07-003545RU A. Duda And Sons, Inc. vs. St. John`s River Water Management District Status: Closed DOAH Final Order on Friday, April 25, 2008.

Summary: Petitioner did not prove SJRWMD`s interpretation of Section 373.406 (2), Florida Statutes, not to exempt works that divert surface water was invalid, or were statements not properly adopted as rules.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

A. DUDA AND SONS, INC., )

)

Petitioner, )

)

vs. ) Case No. 07-3545RU

)

ST. JOHN'S RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

FINAL ORDER

On January 7-11 and 16-17, 2008, a formal administrative

hearing was held in this case in Altamonte Springs and

Tallahassee, Florida, before J. Lawrence Johnston, Administrative

Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Kenneth G. Oertel, Esquire

M. Christopher Bryant, Esquire

Oertel, Fernandez, Cole &

Bryant, P.A.

301 South Bronough Street, Fifth Floor

Post Office Box 1110

Tallahassee, Florida 32302-1110

For Respondent: Timothy A. Smith, Esquire

William H. Congdon, Esquire

St. Johns River Water

Management District

4049 Reid Street

Palatka, Florida 32178-2529

STATEMENT OF THE ISSUES

The issues in this case are set out in the Petition to

Determine Invalidity of Agency Rules and Agency Statement filed

by A. Duda and Sons, Inc. (Duda): Count I, whether the St. Johns

River Water Management District (SJRWMD) has an invalid and

unadopted strategy to use various means to negate the

agricultural exemption set out in Section 373.406(2), Florida

Statutes; Count II, whether Section 3.4.1(b) of SJRWMD's

Applicant's Handbook: Management and Storage of Surface Waters

(the Handbook), which is incorporated by reference in Florida

Administrative Code Rule 40C-4.091, is invalid essentially

because it conflicts with the agricultural exemption set out in

Section 373.406(2), Florida Statutes, and is vague; Count III,

whether Rule 40C-4.041 is invalid essentially because it

conflicts with the agricultural exemption set out in Section

373.406(2), Florida Statutes, and is vague; Count IV, whether

certain documents--namely, all or part of The Manual of Reference

Management Practices for Agricultural Activity (November 1978)

(the Manual), excerpts from the Journals of the Florida House of

Representatives and Senate (1984), and parts of the Model Water

Code Commentary (Univ. of Florida 1972)(the Code Commentary), all

of which are referred to in Section 3.4.1 of the Handbook but not

filed with the Secretary of State--are invalid because they were

not properly incorporated by reference under Rule 1S-1.005(2),

because they conflict with the agricultural exemption set out in

Section 373.406(2), Florida Statutes, and because they are vague;

and Count V, whether Rule 40C-44.041 is invalid because it

conflicts with the agricultural exemption set out in Section

373.406(2), Florida Statutes, and is vague.

PRELIMINARY STATEMENT

After Duda's rule challenge was filed, SJRWMD filed an

enforcement action against Duda for filling wetlands and digging

ditches without a permit. Duda petitioned for a hearing,

defending itself in part based on the agricultural exemption set

out in Section 373.406(2), Florida Statutes. Duda's enforcement

petition was referred to DOAH, given DOAH Case No. 07-4526, and

consolidated for final hearing along with the rule challenge

petition.

The consolidated cases were scheduled for final hearing on

January 7-11 and 15-18, 2008, in Altamonte Springs. The parties

filed a Joint Prehearing Stipulation on January 4, 2008.

At the final hearing, SJRWMD called: several employees,

Jennifer Cope, Marc Van Heden, Karen Garrett-Krause, Peter Brown,

and Jeff Elledge; a consultant with expertise interpreting aerial

photographs, Peter Gottfried; and Steve Johnson, president of The

Viera Company and a Duda vice-president. SJRWMD Exhibits 1, 6,

7, 9, 10, 13, 15, 17-19, 24, 26, 27, 29, 31 (pages 1406-07), 34,

(pages 1519-20), 36, 37 (pages 1577-78), 46-48, 63, 76, 80

(except for the length of the ditches, which was hearsay), 100,

102, 107-110, 115, 117, 120, 121, 123, 128-137, 138 (pages 4987

and 4989), 139-141, 153 (and summary book), 154, 156, 158, 159,

163-168, 170 (except for the polygons and ditches drawn on it,

which was hearsay), 171, 172, 174, 176, 177, 179, 185, and 193a-g

were admitted in evidence. SJRWMD Exhibits 157, 160, 161, 162,

and 190 were officially recognized. Ruling was reserved on

objections to SJRWMD Exhibits 51, 54-56, 80, 118, 124-126, and

170. Except for the hearsay objections to SJRWMD Exhibits 80 and

170, which are sustained, those objections are overruled at this

time, and the exhibits are admitted in evidence.

At the final hearing, Duda called: its vice-president,

Larry Beasley; retired Duda ranch manager, David Willis;

professional engineer, Hassan Kamal; soil scientist, Lewis

Carter; farmer and rancher, James Sartori; former Duda

professional engineer, Mike Howeller; Duda professional and

agricultural engineer, Pete Coultas; ecologist, William Lites;

and attorney, Terry Cole. Duda also introduced the transcripts

of depositions of District employees Vince Singleton (Duda Ex.

13A), Janice Unger (Duda Ex. 13B), and Victor McDaniel (Duda Ex.

13C). Duda Exhibits 1, 1A, 2-4, 13A-C, 15, 18-22, 24, 25, 28,

29, 31, 33-36, 38, 45, 52, 62 (page 2 of 4), 66-68, 71, 73, 77,

and 78 were admitted in evidence. Ruling was reserved on

objections to Exhibit 1 to Duda Exhibit 13C and to Duda Exhibits

46, 54-57, 59, and 91. At this time, those objections are

overruled, and the exhibits are admitted in evidence.

As agreed at the end of the hearing, the consolidated cases

have been severed for entry of a separate Final Order in this

case, using the evidentiary record made in the consolidated final

hearing. The parties ordered a Transcript, which was filed (in

ten volumes) on January 29, 2008. The parties requested and were

given until March 10, 2008, to file proposed final orders (PFOs),

which have been considered in the preparation of this Final

Order.

FINDINGS OF FACT

1. Duda clearly has standing since it is challenging the

validity of SJRWMD rules and alleged rules that pertain to an

enforcement action SJRWMD is bringing against Duda.

2. As reflected in the Statement of the Issues, Section

373.406(2), Florida Statutes, is at the heart of most of the

issues in this case. It states:

Nothing herein, or in any rule, regulation,

or order adopted pursuant hereto, shall be

construed to affect the right of any person

engaged in the occupation of agriculture,

silviculture, floriculture, or horticulture

to alter the topography of any tract of land

for purposes consistent with the practice of

such occupation. However, such alteration may

not be for the sole or predominant purpose of

impounding or obstructing surface waters.

3. Section 3.4.1(b) of SJRWMD's Handbook states, in

pertinent part, how SJRWMD interprets the exemption set out in

Section 373.406(2), Florida Statutes:

In determining whether an exemption is

available to a person engaged in the

occupation of agriculture, silviculture,

floriculture or horticulture, the following

questions much be addressed:

1. Is the proposed topographic

alteration consistent with the practice of

agriculture, silviculture, floriculture, or

horticulture?

2. Is the proposed topographic

alteration for the sole or predominant

purpose of impounding or obstructing surface

waters?

If the first question is answered

affirmatively and the second is answered

negatively, an exemption under subsection

373.406(2), F.S., is available. The

exemption is construed as set forth in the

Conference Committee Report on CS/CS/HB 1187,

Journal of the House of Representatives, May

29, 1984, page 734 and Journal of the Senate,

May 28, 1984, page 475.

The District presumes that the following

activities are consistent with the practice

of silviculture when they are undertaken to

place property into silvicultural use or to

perpetuate the maintenance of property in

silvicultural use. The following activities

are also presumed not to be for the sole or

predominant purpose of impounding or

obstructing surface waters:

1. normal site preparation for planting

of the tree crop;

2. planting; and

3. harvesting.

If any activity is undertaken to place the

property into a use other than silviculture

(for example: harvesting which is designed to

clear property in preparation for commercial,

industrial or residential development rather

than regeneration) the activity is not

considered to be consistent with the practice

of silviculture and will be subject to the

permitting jurisdiction of the District.

Examples of activities which are considered

to be for the sole or predominant purpose of

impounding or obstructing surface waters

because they have the effect of more than

incidentally trapping, obstructing or

diverting surface water are activities which

create canals, ditches, culverts,

impoundments or fill roads.

In determining consistency with the practice

of agriculture occupations, the District will

refer to the following publication: "A Manual

of Reference Management Practices for

Agricultural Activities (November, 1978)[.]"

The following practices described in the

manual are considered as having impoundment

or obstruction of surface waters as a primary

purpose:

1. Diversion, when such practice would

cause diverted water to flow directly onto

the property of another landowner

2. Floodwater Retarding Structure

3. Irrigation Pit or Regulating

Reservoir

4. Pond

5. Structure for Water Control

6. Regulating Water in Drainage Systems

7. Pumping Plant for Water Control,

when used for controlling water levels on

land

Other practices which are described in the

manual and which are constructed and operated

in compliance with Soil Conservation Service

standards and approved by the local Soil and

Water Conservation District are presumed to

be consistent with agricultural activities.

Practices which are not described in the

manual are presumed to be inconsistent with

the practice of agriculture and a permit is

required for the construction, alteration,

operation, maintenance, removal, or

abandonment of a system, subject to the

thresholds. See Appendix H for a complete

listing of agricultural practices described

in the manual. A copy of the manual may be

obtained by contacting the District

headquarters.

4. Appendix H to the Handbook sets out brief descriptions

of listed soil conservation practices for agriculture and states

that those practices are described in detail in the Soil

Conservation Service's Field Office Technical Guides; it also

sets out several other recognized Best Management Practices

(BMPs) for agriculture. Appendix H of the Handbook is a verbatim

reproduction of the part of the Manual from which it is taken.

While Section 3.4.1(b) of the Handbook advises that a copy of the

entire Manual may be obtained from SJRWMD, it only incorporates

the parts set out verbatim in it and Appendix H.

5. The conference committee reports referred to in Section

3.4.1(b) of the Handbook recommended enactment of the Warren S.

Henderson Wetlands Protection Act of 1984 (the Henderson Act),

were voted on, and were approved by the House of Representatives

and the Senate. Both reports stated in pertinent part:

The language contained in s. 403.913,

relating to agricultural activities, shall be

construed in conjunction with s. 373.406(2)

to exempt from permitting only those

activities defined as "agricultural

activities" pursuant to this act in

accordance with the Commentary to s. 4.02.(2)

of the Model Water Code.

Section 403.913[now 403.927](4)(a), Florida Statutes, stated:

"Agricultural activities" includes all

necessary farming and forestry operations

which are normal and customary for the area,

such as site preparation, clearing, fencing,

contouring to prevent soil erosion, soil

preparation, plowing, planting, harvesting,

construction of access roads, and placement

of bridges and culverts, provided such

operations do not impede or divert the flow

of surface waters.

6. The Commentary to Section 4.02.(2) states in pertinent

part:

The intent of this subsection is to allow

persons engaged in agricultural,

floricultural, and horticultural operations

to engage in ordinary farming and gardening

without obtaining a construction permit under

§4.04. Theoretically, such operations may

incidentally trap or divert some surface

water. For example, by plowing a pasture a

farmer is trapping and diverting surface

water that would have constituted part of the

runoff and eventually would have become part

of the surface water of the state. Without

this exemption the farmer would have

theoretically been required to obtain a

permit under §4.04. In addition, it would

appear that all changes of topography which

would alter natural runoff, such as contour

plowing, would also require a construction

permit under §4.04. The quantity of the

water being diverted and trapped is so small

that it would serve no practical purpose to

require a permit for such work. In addition,

the administrative burden of regulating such

operations would be enormous.

7. Rule 40C-4.041 provides in pertinent part:

(1) Unless expressly exempt, an individual

or general environmental resource permit must

be obtained from the District under Chapter

40C-4, 40C-40, 40C-42, 40C-44 or 40C-400,

F.A.C., prior to the construction,

alteration, operation, maintenance,

abandonment or removal of any stormwater

management system, dam, impoundment,

reservoir, appurtenant work or works,

including dredging or filling, and for the

maintenance and operation of existing

agricultural surface water management systems

or the construction of new agricultural

surface water management systems.

8. Rule 40C-44.041 provides in pertinent part:

(1) Unless expressly exempt by Section

373.406, F.S., or Rule 40C-4.051 or 40C-

44.051, F.A.C., a permit is required under

this chapter for the maintenance and

operation of existing agricultural surface

water management systems which serve an

agricultural operation as described in

paragraph (a) or (b) below.

9. Other than the argument that certain agency statements

are unadopted statements defined as rules, Duda's primary

argument is that Section 373.406(2), Florida Statutes, is

unambiguous and that SJRWMD's interpretation of it, as reflected

in its rules and statements, is contrary to the plain meaning of

the unambiguous statutory language. Specifically, Duda focuses

on SJRWMD's interpretation of the language "for purposes

consistent with the practice of such occupation" and "not for the

sole or predominant purpose of . . . obstructing surface waters."

But it is concluded that SJRWMD's interpretation of the statutory

language is as or more reasonable than Duda's.

10. Section 3.4.1(b) of SJRWMD's Handbook describes seven

activities that are not "consistent with the practice of [the

listed occupations]," including just one that may be disputed by

Duda--namely: "Diversion, when such practice would cause diverted

water to flow directly onto the property of another landowner."

Since Duda's activities that are subject to SJRWMD's enforcement

actions do not "cause diverted water to flow directly onto the

property of another landowner," Duda's challenge did not focus on

that part of Section 3.4.1(b) of the Handbook but rather on

diversions of water that do not "cause diverted water to flow

directly onto the property of another landowner." But to the

extent that Duda was attacking this part of SJRWMD's

interpretation, the evidence presented by Duda did not prove that

diversion of water to flow directly on the property of another

landowner is consistent with the practice of the listed

occupations.

11. The Handbook also describes, through Appendix H,

activities "presumed to be consistent with agricultural

activities." Duda has no dispute with activities described in

Appendix but disputes the Handbook's statement that all other

activities are "presumed to be inconsistent with the practice of

agriculture." But the presumption is rebuttable, and the impact

of the statements in the Handbook is to simply require proof of

entitlement to the agricultural exemption for activities not

listed in Appendix H in proceedings under Sections 120.569 and

120.57, Florida Statutes.

12. Duda also argues that, by its plain meaning, the word

"purpose" as used in Section 373.406(2), Florida Statutes, means

the actor's subjective intent, not the action's objective effect

--in this case, namely, the more-than-incidental trapping or

diversion of water to create canals, ditches, culverts, or fill

roads. To the contrary, one of the several accepted meanings of

the word "purpose" is: " 1a : . . . an object or end to be

attained : INTENTION b : RESOLUTION, DETERMINATION 2 : a subject

under discussion or an action in course of execution." See

Merriam Webster's Collegiate Dictionary 1011 (11th ed. 2005).

That dictionary also identifies intention as a synonym of the

first sense given for purpose and lists design and end among the

additional synonyms in the synonymy paragraph after the entry for

intention . See id. at 651. For a list of synonyms of the second

main meaning of purpose listed in the dictionary ("an action in

the course of execution"), one may turn to the second entry for

purpose in the companion thesaurus likewise published by Merriam-

Webster. That entry lists use in its fourth sense ("a particular

service or end") and function as additional synonyms of purpose .

See Merriam Webster's Collegiate Thesaurus 591 (1988). Likewise,

the dictionary lists purpose as a synonym of function in its

sense as "the action for which a person or thing is specially

fitted or used or for which a thing exists." See Merriam

Webster's Collegiate Dictionary 507 ("function implies a definite

end or purpose that the one in question serves or a particular

kind of work it is intended to perform"). Broadly, these

potential meanings of purpose describe an action, operation, or

effect (or a function, use, or result) of a thing done, which can

be observed objectively.

13. Duda also argues that, by its plain meaning, the word

"obstructing surface waters" as used in Section 373.406(2),

Florida Statutes, cannot mean just more-than-incidentally

trapping or diverting surface waters to create canals, ditches,

and culverts because those works speed or increase water flow

rather than obstruct it. To the contrary, Merriam-Webster

defines obstruct as " 1 : to block or close up by an obstacle 2 : to

hinder from passage, action, or operation : IMPEDE 3 : to cut off

from sight." Treating impede as a synonym for hinder and obstruct

and listing further synonyms at hinder . See Merriam Webster's

Collegiate Dictionary 857. The synonymy paragraph at hinder

states that the core meaning shared by obstruct and its synonyms

is "to interfere with the activity or progress [of something]."

Id. at 588 (emphasis added); accord , The American Heritage

Dictionary 960 (defiing obstruct as " 1. To block or fill a

passage with obstacles or an obstacle. . . . 2. To impede,

retard, or interfere with; hinder"). One of these possible

meanings of obstruct describes interfering with or hindering

something, including its passage, action, or operation.

14. In interpreting the word "purpose" in Section

373.406(2), Florida Statutes, it is reasonable for SJRWMD to

choose the alternative meaning of an action, operation, or effect

(or a function, use, or result) of a thing done, which can be

observed objectively. To choose the other alternative meaning of

the word would place the regulator at the mercy of the subjective

intent of the person regulated and could lead to absurd results.

15. Also, in interpreting the word "obstructing" in Section

373.406(2), Florida Statutes, it is reasonable for SJRWMD to

choose the alternative meaning of interfering with or hindering

something, including its passage, action, or operation. First,

if the word meant only blocking, obstructing would mean the same

thing as impounding and would be redundant. Second, if SJRWMD

chose "blocking" as the meaning the latter meaning of the word

"obstructing," it would countenance draining wetlands to use the

drained land for agricultural purposes. Such a result would be

in direct conflict with the intent of Chapter 373 to manage and

protect water resources. See Conclusion of Law 23, infra .

16. The extrinsic evidence of legislative intent supports

SJRWMD's interpretation of Section 373.406(2), Florida Statutes.

For that reason, SJRWMD's interpretation of the statute--as

reflected in the Handbook--does not conflict with, exceed,

modify, or contravene the statute; does not exceed statutory

authority; is not standard-less or vague (so as to give SJRWMD

unbridled discretion); is not arbitrary or capricious; and is not

unsupported by competent, substantial evidence.

17. It also was not proven that SJRWMD has an invalid and

unadopted strategy to use various means to negate the

agricultural exemption set out in Section 373.406(2), Florida

Statutes. To the contrary, the evidence proved that SJRWMD

interprets the statute validly and in accordance with the

extrinsic evidence of the legislative intent.

18. Finally, in the nearly 25 years that SJRWMD has

interpreted Section 373.406(2), Florida Statutes, essentially as

reflected in the Handbook, the Joint Administrative Procedure

Committee (JAPC) has never objected to SJRWMD's interpretation as

being invalid.

CONCLUSIONS OF LAW

19. Under Section 120.56, Florida Statutes, Duda has burden

in this proceeding of proving the invalidity of adopted rules and

the existence of agency statements defined as rules.

20. As to Count I, as found, Duda did not prove that SJRWMD

has an invalid and unadopted strategy to use various means to

negate the agricultural exemption set out in Section 373.406(2),

Florida Statutes. To the contrary, the evidence proved that

SJRWMD intended to and did interpret the statute validly and in

accordance with the extrinsic evidence of the legislative intent.

21. As to Count II, as explained by the court in Southwest

Fla. Water Mgmt. Dist. v. Charlotte County , 774 So. 2d 903, 915-

16 (Fla. 2d DCA 2001), there are variations on the general rule

regarding words being given their plain meaning:

The supreme court has stated that

"consideration must be accorded not only to

the literal and usual meaning of the words,

but also to their meaning and effect on the

objectives and purposes of the statute's

enactment." Florida Birth-Related

Neurological Injury Compensation Ass'n v.

Division of Administrative Hearings , 686

So.2d 1349, 1354 (Fla. 1997). The supreme

court has also held that words in a statute

"must be construed according to their plain

and ordinary meaning, or according to the

meaning assigned to the terms by the class of

persons within the purview of the statute."

Florida East Coast Industries v. Department

of Community Affairs , 677 So.2d 357, 362

(Fla. 1st DCA 1996), Sneed v. State , 736

So.2d 1274, 1276 (Fla. 4th DCA 1999)(quoting

Green v. Bock Laundry Mach. Co., 490 U.S. 504

U.S. 504, 527, 104 L. Ed. 2d 557, 109 S. Ct.

1981 (1989)), held that "the meaning of terms

on the statute books ought to be determined .

. . on the basis of which meaning is (1) most

in accord with context and ordinary usage

. . . and (2) most compatible with the

surrounding body of law into which the

provision must be integrated." (Other

citations omitted.

22. Context guides selection of the meaning most reflective

of the legislative intent when more than one meaning is possible.

See , e.g. , Vermilya-Brown Co. v. Connell , 335 U.S. 377, 386, 93

L.Ed. 76, 85 (1948)("[w]ords generally have different shades of

meaning, and are to be construed if reasonably possible to

effectuate the intent of the lawmakers: and this meaning in

particular instances is to be arrived at not only by a

consideration of the words themselves but by considering, s well,

the context, the purpose of the law, and the circumstances under

which the words were employed"); cf. Myers v. Hawkins , 362 So. 2d

926, 930 (Fla. 1978)(to determine plain meaning, court begins

with dictionary definitions but ultimately chooses meaning for

each "term in light of the primary purpose for which it has been

adopted").

23. The context of the Legislature's use of the words

"purpose" and "obstruct" is a regulatory framework for

controlling waters, so as to realize their full beneficial use.

See § 373.016(1), Fla. Stat. (1973)(unchanged in the current

statute). The overall purpose of the regulatory framework is to

provide such conservation and control, through managing,

conserving, protecting, and properly using water resources--and

more specifically through developing and regulating "dams,

impoundments, reservoirs, and other works," providing storage of

water for beneficial purposes, "preventing damage from floods

. . . and excessive drainage," preserving natural resources, and

otherwise promoting the health, safety, and general welfare. See

Act echoed and elaborated on this declaration of purposes,

especially the protection of water resources, in requiring the

establishment of a minimum flow for each watercourse and a

minimum level for each surface water body and each aquifer,

authorizing restrictions to protect the water resources during

times of water shortage, and authorizing permit requirements and

enforcement necessary to protect water resources from harm. See

id. §§ 373.042, 373.129(3), 373.175, 373.219(1), 373.246; see

also Village of Tequesta v. Jupiter Inlet Corp. , 371 So. 2d 663,

670-71 (Fla. 1979)(chapter 373 gave DER and the districts "the

responsibility to accomplish the [statute's purposes of]

conservation, protection, management, control of the waters [in]

the state"). As a statute enacted to protect the public health,

safety and welfare from further harm to water resources, Chapter

373 must "be liberally construed in order to effectively carry

out its purposes," as the Legislature expressly stated in Section

373.616, Florida Statutes. Conversely, exemptions should be

narrowly construed. See Samara Dev. Corp. v. Marlow , 556 So. 2d

1097 (Fla. 1990)(exemption is narrowly construed to prevent

defeating the purpose of statute); Pal-Mar Water Management

Distrcit v. Board of County Commissioners , 384 So. 2d 232, 233-34

(Fla. 4th DCA 1980)(same, for Chapter 373).

24. Finally, it has been held that the interpretations

reflected in the Water Code Commentary will be accepted absent a

clear indication that the Legislature intended otherwise. See

Southwest Fla. Water Mgmt. Dist. v. Charlotte County , supra , at

912.

25. As found, Duda did not prove that SJRWMD's

interpretation of Section 373.406(2), Florida Statutes--as

reflected in the Handbook--conflicts with, exceeds, modifies,

contravenes the statute; exceeds statutory authority; is

standard-less or vague (so as to give SJRWMD unbridled

discretion); is arbitrary or capricious; or is unsupported by

competent, substantial evidence. To the contrary, SJRWMD's

interpretation is consistent with the legislative intent, as

reflected in the legislative journals, and with the Commentary to

the Model Water Code.

26. In addition, SJRWMD's interpretation of Section

373.406(2), Florida Statutes, has been in effect for nearly 25

years. During that time, JAPC has not objected to it as lacking,

exceeding, modifying, or conflicting with statutory authority.

Courts generally defer and give great weight to agency

constructions of statutes they administer. See , e.g. , Florida

Wildlife Federation v. Collier County , 819 So. 2d 200,

203 (Fla. 1st DCA 2002); Ameristeel Corp. v. Clark , 691 So. 473,

477 (Fla. 1997).

27. In addition, interpreting Subsection (2) of Section

373.406, Florida Statutes, as Duda suggests would make

superfluous the exemption provided in Subsection (3) of that

statute for "the construction, operation, or maintenance of any

agricultural closed system" used to maintain the water levels

within the system. If the Legislature intended for Subsection

(2) to exempt drainage of surface waters onto or from a farmer's

property, there would be no need for the "closed system"

exemption in Subsection (3). But statutes on the same subject

must be read in pari materia and harmonized so that effect is

given to both. See Clines v. State , 912 So. 2d 550, 557 (Fla.

2005).

28. As to Counts III and V, Rules 40C-4.041 and 40C-44.041

state that applicable permits must be obtained unless an activity

is exempt. They do not purport to interpret any exemptions. For

that reason, Duda's actual complaint about those rules would

pertain to their application, which is an issue for determination

in proceedings under Sections 120.569 and 120.57, Florida

Statutes (such as DOAH Case No. 07-4526), not in a rule

challenge.

29. As to Count IV, the substantive arguments for

invalidity have been addressed and rejected in the Conclusion of

Law as to Count II, supra . That leaves Duda's procedural

argument that the references to the Manual, the House and Senate

Journals, and the Water Code Commentary are unadopted statements

defined as rules because copies of the referenced materials were

not filed with the Secretary of State under Rule 1S-1.005(2).

30. As found, the Manual references actually were

reproduced verbatim either in Section 3.4.1(b) (the listed

practices "considered as having impoundment or obstruction of

surface waters as a primary purpose") or in Appendix H of the

Handbook, making it unnecessary to file a copy of the Manual with

the Secretary of State. That information as to the more detailed

descriptions in the Soil Conservation Service's Field Office

Technical Guides was provided in Appendix H did not make the more

detailed descriptions part of the rule, so as to require the

filing of copies of those Guides with the Secretary of State, any

more than the information that a copy of the entire Manual could

be obtained from SJRWMD made the entire Manual part of the rule,

so as to require its filing with the Secretary of State.

31. Not every agency statement is a rule. To be a rule, an

agency statement not only must be of general applicability, it

must one that "implements, interprets, or prescribes law or

policy or describes the procedure or practice requirements of an

agency . . . ." § 120.52(15), Fla. Stat. (2007). 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

to have the direct and consistent effect of law." See Jenkins v.

State , 855 So. 2d 1219, 1225 (Fla. 1st DCA 2003); Balsam v.

Department of Health and Rehabilitative Services , 452 So. 2d 976,

977-78 (Fla. 1st DCA 1984); State Department. of Administration,

Division of Personnel v. Harvey , 356 So. 2d 323, 325 (Fla. 1st

DCA 1977). See , e.g. , SJRWMD v. Modern, Inc. , 784 So. 2d 464

(Fla. 1st DCA 2001)(invalid memorandum expressly stated a policy,

defined a term in the statutory exemption for "routine custodial

maintenance" according to expressly labeled "basic criteria," and

spelled out an expressly required procedure); Dept. of

Transportation v. Blackhawk Quarry Co. , 528 So. 2d 447, 450 (Fla.

5th DCA 1988)(invalid standing operating procedure stated

specific criteria and requirements for acceptable cemented

coquina shell and for placement on DOT's list of approved supply

sources, thereby determining entitlement to participate in state

projects, and thus "in and of itself create[d] certain rights and

adversely affected[ed] others" and had a direct effect on

suppliers); Florida State University v. Dann , 400 So. 2d 1304,

1305 (Fla. 1981)(invalid documents set out the university's merit

salary procedures and were "virtually self-executing); and Dept.

of Administration v. Stevens , 344 So. 2d 290 (Fla. 1st DCA

1977)(invalid employee "bumping" guidelines were likewise

"virtually self-executing").

32. The legislative journals referred to in Section

3.4.1(b) of the Handbook are not agency statements; rather, they

are legislative statements. A rule stating that SJRWMD will

follow the legislative intent is not required to incorporate the

statement of legislative intent by reference in accordance with

Rule 1S-1.005(2).

33. The Water Code Commentary is part of the statement of

legislative intent. As such, it no more has to be incorporated

by reference in accordance with Rule 1S-1.005(2) than the

legislative journals have to.

34. Finally, agency statements that they will follow the

legislative intent as expressed in the legislative journals do

not prescribe law or policy or describe agency procedure or

practice requirements. They do not determine or elaborate on the

legislative intent beyond referencing the Legislature's own

expressions of its intent.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, Duda's Petition to Determine Invalidity of Agency Rules and

Agency Statement is denied.

DONE AND ORDERED this 25th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of April, 2008.

COPIES FURNISHED:

Kenneth G. Oertel, Esquire

M. Christopher Bryant, Esquire

Oertel, Fernandez, Cole &

Bryant, P.A.

301 South Bronough Street, Fifth Floor

Post Office Box 1110

Tallahassee, Florida 32302-1110

Timothy A. Smith, Esquire

William H. Congdon, Esquire

St. Johns River Water

Management District

4049 Reid Street

Palatka, Florida 32178-2529

Kirby B. Green, III, Executive Director

St. Johns River Water

Management District

4049 Reid Street

Palatka, Florida 32178-2529

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399-1300

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 the original

Notice of Appeal with the agency clerk of the Division of

Administrative Hearings and a 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.