) CASE NO. 80-1065RX
Respondent. )
Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on July 23 and 24, 1980, in Tallahassee, Florida. The parties agreed that the hearing would officially close on the date of the receipt of the transcript, which occurred on August 14, 1980.
For Petitioner: Edgar Moore and Robert C. Apgar
For Respondent: Alfred W. Clark and H. Ray Allen
For Amicus James R. Brindell Curiae: Post Office Box 3103
and James T. B. Tripp
By a petition, as amended, filed pursuant to Section 120.56, Florida Statutes, petitioner seeks a determination of the invalidity of five promulgated, published rules of the respondent and one unpublished "rule." Some of the published rules being challenged in this proceeding have since been revised, but all were in effect at the time petitioner filed its application for a permit and are presently being applied to petitioner's permit application.
The published rules being challenged in this proceeding are as follows: Rule 17-3.05, relating to water quality standards; Rules 17-3.08(4) and 17-3.09(3), relating to dissolved oxygen criteria for Class II and Class III waters; Rule
17-4.02(17), defining the term "submerged lands"; and Rule 17-4.02(19), defining the term "transitional zone of a submerged land." The unpublished "rule" being challenged is what petitioners contend is the Department's policy to deny applications for dredge and fill permits where the planned development will displace wildlife habitat.
By a petition to intervene filed five days before the scheduled hearing, the following entities sought intervention as parties in support of the challenged rules: National Audubon Society, Inc., Collier County Conservancy, Inc., Florida Audubon Society, Inc., Environmental Defense Fund, Inc., and Izaak Walton League of America, Florida Division, Inc. After hearing oral argument in favor of an din opposition to the petition, the request for intervention was denied for failure to show that the petitioning entities were substantially affected by the challenged rules. It was announced that members of the general public would be given the opportunity to make a statement at the close of the testimony and that the undersigned would consider legal memoranda from the petitioners to intervene.
At the hearing, petitioner Deltona presented testimony and documentary evidence relating to its challenges to the validity of the rules pertaining to water quality standards -- Rules 17-3.05, 17-3.08(4) and 17-3.09(3). With regard to the remaining challenged rules, petitioner asserts that their invalidity appears on the face of such rules. The respondent DER presented no witnesses at the hearing, but introduced documentary evidence in the form of publications relating to water quality criteria and transcripts of the public hearings on the challenged rules.
At the conclusion of the hearing, the parties filed proposed final orders containing proposed findings of fact and proposed conclusions of law. A brief of Amicus Curiae was filed by the aforementioned entities which sought intervention. To the extent that the 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 herein or as constituting conclusions of law as opposed to findings of fact.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
On May 3, 1978, the petitioner filed with the respondent an application for dredge and fill permits and a water quality certificate to allow petitioner to complete its planned residential community on and adjacent to Marco Island, Florida. the petitioner expended in excess of $100,000.00 in preparing the permit application. The proposed project involves some 4,000 acres of development on approximately 17,000 acres of land owned by the petitioner.
On November 28, 1979, after seeking and obtaining additional information from the petitioner, the respondent issued its notice of "intent to deny" the permit application. The Department claims jurisdiction over the proposed project pursuant to Chapter 253 and 403, Florida Statutes, and Section 17-4.28 and 17-4.29, Florida Administrative Code. The nine page "intent to deny" specifically cites Rule 1704.28(3), Florida Administrative Code, and concludes that state water quality standards will be violated. Beyond that regulatory citation, the "intent to deny" does not specify by rule number which of the water quality standards the Department feels would be violated by the
proposed project. However, the "intent to deny" does conclude that the area proposed for development will include
"approximately 1,500 acres of uplands and approximately 2,600 acres of waters of the State, submerged lands of waters of the State, and transition zone of submerged lands of waters of the State.
In discussing the overall impact from the project as a whole, the respondent notes that the intertidal shoreline areas are utilized by wading birds and that the mangrove tidelines provide a vital habitat for fish and wildlife. In discussing the specific work areas, the respondent concludes that the destruction of the extensive freshwater marsh system would eliminate a significant habitat intensely utilized by a wide variety of birds. The "intent to deny" further concludes that the development of the proposed work area would be expected to violate state water quality standards for dissolved oxygen.
The respondent's "intent to deny" is the subject of a pending administrative proceeding between these same parties in Case Numbers 79-2471 and 80-683. In those proceedings the petitioner is contesting, inter alia, the respondent's application of the rules under challenge in this proceeding.
Although petitioner challenges other rules of the Department, the testimony adduced at the hearing concerned only those rules relating to water quality standards; to wit: Rules 17-3.05, 17-3.08(4) and 17-3.09(3).
Dissolved oxygen concentrations are an important gauge of the existing quality of water and the ability of a water body to support a well-balanced aquatic animal life. A concentration of at least 5.0 parts per million (or milligrams per liter) is needed to support a well-balanced fish population, and a concentration of 4.0 mg/1 is about the lowest which will support a varied fish population.
There are numerous natural factors which affect the concentration of dissolved oxygen in surface water bodies. Such factors include physical transfer between the water and the atmosphere (aeration), the limit of a water body's ability to absorb oxygen (saturation value), the amount of oxygen used to decompose dead material, photosynthesis of aquatic plants and the actual vertical location of the sampling. These factors are influenced by many variables, such as wind, temperature, stratification, salinity, the season of the year, the time of the day, rainfall, water clarity, mixing and flushing.
The level of dissolved oxygen can vary significantly in the same body of water during one twenty-four hour period. A balance of dynamic, natural processes causes dissolved oxygen levels to vary extensively in different water bodies and within the same water body during different times of the day and during different seasons of the year.
Some of the water bodies in the Marco Island area contain dissolved oxygen values below 4.0 parts per million (or milligrams per liter) during at least a portion of a twenty-four hour period. This is due to natural, as opposed to manmade, causes. A water body containing levels of dissolved oxygen less than 4.0 milligrams per liter does not necessarily indicate a discharge of contaminants into that water body.
The parties have stipulated that the Final Order rendered by the Department of Environmental Regulation in the case of Capeletti Brothers, Inc.
v. Dept. of Environmental Regulation, Case No. 79-1602R (July 7, 1980), accurately represents the Department's position with respect to its authority to consider wildlife and other biological factors in reviewing permit applications pursuant to Chapter 403, Florida Statutes.
CONCLUSIONS OF LAW
In summary form, petitioner contends that the water quality standards set forth in Rules 17-3.05,1703.08(4) and 17-3.09(3), Florida Administrative Code, are invalid because they allow the respondent to deny permit applications based upon the quality of a given body of water without regard to whether such quality is a result of a discharge from the applicant's project. The challenge to Rules 17-4.02(17), containing a definition of "submerged land," and 17- 4.02(19), containing a definition of "transitional zone of a submerged land," is based upon the contention that DER has no authority to exercise jurisdiction in areas contiguous to submerged land or in areas landward thereof.
Respondent contests the standing of petitioner to challenge the above rules. With regard to the water quality standards (Rules 17-3.05, 17-3.08(4) and 17-3.09(3)), respondent contends that because petitioner failed to demonstrate that its project will have no discharge to the waters of the State, it has failed to establish that it is substantially affected by the rules relating to water quality standards. With regard to the challenge to Rule 17- 4.02(17) and (19), respondent contends that since petitioner failed to demonstrate that its project would be conducted landward of or in areas contiguous to lands submerged by water, it has no standing to maintain this rule challenge proceeding.
A review of respondent's "intent to deny" leads to the conclusion that respondent's assertion of lack of standing must fail. The "intent to deny," while unspecific in its citation of rules and facts showing the applicability of such rules, clearly recites that the proposed development will be excepted to violate state water quality standards for dissolved oxygen and other criteria. It further recites that the project will involve development in "approximately 2,600 acres of waters of the State, submerged land of waters of the State, and transition zone of submerged land of waters of the State." Thus, it is clear that the challenged published rules are being applied to the petitioner's permit application, and form the basis for respondent's intent to deny the application.
DER may not defeat an applicant's standing to challenge rules by means of an "intent to deny" which does not contain specific references to rule numbers followed by a recitation of pertinent facts which lead to the conclusion that such rules are applicable and the manner in which they would be violated. The actual issues of applicability of and compliance with the challenged rules will be the subject of the pending administrative proceedings filed pursuant to Section 120.57(1), Florida Statutes. Petitioner has adequately illustrated that it is substantially affected by the challenged rules by alleging and demonstrating that said rules are being applied to its application and form the basis of the respondent's intent to deny said application.
RULES 17-3.05, 17-3.08(4) and 17-3.09(3).
RULE 17-3.05, Florida Administrative Code, sets forth the water quality standards which shall be the criteria for pollution. It is the contention of the petitioner in this proceeding that that rule, as well as Rules 17-3.08(4) and 17-3.309(3) delineating standards for dissolved oxygen concentrations, exceed the respondent's statutory authority to regulate the
construction and operation of stationary installations. Petitioner argues that the Department of Environmental Regulation is limited in the permitting process to the regulation of discharges of pollutants or the emission of contaminants by a stationary installation. Stated differently, petitioner argues that the challenged rules allow DER to deny applications for permits on the basis of the existing water quality of a body of water without regard to whether the condition of the water is attributable to a discharge from the applicant's project.
Among the purposes of the "Florida Air and Water Pollution Control Act," Chapter 403 of the Florida Statutes, is the conservation, protection, maintenance and improvement of the waters of this State. Section 403.021.(2), Florida Statutes. A regulatory tool for accomplishing this purpose is to control, regulate and abate the activities which cause or may cause pollution of the water resources. Section 403.021(6), Florida Statutes. It would be impossible to conserve, protect, maintain and improve waters if there were no measure of what is desirable in a water body.
Rules 17-3.05, 17-3.08(4) and 17-3.09(3) Florida Administrative Code, simply contain definitions of pollution through the use of specified standards. The statutory authority for the promulgation of such standards can be found in Section 403.061(11), Florida Statutes, which requires the DER to establish water quality standards for the State as a whole. Such authority is not limited to only those waters which will receive a discharge. Whether or not there is a discharge to those waters is irrelevant to the setting of standards for water quality.
The challenged rules require nothing of an applicant. They simply provide a definition of what is considered to be the criteria for the quality of waters of the State. Standing alone, the challenged rules have no meaning or effect without reference to other statutory or regulatory provisions. DER exercises its regulatory authority only over those activities which have an impact upon the water quality standards, and it does this through the use of other statutes and regulatory provisions. Indicative of the fact that it is activities (i.e., discharges) which are being regulated is the first subsection of Rule 17-3.05, which refers to the application of the criteria only after a reasonable opportunity has been afforded for mixture of the wastes with the receiving waters.
Petitioner further contends that the rules setting forth specific water quality standards are arbitrary and capricious because they can be applied to conditions that occur regardless of any action taken by an applicant. The factual evidence adduced at the hearing demonstrates that levels of dissolved oxygen can vary as a result of natural conditions and without regard to any discharge of contaminants from a regulated stationary installation.
All three of the challenged water quality rules contain a provision specifically addressing petitioner's concern in this regard. Rule 17-3.05(4) provides as follows:
(4) Exceptions -- In cognizance of the fact that certain waters of the state, due to natural causes, may not fall within desired or prescribed limitations outlined above, the Board is empowered to authorize exceptions to limitations upon presentation of good and sufficient evidence. In no case shall it be
lawful to authorize disposition or introduction of materials in waters of the state which will cause material harm or damage to said waters.
Rules 17-3.08(4) and 17-3.09(3) contain identical language with respect to the criterion for dissolved oxygen levels. After setting forth the concentration standards, the rules provide that:
". . . In those cases where background information indicates prior existence under unpolluted conditions of lower values than required above, lower limits may be utilized after approval by the regulatory authority."
The exception provided in Rule 17-3.05(4) would also be applicable to the dissolved oxygen criterion listed in Rules 17-3.08(4) and 17-3.09(3). Dissolved oxygen is listed as a criterion in Rule 17-3.05, with a reference to the standards designated for the particular classes of water.
Petitioner next argues that these permissive exception provisions do not cure the defect in the rules because they leave the agency with unbridled discretion and contain no standards for their application. It is concluded that the language in Rule 17-3.05(4) is sufficiently concise as to what will be required before an exception is authorized. What will be required is good and sufficient evidence that the discharge will not cause material harm or damage to the receiving waters.
Petitioners have failed to demonstrate that Rules 17-3.05, 17-3.08)(4) and 17-3.09(3) constitute invalid exercises of delegated legislative authority.
RULES 1704.02(17) and 1704.02(19).
Contending that the respondent has unlawfully extended its jurisdiction beyond the waters of the State, petitioner next asserts that Rules 17-4.02(17) and (19) constitute invalid exercises of delegated legislative authority. These rules contain definitions of "submerged lands" and "transitional zone of a submerged land" for purposes of Chapter 1704, Florida Administrative Code. Chapter 1704 provides requirements and procedures regarding any permit required by the respondent. Rule 1704.01, Florida Administrative Code.
The challenged rules define the terms "submerged lands" and "transitional zones" thereof by first referencing areas covered by the categories of waters listed in Rule 1704.28(2) and including other areas where specified vegetational species constitute the dominant plant community. While only subsection (17) and (19) are challenged herein, a recitation of subsection
may be helpful for the discussion which follows:
"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.]
"Uplands" are lands landward of submerged lands upon which the dominant plant community is composed of any vegetational species, or a combination of species, other than those listed under the definitions of "submerged lands" and "transitional zone of a submerged land", herein.
"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 submerged land, or the water-ward quarter (1/4) of the area between the submerged land 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.]
Stated in summary form, it is the petitioner's contention that DER has no statutory authority to exercise jurisdiction in areas contiguous to submerged land or landward of such land.
Chapter 403, Florida Statutes, was enacted as an exercise of the police powers of the State to prevent, abate and control pollution of the air and waters of the State. Section 403.021(5), Florida Statutes. The waters to which Chapter 403 applies are defined in x. 403.031(3) as
(3) "Waters" shall include, but not be limited to rivers, lakes, streams, springs, impoundments, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface or under- ground. Waters owned entirely by one person
other than the state are included only in regard to possible discharge on other property or water. Underground waters include, but are not limited to, all underground waters passing through pores of rock or soils or flowing through in channels whether man-made or natural.
No further definition of "waters" or "rivers, lakes, streams," etc. appears in Chapter 403. The terms "submerged land" and "transitional zone of a submerged land" are not to be found in Chapter 403, Florida Statutes.
The Department of Environmental Regulation, as the agency charged with the enforcement of Chapter 403, was thus left with the responsibility for determining how to identify the waters of the State and for determining where such waters begin and end for regulatory purposes. Recognizing that the natural borders of certain water bodies could be difficult to establish because of seasonal fluctuations in water levels and other unique characteristics, the respondent, through rule making, attempted to provide vegetation indices to
guide in the establishment of the border or boundaries of certain water bodies over which it exerts jurisdiction. See Rule 1704.28(2), Florida Administrative Code. This was done in 1975 by the promulgation of the rules challenged herein. At the same time, respondent promulgated other rules which allude to the terms "submerged land" and "transitional zone of a submerged land" for regulatory purposes. See Rules 1704.28, 1704.02(13) (definition of "dredging") and 1704.02(16) (definition of "filling"). So far as the undersigned has been able to determine from a review of Chapter 1704, Florida Administrative Code, the two challenged terms are always used together when defining the area over which DER will exercise its regulatory jurisdiction.
The DER has authority to define the boundaries of the waters of the State for regulatory purposes. While not in existence at the time the challenged rules were enacted, the Legislature has subsequently explicitly authorized the Department to establish by rule the method for determining the landward extent of the waters of the State for regulatory purposes. This is to be accomplished by listing species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the State. Section 403.817, Florida Statutes.
Thus, the issue becomes one of whether or not DER, by use of the definitions contained in Rules 1704.02(17) and (19), has lawfully accomplished such a definition of the landward extent of the waters of this State. It is concluded that the answer lies in the negative.
The language used in the definition contained in the two challenged rules is invalid for two reasons. First, the language on its face illustrates that DER is attempting to exercise jurisdiction over lands, as opposed to waters. Rule 1704.02(17) begins by defining "submerged land" as "lands covered by the categories of waters listed in Rule 1704.28(2)." the listing of waters in Rule 1704.28(2) includes the waters specifically listed in s. 403.031(3), Florida Statutes, (rivers, lakes, streams) and also includes bays, bayous, sounds, estuaries, natural tributaries to the above water bodies and the Atlantic Ocean and Gulf of Mexico. It defines these categories as waters of the State. This portion of the definition (whether it be labeled "submerged lands" or the "natural landward extent of the waters of the State for regulatory purposes" or anything else) inherently defines the lands over which DER may exercise jurisdiction -- i.e., land covered or inundated or submerged by the waters of the State. If the definition ended here, with perhaps another rule or sentence defining how "coverage" will be determined at any given point in time, there would be no problem. However, the challenged rule goes on to include lands contiguous to said waters where certain vegetational species constitute the dominant plant community. "Said waters" refers to the waters of the State. Thus, it is clear on the face of the rule that the definition of "submerged land" includes areas which are not the waters of the State.
The definition of "transitional zone of a submerged land" contained in Rule 1704.02(19) extends DER's jurisdiction even further beyond the "waters of the State." It not only travels the distance to land contiguous to the waters of the State, it goes even further and touches the first fifty feet landward of the landward limit of the aforementioned land contiguous to the area covered by the waters of the State or the water-ward quarter of the area between a submerged land and an upland, whichever is greater.
In short, while DER has the authority to provide a working definition of the borders or boundaries of the waters of Florida, it has not done so by the provisions of Rules 1704.02(17) and (19). When starting with the words "lands
covered by the categories of waters listed . . .," they have implicitly defined the waters of the State. To include "lands contiguous to said waters" or land "landward of" such a contiguous zone is to extend DER's jurisdiction beyond that contemplated in Chapter 403, Florida Statutes. As written, the challenged rules clearly extend DER's jurisdiction beyond the limits of a water body to include areas of land contiguous to and landward of the water body.
The words used in the first portion of the challenged rule are "lands covered by the categories of waters listed . . .," which listing includes the waters of the State as defined by statute. The waters of the State necessarily include "the natural landward extent of the waters of the State." However, DER tells us in Rule 1704.28(2) that it is the intent of the vegetation indices to guide in the establishment of the border of water bodies. Thus, even if one assumes that the Department did not really mean to use the concept "covered by the waters of the State" in the first portion of its definition, and instead intended to use words to the effect that the natural landward extent of the waters of the State shall be determined by lands inundated by H2O plus land having certain vegetational qualities, the definition would fail to accomplish its purpose as illustrated by two hypothetical situations. Consider a lake which has temporarily become totally dry at the time that DER is called upon to make a jurisdictional determination (i.e., a situation similar to that of Lake Jackson described in Broward v. Mabry, 50 So. 826 (Fla., 1909)). If one starts with the definition of "submerged land" as set forth in the rule, one would first look for an area of land covered by water and then look for land contiguous to water. There being no water to begin with, there is no "contiguous thereto" or "landward thereof." An example using the extreme opposite situation further illustrates the fact that DER has not succeeded in its attempt to define the landward extent of the waters of the State. Assume the situation where a lake, because of an unusual flood, is temporarily as filled with water and as large in area as it has ever been. Using the definition in the challenged rules, one would still include the land contiguous to the overgrown area of land now covered by water, as well as the transitional zone fifty feet landward of the contiguous area. In conclusion, the rules on their face simply do not define the natural landward extent of the waters of the State.
The undersigned is not unmindful of subsection (3) of Section 403.817, Florida Statutes. That subsection indicates that the Legislature was aware of and approved the vegetation indices which were adopted by rule by the Department on or before April 5, 1977. Subsection (3) of s. 403.817 does not refer to any specific rule or portion thereof except as it applies to the list of vegetational species. This Order does not purport to rule on the validity of the actual species listed in Rules 17-4.02(17) or 1704.02(19). Indeed, no evidence was offered regarding the specific enumeration of plants. It is not the listing of vegetational species which invalidates these rules. Rather, it is the definitional portion of the challenged rules which exceeds DER's statutory authority. Section 403.817(3), Florida Statutes, cannot be read or interpreted to give Legislative approval of the actual definitions of "submerged lands" and "transitional zone of a submerged land" for jurisdictional purposes, nor would said statutory provision preclude DER from amending that portion of the challenged rules without first going through the Legislature.
There is another and perhaps more compelling reason for declaring the challenged definitions of "submerged land" and "transitional zone of a submerged land' invalid. The definitions contained in Rule 17-4.02 are applicable to the entirety of Chapter 17-4. That chapter contains the requirements and procedures for all permitting required by the DER. This would include permitting under
Chapter 253, Florida Statutes, which primarily pertains to the regulation of activities occurring in the navigable waters of the State and the "submerged lands" thereof. The term "submerged land" is a legal word of art when dealing with navigable bodies of water. The boundaries of "submerged lands" in navigable water bodies are defined, not in terms of the presence of vegetational species, but by reference to the mean high water line or ordinary high water mark. The challenged rule defines the navigable waters of the State without reference to mean high water lines or ordinary high water marks. To use the term "submerged lands" throughout the permitting Chapter as having a meaning different and contrary to its accepted meaning in Chapter 253 and to make it applicable to Chapter 253 permitting procedures is misleading, erroneous and without statutory authority. Also see Chapter 177, Part II, Florida Statutes.
It is to be noted that the two challenged terms appear in many important jurisdictional sections throughout Chapter 1704. They are even used in Rule 1704.29, which pertains only to projects in, on or over the navigable waters of the State. See Rule 17-4.29(3)(b), Florida Administrative Code. The very categories of waters listed in Rule 1704.28(2) include bodies of water which are obviously navigable water bodies, i.e., the Gulf of Mexico and the Atlantic Ocean. Indeed, rule 1704.28(2) states that the
"vegetation indices defining 'submerged lands' and 'transitional zone of a submerged land' are presumed to accurately delineate said submerged lands and transitional zones."
The words "submerged lands" as defined in Rule 1704.02(17), even if otherwise valid for purposes of Chapter 403, simply cannot be used when referring to Chapter 253 permitting. Thus, to the extent that Rules 1704.02(17) and (19) are applicable to any permitting required by the Department, they are invalid.
UNPUBLISHED "RULE" RELATING TO THE DISPLACEMENT OF WILDLIFE HABITAT.
The petitioner contends that the DER has a policy or standard which allows it to deny a Chapter 403 permit application where the planned activity would disrupt or displace plant, animal or aquatic life. It is argued that such a policy constitutes a "rule" within the meaning of the Administrative Procedures Act, that DER has no statutory authority to enact such a rule and that even if such authority did exist, DER did not follow the rule promulgation process required by Chapter 120, Florida Statutes, nor was the rule approved by the Environmental Regulation Commission as required by s. 403.804(1), Florida Statutes.
The parties have stipulated that the Department's Final Order in the case of Capeletti Brothers, Inc. v. Department of Environmental Regulation, Case No. 79-1602R (July 7, 1980) accurately represents the DER's position with respect to its authority to consider wildlife and other biological factors in reviewing permit applications. The pertinent portion of the Capeletti order as it pertains to this case is found on pages 5 through 7 of said Order. Therein, the Department recites several provisions of Chapter 403, Florida Statutes, to illustrate that biological considerations are an important aspect of said chapter, and concludes that
"The water quality implications of destruction of plant, animal, and aquatic life must be
considered and are an integral part of the permitting process of Chapter 403, Florida Statutes."
The language cited from the Capeletti order does not establish that DER 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 wildlife habitat. To the contrary, the Capeletti decision stands simply for the proposition that wildlife and other biological factors will be considered only with respect to their impact upon water quality.
The only other evidence presented by the petitioner regarding the existence of a wildlife habitat policy consists of three Department interoffice memoranda and the "intent to deny" issued by the respondent to the petitioner. These documents do not sufficiently illustrate either that they pertain solely to permits issued pursuant to Chapter 403, as opposed to Chapter 253, or that the Department has a policy of denying Chapter 403 permit applications solely because a project would eliminate wildlife habitat.
The petitioner having failed to establish that the respondent has a policy of general applicability requiring denial of a Chapter 403 permit application when the project would displace or disrupt wildlife habitat, its challenge herein must fail.
