93-003970 St. Johns County Board Of County Commissioners vs. Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, November 30, 1993.

Summary: Per rules, DEP prohibited driving motor vehicles on beaches of Guana River Park and Preservd. County does not have jurisdiction; prohibition valid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF COUNTY COMMISSIONERS )

OF ST. JOHNS COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3970

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On August 26, 1993, a formal administrative hearing was held in this case

in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer, Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel J. Bosanko, Esquire

Assistant County Attorney

St. Johns County

Post Office Box 1533

St. Augustine, Florida 32085-1533

For Respondent: Edwin A. Steinmeyer, Esquire

Barrie J. Sawyer, Esquire

Assistant General Counsel

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

The issue in this case is whether the Respondent, the Department of

Environmental Regulation (DEP), should prohibit the driving of motor vehicles on

the beaches on the Atlantic Ocean beaches in St. Johns County that are within

the Guana River Marsh Aquatic Preserve (the Preserve).

PRELIMINARY STATEMENT

On July 8, 1993, the Petitioner, St. Johns County (the County) filed two

proceedings at the Division of Administrative Hearings: (1) a "Section

120.535(2), Florida Statutes, Petition to Invalidate an Agency Policy Statement

on the Grounds that it has not been Adopted as a Rule in Accordance with Section

120.54, Florida Statutes"; and (2) a "Section 120.56, Florida Statutes, Petition

to Invalidate Portions of Rule 16D-2.002 Florida Administrative Code in that

they are an Invalid Exercise of Delegated Authority in Relation to St. Johns

County." The former was given Case No. 93-3842RU, and the latter was given Case

No. 93-3875RX. Both were assigned to the undersigned hearing officer on July

15, 1993.

At the same time, the County filed with the Department of Environmental

Protection a "Petition Challenging the Validity of Agency Action and Request for

Formal Proceedings pursuant to Section 120.57(1), Florida Statutes."

A prehearing conference was conducted by conference telephone call on July

21, 1993. The parties advised that the Section 120.57(1) petition was in the

process of being referred to the Division of Administrative Hearings and

requested that all three cases be consolidated for final hearing on August 26-

27, 1993, at the Division of Administrative Hearings in Tallahassee. (The

Section 120.57(1) case was referred later on July 21, 1993, and was given

Division of Administrative Hearings Case No. 93-3970.) The parties' request was

granted by entry of an Order Consolidating Cases, a Notice of Hearing, and a

Prehearing Order (requiring prehearing conferences and a prehearing

stipulation.)

On August 13, 1993, the County filed a "Section 120.54, Florida Statutes,

Petition Challenging Proposed Amendment to Rule 18-20.004 Florida Administrative

Code as an Invalid Exercise of Delegated Authority." The proposed amendment

incorporated by reference the Guana River Marsh Aquatic Preserve Management Plan

(the Management Plan), including the prohibition against driving on the Atlantic

Ocean beaches in the Preserve. The proposed rule challenge also was assigned to

the undersigned hearing officer and was given DOAH Case No. 93-4533RP.

Unopposed motions for leave to amend the petitions in the other cases, and

an unopposed Motion to Consolidate Case No. 93-4533RP with the other cases, also

were filed on August 13, 1993. On August 17, 1993, an Order Consolidating Cases

and Granting Leave to Amend Petitions was entered.

On August 23, 1993, the County filed second motions for leave to amend its

petitions in Case Nos. 93-4533RP and 93-3970. On the record of the final

hearing, DEP stated that it had no objection, and the motions were granted.

On August 24, 1993, the County filed a voluntary dismissal of its petition

in Case No. 93-3842RU. The dismissal was based on the DEP's assurance that it

was proceeding with the proposed rule amendment challenged in Case No. 93-4533RP

and that it would not enforce the provisions of the proposed amendment to F.A.C.

Rule 18-20.004 to prohibit driving on the Atlantic Ocean beaches in the Preserve

until the resolution of Case No. 93-4533RP.

At the final hearing, the parties had Joint Exhibits 1 and 2 admitted in

evidence. Without objection, the County also had Petitioner's Exhibits 1

through 6 admitted in evidence. (Petitioner's Exhibit 2 was a videotape

depicting a drive along the beach in question, which was viewed during the

hearing.) Without objection, the DEP had Respondent's Exhibits 1 and 3 through

5 admitted in evidence. (Respondent's Exhibit 2 was not identified. It related

to Case No. 93-3842RU, which was dismissed.) The County called three witnesses,

and the DEP called one.

At the end of the presentation of the evidence, the parties ordered the

preparation of a transcript of the final hearing and requested 20 days from the

filing of the transcript in which to file proposed orders. The transcript was

filed on September 9, making the proposed orders due by September 29, 1993.

Explicit rulings on the proposed findings of fact contained in the parties'

proposed recommended orders may be found in the attached Appendix to Recommended

Order, Case No. 93-3970.

FINDINGS OF FACT

1. The Guana River Marsh Aquatic Preserve (the Preserve) is state-owned

property. Title is held by the Board of Trustees of the Internal Improvement

Trust Fund. It includes some 13 miles of Atlantic Ocean beach within St. Johns

County.

2. Within the boundaries of the Preserve is included the Guana River State

Park (the Park). It, too, is state-owned. It is managed and operated by the

Division of Recreation and Parks (the DRP) of the Department of Environmental

Protection (the DEP). Some of the Preserve's Atlantic Ocean beaches are

included within the boundaries of the Park.

3. The "wet sand," or "hard sand," area of the Atlantic Ocean beaches in

the Preserve is the area of the beach between mean high water and mean low

water. The mean high water line is essentially the landward extent of the ocean

at mean high tide; the mean low water line is essentially the landward extent of

the ocean at mean low tide. When the tide is low, this entire area of the beach

is exposed. It remains wet and, generally, relatively hard-packed during the

time it is exposed. However, there are beds of "red shell" in this part of the

beach that are softer. In the summer, this part of the beach averages

approximately 50 feet in width. In the winter, when the waves and tides

generally are higher, it is narrower.

4. In the Preserve, the mean high water line usually is indicated both by

debris washed up during the highest tides and left on the beach and by a

"shelf." This "shelf," made by the erosive action of the ocean waves during the

highest tides and during storms, rises at an angle of approximately 45 degrees

and can be from one to four or five feet high. Landward of this shelf is the

"dry sand" or "soft sand" beach, also sometimes referred to as the "upper

beach." It extends landward from the mean high water line to the vegetation

line, where the dunes start. Usually, some pioneer vegetation is found in the

uppermost reaches of this part of the beach, forming what is called the

"foredune" area of the beach.

5. The tides along the Atlantic Ocean beaches in the Preserve are semi-

diurnal, i.e., there usually are two high tides and two low tides a day. These

high and low tides last approximately one hour, and each day they occur

approximately an hour later than they did the day before.

6. There are five beach access points with motor vehicle parking areas

located along U.S. Highway A1A within the Preserve. Three are within the Park.

There is parking for approximately 120, 68, 79, 42 and 25 vehicles in these five

parking areas. There also is a current proposal for the addition of three more

access points in the Park, with parking for a total of 340 vehicles, five beach

bathhouses, and five pedestrian overpasses.

7. There are many other places where pedestrians can walk from A1A to the

beaches, including 30 County-controlled access points. But there are no lawful

parking areas adjacent to any of these other access points at this time, and

parking on the right-of-way of A1A is prohibited.

8. Currently, the only lawful motor vehicle access to the Atlantic Ocean

beaches in the Preserve is to the south of the Preserve. Prior to the agency

action challenged in these proceedings, motor vehicles lawfully could be driven

onto the beach at this access point and be driven north into the Preserve, so

long as they remained below the mean high water line. A former access near the

north end of the Preserve has been cordoned off. To leave the Preserve, motor

vehicles would have to be turned around and driven back south to the same motor

vehicle access point.

9. Due to the restricted access to the Atlantic Ocean beaches in the

Preserve, not much use is made of those beaches. In comparison, beaches to the

south are used much more heavily. Of the relatively few who use the motor

vehicle access to the south and drive on the beach north through the Preserve,

some ultimately use the beaches to picnic, swim, surf, beach-comb and similar

activities; some probably just drive on the beach. There was no evidence

quantifying the uses currently being made of the beaches in the Preserve.

10. In the past, homemade motor vehicles called "skeeters" were built with

a light-weight chassis and over-sized wheels. They were used for driving on

both the hard and soft areas of the beaches, as well as illegally in the dunes.

This practice has been curtailed due to better enforcement of the prohibitions

against driving in the dunes, a generally heightened environmental consciousness

among the public, and prohibitions against driving the "skeeters" on public

highways. Generally, there has been less driving on the beaches of the Preserve

in recent years, although the practice persists at a reduced level.

11. At all times of the year, it sometimes is impossible to drive along

the entire length of the beaches in the Preserve without driving on the soft

sand area. This is especially true during the winter months when the waves and

tides are higher and storms are more frequent. But even in the summer months,

there are times when "red shell beds" in the "wet sand" part of the beach must

be circumvented to avoid getting stuck. Especially when the tide is not at its

lowest, the only way to avoid some of these "red shell" beds is to drive over

the "shelf" and onto the "soft sand." Depending on the tides, this may also be

necessary in order to turn a vehicle around on the beach. In many places, the

"soft sand" area is not very wide, and it would be necessary under those

circumstances to drive in the "foredune" area.

12. The times of the daily high and low tides can be obtained relatively

easily by members of the public. But there is no assurance that all persons who

would drive on the beaches would know the times of the tides. Nor is there any

assurance that persons who drive the "wet sand" or "hard sand" part of the

beaches at low tide also would plan to both start their beach drive and their

return trip during low enough tides to be able to avoid driving on the "soft

sand" part of the beach. For these and other reasons, it would be difficult, if

not practically impossible, to effectively monitor beach driving throughout the

Preserve and consistently enforce a restriction to driving only on the "wet

sand" or "hard sand" areas of the beach.

13. In the summer months, sea turtles lay eggs in nests dug in the sand of

the foredune and dune areas of the Atlantic Ocean beaches in the Preserve.

After a period of incubation in the nests, the turtle hatchlings dig themselves

out of the nests and crawl to the ocean to begin their lives in the sea.

Driving motor vehicles over nests on those parts of the beaches in the summer

months could crush eggs in their nests or pack the sand hard enough to reduce

the number of hatchlings that emerge from the nest alive. In addition, driving

motor vehicles in these area, even in other parts of the year, can leave ruts in

the beach that disorient hatchlings that leave the nests in summer so that fewer

reach the ocean alive.

14. Sea turtles crawl out of the ocean to their nest sites at night.

Artificial lighting can disturb their nesting and egg-laying activities.

However, it seems that moving lights, or lights that turn on and off (in the

manner of car lights), create more of a disturbance than stationary lights, such

as those more often found at residences along the beaches in the Preserve. The

Management Plan does not prohibit artificial lighting along the beaches in the

Preserve, but it recommends that further attention be given to this problem and

that ways to address the problem be explored and pursued in cooperation with the

County.

15. Various shore birds, including the threatened least tern, make their

nests in the foredune area of the beaches in the Preserve. Driving on the

foredunes destroys and disturbs nesting habitat and disturbs the nesting

activities of these birds. In addition, both these ground nesting shore birds

and a variety of migratory birds make use of different areas of the beaches to

rest and feed. Driving on the beaches disturbs these activities, as well. The

only known nesting colony of least terns in St. Johns County is located in the

Park, where beach driving is prohibited.

16. The Division of Parks and Recreation (DPR) of the Department of

Environmental Protection (DEP) has utilized F.A.C. Rule 16D-2.002(4)-(5) to

prohibit driving or parking motor vehicles on the beaches of the Park by not

designating the beaches as driving or parking areas within the Park. At least

parts of the beaches in the Park have been posted as areas where driving motor

vehicles is prohibited.

17. In order to develop a management plan for the Preserve, the manager of

the Preserve personally researched the geology, climate and natural resources of

the Preserve, as well as the records of the County, and also collected data

pertaining to the Preserve from several state agencies. Over the course of a

year, the manager's input was taken into consideration, and a management plan,

called the Guana River Marsh Aquatic Preserve Management Plan (the Management

Plan), was developed for the Preserve. It was adopted by the Board of Trustees

of the Internal Improvement Trust Fund on December 17, 1991.

18. The Management Plan recites in pertinent part:

At the present time, motorized vehicular

traffic is permitted, by county ordinance,

below the natural vegetation line on the

beaches adjacent to the Atlantic Ocean in St.

Johns County. Vehicles are not allowed on

the 4.2 miles of beach within Guana River

State Park. The coarse coquina sand and

steep profiles of the beaches in the preserve

make driving on the wet sand area difficult.

Drivers are forced to cross the dry sand

area, damaging the foredunes, pioneer dune

vegetation and sea turtle nesting habitat.

Due to the negative environmental impacts

resulting from this activity, motorized

vehicular traffic shall not be considered an

authorized activity on sovereign submerged

lands within [Prime Resource Protection Area]

PRPA beach management areas of the preserve,

and therefore will be prohibited.

Under the Management Plan, all of the Atlantic Ocean beaches in the Preserve are

Prime Resource Protection Area, and the driving of motorized vehicles on them is

prohibited.

19. On June 11, 1993, the DEP's DRP sent St. Johns County a letter

advising that, based on the Management Plan, DEP no longer would permit the

driving of motor vehicles on the Atlantic Ocean beaches in the Preserve. The

proposed amendment to F.A.C. Rule 18-20.004(7), incorporating the Management

Plan, was noticed in the Florida Administrative Weekly on August 6, 1993. On or

about August 18, 1993, the DEP agreed not to enforce the beach driving

prohibition in the Preserve until these cases are resolved.

CONCLUSIONS OF LAW

20. F.A.C. Rule 16D-2.002, dealing with vehicles and traffic in state

parks, provides in pertinent part:

(4) Restriction to Roads. No person shall

drive any vehicle on any area except

designated roads, parking areas, or other

such designated areas.

(5) Parking. All vehicles shall be parked

only in established parking areas or in such

other areas and at such times as the Division

may designate.

Utilizing this rule, the Division of Parks and Recreation (DPR) of the

Department of Environmental Protection (DEP) has prohibited driving or parking

motor vehicles on the beaches of the Park by not designating the beaches as

driving or parking areas within the Park.

21. The proposed amendment to F.A.C. Rule 18-20.004, dealing with

management policies, standards and criteria for state aquatic preserves,

incorporates by reference the Guana River Marsh Aquatic Preserve Management Plan

(the Management Plan), including the beach driving prohibition in the Management

Plan.

22. In separate proceedings, under DOAH Case Nos. 93-3875RX and 93-4533RP,

the County has challenged the validity of both F.A.C. Rule 16D-2.002(4)-(5) and

the proposed amendment to F.A.C. Rule 18-20.004. The County argued three

essential grounds for its challenges: (1) the County, not the DEP, has

jurisdiction over vehicular traffic on the Atlantic Ocean beaches in St. Johns

County; (2) even if the County no longer has jurisdiction over vehicular traffic

on the coastal beaches, the DEP's jurisdiction is significantly limited, by

Section 258.43(1), Fla. Stat. (1991), "provide regulation of human activities

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"; and (3) that the prohibition of all beach

driving on the beaches in the Preserve and in the Park is overly broad in that a

prohibition against driving only during the winter season, or a restriction to

driving only at low tide, would have been sufficient to achieve the State's

purposes.

23. In a Final Order entered in DOAH Case Nos. 93-3875RX and 93-4533RP on

this date, the County's challenges have been denied. First, the Board of

Trustees of the Internal Improvement Trust Fund has jurisdiction over the Park

and has delegated its jurisdiction to the DEP, and the DRP of the DEP has

jurisdiction over the Park; the County no longer has jurisdiction to authorize

vehicular traffic on beaches within the Park and within the Preserve. Second,

the mention of fishing, boating and swimming in Section 258.43(1), Fla. Stat.

(1991), was intended to exclude beach driving, and the prohibition against

driving motor vehicles on the beaches in the Preserve does not unreasonably

interfere with any lawful and traditional public uses of the Preserve. Finally,

a complete prohibition against driving motor vehicles on the beaches in the

Preserve and in the Park is not unreasonable or overly broad.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the Respondent, the Department of Environmental Protection

enter a final order enforcing the prohibitions contained in both F.A.C. Rule

16D-2.002(4)-(5) and the proposed amendment to F.A.C. Rule 18-20.004 against the

driving of motor vehicles on the beaches on the Atlantic Ocean beaches in St.

Johns County that are within the Guana River Marsh Aquatic Preserve.

RECOMMENDED this 30th day of November, 1993, in Tallahassee, Florida.

___________________________

J. LAWRENCE JOHNSTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division

of Administrative Hearings this

30th day of November, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3970

To comply with the requirements of Section 120.59(2), Fla. Stat. (1991),

the following rulings are made on the parties' proposed findings of fact:

Petitioner's Proposed Findings of Fact.

1. Accepted and incorporated.

2.-6. Accepted and incorporated to the extent not subordinate or

unnecessary.

7. Subordinate and unnecessary.

8.-9. Accepted and incorporated to the extent not subordinate or

unnecessary.

10. First sentence, rejected as not proven. There also is access by boat

and, albeit over longer distances, by foot.

11. Accepted and incorporated to the extent not subordinate or

unnecessary.

12. Accepted in part and rejected in part, as reflected in the Findings of

Fact.

13. Accepted as representative of dead low tide. Subordinate and

unnecessary.

14. Accepted and incorporated.

15. Rejected in part: in that there are "red shell beds" in summer, too,

and they can force drivers onto the "soft sand" areas in summer, too, depending

on the tides; in that "dramatically" is argument and not proven; and in that

Exhibit 2 depicts dead low tide in summer.

16. Accepted but subordinate and unnecessary.

17. Rejected as not proven. (Enforcement of such mitigation would be

impracticable or impossible.)

18. Accepted but subordinate and unnecessary.

19. Accepted and incorporated.

20.-21. First sentence, accepted and incorporated. Second sentence,

accepted that the County uses "due care," but enforcement of a prohibition

against driving anywhere except on the "hard sand" is impracticable or

impossible.

22. Rejected as not proven.

23. Accepted but subordinate and unnecessary.

24. Rejected as not proven that there is "no way to get to many beach

areas" or that limited access "restricts traditional use." (Access as limited,

or more limited, is "traditional.")

25.-27. Accepted and incorporated.

28. Rejected as not proven. (How easy it is depends entirely on the tide,

the number and location of people on the beach, and the presence of "red shell"

beds.)

29. Accepted and incorporated.

Respondent's Proposed Findings of Fact.

1.-3. Accepted and incorporated except to the extent conclusion of law and

unnecessary.

4. Accepted and incorporated.

5. Accepted but subordinate and unnecessary.

6.-20. Accepted and incorporated to the extent not concluson of law,

subordinate or unnecessary.

21.-24. Rejected as being conclusion of law.

25.-33. Accepted and incorporated to the extent not subordinate or

unnecessary.

34. Rejected as conclusion of law as to who is "responsible."

35.-54. Accepted and incorporated to the extent not subordinate or

unnecessary.

55. Rejected as not proven. Also, conclusion of law.

COPIES FURNISHED:

Daniel J. Bosanko, Esquire

Assistant County Attorney

St. Johns County

Post Office Box 1533

St. Augustine, Florida 32085-1533

Edwin A. Steinmeyer, Esquire

Barrie J. Sawyer, Esquire

Assistant General Counsel

Department of Environmental Protection

Mail Station 35

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Kenneth Plante, Esquire

General Counsel

Department of Environmental Protection

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Department of Environmental

Protection written exceptions to this Recommended Order. All agencies allow

each party at least ten days in which to submit written exceptions. Some

agencies allow a larger period within which to submit written exceptions. You

should consult with the Department of Environmental Protection concerning its

rules on the deadline for filing exceptions to this Recommended Order.