STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COMMISSIONERS OF ) JUPITER INLET DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2751RX

)

DEPARTMENT OF NATURAL )

RESOURCES, )

)

Respondent. )

)

FINAL ORDER

For Petitioner: Thomas M. Beason, Esquire

Tallahassee, Florida

and

William R. H. Broome, Esquire West Palm Beach, Florida

For Respondent: Eugene E. McClellan, Jr., Esquire

and

James Antista, Esquire Tallahassee, Florida

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, in Tallahassee, Florida, on June 18, 1987. The transcript was filed on July 9, 1987. The parties filed proposed final orders. Rulings on proposed findings of fact are made in the appendix to this Final Order.

This petition was initiated pursuant to Section 120.56, Florida Statutes (1985), and seeks a determination that Rule 18-20.002(26), Florida Administrative Code is invalid. The petition as originally filed challenged Rule 16Q-20.03(24) and 16Q-2.05. Rule 16Q-20.05 has been repealed and Rule 16Q- 20.03(24) was renumbered as Rule 18-20.003(26), Florida Administrative Code.

ISSUE

The Jupiter Inlet District, a special taxing district located in northern Palm Beach County maintains that the definition of "public navigation project" found in Rule 18-20.003(26), Florida Administrative Code, is invalid. It reads:

"'Public navigation project' means a project primarily for the purpose of navigation which is authorized and funded by the United States Congress or by port authorities as defined by Section 315.02(2), Florida Statutes."

The term public navigation project is substantively used in Rule 18- 20.004(1)(e), Florida Administrative Code, which establishes management policies, standards and criteria used by the Board of Trustees of the Internal Improvement Trust Fund when deteremining whether to approve request for activities on sovereignty lands in aquatic preserves. That rule states that:

"(e) A lease, easement or consent of use may be authorized only for the following activities:

1. a public navigation project;

2. maintenance of an existing navigational channel..."

Other portions of the rule provide that eligible requests for a lease, easement or consent of use will be evaluated according to stated social, economic and environmental benefit criteria.

FINDINGS OF FACT

1. The Jupiter Inlet District is a special taxing district in Palm Beach County created in 1921. It is authorized to "construct and thereafter to maintain an inlet connecting the mouth of Jupiter River with the Atlantic Ocean, and ... to deepen Jupiter River in said district and thereafter to maintain same." Section 8, Ch. 8910, Laws of Florida (1921). The legislation found the deepening of the river was a "public purpose and necessary for the preservation of the public health and for the public use of shipping and transportation, and for the extension of commerce of the State of Florida." The district is specifically authorized:

   
   

   "[T]o clean out, straighten, widen, change the course or flow of or deepen any other water course, natural stream or body of water that may be found to be necessary by said board in order to facilitate the opening and maintenance of said inlet or waterway ... or necessary to maintain a sufficient depth of water in said Jupiter River." Section 9, Ch. 8910, Laws of Florida (1921).

   
   

   The district's powers further include the authority to: "Construct and maintain canals, ditches, revetments, jetties and other works," construct bridges, roads, acquire property, and construct and maintain "docks, wharves, buildings and other improvements upon any of the properties which may be acquired by virtue of this act." Id. It is not a port authority as defined in Section 315.02(2), Florida Statutes (1985).

   
   

2. The Legislature revised the District's enabling legislation in 1979. That statute contains a finding that the District is "a responsible local agency, entrusted by statute with maintenance of certain waters of the State within its territorial boundaries." Section 1, Ch. 79-532, Laws of Florida.

   The Legislature then required the Department of Environmental Regulation to seek and take into account recommendations or suggestions by the governing board of the Jupiter Inlet District on any applications for permits for activities in the waters within the Jupiter Inlet District.

3. The territorial boundaries of the district overlap and include a portion of the Loxahatchee River/Lake Worth Creek Aquatic Preserve. The Loxahatchee River was formerly known as the Jupiter River.

   
   

4. Before 1980, the Board of Commissioners of the Jupiter Inlet District constructed navigation channels and performed other dredging within the boundaries of the Loxahatchee River/Lake Worth Creek Aquatic Preserve. The district is applicant for consent for use of sovereignty lands to dredge a new channel in a portion of the Loxahatchee River located within the preserve.

   
   

5. The Florida Aquatic Preserve Act was adopted in 1975. It directs that state-owned submerged lands in areas which have exceptional biological, aesthetic and scientific value be set aside forever as aquatic preserves or sanctuaries. Section 258.36, Florida Statutes (1985). The Loxahatchee River/Lake Worth Creek Aquatic Preserve is created in Section 258.39(10), Florida Statutes (1985).

   
   

6. Under Section 258.40(2), Florida Statutes (1985), the following areas are excluded from aquatic preserves:

   
   

   "Any publicly owned and maintained navigation channel or other public works project authorized by the United States Congress designed to maintain or improve commerce and navigation shall be deemed excluded from the aquatic preserves established under this act."

   
   

7. The Board of Trustees of the Internal Improvement Trust Fund is charged with the maintenance of aquatic preserves. Under Section 258.42(3)(a), Florida Statutes (1985), the trustees are instructed that:

   
   

   "No further dredging or filling of submerged lands shall be approved by the trustees except the following activities may be authorized pursuant to a permit:

   1. Such minimum dredging and spoiling as may be authorized for public navigation

      project....

      4. Such other maintenance dredging as may be required for existing navigation

      channels. "

      
      

      The Board of Trustees is empowered by Section 258.43, Florida Statutes (1985), to enact:

      
      

      "[R]easonable rules and regulations to carry out the provisions of this act and specifically to provide regulation of human activity within the preserve in such a manner as not to unreasonably interfere with lawful and traditional public uses of the preserve, such as sport and commercial fishing, boating and swimming."

      
      

      The Legislature also authorized the trustees to permit other activities in aquatic preserves, stating:

      "Reasonable improvement for ingress and egress, mosquito control, shore protection, public utility expansion, surface water drainage, installation and maintenance of oil and gas transportation facilities, and similar purposes may be permitted by the trustees subject to the provisions of any other applicable laws under the jurisdiction of other agencies." Section 258.44, Florida Statutes (1985).

      
      

8. There are numerous special act inlet districts in Florida, e.g. St. Lucie Inlet District and Port Authority created by Ch. 9631, Laws of Florida (1923); Lake Worth Inlet District (now the Port of Palm Beach District) created by Ch. 7081, Laws of Florida (1915); Daytona, New Smyrna Inlet District created by Ch. 14503, Laws of Florida (1929); Ponce de Leon Inlet and Port district created by Ch. 21614, Laws of Florida (1941); Port Orange Special Road and Bridge Inlet District created by Ch. 13492, Laws of Florida (1927); Vero Beach Inlet District created by Ch. 11263, Laws of Florida (1925); Sebastian Inlet District created by Ch. 78-440, Laws of Florida; Hillsborough Inlet Improvement and Maintenance District created by Ch. 73-422, Laws of Florida; and South Lake Worth Inlet District created by Ch. 7080, Laws of Florida (1915). Each district has been subject to special acts amending its organic legislation.

   
   

9. The Board of Commissioners of the Jupiter Inlet District filed a petition with the Department of Natural Resources, pursuant to Section 120.54(5), Florida Statutes (1985), seeking amendment of the rule at issue here to include in the definition of public navigation projects not only those authorized and funded by Congress and by port authorities, but also those of special districts. That petition was assigned Case No. 86-001 and was denied by the Department of Natural Resources in an Amended Final Order entered August 28, 1986, introduced into evidence as Respondent's Exhibit 1. No evidence was taken in that proceeding. The Amended Final Order consists mostly of the Department's explanation of why it does not believe amendment of the rule in the manner sought by the Jupiter Inlet District is appropriate. Except for the holding that the Department of Natural Resources will not institute proceedings to amend the rule defining public navigation projects, the Amended Final Order is entitled to little weight. For example, the statement in its Findings of Fact that the Jupiter Inlet District is not within the boundaries of the Loxahatchee Aquatic Preserve (see paragraphs 1 and 11) is simply wrong.

   
   

10. There is no evidence that the Jupiter Inlet District operates any sort of port facility.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this proceeding. Section 120.56, Florida Statutes.

    
    

12. The activities of the Jupiter Inlet District do not fall within the definition of public navigation projects found in Rule 18-20.003(26). Any new dredging projects by the district therefore will not be considered by the Board of Trustees of the Internal Improvement Trust Fund under the limited exception permitting dredging for public navigation projects in aquatic preserves under Section 258.42(3)(a), Florida Statutes (1985). Re-dredging of existing channels is permitable under Section 258.52(3)(a)4, Florida Statutes (1985), however.

13. Some limited dredging may take place in aquatic preserves. The State of Florida does not have the authority to prohibit dredging projects in aquatic preserves which are projects primarily for the purpose of navigation authorized and funded by the United States Congress. Under the Commerce Clause of the U.S. Constitution, Article I, Section 8, Clause 3, the congressional power to regulate commerce includes the regulation of navigation. Cooley vs. Board of Wardens of the Port of Philadelphia, 12 How. 299, 13 L.Ed. 996 (1852). The Legislature recognizes this because in Section 258.40(2), Florida Statutes, it "deemed excluded from the aquatic preserves established under this act" "any publicly owned and maintained navigation channel or other public works project authorized by the United States Congress designed to improve or maintain commerce and navigation." The exception for congressional navigation projects found in the rule under consideration is a reflection of the State's lack of power to regulate such activities.

    
    

14. The language of Section 245.42(3)(a)1, Florida Statutes (1985), indicates a legislative antipathy towards dredging and filling in aquatic preserves to the extent the Legislature has the power to control such dredging. It allows administrative authorization only for "such minimum dredging and spoiling as may be authorized for public navigation projects." The Board of Trustees of the Internal Improvement Trust Fund drew a distinction in the rule at issue between public navigation projects carried out by Florida's port authorities, which may be permitted, and public navigation projects (other than maintenance dredging of existing channels) carried out by other entities such as the Board of Commissioners of the Jupiter Inlet District, which will not even be considered.

    
    

15. In a different context, the Legislature itself has drawn a distinction between inlet districts and port authorities for dredging purposes. Section 253.03(10), Florida Statutes, (1985), prohibits the Board of Trustees of the Internal Improvement Trust Fund from levying any charge for materials dredged from state sovereignty tidal lands or submerged bottom lands when dredged either

    
    

    1. by or on behalf of the United States or the local sponsor of active federal navigation projects pursuant to the improvement, construction, maintenance and operation of those projects or

       
       

    2. "by a public body authorized to operate a public port facility." All other public entities which dredge state lands must pay for the dredged material. Accepting as rational the distinction the Legislature has made in Section 253.03(10), Florida Statutes, with respect to payment for dredged material, an analogous distinction made by the Board of Trustees of the Internal Improvement Fund in administering Section 258.42(3)(a) by the definition enacted in Rule 18-20.003(26), Florida Administrative Code, is also rational.

    
    

16. The district argues it is empowered to perform the same functions as a port authority and therefore there can be no rational distinction between its activities and those of a port authority. In Section 315.02(6), Florida Statutes, the term "port facilities" is defined to mean:

    
    

    "[H]arbor, shipping, and port facilities, and improvements of every kind, nature, and description, including, but without limita- tion, channels, turning basins, jetties, breakwaters, public landings, wharves, docks, markets, parks, recreational facilities,

    structures, buildings, piers, storage facilities, public buildings and plazas, anchorages, utilities, bridges, tunnels, roads, causeways, and any and all property and facilities necessary or useful in connection with the foregoing, and any one or more or any combination thereof in any extension, addition, betterment or improvement of any thereof."

    
    

    Under Section 9, Ch. 8919, Laws of Florida (1920), the Jupiter Inlet District has been statutorily empowered:

    
    

    "[T]o construct and maintain canals, ditches, revetments, jetties and other works and improvements, ... construct a bridge or road- way over or across said levees, embankments, highways, railroads or other canal or waterway in said district ... acquire for and on behalf of said district, ... such lands, easements, riparian rights and railroad right of ways as said board may deem

    necessary .... construct, maintain docks, wharves, buildings and other improvements upon any of the properties which may be acquired by virtue of this act, ... charge and collect for the use of any wharves, docks, buildings and other structures or improvements owned by it, ... use, hold, occupy or control, develop, lease and make any other disposition of said property which may be acquired for or on behalf of said district."

    
    

    The works of the Jupiter Inlet District are to be carried out "for the public good and for public use and for the benefit of the inhabitants of said District, for shipping and transportation purposes and for the extension of the commerce of the State of Florida and of said District." Id.

    
    

17. Whatever the similarities in the language authorizing activities of the district as compared to the definition of port facilities in Section 315.02(6), Florida Statutes (1985), there is no proof in this record that the Jupiter Inlet District functions as a port facility. It has maintained channels in the Loxahatchee River, but it does not operate any commercial center for receiving shipping recognizable as a port facility. It is not a port authority. There is no reason that to treat it as if it is a port facility. The Board of Trustees of the Internal Improvement Fund may treat it differently than a port facility.

    
    

18. Rules of administrative agencies must be sustained if they are reasonably related to the purposes of the agency's enabling legislation, and are not arbitrary and capricious. General Telephone Co. of Florida v. Public Service Commission, 446 So.2d 1063 (Fla. 1984). The definition of public navigation projects adopted in Rule 18-20.003(26) is a narrow one, but it is consistent with the Legislative intent which may be gleaned from Section 258.42(3)(a), Florida Statutes to minimize dredging activities in aquatic preserves.

CONCLUSION

The definition of public navigation projects enacted by the Board of Trustees of the Internal Improvement Trust Fund in Rule 18-20.003(26), Florida Administrative Code, has not been shown to be an invalid exercise of delegated legislative authority, and the Petition herein is accordingly dismissed.

DONE and ORDERED this 27th day of July, 1987, in Tallahassee, Florida.

WILLIAM R. DORSEY, JR.

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 27th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2751RX

Petitioner's proposed findings of fact are addressed as follows:

1. Covered in Finding of Fact 1.

2. Covered in Finding of Fact 2.

3. Covered in Finding of Fact 4.

4. Covered in Finding of Fact 5.

5. Covered in Findings of Fact 6 and 7.

6. Covered in Finding of Fact 7.

7. Covered in Finding of Fact 8.

8. Rejected as legal argument and not a finding of fact.

9. Rejected as unnecessary.

10. Rejected as legal interpretation and not a finding of fact.

11. Rejected as legal interpretation and not a finding of fact.

12. Rejected as legal interpretation and not a finding of fact.

13. Rejected as unnecessary.

14. To the extent appropriate covered in the Conclusions of Law.

15. To the extent appropriate discussed in the Conclusions of Law.

1. Covered in Finding of Fact 9.

2. Rejected as unnecessary and for the reasons stated in Finding of Fact 9.

19-22. Omitted by the Petitioner.

23. Rejected as legal argument and not a finding of fact.

Rulings on the proposals made by the Respondents

COPIES FURNISHED:

Thomas M. Beason, Esquire The Perkins House, Suite 100

118 North Gadsden Street Tallahassee, Florida 32302

William R. H. Broome, Esquire 801 Spencer Drive, Suite 102 West Palm Beach, Florida 33409

Eugene E. McClellan, Jr., Esquire Department of Natural Resources 3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Tom Gardner Executive Director

Department of Natural Resources 3900 Commonwealth Boulevard Tallahassee, Florida

Carroll Webb, Executive Director Administrative Procedure Committee

120 Holland Building Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802, The Capitol

Tallahassee, Florida 32301

NOTICE OF RIGHT TO JUDICIAL REVIEW

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 86-002751RX

Orders for Case No: 86-002751RX