Title: Administrative Orders - Division of Administrative Hearings, Rule-Validity-Dept. of Environmental Regulation- Definitions of Submerged Lands and Transitional Zones for Jurisdictional Purposes-"Submerged Lands" Shown to be Validly Used for Jurisdictional Delineation-"Transitional Zones" Not Shown to be Used for Jurisdictional Purposes
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Title: Administrative Orders - Division of Administrative Hearings, Rule-Validity-Dept. of Environmental Regulation- Definitions of Submerged Lands and Transitional Zones for Jurisdictional Purposes-"Submerged Lands" Shown to be Validly Used for Jurisdictional Delineation-"Transitional Zones" Not Shown to be Used for Jurisdictional Purposes
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Language: English
Publisher: Judicial and Administrative Research Associates, Inc.
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Jake Varn Collections -Administrative Orders - Division of Administrative Hearings, Rule-Validity-Dept. of Environmental Regulation- Definitions of Submerged Lands and Transitional Zones for Jurisdictional Purposes-"Submerged Lands" Shown to be Validly Used for Jurisdictional Delineation-"Transitional Zones" Not Shown to be Used for Jurisdictional Purposes (JDV Box 86)
General Note: Box 22, Folder 5 ( Administrative Orders, Dist. Courts of Appeal, Judicial Opinions - 1982 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Volume ID: VID00001
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Holding Location: Levin College of Law, University of Florida
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Full Text






ADMINISTRATIVE ORDERS


Sume 4, No. 4
cbruary 22,1982
DIVISION OF ADMINISTRATIVE HEARINGS.
Rule-Validity-Dept. of Environmental Regulation-
Definitions of Submerged Lands and Transitional
Zones for Jurisdictionml Purposes-"Submerged Lands'
Shown to be Validly Used For Jurisdictional Delinea-
tion-"Transitional Zones" Not Shown to be Used for
Jurisdictional Purposes.
BAKER CUT POINT COMPANY and JAMES C. DOUGHERTY, as
Trustee, Petitioners, vs. STATE OF FLORIDA, DEPARTMENT OF
ENVIRONMENTAL REGULATION, Respondent. Case No. 80-2320R.
FINAL OlRPIZD
Pursuant to notice, a hearing was held before Charles C.
Adams, a Hearing Officer with the DOAH, in Key Largo,
Florida. The dates for hearing were March 11, 1981, and
June 2 through 4, 1981. This order is being entered in keeping
with the stipulation of counsel dated December 1, 1981,
which waived the thirty-day time period for the entry of this
order.
APPEARANCES: For Petitioner: Michael Egan, Esquire,
James lieerema, Esquire, Roberts, Egan & Routa, P.A.,
Post Office Box 1386, 217 South Adams Street, Tallahassee,
Florida 32301; For Respondent: H. Ray Allen, Esquire, Paul
R. Ezatoff, Jr., Esquire, Office of General Counsel, DER,
2600 Blair Stone Road, Tallahassee, Florida 32301.
ISSUES: The matters here presented concern the challenges
by the named Petitioners to Rule Secs. 17-3.061(2)(b), 17-3.111
(11), 17-3.121(14), 17-4.02(17), (19), and 17-4.28(2), F.A.C.,
related to definitions of "submerged lands" and "transitional
zone of a submerged land" and the requirements set forth by
rule provisions for permits related to dredge and fill activities
in "submerged lands" and in the "transitional zone of sub-
merged land" and water quality in Florida. The rule
challenges are in keeping with the provisions of Sec. 120.56,
F.S. Specifically, Petitioners claim that the rules are invalid
exercises of a !.h .ted legislative authority. The Petitioners
do not, by the challenges, question the procedures utilized
in the promulgation of the subject rule provisions.
FINDINGS OF FACT: Petitioner, Baker Cut Point
Company, is a corporation which owns real estate in Key
Largo, Florida, and James C. Dougherty owns the company.
The Respondent, State of Florida, DER, is a governmental
body which has been granted certain regulatory powers, to
include the responsibility for requiring environmental permits
for certain activities over which the Respondent has juris-
diction. In furtherance of that responsibility, the Respondent
has promulgated the aforementioned rules which are the sub-
ject of this rules challenge case.
The Petitioners have been subjected to the terms and
conditions of the aforementioned rule provisions in the
course of their application for environmental permits for
developments in property in Key Largo, Florida, under DER
File Nos. 44-21381 and 44-14356. Those matters were the
subject of a Subsection 120.57(1), F.S., hearing in DOAH's
Cases Nos. 80-760 and 80-1055. The hearings in those
cases were conducted on the dates described in this order and
were held in view of the disputed material facts between the
parties occasioned by the Respondent's stated intention
to deny the permits based upon the Respondent's belief that


339-A


the activities contemplated within the permit process would
be in violation of certain regulatory provisions, to include
those rule provisions which are the subject of this action
Throughout the process of permit review and the hearing
de novo, and in response to the revisions to the original
permit requests, the Respondent has continued to claim
jurisdiction in keeping with the rule provisions at issue. The
Baker Cut Point Company DER File No. 44-14356 letter
of intent to deny dates from April 3, 1980, and the corres-
ponding letter of intent to deny related to DER File No.
44-21381, James C. Dougherty, dates from May 27, 1980.
CONCLUSIONS OF LAW: 1. The DOAH has jurisdiction
over the subject matter and the parties to this action.
Subsection 120.56, F.S.
2. The Petitioners are persuaded that to the extent Rule
Sees. 17-4.02(17) and (19), F.A.C., define "submerged
lands" and "transitional zones of a submerged land," for
purposes of Ch. 403, F.S., permit jurisdiction, as land
contiguous to or landward of lands covered by waters of
the State, the rules are invalid exercises of delegated legislative
authority because Ch. 403, F.S., only gives Respondent
authority to define and regulate waters of the State to
their landward boundaries. As authority for this proposition,
the Petitioners specifically reference Subsection 403.817(2),
F.S., and conclude that the Respondent has no regulatory
authority over land contiguous to, or landward of, waters
of the State.
Additionally, the Petitioners contend that Rule Sec. 17-
4.28(2), F.A.C., to the extent that it requires Ch. 403,
F.S., permits for dredging and/or fill activities landward of
or contiguous to the "landward extent of lands covered by
waters of the state" is invalid. Finally, the Petitioners cite
with favor the decision in Deltona Corp. v. DER, DOAH
Case No. 80-1065R, [2FALR 1302-A], which invalidated
Rules 17-4.02(17) and (19), F.A.C., (under facts similar
to those involved in this case) in the face of a rule challenge
taking the format of the present challenges.
The pertinent provisions within Rule Sec. 17-4.02(17) and
(19), F.A.C., state the following:
(17) "Submerged lands" are those lands covered by
the categories of waters listed in Sec. 17-4.28(2),
F.A.C., including those lands contigous :{sic] to said
waters where any of the following vegetational species,
or any combination of such species, constitute the
dominant plant community: (species omitted).

(19) "Transitional zone of a submerged land" is that
area of land between a submerged land as defined in sub-
section (17) and an upland as defined in subsection (18)
above, and shall consist of the first fifty (50) feet
landward of a line defined by the landward limit of a
submerged land or the water-ward quarter (1/4) of
the area between a submerged land and an upland, which-
ever is greater, and upon which any of the following
vegetational species, or combination of such species, con-
stitute the dominant plant community: (species omitted)
(The vegetational species as set forth in the aforementioned
provisions were set out in the rules as originally promulgated


FLORiDA ADMINISTRATIVE LAW REPORTS s a publication of Judicial and Administrative Research Associates, Incorporated.


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CrE AS 4 FALR


ADMINISTRATIVE ORDERS


and subsequently the Legislature explicitly authorized the
Respondent to utilize its rulemaking powers to establish a
method for determining landward extent of waters of the
State for regulatory purposes, by listing species of plants and
soil, characteristic of the area in which one may find regular
or periodic inundation by waters of the State. See, Sec. 403.817
F.S.
Chapter 403, F.S., which is the subject the rule provisions
purportedly effectuate, by its terms, is designed to allow the
State to exercise police powers which would prevent, abate
or control pollution in waters of the State. See, Subsection
403.021(6), F.S. The definition of waters as outlined in
Sec. 403.031(3), F.S., does not speak in terms of "submerged
land" and "transitional zone of a submerged land," nor do
other provisions within CIh 403, F.S., utilize that terminology.
Nonetheless, Ch. 403, F.S., does countenance the idea that
boundaries for the waters over which DER has jurisdiction must
be established for regulatory purposes and by its use of the
terms "submerged lands" and "transitional zone bf a submerged
land" the Respondent has attempted to establish the parameters
of its jurisdiction. In particular, Rule 17-4.02, F.A.C., was
designed to effectuate the purpose of boundary identification
as that concept would apply to dredge and fill activities
permitted pursuant to Rule Sec. 17-4.28(2), F.A.C., which, in
pertinent part, states:
... The department recognizes that the natural border
of certain water bodies listed in Sec. 17-4.28(2) may be.
difficult to establish because of seasonal fluctuations in
water levels and other characteristics unique to a given
terrain. The intent of the vegetation indicies in subsections
17-4.02(17) and (19) is to guide in the establishment of
the border of the water bodies listed in Sec. 17-4.28(2).
It is the intent of this rule to include in the boundaries of
such water bodies areas which are customarily submerged
and exchange waters with a recognizable water body as
described in Sec. 17-4.28(2) (i.e. submerged lands and
transitional zones of submerged lands). Isolated areas which
infrequently exchange water with a described water body
in Sec. 17-4.28(2) and/or provide only insignificant
benefit to the water quality of a water body as described
in Sec. 17-4.28(2) are intended to be defined as uplands
and excluded from the definition of "submerged lands."
The vegetation indices defining "submerged lands" and
"transitional zone of a submerged land" are presumed to
accurately delineate said submerged lands and transitional
zones.
Thus while it is evident that the department has jurisdiction
to establish the boundary lines of its regulatory power over
waters of the State, the question presented by this aspect
?of the rules challenge Petition concerns whether the
Respondent, in pursuing its charge by the enactment of
Rules 17-4.02(17) and (19), and Rule 17-4.28(2), F.A.C.,
has expanded the regulatory authority set forth in Ch. 403,
F.S., and thereby invalidly exercised legislative authority.
To answer the question is to determine whether the
Respondent is regulating waters of this State or lands contiguous
to or landward of lands covered by those waters.
By this test, Rule 17-4.02(17), F.A.C., is a valid exercise
of delegated legislative authority. It is valid because it
regulates waters over which the Respondent has police
powers set out in Ch. 403, F.S. The fact that the lands under
the water, referred to as "submerged lands" are mentioned in


an effort to identify the rational extent of waters of this
State, does not lead to the conclusion that the central thrust
of this rule provisions is to regulate lands over which the
State has no jurisdiction. The purpose of this provision is to
regulate the landward extent of waters, i.e., those areas
covered by categories of waters which the State has juris-
diction over.
On the other hand, an analysis of the Rule 17-4.02(19),
F.A.C., leads to the conclusion that it is land outside State
waters that is being regulated by this provision, namely the
first 50 feet landward of the line defined by the landward or
outer limit of the "submerged land" or the waterward one
quarter (1/4) of the area between that submerged land and
the upland, whichever would be greater. Clearly, in this
instance it is land not the waters on that land which is the
focus of the regulatory provision and that effort is outside
the statutory authority of Ch. 403, F.S., and thereby an
invalid exercise of delegated legislative authority. While
some latitude is necessary in establishing the reach of
jurisdiction on the part of this Department over waters of
the State, this particular effort at identifying the line of
demarcation or border promotes a claim of jurisdiction over
a land mass as contrasted with a reasonable identific;aion
of that perimeter.
A review of Rule 17-4.28(2), F.A.C., in keeping with the
enabling provisions set forth in Ch. 403, F.S., does not
lead to the conclusion that the Department has invalidly
exercised legislative authority, except to the extent that
it would attempt to use the provision Rule 17-4.02(19),
F.A.C., in delineating jurisdiction.
These determinations are made, after consideration of
Deltona Corp. v. DER, DOAH Case No. 80-1065R [2 FALR
1302-A] ,in the face of the present rules challenge.
The Petitioners have also challenged Rule 17-4.28(2),
F.A.C., based upon a contention that Ch. 403, F.S., does
not require a permit for the placement of fill, in that fill
is not an "installation" or a "stationary installation" within
the meaning of Subsections 403.031(8) and 403.087(1),
F.S., dealing with "installations" and "stationary installations"
respectively; nor is the construction of a navigation channel
by a dragline such. Finally, the Petitioners do not believe
that the operation of a navigation channel is an "installation"
or a "stationary installation" within the meaning of those
provisions.
The overall purposes of Ch. 403, F.S. -,i.cern the
conservation, protection, r airteiance au. i.me movement of
water quality over waters contemplated by that chapter. To
that end, the Respondent is allowed, pursuant to Subsection
403.021(6), F.S., to control, regulate and abate activities
that are causing or may cause pollution of water. This
terminology would include installations as defined in
Subsection 403.031(8), F.S. That definitional statement
includes structures, and structures are further defined in Blacks
Law Dictionary to include construction, production or
work beneficially built up and constituted of parts joined
together in some definite arrangement. Placement of fill
and excavation by dredging either in a construction phase
or a maintenance or operation phase can be considered a
structure within the meaning of this law dictionary definition
and thereby considered an "installation." Moreover, these
activities constitute "stationary installations" within the
meaning of Subsection 403.087(1), F.S., and these


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2/22/82


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2/22/82 ADMINISTRA

"stationary installations" require a permit if they
are matters which reasonably will be expected to be a source
of water pollution. Consequently, Rule Sec. 17-4.28(2),
F.A.C., is a valid exercise of delegated legislative authority,
with the exception of the matters set forth in considering the
previous grounds for challenge to this rule, dealing with those
aspects referring to Rule Sec. 17-4.02(19), F.A.C.
3. The Petitioners have offered challenge to Rule Sees.
17-3.061(2Xb), 17-3.111(11), and 17-3.121(14), F.A.C. The
Petitioners claim that these rules are invalid because they
cause the denial of a permit application based upon predicted
dissolved oxygen levels without regard to whether that dis-
solved oxygen level is a result of discharge of a contaminant
from an applicant's proposed project.
Sec. 403.061, F.S., grants the Department authority to
establish water quality standards as a method of combating
pollution of Florida waters. In particular, the responsibility
of the Department is to adopt ambient water quality standards.
The protection of water quality accordingly has as a benefit,
protection and propagation of fish and other aquatic life which
are dealt with in other provisions of Ch. 403, F.S., as well as
man. The protections provided by these provisions are
protections against activities which may cause an imbalance in
water quality to the detriment of man and other life forms,
and jurisdiction to combat those problems does not rest solely
upon the idea that potential permitees disturb water quality
by a form of direct discharge of pollutants or contaminants
into waters over which the Department has jurisdiction. If the
activity itself, by its terms, brings about change in water
quality which is not in keeping with reasonable parameters
established by the Department to deal with changes in ambient
water quality standards it will be scrutinized.
Ti-s scrutiny may take the form of the establishment of
measurements of dissolved oxygen and biochemical oxygen
demand and the effect that changes of these parameters will
have on life forms exposed to the water.
To establish parameters to determine if a given water
environment is or may become harmful to man, animals and
plants, the Respondent has promulgated Rule Sees. 17-3.061(2)
(b) 17-3.111(11) and 17-3.121(14) F.A.C., pursuant to
legislative intent. The sections do not constitute invalid
exercises of delegated legislative authority. Applicants for
permits simply must be mindful of these standards and guard
against their violation by the proposed activity.
[The rules herein do not overlook the possibility that
waters in the vicinity of the proposed activity may present
water quality problems of a special nature not contemplated
by the normal criteria, which because of the conditions in
these waters at the time of the application, measurements in
excess of standards are being confronted. In this instance,
special relief can be sought under Rules 17-3.031(1) and
17-3.061(3) F.A.C.]
4. The Petitioners in this action have not challenged the
procedures utilized in the passage of the rules subject to
attack and consequently, the rules are not subject to invalida-
tion based upon that claim for relief. In addition, an examina-
tion of the nature of this Petition and the claims set forth
through these proceedings leads to the conclusion that the
Petitioners have failed to demonstrate any arbitrary or
capricious acts on the part of the Respondent in the passage
of the aforementioned rules.
DONE AND ENTERED this 28th day of January, 1982, in


TIVE ORDERS


341-A


Tallahassee, Florida.
/s/ Charles C. Adams, Hearing Officer, DOAH.

1. (b) BOD shall not be increased to exceed values which would
cause dissolved oxygen to be depressed below the limit established
for each class and, in no case shall it be great enough to produce
nuisance conditions.
2. (11) Dissolved Oxygen the concentration in all waters shall
not average less than 5 milligrams per liter in a 24-hour period and
shall never be less than 4 milligrams per liter. Normal daily and
seasonal fluctuations above these levels shall be maintained.
3. (14) Dissolved Oxygen in predominantly fresh waters,
the concentration shall not be less than 5 milligrams per lter. In
predominantly marine waters, the concentration shall not average
less than 5 milligrams per liter in a 24-hour period and shall never be
less than 4 milligrams per liter. Normal daily and seasonal fluctuations
above these levels shall be maintained in both predominantly fresh
waters and predominantly marine waters.
4. Upon petition of an affected person, or permit applicant or
upon the initiation of the Department after public notice and
opportunity for public hearing, and upon affirmative demonstration
that, due to man-induced causes which cannot be controlled or
abated with technology of management practices including zero
discharge, or due to natural causes, certain delineated portions of
waters of the State do not meet particular water quality criteria
contained in this Chapter, the Secretary may issue an order specifying
an alternative ambient water quality criterion for each parameter
and the portion of the waters for which such demonstration has been
made.
5. Dissolved Oxygen: Notwithstanding the specific numerical
criteria for individual classes of water under Subsections 17-3.091(13),
17-3.111(11), 17-3.121(14), 17-3.131(6) and 17-3.141(2), F.A.C.,
the Department recognizes that, in certain bodies of water or
segments of water bodies, the dissolved oxygen may be below the
applicable criteria at certain times due to man-induced causes which
cannot be controlled or abated with technology or management
practices including zero discharge, or due to natural background
conditions. Under such conditions, the background levels shall be the
criteria; however, daily and seasonal fluctuations shall be maintained.
This level may be determined only after public notice and opportunity
for public hearing, and consideration of the factors listed in
Subsection 17-3.031(2), F.A.C., and specifiedin the Department
permit; or the level may be determined in accordance with 17-3.031,
F.A.C.

DIVISION OF ADMINISTRATIVE HEARINGS.
Rule-Validity-Dept. of HRS-Low Rent Housing
Subsidy Allocations Made Only To Projects Whose
Costs Exceed Reserves Plus Revenue-Demonstrable
Compelling Need Shown-Compliance With State and
Federal Legislative Intent Shown.
DADE COUNTY DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT, Petitioner, v. FLORIDA STATE DEPARTMENT
OF HEALTH AND REHABILITATIVE SERVICES, Respondent.
Case No. 81-1976R.
FINAL ORDER
This case was heard pursuant to notice on October 8,
1981, in Miami, Florida, by Stephen F. Dean, assigned
Hearing Officer of the DOAH. This case arose upon a
Petition filed by Dade County Housing and Urban Develop-
ment (HUD) alleging that Emergency Rule 10 CER 80-11
was invalid. By stipulation, the parties filed their briefs
30 days after hearing. The Hearing Officer has considered
the proposed findings of fact made by the parties and to
the extent that they have not been included herein they
are rejected as immaterial, irrelevant, or not based upon
the most credible evidence.
APPEARANCES: For Petitioner: Dianne S. Smith, Esq.,


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