03-004086RX Keith Kopp vs. South Florida Water Management District Status: Closed DOAH Final Order on Tuesday, April 6, 2004.

Summary: Petitioner failed to prove that Rules 40E-0.109(1)(a), 40E-1.5095, and 40E-1.511(1)(b) were invalid exercises of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KEITH KOPP,

)

Petitioner, )

)

vs. ) Case No. 03 - 4086RX

)

SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

______________________________)

FINAL ORDER

On Marc h 19, 2004, Respondent filed a Motion for Summary

Final Order. At the time, this rule - challenge case was

consolidated with a related case, Keith Kopp v. South Florida

Water Management District and Martin County , DOAH Case No.

04 - 0104.

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted a telephone conference on

March 22, 2004, with the parties in both cases. During the

telephone conference, the Administrative Law Judge severed the

cases, pursuant to the agree ment of the parties. The parties

agreed to file additional materials so that the Administrative

Law Judge could issue a final order in the rule - challenge case

prior to the start of the five - day final hearing in DOAH Case

No. 01 - 0104 on April 12, 2004. On April 1, 2004, Petitioner

filed a response and cross motion for summary final order. On

April 2, 2004, Respondent filed its reply to Petitioner's

response.

APPEARANCES

For Petitioner: Marcy I. LaHart

711 Talladega Street

West Palm Beach, Florida 33405

For Respondent: Sheryl G. Wood

General Counsel

Cecile I. Ross

Assistant General Counsel

South Florida Water Management D istrict

3301 Gun Club Road

Mail Stop Code 1410

Post Office Box 24680

West Palm Beach, Florida 3341 - 4680

STATEMENT OF THE ISSUE

The issue is whether Florida Administ rative Code Rules

40E - 0.109(1)(a), 40E - 1.511(1)(b), and 40E - 1.5095 are invalid

exercises of delegated legislative authority, pursuant to

Section 120.52(8)(b) and (c), Florida Statutes.

PRELIMINARY STATEMENT

By Petition to Determine Invalidity of Administr ative Rule

dated November 4, 2003, Petitioner challenged as invalid

exercises of delegated legislative authority Florida

Administrative Code Rules 40E - 0.109(1)(a) 40E - 1.511(1)(b), and

40E - 1.5095. Petitioner alleges that he has standing because

Respondent rejected his request for an administrative hearing in

the dispute that became DOAH Case No. 04 - 0104 due to his failure

to file a request for hearing within 21 days of the date of

publication of the Notice of Proposed Agency Action.

In general, the petitio n alleges that the effect of these

three challenged rules is to allow Respondent to provide

constructive notice, by publication, of intended agency action,

so as to bar substantially affected persons from obtaining

hearings unless they request a hearing wi thin the time allowed

from the date of constructive notice.

The petition alleges that, in violation of Section

120.52(8)(b) Florida Statutes, the rules exceed the agency's

grant of rulemaking authority, citation to which is required by

Section 120.54(3)(a )1, Florida Statutes, and, in violation of

Section 120.52(8)(c), Florida Statutes, the rules enlarge,

modify, or contravene the specific law implemented, citation to

which is required by Section 120.54(3)(a)1, Florida Statutes.

FINDINGS OF FACT

1. On Mar ch 8, 2003, Respondent published in The

Stuart/Port St. Lucie News, a daily newspaper published in

Martin County, the following notice (Published Notice):

The South Florida Water Management District

(SFWMD) Governing Board will consider, for

approval, a Wa ter Use Permit

Renewal/Modification (Application 971224 - 8,

Permit 40 - 00089 - W) for the Martin County

Utilities (Martin County Consolidated

System), PO Box 9000, Stuart, FL 34995 at

its March 13 2003 Governing Board Meeting.

The Applicant has requested an annual

allocation of 4,529 MG (17.41 MG on a

maximum daily basis) with a permit duration

of 5 years, for a Public Water Supply to

service approximately 17,000 acres located

in Martin County. The water will be

withdrawn from the Surficial Aquifer System .

A copy of the proposed agency action, a

description of the project, and a staff

analysis of the project, are available for

inspection at the South Florida Water

Management District, Environment Resource

Regulation Department, 3301 Gun Club Road,

West Pa lm Beach, FL 33406, or a copy may be

obtained by contacting Ralph Peno at 561 -

582 - 9605.

Interested persons may comment upon the

proposed agency action and are entitled to

request an Administrative Hearing regarding

the proposed agency action by writing th e

Governing Board of the South Florida Water

Management District, PO Box 24680, West Palm

Beach, FL 3316, but which comments or

requests must be received within 21 days

from the date of this publication.

Publish March 8, 2002

(The only copy of the Publis hed Notice is a facsimile copy that

is illegible in certain places. Typographical errors therefore

may appear in the version set forth above, but none of the

possible discrepancies would affect the outcome of this case.)

2. Petitioner and his wife own a single - family residence

at 2039 Ginger Terrace, Jensen Beach, Florida. Petitioner lives

in close proximity to certain lands that he claims have been

adversely affected by overpumping of Martin County's wellfields.

Petitioner enjoys various recreational activities on these

lands.

3. Unaware of the Published Notice on March 8, 2003,

Petitioner filed his petition challenging the proposed permit to

Martin County on September 25, 2003. This date was within 21

days of when Petitioner received actual notice of the proposed

agency action and 21 days of the decision of Respondent's

Governing Board to approve Martin County's application for a

water use permit. The Governing Board did not approve and may

not have considered the proposed agency action on March 1 3,

2003, as indicated in the Published Notice. The delay between

the date on which the Published Notice announced that the

Governing Board would take action on Martin County's application

and the date on which the Governing Board took action was due to

th e time consumed by successful efforts of the Governing Board

and Martin County to resolve a dispute that another party had

raised with respect to the proposed permit.

4. With the challenged provisions underlined, Florida

Administrative Code Rule 40E - 0.10 9 provides:

40E - 0.109 Point of Entry Into Proceedings

and Mediation.

Point of entry into proceedings determining

substantial interests are governed by Rule

28 - 106.111, F.A.C., and this section.

(1) (a) “Receipt of written notice of agency

decision” as set forth in Rule 28 - 106.111,

F.A.C., means receipt of either written

notice through mail or posting that the

District has or intends to take final agency

action, or publication of notice that the

District has or intends to take final agency

action.

(b) If notice is published pursuant to

this chapter, publication shall constitute

constructive notice to all persons. Until

notice is published, the point of entry to

request a formal or informal administrative

proceeding shall remain open unless actual

notice is received.

(2) If the Board takes action which

substantially differs from the notice of

intended agency decision, the applicant or

persons who may be substantially affected

shall have an additional point of entry

pursuant to Section 28 - 106.111, F.A.C.,

unless otherwise provided by law. The Board

action is considered to substantially differ

from the notice of intended agency decision

when the potential impact on water resources

has changed.

(3) Notwithstanding Rule 28 - 106.111,

F.A.C., intended agency decisions or agency

decisions regarding consolidated

applications for Environmental Resource

Permits and Use of Sovereign Submerged Lands

pursuant to Section 373.427, F.S., shall

provide a 14 day point of entry to file

petitions for administrative hearing under

Rule 28 - 106.111, F.A.C.

Specific Authority 120.54(5), 373.044,

373.113 FS. Law Implemented 120.54(5),

120.569, 120.57, 120.60, 373.146, 373.413,

373.427 FS. History – New 7 - 2 - 98, Amended

6 - 12 - 00

5. Challenged in its entirety, Florida Administrati ve Code

Rule 40E - 1.5095 provides:

40E - 1.5095 Publication of Notice of Agency

Decision or Intended Agency Decision.

In cases where a project is determined to be

of heightened public concern, or where there

is the likelihood of a request for an

administrativ e hearing, where the proposed

activity is potentially harmful to the water

resources of the District or contrary to the

overall objectives of Chapter 373, F.S., as

outlined in Section 373.016, F.S., or if

objection(s) to the application has been

received, the District shall publish, or

require the permit applicant to publish

notice of agency decision or intended agency

decision in the Florida Administrative

Weekly or newspapers of general circulation

in the area affected by such decisions as

required by Cha pter 50, F.S., and shall post

notice and mail copies of its notice to

applicants and interested groups. Such

publication may be used as evidence of

constructive and sufficient notice.

Specific Authority 120.54(5), 373.044,

373.113 FS. Law Implemented 120 .54(5),

120.569, 120.57, 373.146, 373.413 FS.

History – New 7 - 2 - 98, Amended 6 - 12 - 00.

6. With the challenged provisions underlined, Florida

Administrative Code Rule 40E - 1.511 provides:

40E - 1.511 Point of Entry Into Proceedings.

Procedures regarding point o f entry into

proceedings determining substantial

interests and mediation are set forth in the

Uniform Rules of Procedure Rule 28 - 106.111,

F.A.C. The following exceptions are applied

in combination with the applicable Uniform

Rules of Procedure.

(1)(a) “ Receipt of written notice of agency

decision” as set forth in Rule 28 - 106.111,

F.A.C., means receipt of either written

notice through mail or posting that the

District has or intends to take final agency

action, or publication of notice that the

District h as or intends to take final agency

action.

(b) If notice is published pursuant to

this chapter, publication shall constitute

constructive notice to all persons. Until

notice is published, the point of entry to

request a formal or informal administrati ve

proceeding shall remain open unless actual

notice is received.

(2) If the Board takes action which

substantially differs from the notice of

intended agency decision, the applicant or

persons who may be substantially affected

shall have an additional p oint of entry

pursuant to Rule 28 - 106.111, F.A.C., unless

otherwise provided by law. The Board action

is considered to substantially differ from

the notice of intended agency decision when

the potential impact on water resources has

changed.

(3) Notwith standing the timeline in Rule

28 - 106.111, F.A.C., intended agency

decisions or agency decisions regarding

consolidated applications for Environmental

Resource Permits and Use of Sovereign

Submerged Lands pursuant to Section

373.427, F.S., shall provide a 1 4 day point

of entry to file petitions for

administrative hearing.

Specific Authority 120.54(5), 373.044,

373.113 FS. Law Implemented 120.54.

7. On March 13, 1998, Respondent published in Florida

Administrative Weekly, Volume 24, Number 11, a copy of its

petition to the Administration Commission for, among other

things, an exception from the Uniform Rules of Procedure adopted

by the Administration Commission. The petition states, in

relevant part:

i. The SFWMD seeks an exception from Rule

28 - 106.111( 2), F.A.C., regarding notices of

agency decision.

ii. This exception is sought to clarify

that "written notice of agency decision," as

used in Rule 28 - 106.111, includes the

publication of notice and posting of notice,

as well as actual written notice by m ail.

iii. Chapter 373, F.S., provides the

authority to require publication of notice

in addition to actual or mailed written

notice of an agency decision or intended

agency decision. . . . Publication is

required if desired by the applicant, or if

the pr oposed project is potentially harmful

to the water resources, of heightened public

concern or contrary to the overall

objectives of Chapter 373, F.S.

Rule 28 - 106.111, F.A.C., provides for a

petition requesting an administrative

hearing to be filed within 21 days of

receipt of "written notice" of an agency's

decision. The phrase "written notice" is

not defined in Rule 28 - 106.111, F.A.C. or

elsewhere in the Uniform Rules, however, it

could be narrowly interpreted as only

allowing notice by mail or similar a ctual

notice.

Publication is an accepted legal procedure

providing a clear point of entry for filing

a petition. It has been recognized as a

viable noticing procedure in administrative

law forums. See, e.g., City of LaBelle v.

Bio - Med Services, Inc., e t al, 598 So. 2d

207 (Fla. 2d DCA 1991). Based on the above,

this exception is necessary both to

implement the authority under Chapter 373,

F.S., and for the efficient operation of the

SFWMD.

8. By Final Order entered March 25, 1998, the

Administration Commission granted Respondent an exception from

Florida Administrative Code Chapter 28 - 106 for proposed Rule

40E - 0.511, "on the basis of implementation of statute and the

most efficient operation of the agency." During subsequent

rulemaking, "Rule 40E - 0. 511" became the three rules that, in

whole or in part, Petitioner is challenging in this case

(Rules).

9. By Order of Non - Compliance with Requisite Rules and

Dismissing Petition with Leave to Amend dated October 29, 2003,

Respondent found Petitioner had not timely filed his initial

petition because it was not filed within 21 days of the

publication of the Published Notice. The Order dismissed the

petition with leave to file an amended petition within 21 days.

10. Petitioner filed his First Amended Requ est for

Administrative Hearing on November 17, 2003. Reserving all

rights concerning the timeliness of the petition, Respondent, by

Order dated January 7, 2004, transmitted the petition to the

Division of Administrative Hearings, which designated the case

as DOAH Case No. 04 - 0104. Pursuant to the procedures discussed

during the March 22, 2004, telephone conference, Respondent and

Martin County have requested a summary disposition of DOAH Case

No. 04 - 0104, which would be granted if the Administrative Law

J udge dismisses the challenge to the Rules and sustains the

sufficiency of the Published Notice.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the subject matter. § 120.56(1)(a), Fla.

Stat. (2003).

12. Section 120.56(1)(a) authorizes "[a]ny person

substantially affected by a rule . . . [to] seek an

administrative determination of the invalidity of the rule on

the ground that it is an invalid exercise of delegated

legislative authority."

13. Petitioner has dem onstrated his standing to challenge

the Rules to the extent that they authorize Respondent to

provide notice by publication and to deny hearings to

substantially affected persons who fail to file their petitions

within 21 days after the date of the Publish ed Notice. However,

as noted below, Petitioner's standing is limited in one respect.

14. Pursuant to Section 120.56(3)(a), Petitioner bears the

burden of proving by a preponderance of the evidence that the

Rules are invalid.

15. Section 120.52(8)(b) a nd (c) provides:

(8) "Invalid exercise of delegated

legislative authority" means action which

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authorit y

if any one of the following applies:

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.; [and]

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

impleme nted, citation to which is required

by s. 120.54(3)(a)1.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

adopt a rule; a specific law to be

implemented 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

enabling 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 granting rulemaking authority or

generally describing the powers and

f unctions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the same statute.

16. Respondent derives its rulemaking authority for the

Rules through Section 120.54(5), Florid a Statutes, which

provides:

(5) UNIFORM RULES. --

(a)1. By July 1, 1997, the

Administration Commission shall adopt one or

more sets of uniform rules of procedure

which shall be reviewed by the committee and

filed with the Department of State.

Agenc ies must comply with the uniform rules

by July 1, 1998. The uniform rules shall

establish procedures that comply with the

requirements of this chapter. On filing

with the department, the uniform rules shall

be the rules of procedure for each agency

subje ct to this chapter unless the

Administration Commission grants an

exception to the agency under this

subsection.

2. An agency may seek exceptions to

the uniform rules of procedure by filing a

petition with the Administration Commission.

The Adminis tration Commission shall approve

exceptions to the extent necessary to

implement other statutes, to the extent

necessary to conform to any requirement

imposed as a condition precedent to receipt

of federal funds or to permit persons in

this state to receiv e tax benefits under

federal law, or as required for the most

efficient operation of the agency as

determined by the Administration Commission.

The reasons for the exceptions shall be

published in the Florida Administrative

Weekly.

3. Agency rules that provide

exceptions to the uniform rules shall not be

filed with the department unless the

Administration Commission has approved the

exceptions. Each agency that adopts rules

that provide exceptions to the uniform rules

shall publish a separate chapt er in the

Florida Administrative Code that delineates

clearly the provisions of the agency's rules

that provide exceptions to the uniform rules

and specifies each alternative chosen from

among those authorized by the uniform rules.

Each chapter shall be or ganized in the same

manner as the uniform rules.

(b) The uniform rules of procedure

adopted by the commission pursuant to this

subsection shall include, but are not

limited to:

1. Uniform rules for the scheduling

of public meetings, hearings, and workshops.

2. Uniform rules for use by each

state agency that provide procedures for

conducting public meetings, hearings, and

workshops, and for taking evidence,

testimony, and argument at such public

meetings, hearings, and workshops, in pers on

and by means of communications media

technology. . . .

3. Uniform rules of procedure for the

filing of notice of protests and formal

written protests.

4. Uniform rules of procedure for the

filing of petitions for administrative

hearings pursuant to s. 120.569 or

s. 120.57. Such rules shall require the

petition to include:

a. The identification of the

petitioner.

b. A statement of when and how the

petitioner received notice of the agency's

action or proposed action.

c. An explanation of how the

petitioner's substantial interests are or

will be affected by the action or proposed

action.

d. A statement of all material

facts disputed by the petitioner or a

statement that there are no disputed facts.

e. A statement of the ultimate

facts alleged, including a statement of the

specific facts the petitioner contends

warrant reversal or modification of the

agency's proposed action.

f. A statement of the specific

rules or statutes that the petitioner

contends require reversal or modification of

the agency's proposed action, including an

explanation of how the alleged facts relate

to the specific rules or statutes.

g. A statement of the relief

sought by the petitioner, stating precisely

the action petitioner wishes the agency to

take with respect to the proposed action.

5. Uniform rules of procedure for the

filing and prompt disposition of petitions

for declaratory statements.

6. Provision of a method by which

e ach agency head shall provide a description

of the agency's organization and general

course of its operations.

7. Uniform rules establishing

procedures for granting or denying petitions

for variances and waivers pursuant to

s. 120.542.

17. Sec tion 120.54(5)(a)2, Florida Statutes, explicitly

authorizes Respondent to seek exceptions from the Administration

Commission to its Uniform Rules of Procedure. This is an

authorization of rulemaking because the only means by which

Respondent may implement approved exceptions to the Uniform

Rules of Procedure is by rulemaking. Section 120.52(15),

Florida Statutes, defines a rule, in part, as an "agency

statement of general applicability that . . . describes the

procedure . . . of an agency . . .."

18. In all respects, the Rules conform to the statutory

rulemaking authority vested in Respondent by Section

120.54(5)(a)2, Florida Statutes. Procedures that deny hearings

to substantially affected persons who fail to request hearings

within 21 days after the publication of notice of intended

agency action will allow Respondent to issue permits more

efficiently. Under the Rules, the agency and applicant will

know, three weeks after the publication of notice, whether a

hearing will be necessary or whether, abs ent substantially

different action by the Governing Board from that set forth in

the published notice, the permit may issue without delay.

19. The other requirements of Section 120.54(5), Florida

Statutes, have all been met. The Administration Commiss ion has

approved the exceptions sought by Respondent and has published

the grounds for granting the exceptions. The Rules pertain to

procedural matters that are within the scope of the illustrative

list of procedural matters set forth in Section 120.54(5) (b),

Florida Statutes -- specifically, Section 120.54(5)(b)3, which

covers rules of procedure for the filing of notices of protest

and formal written protests, presumably in bid cases, and

Section 120.54(5)(b)4, which covers rules of procedure for the

filing of petitions for administrative hearings.

20. Arguing that the Rules enlarge, modify, or contravene

the law to be implemented, Petitioner contends that denying a

request for hearing based on constructive notice by publication

violates a general princi ple of the people's right to access to

their government decision making, as generally reflected by

Chapter 120, Florida Statutes. Undoubtedly, this procedure

restrikes the balance between the administrative convenience of

Respondent and the property inter ests of applicants, on the one

hand, and the people's access to their government, on the other

hand. But nothing in Chapter 120, Florida Statutes,

categorically places the right of access to government over

administrative convenience and property interest s.

21. In the certificate - of - need program, for example,

substantially affected persons have been denied hearings when

their requests were untimely, based on published notice. See,

e.g. , St. Joseph Hospital of Charlotte, Florida, Inc.,

Department of He alth and Rehabilitative Services , 559 So. 2d 595

(Fla. 2d DCA 1989); NME Hospitals, Inc. v. Department of Health

and Rehabilitative Services , 492 So. 2d 379 (Fla. 1st DCA 1985).

Although the certificate - of - need program is characterized by a

small and ale rt class of substantially affected persons -- i.e.,

other health - care providers -- Respondent cites two environmental

cases involving notice by publication, in which the courts, in

dicta, approve of the denial of a request for a hearing based on

published noti ce.

22. In City of LaBelle v. Bio - Med Services, Inc. , 598 So.

2d 207 (Fla. 2d DCA 1992), the court held that a request for

hearing was untimely when it was filed within the required 14

days after the issuance of published notice, but not within 14

days of the receipt of actual notice. In establishing the

deadline for requesting a hearing based on the receipt of actual

notice, the court relied upon a rule providing that notice was

effective from the earlier of the receipt of actual notice or

the issuanc e of published notice. The court noted provisions of

Section 403.815, Florida Statutes (1989), that supported the

city's position that the 14 days must run from the publication

of notice. In declining to rely on this statute to overturn the

rule at issue , the court relied instead on former Section

120.57(1)(b)2, Florida Statutes (1989), which required agencies

to give potential parties "reasonable notice."

23. In Wentworth v. Department of Environmental

Protection , 771 So. 2d 1279 (Fla. 4th DCA 2000), t he court held

that a substantially affected person could timely request a

hearing on a permit for the construction of a dock, even after

the permittee had begun construction of the dock, because the

permittee had failed to provide potentially affected pers ons,

such as neighbors, with written notice or published notice of

the permit. The court thus implied that the agency could have

denied a hearing to substantially affected persons who filed

requests for hearing within the appropriate time from when they

r eceived actual notice, but outside of the deadline stated in

published notice.

24. Petitioner argues that Respondent has identified no

statute that modifies Florida Administrative Code Rule

28 - 106.111(2). Part of the Uniform Rules of Procedure, Rule

28 - 106.111(2) and (4) provides, respectively, that substantially

affected persons must file a request for hearing within 21 days

of receipt of written notice of the agency decision and the

failure to do so waives the right to a hearing. These rules,

from whi ch Respondent sought relief, are not the law to be

implemented by the Rules; as used in Section 120.52(8), Florida

Statutes, the law to be implemented is limited to statutes.

25. The determination of whether the Rules enlarge,

modify, or contravene the l aw implemented is guided by the flush

language of Section 120.52(8), Florida Statutes. The flush

language warns that rulemaking authority is not a substitute for

a "specific law to be implemented," rules must "implement or

interpret the specific powers or duties granted by the enabling

statute," and rules may not "implement statutory provisions

setting forth general legislative intent or policy." Lastly,

"[s]tatutory language granting rulemaking authority or generally

describing the powers and functions o f an agency shall be

construed to extend no further than implementing or interpreting

the specific powers and duties conferred by the same statute."

26. Although Section 120.54(5), Florida Statutes, focuses

on the rights and responsibilities of the Adm inistration

Commission, the statute is also the source of the law

implemented by Respondent's Rules. Section 120.54(5)(a)2,

Florida Statutes, empowers an agency to seek an exception to the

Uniform Rules of Procedure and requires the Administration

Commiss ion to approve the requested exception, if any of the

criteria are met. The combined power vested in the agency and

duty imposed upon the Administration Commission constitute the

law to be implemented by the Rules.

27. Petitioner correctly contends that no statute

explicitly authorizes Respondent to adopt a rule to deny

hearings based on requests that fail to comply with deadlines

set forth in published notice, at least when the substantially

affected person was unaware of the intended agency action.

Ho wever, Section 120.54(5), Florida Statutes, represents a broad

enabling act for procedural rules. If Section 120.54(5),

Florida Statutes, attempted to delineate specific procedures,

which agencies could implement by rulemaking, Petitioner's

argument would be more persuasive.

28. For this reason, Sections 373.146, 373.413, and

373.427, Florida Statutes, are not implemented by the Rules. At

best, these statutes address notice, but do not address the

relationship of the means of notice to the time within which a

substantially affected person must request a hearing.

29. Section 373.146(1), Florida Statutes, merely provides

how notice may be published and does not address other

procedures. Specifically, this statute does not address the

denial of a requ est for a hearing by a substantially affected

person who is unaware of the intended agency action on the

ground that the request is untimely under the published notice.

Section 373.413, Florida Statutes, applies to the management and

storage of surface wa ters, under Chapter 373, Part IV, Florida

Statutes. In any event, the specificity of Section 373.413(3)

and (4), Florida Statutes, regarding notification options

precludes an interpretation of this statute as a source of the

law implemented by rules denyi ng hearings to substantially

affected persons who, unaware of the intended agency action,

fail to request a hearing within the time provided by published

notice. The same considerations apply to Section 373.427,

Florida Statutes.

29. Two of the Rules ci te Sections 120.569 and 120.57,

Florida Statutes, as the law implemented. Section 120.569(1),

Florida Statutes, addresses administrative procedures, but does

not apply at the early stage of administrative activity governed

by the Rules. When Respondent o r an applicant publishes notice

of intended agency action, no dispute has emerged because the

agency has not yet taken the action that, but for a request for

hearing, is final. As is relevant to this case, Section

120.569(1) requires only that "parties" s hall be notified of an

agency's order. Section 120.52(12)(b), Florida Statutes,

defines a "party" as "[a]ny other person who, as a matter of

constitutional right, provision of statute, or provision of

agency regulation, is entitled to participate in whole or in

part in the proceeding, or whose substantial interests will be

affected by proposed agency action, and who makes an appearance

as a party." Obviously, Petitioner could not make an appearance

in the agency activity preceding the publication of the n otice

of intended agency action because the crux of Petitioner's case

is that he was unaware of the agency activity until long after

the expiration of the deadline for requesting a hearing.

30. Section 120.57(2)(a)1 provides: "The agency shall

. . . [g] ive reasonable notice to affected persons of the action

of the agency, whether proposed or already taken, or of its

decision to refuse action, together with a summary of the

factual, legal, and policy grounds therefor." Section

120.52(13), Florida Statute s, defines a "person" to include a

natural person, such as Petitioner. Section 120.57(2)(a)1

directly addresses notice of agency action that is proposed,

denied, or already taken. Reasonable notice implies timely and

meaningful notice. The notice must t herefore provide the

recipient, if a substantially affected person, with a reasonable

opportunity to request a hearing on the proposed agency action.

31. For the reasons stated above, the Published Notice is

not unreasonable, even though it denies hearin gs to

substantially affected persons who fail to learn of the intended

agency action until after the time for requesting a hearing has

expired. Although the time to request a hearing does not

approach the timeframes encompassed by most statutes of

limitat ion or other limitations periods and the consequences of

the failure to file a request for hearing may be substantial, by

the time of the Published Notice, the agency has presumably

completed its work and has announced that, absent a timely filed

request f or hearing, it will take the action described in the

notice. As reflected in the Rules, Respondent has reasonably

restruck the balance between administrative convenience and

property rights, on the one hand, and people's access to

government decision maki ng, on the other hand.

32. One of the Rules cites Section 120.60, Florida

Statutes, as law implemented. Section 120.60(3), Florida

Statutes, requires that an agency mail notice to each person who

has requested notice of agency action. Section 120.60(3),

Florida Statutes, has no direct applicability to this case

because Petitioner never requested notice of any intended agency

action on Martin County's application. Thus, Petitioner lacks

the standing to claim that the Rules enlarge, modify, or

contravene this provision of Section 120.60(3), Florida

Statutes, or any other law requiring that Respondent provide

interested persons with written notice of intended agency

action. Petitioner's standing does not allow him to raise

claims that the Rules may contrav ene statutes requiring

Respondent to give written notice to persons requesting such

notice, although resolution of this matter may, in any case,

first require that Respondent implement the Rules.

33. This Order is limited in another important respect.

T his Order has assumed that the notice of intended agency action

identified by the Rules is notice that, absent a timely filed

request for hearing, the agency will take the action described

in the notice. If restricted to notices that the agency intends

to take, barring a timely request for a hearing, the Rules do

not enlarge, modify, or contravene the law implemented.

34. Notification earlier in the agency's decision making

process, if coupled with a requirement that substantially

affected persons must file requests for hearing at that time,

may raise questions of reasonableness under Section

120.57(2)(a)1, Florida Statutes. Early notification may raise

questions of reasonableness merely by requiring substantially

affected persons to incur the addition al expense of earlier

involvement in the administrative process than the expense that

they would incur if the notice were of actual intended agency

action, after otherwise - final action by the Governing Board,

which, in this case, took place six months afte r the point at

which Petitioner would have had to file his request for a

hearing. Early notification may raise questions of

reasonableness by denying a hearing to a substantially affected

person who finds that environmental or cultural conditions

changed in the interim, such as a period of little or much rain

or suddenly intensified surrounding land uses, so as to affect

the eligibility of the proposed activity for a permit. Early

notification may raise questions of reasonableness by denying a

hearing to persons who became substantially affected during the

interim between the expiration of the time to request a hearing

and the "final" action taken by the Governing Board, especially

if, as here, several months elapsed between the two events.

35. As Resp ondent observes, Petitioner has not challenged

Florida Administrative Code Rules 40E - 0.105(1) and

40E - 1.6065(1), which provide that Respondent shall give notice

of intended agency action based on the staff recommendation and

prior to action taken by the Go verning Board on the staff

recommendation. Petitioner's arguments concerning the

prematurity of the Published Notice therefore address issues in

DOAH Case No. 01 - 0104 concerning the adequacy of the Published

Notice as the basis on which to deny Petitioner a hearing on the

merits in that case. In general, the issues identified in this

and the preceding two paragraphs must await Respondent's

implementation of the Rules.

ORDER

It is

ORDERED that the Petition to Determine Invalidity of

Administrative Rule d ated November 4, 2003, is dismissed.

DONE AND ORDERED this 6th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 6th day of April, 2004.

COPIES FURNISHED :

Henr y Dean, Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33416 - 4680

Marcy I. LaHart, Esquire

711 Talladega Street

West Palm Beach, Florida 33405

David A. Acton, Esquire

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3397

Cecile I. Ross, Assistant General Counsel

South Florida Water Management District

3301 Gun Club Road, Mail Stop Code 1410

Post Office Box 24680

West Palm Beach, Florida 33416 - 4680

Sheryl G . Wood, General Counsel

South Florida Water Management District

3301 Gun Club Road, Mail Stop Code 1410

Post Office Box 24680

West Palm Beach, Florida 33416 - 4680

NOTICE OF RIGHT OF JUDICIAL REVIEW

A party who is adversely affected by this final order is

entitled to judicial review. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by filing one copy of a Notice of Appeal with the

agency clerk of the Division of Administrative Hearings and a

secon d 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.