STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
THE SANTA FE LAKE DWELLERS )
ASSOCIATION, INC., )
)
Petitioner, )
)
vs. ) DOAH CASE NO. 86-1047
) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
)
SANTA FE PASS, INC., )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to notice, an administrative hearing was held before Michael M. Parrish, Hearing Officer with the Division of Administrative Hearings, on July 2, 3, and 17, 1986, in Gainesville, Florida. The issue for determination in this proceeding is whether Respondent Department of Environmental Regulation (DER) properly validated and established a dredge and fill permitting jurisdictional line on the property of Intervenor Santa Fe Pass, Inc. (SFP).
APPEARANCES
FOR PETITIONER: Timothy Keyser, Esquire
Post Office Box 92 Interlachen, Florida 32048
FOR RESPONDENT: Bradford L. Thomas, Esquire
Assistant General Counsel
Department of Environmental Regulation Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32301
FOR INTERVENOR: Frank E. Matthews, Esquire
Elizabeth C. Bowman, Esquire HOPPING BOYD GREEN & SAMS
Post Office Box 6526 Tallahassee, Florida 32314
INTRODUCTION
At the hearing, SFP introduced the testimony of William B. Watson, III, a co-owner of SFP; James D. Henderson, III, a civil engineer and consultant to SFP; David B. Scott, a DER environmental specialist and an expert in dredge and
fill permitting and DER dredge and fill jurisdictional determinations, Melvin H. Rector, an expert in dredge and fill matters generally, dredge and fill jurisdictional determinations, ecology, and related aerial photograph interpretations; Benjiman W. Breedlove, an expert in dredge and fill matters, ecology including botany, and photointerpretation of aerial photographs related to dredge and fill activities. SFP also introduced intervenor's Exhibits 1, 2, 6, 8, 10, 22, 24, 26-28, 32, 33, 38, 39, 42, 48, and 68. Intervenor's Exhibit 70, excerpts from the deposition of Richard W. Cantrell, also was introduced into evidence at Intervenor's request. The Hearing Officer also took official recognition of Chapter 17-4, Florida Administrative Code, as it has existed since 1975.
Respondent DER presented testimony from Jeremy Tyler, supervisor of DER's northeast district dredge and fill section and an expert in DER dredge and fill jurisdiction and impacts; and Eugene W. Medley, a DER dredge and fill enforcement employee and an expert in biology and dredge and fill jurisdictional determinations. DER also presented testimony from David B. Scott and introduced DER Exhibits 1-3 and 5-7.
Petitioner introduced the testimony of John Hendrix, an environmental specialist for Alachua County and expert in dredge and fill activities, jurisdictional determinations, and photointerpretation; Wilbur Neal, a lakeside resident on Lake Santa Fe and member of SFLDA; Samuel S. Daniels, a lakeside resident on Lake Santa Fe and member of SFLDA; T. B. Millican, general manager of Clay Electric Cooperative; Kenneth M. Morgan, district soil conservationist for the U.S. Soil and Conservation Service and an expert in soils; Eric Fisher, a lakeside resident of Lake Santa Fe; Arlynn Quinton White, an expert in wetlands ecology, aquatic vegetation, jurisdictional determinations, and photointerpretation; Harold Hill, a lakeside resident on Lake Santa Fe and president of SFLDA; Michael E. Drummond, an expert in botany and aquatic vegetation; and Randall W. Coleman, a former resident of the Lake Santa Fe area. Petitioner's Exhibits 2, 3, 6, 7, 9-11, 14, 40-42, 44, 70, and 101 were received into evidence. In addition, at Petitioner's request, the Hearing Officer, subject to the documents being shown relevant, took official recognition of a plat of Township 8 South, Range 22 East, of the State of Florida; minutes of the September 10, 1980, meeting of the Governor and Cabinet; a memo dated August 12, 1980, from George M. Cole to R. P. Ludington; a report entitled "Ordinary High Water of Lake Santa Fe and Little Lake Santa Fe, Bradford County;" and excerpts of the Soil Survey of Alachua County.
Jim Notestein, Dale Martinez, Sandy Fisher, Samuel Daniels, Eric Fisher, Reggie Smith, Harold Hill, and Marty Mesh made statements as members of the general public during a public comment period.
On August 8 and 12, 1986, the transcript of the hearing was filed with the Hearing Officer and on September 2 and 3, 1986, all parties filed Proposed Recommended Orders containing proposed findings of fact and conclusions of law. All of the Proposed Recommended Orders have been carefully considered in the preparation of this Recommended Order. A specific ruling on each proposed finding of fact submitted by each party is included in the Appendix which is attached to and incorporated into this Recommended Order.
On August 14, 1986, the Petitioner filed a Motion To Re-Open And Consolidate Proceedings, by means of which the Petitioner sought to reopen the record in this case and consolidate this case with a rule challenge case, DOAH Case No. 86-2625R. By order issued August 29, 1986, the motion to Reopen and consolidate proceedings was denied.
On October 20, 1986, the Petitioner filed a Petitioner's Motion To Reopen The Record, by means of which Petitioner sought to reopen the record in order to submit additional evidence and to request reconsideration of rulings at hearing rejecting certain evidence. By order issued the same date as this Recommended Order, Petitioner's October 20 motion has been denied.
FINDINGS OF FACT
Based on the stipulations of the parties, on matters officially recognized, on the exhibits received in evidence, and on the testimony of the witnesses at the hearing, I make the following findings of fact.
Petitioner, The Santa Fe Lake Dwellers Association, Inc. (SFLDA), is a Florida corporation, not-for-profit, which evolved from a voluntary association of area families contemporaneously with and in reaction to Intervenor's first activities on site. Its members are mostly riparian residents and owners although, it does have a number of members who reside in surrounding areas.
SFLDA was formed to protect Lake Santa Fe. The purpose of the association is to protect natural resources and to inform those conducting activities around the lake to abide by rules, regulations, and procedures. The President of SFLDA, Harold Hill, expressed particular concern about protection of lifetime investments in property on the lake and property values. SFLDA has approximately 380 "family group" members, of whom approximately one-half live on Lake Santa Fe or on canals to the lake. Mr. Hill and other members of SFLDA use Lake Santa Fe waters for swimming, fishing, and recreation. Use of the waters of Lake Santa Fe and Little Lake Santa Fe is not restricted to property owners who abut the lake. There is public access to the lakes and they can be used by anyone who has a boat.
Intervenor, Santa Fe Pass, Inc. (SFP), is a Florida corporation, which owns the property at issue. SFP acquired fee title to the land in its own name on April 28, 1978. Some or all of the present share holders in SFP purchased the land in the name of a trustee on January 9, 1976. The property at issue is a development property of approximately 110 acres located in Alachua County on a peninsula that almost separates Lake Santa Fe from Little Lake Santa Fe and is commonly known as the Santa Fe Pass. The Santa Fe Lakes are navigable and are classified as Outstanding Florida Waters under Chapter 17-4.304(4)(i), Florida Administrative Code, and are surrounded by Alachua, Clay, Bradford, and Putnam Counties.
On November 13, 1978, a site visit was conducted on the subject property for purposes of establishing the dredge and fill jurisdictional limits of DER and the U.S. Army Corps of Engineers. Those present on the site inspection that day included Melvin H. Rector, the DER representative; another DER employee; Don Gowan, representative for the Corps of Engineers; William B. Watson, III, a co-owner; Boone Kuersteiner, an attorney for SFP; and Benjiman Breedlove, environmental consultant for SFP.
At the November 13, 1978, site visit, DER made a determination of the extent of its dredge and fill jurisdiction under Section 403.817, Florida Statutes, in the area of the subject property. This determination was depicted and memorialized on an aerial photograph of the site and was signed by those present, including Mr. Rector on behalf of DER.
Mr. Rector, the DER representative on site on November 13, 1978, used the following method to establish the location of the limit of DER's jurisdiction: Jurisdiction was based on the dominance of certain vegetative species listed in Rule 17-4, Florida Administrative Code, as it existed on that date. The listed species that were dominant in the jurisdictional area were a fringe of grass called maiden cane along the lake, and further landward, two forested species, pond cypress and swamp tupelo. Dominance was based on factors of whether listed species versus non-listed species covered a greater aerial extent in the canopy cover, made up more than 50 percent of the species by number, and had a greater biomass or weight. At that time DER had no authority to use soil types to establish jurisdiction. The line set by DER was based only on the vegetative index and not on the ordinary high water line.
The filling which had occurred on the site prior to November 13, 1978, had no impact on where DER located its jurisdictional line, nor did it impair the ability of DER to determine where the line should be located. Any removal of canopy or subcanopy species landward of the line prior to that date also did not affect placement of the line. If no filling had occurred on Santa Fe Pass prior to November 13, 1978, DER's representative Rector would have located the jurisdictional line in the same place as he did on November 13, 1978.
An abandoned powerline easement runs across the subject SFP property from the southwest area of the property to the northeast portion of the property, where it meets the lake. Prior to any filling by SFP or its immediate predecessor in interest, the easement area had been cleared of trees, and fill had been placed in some areas along the easement strip. At the time of the November 13, 1978, jurisdictional determination, the easement strip was dry and it was possible to drive a car down it to the lake. The easement strip was not paved, but had dirt and vegetation on its surface. Portions of the powerline easement strip were filled prior to January of 1975. There was no new fill on the powerline easement strip at the time of the November 13, 1978, jurisdictional determination. At that time, portions of the powerline easement strip contained old fill material covered by upland species of vegetation. On November 13, 1978, DER concluded that, based on vegetation in and adjacent to the powerline corridor on Santa Fe Pass, the corridor was entirely outside DER's jurisdiction.
A low area or depression, also referred to as a pond, is located in the northeasterly portion of the subject SFP property, southwest of the portion of the powerline easement strip that extends into the lake. No fill was placed between the depressed area or pond and the lake prior to November 13, 1978. (Shortly after that date, fill was placed in that area.) There was no other physical alternation of the area near the depression or pond prior to the date of the jurisdictional determination. At the time of the jurisdictional determination, the depression or pond was separated from the lake by a natural low berm, the borders of which were vegetated and undisturbed. The depression or pond was not exchanging water with the lake at that time, although at other times there has been an occasional exchange of waters between the two. In addition, jurisdictional vegetative species were not dominant in the depression or pond area at the time of the jurisdictional determination. On November 13, 1978, DER did not assert jurisdiction over the low area or pond in the northeast section of the property because it was not connected to waters of the state and was separated from the lake by a low natural berm.
DER's representative Rector inspected the jurisdictional line numerous times after November 13, 1978, including an inspection of the line as marked by the owner's consultant to make sure the line was accurate. Other DER
representatives inspected the line in May of 1979 and also thought the line or the portions of the November 13, 1978, line they inspected were accurate. On June 11, 1979, DER representative David Scott wrote SFP that, after a recent DER inspection, there were no problems with the present DER jurisdictional line.
Since the DER line was established on November 13, 1978, SFP has relied on its location to develop the project, to conduct filling activities landward of the location of the line, to create a site plan and plat, and to make sales representations to potential buyers. From the owner's standpoint, the purpose of establishing the line was to determine where it would and would not need DER dredge and fill permits to develop the land. Landowners use DER jurisdictional determinations for planning purposes. SFP has expended more than
$100,000 for development reasons in good faith reliance on the line's location.
In conjunction with 1984 revisions to Chapter 403, Florida Statutes, DER adopted Rule 17-4.022(8), Florida Administrative Code. This was a "grandfathering" rule provided for landowners who had had DER jurisdictional determinations done, so that they could continue planning with a previously fixed jurisdictional line.
On January 8, 1985, SFP requested that DER validate the 1978 jurisdictional determination for the subject SFP property in accordance with Florida Administrative Code Rule 17-4.022(8). Attached to this request was the aerial photograph signed by DER employee Rector and others upon which the November 13, 1978, DER jurisdictional determination was graphically displayed.
On July 9, 1985, DER issued a letter validating the November 13, 1978, jurisdictional determination under Rule 17- 4.022(8), Florida Administrative Code. Exhibit 1 to that letter was a validated version of the aerial photograph depicting the 1978 determination. The validated line is identical to the line established on November 13, 1978. DER staff followed normal procedures in validating the Santa Fe Pass line and, having done so, concluded that all validation criteria were met.
On March 11, 1986, DER notified SFLDA by certified mail that on July 9, 1985, DER had validated its November 13, 1978, jurisdictional determination on the SFP property. SFLDA timely requested an administrative hearing on March 19, 1986. Although some SFLDA officers and members had conversations with DER personnel between July 9, 1985, and March 11, 1986, none of those conversations was sufficient to provide SFLDA with a clear point of entry into the process.
In sum: The totality of the credible evidence supports the ultimate finding of fact that the DER jurisdictional line established on November 13, 1978, was accurately established and SFP is entitled to have that line validated.
CONCLUSIONS OF LAW
Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.
The Intervenor has obvious standing to participate in this proceeding because it is an applicant whose application has been challenged by the Petitioner.
The Petitioner also has standing to participate in this proceeding. The interests of Petitioner and a substantial number of its members could be injured by an inaccurate placement of the jurisdictional line or by an improper validation of the jurisdictional line. Accordingly, Petitioner has standing to litigate the issue of whether the jurisdictional line has been properly validated. See, generally, Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981); Manasota 88, Inc. v. DER and Gardinier, Inc., 481 So.2d 948 (Fla. 1st DCA 1986); Schatz v. DER & Admiral Corp., Inc., 8 FALR 2338.
Rule 17-4.022(8), Florida Administrative Code, reads as follows:
The landward extent of waters of the state shall be determined using the vegetative index adopted June 10, 1975, as amended March 11, 1981, for all complete applications filed with the department before October 1, 1984. For all other areas where the department made a determination of the landward extent of the waters of the state using the vegetative index adopted June 10, 1975, as amended March 11, 1981, before October 1, 1984, the department shall,
within 90 days of a request therefor, validate the determination if:
The determination is graphically displayed on a map, drawing, or aerial photograph, or written in the form of a narrative description sufficient to identify the areas in question; and
The determination was based on a site verification made by the department; and
The document purporting to be the determination is signed by an employee of the department in the course of his official duties; and
The document purporting to be a site verified written determination shall be submitted by certified mail within six months of October 1, 1984, to the department for validation.
Although the parties all appear to be of the view that a request for validation of a prior jurisdictional determination under Rule 17-4.022(8) provides an occasion for renewed inquiry into the accuracy of the prior jurisdictional determination, I am persuaded otherwise. The plain and simple language of the rule appears to envision a purely ministerial process for the validation of prior jurisdictional determinations, because the question of whether an applicant for validation is eligible for validation can be determined by a ministerial inquiry into whether the document purporting to be the prior jurisdictional determination complies with the four requirements of the rule. The first requirement is that the determination be graphically displayed in a certain manner or written in a certain manner. That requirement has been met by SFP. The second requirement is that the determination "was based" on a department site verification. The proof here satisfies this requirement. The third requirement is that the subject document "is signed by an employee of the
department in the course of his official duties." The proof here satisfies this requirement. And the last requirement of the rule is that the subject document be mailed to the DER prior to April 1, 1985. That, too, was done in this case. There is nothing in the rule requiring a second site verification or any other form of field investigation. Rather, compliance with every requirement of the rule can be verified by a ministerial examination of the document purporting to be the prior jurisdictional determination and perhaps a ministerial examination of department files to confirm that a site verification was made if site verification is not evident on the face of the document.
As noted above, Rule 17-4.022(8) provides for validation of prior jurisdictional determinations upon compliance with four specified criteria. Where, as here, an applicant for validation under the rule has come forward with proof of compliance with all four criteria, that should be the end of the matter. In my view, the validation should be issued without the further inquiry proposed by both DER and SFLDA into issues related to how well the DER personnel performed their duties several years ago when the original jurisdictional determination was made. However, it appearing that this is a case of first impression, and the parties all having been permitted to offer their evidence addressed to what now appear to me to be irrelevant issues, it seems to me to be the most prudent course to also address the evidence regarding the accuracy of the 1978 jurisdictional determination.
Prior to October 1, 1984, and at the time of the 1978 jurisdictional determination, the extent of DER's dredge and fill jurisdiction under Chapter 403, Florida Statutes, was defined in Section 403.817, as follows:
403.817 Legislative intent; determination of the natural landward extent of waters for regulatory purposes.--
It is recognized that the levels of the waters of the state naturally rise and fall, depending upon tides and other hydrological, meterological, and geological
circumstances and features. The natural rise and fall of the waters is essential to good water quality, but often makes it difficult to determine the natural landward extent of the waters. Therefore, it is the intent of the Legislature that the Department of Environmental Regulation establish a method of making such determinations, based upon ecological factors which represent these fluctuations in water levels.
In order to accomplish the legislative intent expressed in subsection (1), the department is authorized to establish by rule, pursuant to chapter 120, the method for determining the landward extent of the waters of the state for regulatory purposes. Such extent shall be defined by species of plants or soils which
are characteristic of those areas subject to regular and periodic inundation by the waters of the state. The application of plant indicators to any areas shall be by dominant species. However, no landowner shall suffer
any property loss or gain because of vegetation changes due to mosquito control activities conducted upon his property, provided these activities are or have been undertaken as part of a governmental mosquito control program. To the extent that certain lands have come within department jurisdiction pursuant to this section or chapter 253 solely due to insect control activities, these lands shall not be subject to permitting requirements for the discharge of dredge or fill material. (emphasis added)
It is undisputed that, at the time of the November 13, 1978, DER jurisdictional determination on the SFP property, DER had adopted rules concerning vegetative indicators only, and had not adopted any rules concerning soils species, to implement its authority under Section 403.817 to regulate dredging and filling in waters of the state.
Rule 17-4.28(2), Florida Administrative Code, contained the general rule provisions for determining DER dredge and fill jurisdiction under Chapter 403, Florida Statutes. It provided as follows on November 13, 1978:
(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 categories of waters of the State (including the submerged lands of such waters and transitional zone of the submerged land) shall obtain a permit from the department prior to being undertaken:
* * *
(d) natural lakes, . . .
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 subsections 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 infrequently exchange water with a described water body in Section 17-4.28(2) and/or provide only insignificant 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 vegetation indices defining "submerged lands" and "transitional zone of a submerged land" are presumed to accurately delineate said submerged lands and transitional zones.
The applicable Rules 17-4.02(17), (19), Florida Administrative Code, defined the landward extent of waters subject to DER dredge and fill jurisdiction as those areas where certain listed vegetative species were "dominant."
"Dominance" was defined under the DER rule in effect prior to the 1984 legislative amendments as follows:
"Dominance" shall mean the presence of species or communities in greater numbers, biomass, or areal extent than competing species or communities, or a scientifically accepted tendency of species or communities to achieve such a status under existing or reasonably anticipated conditions.
See Rule 17-3.021(10), Fla. Admin. Code (1982 and 1984 Supp.)
The greater weight of the evidence establishes that the jurisdictional determination line established by DER on November 13, 1978, was based on whether listed species were dominant to, but not more landward of, the line established that day. The line was correctly established under the statutes and DER rules in effect on November 13, 1978.
Both the DER and the SFLDA contend that in the area of the SFP property surrounding "Gator Cove," the jurisdictional line should have been established somewhat landward of the line which was actually established on November 13, 1978. However, neither the DER or the SFLDA came forward with any persuasive competent substantial evidence to show where the line should be relocated in the Gator Cove area. The most that was offered by either the DER or the SFLDA in this regard was rather imprecise, general, opinion testimony to the effect that to some greater or lesser degree the jurisdictional line in the Gator Cove area should be somewhat landward of the line established on November 13, 1978. DER's proposed resolution of this contention is that the jurisdictional line "in the area of Gator Cove must be reestablished by DER, applying the list of wetland vegetation from Florida Administrative Code Rule 17-4.022 as it existed prior to January 24, 1984."
The DER's proposed resolution must be rejected for at least two reasons. First, it must be rejected because it comes too late. A formal hearing under Section 120.57(1), Florida Statutes, is a process designed to provide all parties an opportunity to prove the factual basis for what each party contends should be the final resolution of the matter at issue. The end product of a formal hearing is customarily a resolution of all disputed issues of material fact on the basis of the evidence submitted during the course of the hearing. Once the evidentiary record of the hearing is closed, it is too late in the process for the agency to revert back to its prehearing "free form" investigative mode and attempt to discover some more evidence upon which to decide what to do. To the contrary, the agency's final decision must be based on the evidence of record adduced at the hearing and not on the basis of some additional post-hearing investigation.
The DER's proposed resolution regarding the Gator Cove area must also be rejected because the factual predicate for the proposed resolution is contrary to the greater weight of the evidence. As noted in the findings of fact, the greater weight of the evidence establishes that the entire jurisdictional line established on November 13, 1978, including the portion of the line in the vicinity of Gator Cove, was properly established under the then existing rules and statutes. The greater weight of the evidence also disposes of the SFLDA's arguments regarding the Gator Cove portion of the line.
The SFLDA contends that the November 13, 1978, jurisdictional line erroneously excludes the "pond" area in the eastern portion of the SFP property just below the powerline easement. This contention is contrary to the greater weight of the evidence. Even though there is at times an exchange of water between the "pond" area and Lake Santa Fe, such an occasional exchange of water is an insufficient basis upon which to conclude that DER has jurisdiction over the "pond" area. As noted in Department of Environmental Regulation v. Coldring, 477 So.2d 532, 534 (Fla. 1985),
We hold that DER's dredge and fill juris- diction depends upon the predominance of listed aquatic vegetation on the subject property along with an exchange of waters, whether one-way or two-way, with state waters. (emphasis added)
Notwithstanding any occasional exchange of waters, the greater weight of the evidence is to the effect that jurisdictional vegetative indicator species were not dominant in the "pond" area. Further, even if it had been established that jurisdictional species were predominant in the "pond" area, that area would still appear to be an "isolated area" of the type described in the following portion of Rule 17-4.28(2), Florida Administrative Code, as it existed on November 13, 1978:
Isolated areas which infrequently exchange with a described water body in Section 17- 4.28(2) and/or provide only insignificant benefit to the water quality of a water body described in Section 17-4.28(2) are intended to be defined as uplands and excluded from the definition of "submerged lands."
The SFLDA also contends that the November 13, 1978, jurisdictional line erroneously excludes a portion of the powerline easement area. The SFLDA's principal contention in this regard is that the disputed portion of the powerline easement area was unlawfully filled and is, therefore, subject to DER jurisdiction. The contention fails because the greater weight of the evidence is to the contrary.
Based on all of the foregoing, it is recommended that the Department of Environmental Regulation issue a Final Order validating the jurisdictional line as determined on November 13, 1978.
DONE AND ENTERED this 27th day of October, 1986, at Tallahassee, Florida.
MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1986.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-1047
The following are the-specific rulings on each of the proposed findings of fact proposed by each of the parties. By way of preface it should be noted that the evidence in this case consists of three days of testimony by numerous witnesses, some expert and some lay, with many different points of view. Some of the witnesses had an opportunity to view the subject property carefully on numerous occasions over a period of several years. Others only viewed it casually once or twice. Some gave the property a studied, scientific examination. Others gave it only a casual, curious glance. Some of the witnesses have an interest in what happens to the property. Others do not.
Some witnesses were able to relate what they had observed with precision and detail. Others were somewhat vague, uncertain, and ambiguous.
These many differences have resulted in a record which contains a great deal of conflicting factual testimony as well as a great deal of conflicting expert opinion testimony. The record also contains a great deal of what might best be described as "vague" testimony to which little weight has been given. In making the findings of fact in this Recommended Order and in making the specific rulings on the proposed findings which follow, I have given careful consideration to the testimony of all of the witnesses who presented testimony relevant to the issues in this case and have resolved the conflicts in the testimony by careful consideration of matters such as those summarized in the preceding paragraph, giving special consideration to each witness' opportunity to observe the property, the timing of his or her observation, the ability of the witness to perceive and understand what was being observed, and the ability of the witness to remember and recount what had been observed. In resolving the conflicts in the testimony I have also taken into consideration such matters as
the extent to which the testimony was or was not consistent with other evidence, the extent to which it was or was not consistent with logic and common sense, and the extent to which the witness' interest (or lack of interest) might have colored his or her ability to objectively observe and recount the observation.
Rulings on Petitioner's Proposed Findings
Paragraphs 1,2, and 3: Accepted in substance, with the exception of the last sentence of Paragraph 3, which sentence is rejected as irrelevant or as constituting unnecessary, subordinate detail.
Paragraph 4: Accepted.
Paragraph 5: Rejected as irrelevant or as constituting unnecessary, subordinate detail.
Paragraph 6: Accepted in substance, but with most of the details deleted as unnecessary and subordinate.
Paragraph 7: Accepted in substance, for the most part, but with many unnecessary and subordinate details deleted. The sentence beginning on the ninth line of page 5 and the last sentence of this paragraph are rejected as irrelevant.
Paragraph 8: This paragraph is rejected as subordinate and unnecessary. (While the witness Rector's current status as a private consultant to one of the parties is an underlying consideration in evaluating the credit to be given to his testimony [and has been considered in that regard), such status is nevertheless subordinate to the real issues in this case. The witness' education, experience, and demeanor while on the witness stand were also carefully considered, but if all of these matters were to become the subjects of findings of fact, the fact-finding process might never end and the significant facts might become forever lost in a morass of trivia.)
Paragraph 9: Accepted in substance, but with many details deleted as unnecessary and subordinate.
Paragraph 10: The first two sentences are rejected as irrelevant. The remainder of this paragraph is rejected as constituting unnecessary and subordinate details as well as being more in the nature of a summary of fragments of the testimony than a proposed finding of fact. Relevant findings about the "pond" are included in this Recommended Order.
Paragraph 11: This paragraph is rejected as constituting a commentary upon a portion of the evidence or as constituting argument about the probative value of an item of evidence, rather than being a proposed finding of fact. To the extent this paragraph does contain material which could be regarded as proposed findings, they are subordinate and unnecessary details.
Paragraph 12: Accepted in substance, but with many details deleted as unnecessary and subordinate.
Unnumbered paragraph following Paragraph 12: Rejected as irrelevant and as constituting subordinate unnecessary details.
Paragraph 13: Accepted in substance, but with many details deleted as unnecessary and subordinate.
Unnumbered paragraph following paragraph 13: First sentence accepted in substance. The remainder of this paragraph is rejected as irrelevant or subordinate and unnecessary details.
Paragraph 14: Rejected as constituting irrelevant, subordinate, unnecessary details about the hearing.
Unnumbered paragraph immediately following Paragraph 14: The first two sentences of this paragraph and the last sentence of this paragraph are rejected as constituting irrelevant, subordinate, unnecessary details. Most of the remainder of the paragraph is accepted in substance with most details deleted as unnecessary and subordinate.
Paragraph 15: Rejected as argument or editorial commentary rather than proposed findings of fact.
First unnumbered paragraph following Paragraph 15: This paragraph is rejected as irrelevant and unnecessary details.
Second unnumbered paragraph following Paragraph 15: The first sentence is rejected as constituting subordinate, unnecessary detail. The opinion incorporated into the second sentence is rejected as contrary to the greater weight of the evidence. The third sentence is rejected as irrelevant in light of other credible evidence that the area had not been significantly disturbed at the time of the jurisdictional determination. The last sentence is rejected as irrelevant in light of other credible evidence regarding conditions at the time of the jurisdictional determination.
Third unnumbered paragraph following Paragraph 15: This paragraph is rejected as irrelevant in light of other credible evidence regarding conditions at the time of the jurisdictional determination.
Fourth unnumbered paragraph following Paragraph 15: This paragraph is rejected in part as constituting irrelevant and subordinate details and in part as contrary to the greater weight of the evidence.
Paragraph 16: The first two sentences of this paragraph are rejected as subordinate, unnecessary details. The remainder of the paragraph is accepted in substance, but with the deletion of many unnecessary details.
Paragraph 17: The first seven sentences of this paragraph are rejected as subordinate and unnecessary. The eighth sentence is rejected as constituting an opinion which is contrary to the greater weight of the evidence. Furthermore, the witness' testimony relative to this opinion comes closer to being in the nature of "maybe" than being in the nature of, "probably." The ninth, tenth, and eleventh sentences are rejected because they constitute irrelevant subordinate details and because the testimony in this regard was not convincing to the extent it conflicts with the testimony of other witnesses. The last three sentences of this paragraph are rejected as being totally irrelevant to any issue in this case.
Unnumbered paragraph following Paragraph 17: This paragraph is rejected in part because it consists largely of irrelevant or subordinate and unnecessary details, in part because the testimony upon which it is based was not persuasive, and finally, because much of it is contrary to the greater weight of the evidence.
Paragraph 18: The paragraph is rejected as irrelevant and also as in part contrary to the greater weight of the evidence.
Paragraph 19: This paragraph is rejected as irrelevant.
Paragraph 20: The first sentence is rejected as not supported by competent substantial evidence and as contrary to the greater weight of the evidence. The second and third sentences are rejected as irrelevant or subordinate detail.
The last sentence of this paragraph is rejected as irrelevant due to the time of the observations and in part not supported by competent substantial evidence.
Paragraph 21: This paragraph is rejected as irrelevant.
Paragraph 22: All but the penultimate sentence of this paragraph is rejected as irrelevant and subordinate details. The essence of the penultimate sentence has been included in the findings regarding the "pond."
Paragraph 23: This paragraph is rejected. For the most part it consists of irrelevant or subordinate details. To the extent it is consistent with other testimony, it is cumulative. To the extent it is inconsistent with other testimony, it is contrary to the greater weight of the evidence and to a large extent not supported by competent substantial evidence. (It is worthy of note that much of the testimony to which this paragraph relates was substantially discredited on cross-examination.)
Paragraph 24: This paragraph is rejected, primarily because it consists of irrelevant or subordinate details, but also because some of those details are not supported by persuasive competent substantial evidence.
Paragraph 25: This paragraph (including all of its subparts) is rejected as constituting irrelevant and subordinate and unnecessary details.
Paragraph 26: This paragraph is rejected as irrelevant.
Paragraph 27: This paragraph is rejected. Many portions of the paragraph consist of irrelevant or subordinate details. The portions containing opinions are rejected as being contrary to the greater weight of the evidence and as not being wholly supported by competent substantial evidence.
Rulings on Respondent's Proposed Findings With the exceptions specifically noted below, the
substance of all of the findings of fact proposed by the Respondent have been accepted and incorporated into the findings of fact in this Recommended Order.
Paragraphs 3, 4, and 7: These paragraphs are rejected as constituting subordinate and unnecessary details.
Paragraph 6: The portion reading, ". . . except for a more landward relocation around the area identified as 'Gator Cove,' to include more area," is rejected as contrary to the greater weight of the evidence.
Paragraph 8: The portion reading, ". . . except in the area described as Gator Cove," is rejected as contrary to the greater weight of the evidence.
Rulings on Intervenor's Proposed Findings Paragraph 1: Accepted.
Paragraph 2: Accepted in substance, with some unnecessary details deleted.
Paragraph 3: Accepted in substance with the exception second sentence of this paragraph. The second sentence is
rejected as being too narrow and incomplete a statement. The findings in this Recommended Order contain more complete findings regarding the "pond."
Paragraph 4: This paragraph is rejected as constituting subordinate and unnecessary details.
Paragraph 5: Accepted.
Paragraph 6: Accepted.
Paragraph 7: Accepted with the exception of the last sentence of this paragraph, which is rejected as irrelevant or as constituting unnecessary subordinate detail.
Paragraph 8: Accepted.
Paragraph 9: Accepted.
Paragraph 10: Accepted.
Paragraph 11: Accepted.
Paragraph 12: Accepted.
Paragraph 13: Accepted.
Paragraph 14: Accepted.
Paragraph 15: Rejected as irrelevant or as constituting subordinate and unnecessary details.
Paragraph 16: Accepted.
Paragraph 17: Accepted in substance with some unnecessary details deleted.
Paragraph 18: Rejected as constituting primarily subordinate and unnecessary details. this regard it should be noted that Mr. Tyler's opinion that a portion of the jurisdictional line is misplaced has been rejected as contrary to the greater weight of the evidence.)
Paragraph 19: First sentence is accepted. The remainder, although essentially accurate, is rejected as cumulative.
COPIES FURNISHED:
Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048
Bradford L. Thomas, Esquire Assistant General Counsel Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
Frank E. Matthews, Esquire Elizabeth C. Bowman, Esquire HOPPING BOYD GREEN & SAMS
Post Office Box 6526 Tallahassee, Florida 32314
Victoria Tschinkel, Secretary Department of Environmental
Regulation
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL REGULATION
SANTA FE LAKE DWELLERS ASSOCIATION, INC.,
Petitioner,
vs. DOAH CASE NO. 86-1047
OGC CASE NO. 86-0311
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION,
Respondent,
and
SANTA FE PASS, INC.,
Intervenor.
/
FINAL ORDER
On October 27, 1986, the Division of Administrative Hearings' hearing officer who conducted a Section 120.57(1), Florida Statutes, hearing in the above-styled case submitted his Recommended Order to me and all parties. A copy of the Recommended Order is attached as Exhibit A. In accordance with Florida
Administrative Code Rule 17-103.200, all parties were allowed ten days in which to file exceptions to the Recommended Order. Respondent, State of Florida Department of Environmental Regulation (Department), served its exceptions to the Recommended Order on November 13, 1986, but for unknown reasons its exceptions were not filed until November 20, 1986. A copy of the Department exceptions is attached as Exhibit B. On November 4, 1986, Petitioner, Santa Fe Lake Dwellers Association, Inc., filed a Motion for Extension of Time to file exceptions, seeking twenty-one days from the date of that motion to prepare and file its exceptions. By Order dated November 20, 1986, a copy of which is attached as Exhibit C, Petitioner's motion was granted, and it was given until November 26, 1986, to file its exceptions to the Recommended Order. Petitioner then filed exceptions to the Recommended Order on December 1, 1986, a copy of which is attached as Exhibit D. Petitioner also filed a Request for Oral Argument before the Secretary. Intervenor, Santa Fe Pass, Inc., timely filed responses to both the Department's and Petitioner's exceptions, copies of which are attached as Exhibits E and F, respectively. Finally, on December 23, 1986, Petitioner filed a Motion to Remand or for Other Appropriate Relief, a copy of which is attached as Exhibit G. The Recommended Order thereafter came before me as Secretary of the agency for final agency action.
BACKGROUND
This proceeding involves a petition by the Santa Fe Lake Dwellers Association, Inc. (SFLDA), challenging the Department's validation, pursuant to Rule 17-4.022(8), of a 1978 jurisdictional determination on property owned by Intervenor, Santa Fe Pass, Inc. (SFP). Rule 17-4.022(8) allows holders of jurisdictional determinations made by the Department prior to the 1984 revisions to Chapter 403, Florida Statutes, to have those determinations validated so that the jurisdictional rules in effect prior to October 1, 1984, continue to apply to the holder's property.
Two principal issues are presented to me for my review in this case: first, whether the Department properly validated the 1978 jurisdictional given to SFP; and, second, whether the Department properly conducted the jurisdictional determination for which validation was sought.
RULINGS ON EXCEPTIONS
The Recommended Order in this case was mailed to me and all parties by the Hearing Officer on October 27, 1986. Florida Administrative Code Rule 17- 103.200(1) provides that parties have ten days after submittal of a recommended order by a hearing officer to file exceptions with the Department. Filing is defined by Florida Administrative Code Rule 17-103.050 as . . . receipt, during regular business hours, by the Office of General Counsel of the Department in Tallahassee, Florida." Florida Administrative Code Rule 17-103.080 further states that, except for notices of appeal, the time when any act is required to be performed shall be Computed in accordance with the Florida Rules of Civil Procedure. According to Rule 1.090, Florida Rules of Civil Procedure, when a notice prescribes a period of time from date of service to do some act and service is by mail, five days shall be added to the prescribed period.
Neither the Department nor SFLDA timely filed exceptions to the Recommended Order. The Department's exceptions were neither served nor filed until seventeen days after the Recommended Order was submitted to the Department.
Counsel for SFLDA asked for twenty-one days to file his exceptions, his motion
was granted, but the exceptions were not filed until five days after the deadline specified in the Order Granting Extension of Time to File Exceptions. Accordingly, since neither the Department nor SFLDA have timely filed their exceptions, the exceptions are rejected.
RULING ON RECOMMENDED ORDER
The hearing officer found that SFP satisfied all the prerequisites for validation of a jurisdictional determination under Florida Administrative Code Rule 17-4.022(8). The hearing officer therefore ruled that SFP was entitled to validation of its November 13, 1978, jurisdictional in accordance with the provisions of that rule. The hearing officer also concluded, though, that in a proceeding challenging validation of a jurisdictional determination, the accuracy of the determination is not at issue.
The hearing officer's conclusion that the validation of prior jurisdictional determinations is a purely ministerial act is well supported by logic and the language of Rule 17-4.022(8). As the hearing officer notes, whether a prior jurisdictional determination qualifies for validation can easily be determined by examining the jurisdictional determination to see if it meets the four requirements of Rule 17-4.022(8). The hearing officer here examined SFP's submittals and concluded that the jurisdictional determination was qualified for validation under the terms of the rule. I accept the hearing officer's findings that SFP has satisfied the prerequisites for validation of its jurisdictional determination in accordance with Florida Administrative Code Rule 17-4.022(8).
While the hearing officer was correct in ruling that validation was proper, his conclusion that the accuracy of a jurisdictional determination is not appropriately an issue in a validation proceeding is unnecessary. In this case, the Department specifically granted a point of entry to SFLDA on both the issue of the Department's validation of the jurisdictional determination and the issue of the accuracy of the jurisdictional line. As the Recommended Order notes, the parties were in agreement that both issues were properly before the hearing officer. Indeed, the bulk of the testimony at hearing concerned whether the jurisdictional line was correctly located; only a relatively short time was devoted to consideration of the appropriateness of the validation. Since the accuracy of the jurisdictional determination was properly at issue in this case, I need not decide whether challenges to jurisdictional determinations may ordinarily be entertained in validation proceedings. I accordingly reject the hearing officer's discussion of this issue as unnecessary.
(Even though I do not rule on this issue here, I must state my concern about allowing challenges in validation proceedings to long-standing Department jurisdictional determinations upon which persons have justifiably relied in the planning and execution of property development. I will give this matter serious consideration when it is properly brought before me with a record sufficiently developed to allow me to rule on the issue.)
Although he believed the issue irrelevant, the hearing officer considered whether the jurisdictional determination for which validation was sought had been properly conducted. Weighing the conflicting evidence on this issue, the hearing officer specifically concluded that the Department properly located the jurisdictional line in 1978, and Petitioner's claims that the line was misplaced were not well founded. Accordingly, I accept the hearing officer's findings and conclusions that the Department's establishment of the jurisdictional line was correct, and I approve the validation of the 1978 jurisdictional determination.
RULING ON MOTION FOR REMAND
Petitioner has moved for a remand to the hearing officer for consideration of what it claims is newly discovered evidence which is relevant to the issues in this proceeding. The evidence which SFLDA wishes the hearing officer to consider is a report and associated material generated by the Department of Natural Resources relating to location of the ordinary high water line of Lake Santa Fe and the existance of possible illegal fill on SFP's property. At hearing, the hearing officer denied SFLDA's motion to keep the record open to receive such evidence, and after hearing denied SFLDA's motion to reopen the record to consider the very evidence upon which the motion for remand is based.
I agree with the hearing officer that the proffered evidence is not relevant in this proceeding. The scope of this proceeding is to determine whether the Department's 1978 jurisdictional was properly conducted and whether that jurisdictional determination should be validated in accordance with Rule 17-4.022(8). Under the provisions of Chapter 403, Florida Statutes, as it existed in 1978, the location of the ordinary high water line was not relevant to a determination of Department dredge and fill jurisdiction in natural lakes.
Rather, that determination was made by examining dominant lakeside vegetation to see if it appeared on the Department's list of wetlands vegetation in Rule 17-
While the Department may now consider the location of the ordinary high water line in determining its jurisdiction under the amendments to Chapter 403, such was not the case prior to October 1, 1984.
My decision here does not mean, as SFLDA alleges, that consideration of possible filling or illegal alteration of vegetation is not appropriate when determining department jurisdiction. In this case, the hearing officer specifically considered evidence regarding past activities at this site and concluded that the department's jurisdictional line would not have been set any different if those activities had not taken place. My holding here also does not affect any permission that may be required from the Board of Trustees of the Internal Improvement Trust Fund for work in areas which may ultimately be determined to be below the ordinary high water line, but only that a Department dredge and fill permit will not be needed.
Since I have determined that SFLDA's proffered evidence is irrelevant to determination of the issues of these proceedings, I deny its Motion to Remand.
ORDER
Having considered the Recommended Order, the evidence and testimony adduced at hearing, the parties' exceptions and responses thereto, and Petitioner's Motion to Remand, it is, therefore,
ORDERED:
The hearing officer's findings of fact and conclusions of law are adopted in their entirety except as modified by my rulings in this Final Order;
The exceptions filed by Petitioner and the Department are rejected as untimely;
Petitioner's Motion to Remand is denied;
Petitioner's Request for Oral Argument is denied;
The Department's November 13, 1978, jurisdictional determination for Santa Fe Pass is hereby validated in accordance with Florida Administrative Code Rule 17-4.022(8).
Any party to this Order has the right to seek judicial review of the order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the clerk of the DER in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32399-2400 and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within 30 days from the date this order is filed with the clerk of the Department.
DONE AND ORDERED in Tallahassee, Florida, on January 24th, 1987.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DALE TWACHTMANN
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-4805
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a copy of the foregoing FINAL ORDER has been furnished by United State Mail to the following at their respective addresses this 26th day of January, 1987.
Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048
Frank Matthews, Esquire Elizabeth C. Bowman, Esquire Post Office Box 6526 Tallahassee, Florida 32301
Bradford L. Thomas, Esquire Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
DANIEL H. THOMPSON
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Telephone: (904) 488-9730
| Issue Date | Proceedings |
|---|---|
| Oct. 27, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Jan. 24, 1987 | Agency Final Order | |
| Oct. 27, 1986 | Recommended Order | Evidence shows that DER jurisdictional line was properly located pursuant to rules & statutes in effect at that time. |
