STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM B. SWAIM,

vs.

Petitioner,

Case No. 13-4859

SOUTH FLORIDA WATER MANAGEMENT DISTRICT,

Respondent.

/

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings (DOAH), conducted the final hearing on March 4 and 5, 2014, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Amelia Savage, Esquire

Erin Coburn, Esquire Hopping Green & Sams, P.A.

119 South Monroe Street, Suite 300 Tallahassee, Florida 323011/

For Respondent: Douglas MacLaughlin, Esquire

Alison Kelly, Esquire

South Florida Water Management District 3301 Gun Club Road, MSC 1410

West Palm Beach, Florida 33406 STATEMENT OF THE ISSUES

The issues are whether Petitioner has proved that he is entitled to two exemptions from statewide environmental resource permitting: the mosquito control activities exemption set forth

in Florida Administrative Code Rule 62-340.750 and the seawall construction exemption set forth in section 403.813(1)(i), Florida Statutes (2013).

PRELIMINARY STATEMENT

On September 10, 2013, Petitioner filed with Respondent a Request for Verification of an Exemption (Request) from requirements for obtaining a statewide environmental resource permit (SWERP).2/ The Request asks Respondent to verify four SWERP exemptions: 1) maintenance dredging of the Intracoastal Waterway (ICW), as provided by section 403.813(1)(f);

2) activities in wetlands or other surface waters resulting from mosquito control activities, as provided by Florida Administrative Code Rule 62-340.750; 3) seawall construction in an artificially created waterway, as provided by section 403.813(1)(i); and 4) activities with no more than de minimis impacts on the water resources, as provided by section 373.406(6).

By letter dated October 10, 2013, Respondent determined that maintenance dredging of the ICW by the Florida Inland Navigation District (FIND) was exempt from SWERP requirements and that the proposed activities were not exempt as de minimis impacts on the water resources. Petitioner has not challenged these determinations.

In the October 2013 letter, Respondent also determined that the proposed activities did not meet the SWERP exemption for mosquito control activities because Petitioner failed to prove that the site was upland in character prior to the mosquito control activities and became wetlands due to the mosquito control activities. At the hearing, Respondent contended that Petitioner also failed to prove that the mosquito control activities were undertaken as part of a governmental mosquito control program. Although this ground was not mentioned in the October 2013 letter or the Amended Joint Prehearing Stipulation, Petitioner did not object to this additional reason, so it is addressed in this recommended order.

Lastly, in the October 2013 letter, Respondent determined that the proposed seawall did not meet the SWERP exemption for seawall construction because Petitioner failed to prove that the proposed construction would be in an artificially created waterway. The letter states that historic maps indicate that the area in question had been dredged from marsh wetlands. At the hearing, Respondent contended that Petitioner also failed to prove that the construction of the proposed seawall would not violate existing water quality standards or affect flood control. Although these grounds were not mentioned in the October 2013 letter or the Amended Joint Prehearing Stipulation, after some discussion at the hearing, both parties requested the

Administrative Law Judge to address these issues in the recommended order.

In its proposed recommended order, Respondent contends that Petitioner also failed to prove that the construction of the proposed seawall would not impede navigation. This ground was omitted from the October 2013 letter, Amended Joint Prehearing Statement, and hearing. Due to the lack of timely notice to Respondent of this basis for not verifying the Request, the Administrative Law Judge declines to address this issue.

By Amended Petition for Administrative Hearing filed December 2, 2013, Petitioner challenged Respondent's refusal to verify SWERP exemptions based on mosquito control activities and for seawall construction in an artificially created waterway.

Petitioner also raised issues concerning mangrove trimming and whether Respondent's determinations were timely, but did not preserve these issues in the Amended Joint Prehearing Stipulation or attempt to litigate them at the hearing.

At the hearing, Petitioner called three witnesses and offered into evidence 32 exhibits: Petitioner Exhibits 1-32. Respondent called five witnesses and offered into evidence 23 exhibits: Respondent Exhibits 2-8, 10-15, 18-25, 27, and 29. The parties offered Joint Exhibit 1, and the Administrative Law Judge admitted one exhibit as ALJ Exhibit 1, which is Petitioner Exhibit 32 with hand-drawn red lines to mark three ditches. All

exhibits were admitted into evidence except Petitioner Exhibit 8, which was proffered.

The court reporter filed the transcript on March 31, 2014. The parties filed proposed recommended orders by April 15, 2014.

FINDINGS OF FACT

1. The Request, the Property, and Canal Dredging

   
   

   1. The Request

      
      

      1. After filing the Request on September 10, 2013, Petitioner paid the filing fee on October 4, 2013. At this time, Respondent deemed the Request to be complete.3/

      2. In addition to briefly describing the maintenance dredging of the ICW, the Request4/ describes the proposed activities as:

         Construction of approximately 950 feet of batter pile concrete seawall along [ICW] easement line. See drawing for location.

         
         

         Filling of property to approximate elevation

         8.0 with offsite fill.

         
         

      3. Petitioner has since reduced the length of the proposed seawall from 950 feet to about 656 feet. He also testified that the seawall would require 20-30 feet of supportive fill equal in height to, and landward of, the seawall. The record lacks a drawing locating the proposed seawall, but it contains a diagram of a typical profile of the proposed seawall, which is Respondent Exhibit 23. The cap elevation would be six feet "NGVD." Text

         
         

         accompanying the diagram promises the use of turbidity barriers and best management practices during construction.

      4. Finally, the Request describes the following activities in wetlands or other surface waters:

         Because the wetlands are a result of the Mosquito Control District's previous activities and do not affect any other wetlands or surface waters, would make the entire property effectively upland.

         
         

         Dredging. The spoil material is to be removed and deposited on a self-contained, upland spoil site which will prevent the escape of the spoil material into the waters of the state.

         
         

         Seawall. Construction of seawall will not violate any existing water quality standards, impede navigation, or affect flood control.

         
         

   2. The Property

      
      

      1. Petitioner does not own the property to which the Request relates, but has entered into a contract to purchase the property. Among the conditions of the contract is the issuance of permits from various governmental agencies, including Respondent.

      2. The property consists of unimproved land on the west bank of the ICW south of Boynton Beach in Palm Beach County. As described in the contract, the property is "Palm Beach County Property Control Numbers 08-43-45-34-01-0030, 08-43-45-34-01- 0040, and 08-43-45-33-00-000-1390. Described as all of lots 3 and 4 of Rousseau's Subdivision, . . . [c]ontaining approximately

         
         

         7.58 acres."5/ The plat map of Rousseau's Subdivision, which is Respondent Exhibit 21, was originally recorded on June 22, 1901 (1901 plat map),6/ and further describes the eight platted lots on the map as located within the west half of the northwest quarter of Section 34, Township 45 South, Range 43 East, and situated west of the Florida Coast Line Canal and Transportation Company (FCLCTC) canal.

      3. Property Control Numbers 08-43-45-34-01-0030 and 08-43- 45-34-01-0040 are lots 3 and 4 on the 1901 plat map, less the easterly 202 feet of both lots, which is encumbered by a right- of-way easement owned by FIND for the ICW.7/ References to the "Property" will include all of lots 3 and 4, not merely the portions of these lots west of the FIND right-of-way easement, even though, for reasons explained in the preceding endnote, the sales contract is for the conveyance of only the unencumbered portion of the Property. References to the Property will also include the site prior to platting in 1901.

      4. Property Control Number 08-43-45-33-00-000-1390 is an "access parcel" measuring 30-feet by 180-feet that connects the Property with U.S. Route 1 to the west. References to the Property will not include this access parcel.

      5. The eight lots depicted on the 1901 plat map feature roughly equal frontage on the canal. The northern lot line of each lot is longer than the southern lot line of each lot. The

         
         

         northwest corner of the northernmost lot is the northwest corner of the above-mentioned Section 34. As shown on the plat map,8/ the Property's north lot line runs 552.7 feet, and its south lot line runs 450.5 feet, for a total of about 7.1 acres.

      6. The north and south lot lines of each of the eight lots terminate 35 feet west of the centerline of the FCLCTC canal, which is depicted as 70 feet wide. Conveyances by reference to the 1901 plat map would thus not grant any interest, by instrument, to the 35 feet west of the centerline of the FCLCTC canal.

   3. Canal Dredging

      
      

      1. The FCLCTC canal was excavated in the 1890s.

         
         

         Consistent with its depiction on the 1901 plat, the design width of the FCLCTC canal was 70 feet, at least in Palm Beach County, according to the legal description of the land acquired for the FCLCTC canal, which is Petitioner Exhibit 3. However, at least in the vicinity of the Property, the FCLCTC canal did not generally achieve its design width.

      2. According to Petitioner's geologist and wetlands delineator, Michael Czerwinski, the FCLCTC canal was dredged to form the ICW in the 1940s. This may be true. Pre-dredging surveying and engineering materials, which are discussed immediately below, were prepared in the early 1930s, so the dredging did not occur earlier than the mid 1930s. Other

         
         

         evidence suggests that the initial dredging had taken place by May 1941.9/

      3. Mr. Czerwinski testified that the initial dredging of the ICW out of the FCLCTC canal resulted in a waterway that was

         125 feet wide. He also testified that a second dredging of the ICW, also in the 1940s, widened the waterway to 300 feet. This testimony is credited in part. As discussed below, the ICW was initially dredged a little wider than 125 feet, at least at the Property. Later dredging of the ICW produced a 300-foot width in the vicinity of the Property, but not until sometime between 1964 and 2008.10/ At least in the vicinity of the Property, at some point between 1947 and 1964, the ICW was dredged to 200 feet wide. Mr. Czerwinski's testimony can be credited that this intermediate widening took place in the 1940s, although it would have had to have taken place after 1947 due to an aerial photograph described below.11/

      4. A January 1931 survey prepared for FIND, which is Respondent Exhibit 22, shows that the FCLCTC canal was about 40-50 feet wide along the northern three-quarters of the

         Property, but equaled or slightly exceeded its design width of 70 feet along the southern one-quarter of the Property. The survey indicates that this additional width along the southern one- quarter of the Property was achieved by additional dredging along the east bank of the canal.12/

         
         

      5. The 1931 FIND survey locates FIND's 300-foot right-of- way easement,13/ including the above-described 202 feet of this easement encumbering about three acres of the eastern end of the Property. The remaining 28 feet of the 300-foot right-of-way easement14/ encumbers the western end of property along the east bank of the ICW. The east property line of the Property has remained about 656 feet, regardless of whether it was measured along the water's edge prior to the dredging of the ICW or along FIND's right-of-way easement. Obviously, the 202-foot easement reduced the depth of the unencumbered Property to about 350 feet along the north lot line and 248 feet along the south lot line.

      6. The record does not contain any as-built drawings of the initial dredging of the ICW. However, in preparation for the excavation, the U.S. Engineer Office prepared and revised typical cross-sections on January 19, 1932, and May 25, 1933, respectively (1932/1933 Proposed ICW Cross-Sections), which is Petitioner Exhibit 9.

      7. The 1932/1933 Proposed ICW Cross-Sections details conditions at widely spaced profiles. Profile 1500 is about 1000 feet south of the Property and, as discussed below, characteristic of the conditions at the Property.15/ This profile shows a design width at maximum water depth of about 100 feet and a design width at water's surface of about 160 feet.16/ After accounting for the 70 feet of FCLCTC canal, about 90 feet would

         
         

         have had to have been dredged to achieve a total width of 160 feet. Subsequent aerial photography, as discussed immediately below, shows that all later dredging was located on the west bank of the ICW, so the initial dredging took up the 28 feet of the east bank subject to the FIND right-of-way easement,17/ leaving the remaining 62 feet of width to be dredged out of the Property.18/ This initial dredging of the ICW had taken place by the time of the above-mentioned 1947 aerial photograph, which is Respondent Exhibit 13.l, that shows the width of the ICW at the Property as approximately 150-160 feet.

      8. Between 1947 and 1964, FIND widened the ICW at the Property to 200 feet, as reflected by a 1964 aerial photograph, which is Respondent Exhibit 13.p.19/ A comparison of the 1947 and 1964 aerial photographs confirms that the widening to 200 feet was achieved by dredging the ICW's west bank, not east bank. Harmonizing the aerial photographs with Mr. Czerwinski's testimony places the widening to 200 feet in the late 1940s.

      9. After the removal of a total of 100 feet of the Property in two widening projects over ten to fifteen years ending in the late 1940s, a final widening project, between 1964 and 2008, removed another 100 feet of the Property, as reflected in 2011 aerial photography, such as Respondent Exhibit 13.r. The cumulative effect of these three widening projects, which removed

         200 feet of the Property, reduced the depth of the Property by

         
         

         almost half and brought the canal waters 200 feet closer to what remained of the Property.

2. Depictions of the Property and Surrounding Area

   
   

   A. 1800s

   
   

   1. The Property has been depicted on maps, charts, surveys, aerial photographs, and hand-drawn diagrams over a period of nearly 170 years. Certain of these depictions facilitate determinations, over time, of the extent to which the Property may have been wetlands or uplands. However, the weight to be assigned to particular depictions depends on a number of factors, including the scale of the depiction and its purpose.

   2. The earliest depiction of the Property is a quad sheet prepared in 1845 and revised in 1872 by the U.S. Surveyor General's Office (1845/1872 map), which is Respondent Exhibit 5. Covering all of Township 45 South, Range 43 East, west of the Atlantic Ocean, this map captures 24 sections--or 24 square miles. The scale of the map is quite small; the Property is no larger on this map than the size of one of the letters in "Atlantic Ocean." However, the main purpose of this map is to facilitate surveying, and the map documents the meandering of major waterbodies, the location of uplands in the form of "spruce pine scrub," and the location of wetlands in the forms of "inundated marsh" and "marsh."

      
      

   3. The 1845/1872 map depicts the southern terminus of Lake Worth about one and one-half miles north of the Property. The three vegetative communities identified in the preceding paragraph are generally depicted in long, north-south bands: the western band is "inundated marsh" (encompassing a small peninsula of "pineland and palmetto" in the southwest corner of the map), the central band is "spruce pine scrub," and the eastern band is "marsh." As reflected better in a blowup of this map, which is Respondent Exhibit 13.d, the boundary between the "spruce pine scrub" and "marsh" bisects the Property, so that the eastern part of the Property is depicted as wetlands, and the western part of the Property is depicted as uplands.

   4. The next depiction of the Property is the same 1845 quad sheet overlaid by an 1884 U.S. Coast and Geodetic Survey (USCGS) map (1845/1884 map), which is Respondent Exhibit 29. The scale of this map is the same as the previous one, so it is very small. The main purpose of the 1845/1884 map is the same as the 1845/1872 map; the most visible addition to the older map is the location of the corners and midpoints of surveying sections.

   5. But the 1845/1884 map also revises the older map by relocating the boundary between the marsh and the spruce pine scrub in the vicinity of the Property. The newer map moves this boundary several hundred feet to the west, so that the Property now lies entirely within the marsh.

      
      

   6. It is possible that, in the ensuing 12 years, wetlands spread several hundred feet to the west of where the older map had found them, but the record is silent as to major land alterations or storms during this time period. It is also possible that the older map located the wetlands/uplands boundary too far to the east, and the newer map corrected this error. But it is unlikely that the older map depicted the wetlands/uplands boundary accurately, and the newer map changed the boundary so as to depict it inaccurately. Whether documenting changes on the ground or correcting the work of the older map, the newer map is entitled to greater weight in its depiction of wetlands occupying the entire Property prior to the dredging of the FCLCTC canal.

      B. 1920s and 1930s

      
      

   7. The next depiction of the Property derives from aerial photography taken on February 27, 1927, which would be in the dry season. Working from these aerial photographs, in 1930, the USCGS published a vegetative map, which is Petitioner Exhibit 7. Among the purposes of this 1930 map are wetlands/uplands delineations, but this map unfortunately lacks a legend to explain the meaning of the many vegetative communities that it depicts. Additionally, the small scale of the map makes it difficult to read the symbols assigned to the Property.20/ This 1930 map is thus of no use in determining whether wetlands occupied the Property at that time.

      
      

   8. The next depiction of the Property is the 1932/1933 Proposed ICW Cross-Sections, which has been discussed above in connection with canal dredging. As already noted, the 1932/1933 Proposed ICW Cross-Sections displays numbered profiles of the proposed excavated channel following widening. Less than 200 feet south of the southeast corner of the Property is Profile 1510. As already noted, roughly 1000 feet south of the southeast corner of the Property is Profile 1500. About one-half mile north of the northeast corner of the Property is Profile 1550.

   9. Profiles 1500 and 1550 receive more detailed treatments elsewhere in the exhibit. Profile 1500 depicts the material to be excavated on the west side of the ICW as "mud." Profile 1550 depicts the material to be excavated on the west side of the ICW as "mud and sand."

   10. Profile 1500 is a better illustration of pre-excavation conditions at the Property's eastern edge partly because Profile 1500 is closer to the Property than Profile 1550. Additionally, another series of 1932 cross-sections, which is the second page of Petitioner Exhibit 9, reveal that the shape of the area to be excavated at Profile 1510, which is immediately south of the southeast corner of the Property, is almost identical to the shape of the area to be excavated at Profile 1500 and substantially different from the shape of the area to be excavated at Profile 1550. This too suggests that Profile 1500

       
       

       is the better comparable. The notation of mud at Profile 1500 therefore suggests the existence of wet conditions on the eastern end of the Property.

   11. A USCGS map published in 1937 depicts the Property based on surveying done in 1930 and 1935. This small-scale map, which is Petitioner Exhibit 11, is a bathymetric chart of interior navigable waters. Referring to the canal by its new designation as the ICW, the 1937 map, which depicts marsh, but not other types of wetlands, does not indicate the presence of marsh on the Property. Because this map is primarily a navigational chart, rather than a map of vegetative communities, it is impossible to assign it much weight in determining whether the Property was occupied by wetlands or uplands at the time.

   1. 1940s to Present

      
      

      1. Maps

   
   

   1. A USCGS chart published in 1943 of the same area depicted by the 1937 USCGS chart is almost identical to the earlier chart. For the same reasons that applied to the 1937 USCGS chart, the 1943 USCGS chart, which is Petitioner Exhibit 12, is also of little use in determining whether the Property was occupied by wetlands or uplands at the time.

   2. The Property is depicted in somewhat larger scale on a USCGS quad map published in 1945, which is Petitioner Exhibit 13. The map, which depicts land cover primarily in terms of whether

      
      

      it is vegetated, indicates that all of the parcels on the west side of the ICW in Section 34 had been cleared of vegetation except for the Property. Although this 1945 quad generally indicates only whether areas are vegetated, it uses two symbols to indicate, in certain areas, the type of vegetation: one symbol indicates marsh and one symbol is unclear, possibly indicating mangrove. The Property bears neither symbol, but this fact is of little importance because the primary purpose of the 1945 quad map was to indicate the vegetated versus cleared areas, not to delineate wetlands.21/

   3. However, the 1945 quad map reliably reports that the Property is entirely below the five-foot contour, which runs in a north-south direction between U.S. Route 1 and the ICW. South of Lake Worth, the ICW occupies a topographic depression between elevations as great as 35 feet west of U.S. Route 1 and spot elevations as great as 10 feet between the ICW and the Atlantic Ocean. Unaffected by dredging, the location of this five-foot contour illustrates the same slough-like feature south of Lake Worth that was depicted on the 1845/1884 map. The Property's location within this long basin is consistent with wet conditions that would support wetlands.

      2. Field Notes of County Mosquito Control Department

      
      

   4. Field notes of the Palm Beach County Mosquito Control Department from the early 1940s to the late 1960s (Field Notes)

      
      

      provide additional information about the Property.22/ Field Notes, which is Respondent Exhibit 8, contains large-scale, hand- drawn diagrams with carefully prepared measurements. The purpose of Field Notes was to document field work done by a crew, but detailed observations were routinely recorded.

   5. The oldest notes pertaining to the Property are dated May 6, 1941, which is the end of the dry season. At this time, the parcels abutting the Property to the north and south were plant nurseries and may have been since at least 1930.23/ Respondent Exhibit 8, page 54. (Fifteen years later, Field Notes identifies these nurseries as Held's Nursery to the north and Merkle's Nursery to the south. Id. at 10. For ease of

      reference, this recommended order will refer to these parcels by these names at this earlier point in time.)

   6. As of 1941, Field Notes documents a dike running along the entire canal frontage of Held's Nursery. The dike was four feet tall at the base and six feet tall at the top. Id. at 54-

   1. About 470 feet north of the boundary between Held's Nursery and the Property, Field Notes indicates the presence of an existing ditch that was five feet wide and three feet deep; because it had good circulation, no work was done at that time. Id. at 54. Field Notes indicates another ditch with the same dimensions along the boundary between Held's Nursery and the Property; because it had good circulation, no work was done at

      
      

      that time. Id. at 55. The only other notes for Held's Nursery

      
      

      state that workers filled holes throughout the parcel, suggesting that the removal of in-ground nursery stock had left unfilled holes. Id. at 54.

      1. For 1941, Field Notes does not indicate any ditches on the Property, but contains two notations: "elderberries & other wild growth" and "fairly high ground." Id. at 55. Elderberries

         occur on wetlands and uplands, so this observation is not useful. The "fairly high ground" comment is discussed immediately below.

      2. Continuing south, for 1941, Field Notes depicts another ditch at the boundary between the Property and Merkle's Nursery. The ditch runs from the canal to a point about 430 feet west of the canal. From west to east, the ditch is three feet wide and one foot deep, then four feet wide and eighteen inches deep, and, in the final 100 feet to the canal edge, four feet wide and three feet deep. The only other note for Merkle's Nursery is that holes were filled. Id. at 56.

      3. The diagrams on pages 54-56 are linked by north-south stations located at 100-foot intervals along the canal. These stations are drawn roughly to scale. The diagram on page 56 also contains three east-west stations, each referring to the distance west from the edge of the canal: 125 feet, 367 feet, and 522 feet. These stations are not drawn to scale.

         
         

      4. The notation of "fairly high ground" spans the stations that are 367 and 522 feet west of the canal; the comment occurs at a point on the diagram that would be about 200 feet south of the north property line. It is not entirely clear whether this comment is placed on the diagram at the location where the high ground was encountered, or whether it was centered in the space on the page on which the comment was written. The lack of east- west scaling is unsettling. However, the notations and observations in Field Notes appear to have been carefully prepared, so it is more likely than not that the "fairly high ground" comment is written where the crew encountered fairly high ground relative to the east-west stations on the adjoining page of Field Notes.

      5. Because the east-west stations obviously do not run from the western limit of the FIND right-of-way easement, fixing the location of the "fairly high ground" observation requires knowledge of the width of the canal in May 1941.24/ The diagrams identify the canal as the "East Coast Canal," which is another name for the FCLCTC canal. But this reference does not help determine whether the FCLCTC canal had already been widened into the ICW. This is an obsolete reference; as noted in the 1937 USCGS map four years earlier, the proper name of the canal was the ICW, regardless of whether the initial widening had not yet taken place.

         
         

      6. There is no doubt that, at all times, proceeding from east to west, an elevation gain occurred at the property line separating the Property from the parcel to the west. The location of the "fairly high ground" comment would be at this property line, if the first 60 feet of the encumbered Property had already been dredged by May 1941.25/ It makes sense for the "fairly high ground" comment to be located where other evidence establishes higher elevations, so it is found that the dredging of the FCLCTC canal into the ICW had taken place by May 1941.

      7. In May to July 1956, Field Notes indicates that the County work crew cleared ditches on the Property, Held's Nursery to the north, and Merkle's Nursery to the south. Id. at 10.

         These notes include a detailed diagram of the network of ditches on the Property and the two nursery parcels.

      8. From north to south, there is a 628-foot long east-west ditch on Held's Nursery that appears to be the northerly ditch shown in the above-described May 1941 diagram, but the long east- west ditch at the boundary between Held's Nursery and the Property is not shown in the diagram. The 628-foot long ditch runs from the ICW almost to U.S. Route 1, so it spans the platted lot plus nearly all of the parcel adjoining the platted lot to the west.

      9. Near the boundary of Held's Nursery and the Property is a 139-foot east-west ditch that runs toward the ICW from the

         
         

         boundary of the Held's Nursery parcel with the adjoining parcel to the west, but stops at about the mid-point of the Held's Nursery parcel. Three 455-foot long north-south ditches connect the two east-west ditches. The western ditch runs along the property line separating Held's Nursery from the parcel to the west. The central ditch runs about 40 feet to the east of this ditch, and the eastern ditch runs about 105 feet to the east of the center ditch.26/ The eastern ditch is about 300 feet west of the ICW.

      10. The sole connection to the ICW is thus provided by the long east-west ditch that appears to have been in place for at least 15 years. Although the diagram does not so indicate, this ditch likely drains west to east into the ICW. This parcel had been used as a plant nursery since at least 1941, and it had been used as a plant nursery or citrus grove since 1930.27/ The land behind the dike was evidently dry enough to grow in-ground nursery stock, which presumably could not survive inundation by tidal waters. Fifteen years later, although the dike is omitted from the diagram and thus may no longer be present, the parcel was still used as a plant nursery, and this use presumably still required drainage into the ICW, rather than flooding from the

          ICW.

          
          

      11. The diagram likewise fails to indicate the direction of

          
          

          flow of the three north-south ditches. The only other features

          
          

          on the diagram for Held's Nursery are at the property line dividing Held's Nursery from the Property. From U.S. Route 1 almost to the ICW is a shell road, which likely interrupts drainage, but, at a point just east of the property line dividing Held's Nursery from the parcel to the west, a symbol indicates a culvert, which would have permitted stormwater to pass under the shell road.

      12. As confirmed by subsequent aerial photography discussed below,28/ the culvert passed stormwater from Held's Nursery to the Property, which has been vacant since its platting in 1901.

      13. The northern half of the Property has an elaborate network of ditches. The only significant east-west ditch runs about 500 feet through the center of the Property, linking the ICW to a point about in the middle of the parcel to the west of the Property; about 186 feet of this ditch is in the parcel to the west. Four north-south ditches drain into this long central ditch. The longest is about 207 feet and runs from the above- mentioned culvert. Eighty-one feet east of this ditch is a

          100-foot ditch that terminates south of the shell road dividing Held's Nursery from the Property. Twenty-two feet east of this ditch is a 170-foot ditch that terminates at the shell road, and

          22 feet east of this ditch is another 170-foot ditch that also terminates at the shell road. The only ditch in the southern half of the Property is slightly offset from the 207-foot north-

          
          

          south ditch and runs 100 feet along the property line dividing the Property from the parcel to the west.

      14. At the property line dividing the Property from Merkle's Nursery is another shell road. Along this boundary, about in the middle, is a pump station on the Property, but it is unconnected to the ditch network, and it is impossible to determine the purpose of the pump. The diagram does not show a culvert in this shell road.

      15. The diagram indicates one major east-west ditch on Merkle's Nursery totaling about 450 feet, connecting to the ICW, and terminating near U.S. Route 1. This ditch is in the middle of Merkle's Nursery. Along the north side of Merkle's Nursery is a 190-foot ditch running from the ICW to a point just east of the west property line of the platted lot. Two ditches averaging 110 feet run into the longer east-west ditch; the east ditch terminates at the 190-foot ditch.

      16. Field Notes does not reveal who constructed the ditches on the Property between 1941 and 1956. But, as Petitioner contends, it is a fair inference that they were dug by the County work crew. The Property was undeveloped wetlands, so there is little reason for the owner to try to drain the Property. Nor is there any reason for the owner of Held's Nursery to install on the Property a network of ditches downstream of the culvert. The only party with any interest in the drainage in the area was the

          
          

          County in its effort to control mosquitoes by overdraining wet

          
          

          land.

          
          

      17. But two other contentions of Respondent connected to

          
          

          Field Notes fail. First, as discussed above, Field Notes fails to prove that any portion of the Property was uplands. Second, Field Notes fails to prove that the ditches on the Property converted uplands to wetlands, or that the County constructed and maintained the ditches on the Property to control mosquitoes through flooding or impoundment, rather than drainage of standing water into the ICW.

          3. Aerial Photography: 1940s-1960s

          
          

      18. From the 1940s, aerial photography of the Property became more routine, but problems in resolution sometimes prevent using the aerial photographs to determine the vegetative communities on the Property. Aerial photographs taken in 1940 suggest the presence of herbaceous vegetation throughout the Property with some woody vegetation at the western end of the Property. But the poor resolution of this photography prevents any finding of whether the depicted vegetation was indicative of wetlands or uplands on the Property.

      19. In March 1947, an aerial photograph, which is Petitioner Exhibit 18 and Respondent Exhibit 14, provides much better resolution. To the west of the Property is scrubby habitat, which features sandy soil. This area drains across the

          
          

          Property and into the ICW. An herbaceous salt marsh is more clearly visible on the Property. This photograph reveals wetlands on the Property where the Held's Nursery ditch flows through the culvert. The 1947 aerial photograph thus confirms that the Property was receiving runoff from at least two directions: the north and the west.

      20. Mr. Czerwinski testified that he found evidence of mangroves starting to take hold of the eastern end of the Property. This testimony is credited, although there is some dispute on this point.

      21. There is no dispute that two aerial photographs taken in 1953 reveal that mangroves have established themselves on the eastern half of the Property. The mangroves are dense and appear to be flourishing. By 1964, an aerial photograph shows that the mangroves have extended over the eastern two-thirds of the Property.

3. Current Conditions

   
   

   1. The Property currently hosts a robust mangrove forest with red mangroves transitioning to black mangroves, progressing from east to west. At low tide, seagrasses emerge, interspersed among the mangroves. Some elderberry occur at the western end of the Property, which is free of nuisance exotic vegetation.

   2. The predominant soil is Kesson mucky sand, tidal classification. At low tide, the groundwater, which, rising and

      
      

      falling with the tide, maintains an elevation at least equal to the tidal waters of the nearby ICW and is within 6-8 inches of grade at the western end of the Property and at or above grade over the remainder of the Property. At high tide, the Property is inundated. The ICW is a class III water.

   3. According to LIDAR data from 2007-08, the average elevation of the Property is one foot NAVD88. The LIDAR data confirms a vestige of the old central ditch running from near the west property line to the ICW, evidently capturing stormwater from a depression, possibly a small stormwater retention facility, alongside U.S. Route 1. At present, this depression hydrates the mangroves by conveying freshwater from west to east and tidal water from east to west, depending, of course, on the tides and stormwater flows. The LIDAR data also confirms an abrupt loss of elevation just inside the north, west, and south property lines of the Property. Over relatively short distances, elevations drop as much as seven feet as one enters the Property from these adjoining parcels.

   4. The historic elevation of the Property is implicitly addressed in a letter sent to Petitioner dated November 20, 2013, from Rod A. Maddox, Chief, Bureau of Survey and Mapping, Division of State Lands. The letter states: "Our records indicate that the [ICW] was dredged from uplands at the subject site.

      
      

      Therefore, we recommend the proprietary requirements that would normally apply to state owned lands not apply to this site."

   5. By email dated November 26, 2013, to Petitioner, Chief Maddox clarified that the meaning of "uplands" in his letter is not the meaning assigned to uplands by the regulatory requirements of SWERP. As Chief Maddox used the term, "uplands" means only that the dredged site was above mean high water.

   6. Respondent's Geographer IV of its Survey and Mapping Section, Robert Schaffer, testified that the 1932/1933 Proposed ICW Cross-Sections identifies seven elevations for the Property along the west bank.29/ These elevations range from 3.3 feet to

      5.3 feet above mean low water. According to the 1945 USCGS quad map, the average tidal range in the area was approximately three feet, so Chief Maddox was right, by the smallest of margins: none of the seven elevations was below mean high water, although the minimum freeboard at the canal's edge at mean high tide was less than four inches.

   7. Mr. Schaffer also determined that the average of these seven elevations along the west bank is about the same as the average 2007-08 LIDAR elevation of 1.0 foot NAVD88. Mr. Schaffer roughly averaged the seven elevations at 4.0 feet above mean low water. The actual average calculated by adding the seven values and dividing by 7 is 4.3 feet above mean low water.

      
      

   8. Mean low water was -1.2 feet NGVD29, so an elevation of

   
   

   4.0 feet above mean low water would be 2.8 feet NGVD29, and an elevation of 4.3 feet above mean low water would be 3.1 feet NGVD29. In Palm Beach County, NAVD88 is about 1.5 feet lower than NGVD29, so the average of the west bank elevations was about

   1.3 feet, according to Mr. Shaffer's average, or 1.6 feet NAVD88, according to the actual average. Thus, in the early 1930s, the west bank was about six inches higher than the average elevation of the entire unencumbered Property in 2007-08.

4. Analysis

   
   

   1. Mosquito Control Activities Exemption

      
      

      1. Property Was Not Uplands Prior to Ditching

         
         

         1. The greater weight of the evidence establishes that the Property was wetlands from the earliest records. Originally a freshwater marsh, probably consisting of sawgrass, the Property evolved into a saltwater marsh due to the dredging of the FCLCTC canal and perhaps the opening of the Boynton Inlet. The opening of the inlet definitely facilitated the transport of the necessary seed material to allow the saltwater marsh to evolve into a mangrove forest. The major sources of hydration before the dredging of the FCLCTC canal were the slough-like depression south of Lake Worth that the Property occupied and stormwater runoff from the west.

            
            

         2. In the 1940s, the major sources of hydration included stormwater runoff from the west, but also tidal waters diverted by the dike on Held's Nursery and groundwater effects from the removal of 100 feet of the Property and the relocation of now 200-foot wide ICW 100 feet closer to what remained of the Property. By the mid 1950s, but possibly also as of the late 1940s, the major drivers of hydrology included all of those set forth in the preceding sentence, except possibly the dike, and two more: stormwater runoff through the culvert separating Held's Nursery from the Property and the central ditch. Although, as noted above, the effect of the central ditch at present is to convey stormwater from the west and tidal waters from the east, its effect 60 years ago presumably served its

            intended purpose: overdrain the Property and effectively tend to make it drier.

         3. At the very least, though, these supplemental drivers of hydrology dispel any likelihood that, originally wetlands, the Property may have reverted to uplands at some point after the dredging of the FCLCTC canal and prior to the digging of the central ditch.

            2. Even if Property Had Been Uplands Prior to Ditching, Petitioner Failed to Prove that Ditching Converted Property to Wetlands

            
            

         4. Claiming that the Property was uplands, Petitioner argued that the County's mosquito control activities--in the form

            
            

            of building ditches on the Property--converted the uplands to wetlands. The findings that the Property was originally and continuously wetlands dispose of this contention, but, even if Petitioner had proved that the Property was uplands immediately before the construction of the central ditch, he failed to prove that the central ditch, which was the sole connection to the ICW, resulted in the inundation of the Property by tidal waters and the conversion of the Property from uplands to wetlands.

         5. In contrast to the wetlands determinations, for which ample data is available and little analysis is necessary, the complexity of hydrological functions and the inattention to these functions in the record preclude any finding as to exactly how the Property may have become wetter over the years. The Property is very wet today, possibly wetter than it has been in the past, but Petitioner has failed to prove that the central ditch is the predominant driver of the hydrology of the Property today or was in the period immediately preceding the arrival of the mangroves on the Property in the late 1940s.

         6. Petitioner proved the County dug the ditches on the Property between 1941 and 1956. The mangroves colonized the Property in the late 1940s and early 1950s. Ignoring the possibility that the mangroves preceded the central ditch, Petitioner's proof pretty much stops right here.

            
            

         7. Petitioner never offered any analysis of how the central ditch could have raised water levels on the Property or extended the periods of relatively high waters on the Property. This would have been a complicated undertaking due to the presence of other drivers of hydrology. Among other things, Petitioner would have had to explain how the central ditch, immediately upon its construction, failed of its intended purpose, which was to overdrain the Property.

         8. Originally, the Property was wet due to its location in the long slough south of Lake Worth and stormwater flows from the west. After the dredging of the ICW to a 200-foot width, by the late 1940s, the Property was wet due to the groundwater effect of the removal of 100 feet of the Property and relocation of the canal waters 100 feet closer to the remainder of the unencumbered Property, stormwater flows from the west, and tidal waters diverted by the Held's Nursery dike.

         9. By the mid 1950s, the dike may have been removed, but stormwater flows from the west and the groundwater effect of the twice-widened canal continued to hydrate the Property. By this point, and possibly as far back as the late 1940s, two more factors needed to be accounted for: stormwater flows from the north through the culvert and--Petitioner's driver of choice--the central ditch.

            
            

         10. Today, the vestige of the central ditch appears to perform one of the functions suggested by Petitioner: conveying tidal water onto the Property at high tide. But it appears still capable of conveying stormwater from the north and west across the Property and into the ICW, canal water levels permitting. In doing so, the ditch now may flush the mangroves with cycles of freshwater and saltwater and transport nutrients to the mangroves. But, even today, other major drivers of hydrology are at work. These include stormwater contributions from the west, which now includes great expanses of impervious surface replacing the nurseries that were present decades earlier and an apparent retention facility along U.S. Route 1; the above-described groundwater effects, reinforced further by the widening of the ICW by another 100 feet, all out of the Property; and even the construction of surrounding seawalls, effectively replacing the dike along Held's Nursery 70 years ago.

         11. It would have been a daunting task to assign values to these various drivers of hydrology over various points in time; perhaps this is why Petitioner did not undertake it. But ultimately Petitioner fails for two reasons: 1) even if the central ditch were present when the mangroves appeared in the late 1940s and early 1950s, so were many other drivers of hydrology, and there is absolutely no reason to doubt that, initially at least, the central ditch tended to make the Property

             
             

             drier, not wetter; and 2) even today, the central ditch is not the sole or even predominant driver of the hydrology of the Property.

             3. Even if Property Had Been Uplands Prior to Ditching and Ditching Had Converted Property to Wetlands, Petitioner Failed to Prove that Ditching Converted Entire Property to Wetlands

             
             

         12. Petitioner's proof falls short in another important respect. Even if the Property had been uplands up to the point when the County constructed the central ditch and even if the central ditch, alone, introduced tidal waters onto the Property, Petitioner never proved that the tidal waters overtopped the central ditch and other ditches connected to the central ditch by sufficient volumes and for sufficient periods, if not permanently, to convert the entire Property from uplands to wetlands. Absent such proof, the mosquito control activities exemption would extend no farther than the footprint of the ditches--an exemption that would be of no practical use.

         13. Petitioner failed to provide detailed evidence concerning the central ditch, such as historic slopes and profiles; tidal flows at the Property; or the relationship between the central ditch and tidal flows. Thus, Petitioner failed to explain the process by which the canal water supposedly escaped the central ditch to inundate the entire Property.

             
             

         14. The role that Petitioner assigns to the central ditch would necessitate major erosion of the Property. But the evidence of such erosion is completely missing from the record.30/ During a timeframe in which aerial photographs of the Property were becoming more common, no photograph documents the scarification of the Property or the movement of substantial volumes of soil off the Property and into the ICW, both of which would have accompanied the process that Petitioner contends took place. Given the force necessary to transport soil particles in the water column--even the much stronger tidal forces at the Boynton Inlet are unable to move the sediment out of the inlet-- if Petitioner's contention were correct, large deposits of eroded sediments would have piled up in the ICW alongside the Property, eventually shoaling the channel. Yet, no such event ever took place.

   2. Seawall Construction Exemption

      
      

      1. Artificially Created Waterway

1. As stated above, the Property was wetlands prior to the dredging of the FCLCTC canal. Although the eastern end of the Property was above mean high water at the time of the 1932/1933 Proposed ICW Cross-Sections, its lowest frontage elevation was above mean high water by less than four inches, and neither the range of frontage elevations nor the average elevation of the Property precludes the existence of wetlands.

   
   

2. As discussed in the Conclusions of Law, because the ICW was dredged from wetlands on the encumbered Property, the ICW at this location is not an "artificially created waterway."

3. If an "artificially created waterway" were more broadly defined to include waterways artificially created out of uplands and artificially created--or altered--out of wetlands, Petitioner still would not qualify for the seawall construction exemption because the greater weight of the evidence establishes that Petitioner has proposed to construct the seawall outside of the ICW.

4. Most likely, Petitioner's proposed seawall would join the ends of the existing seawalls to the north and south of the Property. If so, the seawall would be mostly within the unencumbered Property and, at most, at the southern terminus, on the line dividing the unencumbered Property from the encumbered Property. In the absence of proof that FIND overdredged the ICW past the western limit of its 300-foot right-of-way easement, the proposed seawall would not be "in" the "artificially created waterway" of the ICW.31/ Seeming to endorse this location of the proposed seawall, Petitioner's proposed recommended order states that the proposed seawall would be constructed "along" the ICW.

5. For reasons that are unclear, Respondent has assumed that the construction of the proposed seawall would be "in" the ICW, as revealed by Respondent's October 2013 letter and

   
   

   Respondent's proposed recommended order, which refers to construction of the proposed seawall "in" the ICW. This assumption ignores the fact that a conveyance of the property described in the sales contract would be limited to the unencumbered Property (plus the access parcel). Any proposal to construct the seawall in the ICW would thus require the permission of FIND32/ and the third-party owner of the encumbered Property--a highly contingent prospect that defeats Respondent's assumption that the proposed construction of the seawall would be in the ICW.

   2. Water Quality and Flood Control

   
   

6. The record is undeveloped as to water quality and flooding impacts. Even if the proposed seawall were located in an artificially created waterway, Petitioner has not provided reasonable assurance that the construction of the seawall would not violate existing water quality standards--specifically, turbidity and dissolved oxygen. Controlling turbidity by trapping sediments and maintaining dissolved oxygen in the water column, the mangroves require tidal flushing, but the seawall would impede tidal waters from inundating the Property. It is Petitioner's responsibility to show how, under these circumstances, the proposed construction of the seawall would not violate existing water quality standards. Consistent with Respondent's refusal to verify a de minimis exemption, it is

   
   

   impossible to infer an insubstantial effect on the mangroves and, thus, water quality by the construction of the seawall and addition of 20-30 feet of supportive fill behind the seawall.

7. Likewise, Petitioner has not provided reasonable assurance that the construction of the seawall would not affect flood control. Probably after the adjoining nurseries were redeveloped to support more intense uses, both parcels received several feet of fill. The record does not reveal the extent to which these adjoining parcels retain their stormwater onsite.

8. The construction of the proposed seawall with 20-30 feet of supportive fill would likely impound any surface waters entering the Property from the north, west, and south, raising a sufficient risk of offsite flooding to require analysis. Again, it is Petitioner's responsibility to show how, under these circumstances, the proposed construction of the seawall would not affect flood control.

   CONCLUSIONS OF LAW

   
   

   1. General

      
      

9. DOAH has jurisdiction, pursuant to sections 120.569 and 120.57(1). The October 2013 letter determines the substantial interests of Petitioner, whose sales contract to purchase the Property is conditioned upon obtaining the necessary permits or permission from Respondent to develop the Property.

   
   

10. Section 373.413 provides:

    
    

    the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district.

    
    

    Section 373.414(1) provides:

    
    

    As part of an applicant's demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicant to provide reasonable assurance that state water quality standards applicable to waters as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), is not contrary to the public interest.

    
    

    Section 373.413 governs the construction or alteration of surface water management systems, and section 373.414 governs activities in wetlands and other surface waters.

11. To ensure that certain proposed activities comply with these statutory criteria, Respondent administers programs for the issuance of permits or the verification of exemptions from the requirement of obtaining permits. Prior to October 1, 2013, these permits were known as environmental resource permits, but, effective October 1, 2013, pursuant to rule 62-330.010(4)(a), these permits have been known as SWERPs. Because, as noted above, Petitioner did not pay the filing fee until after

    
    

    September 30, 2013, pursuant to section 373.4131(4)(c), this case is governed by the SWERP rules, which are generally found in Florida Administrative Code Chapters 62-330 and 62-340 and the Applicant's Handbook, which is described below.

12. Petitioner must prove his entitlement to an exemption by a preponderance of the evidence. Lardas v. Dep't of Envtl. Prot., 28 F.A.L.R. 3844, 3848 (DEP final order Oct. 21, 2005).

    Additionally, in the event of alternate constructions, exemption provisions will be strictly construed against the person seeking the exemption. See, e.g., Pal-Mar Water Mgmt. Dist. v. Martin

    Cnty., 384 So. 2d 323 (Fla. 4th DCA 1980).

    
    

    1. Mosquito Control Activities Exemption

       
       

13. The mosquito control activities exemption is set forth in Florida Administrative Code Rule 62-340.750, which provides:

    Construction, alteration, operation, maintenance, removal, and abandonment of stormwater management systems, dams, impoundments, reservoirs, appurtenant works, or works, in, on or over lands that have become surface waters or wetlands solely because of mosquito control activities undertaken as part of a governmental mosquito control program, and which lands were neither surface waters nor wetlands before such activities, shall be exempt from the rules adopted by the department and water management districts to implement subsections 373.414(1) through 373.414(6), 373.414(8), and

    373.414(10), F.S.; and subsection 373.414(7), F.S., regarding any authority granted pursuant to section 373.414, F.S. (1991). Activities exempted under this section shall not be considered in determining whether any wetland

    
    

    permitting threshold is met or exceeded under part IV of chapter 373, F.S. This exemption shall not affect the regulation of impacts on other surface waters or wetlands, or the application of state water quality standards to waters as defined in subsection 403.031(13), F.S., including standards applicable to Outstanding Florida Waters.

    
    

14. For the mosquito control activities exemption, the issues are therefore whether a government mosquito control program conducted relevant mosquito control activities; if so, whether the mosquito control activities converted uplands to wetlands or other surface waters; and, if so, the extent of the uplands converted to wetlands.

15. The scope of the mosquito control activities exemption is limited, as compared to the scope of the seawall construction exemption, as discussed below. The mosquito control exemption excuses compliance with SWERP rules implementing certain subsections of section 373.414, but not other subsections of section 373.414 or section 373.413 in its entirety.

16. For the reasons stated in the Findings of Fact, Petitioner has failed to prove his entitlement to the mosquito control activities exemption.

    1. Seawall Construction Exemption

    
    

17. The seawall construction exemption is set forth in section 403.813(1)(i), which provides that a permit under chapter

    373 is "not required . . . for activities associated with . . .

    
    

    [t]he construction of . . . seawalls in artificially created waterways where such construction will not violate existing water quality standards, impede navigation, or affect flood control."

18. For the seawall construction exemption, the issues are whether the footprint of the proposed seawall is in an artificially created waterway and whether the construction of the proposed seawall would violate existing water quality standards, affect flood control, or impede navigation.

19. The scope of the seawall construction exemption is much broader than the scope of the mosquito control activities exemption. The seawall construction exemption excuses compliance with all of the SWERP requirements of chapter 373.

20. For the reasons stated in the Findings of Fact, Petitioner has failed to prove that the proposed construction of the seawall would be "in" an artificially created waterway--i.e., the ICW.

21. Even if the proposed construction of the seawall were in the ICW, for the reasons stated in the Findings of Fact, Petitioner has failed to prove that the ICW is an "artificially created waterway" at the encumbered portion of the Property.

22. Prior to the adoption of the SWERP rules, former rule 40E-4.051(2) provided: "An artificially created waterway is defined as a body of water that has been totally dredged or excavated and which does not overlap natural wetlands or other

    
    

    surface waters." Effective October 1, 2013, Respondent repealed this rule, and adopted Applicant's Handbook, Volume I,33/ section 2.0(a)10., which provides the following definition: "'Artificial waters' means bodies of water that were totally excavated from uplands, do not overlap historic wetlands or other surface waters, and were not created as a part of a mitigation plan." Applicant's Handbook does not define "artificially created waterways."

23. Despite the omission of the word "created" from the defined term in the new rule, section 2.0(a)10. still defines the meaning of "artificially created wetlands," as used in section 403.813(1)(i). A waterway carved out of uplands is a creation; a waterway carved out of wetlands or other surface waters is not so much a creation as it is an alteration.

24. A couple of legal issues attach to the water quality and flood control determinations required for the implementation of the seawall construction exemption. The first issue is which standard of proof attaches to the showing required of Petitioner to demonstrate that the proposed construction of the seawall will not violate existing water quality standards or affect flood control.

25. To obtain a SWERP, an applicant must provide "reasonable assurance" of compliance with the permitting criteria, such as those regulating impacts to water quality and

    
    

    flood control. See, e.g., Save Anna Maria, Inc. v. Dep't of

    
    

    Transp., 700 So. 2d 113 (Fla. 2d DCA 1997). To obtain an exemption, a person must prove by a preponderance of the evidence that he meets the exemption requirements, which require proof that the proposed construction of the seawall will not violate existing water quality standards or affect flood control.

    Without attempting to resolve the issue, this recommended order has used the more relaxed reasonable-assurance standard for these issues because the result would be the same under either standard.

26. The second issue is whether the water quality and flood control determinations in a case involving a request for verification of a seawall construction exemption are as detailed and rigorous as these determinations typically are in a case involving an application for a SWERP. Much of SWERP can be reduced to issues of water quality and flood control.34/ Thus, a SWERP exemption that demands the same level of proof concerning water quality and flood control impacts that one would expect in a permitting case risks not being much of an exemption at all.

27. As noted above, the Request form anticipates a summary description of the proposed activities and an abbreviated verification process. Clearly, the water quality and flood control issues in this case have received rough-hewn treatment in

    
    

    Petitioner's Request, Respondent's October 2013 letter,35/ the hearing, and the undersigned's recommended order.

28. For the seawall construction exemption process not to morph into a full-scale SWERP process, the water quality and flood control determinations must be based on limited data and back-of-the-envelope analysis. Here, the Property has never been developed and relevant natural functions are substantially intact. The proposed seawall with 20-30 feet of supportive fill would likely have substantial impacts on relevant natural functions--particularly the mangrove forest--and, thus, on water quality, as well as flood control. Petitioner has not met its burden as to these issues.

RECOMMENDATION

It is

RECOMMENDED that the South Florida Water Management District enter a final order declining Petitioner's request to verify the mosquito control activities exemption and the seawall construction exemption.

DONE AND ENTERED this 16th day of May, 2014, in Tallahassee,

Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2014.

ENDNOTES

1/ Following the hearing, Petitioner's counsel moved to withdraw, and Petitioner filed a pleading stating that he would proceed pro se. The Administrative Law Judge granted counsel's request to withdraw, and Petitioner has since represented himself.

2/ The Request is for an exemption from the requirement of obtaining an environmental resource permit. Because Respondent did not pay the filing fee until after October 1, 2013, the Request is governed by new rules that renamed environmental resource permits as statewide environmental resource permits, as discussed in the Conclusions of Law. For ease of reference, this recommended order will refer only to statewide environmental resource permits, even though all references prior to October 1, 2013, were properly to environmental resource permits.

3/ As discussed in the Conclusions of Law, Respondent adopted the SWERP rules, effective October 1, 2013, so the date of the payment of the filing fee places the Request under the new rules.

4/ Quite short, the Request form consists of one and one-half pages of information specific to the requests. Of this, about one-half of a page is devoted to the proposed activities.

Although the form invites the use of additional sheets, if

necessary, Petitioner described the proposed activities in the small boxes provided by the form.

5/ Lot 3 is Property Control Number ending in 0030, and lot 4 is Property Control Number ending in 0040. Lot 3 is the northerly of these lots.

6/ The plat map was recorded in plat book B, page 56, Dade County public records. Following the creation of Palm Beach County, the plat map was recorded, on March 25, 1910, in plat book 1, page 14, Palm Beach County public records.

7/ The sales contract equates Property Control Numbers ending in 0030 and 0040 with lots 3 and 4 of the 1901 plat map, but these Property Control Numbers refer to the portion of these lots west of the 202-foot right-of-way easement. See Respondent Exhibits

24.b and 24.c. Respondent Exhibit 13.r depicts lots 3 and 4 as originally platted and after the conveyance to FIND of the right- of-way easement; clearly, this easement encumbers the easterly 202 feet of these lots (as well as the other six lots depicted on the 1901 plat map). As noted on the legend to Respondent Exhibit 13.r, the purple-colored portion of lots 3 and 4--which is a portion of these lots west of the easterly 202 feet--represents the property that was conveyed to Petitioner's seller in 2003. The 2003 deed, which is Respondent Exhibit 24.d, confirms that this conveyance covered only that part of lots 3 and 4 west of the FIND right-of-way easement. Thus, Petitioner's seller does not own record fee simple title to the easterly 202 feet of lots 3 and 4, so the property that is the subject of the sales contract is accurately described as Property Control Numbers ending in 0030 and 0040, not all of lots 3 and 4.

8/ The figures are not perfectly legible, especially for the north lot line.

9/ See discussion in paragraphs 41-42 below.

10/ The LIDAR data, which is Petitioner Exhibits 13.s and 13.t and is discussed below, shows the 300-foot width as of 2007 or 2008.

11/ See discussion in paragraph 17 below.

12/ Although any width less than the design width of 70 feet should not have occupied any of the Property, some evidence suggests that the FCLCTC canal occupied about one-half acre of the Property at this time. It is unnecessary to resolve this minor conflict in the evidence.

13/ Because all aerial photographs currently depict a canal that is 300 feet wide, not 370 feet wide, this 300-foot right-of-way easement includes the FCLCTC's interest in the 70-foot footprint of the canal plus 230 feet of land on either side of the FCLCTC canal.

14/ The 300-foot right-of-way easement occupies 202 feet of the west bank, 28 feet of the east bank, and the original 70 feet controlled by the FCLCTC.

15/ See discussion in paragraphs 27-29 below.

16/ All other references to widths of the canal pertain to the surface, not the submerged channel where maximum depths were dredged.

17/ The 1932/1933 Proposed ICW Cross-Sections suggests as much, although portions of this exhibit are not legible.

18/ For convenience, this figure is rounded off to 60 feet.

19/ A 1945 USCGS quad map, which is Petitioner Exhibit 13, suggests that the ICW was 200 feet wide by 1945. The scale of the 1947 aerial photograph is larger than the scale of the 1945 quad map, which is discussed in more detail below. The aerial, as a photograph, is also a more direct representation of the conditions depicted, so the aerial photograph is credited over the 1945 quad map on this point.

20/ One vegetative community on the map bears a label. It is a large block of spruce leaf pine immediately west of the southern terminus of Lake Worth, as depicted on the 1930 map. The symbols on the Property bear some resemblance to the symbols on this larger tract. However, the symbols on the Property also bear a resemblance to the symbols on a smaller piece of land at the southern terminus of the Boynton Canal; a parcel that has long been occupied by wetlands. Although it is impossible to resolve the ambiguity attached to the symbols used for the Property, the 1930 map reliably discloses that the parcels to the north and south of the Property, on the west side of the ICW, have been converted to citrus groves or plant nurseries.

21/ It is quite clear that the 1945 quad map's omission of wetlands on the Property is entitled to no weight. As discussed below, mangroves were colonizing the eastern end of the Property by the late 1940s.

22/ Field Notes comprises books and pages, but the only visible references in the exhibit are to page numbers. Because the book numbers are not shown, the pages are not successively numbered and page numbers appear to be repeated, so higher numbers do not necessarily signify later dates.

23/ See endnote 20 above.

24/ Although these diagrams locate the corner of Section 34, it is still more likely than not that distances from the canal ran from the water's edge, rather than the landward limit of the 300-foot right-of-way easement.

25/ As discussed above, the 1901 plat indicates that the north property line of the Property was about 552 feet, and the south property line was about 100 feet shorter. The "fairly high ground" notation is south of the north property line by almost one-third of the distance between the north and south property lines, so the depth of the Property at this point would have been about 520 feet. Removing 60 feet from this distance would leave

460 feet. Taking the midpoint of the two stations that the comment spans as the approximate point of "fairly high ground," this point is about 440 feet west of the water's edge.

26/ Consistent with the attention to detail previously displayed in Field Notes, this diagram records remarkably small variances in the spacing of the north-south ditches. At the long east-west ditch to the north, the spacing between the west and center ditches is 38 feet, and the spacing between the center and east ditches is 110 feet. At the short east-west ditch to the south, this spacing is 40 and 99 feet, respectively.

27/ See endnote 20 above.

28/ See discussion in paragraph 55 below.

29/ These elevations are illegible on Respondent Exhibit 9, but are reproduced clearly on Respondent Exhibit 28.

30/ As discussed above, as indicated in the 1932/1933 Proposed ICW Cross-Sections, the average elevation of the canal frontage of the Property was about 0.5 feet higher than the average elevation of the entire Property about 75 years later, according to the 2007-08 LIDAR data. The 2007-08 LIDAR data reports the average elevation of the Property after the dredging of the eastern 202 feet encumbered by the FIND right-of-way easement. The 1932/1933 Proposed ICW Cross-Sections reports the average elevation of the

eastern edge of the original platted Property prior to the first dredging of the eastern strip of Property encumbered by the 202- foot FIND right-of-way easement. Despite these differences in the locations of these elevations, the rough equivalence in elevations would appear not to require any revision: the LIDAR data reveals that, along two east-west axes, the Property is almost flat over the westerly 280 feet, at which point there is a curious dropoff of about three feet, from which point the Property is submerged the remaining 70 feet or so to the FIND right-of-way easement line.

31/ Judging from recent aerial photographs, which reveal that the visible vegetative edge of the Property has retreated roughly 70 feet west of the FIND right-of-way easement, a seawall constructed west of the FIND easement would be in surface waters, but nothing in the record suggests that these waters resulted from overdredging by FIND--or through any other artificial means.

32/ Although aerial photography reveals FIND's easement may include portions of some docks, it does not appear to include any seawalls.

33/ Rule 62-330.010(4)(a) adopts Volume I statewide.

34/ An obvious difference is the option available to the SWERP applicant to mitigate any unavoidable impacts to the water resources; such an option is not available to the person requesting a seawall construction exemption.

35/ In this case, "rough-hewn treatment" was no treatment at all. Respondent's employee determined that the proposed construction of the seawall was not in an artificially created waterway and did not proceed to water quality and flood control issues. Despite the testimony to the contrary of Respondent's employee, Respondent's October 10 letter speaks louder in its omission of any mention that the proposed activities also violate water quality standards and affect flood control.

This situation may be labeled The Processor's Dilemma. (The Administrative Law Judge can empathize because there is a similar ALJ's dilemma.) The processor must decide whether to continue to process a request (or application) once he has determined that a threshold requirement has not been met. Administrative efficiency may suggest closing the file at the earliest point, rather than determining some or all of the remaining issues in an abundance of caution. But the seasoned processor must weigh the odds of higher authorities' sustaining his threshold determination against the

time and expense of continuing to process the application or request.

When The Processor's Dilemma is resolved with an early cessation of processing, another problem may arise, if the preliminary denial is later overturned. Is the issuance of a SWERP or verification of an exemption automatic without further processing of the application or request as to those criteria not yet examined, or is the application or request returned to the agency with the direction to continue processing the application or request from the point of the now-overturned denial? Either alternative has its shortcomings, as the nonprevailing party will quickly point out.

COPIES FURNISHED:

Alison L. Kelly, Esquire South Florida Water

Management District

Blake C. Guillory, Executive Director South Florida Water

Management District 3301 Gun Club Road

West Palm Beach, Florida 33416-4680

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 13-004859

Orders for Case No: 13-004859