81-002393RX James Sartori, D/B/A Willowbrook Farms vs. St. Johns River Water Management District Status: Closed DOAH Final Order on Tuesday, November 24, 1981.

Summary: The rule is valid, but hte interbasin diversion policy is and unpromulgated rule that can't be used to evaluate permit applications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES SARTORI, d/b/a )

WILLOWBROOK FARMS, )

)

Petitioner, )

)

vs. ) CASE NO. 81-2393RX

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

This matter came on for hearing in Palatka, Florida before the Division of

Administrative Hearings and its duly appointed Hearing Officer, R. T. Carpenter,

on October 28, 1981.

APPEARANCES

For Petitioner: Kenneth G. Oertel, Esquire

646 Lewis State Bank Building

Tallahassee, Florida 32301

Edgar A. Brown, Esquire

Post Office Box 4382

Fort Pierce, Florida 33454

and

Stephen C. Braverman, Esquire

2600 The Fidelity Building

Philadelphia, Pennsylvania 19109

For Respondent: Vance W. Kidder, Esquire

Post Office Box 1429

Palatka, Florida 32077

This matter arose on a petition for determination of rule validity under

Section 120.56, Florida Statutes (F.S.). The issues presented for resolution

are: (a) whether the territorial area within which Respondent requires permits

for the management and storage of surface waters pursuant to Chapter 40C-4,

Florida Administrative Code (F.A.C.), has been properly adopted and described;

(b) whether Respondent has implemented an invalid rule pertaining to the issue

of "interbasin diversion"; and (c) whether proposed amendments to Chapter 40C-4

are being applied to the Petitioner so as to cause the Petitioner to be affected

by these proposed rules.

The parties submitted posthearing memoranda which contain proposed findings

of fact. To the extent these proposed finding have not been adopted or

otherwise incorporated herein, they have been specifically rejected as

irrelevant or not supported by the evidence.

FINDINGS OF FACT

1. On December 31, 1976, Respondent's territorial jurisdiction was

expanded by transfer of substantial areas formerly regulated by other water

management districts. The transfer was effected pursuant to legislative

revision of Section 373.069, F.S., which delineates the geographic boundaries of

Florida's water management districts.

2. The following rule promulgated by Respondent became effective on

January 31, 1977, and was amended on February 3, 1981:

40C-4.031 (previously 16I-4.04, Florida

Administrative Code). Implementation.

These regulations shall become effective

February 1, 1981, throughout the District

and will be implemented in those areas

transferred to the St. Johns River Water

Management District from the Central &

Southern Florida Flood Control District

and the Southwest Florida Water Management

District on the same date. Implementation

in other areas will be effected pursuant

to public hearing at subsequent dates

determined by the Board.

3. The regulations implemented by the above rule establish permitting

procedures for projects which involve holding, diversion, or discharge of

significant quantities of water. However, permits are required only in the

transferred territory.

4. Petitioner owns 11,500 acres located within the territory where permits

are required. Petitioner seeks to improve his property for agricultural

purposes, which involves the holding and diversion of surface waters. He has

accepted Respondent's determination that his property is within the permitting

area and has filed the requisite application.

5. However, Petitioner contends that he is unable reasonably to confirm

Respondent's determination that his property is situated in the regulated

territory. Respondent demonstrated that a determination can be made by

comparing the statutory descriptions of Respondent's jurisdiction prior to and

after the transfer, and has maps available which reflect the permitting area.

To accomplish this task independently requires knowledge of legal territorial

descriptions (section, township, range) and a laborious comparison of legal

descriptions set out in the 1975 and 1977 versions of the Florida Statutes.

6. At the time reorganization of the water management districts became

effective (December 31, 1976) , Respondent had limited regulatory capability.

Its decision to implement permitting only in the transferred territory was based

on this limited capability and the need to preserve continuity 1/ in areas

where permits had previously been required.

7. In the years following this decision, Respondent has continued to

require permits only in those areas transferred in 1976. The evidence

established that the boundary between the regulated and unregulated areas is one

of convenience and has no hydrological or other scientific basis.

8. Respondent is considering a revision of its rules to become effective

sometime in 1982. This revision may enlarge the permitting territory and modify

the criteria for grant or denial of permits.

9. Petitioner asserts that his application is being evaluated by rules not

yet adopted and fears that new standards may be applied after hearing on the

application, which is now under consideration pursuant to Subsection 120.57(1),

F.S., (DOAH Case No. 81-1588). Hearing is scheduled for December, 1981.

10. In support of this contention, Petitioner points to the technical

staff report prepared in May, 1981, which recommends denial of the application

giving, among others, the following reasons:

Volumes 1 and 2 of Phase 1 of the Upper

Basin Plan catalogue a history of a diminish-

ing water resource in the upper basin. The

water resources in the upper basin have been

harmed and the proposed project aggravates

the existing harm to the resource. Moreover

the proposed project is inconsistent with

the overall objectives of the district for

the upper basin. Resolutions 75-11 and 81-2,

the 1977 Management Plan, and Volumes 1 and

2 of Phase I of the Upper Basin Plan indicate

that the objectives of the District are to

curtail inter-basin diversion and maintain

and enhance, if possible, the existing hydro-

logic regime in the upper basin. The pro-

posed project is not in conformance with

either of these statutory requirements.

(Emphasis added.)

11. An earlier technical staff report prepared in November, 1980,

recommended grant of the application, with some modification. This report did

not refer to inter-basin diversion.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has jurisdiction over the

parties and subject matter of this proceeding. Petitioner is substantially

affected by Respondent's permitting procedures. Section 120.56, F.S. (1979).

13. In Section 120.56 proceedings, the burden is upon one who attacks an

agency rule to show that it is an invalid exercise of delegated legislative

authority. See Agrico Chemical Co. v. State, 365 So.2d 759, 763 (Fla. 1st DCA

1979). A rule not adopted in accordance with the rulemaking procedures

prescribed by Section 120.54 is invalid. Department of Environmental Regulation

v. Leon County, 344 So.2d 297, 299 (Fla. 1st DCA 1977).

14. Rule 40C-4.031, F.A.C., is not an invalid exercise of delegated

legislative authority by reason of its failure to detail the territory where

permits are required. Since this territory can be determined with precision

starting with the information contained in the rule, there is no inherent

ambiguity. Furthermore, Respondent maintains maps of the regulated area which

it makes available to the public. Therefore, no practical reason exists to

require promulgation by rule of territorial meters and bounds.

Subsection 373.074(1), F.S. (1977), provides:

It is the intent of the Legislature to

make the transfer of areas, and concomitant

transfer of duties, responsibilities, assets,

and related matters, as smooth and equitable

as possible, preserving continuity wherever

possible and desirable.

Subsection 373.413(1), F.S. (1977) provides:

Except for the exemptions set forth

herein, the governing board or the depart-

ment may require such permits and impose

such reasonable conditions as are necessary

to assure that the construction or altera-

tion of any dam, impoundment, reservoir,

appurtenant work, or works will not be

harmful to the water resources of the dis-

trict. The department or the governing

board may delineate areas within the dis-

trict wherein permits may be required and

may establish minimum size limitations

below which permits may be issued without

a public hearing, but in no event shall

such limitations be extended to dams,

impoundments, reservoirs, appurtenant

work, or works impounding or diverting

waters exceeding 640 acres in area.

Section 373.113, F.S. (1977) provides:

In administering the provisions of

this chapter the governing board shall

adopt, promulgate, and enforce such regu-

lations as may be reasonably necessary to

effectuate its powers, duties, and func-

tions pursuant to the provisions of chap-

ter 120.

15. Chapter 373, F.S., establishes state water conservation management

policies, and assigns certain responsibilities to water management districts,

including permit granting authority. Respondent's decision initially to require

permits only in those areas transferred was consistent with legislative intent,

the authority delegated to it, and the resources then available. Thus, in 1977,

the boundary between regulated and unregulated areas was reasonable and not

arbitrary. Nearly five years have passed, however, and the distinction between

regulated and unregulated areas no longer has any transitional meaning.

16. Petitioner has no basis to complain that neighboring property owners

remain free from regulation due to agency procrastination, since he has suffered

no injury as a result of this delay. The wrong here, if any, is that the agency

has failed to regulate the larger territory. A determination that the

challenged rule is an incomplete exercise of delegated legislative authority

does not make such exercise of authority invalid within the meaning of

Subsection 120.56 (1), F.S.

17. Respondent's Rule 40C-4.301, F.A.C., sets forth detailed conditions

for issuance of permits and establishes criteria which may result in denial.

This rule became effective on January 31, 1977, and was amended effective

February 3, 1981. It contains no reference to "interbasin diversion" as a

permitting criteria or concept.

18. Respondent maintains that Rule 40C-4.301, F.A.C., contains adequate

permitting criteria with respect to alterations in rates of flow, and that

Respondent does not, therefore, need to utilize interbasin diversion as a

permitting concept. This argument is not persuasive. Respondent's latest

technical staff report (extract quoted above) is the basis for its intent to

deny Petitioner's permit application and includes findings with respect to

interbasin diversion.

19. Thus, Respondent has evidenced the use of interbasin diversion as a

policy having general applicability in its evaluation of permit applications.

As such, it is a "rule" within the meaning of Subsection 120.52(14), F.S., and

may be applied only upon adoption pursuant to Section 120.54, F.S.

20. Petitioner is not content to prevent Respondent from utilizing

interbasin diversion as a permitting concept at this stage of proceedings.

Rather, Petitioner fears that Respondent will adopt and apply more stringent

permitting standards prior to the entry of its final order in Case No. 81-1588.

21. Section 120.54, F.S., requires that Respondent give notice of intent

to modify its permitting rules. This provision allows substantially affected

persons to participate in rule adoption proceedings. These procedures will

afford Petitioner ample protection in matters which are, at this time,

speculative.

Based on the findings of fact and conclusions of law recited herein, it is

ORDERED:

1. Petitioner has failed to demonstrate that Rule 40C-4.031, F.A.C.,

constitutes an invalid exercise of delegated legislative authority; and

2. Respondent's interbasin diversion policy constitutes an unpromulgated

rule which may not be used in its evaluation of permit applications.

DONE AND ORDERED this 24th day of November, 1981, in Tallahassee, Florida.

___________________________________

R. T. CARPENTER, Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 24th day of November,1981.

ENDNOTE

1/ See Subsection 373.074(1), F.S. (1977).

COPIES FURNISHED:

Kenneth G. Oertel, Esquire Liz Cloud

646 Lewis State Bank Building Florida Administrative Code

Tallahassee, Florida 32301 Department of State

The Capitol, Room 1802

Edgar A. Brown, Esquire Tallahassee, Florida 32301

Post Office Box 4382

Ft. Pierce, Florida 33454 Carroll Webb, Executive

Director

Stephen C. Braverman, Esquire Administrative Procedures

Steven L. Friedman, Esquire Committee

2600 The Fidelity Building Room 120, Holland Building

Philadelphia, Pennsylvania 19109 Tallahassee, Florida 32301

Vance W. Kidder, Esquire

Post Office Box 1429

Palatka, Florida 32077