STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OCCIDENTAL CHEMICAL COMPANY, )

)

Petitioner, )

)

vs. ) CASE NO. 80-895RX

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, commencing on July 29, 1980, and continuing on July 30, July 31, and August 1, 5 and 6, 1980, in Tallahassee, Florida. After the completion of the hearing, the parties stipulated to an extension of time until November 6, 1980, to file their post- hearing documents, with an understanding that the Hearing Officer would have twenty additional days to enter her Final Order.

APPEARANCES

For Petitioner: W. Daniel Stephens

Lawrence E. Sellers, Jr. Danny P. Jackson

Holland and Knight Post Office Box 1288 Tampa, Florida 33601

For Respondent: Silvia Morell Alderman

John C. Bottcher David Levin Segundo Fernandez

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

It is with sorrow and condolences that the Hearing Officer notes the tragic and untimely death of W. Daniel Stephens, counsel for the petitioner, during the pendencey of this proceeding. The courtesy and competence he demonstrated in this cause was appreciated and his death constitutes a loss to the Florida Bar.

INTRODUCTION

By an amended petition filed pursuant to Section 120.56, Florida Statutes, Occidental Chemical Company (also referred to as petitioner) challenges three existing, promulgated rules and two unwritten policies which petitioner contends constitute "rules" of the Department of Environmental Regulation (also referred to as DER or respondent). The written rules challenged in this proceeding are

Rules 17-4.02(17), 17-4.02(19) and 17-4.28(1), (2) and (3), Florida

Administrative Code. 1/ The two unwritten policies alleged by petitioner to constitute rules within the meaning of the Administrative Procedures Act involve the alleged assertion of jurisdiction over activities conducted in isolated, privately owned areas 2/ and the alleged consideration of factors other than water quality, such as wild- life and wetlands preservation, when DER makes determinations of jurisdiction or issues or denies dredge and fill permits pursuant to Chapter 403, Florida Statutes. 3/

Numerous motions were filed and ruled upon prior to the final hearing in this cause. A repetition of said motions and rulings would serve no useful purpose in this Order. At the beginning of the hearing, petitioner attempted to add Rule 17-3.021(8), Florida Administrative Code, to the rules originally challenged in this proceeding. An objection to this attempt was sustained on the ground that proper notice of such a rule challenge had not been provided.

In its efforts to demonstrate the invalidity of the challenged written rules on the grounds of vagueness, arbitrariness and capriciousness, petitioner presented the testimony of numerous present and past employees of DER, as well as several private consultants in the areas of geology, biology, civil engineering and plant ecology. DER presented testimony from DER employees and exports in the areas of hydrology and botany. Testimony from these witnesses related to their dealings with and interpretations of the challenged written rules, as well as the issue concerning the existence or nonexistence of the two unwritten "phantom rules." Some of these witnesses had direct experience with making jurisdictional determinations under the challenged written rules and some had no such experience. Finding of fact based on this testimony are limited to those factual matters upon which the witnesses exhibited an expertise in the area or had actual experience in applying the challenged rules.

At the conclusion of the hearing, the parties filed proposed orders with supporting memoranda. To the extent that the parties' proposed findings of fact are not incorporated in this Order, they are rejected as being either not supported by competent, substantial evidence, immaterial and irrelevant to the issues for determination or as constituting conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found:

1. Occidental Chemical Company owns, operates or otherwise controls phosphate mining and fertilizer manufacturing facilities in the State of Florida. In the course of activities incident to mining phosphate petitioner is required in some instances to seek approval from the Department of Environmental Regulation for activities conducted in or connected to areas defined as "waters of the State" under Rule 17-4.28 and related definitional sections of the Florida Administrative Code. In the past, petitioner has applied for permits under Rule 17-4.28, Fla. Admin. Code, some of which have been issued and some of which have been subject to notices of intent to deny.

   
   

2. Determinations by DER as to whether regulated activity is or will occur in an area conducted in or connected to waters of the State are made on a case by case basis depending upon specific on-site characteristics. In making such jurisdictional determinations, DER employees rely upon and utilize the concepts embodied in Rule 17-4.28(2) and the related definitions contained in Rules 17-

   4.02(17) and (19), Florida Administrative Code. In the past two years (July, 1978 to June, 1980), Rule 17-4.28 has been applied in a permitting mode some 5,080 times.

   
   

3. With the exception of the term "intermittent" which is used in hydrogeological technical descriptions, no evidence was admitted at the hearing that the various phrases or terms utilized in Rule 17-4.28(2) or its related definitions constitute technical terms of art within a particular science or profession. Rather the evidence illustrates that the terms and phrases used in the challenged rules, unless specifically defined elsewhere in the respondent's rules, are to be given their plain and ordinary meaning and are applied to the site specific facts of each particular situation. The testimony with regard to the term "intermittent" was simply that as used in the rule, it came more closely to defining an ephemeral stream. A hydrologist would prefer a purer statement of the concept of intermittency.

   
   

4. The term "dominance" is defined in unchallenged Rule 17-3.021(8), Florida Administrative Code. This rule lists four different methods for determining the dominant vegetational species or communities in an area, without guidance as to the method to be used. Certain methods used for determination of dominance are more useful or adequate than others, depending on the area measured. It is possible to obtain different results when different methodologies are employed. While DER does not require, either in the Rule itself or in practice, the performance of all four methodologies, a determination of jurisdiction will be made if any of the methods used result in a finding that the vegetational species listed in Rules 17-4.02(17) or (19) constitute the dominant plant community.

   
   

5. The borders or boundaries of waters of the State subject to DER's jurisdiction are defined by the vegetational indices listed in Rules 17-4.02(17) and 17-4.02(19), Florida Administrative Code. Vegetational characteristics of an area may also be utilized to determine whether a natural tributary acts as a tributary only following the occurrence of rainfall, whether a tributary normally contains contiguous areas of standing water, whether an area customarily exchanges water with another water body and whether an area provides significant benefit to the water quality of another water body.

   
   

6. There was no evidence that the respondent DER has an unwritten policy to exert jurisdiction over activities occurring in isolated, privately owned areas.

   
   

7. The petitioner failed to prove that DER has an established pattern or policy; of issuing or denying permits or of determining jurisdiction under Chapter 403, Florida Statutes, based upon considerations other than water quality. The evidence illustrates that factors such as the preservation of wildlife, wildlife habitat and wetlands are considered only with respect to their impact upon water quality.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to this proceeding and jurisdiction to hear the issues raised by petitioner. The parties stipulated and the undersigned concludes that Occidental Chemical Company has standing to bring this rule challenge proceeding.

9. The pertinent portions of the written rules challenged in this proceeding read as follows:

   
   

   Rule 17-4.28. Dredging and/or Filling Activities; Permits, Certification.

   
   

   1. Regardless of whether a permit is required, all dredging and/or filling activities

      conducted in or connecting to waters of the State shall comply with Rule 17-3, Florida Administrative Code. Compliance shall be in regard to long-term, as well as the short-term effects of the projects.

      
      

   2. Those dredging and/or filling activities which are to be conducted in or connected directly or via an excavated water body or series of excavated water bodies to the following cate- gories of waters of the State (including the sub- merged lands of such waters and transitional zone

      of a submerged land) shall obtain a permit from the department prior to being undertaken:

      1. rivers and natural tributaries thereto;

      2. streams and natural tributaries thereto;

      3. bays, bayous, sounds, estuaries, and natural tributaries thereto;

      4. natural lakes, except those owned entirely by one person; and except for lakes that

         become dry each year and are without standing water together with lakes of no more than ten

         (10) acres of water area at a maximum average depth of two (2) feet existing throughout the year;

      5. Atlantic Ocean out to the seaward limit of the State's territorial boundaries;

      6. Gulf of Mexico out to the seaward limit of the State's territorial boundaries;

      7. natural tributaries do not include inter- mittant natural water courses which act as tributaries only following the occurrence of rainfall and which normally do not contain contiguous areas of standing water.

      
      

      The department recognizes that the natural border of certain water bodies listed in Section 17-4.28(2) may be difficult to establish because of seasonal fluctuations in water levels and other characteristics unique to a given terrain. The intent of the vegetation indices in sub- sections 17-4.02(17) and (19) is to guide in

      the establishment of the border of the water bodies listed in Section 17-4.28(2). It is the intent of this rule to include in the boundaries of such water bodies areas which are customarily submerged and exchange waters with a recognizable- water body as described in Section 17-4.28(2) (i.e. submerged lands and transitional zones of submerged lands). Isolated areas which infre-

      quently exchange water with a described waterbody in Section 17-4.28(2) and/or provide only insigni- ficant benefit to the water quality of a water body as described in Section 17-4.28(2) are

      intended to be defined as uplands and excluded from the definition of "submerged lands". The vege- tation indices defining "submerged lands" and "transitional zone of a submerged land" are presumed to accurately delineate said submerged lands and transitional zones.

      
      

      (3) The applicant for a degree and/or fill permit or a federal certification for a dredging and/or filling activity shall affirmatively provide reasonable assurance to the department that the short-term and long-term effects of the activity will not result in violations of the water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code . . .

      
      

      Rule 17-4.02 Definitions

      * * *

      (17) "Submerged lands" are those lands covered by the categories of waters listed in Section 17- 4.28(2), Florida Administrative Code, including those lands contiguous to said waters where any of the following vegetational species, or any combination of such species, constitute the dominant plant community:

      
      

      [Thereafter follows a listing of thirteen marine vegetational species and thirty-six fresh water vegetational species.]

      
      

      (19) "Transitional zone of a submerged land"

      is that area of land between a submerged land as defined in subsection (17) above and an upland as defined in subsection (18) above, and shall consist of the first fifty (50) feet landward of a line defined by the landward limit of a sub- merged land, or the water-ward quarter (1/4) of the area between a submerged land and an upland, whichever is greater, and upon which any of the

      following vegetational species, or combination of such species, constitute the dominant plant community:

      
      

      [Thereafter follows a listing of fourteen marine species and seven fresh water species.]

      
      

10. As noted in footnote 1 of this Order, these same rules have previously been, declared invalid on grounds not raised or argued in this proceeding. The Deltona Corporation v. Department of Environmental Regulation, DOAH Case No. 80-1065R (Sept. 15, 1980); The Deltona Corporation v. Department of Environmental Regulation, DOAH Case No. 80-1299R, (Sept. 15, 1980). The rationale for those Orders will not be repeated herein. With respect to Rules 17-4.02(17), 17-4.02(19) and 17-4.28 (1) through (3), the present Order is

    confined to the petitioner's contentions of vagueness, arbitrariness and/or capriciousness of the terms used in those challenged rules.

    
    

11. It is the petitioner's prime contention in this proceeding that the challenged, written rules exceed DER's statutory authority and are inadequate to accomplish the purposes of the enabling legislation because they contain insufficient standards, thereby vesting unbridled discretion in the DER staff and subjecting citizens to arbitrary and capricious agency action. The Department contends that such a challenge amounts to a constitutional vagueness attack which cannot be heard by an administrative hearing officer in an existing rule challenge. After carefully considering the arguments of counsel on this issue, it is concluded that a Hearing Officer with the Division of Administrative Hearings may properly consider the issue of whether an existing rule is in excess of delegated legislative authority because it is incapable of consistent and objective application or because it is too vague and indefinite to evaluate whether it conforms to statutory limitations on the agency's jurisdiction.

    
    

12. To prove its allegations of invalidity of the three written rules in this proceeding, petitioner presented testimony and documentary evidence as to the construction of rule on its face and as to the application of the rule to show the effect of construction. The petitioner contends that certain terms or phrases utilized in Rule 17-4.28(2), particularly subsection (g) and the paragraph which follows, provide no objective or quantifiable basis upon which DER may identify water bodies subject to or excluded from its jurisdiction. Specifically, petitioner contends that the following terms in Rule 17-4.28(2)(g) are incapable of consistent and objective application: "intermittent," "act as tributaries," "only following the occurrence of rainfall," and "normally do not contain contiguous areas of standing water." Petitioner further attacks several phrases in the sentence contained in the unnumbered paragraph following subsection (2)(g) beginning with the words "Isolated areas which . . ."

    
    

13. A careful review of the contentions of petitioner and the evidence presented in support of such contentions lead the undersigned to conclude that petitioner has failed in its burden to demonstrate that the language used in the rule is arbitrary or capricious or constitutes an abuse of agency discretion. While some of the witnesses called by the petitioner would ascribe different quantitative meanings to the phrases used in the challenged rule, this does not establish that the rule itself is not capable of being applied in a reasonable manner on a case by case basis. The lack of precision in the terms used does not render the rule invalid. This is especially true in environmental regulations which are directed toward multi-faceted and complex circumstances. State v. Hamilton, 388 so.2d 561 (Fla. 1980). The undersigned concludes that the language used in the challenged rules conveys sufficiently definite notice as to what bodies of water are within and without DER's jurisdiction. As stated in the case of State v. Dye, 346 so.2d 538 (Fla. 1977), which cites the test for the facial validity of a statute enunciated in Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957),

    
    

    That there may be marginal cases

    in which it is difficult to determine the side of the line on which a particular fact situation falls is not sufficient reason to hold the language too ambiguous . . .

    
    

14. In presenting its case, the petitioner did elicit some confusion on the part of various witnesses as to how they would apply fragmented portions of

    Rule 17-4.28(2) under rather complicated factual circumstances. It is clear from the testimony that the challenged rule, along with its definitional counterparts, must be read as a whole and must be applied to site-specific data and circumstances. When using this approach, the undersigned concludes that there is no facial infirmity in the rule as contended by petitioner in this proceeding. Rule 17-4.28(2) begins with a listing of those categories of waters over which DER exerts jurisdiction. The borders or boundaries of such water bodies are defined by the existence of specific vegetational species (listed in Rules 17-4.02(17) and (19)) which constitute the dominant plant community. The rule goes on to exclude certain natural tributaries which possess certain characteristics; i.e., those intermittent natural water courses which act as tributaries only following the occurrence of rainfall and which normally do not contain contiguous areas of standing water. The unnumbered paragraph following subsection (g) of Rule 17-4.28(2) is simply a statement by the agency of its intent in adopting the subject rule. It does not purport to be a test of jurisdiction, but rather is an attempt to describe those areas which are intended to be included or excluded from jurisdiction as described by the preceding subsections.

    
    

15. When reading Rule 17-4.28(2) as a whole, the tests of DER jurisdiction are not so confusing that a person of ordinary intelligence would not comprehend their meaning. Petitioner has failed to demonstrate that the wording of the challenged rule or its construction by those charged with enforcing it is so confusing or standardless as to be arbitrary or capricious. The petitioner has illustrated that the type of watercourse excluded from jurisdiction by paragraph

    (g) of Rule 17-4.28(2) may resemble the longitudinal border or extent of a jurisdictional water body listed in paragraphs 17-4.28(2)(a) through (d). This, in itself, is mere coincidence and does not render the rule invalid. The fact that certain vegetational characteristics of an area may be utilized to determine both the longitudinal extent of an included category of State waters and the existence of an excluded natural tributary does not render the rule invalid on its face or in its application.

    
    

16. The only evidence presented by the petitioner with respect to its challenges to Rules 17-4.02(17) and 17-4.02(19), Fla. Admin. Code., relate to the use of the term "dominant plant community" in each rule. The concept of "dominance" is defined in Rule 17-3.021(8), Fla. Admin. Code, which is not properly the subject of challenge before the undersigned Hearing Officer in this proceeding. The petitioner presented insufficient evidence at the hearing to illustrate the invalidity of other words or phrases in the challenged Rules 17- 4.02(17) or 17-4.02(19).

    
    

17. The petitioner presented insufficient evidence to demonstrate that either Rules 17-4.28(1) or 17-4.28(3) constitute invalid exercises of delegated legislative authority. The concept of "reasonable assurance" required by Rule 17-4.28 (3), when read in conjunction with the water quality criteria, standards and requirements of Chapter 17-3, Fla. Admin. Code, provides adequate notice to an applicant of what it must illustrate to the DER prior to obtaining a permit.

    
    

18. As stated by the case of Agrico Chemical Co. v. State, etc., 365 so.2d 759, 763 (Fla. 1st DCA, 1979),

    
    

    "The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one indeed."

    It is the conclusion of the undersigned that the petitioner has failed to sustain this stringent burden by a preponderance of the evidence in this proceeding. Petitioner has failed to illustrate that challenged Rules 17- 4.28(1)-(3), 17-4.02(17) or 17-4.03(19) are either facially `invalid or incapable of consistent and objective application on a case by case basis. Absent such a showing, petitioner's contentions that the challenged rules are in excess of delegated legislative authority on these grounds must fail.

    
    

19. The petitioner contends that DER has an unwritten, unpromulgated policy or "phantom rule" of asserting jurisdiction over isolated, privately owned areas. Evidence sufficient to establish such a policy on behalf of DER was not presented by the petitioner. Rule 17-4.28(2), Fla. Admin. Code, when read in conjunction with DER's statutory authority, does not permit such an exertion of jurisdiction nor is that rule invalid because it does not expressly prohibit regulation over isolated, privately owned waters. See Deltona Corporation v. DER, DOAH Case No. 80-1299R, (Sept. 15, 1980). If DER were to attempt to unlawfully apply its jurisdiction to privately owned, isolated areas, the aggrieved landowner would have the remedy of seeking an administrative hearing pursuant to Section 120.57, Florida Statutes, wherein the issue of whether the area was indeed isolated and privately owned could be fully litigated and reviewed. In short, petitioner has failed to illustrate that DER either has such a policy or that existing Rule 17-4.28, Fla. Admin. Code, permits such an assertion of jurisdiction over isolated, privately owned lands.

    
    

20. Finally, petitioner alleges that the respondent has established a policy tantamount to a rule of either exerting jurisdiction or of issuing or denying dredge and fill permits under Chapter 403, Florida Statutes, based upon considerations other than water quality, such as wildlife and wetlands preservation. Insufficient evidence was adduced by petitioner to establish that DER indeed has such a policy. The issue of whether the DER's final order in the case of Capeletti Brothers, Inc. v. Department of Environmental Regulation, Case No. 79-1602 July 7, 1980) establishes that respondent has a policy which allows it to deny permit applications pursuant to Chapter 403 on the sole basis that the activity will disrupt or displace wilds life habitat was decided by the undersigned in the case of The Deltona Corporation v. Department of Environmental Regulation, DOAH Case No. 80-1065R (Sept. 15, 1980). As stated therein, the Capeletti order stands simply for the proposition that wildlife and other biological factors will be considered only with respect to their impact upon water quality. Petitioner has failed to establish the existence of a "phantom rule" of protection of wildlife or habitat without consideration for water quality in Chapter 403 permitting.

FINAL ORDER

Based upon the findings of fact and conclusions of law recited herein, IT IS ORDERED THAT:

1. Petitioner has standing to challenge the validity of Rules 17-4.28(1),

2. and (3), 17-4.02(17) and 17-4.02(19), Florida Administrative Code;

   
   

   1. Petitioner has failed to demonstrate that Rules 17-4.28(1) through (3), 17-4.02(17) and 17-4.02(19), Florida Administrative Code, constitute invalid exercises of delegated legislative authority on the grounds of vagueness, arbitrariness or capriciousness;

   2. Petitioner has failed to demonstrate that respondent DER has an unwritten or "phantom rule" of asserting jurisdiction over isolated, privately- owned lands;

      
      

   3. Petitioner has failed to demonstrate that respondent DER has a policy or unwritten "rule" of considering the preservation of wildlife, wildlife habitat or wetlands separate and apart from their impact upon water quality in asserting jurisdiction or in decisions on whether to issue permits under Chapter 403, Florida Statutes; and

      
      

   4. For the reasons stated in paragraphs (2) through (4) above, the amended petition for an administrative determination of invalidity of existing rules is DISMISSED.

Done and ordered this 26th day of November, 1980, in Tallahassee, Florida.

DIANE D. TREMOR

Hearing Officer

Division of Administrative Hearings

101 Collins Building Tallahassee, Florida 32301

Filed with the Clerk of the Division of Administrative Hearings this 26th day of November, 1980.

ENDNOTES

1/ In prior Final Orders entered by the undersigned Hearing Officer, Rules 17- 4.02(17), 17-4.02(19) and 17-4.28(2), Florida Administrative Code, were declared invalid on grounds not raised in the instant proceeding. See The Deltona Corporation v. State of Florida, Dept. of Environmental Regulation, DOAH Case No. 80-1065R (Sept. 15, 1980), and The Deltona Corporation v. State of Florida, Dept. of Environmental Regulation, DOAH Case No. 80-1299R (Sept. 15, 1980).

These cases are presently on appeal to the District Court of Appeal, First District.

2/ In The Deltona Corporation case cited in footnote 1 (Case No. 80-1299R), it was held that the fact that Rules 17-4.03 and 17-4.28, Fla. Admin. Code, did not expressly incorporate the legislative prohibition (Fla. Stats., 403.031(3)) against regulation of waters owned entirely by one person did not, in itself, render those rules invalid.

3/ In the Deltona Corporation case cited in footnote 1 (Case No. 80-1065R), it was held that the petitioner therein had not established, nor did the DER's final order in the case of Capeletti Brothers, Inc. v. Dept. of Environmental Regulation, Case No. 79-1602R (July 7, 1980) establish, that DER has a policy or an unwritten rule of denying permits under Chapter 403, Florida Statutes, on the sole basis that the proposed project will displace wildlife habitat.

COPIES FURNISHED:

Lawrence E. Sellers, Jr. Danny P. Jackson

Post Office Box 1288 Holland and Knight Tampa, Florida 33601

Silvia Morell Alderman John C. Bottcher

David Levin Segundo Fernandez

Department of Environmental Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Jake Varn, Secretary

Department of Environmental Regulation Blair Stone Road 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32301

Docket for Case No: 80-000895RX

Orders for Case No: 80-000895RX