STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JERRALD D. SCHATZ, FRIENDS ) OF THE BARRIER ISLAND OF THE ) HAMMOCK, INC., and FLORIDA )
WILDLIFE FEDERATION, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 84-3604
) ADMIRAL CORPORATION, and STATE ) OF FLORIDA, DEPARTMENT OF )
ENVIRONMENTAL REGULATION, )
)
Respondent. )
)
RECOMMENDED ORDER
Consistent with the Amended Notice of Hearing furnished the parties, as modified by the Orders granting continuance herein, a hearing was held in this case before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Tallahassee, Florida, on August 8 and 30, 1985, and in Bunnell, Florida, on August 20 and 21, 1985. The issue for consideration was whether the area in question, a part of the Hammock Dunes property in Flagler County, Florida, is exempt from the dredge and fill permitting jurisdiction of the Respondent, Department of Environmental Regulation under the insect control activities exemption provided for in the pertinent Florida Statute.
APPEARANCES
For the Petitioners: Randall E. Denker, Esquire
Lehrman & Denker Law Offices
103 North Gadsden Street Post Office Box 1736 Tallahassee, Florida 32302
For Respondent Carlos Alvarez, Esquire Admiral Corporation: Carolyn S. Raepple, Esquire
Hopping Boyd Green & Sams
420 First Florida Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32314
For Respondent Deborah Getzoff, Esquire State of Florida, Ross Burnaman, Esquire
DER: Department of Environmental Regulation 2700 Blair Stone Road, Room 638
Tallahassee, Florida 32301
BACKGROUND INFORMATION
By letter dated August 9, 1984, Respondent, Department of Environmental Regulation, (DER), advised the vice president of Respondent, Admiral Corporation, (Admiral), of its preliminary determination regarding the extent of its dredge and fill jurisdiction over the Hammock Dunes property site proposed for development by Admiral. Two months later, on October 9, 1984, Petitioners requested a formal hearing on their challenge to the completeness and accuracy of this preliminary determination. Petitioners' Administrative Complaint was subsequently amended to add a second count alleging that appropriate consideration by DER would be related to all its jurisdiction rather than merely dredge and fill jurisdiction. After numerous motions and counter-motions regarding the applicability of the amendment to the Petition for Administrative Hearing, on July 30, 1985, the Hearing Officer entered an order restricting the issue to the dredge and fill jurisdiction.
At the hearing, Admiral introduced the testimony of Durbin Tabb, an expert in wetland ecology; Jeremy Tyler, supervisor of DER's Northeast District dredge and fill section and an expert in geomorphology, dredge and fill jurisdictional determinations, and aerial photography interpretation; James Y. Miller, Florida State Archaeologist; Joseph F. Cash, Director of the East Florida Mosquito Control District and an expert in entomology; Robert Scott, Jr., Secretary of Admiral Corporation and ITT Community Development Corporation; Hershel E. Prestridge, Vice President and General Manager of Palm Coast Abstract and Title Company; R. David G. Pyne, an expert in hydrology; James H. Humphrey, an expert in photogrammetry; and Thomas H. Patton, an expert in geology. Admiral also introduced Respondent's Exhibits 1 through 20. Ruling was withheld on Exhibit 9 and Exhibit 20 at the hearing. Based on all evidence introduced at the hearing, Respondent's Exhibit 9 is considered relevant and is accepted into evidence as is Respondent's Exhibit 20.
Respondent, DER also presented testimony from Jeremy Tyler and offered DER Exhibits 1 and 2.
Petitioners introduced the testimony of Samuel A. Johnston, Jr., an expert in aquatic biology; James M. Frazee, Jr., assistant director, St. Johns River Water Management District and an expert in hydrogeology and ground water geochemistry; Burl Miller, a longtime resident of the area in question; John Labie, an expert in aerial photography; Sydney Brinson, DER jurisdictional botanist for the North Florida District; Dar-Guam Cheng, an expert in soils science; and Petitioner Schatz. Petitioner also offered Exhibits I through XIII all of which were received into evidence with the exception of Exhibits III and
Having reviewed the evidence submitted and heard other testimony relevant to the question of admissibility of these two documents, taken as a whole, their relevance has been established and both Petitioners' Exhibits III and VIII are now admitted into evidence. At the request of Petitioners, the Hearing Officer also took official recognition of Governor's Executive Order 81- 105.
Both parties have submitted post-hearing proposed Findings of Fact which have been thoroughly considered in the preparation of this Recommended Order. A ruling on each proposed Finding of Fact has been made and is contained in an appendix to this Recommended Order.
FINDINGS OF FACT
Hammock Dunes is a parcel of land located on the east coast of Florida approximately half way between Daytona Beach and St. Augustine. With the
exceptions of a few small parcels separated from the main area, the area in question in this case is that bounded by Malacompra Road to the north, the Atlantic Ocean to the east, and State Road A1A to the south and west. The property is cut at several places from the west boundary, State Road A1A to the east by 16th Road, Jungle Hut Road, and the approach road to the Sheraton Hotel. All of the property at issue in this hearing is owned by either Admiral or its parent company, ITT.
The natural terrain is a series of ridges and swales which contain to the west, sea oats, salt palmetto, and coastal scrub in the drier areas. The lower interior ridges contain alternating growth of the above vegetation until one gets to the immediate area of State Road A1A where, because of the fill, oak and other upland vegetation is in evidence.
Ditches exist on both sides of each of the cross roads mentioned above. In addition, ditches have been dug in a generally north - south direction following the ridge and swale run of the land and there is also evidence of spoil banks in the southern portion of the property resulting from the dredging of the Florida East Coast Canal. The north/south ditches in question were dug as a part of the mosquito control program carried out over several years starting in 1953 to remove the seasonal breeding ground of salt marsh mosquitoes. In addition to these north/south control ditches, there are other ditches leading away from them which form a part of that system, and there are some permanent waters on the property, primarily at the southern end near the Sheraton Hotel and at the coquina quarry.
The dominant vegetation adjacent to the ditches includes a mixture of plants including weeds, disturbance plants, and persistent vegetation. Aerial photographs taken at various times over the period of the last 40 years reflect that the vegetation includes cat tails, bunch grass, wax myrtle, cabbage palms, and salt brush. Many of these ditches are encroached by the growth surrounding them. The existence of cabbage palms serves as a tool to define the swale areas because water conditions are not suitable for these plants in the swales.
The swales in question, which basically were the areas in which the drainage ditches were dug, were natural and not man made. According to Dr. Durbin C. Tabb, a consultant in environmental assessment, whose work emphasizes the location, siting, and sensitivity of aquaculture projects, vegetation in areas such as this goes through a progression of species and this progression is used in relic analysis. Dr. Tabb performed a relic analysis on the area in question and based on this, as well as an analysis and examination of extensive aerial photography done of the area, he concluded that prior to the ditching activity, the plant community in the area could be described as a "wet prairie." This is an area of virtual treeless grasses and shrubs growing in an area periodically inundated by water. The zonation of the plants caused by this periodic inundation, as determined by Dr. Tabb, is consistent with wet prairie and that condition, prior to the ditching for mosquito control purposes, was consistent with mosquito breeding.
In his analysis, Dr. Tabb found that numerous plants, such as cat tails, maiden cane, pickerel weed, saw grass, spike rush, soft rush, switch grass, button bush, and coastal plain willow, all of which need a moist environment, were extant in the area.
Dr. Tabb also concluded that the water in the swales was primarily fresh water. In dry periods, however, in the lower areas, some salt could be sucked up from below ground by capillary action.
Another survey of the area was conducted by Jeremy Tyler, the supervisor of the dredge and fill section of the Northeast District of DER, who has performed more than 3,000 jurisdictional determinations over the past 10 years, and who performed the jurisdictional determination for the property in question here. In making his determination, Mr. Tyler looked at various maps, aerial photographs, and information supplied by Admiral Corporation and conducted at least three recent on-sight visits to the property in addition to others conducted in the past. Based on all of this information available to him, Mr. Tyler concluded that certain portions of the Hammock Dunes area were exempt from DER dredge and fill permitting requirements. His conclusions were that the canal running to the intra-coastal waterway and the waterway itself were jurisdictional. Mr. Tyler determined that at least two ditches went through the uplands portion of the area as a part of the mosquito control operation. These ditches were the one at the west side of Malacompra Road which entered into the intra-coastal waterway; another was the westernmost ditch running south into the barge canal at the southeast corner of the property. Both were exempt. The third ditch in the area, that on the most eastern side, was not cut in the mosquito control operation and therefore did not meet the criteria for exemption. On the basis of this, he concluded that DER's
jurisdiction extended to the sides of the jurisdictional ditch up about half way northward on the lake in the southeast corner of the property. North of that point, the ditch was cut through a non-jurisdictional uplands area. Mr. Tyler indicated that he would normally follow each ditch up-stream, but, having been made aware of the extent of the mosquito control operation, and the relationship of that operation to the ditches, he concluded that the majority of the ditches in the area were dug during the mosquito control operation and met the criteria for exemption, and, as a result, he did not have to follow them to their source. If he had not been satisfied that the mosquito control district exemption applied, he would have gone up each and every ditch to see where jurisdiction stopped.
Prior to publishing an opinion as to jurisdictional limitations, ordinarily the agency will request a legal review of the proposed determination. This was done in the instant case by agency counsel Richard Lee. However, Mr. Tyler made the ultimate determination that the exemption applied in this case. He did not examine the question of whether the ditches constituted a series of lakes connected, so as to support jurisdiction, because since he was satisfied they were dug in mosquito control operations, the exemption applied which obviated any other jurisdictional issue.
Robin D. Pyne, a consulting engineer in water resources, has studied the Hammock Dunes property since 1977 when his company was hired to do a water use plan for a neighboring community. Since 1979, he has had substantial opportunity to study the water situation there. Over the years, he has specifically tried to determine if standing water existed between the swales prior to the beginning of the digging of the mosquito control ditches in 1953. In doing his analysis, he relied on historical data, site topography data collections, reports of other agencies, and the work done by other experts. Considering all this, Mr. Pyne found that the soil in the Hammock Dunes area was basically well drained beach sand. Any rainfall on this area would seep in quickly and not run off, as the sand is very porous. During periods of sustained rainfall, the water table rises into the low part of some of the swales. Once the rains stop, however, the water drains off quickly through the ditches, and before they were in place, through the underground drainage which went west to east to the ocean as well as through evaporation.
Extrapolation of this theory and its application to known data revealed that prior to the beginning of the mosquito control ditch program in 1953, wet soils were found in the swale bottoms only periodically and the swale bottom water level was determined by the level of the water table in the area. Generally, the swale bottoms would not be wet under average or dry weather prior to the digging of the ditches. The several mathematical calculations made by Mr. Pyne for the period prior to the ditches revealed that generally the average water table was below the bottom of the swale and there is no standing water in the bottom of a majority of the swales.
Mr. Pyne concluded that the digging of the ditches may have lowered the water table by approximately one foot overall, but this would not affect his thesis. It is accepted here over that of Mr. Frazee who testified for Petitioner, and whose testimony is discussed in Para 24, infra.
Other analysis was conducted by Mr. James H. Humphrey, an aerial cartographer who analyzed photographs of the area in question taken in 1943, 1952 and 1983. The use of a stereo plotter in these analyses delineated swales, ditches, roadways and other features important to the project. Based on the technical tools and procedures available to and used by him in his analysis, Mr. Humphrey is convinced the swales he identified are accurate and using his plotter, the textures of grasses, the tones of grey on the picture, and other like considerations, he was able to determine this outline.
Dr. Thomas H. Patton, a geologist with a specialty in geomorphlogy, a study of why land looks as it does, and the relationship of soils to geomorphology, performed studies on the property in question to determine if the swales contained soils indicative of inundated conditions. To determine this, he looked for certain characteristics of the soils in the area to determine if the soils had been inundated for a period of time.
In doing so, he first used aerial photographs to get the lay of the land from an overview standpoint defining general trends and the general outline of the land, roads, and other impacts by man. He then took soil samples from the major, the intermediate, and the minor swales and tried to get samples from between the swales to see if there was any interconnection between them. He took samples from soil across the entire width of each swale studied.
Soil samples contain and maintain within themselves indications of sustained emergence or saturation. Studying these indicia can show how long the soil was dry (above the water table or below it). If the soils were inundated for a long period, they would show a preservation of a surface decomposed organic layer reflected by a dark grey to black color. This is the primary indication. There are others such as a blue-grey/green coloring of the subsurface and a mottling or sign of reduced condition. This test has been adopted by the Department of Natural Resources and the United States Corps of Engineers.
Certain horizons have been defined and identified by letter. These
are:
O - the top, made up of leaf litter
A - the elevated layer - transfer level B - just at or above the water table
(normal dark brown color), and
BH - the water table level - no clay or organics
According to Dr. Patton, it takes a long time for the BH level to accumulate. The process is quicker in a porous soil than a dry soil and the Hammock Dunes area has porous soil. One would not find a BH horizon, however, in a saturated or inundated soil. If the soil is saturated, even a large part of the year, there would be no BH horizon.
At the Hammock Dunes site, the emergent soil has a diffused, darker upper surface. Below that comes a much cleaner, greyer sand and beneath that, the zone of accumulation. Dr. Patton's survey revealed to him that soils in the swales were not inundated throughout the year. They were inundated during periods of high rainfall, but because of the porosity of the soil, would drain quickly. On the entire property, he saw only four isolated areas that could be considered wetlands. In the majority of the area, the soils appeared to be emergent soils. Most met the typical horizon picture including a BH zone.
Using a specific site as an example, Dr. Patton traced to the BH horizon starting at approximately 42 inches down. The soil started lighter on top and proceeded to get darker as one went down to the zone of accumulation. That indicated that the water table was at or near 42 inches sufficiently during the year to achieve accumulation. Had the water table been nearer the surface more of the year, that would not occur. In Dr. Patton's opinion, this situation, including the water table level, stayed just about at that point all the time for at least a couple of hundred years if not for 1,000 years.
This is not to say that the water table will not move during periods of drought and over rain. It will, but those periods are relatively short and the general level of water table where the BH horizon is is just about normally at 42 inches throughout the Hammock Dunes property.
In preparing his analysis, Dr. Patton compared the swales work described above with the soils found in what he considered a wetlands area just north of 16th Road to see what a real wetlands soil in this area looked like. He found the latter to be black and mucky and typically wetland. He also took samples from Bonne Terre farms, which is a drained historical wetland. In this wetland, the soil was quite organic at the surface which showed sustained inundation of the surface. He also took samples at a place where Varn Lake comes close to State Road A1A and at that point, it was determined that there had been submergence, saturation, or inundation long enough to constitute a wetlands. The organic material was at a depth which indicated there that originally the area was wetlands but he cannot say when.
In general, then, if the interdunal swales had been inundated prior to the dredging operation of the mosquito control ditches, there would have been organic materials still in the bottom of these swales. The time necessary to leach it out would have been several hundred years. Since the BH horizon, with its level of organic material, was located at 42 inches, this indicated that, for the most part, the Hammock Dunes areas with their swales included were not historic wetlands. Dr. Patton agreed with Mr. Pyne that the digging of the mosquito control ditches did not materially lower the water table nor does he believe that except in the worse conditions, in the rainiest of rainy seasons, that the water table in one swale was ever connected to the water table in another.
In contrast to the above, Petitioner introduced testimony by various experts and residents which contradicted that referenced above. James M. Frazee, an employee of the St. Johns River Water Management District became familiar with the Hammock Dunes area in connection with a salt water intrusion
problem he was working on while employed with the U.S. Geological Survey in 1978 to 1980. During that period, he entered the site at least once a month. Based on his visits at the time, he found the area in question to be a combination of relic dunes with an interdunal lake system which holds water during periods of average to high water levels. His measurements of the water depth between the ridges showed it to be anywhere from 1 1/2 to 2 1/2 feet down. This was during a period when the water table was between 5 1/2 to 6 feet above mean sea level, and was a period of above normal rainfall. During the period 1965 to 1980 there was a period of less than normal rainfall during which the water table fell from the high above to approximately 6 inches above mean sea level.
Mr. Frazee contends that the interdunal swales are lakes and ditches dug by the mosquito control district have drained the area. In his opinion, were it not for these ditches, the ground in the swales would be much wetter, but Mr. Frazee cannot indicate by how much. His testimony, contradicted by that of Dr. Patton and Mr. Pyne, is not considered to be consistent with the weight of the evidence.
John Labie, an employee of DER specializing in water quality assurance, is familiar with the Hammock Dunes area and examined it as to ditching by a review of numerous aerial photographs and surveys. In his study, he tried to determine what the area looked like originally. In addition to the documentation he reviewed, he also walked a great portion of the area, personally examining the property in question. On the basis of his inquiry, he concluded that the area was previously a wetlands which was dried out by the mosquito control ditches. He admits that his depictions of historical wetlands, on the maps utilized for demonstrative purposes at the hearing, was not based on the same degree of accuracy and sophistication as was the basis for Respondent, Admiral's expert testimony.
Another evaluation was conducted by botanist Sydney T. Brinson, an employee of DER, whose job includes the preparation of jurisdictional determinations based on botanical studies. She visited the site herself and determined there are at least three connections to waters of the state and from these connections into the interior of the Hammock Dunes property. She contends then, that if there were not mosquito control exemption, at least some of the ditches would, at least partway up, be jurisdictional. It is her opinion that before the ditches were put in, based on old documentation, the area was a series of coastal dunal lakes and the lakes, as they existed, did not have much plantlife in them. Relying on the U.S. Coastal and Geodetic Survey maps, which refer to much of the areas as "open water," she contends that the area was a system of coastal lakes rather than marshes. Marshes contain vegetation. Lakes generally do not.
It is her further opinion that the interdunal waters, as interdunal lakes, total approximately 270 acres. Not all of these are connected at the surface. She feels that all of the individual systems north of the Florida East Coast Canal are more than 10 acres in area and would have to be over 2 inches in depth because of the fact that they are reflected as open water on the USGS maps. Based on her research, she concluded that prior to the digging of the mosquito control ditches, the area was a historic wetland. This opinion is not supported by the weight of the evidence, however.
Another expert in soils science, Dar Guam Cheng, visited the site on May 9, 1985, and, in addition, reviewed a 1918 soils map of the area. Back then the area consisted of hydric soils which is a wetlands soils. All types of soils found in the area in 1918 are considered hydric (wetlands) soils. Mr.
Cheng, however, took no samples himself on the Hammock Dunes property. His evaluation was based solely on the 1918 map, and is not considered to be of substantial value to the determination of this issue.
Burrell Miller, a 76 year old resident of Hammock Dunes since 1979, but who either lived or visited in the area since 1917, indicated that his family homesteaded the area around Malacompra Road in 1920. During the period 1917 through 1943, he recalled, there was always water storage in the Hammock Dunes area. There was, however, not always high water except in the 1926 hurricane. There is, however, fresh water generally there every time it rains and the water generally stays level with the sea level.
Mr. Miller recalls that from time to time in years past, boats were needed to cross the savannah to the beach. On other occasions one could wade in water up to one's waist. As he recalls, some of the soil was wet all of the time and never dried out. Mr. Miller's testimony, however, was fragmented and capable of numerous interpretations. It is not given the same weight as the scientific evidence presented by other parties.
Nonetheless, another resident, Petitioner, Gerald Schatz, started coming to the area in 1953 and settled there in 1954. Over the years, he has gone into the Hammock Dunes area quite frequently and it is his recollection that along Malacompra Road, there always seemed to be some water, at times, up to the floor board of his pickup truck. He can recall when the mosquito control ditches were started in 1953.
Even before he came to the area, Mr. Schatz' father-in- law lived there and always considered it wet. He recalls hearing others also describing the area as being wetlands. During the 1926 hurricane, it was flooded and again in 1957. Before the ditches were installed, there was, to his recollection, substantial standing water.
Mr. James J. Miller, state archaeologist for Florida and very familiar with the history of the area, is familiar with the Hammock Dunes area from the work he did on a Development of Regional Impact for the area. Having reviewed records and historical documents relating to this specific area, going back as far as 1605, he concluded that there was no natural waterway extending across the Hammock Dunes area. His study, however, dealt with the issues of navigability of waters not its hydrographics and his study did not deal with the issue of wetlands. Nonetheless, it is clear from the above, that the area was neither open water or a water course at any time in recorded history.
The overwhelming weight of the evidence clearly indicated that the Hammock Dunes property was not a historical wetlands within the framework and the intent of the statute or the rule. Admittedly, the area was inundated from time to time, especially after such periods of high rainfall as hurricanes, tropical storms, or above average rainy seasons. During those periods, the standing water which remained for a relatively short period of time was often of such magnitude as to come to the floor board of a pickup truck, or require the use of a skiff or other surface transport over the water to cross it. This clearly accounts for the memory of Mr. Miller as to him using boats to get to the beach and for the recollection of Mr. Schatz who remembered water coming to the floor boards of his truck
On the whole, however the scientific evidence presented by Admiral Corporation, including such expert testimony as that of Dr. Patton, Dr. Tabb, Mr. Pyne, and other highly qualified scientists who visited the site and
conducted reliable scientific evaluations of the area, all clearly lead to the inescapable conclusion that the area was for the most part and over the long run not a submerged wetland.
There can be little question that the majority of the "swales" on Hammock Dunes were either the result of or enhanced by mosquito control ditching operations of the East Flagler Mosquito Control District over the period from 1953 through completion. Though these ditches ultimately connect with the intercoastal waterway or the Florida East Coast Canal, both of which are waters of the state, these connections, with the exception of the ditch west of Varn Lake which is admittedly not exempt, are obviously due to mosquito control activities of EFMCD.
According to the best evidence available, the land in question was not a surface water body nor was it connected to a water of the state prior to the construction of the mosquito control ditch system. For the most part, the interdunal swales, which constantly hold water, are less than 10 acres in size and have an average depth of less than 2 feet of water in them throughout the year.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
The Department of Environmental Regulation's dredge and fill jurisdiction over the Hammock Dunes site is found in Section 403.817, Florida Statutes, as is the exemption from permitting requirements of those areas which have become wetlands, within DER's jurisdiction, solely due to mosquito control activity. Subsection (1) of Section 403.817 recites the intent of the Florida Legislature that DER establish a method of determining the natural landward extend of waters of the state and authorizes the agency to establish a method of making such determination based upon ecological factors which represent the fluctuations in water levels. In subsection (2), the department was authorized to establish by rule the method for determining the landward extent of waters of the state for regulatory purposes, requiring such extent be defined by plant species or soils which are characteristic of those areas subject to regular and periodic inundation by waters of the state. Recognizing that land owners should not suffer loss or acquire gain because of mosquito control actions of the state conducted on their property as a result of a government mosquito control program, the legislature stated:
To the extent that certain lands have come within department jurisdiction pursuant to this section or Chapter 253 solely due to in- sect control activities, these lands shall not be subject to permitting requirements for the discharge of dredge or fill material.
Consistent with the statutory authorization therefore, DER enacted Rule 17-4, Florida Administrative Code, which, in part defines the landward extent of waters of the state by plant species [17-4.02(17)], and outlines the criteria and requirements for dredge and fill activities and permitting (17- 4.28). The water bodies which require permits for dredge and fill activities are listed in subparagraph (2) of 17-4.28 and include:
rivers and natural tributaries thereto,
streams and natural tributaries thereto,
bays, bayous, sounds, estuaries, and natural tributaries thereto,
natural lakes, except those owned entire- ly by one person and except for lakes that be- come dry each year and are without standing water together with lakes of no more than 10 acres of water at a maximum average depth of
2 feet existing throughout the year,
Atlantic ocean out to the seaward limit of the state's territorial boundaries, and
the Gulf of Mexico out to the seaward limit of the state's territorial boundaries.
At subparagraph (g), the rule provides that natural tributaries [to the above] do not include intermittent natural water courses which act as tributaries only following the occurrence of rainfall and which normally do not contain contiguous areas of standing water. Thereafter the rule explains:
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 . . . .
Isolated areas which infrequently exchange waters with a described water body or provide only insignificant benefit to the water quality of a water body are intended to be designated uplands . . . .
The vegetation idices referred to in section 17-4.02(17), Florida Administrative Code, are presumed to accurately delineate the landward extent of such water bodies.
Therefore, since the currently existing connection of the interdunal swales and mosquito ditches to the Florida East Coast Canal or the Intracoastal Waterway, which bring them within the DER jurisdiction, are solely the result of the mosquito control activities which created the connections they are entitled to the insect control activities exemption set forth in the Section 403.817(2), Florida Statutes. Excepted is the ditch west of Varn Lake extending approximately half way up the side of Varn Lake from the South, which is not entitled to the exemption.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore,
RECOMMENDED that DER take final agency action adopting the preliminary determinations made by its Northeastern District of DER's permitting jurisdiction for the discharge of dredge and fill materials on Hammock Dunes as outlined in the DER Northeast District letter of August 9, 1984 to Admiral Corporation.
RECOMMENDED in Tallahassee, Florida this 23rd day of December, 1985.
ARNOLD H. POLLOCK
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of December, 1985.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 84-3604
In the preparation of this Recommended order, the proposed Findings of Fact submitted by Petitioner and Respondent were thoroughly considered and evaluated. As listed below, the individual proposed findings were accepted or rejected by the undersigned as indicated:
For the Petitioner:
1) accepted and incorporated in para 30
(a)-(e) accepted but not dispositive of any issue
- 6) accepted except for the last sentence of para 6 which is argument
rejected as contra the weight of the evidence
accepted
accepted but immaterial
10 - 12) accepted but not dispositive
irrelevant
irrelevant
irrelevant
accepted
rejected as irrelevant
(a) - (d) accepted
- 23) accepted but not controlling
24 - 25) rejected as argument, finding of fact
26 (a) (1) - (4) accepted but not conclusive or definitive
26 (5) rejected as a summary of documentation and not a mapped Findings of
Fact
26 (b) - (d) rejected as a summary of testimony and not a finding of fact
rejected as a summary of testimony and not a finding of fact
rejected
29 (a) - (d) rejected as argument summarization of testimony rather than
Findings of Fact
rejected as a summary of testimony rather than Finding of Fact
accepted
32 - 36) accepted
rejected as contra to the weight of the evidence
rejected as summary of testimony and not Finding of Fact
rejected as contra to the weight of the evidence and argument rather than Finding of Fact
rejected as summary of testimony and not Finding of Fact
1st and 2nd paras accepted, but 3rd paragraph rejected as not the better evidence
rejected as argument and not Finding of Fact
43 - 44) accepted
accepted
rejected as contra to the weight of the evidence
accepted as to the severance of Varn Lake from the major canal but rejected as to contra to the weight of the evidence as to the historical connection
rejected as contra to the weight of the evidence
accepted
accepted that Mr. Labie made such a "finding" but the finding is rejected as contra to the weight of the evidence
51 - 52) rejected as recitations of testimony and not Findings of Fact
53) rejected as far as categorization of the periodic wet areas as "lake systems"
54)
accepted as a statement of Mr. Schatz's recollection
accepted as a statement of the contents of a writing not dispositive of the issue
57 - 59) accepted
60) rejected as contra to the weight of the evidence For the Respondent:
accepted
accepted
accepted except for the term "swales" which is used merely descriptively and not binding as to definition
accepted
accepted
5 (a) - (c) rejected as recitations of testimony rather than Findings of
Fact
5 (d) - (8) accepted
rejected as contra to the weight of the evidence. Petitioner's
witnesses' testimony was, in general, in disagreement with that of Respondent's witnesses. However, as stated in the Recommended Order, the weight and quality of Respondent's evidence prevailed.
(o) - (q) accepted not as fact but as a recitation of the evidence presented by each witness
(a) - (c) accepted
- 11) accepted
12) accepted
COPIES FURNISHED:
Victoria Tschinkel Secretary
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
Deborah Getzoff, Esquire Ross Burnaman, Esquire
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
Randall E. Denker, Esquire Lehrman & Denker Law Offices
103 North Gadsden Street Post Office Box 1736 Tallahassee, Florida 32302
Timothy Keyser, Esquire Post Office Box 92 Interlachen, Florida 32048
Carlos Alvarez, Esquire Carolyn S. Raepple, Esquire Hopping Boyd Green & Sams
420 First Florida Bank Bldg. Post Office Box 6526 Tallahassee, Florida 32314
=================================================================
AGENCY FINAL ORDER
=================================================================
BEFORE THE STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
JERRALD SCHATZ, FRIENDS OF )
THE BARRIER ISLAND OF THE )
HAMMOCK, INC., and FLORIDA )
WILDLIFE FEDERATION, INC., )
)
Petitioners, )
)
v. ) DOAH CASE NO. 84-3604
) OGC FILE NO. 84-0735
ADMIRAL CORPORATION and ) STATE OF FLORIDA DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondents. )
)
FINAL ORDER
On December 23, 1985, the Division of Administrative Hearings' hearing officer in the above-styled case submitted his Recommended Order to me. A copy of that order is attached as Exhibit A. Pursuant to Section 120.57(1)(b)8., Florida Statutes, and Florida Administrative Code Rule 17-103.200, all parties
to the proceeding were allowed ten days in which to file exceptions to the Recommended Order. Petitioners, Jerrald Schatz, Friends of the Barrier Island of the Hammock, Inc., and the Florida Wildlife Federation, Inc. (hereinafter the "Petitioners"), requested and received an extension of time to file exceptions. Petitioners subsequently filed timely exceptions, a copy of which is attached as Exhibit 8. Respondents, Admiral Corporation ("Admiral") and the Department of Environmental Regulation (the "Department") filed a joint response to the Petitioners' exceptions, a copy of which is attached as Exhibit C. Admiral has extended the time for entry of a final order in this matter to April 4, 1986.
BACKGROUND
This proceeding involves the application of Section 403.817(2), Florida Statutes, to property owned by Admiral in Flagler County. Pursuant to Section 403.817, the Department is authorized to determine the landward extent of its jurisdiction over waters by dominance of plant species. However, the statute also provides that:
no landowner shall suffer any property loss or gain because of vegetation changes
due to mosquito control activities conducted upon his property, provided these activities are or have been undertaken as part of a governmental mosquito control program. To the extent that certain lands have come within department jurisdiction pursuant
to this section or chapter 253 solely due to insect control activities, these lands shall not be subject to permitting requirements for the discharge of dredge or fill material.
The property which is the subject of this dispute consists of a series of natural ridges and swales. As early as the 1920's and 1930's, some ditches were constructed in the area. In 1953, the East Flagler Mosquito Control District (EFMCD) began mosquito control ditching operations. These ditches are connected to the Florida East Coast Canal and the intracoastal waterway, both waters of the state.
At the request of Admiral, the Department conducted a site evaluation of Admiral's property to determine the extent of its jurisdiction for purpose of dredge and fill permitting. That evaluation culminated in a letter from Doug Dutton, the Department's District Manager in Jacksonville, to Admiral delineating its jurisdiction. The Department determined that, except for one ditch which had been constructed in a previously jurisdictional area, the ditches in question had been dug in uplands and were connected to waters of the state as a result of mosquito control activities of the EFMCD. Thus the Department concluded that Section 403.817(2) applied to those ditches.
At the final hearing in this matter, the Petitioners contended that the exemption does not apply. They alleged that the ditches in question were actually dug in waters, interdunal lakes, and not in the uplands and that, in any event, only those ditches actually constructed by the EFMCD would be exempt.
The hearing officer concluded that the ditch system, except for one ditch, was exempt as it was connected to waters of the state solely as a result of mosquito control activities. He specifically found that the ditches had been dug in uplands.
RULINGS ON EXCEPTIONS
The majority of Petitioners' exceptions involve the construction of Section 403.817(2), Florida Statutes, and request that additional conclusions of law be made. After citing the applicable statutes and rules, the hearing officer concluded that the entire ditch system, excluding one ditch west of Varn Lake, was exempt from the Department's jurisdiction since the ditches were connected to waters solely as the result of mosquito control activities.
In their first exception, Petitioners argue that Section 403.817(2) created an exemption only for the individual or entity who owned the property at the time the mosquito control ditches were dug. Petitioners make numerous legal arguments in support of this contention; however, I find no basis in the actual language of the exemption to support such a construction. Accordingly, I reject this exception.
Section 403.817(2) contains two separate sentences addressing the mosquito control ditch exemption. The first sentence provides that "no landowner shall suffer any property loss or gain" as a result of the mosquito control activities. The second sentence states that "certain lands" that have come within the Department's jurisdiction due to mosquito control activities shall not be subject to permitting requirements. These sentences must be read together in interpreting the exemption as they constitute a single test. I see no basis in any of this language for restricting the exemption to the original landowner. Subsequent landowners, without the benefit of the exemption, would stand to lose as much as the original owner. Unless specifically provided otherwise, all of the statutory and rule exemptions from the Department's regulatory jurisdiction apply to the property or facility and not to a particular individual. There is no basis to apply this exemption differently.
Petitioners' next exception requests that I make an additional conclusion of law limiting the application of the exemption to filling and not dredging. Section 403.817(2) provides that property covered by the mosquito control exemption "shall not be subject to permitting requirements for the discharge of dredge or fill material." (Emphasis added).
The Department's rules define both "dredging" and "filling;" however, neither of those definitions is identical or even similar to the language of the exemption. Rule 17-4.02(12) defines dredging as "excavation, by any means, in waters of the state." Rule 17-4.02(15) defines filling as "the deposition, by any means, of materials in waters of the state." Clearly, the discharge of dredge or fill material into waters would fall within the definition of filling. It does not appear, however, that excavation would involve the discharge of any material. I conclude, therefore, that the exemption applies only to filling activities.
The Respondents argue that this issue may not be raised in exceptions to the Recommended Order since it was not raised in pre-hearing pleadings. For this proposition they cite Woodholly Associates v. Department of Natural Resources, 451 So.2d 1002 (Fla. 1st DCA 1984). Woodholly is not exactly on point, however. In that case the Petitioners attempted to raise what was essentially a factual issue subsequent to the hearing. The court noted that a
petitioner challenging a permit issuance must identify areas of controversy and raise issues for resolution by the hearing officer. Obviously, since the hearing officer is the finder of fact, factual issues not raised before the hearing officer should not be raised before the agency. The issue raised by Petitioners' exceptions in this case, however, is purely a legal issue. As agency head, I have the ultimate responsibility for making conclusions of law, particularly as they involve interpretation of statutes which the Department is charged with implementing. If the hearing officer's conclusions of law are incorrect or incomplete in this regard, I may reject or modify them. It is irrelevant whether an issue of legal interpretation is raised in post-hearing pleadings by a party or sua sponte by the agency head. I do not consider myself limited to legal interpretations argued to the hearing officer. I would note that this does not result in any unfairness since the Respondents were afforded an opportunity to respond to Petitioners' exceptions and present opposing legal arguments.
Since I concur with Petitioners' interpretation of Section 403.817(2), Florida Statutes, on this point, I adopt an additional conclusion of law holding that the exemption applies only to filling activities.
Petitioners' third exception requests that I construe the exemption to apply only to mosquito control activities occurring after 1977, the effective date of the statute. This exception must be rejected. The date of construction of the ditches, lagoons or other structures is irrelevant to the determination of the Department's jurisdiction. Ditches constructed prior to 1977 would still be within jurisdiction if they are connected to waters of the state. The only relevant issue is whether the area has come within jurisdiction solely due to mosquito control activities, whenever they might have been conducted.
In their fourth exception, Petitioners argue that the exemption should be applied only to the wetland fringe contiguous to the ditches and not to the mosquito control ditches themselves. This interpretation is contrary to the Department's existing practice in this regard and is rejected.
Petitioners' arguments in support of their position on this point are not persuasive. While the statute speaks to "certain lands" coming within jurisdiction, both the ditches and any adjacent wetlands resulting from establishment of the mosquito control ditches would have been "lands" prior to the mosquito control activities. The operative language of the statute states that the Department's permitting requirements shall not apply to lands that have come within jurisdiction due to mosquito control activities. The hearing officer has found that the ditches in question were dug in uplands and were not previously jurisdictional. They were connected to waters of the state solely as a result of mosquito control activities and, thus, fall within the exemption.
Petitioners' fifth exception contends that the exemption applies only where the property owner will lose or gain land. Again, the operative provisions of the exemption are contained in the second sentence which states that permits will not be required for certain lands. I construe the preceding sentence to be essentially intent language reflecting the legislature's concern that the status quo not be affected by mosquito control activities.
In their sixth exception, Petitioners argue that only those ditches which were actually dug by a governmental mosquito control program should be exempt
from permitting requirements. The hearing officer has found that some of the ditches in question were dug prior to undertaking of mosquito control activities in the 1950's and that those ditches were not connected to waters of the state until the mosquito control ditching by the EFMCD took place.
Petitioners make numerous policy arguments and raise concerns about the possibility of having the exception apply to an extensive ditch system because of a minor connection to waters that is a result of mosquito control. While I recognize the Petitioners' concerns, I must be governed by the language of the statute; and, in this case, the language is clear. The statute provides that permitting requirements do not apply "to the extent that certain lands have come within department jurisdiction . . solely due to insect control activities."
All of the ditches in this case, whether dug by the EFMCD or by another entity, meet that test. All of the ditches "have come within department jurisdiction" as result of being connected to waters of the state and that connection was by a mosquito control ditch dug by a governmental mosquito control program. I do not accept Petitioners' construction of the exemption and reject this exception.
The seventh exception raises both factual and legal issues. Petitioners' allege that the hearing officer erred in finding that the area in question was not historically connected to waters of the state prior to mosquito control activities.
As a legal matter, Petitioners argue that a groundwater connection between interior wetlands and a water body, such as the Atlantic Ocean, would be a sufficient connection to establish jurisdiction. The applicable rule in this case is Section 17-4.28(2), Florida Administrative Code, which provides that a dredge and fill permit is required for activities conducted in certain listed water bodies and their natural tributaries or in waters which are "connected directly or via an excavated water body or series of excavated water bodies to" one of the listed natural waters. The Department has never construed this rule to include a groundwater connection, and I decline to do so under the facts of this case. The groundwater connection which Petitioners allege exists here is not a direct connection or connection via excavated water bodies as contemplated by Rule 174.28(2). 1/
In addition, Petitioners allege as a matter of fact that a connection existed between interior wetlands and Lake Varn and the Florida East Coast Canal (Petitioners' proposed finding of fact No. 2.c.), the Atlantic Ocean through periodic blowouts in the dune system (Petitioners' proposed findings of fact 53,
55 and 56), and the headwaters of the Matanzas River (Petitioners' proposed finding of fact 26.a.4.)
The hearing officer accepted each of these proposed findings except for number 53 which was rejected. However, the proposed findings were either found not to be dispositive of any issue in the proceeding or were accepted for only limited purposes, for example, number 55 was accepted as reflecting the witness' personal recollection.
After reviewing each of these proposed findings of fact, I do not find them to be inconsistent with the Recommended Order. None of the proposed findings actually establishes that a historical connection existed. There is competent substantial evidence in the record to support the hearing officer's finding of fact that there was no connection, and that finding is accepted.
In their eighth exception, Petitioners argue that the hearing officer erred in not specifying a date at which historical jurisdiction should be established. Petitioners contend that the hearing officer must go back and look at the land in its natural state, prior to any ditching or draining.
In this case, I find it unnecessary to determine a specific date. Contrary to Petitioners' contention, the hearing officer has made numerous findings regarding the condition of the area prior to ditching activities. He found, based on the testimony of soils experts, that the Hammock Dunes area had generally not been an historic wetland (Finding of Fact No. 23) and that the character of the area had not changed significantly for at least a couple of hundred years (Finding of Fact No. 20). Moreover, the hearing officer found that mosquito control ditching may have lowered the groundwater table somewhat but that that would not have changed the Respondent's testimony concerning the frequency of inundation of the area (Finding of Fact Nos. 11 and 12).
Accordingly, this exception is rejected.
Petitioners' next exception is somewhat confused but the primary contention appears to be that the exemption would not authorize the excavation new water bodies in uplands to be connected to waters of the state by mosquito control ditches. Ruling on this point would require my speculation as to Admiral's plans for future development in the area, and I do not have that information before me. The only issue presented here is whether the exemption is applicable to the Hammock Dunes site, and I decline to make an additional conclusion as requested by Petitioners.
The tenth exception requests that I reject the hearing officer's findings of fact numbers 30, 31 and 34. Finding of Fact number 30 includes a statement that Mr. Miller, a long-time resident of the area testified to personal recollections of the state of the area between 1917 and 1943. Petitioners argue that Mr. Miller was not on site between 1939 and 1947. Even accepting Petitioners' contention, however, I find no basis for overturning the remainder of the hearing officer's finding. It is the hearing officer's responsibility as the trier of fact to evaluate the credibility of witnesses. In this case he judged Mr. Miller's overall testimony should not be given the same weight as scientific evidence presented by Admiral. I will not reweigh the testimony and substitute my evaluation.
In finding of fact number 31, Petitioners object to a paraphrasal of Mr.
Miller's testimony. I do not find that paraphrasing to be inaccurate or misleading and reject the exception.
Finally, I do not find the hearing officer's statement in Finding of Fact number 34, "that the area was neither open water or a water course at any time in recorded history," to be inconsistent with his acceptance of any of Petitioners' proposed findings. When the Recommended Order is read in its entirety, including, for example, the hearing officer's findings regarding periodic inundation of the area, and consideration is given to the weight given the testimony of various witnesses, I find no inherent contradictions.
Petitioner's eleventh exception relates to the hearing officer's handling of numerous proposed findings of fact. specifically, no ruling was made on proposed finding of fact numbers 54, 61, 62, and 63. In addition, Petitioners object to the ruling made on proposed findings numbers 7, 26(b)-(d), 27, 29(a)- (d), 30, 37-40, 42, 46, 48, 50-52 and 60. Each of those exceptions will be dealt with separately.
I find it unnecessary to remand the case as suggested by petitioners because, as agency head, I make the following specific rulings on those proposed findings which the hearing officer did not specifically address:
54. Rejected as immaterial and cumulative. The hearing officer has recognized in other findings of fact that blowouts in the dune system occasionally occurred. Such infrequent occurrences do not provide a basis for dredge and fill jurisdiction, however.
61-63. Rejected as irrelevant. These proposed findings relate to possible future construction activities by Admiral on the site. I have previously declined to make any additional conclusions of law on this point and I reject these proposed findings on the same basis.
The hearing officer rejected proposed findings of fact numbers 26(b)-(d), 27, 29(a)-(d), 30, 38, 40, 42, and 51-52 as a summary of testimony and not a finding of fact. I find no basis for overturning the hearing officer's rulings. Numbers 26(b)-(d) relate generally to the issue of how much water could be found on site historically. Even if the hearing officer's ruling could be found to be incorrect, the substance of these proposed findings is contained in the Recommended Order in Findings of Fact numbers 30-33.
Proposed finding number 27 recites that admiral's expert witnesses had not seen the historical condition of the site or talked to individuals who had.
This is irrelevant. After weighing the credibility of the witnesses, the hearing officer accepted the expert testimony over the personal recollections of Petitioners' witnesses. I find no basis for reversing him on that point.
Proposed findings numbers 29(a)-(d) and 30 relate to the credibility of Admiral's expert witnesses. For the reasons stated above, Petitioners' proposed findings are rejected.
Proposed finding numbers 38, 40, and 42 are contrary to the hearing officer's finding that no interdunal lake system existed at the site. Since there is competent substantial evidence to support the finding in the Recommended Order, the proposed findings are rejected.
The hearing officer also rejected proposed findings numbers 7, 37, 39, 46, 48, 50 and 60 as contra to the weight of the evidence in the case of each of the proposed findings, the Recommended Order contains factual findings that are in direct conflict. While there may be some evidence in the record that would support Petitioners' proposed findings, there is also competent substantial evidence to support each of the hearing officer's findings. Thus the hearing officer correctly rejected the proposed findings.
Petitioners' last exception alleges that the Recommended Order is inconsistent with both a legal memorandum from a Department attorney dated September 24, 1985, and the agency's decision in a separate case involving a jurisdictional determination for Amelia Island Plantation. No specific inconsistency is identified, however. After reviewing the case file and the memorandum, I find no contradictions between this final order and those decisions. Thus this exception is rejected.
Accordingly, having considered the record in this matter, it is ORDERED that
The hearing officer's Recommended Order is adopted with the additional legal conclusions in this order.
The Department adopts as final agency action its proposed jurisdictional determination as contained in the letter of August 9, 1984.
Any party to this Order has the right to seek judicial review of the Order pursuant to Section 120.68, Florida Statutes, by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Clerk of the Department in the Office of General Counsel, 2600 Blair Stone Road, Tallahassee, Florida 32301; and by filing a copy of the Notice of Appeal accompanied by the applicable filing fees with the appropriate District Court of Appeal. The Notice of Appeal must be filed within thirty (30) days from the date this Order is filed with the Clerk of the Department.
DONE AND ENTERED this 4th day of April, 1986.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
VICTORIA J. TSCHINKEL
Secretary
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
(904) 488-9730
ENDNOTE
1/ Accordingly, Petitioners' proposed findings of fact numbers 57 through 59, while accepted by the hearing officer, are not relevant to the issue of jurisdiction.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that the foregoing FINAL ORDER has been hand delivered to Arnold H. Pollock, Hearing Officer, Division of Administrative Hearings, 2009 Apalachee Parkway, Tallahassee, Florida 32301; and by United States Mail to Randall E. Denker, Lehrman & Denker Law Offices, 103 North Gadsden Street, Post Office Box 1736, Tallahassee, Florida 32302; and Carlos Alvarez, Carolyn S. Raepple, Hopping Boyd Green & Sams, 420 First Florida Bank Building, Post Office Box 6526, Tallahassee, Florida 32314 on this day of April, 1986, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT OF ENVIRONMENTAL REGULATION
MARY F. SMALLWOOD@
General Counsel
Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 904/488-9730
| Issue Date | Proceedings |
|---|---|
| Dec. 23, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 04, 1986 | Agency Final Order | |
| Dec. 23, 1985 | Recommended Order | Existing connection of swales and ditches to Florida's East Coast Canal or Intracoastal Water Way makes them within Department of Environmental Regulation (DER) jurisdiction. |
FREDERICK B. SPIEGEL vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 84-003604 (1984)
LAWRENCE F. KAINE vs DEPARTMENT OF ENVIRONMENTAL REGULATION, 84-003604 (1984)
MELVIN J. LANEY vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 84-003604 (1984)
DAVID M. ANTONIAK vs. DEPARTMENT OF ENVIRONMENTAL REGULATION, 84-003604 (1984)
