STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LUCINDA MACKINLEY, )

)

Petitioner, )

)

vs. ) CASE NO. 86-3619

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

For Petitioner: Terrell K. Arline, Esquire

West Palm Beach, Florida

For Respondent: Karen A. Brodeen, Esquire

Tallahassee, Florida

This matter was heard in West Palm Beach, Florida on January 15, 1987, by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings transcript of the proceedings was filed on May 1, 1987. The parties filed proposed findings of fact and conclusions of law by May 18, 1987. Rulings on proposed findings are made in the Appendix to this Recommended Order.

ISSUE

The Issue in this matter is whether ditching activities of the Palm Peach County Mosquito Control Authority were the sole cause of the introduction of mangroves onto the Petitioner's property. If they were, her property is excluded from the dredge and fill jurisdiction of the Department of Environmental Regulation under section 403.817(2), Florida Statutes (1985). The petition for formal proceedings not only disputed the Department's jurisdiction but also alleged the Petitioner was entitled to a dredge and fill permit because the application met statutory and rule requirements. The contention that the application meets the substantial requirements of the statutes and rules was withdrawn by the Petitioner during the final hearing.

FINDINGS OF FACT

1. On January 29, 1985, Petitioner applied for a dredge and fill permit to fill approximately 1.76 acres of property in the city of Ocean Ridge, Florida, immediately adjacent to the Intracoastal Waterway.

   
   

2. On August 18, 1986, the Department of Environmental Regulation issued notice of its intent to deny the permit. Petitioner requested a formal hearing on the intention to deny the permit.

3. The Petitioner, Lucinda MacKinley, owns several lots on a barrier island in southern Palm Beach County within the city of Ocean Ridge, lots 12, 13, 14, 15 and 16 in block 2 of the Boynton Beach Park subdivision as recorded in the public records of Palm Beach County, Florida. These 5 170' x 100' lots are bordered on the north by Coconut Lane, on the west by the Intracoastal Waterway, and on the south by residential lots fronting on Ocean Avenue and on the east by other lots. The 1.76 acres are presently vegetated with red and black mangroves. This vegetation would ordinarily subject the property to the dredge and permitting jurisdiction of the Department of Environmental Regulation.

   
   

4. The Palm Beach County Mosquito Control Authority began digging ditches on the Petitioner's property in 1954 and has maintained the ditches since that time. Ditches were re-dug as they filled in with material and eroded over time or as the land changed. The ditches were dug by the Authority in low salt marshes and mangrove swamps along the Intracoastal Waterway. By connecting these to the Intracoastal Waterway low lying land can be drained, or tidal action and the introduction of fish and minnows into the area will control mosquitoes. There is now a mosquito control ditch on the southern end of the property which connects to the Intracoastal Waterway in an east-west direction. At high tide, however, water flows over the entire shoreline of the property, inundating the land.

   
   

5. When Petitioner originally purchased the property with her husband in 1958, much of the property was dry and the vegetation included Australian pinetrees in the higher areas, especially along the Intracoastal Waterway.

   
   

6. The most persuasive evidence of the historic vegetation on the site was the testimony of John G. Labie, which was based upon stereoscopic interpretation of aerial photographs of the property taken from the Florida Department of Transportation Topographic Office.

   
   

7. In 1946, there was a bulkhead running along the Intracoastal Waterway which ended to the north of the MacKinley property. The north end of that bulkhead was not tied into the land, however, and there was a wet area between the bulkhead and the land which then provided a foothold for a small stand of young mangroves. There were mosquito control ditches north of the property running east to west. At that time there were Australian pine trees growing on the western border of the property on the Intracoastal Waterway.

   
   

8. Seven years later in 1953, mangroves had encroached eastward along the mosquito control ditches north of the MacKinley property. At the northern terminus of the bulkhead, there was a much larger mangrove encroachment than there had been in 1946 and more water behind the bulkhead. The mangroves had also grown south along the bulkhead to the extent that the predominant vegetation on the MacKinley property was mangroves.

   
   

9. The earliest ditching on the property shown by records of the Mosquito Control Authority occurred in 1954. There was photographic evidence of mosquito ditching completed some time before a 1956 aerial photograph, because there were ditches but no visible spoil piles from ditching in the photo. The mangroves on the property were 15-18 feet high in 1956.

   
   

10. By 1964, the bulkhead along the Intracoastal Waterway had been removed and the shoreline of the Waterway had eroded. That shoreline had a white, sandy beach, indicating that vegetation had not had time to establish itself since the removal of the bulkhead. There was also indication of mosquito ditching having

    recently been done on the property, but the ditches were not dug in the same places as they had been dug in 1956. Mangroves were still the predominant vegetation.

    
    

11. By 1968, the bulkhead which had been removed had not been replaced, and there was further erosion of the property bordering the Intracoastal Waterway. The beach was no longer white and sandy because the vegetation had taken hold. Mangroves on the property remained the predominant vegetation.

    
    

12. The mosquito ditching, which began on the property in 1954, was not the sole cause for the introduction of mangroves onto the property. There were mangroves in 1946 in the area, just north of the MacKinley property, which reached the property by 1953. This photographic evidence is consistent with the more general testimony of Allen Steiner, the assistant director of the Palm Beach County Mosquito Control Authority, that while mosquito control ditches can cause the introduction of mangroves onto property by seeds coming up in the ditches, in most areas, the mangrove swamps were there before the Mosquito Control Authority began its ditching activities (Tr. 189).

    
    

13. The property is covered with red and black mangroves today, and is subject to tidal inundation by the Intracoastal Waterway to the extent that there are only a few Australian pine trees left on the highest areas of the property.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over this matter pursuant to Section 120.57(1), Florida Statutes (1905).

    
    

15. The Department of Environmental Regulation has jurisdiction over proposed filling activities on the MacKinley property under Chapter 403, Florida Statutes (1985), and Chapter 17-4, Florida Administrative Code, based on two (2) separate grounds:

    
    

    1. Under Section 403.913(1), Florida Statutes (1955), there is jurisdiction over activities involving the dredging of filling of surface waters of the state. Tidal exchange between the lntracoastal Waterway and the MacKinley property Indicates that the tidally influenced portion of Petitioner's property is subject to the jurisdiction of the Department of Environmental Regulation.

       
       

    2. Under Section 403.913(3), Florida Statutes (1955), and Chapter 17- 4, Florida Administrative Code, the Department of Environmental Regulation has jurisdiction over areas where the dominant vegetation is mangroves.

       
       

16. Although Ms. MacKinley filed an application for a dredge and fill permit and challenged the proposed denial of that permit, the only issue at the hearing was whether the property is within the jurisdiction of the Department of Environmental Regulation. The issue whether the proposal made, on the merits, met applicable regulatory requirements was withdrawn during the hearing.

    
    

17. The insect control exemption found in Section 403.817(2), Florida Statutes (1955), is equitable in nature. It applies to land where the vegetational character has changed from non-jurisdictional to jurisdictional species solely due to governmental activities to control insects. The statutes states:

    In order to accomplish the legisla- tive 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 regula- tory 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 area shall be by dominant species. However, no land owner 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 under- taken 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, the lands shall not be subject to permitting requirements for the discharge of dredge or fill material.

    
    

18. This exemption has three elements:

    
    

    1. The land was not originally predominantly vegetated by plants or did not have soils characteristic of areas subject to regular and periodic inundation;

       
       

    2. The change in vegetation was caused solely by insect control activities on the land owner's property; and

       
       

    3. The insect control activities were conducted pursuant to a governmental mosquito control program.

    
    

19. The evidence here shows that the first ditching activity of the Palm Beach County Mosquito Control Authority was done in 1954. At that time, the vegetation of the property was already predominantly mangroves. That the property might have been uplands or predominantly vegetated by some other plant species before 1954 (when the ditching activities began) , is not significant.

    
    

20. The exemption element that requires the change in vegetation to be caused solely by insect control activities is a strict one. The introduction of jurisdictional species from a source other than insect control activities defeats the exemption. Here, the intrusion of mangroves from the north behind the bulkhead separating the land from the Intracoastal Waterway and onto Petitionerts property defeats her exemption.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED:

That the application of Ms. Lucinda MacKinley for exemption from the dredge and fill permitting requirements of the Department of Environmental Regulation on the grounds that her land has become subject to regulation by the Department solely due to insect control activities DENIED.

DONE AND ORDERED this 20th day of July, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 20th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3619

The following constitute my rulings on the p'oposed findings of the parties are required by Section 120.59(2), Florida Statutes (1985).

Rulings on Proposed Findindgs of Fact Submitted by Petitioner

1. Covered in Findings of Fact 1 and 3.

2. Generally covered in Findings of Fact 4 and 12, insofar as they indicate there are mosquito control ditches on the property now. The remainder is rejected as unnecessary.

3. Generally covered in Finding of Fact 4.

4. Rejected as unecessary.

5. The testimony that in 1958 the property was totally vegetated with Australian pinetrees is rejected due to the more persuasive photographic evidence. While there were some Australian pinetrees on the higher points of he property, it was already substantially invaded with mangroves.

6. Rejected because the Palm Beach County Mosquito Control Authority's activities did not introduce mangroves onto the property. They were more likely introduced by the intrusion of mangroves behind the bulkhead to the north of the property.

7. Rejected as unnecessary.

8. Rejected as unnecessary.

9. Rejected as unnecessary.

10. Rejected because the testimony of Mr Labie concerning

    he vegetation on the property from 1946, forward, is the more persuasive.

11. The indication that the property was

    within an area characterized as grasslands in 1927 on a government topographic map is rejected. Those, symbols are meant to characterize much larger areas than Petitioner's 1.7 acres and therefore has little persuasive value. Moreover, the photographic interpretations of Mr. Labie were more persuasive.

12. Rejected as unnecessary.

13. Rejected as unnecessary.

14. Rejected as unnecessary.

15. Rejected as unnecessary, because at high tide the property is inundated along the entire shoreline, not just because of the mosquito control ditch.

16. Rejected because the testimony of Mr. Labie o vegetation was more persuasive.

17. To the extent necessary, covered in Finding of Fact 4.

18. Rejected as unnecessary.

19. Rejected as unnecessary.

20. Rejected because the testimony of Mr. Labie was more presuasive on the source of the mangoves.

21. Rejected as unnecessary.

22. Rejected as unnecessary.

23. Rejected as unnecessary.

24. Rejected as unnecessary.

25. Testimony concerning the bulkhead is covered in Findings of Fact 7-10.

26. Rejected as unnecessary.

27. Covered in Findings of Fact 7-11.

28. Covered in Findings of Fact 7 and 8.

29. Rejected because the mangroves from the north did not arrive at the MacKinley property through mosquito control ditches but through the foothold established because the bulkhead was not tied back to the land, permitting the intrusion of mangroves behind the bulkhead from north to south to the MacKinley property.

30. Rejected as unnecessary.

31. Rejected as unnecessary.

32. Rejected as unnecessary.

33. Rejected as inconsistent with the view of the evioence expressed in the Findings of Fact.

Rulings on Proposed Findinos of Fact submitted by Respondent

1. Covered in Findings of Fact 1 and 3.

2. Covered in Finding of Fact 1.

3. Covered in Finding of Fact 4.

4. To the extent necessary, covered in Finding of Fact 3.

5. Rejected as unnecessary.

6. First sentence, rejected as unnecessary. Second sentence, covered in Finding of Fact 4.

Rejected as unnecessary.

1. Rejected as unnecessary.

2. Covered in Finding of Fact 3.

3. Rejected as unnecessary.

4. Rejected as unnecessary.

5. Covered in Findings of Fact 1-9.

6. Rejected as unnecessary because the more likely method of transport was encroachment from the north, although floating seeds from the Boynton Beach inlet construction could have been a source of mangroves.

7. Covered in Findings of Fact 7 and 8.

8. Covered in Findings of Fact 9 and 10.

9. The purpose of mosquito ditching is covered in Finding of Fact 4. The remainder of the proposal is rejected as unnecessary.

10. Covered in Finding of Fact 12.

COPIES FURNISHED:

Terrell K. Arline, Esquire

325 Clematis Street Suite B

West Palm Beach, Florida 33401

Karen A. Brodeen, Esquire Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Dale Twachtmann, Secretary Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel E. Thompson, General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400

Docket for Case No: 86-003619

Orders for Case No: 86-003619