STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BAKER CUT POINT COMPANY and ) JAMES C. DOUGHERTY, as TRUSTEE, )

)

Petitioner, )

)

vs. ) CASE NO. 80-2320RX

) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENT REGULATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a hearing was held before Charles C. Adams, a Hearing Officer with the Division of Administrative Hearings, in Key Largo, Florida.

The dates for hearing were March 11, 1981, and June 2 through 4, 1981. This order is being entered in keeping with the stipulation of counsel dated December 1, 1981, which waived the thirty-day time period for the entry of this order.

APPEARANCES

For Petitioner: Michael Egan, Esquire

Jane Heerema, Esquire ROBERTS, EGAN & ROUTA, P.A.

Post Office Box 1386

217 South Adams Street Tallahassee, Florida 32301

For Respondent: H. Ray Allen, Esquire

Paul R. Ezatoff, Jr., Esquire Office of General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32301

ISSUES

The matters here presented concern the challenges by the named Petitioners to Rule Sections 17-3.061(2)(b), 17-3.111 (11), 17-3.121(14), 17-4.02(17),(19),

and 17-4.28(2), Florida Administrative Code, related to definitions of "submerged lands" and "transitional zone of a submerged land" and the requirements set forth by rule provisions for permits related to dredge and fill activities in "submerged lands" and in the "transitional zone of submerged land" and water quality in Florida. The rule challenges are in keeping with the provisions of Section 120.56, Florida Statutes. Specifically, Petitioners claim that the rules are invalid exercises of delegated legislative authority. The Petitioners do not, by the challenges, question the procedures utilized in the promulgation of the subject rule provisions.

FINDINGS OF FACT

1. Petitioner, Baker Cut Point Company, is a corporation which owns real estate in Key Largo, Florida, and James C. Dougherty owns the company.

   
   

2. The Respondent, State of Florida, Department of Environmental Regulation, is a governmental body which has been granted certain regulatory powers, to include the responsibility for requiring environmental permits for certain activities over which the Respondent has jurisdiction. In furtherance of that responsibility, the Respondent has promulgated the aforementioned rules which are the subject of this rules challenge case.

   
   

3. The Petitioners have been subjected to the terms and conditions of the aforementioned rule provisions in the course of their application for environmental permits for developments in property in Key Largo, Florida, under DER File Nos. 44-21381 and 44-14356. Those matters were the subject of a Subsection 120.57(1), Florida Statutes, hearing in Division of Administrative Hearings' Cases Nos. 80-760 and 80-1055. The hearings in those cases were conducted on the dates described in this order and were held in view of the disputed material facts between the parties occasioned by the Respondent's stated intention to deny the permits based upon the Respondent's belief that the activities contemplated within the permit process would be in violation of certain regulatory provisions, to include those rule provisions which are the subject of this action. Throughout the process of permit review and the hearing de novo, and in response to the revisions to the original permit requests, the Respondent has continued to claim jurisdiction in keeping with the rule provisions at issue. The Baker Cut Point Company DER File No. 44-14356 letter of intent to deny dates from April 3, 1980, and the corresponding letter of intent to deny related to DER File No. 44-21381, James C. Dougherty, dates from May 27, 1980.

   
   

   CONCLUSIONS OF LAW

   
   

4. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.56, Florida Statutes.

   
   

5. The Petitioners are, persuaded that to the extent Rule Sections 17- 4.02(17) and (19), Florida Administrative Code, define "submerged lands" and "transitional zones of a submerged land," for purposes of Chapter 403, Florida Statutes, permit jurisdiction, as land contiguous to or landward of lands covered by waters of the State, the rules are invalid exercises of delegated legislative authority because Chapter 403, Florida Statutes, only gives Respondent authority to define and regulate waters of the State to their landward boundaries. As authority for this proposition the Petitioners specifically reference Subsection 403.817(2), Florida Statutes, and conclude that the Respondent has no regulatory authority over land contiguous to, or landward of waters of the State.

   
   

6. Additionally, the Petitioners contend that Rule Section 17-4.28(2), Florida Administrative Code, to the extent that it requires Chapter 403, Florida Statutes, permits for dredging and/or fill activities landward of or contiguous to the "landward extent of lands covered by waters of the state" is invalid. Finally, the Petitioners cite with favor the decision in Deltona Corporation v. Department of Environmental Regulation, DOAH Case No. 80-1065R, which invalidated Rules 17-4.02(17) and (19), Florida Administrative Code, (under

   facts similar to those involved in this case) in the face of a rule challenge taking the format of the present challenges.

   
   

7. The pertinent provisions within Rule Section 17-4.02 (17) and (19), Florida Administrative Code, state the following:

   
   

   1. "Submerged lands" are those lands covered by the categories of waters listed in Section 17-4.28(2), Florida Administra- tive Code, including those lands contiguous [sic] to said waters where any of the following vegetational species, or any combination of such species, constitute

      the dominant plant community: (species omitted).

      (19) "Transitional zone of a submerged land" is that area of land between a sub- merged land as defined in subsection (17) and an upland as defined in subsection

   2. above, and shall consist of the first fifty (50) feet landward of a line defined by the landward limit of a submerged land or the water-ward quarter (1/4) of the area between a submerged land and an up- land, whichever is greater, and upon which any of the following vegetational species, or combination of such species, constitute the dominant plant community: (species omitted)

      
      

      (The vegetational species as set forth in the aforementioned provisions were set out in the rules as originally promulgated and subsequently the Legislature explicitly authorized the Respondent to utilize its rulemaking powers to establish a method for determining landward extent of waters of the State for regulatory purposes, by listing species of plants and soil, characteristic of the area in which one may find regular or periodic inundation by waters of the State. See, Section 403.817, Florida Statutes.)

      
      

8. Chapter 403, Florida Statutes, which is the subject the rule provisions purportedly effectuate, by its terms, is designed to allow the State to exercise police powers which would prevent, abate or control pollution in waters of the State. See, Subsection 403.021(6), Florida Statutes. The definition of waters as outlined in Section 403.031(3), Florida Statutes, does not speak in terms of "submerged land" and "transitional zone of a submerged land," nor do other provisions within Chapter 403, Florida Statutes, utilize that terminology. Nonetheless, Chapter 403, Florida Statutes, does countenance the idea that boundaries for the waters over which DER has jurisdiction must be established for regulatory purposes and by its use of the terms "submerged lands" and "transitional zone of a submerged land" the Respondent has attempted to establish the parameters of its jurisdiction. In particular, Rule 17-4.02, Florida Administrative Code, was designed to effectuate the purpose of boundary identification as that concept would apply to dredge and fill activities permitted pursuant to Rule Section 17-4.28 (2), Florida Administrative Code, which, in pertinent part, states:

   
   

   ...The department recognizes that the natural border of certain water

   bodies listed in Section 17-4.28(2) may be difficult to establish because of seasonal fluctuations in water levels and other characteristics unique to a given terrain. The intent of the vegetation indicies in sub- sections 17-4.02(17) and (19) is

   to guide in the establishment of the border of the water bodies listed in Section 17-4.28(2). It is the intent

   of this rule to include in the boundaries of such water bodies areas which are customarily submerged and exchange

   waters with a recognizable water body as described in Section 17-4.28(2) (i.e. submerged lands and transitional zones of submerged lands) . Isolated areas which infrequently exchange water with a described water body in Section

   17-4.28(2) and/or provide only insignifi- cant benefit to the water quality of a water body as described in Section

   17-4.28(2) are intended to be defined as uplands and excluded from the definition of "submerged lands." The vegetation indices defining "submerged lands"

   and "transitional zone of a submerged land" are presumed to accurately delineate

   said submerged lands and transitional zones.

   
   

9. Thus while it is evident that the department has jurisdiction to establish the boundary lines of its regulatory power over waters of the State, the question presented by this aspect of the rules challenge Petition concerns whether the Respondent, in pursuing its charge by the enactment of Rules 17- 4.02(17) and (19), and Rule 17-4.28(2), Florida Administrative Code, has expanded the regulatory authority set forth in Chapter 403, Florida Statutes, and thereby invalidly exercised legislative authority. To answer the question is to determine whether the Respondent is regulating waters of this State or lands contiguous to or landward of lands covered by those waters.

   
   

10. By this test, Rule 17-4.02(17), Florida Administrative Code, is a valid exercise of delegated legislative authority. It is valid because it regulates waters over which the Respondent has police powers set out in Chapter 403, Florida Statutes. The fact that the lands under the water, referred to as "submerged lands" are mentioned in an effort to identify the rational extent of waters of this State, does not lead to the conclusion that the central thrust of this rule provisions is to regulate lands over which the State has no jurisdiction. The purpose of this provision is to regulate the landward extent of waters, i.e., those areas covered by categories of waters which the State has jurisdiction over.

    
    

11. On the other hand, an analysis of the Rule 17-4.02 (19), Florida Administrative Code, leads to the conclusion that it is land outside State waters that is being regulated by this provision, namely the first 50 feet landward of the line defined by the landward or outer limit of the "submerged land" or the waterward one quarter (1/4) of the area between that submerged land and the upland, whichever would be greater. Clearly, in this instance it is

    land not the waters on that land which is the focus of the regulatory provision and that effort is outside the statutory authority of Chapter 403, Florida Statutes, and thereby an invalid exercise of delegated legislative authority.

    While some latitude is necessary in establishing the reach of jurisdiction on the part of this Department over waters of the State, this particular effort at identifying the line of demarcation or border promotes a claim of jurisdiction over a land mass as contrasted with a reasonable identification of that perimeter.

    
    

12. A review of Rule 17-4.28(2), Florida Administrative Code, in keeping with the enabling provisions set forth in Chapter 403, Florida Statutes, does not lead to the conclusion that the Department has invalidly exercised legislative authority, except to the extent that it would attempt to use the provision Rule 17-4.02(19), Florida Administrative Code, in delineating jurisdiction.

    
    

13. These determinations are made, after consideration of Deltona Corporation v. Department of Environmental Regulation, DOAH Case No. 80-1065R, in the face of the present rules challenge.

    
    

14. The Petitioners have also challenged Rule 17-4.28(2) Florida Administrative Code, based upon a contention that Chapter 403, Florida Statutes, does not require a permit for the placement of fill, in that fill is not an "installation" or a "stationary installation" within the meaning of Subsections 403.031(0) and 403.087(1), Florida Statutes, dealing with "installations" and "stationary installations" respectively; nor is the construction of a navigation channel by a dragline such. Finally, the Petitioners do not believe that the operation of a navigation channel is an "installation" or a "stationary installation" within the meaning of those provisions.

    
    

15. The overall purposes of Chapter 403, Florida Statutes, concern the conservation, protection, maintenance and improvement of water quality over waters contemplated by that chapter. To that end, the Respondent is allowed, pursuant to Subsection 403.021(6), Florida Statutes, to control, regulate and abate activities that are causing or may cause pollution of water. This terminology would include installations as defined in Subsection 403.031(8), Florida Statutes. That definitional statement includes structures, and structures are further defined in Blacks Law Dictionary to include construction, production or work beneficially built up and constituted of parts joined together in some definite arrangement. Placement of fill and excavation by dredging either in a construction phase or a maintenance or operation phase can be considered a structure within the meaning of this law dictionary definition and thereby considered an "installation." Moreover, these activities constitute "stationary installations" within the meaning of Subsection 403.087(1), Florida Statutes, and these "stationary installations" require a permit if they are matters which reasonably will be expected to be a source of water pollution. Consequently, Rule Section 17-4.28(2), Florida Administrative Code, is a valid exercise of delegated legislative authority, with the exception of the matters set forth in considering the previous grounds for challenge to this rule, dealing with those aspects referring to Rule Section 17-4.02(19), Florida Administrative Code.

    
    

16. The Petitioners have offered challenge to Rule Sections 17- 3.061(2)(b), 17-3.111(11), and 17-3.121(14), Florida Administrative Code. The Petitioners claim that these rules are invalid because they cause the denial of a permit application based upon predicted dissolved oxygen levels without regard

    to whether that dissolved oxygen level is a result of discharge of a contaminant from an applicant's proposed project.

    
    

17. Section 403.061, Florida Statutes, grants the Department authority to establish water quality standards as a method of combating pollution of Florida waters. In particular, the responsibility of the Department is to adopt ambient water quality standards. The protection of water quality accordingly has as a benefit, protection and propagation of fish and other aquatic life which are dealt with in other provisions of Chapter 403, Florida Statutes, as well as man. The protections provided by these provisions are protections against activities which may cause an imbalance in water quality to the detriment of man and other life forms, and jurisdiction to combat those problems does not rest solely upon the idea that potential permittees disturb water quality by a form of direct discharge of pollutants or contaminants into waters over which the Department has jurisdiction. If the activity itself, by its terms, brings about change in water quality which is not in keeping with reasonable parameters established by the Department to deal with changes in ambient water quality standards it will be scrutinized.

    
    

18. This scrutiny may take the form of the establishment of measurements of dissolved oxygen and biochemical oxygen demand and the effect that changes of these parameters will have on life forms exposed to the water.

    
    

19. To establish parameters to determine if a given water environment is or may become harmful to man, animals and plants, the Respondent has promulgated Rule Sections 17-3.061(2)(b), 1/ 173.111(11), 2/ and 17-3.121(14), 3/ Florida Administrative Code, pursuant to legislative intent. The sections do not constitute invalid exercises of delegated legislative authority. Applicants for permits simply must be mindful of these standards and guard against their violation by the proposed activity.

    
    

    [The rules herein do not overlook the possibility that waters in the vicinity of the proposed activity may present water quality problems of a special nature not contemplated by the normal criteria, which because of the conditions in these waters at the time of the application, measurements in excess of standards are being confronted. In this instance, special relief can be sought under Rules I7-3.031(1) 4/ and 17-3.061(3), 5/ Florida Administrative Code.]

    
    

20. The Petitioners in this action have not challenged the procedures utilized in the passage of the rules subject to attack and consequently, the rules are not subject to invalidation based upon that claim for relief. In addition, an examination of the nature of this Petition and the claims set forth through these proceedings leads to the conclusion that the Petitioners have failed to demonstrate any arbitrary or capricious acts on the part of the Respondent in the passage of the aforementioned rules.

DONE and ENTERED this 28th day of January, 1982, in Tallahassee, Florida.

CHARLES C. ADAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1982.

ENDNOTES

1/ (b) BOD - shall not be increased to exceed values which would cause dissolved oxygen to be depressed below the limit established for each class and, in no case shall it be great enough to produce nuisance conditions.

2/ (11) Dissolved Oxygen - the concentration in all waters shall not average less than 5 milligrams per liter in a 24-hour period and shall never be less than 4 milligrams per liter. Normal daily and seasonal fluctuations above these levels shall be maintained.

3/ (14) Dissolved Oxygen - in predominantly fresh waters, the concentration shall not be less than 5 milligrams per liter. In predominantly marine waters, the concentration shall not average less than 5 milligrams per liter in a 24- hour period and shall never be less than 4 milligrams per liter. Normal daily and seasonal fluctuations above these levels shall be maintained in both predominantly fresh waters and predominantly marine waters.

4/ Upon petition of an affected person, or permit applicant or upon the initiation of the Department after public notice and opportunity for public hearing, and upon affirmative demonstration that, due to man-induced causes which cannot be controlled or abated with technology of management practices including zero discharge, or due to natural causes, certain delineated portions of waters of the State do not meet particular water quality criteria contained in this Chapter, the Secretary may issue an order specifying an alternative ambient water quality criterion for each parameter and the portion of the waters for which such demonstration has been made.

5/ Dissolved Oxygen: Notwithstanding the specific numerical criteria for individual classes of water under Subsections 17-3 091( 3), 17-3.111(11), 17-

3.121(14), 17-3.131(6) and 17-3.141(2), Florida Administrative Code, the Department recognizes that, in certain bodies of water or segments of water bodies, the dissolved oxygen may be below the applicable criteria at certain times due to man-induced causes which cannot be controlled or abated with technology or management practices including zero discharge, or due to natural background conditions. Under such conditions, the background levels shall be the criteria; however, daily and seasonal fluctuations shall be maintained.

This level may be determined only after public notice and opportunity for public hearing, and consideration of the factors listed in Subsection 173.031(2), Florida Administrative Code, and specified in the Department permit; or the

level may be determined in accordance with 17-3.031, Florida Administrative Code.

COPIES FURNISHED:

Michael Egan Esquire ROBERTS, EGAN & ROUTA, P.A.

Post Office Box 1386 Tallahassee, Florida 32301

H. Ray Allen, Esquire Office of General Counsel Department of Environmental

Regulation

Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301

Mr. Carroll Webb Executive Director

Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Ms. Liz Cloud, Bureau Chief Administrative Code Section Department of State

The Capitol - 1802 Tallahassee, Florida 32301

Docket for Case No: 80-002320RX

Orders for Case No: 80-002320RX