Findings Of Fact By application filed November 17, 1992, Petitioner seeks a dredge and fill permit for the construction of a private boat dock; a 24 foot by 26 foot platform for an "A" frame camping shelter; and a 4 foot by 18 foot boardwalk, all in jurisdictional wetlands along the water's edge of a small natural basin off of the Choctawhatchee River at Section 24, Township 2 South, Range 19 West in Walton County, Florida. The Choctawhatchee River has been designated an Outstanding Florida Water by Rule 17-302.700, Florida Administrative Code. The proposed project is located in Class III waters and is adjacent to Class II shellfish approved waters. The proposed project is not exempt from Respondent's permitting jurisdiction. Petitioner proposes to use the elevated "A" frame structure for recreational purposes for his family and friends. He owns 150 acres of land in the vicinity. He provided no reliable assurances that he, or the owners of 350 acres of adjacent property, would not subdivide and sell plots of the property in the future for construction of similar recreational facilities in these jurisdictional wetlands. There is no feasible land access to Petitioner's proposed project site. Petitioner proposes to use "port-a-potty" chemical equipment with a capacity of 5.5 gallons for the containment of human waste, hauling the waste, chemicals and equipment out on boats as necessary. Potable water will also be carried to the site via boat by the six to eight individuals contemplated to use the proposed project facility on an estimated 15-20 weekends per year. Petitioner's proposed portable toilet is not an acceptable method of sewage disposal for the number of individuals using the proposed facility. Reasonable assurances were not provided by Petitioner that transfer of such waste by boat will not, through accident or otherwise, be introduced into the river and degrade water quality. Petitioner was unable to provide reasonable assurances that the proposed permanent facilities would not attract and be used by other individuals, leaving garbage and waste behind. Petitioner's offer to place a "no trespassing" sign on the property is not an adequate substitute to monitoring of the property to prevent improper use by others. In the event of a severe storm, Petitioner's proposed structure would be subject to destruction and its constituent parts strewn on other land or into the water. The proposed construction would adversely affect the public health, safety, welfare and property of others. The proposed project will adversely impact the conservation of fish, wildlife and their habitats. The proposed site area supports many endangered and threatened species, including the Atlantic Sturgeon and the bald eagle, which would be adversely affected by the project. Also adversely affected by the dwelling construction and subsequent loss of habitat would be rookeries of wading birds such as the Little Blue Heron and the Egret, both of which nest in these wetlands. While fishing for Petitioner and his family or guests at the proposed project would possibly be improved, Petitioner offered no credible evidence that fishing, recreational values or marine productivity in the area would not be affected. The wetlands where Petitioner proposes to build his shelter serve as a nursery area for shrimp and oysters. Destruction or degradation of waters of the wetland will have an adverse effect on any shellfish or marine life inhabiting the area. The permanent nature of the proposed project will result in a permanent impact on the wetlands in the vicinity of the project. Petitioner offered no evidence that the current condition and relative value of functions being performed by areas subjected to the proposed project will not be affected. The area where the project is proposed is a highly productive estuary which interfaces with the Choctawhatchee River and Choctawhatchee Bay. This ecosystem provides habitat for various unique species of plants and wildlife and is the location of shrimp and oyster nurseries. Further, the estuary serves to clean the water, remove sediment, revitalize the water with oxygen, and convert nutrients such as nitrogen and phosphorus into plant material and ultimately into usable organic nutrients. The proposed project will lower existing ambient water within an Outstanding Florida Water. The increased docking of boats in shallow wetland waters could cause violations of water turbidity standards, resulting in decreased diversity of the Shannon-Weaver Index of Benthic Macroinvertebrates. Water quality violations would also result from increased oil sheen on the surface of the water. Secondary impacts of the proposed project include the loss of wetland habitat, impairment of wetland function, and violation of water quality standards due to increased boat traffic and the possibility of sewage contaminating the wetlands and surrounding environs. The proposed project fails to meet Respondent's requirements for issuance of a dredge and fill permit in view of the lack of reasonable assurances by Petitioner that prohibited cumulative impacts will not result; that Class II waters will not be degraded; that the project is clearly in the public interest; that ambient water quality standards will not be violated and that detrimental secondary impacts will not occur. Denial of the permit is consistent with other, similar permitting decisions by Respondent.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying the application for issuance of Permit No. DF66-222039-1 to Petitioner. DONE AND ENTERED this 31st day of August, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 31st day of August, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2900 The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed findings None submitted. Respondent's Proposed findings 1.-3. Accepted in substance, not verbatim. 4.-7. Rejected, subordinate to HO findings. Accepted. Rejected, legal conclusion. 10.-11. Accepted. Rejected, unnecessary. Accepted. Rejected, unnecessary. 15.-22. Accepted in substance. COPIES FURNISHED: Virginia B. Wetherell Secretary Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Kenneth Plante General Counsel Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Foster F. Burgess, Route 1 Box 97-C4 Freeport, Florida 32439 Donna M. LaPlante Department of Environmental Protection 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue Whether Environmental Resource Permit No. IND-073-288406-1 (the “Permit”) should be issued as proposed in the notice issued by Respondent Northwest Florida Water Management District (the “District”).
Findings Of Fact Parties Palafox is a Florida limited liability company and is the applicant for the Permit. Palafox owns Lot 1, Block B, of the Palafox Preserve Subdivision, the six-acre property on which the Project is proposed for development. Palafox is the sole member of the Palafox Preserve Commercial Property Owners Association. The District is a Florida water management district having the duty and authority to regulate Florida’s water resources within its jurisdiction and to administer and enforce Chapter 373, Part IV, and Chapter 403, Florida Statutes, and the rules promulgated and authorized thereunder in Florida Administrative Code Chapter 62-330. Petitioner, Carmen Diaz, is the owner of Lot 18, Block A, of the Palafox Preserve Subdivision, which is west of the Project and separated from the Project by a conservation easement owned by the Palafox Preserve Homeowners’ Association (the “HOA”). The Project The Project is a 36-unit multi-family residential development proposed on approximately 2.68 acres of Lot 1, Block B, of the Palafox Preserve Subdivision. The Project is adjacent to, and immediately west of, Martin Hurst Road, and adjacent to, and immediately south of, Palafox Lane. The remainder of Palafox’s Lot 1, Block B, property runs to the west of the Project and south of Palafox Lane, and is located within a larger perpetual conservation easement (the “conservation easement”). Petitioner’s property is a residential lot located west of, and not adjacent to, Palafox’s property. A portion of Petitioner’s property is located within the conservation easement. Between Petitioner’s property and Palafox’s property is a portion of the conservation easement owned by the HOA. The conservation easement covers approximately nine acres, approximately seven of which is wetlands. The conservation easement straddles the boundary between Block A and Block B, with about two-thirds in Block A, owned, for the most part, by the HOA; and one-third in Block B, wholly owned by Palafox. Palafox’s property, Petitioner’s property, and the conservation easement are all located within the same closed basin. This means that stormwater within the basin will be maintained within the basin in all storm events up to and including a 100-year, 24-hour storm. Existing Palafox Preserve Subdivision stormwater management facilities (“SWMF”) Nos. 6 and 7 are constructed in platted drainage easements on Lots 11 through 19 in Block A. SWMFs Nos. 6 and 7 are constructed in a horseshoe shape adjacent to the conservation easement and are designed as detention facilities. Stormwater above the detention volume is discharged to the conservation easement wetlands. The SWMF to be authorized by the Permit, SWMFs Nos. 6 and 7, and the conservation easement containing the wetlands, are within the localized closed basin. There is another SWMF to the west behind the homesites located on Lots 1 through 7 that is numbered SWMF No. 5. SWMF No. 5 is not within the localized closed basin, and discharges to the Lake Jackson drainage basin. The closed basin also contains an emergency “pop-off” or outfall which allows for water from the wetlands to be discharged to the west if it reaches a certain elevation, which, based on the plans, is 223.57 feet. The outfall was designed to mimic pre-development conditions and only discharges if the 100- year, 24-hour storm is exceeded. If discharged, the water would travel west, through drainage easements to SWMF No. 5, and ultimately to Lake Jackson. The record does not support a finding that waters in the closed basin have ever risen high enough to trigger the pop-off. The only record evidence showed that Tallahassee has never recorded a 100-year, 24-hour storm event. Petitioner’s Challenges Petitioner maintains the Project will cause adverse water quantity impacts to receiving waters and adjacent lands; adverse flooding to on-site and off-site property; adverse impacts to existing surface water storage and conveyance capabilities; and adversely impact the value and functions provided to fish, wildlife, and listed species, by wetlands and other surface waters, contrary to the governing administrative rules. Further, Petitioner alleges the permit is contrary to state requirements that the permittee own or control the property to which stormwater is discharged, and that the wetland must be properly delineated as a state jurisdictional wetland. Palafox’s Environmental Resource Permit Application and Modeling Report Palafox submitted its Permit application to the District on August 6, 2019. In support of its application, Palafox submitted, among other things, project drawings, background materials, and a stormwater modeling report, prepared by Blackhawk Engineering, Inc. (“Blackhawk”). The Permit application seeks approval of a SWMF that will consist of a dry detention with filtration stormwater pond that is to be constructed in the northeast corner of the Project site. The design calls for a side-bank sand filter with a minimum of two-feet of sand, which filters impurities out of the water as it flows through it. The filtered water then travels through two perforated pipes within the side bank filter that sit below the pond and discharge from a concrete retaining wall onto Palafox’s property. The sand filter controls the rate of discharge from the pipes. The stormwater pond proposed here is a common pond design in this area of the state. The pond is also designed with a 10-foot concrete overflow weir set at an elevation of 228.5 feet. If water rises to this level, it will also discharge through the weir onto Palafox’s property. For stormwater ponds utilizing detention with filtration, the District’s ERP rules require the pond to be able to treat at least one inch of runoff for the drainage area. This is known as the treatment volume. For this property, the treatment volume is 12,716.33 cubic feet of water. The Project was designed to meet Leon County’s more restrictive requirement to treat at least 1.125 inches of runoff from the drainage area. Consequently, the pond has more treatment volume than required by ERP rules, and will hold and treat over 14,000 cubic feet of water under the weir under that runoff scenario. That water can be recovered in 15.84 hours. The ERP criteria requires recovery in less than 36 hours. As part of the application, Palafox submitted a stormwater modeling report prepared by Blackhawk. The report documents the results from a numerical model that represents the amount of runoff in a basin. The modeling program used was Interconnected Channel and Pond Routing (“ICPR”). ICPR is a widely accepted modeling system within both the stormwater engineering profession and the regulatory community. The model calculates the amount of runoff generated by a storm event, then simulates the stormwater management process, including detention of the stormwater within the designed facility, as well as calculating the rate and amount of discharge through pipes and weirs. For the Project, the model compared the pre-development and post- development conditions of the closed basin in storm conditions up to and including a 100-year, 24-hour storm scenario.1 That comparison shows an increase in discharge of 9,630 cubic feet of water from Lot 1B in a 100-year, 24-hour storm event. The result is an increase of 0.384 inches in the water elevation in the wetlands from pre-development to post-development conditions. Water Quantity and Flooding Impacts Petitioner alleges the Project will create a flood risk because it will replace an existing stormwater retention facility on Lot 1B, that does not discharge into the wetlands, with a detention facility that does. Petitioner maintains that the additional discharge will significantly increase the amount of water flowing into the wetlands and damage her property, as well as the wetland’s value. The existing pond, however, was designed to retain only the additional runoff from Lot 1B generated by construction of the subdivision entrance road, Palafox Lane. The existing pond does not serve the residential portion of the subdivision. Runoff that flowed into the wetlands before construction of the road (i.e., in pre-development conditions) is not retained in the existing pond. The ICPR addresses the effect of replacing the existing pond by comparing pre-development conditions with post-development conditions to document the performance of the new pond. As already noted, the increase in wetland water elevation is negligible. Any rise would be contained within the existing conservation easement. In support of her claims, Petitioner introduced the testimony of Andrew Carswell, who was accepted as an expert in stormwater management. Mr. Carswell testified, that, based on his calculations, the 1 The 100-year, 24-hour storm scenario is Leon County’s standard for environmental permitting. Project would contribute 505,000 cubic feet of water to the wetland over a period of one year. In Mr. Carswell’s opinion, the wetland would be overwhelmed, causing the basin to overflow in the direction of the lowest elevation—Lot 18, owned by Petitioner, and the adjacent Lot 19. Mr. Carswell explained that the topography of Lots 18 and 19 is very steep, which would cause stormwater to travel faster, scouring and eroding the subject properties. However, Mr. Carswell did not model the stormwater system, or otherwise perform a simulation to determine staging of particular storm events in the basin. Mr. Carswell performed a simple water balance calculation, utilizing average annual rainfall amounts and evapotranspiration rates he found online for Tallahassee. His testimony was unclear whether the calculation included any percolation rate for the wetland area itself. Based on his calculation, Mr. Carswell concluded the basin would collect ten inches of water a year, with none of that water ever leaving the closed basin. Under Mr. Carswell’s analysis, the basin would fill up quickly. Mr. Carswell admitted, however, that if he wanted to actually predict the incremental contribution of a stormwater discharge from a project into a closed basin, he would utilize a model similar to the one submitted by Palafox in support of this Project. He has never used only his water balance calculation in support of a stormwater pond in a permitting context. Palafox introduced the testimony of Mark Thomasson, its environmental consultant on the Project, who also assisted the project engineer in developing the Permit application. Mr. Thomasson was accepted as an expert in stormwater engineering and ERP permitting. In Mr. Thomasson’s opinion, Mr. Carswell’s calculation is not a reliable way to determine whether the Project will create a flood risk in the subdivision. He opined that the water balance calculation is too simplistic— simply adding an entire year’s worth of rainfall into a closed basin. It is a method of approximating average runoff rates, atypical in the regulatory flood setting. As Mr. Thomasson explained, a stormwater engineer can use simple math for the initial abstraction—how much rainfall the ground will soak up before it will runoff—but must rely upon a continuous simulation model, such as the ICPR, for calculating stormwater behavior after initial rainfall and absorption. Next, Petitioner introduced evidence aimed at undermining Palafox’s stormwater modeling in support of the Project. Mr. Carswell testified that, when modeling in a closed basin, the seasonal high-water mark must be used as the starting water elevation, and that Palafox erred in not doing so. However, Mr. Carswell admitted that not all closed basin analyses he has performed used the seasonal high-water mark. Mr. Thomasson made clear that consideration of the high-water mark is not necessary when analyzing a pre-versus-post condition in a closed basin, because the relevant standard is the delta—the difference in surface water elevation. Mr. Thomasson further explained that starting with the lower elevation is the more conservative approach because a closed basin is like a bowl, narrower at the bottom, so adding water at a lower elevation will actually lead to a higher delta. Mr. Thomasson’s testimony was more credible and reliable than Mr. Carswell’s on the issue of the professionally-acceptable method for determining whether the Project meets the standards for an ERP. As to Petitioner’s concern with adverse flooding of her property, the evidence demonstrated that Petitioner’s house is at an elevation over 224 feet—nearly two feet above the 100-year high water elevation established by the Poole Engineering report that shows where such a storm would rise to in the basin. That 224-foot elevation is also higher than the emergency pop- off, which is at 223.57 feet. As previously noted, there was no evidence that water has ever risen that high in the closed basin, or that Tallahassee has recorded a 100-year, 24-hour storm event. Furthermore, Mr. Carswell’s opinion that the Project would result in flooding of Lots 18 and 19 assumed conditions in which the emergency pop-off drain was clogged, or otherwise ceasing to function properly. Petitioner’s property currently contains a designed stormwater pond that connects by way of a drainage easement in her backyard. Under current conditions, Petitioner can expect to see water standing in that pond after a sufficient rain event, before the water eventually filters and drains into the wetland. The evidence does not support a finding that the post-development condition would result in adverse flooding to Petitioner’s property. Wetlands and Environmental Impacts Petitioner maintains that Palafox does not have the legal right to discharge water onto Petitioner’s property. The evidence, however, showed that Palafox will be discharging onto its own property, albeit a narrow strip thereof. If there is a significant enough storm event, treated stormwater will make its way downhill and commingle with water in the shared wetlands. There was no evidence, however, that Palafox will discharge directly onto any other landowner’s property, or that any discharge from Palafox’s pond will directly impact Petitioner’s property, which also discharges into the wetlands. Assuming, arguendo, that the facility for which Palafox seeks permit approval did discharge directly into the wetland, Section 2.5 of Applicant’s Handbook, Volume II, would govern said discharge. That section specifically authorizes discharge of stormwater by an applicant to “waters of the state,” which includes wetlands. It also authorizes discharge of stormwater to multiple-owned properties. Water flowing off of the HOA’s property and Petitioner’s property is captured by the wetland as well. The wetland is owned in part by Palafox, in part by the HOA, and in part by Petitioner. The small portion of the wetland on Petitioner’s property is contained wholly within a conservation easement. However, the entire wetland is “waters of the state,” whether it is on Palafox’s property, the HOA’s property, or Petitioner’s property.2 The wetland is within a closed basin and the ICPR provided to the District by Palafox demonstrates that the wetland is capable of holding all of the discharge from the 100-year, 24-hour storm while increasing the water level in the wetland by only 0.384 inches. The District introduced the testimony of Andrew Joslyn, its agency representative, who was accepted as an expert in environmental permitting. He opined that, because the treated stormwater is discharged directly onto Palafox’s property and then flows to a wetland, which is both a water of the state and a multiple-owned property, no additional authorization is required by ERP rules to allow the treated stormwater to flow toward, and ultimately end up in, the wetland. Section 10.2.7 of Applicant’s Handbook, Volume I, addresses secondary, not direct, impacts to wetlands. It states that activities will not be considered adverse to wetlands if buffers, with a minimum width of 15 feet and an average width of 25 feet, are provided abutting those wetlands that will remain under the permitted design. In August 2019, District staff performed a “ground truth” inspection on Palafox’s property prior to the District’s notice of intent to issue the Permit. The District verified, on site, the drawing of the 2001 wetland limits supplied by Palafox. During that ground truth inspection of the wetland, District staff, accompanied by Mr. Thomasson, made the determination that Palafox’s proposed upland development was outside of the wetland, there was no direct 2 ERP permitting rules developed under the authority of chapter 373 provide that “[t]erms used in [chapter 62-330] are defined in section 2.0 of Volume I and section 2.1 of Volume II” of the Environmental Resource Permit Applicant’s Handbook. Fla. Admin. Code R. 62- 330.021. The Applicant’s Handbook, section 2.0(a)116. establishes that “‘Waters of the state’ shall be as defined in Section 403.031(13), F.S.” Section 403.031(13) provides that “‘Waters’ include, but are not limited to, rivers, lakes, streams, springs, impoundments, wetlands, and all other waters or bodies of water, including fresh, brackish, saline, tidal, surface, or underground waters. Waters owned entirely by one person other than the state are included only in regard to possible discharge on other property or water.” impact to the wetland, and the development was an average distance of greater than 25 feet, and at no point was closer than 15 feet to the wetland. Based on those measurements, the District determined that the secondary impact rule was not at issue. Petitioner argues that the District’s determination is in error because Palafox relied upon a wetland delineation conducted in 2001, which has expired pursuant to statutory provisions. Petitioner argues that the wetland boundaries have expanded since the 2001 delineation, thus the “ground- truthed” determination of the boundary is insufficient to determine that the secondary impact rule does not apply. Mr. Joslyn testified that a formal delineation of a precise boundary of the wetland is not required to identify or classify an area as a “wetland” or “water of the state.” Wetlands are within the state’s jurisdiction regardless of whether the Florida Department of Environmental Protection or a water management district has formally delineated or asserted jurisdiction. Moreover, ERP evaluation and approval criteria does not necessarily require a buffer between upland development and a nearby wetland. The buffer is only required to avoid a secondary impact-to-wetland analysis or, stated differently, a secondary impact-to-wetland analysis is only required if the appropriate buffer between upland and wetland is not maintained. Although not required, in order to avoid a secondary impact analysis, the appropriate buffer is a minimum width of 15 feet and an average of 25 feet. In support of her claim that there was not a proper wetland buffer, Petitioner presented a transcript of testimony from Kevin Songer given in a different proceeding challenging Leon County’s approval of the environmental permit for the Palafox subdivision. Petitioner presented the former testimony to support her position that Mr. Songer’s 2001 wetland delineation line has moved to a new line as set by Mr. Songer in 2015. The 2015 wetland delineation line purported to show that the wetland had expanded somewhat. Mr. Songer’s 2015 wetland delineation work was neither checked by independent peer review nor confirmed by any state or local environmental regulatory agency.3 In addition, Mr. Songer provided no testimony that the Project would cause any adverse impacts to the wetlands. He noted that there had been changes to the wetlands between the two times he was on site, 2001 and 2015. He did not assess what, if any, impact—adverse or otherwise—the Project would have on the wetland, or whether such change had any material effect on the relevant ERP standards. His only relevant testimony was directed towards an alleged change to the wetland boundary. Nonetheless, Mr. Thomasson reviewed Mr. Songer’s testimony and a survey of Mr. Songer’s proposed 2015 wetland line. Mr. Thomasson prepared a document showing Mr. Songer’s proposed 2015 wetland line overlaid on the existing conditions plan (i.e. pre-development) of Palafox’s property. Mr. Thomasson also prepared a document showing Mr. Songer’s proposed 2015 wetland line overlaid on the proposed conditions plan (i.e. post- development) of Palafox’s property. In neither instance was there a distance less than 15 feet between Palafox’s proposed development and Mr. Songer’s proposed 2015 wetland line. In both instances, there was always an average distance greater than 25 feet between Palafox’s proposed development and Mr. Songer’s proposed 2015 wetland line. 3 Palafox urged the undersigned to find that Mr. Songer’s 2015 wetland delineation does not represent a recognized wetland jurisdictional line, based on Administrative Law Judge Francine Ffolkes’ finding in Braswell v. Palafox, Case No. 18-2734 (Fla. DOAH Aug. 31, 2018; Fla. Leon Cty. Sept. 24, 2018). The undersigned granted Palafox’s request for official recognition of the Recommended Order in that case, but official recognition cannot be used to admit hearsay statements in court files. See Dufor v. State, 69 So. 3d 235, 253 (Fla. 2011) (“[W]hile the court may take judicial notice of documents in a court file … this notice would not make the contents of the documents admissible if they … constituted hearsay.”). Further, “courts generally cannot take notice of findings of fact from other proceedings for the truth of the matter asserted therein because these finding are disputable and usually are disputed.” General Elec. Capital Corp. v. Lease Resolution Corp., 128 F3d 1074, 1082 n.6 (7th Cir.1997). Whether Mr. Songer’s 2015 wetland delineation is a recognized jurisdictional wetland line is a matter in dispute in the instant proceeding. Accordingly, even if Mr. Songer’s 2015 proposed wetland line is used, Palafox has satisfied the buffer requirements found in Section 10.2.7 of Applicant’s Handbook, Volume I, and no secondary impact analysis is required. Other than Mr. Songer’s former testimony, Petitioner presented no evidence regarding adverse impacts on the wetlands. Petitioner’s one expert witness, Mr. Carswell, admitted he is not qualified to opine on whether the Project would have an adverse impact on the function of wetlands. Mr. Carswell did testify that the discharge of stormwater from the Applicant’s project would not affect fish and wildlife. Mr. Thomasson expressed the opinion that the Project will not result in any change, adverse or otherwise, to the function of the wetland.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Northwest Florida Water Management District enter a final order approving the issuance of Environmental Resource Permit No. IND-073-288406-1 to Palafox, LLC, on the terms and conditions set forth in the District’s Notice of Final Agency Action. Jurisdiction is reserved to determine whether the District and Palafox are entitled to attorney’s fees and sanctions against Petitioner and her counsel under sections 120.595(1) and 120.569(2)(e), Florida Statutes. DONE AND ENTERED this 18th day of May, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of May, 2020. COPIES FURNISHED: Joseph B. Brannen, Esquire Pennington, P.A. 215 South Monroe Street, Second Floor Post Office Drawer 10095 Tallahassee, Florida 32302-2095 (eServed) Matthew E.W. Bryant, Esquire Pennington, P.A. 215 South Monroe Street, Second Floor Post Office Drawer 10095 Tallahassee, Florida 32302-2095 (eServed) Brian A. Newman, Esquire Pennington, P.A. 215 South Monroe Street, Suite 200 Post Office Box 10095 Tallahassee, Florida 32302 (eServed) Jefferson M. Braswell, Esquire Braswell Law, PLLC 116 Northeast 3rd Avenue Gainesville, Florida 32601 (eServed) W. Douglas Hall, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32301 (eServed) James E. Parker-Flynn, Esquire Carlton Fields, P.A. 215 South Monroe Street, Suite 500 Post Office Drawer 190 Tallahassee, Florida 32302 (eServed) Brett J. Cyphers, Executive Director Northwest Florida Water Management District 81 Water Management Drive Havana, Florida 32333-4712 (eServed)
The Issue The issue to be resolved in this proceeding concerns whether the Board of Trustees should deny David Cook's request for a Butler Act Disclaimer, in consideration of Section 18- 21.019, Florida Administrative Code.
Findings Of Fact The Petitioner, David Cook, is in the commercial fishing business, operating his business in Fernandina Beach on the Amelia River. The Respondent, Trustees, is an agency of the State of Florida which holds title to sovereignty submerged lands on behalf of the people of the state, in accordance with Chapter 253, Florida Statutes. The Trustees is the agency responsible for issuance of disclaimers to formerly sovereignty submerged lands under the Butler Act and other similar riparian acts. The Department serves as staff to the Trustees. In November 1999 the Petitioner submitted an application to the Department for a disclaimer to certain submerged lands pursuant to Section 253.129, Florida Statutes and Rule 18-21.019, Florida Administrative Code. The application was on DEP Form 63-031(16) ("Form"). The above Rule adopts and incorporates that Form by reference as part of the Rule. The Butler Act transferred title to certain sovereignty submerged lands to the adjacent, upland, riparian owners if and when they filled, bulkheaded, or permanently improved the submerged lands. The Butler Act, enacted in 1921, was retroactive to 1856. It was repealed by implication in most Florida counties on May 29, 1951. A riparian upland owner who has acquired submerged lands under the Butler Act does not have to apply for disclaimer under the Trustees' Rule. The Act conveyed the lands, so the owner is not required to do anything. If an owner needed to prove up his title, he could also file a quiet title action. In order to avoid forcing owners to file such actions, the Trustees provided the Rule as an alternate mechanism to save the applicant time and expense involved in litigation. Kathy Miklus, a Planning Manager in the Title and Land Records Section of the Bureau of Survey and Mapping in the Division of State Lands of the Department, received and began reviewing the Petitioner's application. Upon reviewing the application she determined the application was incomplete. On December 23, 1999, Ms. Miklus wrote a letter to the Petitioner, advising him that the Trustees had placed a moratorium on applications for disclaimers involving "permanent improvements," but that staff was requesting the Trustees to lift that moratorium since the decision was handed down in the case of City of West Palm Beach v. Board of Trustees of the Internal Improvement Trust Fund, 746 So. 2d 1085 (Fla. 1999). Ms. Miklus also advised the Petitioner in this letter that he had not submitted a survey or satisfactory evidence of title to the riparian uplands, required by the Rule referenced above. The Petitioner did not respond to the letter. On April 6, 2000, Ms. Miklus faxed a copy of the December 23, 1999, letter to the Petitioner, with a cover sheet reminding him that his application was still incomplete, and that she still needed the items stated in her letter. The Petitioner called her in July of 2000 about the status of the application. On July 26, 2000, Ms. Miklus called him back and advised him for the third time that he needed to submit the survey and proof of upland ownership required by the Rule. On August 14, 2000, the Petitioner submitted some county tax information. On October 10, 2000, Ms. Miklus asked him again for a survey. On December 4, 2000, the Petitioner called and stated that he had filed a lawsuit a month earlier, and on January 18, 2001, the Petitioner called Ms. Miklus again. Ms. Miklus called him back and left a message to the effect that she still needed the survey. On January 23, 2001, Ms. Miklus called the Petitioner and told him that she had located his "survey" and a map. Ms. Miklus continued to receive calls from the Petitioner, even after she had turned processing of the case over to Jody Miller for further processing. Mr. Miller is an Engineer II in the Title and Land Records Section of the Bureau of Surveying and Mapping. He prepared drawings and field surveys in the private sector for two years, and subsequently worked for DEP for two years as an Engineering Technician IV and for another two years as an Engineer I. Mr. Miller has two years of study at Tallahassee Community College in civil engineering technology. He has also received additional training in minimum technical standards, surveying law, surveying mathematics, and "AutoCAD." He has reviewed surveys in his present position for 10 years. He was qualified and accepted as an expert in survey review. His area of responsibility is reviewing boundary surveys and mean high water line surveys for the State. Butler Act surveys generally involve both. Mr. Miller continued to try to collect the information required by the Rule from the Petitioner. The Petitioner's application was different and more complex than the normal Butler Act application because it was for a "permanent improvement" that no longer existed, rather than for existing land fill. This makes the area to be disclaimed more difficult to locate and precisely define as to "footprint" and/or boundaries. Mr. Miller reviewed the document that the Petitioner had submitted in January 2001 and determined that it was not a survey. Rather, it was a "sketch of description." Further, it did not give a legal description of the footprint of the structure that existed prior to May 29, 1951, nor did it show the mean high water line or the location of any structure built before 1951. Mr. Miller testified that there were other problems with the sketch of description as well. The Petitioner, according to the sketch of description, was attempting to claim a large area covering nearly all of the adjacent submerged lands in the marina, except for the submerged lands waterward of the railway. He did not merely limit his claim to the location, size and shape of the permanent improvements built under the Butler Act. Without the correct legal description of the area that was permanently improved under the Butler Act, Mr. Miller was unable to prepare a disclaimer for the Trustees' execution. Subsequently, Mr. Miller worked with the Petitioner, and two of the Petitioner's attorneys, Clinch Kavanaugh and Jeff Brown, and the Petitioner's surveyor, Mike Manzie, in order to help the Petitioner comply with the Rule. Mr. Miller also visited the site in Fernandina Beach. He conferred with the Petitioner's surveyor Mr. Manzie. Despite all this, the Petitioner never provided all of the items required by the Rule in order to issue a disclaimer. Because the Petitioner never provided the information required by Section 5 of the Form incorporated in the Rule, Mr. Miller recommended denial of the application to his supervisor, Scott Woolam. Mr. Woolam is a Professional Land Surveyor Manager with the Department who supervises the Title and Land Record Section and the Management Survey Section of the Bureau of Survey and Mapping. He holds a bachelor of science degree in land surveying. He has taken additional courses in legal principles, wetlands, and title and has instructed seminars in his field dealing with the statute and rule at issue here, as well as other sovereignty land issues. Mr. Woolam is published in his field. He was qualified and accepted as an expert in surveying and mapping. The Petitioner's application was pending during the Trustees' moratorium on "permanent improvement" disclaimers. However, the moratorium was lifted prior to the time the Petitioner's application was denied. Meanwhile, the Department continued to process the application. The Department's counsel advised Mr. Woolam that the Petitioner had filed lawsuit in the local circuit court during the pendency of his application and Mr. Woolam was told not to communicate directly with the Petitioner without counsel being present. Meetings were held with counsel present to try to resolve the remaining issues. Mr. Woolam conferred with Ms. Miklus and Mr. Miller about the status of the application. They came to a consensus opinion that the Petitioner had not complied with the requirements of Section 5 of the Form and Rule. The sketch of description provided in January 2001 did not identify the mean high water line, did not locate the permanent improvements prior to 1951, and did not explain the methodology used to support the applicant's description of the entire pre-empted area. These items are required by paragraph 5 of the Form. Mr. Woolam discussed the application with Terry Wilkinson, his supervisor, and prepared a letter recommending denial for Mr. Wilkinson's signature. Terry Wilkinson has been with the Department in the Bureau of Surveying and Mapping for 18 years. He spent the last 16 years as Bureau Chief. He is a professional land surveyor and before his employment with the Department worked in the private sector performing coastal surveys, guaging of tides and mean high water line surveys. He also directed field work for surveys. In his present position, he oversees a bureau that reviews surveys, prepares surveys, administers Chapter 177, Part II, Florida Statutes, which provides that the Department shall approve and assist with all mean high water line surveys, and he determines ordinary high water lines and makes title determinations on behalf of the Trustees. Additionally, he has taught seminars on the foregoing subjects and has received awards in his fields. He was qualified and accepted as an expert in surveying and mapping and in determining title to public lands within the scope of Chapter 253, Florida Statutes. One of Mr. Wilkinson's job duties is to administer the Rule that governs Butler Act disclaimers. Mr. Wilkinson conferred with Mr. Woolam about the proposed denial of the Petitioner's application and agreed that the application did not comply with the Rule because it was incomplete. On July 16, 2002, Mr. Wilkinson issued a letter notifying the Petitioner that his application was denied. The July 16, 2002, denial was based on the fact that the Petitioner's application did not have a legal description of the areas for which the disclaimer was requested, nor a survey showing the pre-1951 improvements and their relations to the current facility. The July 16, 2002, denial letter also indicated that the information lacking from the application had been requested by written communication dated December 23, 1999 and April 6, 2000, and in verbal conversations with the Petitioner and his counsel. In March 2003, after receiving instructions from Mr. Miller, the Petitioner submitted a survey prepared by Mr. Manzie. Although the Manzie survey was offered by the Petitioner at the time of hearing, it was not admitted into evidence. Even had it been admitted into evidence it still did not comply with Section 5, of the Form. Mr. Miller reviewed the March 2003 survey and found a number of technical errors in it. It did not have a true mean high water line, as required by the rule, the disclaimer area was expressed in two legal descriptions instead of one; one of the survey calls was reversed and the areas showed incorrect calculations. The new survey had one substantial error in that it did not show the "footprint" of the improvement that existed prior to May 29, 1951. It was not tied to any type of lots, blocks or streets, and it did not show the saw-tooth docking structure that appears in most of the Petitioner's photographic and other evidence. Therefore, even if it had been admissible, it would still be deemed incomplete under the rule. The Department acknowledges that the Petitioner may own some of the submerged lands pursuant to the Butler Act because permanent improvements existed on them prior to 1951. However, the Petitioner has not provided sufficient proof of where the permanent improvements lie on the ground in order to issue a disclaimer. The Petitioner states that he owns uplands in Fernandina Beach, Nassau County, on the Amelia River in Section 17, Township 3 North, Range 28 East. He presented numerous deeds which were accepted into evidence. The first deed is a patent from the United States to Florida dated July 9, 1891. Although part of it is illegible it appears to include unsurveyed parts of the land claimed by the Petitioner. The second deed, Trustees Deed No. 14,536, dated December 31, 1891, apparently conveys some of the same unsurveyed lands to Samuel A. Swann. Another Trustees Deed No. 14,537, dated the same day, deeds more lands in Petitioner's area to Samuel Swann, Trustee. Trustees Deeds No. 13,490 and 13,491 dated September 13, 1886, apparently provide railroad right-of-way from Fernandina to Cedar Key to the Florida Railroad Company. The Petitioner also presented four deeds that appear to be from Fernandina Dock and Realty Co., to Nassau Wharf Company, J.H.P. Merrow, and John R. Hardee, respectively. The Petitioner submitted a Trustees Disclaimer No. 23141, dated July 20, 1962, to the City of Fernandina Beach, which states "[t]he disclaimer is needed by the city to clear question of title." Neither the disclaimer nor any of its attachments shows that it was a Butler Act Disclaimer. The Murphy Act Deed from the Trustees, No. 199, to the Hardee, Trustees appears to be a portion of one of the "water lots" that the Petitioner claims to own. The final deed is from Samuel A. Swann to the Fernandina Dock and Realty Company, recorded January 18, 1902. None of these deeds appears to convey title to the Petitioner nor has he established any chain of title from any of the grantees to himself. In any event, however, this forum may not opine on issues of title to real property which is a matter reserved for the Circuit Courts of Florida. The Petitioner also presented seven color photographs, referred to at hearing as the "modern" photographs which were admitted into evidence. Certain other historic black and white photographs that were offered by the Petitioner were not admitted into evidence. The modern photographs all show various structures and/or pilings located on the submerged lands adjacent to the uplands the Petitioner states that he owns. The photographs are not to scale, and none of them were taken directly overhead, so measurements cannot ascertain the size of any structure that was there. Additionally, they had no verified dates, and the Petitioner admits that none of them were taken prior to May 29, 1951. The Petitioner identifies a number of remnants which may have been pilings. They are of unknown origin and age and their significance was not shown. Further, there was no showing that conditions in the photographs also prevailed 52 years ago. The Petitioner is not a surveyor and chose not to have his surveyor testify. There is no testimony about the size of the structure. The Petitioner's Exhibit 8, Sanborn maps, was not admitted into evidence. Two aerial photographs, taken by the Florida Department of Transportation, dated 1943 and 1953, were admitted into evidence. The 1953 aerial photograph is not relevant because it was taken after the Butler Act was repealed. The 1943 photographs reveal that there was a long, narrow structure, perhaps a walkway, extending to a small terminal platform that bears no resemblance to the "Area for Disclaimer" identified in the Petition. The photograph merely shows that some structure was present in 1943. The Petitioner's United States Army, Corps of Engineers maps show a "Nassau Wharf Co." structure, that he apparently claims, which is a saw-toothed docking structure that is not clearly located in relation to the Petitioner's modern- day facility. The saw-toothed docking structure was an antiquated dock design to allow for the efficient mooring of sailing ships with lengthy bow sprits which would jut over the wharf area. Depths shown on the maps are not helpful in locating the pre- 1951 structure. A Petitioner witness, Mr. Knetsch, testified that the primary purpose of the Army Corps maps was navigation, not locating structures. The saw-tooth wharf configuration is not substantiated by the 1943 photograph which shows a narrow structure with a small terminus, or the 1933 Coast and Geodetic Survey, which shows a structure similar to the 1943 structure. The saw-toothed dock was evidently removed before that time. None of the evidence admitted shows that the Petitioner conformed to the requirements of the Form in Section 5 of the Rule. Section 5.A.(1) requires a "[p]resent mean high water line surveyed and approved in accordance with Chapter 177, Part II, Florida Statutes. . ." The Sketch of Description provided in January 2001 is not a mean high water line survey and shows no approval by the Department. It shows "approximate mean high water line." Section 5.A.(3) requires "[t]raverse of fill [permanent improvement] showing location of the former mean high water line, with a land tie to an established accessible section, other U.S. Government Land Office Survey Corner, or other controlling corner[s]." The permanent improvement is not located, and no tie to any of the requisite corners is shown on the sketch of description. Section 5.A.(4) requires a "[s]tatement of methodology used to re-establish the pre-fill mean high water line (photo interpretation, historic surveys prepared prior to fill, etc.)." In relation to permanent improvements, this is interpreted to mean the methodology used to re-establish the footprint of the permanent improvement. No statement of methodology appears on the Sketch of Description. Section 5.C. requires a legal description of the filled [improved] parcel. The legal description in the Sketch of Description shows a large area of submerged lands, with no relation to the permanent improvement, which is unsupported by the evidence. Finally, Section 5.E. requires satisfactory evidence of title in the applicant to the riparian uplands to the mean high water line. The Petitioner did not submit any deed to the riparian uplands that would establish his ownership. The Department staff testified that the deed they reviewed showed that the conveyance of the uplands to the Petitioner from his father reserved a life estate in the father. While the Petitioner testified that his father had died in 1999, the rights of his mother to any remainder in the life estate were not established. Thus, the Petitioner failed to show that his application complied with the Rule.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Board of Trustees of the Internal Improvement Trust Fund, of the State of Florida issue a Final Order dismissing the Petition of David Cook dated July 26, 2002. DONE AND ENTERED this 1st day of August, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 1st day of August, 2003. COPIES FURNISHED: Kathy C. Carter, Agency Clerk Department of Environmental Protection Office of the General Counsel Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Teri L. Donaldson, Esquire Department of Environmental Protection Mail Station 35 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 David Cook Post Office Box 30 Fernandina Beach, Florida 32035-0030 Suzanne B. Brantley, Esquire Christine A. Guard, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Mail Station 35 Tallahassee, Florida 32399-3000
Findings Of Fact The Applicant/Respondents, Melvin and Mary Thayer have applied to the Department of Environmental Regulation (Department) for a "dredge and fill permit" seeking authorization to remove an existing 32-foot wooden fence and install in its place a chain-link fence, which as originally applied for would not extend more than 32 feet waterward from the 64-foot mean sea level elevation of Alligator Lake as marked by the waterward end of the existing wooden fence. The fence proposed would be five feet high and would possess a gate at its landward end which would permit pedestrian passage in both directions around the near-shore area of the lake. The project site is located approximately 400 feet south of U.S. 441-192 and adjacent to Alligator Lake, lying one mile west from Bay Lake within Section 10, Township 26 South, Range 31 East in Osceola County, Florida. As clarified and amended prior to hearing, the application now requests the permit to authorize, instead, a 26-foot fence extending that distance waterward from the 64-foot mean sea level elevation. The Department has permitting jurisdiction under Chapters 253 and 403, Florida Statutes as well as Chapter 17-4, Florida Administrative Code. There is no dispute that the Department has jurisdiction of the permitting of the subject fence inasmuch as the fence would be constructed waterward of the 64-foot mean sea level elevation or the "high pool" level of Alligator Lake in Class III waters of the state. Additionally, the area of the project waterward of the 64- foot mean sea level elevation lies on sovereign lands of the State of Florida under the jurisdiction of the Department of Natural Resources. That Department, as yet, has not issued a permit for use of sovereign land for the intended purpose as envisioned by Section 253.77, Florida Statutes. Ed Edmunson was tendered by both Respondents as an expert witness and was accepted as to his expertise in biological assessment of dredge and fill construction projects. It was thus established that the construction and installation of the fence and removal of the existing fence would cause no Class III water quality violations. Additionally, it was established that no navigational impediment would result from the fence as presently proposed which only involves a 26-foot fence extending from the 64-foot mean sea level elevation waterward in a perpendicular direction from the shore and near-shore of Alligator Lake. Parenthetically it should be noted that the original proposal involved extending the fence 32-feet waterward and then installing a right angle section parallel to the shoreline for an indeterminate distance. The right angle portion of the fence has been deleted from the permit application and the portion perpendicular to the shoreline has been amended from 32 feet down to 26 feet from the 64-foot mean sea level elevation. In that connection, it was established by witness Walter, accepted as an expert in the field of engineering, that on January 7, 1985, the water line of Alligator Lake was at 62.4 feet mean sea level elevation and the end of the existing 32-foot wooden fence was 16 feet from the then existing waterline of the lake. If the water in the lake was at the 64 feet mean sea level elevation or "high pool" stage, which has occurred on the average of once every three years, the water at the end of the fence would still be only .9 feet in depth at the waterward extreme end of the proposed 26-foot fence. Indeed, it was established with- out contradiction by the Applicant, Melvin Thayer, that in the 17 or 18 years he has observed the project site, that only "seven or eight inches of water is the most depth he has seen at the end of the fence." Thus, the fence as proposed to be installed, will pose no impediment or hazard to the navigation of fishing boats, skiing boats or other craft, and, in that regard, a dock in close proximity to the site of the proposed fence extends approximately 90 feet waterward at the present time. In view of the Petitioner's other objection to the fence concerning their feared loss of access to walk around the near-shore area of the lake to visit friends and the like, the permit applicants have agreed to install a gate for public access anywhere specified by the Department along the extent of the proposed fence. The testimony of Petitioner's witnesses, including a representative of the Game and Fresh Water Fish Commission, consists largely of objections to the precedent of permitting a private fence to be constructed in the waters of the state and on state water bodies, but no impediment to navigation has been established especially since the neighboring dock and numerous other docks around the shoreline of the lake extend waterward much farther than will the proposed fence. No degradation to water quality has been established to result from the proposed project. The fence has not been shown to be contrary to the public interest since it will not interfere with wildlife habitat or natural resources, nor impede navigation in any way, and was shown not to impede any public use of the lake or the near-shore area of the lake, in view of the access gate to be provided in the fence. In short, reasonable assurances have been provided that all permitting criteria within the Department's jurisdiction at issue in this proceeding will be complied with, although a permit from the Department of Natural Resources authorizing use of the state lands involved has not been issued as yet.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: That the application of Melvin and Mary Thayer for authority to remove an existing fence and to install a fence extending 26 feet waterward of the 64-foot mean sea level elevation of Alligator Lake with an attendant public access gate installed therein be GRANTED upon satisfaction of the above-stated condition. DONE and ENTERED this 15th day of January, 1986 in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 1986. COPIES FURNISHED: Virginia M. Hoover, MSM Consultant 5366 East Space Coast Parkway St. Cloud, Florida 32769 Norman J. Smith, Esquire Post Office Drawer 1549 Kissimmee, Florida 32741 B. J. Owens, Esquire Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301 Victoria Tschinkel, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32301
The Issue The issues to be resolved in this proceeding concern whether the Respondent, Tom Mertens, committed a dredge and fill violation within the jurisdiction of the Department by conducting dredging and filling activities in the landward extent of waters of the State, without an appropriate permit, and whether the amount of the Department's costs and expenses associated with determining and abating the pollution involved are reasonable.
Findings Of Fact The Department is an agency of the State of Florida charged with administering and enforcing the dredge and fill provisions contained in Chapter 403, Florida Statutes, and attendant rules contained in Title 62, Florida Administrative Code. The Respondent, Tom Mertens, is a citizen of the State of Florida, who owned a parcel of real property located in Section 1, Township 1 South, Range 17 West, latitude 30 degrees, 25 minutes, 50 seconds, longitude 85 degrees, 54 minutes, 30 second, in Washington County, Florida, at times pertinent hereto. Linda Mertens is named as a Respondent in this action, but no evidence concerning her involvement in the subject matter has been presented. Based upon reports that it had received of certain construction or mechanical work taking place on the area in question, on the margin of the Choctawhatchee River, the Department identified the Respondent, Tom Mertens, as the owner of the property on which certain activities were allegedly occurring and arranged to meet with him to inspect the property. An inspection of the property revealed that dredging and filling activities had taken place. The inspection occurred on December 9, 1992. The inspection revealed that fill material had been placed covering .36 acres, an area of the property approximately 390 feet x 25 feet ("fill road") and another area approximately 70 feet x 25 feet at the lowland end of the fill road. The fill road appeared to be newly installed based upon the appearance of the clay material used, the instability of the road bed and the lack of vegetative growth in an on the sides and adjacent to the road bed, coupled with the appearance of adjacent felled trees. The clay material used for the fill road is not that normally found in a wetland area, such as the site in question. The property in question is in river-bottom land, bordering the Choctawhatchee River. The Department informed the Respondent that the activities done on the property appeared to violate Chapter 403, Florida Statutes, and pertinent provisions of Title 17, Florida Administrative Code. It so informed the Respondent in a warning letter posted on December 29, 1992. Dredging and filling activities in the landward extent of waters of the State require permits from the Department prior to commencing the activity. The Respondent did not have any permit for the dredging and filling activities observed to have occurred on the property. The Respondent had never applied for a permit for such activities. No permission of any sort had been obtained from the Department authorizing conduct of the dredge and fill activities observed on the property by Department personnel. The Choctawhatchee River is a specifically-named water body of the State of Florida and is classed as an outstanding Florida water. Department employee, James Eric Buckelew, has been an environmental specialist with that agency for some 6-1/2 years. He works in the Division of Submerged Lands and Environmental Resource Permitting, formerly called the Division of Wetlands Management. That Division is in charge of dredge and fill permitting activities for the Northwest District of the Department. The jurisdiction of the Northwest District includes the property in question. Mr. Buckelew routinely makes wetland determinations, including delineating the landward extent of State waters, reviewing dredge and fill applications, and insuring that State water quality standards are maintained throughout the regulatory processes within the scope of his duties. He has a Bachelor of Science degree in Environmental Resource Management and Planning and has completed all of the graduate course work for a Master's degree in Coastal Zone Management Biology. His academic courses included wetlands vegetation and ecology, plant taxonomy, botany, soil science, hydrology, geology, geography, hydrologic indicators, and training in the use of a dichotomous key. He has had additional training from the Department's Jurisdictional Evaluation Team, which provides Department employees with training on identification of vegetation, soil indicators, and hydrology, approximately every six months during his 6-1/2 years of tenure with the Department. The Department routinely relies upon his judgment in making determinations of wetland areas and delineations of the landward extent of State waters. Consequently, adequate proof being presented, Mr. Buckelew was accepted as an expert in making determinations of what areas lie within the landward extent of waters of the State and what areas are wetlands in terms of scientific application of the standards contained in the Department's organic rules, particularly the "vegetative index" to a particular site. During the inspection of the property on December 29, 1992, Mr. Buckelew made a determination concerning whether the property impacted by the dredging and filling activities was within the Department's jurisdiction. He determined that it was within the landward extent of waters of the State, using both hydrological and vegetational indicators. The portions of the property impacted by the dredge and fill activities were dominated by jurisdictional vegetation, including black gum (Nyssa biflora); overcup oak (Quercus lyrata); sweet bay magnolia (Magnolia virginiana); cypress (Taxodium); water oak (Quercus nigra); sweet gum (Liquidambar styraciflua); american holly (Ilex opaca); and ironwood (Capinus caroliniana). The portions of the property impacted by the Respondent's dredge and fill activities were in an area dominated by hydrologic indicators of Department jurisdiction, including staining of leaves, buttressing of tree trunk bases, the low elevation of the portion of the property involved, and its proximity to the Choctawhatchee River. The portions of the property impacted by the activities in question have been periodically inundated with water which covered the fill road. Consequently, Mr. Buckelew established that the portions of the property impacted by the dredge and fill activities, indeed, were within the landward extent of the waters of the State and thus within the Department's dredge and fill jurisdiction. Mr. Buckelew walked the entire length of the connection between the areas impacted by the dredge and fill activities and the waters of the State in making this determination, tracing the vegetational and hydrologic connections from the waters of the State to the impacted areas. He did not use soil sampling or analysis in his determination of the landward extent of waters of the State because it was unnecessary in the formation of his opinion. Under the circumstances, employment of the vegetative index and its application to the site would have been sufficient alone. The Department established that it incurred costs and expenses of $250.10 in tracing and abating this violation and pollution source. Mr. Buckelew, in establishing this expense and cost amount, also established that these were reasonable costs and expenses under the circumstances. Removal of the fill material and re-grading of the impacted areas to their natural grade, as well as allowing them to revegetate with natural species that exist on site, would essentially correct the dredge and fill violations and the pollution problem they engender. The Hearing Officer has considered the demeanor of the Respondent and the other witnesses, his prior sworn statement at deposition and his admissions made to Mr. Buckelew during the investigatory phase of this proceeding. Notwithstanding his testimony at hearing to the contrary, it is found that he placed the fill on the portions of the property at issue. It is, likewise, found that the Respondent or persons under his behest, direction, and control used various pieces of mechanical equipment to haul dirt to the fill sites and to perform the dredging and filling activities, including hauling of the fill to the site and its distribution on the property in the nature of that observed by the Department at the time of its inspection. It is found that the dredge site, or the portion of it referred to as the boat ramp, had straight, square-cut sides, which are inconsistent with that sloping area being caused by a flooding event, as maintained by the Respondent. The shape of the boat ramp was clearly consistent with dredging with mechanical equipment. In summary, based upon Mr. Buckelew's and Mr. Gilmore's testimony, which is accepted, regarding the fresh appearance of the fill road, the road's clay composition which is a soil type uncharacteristic of a river flood plain, as well as the demeanor of the Respondent, including consideration of his prior sworn statement at deposition, it is determined that the Respondent placed the fill material in question within the landward extent of waters of the State. The Respondent, in his opening statement, candidly admitted obtaining permits from the Department in the past for other activities. It is determined that he was reasonably aware that dredging and filling on this property might require a permit from the Department. Finally, based upon the totality of the credible evidence and the circumstances proven in this proceeding, the enforcement action and assessment of costs and expenses advanced by the Department are imminently reasonable. This is especially true in view of the fact that the Department has forborne attempting to fine the Respondent, within its authority, as much as $20,000.00.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent perform the following: Within thirty (30) days from the effective date of the Final Order, the Respondent shall make payment of $250.10 to the Department for the expenses incurred by the Department. Payment shall be in the form of a cashier's check or money order payable to the Department. Within sixty (60) days from the effective date of the Final Order, the Respondent must complete re-grading of the areas of the fill road and boat ramp identified in Exhibit 2 to the NOV and re-grade those areas so as to re- establish the original pre-existing contours and elevations existing before the filling, as indicated by the adjacent, undisturbed areas. The Respondent must also stabilize the restored areas as needed to retain sediment on site during the restoration activities. The Respondent shall utilize turbidity control devices throughout the restored areas, including the use of filter cloth in the vegetated wetlands and floating screens in the open waters. The Respondent shall provide written notification to the appropriate Department personnel within ten (10) days of the completion of the above-described restoration work. The Respondent shall immediately, upon the effective date of the Final Order, cease and desist from further dredging or filling within waters of the State prior to receiving the necessary permit from the Department or written notice from the Department that the proposed activity is exempt from the permitting requirements of the Department. DONE AND ENTERED this 1st day of December, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, 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 1st day of December, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3897 Petitioner's Proposed Findings of Fact 1-41. Accepted. Rejected, as unnecessary and immaterial. Accepted. Respondents' Proposed Findings of Fact 1-3. Accepted, but not materially dispositive. 4. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. 5-6. Rejected, as immaterial and as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter. Rejected, as patently contrary to the preponderant weight of the evidence. COPIES FURNISHED: Michael C. Owens, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Mr. Tom Mertens Star Route Box 5B Ebro, Florida 32437 Virginia B. Wetherell, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000 Kenneth Plante, Esquire General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, FL 32399-3000
The Issue Whether a permit should be issued for the construct in of a road over a marsh area surrounding Lake Susan in order to realign a clay road known as Hull Road near Clermont, Lake County, Florida.
Findings Of Fact On October 9, 1963, the Southwest Florida Water Management District adopted Resolution No. 63 setting forth a declaration of "The Works of the District". Rule 16J-1.03 was promulgated implementing Chapter 373, Florida Statutes, and was readopted October 5, 1974, and amended December 31, 1974. The Lake Susan area, in question here, is within the "work of the district" because it is included in the area encompassed in Rule 16J-1.03(2), "The Oklawaha River, its natural floodway and tributaries, connecting channels, lakes and canals". Lake Susan and its surrounding marshlands is subject to Rule 16J-1.06, which requires, in part, that an application be made before placing fill materials in the marshlands therein and said rule conditions a permit on whether there will be adverse effects by drainage or inundation or will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned by applicant. On November 12, 1968, the Board of County Commissioners of Lake County, Florida, adopted a resolution which stated in part: "BE IT RESOLVED by the Board of County Commissioners of Lake County, Florida, that the cutting and removal of natural vegetation from the shallow areas of our lakes and streams, except as hereinafter provided, be discouraged; and that the Governing Authorities having jurisdiction over such areas be requested to limit the removal and clearing of such vegetation; that only such permits for the disturbance of vegetation be granted for proper access to and from the shoreline of property owners to clear waters retaining as much of the natural vegetation as is possible." This resolution has never been rescinded. Hull Road is a light duty, all weather, improved service, county maintained, dead end, clay road. The road serves residential and agricultural interests as well as lake recreational purposes. Some of the lands the road serves is now being developed by subdivision developers. The Lake County Board of County Commissioners propose to realign Hull Road across the marsh and water section of the southernmost tip of Lake Susan by filling and removing from the flood plain approximately 1.5 acres for a roadway, thereby draining through the culvert some 38 acres. The proposed work requires the construction of an embankment, approximately 66 feet wide and 800 feet long. The road plan is in accordance with the Florida Department of Transportation's criteria for similar roads. No permit was applied for or secured before work began on April 9, 1975 or before a fill of some 400 feet in length and 66 feet in width had been placed. Work was ordered stopped by permittee upon discovery of said activity on April 24, 1975. Applicant had not requested a permit under the belief that the area was not navigable and that therefore no permit was needed. The fill is standing in the condition and state of construction as it was when construction was ordered discontinued on April 24, 1975. The applicant contends that: (1) the present road is hazardous to the travelling public because of two sharp curves thereon, (2) the residents and the agricultural and recreational interests would be better served by a straight road rather than the existing road, (3) one alternative to the proposed realignment was to straighten the existing curve without filling in the marsh, but this alternative was abandoned for the reason that some 14 citrus trees would have to be removed and the county would have to reimburse the property owners for their right of way. A second alternative to the proposed plan which would straighten the hazardous curves would have involved fill of the marsh along the edge of the existing road and would have involved reimbursement to property owners, (4) it is the firm policy of the Board of County Commissioners of Lake County that the county will not buy right of way for county roads and that the county will not use its power of eminent domain to condemn right of way on a road, (5) no harmful effect would be done to the lowlands so long as culverts were part of the construction plans for that portion of the road that would cross the marshlands. The Southwest Florida Water Management District contends that: (1) the applicant county failed to make an application and secure a permit before beginning to fill a marshland area that is within the work district of the permittee board as defined in Rule 16J-1.03, (2) the fill for the proposed road realigning Hull Road across the marsh area will place fill within the mean annual flood plain of a lake and will alter or restrict a watercourse within the flood plain of a 25 year flood on lands not owned, leased or controlled by the applicant, (3) realignment of Hull Road to the marsh and waters of Lake Susan is not a reasonable and beneficial activity and is in violation of both the resolution of Lake County dated November 12, 1968, and the rules of the permittee, i.e., 16J-1.01(3)(4), (4) although an application has now been made for a permit for the proposed road, alternatives to filling said marshland should be explored fully before the Board is requested to waive the rules of the District. It has not been shown that the alternative routes would not better serve the safety interests of the public using the road and be more in keeping with the conservation policies of both the applicant and the permittee. Based on the foregoing it is the finding of the Hearing Officer that (1) the realignment of Hull Road is in conflict with the policy of the county established by resolution on November 12, 1968, (2) the realignment of the road across the waters and marshland of Lake Susan would increase the safety of Hull Road by eliminating two hazardous curves on the roadway in its present condition and location, (3) the alternative route which would straighten the curves without filling in the marshland is more in keeping with the previous resolution of the county and is consistent with the work of the District as promulgated in the cited rules of the permittee. No cost estimate has been made on alternative routes and no traffic studies have been made to determine the average flow of traffic.
The Issue On September 2, 1988, the Surveyors caused to be published notice of rulemaking within Chapter 21HH-6, Florida Administrative Code, which included amendments to Rule 21HH-6.002 and the addition of proposed rule 6.0052. This rulemaking addresses standards utilized in surveys done to establish the ordinary high water mark (OHWM), also referred to as ordinary high water line (OHWL), and prompted the challenge. Briefly stated, the challengers question the validity of the Surveyor's actions based on these allegations: (a) the Surveyors have materially failed to follow applicable rulemaking procedures set forth in Section 120.54, Florida Statutes; (b) the Surveyors have exceeded the grant of rulemaking authority; (c) the proposed rules enlarge, modify, or contravene the specific provisions of law implemented; (d) the proposed riles are vague, fail to establish adequate standards for agency decisions or vest unbridled discretion in the agency; (e) the rules are arbitrary and capricious; and (f) the rules violate Article II, Section 7, and Article X, Section 11, Florida Constitution (1968). More specifically, the Trustees contend that they, rather than the Surveyors, have exclusive or primary rulemaking authority to establish the means by which an OHWM is determined, subject to court review. The Trustees also contend that the economic impact statement is insufficient, and that the rules under attack do not constitute minimum technical standards as advertised, but are instead an attempt to establish statements of legal principles pertaining to the location of an OHWM in a circumstance where this issue is unsettled in the courts, the forum ultimately responsible for resolving disputes related to the proper location of an OHWM.
Findings Of Fact In their petition, the Trustees alleged that they have exclusive or primary authority to promulgate rules to establish a methodology for determining an OHWM, subject to judicial review. Through discovery the Trustees conceded that contrary to the allegations in the petition, neither Chapter 177, Florida Statutes (1987), Part II; Section 253.03(7), Florida Statutes (1987); State v. Florida National Properties, 338 So.2d 13 (Fla. 1976) [FLORIDA NATIONAL PROPERTIES]; 1/ Attorney General's Opinion 88-22, nor any other source granted them exclusive or primary authority to adopt rules. Moreover, at present the Trustees have not promulgated rules to this effect or which address the substance of OHWM determinations. In their proposed final order, the Trustees speak in terms of their unique trust as guardians of sovereign lands. As such, they believe they have exclusive jurisdiction to propose definitions and standards to clarify the limits of their holdings and to identify the features which describe the property boundary. Reference is made to the Florida Constitution; Section 253.03(1)(b), Florida Statutes and case authority. Having examined these claims, nothing about them preempts the authority of the Surveyors to attempt to enact rules on this subject. RULE PROMULGATION In promulgating the rules in question, the Surveyors held four public workshops on May 11, 1988; June 20, 1988; July 13, 1988; and August 4, 1988. Notice of rule adoption was published in Vol. 14, No. 35, September 2, 1988, Florida Administrative weekly, at page 3181. On September 23, 1988, the Trustees brought this challenge to select rules contained within those noticed for promulgation. The details concerning the challenge are described subsequently. After the petition challenging the rules was filed, a public hearing was conducted on September 30, 1988. The text found within the final version of the proposed rules contains a substantial number of suggestions from counsel for the three mining companies who are intervenors in this cause and whose interest counsel was representing in appearing before the Surveyors in the promulgation process. Extensive contribution was also made by counsel was represents a number of other intervenors in this case, among them Florida Land Council, Inc., and two licensed surveyors in Florida, Walter C. Caldwell and Robert J. Clanton. In addition to the imput from these outside interests, the board members made their own thorough examination of the subject. Nonetheless; the final product that is proposed for rule adoption has an obvious connection to the views advanced by outside counsel. The remarks received in the sessions associated with the rule enactment activities came from riparian owners and those who represent their interests. The Trustees or those expressing an opposing point of view were not prohibited from direct participation and in fact the Trustees were kept informed of the progress during the rule adoption process. Additionally, a lawyer on the Attorney General's staff who normally represents the Surveyors had initially given advice in the rule adoption process, until it was determined that the Attorney General , on behalf of the Trustees, was at odds with the provisions in the proposed rules relating to the OHWM. At that juncture the Surveyors were required to employ substitute counsel from a source outside the Attorney General's staff. In the final analysis the Trustees made no attempt to persuade the Surveyors to pursue a different course in adopting these rules. What was done in the enactment process was procedurally correct; the substance of what was done, however, is another matter. PROPOSED RULES UNDER CHALLENGE A number of definitions in proposed rule 21HH-6.002 relating to OHWM surveys have been challenged in his proceeding. The first definition at issue is "accretion" defined at 21HH-6.002(1) as: ... the gradual and imperceptible accumulation of land along the shore or bank of a water body. This definition is taken directly from, board of Trustees of the Internal Improvement Trust Fund v. Sand Key Associates, Ltd., 512 So.2d 934 (Fla. 1987) [SAND KEY]. For reasons set forth in the conclusions of law, while this definition is not found to be a technical standard, it is appropriate for placement in this rule because it coincides with applicable case law. Likewise, the second definition at issue, "avulsion", also is taken from SAND KEY, and is acceptable. As stated at 21HH-6.002(2): ... the sudden or perceptible loss of or addition to land by the action of the water or a sudden change in the bed of a lake or the course of a stream. The third definition is the word "bank" at 21HH-6.002(3), which states: ... the natural feature of a water bode that confines the bed and physically separates it from the adjacent lands. This definition is an attempt to paraphrase from two federal cases, Howard v. Ingersoll, 54 U.S. 381 (1851) [HOWARD] and Oklahoma v. Texas, 260 U.S. 606 (1923), involving rivers with readily identifiable banks. On the question of whether the text set forth in the rule is a faithful adherence to the court language, the answer is in the negative. More fundamentally, the opportunity for defining the word "bank" as it applies to the identification of OHWM in Florida is one reserved to the Florida courts and federal courts who may interpret Florida Law, for reasons explained in the conclusions of law herein. Unless Florida courts or federal courts interpreting Florida Law have adopted the definition of "banks" addressed in the two federal opinions, the definitions are not available to this executive branch agency in its rule enactment. The Surveyors may only rely upon judicial precedents that have an immediate relationship to Florida case law. Unlike the the courts in Florida and the legislature which may consider and adopt approaches in case opinions from other state and federal courts which are not part of the existing Florida case law, an executive agency does not possess such authority. The fact that the two cases under discussion were rendered by the Supreme Court does not establish controlling precedent in Florida, because they pertained to disputes among citizens and states unrelated to Florida and its citizens and unrelated to the establishment of the OHWM in Florida. Finally, the rule definition by its terms is arbitrary in that it fails to provide for the numerous waterbodies in Florida that do not have well-defined banks and whose banks would not correspond to this definition. The fourth definition is related to the term "bed" and is set forth at 21HH-6.002(4): ... the land beneath a water body that is subject to the continued presence and action of the water in ordinary years excluding swamp and overflowed lands. The upper mark of the bed is the ordinary high water mark (OHWM). The authority for this definition is from HOWARD; Harrison v. Fite, 148 F.2d 781 (8th Cir. 1906) [HARRISON] and Tilden v. Smith, 133 So. 708 (Fla. 1927) [TILDEN], according to the rule proponents. TILDEN is a landmark case in Florida jurisprudence establishing legal principles for location of the OHWM as a property boundary. HARRISON involves a property dispute associated with waterbodies in Arkansas in which the court recognized that the title to soil under the waters of a lake or stream is determined by state law. The Court in that opinion establishes a definition of "bed" in Arkansas, a definition which has not been incorporated in Florida through court decision. Moreover, the definition in the proposed rule does not accurately state the Arkansas precedent. The Court's holding in HOWARD, concerning the definition of "bed" differs significantly from the proposed rule, and has not been incorporated into Florida law. TILDEN, in describing "bed" and the relationship to its "banks" is borrowed from the Minnesota Supreme Court, See Minnetouka Lake Improvement, 55 Minn. 513, 58 N.W. 295, 45 Am. St. Rep. 494. The TILDEN court observed at page 712: "... high-water mark, as a line between a riparian owner and the public, is to be determined by examining the bed and banks, and ascertaining where the presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as respects the nature of the soil itself... It is co- ordinate with the limit of the bed of the water; and that only is to be considered the bed which the water occupies sufficiently long and continuously to wrest it from the vegetation, and destroy its value for agricultural purposes.... The proposed rule is not an accurate restatement of the Florida law, as found in TILDEN. The proposed rule is an attempt to set forth an independent definition of "bed" without legal authority. Likewise, the definition of "erosion" is not permissible. It is defined at 21HH-6.002(7) as ... the gradual and imperceptible wearing away of the earth along the shore or bank of a water body. The statement of where the language in the proposed rule originated is identified as, Boyer on Florida Real Estate Transactions at page 13-37 and 65 C.J.S. Navigable Waters, Section 87 (1966) at page 273. These two sources contain definitions of erosion which are found respectively at pg. 13-37 in Boyer; "`Erosion is the gradual and imperceptible wearing away of land bordering on a body of water by the natural action of the elements'" and 65 C.J.S. at p. 273; "`Erosion is gradual eating away by current or tide of the soil of the riparian or littoral owner, and may result in the loss of title to the land occupied by water.'" These two sources in turn refer to Florida case law, and in the instance of 65 C.J.S. to other states' case law as well. Neither source has directly incorporated a Florida court definition of "erosion." An examination of the case law cited in this case reveals that the Florida courts have not defined "erosion" with exactitude. The proposed rule definition of "erosion" is unsupported by Florida law and inconsistent with the authorities that were cited. Moreover the Surveyors possess no authority to use those two sources, to either establish a definition or to construct a definition in their own right. The latter approach is what has occurred in this case and is without authority. At 21HH-6.002(8), the term "gradual and imperceptible" is described as: ... that, although witnesses may periodically perceive changes in the waterfront, they could not observe them occurring. Even though the witnesses may see from the to time that progress has been made, they could not perceive it while the process is going on. This definition is described as having been taken from SAND KEY. The rule is an accurate statement of Florida law set forth in that opinion. The proposed rules define the word "navigable" at 21HH-6.002(11) to mean: ... that there is direct, competent and substantial evidence that the water body or portion thereof was being used, or was susceptible to being used, in its natural and ordinary condition, as a highway for commerce, over which trade and travel Was or may have been conducted in the customary modes of trade and travel on water when Florida became a state on March 3, 1845. Authority for this definition comes from Odom v. Deltona Corporation, 341 So.2d 977 (Fla. 1977); Bucki v. Cone, 6 So. 160 (Fla. 1889); The Daniel Ball v. United States, 77 U.S. 557 (1871) [DANIEL BALL]; Oklahoma v. Texas, 258 U.S. 574 (1922) [OKLAHOMA 1922] and Baker v. State ex rel. Jones, 87 So.2d 497 (Fla. 1956) [BAKER]. In this instance, both federal and Florida case law may be utilized in ascertaining what it means for a waterbody to be navigable at the moment of statehood. A further explanation of this issue is set forth in the Conclusions of Law Florida achieved statehood an March 3, 1845. Were it not for the fact that the proposed rule attempts to establish an evidential standard, i.e., "...direct, competent and substantial evidence..." which is no where to be found in the cited cases, the rule would be permissible since it otherwise tracks the language of DANIEL BALL with allowance for Florida's admission date into the Union. However, since this impermissible evidentiary standard has been included, the proposed rule is invalid. Moreover, OKLAHOMA 1922 looks with favor on the propriety of using statements found in early publications as a source of evidence on the navigability question, whether that evidence is ultimately found to be compelling or hot. These historical publications correspond to indirect proof, contrary to the proposed rule. By use of only direct proof, a reasonable possibility is presented that waters over which the Trustees have a legitimate claim to ownership will be found non-navigable, depriving the state of ownership. The next definition is set forth in 21HH-6.002(12) and defines "non- tidal" as: water bodies in which there is no ebb and flow of the tide. All water bodies referred to in Section 21HH-6.007 are non-tidal. Stated authority for this definition is TILDEN and Black's Law Dictionary, Fifth Edition (1979). The definition is in keeping with the case authority cited and is acceptable. "OHWM" or "OHWL" defined at 21HH-6.002(13) as: the natural boundary that separates the bed of a non-tidal water body from its banks for navigable water bodies the OHWM is the title boundary between sovereignty submerged lands and riparian land; it is the actual, observable, physical mark impressed on the bank of a water body by the long continued presence and action of the cater during normal years, and reflects the point to which the water has exerted dominance over the bed so as to wrest the bed from terrestrial vegetation and destroy its value for agricultural purposes. Generally, the OHWM is a visible mark in which parties providing for a water boundary between them would naturally have in their minds. In all cases the OHWM is a natural object, and is to be sought for as other natural objects are sought for and found by the distinctive appearances they present. Generally, this natural boundary is capable, not only of being ascertained upon inquiring but also, of being seen and recognized in the common practical affairs of life. It neither takes in overflowed land beyond the bank, nor includes swamps or low grounds liable to be overflowed, but reclaimable for meadows or agriculture, or which being too low for reclamation though not always covered with water, may be used for cattle to range upon as natural unenclosed pasture. The OWHM is an ambulatory boundary and is subject to gradual and imperceptible change due to erosion, accretion, reliction or submergence. As authority for the rule citation is made to TILDEN; Goose Creek Hunting Club, Inc. v. United States, 518 F.2d 579 (Ct. Cl. 1975) [GOOSE CREEK]; HOWARD; The Riparian Developer's Dilemma: Locating the Boundary of Navigable Lakes and Rivers, Edgar B. Washburn in Real Property, Probate and Trust Journal, Vol. 18 (Fall 1983) at page 547; and FLORIDA NATIONAL PROPERTIES. The basic meaning of OHWM in Florida, especially as it distinguishes swamp and overflowed lands described in the Act of Congress on September 28, 1850, which conferred upon the states "the whole of the swamp and overflowed land therein" from lands already granted to Florida at statehood, is set out in passages from TILDEN; Martin v. Busch, 112 So. 274 (Fla. 1927) [MARTIN]; and State ex rel. Ellis v. Gerbing, 56 Fla. 603, 47 So. 353 (Fla. 1908) [GERBING]. More specifically, in GERBING, at page 357 the court explains: The act of Congress of September 28, 1850, granted the state "the whole of the swamp and overflowed lands therein." This grant did not include lands the title to which was not then in the United States. As the admission of the state of Florida into the union, "on equal footing with the original states, in all respects whatsoever," gave to the state in trust for the people the navigable waters of the state and lands thereunder, including the shores or space between ordinary high and low water marks, the title to such lands was not in the United States when the act of 1850 was passed granting swamp and overflowed lands to the state. A patent issued by the United States to the state, purporting to convey swamp and overflowed lards under the act of 1850 covering lands under the navigable waters of the state, does not affect the title held by the state to the lands under navigable waters by virtue of the sovereignty of the state. See Edwards v. Rolley, 96 Cal. 408, 31 Pac, 267, 31 Am. St. Rep. 234. The general act of Congress granting swamp and overflowed lands to the states does not cover tide lands. Mann v. Tacoma, 153 U.S. 273, 14 Sup. Ct. 820, 38 L.Ed. 714. * * * Swamp and overflowed lands within the state of Florida, not under navigable or tide waters, that became the property of the United States by the treaty of cession from Spain and had not been previously granted, were by the act of Congress approved September 28, 1850, granted tee statue for purposes of drainage and reclamation. Within the meaning of this act of Congress, swamp lands, as distinguished from overflowed lands, are such as require drainage to dispose of needless water or moisture on or in the lands, in order to make them fit for successful and useful cultivation. Overflowed lands are those that are covered by non-navigable waters, or are subject to such periodical or frequent overflow of water, salt or fresh (not including lands between high and low water marks of naviable streams or bodies of water, nor lands covered and uncovered by the ordinary daily ebb and flow of normal tides of navigable waters), as to require drainage or levees or embankments to keep out the water and thereby render the lands suitable for successful cultivaion. When the lands are not covered by the waters of navigable streams or other bodies of navigable waters at ordinary high-water mark, and drainage, reclamation, or leveing is necessary to render the lands suitable for the ordinary purposes of husbandry, they are within the terms of the act of Congress, and the title passed to the state, if the land were the property of the United States at the date of the act of Congress making the grant to the state. This opinion was followed in TILDEN, where, as indicated before, the Court relied on out of state precedent to construct a Florida definition of "OHWM" or "high cater mark." At page 712 the Court stated: "In the case of fresh water rivers and lakes in which there is no ebb and flow of the tide, but which are subject to irregular and occasional changes of height, without fixed quantity or time, except that they are periodical, recurring with the wet or dry seasons of the year--high water mark, as a line between a riparian owner and the public, is to be determined by examining the bed and banks and ascertaining where the presence and action of the water are so common and usual, and so long continued in all ordinary years, as to mark upon the soil of the bed a character distinct from that of the banks, in respect to vegetation, as well as respects the nature of the soil itself. `High water mark' means what its language imports--a water mark. It is co-ordinate with the limit of the bed of the water; and that only is to be considered the bed which the water occupies sufficiently long and continuously to wrest it from vegetation, and destroy its value for agricultural purposes. Ordinarily the slope of the bank and the character of its soil are such that the water impresses a distinct character on the soil as well as on the vegetation. In some places, however, where the banks are low and flat, the water does not impress on the soil any well-defined line of demarcation between the bed and the banks." "In such cases the effect of the water upon vegetation must be the principal test in determining the location of high-water mark as a line between the riparian owner and the public. It is the point up to which the presence and action of the water is so continuous as to destroy the value of the land for agricultural purposes by preventing the growth of vegetation, constituting what may be termed an ordinary agricultural crop." * * * "The high-water mark on fresh water rivers is not the highest point to which the Stream rises in times of freshets, but is the line which the river impresses upon the soil by covering it for sufficient periods to deprive it of vegetation and to destroy its value for agriculture. Later that year, in MARTIN, further explanation was made concerning the OHWM in which the Court observed, at pages 283 and 284: In 1845, the state, by virtue of its sovereignty, upon being admitted to the Union, became the owner of, and, unless lawfully conveyed or granted, still owns the beds of all navigable lakes to ordinary high- water mark, however shallow the water may be at the outside lines or elsewhere, if the water is in fact a part of the particular lake that is navigable for useful purposes,. See Illinois Steel Co. v. Bilot, supra. In flat territory or because of peculiar conditions, there may be little if any shore to navigable waters, or the elevation may be slight and the water at the outer edges may be shallow and affected by vegetable growth or other conditions, and the line of ordinary high-water mark may be difficult of accurate ascertainment; but, when the duty of determining the line of high-water mark is imposed or assumed, the best evidence attainable and the best methods available should be utilized in determining and establishing the line of true ordinary high- water mark, whether it is done by general or special meandering or by particular surveys of adjacent land. Marks upon the ground or upon local objects that are more or less permanent may be considered in connection with competent testimony, and other evidence in determining the true line of ordinary high-water mark. When the line of ordinary high-water mark is duly ascertained and established by competent authority, such line should be regarded as the true line, unless duly impeached for fraud or mistake. These Florida Supreme Court cases define OHWM in Florida. The proposed rule is contrary to these opinions and is invalid. The proposed rule partially relies on the Florida cases, but the Surveyors have deliberately failed to explain in this proposed rule the appearance of OHWM in those places where the topography is low and flat, which is frequently the case in Florida. In addition, the detailed description of the OHWM line, set forth in the second paragraph to the proposed rule is from HOWARD, and is not the standard which has been accepted in Florida by Florida courts or federal courts interpreting Florida law. Moreover, from the evidence in this case it is not clear that the mark as a line is "generally" discernible. It is just as possible, if not more so, that "generally" it is not easily discernible and this rule does not make provision for what a surveyor is to do in that situation. The reference to swamps and overflowed lands at paragraph two in the proposed rule is from HOWARD in a section of that opinion not adopted by Florida courts or federal courts interpreting Florida law and is unavailable to the Surveyors in enacting the rule. It also comes from GOOSE CREEK, a federal navigational servitude case, which does not apply to the Florida determination of OHWM as a property boundary unless case law related to the Florida property boundary determination adopted this concept which it has not. The Florida description of swamp and overflowed lands is set out in GERBING. Nor has Florida accepted the idea of terrestrial vegetation extracted from GOOSE CREEK and placed in the proposed rule, as opposed to the more general reference to vegetation. On balance the proposed rule is arbitrary in its terms and not consistent with Florida law. The next definition concerns the term "perceptible." The definition at 21HH-6.002(14) states: ... that witnesses may perceive changes as they take place. Although no specific authority is cited, tide definition correctly describes the term in the context of the previous definition of gradual and imperceptible. The term "reliction" is defined at 21HH-6.002(16) as: ... the gradual and imperceptible recession of water. Authority for this definition is found in SAND KEY. Which states at page 936: "`Reliction' or `dereliction' is an increase of the land by gradual and imperceptible withdrawal of any body of water." (e.s.) By failing to include the full definition, the rule is unacceptable and invalid. A definition is provided for the term "submergence" announced at 21HH- 6.002(17) as: ... the gradual and imperceptible disappearance of land under water caused by natural rising waters and land subsidence. Authority for this rule is cited as 65 C.J.S. Navigable Waters, Section 87 (1966) at page 274. The definition in the proposed rule fails to conform to the authority claimed in that it does not speak to the proprietorship interest being lost on this occurrence. Additionally, the proposed rule's definition does not comport with Florida case law found within footnotes in the authority cited by the Surveyors or otherwise argued in this case. Therefore, the proposed rule definition is unacceptable and invalid. The attack on the definition of an OHWM or OHWL survey set out at 21HH-6.002(18)(i), which indicates that such form of survey is designed to accomplish the task in furtherance of the definition in the overall rules under discussion here, is acceptable to the extent that the rules have not been held invalid. The definition of "swamp and overflowed lands" at 21HH-6.002(19) has also been challenged. The definition states: Swamp and Overflowed Lands: shall mean lands that lie on the landward side of the ordinary high water line but that are so subject to inundation during the normal planting, growing or harvesting season of the region that they are not useful for normal agricultural purposes unless they are drained to remove excess water or diked to prevent flooding. Authority for this definition reportedly is found in HOWARD and GERBING, as well as U.S. Department of the Interior, Bureau of Land Management's Manual of Surveying Instructions, (1973) at page 179. The manual is not the controlling law in Florida on property boundaries decided by establishment of the OHWM. HOWARD does not apply. GERBING is the controlling law and as can be seen, supra, the proposed rule definition lacks the precision in that opinion which is essential to understanding the concept of swamp and overflowed lands in Florida. As example, the reminder regarding the unavailability to the riparian owner of lands between the high and low water mark is not mentioned. The proposed rule also fails to mention lands formed by state projects through the process of reliction that do not inure to the benefit of the riparian owner which might appear to be part of swamp and overflowed land but in fact belong to the sovereign. The latter circumstance is described in the MARTIN opinion. The proposed rule is arbitrary and not a true reflection of Florida law except as to that portion which states, "Swamp and Overflowed Lands: shall mean lands that lie on the landward side of the ordinary high water line..." "Terrestrial vegetation" is defined at 21HH-6.002(20) as being: ... land plants, that is plants that do not require standing or flowing water for germination, support, growth and survival, though they may tolerate periods of inundation during each year after they become established. Woody plant species, including trees, are classified as terrestrial vegetation. Authority for enactment is said to be from HOWARD; Borough of Ford City v. United States, 345 F.2d 645 (3d Cir. 1965), cert. denied, 382 U.S. 902 (1962) [FORD CITY]; The Ordinary High Water Mark: Attempts at Settling an Unsettled Boundary Line, Frank E. Maloney, 13 U. Wyo. L. Rev. 465, 470 (1976); Simon Zunamon and Chicago Mill and Lumber Company v. United States, 80-78 Trial Division June 23, 1980, at page 14-15; and United States v. Cameron, 465 F.Supp. 1099 (M.D. Fla. 1978) [CAMERON]. The Wyoming Law Review article is a short comment on HOWARD concerning the concept of terrestrial vegetation written by Justice Curtis, which is not controlling Florida law. Neither are the federal cases involving federal projects such as a lock and dam, a flowage easement and removal of a dike thought to be in violation of Section 10 of the Rivers arid Harbors Act of 1899, 33 U.S.C. 403. The holdings do not relate to Florida law on property disputes over the location of the OHWM and having not been adopted by Florida courts as persuasive authority, are not available to the Surveyors in the rule enactment process. As stated previously, neither Florida courts nor federal courts interpreting Florida law have recognized the value of terrestrial vegetation as a concept in locating the OWHM. Nor have Florida courts adopted a legal concept that resembles this proposed rule in even the most remote fashion. The rule is therefore, arbitrary and contrary to Florida law. The Trustees generally challenge proposed rule 21HH-6.0052 as being in excess of or an enlargement of the rule-making authority granted to the Surveyors under Section 472.027, Florida Statutes. Other provisions within that rule are challenged because they are, for reasons more specifically detailed, alleged to be invalid exercises of delegated legislative authority. Proposed rule 21HH-6.0052 is entitled, "Ordinary High Water Mark (OHWM) Surveys." The intent of this proposal is announced at 21HH-6.0052(1) where it says: Applicability and Intent. This rule establishes additional technical standards, procedures, criteria and general methodology to be applied by land surveyors registered in the state of Florida for the determination of the location of the ordinary high water mark (OHWM). It is the intent that nothing in this rule is in conflict with established Federal and Florida law and existing principles of accepted land surveying standards. For the purpose of this rule, the terms ordinary high water mark (OHWM) and ordinary high water line (OHWL) may be used interchangeably. There are provisions within this proposed rule which are accepted as being reasonably drawn minimum technical standards. They are 21HH-6.0052(2)(b), which says: Surveys tied to corners or other monumentation. All OHWM surveys shall be tied to a government land office survey corner or some other well established survey monument such as a permanent reference monument of a recorded subdivision plat. 21HH-6.0052(2)(c), which says: Sinuosities. The survey shall generally approximate the sinuosities of the OHWM with a meander line of accurately measured courses and distances connecting together meander or inflection points which the surveyor determines to be located upon the OHWM. 21HH-6.0052(2)(d), which says: Bearings and distances. The survey drawing shall provide bearings and distances between adjacent points on the meander line and for ties from the line to the referenced monuments. Bearings should be based on either astronomic north or grid north of the Florida State Plane Coordinate System. 21HH-6.0052(2)(e), which says: Course lengths. Courses shall be of such lengths as, in the opinion of the surveyor, are needed to accurately depict the irregularity of the ordinary high water-mark. 21HH-6.0052(2)(f), which says: Dates. Each meander line of the survey shall be dated to indicate the date on which the meander points were actually established in the field. If a meander line is intended to locate the OHWM as it existed on some prior date, and the means by which the location was set, shall be noted on the face of the survey drawing. 21HH-6.0052(2)(g), which says: Monumentation. All meander or inflection points on the OHWL survey shall be monumented either directly or by witness monuments Each of these subsections is found within section (2), entitled: "Minimum Technical Standards for Ordinary High Water Mark Surveys", and language to that effect; "The following additional minimum technical standards shall apply to all OHWM surveys:" Also within the proposed rule is 21HH-6.0052(2)(h), which says: Independent judgment. The surveyor shall have responsibility for and shall exercise his independent judgment in making the final determination of the location of the OHWM. The surveyor shall personally examine tee bed and the banks or shore of the water body to locate the positions of the OHWM. Recognizing the limitations placed upon the surveyors by the fact that the ultimate decision concerning the proper placement of the OHWM is a decision left to the appropriate courts, and that determinations made in the present administrative order provide further limitations on the exercise of claimed delegated legislative authority, this provision is acceptable. The balance of 21HH-6.0052 are attempts to provide legal principles mandating the methods by which the surveyors in Florida must locate the OHWM, analogous to the circumstance with proposed rule 21HH-6.002 previously discussed. The latter proposal is held to the same rigorous requirements of accurately restating Florida law, without creating net law. Proposed Rule 21HH- 6.0052 identifies the process by which the substantial interests of the property owners on both sides of the OHWM are affected, notwithstanding the fact that disputes over this property boundary must be litigated to be resolved. The court is the ultimate arbiter, but absent a challenge to the propriety of the Surveyor's choice as to location of the OHWM, Surveyor's choice has the appearance of authority, and if these proposed rules are followed to the letter, it is an appearance that is misleading and harmful. At 21HH-6.0052(2)(a), the surveyors are told: Existent location unless prior date specified. The land surveyor will determine the location of the existent OHWM, unless explicitly requested to determine the location of the OHWM as it existed on a specified prior date. This does not comport with the Florida law. In Florida, to locate the OHWM, one must understand the influences which man has had in regulating water levels. In those instances, such as the situation in MARTIN, the surveyors must depict the historical circumstance before man's activities to describe the true OHWM. In addition, under the law, a riparian owner cannot cause accretion to his or her land, or promote reliction by lowering the water to gain more land, but the proposed rule allows this arrangement by leaving a contemporary impression of OHWM which is not an accurate portrayal. See SAND KEY and Trustees v. Madeira Beach Nominee, Inc., 272 So.2d 209 (Fla. 2nd DCA 1973). When man's influence is not examined, the property owner, state or private interest, stands to lose property or gain property at someone else's expense, when the proposed rule calls for no more than the identification of the existing location, absent an explicit request to locate a line on a prior date. The surveyor, not the owner, has the presumed expertise to arrive at the true OHWM, whether or not man's intervening activities have altered the natural location of OHWM. If altered, this would necessarily entail use of an earlier date for depiction of the true OHWM. The proposed rule is arbitrary and contrary to Florida law in failing to recognize the need by the Surveyor to establish the natural location of OHWM as it existed at a prior date. The steps taken in following the legal principles to establish an OHWM are seen by the proposed rule at 21HH-6.0052(2)(i) as: The surveyor shall first examine the slope of the bank and character of its soil for a well-defined line of demarcation between the bed and the bank. The surveyor shall then consider the following factors: The banks of a water body often form a marked escarpment at the limits of its bed. Such escarpments are formed through the processes of erosion and over-bank deposits of sediment during high water, forming natural levees. The OHWL is located below and on the waterward side of the natural levees. The OHWL is to be found at that point where the presence and action of the water is so common and usual and so long continued in all ordinary years that it prevents the establishment and growth of terrestrial vegetation. The bed of a water body is unsuitable for agricultural purposes caused by the continued presence and action (1) the water flowing or washing over the bed. Larger particle sizes and decreased organic matter and clays, which result from the erosive and transportive effects of moving water, distinguish the sediments found in the bed of the water body from the soils found in the banks and in the swamp and overflowed lands that extend landward from the OHWL. The factors enumerated in paragraphs 1., 2., and 3. are not to be considered as separate tests for determining the location of the OHWL, but should be considered together as complementary factors in locating the OHWL. Supplemental evidence, including but not limited to historical accounts of water levels, use of adjacent lands for agriculture, statistical analyses of water levels, and prior surveys of the OHWM, may be used to support the primary criteria enumerated in paragraphs 1., 2. and 3. for determination of the OHWL. The preamble to this proposed rule is said to be taken from TILDEN. The section at 21HH-6.0052(2)(i)1, is said to come from U.S. Department of the Interior, Bureau of Land Management's Manual of Surveying Instructions, (1973) at page 95. The provision at 21HH-6.0052(2)(i)2, is stated as coming from TILDEN; HOWARD and GOOSE CREEK. The provision at 21HH-6.0052(2)(i)3, is said to have its origins in TILDEN; GOOSE CREEK; HARRISON; and The Developer's Dilemma: Locating the Boundary of Lakes and Rivers, Edgar B. Washburn, Reed Property Probate, and Trust Journal Vol. 18 Fall 1983, at page 543 and Water Law Administration--The Florida Experience, (1968), F. Maloney and F. Baldwin, Chapter 3, page 70. The provision at 21HH-6.0052(2)(i)4, is said to be from FORD CITY. Finally, 21HH-6.0052(2)(i)5, is said to orginate with TILDEN and CAMERON. In the analysis, the preamble to 21HH-6.0052(2)(i) is sufficiently in keeping with the statement in Florida law to allow its inclusion in the proposed rules. The provision at 21HH-6.0052(2)(i)1, is not the product of applicable Florida case law. Moreover, the proof in this case, as opposed to the surveyor's manual remarks, does not tend to describe how frequently (often) an escarpment may be seen. It suggests that escarpments are more expected in rivers with well defined banks, but not in rivers without well defined banks or lakes. Yet, the rule doesn't make this distinction. Also, testimony was given in the hearing to the effect that escarpments come about through erosion and over-bank deposit of sediment during high water events; however the levees that are formed also described as deposits, may or may not be indications of the OHWM. This levee formation is not described in the surveyor's Manual reference indicated as authority. In summary 21HH-6.0052(2)(i)1 is arbitrary and contrary to Florida law. As heretofore noted, the concept of terrestrial vegetation set out in 21HH- 6.0052(2)(i)2, is not the Florida law. The reason for Florida's failure to speak to terrestrial vegetation may well be that plant varieties, such as cypress trees, are technically terrestrial vegetation, but may survive in a water environment, once inundation occurs. Therefore, in order to avoid the possibility of easy reliance on the existence and placement of that plant species, once established and growing, as a means to describe where the OHWM is to be found, other measures, such as are referred to by Florida Courts, should also be understood and employed. Florida courts refer to the concept of wresting vegetation, which destroys its value as an agricultural crop, in places where the water has impressed a distinct mark on the soil and vegetation. Where the banks are low, and a well-defined mark has not been left by the water, the concept relates to destruction of the value of the land for agricultural purposes by the water's action, to the extent it prevents vegetation which constitutes an ordinary agricultural crop from growing. See MARTIN at page 712. The proposed rule is arbitrary and contrary to Florida law. Rule 21HH-6.0052(2)(i)3, is not based on Florida case law. Likewise, the reference to swamps and overflowed lands, has the additional problem of not coinciding with the language in the claimed authority which supports the validity of the rule. The Surveyors may not construct a rule without regard for Florida law, and Florida law contains no legal principles similar to those in the proposed rule. The rule is outside Florida law, and in the one respect contrary to claimed authority. The proposed rule is unacceptable. The prior provisions in 21HH-6.0052(2)(i)1, 2, and 3 having failed, 21HH- 6.0052(2)(i)4, must also fail because it may not stand alone, nor may that provision at 21HH-6052(2)(i)5. The provisions within 21HH-6.0052(2)(j) attempt to define those lands landward of the OHWM, wherein it is stated: Lands not included. The following lands are landward of the OHWM of a water body: Swamp or overflowed lands, and floodplains adjacent to a water body that are subject to periodic flooding when the water body overflows its banks. Beds of non-navigable streams which connect with the navigable water bodies. Non-navigable sloughs, arms, bays, marshes, flood channels and similar features that are connected to but are distinct from the main body or channel of a navigable water body, as distinguished from the shallow and non-navigable margin of the main body or channel of the water body. Any man-made flooded area, excavation, canal, dredged area, or widened channel or border, of or connected to a non-tidal navigable water body. In such case, the last location of the natural ordinary high water mark shall be fixed using the best evidence available so as to exclude such man- made change or feature, and shall be so noted on the drawing. As authority, citation is made to HOWARD; TILDEN; U.S. Department of the Interior, Bureau of Land Management's Manual of Surveying Instructions, (1973) at page 94; United States v. Claridge, 416 F.2d 933 (9th Cir. 1969) cert. denied, 397 U.S. 961 (1970) [CLARIDGE]; Clement v. Watson, 58 So. 25 (Fla. 1972) [CLEMENT]; and Iowa-Wisconsin Bridge Company v. United States, 84 F.Supp. 852 (Ct. Cl. 1949) cert. denied, 339 U.S. 982 (1950) [IOWA]. At 21HH-6.0052(2)(j)1, the reference to the exclusion of swamp and overflowed lands is in keeping with Florida law. The balance of the provision is not. While TILDEN, at page 711, regards the idea of a high-water mark found in floods or freshets as beyond the landward extent of the OHWM, Florida law does not speak in terms of flood plains adjacent to waterbodies, which are periodically flooded when the water bodies overflow their banks. It is not clear in this proposed rule what is meant by the term floodplain, and Florida courts have not enunciated a definition. Also unclear is what the term periodic flooding means and to what extent banks need be breached or overtopped to constitute flooding. HOWARD doesn't control, and reference to CLARIDGE, a quiet title case to lands on the Arizona side of the Colorado River, is misplaced in that Florida courts have not adopted the concepts in that opinion. Further, CLARIDGE speaks of overflow on the floodplain, but not about overflowing banks. The proposed rule is acceptable in part, as previously stated. The balance is arbitrary and contrary to Florida law. The provisions at 21HH-6.0052(2)(j)2, is in keeping with BAKER and is acceptable. In discussing 21HH-6.0052(2)(j)3, the foundation case in Florida is CLEMENT, a tidal case, which states, at page 26, that the shore is land bordering navigable waters lying between ordinary high and low water, and does not include lands not immediately bordering the navigable water which is covered by water but which are not navigable. This latter category would be areas such as mud flats, shallow inlets, and lowlands which are covered by water more or less permanently, or at intervals, and not ordinarily useful for public navigation. BAKER follows this rationale, stating that a non-navigable arm, connected to a navigable lake, is not considered part of the lake. The City of Tarpon Springs v. Smith, 88 So. 613 (Fla. 1921) excludes non-navigable salt marshes from the state's holdings as landowner. Lopez v. Smith, 109 So.2d 176 (Fla. 2d DCA 1959) excludes non-navigable branches to the Manatee River from the State's holdings as land owner. The IOWA case is not applicable Florida law, and may not be relied upon as authority for the proposed rule. IOWA involved a federal dam project on the Mississippi River, where alleged damage caused by that project was addressed by an eminent domain claim. The above-cited Florida cases, which identify categories of land not subject to state sovereignty claims, based upon their navigability, are not as expansive as the rule. Consequently, the rule is outside the authority of Florida law. The provision at 21HH-6.0052(2)(j)4, is acceptable, in that it details water courses not belonging to the state. The provision at 21HH-6.0052(2)(k) states: Current Location Presumed to be Natural Location. The current location of the OHWM shall be presumed to be its natural location unless there is obvious, competent and substantial evidence that a change has occurred as the result of natural or man-made avulsion. If there is such evidence of avulsion, the location of the OHWL of a non- tidal water body shall be locate at its last natural position before the avulsion. As authority, reference is made to Municipal Liquidators v. Tench, 153 So.2d 728 (Fla. 1963) [TENCH] and Schultz v. City of Dania, 156 So.2d 560 (Fla. 2d DCA 1963) [SCHULTZ]. TENCH was a property dispute at Tampa Bay, in which the issue was whether the land bordering the bay had disappeared as a result of avulsion, or by erosion and/or submergence. The opinion details Florida law concerning accretion, erosion, submergence and avulsion. It states that there is a presumption favoring accretion or erosion, as contrasted with avulsion, in explaining the phenomenon. Further, according to TENCH the person who claims rights to land under water must prove that the land caved off suddenly. SCHULTZ is another tidal case, involving a quiet title action for property on the Atlantic Ocean. It discusses erosion and avulsion, and cites to TENCH. SCHULTZ asserts that, in Florida, in the absence of contrary evidence, changes to land are the product of accretion, not sudden or violent force. The standard of proof where avulsion is claimed to be responsible, is by a preponderance. These cases do not hold that the current location of the OHWM is presumed to be the natural location. They are related to the right to advance property claims in instances where the face of the land changes, not with the question of whether the current or former line is the natural location of OHWM. Nor do they hold that the current location of OHWM is presumed to be the natural location, unless there is "...obvious, competent and substantial evidence that a change has occurred as the result of natural or man-made avulsion." The evidential standard is not associated with any decisions of applicable courts in Florida, wherein competent evidence is demanded, but the other proposed standards of proof, obvious and substantial, don't exist. The standards of obvious and substantial are fabricated by the Surveyors, and, by inference, are an attempt to limit the Surveyor's responsibility for establishing the natural location of OHWM, whether as seen at the point of the survey, or at some earlier date. It is an undertaking that, by the facts of this case, is not always determined by resort to obvious evidence. The rule is contrary to Florida law and arbitrary. It should be noted that substantial effort in the hearing was devoted to describing specific waterbodies in trying to identify the differences between types of waterbodies within Florida and outside Florida, and how the proposed would operate. While this information serves the reasonable purpose of generally educating the trier of fact, a specific discussion of that evidence is not crucial to the treatment of she dispute, wherein the essential question is whether the proposed rules comport with applicable court law as it is applied to the issues associated with determining the location of the OHWM in surveys designed to accomplish that end. Likewise, the debate waged concerning whether this survey process is one in which a multi-disciplinary approach is needed involving hydrologists, botanists, agronomists, soil scientists, etc., as argued by the challengers to the rule, or one in which surveyors are responsible for the work and consult other experts as needed, is not relevant. The focus in this decision making process is no more than the rule promulgation, and the choice of language in the text of the proposed rules. ECONOMIC IMPACT The economic impacts of the proposed rules under challenge, according to the rule promulgation announcement, are limited to costs associated with development and adoption of the proposed rules, with no significant costs attributable to surveyors, to individuals who retain their services, to the State of Florida, or to the general public. Contrary to this assertion, the influence of the proposed rules on the surveyors, the state, in the person of the Trustees and the general public whom the Trustees represent, and the general public as owners of riparian property, is significant. To allow the use of the proposed rules by surveyors, when the proposed rules are not a correct statement of Florida law, and where they go beyond the limits in the enabling legislation in their enactment, is to create an environment of confusion. To do so is to encourage claims to land which are not legitimate, to hinder legitimate land claims, and to increase potential costs of litigation to remedy the ill effects of the proposed rules, and potential costs of the Surveyors for defending against administrative complaints of non-compliance with the proposed rules. These concerns have not been addressed in the economic impact statement to the proposed rules. STANDING On March 3, 1845, when Florida became a state, it took title to lands beneath the navigable waters of the state, both in waterbodies tidally influenced, and those non-tidal waterbodies, found within Florida. Currently these lands, to the extent they have not been conveyed by the sovereign, and some portion of the original lands have not been, are held in trust and administered by the Trustees. This is in furtherance of the responsibility announced in Article II, Section 7 and Article X, Section 11 of the Florida Constitution (1968) and various provisions within Chapter 253, Florida Statutes. The line which demarks the landward extent of these holdings is tee OHWM or OHWL. Therefore, rules, which have as their purpose the discussion and placement of the boundary line, affect the Trustees' substantial interest in their attempt to protect property held in trust for Florida citizens. To that extent, the Trustees have standing to perfect this challenge to the proposed rules. Agrico Chemical Company, International Minerals & Chemical Corporation, and Mobil Mining and Minerals Company, mining companies who operate in Florida, own lands in Polk County, Florida. Such lands are coursed by, or contain, waterbodies for which the determination of the ordinary high water line may become relevant in a dispute with Coastal Petroleum Company (but not with the Trustees) involving the geographical extent of a lease granted to Coastal by the State. If the proposed rules are adopted, it may be contended that the proposed rules are relevant to the determination of the ordinary high water line issue in this dispute. Accordingly, Intervenors' substantial interests could be affected by the adoption of the proposed rules, and, therefore, Intervenors have standing to participate in this proceeding. Walter C. Caldwell and Robert J. Clanton are licensed professional land surveyors in the State of Florida, and as such, all minimum technical standards oil other requirements adopted by the Board of Professional Land Surveyors will regulate them in the practice of their profession, and therefore they have standing. Pat Wilson, Inc., A. Duda & Sons, Inc., Lykes Bros., Inc., The Corporation of the President of the Church of Jesus Christ of Latter Day Saints, Inc., d/b/a Deseret Ranches of Florida, and Santo J. Prete, own lands in Florida that are coursed by, or contain, meandered waterbodies, for which ordinary high water line is the real property boundary. Florida Land Council, Inc., is a not for profit, Florida corporation, whose general scope of interests include the preservation of private property owner's rights, and the solving of problems relating to land or land ownership witch minimal government involvement or cost. These problems include the location, description and documentation of properly with water boundaries. Florida Land Council, Inc.'s are individuals who are major Florida land owners, or who own, with others, large tracts of Florida lands, or who are authorized representatives of major Florida land owners. At least 50% of the members of the Florida Land Council, Inc., own, or are authorized to represent land owners who own, property adjacent to meandered, non-tidal waterbodies. Florida Land Council, Inc. members own property located adjacent to the Kissimmee River, St. Johns River, Lake Winder and Crooked Lake. Other members own property located adjacent to other non-tidal waterbodies which Petitioner may assert are navigable. As such the most recently described parties have a substantial interest in these proceedings and have standing. Game and Fish, in accordance with Chapter 372, Florida Statutes, owns, operates, and manages lands for wildlife conservation and human recreation. The ownership interest involves lands adjacent to navigable waterbodies held by the Trustees. The management and operation functions include navigable waters held by the Trustees which border private, as well as public, riparian owners. In these circumstances, Game and Fish has reason to be concerned about the rules under challenge which speak to the boundary between the sovereign and riparian owners, and join with the Trustees in attacking the rules at issue. Substantial interest and standing have been demonstrated. Shoreline Owners and Residents Association (SORA) is a non-profit association duly organized under the laws of Florida. SORA was created for the purpose of representing the interests and protecting the private property rights of its members. SORA is authorized by its Articles of Incorporation to participate in the adjudication or other determination of issues of interest to shoreline property owners and residents in administrative, regulatory, legislative and educational forums where such issues are discussed or determined. A substantial number of SORA's members own property adjacent to non- tidal waterbodies which Petitioner may assert are navigable, including the Apalachicola River, the Kissimmee River, and Lake Jackson. The determination of the validity of the Respondent's proposed ordinary high water mark rules falls within SORA's general scope of interest and activity. The relief requested by SORE is appropriate for an association to receive on behalf of its members. The substantial interests of the members are affected by this case and the members have standing through SORA. The Florida Forestry Association is a trade association that represents Florida's forestry community. There are nearly 2,000 members in the Association. Theme members consist of major timber companies and small landowners. There are 15 million acres of commercial land in the state. The 14 major timber companies own or manage over four and a half million acres of land, in addition to hundreds of small landowners who own various parcels anywhere from 10 acres to 80,000 acres in size. In addition, there are other members in the association such as consultants, equipment suppliers, or loggers, who may have non-ownership interest in, or involvement on, other lands. Frequently, there are navigable waterbodies interspersing lands in which the Association is interested. Properties close to these waterbodies, especially in the northern part of the state, constitute manageable forest lands which the members have either owned, or directly managed, for 100 years-plus. As a consequence, the substantial interest of this Association is at issue, and the Association has standing to protect the position of its members. Florida Citrus Mutual (Mutual), includes members who own Florida lands coursed by, or which waterbodies contain, for which the determination of the ordinary high water line (OHWL) may become relevant. As owners of much lands, any methodologies, standards, or criteria used to establish OHWL, will substantially affect these property interests. Accordingly, Mutual's substantial interest could be affected by the adoption, or the finding of invalidity, of the proposed rule. Therefore, Mutual, has standing to participate in this proceeding. Florida Sugar Cane League, and Florida Fruit and Vegetable Association include members who own Florida lands that are coursed by, or contain, waterbodies, for which the determination of the OHWL may become relevant. As such, any methodologies, standards, or criteria used to establish OHWL will substantially affect the aforestated property interests. Accordingly, their substantial interests could be affected by the adoption, or the finding of invalidity of the proposed rule, and therefore, they have standing to participate in this proceeding. The Florida Farm Bureau Federation is a private, non-profit, cooperative membership association chartered in Florida in 1941. It currently has 70,000 members, many of whom are landowners or lessees of lands engaged in agricultural operations, who potentially would be adversely impacted by the outcome of these proceedings. Consequently, it has shown standing to represent the interest of its members. Neal Land and Timber Company owns land along the Apalachicola River, in the non-tidal area, approximately two-miles in length. The substantial interest of the company is affected by the rule and it has standing. Dr. David Finlay Corbin is the part owner of approximately 2,402 acres of hardwood swampland in various tracts along the Apalachicola River, in Calhoun County, Fiorida. At this location, the Apalachicola River is a navigable, non- tidal waterbody. The deed to Dr. Corbin's properties provides, in pertinent part, that his lands extend to, and meander along, the western bank of the Apalachicola River. Dr. Corbin has standing to participate as a party intervenor by virtue of the fact that his substantial interest will be affected by the outcome of this proceeding. Audubon's purposes include the preservation of bird species and wildlife, and the preservation of lands and waters in their natural state to support avian and other wildlife. Audubon has a direct, substantial interest in the ability of its members to use and enjoy state lands and waters. Audubon owns property on Lake Butler in Florida. The deed to the property describes the property boundary in relation to the Waters of Lake Butler. Lake Butler was meandered in a survey by the United States Deputy Surveyor, at about the time Florida was admitted to the Union, in 1845. Many recreational boaters currently use Lake Butler. Audubon's property on Lake Butler, during part of the year, has many wood storks and other wildlife on it. Wood storks are an endangered species. Audubon has standing to participate in the challenge to the proposed rules. Drake Ranch Partnership, includes members who own lands in Florida that are coursed by or contain waterbodies for which the determination of the OWHL may become relevant. As owners of such lands any methodologies, standards or criteria used to establish OHWL will substantially affect these property interests. Accordingly, its substantial interest could be affected by the rule adoption or a finding of its invalidity. Therefore, Drake Ranch has standing to participate in this proceeding. Florida Land Title Association is a trade association that owns no land. Its members are insurers of titles to land authorized by the Insurance Commissioner of this state to insure titles. In the past decades, the Association has insured titles to hundreds of thousands of acres of land throughout the State of Florida, some of which borders on bodies of water. Being in the business of insuring titles to property, its members could be adversely affected by the decision in this case. In the past the Association's members have relied on case law and existing methods of determining the OHWL when issuing title insurance policies. This is sufficient connection to this proceeding to demonstrate standing. Florida Cattleman's Association is an unincorporated agricultural trade association with approximately 4,600 members. Those members, large or small, graze cattle on more than 9 million acres in the State of Florida. Many of those have waterbodies on, adjacent to, or flowing through them. The Association's members are substantially affected by the outcome of this case. Under these circumstances the Association has standing to participate in this proceeding.
Conclusions The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this dispute. See Section 120.54, Florida Statutes. STANDING For reasons set forth in the foregoing findings of fact every party which was an original participant in this case or which was granted leave to intervene has proven its standing. See generally, Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978); State Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045 (Fla. 1st DCA 1979); Professional Fire Fighters of Florida v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981); Florida Medical Association, Inc. v. Department of Professional Regulation, 426 So.2d 1112 (Fla. 1st DCA 1983) and Montgomery v. Department of Health and Rehabilitative Services, 468 So.2d 1014 (Fla. 1st DCA 1985). This decision is based in part on the doctrine of associational standing, enunciated in Florida Home Builders Association v. Department of Labor and Employment Security, 412 So.2d 351 (Fla. 1982) and the right to intervene in a proceeding to support proposed rules as an intervenor, recognized in Florida Electric Power Coordinating Group, Inc. v. County of Manatee, et al, 417 So.2d 752 (Fla. 1st DCA 1982). Similarly, the Trustees are entitled to participate in this proceeding through the Office of the Attorney General. No statute or rule bars the Trustees from being represented by the Attorney General, who customarily acts as the legal representative for the state. The argument by the Surveyors concerning the limits of the general delegation from the Trustees to the Executive Director of the Department of Natural Resources to bring a suit in the name of the Department after consultation with the Attorney General, except where the matter is controversial or an issue of significant public interest does not promote dismissal of this petition. Assuming that the delegation has any relationship to actions of the Trustees as opposed to those of the Department, the word suit is read to encompass administrative litigation. Furthermore, notwithstanding the fact that the present litigation may be perceived as controversial, it is for the other Trustees, not the Surveyors Board, to give expression to opposition to the decision by the Attorney General to bring this rule challenge. BURDEN OF PROOF AND LIMITS ON AUTHORITY TO ENACT RULES The burden of proof in this case resides with the challengers, and this proof must be preponderant. See Agrico Chemical Company v. State, 365 So.2d 759 (Fla. 1st DCA 1978) and Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 495 So.2d 209 (Fla. 1st DCA 1986), review denied 503 So.2d 327. In making their case the challengers must demonstrate that the Surveyors have invalidly exercised the authority delegated to the Surveyors through legislation which empowers the Surveyors to carry out their regulatory responsibilities. The bases for challenge are defined at Section 120.52(8), Florida Statutes as: The agency has materially failed to follow the applicable rulemaking procedures set forth in s.120.54; The agency has exceeded its grant of rulemaking authority, citation to which is required by s.120.54(7); The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s.120.54(7) The rule is vague, fails to establish adequate standards for agency decision, or vests unbridled discretion in the agency or The rule is arbitrary or capricious. These criteria assume that the Surveyors, as a board, were created by statute, not by a specific constitutional provision. The powers reposed in the Surveyors are merely those powers granted by statute. They possess no inherent authority to promulgate rules to achieve purposes which Board members find important. See Gardinier, Inc. v. Florida Department of Pollution Control, 300 So.2d 75 (Fla. 1974); Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908 (Fla. 1st DCA 1978); State v. Falls Chase Special Tax District, 424 So.2d 787 (Fla. 1st DCA) cert. denied., 436 So.2d 98 (Fla. 1983); Department of Administration, Division of Retirement v. Albanese, 445 So.2d 639 (Fla. 1st DCA 1984) and Grove Isle, Ltd. v. State of Florida, Department of Environmental Regulation, 454 So.2d 571 (Fla. 1st DCA 1984). STATED AUTHORITY TO PROMULGATE RULES: Distinction between Technical Standards and Legal Principles The sole statutory authority cited by the Surveyors when they published the rules under challenge was Section 472.027, Florida Statutes, which says: The Board shall adopt rules relating to the practice of land surveying which establish minimum technical standards to assure the achievement of no less than minimum degrees of accuracy, completeness, and quality in order to assure adequate and defensible real property boundary locations and other pertinent information provided by land surveyors under the authority of ss.472.001- 472.039. The rules which have been challenged are for the most part, an attempt to establish legal principles governing the process for determining the OHWM. For the most part they do not establish minimum technical standards, i.e., provide a "how to" manual for surveyors in the conventional sense. Examples of minimum technical standards may be found in proposed Rules 21HH-6.003, 6.004, 6.005 and 6.006. By contrast, when describing the OHWM survey the Surveyors paraphrase, create and delete legal principles based upon their analysis of decisional law from Florida, the federal system and from other states. They express their own ideas about what the legal principles should be in order to assist licensees in the practice of surveying. The Surveyors have no mandate for these activities under the rubric of establishing minimum technical standards. They may not create law concerning the identification of OHWM. The caveat found at 21HH-6.0052(1), "...It is the intent that nothing in this rule is in conflict with Federal and Florida law and existing principles of accepted land surveying standards...", does not save the rules. People will rely upon OHWM surveys conducted under the instructions found in the proposed rules concerning the attempt to announce legal principles for locating OHWM. In addition, the surveyors can be held accountable under the disciplinary provisions of Chapter 472, Florida Statutes, if they failed to follow the proposed rules. There is no statutory guidance in any of the legislative enactments the Surveyors may rely upon to explain how to locate an OHWM. To the extent that the proposed rules are inconsistent with the Florida decisional law the Trustees and riparian owners would be forced to seek redress in court to remedy any misapprehension concerning the true boundary between the sovereign and the riparian owner caused by the application of the proposed rules. This assumes, however, that the Trustees know of each OHWM survey, which is a matter of chance. There is no legal obligation to advise the Trustees whenever an OHWM survey is commissioned and completed. To monitor OHWM surveying and the potential activities pursuant to the survey results in areas where the Trustees might assert ownership claims is extremely onerous, if not impossible. In summary, establishing legal principles under the guise of technical standards not only affects practicing surveyors, but property owners as well, and the result is generally adverse to the Trustees. Because the challenged rules are principally a pronouncement of the Surveyors' choice among legal principles for finding the OHWM and not minimum technical standards, they are arguably subject to invalidation even if other statutory authority exists which would allow the establishment of those legal principles, for no authority other than Section 427.027, Florida Statutes, was stated when the proposed Rules were published. See Capeletti Brothers, Inc. v. DOT, 49 So.2d 855 (Fla. 1st DCA 1986) [CAPELETTI]. CAPELETTI invalidated a Department of Transportation rule for failure to state statutory authority. A similar outcome could be anticipated where the challenged rules fail to describe any authority for the Surveyors to establish substantive legal principles for finding the OHWM. More significantly, no other statute grants the Surveyors authority to establish substantive legal principles for locating OHWM, even as guidance to the licensees, assuming the Surveyors could overcome the holding in CAPELETTI. Section 427.005(4)(a), Florida Statutes, defines the practice of land surveying to include: "among other things, any professional service or work, the adequate performance of which involves the application of special knowledge of the principles of mathematics, the related physical and applied sciences, and the relevant requirements of law for adequate evidence of the act of measuring, locating, establishing or reestablishing lines, angles, elevations, natural and manmade features.. on the earth, the surface and immediate surface... on the beds or surface of bodies of water..." Also, the Surveyors generally may promulgate rules necessary to carry out their duties and exercise their authority, in a manner not inconsistent with law. See Section 472.008, Florida Statutes. While surveyors in Florida are expected to be knowledgeable about legal principles derived from court opinions, their board may not undertake to create substantive legal principles concerning the location of an OHWM. To do so is to act outside the Surveyor's statutory authority and inconsistent with law. What the Surveyors may do for the benefit of its licensees is to precisely codify, restate, or recapitulate, the decisional law of Florida. To the extent that the law in Florida is less comprehensive than that desired by the Surveyors, is unfavorable to perceptions held by the Surveyors, is unclear or has correctly deviated from federal case decisions, Florida law cannot be modified by creation, mischaracterization, addition, omission, or substitution of legal principles by Board Rule. This is precisely what is done in the proposed Rules. CASE LAW AND THE OHWM When Florida was admitted to the Union on March 3, 1845, its admission was on "equal footing" with the original states which formed the Union. This doctrine is as announced in Pollard's Lessee v. Hagan, 3 How. 212, 11 L.Ed. 565 (1845); Barney v. Keokuk, 94 U.S. 324, 24 L.Ed. 224 (1877) and Shivley v. Bowlby, 152 U.S. 1, 38 L.Ed. 331, 14 S.Ct. 48 (1894). The GERBING court recognized this doctrine in Florida. Under GERBING "equal footing" means that at statehood Florida gained from the federal government all rights and powers related to property and sovereignty the original states possessed, except any rights or authority withheld by the act which admitted Florida to the Union. Those exceptions have no influence in this case. Through statehood Florida obtained the right to own and hold the lands under navigable waters within Florida, subject to federal navigational easements, and federal control over navigation which is derived from the U.S. Constitution. This land has been held in trust by Florida since that time for purposes of navigation and other uses. The Trustees are presently charged with maintaining the trust. See Article X, Section 11, Florida Constitution and Chapter 253, Florida Statutes. In examining the implications of receipt by Florida of navigable waters, the meaning of "navigabillity" is a question of federal law, to be determined factually as of the time Florida became a state. See United States v. State of Oregon, 295 U.S. 1, 55 S.Ct. 610 (1935). The specific definition of navigability in the federal law for freshwater bodies is set out in DANIEL BALL and carried forth in Broward v. Nabry, 50 So. 826 (Fla. 1909). The initial boundary line between the riparian owner's property and the navigable waters Florida obtained at the time of statehood is fixed by federal law; however, the title to the beds in those navigable waters was absolutely vested with the state and is not subject to later defeasance by operation of any doctrine of federal common law. From that foment forward, state, not federal law, controlled the resolution of disputes over ownership of land which had passed under the "equal footing" doctrine and riparian lands adjoining the lands thus conveyed. See Oregon ex rel. State Land Board v. Corvallis Sand and Gravel Company, 429 U.S. 363, 50 L.Ed. 2d 550, 97 S.Ct. 582 (1977) and Phillips Petroleum v. Mississippi, 484 U.S. , 98 L.Ed. 277, 108 St.Ct. (1988). As a consequence, in all aspects of OHWM determinations the Surveyors', having no express statutory opportunity to establish rules in substance concerning this process, are limited to a restatement of applicable law. Further, it is the Florida law which pertains and may be restated in the proposed rules. The exception is that federal law on navigability determinations may be used in the restatement related to the point in time where Florida became a state. Since the OHWM is ambulatory in its nature, the fact that its initial location at statehood under federal law may remain constant over time is more a theoretrical possibility than a probability given the facts presented in this case. In any event, the Florida law would govern the outcome in any dispute between the sovereign and a riparian owner beyond statehood and that is the crucial consideration in examining the proposed rules. Under the circumstances set forth in the, facts and in accordance with the legal discussion, some of the proposed rules are invalid. Effectively, those provisions, as described in the facts: fail to accurately portray Florida law, as opposed to law in other jurisdictions; are arbitrary in their terms; and in some instances fail to adhere to the authority established in other jurisdictions or discussions in publications claimed as a basis for rule enactment. The Surveyors also create their own statement of law on the subject independent of any other authority, all in the absence of express authority to establish a set of legal principles for finding the OHWM in a survey directed to that end. The provisions are invalid under Section 120.52(8), Florida Statutes, because: The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7); The rule enlarges, modifies or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7); The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; and The rule is arbitrary or capricious. The provisions in the proposed rules which are declared invalid are proposed Rule 21HH-6.002(3), (4), (7), (11), (13), (16), (17), (19) after the words, "Swamp and Overflowed Lands: shall mean lands that lie on the landward side of the ordinary high water line..." and (20) and proposed Rule 21HH- 6.0052(2)(a); (2)(i)1 through 5; (2)(j)1 after the words, "swamp or overflowed lands..."; (2)(j)3 and (2)(k) ECONOMIC IMPACT For reasons as described in the fact finding, the provisions within the proposed rules which have been held invalid did not have an adequate analysis of their economic impact. See Section 120.54(2)(b) and (d), Florida Statutes and Department of Health and Rehabilitative Services v. Wright, 439 So.2d 937 (Fla. 1st DCA 1983). They are invalid for this reason, independent of the other infirmities expressed in this order. The other challenges to the proposed Rules have no merit, and are dismissed. EVIDENTIAL RULINGS AND RELATED MATTERS At the time of hearing ruling was reserved on the admission of certain exhibits. The parties were given leave to submit written argument on the issue of their admissability. Having considered these matters, Trustees' exhibits, (identified in the record as Petitioners' exhibits), numbers 24, 70 and 81A are admitted. In addition, the written information associated with the photographs, Petitioners' exhibits numbers 36, 38 and 40 is admitted. Petitioners' exhibits 66, 143, 165 (Houston deposition September 15), 166 (Houston deposition October 30), 167 (Niece deposition) and exhibit 4 to Petitioner's exhibit 170 (Haney deposition), are denied admission. Further, exhibit 1 (Sanders deposition) offered by Florida Land Council and the other clients represented by Messrs. Blain and Nanson, is denied admission. Florida Citrus Mutual filed an index with attachments, described as supporting the rules under challenge, on January 27, 1989. This material was filed without permission and much beyond the time for submission of exhibits, or for that matter submission of proposed final orders and associated memoranda. All these items post-date the rulemaking sessions. The admission of this material is opposed by the Trustees, who filed a motion to strike. Having examined the material, it is denied admission as part of the record. It was filed late and is irrelevant. Florida Land Council and the other clients represented by Messrs. Blain and Manson filed an index and written remarks made to the Surveyors when the rules under scrutiny in this proceeding were promulgaged. The filing date was January 23, 1989. As with Florida Citrus Mutual this filing was untimely, although the information on its face was relevant. It has been met with a motion to strike filed by the Trustees. After consideration, the filing of the remarks is denied admission as part of the record. CORRECTIONS TO TRANSCRIPT On December 15, 1988, counsel for the Trustees wrote to the court reporter who had reported and transcribed these proceedings and enclosed a list of suggested corrections to the transcript. After checking the stenotype notes the reporter agreed to the suggested changes on December 16, 1988. Copies of these items of correspondence were filed in this case and with such filing the changes are accepted. The Surveyors have also moved to correct the transcript concerning the depositions of Houston, Petitioners' exhibits 165 and 166 and Niece, Petitioners' exhibit 167 as well as admission of any exhibits attached to the Haney deposition, Petitioners' exhibit 170 and the Simpson deposition, Petitioners' exhibit 168. The Surveyors maintain that the transcript is in error in showing that these items had been admitted at the conclusion of the hearing. By response, the Trustees as sponsors of these exhibits take no issue with this suggestion. Rulings on the admission of these exhibits have already been made in an earlier portion of this order. The Trustees also ask that the record be, clarified concerning reference at page 1082 in the transcript to show that Petitioners' exhibit 80W is the actual remark, not Trustees exhibit 80K. This motion states that the Surveyors do not oppose and no other party has come forth with an objection. The motion to correct the transcript at page 1082 is granted. DONE and ORDERED this 17th day of April 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1989.
Findings Of Fact On January 27, 1987, petitioner, Vincent M. Drost, filed an application with respondent, Department of Environmental Regulation (Department), for a permit/water quality certification to construct 24,155 linear feet of vertical bulkhead (90 degrees to horizontal) in manmade residential canals and along the Atlantic Ocean waterfront (Bow Channel and Cudjoe Bay), in Cudjoe Gardens Subdivision, Monroe County, Florida. The subject waters are Class III, Outstanding Florida Waters. 1/ On August 12, 1987, the Department issued its intent to deny petitioner's application with respect to the northernmost canal, which is abutted on the north and west by lots 1-18 and a portion of lot 19; the second most northern canal, which is abutted on the north and west, south of Second Avenue West, by lots 1-10; and along the southern and western shoreline of the Atlantic Ocean. The predicate for the Department's decision was Section 403.918(5)(b), Florida Statutes, which, pertinent to this case, prohibits the installation of vertical seawalls in lagoons unless within existing canals that are currently occupied in whole or in part by vertical seawalls, and the provisions of Section 403.918(2), Florida Statutes, which prohibits such activities in Outstanding Florida Waters unless the project is clearly in the public interest. The Department exempted, however, the remainder of petitioner's project predicated on the fact that such canals were currently occupied in part by vertical seawalls. Petitioner filed a timely protest of the Department's intent to deny, and the matter was referred to the Division of Administrative Hearings to conduct a formal hearing. In light of the Department's exemption of a majority of the project, the parties have agreed that only that portion of petitioner's application which seeks a permit to bulkhead within the two northernmost canals and along the shoreline, approximately 8,000 linear feet, is at issue in this proceeding. Background In 1957, petitioner began the acquisition of certain lands lying south of U.S. Highway 1, Cudjoe Key, Monroe County, Florida. Over the years, petitioner added to his holdings, which he subdivided and platted as Cudjoe Gardens Subdivision. Petitioner's exhibit 6, a copy of which is attached hereto as appendix 2, depicts the subdivision and canal system which petitioner ultimately created as it exists today. In 1969, when petitioner prepared his proposed plans for dredging the canal system for the lands pertinent to this case, which lie west of Drost Drive in the subdivision, the state did not regulate dredge and fill work on privately owned uplands. Rather, a permit was only necessary to open the canal system to navigable waters. In June 1969, petitioner applied to the Board of Trustees of the Internal Improvement Trust Fund (Trustees) for a permit to dredge a 60 foot wide and 3,000 foot long "canal" along the western and southern shore of the subject lands. Petitioner proposed to dredge to a depth of -15 feet mean low water (MLW) and represented that the area of the proposed "canal" was dry at low tide. In September 1969, petitioner revised his application and withdrew his request to dredge the "canal" as originally proposed. As revised, petitioner proposed to dredge the "canal" predominately from uplands, for which no permit was required and requested a permit to dredge 9,722 cubic yards of material from a 75 foot wide, 175 foot long, and 20 foot deep area to create an access channel for the proposed shoreline "canal", and to fill approximately 0.48 acres of submerged land adjacent to the proposed "canal." In December 1969, petitioner's revised application was approved, and a permit issued to perform the requested work in navigable waters of the state. Following receipt of the aforesaid permit, petitioner dredged the shoreline "canal" and the access channel, which currently abuts the southern and western shorelines of petitioner's property. While he avers that the shoreline "canal" was dredged entirely from uplands, the proof demonstrates that, at least in part, it was dredged from lands lying waterward of the natural ordinary or mean high water mark, and that the upper edges of its sides are normally below water. From 1972 through mid-1976, petitioner was prohibited from further development of his canal system because of a rule change which required approval of the complete canal system rather than just the opening of the system to navigable water. During this period, the Department and petitioner reached agreement on an acceptable manner in which the canal system could be completed, and on July 19, 1976, petitioner received his permit. The permit authorized petitioner to do the following: To dredge 75,500 cubic yards of upland material to create approximately & 2,450 feet of canals (approximately 600 feet to -12 feet mean low water, 450 feet to -8 feet mean low water, and 400 feet of tapered culvert) in order to convert a dead-end canal system into a flow-through system; ... to remove existing plug; ... and spoil to be deposited on adjacent upland. and, contained the following pertinent conditions: GENERAL CONDITIONS: ...the work authorized by this Permit shall be valid for a three (3) year period that shall commence upon receipt by the Permittee of all government authorizations, state and federal.... * * * PARTICULAR CONDITIONS: 3. The culvert under Drost Drive will be 10 feet wide and at a depth essentially equal to that of the connected canals. * * * 5. All culvert approaches shall be flared to smoothly connect to the canals. * * * 7. The plug shall remain intact until all upland excavation has been completed and any siltation has subsided. Petitioner completed the improvements contemplated by the Department's permit in December 1980. Pertinent to this case, the northern most canal was connected by a 10 foot wide culvert under Drost Drive to an existing canal on the east to provide a flow-through system. Prior to removing the plug from the canal system, petitioner completed all upland excavation of the interior lots which consisted of scraping all mud or soft ground from the edge of the canal back a distance of approximately 20 feet. Additionally, petitioner scrapped the ground back from the edge of the shoreline a distance of 2-10 feet. Petitioner contemplated that the caprock at the edge of the canals and shoreline would be capped with a vertical seawall and a concrete patio constructed over the remaining area. 2/ While such occurred on lots abutting other canals and a few lots abutting the subject shoreline, no such construction has occurred in the two northernmost canals. 3/ In reaching the conclusion that no vertical seawall exists in the northernmost canal west of Drost Drive, I have not overlooked the fact that such canal is connected hydraulically to the canal east of Drost Drive, and that the canal east of Drost Drive does contain vertical seawalls. However, I find compelling the fact that the canal west of Drost Drive was constructed long after the canal east of Drost Drive and that they are connected by a culvert, which runs under Drost Drive, that is significantly narrower than the canals. Under the circumstances, while they may be part of the same canal system, they are separate canals. I have, likewise, not overlooked the fact that the southerly edge of lot 19 is bulkhead. I find, however, that the natural extent of the northernmost canal is abutted on the north and west by lots 1-18 and that portion of lot 19 that is rip-rapped, and that no vertical seawalls exist within that canal. Environmental Concerns The proof demonstrates that along the southern and western shoreline there exists a littoral shelf that varies from 2-10 feet landward of the channel, and that is submerged at a depth of 2-6 inches at mean high water (MHW). Upon this shelf is a dense growth of sea grass and algae, followed landward by jurisdictional species such as mangroves, buttonwoods, and sea daisies. These species provide habitats for wildlife, water quality filtration functions, and food to lower organisms in the food chain. The vertical seawalls proposed by petitioner along the southern and western shoreline would have a direct adverse impact on fish and wildlife, their habitats, and marine productivity. The destruction of the intertidal vegetation where the seawalls would be replaced and the total isolation of the remaining wetland vegetation located landward of the seawalls, would prevent those species from providing their traditional wetland values. Within the two northern most canals, the exposed caprock abutting the canals is at or above mean sea level (MSL) in most cases. The Department offered credible proof, however, that a narrow littoral shelf exists along both canals which supports vegetation similar to that found along the southern and western shorelines. Additionally, the Department demonstrated that portions of the shoreline within the canals, where the caprock has been exposed, is saturated by natural tidal action at a frequency and duration adequate to support mangroves or other wetland species. In most case, however, this growth has been minimized by petitioner's mowing of the shelf area. Petitioner offered no competent proof to rebut the Department's showing that the project is subject to its jurisdiction. While construction of the proposed seawalls would not violate existing water quality standards, impede navigation or affect flood control, it would adversely impact the fish and wildlife, their habitats, and marine productivity within the canals. The marine life within these canals are very productive, due in no small measure to the design characteristics adopted by petitioner. Currently, lobster, crab, mollasks, and a healthy array of organisms populate the interior canals in question. There has been no credible showing that the existing waterways are experiencing harmful erosion. Upon consideration of the various criteria established by Section 403.918(2), Florida Statutes, it is found that the applicant has failed to establish that the project is not contrary to the public interest, as well as the more stringent standard that the project is clearly in the public interest. As part of his proposal, petitioner agreed that no mangroves would be disturbed, and that any capping would be done in a manner to assure their survival. The preservation of existing wetland areas alone is not, however, sufficient to compensate for the wetland areas to be lost. A lagoon Respondent contends that the waters abutting the shoreline of petitioner's property are considered a lagoon. A "lagoon" is defined by Section 403.911(5), Florida Statutes, as: . . . a naturally existing coastal zone depression which is below mean high water and which has permanent or ephemeral communication with the sea, but is protected from the sea by some type of natural existing barrier. In the opinion of Janet Llewellyn, accepted as an expert in oceanography, the waters abutting the petitioner's shoreline are within a lagoon that extends from the shoreline to a naturally existing barrier reef to the south. Petitioner offered no contrary proof. Under the circumstances, the opinion of Ms. Llewellyn is credited. Although the interior canals are artificially created waterways that were totally dredged on privately owned upland, and the waters of those canals never overlapped natural surface waters of the state before the plug was pulled, the opening of the canals to the abutting waters extended the lagoonal waters into the canals.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that the application be denied. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 27th day of September, 1988.
Findings Of Fact The petitioners Petitioners are special taxing districts and political subdivisions of the State of Florida, which were created pursuant to Chapter 298, Florida Statutes. The petitioners and their pertinent structures and operations were authorized by Chapter 298, Florida Statutes, for the purpose of providing irrigation, drainage and flood protection for the landowners within their respective boundaries. In order to effect this purpose, the petitioners designed and operate their water control structures to pump excess stormwater and surface water directly to Lake Okeechobee (the "Lake") in the case of East Beach Water Control District (East Beach) and directly to the Rim Canal at the southern end of the Lake in the case of South Shore Drainage District (South Shore), East Shore Water Control District (East Shore), and South Florida Conservancy District (South Florida). East Beach covers a total area of approximately 6,542 acres located along the southeast shore of the Lake. Approximately 75-80 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 20-25 percent of the drainage area is urbanized. The urban area includes the City of Pahokee. South Shore covers a total area of approximately 4,230 acres located along the Rim Canal at the south end of the Lake. Approximately 80-85 percent of the lands contained within the District are used for agriculture, with most of those lands planted in sugarcane. The remaining 15-20 percent of the drainage area is urban and industrial. The urban area includes a portion of the cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely scattered home sites throughout the District. East Shore covers a total area of approximately 8,136 acres located along the Rim Canal at the south end of the Lake. With the exception of lands developed as canals, levees, roads, and other service-related systems, the entire district is used for agricultural purposes. South Florida covers a total area of approximately 32,754 acres located along the Rim Canal at the south end of the Lake with 28,649 acres located in Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90 percent of the land is used for agricultural purposes and the remaining 10-15 percent is used for urban or industrial purposes. The City of Belle Glade constitutes a major part of the urban land with the remainder situated around the cities of South Bay, Lake Harbor and other scattered home sites. Here, the parties have stipulated that petitioners have standing to maintain this challenge. Background Before 1986, petitioners' discharges into the Lake had not been regulated by the respondent, Department of Environmental Regulation (Department). In 1985 the Governor of the State of Florida issued Executive Order Number 86-150. This executive order observed that the Lake Okeechobee Technical Committee, formed to study water quality and water supply conditions in the Lake, had found the Lake to be in danger of becoming hypereutrophic because of the excessive amounts of nutrients, especially phosphorus, it was receiving, and had recommended corrective actions to substantially reduce the nutrient load and provide for long-term monitoring, research and management needs for the Lake. To protect and preserve the Lake, the executive order directed, inter alia, that the Department "bring all private and publically controlled backpumping sources into the lake under permit review or under enforcement for operating without a permit." Pursuant to that executive order, the Department, in concert with petitioners, began the process of regulating petitioners' discharges into the Lake. The Department initially attempted to have the petitioners enter into consent orders; however, the petitioners objected to that concept. Ultimately, both the Department and petitioners agreed to the issuance of short-term operating permits (TOPs) containing specific conditions aimed at determining the composition of the discharges from petitioners' systems and at reducing the pollution loading into the Lake. The TOPs, issued December 30, 1986, and effective until September 23, 1988, were issued pursuant to the Department's regulatory authority over pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4, Florida Administrative Code. 2/ Pertinent to this case, Section 403.088, Florida Statutes, provided, and continues to provide, as follows: 403.088 Water pollution operation permits; temporary permits; conditions-- (1) No person, without written authorization of the department, shall discharge into waters within the state any waste which by itself or in combination with the wastes or other sources, reduces the quality of the receiving waters below the classification established for them . . . (2)(a) Any person intending to discharge wastes into the waters of the state shall make application to the department for an operation permit. Application shall be made on a form prescribed by the department and shall contain such information as the department requires. If the department finds that the proposed discharge will reduce the quality of the receiving waters below the classification established for them, it shall deny the application and refuse to issue a permit. . . (3)(a) A person who does not qualify for an operation permit or has been denied an operation permit under paragraph (b) of subsection (2) may apply to the department for a temporary operation permit . . . After consideration of the application, any additional information furnished, and all written objections submitted, the department shall grant or deny a temporary operation permit. No temporary permit shall be granted by the department unless it affirmatively finds: The proposed discharge does not qualify for an operation permit; The applicant is constructing, installing, or placing into operation, or has submitted plans and reasonable schedules of constructing, installing or placing into operation, an approved pollution abatement facility or alternate waste disposal system, or that the applicant has a waste for which no feasible and acceptable method of treatment or disposal is known or recognized but is making a bona fide effort through research and other means to discover and implement such a method; The applicant needs permission to pollute the waters within the state for a period of time necessary to complete research, planning, construction, installation, or operation of an approved and acceptable pollution abatement facility or alternate waste disposal system; There is no present, reasonable, alternative means of disposing of the waste other than by discharging it into the waters of the state; The denial of a temporary operation permit would work an extreme hardship upon the applicant; The granting of a temporary operation permit will be in the public interest; or The discharge will not be unreasonably destructive to the quality of the receiving waters. A temporary operation permit issued shall: Specify the manner, nature, volume, and frequency of the discharge permitted; Require the proper operation and maintenance of any interim or temporary pollution abatement facility or system required by the department as a condition of the permit; Require the permitholder to maintain such monitoring equipment and make and file such records and reports as the department deems necessary to ensure compliance with the terms of the permit and to evaluate the effect of the discharge upon the receiving waters; Be valid only for the period of time necessary for the permit holder to place into operation the facility, system, or method contemplated in his application as determined by the department; and Contain other requirements and restrictions which the department deems necessary and desirable to protect the quality of the receiving waters and promote the public interest. And, Section 403.927, Florida Statutes, provided, and continues to provide, as follows: 403.927 Use of water in farming and forestry activities.-- . . . it is the intent of the Legislature to provide for the construction and operation of agricultural water management systems under authority granted to water management districts and to control, by the department or by delegation of authority to water management districts, the ultimate discharge from agricultural water management systems. . . . The department may require a stormwater permit or appropriate discharge permit at the ultimate point of discharge from an agricultural water management system or a group of connected agricultural water management systems. . . (4) As used in this section, the term: * * * (b) "Agricultural water management systems" means farming and forestry water management or irrigation systems and farm ponds which are permitted pursuant to chapter 373 or which are exempt from the permitting provisions of that chapter. The agricultural water management systems owned and operated by petitioners fall within the definition of "agricultural water management systems" set forth in Section 403.927(4)(b), Florida Statutes. Consistent with the provisions of Section 403.088, Florida Statutes, Rule 17-4.070(1), Florida Administrative Code, provides: A permit shall be issued to the applicant upon such conditions as the Department may direct, only if the applicant affirmatively provides the Department with reasonable assurance based on plans, test results, installation of pollution control equipment, or other information, that the construction, expansion, modification, operation, or activity of the installation will not discharge, emit or cause pollution in contravention of Department standards or rules. However, for discharges of wastes to water, the Department may issue temporary operation permits under the criteria set forth in Section 403.088(3), F.S. Chapter 17-4, Florida Administrative Code, further delineates the specific procedures to obtain permits and the specific standards for issuing and denying permits. In July 1988, petitioners applied for an extension of their TOPs. The monthly water quality monitoring data petitioners had submitted to the Department reflected, however, that the discharges from petitioners' systems were in contravention of the Department's rules and standards. Accordingly, since petitioners had not met the obligations set forth in the TOPs, the Department advised petitioners that the TOPs would not be extended and that they were required to apply for new operating permits. The new permit applications Following the Department's refusal to extend the TOPs, petitioners filed applications for operating permits for their discharges, and the Department, consistent with its previous reviews, undertook its review pursuant to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was amended with regard to, inter alia, the definition of stormwater management systems so as to include pumped discharges such as petitioners. Further, pertinent to this case, Part IV of Chapter 373 provided: 373.416 Permits for maintenance or operation-- (1) . . . the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district. 373.418 Rulemaking; preservation of existing authority.-- It is the intent of the Legislature that stormwater management systems be regulated under this part incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403. Neither the department nor governing boards are limited or prohibited from amending any regulatory requirement applicable to stormwater management systems in accordance with the provisions of this part. It is further the intent of the Legislature that all current exemptions under chapters 373 and 403 shall remain in full force and effect and that this act shall not be construed to remove or alter these exemptions. In order to preserve existing requirements, all rules of the department or governing boards existing on July 1, 1989, . . . shall be applicable to stormwater management systems and continue in full force and effect unless amended or replaced by future rulemaking in accordance with this part. Upon the amendment of Part IV, Chapter 373, Florida Statutes, petitioners amended their pending applications to reflect their desire that the applications be processed pursuant to the newly amended provisions of Part IV, Chapter 373, as they relate to stormwater management systems. The Department, acknowledging the amendments to chapter 373, processed the applications accordingly; however, in view of the provisions of section 373.418(1) which "incorporat[ed] all of the existing requirements contained in or adopted pursuant to chapters 373 and 403," the Department did not in fact change the standards by which these applications were reviewed, to wit: Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code. On March 14, 1991, the Department issued a notice of permit denial to each petitioner. In each of the denials, the Department noted the provisions of Section 373.416(1), Florida Statutes, ["the . . . department may require such permits and impose such reasonable conditions as are necessary to assure that the operation . . . of any stormwater system . . . will comply with the provisions of this part and applicable rules promulgated thereto . . . and will not be harmful to the water resources of the district"] and Section 373.418(1), Florida Statutes, ["incorporating all of existing requirements contained in or adopted pursuant to chapters 373 and 403"], and concluded that the applications should be denied for the following reasons: The Department has completed its review of the subject application, supporting documents and the discharge monitoring reports submitted by the applicant as required by Department Permit NO. IT50- 125678. Based on this review the Department has made the determination that the applicant has failed to provide reasonable assurances that the discharge from the agricultural stormwater management system proposed by the applicant will be in compliance with the aforementioned sections of Chapter 373, F.S. and the Class I Surface Water Quality Standards adopted by the Department pursuant to Chapter 403.061, F.S. and contained in Section 17-302.540, F.A.C. and the Antidegradation Policy for Surface Water Quality contained in Section 17-302.300(3), F.A.C. The Department's action is facially consistent with the provisions of chapter 373, and chapter 403 incorporated therein, as well as the existing rules adopted pursuant to such chapters which require, whether the system be exempt or not, that discharges comply with state water quality standards. See e.g., Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17- 4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4, Florida Administrative Code. Availing themselves of the point of entry accorded by the notice of permit denial, petitioners filed a request for administrative hearing, pursuant to Section 120.57, Florida Statutes, to contest the denial of their applications. Such proceedings are currently pending before the Division of Administrative Hearings, but distinct from this proceeding under Section 120.535, Florida Statutes. The Section 120.535 challenge The challenged policy, as alleged in paragraphs 19 of the petition, purports to be as follows: The Department has made a policy determination, which draws a distinction between "agricultural stormwater discharges" and other stormwater discharges regulated by Chapter 373, Florida Statutes, and the rules promulgated pursuant thereto. The Department has identified the Petitioners' discharge as "agricultural stormwater discharges" and has subjected the petitioners to a set of rules and criteria that the Department has not adopted but which are apparently different from the general stormwater regulations adopted pursuant to Chapter 373, Florida Statutes. Such articulation of the challenged policy is substantially identical to petitioner's statement of the issue identified in their proposed final order, as follows: The issue for determination in this case is whether the Department's policy to apply criteria different from that contained in its "Regulation of Stormwater Discharge" Rule 17-25, Florida Administrative Code, and/or Rule 40E-4, Florida Administrative Code, of the South Florida Water Management District (SFWMD), when seeking to regulate an agricultural stormwater management system, as defined in Chapter 373, Part IV, Florida Statutes, constitutes a rule . . . . The premises for the petitioners' challenge are their contention that the Department has drawn a distinction between the agricultural stormwater discharges of petitioners and other stormwater discharges, which is not supported by statutory or duly promulgated rules, and that the Department has applied criteria, which are not supported by statutory or duly promulgated rules, to evaluate petitioners' applications. The credible proof fails, however, to support petitioners' premises. Contrary to the assertions raised by petitioners, the statutory and duly promulgated rules heretofore discussed provide ample authority for the Department's action, and there is no credible proof that the Department is applying any criteria that is not apparent from an application or reading of such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida Administrative Code, provides: The permit requirements of Chapter 17-4 or other applicable rules, rather than those of this chapter, shall apply to discharges which are a combination of stormwater and industrial or domestic wastewater or which are otherwise contaminated by non-stormwater sources unless: (a) the stormwater discharge facility is capable of providing treatment of the non- stormwater component sufficient to meet state water quality standards . . . . Here, the proof is compelling that the Department's decision was predicated on existing statutory and rule authority, and that it did not apply any criteria not promulgated as a rule or not contained within existing statutory authority to evaluate petitioners' applications, or treat petitioners' discharges differently than any other stormwater discharge contaminated by non-stormwater sources.
The Issue The issue in this case is whether Respondent, the Department of Environmental Protection (DEP), should grant the application of Respondent, Leland Egland, for an Environmental Resource Permit (ERP), Number 44-01700257-001-ES, to fill an illegally-dredged trench or channel in mangrove wetlands between Florida Bay and what was a land-locked lake, to restore preexisting conditions.
Findings Of Fact Since 1988, Applicant, Leland Egland, has resided in a home built on property he purchased in Buccaneer Point Estates in Key Largo, Florida, in 1986--namely, Lots 14 and 15, Block 2, plus the "southerly contiguous 50 feet." A 1975 plat of Buccaneer Point shows this "southerly contiguous 50 feet" as a channel between Florida Bay to the west and a lake or pond to the east; it also shows a 800-foot linear canal extending from the lake or pond to the north. Egland's Lot 14 borders Florida Bay to the west; his lot 15 borders the lake or pond to the east; the "southerly contiguous 50 feet" is between Egland's lots 14 and 15 and property farther south owned by another developer. See Finding 10, infra. Buccaneer Point lots in Blocks 1 (to the east) and 2 (to the west) surround the lake or pond and canal. The developer of Buccaneer Point applied to the Florida Department of Environmental Regulation (DER) in 1977 for a permit to dredge a channel, characterized as a flushing channel for the lake or pond, which was characterized as a tidal pond with replanted red mangroves. (There was no evidence as to the character of this pond before the 1977 permit application or if it even existed.) DER denied the permit application because the: proposal . . . to open a pond to Florida Bay . . . will connect an 800 linear foot dead-end canal. The pond and canal will act as a sink for marl and organic debris which will increase Biological Oxygen Demand and lower Dissolved Oxygen. The project is expected to result in substances which settle to form putrescent or otherwise objectionable sludge deposits and floating debris, oil scum, and other materials, in amounts sufficient to be deleterious. Based on the above, degradation of local water quality is expected. * * * Furthermore, your project will result in the following effects to such an extent as to be contrary to the public interest and the provisions of Chapter 253, Florida Statutes: Interference with the conservation of fish, marine life and wildlife, and other natural resources. Destruction of natural marine habitats, grass flats suitable as nursery or feeding grounds for marine life, including established marine soils suitable for producing plant growth of a type useful as nursery or feeding grounds for marine life. Reduction in the capability of habitat to support a well-balanced fish and wildlife population. Impairment of the management or feasibility of management of fish and wildlife resources. As a result, the proposed channel to Florida Bay was not dredged (although some of the lake side of the proposed channel apparently was dredged before the project was abandoned); the building lots surrounding the lake or pond (now known as South Lake) and canal were sold as waterfront lots on a land-locked lake without access to Florida Bay; and the "southerly contiguous 50 feet" was included with the conveyance to Egland, along with the Lots 14 and 15 of Block 2. The evidence was not clear as to the characteristics of the "southerly contiguous 50 feet" in 1977, or earlier. When Egland purchased his property in 1986, it was a mature mangrove slough with some tidal exchange between the lake and Florida Bay, especially during high tides and stormy weather. Some witnesses characterized the area of mangroves as a shallow creek in that general time frame (from about 1984 through 1988). According to Vince Easevoli, at least under certain conditions, a rowboat could be maneuvered between the lake and Florida Bay using a pole "like a gondola effect." But Egland testified to seeing Easevoli drag a shallow-draft boat through this area in this general time frame, and the greater weight of the evidence was that the mangrove slough was not regularly navigable channel at the time. During this general time frame (the mid-to-late 1980's) several Petitioners (namely, Stanley Dominick, John and Katherine Easevoli, and their son, Vince Easevoli) purchased property on South Lake. All but Vince built homes and resided there; Vince did not reside there until after Hurricane Andrew in 1992, but he sometimes stayed at the residence on his parents' property during this general time frame. In the early 1990's, the slough or creek became somewhat deeper, making it increasingly more easily passable by boat. Large storms such as Hurricane Andrew in 1992 and the "storm of the century" in 1993 may have contributed to these changes, but human intervention seems to have been primarily responsible. In 1994, Egland added a swimming pool south of the residence on his lots. During construction, some illegal filling took place. Several witnesses testified that the illegal fill occurred to the north of the creek, which was not affected. Vince Easevoli's lay interpretation of several surveys in evidence led him to maintain that illegal fill was placed in the mangrove slough and that the creek became narrower by approximately four feet and, eventually, deeper. But no surveyor testified to explain the surveys in evidence, which do not seem to clearly support Easevoli's position, and the greater weight of the evidence was that illegal fill was not added to the creek in Egland's "southerly contiguous 50 feet." At some point in time, hand tools were used to deepen the slough or creek and trim mangroves without a permit to enable a small boat to get through more easily. As boats were maneuvered through, the creek got deeper. Eventually, propeller-driven boats of increasing size were used to "prop- dredge" the creek even deeper. According to Petitioner, Tom Hodges, when he and his wife purchased their lot on the lake in 1994, it was possible to navigate the creek in a 22-foot Mako boat (at least under certain conditions), and their lot was sold to them as having limited access to Florida Bay. (There was evidence that access to Florida Bay could increase the price of these lots by a factor of three.) Petitioners Martha Scott and Marianne Delfino also purchased their property on the lake in 1994. Tom Hodges claimed to have seen manatees in the lake as early as 1994, but no other witnesses claimed sightings earlier than 1997, and the accuracy of this estimate is questionable. Even if manatees were in the lake during this time frame or earlier, it is possible that they used an access point other than the creek. At the southeast corner of South Lake in Buccaneer Point, there is a possible connection to a body of water farther south, which is part of a condominium development called Landings of Largo and leads still farther south to access to Florida Bay near a dock owned by Landings of Largo. While this connection is shallow, it may have been deep enough under certain conditions to allow manatees to pass through. Apparently not with manatees but rather with boaters from the lake in Buccaneer Point in mind, Landings of Largo has attempted to close this access point by placement of rebar; Landings of Largo also has placed rip-rap under its dock farther south to prevent boats from passing under the dock. However, there are gaps in the rip-rap, some possibly large enough for manatees to pass. In approximately 1995 or 1996, Egland observed Vince Easevoli and his father, John Easevoli, digging a trench through the mangrove slough with a shovel and cutting mangrove trees with a saw in Egland's "southerly contiguous 50 feet." Others were standing by, watching. Egland told them to stop and leave.6 These actions made the creek even deeper and more easily navigable by boat, which continued to further excavate the trench by such methods as "prop dredging." In 1997 Hany Haroun purchased property adjacent to South Lake where he lives with his wife, Christine. By this time, Florida Bay was easily accessible by boat from the lake, and Haroun paid $260,000 for the property. He estimated that his property would be worth about $150,000 less without boat access to Florida Bay. In approximately 1997, manatees began to appear in South Lake year round from time to time, especially in the winter months. In 1997, the Hodgeses saw one they thought may have been in distress and telephoned the Save Our Manatee Club and Dolphin Research for advice. Following the advice given, they used lettuce to coax the manatee over to their dock to check its condition and videotape the event. The manatee appeared healthy and eventually departed the lake. On subsequent visits, manatees have been seen and videotaped resting and cavorting with and without calves and possibly mating in the lake. Groups of as many as seven to eight manatees have been seen at one time in the lake. Tom Hodges, Vince Easevoli, and Hany Haroun testified that they have enjoyed watching manatees in the lake since 1997. It can be inferred from the evidence that Elaine Hodges also has enjoyed watching manatees in the lake. There was no evidence as to the extent to which other Petitioners enjoy watching manatees in the lake. In 1997, the ACOE began an investigation of the illegal dredging of Egland's "southerly contiguous 50 feet." According to Egland, he was in communication with ACOE; presumably, he told ACOE what he knew about the illegal dredging on his property. According to Egland, ACOE advised him to place posts in the dredged channel to keep boats out. When he did so, Tom Hodges removed the posts. Egland replaced the posts, and Hodges removed them again. When Egland told ACOE what was happening, ACOE asked him to try reinstalling the posts and screwing plywood to the posts to achieve a stronger, fence-like barrier. Hodges also removed these barriers, and Egland did not replace the posts or plywood barrier again. In 1998, ACOE mailed Egland a Cease and Desist Order accusing him of illegal dredging in his "southerly contiguous 50 feet" and demanding that he restore the mangrove slough to its previous conditions. Egland was angry at being blamed for the dredging and initially disputed ACOE's charges and demands. But ACOE and the United States Environmental Protection Agency (EPA), which accepted the role of lead federal enforcement agency on December 18, 1998, was seeking monetary civil penalties. In addition, Egland received legal advice that, if restoration were delayed, he could be sued for damages by someone purchasing property on the lake or canal in the meantime upon the mistaken belief that there was boat access to Florida Bay. For these reasons, Egland agreed to comply with the Cease and Desist Order. However, ACOE and EPA informed Egland that he might have to obtain a permit from DEP to fill the dredged channel in compliance with the Cease and Desist Order. On May 22, 2000, Egland applied to DEP for an ERP to restore a trench about 100 feet long varying from seven to ten feet in width that was illegally dredged on his property. He estimated that a total of 160 cubic yards of fill would be required, to be spread over approximately 900 square feet. He assured DEP that rip-rap would be used to contain the fill and that turbidity screens would be used during construction. During processing of Egland's application, DEP requested additional information, which Egland provided, and DEP's Environmental Manager, Edward Barham, visited the project site in October 2000. Based on all the evidence available to him at that point in time, Barham viewed Egland's proposed fill project as a simple restoration project to correct illegal dredging and return the mangrove slough to its preexisting condition. For that reason, Barham recommended that DEP process the application as a de minimis exemption and not charge a permit application fee. Subsequently, some Petitioners brought it to DEP's attention that manatees were accessing South Lake through the channel Egland wanted to fill. DEP saw no need to verify the accuracy of Petitioners' information or obtain additional information about the manatees use of the lake because DEP still viewed it as a restoration project. However, DEP decided that it would be necessary to include specific conditions in any ERP issued to Egland to ensure that no manatees would be trapped in the lake or otherwise injured as a result of filling the channel. Primarily due to the need for these conditions, and also because of anticipated opposition from Petitioners, DEP decided to charge Egland a permit application fee and not process the application as a de minimis exemption. DEP staff visited the mangrove slough on numerous occasions between October 2000, and final hearing and observed that the trench continued to get deeper over time as a result of continued prop-dredging and digging. In early August 2001, Tom Hodges observed a man walking back and forth with a wheel barrow between a storage shed on Egland's property and the channel. (Hodges was on his property across South Lake but use of binoculars enabled him to see this.) The next day, Hany Haroun discovered a poured- concrete slab forming a plug or dam in the channel on the lake side. Haroun reported his discovery to Tom Hodges, who investigated with his wife, who took photographs of the structure. At some point, the Hodgeses realized that a manatee was trapped in the lake. The manatee did not, and appeared unable to, use the other possible access point towards Landings of Largo to escape. See Finding 10, supra. The Hodgeses telephoned Barham at DEP to report the situation and complain. Tom Hodges then proceeded to break up the concrete, remove the resulting rubble, and place it on the path to the storage shed, freeing the manatee. The incident was reported in the newspaper the next day and prompted Petitioners to file their Motion to Dismiss and for Other Relief on August 9, 2001. See Preliminary Statement. The evidence was inconclusive as to who poured the concrete, or had it poured, and why. Egland testified that he was in Egypt on an extended trip at the time and denied any knowledge of the concrete plug until he saw the rubble on his property upon his return from Egypt. Egland testified that he saw no "aggregate" in the concrete, which would make it relatively easy to break up, and he suspected that Petitioners were responsible for pouring the concrete in order to publicly make false accusations against Egland. Petitioners denied Egland's accusation. Vince testified that the concrete contained rebar for strength. The evidence was inconclusive as to who was responsible for this incident. As pointed out by Petitioners, DEP did not investigate and does not know whether there is any freshwater upwelling in the lake, whether manatees have mated in the lake, or whether calves have been birthed in the lake. DEP also did not investigate and does not know whether South Lake is unlike other manatee habitat in the area. DEP did not investigate or obtain any information as to how many manatees use the lake, or what manatees use the lake for, in addition to the information provided by Petitioners. Carol Knox, an Environmental Specialist III with the Florida Fish and Wildlife Commission, testified as a manatee expert based on her knowledge of manatees and manatee habitat in the area, as well as the information known to DEP. It was her opinion that, regardless what South Lake might offer manatees in the way of habitat, closing the channel (with the specific conditions required by DEP to protect manatees during the filling itself) would have no adverse impact on manatees because it did not appear that manatees made use of the lake before the channel was dug in 1996 or 1997, and ample other manatee habitat of various kinds continued to be available in the area.7 Based on the testimony of Knox and Barham, and the totality of the evidence in this case, it is found that Egland provided reasonable assurance that his proposed restoration project will not harm or adversely affect manatees or their habitats. Petitioners also questioned Egland's assurances as to water quality. Vince Easevoli, Stanley Dominick, and Hany Haroun testified to their concerns that water quality in the lake will decline if the channel is closed. As Petitioners point out, DEP did not require Egland to provide any water quality measurements. This was because the proposal is reasonably expected to reverse the effects of the illegal dredging on water quality and to return both the water in the lake and canal and the water in Florida Bay to the quality that existed prior to the illegal dredging. Without requiring any water quality measurements, it is reasonably expected that the water quality in Florida Bay would not decline in any respect; to the contrary, if anything, Florida Bay's water quality would be expected to improve by reduction of contributions from the lake and canal. Conversely, water quality in the lake and canal would be expected to decline but not below what it was before the illegal dredging. Petitioners also question DEP's failure to require Egland to provide a survey or stake the area to be filled, so as to ensure against filling too much of the mangrove slough. But the proposed ERP contains a specific condition: "The final fill elevation of the fill shall be at the elevation of the substrate within the adjacent mangrove wetlands." Barham testified persuasively that this specific condition is adequate to provide reasonable assurance. Compliance can be ascertained by simply viewing the site after completion of the restoration project, and compliance can be enforced by requiring removal of excess fill as necessary. The proposed ERP also contains a general condition that the permit does not convey or create any property right, or any interest in real property, or authorize any entrances upon or activities on property which is not owned or controlled by Egland.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent, the Department of Environmental Protection, enter a final order granting the application of Leland Egland and issuing ERP Number 44- 01700257-001-ES. DONE AND ENTERED this 25th day of November, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of November, 2002.
