STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COUNTY COMMISSIONERS ) OF ST. JOHNS COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3970

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

)

RECOMMENDED ORDER

On August 26, 1993, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel J. Bosanko, Esquire

Assistant County Attorney St. Johns County

Post Office Box 1533

St. Augustine, Florida 32085-1533

For Respondent: Edwin A. Steinmeyer, Esquire

Barrie J. Sawyer, Esquire Assistant General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent, the Department of Environmental Regulation (DEP), should prohibit the driving of motor vehicles on the beaches on the Atlantic Ocean beaches in St. Johns County that are within the Guana River Marsh Aquatic Preserve (the Preserve).

PRELIMINARY STATEMENT

On July 8, 1993, the Petitioner, St. Johns County (the County) filed two proceedings at the Division of Administrative Hearings: (1) a "Section 120.535(2), Florida Statutes, Petition to Invalidate an Agency Policy Statement on the Grounds that it has not been Adopted as a Rule in Accordance with Section 120.54, Florida Statutes"; and (2) a "Section 120.56, Florida Statutes, Petition to Invalidate Portions of Rule 16D-2.002 Florida Administrative Code in that they are an Invalid Exercise of Delegated Authority in Relation to St. Johns

County." The former was given Case No. 93-3842RU, and the latter was given Case No. 93-3875RX. Both were assigned to the undersigned hearing officer on July 15, 1993.

At the same time, the County filed with the Department of Environmental Protection a "Petition Challenging the Validity of Agency Action and Request for Formal Proceedings pursuant to Section 120.57(1), Florida Statutes."

A prehearing conference was conducted by conference telephone call on July 21, 1993. The parties advised that the Section 120.57(1) petition was in the process of being referred to the Division of Administrative Hearings and requested that all three cases be consolidated for final hearing on August 26- 27, 1993, at the Division of Administrative Hearings in Tallahassee. (The Section 120.57(1) case was referred later on July 21, 1993, and was given Division of Administrative Hearings Case No. 93-3970.) The parties' request was granted by entry of an Order Consolidating Cases, a Notice of Hearing, and a Prehearing Order (requiring prehearing conferences and a prehearing stipulation.)

On August 13, 1993, the County filed a "Section 120.54, Florida Statutes, Petition Challenging Proposed Amendment to Rule 18-20.004 Florida Administrative Code as an Invalid Exercise of Delegated Authority." The proposed amendment incorporated by reference the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), including the prohibition against driving on the Atlantic Ocean beaches in the Preserve. The proposed rule challenge also was assigned to the undersigned hearing officer and was given DOAH Case No. 93-4533RP.

Unopposed motions for leave to amend the petitions in the other cases, and an unopposed Motion to Consolidate Case No. 93-4533RP with the other cases, also were filed on August 13, 1993. On August 17, 1993, an Order Consolidating Cases and Granting Leave to Amend Petitions was entered.

On August 23, 1993, the County filed second motions for leave to amend its petitions in Case Nos. 93-4533RP and 93-3970. On the record of the final hearing, DEP stated that it had no objection, and the motions were granted.

On August 24, 1993, the County filed a voluntary dismissal of its petition in Case No. 93-3842RU. The dismissal was based on the DEP's assurance that it was proceeding with the proposed rule amendment challenged in Case No. 93-4533RP and that it would not enforce the provisions of the proposed amendment to F.A.C. Rule 18-20.004 to prohibit driving on the Atlantic Ocean beaches in the Preserve until the resolution of Case No. 93-4533RP.

At the final hearing, the parties had Joint Exhibits 1 and 2 admitted in evidence. Without objection, the County also had Petitioner's Exhibits 1 through 6 admitted in evidence. (Petitioner's Exhibit 2 was a videotape depicting a drive along the beach in question, which was viewed during the hearing.) Without objection, the DEP had Respondent's Exhibits 1 and 3 through

5 admitted in evidence. (Respondent's Exhibit 2 was not identified. It related to Case No. 93-3842RU, which was dismissed.) The County called three witnesses, and the DEP called one.

At the end of the presentation of the evidence, the parties ordered the preparation of a transcript of the final hearing and requested 20 days from the filing of the transcript in which to file proposed orders. The transcript was filed on September 9, making the proposed orders due by September 29, 1993.

Explicit rulings on the proposed findings of fact contained in the parties' proposed recommended orders may be found in the attached Appendix to Recommended Order, Case No. 93-3970.

FINDINGS OF FACT

1. The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned property. Title is held by the Board of Trustees of the Internal Improvement Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns County.

   
   

2. Within the boundaries of the Preserve is included the Guana River State Park (the Park). It, too, is state-owned. It is managed and operated by the Division of Recreation and Parks (the DRP) of the Department of Environmental Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are included within the boundaries of the Park.

   
   

3. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in the Preserve is the area of the beach between mean high water and mean low water. The mean high water line is essentially the landward extent of the ocean at mean high tide; the mean low water line is essentially the landward extent of the ocean at mean low tide. When the tide is low, this entire area of the beach is exposed. It remains wet and, generally, relatively hard-packed during the time it is exposed. However, there are beds of "red shell" in this part of the beach that are softer. In the summer, this part of the beach averages approximately 50 feet in width. In the winter, when the waves and tides generally are higher, it is narrower.

   
   

4. In the Preserve, the mean high water line usually is indicated both by debris washed up during the highest tides and left on the beach and by a "shelf." This "shelf," made by the erosive action of the ocean waves during the highest tides and during storms, rises at an angle of approximately 45 degrees and can be from one to four or five feet high. Landward of this shelf is the "dry sand" or "soft sand" beach, also sometimes referred to as the "upper beach." It extends landward from the mean high water line to the vegetation line, where the dunes start. Usually, some pioneer vegetation is found in the uppermost reaches of this part of the beach, forming what is called the "foredune" area of the beach.

   
   

5. The tides along the Atlantic Ocean beaches in the Preserve are semi- diurnal, i.e., there usually are two high tides and two low tides a day. These high and low tides last approximately one hour, and each day they occur approximately an hour later than they did the day before.

   
   

6. There are five beach access points with motor vehicle parking areas located along U.S. Highway A1A within the Preserve. Three are within the Park. There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five parking areas. There also is a current proposal for the addition of three more access points in the Park, with parking for a total of 340 vehicles, five beach bathhouses, and five pedestrian overpasses.

   
   

7. There are many other places where pedestrians can walk from A1A to the beaches, including 30 County-controlled access points. But there are no lawful parking areas adjacent to any of these other access points at this time, and parking on the right-of-way of A1A is prohibited.

8. Currently, the only lawful motor vehicle access to the Atlantic Ocean beaches in the Preserve is to the south of the Preserve. Prior to the agency action challenged in these proceedings, motor vehicles lawfully could be driven onto the beach at this access point and be driven north into the Preserve, so long as they remained below the mean high water line. A former access near the north end of the Preserve has been cordoned off. To leave the Preserve, motor vehicles would have to be turned around and driven back south to the same motor vehicle access point.

   
   

9. Due to the restricted access to the Atlantic Ocean beaches in the Preserve, not much use is made of those beaches. In comparison, beaches to the south are used much more heavily. Of the relatively few who use the motor vehicle access to the south and drive on the beach north through the Preserve, some ultimately use the beaches to picnic, swim, surf, beach-comb and similar activities; some probably just drive on the beach. There was no evidence quantifying the uses currently being made of the beaches in the Preserve.

   
   

10. In the past, homemade motor vehicles called "skeeters" were built with a light-weight chassis and over-sized wheels. They were used for driving on both the hard and soft areas of the beaches, as well as illegally in the dunes. This practice has been curtailed due to better enforcement of the prohibitions against driving in the dunes, a generally heightened environmental consciousness among the public, and prohibitions against driving the "skeeters" on public highways. Generally, there has been less driving on the beaches of the Preserve in recent years, although the practice persists at a reduced level.

    
    

11. At all times of the year, it sometimes is impossible to drive along the entire length of the beaches in the Preserve without driving on the soft sand area. This is especially true during the winter months when the waves and tides are higher and storms are more frequent. But even in the summer months, there are times when "red shell beds" in the "wet sand" part of the beach must be circumvented to avoid getting stuck. Especially when the tide is not at its lowest, the only way to avoid some of these "red shell" beds is to drive over the "shelf" and onto the "soft sand." Depending on the tides, this may also be necessary in order to turn a vehicle around on the beach. In many places, the "soft sand" area is not very wide, and it would be necessary under those circumstances to drive in the "foredune" area.

    
    

12. The times of the daily high and low tides can be obtained relatively easily by members of the public. But there is no assurance that all persons who would drive on the beaches would know the times of the tides. Nor is there any assurance that persons who drive the "wet sand" or "hard sand" part of the beaches at low tide also would plan to both start their beach drive and their return trip during low enough tides to be able to avoid driving on the "soft sand" part of the beach. For these and other reasons, it would be difficult, if not practically impossible, to effectively monitor beach driving throughout the Preserve and consistently enforce a restriction to driving only on the "wet sand" or "hard sand" areas of the beach.

    
    

13. In the summer months, sea turtles lay eggs in nests dug in the sand of the foredune and dune areas of the Atlantic Ocean beaches in the Preserve.

    After a period of incubation in the nests, the turtle hatchlings dig themselves out of the nests and crawl to the ocean to begin their lives in the sea.

    Driving motor vehicles over nests on those parts of the beaches in the summer months could crush eggs in their nests or pack the sand hard enough to reduce the number of hatchlings that emerge from the nest alive. In addition, driving

    motor vehicles in these area, even in other parts of the year, can leave ruts in the beach that disorient hatchlings that leave the nests in summer so that fewer reach the ocean alive.

    
    

14. Sea turtles crawl out of the ocean to their nest sites at night. Artificial lighting can disturb their nesting and egg-laying activities. However, it seems that moving lights, or lights that turn on and off (in the manner of car lights), create more of a disturbance than stationary lights, such as those more often found at residences along the beaches in the Preserve. The Management Plan does not prohibit artificial lighting along the beaches in the Preserve, but it recommends that further attention be given to this problem and that ways to address the problem be explored and pursued in cooperation with the County.

    
    

15. Various shore birds, including the threatened least tern, make their nests in the foredune area of the beaches in the Preserve. Driving on the foredunes destroys and disturbs nesting habitat and disturbs the nesting activities of these birds. In addition, both these ground nesting shore birds and a variety of migratory birds make use of different areas of the beaches to rest and feed. Driving on the beaches disturbs these activities, as well. The only known nesting colony of least terns in St. Johns County is located in the Park, where beach driving is prohibited.

    
    

16. The Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to prohibit driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park. At least parts of the beaches in the Park have been posted as areas where driving motor vehicles is prohibited.

    
    

17. In order to develop a management plan for the Preserve, the manager of the Preserve personally researched the geology, climate and natural resources of the Preserve, as well as the records of the County, and also collected data pertaining to the Preserve from several state agencies. Over the course of a year, the manager's input was taken into consideration, and a management plan, called the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), was developed for the Preserve. It was adopted by the Board of Trustees of the Internal Improvement Trust Fund on December 17, 1991.

    
    

18. The Management Plan recites in pertinent part:

    
    

    At the present time, motorized vehicular traffic is permitted, by county ordinance, below the natural vegetation line on the beaches adjacent to the Atlantic Ocean in St. Johns County. Vehicles are not allowed on the 4.2 miles of beach within Guana River State Park. The coarse coquina sand and steep profiles of the beaches in the preserve make driving on the wet sand area difficult. Drivers are forced to cross the dry sand area, damaging the foredunes, pioneer dune vegetation and sea turtle nesting habitat.

    Due to the negative environmental impacts resulting from this activity, motorized vehicular traffic shall not be considered an authorized activity on sovereign submerged

    lands within [Prime Resource Protection Area] PRPA beach management areas of the preserve, and therefore will be prohibited.

    
    

    Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are Prime Resource Protection Area, and the driving of motorized vehicles on them is prohibited.

    
    

19. On June 11, 1993, the DEP's DRP sent St. Johns County a letter advising that, based on the Management Plan, DEP no longer would permit the driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or about August 18, 1993, the DEP agreed not to enforce the beach driving prohibition in the Preserve until these cases are resolved.

    
    

    CONCLUSIONS OF LAW

    
    

20. F.A.C. Rule 16D-2.002, dealing with vehicles and traffic in state parks, provides in pertinent part:

    
    

    1. Restriction to Roads. No person shall drive any vehicle on any area except designated roads, parking areas, or other such designated areas.

    2. Parking. All vehicles shall be parked only in established parking areas or in such other areas and at such times as the Division may designate.

       
       

       Utilizing this rule, the Division of Parks and Recreation (DPR) of the Department of Environmental Protection (DEP) has prohibited driving or parking motor vehicles on the beaches of the Park by not designating the beaches as driving or parking areas within the Park.

       
       

21. The proposed amendment to F.A.C. Rule 18-20.004, dealing with management policies, standards and criteria for state aquatic preserves, incorporates by reference the Guana River Marsh Aquatic Preserve Management Plan (the Management Plan), including the beach driving prohibition in the Management Plan.

    
    

22. In separate proceedings, under DOAH Case Nos. 93-3875RX and 93-4533RP, the County has challenged the validity of both F.A.C. Rule 16D-2.002(4)-(5) and the proposed amendment to F.A.C. Rule 18-20.004. The County argued three essential grounds for its challenges: (1) the County, not the DEP, has jurisdiction over vehicular traffic on the Atlantic Ocean beaches in St. Johns County; (2) even if the County no longer has jurisdiction over vehicular traffic on the coastal beaches, the DEP's jurisdiction is significantly limited, by Section 258.43(1), Fla. Stat. (1991), "provide regulation of human activities within the preserve in such a manner as not to unreasonably interfere with lawful and traditional public uses of the preserve, such as sport and commercial fishing, boating, and swimming"; and (3) that the prohibition of all beach driving on the beaches in the Preserve and in the Park is overly broad in that a prohibition against driving only during the winter season, or a restriction to driving only at low tide, would have been sufficient to achieve the State's purposes.

23. In a Final Order entered in DOAH Case Nos. 93-3875RX and 93-4533RP on this date, the County's challenges have been denied. First, the Board of Trustees of the Internal Improvement Trust Fund has jurisdiction over the Park and has delegated its jurisdiction to the DEP, and the DRP of the DEP has jurisdiction over the Park; the County no longer has jurisdiction to authorize vehicular traffic on beaches within the Park and within the Preserve. Second, the mention of fishing, boating and swimming in Section 258.43(1), Fla. Stat. (1991), was intended to exclude beach driving, and the prohibition against driving motor vehicles on the beaches in the Preserve does not unreasonably interfere with any lawful and traditional public uses of the Preserve. Finally, a complete prohibition against driving motor vehicles on the beaches in the Preserve and in the Park is not unreasonable or overly broad.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Environmental Protection enter a final order enforcing the prohibitions contained in both F.A.C. Rule

16D-2.002(4)-(5) and the proposed amendment to F.A.C. Rule 18-20.004 against the driving of motor vehicles on the beaches on the Atlantic Ocean beaches in St.

Johns County that are within the Guana River Marsh Aquatic Preserve.

RECOMMENDED this 30th day of November, 1993, in Tallahassee, Florida.

J. LAWRENCE JOHNSTON Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this

30th day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3970

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2.-6. Accepted and incorporated to the extent not subordinate or unnecessary.

7. Subordinate and unnecessary.

8.-9. Accepted and incorporated to the extent not subordinate or unnecessary.

1. First sentence, rejected as not proven. There also is access by boat and, albeit over longer distances, by foot.

2. Accepted and incorporated to the extent not subordinate or unnecessary.

3. Accepted in part and rejected in part, as reflected in the Findings of Fact.

4. Accepted as representative of dead low tide. Subordinate and unnecessary.

5. Accepted and incorporated.

6. Rejected in part: in that there are "red shell beds" in summer, too, and they can force drivers onto the "soft sand" areas in summer, too, depending on the tides; in that "dramatically" is argument and not proven; and in that Exhibit 2 depicts dead low tide in summer.

7. Accepted but subordinate and unnecessary.

8. Rejected as not proven. (Enforcement of such mitigation would be impracticable or impossible.)

9. Accepted but subordinate and unnecessary.

10. Accepted and incorporated.

20.-21. First sentence, accepted and incorporated. Second sentence, accepted that the County uses "due care," but enforcement of a prohibition against driving anywhere except on the "hard sand" is impracticable or impossible.

1. Rejected as not proven.

2. Accepted but subordinate and unnecessary.

3. Rejected as not proven that there is "no way to get to many beach areas" or that limited access "restricts traditional use." (Access as limited, or more limited, is "traditional.")

25.-27. Accepted and incorporated.

1. Rejected as not proven. (How easy it is depends entirely on the tide, the number and location of people on the beach, and the presence of "red shell" beds.)

2. Accepted and incorporated.

Respondent's Proposed Findings of Fact.

1.-3. Accepted and incorporated except to the extent conclusion of law and unnecessary.

1. Accepted and incorporated.

2. Accepted but subordinate and unnecessary.

6.-20. Accepted and incorporated to the extent not concluson of law, subordinate or unnecessary.

21.-24. Rejected as being conclusion of law.

25.-33. Accepted and incorporated to the extent not subordinate or unnecessary.

34. Rejected as conclusion of law as to who is "responsible."

35.-54. Accepted and incorporated to the extent not subordinate or unnecessary.

55. Rejected as not proven. Also, conclusion of law.

COPIES FURNISHED:

Daniel J. Bosanko, Esquire Assistant County Attorney St. Johns County

Post Office Box 1533

St. Augustine, Florida 32085-1533

Edwin A. Steinmeyer, Esquire Barrie J. Sawyer, Esquire Assistant General Counsel

Department of Environmental Protection Mail Station 35

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Kenneth Plante, Esquire General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Environmental Protection written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the Department of Environmental Protection concerning its rules on the deadline for filing exceptions to this Recommended Order.

Docket for Case No: 93-003970

Orders for Case No: 93-003970