Title: Memo to Varn From Rip Caleen "Dept. Jurisdiction & Applicability of Water Quality Standards Under Chap.403
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Title: Memo to Varn From Rip Caleen "Dept. Jurisdiction & Applicability of Water Quality Standards Under Chap.403
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Memo to Varn From Rip Caleen "Dept. Jurisdiction & Applicability of Water Quality Standards Under Chap.403 (JDV Box 39)
General Note: Box 29, Folder 15 ( Memo to Varn From Rip Caleen "Dept. Jurisdiction & Applicability of Water Quality Standards Under Chap.403 - 1979 ), Item 1
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Pe eusng To ODiser OeMm
Stat. of Florikd AdIOr To Otw Tlu 11th Addru
DEPARTMENT OF ENVIRONMENTAL REGULATION To: Loc n.:
To: Loan.:
INTEROFFICE MEMORANDUM To: L___a.:
rom: Date:







NOV 6 1979
TO: Jacob D. Varn N 6 1979
Secretary
S R L aee Office of the Secretary
FROM: R. L. Caleen, Jr.4.C"
General Counsel

DATE: November 5, 1979

SUBJECT: Intended Discussion Paper on Department Jurisdiction
and Applicability of Water Quality Standards Under
Chapter 403, F.S.



Attached fo- your review and response is the promised discus-
sion paper concerning Chapter 403, F.S., jurisdiction and applicabil-
ity of water quality standards. Bill White has done an excellent
job in assembling the Department's arguments and past decisions
which support th. agency's present interpretation and practice.

The discussing: paper should help bring focus to where the
agency now is on this question, and how we got here. Hopefully, it
will allow you to pinpoint positions or arguments which you question,
or with which you ;.ay disagree.

We are simultaneously distributing copies of the attached to
Vicki Tschinkel, Pam McVety, Steve Fox, Sandy Young, Suzanne Walker,
Jeremy Craft, Bill Townsend, Terry Cole and John Bottcher, so that
when you are ready to discuss your ideas on this important question
they will also be prepared to offer their advice and assistance.

RLCjr:drq

cc: Vicki Tschinkel
Pam McVety
Steve Fox
Sandy Young
Suzanne Walker
Jeremy Craft
Bill Townsend
Terry Cole
John Bottcher


/~c













ltam' FISa.

DEPARTMENT OF ENVIRONMENTAL RIOULATION '
TO: Leam.
INTEROFFICE MEMORANDUM To: eua.:


TO: Jacob D. Varn, Secretary

THRUs R. L. Caleen, 'Jr.f-,
General Counsel

PRO.s William P. Whitel .
Deputy General Counsel

DATE: October 26, 1979

TOPIC: "Where should the water quality standards apply under
Chapter 403, Florida Statutes?"
(A discussion paper)


A. INTRODUCTION

The water quality standards contained in Chapter 17-3, Florida
Administrative Code, apply, in whole or in part, to "(a)11 water of
the State". See Section 17-3.051. The minimum criteria contained
in Section 17-3.051 thus apply to all waterai the general surface
water criteria contained in Section 17-3.061 apply to all surface
waters the general groundwater criteria contained in Section 17-3.071
apply to all groundwateral and, class criteria contained in Sections
17-3.091, .101, .111, .121, and .151 apply to the various claslifi-
cations of waters. All "waters of the State*, either surface or
groundwater, have been classified into one of the seven claaaifications.
See Subsection 17-3.081(1). All intrastate "waters of the State" have
been classified since 1971, interstate and coastal waters having been
classified several years earlier. See Exhibit 1.

Thus, water quality standards must apply to any waters which fall
within the category "waters of the State". There are mechanisms to
provide relief from water quality standards, such as exemptions, ex-
ceptions, and variances, but none of these mechanisms alter the initial
applicability of water quality standards.

DER regulatory jurisdiction with respect to potential water-pol-
luting activities is also tied to the status of the water. See, for
example, Subsections 17-4.28(1)(which requires compliance with Chapter
17-3 by all dredging or filling activities "conducted in or connecting
to waters of the State", whether a permit is required or not) and Sub-
section 17-4.28(2) Iwhich requires permits for dredging and filling
activities conducted in or connected via excavated waterbodies to
certain categories of "waters of the State").

Thus, at least given the present rule situation, determination of
where water quality standards apply involves a determination as to
whether the waters involved are "waters of the State" and subject to


HI" Rt 711
















Jacob D. Varn
October 26, 1979
Page Three


DER's regulatory jurisdiction.

Neither DER, nor any of its predecessor agencies, to the know-
ledge of this office, have attempted to elaborate, by rule, on what
is included within or excluded from the category "waters of the
State". In this regard, resort has always been to two fundamental
portions of Chapter 403:

'Waters' shall include, but not be limited to rivers,
lakes, streams, springs, impoundments, and all other
waters or bodies of water, including fresh, brackish,
saline, tidal, surface or underground. Waters owned
entirely by one person other than the State are in-
cluded dnly in regard to possible discharge on other
property or water. Underground waters include, but
are not limited to, all underground waters passing
through pores of rock or soils or flowing through in
channels, whether man-made or natural.
(Subsection 403.031(3))



The Department and its agents shall have general con-
trol and supervision over underground water, lakes,
rivers, streams, canals, ditches, and coastal waters
under the jurisdiction of the State insofar as their
pollution may affect the public health or impair the
interest of the public or persons lawfully using them.
(Section 403.062)

The latter provision, originally empowered the Department of
Health to deal with pollution and was included in Chapter 381, Florida
Statutes. As to certain listed waters, it contains no internal limi-
tation with respect to private ownership. This provision's transfer
into Chapter 403 was carried out by revisors acting in accordance
with general direction contained in Section 35 of the Governmental
Reorganization Act of 1969, Chapter 69-106, Laws of Florida.

Thus, at least originally, the definition of "waters" in Subsection
403.031(3) did not control the meaning of the use of the terms "water"
or "waters" in Section 403.062. Those terms were undefined when the
predecessor of Section 403.062, Section 381.251 was created by Section
2 of Chapter 29834, Laws of Florida, 1955. Therefore, it appears
arguable that the Department may act to control pollution of the waters
listed in Section 403.062 without respect to ownership when the action
is designed to protect public health, the interest of the public or
the interests of persons lawfully using the waters. Neither the terms


"waters" or "pollution" were defined in Chapter 381.

Subsection 403.031(3), Florida Statutes, contains a broader
listing of "waters", i.e., "all .waters or bodies of water .
fresh, brackish, saline, tidal, surface, or underground", although
it only mentions artificially created waters in two places. "Im-
poundments" and underground waters flowing through man-made channels
are specifically mentioned.

On the other hand, Section 403.062 specifically mentions two
kinds of artificial structures (canals and ditches) and presumably
would cover activities in all of the other listed categories of waters
(underground water, lakes, rivers, streams and coastal waters).

Thus, it appears that the fundamental category of "waters" subject
to regulation under Chapter 403 is very broad, including all waters or
bodies of water subject to the jurisdiction of the State, whether sur-
face or underground.


B. WATERS OWNED BY ENTIRELY BY ONE PERSON OTHER THAN THE STATE

The second sentence of Subsection 403.031(3) states:

Waters owned entirely by one person other than the
state are included only in regard to possible dis-
charge on other property or water.

The terms "waters" or "waters of the State" are limited by this state-
ment but no waters are actually excluded. Thus, all waters or water-
bodies are included in some regard, the language not having excluded
any waters or waterbodies for all purposes.

Clearly, those waters owned entirely by one person are subject
to be regulated with an eye to prevention of damage to other property
or water, should a discharge occur. Although not statutorily defined,
the language of the sentence in question seems to indicate, by its
own terms, that waters are capable of being owned by one person other
than the State only when discharge to other waters or other property
is merely a possibility and not a normal occurrence ih actuality.

1. EXTENT OF POTENTIAL STATE INTEREST

Article II, Section 7 of the Florida Constitution sets a State
policy of protection and conservation of natural resources and scenic
beauty and mandates adequate provisions designed to abate water
pollution (among other things). Although it undoubtedly failed
to take into account the provisions of the 1968 Constitution (having
been published in the same year) "Water Law and Administration: The


Jacob D. Varn
October 26, 1979
Page Two


I I















Jacob D. Varn
October 26, 1979
Page Five


Florida Experience*, by Maloney, Plager and Baldwin, contains an
enlightening discussion which is generally relevant here. In Section
23.3 the authors point out the State's ability to regulate wild game
as ferae nature, even on privately owned lands, although they point
out that the case of Alford v. Finch, a 4-3 1963 decision of the
Florida Supreme Court, indicates that there may be limitations upon
the burdensomeness of such regulations.

The Maloney book then goes on to draw parallels between regulation
of wild game on privately owned lands and regulation in the interest
of protection of fish in waterbodies whose bottoms are privately owned.
The Maloney book suggests that, where a lake is completely privately
owned and there is no potential for passage of fish in or out of the
waterbody, the interest of the State in regulation of the fishery
resource is absent. Although no Florida cases are cited, the Maloney
book indicates that when intermittent high water or flooding permits
fish to pass for short periods in or out of an otherwise land-locked
lake, there is a split of authorities on the ability of states to
regulate. Finally, the Maloney book concludes that's

On the other hand, if there is a passageway through
which the fish may travel that connects with public
waters, the fish are within the reach of state regu-
lations, even though the lake and surrounding lands
are owned entirely by one individual. A fortiori,
a lake with such an outlet, owned by several indi-
viduals, is within the reach of the state's laws.
(Maloney, supra at p. 581.

Maloney cites for example, Bannon v. Logan, 66 Fla. 329, 63 So.
454 (Fla. 1913) which upheld the conviction of one who was found to
be in violation of State fishing laws despite the fact that he was
standing upon a portion of the bed of Lake Marion which he was found
to own. The Maloney book observes that the fact that fish could travel
from navigable waters to the fisherman's property, whether actually
navigable or not, would apparently make him subject to State fishing
regulations.

At least one Florida Supreme Court case, Ex Parte Powell, 70 Fla.
363, 70 So. 392 (Fla. 1915) has held that fish, at least in marine
waters, are the subject of a separate public trust similar to the
public trust which protects sovereignty submerged lands. It is also
noteworthy that in Subsection 370.10(1), the legislature has declared
that:

All fish, shellfish, sponges, oysters, clams and
crustacea found within the rivers, creeks, canals,
lakes, bayous, lagoons, bays, sounds, inlets and
other bodies of water within the jurisdiction of
the state. .excluding all privately owned


enclosed fish ponds not exceeding 150 acres, are
the property of the state .

Thus we are presented with a legislative declaration of a State in-
terest in all waterbodies within the jurisdiction of the State of
Florida with respect to fish, shellfish, crustacea, etc., except
privately owned enclosed fishponds less than 150 acres.

2. STATED PURPOSE OF THE STATUTE

Chapter 403 expresses a State interest in more than fish and wild-
life. In the present context, the evil sought to be prevented is pol-
lution of waters which threatens public health and welfare, wildlife,
fish and other aquatic life and beneficial uses of water for domestic
purposes, agriculture, industry, and recreation. See Subsection 403.
021(1), Florida Statutes. Therefore, the legislature states the
public policy of the State of Florida to be:

a) That the waters of the state be conserved and,

b) that the quality of waters of the state be
protected, maintained and improved for what
public water supply use, to allow the pro-
pagation of wildlife, fish and other aquatic
life, and so that may be put to domestic,
agricultural, industrial, recreational, and
other beneficial uses and,

c) that no wastes be discharged into any waters of
the state without being sufficiently treated to
protect the beneficial uses of the waters.
See Subsection 403.021(2).

The legislature, in Chapter 403, has consistently stressed not
only the protection of human health and protection of animal life,
including fish and other aquatic life, as well as plant life, but it
has also indicated that pollution should be controlled to insure com-
fortable enjoyment of life and the protection and enjoyment of property.
See Subsection 403.021(6)., F.S. The legislature specifically expressed
an interest in protection of clean water for recreational as well as
for future industrial use. See Subsection 403.021(6).

When one examines the legislature's definition of the object of
the regulation under Chapter 403, one sees that, in examining the scope
of Chapter 403, a broader, "ecological systems* approach is contemplated
by the legislature. "Pollution" is defined in Section 403.031(2) not


Jacob D. Varn
October 26, 1979
Page Four















Jacob D. Varn
October 26, 1979
Page Six


Jacob D. Yarn
October 26, 1979
Page Seven


merely as the presence of the atmosphere or waters of the State of
substances or contaminants, but also the alteration of the chemical,
physical, biological or radiological integrity of water which may
potentially harm human health or welfare, animal or plant life, pro-
perty, the enjoyment of life or property, or outdoor recreation. The
prohibitions section, 403.161, in paragraph (l)(a), echoes this same
legislative concern and prohibits unauthorized pollution which harms
human health or welfare, animals, plants, aquatic life or property.

It is the expansion of these public interests beyond concern for
fish or aquatic life which may travel between waters whose beds are
owned by one person and those in more common ownership that extends the
interest of the state in pollution beyond that asserted for the purpose
of regulation of fisheries and wildlife. It would seem to be funda-
mental that state pollution control regulation could at least follow
and protect state fish, certainly as far as they may travel from waters
which are inarguably clothed with a state interest. An additional
extension would seem to be suggested by the concern over property
values. Thus, it appears that the legislature has asserted a State
Interest in preventing pollution of a privately owned, non-navigable
waterbody in order to protect the possession and enjoyment of the pro-
perty of co-owner of the property or waterbody.

The protection of non-aquatic wildlife which may be impacted by
water pollution as it transits totally privately owned lands offers
yet another basis for assertion of State jurisdiction. Injury to
such wildlife, held by the State under the ferae nature theory,
could result from contact with polluted water on privately held lands.
Perhaps similar arguments might be made with respect to impacts on
plant life.

Yet another basis for assertion of jurisdiction, and one which
recognizes ecological reality, is the argument that in defining
"pollution" and prohibiting it except where authorized, the legislature
recognized that activities ostensibly contained within the boundaries
of a single person's property may yet impair the integrity of a larger
system in which the State indisputably has an interest. Without pro-
tecting the pieces, the State cannot protect the whole. For further
elaboration regarding the interest of the State in wildlife and wildlife
habitat under Chapter 403, see Exhibit 2 attached hereto, a copy of a
memorandum on the subject recently --l-e7 in the Capeletti Brothers case.

As a final note, at least two cases have recognized a State in-
terest, from a recreational standpoint, in non-navigable privately
owned lakes. See Duval v. Thomas, 107 So.2d 148 (Fla. 2nd DCA 1958,
cert. dismissed with opinion, 114 So.2d 791 (Fla. 1959)) and Florio v.
State, 119 So.2d 305 (Fla. 2nd DCA 1960).


C. PRIOR AGENCY PRACTICE

1) CASES

In Sexton Cove Estates, Inc. v. State Pollution Control Board,
325 So.2d 468 (Fla. 1st DCA 76) and in gFarrua v. Frederick, 344
So.2d 921 (Fla. 1st CA 97) water quality stanards were asserted to
apply to upland dead-end canal systems. In the former case, some of
the canals were apparently in multiple ownership. In the latter, it
appears that the property was still in the hands of a single owner,
although intended to be subdivided.

In Declaratory Statement No. DS-77-02 regarding Bay Lake in Walt
Disney World, the Department found that dredge and fill permits were
not required under Section 17-4.28(2)(d). In that case, the Department
found that Bay Lake was a natural lake entirely owned by Walt Disney
World Company, despite the fact that it discharged into the water canal
system owned by Walt Disney World Company via an artificial waterway
located behind control structures. The Department found that Bay Lake
was a wholly owned natural lake within the contemplation of the exemption
provided in Section 17-4.280(2)(d). Nevertheless, the Department took
the position that water quality standards applied, and that the
exemption created by 17-4.28(2)(d):

is not intended to relinquish Department juris-
diction over the waters of the State with regard to
the maintenance of water quality.


Thus, nothing in the exemption of Bay Lake from
the permitting requirements is intended to relieve
Walt Disney World Company from complying with water
quality standards or limit the Department authority
to require that the water quality standards be met
within Bay Lake, as waters of the State defined by
Section 403.031(3), Florida Statutes. (See page 5
of Exhibit 3 attached hereto).,

On a related point, the Department has, at least on two occasions
refused to accept the contention that construction activities can
excise a portion of areas which are waters of the State from that
status and the Department's jurisdiction under Chapter 403, Florida
Statutes. See the Island-in-the-Sun series of cases described in
the Case Digest and the Final Order in Strazzulla Brothers Company, Inc.
v. DER, entered May 18, 1979, and attached hereto as Exhibit 4 at
page 7.















Jacob D. Varn
October 26, 1979
Page Nine


In both cases the Department took the position that construction
of an impoundment or dam in waters of the State could not effectively
cut a portion of those waters off from DIR jurisdiction under Chapter
403.

2) PERMITTING PRACTICES

As shown by the joint Corps of Engineers, DER and DNR permit
application (especially Figure 1) assertion of regulatory jurisdiction
over dredging and filling and construction has been broad even in light
of the fact that Section 17-4.28 has been viewed as a restriction of
permitting requirements otherwise applicable under Chapter 403. See
Exhibit 5. Even though permitting requirements are restricted to
listed waterbodies and contiguous areas, permitting requirements are
retained for areas connected via man-made channels. This exemplifies
the historic Department practice of asserting that "waters of the State"
extend into privately owned land when the waters or waterbodies of
concern are connected artificially or naturally to other waters or
waterbodies across property boundaries.

3) RULEMAKING

During the course of the adoption of Chapter 17-3, 17-4, and
17-6, Florida Administrative Code, a great deal of consideration was
given to the extent of "waters of the State" and the economic impact
of application of water quality standards to them. During negotiations
in the development of the rule, the Department continued to assert a
broad view of the extent of "waters of the State" and, therefore the
applicability of water quality standards contained in Chapter 17-3.
In addition, the Department asserted the general propriety of existing
classifications of such waters. However, in recognition of potential
economic impacts of the extended application of water quality standards
the Department clarified the mixing zone mechanism and created relief
mechanisms in provisions dealing with zones of discharge, exceptions,
exemptions, and the equitable allocation process. See Section 17-1.011
(18) and especially paragraph (b)2. of that section.

The provisions of Section 17-4.243 are particularly revealing with
respect to the position of the Department regarding areas in which
water quality standards are to apply. For example, Subsection 17-4.243
(1) deals solely with artificial surface waterbodies classified as
Class IV to which the public has limited access and which are not
utilized for recreation. The criteria for obtaining an exemption under
this section reveal the interests of the State sought to be protected
by water quality standards. The protection of those interests (e.g.,
potable water supplies, animals, plants or aquatic life, as well as
recreation) is a pre-condition to obtaining an exemption, which results


in a substitution of water quality criteria for the particular water-
body involved.

That water quality standards were intended to be applied to areas
such as wetlands and artificial urban canal systems upstream of arti-
ficial control structures, as well as wholly artificial or channelized
natural water courses whose principle flow is composed of waste dis-
charges, is shown by the existence of exemptions contained in Sub-
section 17-4.243(4), (5) and (6), respectively.

These matters were the subject of specific deliberation by the
Department staff involved in rule development, consideration being
specifically generated by request for reclassification from Class III
to Class IV of waters in those sorts of categories. A memorandum
from Chuck Littlejohn to various staff members, dated February 13,
1978, documents various scenarios and resulting Department staff
positions regarding application of water quality standards. See
Exhibit 6.

It is positions regarding application of water quality consistent
with that demonstrated in Mr. Littlejohn's memorandum which were asser-
ted by the Department and accepted by industry in the course of the
rulemaking proceedings. Similar assertions of applicability of water
quality standards apply with respect to ground waters, zones of dis-
charge being the mechanic by which relief is obtained from the appli-
Scation of standards within property owned by a single person.

D. CONCLUSION

Based upon the foregoing and the discussion of these matters
contained in Tarry Cole's memorandum attached hereto as Exhibit 7, I
would suggest that the appropriate definition of ownership by one
person other than the State consistent with the Department's general
past practice is as attached in Exhibit 8 hereto, a possible exception
is the interpretation contained in the Walt Disney World Declaratory
Statement previously discussed. However, the end result is the same:
application of water quality standards within waters or waterbodies
which actually or potentially flow into areas owned by other persons.

Based upon the foregoing discussion, I believe that "waters of
the State* under previous Department positions include all waters which
do not fall within the definition attached as Exhibit 8. In addition,
I believe that waters which do meet the criteria of Exhibit S are still
within the category *waters of the State" if they may possibly discharge
onto other property or waters, as stated in the Walt Disney World Decla-
ratory Statement, and that when such discharge is possible, water quality
standards do apply.


Jacob D. Varn
October 26, 1979
Page Eight
















Jacob D. Varn
October 26, 1979
Page Ten


IOPARTMINr Of ENVIRONMENTAL REGULATION

INTEROFFICE MEMORANDUM


*- OVA me OD>l6 OMni
Tor, Lr. -
To: Ltwo -
TO: L-. : 1
I m-ee r rw Y.


Exhibit 9 presents a series of scenarios, obviously not com-
pletely comprehensive, which present these matters for re-evaluation.
In many cases, according to my understanding, the proposed position
would represent a recession from previously asserted applicability
of water quality standards. Because of the inextricable interrelation-
ship between "waters of the State" and the applicability of water
quality standards created by rule and statute and the existence of
regulatory jurisdiction only in "waters of the State" created by
statute alteration of the agency's position on applicability of water
quality standards would require rule changes, if it is possible at
all under the existing statutory provisions.

Consideration of any such changes should be made with at least
the following factors in mind:

1. Consistency;
2. Equal protection of other regulated interests
against whom broader jurisdiction and application of
water quality standards has been assorted
3. The possibility that waters to which water
quality standards would not be applied (or similar
ones) have been classified under Section 17-3.161;
4. Viability of federal funding if "waters of
the State" and regulatory jurisdiction are not at
least co-extensive with "waters of the United States"
under federal law;
5. The apparent fact (from conversations with
the Office of Regional Counsel, EPA Region IV) that
Florida cannot quality for an NPDES permitting pro-
gram unless state regulatory jurisdiction is co-ex-
tensive with federal regulatory jurisdiction; and,
6. Other matters which may be revealed by staff
discussions.

Ultimately, a definition of privately owned waters similar to
that in Exhibit 8 as well as graphic depiction of asserted juris-
diction/water quality standards applicability might be well to in-
clude in a rule. However, either retention of past interpretations
or changes should proceed very cautiously.


WPWjr/bsh

Attachments


TOI W. Pierpont White, Jr.

FROM: Thomas A. Cloud fm(


AUG 28 B9f

1W. ol imrs.. ctll ReCulaloe
OllKe l Gemnia Cuasid


DATE: February 22. 1978

REs Administrative History of Chapter 17-3, Florida
Code



In response to the passage of the Water Pollution
Control Act, P. L. 84-660, in 1956, and the Federal Water
Quality Act, P. L. 09-234, in 1965, the Governor's Advisory
Committee on Water Quality Control held six hearings around
the state during October and November of 1966 in order to
devise water quality standards.l Pursuant to the Water
Quality Act of 1965 and based on the Advisory Committee's
recommendations, the Florida State Board of Health adopted
water quality standards and stream classifications on April
14, 1967, at its regular public meeting. With the exception
of Rule 17-3.21, Florida Administrative Code, all the rules
were filed respectively as emergency rules (numbered 170C-
5.01 through 170C-5.20) on M.y IE, 1967, and were identically
numbered and recorded as permanent rules on the same day.
Rule 17-3.21, Florida Administrative Code, was filed as
an emergency rule (originally designated 170C-5.21) and
was identically numbered and recorded as a permanent rule
on June 24, 1967.

In order to more fully comply with the Federal Water
Act of 1965, several of the rules relating to the various
water classifications were amended (170C-S.08(4), 170C-5.09(8),
and 170C-5.10(3)) on August 31, 1967. In addition,.language
was struck for 170C-5.05(2), Florida Administrative Code, and
a new subsection on temperature was added, Chapter 170C-S.05(2)(g),
Florida Administrative Code.

These rules remained virtually unchanged until March 4,
1968, when they were renumbered (28-5.01 through 28-5.21)
and transferred to the newly created Air and Water Pollution
Control Commission pursuant to Section 403.061, Florida Statutes.


Exnasir I


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Memorandum to W. Pierpont White, Jr.
Page Two


In addition, amendments to Chapters 17-3.01 (review of
Class V stream classification) and 17-3.02(5) (coverage
of wastewater discharged into coastal waters) were adopted
at this time.

The 1969 Reorganization Act, Chapter 20, Florida
Statutes, initiated the final form variation of the rules
by renumbering them respectively to their present designa-
tions of Chapter 17- .01 through Chapter 17-3.21, Florida
Administrative Code. The following rules were also amended
and updated after consultation between the State of Florida
and the Federal Water Pollution Control Administration in
order to revise standards:


Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter
Chapter


17-3.01, F.A.C.
17-3.01(5), F.A.C.
17-3.05(2)(b), F.A.C.
17-3.05(2)(a), F.A.C.
17-3.05(3), F.A.C.
17-3.05(e), F.A.C.
17-3.05(g), F.A.C.
17-3.08(4), F.A.C.
17-3.08(5), F.A.C.
17-5.09(8), F.A.C.
17-5.09, F.A.C.
17-5.09(3), F.A.C.
17-5.10(3), F.A.C.
17-5.10(4), F.A.C.3


Also on this date, the Florida Air and Water Pollution Control
Commission became the Department of Air and Water Pollution
Control.

What occurred next was a milestone in the history of
Chapter 17-3, Florida Administrative Code, since the State
of Florida now set% its sights on classifying intrastate
waters. The original classifications of Florida's waters
were aimed at interstate waters which included those waters
actually crossing or forming state or international boundaries,
as well as coastal waters, such as bays, estuaries, and
rivers which are subject to the ebb and flow of tides.
During 1970, the Department began gearing up for the task
of classifying all of Florida's waters, in order to bring
in intrastate waters.4 In doing so, the Department also
recommended that all surface waters within and coastal
waters contiguous to the State of Florida be classified
as Class III with only warranted exceptions being listed
individually by name and classification.


Memorandum to W. Pierpont White, Jr.
Page Three


Four preliminary hearings were held on the above pro-
posalsa October 7, 1970, in Kissimmee; October 15, 1970,
in Fort Nyeras October 22, 1970, in Daytona Beach; and
October 29, 1970, in Panama City. On March 4, 1971, a
meeting was held in Tallahassee by the Department where
the above recommendations were adopted. Theserecommenda-
tions were based on the information received I the pre-
liminary hearings, comments from regional and main offices
of governmental agencies involved in the water resources,
field, and other related concerns as conservation groups and
industry.

During 1972, the Department was renamed the Department
of Pollution Control, and several amendments were added to
Chapter 17-3, Florida Administrative Code, suchamending
the classification rule standards to a new standard most
beneficial use.5 Chapter 17-3.21, Florida AdministraEtv;
Code, was also amended on June 10, 1972. Except for sporadic
amendments in 1973, 1974, and 1975, the rule remained essentially
the same. Other exceptions in water classification were changed
in October 1974, in Chapter 17-3.21, Florida Administrative
Code. These changes were made following notice and public
hearing on October 16, 1974, in Tallahassee.

With the passage of the Environmental Reorganization
Act of 1975, Chapter 75-22, Laws of Florida, the Department
of Pollution Control became the Department of Environmental
Regulation. As such, enforcement of Chapter 17-3, Florida
Administrative Code, was transferred to this new department.
Since that time, minor changes have been made to some parts
of the rule, but none of these changes have affected either
the general classification standards (e.g., most beneficial
use) or Chapter 17-3.21, Florida Administrative Code. Techni-
cal Workshops have been held in various areas around the
state during 1976 and 1977, in preparation for the new
revision of Chapter 17-3, Florida Administrative Code. In
addition, Chapter 17-3.22, Florida Administrative Code,
was added on April 5, 1977. This rule supplies a sample
feedlot form for application.

The present final draft of Chapter 17-3, Florida Statutes,
represents a complete renumbering of the former rule. Also
included in the draft are changes in the exceptions to Chapter
17-3.21, Florida Administrative Code.
TAC/pb


IThe hearings were held in Pensacola, Jacksonville, Orlando,
Tallahassee, Miami, and Tampa.



















Memorandum to W. Pierpont White, Jr.
Page Four


BEFORE THE STATE OF FLORIDA
OzDIVISO Or AUMINISTRATIVE HEARINGS


CAPELETTI BROTHERS, INC.,
Petitioner,
vs.

STATE OFr LORIDA ODEPAIRET
OF ENVI MENTALL REGULATION.

Respondent.


DOAs Case Noe. 79-31
71-1440D
S7-LO02R


HIUNORANDUM IGAMDING DEAR'S AUTHORITY TO
CONSIDER IMPACTS OM N LDLIUF AND
RE*QV9CS Wson CZIAlTR 403, rMOIDA STATES


2Adopted January 1, 1969

3These rules were amended prior to their redesignation
as Chapter 17-3, Florida Administrative Code.

4See Section 403.061(12), Florida Statutes.

5Chapter 17-3.07, 17-3.08, 17-3.09. and 17-3.10,
Florida Administrative Code.


Under Section 403.087, Florlda Statutess
'Mo stationary installation which will rea-
oonably be expected to be a source of air
or water plUtioa shall be operated, main-
tained, contructed, expanded, or modified
without ea appropriate and currently valid
permit eisued by the Department, unless
exempted by Department rule.* (CEphasia
supplied.)
Under Section 403.031. Florida Statutes, (the definl-
tlonal section of Chapter 403), "pollution" is defined as:
"...the presence in the outdoor atmosphere
or wters of the State of any substances,
contaminants, noise, or ma-ede or man-
induced alteration of the bemical, physl-
cal, biological, or radiological integrity
of air or water In quantities or at levels
which are or may be potentially harmful or
Lnjurious to human health or welfare, ani-
an&t ft uno len-
l or plor Ir, LUlta ou to or nr09etLon-
my inYtaarM viw h o a ~eonto a
Emlphasise suppti od
It is apparent trao the language in Section 403.031.
rlorida Statutes, that the Llaeglature intended the Depart-
ment of Environmental Regulation to concern itself not

only with quantifiable parameters of pollution ia State
waters, but also with buan-made or nan-induced alteration"

that is, or potentially might be, harmful or injurious to
'namal or plant life or property", even though the latter

may be necessarily less quantifiable at times.
The language in Section 403.021. rIorida Statutes,
captioned 'Legislative Declaration; Public Policy',


EXw#/8r z















:learly spells out the legislative intent ot Chapter 403.

In Section 403.021(21, Florida Statutes, it is stated:

(2) 'It is to be the publiJc polIcy c!
this State to conserve the waters of the
State and to protect, maintain and La-
prove the quality thereof for public
vwter supplies, or the pro att o
wlldlife, fish and other aquats i.e
... (Emphasis supplied.)

The inclusion of plant, animal and resource protection

as a Deprtment concern is further reiterated in Section

403.021(5), Florida Statutes, which states#

"The Legislature finds and declares that
control, regulation and abatement of the
activities which are causing or nay cause
pollution of the air or wvter resources
in the State and which aX i or i ay be
detrimental to human, animal, aquatic,
plant Ite or to propertY, or unreasonable
intrere wth the cofortbe enjoyent
o life or pro erty be increased to in-
surecon rvat ono o natr resources
... to insure and provide Cor recrea-
tional and wildlife need. ..." iMpha-
sis supplied.)

It is absurd to think that water pollution and animals,

plants and other natural resources ca be evaluated indepen-

dently of one another. The inter-rtlatioaship of water and

other living things is so Inescapable that any consideration

of one without the other would be thoroughly locking in

scientific wisdom. The language of Chapter 403, Florida

Statutes, clearly recognizes the interdependence of such

factors, and the Department would be shirking its regula-

tory duties If it did not evaluate injury or potential

Injury to ainral, aquatic and plant life and other La-

portant natural resources in its permitting process.

Section 403.08(3) (c), Florida Statutes, states that's

"If the Department finds that the proposed
discharge will not reduce the quality of
the receiving waters belcw ee :-lassifica-
tion established for them, it may issue
an operation permit if it finds that such
de[radation is necessary or deirml
under federal standards and -nder .--
stances which are clearly in the pulic
interest." (Emphasis supplied.:

This section creates a two-pronged :tst for permits

which gives the Department discretion to deny aven those


permits which *eot water uallity standards: The first

test is: Is degradation necessary or desirable under

federal standards? The second test is: Is degradation

going to be clearly in the public interest? The two

tets are joined by the conjunctive word "and". Thus,

both tests must be met in order for an applicant to

qualify for a permit.

The applicable federal standards in the instant

case include those contained In 33 USC 466 et seq.,

(The Federal iater Pollution Control Act' or FWPC Act).

Section 101(a)(2) of the FWC Act states,

'It ti the national goal that wherever
attainable, an interim goal of water
quality which provides (or the p c-
tion and propagation of fish. h h
and wildl ...b achieved by uly i,
.9' (Emphbeiar supplied.)

Section 102(a) of the WPC Act states*

... tate water pollution control
agencies ... (sbouldl prepare or
develop comprehensive program for
preventing, reducing, or eIiminating
the pollution of the navigable waters
and groundwaters and proving the
sanitary condition of surface and
underground waters. In the develop-
ent of such comprehensive programs
due regard shall be given to the am-
provements which are necessary to con-
serve such water for th protection
and propaation of fb and aqutic
if. and wildlife ...- (Emphasis
supplied.)

Throughout Sections 301-405, (Title III Standards

and Enforcement), of the rWC Act, wildlife, plant and

aquatic resources are continuously mentioned as criteria

for permit evaluation.

Although DOX operate pursuant to State law, the

agency has a duty not to violate federal law. Section

403.08(3) (c), Florida Statutes, specifically authorizes

DER to consider federal law In the processing of State

permits.

Section 403.00813) cId, Florida Statutes, also autho-

rizes DER to consider "public interest' as a factor. The

term *public interest' has been defined in the case of


- 3 -


- I
















yongq vs. Askew, 29) So.2d 319 (Fla. let DCA 1914) and
again, recently, in Shablowaki vs. State Department of

environmental Regulation, 370 So.2d SO (ist DCA 1979).

In Yo2n* and reiterated in ShabWlowki, the first

District Court of Appeal held that the permitting agency

has wide discretion in determining what constitutes "public

interest'. The Court defined "public interest' by enume-

rating those things which were clearly not in the public

interest, including inter alls developmental interests,

private benefit and benefit to a local group or area.

The word *public", as elucidated by long, means '"ll

people of the State of Florida'.

Although both Yome and Shablowski were cases before

the Court under Chapter 253, Florida Statutes, the holdings

enunciated in both cases are equally applicable under

Chapter 403, Florida Statutes, because under Section

403.060S3)(c), riorida Statutes, the Department iL given

power to evaluate "public interest" as a factor in process-

Lng permits. Both ong uand hablowaki hold that the per-

nit applicant has an afinrmative burden to show that his

project is in the 'public interest and that failure to

carry that burden is sufficient grounds for permit denial.

Under section 403.161(1) (a) Florida Statutes, the

Department is given the authority to bring enforcement

actions against any person who causes pollution 'so as

to harm or injure human health or welfare, animal. plant

or aquatic life or property" and, under Section 403.141,

Florida Statutes, any person who comits a violation of

Section 403.141(1), Florida Statutes, *is liable to the

State for any damage caused to the air, waters or property,

including animal. plant or aquatic life ... Such persons

may be subjected to a civil penalty of up to $10,000.00

per day per offense and may be subjected to criminal

sanctions as well.

Although Sections 403.141 and 403.161, Florida

Statutes, refer to enforcement procedures and not permitt.ng


procedures, they clearly evidence the Legslature's serious

camiment to protection of animal, plant and aquatic re-

sources of the State. It is unthinkable that the LAeisla-

ture would authors the Department to exact $10,000.00 a

day in penalties end criminal sanctions for injuring animal,

plant and aquatic life if it did not concomitantly expect

the State to exercise equal diligence in protecting those

resources initially through the permitting process. The

old adage 'an ounce of prevention is worth a pound of

cure" might better be updated An ounce of permitting

prevention is worth a pound of enforcement cure*.

Section 403.061(7), Florida Statutes, authorize

the Department to adopt rules and regulations to "carry

out the purposes of this Act'. The purposes of the Act

are spelled out la Section 403.021, lrorida Statutes,

as discussed, supra, and include the protection of *wild-

life, fish and other aquatic life'. Therefore, OCR hoa

authority under Section 403.041(7), riorida Statutes. to

adopt rules to protect wildlife, fish and other aquatic

life.

Chapters 17-3 and 17-4, Floriorlda distrative Code,

are the applicable edBinistrative rlaes adopted pursuant

to the legislative mandate in Section 403.041(7), rlorida

Statutes. Pursuaat to this mandate, the Department hae

enacted a wide panoply of nmlea and regulations that con-

oern themselves with the effects of pollution on plant

and animal resources, which include, but are not limited

to

(1) Section 17-3.041, Florida Aministra-
tlve Code, which states that DIR amut af-
ford *the highest protection to outstand-
ing Florida waters* which includes the
Everglades National Park and waters in
Aquatic Preserves such as Biscayne Say
end waters in Big Cypress, among many
others.

(2) Section 17-3.051(1)(3). Florida Ad-
siniLtrative Code, which states the mine-
mum criteria for 'all waters at Ill ties
and all places'. and states that waters


- 4 -


- 5 -

















shall be free from pollution "in concen-
traCtons which are carcinogenic, mutagenic
or teratogenic to human beings or to -
nificant. local occurring wildlife or
aquatic species.

(3) Section 17-3.041(2)(0), Florida Ad-
ministrative Code, which sets criteria
for aurtace waters and states that all
surface waters must not be allowed to
have "substances in concentrations which
injre, are chronically tox toxct or
produce adverse p9ys.oloqga or behavioral
responses in humans animal or plants ...

(4) Section 17-3.091(21), Florida Adminis-
trative Code, which sets criteria for Class
IA waters, states that *In no case shall
nutrient concentrations of a body of water
be altered so as to cause an imbalance in
natural populations of aquatic flora or
raunsa.-

(5) Section 17-3.101(15), Florida Adminis-
trative Code, which sets criteria for Class
B waters and includes groundwater, states
that there shall be no substances "in con-
centrations which injure, re chronically
toxic to, or produce signitcant adverse
physiological or behavioral responses in
Bumans animals or plants.

SLilar prohibitions against injury to plants and ani-

mals appear in Sections 17-3.111(17) and 17-3.121(7) and

(20), Florida Ad nistrative Code.

In Section 17-3.011, Florida Administrative Code, the

intent of Chapter 17-3 is delineated:

Subsection (1) reinforces the agency's
commitment to uphold Article II, Section
7 of the Florida Constitution, which re-
quires, among other things. "... protec-
tion of Florida's natural resources ...0

Subsection (2) is a declaration that the
public policy of the State it to protect
waters of the State "... for the proaa-
tin of wildlife, fish and other aqatc
lir ...

Subsection (3) evidences a commitment to
uphold Section 101(a)(2) of the Federal
Nater Pollution Control Act for "the
protection and propagation of fish, shell-
fish and wildlife ..."

Subsection (1i) states that the revisions
made to Chapters 17-3 and 17-4 "are designed
to protect the public health or welfare and
to enhance the quality of waters of the
State. They have been established taken
into consideration ... propagation op tish
and wildlife ..."


Section 403.0211101 and (17). Florida Administrai:.

Code, are both rules of extreme importance. The former

subsection defines exceptional l ecological significance"

and states that "exceptional significance" may be defined

as being an 'unusual species, productivity. di-ersity,

ecological relationships, ambient water quality, scientific
or educational interest, or in other aspects of the eco-

system's getting or processes'.

The latter subsection defines pollution and adopts

in toto the definition of pollution found in Section

403.031, Florida Statutes.

Under Section 17-4.03, Floarda Administrative Code,

the Department may only issue a permit if it is assured

that the project will not "cause pollution in violation

of any of the provisions of Chapter 403, Florida Statutes,

or the rules and regulations promulgastd thereunder'.

Once again, it is important to remember that under Chapter

403, Florida Statutes, and Chapter 17-3, Florida Adminls-

trative Code, "pollution* is defined as being '"an-made

or man-induced alteration" of water or air which is or

may be *potentially harmful or injurious" to *animal or

plant life or property'.

Section 17-4.21(1)(a) and (b), Florida Administrative

Code, likewise allow the ODI to evaluate fish and shell-

fish areas in processing permits and, if dredge and fill

activities might be expected to have an adverse impact

on fish or shellfish, the Department is specifically

powered to deny such permits.

Another important rule which allows the Department

to take biological factors into account is Section

17-3.121(7), Florida Administrative Code, ('The Biological

Integrity" rule). Under the *Diological Integrity" role,

the Department has adopted a formula called the Shannon-

Heaver Index, whereby the Department can measure the

number and specie diversity of benthic (bottom-dvellingl


















Macrolnvertebrates, (e.g. class, oysters. snails. poly-

chaete worms. dragontly larva), tn a given square unit.

The resulting numbers indicate the overall health and

stability of a particular environment. The an ual popu-

lations cannot fall below the amounts specited in Section

17-3.121(7), rlorida Administrative Code, without violating

the water quality standards set for Class III waters.

Section 17-4.23(11)(b) (), Florida Administrative

Code, requires the Department to forward a copy of the

application to the Florida Game and fresh Water rish

Comission" for its 'review and caments'. I! the OCR

were not supposed to take wildlife and resources into

account when processing a permit, there would be no point

in sending a copy of the permit application to the Game

and Fresh Water Fish Comission, and such inter-agency

review would be rendered an exercise in futility.

It is clear when all provisions of Chpter 401,

florid Statutes, are read in pr meria. as they must

be under traditional principle& of legal construction.

that any interpretation of the Department's pemltting

functions cannot be limited to assessment of quantlfiable

water quality parmeters by themselves. The only approach

that makes sena, statutorily and scientifically, is an

inaegrated approach that allows for evaluation of the

larger picture. The Legislature did not invest OCR with

the power to enforce water quality standards for the

water's ake, but for the sake of the other living

organisms, (plants, animals, huumn beings). whose well-

being is interwoven with nd dependent upon clean water

supplies.

Respectfully suaitt'.d,




Assistant General Counsel

State of Florida epar-ment
of Environmental ?Teglation
Twin Towers CSt!te Building
2600 Blair Stane Road
Tallahassee, Florida 32101
Telephone: !904)-48-9730


CZrTIICAM Or SIRVICt

I HEREBS CERTIZY that a true and correct copy of the

foregoing "Hemorandu Regarding Olt'a Authority to Con-

lsder Impacts on wildlife and resources Under Chapter 403,

florida Statutes" has been turnished by first class mail

to Robert X. lank, Caqulre, Peoples. Earl, Si, ih Moore

a Ilank, P.A., Attorneys for Petitioner, One Biscayne

Tower, Suit 3613, Two South Biscayne Boulevard, Miami,

florida 33131, this day of October, 1979.




Assistant General Counsel


- -


















&SPORE THE STATE OF FLORIDA

DEPARMMENT Or DrWIVAOMZNTAL REGULATION


in the matter of

SAY LAKE, WALT DSNEY WORLD CO.

Request for Declaratory Statement

Orange County.


me. Ds-77-0,


OePARTMIXT Or SMVIROmVWAL REGULATION

DECLARATORY STATVDWM


Petitioner by letter and Petition attached as Exhibit I,

seeks a declaratory statement in clarification of Rules 17-4.04

(10) (n) and 17-4.2(2)(4), Florida Administrative Code, as

they affect Permit Certification 41-40-3513 issued by this

Department on March 7, 1977.

Petitioner requests an opinion as to the meaning of

Section 17-4.23(2)(d), regarding the exemption from permit

requirements, of natural lakes owned entirely by one person.
Petitioner states that Bay Lake i entirely owned by Petitioner.

Further, Petitioner contends that Say Lake discharges into

Petitioner's water canal system via an artificial waterway

located behind control structures permitted by the water
management district and is therefore exempt under Section

17-4.04(10)(a), Florida Administrative Code. Petitioner's

final question inquires, if the lake's only discharge point
is through an artificial wvetrway which is exempt, why is

not the lake itself exempt?
ISSUE,

Is Petitioner exempted, by Department Rule, from the

dredge and fill permit requirements for construction activities

on the shore of Say Lake, a natural lake owned entirely by
Petitioner?


ANISWRL

(1) Petitioner is exempt by Department Rule, Section
17-4.21(2) (d), Florida Administrative Code, fros obtaining a

permit for dredging and filling activities in a natural lake

owned entirely by Petitioner.

(2) however, nothing in this exemption is intended to
preclude the requirement tor obtaining a permit under Section

403.088, Florida Statutes, for discharges onto the property or *

waters of another from Bay Lake or from other vater bodies or

stationary installations located on the property owned by

Petitioner unless such discharges are also exempted by

Department Rule.


The department of Environmental Regulation is authorized
by Section 403.01(14), Florida Statutes, to establish a

permit system whereby a permit may be required for the operation,

construction, or expansion of any installation that may be a

source of water pollution. No ucb stationary Lastallation
i which will reasonably be expected to be a source of pollution

can be operated, maintained, constructed, expanded or modified

without a permit issued by the Department unless exempted by

Department Rule. Section 403.087(1), Florida Statutes.

Waters of the state are defined in Section 403.031(3),
Florida Statutes, as follows

*403.031 Definitions.--
(3) 'Waters' shall include but ot be limited to
rivers, lakes, streams, spring, impoundments end
all other waters or bodies of water, including fresh,
brackish, saliAn, tidal, surface or underground.
Wters owned entire y one person other n the
s el onar re.a &A o0os 5
ischarge on other roerty or '.at: '
izmphasUs added..

From the above statutory language it is apparent that
Petitioner is required to obtain a permit for construction on

the shores of Day Lake, unless exempted by Oepartment Rule.

IEtphasis added.) Sexton Cove Estates v. State of Florida

Pollution Control 3oard, 325 So.2d 4 (a. Ap. Ap. 1st, 197).

Section 17-4.2., Florida Administrative Code, sets forth


e'x' /I 3




















those dredging and/or filling activities requiring permits

and certifications and reads in pertinent parts
"17-4.2S Dredging ad/or Filling Activities;
Permits, Certifications.
(2) Those dredging ad/or filling activities
which are to be conducted in or connected
directly or via an xcavated water body or series
of excavated water bodies to the following
*rategorie of tier of the -tate shall
obtain a perai: ram ;he depait-nt prior to
beinLg urdrtakenm (Elphasis added.)
(dl natural lakes. txcept those owned entirely
by one ,ersen -. (Emphasis added.)

It can be concluded from the above statutory language

and Departmt regulation that while the Department of

Environmen-al Regulation has the authority to require permits

for activities in waters owned entirely by one person with

regard to possible discharge ca other property or water, It

has chosen to exempt trom Its dredging and tilling requirements

those natural lakes owned entirely by one person.

Petitioner further claims that its project is exempt

from Departm regulations under Section 17-4.04(10) (n), Florida

Administrative Code.

Section 17-4.04, florida Administrative Code, lists sources

which are exempt from the permit requirements of this chapter

and reads in pertinent parts

*17-4.04 Exemptions.--
The following sources are exempted from the permit
requirements of this Chapter .
(10) Construction; Dredging and/or filling activities
associated with the folLowing types a! projects:
in) artificial waterways, except in Class I; voters,
behind control structures permitted by a at.er
Man.agarnt District created unCer Florida Statutes
'33.369, except those (Erphasis added.)
1. to be usC fisor idential purposes, or
2. which directly connect to works of said water
F~aag-eent districts, or
3. to je constructed in submerged lands and/or in
a transitional zone of a submerged :and.

Petiti=Aer contends that Say Lake discharges into

Petitioner's water canal system via an artificial waterway

located be-~nd control structures permitted by the Water

Manageo.e-. districtt and is therefore exempt under the above

Depart--en; reT'lation.


If, as Petitioner states, the control struct- es were

permitted by a Water Management District created -dTer Section

373.065, Florida Statutesi and, if the construction does not

fall within one of the exceptions to the exeptioa sot out

La the regulation, the dredging and tilling activities

associatedd with the artificial waterway would fall within the

exemption stated above. (Emphasis added.)

However, no language found in Section 17-4.04'10)(n),

Florida Administrative Code, would require that thn exemption

be expanded to include dredging and filling activities in

water bodies other than the artificial waterwys specified

in the regulation. hbile it is true, in tthi partcular

instance, that dredging and tilling activities in bay Lake.

which discharges into Petitioner' water canal system via an

artificial waterway located behind control struct-res

allegedly permitted by the Water Rauagement District are exempt

under Department regulation, the controlling exemption is that

found in Section 17-4.20(2)(d), and not that statd in Section

17-4.04(10) (n), Florida Administrative Code. rolinoing

Petitioner's argument concerning the Section 17-4.04 (10)(n)

exemption to its logical conclusion would lead to the untenable

position that the Department could not require dredge and fill

permits for activities in rivers, streams, or naral lakes

owned by more than one person whenever they discharge on other

property or water via an artificial waterway which fell within

the Section 17-4.04(10) (n) exemption. Such a conalusion

would be contrary to permitting authority Laplemmoted through

Department rules. under existing rules Petitiooer is exempt

only trom obtaining a permit for dredging and ftlitn activities

along the shores of a natural lake owned entirely by Petitiner

by Section 17-4.28(2)(d). Florida Administrative -ade. "he

artificial waterways exemption, Section 17-4.04(L" *n)l, Florida

Administrative Code, is inapplicable to the fact vs.t&-at3n

presented for consideration.

















While the Department has through Section 17-4.28(2)(d),

Florida Administrative Code, exempted waters such as Bay Lake

from its permitting requirements, this exemption is not

intended to relinquish Department jurisdiction over waters

of the tate with regard to the maintenance of water quality.

Section 17-4.28(1), Florida Administrative Code, reads in

pertinent part:

*(1 regardless of whether a permit is
required, all dredging and/or filling
activities conducted in or connecting to
waters of the State shall comply vwih Rule
17-3, Florida Administrative Code ."

Section 17-3.01, Florida Administrative Code, declares

that's

"(Tihe presence of pollutants in excess
of concentrations hereinafter provided is
harmful to the waters of this State sad
the presence of such excessive concentra-
tions is deemed to be prima face evidence
of pollution of the waters of the State of
Florida and the same is expressly prohibited."

Thus, nothing in the exemption of Say Lake from the

permitting requirements is intended to relieve Walt Disney

World Company trom complying with vwter quality standards or

limit Departmnt authority to require that such water quality

standards be met within Bay Lake, as a waters of the State

deafned by Section 403.031(3), Florida Statutes.
Additionally, nothing in the preceding discussion is

intended to limit the Department'a authority to require a

permit of the Petitioner for discharges onto the property

or waters of another fro Say Lake or from other water bodies

or stationary installations located elsewhere on Petitioner's

property unless such installations or water bodies are also

exempt by Department Rule.

EilTERr this day of 1977.
STATE OF FLOR.DA DEPARTMENT OF
EV:2DMEWPTAL. REtGL'L TION


CERTrFICATE OF SzRVIC

I mEBUy CERTIFT that a copy of the foregoing "Declaratory

Statement has been furnished by Cnited States Mall to PEDRO P. SAEZ,

ESQUtR, Staff Attorney, Walt Disney ocrl1d Company, Post Office Box

40, Lake Duena Vista. Florida 32130 this pA day of June,

1977.

DW ZS GT.Z


25. Executive Center Circle, East
'o-ntst ery building
Tall::asse. alorida 33311
'C;4 4139-9l3



















BEFORE THE STATE OF FLORIDA

DEPARTMENT Of ENVIWRON~ ETAL REGULATION


STFAZZULLA BROTHERS COM4PAI,
INC., and LEONARD J. TOLLEY, )
1.
Petitioners.

v. DOA Case no. 71-1287
DER rtile o. OF-SO-79
STATE OF rLORIDA DrEPAiTENT
Oft IVIONKENTAL REGULATION,

Respondent.




rI.AL Or ER


BY THE DEPARTMENT:


I. INTRODUCTION


On April 16, 1979, the Division of Administrative Hearings

("DOA") Hearing Officer assigned to conduct a Section 120.57,

Florida Statutes, hearing in the above-styled cause submitted

his RecommEnded Order to the Department of Environmental Regula-

tion (Department'). A copy of the Recommended Order is attached

hereto as Exhibit I. Subsequent to submittal of the Recommended

Order the Deparment submitted exceptions, pursuant to Section

120.S7(1)(b)4., Florida Statutes.

After due notice, oral arguments, in support of and in

opposition to the exceptions, were presented to the Secretary of

the Department by attorneys for the parties on Hay 8, 1979.



II. DISCUSSION or ISSUES


A. Jurisdiction to Require and Issue Dredge and Fill Permit

The Department's jurisdiction over waters of the state is

premised upon a combination of the authorities contained in

Sections 403.031() and 403.062, Florida Statutes. The latter

sets forth the Department's ]urtsdiction over waters and the


former defines the term "waters. Section 17-4.28, Florida

Administrative Code, describes those waters for which a Depart-

ment permit i required prior to conducting dredging or filling

activities. This section does not, however, limit the exercise

of the Departments jurisdiction with respect to other than

dredging and filling activities; nor does it restrict the

application of the state's water quality standards as contained

in Chapter 17-3, rlorlda Administrative Code, and as administered

through the provisions of Chapters 17-4 and 17-4, Florida

Administrative Code.

The activity for which a permit was applied for below

involved both dredging and filling activities as well as the

construction and operation of stationary installations which

are reasonably expected to discharge agriculture related water

pollution.

In his Conclusions of Law, the Hearing Officer apparently

concluded that the evidence of record did not establish that

the Department has jurisdiction to require a dredge and fill

permit under Section 17-4.28, florida Administrative Code. He

recommends, however, that the Department grant the requested

dredging permit. The granting of such a permit is inconsistent

with his prior conclusion that the Department lacks jurisdiction

to ssue such a permit in this case.

On page 11 of the Recommended Order, the Rearing Officer

appears to conclude that the Department may be divested of

dredge and fill permitting jurisdiction over a proposed dredge

or till activity in a natural lake owned by more than one person

if the applicant proposes to merely dike off and separate his

portion of the water body from the reminder. An applicant

cannot defeat the jurisdiction of the Department over a proposed

activity by asserting that the Department will lack jurisdictionn

over the waterbody after the activity is completed.



-2-


Em i3itr V


SI

















B. Comoliance with Water Quality Standards

The application (Respondent's Exhibit 1) proposes a

series of dikes and borrow areas (in excess of 10 teet deep)

and a 250 acre reservoir. Various water quality impacts of

the project are discussed on pages 6-8 of the Recommended Order.

The Hearing Officer found that;

*... use of the land for agricultural
purposes would increase the risk of
water quality degradation caused by
water runoff carrying fertiliters.
herbicides and pesticides Into the
proposed reservoir and/or perimeter
canals. If excess water on the
property is pumped into the C-40 or
C-l2 canals, degradation of those
waters could occur.



Pumping the surface waters on the
property into a reservoir would
reduce the diurnal variation in
dissolved oxygen levels in the water
and thereby improve water quality
from that aspect. Water in the
reservoir would be of greater depth
than presently exists, thereby
reducing photosynthlesi and its con-
comitant benefits to the water quality.
On the other hand, the greater depths
could result in fewer grasses and more
open surface water, thereby allowing
more aeration of the waters by wind
action.

Herbicides degrade fairly rapidly
and holding in a reservoir would allow
time to degrade. Many pesticides are
water insoluble and would settle to
the bottom of the reservoir.*

Despite this discussion of water pollutants, the Hearing

Officer tailed to make findings, and enter a conclusion of law,

which determine whether the Department's water quality standards

contained in Chapter 17-3. Florida Administrative Code, would be

violated by the proposed water pollution discharges into waters

of the State.

Section 17-4.07(1), Florida Administrative Code, specifically

requires permit applicants to affirmatively provide the Department

with:


"reasonable assurance based on plans,
test results and other information,
that the construction, expansion,
modification, operation or activity
of the installation will not discharge.
emit or cause pollution in contravention
of Department's standards, rules or
regulations."

Subsection 13) of the same section prohibits the Department

from issuing permits to construct or operate stationary installa-

tions unless it determines that the installation is adequately

equipped with pollution control facilities sufficient to comply

with Department standards.

Section 120.57(1) formal proceedings are intended 'to

formulate agency action, not to review action taken earlier and

preliminarily'. McDonald v. Dept. of Banking and Finance, 346

So.2d 59, 584 (Fla.let OCA 1977). In accordance with Depart-

sent rules, the applicant is required to demonstrate that it is

entitled to the requested permit. The Hearing Officer must

determine, with adequate specificity, that the applicant has

made the required demonstration. Until the Hearing Officer makes

such findings, the requested permit cannot be issued.



ORDER

WHIIEFOUI, upon consideration of the Recommended Order,

dated April 16, 1979, by the assigned Nearing Officer in this

cause, the pleadings and oral arguments of counsel for the

parties,


IT IS *IZIES ORDERED that:


1. The Findings of Fact contained in the Recommended

Order are approved and adopted;

2. To the extent the Hearing Officer's Conclusions of

Law are inconsistent with this Final Order, they are expressly

rejected, and so modified;


















3. The Mearing Officer's Recommendation that a dredging
permit be granted is rejected, as IncoMnstent with his Cow-

clusions of Law which determined that the Department had not

established jurisdiction. in the record, to require or issue

a dredge and ill permit Ia this causes

4. To the extent Petitiooers (applicacts) have applied

for or now seek a Department permit to authorize the construction

or operation of a stationary istallation (e.g., pumping Intalla-

tion or other method ao conveying and discharging pollutants iLto

waters of the State), uch application must be DeIIDO.

S. lo furtherance of Paragraph (4) above, this cae Is

RENANDED to the DOAM Iearlng Officer who conducted the hearing

below for the purpose ofi

(a) Taking evidence ed entering findings of fact

and conclusion of law which are specifically directed to

resolving the remaining issue in this causes
other Petitioners have provided the
Department with reasonable assuruaces
that the construction and operation of
the proposed stationary installation
(e.g., peping and other waste 4scharge
system) will not discharge pollutants
in violation of Department standards,
Including water quality standards con-
taimed In Chapter 17-3, Florida Adminis-
trative Code. SeLtion 17-4.l,
Florida Admialstrtlv Codes Sections
4013.07, 403.08. -Florida Statutes.


DONM AMD 00DEOED this 1lth 4ay of May, 1979, in Tallahassee,
Florida.


CLPTIFICATE Of SLUVXCL

1 HERLIIBY ~LrTI that a true and correct conv of

the foregoing "Fina" Crder" : s been f-jrnishd by first

class eall to .4AD0SOCM r. PACETTI, CSQItE. 324 Royal Palm

Way. Palm Beach. FL 33480, and by Hand Delivery co RANDALL

I. DENKE.S Assistant General Counsel, and UILLIAH P. *iHITE.

JR., Deputy General Counsel. State of Florida Department of

Elvlronmental Regulation, Twin Towers Office Building, 2600

Blair Stone Road. Tallahassee, Florida 11301, nd to

K. N. AtIKS, Hearing Officer, Division of Adninistrative
Hearings, loam 530, Carlton Building. sTllahassee. Florida

12)04. thl Ife&v o( ^y. 101.
32304, this -I'day of Kay, 1979.





R. 16. CALZr4, JR.
General Counsel

State of Florida Department
of Lnvironvental Regulation
Twin Towers Office Building
2100 &lair Stone Road
Tallahassee, FL 3201
(904) 40(-9730


STATE Of rUPIIA DEPARTMENT
Of BIVI30IMMNTAL CGUtLATIOM




Secretary

2600 Slair Stone Road
Twin Towers Office Building
Tallahassee. Florida 32)01



















tthe 4 FIttlu






DRDGE P FIlh

SRuTRUBTURES


*.p.sn d. *

cM/E/rS~k


General Information


I. INTRODUCTION
Th purpose of thi pamphlet i to furnish
information a permit program aid intnction
lor oumiUt a application to the US. De
pertinent I Army. CArp of EngineF (Corpo).
the Sate of norids DeartmeInt of EntiriMs
t1l Reulation (DER). and the State of Florid
Department of Natural ResoucMs (DNR) fur
work s Uthe waee of the staw. Federal nd
state laws prohbit certain activities unle
authoriud by permit. The lws include the
Rivr ud Harbor Act of l ; the Federal W*-
te Pollutoa Cirotal Act Amwndmiant of 1712;
the Mrine Protection. Research and Sancuaries
Act aof 172; and Chaptera 161. 263, 268. and
403. Flbrida Statute. In addition, other law
are directly nlted to the procedure fr pro-
ceMnsa permit applicetionr. Thse include the
Firh and Wildlife Coordination Act ol 195. the
v Natioul Environmntal Policy Act of 1969.
and Chapter 120. Florida Statute. Ruleo ud
regulatiie governing the Department ol the
Army permit puogram are listed In Title 33,
aectiu 200.120 te Cod of fel Federal Reul*-
tion. Thoe gwirming the Department of En-
vironmental Regulation are listed in Chapter
17-3 end 17-4. floride Adminialretiv Code.
while thle governing the Department ol Nat-
ural Resoure. Bureau of Besch s and Shorea
ar listed in Chaplet 106-24. Flurida Adminis-
trenive Cole. A copy of ederal regulations my
eI obtained by writing to the Corps District
(MOfl or the Superintendent of Documets, U.S.
Government Printing Offie, Washington. D.C.


20402. Copies of state rlgulaliuon may twr Mo.
gained irom the Ofic of Public Inloruntmion. I-
pertmnent of Inironmenlal Regulation, 2.M2
Executive Center Circle East, LMontgLimry
Building. Tallahassee, Florid 312:301 or Burau
ol Beach and Shore, Departent of Natural
Resources. Room 420 Crown Building. 202
Blount Street. Talahnse, Florida 32304. A
dotiled discuim of the various laws govern.
ing the agmris may he obtained Irom any fu
the Corps. DER or DNR office lted in Ap-
pendia D.

II. WHAT ACTIVITIES REQUIRE A
PERMIT
A. Juridictis
I1) Federal: In giir.ral, i.ermits anrt
required fur work or stritures in all tilal anr-a
4channelward of the nwan high water limes on
Ihe Atlantic and Giull Coia); iln lhe (Oran aIwl
Gull Waters to the outer inilas if he r'onlil!l-
atl Ishel; and in all rivers. trlneis. aln lake.li t
the onlinary high water line; in mnrhesi aml
shellew which are periodically iintlmdetl a.it
normally characterized by aquatir vegelalion
rcaphle of growth and reprmnurtlin; in all r-
ticially created channels amn canals um'-l fr
recreaional, navigational or other pmurmposu Ihl
are connected to nevilile waters; in all Iril-
ularie of avigable waters up to their head-
waters, in any other waters which tih INllris
Enlineer determines is noe rary for tih pro-
tection of water quality. (S r Figure I)


'V













(2) Stare: I ntes lnk flraly exlept-
al 4Se.- AIppr.li I). IIl drllllng and titlinl ac-
tivilife whli.h ore to I)e oduluc(.d in or onm-
mated dirn tly ir vir an excvated water body
or rrill ti exc-avated water bodies to certain
water. the state require permits. Thrae wa-
ters of the state are rivers, sUreims and their
natural tributarie. bays. bayous. sounds eatu-
aries ad their natural trilbutaries. mot natural
lakes and the Atlantic ()Oren eail (ull of Mlei.
co to the seaward limit of the State' territorial
boundaries Waters ownwl entirely hy one per-
san other than the stlat are ilualed only in
regard to pouiilie disrharge on other property
or water. Tim departunlt recognizes that the
natural lordor of certain water bodies may be
difficult to estalidh because of seasonal Iuctua-
tions in water levels and other charaderistic
unique to a given terrain. Vegtation indices for
subinergd and tranLitional land have bee
adopted to surve as a guide In the establishment
of these water bodies. It is intended to include
arer which ar customarily ublnmersed and o -
change waters with a recognizable water body;
however, isolated are which insreqlumnty m-
change water or provide only imignilmant hene-
It to the water hody are intended to be deind
aM uplands and excluded from permit require-
meIrt.


B. AcUdvliU
Activilis requiring a permit include.
but are uost limited to piers; wharfe; docks;
dolphins. moving piling; excavation; cumneral
msnd and gravel dredging; Alling; dispold of
dredtgd mnterirl; rilprp and revetments; retain-
in wall; Igrina; breakwater; jetties; bemh rm-
tration; levea; wire or cable ovr t water;
pipes. a ales and tunnel under the water; aih-
ing ref(; clearing; channel and upld cMal
constr:ltion: intake and outllfJ pipes and/or
tructure; navigational aid* ; plaid ; reapa;
signs; feness and the tramportation/depoeition
ol dileged material fo wr pe water dumping.
(See Figure 2) Permits are required from their
U.S. Coast luarl and the Florida Department
of Environnmntal legulation for bridges. ause-
way andl overhead pipelines. Permits or dir-
charges a other tln dredged or ll material
muN t he obtained from the appropriate water
pollution control aulltrities (See Appendix C
for addlrsl)


C. generall Permis and Emampta:
(If Fd.-'dra. Authority has been giv-
en to Ilt Clrpe to i Ue (carnal P'ernute for
certain clearly described activities that are sub-
stantially similar in nture. that cause only mim-
imal adverse environmental impact when per
formed separately. and that will have only a
minimal adverse cumunltive ealec on the a-
vironment. Several gIneral permits have bess
isued and morn n under onsidpration; ae
Appendix G lor a living. You must contact the
Corps for a determination whether the proposed
work ueets the requirements for a general per-
mit.
(2) Satie: Chpter 43, Plorida Stat-
ute,. esripts certain activities fromn DER per-
mit (See Appendix B); however, a Ifcerel per.
mit may be required. Applications submitted to
DER lor these projects will be forwarded by
DBR directly to the aproprriate Corpis afice for
processing.

III. HOW APPLICATION ARE PRO-
C9SSRO
A. RoMa pt Ip submittl ofl an pphi-
cation (SM Spa ic Intructione for detailed .
DBR will forward within 24 hours of receipt.
ou copy ol the application along with appropri
ato drlwing to the Corpe District Oflic. Direct
mailinc to the Corp may delay permit po-
ceinl. However, applications for grin or jetty
coMntruction, beach restoration or other activi-
ties iermiitel puruant to Chapter 161, P.S.
mumt also b submitted concurrently to Bureau
ol Reaches and Sharem. Department uo Natural
Resworce for proceing (Se Appendix A for
DNR application requirements).
B. Publc naie: Alter the applictiun
has been determined to he in proper wonder. a
joint public notice usuallyy 30 days) is iasued to
all known interested Individuals. groups. and
governmental aencies. Substantive comnwnte
received in resposa to the public notice are
furnished the splircian to aflord him an op-
portunity to comment on r rebut the commante
or object in.

C. Public IHearis:
(1) Federfl: A public hearing may
Ie held by the Corps to aRord interested parties


TAERTiRY
7W/AR
rR/BUTlA
N--., I


WATrERWAY


CANALS


STATE JURISDK
ePAR AMNT iF IWRI

SALL MUTIM OW FLO
EXCEPT AS wOTr irA


LAKT 4 ACRES
SECONDARY a rATEfR



R /MARY jfReSuWATE# vewTATIOAY
o TRIBUTARY iMAIRSIEi MIOFLAT
SSW.MPS ANO SMALL OW
AREAS I OBJECT r
^R f^ ^kAIOD/C MUMWTOA

04$ TAL MEOtASUI-
PMR/MMW INUNDATION
OF BRACKISH MWATE



TION -

-
vsrag


DPMARMW MF WFTUHArRAI

COASTAL ARIS OL FLOWAQ,
POSTAL PROrTCTrV STRrTUC a
A AAC RESTORATION #'-.

FEDERAL JURISDICTION



FIL. ACTIV/TrIS AND ACr/VrlIs
SI/ ATNAFreCT WATER QW/IT
~ OOWMSTREiAM


FIL. EXCAVATION. AND MAJOR
ITRUCTURELr



FIGURE 1














APPENDIX B
eu-ch


ACT/rilE


REQ wRUI.4 P1E;ITS

I 7A


* i iii. -


-Seil "vs ,





WYORK/ IN OCEJ4A W9~ni '2


S.


lw*' 1,


% '


- 4F_.l
4u4f..'INii


FIGURE 2


Th following projects are o emptied under
Florid State Law, and/or Florida Adminiatr-
tie Code, from Slate permitting procedure
puumant to Chapters 213 or 403, Florida Sat-
tem Water quality certilction undor Section
401 of PL 2-O00 has sle* bon waived by the
tate. If your proposed projects Ste into one of
these cateories, no DER permit will be r-
quired, nor will payment of DER application
fees e required. Your proposed project num.
however, meet state water quality standards.
Section 17-3, Florid Administrative Code.


Use olf state lnds may require permissio
from the Burau of State Lands, Florida Ue-
partnment of Natural Resours, Crown Building.
TallaheaMe 32304, Telephone 488-4U6. Dock
construction lor commercial purposes and main-
teunae drndin iu natural bodies of water
should be checked with these.
Since an individual federal permit may be
required for mst of the project listed below,
plen complete the application as indicated.
and mall to the narst Department ol Environ-
mental Regulation Ofce.

ProeJea kEmpWtd from DER
Pswsitleg Rqulmkemnta
Section 17-4.04(10)(FAC) (10) Contruc-
tion; ndreing and/or filling ctivitiks Wci-
ated with the following typt of projeta:
(a) Thi installation of overhed transmit.
sion UIs where the support structure
ae not contructed n waters of the
state and which do not create a naviga-
tional hard;
(b) The installation of ad to navigation
and buoys sociated with such Aid.
except in Class II Water. An aid to
navipton is a devic marked pusuant
to Section 371.621, Florida Statut,
which is necessary to assist a navigator in
deteunnial his position or ne fcorm
or to warn him of danger or eLtrec-
ton to navigation.
(c) The ioatllatio and repair of mooriln
piling and dolphin associated with pri-


vate dorking facilities and the instila-
tion ead pair of private docks of Lve
hundred (00) quare feet or less of
over water surface aus constructed on
pilig or rating, so a not to eutltan-
tielly imped the lowor create a navia-
tional hazard. A private dock is a single
pier at a privately owned or controlled
percel of properly. Provided. that for
the purposes of this rule, multi-flmily
living complete and other type of
couples or facilities aociated with
the proposed private dock shall I
treated 1 one parcel of property re-
gardleu of the lel division of ownrr-
ship or control of the ssocited pnlper-
ty. Costruction of a private dock under
thi esaemption does not require the de-
partenIt to isse a subsequent prmnit
to coa tr"ut a channel to provide inavig-
tiunl access to the dock. Activities a-
aociated with a private dock hall
inude the construction of trnnturea
attached to the pier which are only auit-
abe for the mooring or storage of huat
(i.e. butilfte). This exemption does nol
include any dredging or Alling.
(d) The peromanc for ten 10) years front
isunce ol the original permit granled
prior to July I. 197. of mainhtenior
dndlinf of a ithin manninade canal.
channab and intake and disrherle *Irn-
turs, where the spoil material is to he
removed and depuited on a rsll- on-
toaid, upland Ias defned in Seikin
17-4.02 (18), Plorida Adminislrative
Code) poil site which will prevent the
mamp of the spoil material int the
wates of the state; provided that n,
more drndging ia to he performed then
necessary to retore the aial, channel.
and intake and dilhargl tructures to
original design epalclalions. 1he
phlur "original permit" sed in this
b-cladion mia the flrt construction
(i.e. dredging) or maintenance drendin
permit isued by the Trutees of the In-
teenal Improvenmnt Trsut Fund pur-
sunt to Chapter 263, Florida Stalute.


--- tSS~.nJ.A4 -a. -' 0.-. L~trY


--,u.-ir r -u hurvrr~rn~r~*-n


r'
















let The installation of hbot ramps on artil-
cial bodiess of water where navigational
acees to the proposed ramp exists. For
the PUipose of this exemption artiicial
bodies ol water shall include, but not be
limiite to, existing residential canal
systems. cimel permitted by a water
menanement district created under Sec-
tion 373.09 Florida Statute, and -.
liicialy created portions of the Florida
Intracuaetal Fateway.
if Comntruc:ttin of sewail (including nec-
mariy ibecm ling), and private docks
lee dened in Secton 17-4.04(10)lc).
Florida Adninistrqtive Codel. in artil-
cially created waterways whereauh con-
struction wil not violate exiting water
quality litandrds. Impede navigation or
affect blood control. An artificially
created waterway will he dened a a
body of water that hi beaes totally
dreded or *swvated amn did not over-
lap naturally submerged lands (as der
fined in Sectik 17-4.02(17). Florida
Adminsltrativ Cod]. For the purpose
of th oemption. r*icii lly created we.
tean shll be .Icude existing reden-
til canal system. The Commisson
reonmmnds a nd encouraes gom meth-
od of lnd retention uch as rip-rep,
which is mon ivironmentally com-
patilie than vertical aewalle.
(I) The replace#mat or repair of existing
do-ks provided Utt no Al material in
to ib ued, and provided that th re-
placement or repaired dock i in the
oms location and of the amt conliuri-
Stie and dimension as the dock being
rept ecd or repaired. An exiting dock
i sh cll iclud docks to which a boat can
Sbe moored at the time this exemption Is
exercised. Thi section applies to both
private and cominmcil docks.
(hi Sawalls retored at their previous o-
( cation or upland of or within one (1)
loot waterward of their previous loci-
tin. No killing can be prfonmed except
in the above authorized retomtilon of
the sawall. No contructlin halU he
undertken without necsary title or
eaeuhuld interset specially whero pri
vate and public ownership boundaries


have changed as a result of natural tc.
currences such a accretion, reclicin and
natural eie.on The Conmision recom-
mends and encourage soe method of
land retention much as rip-rap, which is
more environmentally compatible than
verticl eswalls. (Thie exemption does
not apply to permits required purmnt
to Chapter I(I, PS.. obtained from
DNR)
(i) The maintenance of exist dikes nd
irrigation and drainage ditches provided
th poll material is deposited on a lf-
containd upland al defend in Sction
17-4.02 (11), Florids Administrative
Codol. spoil ito which will prevent the
Mrape of the spoil mateuial into water
of the state. provided that no more
dredging is performed tan is necemary
to restoe the dio or irrigation or drain-
age ditch to its original design spcif k
tion. The *eamtiuo shll apply to nua-
made trenches du for the purpose of
draining water Irom the lad r for
tranporting water for I on the lnd
and which are not built for navigational
purposes. Thi exemption dos not in-
dude avigable residential canal ey-

(j) Repair or replacemn of listing pipes
to original conAurationa for the purpose
of dischar of torm water rul.
4k) Conltructiw and maintenance of awale.
A ale is a man-mald trench which
only coRntns are of contiguous stand-
i water following the occurrence of
rainfall or Sloding. sd i contracted
in uplnd ars as defined in Seion
17-4.02(16), Florida Administrative
Cod*.
(I) The construction at electrical power
plant aites which hav een approved
pursuant to the Florida Electrical Pow-
r Plant Siting Act. Chapter 403. Part
II. Florid Statutes, where such
dredgin aend/or /Allinl activities have
Iae reviewed and approved s part of
the site crtilction.
(m) The doepoition of up to end incudinx
twenty-fve (25) cubic yards ol material
in the transitional zone of a submerge


land except in Class II Waters. No per-
msn shall be entitled to more than one
exemption under thi provision every
six moths. II at any time the depart
meat detumines that the cumulative
ect of succeve filling by person
either wuder thiu provision or under
me ether pvisio of this rule and
the provision my have signicant
eedt on water quality, it may suspend
the appation of this exemption pro-
visen to that persi by so notifying
him in writing;
(n) Articial wtoerwaye. xu pt in Clas II
Wtero behind control structures per-
mitted by a water manageenet district
created udau Flarida Statutes 373.00.
*eept those
1. to be uad Mor reidentil pw-

1. which directly connect to works
of Mad watr menaremot dis.
strict. or
3. to be comtructed in muberged
lands ad/or in a tranitional
sons of a eubmerd land.
(*) Artiacil waterways, cept in ClaM II
Wates. not used for residentM l pur-
poss. and which e as a rticial trib-
utares anly lobkwin th eoccurane* of
raifi and which normmae do not ca-
teai contiguous ara of stondin water.


(p) Artiicial waters, except in Clam II We.
ten, for coninercial forestry otpralilono
of les than thirty-ive (35) lquare Invt
in total crom-sctional arei which arr
not to he constructed in submlrrgd
ladi, but which may encroach on tle
tsitional zone of a aubnergd land
where berm exist in sid sonm which
impede the now of Wlter from uplaend
through said sone onto submerged lands
(q) Th Installation of subaqueous trenm
mion and distribution lines laid ,m.
or embrdded in, Ute button of wel.nr
of the sate. other thn in Class II We
tar. and carrying water (tecr it wal-r
carrying wuate), electricity, coimmnuln
cation cables oil and si. The inltalls
tion of eulaqus Itraliniission anl
distribution lines may be nlremcheil in
righlt-e-way where entrechiment siniitar
in cupe and impa l to that propose
ha occurred previowly. and where ade
quato trbidity controls are emplyed as
neeaory to nest *tate standard. Thi
memption applies. ieofar as Chapter
403. Florid Statutes, and Section 4il.
Public Law 2-500, are concerned H,,w
evr, a Short form permit will still ie
required pursuant to Chapter 25.I. Fi-r
id Statutes, Chapter 75.22 i Lale .l
Florida). and action 17-4.29(3). Flor
ids Administrtive Code.

















TO: Vicki Tschinkel
John Bottcher
Tim Stuart
Paul Parks
Bill White-/
3J Irlndell
FRON: Chuck Littlejohn
DATE: February 13. 1i78
SUBJECT: Requests for eclassification from Class Ill to Class IT after

A Task Force comprised of Rtany Armstre i WhiMte. Bil1 rett. Scott itloffe
and myself have reviewed the attached thrteen requests for reclassificatl fro
Class III to Class IV wator. In addition, all sites were inspected by Bill irett
and Randy Armstrong along with DER District perseonol.
Each slta was assessed as to existing water quality, attainability of existing
classification, and extent of the State's jurisdiction. "A"! R
of each assess=nt *gI r o n i r indtt analyze ris a

There appear to be several alternativs available to provide relief far Idtstrial
sites, none of which involve a reclassificatleo to Closs IV mter". The alterettme
are as follows:
1I maintain Class II and specify *ia in zne n poritt
Schanqe classification of wator body to Class V:
Request property ener to reapply for permit upon issuace of perit
Include as a condition that mplitn will only be done outside the
dlachrgtr' property boundary
4) provide for an exemption to Class standards In lieu of isxing one at
the request of the applicant provided:
a) the system is entirely artificial and not a modifled or channelized
natural stream
b) the property Is contiguous and wder single ownership;
c the flo of the water body Is the discharge Itselft and
d the water bodies art not used for recreation nor do they contain
significant fish and lwldlife populations.

A reclassification to Class IV was not Included as an alternative since no site
surveyed Involved any agricultural uses.
Also. the alternative of maintaining the states quo was generally rejected
because in cases where the flow of the water Is due entirely to the discharge
there is no provision for a zone of mixing. This would seem to encourage direct
disposal Into surface wtersn As opposed to overland flo systems while in fact
the opposite should oe encotranrd.


Finally. the alternative of excluding uch discharges from wters of the State
was felt to be generally undesirable In that the Departent wold lose the
option of applying aln1am 'nulsnce' criteria in those water. Authority
for jurisdiction t based on F.S. 403.021Z(), "It is hereby declared that the
preventing, abatement. end control of the pollution of the air and wters of
this State are effected with a Lc Intest end the provlsiet of this act
ore enacted in the exercise of th police pers of this State for tho purpose
of protecting the health, piece, safety, and general welfare of the people of
this State..
In addition to specific recommendation contalnoed I the attached, It Is
recommend that water quality sapIlng be Intensified at och facility for
both the effluent and the receiving bodies of atr. The initial site inspections
were made Just prior to the seasonal operation of the citrus plants and whlle
n water quality problem were noted at that tim, It is possible that violations
could be occurring during periods of full opratlos.
These further ea-site inspection and sapling should be unmnounced and design
as a one-shot effort by the M u to tie limitattlon, with additional
sapling to ke designed and performed by District personal as prt of their
routine compliance mttorlng.
Parmnters to be checkedtluode the fellaeing:
DO
tM
TN
TV
11P
Suspended Solids
Toemeratm
It is further suggested that the St. Jns River District at Orlando continue
to closely monitor the felleowngi
Winter orden Citrus Ceop. at 80' pipe leading frm plant property and
downtream at bridge nar Winter Gorden STP; and
Slver Springs Citrus Coop. at H-oy-ln-the-Mill. Just sttream frem
the to-acre pond and at the plant outfall and
Plyoeuth Citrus Products. check overflow from Holts' Lakeo and
The South Florida district Fort Pierce Office check Trn Seet Plant
outfall and at confluence of C-10 and C-ll. and at Sunrise Boulovard; and
At Dade City. outfall from Lykes-Pace and Evans Packing Co. nd just
upstream of pond and In Larkin Conm before entry lato swa; and
Data from Lake Lena River can be provided frm current sampling bein
performed by Southwest District Office. Tmpe.
CEL:sf
Pase Z


F _iHIn17 6












I1 WRITER GARDEN CITRUS COOP.




5 6' x.6' deep
heavy vegetation
stream to Lake Apopka
high relief, natural, unaltered
only once-through cooling water
2-3 MH6 during season.


property seems to be old lake bottom;
was drained by a ditch (?) which is
now the ditch for the plant.


Existing Water Quality: Once through cooling water
Attainability: Class til
Jurisdiction: At pipe
Recommendation: Return Class III; apply alternative 4
Rationale: Multiple omershlp, fish and wildlife benefits.


f2 B I W CITRUS GROVFLAND

L Ie


1500 GP go through swamp about
1 mile to Lake Catherine
a* m; % \ clean effluent ref. cooling
Sweater only. only well water w/
no contact
DOT drainage into swamp from
pRo2 roads
plant I acre of hyacinths at shore of lake
L ------ rjent to swamp.
H<,l,,y so




Existing Water wualityi Once through cooling water
Attainability Clans III
Jursidiotion: at discharge into swamp
IRoomiendations apply alternatives 1 and 3
Rationales Multiplo ownership, fish and wildlife benefits











13 SILVER SPRIGS CITRUS COOP.

IOWUEY-Ih-TIE-HILLS 04 GOLDEN GCM GROWERS UMATILLA








Yale


-



GZ. .drainage of cooling water. some BOD.
C^.c-* \ man-made ditch .45 miles long
-p-J



pC { arrc Existing Water Qualitys Cooling water; som BOO
'- I Attainabilitys No data
SJureidictions At discharge
Recomendations Apply alternative@ 2,3, and 4
R ationales Single ownership, no recreation or significant fish and
Fa nt wildlife benefits, entirely artificial


urban drainage goes into system of
canals and lakes; all are Inter-
connected, mostly man-made.
once through well water, ref. cooling.
entire ditch weed-choked.
discharge greater than .25 MGD; does not
reach to Lake Harris.

Existing Water Quality: Once through cooling water
Attainability: Class III
Jurisdictions At discharge
Recommendations Apply alternatives 3 and 4
Rationale: Multiple ownership; fish apd wildlife, recreation benefits













05 PLHOUI H CITRUS PRODUCTS PLYHOUTH. FLORIDA


cooling water and barometric
water Is recycled from the
lake which is wholly company-
owned. The water has a
definite greenish caste to It.
This is only an example of re-
cycled water all other plants
use well water.


Existing Water Quality: Recycled cooling water
Attainabilitys Not known
Jurisdiction: At overflow
Recommendation: Apply alternatives 2 3, and 4
Ratioltoalu. Coi.jlcr as treatment system


17 TREE-SWEET FT. PIERCE

n 4 Cr)


kr&W.

r~i';I .J.Yu'.a


Raw water upstream 800 range of 1.2 4.8. COD range of 15 25.
TreeSweet input 80D 6 16, COD 50 120 ppm. Upstream, input
from Highway 605 and industrial park COD 70 250. Downstream total
at Sunrise Blvd.. COO 30 300 ppm.

During non-production periods, very little water flows into C-10. The
only water entering at point (B) In the off-season period consists of
condensate from air conditioners and run-off due to rainfall.

The average flow during productive periods Is 345 m3/day, with a range
of 145 575 m3/day.

Existing Water Qualitys See above
Attainabilitys Unknown
Jurisdictions At plant discharge
Pecommendations Return Class III; apply alternatives 3 and 4
Rationales Public access


^-
It #e '


t~krr-,;.
'..J












10 LYKES PASCO UADE CITY


1'


f *iwfm/





















The Larkl* Canal was dou back In the / 194r s.


easement rights.
e*ee rights.






















easement rights.


Existing Water Quality: Cooling water
Attainabilitys Class III
Jurisdictions At discharge
Recommendations Return Class III or IV in STP ditch# apply alternatives
2, 3, and 4 at plant discharge
Rationales Multiple ownership


-C.Cl~rulp~r;~.)OIWIU3ICI----u--~.- iu~. r1.- eA I.....e.. ,.a.. .4'.U


\ Discharge is into company-owned Tank Lake
(about 25 acres). Overflow.if any goes
eventually into Dade City STP ditch and
then into Larkin Canal.










Existing Water Qualitys Cooling Mater
Attainabilitys Class III
Jurisdiction At overflow
ecommendationas Apply alternatives 2, 3, and 40 return Class III
outside of property boundary
Rationale@ Consider as treatment system











i12 COUA COLA PLANT FOODS DIVISION -- AUBURNDALE





*,* f-l







L.tLe




C. LAL4


Lake Lena Run receives overflow from Lake Lena (but this has not
occurred for 5 years), discharge from two processing plants (cooling
waters and treated effluent). Auburndale STP, a trailer park STP, and
storewater runoff from adjacent urban and agricultural areas.
Lake Lena Run was originally part of the natural drainage system.
After severe flooding in the early fifties, it was dredged and channel.
sized by the county. The ditch would be intermittent without the above
mentioned discharges.



Existing Water Quality: Cooling Water
Attainability: Class III
Jurisdiction: At discharge
Recommendation: Return Class III apply alternatives 3 and 4
Rationale! Multiple Ownership


I13 BOROO CITRUS PRODUCTS COOP. WINTERHAVEN


- p.1"I


0r 6


Ji.5 4 -3.


A j..5


te &.1 e.. 0,Eei


The ditch upstream from the point of discharge ia only a little
over % mile in length. It is fed in part by a county drain which
surface drains that portion of Eloiae, Florida, which lies on the
S.W. by Snively Avenue, on the East by the SCLRR. This water flows
eastward under the railroad tracks where it join* a drainage ditch
headed by a 10" drain pipe from Lake Lulu. The combined waters flow
southward approximately 2,000 feet to the point of Sordo'e discharge.
The waters immediately below Bordo's discharge are alive with fish)
alligators and turtles.
From point of discharge for a distance of approximately 61 miles,
the water follows a waterway of mostly natural drainage ditches supple-
mented in some sections by man-made canals before emptying into Peace
Creek at a point approximately % mile N.W. of the intersection of Rifle
Range Road and Highway 60. On its 6h mile journey to Peace Creek,
this stream ia fed almost entirely by non-point sources, mainly pasture
land, highway and street drainage, however, water from several
industrial sources contributes to this stream just below Bordo's point
of discharge.

Existing Water Qualitys Cooling waters
Attainability: Unknown
Jurisdiction: At discharge am noted
Recommendation: Apply alternatives 2, 3, and 4; return Class II
beyond property line
Rationales Semi-natural, multiple ownership, flow to Peace Creek














114 IOLLY HILLS CITRUS DAVENPORT


Barometric and refrigeration cooling waters, 2-3 NH60 enters
a municipal storm sewer and then goes Into am unnamed open ditch
before entering Horse Creek. Horse Creek Is an old dredged agri-
cultural drainage canal which empties into a large swamp.




Existing Water Oualityt Cooling water
Attainabilitys Clase III
Juriedictions At discharge
Recommendations Apply alternatives 3 and 41 return Class III
beyond property line.
Rationale: Multiple ownership


L-





After lagoon treatment, Kraft's citrus waste water enters the
Itchepackesasse Creek system which is a much modified natural drain-
age system. This drainage eventually reaches the Hlllsborough River
basin several miles away to the northwest.






Existing Mater Qualitys Unknown
Attainabilitys Unknown
Jurisdiction: At discharge from Lagoon
Recomendationi Return Class III beyond property line
apply alternatives 2 and 3 and 4 or
provide for mixing sone at property
boundary.
Rationale consider as treatment system


9l5 KRAFI, INC. LAKELAND


-- .nr*-ri~w? -.l~rUr~l-- I- '~hLUYl~n ~ Y'-C'-iOlU-LLU~L















ONPARTMENT OF ENVIRONMENTAL REGULATION .

INTEROFFICE MEMORANDUM


-Tap. x F, >/


Seepage from the slime pit and settling ponds is collected
by a series of internal ditches and the water is recycled in the
processing operation. No discharge is anticipated.


Existing Water Qualitys Unknown
Attainability: Unknown
Jurisdiction: At discharge, if any
Recommendation: Apply alternatives 2 and 3; return Class III
in drainage ditch
Rationale: Consider as treatment system


aTo: Lo.t.


ITo: K-.-
TF; --------- _______


TOt Jacob D. Yarn
Secretary

FROM: Terry Cole
Deputy General Counsel

DATEs October 25, 1979

RE: Application for dredge and fill permits by Deltona
Corporation for Marco Island



A number of questions have been raised regarding the above appli-
cation. I have taken the liberty of preparing an opinion on three of
these questions.

QUESTION 1 MUST DELTONA COMPLY WITH THE DEPARTMENT'S WATER STANDARDS
WTIW A PORTION OF A WATERBODYT WERE IT OWNS THREE UPLAND SIDES AND
IS CLOSING Orr THE REMAINING SIDE OF A PORTION OF THE WATER BODY BY
MEANS OF A RETAINING DIKE?

ANSWER: YES. DELTONA MUST COMPLY WITH THE DEPARTMENT'S WATER
X lIY STANDARDS BOTH INSIDE AND OUTSIDE THE PROJECT AREA, SINCE
THE AREA IS PRESENTLY WATERS OF THE STATE AND WILL REMAIN WATERS OF
THE STATE.

DISCUSSIONs

The Department of Environmental Regulation is authorized by
Section 403.061(16), Florida Statutes, to establish a permit system
whereby a permit may be required for the operation, construction,
or expansion of any installation that may be a source of water
pollution. No such stationary installation which will reasonably
be expected to be a source of pollution can be operated, maintained,
constructed, expanded, or modified without a permit issued by the
Department unless exempted by Department rule. Section 403.007(1),
Florida Statutes.

Waters of the State are defined in Section 403.031(3), Florida
Statutes, as follows*

'Waters* shall include but not be limited to
rivers, lakes, streams, springs, impoundments,
and all other waters or bodies of water,
including fresh, brackish, saline, tidal, sur-
face, or underground. Waters owned entirely
b one person other than the state are included
only in regard to possible discharge on other
property or water. .." (Emphasis supplied).

_UX#Viar 7
u x'. ."'7
1. 4..** t'i


116 BORIION CO. RUSKIN VICINITY














-3-


From the above statutory language it is apparent that Deltona
must obtain a permit for the construction of any stationary instal-
lation which will discharge into this waterbody unless exempted by
statute or Department rule. (Emphasis supplied). Sexton Cov
Estates v. State of Florida Pollution Control Board, 325 So. 2d 468
(Fla. 1st DCA 1976).

Section 403.817, Florida Statutes, authorizes the Department to
utilize the vegetative index to determine waters of the state
for regulatory purposes. The Department in Section 17-4.02,
Florida Administrative Code, established vegetative lists which
were indicators of waters of the state. Based upon field reports
on this application, much of the area of the application is within
the submerged zone of waters of the state. Thus, the project is
to be constructed primarily in waters of the state.

Deltona contends that in closing off, by means of a retaining
dike, the remaining side of a portion of a waterbody which abute
the Gulf of Mexico, it has thereby created a "lake" owned entirely
by Deltona. Deltona further contends that this "lake" is exempt
from the Department's permitting jurisdiction therefore, it is
not required to meet water quality standards within the diked-off
area.

The definition of waters contained in Section 403.031(3),
Florida Statutes, sets forth the Department's permitting juris-
diction under Chapter 403, Florida Statutes. The subclass of
waters "owned entirely by one person other than the state," then,
is an exception to the general jurisdiction rule. The general,
and Florida, rule in construing exceptions favors strict construc-
tion:

Being an exception to a general prohibition,
any such statutory provision is normally con-
strued strictly against the one who attempts
to take advantage of the exception. ..
And, unless the right to the exception is
clearly apparent in the statute, no benefits
terender wil be permitted. Any
ambiguity is norImally construed in a
manner that restricts the use of the excep-
tion. (e.s.) State v. Nourse, 340 So. 2d 966,
968 (Fla. Jd DCA 1976). See also Sutherland
Statutory Construction, VoT. 2A S47.11, p. 90,
and n Re Petition for Declaratory Statement,
Florida Audubon Society, DS-07-07, Dec. 29,
9W P. 5.


Therefore, the term "waters owned entirely by one person* should
be strictly construed, and its use should be restricted. The con-
cept that the artificial enclosure of a portion of a waterbody
transforms it into a separable waterbody "owned entirely by one
person," thereby removing the "separable waterbody" from the
Department's jurisdiction conflicts with statutory and case law.
The Florida Legislature declared in Section 403.021(2), Florida
Statutes, that:

the public policy of this state (is) to con-
serve the waters of the state and to protect,
maintain, and improve the quality thereof for
public water supplies, for the propagation of
wildlife, fish, and other aquatic life, and
for domestic, agricultural, industrial, rec-
reational, and other beneficial uses, and to
provide that no wastes be discharged into any
waters of the state without first being given
the degree of treatment necessary to protect
the beneficial uses of such water.


To interpret the narrow exception contained in Section 403.031(3),
Florida Statutes, to include artificially enclosed portions of
waterbodies would conflict with the legislature's broad mandate
to "protect, maintain, and improve" the quality of Florida's waters.

The Florida Supreme Court, in Duval v. Thomas, 107 So. 2d 148
(Fla. 2d DCA 1958), cert. dismissed with opinion, 114 So. 2d 791
(Fla. 1959), has also adopted the civil law rule and declared that
an owner of a portion of the bed of a non-navigable lake cannot
restrict or curtail the reasonable enjoyment of the overlying
waters by the other owners of the bed. This decision makes
clear that the owners of separate portions of the bed of a non-
navigable waterbody in Florida have co-equal rights to reasonable
use of the overlying waters. To accept Deltona's contention that
it can appropriate by obstruction a portion of a waterbody and
call it "separate" would deny the rights of other owners of por-
tions of the bed of the waterbody and conflict with the Court's
decision in Duval, supra.

The Department in Peterson v. DER, Case No. 76-1379, con-
fronted a similar proposal. The applicant proposed to dike off
(at low tide) the mangrove area, dig deep lakes and use the fill
to raise the elevation of the wetlands to make the area suitable
for development. The Department rejected the argument of applicant
that because the area was entirely privately owned and would be
diked off that it would cease to be waters of the state and that
water quality standards would not have to be met within the
project. Copies of the Case Digest Summary and the aftirmance
by the First District Court of Appeal are attached.
















-4-


Even assuming that this is a waterbody 'owned entirely by
one person," and hence outside the Department's jurisdiction
under Chapter 403, once Deltona applied for a permit without re-
servation from the Department, it cannot challenge the Department's
jurisdiction. It is well established that an adjudicatory hearing
involving a permit denial or approval under Chapter 253, Florida
Statutes, is a quasi-judicial proceeding. Yonge v. Askew, 293
So. 2d 395, 398 (Pla. 1st DCA 1974). It is also well established
that once the jurisdiction of a Court has been invoked, the objector
is hard placed to object to its jurisdiction. Ganaway v. Henderson.
103 So. 2d 693 (Fla. 1st DCA 1958); see also Fink v. Bluestein, 169
So. 2d 335 (Fla. 3d DCA 1964).

Citing Ganawa the First District Court in the case of
School Board or Marion County v. PERC, 330 So. 2d 770, 774 (Fla.
1st DCA 196), applied the same principles to quasi-judicial pro-
ceedings of agencies by stating:


Generally, when a party subjects itself to
the jurisdiction of an agency, it places
itself in an untenable position when it
subsequently objects to the jurisdiction
of the agency whose aid it originally and
voluntarily sought.


In this case, it is clear that Deltona applied for a permit
to do the development work requested in the application. (See
Application No. 11-9608). It was not ordered to take this step
by t.he Department or its predecessors. Deltona elected to seek
the permit. It cannot now be allowed to object to the Department's
regulatory jurisdiction.

QUESTION 2: WHETHER THE DEPARTMENT IS BARRED BY THE DOCTRINE
SF'E~OTUTAi;.E ESTOPPEL. FROM DENYING THE APPLICATION FOR PERMIT
BECAUSE OF TIIE PREVIOUS AGREEMENTS BETWEEN THE BOARD OF
TRUSTEES OF THE INTERNAL IMPROVIHWENT FUND AND THE DELTONA
CORPORATION.

ANSWER: THE STATE IS NOT BARRED FROM DENYING THE PERMIT UNDER
THE DOCTRINE OF EQUITADLE ESTOPPEL.


DISCUSSION:


(1) The Law of Equitable Estuppel

(a) Essentials of equitable estoppel are
as follows:


(1) Words and admissions, or conduct,
acts, and acquiesence, or all combined,
causing another person to believe in the
existence of a certain state of things;
(2) in which the person so speaking, admitting,
acting and acquiescing did so willfully,
culpably or negligently; and
(3) by which such other person is or may be
induced to act so as to change his
own previous position injuriously.
Hallam v. Gladman, 132 So. 2d 198, 209
(Fla. 2nd DCA 169); 12 Fla. Jur.,
Estoppel and Waiver, Section 24

(b) Elements as to the Party Estopped.

The general elements as related to the
party stopped are:

(1) Conduct which amounts to a false
representation or concealment of material
facts, or, at least, which is calculated
to convey the impression that the facts
are otherwise than and inconsistent with
those which the party subsequently attempts
to assert (2) intention, or at least
expectation, that such conduct shall be
acted upon by the other party; and (3)
knowledge, actual or constructive, of the
real facts. 12 Fla. Jur., Estoppel and
Waiver, Section 30; Aetna Casualty and
Surety Company v. Simpson, 120 So. 2d 420,
(la. 1st DCA 1961).

(c) Elements as to Party Claiming Estoppel.

As related to the party claiming the estoppel,
the essentials generally areas

(1) Lack of knowledge and of the mean of
knowledge of the truth as to the facts in
question, (2) reliance upon the conduct
of the party stopped, and (3) action














-6-


based thereon of such a character as to
change his position prejudicially. 12
Fla. Jur.. Estoppel and Waiver, Section
30.

It should be noted that every fact essential to estoppel
must be clearly and satisfactorily proved. Ennis v. Warm
Mineral Springs. Inc., 203 So. 2d 514 (Fla. 2nd DCA 1967).
The party claim n estoppel must show that he has been misled
and, in consequence, has changed his position to his detriment.
Singletary v. Mann, 24 So. 2d 718 (Fla. 1947).

In this case the only possible facts which could give rise
to estoppel by the state would be that the state failed to
fulfill an agreement entered into between the Trustees and Deltona
back in the early 1970's. In that agreement the Trustees in
return for certain lands agreed to issue permits under Chapter
253, P.S., to the Deltona Corporation for the Big Key, Barfield Bay,
Bluehill Bay and Collier Bay applications. That agreement did
not include permits under Chapter 403 or water quality certifica-
tion under Section 401, Clean Water Act. The State fulfilled
its specific legal obligation under that agreement by issuing
permits for each of the subject areas. No agreements were ever
made respecting the units in question here. These projects have
recently been submitted and even more recently redesigned.

If the elements of essential estoppel are applied to this
situation we will see that there have been no words or admissions
or conduct by the state or its officers which could have caused
Deltona to believe it would get permits for the present area in
question. Deltona has made no argument that they changed their
position injuriously because of any representations that projects
would be permitted In the areas in question in the present
application.

(2) Estoppel Against the State

It is well known that it is only in rare instances that
equitable estoppel is applied against the state. North American
Co. v. Green, 120 So. 2d 603 (Fla. 1959). For instances,
TIITF v. C-aughton, 86 So. 2d 775 (Fla. 1956), a quiet title
action, concerned a situation where a tract of bottoms was
owned by the City of Miami by virtue of a legislative grant. The
City requested the private owner, who also held paper title
to a portion of the submerged lands involved (deeded by the
Trustees) to bulkhead, at his own expense, to contain fill
previously deposited therv-.n by the federal government with the
consent and to the Lenetit of the City. The City had levied


-7-


and collected a tax and admitted in litigation testing such
tax that the parcel was property of the private owner. The
City quitclaimed to the Trustees who became bound by the City's
actions. The Court held that the application of the doctrine
of estoppel prevented the Trustees from asserting their title.

It appears that the Court looks at the circumstances in
each case to make its determination. In Dominion Land and
Title Corp. v. Department of Revenue, 320 So. 2d 815 (Fla. 1975)
estoppl was denied to a title company that handled the recorda-
tion of a deed but inadvertently failed to pay for requisite tax
stamps. It was the duty of the Clerk of the Circuit Court to reject
nonstamped deeds. It passed into recorGation unnoticed and was
discovered in a routine audit. The insurance company unsuccess-
fully claimed estoppel against the state as to payment of a penalty
in view of Clerk's error. In Brant v. Pepe, 238 So. 2d 036
(Pla. 1970) estoppel was not available to establish a title to
realty.

In Jefferson National Bank v. Metropolitan Dade County
271 So. 2d 207 (Fla. 3rd OA 1972) cert. den. 277 So. 2d 536
(Fla. 1973), estoppel was sought against the state on the question
of whether lot owners could lawfully extend their lots by filling
beyond bulkhead line without permit in Bella Vista Bay. The Court
held against the lot owners.

It appears that after the plaintiff had
extended its land into the bay by filling,
it made an application to the county for a
permit to construct a business building on
its property, and the permit was granted.
The plaintiff-appellant contends estoppel
should be applied against the county because
the plans it submitted in making the building
permit application showed a parcel which included
said additional area. However, as pointed out
by the county, the plans submitted with the
application did not show or indicate the position
of the bulkhead line on or with reference to
the parcel there disclosed. Thus it was not
made to appear that the county knowingly
acquiesced in the encroachment in or by
issuance of the building permit. (271 So. 2d 214).


.-.- ..." S.., Crl ~ -ir.4.2- ~il-~-~~ ..r.. ..


















"Under no circumstances may the state be
stopped by the unauthorized acts or repre-
sentations of its officers." Greenhut
Construction Co. v. Henry A. Knott, 77 So. 2d
517 (Fla. 1st DCA 1971).

A purchaser of commercial paper executed by
the board of public instruction of a county
must at his peril see that officers executing
same had competent legal authority to bind
the public corporate board for which they
undertook to act. First National Bank of
Key West v. Board of Public Instruction,
145 So. 203 (la. 1931).

The state can use its police powers to regulate activities
which impact on the public health or welfare. An estoppel should
not be granted which impedes the sovereign from exercising its
police power. Florida East Coast Railway Co. v. City of Miami,
186 So. 2d 533, 534 (Fla. 3rd DCA 19 6).

In this case, it appears that water quality standards would
be violated by this source. It has been well established by the
courts that it water quality standards will be violated that a
project must be denied. Sexton Cove Estates, Inc. v. State
Pollution Control Board, supra.

In the case of Farrugia v. W. 0. Frederick. Jr. et al, Case
No. BB-409, Opinion filed April 4, 1977, the First District Court
of Appeal affirmed the denial of a permit to dredge a canal
where there would be water quality degradation and adverse effects
to Class III waters.

In Gies v. Fischer, 146 So. 2d 361 (Fla. 1962) the doctrine
of -stolrpefl wais hld not to apply in favor of a purchaser of
sovereign lands to prevent enforcement of a statute. The case
revolved around former Section 253.122, Florida Statutes. The
statute authorized local governments to fix bulkhead line. Bulk-
head lines were beyond which any filling would be deemed an inter-
ference with the servitude in favor of commerce and navigation.
Gius, supra, at page 362.

Estoppel does not lie against the state under the facts
alleged in this case.


QUESTION 3: WHETHER THE STATE CAN GRANT A PERMIT OH A PROJECT
WERE IT IS SHOWN THAT WATER QUALITY STANDARDS VIOLATIONS WILL
BE CAUSED BY THE PROJECT.

ANSWERs NO. UNDER SECTION 403.088, FLORIDA STATUTES, THE STATE
iT-KELLOW DEGRADATION or WATERS FROM EXISTING HIGH QUALITY DOWN
TO THE STANDARD, BUT MAY NOT ISSUE A PERMIT IF THE STANDARD WILL
BE VIOLATED.

DISCUSSION:

Because of the short time-frame in which I had to prepare
this memorandum I have taken the liberty of attaching a copy
of a memorandum by Jim Brindell on this point which was filed
in the previous permit proceedings. We will be utilizing the
same water quality standards that were in effect then, since
the Deltona applications were filed prior to the effective date
of the new water quality standards. Although the federal law
has changed a little, I believe that in its application to the
water quality certification under Section 401, Clean Water Act,
the law is substantially unchanged. I agree with the memorandum
and conclude that Section 403.080(2)(c), P.S., does allow
degradation down to the water quality standard under certain
circumstances, but in no case may a project be permitted if the
water quality standards would be violated.


TCIac

cc: Vicki Tschinkel
Steve Fox
Susanne Walker
Jeremy Craft
Forrest Fields
Phil Edwards
Kevin Erwin
Rip Caleen














Waters shall be deemed to be owned entirely by one person other than
the State only when it is demonstrated that:

(1)(a) Only one person, not the State, holds title, in fee
simple absolute, to the entire bed or water course of the
surface waters or surface water bodies in question; or,

(b) In the case of underground waters, only one person,
not the State, holds title, in fee simple absolute, to
the entirety of the lands in which the underground waters
are found and through which such waters pass or flow; and,

(2) Neither the State nor any person, other than the person
to which title is attributed in accordance with (1) above,
holds title to or property or beneficial rights or interests
in the waters or water bodies in question; and,

(3) Except in the case of flooding, the waters or water
bodies in question:
(a) Do not flow into or receive flow from waters
or water bodies which do not meet the terms of (1) (a) or
(1)(b) as well as (2) above; and,

(b) Are not connected to waters or water bodies
which do not meet the terms of (1)(a) or (1)(b) as well
as (2) above via man-made or natural waters, water bodies,
conduits, or a series thereof.

"Flooding" shall mean extraordinary high water levels which, at a mini-
mum:

a. Exceed the limits of waters as established by application
of vegetation and soils indices and the ordinary or mean high
water line; and are preceded by a rainstorm event within the
drainage basins of the waters or water bodies in question which
would occur, on the average, only once in 1251 years; or,

b. Which are recognized to be the result of abnormal events
resulting in high water levels normally expected to occur
only once every 125) years.


PI p'er boular





I Lake


I I


I I


-


Natural Lake, Single owner, Stream discharging from lake crosses
property boundary.
Proposed position: Water Ouality Standards apply only in stream at
or below property boundary.
Present/past legal interpretation: Water quality standards apply in
stream and lake.


EXNISIT f


EHisir I




















I ?ortvI 8o. 'aj
:i


I La \
Lake

f


Natural Lake, Single owner, no discharge.
Proposed position: Water quality standards do not apply.
Present/past legal interpretation: Water quality standards do not
apply, assuming no possibility of discharge.


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Leke
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II Et.
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Natural Lake, Single owner
Discharges a) 25 year storm or lesser to waters of state in
multiple ownership.
Proposed positions Water quality standards do not apply except/
in multiple owner waters.
Present/past legal interpretation: Water quality standards apply
in multiple owner waters and in lake with respect to discharge on
other property or waters, although 25 year storm has not been made signifi-
b) 25 year storm or greater cant
Proposed position: Water quality standards do not apply except/
in multiple owner waters.
Present/past legal interpretation: Same as above, but perhaps, an
appropriate interpretation would be that 25 year plus storms do not
constitute "possibility of discharge".

















I -


Fi eev &ae..uJ
LaFl."


Natural Lake, Single owner
Connects: directly to aquifer or groundwater which flow off
of property.
Proposed position: water quality standards do not apply in laker
Present/past legal interpretation: Water quality standards do apply
because of connection to waters of the State (groundwaters).

Proposed position: Groundwater quality standards apply at property
boundary.
Present/past legal interpretations Groundwater quality standards
apply within property boundaries.


.J "i








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7"


Natural Stream, Headwaters in single ownership, flow across multiple
ownership.
Proposed positions water quality standards apply to limit of the
stream within the single owner property which encompasses the headwaters.
Present/past legal interpretations Same as above.


.1-~-2-r '~-T-r~~ ~'~' r'- LcCLIL -


I



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I fafl n*n


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Natural Stream, crosses property owned by one person (non-navigable)
Proposed position: Hater quality standards apply to the limit of
the stream throughout its length.
Present/past legal interpretation: Same as above.


Natural Lake, owned by one person discharges into canal in multiple
ownership or owned by another.
Proposed position: Water quality standards apply at point of discharge
into the canal.
Present/past legal interpretations Water quality standards apply in
canal and in lake.


I- -
















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Natural Stream, lake, or tidal waters bubble screen separates part
of waters from main body of water bubble screen is on property of
the owner.
Proposed position: Water quality standards apply outside of bubble
screen.
Present/past legal interpretation: Water quality standards apply in-
side and outside of bubble screen.


Same as above but bubble screen is on sovereign submerged land beyond
privately owned submerged land if any.
Proposed position: Water quality standards apply outside of bubble screen.
Present/past legal interpretation: Water quality standards apply in-
side and outside of bubble screen.














- -1


I- - ---I


?roprvt~ So~..cI.va
I-,


- I


4o3 c1'ATes


4o03 (Ai-rietj


Open canal on 403 waters; canal sides and bottom are in single owner-
ship.
Proposed position: Water quality standards apply only at mouth of
canal and waterward not in the canal itself.
Present/past legal interpretation: Water quality standards apply within
the canal.


Open canal on 403 waters, but ownership extends into 403 waters beyond
mouth of canal.
Proposed position: Water quality standards apply at property boundary
and beyond.
Present/past legal interpretation: Water quality standards apply within
the canal.













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L/o3 (l7ra7ts


Open canal on 403 waters, but ownership in two parcels.
Proposed position: Water quality standards do not apply in area (A)
but do apply at A-B property boundary and beyond.
Present/past legal interpretation: Water quality standards apply through-
out the length of the canal.


Same as above, but multiple ownership as indicated.
Proposed position: Water quality standards:
Do not apply in areas
A,

D,

Do apply in areas
C,
E,
F,
G,

Present/past legal interpretation: Water quality standards apply
throughout all areas of the canal.


- -4


I- '_'--

c/of ~A/IRI




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