Powers, and Richard W. Cantrell. Additionally, Respondent's Exhibit numbered 1 was admitted in evidence.
Petitioner Maurice Fox presented the testimony of Howard L. Searcy and Joe Edmisten. Additionally, Petitioner's Exhibits numbered 1-24 were admitted in evidence.
On August 30, 1985, Respondent filed a Notice of Supplemental Authority and attached a copy of the August 29, 1985, opinion of the Supreme Court of Florida in the case of Department of Environmental Regulation v. E. Peter Goldring, So. 2d, Case No. 65,769 (Fla., August 29, 1985). Petitioner's Motion to Strike, filed on September 5, 1985, requests that the last two paragraphs in Respondent's Notice be stricken since they constitute argument of counsel, and argument is prohibited in a Notice of Supplemental Authority. Petitioner's Motion to Strike be and the same is hereby granted.
Proposed recommended orders containing findings of fact have been submitted by the parties and considered in the preparation of this Recommended Order. When the parties' findings of fact were consistent with the weight of the credible evidence introduced at final hearing, they were adopted and are reflected in this Recommended Order. To the extent that the findings were not consistent with the weight of the credible evidence, they have been either rejected or, when possible, modified to conform to the evidence. Additionally, proposed findings which were subordinate, cumulative, immaterial or unnecessary have not been adopted.1
Petitioner Maurice Fox owns certain real estate (hereinafter sometimes "the Fox property") located in central Palm Beach County consisting of all of Sections 12 and 13 and the easterly 3/4 of Section 24, (less certain rights of way) in Township 43 South, Range 41 East.
Over a period of years, dikes have been constructed around the Fox property. The result is that the property is and has been enclosed by dikes.
Larry O'Donnell, Respondent's dredge and fill supervisor in its West Palm Beach office, visited the Fox property on two occasions in 1978 after receiving a request from
the Treasure Coast Regional Planning Council to determine whether the Department of Environmental Regulation (hereinafter "DER") would have dredge and fill jurisdiction over the property. After his first visit on February 24, 1978, he determined that it was questionable whether DER had dredge and fill jurisdiction over the property due to the lack of any noticeable direct connection to waters of the state.
He returned to the Fox property on March 12, 1978, specifically to look for a connection between the property and waters of the state. He discovered a breach in the dike on the east side of the property approximately l/2 to 3/4 of a mile north of Okeechobee Boulevard. He observed water flowing from the west side of the dike through the breach to a ditch located just east of the dike, then south to Okeechobee Boulevard, then easterly and parallel to Okeechobee Boulevard approximately 25 yards, then under a culvert at Okeechobee Boulevard to a canal which ultimately drained into Canal C-51, which discharges into Lake Worth (the sole natural waterbody in the route), which discharges into the Atlantic Ocean. Based upon his observations, O'Donnell determined that DER did have dredge and fill jurisdiction over the Fox property due to a hydrological connection between the property and waters of the state.
Until approximately five years ago there were "stop lock risers" at the culvert on the north side of Okeechobee Boulevard that prevented water from flowing through the culvert and were only opened when the Lake Worth Drainage District determined that opening the risers would not have an adverse effect on property south of Okeechobee Boulevard. Those "stop Lock risers" were removed so as to allow a constant flow.
There is also a control structure at the C-51 Canal on Lake Worth that is sometimes closed preventing flow into Lake Worth and sometimes open.
On May 16, 1984, Petitioner wrote DER requesting a determination as to whether DER maintained its position that it had jurisdiction over any proposed dredge and fill activities on the Fox property and the extent to which that jurisdiction extends over the subject property, citing some changes in circumstances since DER's 1978 determination. On August 29,1984, Petitioner again wrote DER, noting that DER had not yet indicated when a jurisdictional determination would be made, and citing several projects with allegedly similar characteristics to the Fox property over which DER had determined it had no jurisdiction. On November 9, 1984, Petitioner again wrote DER,
noting that DER had still not made a jurisdictional determination and had not yet indicated when such determination would be made.
On January 29, 1985, several DER employees, including a hydrologist and a botanist, visited the Fox property. Upon inspecting the dike to the east of that property, they discovered a breach with water flowing from the west through the breach into the ditch on the east side of the dike. The hydrologist followed the water as far as the culvert under Okeechobee Boulevard at which point the water was not backing up but was still flowing. It was therefore believed that the site is connected hydrologically and hydraulically to other waters of the state.
On February 27, l9S5, DER responded to the May 16,_1984 request for determination of jurisdiction and the extent of any jurisdiction. DER advised Petitioner that it does have a dredge and fill jurisdiction for the majority of the "wetlands" located within the property boundaries and further advised Petitioner that any construction activities performed on, in, or over the "wetlands" will require a dredge and fill permit from DER prior to commencement of construction. Petitioner's request for a formal hearing followed receipt of that letter.
Pursuant to a verbal agreement with the adjoining landowner to the east, on March 26, 1985, Petitioner filled the breach in the dike by excavating fill from the ditch on the east side of the dike in an area approximately opposite the breach.
When DER personnel again visited the site on April 29 and 30, 1985, there was no breach, and no surface water was flowing over or through the dike. Accordingly, there was no hydrological connection on that date.
Although Petitioner failed to obtain a permit for the excavation of the ditch to the east of the dike to obtain fill material for the breach, and although the issue of whether a permit was required for that activity was initially raised during the final hearing in this cause, DER changed its position during the hearing and decided that the fact that the fill may have come from the ditch was not relevant to the question of jurisdiction in this proceeding although that issue may be raised elsewhere.
Since there is a fall from the Fox property east toward the historic Loxahatchee Slough, the dike to the east of
the Fox property was constructed in 1965 to impound that overland flow and prevent it from flowing onto Petitioner's neighbor's property to the east. Although the dike was described at various times during the final hearing in this cause as being adjacent to the Fox property or next to the Fox property, the parties agree that the dike is not located on the Fox property but rather is located on property to the east of the Fox property. No evidence was offered to show the distance between the dike and the eastern boundary of the Fox property however, an aerial photograph admitted in evidence without objection clearly shows that the dike is not adjacent to the boundary of the Fox property although it is near the eastern boundary. That aerial photograph clearly indicates that the property east of the Fox property continues for a distance west of the dike where it is then abutted by the right of way for State Road No. 7.
Repairs have been made to the east dike on several occasions, starting in the mid-70's. The breach which existed on January 29, 1985, was caused by a combination of factors. First, there is a substantial amount of all-terrain vehicular traffic crossing the dike at that point, causing the dike to wear down and weaken. Second, the hydrostatic head increases pressure against the weakening dike. Lastly, the repairs may not be properly done as was the case for the March, 1985 repair where the placed fill was not compacted and was porous. With such a combination of factors, the dike is likely to fail again.
When the breach was filled in March of 1985, a ramp was constructed approximately 60 feet north of the site of the breach. Since the breached location was in a depressed area which was very wet on both sides, the ramp was designed to provide a crossing for off-road vehicles at a drier point. Other than constructing the ramp, Petitioner has taken no steps to discourage vehicular traffic from utilizing his property or driving over the dikes. No signs have been posted, and no fences have been built.
Petitioner has never obtained a permit from DER prior to effectuating any repairs to the dike, and no DER personnel had ever advised that such a permit would be required.
Before the breach in the east dike was filled in March of 1985, it measured no less than 20 and no more than 50 feet wide. The dike in question is approximately 1 mile long and connects to another dike which is approximately 2 miles long.
Needed repairs to the dike are not always effectuated immediately. During extended periods of time, particularly during wet periods, the necessary equipment is unable to reach the specific locations requiring repair. Therefore, there are occasions when the dike is open during wet periods for long periods of time.
At the time of the hearing, the parties stipulated that there was presently no water flowing off of or on to the Fox property. Witnesses for both parties agreed that, even when the dike was breached, water did not always flow through the breach.
In hydrological terms, the flow of water through the dike when it was breached can be characterized as "intermittent." Under DER's rules, an intermittent stream is one that flows only immediately after rainfall. No data was offered as to the amount or recency of rainfall in the area prior to the two observations by DER personnel of water flowing through a breach in March 1978 and January 1985. One of DER's witnesses admitted that he did not have sufficient information to determine whether the flow of water when a breach exists would be considered intermittent under the Department's rules.
The parties further agree that a breach in the dike does not have the effect of draining the Fox property. During such times, wetlands and impounded areas still exist due to the elevations within the Fox property boundaries.
While the area of the breach itself was bare of vegetation, those plants that surrounded the breach were on the Department's list of transitional indicator species.
As stipulated by the parties, there is one area along the east dike where a strip of cladium jamaicensis (saw grass) is growing over the dike north of the breached area. The parties further agree that the saw grass is the dominant species in the ground cover stratum at that particular point and that cladium jamaicensis is an indicator species listed in the submerged lands vegetative index for fresh waters in Florida under DER's rules. Witnesses for both parties further agree that there are a number of non-indicator species present in the area where the saw grass grows across the dike. In fact, of the plants identified, only the saw grass is on DER's indicator species list. Looking at the area in its entirety, non- indicator species are dominant.
Where the saw grass crosses the dike, the dike is three feet high and shows no evidence of water inundating the area or flowing over the top of the dike. It appears that the dike in that area included within it bits of muck and saw grass, which explains why the saw grass could be growing there despite not being inundated by water. DER's witness admits that saw grass can grow in an area not regularly inundated with water. The presence of the saw grass alone, therefore, does not establish a vegetative connection between the waters of the state in the excavated ditch on the east side of the dike and the wetlands on the west side of the dike even though saw grass is among other wetland indicator species growing in the ditch to the east of the dike and is further present on the west side of the dike.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Section 120.57(1) Florida Statutes.
At the prehearing conference held in this cause and again at the commencement of the final hearing, the parties stipulated that the burden of proof as to jurisdiction is on, and, therefore, DER presented its case first and exercised its right to rebuttal. Yet, in its proposed recommended order, DER changes its position and claims that Petitioner must prove" lack of jurisdiction." DER misunderstands both the law and the meaning of an agreement entered into by an attorney on behalf of a client: as to the former, there is no presumption that DER has jurisdiction unless someone can prove otherwise, as to the latter, DER's attempt to avoid its agreements entered into during litigation merits no further discussion by this forum other than to say such conduct will not be countenanced. Petitioner has not applied for a permit and has no burden of proving entitlement to one. Rather, Petitioner has requested that DER advise whether it is asserting jurisdiction over Petitioner's land and, if so, the extent to which DER asserts it has jurisdiction. Further, the law is well settled that and agency asserting jurisdiction over an activity has the burden of proving that jurisdiction. That such rule has been followed by DER is evident from the copy of the Final Order entered by the Secretary of DER on June 12, 1984, in the case of State of Florida, Department of Environmental Regulation v. Fleming, DOAH Case No. 83-3239, which order was admitted in evidence as part of Petitioner's Exhibit numbered 10.
The parties further stipulated throughout the final hearing that this proceeding is governed by DER's "old rules" for determining jurisdiction.
Turning to the first asserted basis for jurisdiction-- the hydrologic connection claimed to have been illegally severed by repairs to the east dike, DER must establish (1) that it had jurisdiction when the breach was open and (2) that the repairs were an illegal severance of that jurisdiction. DER has failed to prove, even by a preponderance of the evidence, that it has jurisdiction over any portion of the Fox property. Although DER has proven that on two occasions water flowed from the west side of a dike through a breach in that dike to a ditch constituting waters of the State on the east side of that dike, both parties agree that that dike is not located on the Fox property, and DER has presented no evidence as to the distance between that dike and the Fox property or that water flowed continuously or contiguously from the Fox property across the State Road No. 7 right of way and across the property east of that right of way reaching the dike and then flowing through the breach in that dike. DER having failed to prove jurisdiction over the Fox property as a result of past breaches in the dike located on Fox's neighbor's property, and DER having stipulated that there was no water flowing at the time of the final hearing in this cause, there is no hydrologic connection between the Fox property and waters of the state.
Moreover, both parties agree that DER has no jurisdiction over ". . . 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." Section 17-4.28(2)(g), Florida Administrative Code. DER has failed to prove that the flow of water through the dike when it was breached was subject to DER jurisdiction since DER did not prove that the flow was not intermittent. Although DER presented testimony that on two occasions (one in 1978 and one in 1985) water was flowing through the breach, DER presented no rainfall data or evidence that waters on the Fox property are normally contiguous to the water in the ditch to the east of the dike. Rather, the numerous photographs of the breach admitted in evidence show no water surrounding that breach.
For purposes of determining jurisdiction, there is no distinction between naturally-connected jurisdictional areas and areas which become connected as a result of human activities. Regardless of whether the breach in the east dike was caused by
poor repairs, hydrostatic head, or the traffic which Petitioner has allowed for many years to access that dike across his property, there has been on occasion a direct hydrological connection between property on the west side of the east dike and the ditch on the east side. When Petitioner filled the breach in the dike, he severed that connection. It is immaterial whether control structures were open or closed and whether "stop lock risers" were in place.
A major source of controversy involves the characterization of the repairs to the dike. DER's position is that the repairs constituted "restoration" rather than "maintenance" and that a permit is necessary for restoration. Petitioner's expert, an engineer with considerable experience in both dike maintenance and working with DER's rules, is unaware of such a distinction being applied by DER in the past and considers the repairs to be maintenance, as they involved a relatively minor breach considering the size of the dike, were accomplished with a minimum of effort, and were usually made as part of other maintenance work on the dike. Although DER's general counsel has determined that the department's exemption from permitting for dike maintenance does not include restoration activities, that interpretation has not been made part of a department rule nor has the department otherwise publicized any distinction. Although two of DER's witnesses understand the difference to be that repairs to the dike to maintain its integrity before being breached constitute maintenance while repairs to the dike after it has "failed" by being breached constitute restoration, DER's dredge and fill supervisor O'Donnell believes that under certain conditions a breach as wide as 50 feet could be repaired or "restored" without a permit because it would fall within the maintenance exemption in the department's rules.
The exemption from permitting requirements for dike repair is found in Section 403.813(2)(g), Florida Statutes (1983), and it is repeated verbatim in Section 17-4.04(10)(i), Florida Administrative Code, as follows:
The maintenance of existing insect control structures, dikes and irrigation and drainage ditches, provided that spoil material is deposited on a self-contained upland spoil site which will prevent the escape of the spoil material into waters of the state. . . . In all cases, no more dredging is to be performed than is
necessary to restore the dike or irrigation or drainage ditch to its original design specifications. [Emphasis added.]
Although DER argues that the legislature intended to create a distinction between maintenance and restoration, such an intention is neither evidenced by the statute itself nor by DER's rule. Further, DER failed to provide a record foundation for such a non-rule policy.
It is not necessary to resolve the maintenance/ restoration controversy under the facts of this case, however. Even if filling the breach constitutes maintenance, Petitioner would not qualify under the maintenance exemption. Since that exemption, by its own terms, only applies where the fill material is deposited on a self-contained, upland spoil site, and since the parties agree that the breach in question was located in an area of the dike which crossed wetlands, depositing fill in that location did not involve an upland spoil site.
The second basis claimed to support jurisdiction is the vegetative "connection" represented by the saw grass growing over the dike in one area. Section 17-3.021(8), Florida Administrative Code which defines "dominance" for purposes of this proceeding, does not state that a single stratum should be used in isolation to determine whether indicator species are dominant in an area. Further, whether looking at the area as a whole or looking at the other strata, non-indicator species are dominant. As pointed out by the Supreme Court of Florida, DER does not have jurisdiction over every area containing listed aquatic vegetation. Department of Environmental Regulation v. E. Peter Goldring, So. 2d, Case No. 65,769 (Fla., August 29, 1985). The evidence clearly establishes that the saw grass growing over the dike in that area bears no relationship to the presence or absence of waters of the state since that area is not inundated and no water has been observed flowing over the top of the dike in the area of the saw grass. Accordingly, DER has proven no vegetative connection.
Petitioner presented unrebutted testimony that DER has no jurisdiction over the northerly two sections of the Fox property. Section 24, the southerly section containing the area of the prior breach in the dike and the area of saw grass growing over the dike, is also not subject to DER's jurisdiction for the reasons stated above.
When DER advised Petitioner that it was asserting jurisdiction over the Fox property, it failed to delineate the extent of the jurisdiction it was asserting but merely advised that it had dredge and fill jurisdiction for the majority of the wetlands located within the property boundaries. In its opening statement at the final hearing, DER stated that it would not attempt to establish the extent of its jurisdiction inside the property, and a DER witness testified that DER has not yet determined the extent of jurisdiction it is claiming. DER's position on the extent of its claimed jurisdiction is fatal. As stated above, Petitioner's testimony that DER has no jurisdiction over Sections 12 and 13 is unrebutted. Even if DER had jurisdiction over Section 24 due to a hydrologic connection or a vegetative connection, the extent of that jurisdiction would be quite small. If the "saw grass connection" or the vegetation surrounding the breach could be used to classify those areas as transition zones for determining the landward extent of waters of the state pursuant to Section 17-4.02(17), Florida Administrative Code, DER's jurisdiction would only extend for the first 50 feet or one-quarter of that area, which- ever is greater. Since DER presented no evidence regarding the size of each of those transition zones or the distance to which each of those extends across the property west of the dike through the right of way for State Road No. 7 and into the Fox property, and since the evidence indicates that the Fox property is composed of areas of wetlands impounded by uplands, DER has failed to prove that its jurisdiction extends into the Fox property due to transition zones. Even if it did, only a small portion of Section 24 would be involved. There is no evidence as to any connections between wetlands on the Fox property that would allow DER to travel, jurisdictionally, through that property.
Although Petitioner introduced evidence as to other "similar" properties over which DER had declined to assert jurisdiction, the evidence is not strong enough to support a finding of fact to show the extent of similarity or disparate treatment by DER as to Petitioner based thereon.
