06-002004RX Jo Heslin vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Tuesday, August 8, 2006.

Summary: Florida Administrative Code Rule 62B-33.005(3)(a), which governs the cumulative impact analysis under the coastal construction control line permitting program, is not an invalid exercise of delegated legislative authority.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLORIA AUSTIN and JO HESLIN, )

)

Petitioners, )

)

vs. ) Case Nos. 06 - 2003RX

) 06 - 2004RX

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondent, )

)

and )

)

LIGHTHOUSE WALK, LLC, )

)

Intervenor. )

)

SUMMARY FINAL ORDER

These cases are before the undersigned Administrative Law

Judge (ALJ) for disposition based upon the parties’ cross -

motions for summary final order.

APPEARANCES

For Petitioners: Timothy P. Atkinson, Esquire

Segundo J. Fernandez, Esquire

Oertel, Hoffman, Fernandez &

Cole, P.A.

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

For Respondent: Francine M. Ffolkes, Esquire

Bernard R. Appleman, Esquir e

Department of Environmental

Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Intervenor: Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

Post Office Drawer 190

21 5 South Monroe Street, Suite 500

Tallahassee, Florida 32302 - 0190

and

Thomas G. Tomasello, Esquire

Thomas G. Tomasello, P.A.

1107 Terrace Street

Tallahassee, Florida 32303 - 6458

STATEMENT OF THE ISSUE

The issue is whether Florida Administra tive Code Rule 62B -

33.005(3)(a) is an invalid exercise of delegated legislative

authority for the reasons alleged by Petitioners.

PRELIMINARY STATEMENT

On June 7, 2006, Gloria Austin (Austin) and Jo Heslin

(Heslin) (collectively “Petitioners”) filed separa te Petitions

for Determination of Invalidity of Existing Rules with the

Division of Administrative Hearings (DOAH). The petitions

alleged that Florida Administrative Code Rules 62B - 41.002(19)(a)

and (b) and 62B - 33.005(3)(a) are invalid exercises of delega ted

legislative authority.

The petitions were given DOAH Case Nos. 06 - 2003RX and 06 -

2004RX and assigned to the undersigned ALJ . The cases were

consolidated by Order dated June 16, 2006.

Lighthouse Walk, LLC (Lighthouse), petitioned to intervene

in each c ase in support of the validity of the challenged rules.

Lighthouse’s unopposed petition to intervene was granted by

Order dated June 16, 2006.

The final hearing was scheduled for July 7, 2006, but on

July 5, 2006, Petitioners filed an unopposed motion to cancel

the hearing. The motion was discussed at a telephonic hearing

on July 6, 2006, and again immediately prior to the final

hearing on July 7, 2006.

The parties represented at the hearings on the motion that

there are no material fact s in dispute and t hat th ese cases can

be decided as a matter of law based upon a set of stipulated

facts pursuant to the parties’ cross - motions for summary final

order. As a result, the final hearing was cancelled and a

schedule was established for the filing of the stipul ated facts

and legal memoranda/proposed final orders. See Order dated

July 7, 2006.

Lighthouse filed a Motion for Summary Final Order on

June 26, 2006. Through a filing on June 30, 2006, the

Department advised that it “fully supports and agrees with the

arguments presented [in Lighthouse’s Motion for Summary Final

Order].” Petitioners filed a Motion for Summary Final Order on

July 10, 2006.

On July 11, 2006, Petitioners filed a Notice of Voluntary

Withdrawal, which stated that “Petitioners . . . hereby withdraw

their challenge to Rule 41.002(19)(a) and (b), Fla. Admin.

Code.” Thus, th ose rule s are no longer at issue in this

proceeding.

On July 11, 2006, the parties filed an Amended Joint

Stipulation, which sets forth the stipulated facts agreed to by

th e parties. On July 21, 2006, Lighthouse and the Department

filed a Joint Memorandum of Law in support of Lighthouse’s

Motion for Summary Final Order, and Petitioners filed a Proposed

Final Order (PFO). The parties ' legal argument s have been given

due con sideration.

FINDINGS OF FACT 1

1. Austin is the owner of real property located at 1580

Indian Pass Road, Port St. Joe, Florida.

2. Heslin is the owner of real property located at 1530

Indian Pass Road, Port St. Joe, Florida.

3. Lighthouse is the applican t for a coastal construction

control line (CCCL) permit for structures and activities

proposed to occur on property located adjacent to Austin’s

property. Heslin’s property is located within 500 feet of the

proposed project site.

4. The property for whic h the CCCL permit is sought is

located landward of the mean high water line (MHWL).

5. On January 31, 2006, the Department gave notice of

issuance of a CCCL permit to Lighthouse. The proposed permit

authorizes activities 228 feet seaward of the CCCL,

spe cifically, the construction of a subdivision roadway/cul - de -

sac including asphalt and limerock foundation, excavation of

soil, filling of soil, ornamental street lights, stormwater

management swales, below grade utilities, and dune enhancement

plantings.

6. Lighthouse obtained a subdivision plat for the site

from Gulf County, Florida, on June 28, 2005, which includes 12

platted lots seaward of the CCCL, each approximately one quarter

acre in size.

7. When issuing the CCCL permit, the Department did not

consider the platted subdivision t hat will be serviced by the

permitted roadway project.

8. Austin filed a petition challenging the issuance of the

CCCL permit to Lighthouse. The challenge is styled Gloria

Austin v. Lighthouse Walk, LLC and Department of Environmental

Protection , DOAH Case No. 06 - 1186 (hereafter “the Permit

Challenge”), and is pending before Judge Alexander.

9. Heslin sought and was granted leave to intervene in the

Permit Challenge.

10. Paragraph s 6 , 10, and 18 of the Petition for Form al

Administrative Proceeding (Petition) in the Permit Challenge

state as follows:

6. The proposed subdivision that is

intended to be built by Lighthouse, will

result in incompatible high density

residential development seaward of the

costal control line and seaward of the

Petitioners’ homes. The incompatible and

inappropriate nature of this subdivision

will greatly increase the danger of

Petitioners’ homes being damages by storm

driven debris in the event of a major storm

event such as a hurricane occur ring in this

area.

* * *

10. The area in question on Cape San Blas

is presently developed in very low density

single family home sites. The proposed

development would create high density

development seaward of the coastal

construction control lin e for which

construction is totally unnecessary and

could easily be greatly minimized. The

parcel in question could accommodate a

residential subdivision without encroaching

seaward of the present coastal construction

and control line. In light of the ab ove, it

is clear the project violates Rule 62B -

33.005(3), Florida Administrative Code.

* * *

18. The proposed permit would create a

high density subdivision which would create

a multitude of small single family lots on

this site. By granting the permit for this

site development, the Department is

condoning the intended construction of a

multitude of single family residences which

are totally inappropriate for the beach dune

system in this area. The combined effect of

the construction of single fa mily residences

on the proposed plat seaward of the coastal

construction control line will maximize

impacts to the beach dune system, not

minimize the impact as required by the

Department’s rules in Chapter 62B - 33,

Florida Administrative Code.

1 1 . Light house moved to dismiss the Petition in the Permit

Challenge, to strike certain allegations, and for an Order in

limine in that case. The Department filed a memorandum of law

in support of Lighthouse’s motion, stating, in part:

6. Contrary to Petitioner ’s argument in

paragraph 2(b), the Department’s rule

contains a standard for determination of

“cumulative effects.” Rule 62B -

33.005(3)(a), F.A.C., provides that “[I]n

assessing the cumulative effects of a

proposed activity, the Department shall

consider t he short - term and long - term

impacts and the direct and indirect impacts

the activity would cause in combination with

existing structures in the area and any

other similar activities already permitted

or for which a permit application is pending

within the same fixed coastal cell.” The

Department’s rules also contain a regulator y

definition of “impacts” (not “cumulative

impacts” as argued by the Petitioner).

Therefore, consideration of future

applications not yet pending with the

Department is outside the scope of the

Department’s permitting jurisdiction under

the rule.

7. Contrary to the arguments made by

Petitioner in paragraph 2(c) and (d)

construction of a “residential subdivision”

is not a foregone conclusion. First, in

Rule 62B - 33.005(3)(a), F.A. C., it states

that “[e]ach application shall be evaluated

on its own merits in making a permit

decision; therefore, a decision by the

Department to grant a permit shall not

constitute a commitment to permit additional

similar construction within the same f ixed

coastal cell. Second, use by an applicant

of the single family home general permit

authorized by Section 161.053(19), F.S., and

existing in Rule 62B - 34.070, F.A.C., is not

governed by the principle that a general

permit is authorized without addition al

agency action. The concept of a general

permit adopted by rule exists in many

different permitting programs of the

Department. The different permitting

programs are created and governed by their

organic statutes, and only those statutes

(and rules pro mulgated under them) should be

looked to for the legal principles that

apply in the permitting program. (See

paragraph 4 . above). The case law cited by

Petitioner in paragraph 2(c) of her response

refers to general permits established under

Chapter 403, F.S., specifically authorized

by Section 408.814, F.S. Section 403.814(1)

provides for use of a general permit 30 days

after giving notice to the department

“without any agency action by the

department.” See § 403.814(1), Fla. Stat.

(2005). No similar p rovision appears in

Section 161.053(19), F.S. In addition,

Section 403.814, F.S. provides for

administrative review of the use of a

general permit where the Department

publishes or requires the applicant to

publish notice of its intent to use a

general pe rmit. See § 403.814(3), Fla.

Stat. (2005); Hamilton County Bd. of County

Comm’rs v. State , Department of

Environmental Regulation , 587 So.2d 1378

(Fla. 1 st DCA 1991) and City of Jacksonville

v. Department of Environmental Protection ,

24 F.A.L.R. 938 (Fla . DEP 2001).

1 2 . By O rder dated May 23, 2006, Judge Alexander struck

paragraphs 6, 10, and 18 of the Petition in the Permit

Challenge, holding, in part:

Second, the Motion to Strike is granted in

part, and paragraphs 6, 10, and 18 are

stricken. The Moti on to Strike paragraphs 9

and 19 is denied since paragraph 9 simply

tracks the language in Florida

Administrative Code Rule 62B - 33.005(3)(a),

and neither paragraph makes specific

reference to impacts from the proposed

construction of a residential subdivis ion.

Although paragraphs 5 and 13 refer to

alleged impacts to “wildlife habitat,”

“drainage,” and “wind and water borne

missiles during a storm,” which might

arguably include matters unrelated to this

action, the granting of the Motion in Limine

below prec ludes Petitioner from introducing

evidence regarding impacts to habitat other

than sea turtles, the stormwater exemption,

and wind and water borne missiles caused by

the proposed construction of a residential

subdivision.

Finally, the Motion in Limine is granted,

and Petitioner (and Intervenor) shall be

precluded from introducing evidence in

support of allegations relating to

cumulative impacts caused by the proposed

construction of a residential subdivision,

debris and wind and water borne missiles

from t he proposed construction of a

residential subdivision, the exemption of

swales from stormwater discharge permit

requirements, and any habitat impacts

unrelated to sea turtles. See § 161.053,

Fla. Stat. (2005); Fla. Admin. Code R. 62B -

33.005, 6 2B - 33.007, an d 62 - 25.030(1)(c).

1 3 . Petitioners have alleged in this case that Rule 62B -

33.005(3)(a) is an invalid exercise of delegated legislative

authority. Lighthouse has disputed that allegation in its

Motion for Summary Final Order, which is fully supported by the

Department.

1 4 . Section 161.053(5)(a), Florida Statutes, was first

adopted by the Legislature in 1983. The statute was amended

without any substantive changes to its text in 1987.

1 5 . Section 161.053(5)(a)3., Florida Statutes (2005), 2

currently s tates in pertinent part:

(5) Except in those areas where local

zoning and building codes have been

established pursuant to subsection (4), a

permit to alter, excavate, or construct on

property seaward of established coastal

construction control lines ma y be granted by

the department as follows:

(a) The department may authorize an

excavation or erection of a structure at any

coastal location as described in subsection

(1) upon receipt of an application from a

property and/or riparian owner and upon t he

consideration of facts and circumstances,

including:

* * *

3. Potential impacts of the location of

such structures or activities, including

potential cumulative effects of any proposed

structures or activities upon such beach -

dune system, which , in the opinion of the

department, clearly justify such a permit.

1 6 . Rule 62B - 33.005(3)(a) was amended in 1996 as follows:

(3) After reviewing all information

required pursuant to this Chapter, the

Department shall:

(a) Deny any application for an activity

which either individually or cumulatively

would result in a significant adverse impact

including potential cumulative effects. In

assessing the cumulative effects of a

proposed activity, the Department shall

consider the short - term and long - te rm

impacts and the direct and indirect impacts

the activity would cause in combination with

existing structures in the area and any

other activities proposed within the same

fixed coastal cell. The impact assessment

shall i nclude the anticipated effects o f the

construction on the coastal system and

marine turtles. Each application shall be

evaluated on its own merits in making a

permit decision, therefore, a decision by

the Department to grant a permit shall not

constitute a commitment to permit additiona l

similar construction within the same fixed

coastal cell.

* * *

(7) An individual structure or activity

may not have an adverse impact on the beach

or dune system at a specific site, however,

a number of similar structures or activities

along the coast may have a significant

cumulative impact resulting in the general

degradation of the beach or dune system

along that segment of shoreline. The

Department may not authorize any

construction or activity whose cumulative

impact will threaten the beach or dune

system or its recovery potential following a

major storm event. An exception to this

policy may be made with regard to those

activities undertaken pursuant to

Subsections 16B - 33.005(3)(d) and 16B -

33.006(2), Florida Administrative Code.

1 7 . Rule 62B - 33.005(3)(a) was amended in 2000, as follows:

(3) After reviewing all information

required pursuant to this Chapter, the

Department shall:

* * *

(a) Deny any application for an activity

which either individually or cumulatively

would resul t in a significant adverse impact

including potential cumulative effects. In

assessing the cumulative effects of a

proposed activity, the Department shall

consider the short - term and long - term

impacts and the direct and indirect impacts

the activity would cause in combination with

existing structures in the area and any

other similar activities already permitted

or for which a permit application is pending

within the same fixed coastal cell. The

impact assessment shall include the

anticipated effects of t he construction on

the coastal system and marine turtles. Each

application shall be evaluated on its own

merits in making a permit decision,

therefore, a decision by the Department to

grant a permit shall not constitute a

commitment to permit additional s imilar

construction within the same fixed coastal

cell.

18 . Rule 62B - 33.005(3)(a) currently appears as set

forth in the preceding paragraph, but without the

underlining.

19 . One of the provisions in Rule 62B - 33.005(3)(a) that is

being challenged in thes e cases states that the Department

shall:

[d]eny any application for an activity which

either individually or cumulatively would

result in a significant adverse impact

including potential cumulative effects. In

assessing the cumulative effects of a

propos ed activity, the Department shall

consider the short - term and long - term

impacts and the direct and indirect impacts

the activity would cause in combination with

existing structures in the area and any

other similar activities already permitted

or for which a permit application is pending

within the same fixed coastal cell. The

impact assessment shall include the

anticipated effects of the construction on

the coastal system and marine turtles.

2 0 . This provision was first added to Rule 62B - 33.005 in

1996. It was amended on August 27, 2000.

2 1 . The other provision in Rule 62B - 33.005(3)(a) that is

being challenged in these cases is the requirement that:

[e]ach application shall be evaluated on its

own merits in making a permit decision,

therefore, a decisi on by the Department to

grant a permit shall not constitute a

commitment to permit additional similar

construction within the same fixed coastal

cell.

2 2 . This provision was first added to Rule 62B - 33.005 in

1996.

2 3 . Rule 62B - 33.005 is intended by the Department to

implement Section 161.053(5)(a)3., Florida Statutes.

2 4 . Rule 62B - 33.005(3)(a) reflects the Department’s

construction of the phrase “potential cumulative effects of any

proposed structures or activities,” as that phrase appears in

Section 16 1.053(5)(a)3., Florida Statutes. Petitioners disagree

with the Department’s construction of the statute.

2 5 . Rule 62B - 41.002 was first developed on August 23,

1992 , as part of the newly enacted Rule Chapter 16B - 41, which

was later designated as Rule Chap ter 62B - 41.

2 6 . Rule 62B - 41.002(28), first developed in 1992, is the

precursor to Rule s 62B - 41.002(19)(a) and (b), which were added

on October 23, 2001.

2 7 . Rule 62B - 41.002 is intended by the Department to

implement Section 161.041, Florida Statutes.

28 . Rule 62B - 41.002(19)(b) reflects the Department’s

construction of the phrase “potential cumulative effects of any

proposed structures or activities,” as that phrase appears in

S ection 161.041(2)(c), Florida Statutes. Petitioners disagree

with the Depar tment’s construction of the Statute.

29 . The current language of Section 161.041(2), Florida

Statutes, was adopted by the Legislature in 1987, as follows:

(2) The department may authorize an

excavation or erection of a structure at any

coastal location upon receipt of an

application from a property or riparian

owner and upon consideration of facts and

circumstances, including:

(a) Adequate engineering data concerning

inlet and shoreline stability and storm

tides related to shoreline topography;

(b) Design features of the proposed

structures or activities; and

(c) Potential impacts of the location of

such structures or activities, including

potential cumulative effects of any proposed

structures or activities upon such beach -

dune system or coastal inlet, which, in the

opinion of the department, clearly justify

such a permit.

3 0 . Rule 62B - 41.002(19) was amended to its current form in

2001, as follows:

(28) Renumbered as (19)

* * *

(a) “Adverse Impacts” are those impacts to

the act ive portion of the coastal system

resulting from coastal construction. Such

impacts are caused by coastal construction

which has a reasonable potential of causing

a measurable interference with the natural

functioning of the coastal system. The

active por tion of the coastal system extends

offshore to the seaward limit of sediment

transport and includes ebb tidal shoals and

offshore bars.

(b) "Cumulative Impacts" are impacts

resulting from the short - term and long - term

impacts and the direct and indirect impacts

the activity would cause in combination with

existing structures in the area and any

other similar activities already permitted

or for which a permit application is pending

within the same fixed coastal cell. The

impact assessment shall include t he

anticipated effects of the construction on

the coastal system and marine turtles. Each

application shall be evaluated on its own

merits in making a permit decision,

therefore, a decision by the Department to

grant a permit shall not constitute a

commit ment to permit additional similar

construction within the same fixed coastal

cell individual coastal construction which,

if permitted as a general practice on other

coastal properties in the same general area,

or if added to the adverse impacts from

existi ng coastal construction are expected

to result in an adverse impact.

3 1 . The scope of the "cumulative impact" review under the

Environmental Resource Permit (ERP) program is described in the

“Basis of Review” used by the South Florida Water Management

Di strict, St. Johns River Water Management District, and

Southwest Florida Water Management.

3 2 . Under the “Basis of Review,” cumulative impacts are

considered unacceptable when the proposed system, considered in

conjunction with the past, present, and futu re activities , would

result in a violation of state water quality standards or

significant adverse impacts to functions of wetlands or other

surface waters. The cumulative impact evaluation is conducted

using an assumption that reasonably expected future applications

with like impacts will be sought, thus necessitating equitable

distribution of acceptable impacts among future applications.

In reviewing impacts of a current ERP project application, the

agency will review impacts from pending projects and e xtrapolate

from those impacts to see what impacts future projects could

contribute, using objective criteria, such as comprehensive

plans, plats on file with local governments, or applicable land

use restrictions and regulations.

3 3 . Tony McNeal, the admi nistrator of the Department’s

CCCL permitting program, acknowledged in his deposition

testimony that the last sentence of Rule 62B - 33.005(3)(a) “is a

way of saying that the Department is not going to be bound by

its prior actions in similar cases.” Howeve r, he also explained

that the sentence does not allow the Department to act

inconsistently because the Department “consistently appli es the

same rules” to each project that comes before it and “[t]he only

thing that changes are the facts surrounding the pr oject.”

CONCLUSIONS OF LAW

3 4 . DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Section 120.56, Florida

Statutes.

3 5 . A summary final order is appropriate where, as here,

DOAH has final order authority and the parties agree that there

is “no genuine issue as to any material fact.” § 120.57(1)(h),

Fla. Stat.

3 6 . Section 120.56(1)(a), Florida Statutes, provides that

“[a]ny person substantially affected by a rule . . . may seek an

administrative determination o f the invalidity of the rule on

the ground that the rule is an invalid exercise of delegated

legislative authority.” See also § 120.56(3)(a), Fla. Stat.

3 7 . The parties stipulated that Petitioners have standing

to challenge the validity of Rule 62B - 33.0 05(3)(a).

38 . The purpose of a rule challenge proceeding is “ to

determine the facial validity of [the challenged rules] , not to

determine their validity as applied to specific facts, or

whether the agency has placed an erroneous construction on

them. ” F airfield Communities v. Florida Land and Water

Adjudicatory Comm’n , 522 So. 2d 1012, 1014 (Fla. 1st DCA 1988).

39 . Petitioners have the burden to prove by a

preponderance of the evidence in this de novo proceeding that

Rule 62B - 33.005(3)(a) is an invalid exercise of delegated

legislative authority. § 120.56(3)(a), Fla. Stat.; Dept. of

Health v. Merritt , 919 So. 2d 561 (Fla. 1st DCA 2006) .

4 0 . Rule 62B - 33.005(3)(a) is entitled to a presumption of

validity. See St. Johns River Water Management Dist. v.

Co nsolidated - Tomoka Land Co. , 717 So. 2d 72, 76 (Fla. 1st DCA

1998) ("Before the 1996 revision of the Administrative Procedure

Act, the courts had held that a rule was presumed to be valid,

and that the party challenging a rule has the burden of

establishing that it is invalid. [T]hese principles continue to

apply in a proceeding to challenge an existing rule . . . ."

(C itations omitted) ).

4 1 . A rule is an invalid exercise of delegated legislative

authority if any one of the following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

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

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

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

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious.

A rule is arbitrary if it is not supported

by logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory cos ts on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

A grant of rulemaking authority is necessary

but not sufficient to allow an agency to

a dopt 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

r easonably 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

legislativ e intent or policy. Statutory

language granting 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 sa me statute.

§ 120.52(8), Fla. Stat. See also § 120.536(1), Fla. Stat.

(repeating the “flush - left” paragraph found at the end of

Section 120.52(8), Florida Statutes).

4 2 . Petitioners contend that Rule 62B - 33.005(3)(a) is

invalid under paragraphs (b), (c ), (d), and/or (e) of Section

120.52(8), Florida Statu t es.

4 3 . Section 120.52(8)(b), Florida Statutes “pertains to

the adequacy of the grant of rulemaking authority,”

Consolidated - Tomoka , 717 So. 2d at 81, and prohibits an agenc y

from adopting rules on a subject that the Legislature has not

given the agency specific statutory authority to regulate. See

Board of Trustees of the Internal Improvement Trust Fund v . Day

Cruise Ass'n, Inc. , 794 So. 2d 696, 700 (Fla. 1st DCA 2001)

(“ [ A ] gencies have rulemaking authority only where the

Legislature has enacted a specific statute, and authorized the

agency to implement it, and then only if the . . . rule

implements or interprets specific powers or duties, as opposed

to improvising in an area that can be said to fal l only

generally within some class of powers or duties the Legislature

has conferred on the agency.”).

4 4 . The authority for a 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. [T]his question is one that must

be determined on a case - by - case basis.

Southwest Florida Water Management Dist . v. Sav e the Manatee

Club, Inc. , 773 So. 2d 594, 599 (Fla. 1st DCA 2000) (emphasis in

original).

4 5 . Rule 62B - 33.005(3)(a) does not exceed the rulemaking

authority granted to the Department in Section 161.053, Florida

Statutes. The rule falls squarely within th e authority granted

to the Department to establish a permitting program for

construction seaward of the CCCL, see § 161.053(21), Fla. Stat.

(“The department is authorized to adopt rules related to . . .

activities seaward of the coastal construction contro l line

[and] . . . permitting programs . . . .”), and the rule

interprets and implements the specific statutory powers and

duties delegated to the Department by the statute. See

§ 161.053(5)(a), Fla. Stat. (authorizing the Department to

permit constructi on seaward of the CCCL upon receipt of an

application and upon consideration of facts and circumstances

including the potential impacts of the location of the structure

and the potential cumulative impacts of any proposed structures

on the beach - dune syste m).

4 6 . Thus, Rule 62B - 33.005(3)(a) is not an invalid exercise

of delegated legislative authority under Section 120.52(8)(b),

Florida Statutes.

47 . Section 120.52(8)(c), Florida Statutes “relates to the

limitations imposed by the grant of rulemaking auth ority,”

Consolidated - Tomoka , 717 So. 2d at 81, and prohibits an agenc y

from adopting rules that go beyond -- “enlarges” -- or conflict

with -- “modifies or contravenes” -- the statute being

implemented. See , e.g. , Day Cruise Ass'n , 794 So. at 701

(invali dating proposed rule that had the effect of prohibiting

so - called “cruises to nowhere” because, among other things, the

statute expressly prohibited the adoption of rules that

interfere with commerce); Save the Manatee Club , 773 So. 2d at

600 (invalidating rule that grandfathered projects based upon

their prior approvals because the statute only authorized

exemptions based upon environmental impacts).

48 . Rule 62B - 33.005(3)(a) does not enlarge the statute

being implemented by the Department. Indeed, the c rux of

Petitioners’ argument as to the invalidity of the rule is that

the Department is undertaking less of a cumulative impact

analysis than is required by Section 161.053, Florida Statutes.

See Petitioners’ PFO, at 7 (“The central question in this case

is whether the Department exceeded its rulemaking powers by

limiting the legislatively mandated [cumulative impact] analysis

to the consideration of only existing structures or activities

or [those] which a permit has been issued by, or is pending

before, the Department.”) (emphasis in original).

49 . As more fully discussed below, Rule 62B - 33.005(3)(a)

does not modify or contravene Section 161.053(5)(a)3., Florida

Statutes, which the parties agree is the primary stat ut e being

interpreted and implemented by the rule.

5 0 . Section 161.053(5)(a)3 . , Florida Statutes, r equires

that prior to permitting structures or activities seaward of the

CCCL, the Department must consider the “ [p] otential impacts of

the location of such structures or activities, including

p otential cumulative impacts of any proposed structures or

activities upon the beach - dune system , . . . .” (Emphasis

supplied).

5 1 . “Cumulative impacts” are generally understood to be

the p otential impacts of future similar projects in the vicin ity

of the project under review, s ee generally Caloosa Property

Ow ners’ Association, Inc. v. Department of Environmental

Reg ulation , 462 So. 2d 523, 526 - 27 (Fla. 1st DCA 1985) , and they

are required to be assessed in various environmental permitting

programs. The e xtent of the assessment depends upon the statute

governing the permitting program. See , e.g. , Sierra Club v. St.

Johns River Water Management Dist. , 816 So. 2d 687 (Fla. 5th DCA

2002) (discussing statutory and rule amendments that “short -

circuited” the cu mulative impact analysis under the ERP program

where the project’s impacts have been fully mitigated w ithin the

drainage basin ). The dispute in this case involves the scope of

the cumulative impact analysis required by Section

161 .053(5)(a)3. , Florida Sta tutes .

52. The cumulative impact analysis described in Rule 62B -

33.005(3)(a) includes two component s that are to be evaluated in

combination with each other. The first component is the various

impacts -- i.e. , short - term, long - term, direct, and indirect --

of the project under review. The second component is the

impacts of other structures and activities -- i.e. , existing ,

permitted, and proposed -- in the vicinity of the project under

review. Petitioners’ challenge to the validity of the rule

focuses o n the rule’s f ailure to include reasonably foreseeable

projects as part of the second component of the analysis. 3

53 . Chapter 161, Florida Statutes, does not define the

phrase “proposed structures or activities,” which is what the

cumulative impact analy sis is required to address. In the

context of Section 163.053(5)(a)3., Florida Statutes, the phrase

must be referring to structures and activities other than those

in the permit application under review (as the phrase is used

elsewhere in Section 161.053, Florida Statutes) because the

statute would be illogical if the cumulative impact analysis was

limited to the project under review.

5 4 . Petitioners argue that the cumulative impact analysis

required by Section 161.053(5)(a)3., Florida Statutes, must

incl ude structures and activities that have not been proposed to

the Department if they are reasonably expected in the future.

The Department and Lighthouse argue that the required cumulative

impact analysis is more limited, and include s only structures

and a ctivities that are existing, permitted, or have been

proposed to the Department. See Fla. Admin. Code R. 62B -

33.005(3)(a) (requiring consideration of the various impacts of

the project under review in combination with “[1] existing

structures in the area and [2] any other similar activities [a]

already permitted or [b] for which a permit application is

pending within the same fixed coastal cell”).

5 5 . An agency’s interpretation of a statute that it is

charged with implementing is entitled to deference un less the

interpretation is clearly erroneous. See , e.g. , Atlantis at

Perdido Ass ’n , Inc. v. Warner , 2006 F l a. App LEXIS 11210, at *15

(Fla. 1st DCA July 6, 2006); Lakeland Regional Medical Center,

Inc. v. Agency for Health Care Admin. , 917 So. 2d 1024, 10 29

(Fla. 1st DCA 2006). The Department’s interpretation of the

scope of the cumulative impact analysis required by Section

161.053(5)(a)3., Florida Statutes, is not clearly erroneous.

5 6 . The cases cited by Petitioners in their PFO ( e.g. ,

pages 5 - 7, 17 - 1 8, 22 - 23) for the proposition that a cumulative

impact analysis necessarily includes an evaluation of projects

that are reaso nably foreseeable are distinguishable. Those

cases involved permitting programs governed by statutes

specifically requiring consid eration of other projects that are

reasonably expected in the future. See , e.g. , Conservancy, Inc.

v. A. Vernon Allen Builder, Inc. , 580 So. 2d 772 (Fla. 1st DCA

1991) (reversing final order approving dredge and fill permit

and remanding for consideration the project's cumulative impacts

in accordance with Section 403.919, Florida Statutes, which is

now codified in Section 373.414(8)(a), Florida Statutes).

5 7 . Where the Legis lature has intended the Department or

other permitting agenc y to consider reaso nably foreseeable

projects as part of a cumulative impact analysis, it has clearly

expressed that intent. See , e.g. , § 373.414(8)(a)3., Fla. Stat.

(requiring consideration of activities that “may reasonably be

expected to be located within surface waters or wetlands . . .

in the same drainage basin” in the future as part of the

cumulative impact analysis under the ERP program). If the

Legislature had intended the cumulative impact analysis required

by Section 161.053(5)(a)3., Florida Statutes, to include such

projects -- as compared to “proposed structures or activities” -

- it presumably would have said so.

5 8 . Thus, Rule 62B - 33.005(3)(a) is not an invalid exercise

of delegated legislative authority under Section 120.52(8)(c),

Florida Statutes.

5 9 . A rul e is invalid under Section 120.52(8)(d), Florida

Statutes, if it is vague, fails to establish adequate standards

for agency decisions, or vests unbridled discretion in the

agency.

60 . Rule 62B - 33.005(3)(a) is not vague. It does not

"require[] performan ce of an act in terms that are so vague that

men of common intelligence must guess at its meaning."

Southwest Florida Water Management Dist . v. Charlotte County ,

774 So. 2d 903, 915 (Fla. 2nd DCA 2001). See also Cole Vision

Corp. v. Dept. of Business and Professional Reg. , 688 So. 2d 404

(Fla. 1st DCA 1997). The rule clearly defines the types of

structures and activities that will be considered in the

cumulative impact analysis, and other provisions of Rule Chapter

62B - 33 enumerate the standards by which each application will be

evaluated “on its own merits.”

6 1 . Rule 62B - 33.005(3)(a) establishes adequate standards

for agency decisions. The CCCL permitting standards in Rule

Chapter 62B - 33 are extremely detailed and contain adequate

standards to guide the Department’s decision whether or not to

issue a CCCL permit. Nothing in Rule 62B - 33.005(3)(a) relieves

the Department from applying those standards to each CCCL permit

application that comes before it, which is what the Department

does according to Mr. M cNeal’s unrebutted deposition testimony.

6 2 . Rule 62B - 33.005(3)(a) does not vest unbridled

discretion in the Department by stating that each permit

application will be evaluated “on its own merits” or by stating

that “a decision by the Department to grant a permit shall not

constitute a commitment to permit additional similar

construction within the same fixed coastal cell.” Nothing in

those statements relieves the Department from consistently

applying the detailed CCCL permitting standards from one proje ct

to the next, which is what the Department does according to Mr.

McNeal’s unrebutted deposition testimony.

63. Rule 62B - 33.005(3)(a) does not preclude the Department

from looking at or relying upon its precedent in making permit

decisions. The rule pre cludes nothing , and the Department is

free to look at/rely on prior permitting decisions. The rule

simply explains that the Department’s approval of another CCCL

permit for similar construction in the vicinity of the project

under review is not, in and of itself, a basis for the approval

of the project under review.

6 4 . Thus, Rule 62B - 33.005(3)(a) is not an invalid exercise

of delegated legislative authority under Section 120.52(8)(d),

Florida Statutes.

6 5 . A rule is invalid under Section 120.52(8)(e), F lorida

Statutes, if it is arbitrary or capricious.

6 6 . A rule is arbitrary if it is “not supported by logic

or the necessary facts,” and it is capricious if it is “adopted

without thought or reason or is irrational.” § 120.52(8)(e),

Fla. Stat. See also Bo ard of Medicine v. Florida Academy of

Cosmetic Surgery , 808 So. 2d 243, 255 (Fla. 1st DCA 2002) ; Board

of Clinical Lab oratory Pers onnel v. Fla. Ass’n of Blood Banks ,

721 So. 2d 317, 318 (Fla. 1s t DCA 1998) ; Agrico Chemical Co. v.

Dept. of Environmental R eg. , 365 So. 2d 759, 763 (Fla. 1st DCA

1979).

6 7 . It appears that the Department previously i nterpreted

the scope of the cumulative impact analysis required by Section

161.053(5)(a)3., Florida Statutes, in a manner consistent with

the interpretation advoc ated by Petitioners in this case. See ,

e.g. , Machata v. Dep t. of Environmental Protection , 1994 Fla.

ENV LEXIS 4 5, at *7 (DEP 1994) (rejecting hearing officer’s

finding of fact No. 122 regarding the proper application of the

Department’ s cumulative impact analysis, and a dopting in lieu

thereof the exception reported at 1994 Fla. ENV LEXIS 94, *20,

which explained that th e predecessor to Rule 62B - 33.005(3)(a)

“specifically requires the Department to consider whether a

number of similar structures or activit ies along the coast may

have a significant cumulative impact”).

68 . The limited record in this case does not explain why

the Department changed its interpretation of Section

161.053(5)(a)3., Florida Statutes, to narrow the scope of the

cumulative impact a nalysis, as it apparently did in 1996 and

2000 when it amended Rule 62B - 33.005(3)(a) to its present form.

It is possible, however, that the amendments were the result of

the invalidation of the rule’s predecessor in Machata v.

Department of Environmental Protection , 1994 Fla. Div. Adm.

Hear. LEXIS 5195 (DOAH 1994) (invalidating Rule 16B - 33.005(7)

because its reference to “similar structures” and “segment of

shoreline” failed to establish adequate standards to guide

agency discretion and was arbitrary and c apricious (at **21 - 23,

69 - 70), and noting (at *27) that the Department “interprets and

implements these terms with little, if any , consistency”), per

curiam aff’d , 678 So. 2d 342 (Fla. 1st DCA 1996) (table). 4

69 . T he fact that the language of Section 161. 053(5)(a)3.,

Florida Statutes, has remained materially the same since 1983

does not affect the Department’s authority to change its

interpretation of the statute by amending Rule 62B - 33.005 .

Indeed, as explained in Department of Administration v.

Albanese , 445 So. 2d 639 (Fla. 1st DCA 1984) ,

an administrative agency is not necessarily

bound by its initial construction of a

statute evidenced by the adoption of a rule

and that an agency may validly adopt

subsequent rule changes that give effect to

a differin g construction of the organic

statute so long as this subsequent

construction is consistent with a reasonably

permissible construction of that statute.

Such flexibility is necessary to permit

changes in agency policy permissible under a

view of the statut e broadly conceived in

light of subsequent experience.

Id. at 642. See also Cleveland Clinic Florida Hospital v.

Agency for Health Care Admin. , 679 So. 2d 1237, 1242 (Fla. 1st

DCA 1999).

7 0 . The Department is not required in this proceeding to

justify i ts decision to amend Rule 62B - 33.005(3)(a) in 1996 or

2000 to narrow the scope of the cumulative impact analysis. See

Agency for Health Care Admin. v. Fl a. Coalition of Professional

Laboratory Organ iz ations , Inc. , 718 So. 2d 869, 87 1 - 7 2 (Fla. 1st

DCA 1998 ) (“We find nothing in the 1996 amendments or, indeed,

the entire [Administrative Procedure Act] , requiring an agency,

in exercising its quasi legislative/ administrative rulemaking

function, to prove that its existing, unchallenged rule was

unwisely, capri ciously or arbitrarily adopted, or to offer an

explanation of necessity for the repeal or amendment thereof.”).

7 1 . Instead, under Section 120.52(8)(e), Florida Statutes,

it is Petitioners who have the burden to demonstrate that the

Department’s current i nterpretation of Section 161.053(5)(a)3.,

Florida Statutes, is illogical or irrational. Petitioners

faile d to do so.

7 2 . T he Joint Memorandum of Law filed by the Lighthouse

and the Department includes persuasive argument ( e.g. , pages 12 -

14) regarding the logic of the Department’s current rule .

73. Specifically, Lighthouse and the Department argue, and

the undersigned agrees that i t is not illogical or irrational

for the Department to limit the scope of the cumulative impact

a nalysis to the other struct ures and activities for which the

Department has specific design and location information – - i.e. ,

“existing structures in the area and any other similar

activities already permitted or f or which a permit application

is pending within the same fixed coasta l cell” - – because the

Department will have sufficient information about those projects

to make a judgment about the combined impact of those projects

and the project under review on the beach - dune system. As to

other future projects (whether reasonably f oreseeable or not),

the Department would be required to guess about the ir precise

location and design and the manner in which they might interact

with the project under review and the dynamic beach - dune system,

which may result in a cumulative impact analy sis that is

speculative and, po tentially , unreliable or misleading.

7 4 . Thus, Rule 62B - 33.005(3)(a) is not an invalid exercise

of delegated legislative authority under Section 120.52(8)(e),

Florida Statutes.

7 5 . In sum, Petitioners failed to meet their b urden to

prove by a preponderance of the evidence that Rule 62B -

33.005(3)(a), or any portion thereof, is an invalid exercise of

delegated legislative authority under Section 120.52(8), Florida

Statutes .

76 . Petitioners also contend that Rule 62B - 33.005(3) (a) is

invalid because “it was adopted in derogation of Section

120.68(7)(e)3., Florida Statutes, which requires an agency to

follow its own precedent.” See Petitioners’ PFO, at 20 .

77 . Section 120.68(7)(e)3., Florida Statutes , does not

provide a basis f or invalidating a rule . Th e statute ap plies in

the context of judicial review of the agency’s application of a

rule to a particular set of facts, not in a rule challenge

proceeding under Section 120.56, Florida Statutes .

78 . Furthermore, Section 120.68(7 )(e)3., Florida Statutes,

does not require an agency to blindly follow its prior decisions

as Petitioners’ argument seems to suggest. Indeed, t he statute

implicitly allows the agency to deviate from its p recedent so

long as it explains the deviation . See Martin Memorial Hospital

Ass’n v. Dept. of Health & Rehabilitative Servs. , 584 So. 2d 39,

40 (Fla. 1st DCA 1991) (citing North Miami General Hospital v.

Office of Community Medical Facilities , 355 So. 2d 1272 (Fla.

1st DCA 1978), for the proposition that “agency action which

yields inconsistent results based upon similar facts, without

reasonable explanation , is improper” (emphasis supplied)).

ORDER

Based upon the foregoing F indings of F act and C onclusions

of L aw, it is

ORDERED that the Petitions for Dete rmination of Invalidity

of Existing Rules are dismissed.

DONE AND ORDERED this 8th day of August, 2006, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative He arings

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 8th day of August, 2006 .

ENDNOTES

1 / Findings 1 through 32 were taken directly from the Amended

Joint Stipulation, filed July 11, 2006; only minor editorial

changes were made. Finding 33 is based upon the excerpt of Tony

McNeal’s depositio n filed by Petitioners on July 21, 2006, which

was not objected to by the Department or Lighthouse.

2 / All statutory references are to the 2005 version of the

Florida Statutes unless otherwise indicated.

3 / It is difficult to understand how the propose d subdivision

would fit into the second component of the analysis because, as

explained in Caloosa Property Oweners’ Association , 462 So. 2d

at 526, the cumulative impact doctrine is concerned with the

“precedential value of granting a permit under the ass umption

that similar future permits will be granted in the same locale”

(emphasis supplied). Thus, even if Petitioners were correct

regarding the scope of the cumulative impact component of the

analysis required by Section 161.053(5)(a)3., Florida Statute s,

the analysis would focus on other similar road projects that are

reasonably foreseeable in the vicinity of the road at issue in

the Permit Challenge and not the houses to be built as part of

the subdivision to be served by the road. That said, it seems

to this ALJ that the potential impacts of the platted

subdivision to be served by the road at issue in the Permit

Challenge could be characterized as secondary ( i.e. , indirect)

impacts of the road project itself and be considered at least in

a general sen se as part of the first component of the analysis

under Rule 62B - 33.005(3)(a), particularly since the parties

agree that the sole purpose of the road is to serve the

subdivision. See Conservancy , supra (explaining that

“’secondary’ impacts are those that may result from the

permitted activity itself, and ‘cumulative’ impacts are impacts

that may result from the addictive effects of many similar

projects,” and holding that the hearing officer and the

Department erred by not considering the impacts of a 75 - u nit

development that would be facilitated by the pipeline under

review because those impacts were secondary impacts of the

pipeline project). Nevertheless, contrary to Petitioners’

argument in their PFO ( e.g. , page 16), this distinction raises

questions a bout the Department’s interpretation and/or

application of the rule, not the validity of its interpretation

of Section 161.053(5)(a)3., Florida Statutes, in the rule. The

reasonableness of the Department’s interpretation and/or

application of the rule are beyond the scope of this rule

challenge proceeding. See Fairfield Communities , 522 So. 2d at

1014.

4 / This Machata case involved a challenge to a number of

Department rules and unwritten policies, and it appears t o have

been consolidated for purposes of hearing with the Mac hata case

reported at 1994 Fla. ENV LEXIS 45, which involved the issuance

of a CCCL permit. Separate orders were issued by the hearing

officer because he had final order authority in the rule

challenge case, but not in the permit ca se.

COPIES FURNISHED :

Scott Boyd, Executive Director

and General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399 - 1300

Timothy P. Atkinson, Esquire

Oertel, Hoffman, Fernandez &

Cole, P.A.

Post Of fice Box 1110

Tallahassee, Florida 32302 - 1110

Bernard R. Appleman

Department of Environmental Protection

Douglas Building, Mail Stop 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Martha Harrell Chumbler, Esquire

Carlton Fields, P.A.

Po st Office Drawer 190

215 South Monroe Street, Suite 500

Tallahassee, Florida 32302 - 0190

Thomas G. Tomasello, Esquire

Thomas G. Tomasello, P.A.

1107 Terrace Street

Tallahassee, Florida 32303 - 6458

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is advers ely affected by this Summary 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 Notic e of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where t he party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.