04-000880RP Association Of Florida Community Developers vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Friday, February 24, 2006.

Summary: The proposed rules are not invalid exercises of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASSOCIATION OF FLORIDA )

COMMUNITY DEVELOPERS, )

)

Petitioner, )

)

and )

)

FLORIDA HOME BUILDERS )

ASSOCIATION, )

)

Intervenor, )

)

vs. ) Case Nos. 04 - 0880RP

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent, )

)

and )

)

ST. JOHNS RI VER WATER )

MANAGEMENT DISTRICT; SOUTH )

FLORIDA WATER MANAGEMENT )

DISTRICT; FLORIDA AUDUBON )

SOCIETY, INC., NATIONAL AUDUBON )

SOCIETY; THE EVERGLADES )

FOUNDATION, INC.; AND )

CONSERVANCY OF SOUTHWEST )

FLORIDA, INC., )

)

Intervenor s . )

)

FINAL ORDER

The final hearing in this case was held on December 12,

2005, in Tallahassee, Florida, before Bram D. E. Canter,

Administrative Law Judg e of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner Association of Florida Community

Developers (AFCD):

Frank E. Matthews, Esquire

Susan L. Stephens, Esquire

Hopping, Green & Sams, P.A.

123 South Calhoun Street

Po st Office Box 6526

Tallahassee, Florida 32314 - 6526

For Intervenor Florida Home Builders Association

(FHBA):

Edwin A. Steinmeyer, Esquire

Lewis, Longman & Walker, P.A.

Post Office Box 10788

Tallahassee, Florida 32302 - 2788

Stephen A. Walker, Es quire

Lewis, Longman & Walker, P.A.

1700 Palm Beach Lakes B ou l e v ar d, Suite 1000

West Palm Beach, Florida 33401

Keith Hetrick, General Counsel

Florida Home Builders Association

Post Office Box 1259

Tallahassee, Florida 3230 2 - 1259

For Respondent Department of Environmental Protection

(DEP):

Christine E. Lamia, Esquire

Betsy Hewitt, Esquire

Robert G. Gough, S r., Esquire

Department of Environmental Protection

2900 Commonwealth Boulevard, Mail Station 35

Tallahassee, Florida 32399 - 3000

For Intervenor South Florida Water Management District

(SFWMD):

Cecile I. Ross, Esquire

South Florida Water Management District

3301 Gun Club Road, MSC 1410

West Palm Beach, Florida 33406 - 3007

Mary F. Smallwood, Esquire

Ruden, Mcloskey, Smith, Schuster & Russell, P.A.

215 South Monroe Street, Suite 815

Tallahassee, Florida 32301 - 1858

For Intervenors Florida Audubon Society, Inc., National

Audubon Society, Everglades Foundation, Inc., and Conservancy of

Southwest Florida, Inc. ( " E nvironmental Groups " ):

J. Kendrick Tucker, Esquire

Huey, Guilday, Tucker, Schwartz & Williams, P.A.

Post Office Box 12500

Tallahassee, Florida 32317 - 2500

For Intervenor St. Johns River Water Management District

(SJRWMD):

Thomas I. Mayton, Jr., Esq uire

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177 - 2529

STATEMENT OF THE ISSUE

The issue for determination in this case is whether

proposed rules 62 - 40.410(3) and 62 - 40.474, in whole or in part,

are invalid exerc ises of delegated legislative authority within

the meaning of Section 120.52(8), Florida Statutes (2005). 1

PRELIMINARY STATEMENT

On December 20, 2002, D EP published a Notice of Proposed

Rulemaking in the Florida Administrative Weekly (F.A.W.) for

various provisions of Florida Administrative Code Chapter 62 - 40,

entitled " Water Resource Implementation Rule " (WRIR). Notices

of changes to the proposed rules were published in three

subsequent issues of the F.A.W.

Several rule challenge petitions were filed i n response to

DEP 's notices. DOAH opened a case for each petition. The cases

were consolidated for hearing. Following the withdrawal of

several petitions, the sole remaining rule challenge was the one

filed by AFCD on March 15, 2004.

FHBA intervened in support of AFCD's petition. AFCD and

FHBA will be referred to collectively in this Final Order as

" Petitioners. " The City of Sunrise intervened in support of

AFCD's petition, but subsequently withdrew from the case.

SFWMD, SJRWMD, and the Environmental Groups intervened in

support of the validity of the proposed rules.

In order to facilitate discussion among the parties and the

possible resolution of their disputes, the case was placed in

abeyance for more than a year. When the discussions proved

unsucc essful in resolving the dispute, the case was set for

hearing.

The P etition to I ntervene filed by the National Park

Conservation Association (NPCA) on November 17, 2005, and its

subsequent amended petition to intervene, were dismissed as

untimely, lackin g sufficient factual allegations to demonstrate

that NPCA would be substantially affected by the proposed rules,

and because its interests were already represented by several

other parties in the case.

Petitioners challenge the validity of proposed rules

62 - 40.410(3) and 62 - 40.474. The substantive provisions being

challenged are in rule 62 - 40.474, entitled " Reservations of

Water. " Rule 62 - 40.410(3) was challenged by Petitioners because

it provides in part that " [r]eservations shall be established in

acco rdance with section 62 - 40.474, F.A.C. " Petitioners contend

that the proposed rules are invalid exercise of delegated

legislative authority under Sections 120.52(8)(b), (c), (d), and

(e), Florida Statutes.

A Joint Motion For Summary Final Order was filed by DEP and

SFWMD and a Joint Counter - Motion For Summary Final Order was

filed by AFCD and FHBA. Oral argument was heard on the motions

on September 22, 2005, in Tallahassee, Florida, and a T ranscript

of the oral argument was filed with DOAH. The joint mo tion of

DEP and SFWMD was granted with respect to the claim that DEP

exceeded its grant of rulemaking authority. In all other

respects, the joint motion of DEP and SFWMD was denied. The

joint counter - motion of AFCD and FHBA was denied , and the case

proce eded to final hearing.

At the final hearing, Petitioners presented the testimony

of Ross McWilliams, accepted as an expert in biology,

environmental permitting, and wetland systems ; and Brian

Winchester, accepted as an expert in ecology, Florida natural

sy stems, Florida fish and wildlife, wetland hydroecology, and

restoration ecology. Petitioners’ Exhibits 1 through 4 were

accepted into evidence. AFCD's unopposed request for official

recognition of A Model Water Code (1971), by Frank Maloney

et al . , was g ranted.

DEP presented the testimony of Janet Llewellyn, accepted as

an expert in wetlands ecology, assessing impacts on aquatic and

wetlands systems, water quality protection and management, water

management policies, and regional water supply planning. D EP's

Exhibit A was accepted into evidence. The Environmental Groups

p resented the testimony of Dr. Mark Kraus, accepted as an expert

in ecology, wetlands ecology, and restoration ecology. Their

Exhibit A was accepted into evidence.

The one - volume Transcr ipt of the final hearing was filed

with DOAH. The parties filed proposed final orders which have

been carefully considered in the preparation of this Final

Order.

FINDINGS OF FACT

The Parties

1. AFCD is a non - profit association representing 52

companie s, including land developers, property owners, and other

professionals involved in the planning, design, licensing,

construction, and marketing of master - planned communities with

multiple land uses, including residential uses, throughout the

State of Flori da. AFCD was established for the purpose of

advancing the commercial and residential land development

projects of its members, including informing state government

policy makers and regulators about current issues affecting the

community development indus try.

2. FHBA is a trade association working to promote and

protect Florida’s residential construction industry. FHBA’s

activities on behalf of its members include monitoring public

policy and working with state agencies on environmental and land

use regu lations affecting the residential construction industry.

3. The Environmental Groups are not - for - profit

corporations whose principle activities include advocacy for the

protection of Florida's fish and wildlife. They have thousands

of members who live ne ar and use Florida waters for

recreational, educational and other purposes.

4. SFWMD and SJRWMD are regional agencies that are

authorized by statute to make water reservations within their

respective jurisdictions. Any rule they adopt to create a water

r eservation will be subject to review by DEP to determine

whether it is consistent with the proposed rule.

The Proposed Rules

5. On December 20, 2002, DEP published a Notice of Proposed

Rulemaking in the F.A.W. for various provisions of the WRIR.

Notices of changes were also published in the F.A.W. on

February 21, 2003, August 15, 2003, and February 27, 2004. The

version of the rules at issue in this case was published in the

August 15, 2003, issue of the F.A.W.

6. DEP held nine rule development worksh ops around the State

and one public rule adoption hearing for the proposed rules.

7. DEP solicited comments from the public and st ake holders,

including local governments, regional water supply authorities,

water utility organizations and water management districts

throughout the rulemaking process.

8. Proposed rule 62 - 40.474 provides as follows:

(1) The governing board or the department,

by rule , may reserve water from use by

permit applicants, pursuant to section

373.223(4), F.S., in such locations and

q uantities, and for such seasons of the

year, as in its judgment may be required for

the protection of fish and wildlife or the

public health and safety. Such reservations

shall be subject to periodic review at least

every five years, and revised if necess ary

in light of changed conditions. However,

all presently existing legal uses of water

shall be protected so long as such use is

not contrary to the public interest.

(a) Reservations may be used for the

protection of fish and wildlife to:

1. Aid in a recovery or prevention strategy

for a water resource with an established

minimum flow or level;

2. Aid in the restoration of natural

systems which provide fish and wildlife

habitat;

3. Protect flows or levels that support

fish and wildlife before har m occurs;

4. Protect fish and wildlife within an

Outstanding Florida Water, an Aquatic

Preserve, a state park, or other publicly

owned conservation land with significant

ecological value; or

5. Prevent withdrawals in any other

circumstance required t o protect fish and

wildlife.

(b) Reservations may be used for the

protection of public health and safety to:

1. Prevent sinkhole formation;

2. Prevent or decrease saltwater intrusion;

3. Prevent the movement or withdrawal of

groundwater pollutants; or

4. Prevent withdrawals in any other

circumstance required to protect public

health and safety.

(2) Reservations shall, to the extent

practical, clearly describe the location,

quantity, timing, and distribution of the

water reserved.

(3) Reservation s can be adopted

prospectively for water quantities

anticipated to be made available. When

water is reserved prospectively, the

reservation rule shall state when the

quantities are anticipated to become

available and how the reserved quantities

will be ad justed if the actual water made

available is different than the quantity

anticipated.

(4) The District shall conduct an

independent scientific peer review of all

scientific or technical data, methodologies,

and models, including all scientific and

techni cal assumptions employed in each

model, used to establish a reservation if

the District determines such a review is

needed. As part of its determination of the

necessity of conducting a peer review, the

District shall consider whether a

substantially affe cted person has requested

such a review.

Specific Authority 373.026(7), 373.043,

403.036(1)(d), 373.171, FS. Law Implemented

373.023, 373.026, 373.036(1)(d), 373.042,

373.046, 373.103, 373.106, 373.171, 373.175,

373.1961, 373.223, 373.246, 373.418,

373. 451, 373.453, 403.0891, FS.

History - New ___

9. The proposed change to rule 62 - 40.410(3), indicated by

underscoring, provides:

Water may be reserved from permit use in

such locations and quantities, and for such

seasons of the year, as is required for t he

protection of fish and wildlife or the

public health or safety. Such reservations

shall be subject to periodic review and

revision in light of changed conditions.

However, all presently existing legal users

of water shall be protected so long as such

use is not contrary to the public interest.

Reservations shall be established in

accordance with section 62 - 40.474, F.A.C.

Specific Authority 373.026(7), 373.043,

373.036(1)(d), 373.171, FS. Law Implemented

373.023, 373.026, 373.036(1)(d), 373.042,

373 .0421, 373.103, 373.171, 373.175,

373.1961, 373.223, 373.233, 373.246,

373.250, 403.064, 403.0891, FS. History --

New 7 - 20 - 95, Amended .

The validity of the proposed change to rule 62 - 40.410(3) is

derivative of, and dependent on, the validity of proposed r ule

62 - 40.474. Therefore, the discussion that follows will focus on

proposed rule 62 - 40.474, and references to " the proposed rule "

will mean rule 62 - 40.474.

Water Reservations

10. Section 373.223(4), Florida Statutes, provides:

The governing board or the department, by

regulation, may reserve from use by permit

applicants, water in such locations and

quantities, and for such seasons of the

year, as in its judgment may be required for

the protection of fish and wildlife or the

public health and safety. Su ch reservations

shall be subject to periodic review and

revision in the light of changed conditions.

However, all presently existing legal uses

of water shall be protected so long as such

use is not contrary to the public interest.

11. Water reservation s are important for what they

enable - - the protection of fish and wildlife or the public health

and safety, but they are also important for what they preclude - -

use of the reserved water by any water use permit applicant.

12. DEP does not believe th e challenged rule is necessary

to enable the water management districts to make reservations of

water. DEP's purpose in enacting the rule is to provide goals,

objectives, and guidance to the water management districts

regarding water reservations. The pr oposed rule is intended to

provide examples of " the types of situations that may be

appropriate for the use of reservations. "

13. The proposed rule does not establish a water

reservation. Each reservation of water must be accomplished

through the adoptio n of a rule by a water management district or

by DEP.

14. There has been only one water reservation ever made

pursuant to Section 373.223(4), Florida Statutes. It was made

by SJRWMD in 1994 and is codified in Florida Administrative Code

Rule 40C - 2.302:

T he Governing Board finds that reserving a

certain portion of the surface water flow

through Prairie Creek and Camps Canal south

of Newnans Lake in Alachua County, Florida,

is necessary in order to protect the fish

and wildlife which utilize the Paynes

Prai rie State Preserve, in Alachua County,

Florida. The Board therefore reserves from

use by permit applicants that portion of

surface water flow in Prairie Creek and

Camps Canal that drains by gravity through

an existing multiple culvert structure into

Payne s Prairie. This reservation is for an

average flow of 35 cubic feet per second

(23 million gallons per day) representing

approximately forty - five percent (45%) of

the calculated historic flow of surface

water through Paynes Creek and Camps Canal.

15. S ection 373.223(4), Florida Statutes, was part of the

original Florida Water Resources Act of 1972 ( " the 1972 Act " ).

Ch. 72 - 299, § 3, Laws of Fla. The wording of the subsection is

unchanged since its enactment in 1972.

16. Much of the 1972 Act was deriv ed, verbatim , from A

Model Water Code , drafted at the University of Florida College

of Law between 1967 and 1971 by Dean Frank Maloney, Professor

Richard Ausness, and Professor J. Scott Morris. Maloney,

et al. , A Model Water Code , Univ. of Fla. Press (197 1).

However, the Legislature did not adopt the exact wording of the

water reservation provision that was offered in A Model Water

Code .

17. In A Model Water Code , water was to be reserved when

" required to implement a provision of the State Water Plan. "

Id. at 21, 181. The State Water Plan was composed of a State

Water Use Plan and a State Water Quality Plan. Id. at 9. The

following commentary accompanied the water reservation provision

in A Model Water Code:

This provision is designed to integrate t he

operation of the permit system with the

State Water Use Plan and State Water Quality

Plan. Under this subsection, the governing

board by regulation may set aside a fixed

quantity of water; no future permit

application can be made for water reserved

in this fashion. [This provision] would be

of particular value in connection with the

maintenance of water quality standards, as

it would provide a margin of safety during

periods of low flow.

Id. at 181.

18. The State Water Plan was to address many s ubjects,

including minimum flows and levels, water supply development,

water quality improvement, environmental protection,

conservation and recreation. By providing that water could be

reserved when " required to implement a provision of the State

Water P lan, " A Model Water Code contemplated that water could be

reserved to address any of these subjects.

19. Although the 1972 Legislature provided for a

comprehensive plan similar to the State Water Plan, it did not

make reference to the plan in Section 373. 223(4), Florida

Statutes (1972). The reason the Legislature chose not to use

the wording " when required to implement a provision of the State

Water Plan " in A Model Water Code but, instead chose to use

" when required to protect fish and wildlife or the pu blic health

and safety " in Section 373.223(4), Florida Statutes, is not

explained in any exhibit in the record or in any primary or

secondary source cited in the briefs of the parties. It remains

a matter of speculation.

20. Petitioners believe that it i s clear from the

Legislature's choice of words that it intended to strictly limit

the circumstances in which a reservation would be used.

Petitioners believe that other, more specific findings about

what the 1972 Legislature would have considered an inapp ropriate

use of a water reservation can be inferred from the

Legislature's decision not to use the wording proposed in A

Model Water Code .

21. After considerable thought and review of the

commentary in A Model Water Code and the provisions of the 1972

Act , it is concluded that there is an insufficient basis to make

findings of fact regarding the 1972 Legislature's intent in not

using the exact wording from A Model Water Code in Section

373.223(4), Florida Statutes. Petitioners' theory of the

Legislature's intent is plausible, but is not the only plausible

theory. The only certainty is that, from the alternatives

considered by the 1972 Legislature, it chose to express the

purposes for which water can be reserved as " protection of fish

and wildlife or the p ublic health and safety. "

22. There are three other references in Chapter 373,

Florida Statutes, to water reservations. None were a part of

the 1972 Act. Section 373.0361(2)(a)2., Florida Statutes,

directs that water reservations be taken into account in

proposals for alternative water supply projects. Section

373.0361(2)(h), Florida Statutes, requires regional water supply

plans of the water management districts to include a listing of

" Reservations adopted by rule pursuant to s. 373.223 ( 4) within

each planning region. " Section 373.470(3)(c), Florida Statutes,

refers to the use of water reservations in conjunction with

restoration of the Everglades.

23. Much of the argument and testimony in this case

addressed Petitioners' contention tha t the proposed rule's

provision for the use of water reservations " to aid in the

restoration of natural systems " went far beyond " protection of

fish and wildlife, " the purpose stated in Section 373.223(4),

Florida Statutes. References were made to the dic tionary

definitions of " protection " and " restoration " and all the expert

witnesses offered opinions about their meanings.

24. The term " protection " is not defined in Chapter 373,

Florida Statutes, or in any DEP rule. The dictionary meaning of

" protect " i s to shield or defend against danger or injury; to

cover or shield something from exposure, injury or destruction;

to maintain the status or integrity of something; to guard.

" Protection " is the act of protecting or the state of being

protected. See , e.g. , The New Lexicon Webster’s Dictionary of

the English Language , 803 (1988); Merriam Webster’s Collegiate

Dictionary , 938 10th Ed. (1996).

25. DEP does not interpret the phrase " protection of fish

and wildlife " in Section 373.223(4), Florida Statutes, as

l imited to keeping alive only those specific fish and wildlife

organisms existing at the time a water reservation is

established. DEP witness Janet Llewellyn testified that DEP has

consistently interpreted this phrase to mean ensuring a healthy

and sustain able, native fish and wildlife community; one that

can remain healthy and viable through natural cycles of drought,

flood, and population variation. Petitioners' experts did not

dispute DEP's interpretation of " protection of fish and

wildlife " to include the concepts of " native " species and

species " communities. " Petitioners contend, however, that the

statute should be interpreted to apply only to existing , native

fish and wildlife communities.

26. The term " restore " is not defined in Chapter 373,

Flo rida Statutes, or in any DEP rule. The dictionary meaning of

" restore " is to put back or bring back into an original or

former state or condition. " Restoration " is the act of

restoring or the condition of being restored. See , e.g. , The

New Lexicon Webst er’s Dictionary of the English Language , 834

(1988); Merriam Webster’s Collegiate Dictionary , 998 10th Ed.

(1996).

27. DEP intends the word " restoration, " as used in the

proposed rule, to have its common meaning.

28. All the experts who testified in th is case

acknowledged that " protection " and " restoration " are different

concepts and they each articulated an understanding of the

meaning of these terms that was consistent with the dictionary

meanings of the terms.

29. The experts differed, however, in h ow they applied the

terms " protection " and " restoration " to examples of

environmental improvement activities. In general, Petitioners'

experts thought a relatively clear line could be drawn between

protection and restoration activities. The experts prese nted by

DEP and Audubon, on the other hand, stated that the concepts are

often overlapping and are not mutually exclusive.

30. Petitioners' experts believe that when a project will

have results that include more than maintenance of the current

state, such as increasing numbers of organisms, increasing

diversity, increasing habitat, or improving water quality, th e n

the activity is no longer " protection, " and becomes

" restoration. " In contrast, the DEP and Audubon experts believe

that environmental conditio ns must sometimes be restored in

order to protect existing fish and wildlife.

31. DEP agrees that protection is not the same thing as

restoration. It is DEP's position that the proposed rule cannot

authorize, for example, the reservation of water for res toration

of habitat or ground or surface water levels, except to the

" extent needed for the protection of fish and wildlife or public

health and safety. " DEP agrees that a water reservation cannot

be used " merely because restoration is desired. " Ms. Llew ellyn

explained further:

When a water management district initiates

rulemaking to adopt a reservation, if the

reservation is in aid of any restoration,

the district will have to show that the aid

to such restoration is no more than

necessary to protect fis h and wildlife or

public health and safety.

32. Ms. Llewellyn gave examples of how a reservation could

be properly used as part of a restoration project to protect

fish and wildlife. She stated that an estuary that previously

supported a healthy popu lation of oysters could be adversely

affected by reduced inflows of fresh water due to diversions of

water from the drainage basin which have increased the salinity

of the water in the estuary. The water management district

might construct a reservoir to store water in the rainy season

for release in the dry season to keep salinities in the estuary

at the proper level to protect the health of oysters. In this

example, it is inferred that Ms. Llewellyn intended to convey

that the release of reservoir water in the dry season would

constitute restoration of a previously existing volume of

freshwater inflow to the estuary, or restoration of the salinity

level that would exist if the diversions had not occurred.

33. The more persuasive evidence in the record supports a

finding that, in the context of the comprehensive water

resources program established in Chapter 373, Florida Statutes,

protection and restoration are not mutually exclusive terms and

it is possible to take action that meets the dictionary

defin ition of restoration, but which does no more than protect

(ensure the health and sustainability of) existing fish and

wildlife communities.

34. A restoration project could go beyond " protection " of

fish and wildlife if, rather than merely restoring an

env ironmental condition required for the health and

sustainability of existing fish and wildlife communities, the

project resulted in significantly larger fish and wildlife

communities. Whether water reserved to restore an environmental

condition is required for the protection of fish and wildlife

depends on the particular circumstances involved.

CONCLUSIONS OF LAW

Jurisdiction

35. The Division of Administrative Hearings has subject

matter jurisdiction in this proceeding pursuant to Section

120.56, Florida St atutes.

Standing

36. Subsection 120.56(1)(a), Florida Statutes, provides ,

in part , that any person substantially affected by a proposed

rule may seek an administrative determination of the invalidity

of the proposed rule on the ground that the rule is an invalid

exercise of delegated legislative authority, as defined in

Section 120.52(8), Florida Statutes.

37. The parties stipulated to the factual allegations

concerning standing contained in the rule challenge petition and

the petitions to intervene. Tho se allegations show that AFCD

and FHBA are substantially affected persons with standing to

challenge the proposed rule. SWFWMD, SJRWMD, and the

Environmental Groups are substantially affected persons with

standing to participate as parties.

Rule Challenge s, In General

3 8 . In a rule challenge proceeding, a proposed rule is not

presumed to be valid or invalid. § 120.56(2)(c), Fla. Stat.

39 . A proposed rule may not be invalidated simply because

it does not appear to be the wisest or best choice for

accompl ishing the agency's objective. See Board of Trustees of

Internal Improvement Trust Fund v. Levy , 656 So. 2d 1359, 1364

(Fla. 1st DCA 1995). On the other hand, a rule is not valid

simply because it has a laudable purpose.

4 0 . A rule challenge proceeding under Section 120.56,

Florida Statutes, constitutes a challenge to the facial validity

of the rule and is not to determine the validity of a rule as

applied to specific facts. Fairfield Communities v. Florida

Land and Water Adjudicatory Commission , 522 So . 2d 1012, 1014

(Fla. 1st DCA 1988).

41 . A party challenging a proposed rule has the burden of

going forward to show " with particularity the objections to the

proposed rule and the reasons that the proposed rule is an

invalid exercise of delegated legisla tive authority. "

§ 120.56(2)(a), Fla. Stat. If the challenger meets the burden

of going forward, the agency then has the burden to prove by a

preponderance of the evidence that the proposed rule is not an

invalid exercise of delegated legislative authori ty as to the

objections raised. Id .

The Challenge t o Proposed Rule 62 - 40.474

4 2 . Petitioners met their burden of going forward with

evidence and argument to support the objections to section

(1)(a) of proposed rule 62 - 40.474 , pertaining to the use of

wat er reservations for the protection of fish and wildlife; and

section (3) of the proposed rule, pertaining to the adoption of

water reservations prospectively . Therefore, the burden shifted

to DEP to prove by a preponderance of the evidence that these

prov isions of the proposed rule were not invalid on the grounds

raised by Petitioners.

4 3 . Petitioners did not go forward with evidence or

argument to show " with particularity " the invalidity of section

(1)(b) of the proposed rule, pertaining to the use of wa ter

reservations for the protection of public health and safety;

section (2), which requires specificity in the description of

water reservations; or section (4), which requires independent

scientific peer review. However, to the extent Petitioners'

evide nce and argument directed at the other provisions of the

proposed rule has some general application to the provisions

cited in this paragraph, the sufficiency of that evidence and

argument is addressed below.

4 4 . Petitioners’ challenge is limited to wheth er the

proposed rule is invalid on the grounds stated in Sections

120.52(8)(b), (c), (d), and (e), Florida Statutes. The

Conclusions of Law that follow are organized according to the

four grounds of invalidity asserted by Petitioners.

I. Whether DEP has Exceeded Its

Grant of Rulemaking Authority

4 5 . The " flush left " paragraph of Section 120.52(8),

Florida Statutes, provides:

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implement ed is also required . An agency may

adopt only rules that implement or interpret

the specific powers and duties granted by

the enabling statute. No agency shall have

authority to adopt a rule only because it is

reasonably related to the purpose of the

ena bling legislation and is not arbitrary

and capricious or is within the agency's

class of powers and duties, nor shall an

agency have the authority to implement

statutory provisions setting forth general

legislative intent or policy. Statutory

language gra nting rulemaking authority or

generally describing the powers and

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute .

4 6 . Section 120.536(1), Flori da Statutes, repeats this

legislative directive that an agency cannot rely solely on its

general rulemaking authority to promulgate a rule.

4 7 . The wording in the flush left paragraph in Section

120.52(8), Florida Statutes, was revised by the Florida

Legi slature in 1999 to add the admonition that an agency " may

only adopt rules that implement or interpret the specific powers

and duties granted, " and is not authorized to adopt rules simply

because they are " within the agency’s class of powers and

duties. " The statute was amended in response to St. Johns River

Water management District v. Consolidated - Tomoka Land Co. , 717

So. 2d 72 (Fla. 1st DCA 1998), which held that a rule is a valid

exercise of delegated legislative authority " if it regulates a

matter dir ectly within the class of powers and duties identified

in the statute to be implemented. " Id. at 80; See Southwest

Florida Water Management Dist. v. Save the Manatee Club, Inc. ,

773 So. 2d 594 (Fla. 1st DCA 2000).

4 8 . In Save the Manatee Club , the court noted the

amendment to the flush left paragraph of Section 120.52(8),

Florida Statutes, and held that " the authority to adopt an

administrative rule must be based on an explicit power or duty

identified in the enabling statute. " Id. at 599. The court

ex plained further:

It follows that the authority for an

administrative rule is not a matter of

degree. The question is whether the statute

contains a specific grant of legislative

authority for the rule, not whether the

grant of authority is specific enough .

Either the enabling statute authorizes the

rule at issue or it does not.

Id .

49 . Three of the statutes cited in proposed rule

62 - 40.474, as specific authority for the rule, are Section

373.026(7), Florida Statutes, which grants DEP general

supervisory authority over the water management districts;

Section 373.043, Florida Statutes, which grants general

rulemaking authority to DEP; and Section 373.171, Florida

Statutes, which grants general rulemaking authority to the

governing boards of the water manag ement districts. These are

not specific grants of rulemaking authority for the proposed

rule.

5 0 . The fourth statute cited as specific authority for the

proposed rule is Section 373.036(1)(d), Florida Statutes, which

requires DEP to prepare and maintain a Florida Water Plan in

cooperation with the water management districts, regional water

supply authorities, and other entities. A required element of

the Florida Water Plan is the WRIR:

(d) Goals, objectives, and guidance for the

development and review of programs, rules,

and plans relating to water resources , based

on statutory policies and directives. The

state water policy rule, renamed the water

resource implementation rule pursuant to

s. 373.019(20), shall serve as this part of

the plan. Amendment s or additions to this

part of the Florida water plan shall be

adopted by the department as part of the

water resource implementation rule . In

accordance with s. 373.114, the department

shall review rules of the water management

districts for consistency with this rule.

Amendments to the water resource

implementation rule must be adopted by the

secretary of the department and be submitted

to the President of the Senate and the

Speaker of the House of Representatives

within 7 days after publication in the

Florida Administrative Weekly. Amendments

shall not become effective until the

conclusion of the next regular session of

the Legislature following their adoption.

( E mphasis added . )

5 1 . Section 373.019(23), Florida Statutes, defines the

WRIR, in part, a s " the rule authorized by s. 373.036. "

5 2 . DEP has adopted the WRIR as Florida Administrative

Code Chapter 62 - 40. The proposed rule challenged in this case

would be part of the WRIR. Conforming to the standard set forth

in Save the Manatee Club , the pro posed rule implements an

explicit statutory power or duty - - the power and duty of DEP to

adopt and amend the WRIR.

5 3 . Petitioners contend that Section 373.036(1), Florida

Statutes, is not a sufficient grant of rulemaking authority for

the proposed rules . They urge an interpretation of the flush

left paragraph of Section 120.52(8), Florida Statutes, and the

holding in Save the Manatee Club , which would require, in

essence, a specific grant of rulemaking authority for every

substantive word and effect of the proposed rule. Such an

interpretation, however, would render superfluous the other

ground for invalidity of a rule stated in Section 120.52(8)(c),

Florida Statutes, that the rule " enlarges, modifies, or

contravenes the specific provisions of law imple mented. "

5 4 . Section 120.52(8)(b), Florida Statutes, addresses the

grant of rulemaking authority in the enabling statute. Section

120.52(8)(c), Florida Statutes, addresses the law that is being

implemented. These are different subjects and may involve

di fferent statutes. Section 120.52(8), Florida Statutes ,

contemplates that there could be a proposed rule for which there

is a specific grant of rulemaking authority, but the rule is

still an invalid exercise of delegated legislative authority

because it en larges, modifies or contravenes the specific

provisions of the law implemented. The distinction between

Sections 120.52(8)(b) and 120.52(8)(c), Florida Statutes, is

lost if a grant of rulemaking authority can be deemed

insufficient because the rule enlarg es, modifies or contravenes

the law implemented.

5 5 . Section 373.036(1), Florida Statutes, grants specific

authority to DEP to adopt and amend g oals, objectives, and

guidance for inclusion in the WRIR. That is what DEP is

attempting to do with the propos ed rule that is challenged in

this case. DEP has met its burden to show that the proposed

rule is not an invalid exercise of delegated legislative

authority on the ground that the agency has exceeded its grant

of rulemaking authority.

5 6 . Petitioners a ssert that the statute authorizing water

reservations, Section 373.223(4), Florida Statutes, is self -

executing , and the Legislature did not intend for there to be

rules adopted to interpret and implement this statute. The

authority cited for this argument is not persuasive and there is

no hint in Section 373.036(1)(d), Florida Statutes, that

guidance on water reservations was to be excluded from the WRIR.

II. Whether the Proposed Rule Enlarges, Modifies, or

Contravenes the Specific Provisions of Law Impl emented

5 7 . Petitioners claim that proposed rule 62 - 40.474 is an

invalid exercise of delegated legislative authority under

Section 120.52(8)(c), Florida Statutes, because the proposed

rule enlarges, modifies or contravenes the specific law

implemented. Before addressing the various examples of water

reservations that are challenged on this ground by Petitioners,

the phrase that introduces the examples must be addressed. DEP

changed the draft rule at some point in the rulemaking process,

apparently in re sponse to the claim that the examples enlarge

the specific law implemented. DEP changed the introductory

phrase of proposed rule 62 - 40.474(1)(a) to read , " Reservations

may be used for the protection of fish and wildlife to . . . ., "

which is then followed by the examples.

5 8 . The introductory phrase expresses a purpose

(protection of fish and wildlife) , and each example expresses a

purpose (such as restoration of a natural system). DEP intends

the introductory phrase to limit the use of water reservation s

in all the examples that follow to the overarching purpose of

protection of fish and wildlife. In all circumstances, the

water reservation must be required for the protection of fish

and wildlife.

59 . Although the proposed rule could be written more

cogently, Section 120.52(8), Florida Statutes, does make failing

to write a proposed rule more cogently a ground for invalidating

the rule. DEP's interpretation of the wording of proposed rule

in this respect is reasonable.

A. Reservations to Aid in a

Re covery or Prevention Strategy

6 0 . Proposed rule 62 - 40.474(1)(a)1. provides that

reservations may be used " for the protection of fish and

wildlife to . . . [a]id in a recovery or prevention strategy for

a water resource with an established minimum flow or level. "

6 1 . Minimum flows for surface watercourses and minimum

levels for groundwater (MFLs) are established by the water

management districts to identify the point at which further

withdrawals would be " significantly harmful " to the water

resources or ec ology of the area. § 373.042(1), Fla. Stat.

Harm to the water resources can include harm to fish and

wildlife.

6 2 . The " recovery or prevention strategy " referred to in

the proposed rule means the strategy derived from Section

373.042(2), Florida Statut es, which provides:

If the existing flow or level in a waterbody

is below, or is projected to fall within

20 years below, the applicable minimum flow

or level established pursuant to s. 373.042,

the department or governing board, as part

of the regional wa ter supply plan described

in s. 373.0361, shall expeditiously

implement a recovery or prevention strategy,

which includes the development of additional

water supplies and other actions, consistent

with the authority granted by this chapter,

to:

(a) Achie ve recovery to the established

minimum flow or level as soon as

practicable; or

(b) Prevent the existing flow or level from

falling below the established minimum flow

or level.

The recovery or prevention strategy shall

include phasing or a timetable whi ch will

allow for the provision of sufficient water

supplies for all existing and projected

reasonable - beneficial uses, including

development of additional water supplies and

implementation of conservation and other

efficiency measures concurrent with, to the

extent practical, and to offset, reductions

in permitted withdrawals, consistent with

the provisions of this chapter.

6 3 . In Florida Administrative Code Rule 62 - 40.473(2), DEP

previously indicated how a water reservation might be considered

in conjun ction with establishment and maintenance of MFLs and

how it could contribute to MFL objectives:

Water bodies experience variations in water

flows and levels that often contribute to

significant functions of the system, such as

those described in subsectio n 62 - 40.473(1),

F.A.C. Minimum flows and levels should be

expressed as multiple flows or levels

defining a minimum hydrologic regime, to the

extent practical and necessary to establish

the limit beyond which further withdrawals

would be significantly harm ful to the water

resources or the ecology of the area as

provided in Section 373.042(1), F.S.

However, a minimum flow or level need not be

expressed as multiple flows or levels if

other resource protection tools, such as

reservations implemented to protect fish and

wildlife or public health and safety, that

provide equivalent or greater protection of

the hydrologic regime of the water body, are

developed and adopted in coordination with

the minimum flow or level . ( E mphasis

added . )

6 4 . DEP's acknowledges that it would not be an appropriate

use of a water reservation to aid in a recovery or prevention

strategy if the reservation is not required for the protection

of fish and wildlife. The proposed rule provides no guidance

for the identification of the ki nds of recovery or prevention

strategies for which a water reservation would not be

appropriate.

6 5 . There is no express prohibition in Section 373.223(4),

Florida Statutes, against the reservation of water in

conjunction with a recovery or prevention str ategy. As long as

the water reservation is required for the protection of fish and

wildlife or the public health and safety, the statute is

satisfied. There are no other explicit or implicit restrictions

placed on the contexts in which water might be res erved .

6 6 . In urging that Section 373.223(4), Florida Statutes,

be interpreted to prohibit the use of water reservation in aid

of a recovery or prevention strategy, Petitioners rely heavily

on the 1972 Legislature's decision not to use the reference to

th e State Water Plan as suggested by the authors of A Model

Water Code . Although the commentary of A Model Water Code has

provided helpful insight into the Legislature’s intent regarding

provisions of the 1972 Act that were derived from the model code

( s ee , e.g. , Southwest Florida Water Management District v.

Charlotte County , 774 So. 2d 903, 907 (Fla. 2d DCA 2001),

rev . den. , 800 So. 2d 615 (Fla. 2001) ) , the commentary does not

address, of course, what the 1972 Legislature changed. The

undersigned was unab le to discern the " clear " intent of the 1972

Legislature not to integrate the protection of fish and wildlife

via water reservations with the other programs created in the

1972 Act, such as the establishment of MFLs for the protection

of water resources.

6 7 . The flush left paragraph of Section 120.52(8), Florida

Statutes, acknowledges the authority of administrative agencies

to adopt rules that interpret the specific powers and duties

granted by the laws they implement. The term " rule " is defined

in Secti on 120.52(15), Florida Statutes, as a " statement of

general applicability that implements, interprets, or prescribes

law or policy. "

6 8 . In Sierra Club v. St. Johns River Water Management

District , 816 So. 2d 687, 692 (Fla. 5th DCA 2002) , the court

state d, " Logic dictates that the closer the rule tracks the

statute, the less likely it modifies or contravenes the statute.

The language need not be identical, however, as there would be

no need for the rule. "

69 . When an agency clothed with authority to impl ement a

statute construes the statute in a permissible way, that

interpretation must be sustained even though another

interpretation is possible or even, in the view of some,

preferable. Humhosco, Inc. v. Dept. of Health and Rehab.

Services , 476 So. 2d 25 8, 261 (Fla. 1st DCA 1985).

7 0 . Discretion and deference are to be accorded an agency

in the interpretation of a statute that it administers and

should be upheld when it is within the range of permissible

interpretations. Public Employees Relations Comm' n v. Dade

County Police Benevolent Ass'n. , 467 So. 2d 987 (Fla. 1985),

Board of Podiatric Medicine v. Florida Medical Association 779

So. 2d 658 (Fla. 1st DCA 2001).

7 1 . DEP’s interpretation of Section 373.223(4), Florida

Statutes, and the MFL provision s of Chapter 373, Florida

Statutes, as allowing the application of these authorities to be

integrated as long as the water reservation is required for the

protection of fish and wildlife, is a permissible interpretation

of the statute.

7 2 . By providing th at water reservations can be used to

aid in a prevention or recovery strategy for an established

minimum flow or level, proposed rule 62 - 40.474 does not enlarge,

modify or contravene the specific provisions of law implemented.

B. Reservations to Aid in the

Restoration of Natural Systems

7 3 . Proposed rule 62 - 40.474(1)(a)2. provides that

reservations may be used " for the protection of fish and

wildlife to . . . [a]id in the restoration of natural systems

which provide fish and wildlife habitat. " Petitio ners contend

this provision enlarges, modifies or contravenes Section

373.223(4), Florida Statutes, because the term " natural systems "

is broader than the term " fish and wildlife , " and the latter

term does not include habitat.

7 4 . The term " natural system s " is defined in Florida

Administrative Code Rule 62.40.210(19) as " an ecological system

supporting aquatic and wetland - dependent natural resources,

including fish and aquatic and wetland - dependent wildlife

habitat. " According to this definition, a natura l system

includes fish and wildlife habitat. It was not disputed by DEP

that " natural systems " has a broader meaning than " fish and

wildlife. " The relevant issue, however, is whether the proposed

rule would allow water to be reserved under circumstances where

the reservation is not required for the protection of fish and

wildlife, which would contravene the specific law implemented.

7 5 . The words " restore " and " restoration " were not used in

any provision of A Model Water Code or in any provision of the

1 972 Act.

7 6 . There is express statutory authority to use a water

reservation in conjunction with restoration of the Everglades.

Section 373.470, Florida Statutes, entitled " Everglades

Restoration, " provides in subsection (3)(c):

Prior to executing a pr oject cooperation

agreement with the Corps for the

construction of a project component, the

district, in cooperation with the Corps,

shall complete a project implementation

report to address the project component’s

economic and environmental benefits,

engi neering feasibility, and other factors

provided in section 373.1501 sufficient to

allow the district to obtain approval under

s. 373.026. Each project implementation

report shall also identify the increase in

water supplies resulting from the project

comp onent. The additional water supply

shall be allocated or reserved by the

district under Chapter 373 . ( E mphasis

added . )

7 7 . DEP asserts that the reference to a water reservation

in Section 373.470(3)(c), Florida Statutes, confirms that

Section 373.223(4) , Florida Statutes, grants authority to

reserve water in aid of restoration. Petitioners argue that the

grant of authority in Section 373.470(3)(c), Florida Statutes,

is unique to the Everglades, where restoration is a statutory

objective, and does not ex tend to other water bodies where there

is no similar explicit linkage between reserving water and

restoration.

7 8 . There is nothing in Section 373.470(3)(c), Florida

Statutes, that indicates a different meaning should be ascribed

to the phrase " protection of fish and wildlife " in Section

373.223(4), Florida Statutes, than the meaning that the phrase

had before the enactment of Section 373.470(3)(c), Florida

Statutes. More specifically, the mention of water reservations

in Section 373.470(3)(c), Florida Sta tutes, does not mean the

term " protection " in Section 373.223(4), Florida Statutes, can

be construed to mean " restoration. "

79 . However, Section 373.470(3)(c), Florida Statutes,

provides a legislative example of how a water reservation can be

used in aid of the restoration of a natural system. By doing

so, it lends support to DEP's interpretation of Section

373.223(4), Florida Statutes, which would allow water

reservations to be used in aid of other restoration projects

when the reservation is required fo r the protection of fish and

wildlife.

8 0 . Because the proposed rule uses the terms " restoration "

and " natural system " to implement a statute that uses the terms

" protection " and " fish and wildlife, " a conflict could arise

under circumstances where the res ervation might aid in a

restoration effort , but not be required for the protection of

fish and wildlife. The conflict could arise if the objective of

the restoration was something other than, or more than, ensuring

the health and sustainability of existin g, native fish and

wildlife communities. DEP admitted that it would sometimes be

difficult to determine whether a water reservation in aid of

restoration of a natural system would be appropriate. The

proposed rule provides no guidance on how to deal with this

potential conflict.

8 1 . There is no express prohibition in Section 373.223(4),

Florida Statutes, against the reservation of water in

conjunction with the restoration of a natural system, as long as

the reservation is required for protection of fish and wildlife

or the public health and safety. DEP's interpretation of the

statute as allowing for the use of water reservations to aid in

the restoration of natural systems other than the Everglades

when " required for the protection of fish and wildlife " is a

reasonable one.

8 2 . For the same reasons set forth in the earlier

discussion regarding the use of water reservations in aid of a

prevention or recovery strategy, it is concluded that the

proposed rule's provision for the use of water reservations to

aid in restoration of a natural system is not facially invalid

because the proposed rule limits the use of the water

reservation to circumstances when the reservation is required

for the protection of fish and wildlife.

8 3 . By providing that water reser vations can be used to

aid in the restoration of a natural system that provides fish

and wildlife habitat, proposed rule 62 - 40.474 does not enlarge,

modify or contravene the specific law implemented.

C. Reservations to Protect Flows

or Levels Before Harm Occurs

8 4 . Proposed rule 62 - 40.474(1)(a)3. provides that

reservations may be used " for the protection of fish and

wildlife to . . . [p]rotect flows or levels that support fish

and wildlife before harm occurs. "

8 5 . In explaining DEP's intent with this p articular

provision, Ms. Llewellyn stated that the prevention of " harm " is

the objective of the water use permitting process, but water

could be reserved to ensure sufficient water to maintain the

fish and wildlife rather than solely relying on permitting to

prevent harm. 2

8 6 . There is no limitation expressed in Section

373.223(4), Florida Statutes, with regard to the circumstances

in which water can be reserved a s long as the reservation is

required for protection of fish and wildlife or the public

health and safety. For the same reasons set forth in the

previous discussion, it is concluded that the proposed rule's

provision for the use of water reservations to p rotect flows or

levels that support fish and wildlife before harm occurs is not

facially inval id because the proposed rule limits the use of the

water reservation to circumstances when the reservation is

required for the protection of fish and wildlife.

8 7 . By providing that water reservations can be used to

protect flows or levels that support fish and wildlife before

harm occurs, proposed rule 62 - 40.474 does not enlarge, modify or

contravene the specific provisions of law implemented.

D. Reservations for Outstanding Florida Waters, etc.

8 8 . Proposed rule 62 - 40.474(1)(a)4. provides that

res ervations may be used " for the protection of fish and

wildlife to . . . [p]rotect fish and wildlife within an

Outstanding Florida Water, an Aquatic Preserve, a state park, or

other publicly owned conservation land with significant

ecological value. "

89 . Petitioners object to this provision of the proposed

rule because they believe it enlarges the use of water

reservations beyond the statutory purpose of protection of fish

and wildlife. However, because the proposed rule limits the

reservation of water t o situations where the reservation is

required for the protection of fish and wildlife, the proposed

rule's articulation of the types of water bodies and designated

public lands where water reservations might be used does not

enlarge, modify, or contravene the specific provisions of law

implemented.

E. Reservations in Any Other Circumstances

9 0 . Proposed rule 62 - 40.474(1)(a)4. provides that water

reservations may be used " for the protection of fish and

wildlife to . . . [p]revent withdrawals in any other

circumstance required to protect fish and wildlife. "

9 1 . Petitioners contend that this provision of the

proposed rule enlarges , " without limit , " the circumstances under

which water might be reserved. Although the wording in the

proposed rule is very br oad (and somewhat circuitous), it is no

broader than the grant of authority in the enabling statute.

9 2 . Section 373.223(4), Florida Statutes, grants

discretion to DEP or a governing board of a water management

district to reserve water from use by permit applicants

whenever , " as in its judgment , " the reservation is required for

the protection of fish and wildlife. There is no material

difference between this wording in the statute and the wording,

" in any . . . circumstance required to protect fish and

w ildlife, " in the proposed rule. Therefore, this provision does

not enlarge, modify, or contravene the specific provisions of

law implemented.

F. Reservations Adopted Prospectively

9 3 . Proposed rule 62 - 40.474(3) provides:

Reservations can be adopted pro spectively

for water quantities anticipated to be made

available. When water is reserved

prospectively, the reservation rule shall

state when the quantities are anticipated to

become available and how the reserved

quantities will be adjusted if the actual

water made available is different than the

quantity anticipated.

9 4 . DEP explained that the purpose of this provision is to

assure that when a water development project is implemented for

the purpose of providing water for the protection of fish and

wi ldlife or public health and safety, " the water doesn't get

allocated to permit applicants before it can be used for its

intended purpose. " When water is reserved prospectively, the

rule identifies the additional information that must be included

in the sp ecific reservation rule.

9 5 . There is nothing in Section 373.223(4), Florida

Statutes, to indicate that water reservations could not apply to

water anticipated from future water projects. In Chapter 373,

Florida Statutes, there is a strong emphasis place d on water

supply planning. Planning, by definition, is forward - looking.

DEP 's interpretation of Section 373.223(4), Florida Statutes, to

allow water to be reserved prospectively complements the

planning process.

9 6 . In this regard, the commentary in A Model Water Code

is helpful. The reservation of water to be produced by a future

water development project is a specific example given in A Model

Water Code for how a water reservation can be beneficially used.

Another application of the reservation powe r

is to allow for future water development

projects. A potential project may be

conceived of long before actual need arises,

and a large and comprehensive project may be

contemplated years before final developments

are contemplated. Such projects may be

jeopardized if less desirable uses are

permitted to utilize the same water source.

A Model Water Code at 107.

9 7 . An agency's interpretation of a statute it is charged

with administering should be upheld unless it is clearly

erroneous. See Wallace Cor p. v. City of Miami Beach , 793 So. 2d

1134, 1140 (Fla. 1st DCA 2001). DEP 's interpretation of Section

373.223(4) Florida Statutes, to allow for the reservation of

water supplies anticipated to be developed in the future, is not

clearly erroneous.

9 8 . Thi s provision of the proposed rule which allows water

reservations to be adopted prospectively does not enlarge,

modify, or contravene the specific provisions of law

implemented.

III. Whether the Proposed Rule is Vague

99. Petitioners claim that proposed ru le 62 - 40.474 is an

invalid exercise of delegated legislative authority under

Section 120.52(8)(d), Florida Statutes, because the proposed

rule is vague, fails to establish adequate standards for agency

decisions, and vests unbridled discretion in the agenc y.

Petitioners contend that the wording used in the proposed rule

is vague and in some cases contradictory. They object that some

terms are not defined and could be construed in different ways.

Petitioners believe the proposed rule has no standards to g uide

agency decisions , and the result will be the use of water

reservation under circumstances not authorized by Section

373.223(4), Florida Statutes.

10 0 . Section 373.223(4), Florida Statutes, allows water to

be reserved in any and all circumstances w here the reservation

is required for the protection of fish and wildlife or the

public health and safety. All the unanswered questions that

Petitioners contend are raised by the examples given in the

proposed rule are also raised and unanswered by the sta tute that

the rule implements. 3 The standards Petitioners claim are

missing from the proposed rule, such as standards to determine

whether a water reservation is " required for the protection of

fish and wildlife, " are also missing from the statute.

10 1 . Where the Legislature has not defined words or

phrases used in a statute, they must be construed in accordance

with their common and ordinary meaning. Donato v. American Tel.

& Tel. Co. , 767 So. 2d 1146 (Fla. 2000). The plain and ordinary

meaning of a w ord may be ascertained by reference to a

dictionary. Green v. State , 604 So. 2d 471 (Fla. 1992).

However, as explained by the c ourt in Charlotte County , there

are variations on the general rule regarding words being given

their plain meaning.

The suprem e 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 Comp ensation 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 Laun dry 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. " ( O ther citations omitted . )

Charlotte County , 774 So. 2d at 915 - 16.

10 2 . DEP's interpretation of the term " fish and wildlife "

to mean native fish and wildlife communities is a reasonable

interpretation. The interpretation is not inconsistent with the

dictionary definition of the words, but includes refinements

that more accurately reflect the accepted technical or

scientific meaning for the term in the context in which it

appears - - a statute dealing with water resources.

10 3 . DEP's interpretation of " protection " to mean ensuring

the health and sustainability of fish and wildlife communities

through natural cycles of drought, flood, and population

v ariation, is a reasonable one. The interpretation is not

inconsistent with the dictionary definition of the word

" protection " , but includes refinements that more accurately

reflect the accepted technical or scientific meaning for the

term in the context i n which it appears.

10 4 . It would be very difficult to establish standards

that could determine for all future scenarios whether a project

is " required for the protection of fish and wildlife. " The

determination requires a case - by - case analysis of numer ous

factors. The determination will require the application of

scientific judgment to complex technical data. Experience in

the making of water reservations, which could assist in the

establishment of rule standards, is currently lacking.

10 5 . Whether a rule is vague or fails to establish

adequate standards depends in part on whether the subject matter

involves complex, site - specific considerations that are not

amenable to specific standards. Charlotte County , 774 So. 2d

at 913.

10 6 . The field of env ironmental regulation has been

acknowledged in several court decisions as one requiring rules

that allow flexibility in dealing with the " infinite variety " of

situations that can occur. E.g. , Avatar Development Corp. v.

State , 723 So. 2d 199 (Fla. 1998); Albrecht v. Dept. of Envtl.

Regulation , 353 So. 2d 883 (Fla. 1st DCA 1977); State v.

Hamilton , 388 So. 2d 561 (Fla. 1980); Ameraquatic, Inc. v. Dept.

of Natural Resources , 651 So. 2d 114 (Fla. 1st DCA 1995) .

10 7 . Petitioners’ arguments on the ground of va gueness

deal substantially with how the proposed rule might cause a

future water reservation to be made that is not required for the

protection of fish and wildlife as required by Section

373.223(4), Florida Statutes. When courts are called upon to

determ ine the constitutionality of a statute, the statute will

be upheld when it can be interpreted constitutionally, even if

there is another interpretation possible that would violate the

Constitution. See , e.g. , Florida Dept. of Revenue v. City of

Gainesvill e , __ So.2d __ 30, Fla. L. Weekly S829 (Fla.

December 8, 2005). Similarly, if proposed rule 62 - 40.474 can be

interpreted and applied by DEP in a manner that is consistent

with the specific authority implemented, the fact that it could

be interpreted or ap plied in another way that would cause it to

be an invalid exercise of delegated legislative authority does

not require the rule to be invalidated. See Hasper v. Dept. of

Administration , 459 So. 2d 398, 400 (Fla 1st DCA 1984) .

10 8 . The remedy for an er roneous application of the

proposed rule is in a proceeding pursuant to Section 120.56,

Florida Statutes, at the time a water management district

attempts to establish a specific water reservation by rule. In

such a proceeding, the factual circumstances w hich gave rise to

the dispute will no longer be a matter of speculation.

1 09 . Petitioners cite Cortes v. Board of Regents , 655

So. 2d 132 (Fla. 1st DCA 1995) , in support of their argument

that when a rule creates discretion not articulated in the

statute it implements, the rule must specify the basis on which

the discretion is to be exercised. However, the discretion

created in the proposed rule 62 - 40.474 is no greater than the

discretion articulated in the statute it implements; to reserve

water whenever , in the judgment of the water management

districts, the reservation is required for the protection of

fish and wildlife or the public health and safety. An

administrative rule cannot be invalidated simply because it

reflects the broad discretion conferre d on the agency by the law

implemented. Id. at 137.

11 0 . The reservation of water in any particular set of

circumstances will require the application of scientific

judgment to unique and complex technical data ; the lack of

specific guidelines in the rul e for the determination of whether

a reservation is required for the protection of fish and

wildlife does not cause the proposed rule to be invalid for

vagueness.

IV. Whether the Proposed Rule is Arbitrary or Capricious

11 1 . Section 120.52(8)(e), Florida Statutes, provides that

a rule is an invalid exercise of delegated legislative authority

if it is arbitrary or capricious. A rule is arbitrary if it is

not supported by logic or the necessary facts; it is capricious

if it is adopted without thought or rea son or is irrational.

Id.

11 2 . Petitioners claim the proposed rule is illogical

because it is unnecessary. Lack of necessity is not a ground

for invalidating a rule under Section 120.52(8)(e), Florida

Statutes.

11 3 . Petitioners assert that there has b een no recent

enactment by the Florida Legislature that justifies the proposed

rule or the need for guidance on water reservations. DEP ’s

reasons for proposing rule 62 - 40.474, because it expected the

water management districts to begin reserving water and

questions were arising about how to use water reservations, are

not illogical reasons for proposing the rule at this time.

11 4 . The proposed rule is not irrational. In proposing

this rule, DEP is attempting to perform a duty imposed by the

Legislature t o provide g oals, objectives, and guidance for the

development and review of programs, rules, and plans relating to

water resources.

11 5 . Petitioners argue that the proposed rule is arbitrary

and capricious because the examples of water reservations in the

proposed rule " were not based on particular scientific or

technical data or in consultation with persons or entities with

substantive knowledge, but simply based on the 'collective

experience' of the authors. " This claim is contrary to the

record evidenc e which shows that the rulemaking process included

many public workshops held to receive input from knowledgeable

persons. Furthermore, the principle author of the proposed

rule, Ms. Llewellyn, has expertise in scientific fields directly

relevant to water reservations.

11 6 . Finally, Petitioners argue that the proposed rule is

arbitrary and capricious because it does not address the needs

of the consumptive water users who will not be able to obtain a

permit for water that has been reserved. This argumen t is

rejected simply on the basis that a rule pertaining to a subject

is not required to address all matters related to the subject.

In addition, Section 373.223(4), Florida Statutes, is also

silent on the needs of water users. This statute, however, is

one piece of a comprehensive and complex water resources program

created in Chapter 373, Florida Statutes, which includes

specific provisions for meeting the future water needs of all

water users.

11 7 . DEP met its burden to demonstrate by a preponderance

of the evidence that proposed rule 62 - 40.474 is not an invalid

exercise of delegated legislative authority on the ground of

vagueness.

11 8 . Petitioners' concerns about the rule are not entirely

unreasonable. The proposed rule could have been written mo re

cogently to convey the meaning intended by DEP and could have

provided more meaningful guidance to the water management

districts in their adoption of water reservations.

N evertheless, this is a challenge to the facial validity of the

proposed rule. B ecause the proposed rule incorporates the sole

statutory criterion that water can only be reserved when

required for t he protection of fish and wildlife or the public

health and safety, the rule is facially valid.

ORDER

For the reasons set forth above, it is

ORDERED that proposed r ules 62 - 40.410(3) and 62 - 40.474 are

not invalid exercises of delegated legislative authority.

DONE AND ORDERED this 24th day of February , 2006 , in

Tallahassee, 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 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

D ivision of Administrative Hearings

this 24th day of February , 2006 .

ENDNOTES

1/ Unless otherwise indicated, all references to the Florida

Statutes are to Florida Statutes (2005). The petition was

originally filed in 2003, but the applicable provisions of

Chapters 120 and 373, Florida Statutes, have not changed.

2/ DEP believes this approach could provide more certainty for

water users. Of course, certainty is not appreciated by water

users when it means certainty that water will not be available

for their use.

3/ Petitioners ask: " [T] o what time period or condition should a

system be restored? Can water be reserved in one place to be

used in another? Is the reservation to protect existing fish

and wildlife or desired future populations of other fi sh and

wildlife? Should a salt water system be restored to its

historical fresh water condition, regardless of its effect on

existing salt water fish and wildlife within the system? What

species of fish and wildlife should be given priority over the

exist ing species when restoring or recovering a system? How is

a balance struck between future users, fish and wildlife, and

future sources of water? "

COPIES FURNISHED :

Betsy Hewitt, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Cecile I. Ross, Esquire

South Florida Water Management District

3301 Gun Club Road, MSC 1410

West Palm Beach, Florida 33406 - 3007

Edwin A. Steinmeyer, Esquire

L ewis, Longman & Walker , P.A.

Post Office Box 10788

Tallahassee, Florida 32301 - 2788

J. Kendrick Tucker , Esquire

Huey, Guilday, Tucker, Schwartz

& Williams, P.A.

Post Office Box 12500

Tallahassee, Florida 32317 - 2500

Keith Hetrick, General Counsel

Florida Home Builders Assoc iation

Post Office Box 1259

Tallahassee, Florida 32302 - 1259

E. Thom Rumberger, Esquire

Rumberger, Kirk & Caldwell, P.A.

108 South Monroe Street, Suite 100

Post Office Box 10507

Tallahassee, Florida 32302 - 2507

Mary F. Smallwood, Esquire

Ruden, McClosky, Smith, Schuster

& Russell, P.A.

215 South Monroe Street, Suite 815

Tallahassee, Florida 32301 - 1858

Frank E. Matthews, Esquire

Hopping, Green & Sams, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314 - 6526

Robert G. Gough, S r. , Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399

Christine E. Lamia, Esquire

Department of Environmental Protection

3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399 - 3000

Susan L. Stephens, Esquire

Hopping , Green & S a ms, P.A.

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 323 14 - 6526

Stephen A. Walker, Esquire

Lewis, Longman & Walker, P.A.

1700 Palm Beach Lakes Boulevard

Suite 1000

West Pal m Beach, Florida 33401

Thomas I. Mayton, Jr., Esquire

St. Johns River Water

Management District

4049 Reid Street

Palatka, Florida 32177 - 2529

Liz Cloud, Program Administrator

Bureau of Administrative Code

Department of State

R.A. Gray Building, Suite 101

Tallahassee, F lorida 32399 - 0250

Scott Boyd, Executive Director

and General Counsel

Joint Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affect ed 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 t he 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.