14-000448 William B. Swaim vs. South Florida Water Management District Status: Closed Recommended Order on Thursday, May 14, 2015.

Summary: Petitioner failed to prove his proposed activities qualified for the seawall construction exemption from permitting.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM B. SWAIM,

Petitioner,

vs. Case No. 14 - 0448

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT,

Respondent.

_______________________________/

RECOMMENDED ORDER

The final hearing in this case was held on March 19 and 20,

2015, in Tallahassee and West Palm Beach, Florida, by video -

teleconference before Bram D.E. Canter, Administrative Law Judge

with the Division of Administrative Hearings (ÐDOAHÑ).

APPEARANCES

For Petitioner: William B. Swaim, pro se

5455 Via Delray

Delray Beach, Florida 33484

For Respondent: Alison L. Kelly, Esquire

South Florida Water Management District

3301 Gun Club Road, Mai l Stop Code 1410

West Palm Beach, Florida 33406

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether

PetitionerÓs proposed activities qualify for the seawall

construction exemption from permitting in section 403 .813(1)(i),

Florida Statutes (2014).

PRELIMINARY STATEMENT

On November 5, 2013, Petitioner submitted an exemption

verification request to the District, requesting verification

that his proposed activities qualify for five types of exemption

from Environme ntal Resource Permit (ÐERPÑ) requirements. On

December 5, 2013, the District issued exemption determination

No. 131105 - 6, which determined that PetitionerÓs proposed

activities qualified for the maintenance dredging exemption, but

not the other four reque sted exemptions.

On December 30, 2013, Petitioner filed a petition for

administrative hearing challenging the DistrictÓs exemption

determination. The District dismissed the initial petition and

Petitioner filed an amended petition on January 10, 2014. T he

amended petition was referred to DOAH to conduct an evidentiary

hearing.

On July 10, 2014, the DistrictÓs Governing Board adopted a

resolution which delegated authority to the Executive Director

to take final action on requests for verification of exem ptions.

Petitioner moved to amend his petition again to include a claim

of procedural error based on the after - the - fact delegation

described above. Following a hearing on the motion, the

Administrative Law Judge placed the case in abeyance and

relinquish ed jurisdiction to the District to correct any

procedural error. On September 24, 2014, the District issued a

revised exemption determination, but it still concluded that

Petitioner only qualified for the maintenance dredging

exemption.

Before the final hearing, Petitioner withdrew his challenge

of the DistrictÓs denial of the requested exemptions except with

respect to the seawall construction exemption. The case

proceeded to hearing solely on PetitionerÓs challenge to the

DistrictÓs determination that Petitioner did not qualify for the

seawall construction exemption.

At the final hearing, official recognition was taken of

Florida Administrative Code Rules 40E - 4.051 and 62 - 312.050;

chapters 40E - 4, 62 - 302, 62 - 330, and 62 - 340; and the ERP

ApplicantÓs Hand book, Volume I and II. Joint Exhibit 1 was

admitted into evidence.

Petitioner testified on his own behalf. PetitionerÓs

Exhibits 2, 3, 9 - 12, 15 - 16, 23, 26, 27, 28, and 29, were

admitted into evidence. PetitionerÓs Exhibits 3, 27, 28, and 29

were ruled h earsay and admitted only to supplement or explain

non - hearsay evidence or evidence for which a hearsay exception

applies. PetitionerÓs Exhibit 47 was placed in the record only

as a proffer.

The District presented the testimony of Rod Maddox, P.S.M.,

who was accepted as an expert in surveying and mapping;

Richard Barnes, P.S.M., who was accepted as an expert in

surveying and mapping; Patrick Ganley; Dr. Jeffrey Eder;

Robert Schaffer, who was accepted as an expert in mapping;

Robert Hopper, R.L.A., P.W.S., who was accepted as an expert in

wetland delineation, wetland mitigation and wetland ecology; and

Robert Robbins, P.W.S., who was accepted as an expert in

saltwater ecology, wetland ecology, and wetland mitigation.

District Exhibits 1 - 3, 6 - 11, 13 - 32, 39 - 4 4, and 52 were admitted

into evidence.

The five - volume Transcript of the final hearing was filed

with DOAH. The parties filed proposed recommended orders that

were considered in the preparation of this Recommended Order.

FINDINGS OF FACT

The Parties

1. The District is a multi - purpose water management district

with its principal office at 3301 Gun Club Road, West Palm Beach,

Florida. It has been granted powers and assigned duties under

chapter 373 , Florida Statutes, to regulate construction activities

in wetlands and other surface waters.

2. Petitioner William B. Swaim is the contract purchaser of

real property located at Section 22, Township 45 South, Range 43

East, Palm Beach County Parcel Identification number

46 - 43 - 45 - 22 - 00 - 005 - 0020 , in the Town of Ocean Ridge, Palm Beach

County (Ðthe propertyÑ or ÐPetitionerÓs propertyÑ).

3. The western side of the property contains a healthy

stand of red mangroves. It is inundated on high tides.

4. The eastern portion of the property is beneath the open

waters of Spanish Creek. This submerged portion contains

productive benthic habitat for a number of fish, invertebrates,

oysters, conchs, clams, mussels, barnacles, and crabs.

5 . The Department of Environmental Protection could not

determine whether Spanish C reek was navigable at the date of

statehood (1845) and, therefore, is subject to a claim of State

ownership under chapter 253, Florida Statutes, as Ðsovereignty

submerged lands.Ñ

6 . Petitioner did not present competent evidence that all

of the land upon which the proposed project would be constructed

is contained within the property which he has contracted to

purchase. Petitioner showed his title would extend to the

centerline of Spanish Creek, but he did not establish where the

centerline is located.

7 . PetitionerÓs evidence was not sufficient to show that he

has a colorable claim to all of the open water area that he

proposes to wall off and fill.

The Proposed Project

8 . In his request for exemption verification, Petitioner

identified the following proposed development activities:

(1) construction of approximately 950 feet of batter pile

concrete seawall around three sides of the approximate

boundaries of the property; (2) filling within the seawalls to

an approximate elevation of 8.0 feet above sea level with

offsite fill; and (3) construction of an access road to the

south of the property.

9 . Petitioner later modified his proposal to construct

1,117 feet of batter pile concrete and steel sheet seawall and

to fill within the seawalls to an appro ximate elevation of 6.0

feet above sea level. At the final hearing, Petitioner withdrew

his plan to place riprap on the outside of the eastern seawall.

Petitioner still proposes to place 300 feet of riprap along the

western boundary of the property.

The Seawall Construction Exemption

1 0 . Section 403.813(1)(i) provides an exemption from

permitting for the following activities:

The construction of private docks of 1,000

square feet or less of over - water surface

area and seawalls in artificially created

waterways where such construction will not

violate existing water quality standards,

impede navigation, or affect flood control.

This exemption does not apply to the

construction of vertical seawalls in

estuaries or lagoons unless the proposed

constructio n is within an existing manmade

canal where the shoreline is currently

occupied in whole or part by vertical

seawalls.

Whether Petitioner Proposes to Construct Seawalls

1 1 . The term ÐseawallÑ is not defined in the statute. It

is defined in section 2 .0(a)91 of the ApplicantÓs Handbook as Ða

man - made wall or encroachment, except riprap, which is made to

break the force of waves and to protect the shore from erosion.Ñ

1 2 . The DistrictÓs definition of ÐseawallÑ is similar to

its dictionary definition a s Ða wall or embankment to protect the

shore from erosion or to act as a breakwater.Ñ WebsterÓs New

Collegiate Dictionary at 1035 (1979).

1 3 . PetitionerÓs proposed project is not intended to

protect a shore from erosion. The property has no shore.

Pet itionerÓs project is more accurately described as construction

of retaining walls to form a frame within which to place fill

dirt so that about three acres of wetlands and open water can be

transformed into uplands. PetitionerÓs purpose is to create a

bui ldable residential lot.

1 4 . PetitionerÓs project is not the construction of

seawalls. Therefore, the proposed seawalls will be referred to

hereafter as walls.

Whether Spanish Creek is an Artificially Created Waterway

1 5 . The term Ðartificially created waterwayÑ is not defined

in section 403.813(1)(i) or in the rules of the District.

However, the term Ðartificial watersÑ is defined in section

2.0(a)10 of the ApplicantÓs Handbook as Ðbodies of water that

were totally excavated from uplands, do not overl ap historic

wetlands or other surface waters, and were not created as a part

of a mitigation plan.Ñ

1 6 . The District interprets the term Ðartificially created

waterwayÑ in section 403.813(1)(i) as having the same meaning as

Ðartificial watersÑ; that is, it does not include natural

waterbodies that have been dredged.

1 7 . The District conducted an extensive review of over 160

years of mapping data, including certified historic maps from the

1800s, aerial photography, the National Wetlands Inventory

databa se, topographic and hydrographic data, soil surveys and

maps, and historic photographs. The evidence clearly establishes

that Spanish Creek is a naturally - occurring waterbody, having

appeared on historic documents since at least 1872.

1 8 . Some dredging was conducted in Spanish Creek, probably

in the 1950s or 1960s. The western portion of PetitionerÓs

property where the red mangroves are located was not dredged.

The preponderance of the evidence indicates that the property

once included a larger area of shallow marsh or mangrove

vegetation and a smaller area of open water, but dredging

decreased the area of vegetated wetlands and increased the area

of open water.

19 . Spanish Creek does not meet the DistrictÓs definition

of Ðartificial watersÑ because i t is not totally excavated from

uplands.

2 0 . Spanish Creek meets the definition of ÐstreamÑ in

section 2.0(a)101 of the ApplicantÓs Handbook, which is Ðany

river, creek, slough, or natural watercourse in which water

usually flows in a defined bed or chan nel.Ñ The definition

includes a statement that Ð[t]he fact that some part of the bed

or channel shall have been dredged or improved does not prevent

the watercourse from being a stream.Ñ

2 1 . PetitionerÓs reference to U.S. Army Corps of Engineers

charact erizations of waters in the area as Ðresidential canalsÑ

is not controlling, nor persuasive. Spanish Creek is not a

canal. Spanish Creek is a natural waterbody, which has been

artificially widened by dredging.

2 2 . Petitioner argues that the plain meanin g of

Ðartificially created waterwayÑ applies to Spanish Creek, but

Ðartificially createdÑ does not have the plain meaning of being

artificially altered. Spanish Creek was altered by dredging .

It was not created by dredging . It was widened by the dredgin g

and probably deepened, at least initially, but no evidence was

presented to compare historical and current depths.

2 3 . Petitioner suggests that Spanish Creek was not a

waterway before it was dredged based on his unproven ass umption

that Spanish Creek w as only navigable after it was dredged.

However, the first dictionary entry for ÐwaterwayÑ is Ða way or

channel for water.Ñ WebsterÓs New Collegiate Dictionary , at

1314. Spanish Creek was a way or channel for water before it was

dredged.

2 4 . Spanish C reek is not an artificially created waterway.

Whether the Project Would Violate Water Quality Standards

2 5 . Other than submitting a turbidity control plan that

Petitioner adapted from a plan he found in the District files for

another project, Petitioner did not address water quality issues

in his request for exemption verification. At the final hearing,

Petitioner did not present competent evidence regarding the

potential water quality impacts associated with his proposed

project.

2 6 . Petitioner is pr oposing to construct an access road

that will be located on properties owned by Palm Beach County and

Spanish Creek, LLC, which currently consist of mangrove wetlands,

but he has not obtained their permission for the construction.

2 7 . The area contains m uck soils, which would have to be

removed to construct the road. Petitioner did not address with

competent evidence the potential water quality impacts associated

with th e muck removal.

2 8 . Petitioner stated that if he is unable to transport the

muck an d fill material over the access road , he will use a barge

and tug boat. Because of the shallow depth of Spanish Creek,

these vessels would likely disturb the submerged soils and the

organisms that live in or use these soils.

29 . PetitionerÓs proposed pr oject would extend a box -

shaped land form into the open waters of Spanish Creek that

would affect water currents and sediment movement. Tidal

flushing would be impeded. Erosion would likely be caused by

currents and waves reflecting off and flowing aroun d the

proposed walls. S hoaling would likely occur .

3 0 . Petitioner did not present competent evidence that the

proposed construction activities can be conducted without

causing violations of state water quality standards. The

preponderance of the eviden ce indicates that PetitionerÓs

proposed activities would violate state water quality standards

for turbidity, dissolved oxygen, and species diversity in the

area.

Whether the Project Would Impede Navigation

3 1 . The proposed project would cause a substan tial

narrowing of Spanish Creek , leaving about 75 feet of open water

between the eastern wall of PetitionerÓs p roperty and the

Wellington Arms Condominium seawall.

3 2 . Wellington Arms has docks which extend out 34 feet from

its seawall. The docks are cu rrently being used for boats that

extend beyond the end of the docks. Less than 40 feet would

separate the vessels moored at Wellington Arms from PetitionerÓs

proposed eastern wall.

3 3 . If PetitionerÓs proposed project were built,

m aneuvering a boat in and out of the docks at Wellington Arms or

between the docks and PetitionerÓs proposed eastern wall would be

difficult . It would be unsafe in windy conditions.

3 4 . The proposed project would impede navigation.

Whether the Proposed Project Would Affect Flood Control

3 5 . The District presented evidence to support its

contention that the proposed project would affect flood control,

but the evidence was not persuasive. The property is surrounded

by waters of the Intracoastal Waterway and Atlantic Ocean a nd the

DistrictÓs evidence did not adequately explain how the project

could have more than an insignificant effect on these dominant

forces which determine water levels in the area.

Whether Petitioner Proposes Only Backfilling

3 6 . Rule 62 - 330, entitled ÐExempt Activities,Ñ is

applicable to all exemption requests. Rule 62 - 330.051(12)(a)

addresses the exemption for construction of seawalls and states

that the exemption includes Ðonly that backfilling needed to

level the land behind seawalls.Ñ

3 7 . Petiti oner proposes to fill approximately three acres

behind the walls. Currently, there is no land (uplands) behind

the proposed walls to level. The purpose of the fill is not to

level land behind the walls. The purpose of the fill is to

create a buildable l ot.

3 8 . Petitioner does not know how much fill is required to

stabilize the walls. Less than three acres of fill is required.

39 . PetitionerÓs proposed project does not include only

that backfilling needed to level the land behind the walls.

CONCLUSIO NS OF LAW

4 0 . An administrative hearing held pursuant to sections

120.569 and 120.57(1), Florida Statutes, is a de novo proceeding

designed to formulate final agency action. McDonald v. DepÓt of

Banking and Finance , 346 So. 2d 569, 584 (Fla. 1st DCA 197 7).

4 1 . Because Petitioner is the party asserting the

affirmative of the issue of the proceeding -- that he qualifies for

the seawall construction exemption -- he has the burden of ultimate

persuasion . DepÓt of Transp. v . J.W.C. Co., Inc. , 396 So. 2d

778, 78 8 (Fla. 1st DCA 1981).

4 2 . Petitioner must prove the material facts that establish

his entitlement to the exemption by a preponderance of the

evidence. See § 120.57(1)(j), Fla. Stat.

4 3 . An agencyÓs interpretation of the statutes and rules

it adminis ters is entitled to deference and should be upheld

unless it is clearly erroneous. See Suddath Van Lines, Inc. v.

DepÓt of Envtl. Prot. , 668 So. 2d 209, 212 (Fla. 1st DCA 1996).

4 4 . The DistrictÓs interpretation of the statutory term

Ðartificially creat ed waterwaysÑ to exclude natural waterbodies

that have been dredged is a reasonable one. It furthers the

legislative intent reflected in all of the exemptions created in

section 403.813 that the exemptions apply to activities which

will have little or no adverse effect on natural resources.

4 5 . Whether Spanish Creek contains state sovereign

submerged lands is not a controlling factor in determining

whether a proposed seawall qualifies for an exemption under

section 403.813(1)(i).

4 6 . Petitioner contend s that the seawall construction

exemption only requires him to provide turbidity controls. There

is no such limitation in the statute. All state water quality

standards are applicable.

4 7 . PetitionerÓs proposed project does not qualify for the

exemptio n for seawall construction in section 403.813(1)(i)

because (1) it does not propose seawalls, but, rather, retaining

walls to hold fill material; (2) the project is not in an

artificially created waterway; (3) the project would violate

state water quality standards; (4) the project would impede

navigation; and (5) the project includes more backfilling than

needed to level the land behind the walls.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Dist rict enter a Final Order

determining that PetitionerÓs proposed development activities do

not qualify for the seawall construction exemption from

permitting under section 403.813(1)(i), Florida Statutes.

DONE AND ENTERED this 14th day of May , 2015 , in

Tall ahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 9 21 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of May , 2015 .

COPIES FURNISHED:

Alison L. Kelly, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 334 06

(eServed)

William B. Swaim

5455 Via Delray

Delray Beach, Florida 33484

(eServed)

Blake C. Guillory, Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

(eServed)

Kirk Burns, General Counsel

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. An y exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.