State, Dept. of Environmental Regulation v. Falls Chase Special Taxing Dist., SS-439
| Decision Date | 23 July 1982 |
| Docket Number | No. SS-439,SS-439 |
| Citation | 424 So.2d 787 |
| Court | Florida District Court of Appeals |
| Parties | STATE of Florida, DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellant, v. FALLS CHASE SPECIAL TAXING DISTRICT, Elba, Inc., and Sunshine Development, Inc., Appellees. |
Alfred W. Clark, Deputy Gen. Counsel, William L. Hyde, Asst. Gen. Counsel, Tallahassee for appellant.
J.D. Boone Kuersteiner, Akerman, Senterfitt & Eidson, and Kenneth F. Hoffman, Oertel & Laramore, Tallahassee, for appellees.
Stephen W. Metz, Tallahassee, amicus curiae.
This cause is before us on appeal by the State of Florida, Department of Environmental Regulation [DER], from an order of the circuit court granting the motion of Falls Chase 1 [appellee] for judgment on the pleadings.
The issues presented on appeal are the jurisdiction of the trial court to entertain suit for declaratory relief and the correctness of the judgment below as to the jurisdiction of DER.
The facts are essentially undisputed. The land in question is located on Upper Lake Lafayette, a privately owned body of fresh water in Leon County. At times in the past, portions of this property have been subject to inundation by waters of the lake, but sinkhole development in the lake, a natural phenomenon, has caused the lowering of the water level. The area sought to be regulated by DER has been dry for a number of years. Past uses include timbering, farming and grazing of cattle.
It is uncontroverted that the lands are "uplands," as defined by DER rule, 2 not subject to DER dredge and fill regulation under that rule.
It is stipulated by the parties that there are no sovereignty lands involved in this dispute.
In December of 1978, and again in February of 1979, representatives of DER met with representatives of the District for briefing and on-site inspection in connection with planned construction and installation of domestic waste-water collection systems and treatment facilities, and to determine if any portions of the property were subject to dredge and fill regulation under Chapter 403.
Prior to this inspection, DER had determined the extent of its dredge and fill jurisdiction over privately owned fresh-water areas by means of an "aquatic plant vegetation index," 3 as required by Section 403.817, Florida Statutes. DER representatives continued to abide by the provisions of that statute and by Florida Administrative Code Rule 17-4.02, and to affirm to appellees the lack of jurisdiction over dredge and fill operations on the property until March of 1979.
On March 21, 1979, The Secretary of the Department of Environmental Regulation met with the representatives of the District and stated that the agency was considering making a claim of dredge and fill jurisdiction to the "ordinary high water line" boundary.
On April 5, 1979, the Deputy General Counsel of DER wrote to appellees setting out DER's intention to use the "ordinary high water mark" 4 on the particular property as the determinant of its dredge and fill jurisdiction, stating that a survey crew would be sent out to establish that line and concluding:
Until this line is determined we request that no further filling be done in this area until an ordinary high water line is established. We intend to take enforcement action for the work which has gone on to date unless a satisfactory resolution is reached to these apparent violations. We will offer your client the opportunity for an informal conference to discuss a resolution of the violation prior to initiating a formal enforcement action. If you wish to take advantage of this offer, please contact me within ten days from the date of this letter.
Appellees continually and consistently denied DER's claim of jurisdiction. 5 In May of 1979, the parties entered into a stipulation allowing Falls Chase to continue construction and giving DER permission to come onto the property in an attempt to identify an ordinary high water line. 6 That line was not identified by the agency until August of 1979. By certified letter of August 9, 1979, The Secretary of the Department of Environmental Regulation advised appellees, in part, as follows:
The Department has determined that the ordinary high water line of Upper Lake Lafayette lies between 44.8 and 46.6 feet mean sea level....
For the purpose of this proceeding the department intends to exert its regulatory jurisdiction under Chapter 403, Florida Statutes, below 44.8 feet mean sea level.
....
Accordingly, you are hereby directed to submit the appropriate after-the-fact permit applications for the areas depicted on Exhibit F to the stipulation which are below the 44.8 feet contour level within thirty days of the receipt of this letter. Failure to do so shall constitute a violation of the terms and conditions of the stipulation and Sections 403.087(1) and 403.161(1)(b), Florida Statutes, and Sections 17-4.03 and 17-4.28, Florida Administrative Code, and shall be subject to appropriate enforcement action by the Department.
You are further directed to cease the placement of fill materials in those areas depicted in Exhibit F to the Stipulation which are below the 44.8 contour line. Failure to do so shall constitute a violation of the terms and conditions of the Stipulation and Sections 403.087(1) and 403.161(1)(b), Florida Statutes, and Sections 17-4.03 and 17-4.28, Florida Administrative Code, and shall be subject to appropriate enforcement action by the Department.
On August 28, 1979, Falls Chase filed a petition for writ of prohibition against DER with this court. The writ was denied September 6, 1979, by unpublished order. 7 DER's contention that this court's denial of prohibition precludes further consideration of the jurisdictional issue is without merit. 8
On September 11, 1979, appellees filed a complaint in circuit court for declaratory and injunctive relief. DER answered and filed a counterclaim against appellees Sunshine and Elba in the nature of a civil action for the entry and enforcement of a permanent injunction and fine pursuant to Sections 403.131(1) and 403.141(1), Florida Statutes, for violations of Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code.
The circuit court granted Falls Chase's motion for judgment on the pleadings, holding that DER had exceeded its statutory grant of authority and was without jurisdiction to regulate appellees' dredge and fill activities. The court enjoined DER from attempting to extend its jurisdiction beyond the vegetative index required by statute and promulgated in Florida Administrative Code Rule 17-4.
On appeal to this court, DER contends that the circuit court is without jurisdiction because appellees failed to exhaust administrative remedies, and that it has dredge and fill jurisdiction as claimed over appellees' property. We will consider the last contention first.
The grant of authority to DER to regulate dredge and fill activities is Section 403.817, Florida Statutes, adopted effective June 9, 1977, providing:
(1) It is recognized that the levels of the waters of the state naturally rise and fall, depending upon tides and other hydrological, meteorological, and geological circumstances and features. The natural rise and fall of the waters is essential to good water quality, but often makes it difficult to determine the natural landward extent of the waters. Therefore, it is the intent of the Legislature that the Department of Environmental Regulation establish a method of making such determination, based upon ecological factors which represent these fluctuations in water levels.
(2) In order to accomplish the legislative intent expressed in subsection (1), the department is authorized to establish by rule, pursuant to chapter 120, the method for determining the landward extent of the waters of the state for regulatory purposes. Such extent shall be defined by species of plants or soils which are characteristic of those areas subject to regular and periodic inundation by the waters of the state. The application of plant indicators to any areas shall be by dominant species.
(3) Amendments adopted after April 5, 1977, to the rules of the department adopted before April 5, 1977, relating to dredging and filling and which involve additions or deletions of the vegetation or soil indices or the addition or deletion of exemptions shall be submitted in bill form to the Speaker of the House of Representatives and to the President of the Senate for their consideration and referral to the appropriate committees. Such rule amendments shall become effective only upon approval by act of the Legislature.
....
(5) The landward extent of waters as determined by the rules authorized by this section shall be for regulatory purposes only and shall have no significance with respect to sovereign ownership. (emphasis supplied)
The Legislature, in the above statute, requires the Department to establish a method of determining the natural landward extent of waters of the state by identification of vegetation or soils, a method which takes into account natural fluctuations in water levels. The Legislature also carefully circumscribed the manner in which DER is to exercise the power granted and specified: (1) The natural landward extent of waters is to be identified by ecological factors, specifically plant or soil characteristics of areas subject to regular and periodic inundation. (2) The method for determining the landward extent of the waters of the state for regulatory purposes is to be established by rule. (3) Any amendments to dredge and fill rules relating to plant or soil indices or exemptions must be submitted in "bill form" to both houses of the Legislature for consideration and referral to appropriate committees, and become effective only upon approval by act of the Legislature. 9
DER amended Florida...
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