DEP07-0331
STATE OF FLORIDA
DEPARTMENT OF ENVIRONMENTAL PROTECTION
RETREAT OF SOUTH WALTON COUNTY
HOMEOWNERS ASSOCIATION, INC.,
Petitioner,
vs.
OGC No. 06-0996
DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Respondent.
/
FINAL ORDER
STATEMENT OF THE ISSUE
The question presented is whether the project proposed by the Retreat of South Walton
County Homeowners Association (Retreat) at application file number WL-894 GP is eligible for
use of a General Permit under Rule 62B-34.060, Florida Administrative Code (F.A.C.).
PRELIMINARY STATEMENT
On March 31, 2006, the Florida Department of Environmental Protection (DEP) notified
the Retreat that its request for use of a general permit for activities seaward of the coastal
construction control line was denied. On April 21, 2006, the Retreat petitioned the DEP
determination alleging that there are no disputed issues of material fact and that the sole ultimate
fact to be determined is
whether or not a buried sand-filled geotube textile as part of a dune restoration
and remediation project constitutes ‘armoring’ within the meaning of the Florida
Statutes and whether a general permit for dune restoration and remediation may
be issued with regard to the use of geotextile tubes as a foundational core for a
dune bluff restoration and remediation project as opposed to permitting as
‘armoring.’
Because the petition asserted that there are no disputed issues of material fact, the matter
was not referred to the Division of Administrative Hearings but proceeded pursuant to
§120.57(2) of the Florida Statutes (F.S.). By order entered June 30, 2006, the matter was
assigned to the undersigned as Presiding Officer and the parties were invited to present written
argument. The Retreat submitted its Memorandum of Law on September 12, 2006, and the DEP
responded, after obtaining a short uncontested extension of time, on October 16, 2006. Oral
presentations were made in Tallahassee, FL, on January 16, 2007.
FACTUAL MATTERS
1.
On March 31, 2006, the DEP notified the Retreat that its application for use of the
general permit authority of rule 62B-34.060, F.A.C. (General Permit) to perform certain
activities referred to as “The Retreat Erosion Control Project” (project) was denied. (Unless
otherwise stated, all references to rules are to rules promulgated in the Florida Administrative
Code in effect on the date of this Final Order.) The basis for the denial, as recited in the DEP
notification, was two-fold: first, that “as of the date of this final order, a completed application
has not been received” 1 and second that “[t]he proposed activity consists of a dune restoration
project with a geotextile sand bag structure as its core. The sandbag structure is defined as an
armoring structure by rule 62B-33.002(5), F.A.C., and therefore is not eligible for a general
permit.”
2.
In the cover letter to its application2, signed by Michael R. Dombrowski, PE, the
Retreat generally described the project as:
“1.) the installation of a 770 linear foot single textile tube (westside) and a 1,960 linear feet of a two-tiered (stacked) geotextile
tubes to the east of the single tube installation. Approximately
8,500 cubic yards of sand will be used to fill the tubes;
2.) construction of 2,750 linear foot dune enhancement to mitigate
for historic dune erosion caused by storm events consisting of
approximately 32,000 cubic yards of beach compatible, clean
white sand trucked onto the site from an off-site upland borrow
1
During oral presentations held in Tallahassee on January 16, 2007, the DEP asserted that it abandoned
incompleteness of the application as a basis for denial of use of the General Permit.
2
The letter is dated December 31, 2005 and was stamped as received by DEP January 5, 2006.
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area. The sand will be placed on the seaward face of the
escarpment and shaped with heavy equipment;
3.) planting the dune with approximately 60,000 native dune
vegetation…”
3.
Permit jurisdiction is not at issue as both parties agree that the project is located
within DEP coastal construction permitting jurisdiction.
4.
In it’s Memorandum of Law in Support of Amended Petition for Formal
Administrative Hearing (Memorandum)3, the Retreat set forth a number of facts that it claimed
were undisputed. In its Response to Petitioner’s Memorandum of Law (Response), the DEP
disputed three of these “facts”: that the “project would provide enhanced stability in the face of
future storm damage”; that the DEP “routinely” allows use of the general permit process for
dune restoration projects using wire and wood fences and textile barriers; and that the Retreat
submitted it application with a “statutory notice to proceed.” None of these disputed "facts" are
material to resolution of the underlying dispute for the following reasons:
a.
The Retreat asserts and the DEP disputes that the “project would provide
enhanced stability in the face of future storm damage.” Even if this assertion is taken to
be true, however, it does not affect whether the project is or is not “armoring” or whether
the project is within the class of activities authorized by the General Permit. Therefore
the assertion that the project would enhance stability is not material to resolution of the
underlying dispute.
b.
The Retreat also asserts and the DEP disputes that the DEP “routinely”
allows use of the general permit process for dune restoration projects using textile, wire,
and wood fences. Likewise, even if this assertion is taken as true, it does not affect
whether the project is or is not “armoring” or whether it is within the class of activities
authorized by the General Permit since the proposed project is undisputedly not a fencing
Although the Memorandum is entitled “Memorandum of Law in Support of Amended Petition for Formal
Administrative Hearing”, no Amended Petition was filed with DEP.
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proposal. Therefore the assertion is also not material to resolution of the underlying
dispute.
c.
Finally, the Retreat asserts that it submitted a “statutory notice to proceed”
with its application. This assertion appears to be a reference to the rule requirement for
“notice of intent to proceed” since it is undisputed that the DEP denied use of the General
Permit.
5.
There are, therefore, no disputed material facts and the sole question presented is
whether the proposed project is within the class of projects authorized by the General Permit
established by Rule 62B-34.060, F.A.C.
PARTY POSITIONS
6.
The Retreat’s Memorandum asserts that even if dune restoration using geotubes is
determined to be “armoring” use of the General Permit must be available to prevent an
unconstitutional result because other DEP permitting rules do not provide individual permits for
projects such as the proposed one; that the DEP rule definition of “armoring”, is an
impermissible construction of statute; and that the proposed project is entitled to use of the
General Permit as “landscaping”. During oral presentation, counsel for the Retreat argued that
the Retreat, as a landowner, has a common law right to protect property; that the right is reflected
in Chapter 161 of the Florida Statutes; that DEP rules at chapter 62B-33, F.A.C., do not properly
implement the statutory right and that the General Permit is therefore the only authorization
available to the Retreat.
7.
The DEP’s Response asserts, and counsel for DEP restated during oral
presentation, that the DEP rules clearly define use of buried geotubes as “armoring” and the
proper forum for disputing the definition is a rule challenge; that DEP rules provide for
individual permitting under chapter 62B-33, F.A.C., for projects involving “armoring”; and that
the Retreat has not applied for a permit under rule chapter 62B-33, F.A.C. The DEP also argues
that rule chapter 62B-33, F.A.C., does not absolutely preclude some sort of permit for the
Retreat.
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CONCLUSIONS OF LAW
8.
The DEP’s statutory authority for creating general permits for activities seaward
of a Coastal Construction Control Line (CCCL) is section 161.053(19), F.S., which provides
that:
The department is authorized to grant general permits for projects, including dune
walkovers, decks, fences, landscaping, sidewalks, driveways, pool resurfacing,
minor pool repairs, and other nonhabitable structures, so long as these projects,
due to the type, size, or temporary nature of the project, will not cause a
measurable interference with the natural functioning of the beach dune system or
with marine turtles or their nesting sites. In no event shall multifamily habitable
structures qualify for general permits.
However, single-family habitable
structures which do not advance the line of existing construction and satisfy all
siting and design requirements of this section may be eligible for a general permit
pursuant to this subsection. The department may adopt rules to establish criteria
and guidelines for use by permit applicants.
9.
Pursuant to the authority granted by the statute, the DEP has established two
General Permits. Rule 62B-34.070, F.A.C., establishes a general permit for single-family
dwellings and is not at issue in this matter. Rule 62B-34.060, F.A.C., establishes a general
permit for new construction of a “non-habitable major structure,” as well as repair and rebuilding
of, additions to, and minor structures and activities associated with a non-habitable major
structure. The application procedures for both General Permits are adopted at rules 62B-34.030
and 62B-34.040, F.A.C. The general conditions applicable to both General Permits are adopted
in rule 62B-34.050, F.A.C. Rule 62B-34.020, F.A.C., specifies that the purpose of chapter 62B34, F.A.C., is to implement section 161.053(19), F.S., and states also that: “[s]trict compliance
with all of the terms, conditions, requirements, limitations, and restrictions applicable to a
desired General Permit under this rule chapter is required to qualify for such a permit.”
10.
The term “non-habitable major structures” is defined at rule 62B-34.010(11),
F.A.C., as
structures, which, as a result of design, location, or size could cause an adverse
impact to the beach and dune system and are designed primarily for uses other
than human occupancy. Typically included within this category are roads,
bridges, storm water outfalls, bathhouses, cabanas, decks, swimming pools and
garages.
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11.
The DEP also implements other permitting authority pursuant to Chapter 161 of
the Florida Statutes, providing for individual permits at rule chapter 62B-33, F.A.C., including
permitting of Coastal Armoring and Related Structures at rule 62B-33.0051, F.A.C.
12.
Section 161.085, F.S., specifically addresses “Rigid Coastal Armoring
Structures,” and includes, at subsection (9), the following:
The department, or an agency, political subdivision, or municipality described in
subsection (3), may authorize sand-filled tubes or similar structures proposed as
the core of a restored dune feature if the applicant meets the requirements of this
section and:
(a) Demonstrates that the United States Fish and Wildlife Service has
approved a habitat conservation plan that includes the shoreline where each
structure will be placed;
(b) Provides reasonable assurance that adequate sand cover will be
maintained over the structure such that the structure will not interact with the
beach dune system as rigid coastal armoring or adversely affect marine turtle
nesting and provides for a responsible entity to conduct such maintenance;
and
(c) Provides reasonable assurance that each structure will be removed if the
maintenance required by paragraph (b) proves to be not feasible.
13.
Rule 62B-33.0051(2)(b)7, F.A.C., provides that:
Armoring which utilizes subsurface sand-filled geotextile
containers as the subsurface core for dune stabilization or restoration
activities is acceptable where it can be demonstrated that there is no
unauthorized take of marine turtles or marine turtle habitat and the
shoreline conditions are such that sufficient sand cover over the structure
will be retained except when the structure interacts with waves or wave
uprush during low frequency or high energy storm events.
14.
“Armoring” is defined at rule 62B-33.002(5), F.A.C., as follows:
"Armoring" is a man-made structure designed to either prevent
erosion of the upland property or protect eligible structures from the
effects of coastal wave and current action. Armoring includes certain
rigid coastal structures such as geotextile bags or tubes, seawalls,
revetments, bulkheads, retaining walls, or similar structures but does not
include jetties, groins, or other construction whose purpose is to add
sand to the beach and dune system, alter the natural coastal currents, or
stabilize the mouths of inlets.
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15.
The plain language of the authorizing statutes and implementing DEP rules
describe the buried sand-filled tube portion of the Retreat project as “armoring” subject to
permitting under rule chapter 62B-33, F.A.C. “One of the first rules of statutory construction is
that the plain meaning of the statute is controlling.” Beshore v. Department of Financial
Services, 928 So. 2d 411 (Fla. 1st DCA 2006); Atlantis at Perdido Association Inc et al v.
Warner et al, 932 So. 2d 1206, 1213, (Fla. 1st DCA 2006). Since the plain text of section
161.085, F.S., describes “sand-filled tubes or similar structures proposed as the core of a restored
dune feature” within the context of “rigid coastal armoring structures,” and since the
implementing DEP rule definition of “armoring” also describes “geotextile bags or tubes,” the
proposed buried sand-filled tubes do constitute “armoring.”
16.
The Retreat argues that the proposed project falls within the statutory term
“landscaping” and should therefore be considered as subject to the General Permit. The term
“landscaping” is not defined in either the authorizing statute or the implementing rule. The DEP
argues that the term should not include buried sand-filled tubes because they are defined as
armoring elsewhere by statute and rule. The term “landscaping” is defined in the on-line Encarta
Dictionary published by Microsoft as “the enhancement of the appearance of land, especially
around buildings, by altering its contours and planting trees, shrubs, and flowers.” The term is
defined in Webster as “to adorn or improve (a section of ground) by contouring the land and
planting flowers, shrubs, or trees” (Webster II Riverside Collegiate Dictionary, 1988). The
difficulty with the Retreat argument is that the project description shows three separate phases
and only two, addition of beach-compatible sand and planting of vegetation, could possibly be
considered “landscaping” under the above definitions. The portion of the proposed project in
contention, the burial of sand-filled tubes, cannot be considered “landscaping” under the
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common definitions and is also, as is pointed out by DEP, defined and regulated under separate
statutory and rule authority. 4
17.
In its Memorandum and again at oral presentation, the Retreat has argued that
DEP regulations in rule chapter 62B-33, F.A.C., governing processing of permits for armoring
projects are contrary to common law and to statute and that “[b]ecause the armoring regulation
fails to allow for protection of private property and no more specific permit addresses it the
General Permit regulation must apply…”5 However, the proposed agency action currently in
dispute concerns only the availability of a General Permit pursuant to chapter 62B-34, F.A.C.
Therefore consideration of how the DEP might process a permit under chapter 62B-33, F.A.C., is
inappropriate and premature. And any arguments concerning the facial validity of the chapter
62B-33, F.A.C., permitting rules cannot be determined by this agency but must be filed with the
Division of Administrative Hearings. Section 120.56(1)(c), F.S. See also Fairfield Communities
v. Florida Land and Water Adjudicatory Commission, 522 So. 2d 1012, 1014 (Fla. 1st DCA
1988).
18.
Likewise the Retreat’s constitutional arguments, which also focus on the potential
availability of permits other than the General Permit, are improperly before the agency. The
Retreat argues that avoiding a constitutional issue by interpretation of statutes and rules to
accommodate the proposed project is appropriate. However the argument again presumes that
no permit is available pursuant to chapter 62B-33, F.A.C., and the proposed agency action at
issue addresses only availability of the General Permit. In addition, an agency is not free to
interpret its rules and authorizing statutes contrary to the plain statutory language. “The
Legislature is assumed to know the meaning of the words used in the statute and to have
expressed its intent through use of those words.” State Department of Revenue v Lockheed
Martin Corporation, 905 So. 2d1017, 1022 (Fla. 1st DDCA 2005). See also Atlantis at Perdido,
4
Although the statute authorizes DEP to grant General Permits for landscaping the DEP has not created a General
Permit specifically authorizing landscaping alone. DEP rules mention landscaping in 62B-34.060 and .070 only in
referring to the Native Vegetation Protection Requirements, and to lighting.
5
Retreat Memorandum at page 6
8
932 So. 2d at 1213. The DEP has no authority to act contrary to the clear provisions of its own
statutes and rules simply to avoid potential constitutional arguments.
19.
The DEP has interpreted its own rules and authorizing statutes to exclude a
project that includes buried sand-tube armoring from authorization by General Permit. That
interpretation is entirely consistent with the authority delegated by the Legislature. Rule chapter
62B-34, F.A.C., at rule 62B-34.020, F.A.C., purports to implement only section 161.053(19),
F.S., and not section 161.085, F.S. As discussed herein, nothing in section 161.053(19), F.S.,
addresses buried tubes. The statute specifically authorizing DEP to permit projects involving use
of sand-filled tubes, is section 161.085(9), F.S. The DEP rules that implement section 161.085,
F.S., rules 62B-33.002 and 62B-33.051, F.A.C., require individual permits for sand-filled tube
armoring projects. Therefore, the use of buried sand filled tubes does not qualify for the General
Permit.
CONCLUSION
The Retreat’s proposed project includes use of buried sand-filled tubes as a core of dune
stabilization, which constitutes armoring within the meaning of section 161.085, F.S., and rule
62B-33.002(5), F.A.C., and cannot be considered “landscaping” under section 161.053(19), F.S.
The proposed project is therefore not eligible for the General Permit of rule 62B-34.060, F.A.C.
The allegations of unconstitutionality or invalidity of the DEP rules are not properly
determinable by the agency.
Having reviewed the matters of record and being otherwise duly advised, it is therefore
ORDERED that:
Application number WL-894 GP is DENIED.
Any party to this proceeding has the right to seek judicial review of this order under
Section 120.68, Florida Statutes, by the filing of a notice of appeal under Rules 9.110 and 9.190,
Florida Rules of Appellate Procedure, with the clerk of the Department in the Office of General
Counsel, 3900 Commonwealth Boulevard, Mail Station 35, Tallahassee, Florida 32399-3000,
and by filing a copy of the notice of appeal accompanied by the applicable filing fees with the
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appropriate district court of appeal. The notice of appeal must be filed within thirty days after
the date this order is filed with the clerk of the Department.
DONE AND ORDERED this ____ day of________, 2007, in Tallahassee, Florida.
STATE OF FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION
_________________________________
PATRICIA E. COMER, Presiding Officer
3900 Commonwealth Boulevard – MS 35
Tallahassee, Florida 32399-3000
FILED on this date pursuant to § 120.52,Florida statutes,
with the designated Department clerk, receipt of which is
hereby acknowledged.
CLERK
DATE
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished
this ___ day of__________, 2007, via the means listed to:
George R. Mead, II
Moore Hill & Westmoreland, P.A.
220 West Garden Street, 9th Floor
Pensacola, Florida, 32502
Via Facsimile and U.S. Mail
Facsimile: 850-435-7899
Bernard A. Appleman, Assistant General Counsel
Florida Department of Environmental Protection
3900 Commonwealth Boulevard, MS- 35
Tallahassee, Florida, 32399-3000
Via Hand Delivery ONLY
________________________________________
PATRICIA E. COMER, Presiding Officer
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