STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT A. PETERSON, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1379

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came before the undersigned Hearing Officer on the petition of Robert A. Peterson who has applied to the Department of Environmental Regulation for a permit to undertake a landfill operation along the shoreline of Pine Island, Charlotte County, Florida.

APPEARANCES

For Petitioner: Howard Rhoads, Esquire

Post Office Box 1480 Collier Arcade

Ft. Myers, Florida

For Respondent: Carole Haughey, Esquire

Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

The Petitioner owns approximately 100 acres of shorefront property approximately one half of which is mangrove tidal wetlands. This property is on Pine Island Creek which is a waterway between Pine Island and Little Pine Island. The Petitioner seeks authorization to construct several ponds on this property and to use the material excavated to fill in the mangrove wetland part of the property to an elevation of approximately three feet. The Department of Environmental Regulation opposes this application on the grounds that reasonable assurances have not been provided to the department that the project will not degrade water quality or be a source of pollution.

At the hearing the Petitioner described the method in which the project would be undertaken. The Petitioner through several witnesses and exhibits showed that his construction plans would place the fill above the mean high water line and would commence with the construction of a dike roughly on the landward side of the mean high water line. The Petitioner's witnesses stated that construction of this dike would only be undertaken when the tide was at ebb and would not result in the placing of any fill material in the waters of the State. After the dike was completed fill material would be placed behind the dike and the mangrove wetland would be filled in to an elevation of plus three

feet. The information regarding the proposed method of construction was not included in the Petitioner's permit application. The department only learned of this when such testimony was introduced at the hearing. Likewise, the specifications of the proposed dike, the materials out of which it was to be constructed and the manner of placement was not previously furnished to the department in the permit application, but was announced at the hearing. Because of this the department cannot be said to have had an adequate time to evaluate the Petitioner's proposal and a serious question exists as to whether the permit application can be so supplemented when the case gets to hearing.

The Petitioner contends that he is entitled to the requested permit for a variety of reasons. First is that he will not do any work below the mean high water line and therefore the department is without authority to deny his permit. Second, the installation will not be a source of pollution. Third, rules of the department relating to tidal wetlands are invalid. Fourth, in the alternative, if the Petitioner is denied the permit that such would be an act tantamount to inverse condemnation for which the Petitioner should be compensated.

Much testimony and time of this proceeding was spent regarding the location of the mean high water line. The Petitioner hired a surveyor who did extensive work along the shore of the Petitioner's property and submitted into evidence a survey purporting to be a description of the location of the mean high water line along the Petitioner's property. The Respondent had its own surveyor do a tidal study along this property. He expressed the opinion that the Petitioner's survey was inaccurate and that the mean high water line was actually closer to the shore than indicated in the Petitioner's survey.

The Petitioner contends that because of the ponds which will be excavated and the manner in which the drainage will be located, the first inch of rainfall will be contained by the development when it is completed. The Petitioner states that with this in mind the development cannot be considered to be a source of pollution from surface runoff. It was never explained at the hearing nor is it evident in the permit application exactly how this first inch of rainfall will be retained on site. Further, no evidence was put forth by Petitioner that if this were accomplished that the project could be certified as not being a reasonable source of pollution. Witnesses on behalf of the department stated that after examining the permit application and being apprised of the additional circumstances which were announced at the hearing that they did not believe this would in any manner change their evaluation of the proposed project. It is important to note that the permit application submitted by Petitioner contains only the barest indications of what the proposed project will involve. Much of the evidence presented by the Petitioner at the hearing can only be described as being amendments to or elaborations on the original permit. This evidence described the nature and manner in which the Petitioner would accomplish the proposed project.

The Respondent, Department of Environmental Regulation, cannot be expected to adequately analyze this additional information when it is only presented to them at the final hearing on the application. Specifically, when a Petitioner proposes to accomplish placing the three feet of fill material on the mangrove wetlands by first constructing a dike, it would only seem appropriate that such information be furnished to the department at the time the application to do the work is submitted.

The Petitioner submitted a survey of the mean high water line upon the shore of his property and contends that this is an accurate survey and that the mean high water line as depicted in this survey demarks the limits of the

department's regulatory authority. The mean high water line is the projection of the elevation of mean high water upon the shore. Petitioner's surveyor determined the elevation of mean high water in this location by interpolating tidal data gathered after placing a tide gauge near the Petitioner's property for approximately two months. The data gathered by this gauge was extrapolated to cover an 18.6 year tidal cycle and an average elevation of mean high water.

It should be noted that the shoreline along the Petitioner's property has an extremely gradual slope. An error in the calculation of the elevation of mean high water of only the smallest fraction of a foot will result in a different placement of the mean high water line by up to several hundred feet. For this reason and also when considering the inherent margin of error on all such surveys, it is not unexpected that experts disagree as to the proper location of this line along the shore.

Regardless of the actual location of the mean high water line along the Petitioner's property, it is evident that were this project completed it would result in serious detrimental effects to the surrounding waters. Destruction of approximately 50 acres of mangrove wetlands will have a generally harmful effect upon the waters and the marine ecology of the whole area. The Petitioner contends that he will not be placing any fill in the waters of the State.

Regardless of where the mean high water line is located along the shore it is evident that this mangrove wetland is regularly inundated by the higher high tides. The mean high water line is the reflection of the average reach of the high tides . Those tides that are above average extend beyond this line and cover much of these mangrove wetlands on an regular and predictable basis. To avoid the possibility of placing fill material in the waters of the State when these tides are at their higher reach the applicant proposes to fill only when the tide has ebbed. That appears to be the purpose of placing the proposed dike around the perimeter of the property. The effect of this would be to obstruct the tides and prevent them from extending across the mangrove swamp, thus permitting the Petitioner fill these wetlands without being hindered by regulations dealing with filling State waters. It is clear that the Petitioner is attempting to do indirectly what he is forbidden to do directly. As such, that part of the application which reflects the placing of a dike across the Petitioner's wetlands at low tide is no more than a flimsy attempt to avoid the State's regulatory jurisdiction.

With regard to the Petitioner's claim of rules of the department being invalid, the sole basis for this claim appears in the First Amended Petition filed in this matter where in paragraph 4b Petitioner requests "a ruling that any dredge and fill rule that may have been the alleged basis for denial was an invalid exercise of validly delegated legislative authority under Florida Statutes 120.54(3)(a)(1) . . ." No other basis appears in the petition in this case where it is alleged that a rule of the Department of Environmental Regulation is invalid. Nowhere in the petition is a particular rule of the department identified as being invalid nor are the grounds for the alleged invalidity set out in the petition. Further, a petition challenging a rule of the department was not filed with this division but this allegation was contained in the petition submitted by Peterson in requesting this hearing.

Although ostensibly this proceeding was a hearing to determine whether the Petitioner should be issued a permit from the Department of Environmental Regulation, the petition also contained allegations of inverse condemnation and requests a ruling that absent the granting of the requested permits or the ability to proceed without permits, the Petitioner is entitled to the payment of just compensation. The Petitioner presented testimony on the point of inverse

condemnation from Donald Molloy, Director of Lee County Division of Development. He testified that the land is presently zoned agricultural (a.u.). Mr. Molloy expressed his opinion that if the Petitioner was not permitted to fill the mangrove wetlands he would not be able to use this land at all. However, later in Mr. Molloy's testimony he did concede that it would be possible for the Petitioner to construct dwellings on this property without filling the land merely by putting the structures on pilings. Molloy also conceded that there were other homes in the county that were constructed on pilings some of which were over open water.

From the testimony presented it is apparent that the Petitioner has not established that the denial of the requested permit would prevent him from reasonable use of his property. in fact, the proposed development is not at all imaginative and appears to be more designed to lay the foundation for a suit charging inverse condemnation than a realistic attempt to secure authorization from the Department of Environmental Regulation. Even if the department were to grant the permit the Petitioner requests he would not be able to construct his proposed project since the United States Environmental Protection Agency has already denied the Petitioner authorization to construct this project. The fact that Petitioner persists in trying to seek authorization which he cannot realistically expect to receive makes it appear that the primary motivation in pursuing this proceeding is to exhaust administrative remedies as a prelude to a suit in inverse condemnation. In that vein it is specifically made a finding of fact herein that there are many possible imaginative uses for the mangrove wetland which the Petitioner seeks to fill which are not Precluded by the denial of the above permit.

CONCLUSIONS OF LAW

Rule 17-4.28(3), Florida Administrative Code, requires that an applicant for a filling permit shall affirmatively provide reasonable assurances to the Department of Environmental Regulation that the project will not result in violations of water quality standards. Rule 17-4.29(6)(a), F.A.C., requires that an applicant for a permit affirmatively show that the work will not interfere with the conservation of fish, marine life and wildlife or other natural resources and will not result in the destruction of oyster beds, clam beds, or marine productivity including but not limited to destruction of natural marine habitats and established marine soils suitable for producing plant growth. The proposed project will have adverse affects contrary to both the above administrative rules. The applicant concedes this yet he maintains that since the project will be limited to work above the mean high water line that the department is actually without jurisdiction to regulate the proposed activity.

Although the mean high water line is the boundary of many areas of the State's ownership and jurisdiction over waters, it is limited to the boundary over navigable waters. See Martin v. Busch, 112 So.274. The regulatory powers in Chapter 403 and the rules adopted thereunder are not limited to navigable waters but to "waters of the State". Here the applicant seeks to fill an area which is normally covered by above average high tides. The area is definitely a marine community and is an important link in the marine food chain. Not only does the mangrove wetland in question act as a nursery area for juvenile forms of marine life, but the mangroves themselves directly add nutrients to the waters to enable them to sustain various forms of marine life. Filling in this area will definitely be filling in "waters of the State" and merely because the filling is proposed to be done at low tide cannot realistically be said to change the factual and legal consequences of the nature of the work. The

applicant wishes to fill tidal wetlands and must obtain authorization from the Department of Environmental Regulation to do so.

As has been explained earlier and as the evidence plainly shows, the merits of the Petitioner's application do not justify the granting of a permit.

Reasonable assurances have not been given to the State that the project will be in the public interest. On the contrary, the project will be very detrimental to the State's natural resources.

It is also clear that the applicant has not properly challenged the validity of the rules of the Department of Environmental Regulation. Under Section 120.56, F.S., a substantially affected person may challenge the validity of an administrative rule by filing a petition with this division. That petition must state with particularity facts sufficient to show the person seeking relief is substantially affected by the rule and facts sufficient to show the invalidity of the rule. In this proceeding no petition was filed with this division, no particular rule is challenged and no facts have been alleged which would indicate reasons for any rule of the Department of Environmental Regulation to be invalid. Therefore no ruling is made herein on the validity of any of the department's rules. Finally, with regard to the allegations regarding inverse condemnation no factual basis was established for concluding that the denial of this permit would entitle the Petitioner to compensation for his lands. Were it so, one would have to accept as a rule of law that any time the State would deny the owner of tide lands the right to fill them to an elevation of three feet, it would be required to pay the owner just compensation for the lands in question. The law of inverse condemnation is not that generous with the State's treasury. Although it could require a lengthy treatise to delve the depths of the law of inverse condemnation, it is sufficient for purposes of this order to acknowledge that the State, in the exercise of its police powers, may regulate the use of property without having to compensate the owner even if the regulation diminishes the value of the property. To support a claim of inverse condemnation the restrictions "must be so onerous as to effectuate a taking". XXV U. of Fla. L. Rev. p. 639. The requirements imposed upon the Petitioner's use of his property are not that unreasonably oppressive.

It is therefore RECOMMENDED that the Petition be denied.

DONE and ENTERED this 9th day of June, 1977, in Tallahassee, Florida.

KENNETH G. OERTEL, Director

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Howard Rhoads, Esquire P. 0. Box 1480

Collier Arcade

Ft. Myers, Florida

Carole Haughey, Esquire Dept. of Environmental

Regulation

2562 Executive Center Circle, E. Montgomery Building

Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

ROBERT A. PETERSON,

Petitioner,

vs. CASE NO. 76-1379

STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL REGULATION,

Respondent.

/

FINAL ORDER

BY THE DEPARTMENT:

On June 9, 1977, the duly appointed Hearing Officer in the above styled matter completed and mailed to the Department and all parties a Recommended Order consisting of his findings of fact, conclusions of law, and recommendations, a copy of which is attached hereto as Exhibit "A".

Pursuant to Section 17-1.26(2), Florida Administrative Code, and Section 120.57(1)(a)(8), Florida Statutes, the parties were allowed fifteen (15) days in which to present written exceptions to the Recommended Order. Neither the Petitioner nor the Respondent submitted exceptions. The Recommended Order thereafter came before me, as head of the Department, for final agency action on this matter.

Pursuant to Section 120.57(9), Florida Statutes, the following guidelines apply to the rendition of this final order:

The agency may adopt the recommended order as the agency's final order.

The agency in its final order may reject or modify the conclusions of

law and interpretation of administrative rules in the recommended order, but

may not reject or modify the findings of fact unless the agency first determines from a review of the

complete record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.

The test to be applied to a finding of fact is whether it is supported by "competent substantial evidence" in the record. "Competent substantial evidence" was defined by the Florida Supreme Court in the following:

Substantial evidence has been described as such evidence as will establish a substantial basis of

fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. In employing the adjective 'competent' to modify the word 'substantial', we are aware of

the familiar rule that in administrative proceedings the formalities in the introduction of testimony common

to the courts of justice are not strictly employed.. We are of the view, however, that the evidence relied upon to sustain the ultimate finding should be sufficiently

relevant and material that a reasonable mind would accept it as adequate

to support the conclusion reached. To this extent, the 'substantial' evidence should also be 'competent'. Degroot v. Sheffield, 95 So.2d 912,

916 (Fla. 1957). (citations omitted)

An effort has been made to fairly apply this test with careful deliberation. After consideration of the entire record, the exhibits, pleadings and Recommended Order, the Secretary, as head of the Department, enters the following findings:

1. Competent Substantial Evidence Was Not Presented Which Supports Findings that the Subject Property Is Located in Charlotte County, Florida, or that the United States Environmental Protection Agency Denied Petitioner Authorization to Construct This Project.

   
   

   1. A review of the Recommended Order submitted herein reveals that the Hearing Officer inadvertently substituted, on page 1, the phrase "Charlotte County" for "Lee County"; and on page 6, the phrase "the United States Environmental Protection Agency" for "the United States Army Corps of Engineers". There is no evidence in the record to support either finding.

There is, however, unrebutted competent substantial evidence to support findings that the subject property is located in Lee County, Florida; and that the United States Army Corps of Engineers denied Petitioner authorization to construct this

project. Judicial notice is taken of Section 404, Public Law 92-500, wherein the authority for issuance or denial of federal permits for dredge and/or fill projects on navigable waters is granted to the United States Army Corps of Engineers, rather than the United States Environmental Protection Agency.

Having considered the Recommended Order, including Findings of Fact and Conclusions of Law, together with the pleadings and entire record in this case, it is therefore,

Ordered by the State of Florida Department of Environmental Regulation as follows:

1. The Findings of Fact heretofore contained in this Order are hereby adopted and approved.

   
   

2. The Findings of Fact and Conclusions of Law contained in the Recommended Order (Exhibit "A"), to the extent that each is consistent with and not contrary to the Findings adopted in paragraph 1. above, are hereby adopted and approved.

   
   

3. To the extent that any Findings of Fact contained in the Recommended Order (Exhibit "A") conflict with, or are contrary to, the Findings of Fact adopted in paragraph 1, above, each is expressly rejected.

   
   

4. The Recommendation contained in page B of the Hearing Officer's Recommended Order is hereby adopted and approved. Accordingly, the Petitioner's application for a permit to dredge and fill lands located in and bordering on waters of the state, located in Pine Island Creek, Lee County, Florida, is hereby denied.

Done and Entered this 24th day of June, 1977, in Tallahassee, Florida.

STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION

JOSEPH W. LANDERS, JR.

Secretary

2562 Executive Center Circle, East Montgomery Building

Tallahassee, Florida 32301

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing Final Order has been furnished to the following persons or agencies by U.S. Mail this 24th day of June, 1977.

Howard Rhoads, Esquire Marine Patrol, Department of Counsel for Petitioner Natural Resources

Carole B. Haughey, Esquire Florida Game and Fresh Water Counsel for Respondent Fish Commission

Office of Enforcement, DER U.S. Army Corps of Engineers

Philip R. Edwards, Manager South Florida District DER

CAROLE HAUGHEY

Assistant General Counsel

Docket for Case No: 76-001379

Orders for Case No: 76-001379