. Description should also include water levels observed within the restoration area.
Attachment "C "
OGC# 90-] 386
Page 1 of2
The Enhancement Plan shall be deemed successful when the following criteria has been
continuously met for a period of at least one (1) year, without intervention in the form of
irrigation, removal of undesirable vegetation, or replanting of desirable vegetation:
3. "Success of the enhancement area" means that at the end of the monitoring schedule the
following success criteria are met in each enhancement area required in the Enhancement Plan:
The total contribution to percent cover by nuisance species including: Brazilian Pepper
(Schinus terebinthifolius), grapevine (Vitis spp.), wild taro (Colocasia esculenta), castor
bean (Ricinus communis), and air potato (Dioscorea bulbifera), is less than 10%.
b. The enhancement area has been inspected by the Department and the Department has
informed the Respondents in writing that all the enhancement area is within the landward
extent of waters of the state as defined in Florida Administrative Code Rule 62-340.
4. If it is determined by the Department, based on visual inspection and/or review of the
monitoring reports, that the enhancement area is not meeting the above specified success criteria, an
alternative Enhancement Plan shall be submitted to the Southwest District Office and shall meet the
following requirements:
a. Shall submit the plan within 30 days of notification by the Department of failure to meet the
success criteria.
b. Shall implement the alternative plan no later then 90 days after receiving Department
approval.
c. Shall restart monitoring and maintenance program.
5. Should the property be sold during the monitoring period the Respondent shall remain
responsible for the monitoring and notify the new owners of the Respondent's obligation to continue the
monitoring and maintenance until the Department has determined that the success criteria has been met.
The Respondents shall notify the new owner(s) of this in writing and shall provide the Department with
a copy of the notification document within 15 days of the sale of the property.
Attachment "C "
OGC# 90-1386
Page 2 of2