01-004026RU Angelo`s Aggregate Materials, Ltd. vs. Suwannee River Water Management District Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Monday, December 23, 2002.

Summary: Agency statements concerning reliance on FEMA flood maps for establishing floodway and alternatively requiring applicants to obtain map amendment from FEMA before agency will accept alternative boundaries are rules as defined by Section 120.52(15), F.S.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELO'S AGGREGATE MATERIALS, )

LTD., )

)

Petitioner, )

)

vs. ) Case No. 01 - 4026RU

)

SUWANNEE RIVER WATER MANAGEMENT )

DISTRICT, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on January 10 and 28, 2002, in Live Oak, Florida, before the

Division of Administrative Hearings, by its designated

Administrative Law Judge, Barbara J. Staros.

APPEARANCES

For Petitioner: Daniel H. Thompson, Esquire

Berger, Davis & Singerman, P.A.

215 South Monroe Street

Suite 705

Tallahassee, Florida 32301

For Respondent: Bruce W. Robinson, Esquire

Brannon, Brown, Haley,

Robinson and Bull ock, P.A.

Post Office Box 1029

Lake City, Florida 32056

STATEMENT OF THE ISSUE

Whether Respondent's statements as set forth in the First

Amended Petition to Determine Validity of Agency Statements

Defined as Rules are rules as defined in Sec tion 120.52(15),

Florida Statutes, which have not been promulgated as required by

Section 120.54(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner, Angelo's Aggregate Materials, Inc. (Angelo's),

filed a Petition to Determine Validity of Agency Sta tements

Defined as Rules with the Suwannee River Water Management

District (District) on or about October 19, 2001. The Petition

was forwarded to the Division of Administrative Hearings and on

October 23, 2001, was assigned to Lawrence P. Stevenson,

Admin istrative Law Judge. A final hearing was scheduled for

November 15, 2001, and was later rescheduled for November 16,

2001.

By order dated November 13, 2001, this case was

consolidated for hearing with DOAH Case No. 01 - 004383RX. A

Motion to Change Venue was filed and by order dated November 27,

2001, venue was changed to Live Oak, Florida. The cases were

then reassigned to Administrative Law Judge, Barbara J. Staros.

By agreement of the parties, the case was continued until

January 10, 2002.

Petitioner filed an unopposed Motion to Amend the Petition

to Determine Validity of Statements Defined as Rules. The

motion was granted and the case proceeded under the First

Amended Petition to Determine Validity of Agency Statements

Defined as Rules.

At hearin g, Petitioner presented the testimony of two

witnesses, Dennis Price and John Barnard. With the exception of

Exhibit 15, Petitioner's Exhibits 1 through 22, including the

deposition testimony of David Still, David Fisk, and Brett

Cunningham, were admitted into evidence. Exhibit 15 was

rejected.

Respondent presented the testimony of three witnesses,

David Still, Brett Cunningham and David Fisk. Respondent's

Exhibits 1 through 10, including the deposition testimony of

Dennis Price and John Barnard, were a dmitted into evidence. The

parties' request for official recognition of pertinent rules of

the Florida Administrative Code was granted. The hearing had

not concluded at the end of the day so the continuation of the

hearing was scheduled for January 28, 2 002.

A Transcript consisting of three volumes was filed on

February 11, 2002. The parties requested more than 10 days in

which to file Proposed Final Orders. That request was granted.

The parties timely filed Proposed Final Orders which have been

consi dered in the preparation of this Final Order.

While the cases were consolidated for hearing, separate

final orders have been prepared addressing the challenge to the

validity of existing rules and the challenge to alleged agency

statements.

FINDINGS OF F ACT

1. Petitioner alleges that the following constitute agency

statements defined as rules but not properly adopted as rules by

the District:

a. The District considers a particular parcel of

property to be located within a "floodway" within the

District' s regulatory jurisdiction for Works of the

District (WOD) permitting on the basis of the parcel

being located within a floodway established pursuant

to a currently - approved Federal Emergency Management

Agency (FEMA) Flood Insurance Study (FIS).

b. The Dis trict will not accept any alternative

floodway boundaries that are inconsistent with those

established in the FIS unless FEMA confirms that the

alternative boundaries are more accurate than those

obtained from the existing FIS, and FEMA approves the

altern ative boundaries through a formal approval

process, such as a Letter of Map Revision that also

requires local government concurrence.

c. If the District determines the parcel to be

within its regulatory floodway, it will require an

Environmental Resource Permit (ERP) application for

any development activities within the floodway, other

than those entitled to a general permit under Rule

40B - 4.3010, Florida Administrative Code.

d. The District will require an ERP for the

activities described in paragraph "c " notwithstanding

the fact that the Department is evaluating those same

activities as part of an ERP application that has been

submitted to the Department of Environmental

Protection (Department) for the same activity in the

same location under the terms o f the Operating

Agreement. 1/

e. The District will evaluate an application to

conduct development activities as described in

paragraph "c" based upon the full range of ERP

permitting criteria contained in the District's rules,

even though the Department is processing an ERP

application for the same activities pursuant to the

Operating Agreement between the District and the

Department.

f. The District's policy is to deny or to object

to the issuance of any permit application to conduct

commercial mining ope rations in the WOD composed of

the Alapaha River floodway.

g. It is the policy of the District to consider

any proposed development activity in a WOD, other than

those eligible for a general permit under Rule

40B - 4.3010, Florida Administrative Code, t o have an

adverse impact on the regulatory floodway, and thereby

to be unpermittable by the District.

h. The District's policies against allowing

development activities in WODs apply even if a

professional engineer certifies under Rule 40B - 4.3030,

Florida Administrative Code, that the activity will

not violate the conditions of issuance set forth in

the rule. The policies apply because the District

will consider the development activities to violate

ERP permitting rules applicable to all development

activ ities, not just those within WODs.

i. It is also the District's policy to ask the

Department to deny ERP applications for development

activities proposed in WODs that require ERPs even

though the Department is processing the application

pursuant to the Op erating Agreement.

j. The District's policy is to deny ERP

applications to conduct commercial mining activities

in WODs as determined by the FIS, and to recommend to

the Department that ERP applications to the Department

for such projects be denied, unles s the applicant goes

through the FEMA amendment process described in

paragraph b to remove the area from the FEMA -

determined floodway.

2. Each party requests that it be granted costs and

attorney's fees pursuant to Section 120.595(4), Florida

Statutes.

St ipulated Facts

3. Angelo's is a Florida Limited Partnership, whose

address is 26400 Sherwood, Warren, Michigan 48091.

4. Respondent is an agency of the State of Florida

established under Chapter 373, Florida Statutes, with its

address at 9225 County Ro ad 49, Live Oak, Florida 32060.

5. Angelo's owns property in Hamilton County approximately

four miles to the east of Interstate 75 and to the north of U.S.

Highway 41, immediately to the east of the Alapaha River.

6. Angelo's conducts commercial sand m ining operations on

a portion of its property pursuant to various agency

authorizations, including an ERP issued by the Florida

Department of Environmental Protection (Department), Permit

No. 158176 - 001, and a Special Permit issued by Hamilton County,

SP 98 - 3.

7. The ERP was issued by the Department pursuant to its

authority under Chapter 373, Part IV, Florida Statutes.

Angelo's mining operations constitute a "mining project" as that

term is used in Section II.A.1.e of an Operating Agreement

Concerning Regulation under Part IV, Chapter 373, Florida

Statutes, and Aquaculture General Permits under Section 403.814,

Florida Statutes, between Suwannee River Water Management

District and Department of Environmental Protection (Operating

Agreement).

8. The O perating Agreement has been adopted as a District

rule pursuant to Rule 40B - 400.091, Florida Administrative Code.

9. Angelo's has filed with the Department an application

to modify its ERP to expand its sand mining operations into an

area of its property immediately to the west of its current

operations (the "proposed expanded area"). Angelo's application

is being processed by the Department at this time.

10. Angelo's ERP modification application is being

processed by the Department under the Operating Agreement. The

District has asserted permitting jurisdiction over the proposed

expanded area because the proposed sand mining activities would

occur in what the District asserts to be the floodway of the

Alapaha. The District asserts that an ERP would b e required

from the District so that the District can address the WOD

impacts.

11. It is the District's position that the District's

review of any ERP application to undertake development

activities in a WOD would be based upon all of the ERP criteria,

a nd not just those criteria relating to floodway conveyance

referenced in Rule 40B - 4.3030, Florida Administrative Code.

12. On or about November 30, 2001, the District published

in the Florida Administrative Weekly a notice of its intent to

adopt the FEMA Flood Insurance Rate Maps (FIRM) to delineate

floodways for the purpose of its works of the district

regulatory program.

Facts Based on Evidence of Record

Background/Events leading up to this dispute

13. The total amount of the subject property owned by

Petitioner is approximately 560 acres. The property is

generally a rolling terrain. A significant feature is a

man - made berm which was placed around the perimeter of the

property by a former owner, presumably to keep water off of the

land during floo ds of the Alapaha River.

14. Dennis Price is a self - employed registered

professional geologist. At one time, he was employed by the

District and at another time, he was employed by Petitioner.

For purposes of this proceeding, he was hired by Petition er as a

consultant for certain permitting projects including the project

that gave rise to this dispute. Mr. Price met with and

corresponded with the District as well as staff from the

Department over a period of two years regarding this mining

project.

1 5. In June of 1999, the Department wrote to Mr. Price in

response to a meeting. The letter noted that Petitioner

intended to expand mining operations. In addition to informing

Mr. Price of the Department's permit requirements, the letter

referenced the District's permitting requirements:

Mr. Still provided us with an aerial

photograph showing the SRWMD's regulated

floodway in the area of your mine. A copy

is enclosed with the floodway line

highlighted in orange. A substantial

portion of your proposed e xpansion area will

be within this floodway. The SRWMD has

adopted the Alapaha River and its floodway

as a works of the district. The Department

adopted the SRWMD's regulations pertaining

to the environmental resource permit;

however, this did not include the

regulations pertaining to projects within

works of the district.

If your permit application only includes

areas outside of the floodway, a single

application will have to be provided to this

bureau. If you intend to expand within the

floodway, a sep arate application will also

have to be provided to the SRWMD for a works

of the district permit. In either

situation, the Department's Jacksonville

office will review any modifications to your

industrial wastewater permit. (emphasis

supplied) 2/

16. In response, Mr. Price wrote to the Department in July

of 1999 and stated in pertinent part:

Dear Mr. Neel, this letter is in response to

your June 22, 1999 letter "RE: Permits for

Mining Operation". Angelo's currently has a

Sand and Limestone General Permit from DEP -

General Permit Number FLA011635. That

permit is based on a 5 year mining plan that

was presented to the DEP on January 11,

1999. The permit, my letter and the 5 year

mining plan presented to DEP are enclosed.

Another attachment is an aerial photo of the

property showing the Regulatory Floodway

line and the location of the areas to be

mined under that 5 year mining plan.

The aerial photograph has superimposed upon

it the location of the floodway of the

Alapaha River, as determined by FEMA map s.

Please note that the 5 year mining plan and

the associated storage and processing areas

are outside the regulatory floodway.

Therefore, no works of the district permit

will be needed at this time. See FAC Rule

40B - 4.300(1)(a) [sic].

Future mining be yond the five year mine plan

will not occur without first applying for

and obtaining permits from the appropriate

regulatory agency. At the present time we

will only mine areas within the 5 year mine

plan.

We will have an engineer field locate the

floodw ay line on the property to ensure that

no mining or associated storage and process

activities occur within the floodway. We

are requesting that the ERP permitting

process remain within the DEP bureau of Mine

Reclamation since the DEP has already issued

a general permit for this activity and the

DEP normally handles ERP's for mining

operations.

We have determined that the mining area will

be less than 100 acres, and based on Rule

40B - 4.2020(2)(B) FAC a general permit may be

applied for. We will notify you when we

have a draft application prepared and would

like to meet with you at your earliest

convenience after that to discuss the permit

application. (emphasis supplied)

17. In response to information which Mr. Price provided to

the Department, the Depa rtment wrote to Mr. Price in December of

1999 and again addressed concerns about the area of the project

in relation to the floodway line:

Specific Item: FLOODWAY

Information submitted in response to the

request for additional information (RAI)

dated Aug ust 12, 1999, indicates that

Angelo's proposed project boundary and

activities extend up to and coincide with

the Floodway Line. There appears to be no

set - back or buffer from the Floodway (or any

other) Line. Chapter 40B - 4, Florida

Administrative Code ( F.A.C.), contains the

rules for the Suwannee River Water

Management Area which were adopted by the

Department of Environmental Protection.

Section 40B - 4.2010(2)(b)(3)(b) provides that

a General Permit may be issued for

construction, operation, and mainten ance of

a surfacewater management system servicing a

total project area less than 120 acres

provided the system will not be located in,

cross or connect to a work of the district.

Information submitted with this

(November 12, 1999) submittal indicates that

the proposed activities within the proposed

project coincides with, or is so closely

located to, the Floodway Line so as to

indicate that the proposed activities would

be considered to be connected to a work of

the district. This is based upon

exami nation of the plan views and [sic] well

as cross section information that has been

provided. Please provide a discussion, and

drawings as may be needed, that addresses

all activities along the established

Floodway Line. This information should

address al l aspects of all operations along

this line through the completion of

reclamation activities. Be sure to address

best management practices, and any proposed

setbacks in the response to this request.

(emphasis in original) 3/

18. Mr. Price described the proposed project as part of

the permit application which was submitted to the Department:

Describe in general terms the proposed

project, system, or activity.

Angelo's Aggregate Materials, Ltd. (AAM)

owns approximately 341 acres of land. The

current min ing site, known as the Jasper

Pit, is located on a 160 acre parcel of

land. Of the 160 acres, only 82.45 acres

are available for mining since the remainder

of the property falls within the floodway

boundary of the Alapaha River. The 160 acre

parcel has a n existing berm around the

entire perimeter of the property constructed

in the 1950's by the previous owner. The

Alapaha flood study conducted for FEMA did

not take into account this berm. AAM is

proposing to construct a 20' wide access

road between NW 8 th Boulevard and the Jasper

Pit, encompassing approximately 7.22 acres.

This roadway will be constructed within the

limits of property owned by AAM. The

stormwater management system for the roadway

will consist entirely of grassed swales as

covered under FDEP's swale exemption. The

Jasper Pit is a sand and limestone mining

operation. (emphasis supplied)

19. On August 28, 2001, David Still, the District's

Director of Resource Management, wrote a letter to the

Department in response to a request receive d by e - mail from the

Department for technical assistance. Mr. Still responds to

requests for technical assistance from other agencies as a

matter of routine and as contemplated by the operating agreement

between the Department and the District. The lette r reads as

follows:

The floodway along the Alapaha River was

identified and mapped as part of a Federal

Emergency Management Association (FEMA)

flood study performed by the United States

Army Corps of Engineers, subsequently

approved by FEMA and adopted as part of the

local government (Hamilton County)

ordinance. Based on the above, Suwannee

River Water Management District (SRWMD) then

adopted the floodway as a Work of the

District (WOD). There is only one floodway.

SRWMD recognizes and accepts the FEMA flood

study performed by the U.S. Army Corps of

Engineers and local government (Hamilton

County) floodway boundary as the best

available information to identify the

floodway boundary.

There is a formal process whereby change can

be made to the FEMA bounda ry with additional

or improved information. If FEMA and

Hamilton County approve a revised floodway

delineation and boundary, so be it, SRWMD

will recognize it, however, SRWMD will not

unilaterally change a boundary resulting

from a detailed federal flood insurance

study. We have informed Mr. Thompson and

his client of this.

We consider the kind of work contemplated by

the applicant (at least based on our

earliest discussions with them) will cause

an adverse impact to the WOD (the floodway)

which of cours e is in conflict with the

requirements of 40B - 400.103(1)(h) and SRWMD

40B - 4, Part III, Florida Administrative Code

(F.A.C.). The District will object to the

issuance of any permit in direct conflict

with District rules.

We feel the rule is clear and any conflict

with 40B - 400.103(1)(h), F.A.C. which the

Florida Department of Environmental

Protection has adopted by reference requires

denial of the Environmental Resource Permit

(ERP) application. Any work of this nature

within a WOD is subject to the additi onal

permitting requirements of 40B - 4, Part III,

F.A.C., even if the District needs to

implement such requirements with a separate

WOD permit.

20. Mr. Still's reference to "the applicant" in the

August 28, 2001, letter is to Petitioner.

21. While Mr. Sti ll is not the agency head, his August 28,

2001, letter clearly communicates the District's policy. Given

his position in the agency and the manner in which he discussed

this issue, the letter describes and communicates the District's

policy on what consti tutes a floodway and its boundary.

22. Mr. Still does not have final authority to make

decisions on permitting within the District, as that authority

rests with the governing board. In a letter written on

October 10, 2001, in response to a letter from Petitioner's

counsel, Mr. Still stated that District staff would recommend to

their governing board that Petitioner's proposed activity is an

activity within a floodway that is regulated under Chapter

40B - 4, Part III, Florida Administrative Code, and tha t the

proposed activity would adversely impact the floodway:

"Therefore, as staff, we would recommend our governing board

consider this activity adverse to our rules." This letter is

case specific to Petitioner. Within a few days of Mr. Still's

October 10, 2001, letter, Petitioner filed its Petition to

Determine Validity of Agency Statements Defined as Rules.

Other facts established by the evidence of record

23. The District uses FEMA FIRM maps as evidence of the

location of the floodways in the works of the district. The

District communicated this policy in Mr. Still's letter dated

August 28, 2001.

24. The District will not unilaterally change the floodway

delineation and boundary established by FEMA. In order for an

applicant to persuade the Dis trict that a proposed activity

within the FEMA floodway line is not within the District's

floodway, an applicant must apply to FEMA for a map amendment or

revision. The District will acknowledge that a proposed

activity is not within the floodway of a wor k of the district

only if the applicant is successful in obtaining a map amendment

or revision showing that the proposed activity indeed is not

within the floodway.

25. The District has applied this policy to another

company which applied for a permit. That is, the District

required the permit applicant to apply to FEMA for a map

revision or amendment as a condition of issuance of a permit

because its proposed activity was within the FEMA floodway as

established by the FEMA maps.

26. Petitioner has not filed a permit application with the

District regarding the proposed mining project. It is

Petitioner's position that to do so would be futile.

CONCLUSIONS OF LAW

27. The Division of Administrative hearings has

jurisdiction over the parties and subject ma tter of this

proceeding pursuant to Section 120.56(4), Florida Statutes,

which reads in pertinent part:

(4) CHALLENGING AGENCY STATEMENTS DEFINED

AS RULES; SPECIAL PROVISIONS. – -

(a) Any person substantially affected by an

agency statement may seek an ad ministrative

determination that the statement violates

s. 120.54(1)(a). The petition shall include

the text of the statement or a description

of the statement and shall state with

particularity facts sufficient to show that

the statement constitutes a ru le under

s. 120.52 and that the agency has not

adopted the statement by the rulemaking

procedure provided by s. 120.54.

28. Section 120.52(15), Florida Statutes, defines "rule"

as follows:

(15) "Rule" means each agency statement of

general applicabi lity that implements,

interprets, or prescribes law or policy or

describes the procedure or practice

requirements of an agency and includes any

form which imposes any requirement or

solicits any information not specifically

required by statute or by an exi sting rule.

The term also includes the amendment or

repeal of a rule. . . .

29. Section 120.54(1)(a), Florida Statutes, provides in

pertinent part:

(1) GENERAL PROVISIONS APPLICABLE TO ALL

RULES OTHER THAN EMERGENCY RULES. – -

(a) Rulemaking is not a ma tter of agency

discretion. Each agency statement defined

as a rule by s. 120.52 shall be adopted by

the rulemaking procedure provided by this

section as soon as feasible and practicable.

30. Petitioner has proven it has standing to challenge the

allege d agency statements.

31. The burden of persuasion in a challenge to an agency

statement is on Petitioner. The basis for such a challenge is

that the agency statement constitutes a rule that has not been

adopted by the rule - making procedure mandated by Section 120.54,

Florida Statutes. Southwest Florida Water Management District

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

32. Petitioner's allegations of agency statements are

based primarily on the August 28, 2001, letter from Mr. Still to

the Department which communicated District policy.

Alleged Agency Statements a, b, f, and j

33. The District's reliance on FEMA FIRM maps to determine

the floodway line within the works of the district was clearly

stated to Petitioner in Mr. Still's letter of August 28, 2001.

34. Moreover, the District requires an applicant to obtain

a revision or map amendment from FEMA to establish that an

activity is not within the floodway of the District. This

policy was also clearly stated in Mr. Still's lette r of

August 28, 2001. The District has relied on this policy with at

least one other company.

35. The policies of using the FEMA maps to determine the

floodway line and requiring an applicant to obtain a map

amendment directly from FEMA are not appa rent from a review of

the District's rules.

36. Petitioner has met its burden of proving that the

District's policy of reliance on FEMA's determination of the

floodway line to establish the District's floodway line for

works of the district or alternat ively, its requirement that an

applicant obtain a map revision or amendment from FEMA to

establish that an activity is not within a floodway of a work of

the district, constitutes rules as contemplated by

Section 120.52(15), Florida Statutes.

37. With this determination, the burden shifts to the

District to prove that rulemaking is not feasible and

practicable under Section 120.54(1)(a), Florida Statutes. A

review of the record reveals that the District had not met its

burden in this regard.

38. To defend itself, the District asserts that it has met

the requirements of Section 120.56(4)(e), Florida Statutes, in

that it proceeded, in procedural compliance, expeditiously and

in good faith to adopt rules which address the agency

statements. Contrary to its assertion, the District did not

meet the requirements set forth in Section 120.56(4)(e), Florida

Statutes. The District published in the Florida Administrative

Weekly a preliminary text of proposed rule development which

incorporates by reference the Flood Insurance Rate Maps

published by the National Flood Insurance Program for FEMA (the

FEMA flood maps) to establish the floodway for the works of the

district identified in Chapter 40B - 4, Part III, Florida

Administrative Code. The notice comports with the requirements

of Section 120.54(2)(a), Florida Statutes. However, the

District has not published proposed rules that fully comport

with the requirements of Section 120.54(3)(a), Florida Statutes,

as necessary. The notice that was published in the Florida

Administrative Weekly contains the preliminary text of the

proposed rule development, not the full text of the proposed

rule. Further, the notice does not provide a summary of the

proposed rule, a notice of the procedure for requesting a public

h earing, or a statement of estimated regulatory costs.

Alleged Agency Statements c, d, e, and i

39. Mr. Still's letter of August 28, 2001, to the

Department stated that any work done within a work of the

district would be subject to "the additional per mitting

requirements of 40B - 4, Part III, F.A.C., even if the District

needs to implement such requirements with a separate WOD

permit."

40. As set forth in the findings of fact, the District

requires an ERP for proposed sand mining activities that fall

within the works of the district despite the fact that

Petitioner has as ongoing ERP modification application pending

with the Department. Petitioner objects to the District's

requiring "double ERP's" and contends this policy is

inconsistent with the Oper ating Agreement between the two

agencies and is "illegal". Petitioner's objection goes more to

the issue of the jurisdiction of the two agencies to require

ERPs and whether any such requirements run contrary to the

Operating Agreement between the two agen cies. Petitioner's

dispute with either agency concerning the jurisdiction to

require an ERP permit constitutes an argument on legal

interpretation, it does not involve the District's advancement

of a policy without rule adoption.

41. Moreover, the Distri ct has broad statutory authority

to provide for works of the district and control activities

conducted within works of the district.

42. Section 373.086, Florida Statutes, provides in

pertinent part:

PROVIDING FOR DISTRI CT WORKS . – -

(1) In order to carry out the works for the

district, and for effectuating the purposes

of this chapter, the governing board is

authorized to clean out, straighten,

enlarge, or change the course of any

waterway, natural or artificial, within or

without the district; to p rovide such

canals, levees, dikes, dams, sluiceways,

reservoirs, holding basins, floodways,

pumping stations, bridges, highways, and

other works and facilities which the board

may deem necessary; to establish, maintain,

and regulate water levels in all can als,

lakes, rivers, channels, reservoirs,

streams, or other bodies of water owned or

maintained by the district; to cross any

highway or railway with works of the

district and to hold, control, and acquire

by donation, lease, or purchase, or to

condemn any land, public or private, needed

for rights - of - way or other purposes, and may

remove any building or other obstruction

necessary for the construction, maintenance,

and operation of the works; and to hold and

have full control over the works and rights -

of - w ay of the district.

(2) The works of the district shall be

those adopted by the governing board of the

district. The district may require or take

over for operation and maintenance such

works of other districts as the governing

board may deem advisable under agreement

with such districts.

43. Section 373.085, Florida Statutes, provides as

follows:

Use of works or land by other districts or

private persons. – -

(1) The governing board has authority to

prescribe the manner in which local works

provided b y other districts or by private

persons will connect with and make use of

the works or land of the district, to issue

permits therefor, and to cancel the permits

for noncompliance with the conditions

thereof or for other cause. It is unlawful

to connect w ith or make use of the works or

land of the district without consent in

writing from its governing board, and the

board has authority to prevent or, if done,

estop or terminate the same. The use of the

works or land of the district for access is

governed by this section and is not subject

to the provisions of s. 704.01. However,

any land or works of the district which have

historically been used for public access to

the ocean by means of the North New River

Canal and its tributaries may not be closed

for this purpose unless the district can

demonstrate that significant harm to the

resource would result from such public use.

(2) Damage resulting from unlawful use of

such works, or from violations of the

conditions of permit issued by the board

shall, if m ade by other than a public

agency, be subject to such penalty as is or

may be prescribed by law and in addition

thereto by a date and in a manner prescribed

by the board, repair of said damage to the

satisfaction of said board, or deposit with

said board a sum sufficient therefor, and if

by a public agency, then at the expense of

such agency the repair of said damage to the

satisfaction of the board or the deposit

with said board of a sum sufficient

therefor.

44. Further, the District has existing rules w hich address

the alleged agency statements c, d, e, and i.

45. Rule 40B - 1.702(4), Florida Administrative Code, reads

as follows:

(4) A works of the district permit under

Chapter 40B - 4, F.A.C., must be obtained

prior to initiating any project as outlined

in (3) above within a regulatory floodway as

defined by the District.

46. Rule 40B - 4.1040(1)(b) and (c), Florida Administrative

Code, reads as follows:

(1) Permits are required as follows:

* * *

(b) Works of the district development

permit prior to connecting with, placing

structures or works in or across,

discharging to, or other development within

a work of the district.

(c) When the need to obtain a works of the

district development permit is in

conjunction with the requirements for

obtaining a surfacewater management permit,

application shall be made and shall be

considered by the district as part of the

request for a surfacewater management permit

application. Otherwise, a separate works of

the district development permit must be

obtained.

47. Rule 40B - 4.3030, Florida Administrative Code, reads as

follows:

Conditions for Issuance of Works of the

District Development Permits.

(1) The district will not approve the

issuance of separate permits for development

in a work of the district for a ny proposed

project that requires a district

surfacewater management permit pursuant to

Part II of this chapter. For such projects,

development in a work of the district may be

authorized as part of any surfacewater

management permit issued.

(2) The dis trict will not approve the

issuance of a works of the district

development permit for any work, structures,

road, or other facilities which have the

potential of individually or cumulatively

reducing floodway conveyance or increasing

water - surface elevatio ns above the 100 - year

flood elevation, or increasing soil erosion.

The district will presume such a facility

will not reduce conveyance or increase

water - surface elevations above the 100 - year

flood elevation or increase soil erosion if:

(a) Roads with p ublic access are

constructed and laid out in conformance with

the minimum standards of local government.

Where roads are not required to be paved,

the applicant must provide design

specifications for erosion and sediment

control. Where roads are required to be

paved, swales will generally be considered

adequate for erosion and sediment control;

(b) Buildings in the floodway are elevated

on piles without the use of fill such that

the lowest structural member of the first

floor of the building is at an ele vation at

least one foot above the 100 - year flood

elevation;

(c) The area below the first floor of

elevated buildings is left clear and

unobstructed except for the piles or

stairways;

(d) A permanent elevation monument is

established on the property to be developed

by a surveyor. The monument shall be

adequate to establish land surface and

minimum buildup elevations to the nearest

1/100 of a foot;

(e) No permanent fill or other obstructions

are placed above the natural grade of the

ground except for minor obstructions which

are less than or equal to 100 square feet of

the cross - sectional area of the floodway on

any building or other similar structure

provided that all such obstruction developed

on any single parcel of land after the

implementation dat e of this chapter is

considered cumulatively;

(f) No activities are proposed which would

result in the filling or conversion of

wetlands.

(3) For any structure placed within a

floodway which, because of its proposed

design and method of construction, m ay, in

the opinion of the district, result in

obstruction of flows or increase in the

water surface elevation of the 100 - year

flood, the district may require as a

condition for issuance of a work of the

district development permit that an engineer

certify that such a structure will not

obstruct flows or increase 100 - year flood

elevations.

(4) The following conditions shall apply to

all works of the district development

permits issued for development on lands

subdivided after January 1, 1985:

(a) Clearin g of land shall be limited

[except as provided in (b) and (c) below] to

that necessary to remove diseased

vegetation, construct structures, associated

water supply, wastewater disposal, and

private driveway access facilities, and no

construction, additions or reconstruction

shall occur in the front 75 feet of an area

immediately adjacent to a water.

(b) Clearing of vegetation within the front

75 feet immediately adjacent to a water

shall be limited to that necessary to gain

access or remove diseased veget ation.

(c) Harvest or regeneration of timber or

agricultural crops shall not be limited

provided the erosion of disturbed soils can

be controlled through the use of appropriate

best management practices, the seasonal

scheduling of such activities will av oid

work during times of high - flood hazard, and

the 75 feet immediately adjacent to and

including the normally recognized bank of a

water is left in its natural state as a

buffer strip.

(d) As to those lands subdivided prior to

January 1, 1985, the gover ning board shall,

in cases of extreme hardship, issue works of

the district development permits with

exceptions to the conditions listed in Rule

40B - 4.3030(4)(a) through (c).

(e) The 75 - foot setback in paragraphs (a)

through (d) above shall be considered a

minimum depth for an undisturbed buffer.

The limitations on disturbance and clearing

within the buffer as set out in paragraphs

(a) through (d) above shall apply, and any

runoff through the buffer shall be

maintained as unchannelized sheet flow. The

a ctual depth of the setback and buffer for

any land use other than single - family

residential development, agriculture, or

forestry shall be calculated in accordance

with the methodology in: "Urban Hydrology

for Small Watersheds", U.S. Department of

Agricul ture, Soil Conservation Service,

Engineering Division, Technical Release 55,

June 1986; and, "Buffer Zone Study for

Suwannee River Water Management District",

Dames and Moore, September 8, 1988, such

that the post - development composite curve

number for any one - acre area within the

encroachment line does not exceed;

1. a value of 46 for areas within the

encroachment line with predominantly Class A

soils;

2. a value of 65 for areas within the

encroachment line with predominantly Class B

soils;

3. a valu e of 77 for areas within the

encroachment line with predominantly Class C

soils; or

4. a value of 82 for areas within the

encroachment line with predominantly Class D

soils.

48. As set forth in the findings of fact, the Operating

Agreement is incorpora ted by reference in District Rule

40B - 400.091, Florida Administrative Code.

49. Petitioner has not met its burden of proving that

alleged agency statements c, d, e, and i are unadopted rules.

In summary, whether the District can require ERPs, in add ition

to any such requirements of the Department, is an issue related

to jurisdiction, not to the question of creating substantive

policy. Any quarrel Petitioner has with the application of

existing statutes or rules are matters more appropriately left

to the adjudication process of Section 120.57, Florida Statutes.

See Environmental Trust v. State Department of Environmental

Protection , 714 So. 2d 493 (Fla. 1st DCA 1998).

Alleged Agency Statements g and h

50. Petitioner asserts in its First Amended Peti tion to

Determine Validity of Agency Statements Defined as Rules that

alleged agency statements g and h constitute unadopted rules

that, in essence, prohibit mining in the floodway of a work of

the district.

51. Petitioner bases this assertion largely on the

August 28, 2001, letter written by Mr. Still to the Department

which states in part that, based upon early discussions with

Petitioner, the District considered the kind of work

contemplated by Petitioner will cause an adverse impact to the

floodwa y in conflict with Rule 40B - 400.103(1)(h), Florida

Administrative Code, and that the District will object to the

issuance of any permit in direct conflict with District rules.

52. Petitioner also relies on the October 10, 2001, letter

written by Mr. Sti ll to counsel for Petitioner in which

Mr. Still stated that District staff would recommend to their

governing board that Petitioner's proposed activity is an

activity within a floodway that is regulated under

Chapter 40B - 4, Part III, Florida A dministrative Code, which

would aversely impact the floodway, "therefore as staff, we

would recommend our governing board consider this activity

adverse to our rules."

53. The August 28, 2001, and October 10, 2001, letters do

not single out the prohibit ion of mining in the floodway, but

interpret existing rules in the context of Petitioner's proposed

activity.

54. Rule 40B - 400.103(1)(h), Florida Administrative Code,

which was referenced in Mr. Still's letter, reads as follows:

(1) In order to obtain a standard general,

individual, or conceptual approval permit

under this chapter or chapter 40B - 4, F.A.C.,

an applicant must provide reasonable

assurance that the construction, alteration,

operation, maintenance, removal or

abandonment of a surface water man agement

system:

* * *

(h) Will not cause adverse impacts to a

work of the District established pursuant to

s. 373.086. . . .

55. In these communications from Mr. Still, alleged agency

statements (g) and (h) analyze a valid existing rule as it

app lies to the proposed activities of Petitioner. Further,

Mr. Still's letters clearly reference Part III of Chapter 40B - 4,

Florida Administrative Code, which contains the Works of the

District rules and Rule 40B - 400.103, Florida Administrative

Code, whi ch is entitled, "Conditions for Issuance of Permits."

56. In Environmental Trust v. State Department of

Environmental Protection , supra , at 498, the court found:

An agency statement explaining how an

existing rule of general applicability will

be applied in a particular set of facts is

not itself a rule. If that were true, the

agency would be forced to adopt a rule for

every possible variation on a theme, and

private entities could continuously attack

the government for its failure to have a

rule that pre cisely addresses the facts at

issue. Instead, these matters are left for

the adjudication process under section

120.57, Florida Statutes.

57. Petitioner has not met its burden of proving that

alleged agency statements (g) and (h) are unadopted rules.

O RDER

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

ORDERED:

1. The First Amended Petition to Determine Validity of

Agency Statements Defined as Rules is granted as to agency

statement (a) which concerns the District's reliance on the FEMA

flood maps for the purpose of establishing the floodway for

works of the District, and the alternative agency statement

(b) which requires applicants to seek and obtain a map amendment

or revision from FEMA before Respondent will accept any

a lternative floodway boundaries that are inconsistent with those

established by the FEMA Flood Insurance Study maps.

2. The remaining allegations of the First Amended Petition

to Determine Validity of Agency Statements are dismissed.

3. Jurisdiction of th e Division of Administrative Hearings

is retained for consideration of Petitioner's request for

reasonable costs and reasonable attorney's fees pursuant to

Section 120.595(4), Florida Statutes. Respondent's request for

attorney's fees is denied.

DONE AN D ORDERED this 12th day of April, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

BARBARA J. STAROS

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

Division of Administrative Hearings

this 12th day of April, 2002.

ENDNOTES

1/ The Operating Agreement is identified and described under

the subheading, "Stipulated Facts."

2/ It is important to note that this letter contains statements

by the Department, which is not a party to this dispute, about

the District's rules. It does not contain policy statements of

the District. The De partment's letter is simply included as

part of the background of events leading up to this dispute.

3/ See Endnote 2.

COPIES FURNISHED :

Bruce W. Robinson, Esquire

Brannon, Brown, Haley,

Robinson & Bullock, P.A.

Post Office Box 1029

Lake City, Flori da 32056

Daniel H. Thompson, Esquire

Berger, Davis & Singerman, P.A.

215 South Monroe Street

Suite 705

Tallahassee, Florida 32301

Jerry Scarborough, Executive Director

Suwannee River Water Management District

9225 County Road 49

Live Oak, Florida 3206 0

Carroll Webb, Executive Director

Joint Administrative Procedures

Committee

120 Holland Building

Tallahassee, Florida 32399 - 1300

Liz Cloud, Chief

Bureau of Administrative Code

The Elliott Building, Room 201

Tallahassee, Florida 32399 - 0250

NOTICE O F 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 a re commenced by

filing the original notice of appeal with the 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.