08-001243RU Emmett And Linda Hildreth vs. Florida Fish And Wildlife Conservation Commission Status: Closed DOAH Final Order on Monday, November 3, 2008.

Summary: FWCC policy that seawalls located more than 20 feet seaward of the structure being protected are likely to cause a take of marine turtle habitat is not a rule. The petition is dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMMETT AND LINDA HILDRETH, )

)

Petitioners, )

)

vs. ) Case No. 08-1243RU

)

FLORIDA FISH AND WILDLIFE )

CONSERVATION COMMISSION, )

)

Respondent. )

)

FINAL ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on August 26-27,

2008, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Thomas G. Tomasello, Esquire

Thomas G. Tomasello, P.A.

1107 Terrace Street

Tallahassee, Florida 32308-6458

and

M. Drew Parker, Esquire

Ard, Shirley & Rudolph, P.A.

Post Office Box 1874

Tallahassee, Florida 32302-1874

For Respondent: Stanley M. Warden, Esquire

Florida Fish and Wildlife

Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

STATEMENT OF THE ISSUE

The issue is whether the Fish and Wildlife Conservation

Commission (FWCC) has a policy of asserting that seawalls

located more than 20 feet seaward of the foundation of the

structure to be protected will result in a “take” of marine

turtle habitat, and if so, whether the policy is an unadopted

rule.

PRELIMINARY STATEMENT

On March 12, 2008, Petitioners filed a Petition to

Determine Invalidity of Agency Statement with the Division of

Administrative Hearings (DOAH). The petition alleges that FWCC

has “a policy of asserting that any seawall that is located more

than 20 feet from the foundation of the structure to be

the policy is a rule that has not been adopted pursuant to the

rulemaking procedures in Section 120.54, Florida Statutes.

A telephonic scheduling conference was held on March 20,

2008, at which the parties waived the statutory deadline for

conducting the final hearing. The hearing was initially

scheduled for June 3-4, 2008, but it was rescheduled for

August 26-27, 2008, upon Petitioners’ unopposed motion.

FWCC was ordered to provide notice of this proceeding to

the Department of Environmental Protection (DEP) pursuant to

Florida Administrative Code Rule 28-106.109, which it did on

March 28, 2008. The notice advised DEP that this proceeding may

affect its interests and that DEP may be entitled to intervene.

DEP did not file a petition to intervene in accordance with

Florida Administrative Code Rule 28-106.205, but a DEP attorney

appeared at the final hearing and made an ore tenus motion to

intervene and reschedule the hearing. The motion was denied at

the hearing. See Transcript (Tr.) 67, 69.

The parties filed separate pre-hearing statements prior to

the final hearing, but on October 8, 2008, the parties filed a

Supplement to Prehearing Stipulation that sets forth the facts

agreed to by the parties. The stipulated facts are included in

the Findings of Fact below.

At the final hearing, Petitioners presented the testimony

of Eugene Chalecki, Kipp Frohlich, and Dr. Robbin Trindell, and

FWCC presented the testimony of Drindell. Petitioners’

Exhibits (Pet. Ex.) 1, 3, 8 through 12, 14 through 18, 21

through 24, 26 through 28, 38, 44 through 46, 52, 61, 62, 64,

66, 70 through 73, 75, 80, 82, 88, 90, 91, 93, 95, 97, 98, 100

through 102, 113, 113-A, 114, 117, 117-A, and 118, were received

into evidence, as were FWCC Exhibits 5, 8, 10 through 13, 20,

21, and 23. Official recognition was taken of Sections 120.52,

120.54, 120.56, and 370.12, Florida Statutes (2007); Sections

20.331 and 379.2431, Florida Statutes (2008); Section 10 of the

federal Endangered Species Act, 16 USC § 1532(10); and Florida

Administrative Code Rules 62B-33.002, 62B-33.005, and 62B-

33.0051. 1 /

The four-volume Transcript of the final hearing was filed

on September 11, 2008. The parties requested and were given

30 days from that date to file proposed final orders (PFOs).

The PFOs were timely filed on October 13, 2008, and have been

given due consideration.

FINDINGS OF FACT

A. Parties

1. Petitioners are the owners of a two-story duplex

located on a beachfront lot in the Blue Mountain Beach area of

south Walton County.

2. FWCC is a state agency created by Article IV, Section 9

of the Florida Constitution. It has exclusive, constitutional

regulatory authority over “wild animal life and fresh water

aquatic life.” It also has constitutional regulatory authority

over “marine life,” but its regulatory authority over marine

turtles is derived from statute and is shared with DEP.

B. Background

3. Prior to 2005, DEP processed (and FWCC commented on) a

relatively small number of coastal armoring permits each year.

4. The number of coastal armoring permit applications

increased significantly in late-2005 and early-2006 as a result

of Hurricane Dennis, which made landfall in the Florida

panhandle in July 2005, causing severe erosion to beaches and

dunes. In some areas of Walton County, the dunes were eroded

all the way back to and even underneath the upland structures. 2 /

5. DEP issued a declaration of emergency shortly after

Hurricane Dennis that authorized Walton County to issue

emergency permits for temporary coastal armoring structures

under Section 161.085, Florida Statutes (2005).

6. Several hundred “temporary” armoring structures were

installed pursuant to the Walton County emergency permits

between July 2005 and April 2006. The number of emergency

armoring structures constructed in Walton County over this

period exceeds the number of armoring structures in all other

counties in Florida.

7. In January 2006, the U.S. Fish and Wildlife Service

(USFWS) recommended that Walton County obtain a county-wide

Incidental Take Permit and prepare a Habitat Conservation Plan

(HCP) to address the impacts on marine turtles and other listed

species caused by the coastal armoring structures permitted by

the county after Hurricane Dennis. The letter stated that

“every temporary armoring permit issued by Walton County,

depending on its type, location, and method of installation, may

result in incidental take of protected species . . . .”

8. In June 2006, after almost all the temporary armoring

structures in Walton County had already been installed, DEP

questions when a local government elects to issue emergency

permits for temporary coastal armoring.” Among other things,

the guidelines state that “[g]enerally the temporary armoring

should be sited no farther than 20 feet from the seawardmost

foundation corner of a threatened building.” (Emphasis in

original).

9. In June 2007, FWCC, DEP, and Walton County entered into

an Intergovernmental Agreement (IGA) to formalize the permitting

relationship between the parties and to expedite the completion

of a county-wide Incidental Take Permit and HCP to offset the

impacts to marine turtles and other listed species from the

armoring structures installed after Hurricane Dennis. The IGA

effectively prohibits DEP from issuing an after-the-fact coastal

construction control line (CCCL) permit for an armoring

structure if FWCC has determined that the structure is

“reasonably certain to cause take of marine turtles” unless the

permit applicant receives an Incidental Take Permit from USFWS.

10. Petitioners and others challenged various aspects of

the IGA, including the provision requiring an Incidental Take

Permit before DEP can issue after-the-fact permits for existing

coastal armoring structures in Walton County. The challenges

are pending as DOAH Case Nos. 07-4767RX and 08-3130RU.

C. Coastal Armoring Permitting, Generally

11. DEP, not FWCC, is the state agency responsible for

permitting coastal armoring and other construction seaward of

the CCCL.

12. Coastal armoring is defined by DEP’s rules as a

“manmade structure designed to either prevent erosion of the

upland property or protect eligible structures from the effects

of coastal wave and current action.” Seawalls and retaining

walls are types of coastal armoring.

13. Generally, coastal armoring is authorized only for the

terms are defined in DEP’s rules, or to close a “gap” of less

than 250 feet between existing armoring structures.

14. Local governments are authorized to issue emergency

permits for temporary coastal armoring structures upon a

declaration of emergency by DEP.

15. A temporary armoring structure installed pursuant to

an emergency permit issued by a local government must be removed

within 60 days unless the structure receives an after-the-fact

CCCL permit from DEP.

16. Generally, in order to receive an after-the-fact

permit, the armoring structure must be sited as far landward as

practicable and must meet the design standards in DEP’s rules.

17. DEP is prohibited by Section 379.2431(1)(h), Florida

Statutes, from issuing a CCCL permit if the permitted activity

will result in a “take” 3 / of marine turtles unless such taking is

incidental to, and not the purpose of the permitted activity.

Similarly, DEP’s rules require it to deny a CCCL permit

application for an activity that will result in “significant

adverse impacts,” which are defined as impacts of such a

magnitude that they would, among other things, “[c]ause a take .

. . unless the take is incidental . . . .”

18. DEP does not make an independent determination as to

whether a permitted activity will result in a “take.” It defers

to the “take” determination made by FWCC.

19. FWCC makes “take” determinations pursuant to its

commenting authority in Section 20.331(10), Florida Statutes.

That statute requires FWCC’s comments to be based upon

“credible, factual scientific data.”

D. Petitioners’ Seawall

20. Hurricane Dennis severely eroded Petitioners’

property, leaving Petitioners’ home vulnerable to damage from

subsequent storm events. Petitioners had to take immediate

action to protect their home.

21. Petitioners and five of their neighbors installed a

seaward of their homes pursuant to an emergency permit issued by

Walton County on July 14, 2005.

22. The seawall is located seaward of the CCCL,

approximately 35 feet seaward of Petitioners’ home, and a

similar distance seaward of the neighbors’ homes.

23. The entire seawall is approximately 460 feet long.

The portion of the seawall on Petitioners’ property is 79 feet

long. It cost $177,466 to install.

24. Petitioners placed beach-compatible sand landward and

seaward of the seawall and planted the area with native salt-

tolerant vegetation at a cost of $192,287. The seawall is

buried under this sand and vegetation, and is not visible from

the surface.

25. On September 6, 2005, Petitioners applied for an

after-the-fact CCCL permit from DEP to allow them to keep the

seawall as a permanent structure. DEP’s file number for the

application is WL-817 AR ATF.

26. FWCC provided comments on the application in a letter

dated September 30, 2007. The letter stated in pertinent part:

In evaluating coastal armoring projects, the FWC, in

coordination with [USFWS], looks to minimize

potential take of marine turtles by locating the

armoring as close as practicable to the structure to

be protected. In most cases, walls can be located

within 20 feet of the structure. . . . .

According to the survey for this project, the

seawall is sited approximately 35 feet seaward of

the houses and at or within the eroded scarp. The

seawall . . . extends into areas that could

reasonably be expected to provide nesting habitat

for marine turtles. Turtles that emerge to nest on

the beach in front of this wall will either be

deterred from successful nesting at the steep slope

of sand fill or the wall itself if exposed, or they

will nest at a location that is further seaward and

therefore at greater risk of storm or tidal

inundation. Therefore, FWC staff has concluded that

the referenced project is reasonably certain to

result in take as defined in Florida Statutes

370.12(1)(c) for marine turtles attempting to nest

in this area.

27. DEP has not yet taken action on Petitioners’ permit

application based, at least in part, 4 / upon FWCC’s determination

that the seawall is “reasonably certain to result in a take

. . . for marine turtles attempting to nest in this area.”

28. Whether Petitioners are entitled to a permit for their

seawall is not at issue in this proceeding. If DEP denies

Petitioners’ permit application -- whether based upon FWCC’s

“take” determination, the IGA, or some other reason --

Petitioners will have an opportunity at that time to challenge

that preliminary agency action in a proceeding under Section

120.57(1), Florida Statutes.

E. The Challenged Policy

29. FWCC submitted comment letters to DEP on numerous CCCL

permits in Walton County starting in September 2005.

30. From September 2005 to early February 2006, FWCC

consistently stated in its comment letters that it would not

object to the project so long as DEP determined that the coastal

armoring structure was located as close as practicable to the

upland structure being protected. The comment letters further

stated that the failure to locate the armoring as close as

practicable to the upland structure could result in a “take”

that would require an Incidental Take Permit from the USFWS.

31. In an e-mail dated February 13, 2008, USFWS staff

objected to the practice reflected in the comment letters.

determination to DEP’s siting determination was essentially a

transfer of FWCC’s responsibility to make the “take”

determination to DEP, which was not authorized by the delegation

agreement between USFWS and FWCC under the Endangered Species

Act.

32. In the e-mail, USFWS staff took the position that “any

armoring structure that is installed more than 20 feet seaward

of the structure to be protected would incidentally take sea

turtle nesting habitat” even if the location of the armoring

structure is as close as practicable to the structure being

protected. The e-mail concluded with a statement that “any

determination by [FWCC] that is inconsistent with the accepted

20-foot seaward installation of armoring (negligible effect) on

sea turtle nesting habitat will be considered as inconsistent

with the sec[tion] 6 agreement of the ESA between the State of

FL and [USFWS].”

33. In an e-mail dated February 14, 2006, Dr. Robbin

Trindell, the FWCC biologist responsible for reviewing CCCL

permit applications, offered the following justification for

this 20-foot standard:

The value of the sandy beach immediately

under or adjacent to a habitable dwelling,

such as a house, as nesting habitat is

probably diminished by the proximity of the

structure as well as human and feral animal

activity. Therefore, coastal armoring

located in this area, somewhere from 1 to 20

feet seaward of the house, would most likely

not be considered to cause a significant

loss of high quality marine turtle nesting

habitat. Adopting 20 feet from the

structure as a standard siting location for

coastal armoring appears to reduce the

potential for significant impacts to marine

turtles and their nesting habitat while

facilitating protection of the upland

property. [ 5 /]

34. Drindell is the only person that reviews coastal

armoring permit applications for FWCC. She drafted all of the

FWCC comment letters on the after-the-fact coastal armoring

permit applications in Walton County, even though some of the

letters were signed by her supervisor, Kipp Frohlich, who is the

leader of the Imperiled Species Section at FWCC.

35. Drindell and Mr. Frolich are authorized to sign

and submit the comment letters on behalf of FWCC, and as a

result, the letters represent the official position of FWCC.

36. FWCC conformed its practice to the position stated by

USFWS staff almost immediately.

37. In an e-mail dated February 21, 2006, Drindell

informed the CCCL permit review staff at DEP that “FWS has

determined that any wall sited more than 20-feet from the

habitable structure would be considered a take of marine turtle

nesting habitat.”

38. Starting in late-February 2006, the comment letters

siting determination. Instead, FWCC based its “take”

determination on the distance of the armoring structure from the

foundation of the structure being protected, and consistent with

the position expressed by USFWS staff, if the armoring structure

was located more than 20 feet from the foundation, FWCC advised

DEP that the project is “reasonably certain to result in a take

. . . for marine turtles attempting to nest in this area” and

that it will require an Incidental Take Permit from USFWS.

39. The numerous comment letters received into evidence

show that it has been FWCC’s standard practice since late

February 2006 to issue a “take” determination for armoring

structures in Walton County located more than 20 feet seaward of

the structure being protected and to not object to armoring

structures located less than 20 feet seaward of the structure.

40. This practice was confirmed by Mr. Frolich and Eugene

Chalecki, who is an administrator in the Bureau of Beaches and

Shores at DEP. On this issue, Mr. Chalecki testified that “[i]t

has certainly been my impression that walls sited within 20 feet

will generally be considered acceptable . . . [to FWCC] in terms

if the wall is not within 20 feet; and that he did not recall

any exceptions to this practice in Walton County as it relates

to after-the-fact coastal armoring projects.

41. Drindell’s testimony that the 20-foot standard is

merely a “starting point” that FWCC uses in evaluating whether

an armoring structure in Walton County will result in a “take”

was not persuasive, nor was her testimony that each of the

comment letters issued by FWCC for the after-the-fact coastal

armoring projects in Walton County were based upon site-

specific, case-by-case evaluations. 6 /

42. The more persuasive evidence establishes that starting

in late February 2006, FWCC had a policy of using the 20-foot

standard articulated by USFWS staff as the determinative factor

as to whether an armoring structure in Walton County will result

in a “take” of marine turtle habitat.

43. This policy was most clearly articulated in a

“briefing document” prepared for the FWCC commissioners by

Drindell and Mr. Frohlich in January 2007. The document

stated in pertinent part:

To facilitate permit review of the unprecedented

number of applications in Walton County, FWC and FWS

staff in consultation agreed to consider walls that

were sited twenty (20) feet or less from the

foundation of the habitable structure not to

constitute “take”.

Temporary armoring structures sited more than twenty

(20) feet from the home would be considered to cause

“take” due to a reasonable certainty that such

structures would interfere with female turtles

attempting to nest, or the presence of the wall would

result in the turtle depositing eggs closer to the

water and thus would result in increased mortality of

nests from high water events.

44. FWCC has not adopted this 20-foot standard through the

rulemaking process in Section 120.54, Florida Statutes.

45. FWCC’s use of the 20-foot standard is not limited to

Walton County. The standard has been used in Indian River,

Gulf, 7 / Franklin, Volusia, and St. Johns Counties, although not

as consistently as it has been used in Walton County.

46. The reference to the 20-foot standard was removed from

FWCC’s comment letters after this case was filed, and it is

unclear how, if at all, FWCC is currently using that standard in

its review of applications for coastal armoring permits.

CONCLUSIONS OF LAW

47. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Section 120.56(4), Florida

Statutes.

48. FWCC is required to comply with the Administrative

Procedure Act (APA) when exercising its regulatory authority

over marine turtles because that authority is derived from

statute, not the Florida Constitution. See Caribbean

Conservation Corp. v. Fish & Wildlife Conservation Comm’n ,

838 So. 2d 492 (Fla. 2003); § 20.331(6)(c)1. Fla. Stat.

49. FWCC does not contest Petitioners’ standing to

challenge the 20-foot standard at issue in this case, and the

evidence establishes that Petitioners are “substantially

affected” by the standard because their seawall has not been

permitted by DEP based, at least in part, on the standard. See

an agency statement may seek an administrative determination

that the statement violates s. 120.54(1)(a).”).

50. Section 120.54(1)(a), Florida Statutes, provides:

Rulemaking is not a matter of agency

discretion. Each agency statement defined

as a rule by s. 120.52 shall be adopted by

the rulemaking procedure provided by this

section as soon as feasible and practicable.

1. Rulemaking shall be presumed feasible

unless the agency proves that:

a. The agency has not had sufficient time

to acquire the knowledge and experience

reasonably necessary to address a statement

by rulemaking; or

b. Related matters are not sufficiently

resolved to enable the agency to address a

statement by rulemaking.

2. Rulemaking shall be presumed

practicable to the extent necessary to

provide fair notice to affected persons of

relevant agency procedures and applicable

principles, criteria, or standards for

agency decisions unless the agency proves

that:

a. Detail or precision in the

establishment of principles, criteria, or

standards for agency decisions is not

reasonable under the circumstances; or

b. The particular questions addressed are

of such a narrow scope that more specific

resolution of the matter is impractical

outside of an adjudication to determine the

substantial interests of a party based on

individual circumstances.

51. The initial issue is whether FWCC has the non-rule

policy challenged in the petition. See Dept. of Highway Safety

& Motor Vehicles v. Schulter , 705 So. 2d 81, 89 (Fla. 1st DCA

1997) (Benton J., dissenting). Petitioners have the burden of

proof on this issue.

52. FWCC argues that it does not have a policy of finding

a “take” of marine turtles whenever the seawall is located more

than 20 feet seaward of the foundation of the structure to be

protected. However, as detailed in the Findings of Fact, the

more persuasive evidence establishes that FWCC does indeed have

a policy of issuing a “take” determination for armoring

structures in Walton County located more than 20 feet seaward of

the structure being protected, and of not objecting to armoring

structures located less than 20 feet seaward of the structure

being protected.

53. The next issue is whether this 20-foot standard is a

“rule.” Petitioners have the burden of proof on this issue.

54. A “rule” is defined as:

each agency statement of general

applicability that implements, interprets,

or prescribes law or policy or describes the

procedure or practice requirements of an

agency and includes any form which imposes

any requirement or solicits any information

not specifically required by statute or by

an existing rule.

§ 120.52(16), Fla. Stat.

55. The 20-foot standard need not apply statewide to be

considered a statement of general applicability. The fact that

the standard has been consistently and uniformly applied by FWCC

in its review of coastal armoring projects in Walton County

since late-February 2006 is sufficient to establish that it is a

statement of general applicability. However, the general

applicability of the 20-foot standard is not sufficient, in and

of itself, to establish that the standard is a rule.

56. More than 30 years ago in Department of Administration

v. Harvey , 356 So. 2d 323 (Fla. 1st DCA 1977), the court

explained:

Whether an agency statement is a rule turns

on the effect of the statement, not on the

agency’s characterization of the statement

. . . . An agency statement is a rule if it

purports in and of itself to create certain

rights and adversely affect others or serves

by its own effect to create rights, or to

require compliance, or otherwise have the

direct and consistent effect of law.

Id. at 325 (citations and internal quotations omitted).

57. Harvey is still good law, and in several recent

decisions, the First District Court of Appeal re-emphasized that

agency statements that are not self-executing and do not by

their own effect create rights, require compliance, or otherwise

have the direct and consistent effect of law are not rules. See

Agency for Health Care Admin. v. Custom Mobility, Inc. , 33 Fla.

L. Weekly D2113 (Fla. 1st DCA Sep. 4, 2008); Dept. of Financial

Services v. Capital Collateral Regional Counsel-Middle Region ,

969 So. 2d 527 (Fla. 1st DCA 2007) (hereafter “ CCRC-M ”).

58. In Custom Mobility , the court held that a sampling

methodology used by the agency when auditing Medicaid providers

is not a rule because the methodology “does not itself establish

that the service provider owes money.” In CCRC-M , the court

held that statements in an agency investigative report were not

rules because the statements were “never self-executing or

capable of granting or taking away rights of any person by

[their] own terms.”

59. The 20-foot standard is analogous to the investigative

report at issue in CCRC-M and the sampling methodology at issue

in Custom Mobility because the standard is not self-executing

and does not take away rights by its own terms. The “take”

determination that results from the application of the 20-foot

standard is only a recommendation for DEP to use in its

permitting decision, and as the court stated in CCRC-M , a

“recommendation that has not been acted upon is not a rule as

that term is defined in the APA.” CCRC-M , 969 So. 2d at 531.

60. The fact that DEP defers to FWCC’s “take”

determination as a matter of practice does not convert FWCC’s

recommendation into a rule. A similar argument was rejected in

Volusia County School Board v. Volusia Home Builders

Association, Inc. , 946 So. 2d 1084, 1090 (Fla. 5th DCA 2006)

(hereafter “ VHBA ”).

61. The agency statement at issue in VHBA was a

recommendation by the school board that the county council

increase a school impact fee. After the recommendation was

adopted by the county council, a builder’s association filed a

petition with DOAH challenging the school board’s recommendation

as an unpromulgated rule. The Administrative Law Judge agreed

with the association, but the court reversed because the

recommendation “had no immediate binding effect on either the

County Council or VHBA” and because “the recommendation,

standing alone, did not require compliance, create certain

rights while adversely affecting others, or otherwise have the

direct and consistent effect of law.” See VHBA , 946 So. 2d at

1090.

62. Addressing the argument that the county council’s

adoption of the recommendation converted the recommendation into

a rule, the court stated:

The County Council’s February 2005 decision

to impose the increased impact fees - which,

in contrast to the recommendation, did

affect the VHBA’s rights – did not

retroactively render the January 2005

recommendation into a rule with the direct

and consistent force of law. Nor will we

consider the School Board’s recommendation

and approval a rule, despite the VHBA’s

implication that the recommendation

substantially affected its interests because

Volusia County, though not legally required

to do so, did in fact rely on the

recommendation.

VHBA , 946 So. 2d at 1090.

63. DEP, not FWCC, is ultimately responsible for

determining as part of its permitting decision whether an

activity seaward of the CCCL will result in a “take”. See

Admin. Code R. 62B-33.005(3), (4)(h).

64. DEP is not legally required to rely on the “take”

determination made by FWCC pursuant to its commenting authority

in Section 20.331(10), Florida Statutes. Indeed, the statute

clearly states that “[c]omments provided by the commission are

not binding on any permitting agency.” Therefore, as was the

case with the county council’s adoption of the school board’s

recommendation in VHBA , the fact that DEP adopts the “take”

determination issued by FWCC based upon the 20-foot standard

does not convert that standard into a rule.

65. In sum, the 20-foot standard is not a rule because it

is not self-executing and does not by its own effect create

rights, require compliance, or otherwise have the direct and

consistent effect of law. 8 /

66. In light of this conclusion, it is not necessary to

determine whether it was infeasible or impracticable for FWCC to

adopt the 20-foot standard as a rule. See § 120.54(1)(a)1. and

2., Fla. Stat.

67. That said, and although technically not a defense

under Section 120.54(1)(a)1. or 2., Florida Statutes, it does

not appear that FWCC has the authority to adopt the 20-foot

standard (or any other “take” standard) as a rule.

68. This is significant because the purpose of a

proceeding under Section 120.56(4), Florida Statutes, is “to

force . . . agencies into the rule adoption process.” See

Osceola Fish Farmers Ass’n v. Div. of Admin. Hearings , 830 So.

2d 932, 934 (Fla. 4th DCA 2002). If FWCC does not have the

necessary statutory rulemaking authority to adopt the 20-foot

standard as a rule, FWCC would be in a “Catch 22” situation if

it was determined that the standard was an unadopted rule.

69. Section 20.331(10), Florida Statutes, gives FWCC the

authority to submit comments to DEP on CCCL permit applications,

but that statute does not grant FWCC authority to adopt rules

concerning the matters upon which FWCC is commenting.

70. The only specific grant of rulemaking authority that

FWCC has concerning marine turtles is in Section

379.2431(1)(d)4., Florida Statutes, which provides:

The commission shall have the authority to

adopt rules pursuant to chapter 120 to

prescribe the terms, conditions, and

restrictions for marine turtle conservation,

and to permit the possession of marine

turtles or parts thereof.

71. Petitioners argue that this statute is sufficient to

give FWCC authority to adopt standards to use in making “take”

determinations as part of its duty to prescribe conditions for

“marine turtle conservation.” FWCC argues that the rulemaking

authority in this statute would not allow it to adopt the 20-

foot standard as a rule because the phrase “marine turtle

conservation” must be read in conjunction with the preceding

subparagraph giving FWCC the authority to issue permits for

“conservation activities such as the relocation of nests, eggs

or marine turtles away from construction sites.” See

§ 379.2431(1)(d)3., Fla. Stat.

72. An agency only has the authority to promulgate rules

that “implement, interpret, or make specific the particular

powers and duties granted by the enabling statue.” See

the authority to adopt a rule simply because it is “reasonably

related to the purpose of the enabling legislation” or “within

the agency’s class of powers and duties.” Id. The enabling

statute must contain “a specific grant of legislative authority

for the rule.” Southwest Florida Water Management Dist. v. Save

the Manatee Club, Inc. , 773 So. 2d 594, 599 (Fla. 1st DCA 2000).

See also Board of Trustees of the Internal Improvement Trust

Fund v. Day Cruise Ass’n, Inc. , 794 So. 2d 696, 699-701 (Fla.

1st DCA 2001).

73. An agency’s interpretation of the statute that it is

charged to administer is entitled to deference as long as the

agency’s interpretation is not clearly erroneous and is within

the range of possible and reasonable interpretations. See

Sullivan v. Dept. of Environmental Protection , 890 So. 2d 417,

420 (Fla. 1st DCA 2004).

74. FWCC’s interpretation of the grant of rulemaking

authority in Section 379.2431(1)(d)4., Florida Statutes, is not

clearly erroneous, and in light of the restrictive rulemaking

standard in the APA, the undersigned agrees that the statute

does not give FWCC authority to adopt the 20-foot standard (or

any other “take” standard for marine turtles) through the

rulemaking process.

75. Finally, as was the case with the statements in the

investigative report at issue in CCRC-M , Petitioners will have

an opportunity to challenge the “take” determination (and the

20-foot standard on which it was based) in a de novo proceeding

under Section 120.57(1), Florida Statutes, if DEP uses that

determination to deny their after-the-fact permit application.

See , e.g. , Jackson, et al. v. Dept. of Environmental Protection ,

upon the evidence presented at the hearing that the coastal

armoring structure at issue did not cause a “take” of marine

turtles notwithstanding the “take” determination issued by

FWCC). FWCC can be joined as party in that proceeding and will

have the burden to defend the scientific basis of its “take”

determination. See § 20.331(10), Fla. Stat. (“If the commission

comments are used by a permitting agency as a condition of

denial, approval, or modification of a proposed permit, license,

or authorization, any party to an administrative proceeding

involving such proposed action may require the commission to

join as a party in determining the validity of the condition.

In any action in which the commission is joined as a party, the

commission shall bear only the actual cost of defending the

validity of the credible, factual scientific data used as a

basis for comments.”).

ORDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED that the Petition to Determine Invalidity of Agency

Statement is dismissed.

DONE AND ORDERED this 3rd day of November, 2008, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November, 2008.

ENDNOTES

1 / Unless otherwise indicated, all references to these statutes

and rules are to the version officially recognized at the

request of the parties, and all other statutory references are

to the 2008 version of the Florida Statutes.

2 / Because of this, FWCC contends that sea turtles were able to

nest “up to and even underneath permanent structures” and that

“sea turtle nesting habitat could exist all the way up to

certain houses located in Walton County.” See FWCC PFO, at

¶¶ 37, 42. Although beyond the scope of this proceeding, it is

noted that the logic of FWCC’s position on this issue was

questioned in a recent case. See Jackson, et al. v. Dept. of

Environmental Protection , Case No. 06-4508, at endnote 9 (DOAH

Aug. 21, 2008) (“It simply makes no sense to suggest that there

has been a taking of sea turtle nesting habitat by the

installation of an armoring structure where (all other things

being equal) the width of the beach where the turtles nest is

the same after installation of the structure as it was before

the storm event creating the need for armoring.”).

3 / A “take” is defined an “act that actually kills or injures

marine turtles, and includes significant habitat modification or

degredation that kills or injuries marine turtles by

significantly altering essential behavioral patterns, such as

breeding, feeding or sheltering.” § 379.2431(1)(c)2., Fla.

Stat.

4 / A “screening chart” prepared by DEP indicates that

seawall appears to be appropriately sited as far landward as

practicable. See Pet. Ex. 113, at 15. However, each page of

the chart includes the following statements in bold-faced type:

“IMPORTANT: THIS INFORMATION IS INTENDED FOR SCREENING-LEVEL

DECISIONS ONLY! IT IS NOT INTENDED FOR ANY FINAL DEPARTMENT

ACTION.” Findings related to these issues are beyond the scope

of this proceeding.

5 / Pet. Ex. 70 (emphasis supplied). This justification was

adopted almost verbatim by USFWS in an April 20, 2006, letter to

FWCC and DEP. See Pet. Ex. 98. That said, the record also

includes evidence that the 20-foot standard was initially

developed as part of an HCP for Indian River County in 2004, and

that it was based upon engineering considerations, not

biological considerations. See Pet. Ex. 101; Tr. 74-78, 134-36.

The reasonableness and substantive validity of the 20-foot

standard is beyond the scope of this proceeding.

6 / In making this finding, the undersigned did not overlook Dr.

Trindell’s testimony that she spent considerable time in Walton

County after Hurricane Dennis and that she was familiar with the

conditions of the beach in the area. However, she also

acknowledged that she did not do site inspections for every

project and it is clear from her testimony as a whole that she

considered nearly all of the armoring structures installed

pursuant to the county permits to have been located in nesting

habitat simply because the active beach in the areas of the

projects extended all the way to the houses as a result of the

severe erosion of the dunes caused by Hurricane Dennis.

7 / See Pet. Ex. 80. This exhibit is an e-mail chain between DEP

and FWCC concerning an armoring structure in Gulf County, File

No. GU-445 AR, and is a clear example of the application of the

20-foot standard. According to the exhibit, FWCC issued a

“take” determination based upon its understanding that the

armoring structure was 25 to 35 feet seaward of the structure

being protected. DEP staff subsequently determined that the

armoring structure was only 18 feet seaward of the structure

being protected and asked FWCC to “check this and revise your

comments based on this.” Drindell responded by stating that

“[i]f the wall is within 20 feet . . . then an incidental take

authorization would not be required and you can proceed to issue

the permit with the conditions provided.”

8 / FWCC argued at page 16 of its PFO that the 20-foot standard

is merely a recommendation that DEP was free to reject in making

its permitting decision. On October 31, 2008, FWCC filed a

this argument and appears to draw a distinction between the 20-

foot standard and the “take” determination resulting from the

application of that standard. Specifically, the “replacement

page” argues:

[T]he challenged statement, that there is a

20 foot standard for determining whether a

structure is reasonably certain to result in

a “take” of marine turtles, is really just

one of the many factors that the FWC

considers in its case by case analysis of

whether or not a specific project will

result in a “take” . . . . Any reference to

20 feet in letters from FWC to DEP is simply

a starting point or “rule of thumb” for DEP

to begin with and consider in making its

permitting decisions. The Department does

not rely on this recommendation, but relies

on the overall analysis and the conclusion

of the FWC as to whether a structure is

reasonably certain to cause a “take” of

marine turtles . . . . [W]hen FWC concludes

in its comment letters to the DEP that an

armoring structure is reasonably certain to

result in a take, DEP is legally bound by

that conclusion and is prohibited by

[Section 379.2431(1)(h), Florida Statutes]

from issuing a permit.

As detailed in the Findings of Fact, the evidence does not

support the first sentence of this argument; and, as to the

remainder of the argument, FWCC is wrong as a matter of law that

its “take” determination is legally binding on DEP. See

determination as a matter of practice in making its permitting

decision does not change the legal nature of the “take”

determination or the 20-foot standard upon which it is based.

Simply put, neither the 20-foot standard nor the “take”

determination is a rule because they do not, standing alone,

create or adversely affect rights; it is the subsequent use of

the “take” determination by DEP in its permitting decision that

affects Petitioners’ rights.

COPIES FURNISHED :

M. Drew Parker, Esquire

Ard, Shirley & Rudolph, P.A.

Post Office Box 1874

Tallahassee, Florida 32302-1874

Thomas G. Tomasello, Esquire

Thomas G. Tomasello, P.A.

1107 Terrace Street

Tallahassee, Florida 32308-6458

Stanley M. Warden, Esquire

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399-1600

Ken D. Haddad, Executive Director

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399-1600

James V. Antista, General Counsel

Florida Fish and Wildlife

Conservation Commission

Farris Bryant Building

620 South Meridian Street

Tallahassee, Florida 32399-1600

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing one copy of a Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a second copy,

accompanied by filing fees prescribed by law, with the District

Court of Appeal, First District, or with the District Court of

Appeal in the appellate district where the party resides. The

Notice of Appeal must be filed within 30 days of rendition of

the order to be reviewed.