86-002751RX Board Of County Commissioners vs. Department Of Natural Resources Status: Closed DOAH Final Order on Monday, July 27, 1987.

Summary: Petition dismissed. Definition of ""Public Navigation Project"" found to be valid under Rule 18-20.003(26), Florida Administrative Code.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COMMISSIONERS OF )

JUPITER INLET DISTRICT, )

)

Petitioner, )

)

vs. ) CASE NO. 86-2751RX

)

DEPARTMENT OF NATURAL )

RESOURCES, )

)

Respondent. )

____________________________)

FINAL ORDER

For Petitioner: Thomas M. Beason, Esquire

Tallahassee, Florida

and

William R. H. Broome, Esquire

West Palm Beach, Florida

For Respondent: Eugene E. McClellan, Jr., Esquire

and

James Antista, Esquire

Tallahassee, Florida

This matter was heard by William R. Dorsey, Jr., the Hearing Officer

designated by the Division of Administrative Hearings, in Tallahassee, Florida,

on June 18, 1987. The transcript was filed on July 9, 1987. The parties filed

proposed final orders. Rulings on proposed findings of fact are made in the

appendix to this Final Order.

This petition was initiated pursuant to Section 120.56, Florida Statutes

(1985), and seeks a determination that Rule 18-20.002(26), Florida

Administrative Code is invalid. The petition as originally filed challenged

Rule 16Q-20.03(24) and 16Q-2.05. Rule 16Q-20.05 has been repealed and Rule 16Q-

20.03(24) was renumbered as Rule 18-20.003(26), Florida Administrative Code.

ISSUE

The Jupiter Inlet District, a special taxing district located in northern

Palm Beach County maintains that the definition of "public navigation project"

found in Rule 18-20.003(26), Florida Administrative Code, is invalid. It reads:

"'Public navigation project' means a project

primarily for the purpose of navigation which

is authorized and funded by the United States

Congress or by port authorities as defined by

Section 315.02(2), Florida Statutes."

The term public navigation project is substantively used in Rule 18-

20.004(1)(e), Florida Administrative Code, which establishes management

policies, standards and criteria used by the Board of Trustees of the Internal

Improvement Trust Fund when deteremining whether to approve request for

activities on sovereignty lands in aquatic preserves. That rule states that:

"(e) A lease, easement or consent of use may

be authorized only for the following

activities:

1. a public navigation project;

2. maintenance of an existing navigational

channel..."

Other portions of the rule provide that eligible requests for a lease, easement

or consent of use will be evaluated according to stated social, economic and

environmental benefit criteria.

FINDINGS OF FACT

1. The Jupiter Inlet District is a special taxing district in Palm Beach

County created in 1921. It is authorized to "construct and thereafter to

maintain an inlet connecting the mouth of Jupiter River with the Atlantic Ocean,

and ... to deepen Jupiter River in said district and thereafter to maintain

same." Section 8, Ch. 8910, Laws of Florida (1921). The legislation found the

deepening of the river was a "public purpose and necessary for the preservation

of the public health and for the public use of shipping and transportation, and

for the extension of commerce of the State of Florida." The district is

specifically authorized:

"[T]o clean out, straighten, widen, change

the course or flow of or deepen any other

water course, natural stream or body of water

that may be found to be necessary by said

board in order to facilitate the opening and

maintenance of said inlet or waterway ... or

necessary to maintain a sufficient depth of

water in said Jupiter River." Section 9, Ch.

8910, Laws of Florida (1921).

The district's powers further include the authority to: "Construct and maintain

canals, ditches, revetments, jetties and other works," construct bridges, roads,

acquire property, and construct and maintain "docks, wharves, buildings and

other improvements upon any of the properties which may be acquired by virtue of

this act." Id. It is not a port authority as defined in Section 315.02(2),

Florida Statutes (1985).

2. The Legislature revised the District's enabling legislation in 1979.

That statute contains a finding that the District is "a responsible local

agency, entrusted by statute with maintenance of certain waters of the State

within its territorial boundaries." Section 1, Ch. 79-532, Laws of Florida.

The Legislature then required the Department of Environmental Regulation to seek

and take into account recommendations or suggestions by the governing board of

the Jupiter Inlet District on any applications for permits for activities in the

waters within the Jupiter Inlet District.

3. The territorial boundaries of the district overlap and include a

portion of the Loxahatchee River/Lake Worth Creek Aquatic Preserve. The

Loxahatchee River was formerly known as the Jupiter River.

4. Before 1980, the Board of Commissioners of the Jupiter Inlet District

constructed navigation channels and performed other dredging within the

boundaries of the Loxahatchee River/Lake Worth Creek Aquatic Preserve. The

district is applicant for consent for use of sovereignty lands to dredge a new

channel in a portion of the Loxahatchee River located within the preserve.

5. The Florida Aquatic Preserve Act was adopted in 1975. It directs that

state-owned submerged lands in areas which have exceptional biological,

aesthetic and scientific value be set aside forever as aquatic preserves or

sanctuaries. Section 258.36, Florida Statutes (1985). The Loxahatchee

River/Lake Worth Creek Aquatic Preserve is created in Section 258.39(10),

Florida Statutes (1985).

6. Under Section 258.40(2), Florida Statutes (1985), the following areas

are excluded from aquatic preserves:

"Any publicly owned and maintained navigation

channel or other public works project

authorized by the United States Congress

designed to maintain or improve commerce and

navigation shall be deemed excluded from the

aquatic preserves established under this

act."

7. The Board of Trustees of the Internal Improvement Trust Fund is charged

with the maintenance of aquatic preserves. Under Section 258.42(3)(a), Florida

Statutes (1985), the trustees are instructed that:

"No further dredging or filling of submerged

lands shall be approved by the trustees

except the following activities may be

authorized pursuant to a permit:

1. Such minimum dredging and spoiling as may

be authorized for public navigation

project....

4. Such other maintenance dredging as may be

required for existing navigation

channels..."

The Board of Trustees is empowered by Section 258.43, Florida Statutes (1985),

to enact:

"[R]easonable rules and regulations to carry

out the provisions of this act and

specifically to provide regulation of human

activity within the preserve in such a manner

as not to unreasonably interfere with lawful

and traditional public uses of the preserve,

such as sport and commercial fishing, boating

and swimming."

The Legislature also authorized the trustees to permit other activities in

aquatic preserves, stating:

"Reasonable improvement for ingress and

egress, mosquito control, shore protection,

public utility expansion, surface water

drainage, installation and maintenance of oil

and gas transportation facilities, and

similar purposes may be permitted by the

trustees subject to the provisions of any

other applicable laws under the jurisdiction

of other agencies." Section 258.44, Florida

Statutes (1985).

8. There are numerous special act inlet districts in Florida, e.g. St.

Lucie Inlet District and Port Authority created by Ch. 9631, Laws of Florida

(1923); Lake Worth Inlet District (now the Port of Palm Beach District) created

by Ch. 7081, Laws of Florida (1915); Daytona, New Smyrna Inlet District created

by Ch. 14503, Laws of Florida (1929); Ponce de Leon Inlet and Port district

created by Ch. 21614, Laws of Florida (1941); Port Orange Special Road and

Bridge Inlet District created by Ch. 13492, Laws of Florida (1927); Vero Beach

Inlet District created by Ch. 11263, Laws of Florida (1925); Sebastian Inlet

District created by Ch. 78-440, Laws of Florida; Hillsborough Inlet Improvement

and Maintenance District created by Ch. 73-422, Laws of Florida; and South Lake

Worth Inlet District created by Ch. 7080, Laws of Florida (1915). Each district

has been subject to special acts amending its organic legislation.

9. The Board of Commissioners of the Jupiter Inlet District filed a

petition with the Department of Natural Resources, pursuant to Section

120.54(5), Florida Statutes (1985), seeking amendment of the rule at issue here

to include in the definition of public navigation projects not only those

authorized and funded by Congress and by port authorities, but also those of

special districts. That petition was assigned Case No. 86-001 and was denied by

the Department of Natural Resources in an Amended Final Order entered August 28,

1986, introduced into evidence as Respondent's Exhibit 1. No evidence was taken

in that proceeding. The Amended Final Order consists mostly of the Department's

explanation of why it does not believe amendment of the rule in the manner

sought by the Jupiter Inlet District is appropriate. Except for the holding

that the Department of Natural Resources will not institute proceedings to amend

the rule defining public navigation projects, the Amended Final Order is

entitled to little weight. For example, the statement in its Findings of Fact

that the Jupiter Inlet District is not within the boundaries of the Loxahatchee

Aquatic Preserve (see paragraphs 1 and 11) is simply wrong.

10. There is no evidence that the Jupiter Inlet District operates any sort

of port facility.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has jurisdiction over this

proceeding. Section 120.56, Florida Statutes.

12. The activities of the Jupiter Inlet District do not fall within the

definition of public navigation projects found in Rule 18-20.003(26). Any new

dredging projects by the district therefore will not be considered by the Board

of Trustees of the Internal Improvement Trust Fund under the limited exception

permitting dredging for public navigation projects in aquatic preserves under

Section 258.42(3)(a), Florida Statutes (1985). Re-dredging of existing channels

is permitable under Section 258.52(3)(a)4, Florida Statutes (1985), however.

13. Some limited dredging may take place in aquatic preserves. The State

of Florida does not have the authority to prohibit dredging projects in aquatic

preserves which are projects primarily for the purpose of navigation authorized

and funded by the United States Congress. Under the Commerce Clause of the U.S.

Constitution, Article I, Section 8, Clause 3, the congressional power to

regulate commerce includes the regulation of navigation. Cooley vs. Board of

Wardens of the Port of Philadelphia, 12 How. 299, 13 L.Ed. 996 (1852). The

Legislature recognizes this because in Section 258.40(2), Florida Statutes, it

"deemed excluded from the aquatic preserves established under this act" "any

publicly owned and maintained navigation channel or other public works project

authorized by the United States Congress designed to improve or maintain

commerce and navigation." The exception for congressional navigation projects

found in the rule under consideration is a reflection of the State's lack of

power to regulate such activities.

14. The language of Section 245.42(3)(a)1, Florida Statutes (1985),

indicates a legislative antipathy towards dredging and filling in aquatic

preserves to the extent the Legislature has the power to control such dredging.

It allows administrative authorization only for "such minimum dredging and

spoiling as may be authorized for public navigation projects." The Board of

Trustees of the Internal Improvement Trust Fund drew a distinction in the rule

at issue between public navigation projects carried out by Florida's port

authorities, which may be permitted, and public navigation projects (other than

maintenance dredging of existing channels) carried out by other entities such as

the Board of Commissioners of the Jupiter Inlet District, which will not even be

considered.

15. In a different context, the Legislature itself has drawn a distinction

between inlet districts and port authorities for dredging purposes. Section

253.03(10), Florida Statutes, (1985), prohibits the Board of Trustees of the

Internal Improvement Trust Fund from levying any charge for materials dredged

from state sovereignty tidal lands or submerged bottom lands when dredged either

1) by or on behalf of the United States or the local sponsor of active

federal navigation projects pursuant to the improvement, construction,

maintenance and operation of those projects or

2) "by a public body authorized to operate a public port facility."

All other public entities which dredge state lands must pay for the dredged

material. Accepting as rational the distinction the Legislature has made in

Section 253.03(10), Florida Statutes, with respect to payment for dredged

material, an analogous distinction made by the Board of Trustees of the Internal

Improvement Fund in administering Section 258.42(3)(a) by the definition enacted

in Rule 18-20.003(26), Florida Administrative Code, is also rational.

16. The district argues it is empowered to perform the same functions as a

port authority and therefore there can be no rational distinction between its

activities and those of a port authority. In Section 315.02(6), Florida

Statutes, the term "port facilities" is defined to mean:

"[H]arbor, shipping, and port facilities, and

improvements of every kind, nature, and

description, including, but without limita-

tion, channels, turning basins, jetties,

breakwaters, public landings, wharves, docks,

markets, parks, recreational facilities,

structures, buildings, piers, storage

facilities, public buildings and plazas,

anchorages, utilities, bridges, tunnels,

roads, causeways, and any and all property

and facilities necessary or useful in

connection with the foregoing, and any one or

more or any combination thereof in any

extension, addition, betterment or

improvement of any thereof."

Under Section 9, Ch. 8919, Laws of Florida (1920), the Jupiter Inlet District

has been statutorily empowered:

"[T]o construct and maintain canals, ditches,

revetments, jetties and other works and

improvements, ... construct a bridge or road-

way over or across said levees, embankments,

highways, railroads or other canal or

waterway in said district ... acquire for and

on behalf of said district, ... such lands,

easements, riparian rights and railroad right

of ways as said board may deem

necessary .... construct, maintain docks,

wharves, buildings and other improvements

upon any of the properties which may be

acquired by virtue of this act, ... charge

and collect for the use of any wharves,

docks, buildings and other structures or

improvements owned by it, ... use, hold,

occupy or control, develop, lease and make

any other disposition of said property which

may be acquired for or on behalf of said

district."

The works of the Jupiter Inlet District are to be carried out "for the public

good and for public use and for the benefit of the inhabitants of said District,

for shipping and transportation purposes and for the extension of the commerce

of the State of Florida and of said District." Id.

17. Whatever the similarities in the language authorizing activities of

the district as compared to the definition of port facilities in Section

315.02(6), Florida Statutes (1985), there is no proof in this record that the

Jupiter Inlet District functions as a port facility. It has maintained channels

in the Loxahatchee River, but it does not operate any commercial center for

receiving shipping recognizable as a port facility. It is not a port authority.

There is no reason that to treat it as if it is a port facility. The Board of

Trustees of the Internal Improvement Fund may treat it differently than a port

facility.

18. Rules of administrative agencies must be sustained if they are

reasonably related to the purposes of the agency's enabling legislation, and are

not arbitrary and capricious. General Telephone Co. of Florida v. Public

Service Commission, 446 So.2d 1063 (Fla. 1984). The definition of public

navigation projects adopted in Rule 18-20.003(26) is a narrow one, but it is

consistent with the Legislative intent which may be gleaned from Section

258.42(3)(a), Florida Statutes to minimize dredging activities in aquatic

preserves.

CONCLUSION

The definition of public navigation projects enacted by the Board of

Trustees of the Internal Improvement Trust Fund in Rule 18-20.003(26), Florida

Administrative Code, has not been shown to be an invalid exercise of delegated

legislative authority, and the Petition herein is accordingly dismissed.

DONE and ORDERED this 27th day of July, 1987, in Tallahassee, Florida.

_________________________________

WILLIAM R. DORSEY, JR.

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of July, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2751RX

Petitioner's proposed findings of fact are addressed as follows:

1. Covered in Finding of Fact 1.

2. Covered in Finding of Fact 2.

3. Covered in Finding of Fact 4.

4. Covered in Finding of Fact 5.

5. Covered in Findings of Fact 6 and 7.

6. Covered in Finding of Fact 7.

7. Covered in Finding of Fact 8.

8. Rejected as legal argument and not a finding of fact.

9. Rejected as unnecessary.

10. Rejected as legal interpretation and not a finding of

fact.

11. Rejected as legal interpretation and not a finding of

fact.

12. Rejected as legal interpretation and not a finding of

fact.

13. Rejected as unnecessary.

14. To the extent appropriate covered in the Conclusions of

Law.

15. To the extent appropriate discussed in the Conclusions

of Law.

17. Covered in Finding of Fact 9.

18. Rejected as unnecessary and for the reasons stated in

Finding of Fact 9.

19-22. Omitted by the Petitioner.

23. Rejected as legal argument and not a finding of fact.

Rulings on the proposals made by the Respondents

1. Covered in Finding of Fact 4.

2. Covered in Finding of Fact 1.

3. Covered in Finding of Fact 4.

4. Covered in the Conclusions of Law.

COPIES FURNISHED:

Thomas M. Beason, Esquire

The Perkins House, Suite 100

118 North Gadsden Street

Tallahassee, Florida 32302

William R. H. Broome, Esquire

801 Spencer Drive, Suite 102

West Palm Beach, Florida 33409

Eugene E. McClellan, Jr., Esquire

Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

Tom Gardner

Executive Director

Department of Natural Resources

3900 Commonwealth Boulevard

Tallahassee, Florida

Carroll Webb, Executive Director

Administrative Procedure Committee

120 Holland Building

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code

1802, The Capitol

Tallahassee, Florida 32301

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.