09-007054RX St. Johns Riverkeeper, Inc. And Henry O. Palmer vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Wednesday, July 14, 2010.

Summary: Petitioners did not prove standing or that the SSAC Rule was invalid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JOHNS RIVERKEEPER, INC., )

AND HENRY O. PALMER, )

)

Petitioners, )

)

vs. ) Case No. 09-7054RX

)

DEPARTMENT OF ENVIRONMENTAL PROTECTION, )

)

)

Respondent, )

)

and )

)

FLORIDA PULP & PAPER )

ASSOCIATION ENVIRONMENTAL )

AFFAIRS, INC., AND BUCKEYE )

FLORIDA, LIMITED PARTNERSHIP, )

)

Intervenors. )

)

FINAL ORDER

The final hearing in this challenge to the validity of

existing Florida Administrative Code Rule 1 62-302.800(2) was

scheduled to take place on May 25-26, 2010. However, the

hearing was canceled because the parties agreed that there were

no factual disputes and that the case could be determined on

motions for summary final order and responses, which have been

filed and considered. 2

STATEMENT OF THE ISSUES

The issues to be determined in this case are: whether

Petitioners have standing; and whether Rule 62-302.800(2) is an

invalid exercise of delegated legislative authority, as defined

by Section 120.52(8)(b) and (c), Florida Statutes. 3

FINDINGS OF FACT

1. Petitioner, St. Johns Riverkeeper, Inc. (Riverkeeper),

is a nonprofit, membership-based corporation with its principal

place of business in Jacksonville, Florida. It is dedicated to

the protection, preservation, and restoration of the ecological

integrity of the St. Johns River watershed, monitors water

quality in the river and its tributaries, and involves citizens

in the decisions that affect the health of the river, and

organizes regular boat trips for its members and citizens to

learn more about the river and how they can participate in its

management.

2. Petitioner, Henry O. Palmer (Palmer), uses the lower

St. Johns River (LSJR), including its marine portions and

tributaries, for kayaking, boating, and observation of wildlife,

and a substantial number of Riverkeeper's members use the LSJR,

including its marine portions and tributaries, for boating,

fishing, crabbing, observing birds and other wildlife, and other

water-based recreational activities. Based on undisputed

affidavits, Petitioners are substantially affected by algal

blooms and decay and vegetation and fish kills in and along the

river. These conditions can be caused by excessive nutrients

along with other factors.

3. Respondent, Department of Environmental Protection

(DEP), has used the procedures in Rule 62-302.800(2) to

establish a Type II site-specific alternative criterion (SSAC)

for dissolved oxygen (DO) for the LSJR that is lower than the

otherwise-applicable, default water quality standard in Rule 62-

302.530(30). See Fla. Admin. Code R. 62-302.800(5)(a). As a

result of the SSAC, DEP revised the Total Maximum Daily Load

(TMDL) for total phosphorus (TP) and total nitrogen (TN) allowed

for the marine portion of the LSJR.

4. Rule 62-302.800 sets out a procedure for establishing a

SSAC. Paragraph (1) sets out the procedure for Type I SSACs,

which can be established when a "water body, or portion thereof,

may not meet a particular ambient water quality criterion

specified for its classification, due to natural background

conditions or man-induced conditions which cannot be controlled

or abated" and "when an affirmative demonstration is made that

an alternative criterion is more appropriate for a specified

portion of waters of the state." Paragraph (2), which is

challenged in this case, sets out the procedure to petition DEP

for a Type II SSAC for unspecified "reasons other than those set

forth above in subsection 62-302.800(1), F.A.C."

5. Rule 62-302.800(2) provides in part:

(c) The Department shall initiate

rulemaking for the [Environmental

Regulation] Commission to consider approval

of the proposed alternative criterion as a

rule if the petitioner meets all the

requirements of this subparagraph and its

subparts. The petitioner must demonstrate

that the proposed criterion would fully

maintain and protect human health, existing

uses, and the level of water quality

necessary to protect human health and

existing and designated beneficial uses. If

the petition fails to meet any of these

requirements (including the required

demonstration), the Department shall issue

an order denying the petition. In deciding

whether to initiate rulemaking or deny the

petition, the Department shall evaluate the

petition and other relevant information

according to the following criteria and

procedures:

1. The petition shall include all

the information required under

subparagraphs (1)(a)1.-4. above.

2. In making the demonstration

required by this paragraph (c),

the petition shall include an

assessment of aquatic toxicity,

except on a showing that no such

assessment is relevant to the

particular criterion. The

assessment of aquatic toxicity

shall show that physical and

chemical conditions at the site

alter the toxicity or

bioavailability of the compound in

question and shall meet the

requirements and follow the

Indicator Species procedure set

forth in Water Quality Standards

Handbook (December 1983), a

publication of the United States

Environmental Protection Agency,

incorporated here by reference.

If, however, the Indicator Species

Procedure is not applicable to the

proposed site-specific alternative

criterion, the petitioner may

propose another generally accepted

scientific method or procedure to

demonstrate with equal assurance

that the alternative criterion

will protect the aquatic life

designated use of the water body.

3. The demonstration shall also

include a risk assessment that

determines the human exposure and

health risk associated with the

proposed alternative criterion,

except on a showing that no such

assessment is relevant to the

particular criterion. The risk

assessment shall include all

factors and follow all procedures

required by generally accepted

scientific principles for such an

assessment, such as analysis of

existing water and sediment

quality, potential transformation

pathways, the chemical form of the

compound in question, indigenous

species, bioaccumulation and

bioconcentration rates, and

existing and potential rates of

human consumption of fish,

shellfish, and water. If the

results of the assessments of

health risks and aquatic toxicity

differ, the more stringent result

shall govern.

4. The demonstration shall

include information indicating

that one or more assumptions used

in the risk assessment on which

the existing criterion is based

are inappropriate at the site in

question and that the proposed

assumptions are more appropriate

or that physical or chemical

characteristics of the site alter

the toxicity or bioavailability of

the compound. Such a variance of

assumptions, however, shall not be

a ground for a proposed

alternative criterion unless the

assumptions characterize a factor

specific to the site, such as

bioaccumulation rates, rather than

a generic factor, such as the

cancer potency and reference dose

of the compound. Man-induced

pollution that can be controlled

or abated shall not be deemed a

ground for a proposed alternative

criterion.

5. The petition shall include all

information required for the

Department to complete its

economic impact statement for the

proposed criterion.

6. For any alternative criterion

more stringent than the existing

criterion, the petition shall

include an analysis of the

attainability of the alternative

criterion.

7. No later than 180 days after

receipt of a complete petition or

after a petitioner requests

processing of a petition not found

to be complete, the Department

shall notify the petitioner of its

decision on the petition. The

Department shall publish in the

Florida Administrative Weekly

either a notice of rulemaking for

the proposed alternative criterion

or a notice of the denial of the

petition, as appropriate, within

30 days after notifying the

petitioner of the decision. A

denial of the petition shall

become final within 14 days unless

timely challenged under Section

120.57, F.S.

(d) The provisions of this subsection do

not apply to criteria contained in Rule 62-

302.500, F.A.C., or criteria that apply to:

1. Biological Integrity.

2. B.O.D.

3. Nutrients.

4. Odor.

5. Oils and Greases.

6. Radioactive Substances.

7. Substances in concentrations

that injure, are chronically toxic

to, or produce adverse

physiological or behavioral

response in humans, animals, or

plants.

8. Substances in concentrations

that result in the dominance of

nuisance species.

9. Total Dissolved Gases.

10. Any criterion or maximum

concentration based on or set

forth in paragraph 62-4.244(3)(b),

F.A.C.

(e) Despite any failure of the Department

to meet a deadline set forth in this

subsection (2), the grant of an alternative

criterion shall not become effective unless

approved as a rule by the Commission.

(f) Nothing in this rule shall alter the

rights afforded to affected persons by

Chapter 120, F.S.

6. Rule 62-302.800 cites several statutes as its specific

rulemaking authority and specific provisions of law implemented,

including Section 403.061, Florida Statutes, which states in

pertinent part:

The department shall have the power and the

duty to control and prohibit pollution of

air and water in accordance with the law and

rules adopted and promulgated by it and, for

this purpose, to:

* * *

(7) Adopt rules pursuant to ss.

120.536(1) and 120.54 to implement

the provisions of this act.

. . . .

* * *

(9) Adopt a comprehensive program

for the prevention, control, and

abatement of pollution of the air

and waters of the state, and from

time to time review and modify

such program as necessary.

(10) Develop a comprehensive

program for the prevention,

abatement, and control of the

pollution of the waters of the

state. In order to effect this

purpose, a grouping of the waters

into classes may be made in

accordance with the present and

future most beneficial uses.

. . . .

(11) Establish ambient air

quality and water quality

standards for the state as a whole

or for any part thereof, and also

standards for the abatement of

excessive and unnecessary noise.

. . . .

7. Section 403.201, Florida Statutes, sets out a separate

procedure to apply to DEP for a variance from DEP's rules and

regulations, including water quality standards, "for any one of

the following reasons":

(a) There is no practicable means known or

available for the adequate control of the

pollution involved.

(b) Compliance with the particular

requirement or requirements from which a

variance is sought will necessitate the

taking of measures which, because of their

extent or cost, must be spread over a

considerable period of time. A variance

granted for this reason shall prescribe a

timetable for the taking of the measures

required.

(c) To relieve or prevent hardship of a

kind other than those provided for in

paragraphs (a) and (b). Variances and

renewals thereof granted under authority of

this paragraph shall each be limited to a

period of 24 months, except that variances

granted pursuant to part II may extend for

the life of the permit or certification.

8. There was no evidence that the revised TMDLs for TP and

TN allowed for the marine portion of the LSJR will lead to algal

growth and algal blooms, reduced DO, fish kills, or adverse

impacts to recreation on the river. To the contrary, the Type

II DO SSAC for the marine portion of the LSJR has not been

challenged and conclusively establishes that it will "maintain

and protect human health, existing uses, and the level of water

quality necessary to protect human health and existing and

designated beneficial uses" and will "protect the aquatic life

designated use of the water body." Fla. Admin. Code R. 62-

302.800(2)(c). See also Affidavit of Douglas J. Durbin, Ph.D.,

filed June 25, 2010.

CONCLUSIONS OF LAW

9. A substantially affected person can challenge a rule

under Subsections 120.56(1)(a) and (3)(a), Florida Statutes.

10. The challenged Rule does not substantially affect

Petitioners. The Rule's effect on Petitioners is remote. See

Fla. Bd. of Med. v. Fla. Acad. of Cosmetic Surgery, Inc. , 808

So. 2d 243, 250 (Fla. 1st DCA 2002)(to have standing, a rule

challenger must establish that "application of the rule will

result in 'a real and sufficiently immediate injury in fact'").

Moreover, the Rule's unchallenged application to establish the

Type II SSAC for the marine portion of the LSJR conclusively

establishes that Petitioners are not substantially affected.

See Finding 8, supra .

11. Even if Petitioners had standing, they would not have

met their "burden of proving by a preponderance of the evidence

that the existing rule is an invalid exercise of delegated

legislative authority as to the objections raised."

§ 120.56(3)(a), Fla. Stat.

12. Section 120.52, Florida Statutes, provides in

pertinent part:

(8) "Invalid exercise of delegated

legislative authority" means action that

goes beyond the powers, functions, and

duties delegated by the Legislature. A

proposed or existing rule is an invalid

exercise of delegated legislative authority

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.;

(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.; . . . .

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

functions of an agency shall be construed to

extend no further than implementing or

interpreting the specific powers and duties

conferred by the enabling statute.

The language following the lettered paragraphs of Section

120.52(8), Florida Statutes (sometimes referred to as the "flush

left" language) is reiterated in Section 120.536(1), Florida

Statutes. It is a "set of general standards to be used in

determining the validity of a rule in all cases." Sw. Fla.

Water Mgmt. Dist. v. Save the Manatee Club, Inc. , 773 So. 2d

594, 597-98 (Fla. 1st DCA 2000). This standard has been held to

mean that

agencies have rulemaking authority only

where the Legislature has enacted a specific

statute, and authorized the agency to

implement it, and then only if the

(proposed) rule implements or interprets

specific powers or duties, as opposed to

improvising in an area that can be said to

fall only generally within some class of

powers or duties the Legislature has

conferred on the agency.

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

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

clarified on reh. , 798 So. 2d 847 (Fla. 1st DCA 2001). See also

Sw. Fla. Water Mgmt. Dist. v. Save the Manatee Club, Inc. , 773

So. 2d at 599.

13. Petitioners did not prove that DEP exceeded its grant

of rulemaking authority by adopting Rule 62-302.800(2), or that

the Rule enlarges, modifies, or contravenes the specific

provisions of law implemented. Rule 62-302.800 cites several

statutes as its rulemaking authority and specific provisions of

law implemented, including Section 403.061, Florida Statutes.

Paragraphs (9) and (10) of that statute authorize DEP to adopt a

comprehensive program to prevent, control, and abate the

pollution of state waters. Paragraph (11) of that statute

authorizes DEP to establish "water quality standards for the

state as a whole or for any part thereof."

14. Petitioners concede that Section 403.061, Florida

Statutes, provides specific rulemaking authority to adopt water

quality standards but contend that it does not provide specific

authority to adopt Rule 62-302.800(2). In support of this

contention, they cite Day Cruise , supra , and Lamar Outdoor

Advert. - Lakeland v. Fla. Dep't of Transp. , 17 So. 3d 799, 800

(Fla. 1st DCA 2009).

15. Day Cruise involved a rule regulating "vessels,

floating homes, or any other watercraft" adopted under the

authority of Section 253.03(7)(b), Florida Statutes, which gives

the Board of Trustees (BOT) authority to "adopt rules governing

all uses of sovereignty submerged lands by vessels, floating

homes, or any other watercraft, which shall be limited to

regulations for anchoring, mooring, or otherwise attaching to

the bottom." The court held that the statute did not authorize

a rule prohibiting vessels used for gambling offshore.

16. In Lamar the statutory authority was specific to

outdoor advertising sign dimensions other than height. As a

result, the agency rule addressing height was held not to be

authorized by the cited statutes.

17. In contrast, the authorization in Section 403.061(11),

Florida Statutes, to adopt water quality standards includes the

authority to adopt a procedure for the adoption of a SSAC.

Under the federal and Florida statutory and rule regulatory

scheme, a "moderating provision" such as Rule 62-302.800(2) is

part of Florida's water quality standards. See Fla. Admin. Code

R. 62-302.200(31) ("water quality standards" are defined to

include "moderating provisions"); 40 C.F.R. § 131.11(b)(1)

(states' numerical water quality criteria based on federal Clean

Water Act Section 304(a) Guidance can be "modified to reflect

site specific conditions").

18. Even if Rule 62-302.800(2) were not a water quality

standard, it is authorized as part of DEP's comprehensive

program for the prevention, control, and abatement of pollution

of state waters. See § 403.061(9) and (10), Fla. Stat. See

also Frandsen v. Dep't of Envtl. Prot. , 829 So. 2d 267 (Fla. 1st

DCA 2002), rev. den. 845 So.2d 889 (Fla. 2003), cert. denied ,

540 U.S. 948 (2003) (unsuccessful challenge to the validity of

Rule 62D-2.014(18), which pertained to free speech activities in

state parks and was authorized by Section 258.007(2), Florida

Statutes, which granted DEP the authority to adopt rules to

carry out its duty under Section 258.004, Florida Statutes, to

"supervise, administer, regulate, and control the operation of

all public parks" and to "preserve, manage, regulate, and

protect all parks and recreational areas held by the state

. . . ."); Hennessey v. Dep't of Bus. & Prof. Reg. , 818 So. 2d

697, 698 (Fla. 1st DCA 2002) (unsuccessful challenge to the

validity of Rule 61D-6.002(1), which made race animal trainers

the absolute insurers of ( i.e. , imposed absolute liability for)

the condition of the animals entered into any race and was

authorized by Sections 550.0251(3) and 550.2415(2) and (13),

Florida Statutes 4 ); Myers v. Dep't of Envtl. Prot. , DOAH Case No.

09-2928RX, 2009 Fla. ENV LEXIS 93; 2009 ER FALR 154 (DOAH

Aug. 24, 2009) (unsuccessful challenge to Rule 18-14.003, which

prohibited "structures whose use is not water-dependent;

sanitary septic systems; . . . houses; . . . and utility

installations on or over state land without consent or authority

from the Board or Department," and Rule 18-21.004, which

prohibited non-water dependent uses over sovereign submerged

lands, unless in the public interest as determined by a case-by-

case evaluation, and prohibited stilt houses, boathouses with

living quarters, and other residential structures, which were

authorized by Section 253.03(7)(a), Florida Statutes, which

granted BOT the authority to adopt rules to create "an overall

and comprehensive plan of development concerning the

acquisition, management, and disposition of state-owned lands so

as to ensure maximum benefit and use" and to implement "this

act").

19. Petitioners also rely on Dep't of Highway Safety and

Motor Vehicles v. JM Auto, Inc. , 977 So. 2d 733 (Fla. 1st DCA

2008), which upheld a determination that a rule was invalid for

not having specific statutory authority. But that case is

distinguishable in that the only statutory authority for the

challenged rule was a general rulemaking authorization to adopt

rules to implement a chapter of the Florida Statutes.

20. Finally, Petitioners contend that Rule 62-302.800(2)

directly contravenes Section 403.201, Florida Statutes, which

sets out a separate procedure to apply to DEP for a variance

from DEP's rules and regulations, including water quality

standards. But Rule 62-302.800(2) is not a variance, which

would apply to a single applicant (or limited number of

applicants); it is a "moderating provision," which is a

generally applicable water quality standard. For that reason,

the Rule does not contravene Section 403.201, Florida Statutes.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, Petitioners' challenge to the validity of Rule 62-

302.800(2) is denied and dismissed.

DONE AND ORDERED this 14th day of July, 2010, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of July, 2010.

ENDNOTES

1/ Unless otherwise specified, all rule citations refer to the

current version of the Florida Administrative Code.

2/ Petitioners' filings contest Intervenor's standing because

Intervenor's standing allegations were not established by any

evidence. (Intervenor alleged that it is an incorporated

association of eight pulp and paper mill companies that are

regulated by and subject to DEP statutes, rules, and

regulations, including water quality standards.) Ordinarily,

this would indicate a factual issue requiring an evidentiary

hearing. However, even if Petitioners have not waived the

issue, it is not necessary to hold a hearing on Intervenor's

standing allegations in light of the rulings in this Final

Order.

3/ Unless otherwise specified, all statutory citations are to

sections of the 2009 codification of the Florida Statutes.

4/ Section 550.0251(3) required the agency to "adopt reasonable

rules for the control, supervision, and direction of all . . .

licensees, and for the holding, conducting, and operating of all

. . . races" and stated that "the duty of exercising this

control and power [over licensees and races] is made mandatory

upon the division." Section 550.2415(2) and (13) provided:

(2) Administrative action may be taken by

the division against an occupational

licensee responsible pursuant to rule of the

division for the condition of an animal that

has been impermissibly medicated or drugged

in violation of this section.

* * *

(13) The division shall adopt rules to

implement this section. The rules may

include a classification system for

prohibited substances and a corresponding

penalty schedule for violations.

COPIES FURNISHED :

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608

W. Douglas Beason, Esquire

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Terry Cole, Esquire

Oertel, Fernandez, Cole & Bryant, P.A.

Post Office Box 1110

Tallahassee, Florida 32302-1110

F. Scott Boyd

Executive Director and General Counsel

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

Michael W. Sole, Secretary

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

Tom Beason, General Counsel

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399-3000

NOTICE OF 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 are commenced by

filing the original Notice 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 the party resides. The notice of

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

be reviewed.