STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ISLAND DEVELOPERS, LTD., )

)

Petitioner, )

)

vs. ) CASE NO. 83-2563RX

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIROMENTAL REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on September 23, 1983, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Timothy A. Smith, Esquire

Brickell Concours

1401 Brickell Avenue, PH-1 Miami, Florida 33131

For Respondent: E. Gary Early, Esquire

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

In this proceeding, Petitioner challenges the validity of Rule 17- 4.04(9)(h), Florida Administrative Code, and various written policy statements of the Department of Environmental Regulation ("DER" or "Respondent") as invalid exercises of delegated legislative authority pursuant to Section 120.56, Florida Statutes. Petitioner challenges the written policy statements as "rules" which have not been formally adopted by DER in accordance with requirements of Chapter 120, Florida Statutes. Petitioner also challenges Rule 17-4.04(9)(h) Florida Administrative Code, and asserts that it conflicts with the provisions of Section 403.813(2)(e), Florida Statutes, and further that it is arbitrary and capricious. DER contends that the challenged rule is a permissible interpretation of Section 403.813(2)(e), Florida Statutes, and that the written policy statements challenged as "rules" were directions distributed to its staff to ensure uniform application of both applicable statutes and rules.

Final hearing in this cause was scheduled for September 23, 1983, by Notice of Hearing dated August 26, 1983. Neither party called witnesses at the hearing, but both stipulated to the introduction of Joint Exhibits 1 through 26, and to certain other facts which are to be considered by the Hearing Officer in entering this order.

Counsel for both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not included in this order, they have been specifically rejected as being either irrelevant to the issues presented for consideration, or as not having been supported by evidence of record.

FINDINGS OF FACT

1. Petitioner, Island Developers, Ltd. (Fisher Island) a Florida limited partnership, owns the entire southwestern shore of the artificial spoil island known as Fisher Island, located between Virginia Key and the southern tip of Miami Beach, immediately south of the Port of Miami facilities, in Sections 9 and 10, Township 54 South, Range 42 East, in Dade County, Florida. See Composite Exhibit FI-20.

   
   

2. On or about October 27, 1981, Fisher Island applied to DER for a dredge and fill permit to restore an existing sea-wall and thereby bulkhead about 2100 linear feet of the south-western shoreline of the island at a distance of 15 feet or greater from the shoreline.Fisher Island initially asked that DER approve the proposed project as exempt from the requirements for a dredge and fill permit, under the exemption contained in Section 403.813(2)(e) , Florida Statutes, and Rule 17-4.04(10)(h) Florida Administrative Code. The statute provides an exemption for the restoration of seawalls as follows:

   
   

   1. No permit under this chapter, chapter 373, or chapter 253, chapter 61-691, Laws of Florida, or chapter 25214 or chapter 25270, Laws of Florida, 1949, shall be required for activities associated with the following types of projects; however, nothing in this subsection shall relieve an applicant from

      any requirement to obtain permission to use or occupy lands owned by any water management district in its governmental or proprietary capacity or from complying with applicable local pollution control programs authorized under this chapter or other requirements of county and municipal governments. . . .

      * * * * *

      (e) The restoration of seawalls at their previous location or upland of, or within 1 foot waterward of, their previous locations.

      Section 403.813(2)(e), Florida Statutes (1981).

      
      

      The rule promulgated under this statute, recently renumbered by DER as Rule 17- 4.04(9)(h), Florida Administrative Code, provides the exemption for

      
      

      (h) The restoration of seawalls at their previous location or upland of or within (1) foot waterward of their previous location. No filling can be performed except in the above authorized restoration of the seawall. No construction shall be undertaken without necessary title or leasehold interest, especially where private and public ownership boundaries have changed as a

      result of natural occurrences such as accretion, reliction and natural erosion.

      The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than verticle [sic] seawalls.

      Section 17-4.04(9)(h), Florida Administrative Code (1903)

      
      

      References in the Petition to the current rule, formerly numbered 17- 4.O4(10)(h), are t e construed as referring to the rule now renumbered as 17- 4.04(9)(h)

      
      

3. On May 19, 1975, the Florida Legislature adopted the statutory exemption in Section 403.513(2)(e), Florida Statutes, by enacting Section 7(2)(e) of Chapter 75-22 of the Laws of Florida (the Florida Environmental Reorganization Act of 1975), in language identical to that of the current statute, except for minor grammatical changes:

   
   

   1. No permit under chapters 373, 403, or 253, Florida Statutes, shall be required for activities associated with the following types of projects; however, nothing in this subsection

      shall relieve an applicant from complying with applicable local pollution

      control programs authorized under chapter 403, Florida Statutes, or other requirements of county and municipal governments. . . .

      * * * * *

      (e) Seawalls restored at their previous location or upland of, or within 1 foot waterward of their previous location.

      Section 7(2)(e), Chapter 75-22, Laws

      of Florida 1975. See also, 1975 Jour. Fla. Sen. 325-30 (May 19, 1975). (Exhibit FI-1

      attached to this Stipulation.)

      
      

      The legislative history does not reveal, however, whether either the original Senate Bill No. 123 or the substitute proposed by the Government Operations Committee contained the exemption for the restoration of seawalls. The report of the Conference Committee does establish that the final version of Senate Bill No. 123 included the seawall restoration exemption, unlike the House bill on environmental reorganization See Exhibit FI-3, at 7, paragraph 6.

      
      

4. The newly organized agency (DER) created by the "Reorganization Act soon commenced proceedings to adopt rules to implement the Act. Before adopting Rule 17-4.04 (10)(h), the Director of DER's Division Permitting (Dan Farley) sent a memorandum (see Exhibit A to the Petition, at 6-17) to district and subdistrict managers, among others, setting forth the agency's interim guidance for the interpretation of the Act's provisions for short-form projects and exemptions, including the seawall restoration exemption. Farley's memorandum interpreted Section 7(e) of the Act as follows:

   
   

   "Seawalls restored at their previous location or upland of or within one foot waterward of

   their previous location." The language in this section does not include any reference to the filling of submerged lands and states that seawalls may be replaced or restored without permit when the relocated seawall is to be upland or within one foot of the previous structure. Essentially, the seawall to be repaired or replaced must be functional in relocation one foot waterward of the previous location). Additionally, the intent of this section is not to reclaim or extend the upland, and as such, the replacement of seawalls solely to extend upland areas is not included within this section. Applications to replace seawalls waterward of existing structures should be coordinated with the Department of Natural Resources. As with Section 7(1)(d), our responses will be provided without delay even if the project encompasses the one foot of sovereign lands; individuals should be advised, however, to coordinate with the Department of Natural Resources to clear the land title problems that could result from replacing a seawall

   one foot waterward of an existing seawall on a natural shoreline. Any reclamation-type restorations (i.e., the filling of several feet of submerged lands to the location of a previous seawall which is currently defunct--consisting of a few pilings) will definitely require permits from this agency. This interpretation also is consistent with Section 7(3) of the act.

   
   

   Memorandum from Dan Farley to District and Subdistrict Managers at 7-8 (August 13, 1975). (Exhibit FI-4, at 8-9.) DER circulated this memorandum for the purpose of ensuring compliance with the requirements of the interpretations contained in the memorandum. See Deposition uf Setchfield at 15.

   
   

5. On September 10, 1975, the staff of DER proposed the following version of the seawall restoration exemption:

   
   

   (h) seawalls [except those covered in Section 17-4.04(10(f) restored at their previous location or upland of or within one foot waterward of their previous location. To be eligible for exemption, the existing seawall must be located landward of, or at the present line of mean high water, and no filling can be performed except in the above authorized relocation of the seawall.

   This exemption shall not be utilized as a method of reclaiming or extending

   uplands without complying with the per- mitting provisions of Chapters 253 and 403, Florida Statutes.

   Coding: Words underlined are additions;

   words in struck-through type are dele- tions from existing law.

   
   

   Exhibit FI-5, at 2. No memorandum or other means of explaining the additional language proposed in this version appears in the files of DER.

   
   

6. On September 16, 1975, DER's staff proposed an amended version of the rule, as follows:

   
   

   (h) seawalls [except those covered in- Section 17-4.04(10(f)] restored at their previous location or upland of or within one foot waterward of their previous loca- tion. To be eligible for exemption, there shall be no substantial encroachment of waters of the state landward of the exist- ing seawall. No filling can be performed except in the above authorized relocation of the seawall. This exemption shall not be utilized as a method of reclaiming or extending uplands without complying with the permitting provisions of Chapters

   253 and 403, Florida Statutes.

   
   

   Exhibit FI-6, at 4. The staff presented this version of the seawall restoration exemption to the Environmental Regulation Commission at the public hearing on the adoption of Rule 17-4.04(10(h), on September 25, 1975. See Transcript of Hearing at 31 (September 25, 1975).

   
   

7. At the outset of the hearing on September 25, 1975, Senator Lewis (one of the sponsors of the Senate bill on reorganization, and vice-chairman of the Joint Administrative Procedures Committee at the time) appeared and reported that Senator Spicola of the Committee had objected that certain of the rules and regulations embodying the exemptions were "in conflict with the law," although he specifically mentioned only the dock exemption. Id. at 6. Mr. W. D. Frederick, Jr., Chairman of the Commission, responded that the Commission had not received Senator Spicola's letter of objection but would review and adjust the rule if necessary to avoid such a conflict. Id. at 8. Both Mr. Joseph Landers, Secretary of DER in 1975, and Mr. Dan Farley, Director of DER's Division of Permitting at the time, stated that the department's purpose in drafting the rules on the exemptions had been to define and clarify statutory terms, "to resolve some of the ambiguities" in the statute. Id. at 11 and 16. Farley also summarized the agency's specific reason for the language of Rule 17- 4.04(10)(h), "to prevent the reclamation of property without benefit of permits or prevent an individual from creating filled property without the benefit of permits." Id. at 27.

   
   

   In response to a citizen's objection to DER's proposed restriction of the exemption to seawalls landward of which "there [was] no substantial encroachment of waters of the state," Id. at 88, Farley stated the agency's justification for the rule:

   
   

   The reason that that is in there is because this exemption is not, it doesn't contain any specifics at all. It doesn't say you can't go out once every week and build a sea wall one foot in front of your

   property, thereby creating a fingerfill. It doesn't say what type of material you may build the sea wall out of. You may build it out of plywood or cardbord[sic] and continue to create land. That's the reason it's in there. We agree with the intent that an individual if he builds a sea wall can at least replace it, but let's make sure nobody abuses it. This is the kind of thing we discussed earlier. We are concerned about

   someone possibly abusing this and really felt very strongly in this case there was a lot of room for abuse if you didn't put some very restrictive language in here about what the intent of the rule was.

   The intent is to allow the individuals to replace this existing sea wall and not to create land by using this rule.

   
   

   Id. at 90-91. At the hearing there was no discussion of the specific requirement that a seawall be "functional," as DER has explained that requirement in various documents, including the memorandum dated August 13, 1975, from Dan Farley to district and subdistrict managers. See Exhibit FI-4. See also Composite Exhibit FI-16.

   
   

   Finally, on the clause forbidding "substantial encroachment of waters of the state," Mr. Doug Jones (Chief of the Bureau of Environmental Permitting) offered the following explanation:

   
   

   Our interpretation of the legislative intent is that you've got a sea wall that for some reason somebody wants to

   restore or replace it. It's in the process of failing. When that happens, normally, you know, just experience tells you that you get water in behind the sea wall, and it starts washing out little pockets behind it. The notion is that if there's a little bit of encroachment of waters of the state behind the sea wall or on the landward side of it, the upland side of it, then we think that it is the intent to let these people repair such sea walls.

   
   

   So that's why we came up with the language, "To be eligible for exemption there shall

   be no substantial encroachment of the waters of the state landward of the existing sea wall," meaning that what we are not talking about in this category is where you've got the vague remnants of a sea wall and 15 feet of water, and then a bank, a shoreline, and having somebody use this category to try to reclaim, back out to where some former sea wall may have been.

   This is a phenomenon particularly apparent

   in some locations along the Florida panhandle perhaps where there are some remnants of an old sea wall or one that was built using

   palm trees, and there's maybe 15 feet of water between the remnants of the old sea wall and the land. That was not felt was, should not be the intent of this particular passage. We tried to clarify it. We realize there could possibly be better wording, but we have revised it a number of times.

   
   

   Id. at 109-110.

   
   

8. In the public hearing on September 25, 1975, the Commission and DER adopted the following version of Rule 17-4.04(10)h), providing the exemption for

   
   

   seawalls [except those covered in Section 17-4.04(10(f)] restored at their previous

   location or upland of or within one (1) foot waterward of their previous location. To be eligible for exemption, there shall be no substantial encroachment of waters of the state landward of the existing seawall. No filling can be performed except in the above authorized relocation of the seawall. This exemption shall not be utilized as a method of reclaiming or extending uplands without complying with the permitting provisions of Chapters 253 and 403, Florida Statutes. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls.

   
   

   Section 17-4.04(10(h), Florida Administrative Code (1975). (See Exhibit FI-8.) Aside from the addition of the final sentence of the rule (at the request of the Commission), the adopted rule was identical to the draft of September 16, 1975.

   
   

9. In a letter dated October 8, 1975, from Reynold L. Caleen, Jr., Assistant General Counsel of DER, to Mr. Carroll Webb, Executive Director of the Florida Legislature's Joint Committee on Administrative Procedures, DER transmitted a copy of the new rules to the Committee and explained that the adopted version of the seawall restoration exemption differed from previous drafts by "broaden[ing] the exemption to those seawalls where `no substantial encroachment of the waters of the state exists landward of the seawall.' " Exhibit FI-9, at 3. Cf. Exhibit FI-5, at 2 (staff draft of September 10, 1975)(seawall had to be located landward of or at the existing line of mean high water)

   
   

10. The Committee then studied the new rules and held a public hearing on them on November 17, 1975, as a result of which the Committees raised or renewed various objections to the rules. See Letter from Carroll Webb to Joseph W. Landers, Jr., Secretary of DER (November 2, 1975)(Exhibit FI-10, at 1-2). In its introductory comments to its list of specific objections to the exemptions set forth in Rule 17-4.04(10) the Committee stated its general thesis:

    As a result of the exemptions set forth in 7(2) of the Reorganization Act, DER has amended its Rule 17-4.04(10) to incorporate the statutory exemptions.

    
    

    In the process of amending their rules, DER defined certain words used in the statute which were not defined by the legislature. Most of the objections to Rule 17-4.04(10) arise because the definitions given to the statutory words have the effect of limiting the statutory exemptions, hence frustrating the legislative intent of granting the exemptions.

    
    

    Exhibit FI-10, at 3. Referring specifically to the exemption for seawall restoration, the Committee adopted the following objections:

    
    

    Page 4

    10(h) Section 7(2)(e) of Chapter 75-22 authorizes the restoration of seawalls at their previous location or upland of, or within one foot waterward of their previous location; observe that the statute makes no distinction between artificial bodies of water and natural bodies.

    
    

    DER by rule prohibits the restoration of seawall construction in artificial bodies of water, where Section 7(2)(i), Laws of Fla., supra, imposes no such limitations. See reference to 17-4.04(10(f).

    
    

    DER imposes additional restrictions on the statutory right to construct seawalls pursuant to Section 7(2)(e) of Chapter 75-22 by denying a person the right to restore a seawall otherwise in compliance with the statute if there is "substantial encoroachment of waters of the state landward of the existing seawall."

    
    

    DER also prohibits the use of this statutory exemption if the purpose of restoration is to reclaim or extend uplands. The statute does

    not speak to "purpose" of restoration--it speaks to "place" of restoration.

    
    

    The definitional problem of "uplands" is also present.

    
    

    Conclusion: The rule amends, modifies, or alters Section 7(2)[e], Chapter 75-22, supra, by modifying the statutory exemption for permit for restoration of a seawall.

    Composite Exhibit FI-10, at 11-12; cf. Id. at 7 (proposed objections took nearly the same form as the adopted version, except that conclusion was stated as general proposed objection). On November 24, 1975, the Committee certified its objections and transmitted a copy of them to DER. Composite Exhibit FI-10, at

    1-2. On December 11, 1975, DER responded, requesting more time for the agency and the Environmental Regulation Commission to act on the objections. Id. at 13-14. Eventually, DER modified the rule to meet the Committee's objections. See Exhibit FI-11, at 3.

    
    

11. During the winter and early spring of 1976, members of the staff of DER met with those of the Committee and appeared before the Committee at least once. Ms. Victoria J. Tschinkel, then a special assistant to Doug Jones (Chief of the Bureau of Permitting) and presently the Secretary of DER, participated in redrafting the rule to meet the Committee's objections. With advice from DER's Legal Department, she drafted the following version of the rule:

    
    

    17-4.04(h)

    (h) seawalls [except those covered in Section 17-4.04(10(f)] restored at their previous

    location or upland of or within one (1) foot waterward of their previous location. However, where title to the land landward of the seawall has reverted to the State of Florida due to natural erosion, filling of such lands shall not be performed without written approval of the State of Florida Department of Natural Resources. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls.

    
    

    Exhibit FI-12, at 3; see Exhibit FI-13, at 4 (handwritten version identified by Ms. Tschinkel as in her handwriting)

    
    

12. Apparently, the rule underwent further revision, for in April 1976 the staff produced a draft almost identical to the version adopted a month later:

    
    

    17-4.04(10) h)

    (h) seawalls restored at their previous location or upland of or within one (1) foot waterward of their previous location To be eligible for exemption, there shall be no substantial encroachment of waters of the state landward of the existing seawall. No filling can be performed except in the above authorized restoration of the seawall No construction shall be undertaken without necessary title or leasehold interest especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion and reliction The Commission recommends and encourages some method of land retention such as rip-rap, which is more

    environmentally compatible than vertical seawalls.

    
    

    Exhibit FI-14, at 2-3.

13. Finally, on June 13, 1976, the Secretary of DER certified the adoption of the following amendments to Rule 17-4.04(10)(h)(words struck through were deleted; language underscored was added) on May 12, 1976:

    
    

    seawalls restored at their previous location or upland of or within one foot waterward of their previous location. No filling can be performed except in the above authorized restoration of the seawall. No construction shall be undertaken without necessary title or leasehold interest especially where private and public ownership boundaries have changed as a result of natural occurrences such as accretion, reliction and natural erosion. The Commission recommends and encourages some method of land retention such as rip-rap, which is more environmentally compatible than vertical seawalls.

    
    

    Exhibit FI-11, at 7. After DER adopted this version of the rule, the Committee withdrew its objections to Rule 17-4.04(10)(h) There is no significant difference between the form of the rule adopted in 1976 and the present version (codified at Section 17-4.04(9)(h) of the Florida Administrative Code, as explained in paragraph 2 of this Stipulation)

    
    

14. At least since August 13, 1975, when Dan Farley (the Director of DER's Division of Permitting at the time) sent the memorandum described in paragraph 4 about (see Exhibit FI-4) to district and subdistrict managers, among others, the consistent practice of DER in all districts has been and is to interpret the exemption for restoring seawalls as requiring that functional means essentially intact and preventing inundation of areas landward of the seawall. See Composite Exhibit FI-16. Thus, so far as can be discovered, DER has uniformly denied the exemption for any seawall falling to comply with the functionality requirement by being located substantially waterward of mean high or ordinary high water in places or so deteriorated as to permit more than minimal erosion of the land behind the seawall.

    
    

15. Besides the memorandum from Mr. Farley described in paragraph 4 above, DER has recorded the same "functionality" requirement in various other documents (see Composite Exhibit FI-16; Exhibit FI-17), including the Dredge and Fill Manual, the departmental training manual for dredge and fill permitting, not published to the general public but given to each and every individual processor of dredge-and-fill applications in all the districts. See Deposition of Walker at 34-35. DER has never adopted or promulgated the "functionality" requirement a a rule independent of Rule 17-4.04(10)(h).

    
    

16. Although the title page of the Dredge and Fill Manual contains a disclaimer that the manual "is not to be used as a rule of the department," Ms. Tschinkel, Ms. Suzanne Walker (current Chief of the Bureau of Permitting), and Ms. Helen Setchfield (a special technical assistant to the Director of the Division of Permitting) all testified in deposition that DER compiled the manual to ensure uniform procedures and application of the statutes, rules, and policy statements of DER on dredge and fill permitting, including a uniform application of the requirement that a seawall be functional to be eligible for the seawall restoration exemption. Each of them also took the position that she would reverse (or urge reversal of) any decision by a lower ranking member of DER's

    staff that ran contrary to the seawall functionality requirement for this exempton, as stated in the documents in Exhibit FI-4 and Composite FI-16, and in the Dredge and Fill Manual. On behalf of the department, Ms. Setchfield authored the following statement of DER's imposition of a functionality requirement in applying the seawall restoration exemption:

    
    

    5. Seawalls [Section 403.013(2)(e), Fla. Admin.Code Rule 17-4.04(h)]

    
    

    This exemption provides for the restoration of a seawall at its previous location or upland of the previous location or within one foot waterward of the previous location. The exemption for restoration of a seawall is designed for the repair or replacement of an existing, functioning seawall. It does not include the rebuilding of a seawall which was obliterated at some earlier time. The exemption does not include any filling other than the actual placement of the seawall material and minimal backfill. It does not include reclaimation pursuant to Section 253.124(8), F.S. At the direction of the Environmental Regulation Commission we should encourage applicants to use riprap; however, it is not mandatory that they do so except where the seawall is being restored within the Biscayne Bay Aquatic Preserve.

    
    

    Exhibit FI-17, at 188 (Manual at 188). Ms. Setchfield based this version on all available written statements of DER's consistent interpretation and guidelines for application of the exemption. As far as can be discovered, DER is consistently carrying out its intent of uniformly applying these criteria and requires all applicants for the exemption to meet all elements of the position stated in the manual and the documents of Exhibit FI-4 and FI-16. This has been the consistent practice of DER throughout the state since August 1975 and reflects the status of the seawall restoration exemption both in 1981 when Fisher Island applied for the exemption and at present.

    
    

17. On December 9, 1981, Richard Walesky and Larry O'Donnell of the South Subdistrict Office in West Palm Beach submitted their report of a visual inspection of the site made by fur. Walesky in November 1981. Mr. Walesky walked along the shoreline and swam over the area just offshore in which the applicant's consulting engineer had plotted the line of the seawall. Mr. Walesky concluded that because water completely covered the allegedly existing seawall except for some pilings in a line along the northern portion of the southwestern shoreline, substantially waterward of the existing mean high water line, and because he found no other visual evidence of the seawall, it was not "a functional seawall and clearly [did] not fit the requested exemption." Exhibit FI-18.

    
    

18. On the basis of the report of Mr. Walesky's visual inspection of the site, DER informed Petitioner Fisher Island that its project did not qualify for the exemption. Accordingly, DER proceeded to process the application for a standard dredge and fill permit and eventually issued its Intent to Deny the permit, on April 15, 1983. See Composite

    Exhibit FI-19.

    
    

19. Fisher Island owns the submerged lands lying between the existing seawall and the line of mean high water. The Board of Trustees of the Internal Improvement Trust Fund (Board) sold the lands in question in 1920, and Fisher Island has purchased those lands along with most of the island. See Composite Exhibit FI-20. Acting through the Department of Natural Resources (DNR), the Board has admitted Fisher Island's ownership of the submerged lands that Petitioner proposed to fill and reclaim, and the Board and DNR have raised no objection to Petitioner's application for a permit to restore the seawall. See Exhibit FI-21.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.56, Florida Statutes.

    
    

21. Section 403.061(7), Florida Statutes, authorizes DER to "[a]dopt, modify, and repeal rules and regulations to carry out the intent and purposes of this act "

    
    

22. Section 403.813(2), Florida Statutes, provides, in pertinent part, as follows:

    
    

    No permit under this chapter, chapter number

    373 or chapter 253, chapter 61-691, Laws of Florida, or chapter 25214 or chapter 25270, Laws of Florida, 1949, shall be required for activities associated with the following types of projects. . . .

    
    

    (e) The restoration of seawalls at their previous locations or upland of, or within 1 foot waterward of, their previous locations. . .

    
    

23. Pursuant to the authority contained in Sections 403.061(7) and 403.813(2)(e), Florida Statutes, quoted above, DER has adopted Rule 17- 4.04(9)(h), Florida Administrative Code, which provides as follows:

    
    

    17-4.04 Exemptions. The following sources are exempted from the permit requirements of this chapter.

    * * * * *

    (10) Construction; Dredging or filling activities associated with the following types of projects:

    * * * * *

    1. The restoration of seawalls at their previous location or upland of or within one

       1. foot waterward of their previous location. No filling can be performed except in the above authorized restoration of the seawall

    . . . .

    
    

24. Where, as here, the legislature has delegated broad discretionary rulemaking authority to an agency" . . . the validity of regulations promulgated

    thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation and are not arbitrary or capricious . . .

    ." Florida Beverage Corporation v. Wynne, 306 So.2d 200, 202 (Fla. 1st DCA 1975). Further, as held by the court in Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 242 (Fla. 1st DCA 1931):

    
    

    When as here an agency has responded to rulemaking incentives and has allowed affected parties to help shape the rules they know will regulate them in the future, the judiciary must not, and we shall not, overly restrict the range of an agency's interpretative powers. Permissible interpretations of a statute must and will be sustained, though other interpretations are possible and may even seem preferable according to some views. If the rule binds too tightly to suit them [opponents of the rule] have their proper remedy in the representative and politically responsive branches, the legislative or executive, but not in the judiciary, nor in Section 120.56 rule challenges before a hearing officer.

    
    

25. When stripped of excess verbiage, Section 403.813(2)(e) Florida Statutes, provides that no permit ". . . shall be required for activities associated with . . . the restoration of seawalls at their previous locations or upland of, or within 1 foot waterward of, their previous locations." In like fashion, the challenged rule provides that ". . . [d]redging or filling activities associated with . . . [t]he restoration of seawalls at their previous location or upland or within one (1) foot waterward of their previous location .

    . . are exempted from the permit requirements of this chapter." These provisions are so substantially similar that it is concluded, as a matter of law, that that portion of the challenged rule quoted above does not constitute an invalid exercise of delegated legislative authority. The remaining portion of the challenged rule involved in this proceeding provides that ". . . [n]o filling can be performed except in the above authorized restoration of the seawall It is concluded that this portion of the challenged rule does nothing more than limit the permissible scope of activities to those falling within the authorized exemptions contained in the statute and the other portions of the challenged rule. As such, it neither adds to nor detracts from rights accorded pursuant to Section 403.813(2)(e), Florida Statutes, and does not constitute an invalid exercise of delegated legislative authority.

    
    

26. Section 120.52 (15), Florida Statutes, defines the term "rule" to mean:

. . . each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule

Agency statements which meet the definition of a "rule" within the meaning of Section 120.52(15), Florida Statutes, but have not been adopted according to the rulemaking requirements of Section 120.54, Florida Statutes, are invalid.

Department of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA 1977) Agency statements which purport in and of themselves to create rights and adversely affect others, and which are applied prospectively with the force and effect of law, allowing little or no discretion in their implementation, are rules and are void unless formally adopted. Florida State University v. Dann,

400 So.2d 1304 (Fla. 1st DCA 1981). The parties to this proceeding have stipulated that DER is consistently applying the "functionality" provisions contained in Exhibits FI-4 and FI-16 in reviewing applications for exemption pursuant to the requirements of Section 403.813(2)(e), Florida Statutes, and has been doing so since August of 1975. No such functionality requirement appears in Section 403.813, Florida Statutes, or any other portion of Chapter 403. As such, this requirement clearly constitutes an agency interpretation of statutory requirements which has, by virtue of agency practice, become generally applicable. Accordingly, because DER has failed to adopt the "functionality" requirement contained in these documents as a rule in accordance with the provisions of Section 120.54, Florida Statutes, that requirement constitutes an invalid exercise of delegated legislative authority. See, Department of Corrections v. Sumner, Case No. AM-256 (Fla. 1st DCA, March 22, 1984)

Accordingly, it is ORDERED:

That the "functionality requirement contained in Exhibits FI-4 and FI-16 are "rules" and are therefore invalid because they have not been promulgated pursuant to Chapter 120, Florida Statutes. It is further ordered that the provisions of Rule 17-7.04(9)(h), Florida Administrative Code, have not been demonstrated by Petitioner in this cause to constitute a invalid exercise of delegated legislative authority for the reasons hereinabove set forth.

DONE AND ENTERED this 11th day of April, 1984, at Tallahassee, Florida.

WILLIAMS E. WILLIAMS

Hearing Officer

Division of Administrative Hearings Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 11th day of April, 1984.

COPIES FURNISHED:

Timothy A. Smith, Esquire Brickell Concours

1401 Brickell Avenue, PH-1 Miami, Florida 33131

E. Gary Early, Esquire Assistant General Counsel Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Victoria Tschinkel, Secretary Department of Environmental

Regulation

2600 Blair Stone Road Tallahassee, Florida 32301

Carroll Webb, Executive Director Liz Cloud Chief

Joint Administrative Procedures Bureau of Administrative Code Committee Department of State

120 Holland Building The Capitol, Suite 1802 Tallahassee, Florida 32301 Tallahassee, Florida 32301

Docket for Case No: 83-002563RX

Orders for Case No: 83-002563RX