STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAVID E. MUSSELMAN, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1352

)

) DEPARTMENT OF ENVIRONMENTAL ) REGULATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on May 12, 1992, in Key West, Florida.

APPEARANCES

For Petitioner: David E. Musselman, pro se

Post Office Box 1062 Summerland Key, Florida 33042

For Respondent: Francine M. Fflokes

Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400 STATEMENT OF THE ISSUES

At issue in this proceeding is whether petitioner's proposal to construct a vertical seawall along a man-made canal, and to backfill from the seawall to his proposed home, is exempt from the Department of Environmental Regulations's permitting requirements.

PRELIMINARY STATEMENT

By notice of agency action dated February 14, 1992, respondent, Department of Environmental Regulation (Department), concluded that petitioner's application to construct a vertical seawall along a man-made canal, and to backfill from the seawall to his proposed home, did not meet the criteria for an exemption pursuant to Rule 17-312.050(1)(g), Florida Administrative Code.

Petitioner filed a timely challenge to the Department's conclusion, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, the petitioner, David E. Musselman, testified on his own behalf, and his exhibits 1-6 were received into evidence. The Department called

Deborah Hinkle and Ronald L. Walters as witnesses, and its exhibits A and 1-4 were received into evidence subject to the limitations noted of record.

The transcript of hearing was not ordered, and the parties were granted leave until May 22, 1992, to file proposed findings of fact. The parties' proposed findings have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

Background

1. Petitioner, David E. Musselman, is the owner of Lot 23, Block 22, Cudjoe Gardens Eighth Addition, Cudjoe Key, Monroe County, Florida. The lot measures 127 feet along its front and rear property line, 135 feet along its side property lines and, similar to adjacent lots, its rear property line abuts an artificially created waterway.

   
   

2. Currently, most of petitioner's lot enjoys an elevation of six feet; however, from the edge of the waterway landward a distance of approximately 20 feet [to what has been referred to as the "toe of the existing slope" in these proceedings] the surface consists of exposed caprock at an elevation of approximately four inches above mean high water. It is petitioner's desire to construct a single family residence upon such lot and, incident to such construction, to erect a seawall along the edge of the waterway such that the elevation at the waterway will be increased by two feet, and to backfill from the seawall to his home. Such backfilling would require the deposition of approximately 3,540 square feet of fill within the Department's jurisdiction, which was shown to extend from the edge of the waterway to the toe of the existing slope, and would raise the elevation in such area two feet above existing grade.

   
   

3. On December 16, 1991, petitioner filed an application with respondent, Department of Environmental Regulation (Department), for an exemption from the Department's wetland permitting requirements. If approved, such exemption would allow petitioner to construct the vertical seawall along the waterway, and backfill from the seawall to his proposed home.

   
   

4. By notice of agency action dated February 14, 1992, the Department proposed to deny petitioner's application predicated on its conclusion that his proposal did not meet the exemption criteria established by Rule 17- 312.050(1)(g), Florida Administrative Code. Petitioner filed a timely protest to contest the Department's conclusion.

   
   

   The exemption

   
   

5. Pertinent to this case, Rule 17-312.050(1)(g), Florida Administrative Code, exempts from permitting the following activities:

   
   

   (g) Construction of seawalls or riprap, including only that backfilling needed to level the land behind the seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An artificially created waterway shall be defined as a body of water that has been totally

   dredged or excavated and which does not overlap natural surface waters of the state. For the purpose of this exemption, artificially created waterways shall also include existing residential canal systems

   . . . .

   
   

6. At hearing, the parties stipulated that the waterway which abuts the rear property line of petitioner's lot is an artificially created waterway, as well as an existing residential canal, and that the proposed project will not violate existing water quality standards, impede navigation, or adversely affect flood control. Notwithstanding, the Department contends that petitioner's application should be denied because no need has been demonstrated that would support the construction of the seawall along the edge of the waterway, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of wetlands, is excessive. For the reasons set forth in the conclusions of law, the Department's position is untenable as a matter of law. 1/

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

   
   

8. The Department's jurisdiction is founded on Section 403.913, Florida Statutes, which provides:

   
   

   1. No person shall dredge or fill in, on, or over surface waters without a permit from the department, unless exempted by statute or department rule.

   2. The landward extent of waters shall be determined as provided in s. 403.817 . . . The determinations made pursuant to this subsection shall be to establish the regulatory jurisdiction of the department and are not intended to be a delineation of the boundaries of lands for purposes of title.

      
      

      Here, notwithstanding that the caprock which boarders the waterway abutting petitioner's property is above the mean high water line, the Department has, pursuant to Section 403.817, Florida Statutes, and Chapter 17-301, Florida Administrative Code, established the landward extent of waters of the state to be at the "toe of the existing slope." Petitioner has not contested such delineation and, as heretofore found, the Department has jurisdiction over such lands.

      
      

9. Notwithstanding that the subject lands are within the Department's jurisdiction, the Department and the Legislature have exempted certain activities from the permitting requirements of Section 403.913, Florida Statutes. Pertinent to this case, Rule 17-312.050, Florida Administrative Code, exempts the following activities:

   1. No permit shall be required under this chapter for dredging or filling specified in Section 403.813(2), F.S., . . . or for the following types of projects:

      * * *

      (g) Construction of seawalls or riprap, including that backfilling needed to level the land behind seawalls or riprap, in artificially created waterways where such construction will not violate existing water quality standards, impede navigation or adversely affect flood control. An

      artificially created waterway shall be defined as a body of water that has been totally dredged or excavated and which does not overlap natural surface waters of the state.

      For purposes of this exemption, artificially created waterways shall also include existing residential canal systems. This exemption does not apply to the construction of vertical seawalls in estuaries or lagoons unless the proposed construction is within an existing man-made canal where the shoreline is currently occupied in whole or in part by vertical seawalls. 2/

      
      

      Such rule exemption implements and is consistent with the statutory exemption created by Section 403.813(2), Florida Statutes, which provides as follows:

      
      

   2. No permit under this chapter . . . shall be required for activities associated with the following types of projects . . .

      * * *

      1. The construction of private docks and seawalls in artificially created waterways where such construction will not violate existing water quality standards, impede navigation, or affect flood control.

         
         

10. Petitioner's proposal to construct a vertical seawall on top of the existent caprock along the artificially created waterway that abuts his property, and to backfill behind the seawall to his proposed home to level the land, meets the exemption criteria established by Section 403.813(2)(i), Florida Statutes, and Rule 17-312.050(1)(g), Florida Administrative Code. Succinctly, the siting of the seawall at the edge of the waterway that abuts petitioner's property, is consistent with the exemption which allows such construction "in artificially created waterways," and such construction will not violate existing water quality standards, impede navigation, or adversely affect flood control.

    
    

11. In reaching the foregoing conclusion, the Department's contention that no need has been demonstrated that would require the construction of the seawall along the edge of the waterway to protect petitioner's property from erosion, as opposed to locating it further inland, and therefore the amount of backfill, with its attendant loss of jurisdictional wetlands, is excessive, has not been overlooked. However, need is not an issue in this proceeding, anymore than it is an issue in a Section 403.918, Florida Statutes, permitting proceeding. 1800 Atlantic Developers v. Department of Environmental Regulation, 552 So.2d 946

(Fla. 1st DCA 1989), review denied, 562 So.2d 345 (Fla. 1990). Here, all petitioner need show to avail himself of the exemption is that the waterway along which he proposes to construct his seawall was artificially created, and that such construction will not violate existing water quality standards, impede navigation, or adversely affect flood control. The Department enjoys no statutory or rule authority to inquire beyond such limited assessment, or to suggest placement of the seawall at a different location based on factors that would, but for the exemption, be of legitimate concern in a permitting context governed by Section 403.918, Florida Statutes. See, 1800 Atlantic Developers v. Department of Environmental Regulation, supra. Petitioner has met his burden of proof. 3/

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department enter a final order approving petitioner's

application for an exemption to construct a seawall, and to backfill from such seawall to his proposed home, as applied for.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 4th day of June 1992.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of June 1992.

ENDNOTES

1/ Regarding the topography of the subject site, the proof demonstrates that the waterway was excavated with vertically cut sides to a depth of approximately eight feet, and that the area from the edge of the waterway to the toe of the slope is composed of exposed caprock. At an elevation of four inches above mean high water, such area retains no soil to support any significant plant life but is sufficiently inundated to support simple life forms such as algae. While some white mangrove and buttonwood seedlings were observed on site, the proof is compelling that due to the natural conditions of the area, including its salinity, the chances of their survival are, at best, remote. Notably, no significant plant life has established itself there for 20 years. Moreover, the Department averred at the hearing that loss of wetlands was not a matter of concern in this case, and the proof supports such conclusion. Aware of the lack of vegetation in the area, petitioner has agreed, if allowed to backfill the area, to plant such area with native vegetation.

2/ The proposed seawall is not to be constructed in an estuary or lagoon and, therefore, there was no necessity for petitioner to demonstrate that the shoreline of the waterway was currently occupied, at least in part, by vertical

seawalls in order to avail himself of the exemption applicable to this case.

The exemption applicable here is a rule codification of the exemption created by Section 403.813(2), Florida Statutes, as opposed to the estuary or lagoon exemption created by Section 403.918(5), Florida Statutes. Nevertheless, the proof does demonstrate the existence of two vertical seawalls on the subject waterway. The first seawall abuts lot 18, and has existed for at least four years and, most probably, significantly longer. While the Department apparently has no record of such seawall being authorized (such lack of record may be because the wall predicates the Department's jurisdiction, but there was no competent proof to demonstrate when it was built), it has taken no action to contest its propriety. The second seawall abuts lot 12, across the waterway from lot 18. There, the Department granted an exemption for riprap and a cantilever dock, but the owner built a vertical seawall instead. To date, a period of approximately three years, the Department has taken no affirmative action to contest its propriety. Finally, in the waterway immediately south of the waterway that abuts petitioner's property, a vertical seawall has been erected on lot 2, without benefit of exemption or permit, but the Department has taken no affirmative action to contest its propriety. In all, the proof demonstrates the existence of one vertical seawall, at lot 18, within the subject waterway, that was not demonstrated to have been erected contrary to law. Moreover, the Department's failure to take any corrective action regarding the seawall at lots 18, 12, and 2, militates against its position here with regard to siting such walls along the edge of the waterway.

3/ The Department derives its argument of need by reference to the definition of seawalls contained within Rule 17-312.020(16), Florida Administrative Code. In this regard, the Department avers that the rule defines a seawall as "a man- made wall made to protect the shore from erosion" [Department proposed conclusion of law D], observes that the caprock shelf is hard and has not perceptively eroded over the past 15 to 20 years [Department proposed finding of fact 4], and concludes that there is no need for such wall. The Department's argument is rejected as unpersuasive.

Rule 17-312.020(16), Florida Administrative Code, and Section 403.911(6), Florida Statutes, define a "seawall" as:

. . . a manmade wall or encroachment, except riprap, made to break the force of waves and to protect the shore from erosion.

Accord, Websters New College Dictionary, 1974. Here, it cannot be gainsaid that the proposed project is a seawall as defined by law, as well as common understanding, notwithstanding that some of the lands it will protect are hard and resistent, although not impervious, to erosion. Moreover, the Department has recognized the vulnerability of the "toe of the existing slope" to erosion, and has even suggested that if petitioner elected to place the seawall at the "toe of the existing slope" it would be exempt from the Department's permitting requirements. [Department proposed finding of fact 8 and proposed conclusion of law D]. Indeed, if petitioner were to locate the wall landward of the "toe of the existing slope" he would be exempt from the Department's permitting requirements because the wall would not be within the Department's wetlands jurisdiction, but such exemption would not be the one accorded by Section 403.813(2)(i), Florida Statutes, or Rule 17-312.050(1)(g), Florida Administrative Code. In sum, the statutory and rule exemption allow petitioner to erect a seawall within an existing artificial waterway, and the Department

has articulated no rational explanation as to how petitioner's proposal to locate such wall along the shoreline is inconsistent with the exemption as phrased.

APPENDIX TO RECOMMENDED ORDER

Petitioner did not submit proposed findings of fact but did submit a written closing argument. That argument has been duly considered in the rendition of this recommended order.

The Department's proposed findings of fact are addressed as follows: 1-5. Addressed in paragraphs 1-3.

6-8. Addressed in paragraph 6, footnote 1, and conclusions of law paragraph

5 and footnote 3.

COPIES FURNISHED:

David E. Musselman Post Office Box 1062

Summerland Key, Florida 33042

Francine M. Fflokes Assistant General Counsel

Department of Environmental Regulation 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Carol Browner, Secretary

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

Daniel H. Thompson General Counsel

Department of Environmental Regulation Twin Towers Office Building

2600 Blair Stone Road Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-001352

Orders for Case No: 92-001352