14-001329RP Conservancy Of Southwest Florida vs. South Florida Water Management District
 Status: Closed
DOAH Final Order on Friday, April 25, 2014.


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Summary: The District's proposed rule, which creates a water reservation, is an invalid exercise of delegated legislature authority because it modifies and contravenes the law implemented.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CONSERVANCY OF SOUTHWEST

11FLORIDA, INC.,

13Petitioner,

14vs. Case No. 14 - 1329RP

20SOUTH FLORIDA WATER MANAGEMENT

24DISTRICT,

25Respondent.

26_______________________________/

27SUMMARY FINAL OR DER

31At the request of the parties, the scheduled final hearing

41was canceled and the case was submitted to Bram D.E. Canter,

52Administrative Law Judge of the Division of Administrative

60Hearings (ÐDOAHÑ), for summary final order pursuant to section

69120.57(1) (h), Florida Statutes (2013) .

75APPEARANCES

76For Petitioner: Marcy I. LaHart, Esquire

82Marcy I. LaHart, P.A.

864804 Southwest 45th Street

90Gainesville, Florida 32608 - 4922

95For Responden t: Jennifer D. Bokankowitz, Esquire

102Elizabeth D. Ross, Esquire

106South Florida Water Management District

111Mail Stop Code 1410

1153301 Gun Club Road

119Wes t Palm Beach, Florida 33406 - 3007

127STATEMENT OF THE ISSUE

131The issue to be determined in this case is whether proposed

142Florida Administrative Code Rule 40E - 10.041(3)(d) of the South

152Florida Water Management District (Ðthe DistrictÑ) is an invalid

161exercise of delegated legislative authority.

166PRELIMINARY STATEMENT

168On February 26, 2014, the District published in the Florida

178Administrative Register a notice of the DistrictÓs proposal to

187amend several rules in order to create a water reservation for a

199Comprehen sive Everglades Restoration Plan (ÐCERPÑ) project known

207as the Caloosahatchee River (C - 43) West Basin Storage Reservoir.

218Among the rules to be amended is rule 40E - 10.041.

229Petitioner Conservancy of Southwest Florida , Inc. (Ðthe

236ConservancyÑ) , filed at DOA H a timely challenge to proposed rule

24740E - 10.041(3)(d). The District moved to dismiss the rule

257challenge, asserting that the Conservancy lacked standing because

265its alleged injury was too remote. That motion was denied. The

276Parties then jointly moved fo r a continuance of the final

287hearing, stating their intent to file motions for summary final

297order pursuant to section 120.57(1)(h). Motions for summary

305final order were then filed, as well as responses thereto.

315In support of its motion, the Conservancy submitted the

324affidavits of Rob Moher, Rae Ann Wessel, Ralf Brooks,

333James Felabaum, John Hall, JoAnn Johansen, Kelly Rhoades,

341Stephanie Goforth, Van Williams, Lynn Slabaugh,

347Patricia Schroeder, Dennis Brown, Tucker Tyler, Heidi Tomblyn,

355Philip Gresh, Amber Crooks, Kathleen Adams, Julianne Thomas,

363Wendy Larson, John Cassani, James Murray, Nicole Johnson,

371Raven Lamoreaux, and Franklin Adams. The District relied solely

380on the pleadings to support its motion.

387FINDINGS OF FACT

3901 . The Conservancy is a non - profi t Florida corporation with

403its offices in Naples, Florida. It has 6,200 members residing in

415Southwest Florida. The mission of the Conservancy is to protect

425the environment and natural resources of Southwest Florida. The

434Caloosahatchee River is an import ant focus of the ConservancyÓs

444organizational activities and objectives.

4482 . A substantial number of the members of the Conservancy

459use the Caloosahatchee River for drinking water, boating,

467fishing, wildlife observation, and scientific research.

4733 . The pr oposed rules create a prospective reservation of

484water in the not - yet - operational Caloosahatchee River (C - 43) West

498Basin Reservoir Ðfor fish and wildlife.Ñ

5044 . The ConservancyÓs interests would be substantially

512affected by the proposed reservation.

5175 . The District is a regional water management agency

527created, granted powers, and assigned duties under chapter 373 ,

536Florida Statutes (2013) . It is headquartered in West Palm Beach,

547Florida.

5486 . Proposed rule 40E - 10.041(3) states:

556(3) Caloosahatchee River (C - 43) West Basin

564Storage Reservoir:

566(a) All surface water contained within and

573released, via operation, from the

578Caloosahatchee River (C - 43) West Basin

585Storage Reservoir is reserved from

590allocation.

591(b) The water reserved under this paragraph

598will be available for fish and wildlife

605upon a formal determination of the

611Governing Board, pursuant to state and

617federal law, that the Caloosahatchee

622River (C - 43) West Basin Storage Reservoir

630is operational.

632(c) The reservation contained within this

638subsection and the criteria c ontained in

645section 3.11.4 of the ApplicantÓs

650Handbook for Water Use Permit

655Applications within the South Florida

660Water Management District, incorporated

664by reference in Rule 40E - 2.091, F.A.C.,

672shall be revised in light of changed

679conditions or new informa tion prior to

686the approval described in paragraph

691(3)(b) above.

693(d) Pursuant to subsection 373.223(4), F.S.,

699presently existing legal uses for the

705duration of a permit existing on [RULE

712ADOPTION DATE] are not contrary to the

719public interest.

7217 . The Conserva ncy challenges only paragraph (3)(d),

730contending that it modifies or contravenes the implementing

738statute, section 373.223(4).

741CONCLUSIONS OF LAW

7448 . Any person substantially affected by a proposed rule may

755seek an administrative determination of the inv alidity of the

765rule on the ground that the rule is an invalid exercise of

777delegated legislative authority. § 120.56(1)(a), Fla. Stat.

7849 . Section 120.52(8) defines the term Ðinvalid exercise of

794delegated legislative authorityÑ as action that goes beyond the

803powers, functions, and duties delegated by the Legislature and

812sets forth seven grounds for invalidity. The Conservancy invokes

821only section 120.52(8)(c): The rule enlarges, modifies, or

829contravenes the specific provisions of law implemented.

83610 . T he Conservancy contends that proposed rule

84540E - 10.401(3)(d) modifies or contravenes section 373.223(4):

853The governing board or the department, by

860regulation, may reserve from use by permit

867applicants, water in such locations and

873quantities, and for such se asons of the year,

882as in its judgment may be required for the

891protection of fish and wildlife or the public

899health and safety. Such reservations shall

905be subject to periodic review and revision in

913the light of changed conditions. However,

919all presently e xisting legal uses of water

927shall be protected so long as such use is not

937contrary to the public interest.

94211. The Conservancy also alleges violations of the minimum

951flow for the Caloosahatchee River that was established by the

961District pursuant to secti on 373.042 and attempts to show how the

973proposed rule would worsen the situation. However, the

981Conservancy did not claim in its petition that the proposed rule

992contravenes section 373.042.

99512. Furthermore, the protection of existing legal uses

1003afforded b y section 373.223(4) is confined to the context of a

1015reservation of water. Nothing in section 373.223(4) shows a

1024legislative intent to protect a permitted use in a situation

1034where a use causes or contributes to the violation of an

1045established minimum flow . Whether and, if so, to what extent a

1057permitted use is protected in the context of a violation of a

1069minimum flow must be determined from the application of the

1079statutes and rules that govern minimum flows.

10861 3 . A party may move for summary final order wh en there is

1101no genuine issue as to any material fact. § 120.57(1)(h), Fla.

1112Stat. The Administrative Law Judge has determined from the

1121pleadings and affidavits that no genuine issue as to any material

1132fact exists and that the parties are entitled as a mat ter of law

1146to the entry of a final order.

11531 4 . The petitioner has the burden of going forward.

1164§ 120.56(2)(a) , Fla. Stat . The Conservancy met this burden.

11741 5 . The agency then has the burden to prove by

1186preponderance of the evidence that the proposed r ule is not an

1198invalid exercise of delegated legislative authority as to the

1207objections raised. Id.

12101 6 . The proposed rule is not presumed to be valid or

1223invalid. § 120.56(2)(c) , Fla. Stat .

12291 7 . On its face, proposed rule 40E - 10.401(3)(d), by

1241declaring e xisting permitted uses are not contrary to the public

1252interest for the Ðduration of a permit , Ñ modif ies section

1263373.223(4), which protects existing legal water uses Ðso long as

1273such use is not contrary to the public interest.Ñ

12821 8 . Section 373.223(4) was a part of the Florida Water

1294Resources Act of 1972, which was substantially derived from A

1304Model Water Code , Maloney, Ausness, and Morris (Univ. of Fla.

1314Press 1972). Section 2.02(3) of the model code stated:

1323The governing board by regulation may reserve

1330fro m use by permit applicants water in such

1339locations and quantities and for such seasons

1346of the year as in its judgment may be

1355required to implement a provision of the

1362State Water Plan. Such reservations shall be

1369subject to periodic review and revision in

1376t he light of changed conditions; provided,

1383however, that all presently existing legal

1389uses of water shall be protected.

13951 9 . The authorsÓ commentary to this section in A Model

1407Water Code does not elaborate on the intent of the second

1418sentence regarding the protection of existing uses. However, the

1427plain meaning of this section of the model code was to protect

1439existing water uses from reduction or interference as a result of

1450the water reservation. Because no temporal limitation on this

1459protection is expres sed, the protection was for the term of the

1471legal use, which for permitted water uses would be the duration

1482of the permit.

148520 . Not content with the language recommended in A Model

1496Water Code , the Florida Legislature in 1972 added the phrase Ðso

1507long as s uch use is not contrary to the public interest.Ñ No

1520legislative history was provided by the parties and none may

1530exist to explain why this phrase was added. T he Legislature

1541chose to use Ðso long as,Ñ a phrase that does not commonly appear

1555in the statutes and which has a temporal meaning of now and

1567hereafter.

15682 1 . The plain meaning of section 373.223(4) is to protect a

1581permitted water use from the effect of a reservation of water

1592only if such use remains not contrary to the public interest.

16032 2 . Proposed r ule 40E - 10.401(3)(d) modifies and contravenes

1615section 373.223(4) by granting greater protection to a permitted

1624water use than is granted by the statute. Under circumstances

1634where a permitted water use becomes contrary to the public

1644interest and no longer ÐprotectedÑ under the statute, the

1653proposed rule would maintain the protection.

16592 3 . The District argues that even though the proposed rule

1671declares existing permitted uses not contrary to the public

1680interest Ðfor the duration of the permit,Ñ the District can still

1692Ðamend the determinationÑ in the future if justified by changed

1702conditions. However, after adoption of the proposed rule, the

1711District could not determine a permitted use was contrary to the

1722public interest without amending the rule. An otherwi se invalid

1732rule is not ÐsavedÑ by an agencyÓs ability to amend the rule in

1745the future.

17472 4 . Also unpersuasive is the DistrictÓs argument that there

1758are other statutes and District rules which allow for a

1768determination, for other reasons, that an existing w ater use is

1779inconsistent with the public interest. An otherwise invalid rule

1788is not saved because it is contradicted or offset by other laws.

18002 5 . The DistrictÓs interpretation of section 373.223(4) is

1810clearly erroneous.

18122 6 . The District contends that th e ConservancyÓs

1822interpretation of section 373.223(4) Ðwould prohibit the District

1830from making a determination that existing legal uses are not

1840contrary to the public interest,Ñ which the District asserts

1850would render the reference in the statute meaningles s. First, it

1861is noted the statute does not require action (by order or rule)

1873by a water management district to determine that one or more

1884existing water uses are not contrary to the public interest.

1894Existing legal uses are presumed not contrary to the pu blic

1905interest unless and until the District determines otherwise.

1913Although not required to do so, the District can make a Ðnot

1925contraryÑ determination, but the determination cannot be made

1933prospectively for the duration of the permit for the reasons

1943alrea dy explained above.

19472 7 . Section 373.223(4) only states that so long as an

1959existing legal use is not contrary to the public interest, it is

1971protected from the effect of the water reservation. How an

1981existing use is determined to be contrary to the public interest

1992and the consequences of the determination are not addressed in

2002the statute. However, because the determination would be agency

2011action, it would be subject to the procedures and rights

2021established in chapter 120.

20252 8 . The District argues that this is just what it i s doing

2040by adopting a rule pursuant to section 120.54 to declare existing

2051permitted uses to be not contrary to the public use. However, as

2063explained above, the District went too far when it made the

2074determination effective for the durati on of the existing permits.

208429. The District failed to prove by a preponderance of the

2095evidence that proposed rule 40E - 10.401(3)(d) is a valid exercise

2106of delegated legislative authority.

2110CONCLUSION

2111Based on the foregoing Findings of Fact and Conclusions of

2121Law, it is determined that proposed Florida Administrative Code

2130Rule 40E - 10.041(3)(d) is an invalid exercise of delegated

2140legislative authority.

2142DONE AND ORDERED this 25th day of April , 2014 , in

2152Tallahassee, Leon County, Florida.

2156S

2157BRAM D. E. CANTER

2161Administrative Law Judge

2164Division of Administrative Hearings

2168The DeSoto Building

21711230 Apalachee Parkway

2174Tallahassee, Florida 32399 - 3060

2179(850) 488 - 9675

2183Fax Filing (850) 921 - 6847

2189www.doah.state.fl.us

2190Filed with the Clerk o f the

2197Division of Administrative Hearings

2201this 25th day of April , 2014 .

2208COPIES FURNISHED:

2210Marcy I. LaHart, Esquire

2214Marcy I. LaHart, P.A.

22184804 Southwest 45th Street

2222Gainesville, Florida 32608 - 4922

2227Jennifer D. Bokankowitz, Esquire

2231South Florida Water Ma nagement District

2237Mail Stop Code 1410

22413301 Gun Club Road

2245West Palm Beach, Florida 33406 - 3007

2252Blake C. Guillory, Executive Director

2257South Florida Water Management District

2262Mail Stop Code 1410

22663301 Gun Club Road

2270West Palm Beach, Florida 33406 - 3007

2277Liz C loud, Program Administrator

2282Administrative Code

2284Department of State

2287R. A. Gray Building, Suite 101

2293Tallahassee, Florida 32399

2296Ken Plante, Coordinator

2299Joint Administrative Procedures Committee

2303Room 680, Pepper Building

2307111 West Madison Street

2311Tallahassee, Florida 32399 - 1400

2316NOTICE OF RIGHT TO JUDICIAL REVIEW

2322A party who is adversely affected by this Final Order is entitled

2334to judicial review pursuant to section 120.68, Florida Statutes.

2343Review proceedings are governed by the Florida Rules of Appellate

2353Procedure. Such proceedings are commenced by filing the original

2362notice of administrative appeal with the agency clerk of the

2372Division of Administrative Hearings within 30 days of rendition

2381of the order to be reviewed, and a copy of the notice,

2393accompani ed by any filing fees prescribed by law, with the clerk

2405of the District Court of Appeal in the appellate district where

2416the agency maintains its headquarters or where a party resides or

2427as otherwise provided by law.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/25/2014
Proceedings: DOAH Final Order
PDF:
Date: 04/25/2014
Proceedings: Summary Final Order. CASE CLOSED.
PDF:
Date: 04/21/2014
Proceedings: Petitioner Conservancy of Southwest Florida, Inc.'s Response to the South Florida Water Management District's Motion for Summary Final Order filed.
PDF:
Date: 04/11/2014
Proceedings: Respondent's Motion for Summary Final Order and Response to Petitioner's Motion for Summary Final Order filed.
PDF:
Date: 04/09/2014
Proceedings: Order Granting Continuance.
PDF:
Date: 04/09/2014
Proceedings: Order (denying Respondent's motion to dismiss).
PDF:
Date: 04/09/2014
Proceedings: Joint Motion for Continuance of Final Hearing filed.
PDF:
Date: 04/07/2014
Proceedings: Petitioner Conservancy of Southwest Florida, Inc.'s Response to the Respondent South Florida Water Management District's "Motion to Dismiss the Petition to Determine the Invalidity of Proposed Administrative Rule" filed.
PDF:
Date: 04/07/2014
Proceedings: Petitioner's Notice of Filing Affidavits filed.
PDF:
Date: 04/07/2014
Proceedings: Petitioner's Notice of Filing Affidavit of Rae Ann Wessel filed.
PDF:
Date: 04/07/2014
Proceedings: Petitioner's Notice of Filing Affidavit of Rob Mohr filed.
PDF:
Date: 04/07/2014
Proceedings: Petitioner Conservancy of Southwest Florida, Inc.'s Motion for Summary Final Order filed.
PDF:
Date: 03/28/2014
Proceedings: Motion to Dismiss the Petition to Determine Invalidity of Proposed Administrative Rule filed.
PDF:
Date: 03/24/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 03/24/2014
Proceedings: Notice of Hearing by Video Teleconference (hearing set for April 14, 2014; 9:00 a.m.; West Palm Beach and Tallahassee, FL).
Date: 03/24/2014
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 03/21/2014
Proceedings: Notice of Telephonic Status Conference (status conference set for March 24, 2014; 11:00 a.m.).
PDF:
Date: 03/21/2014
Proceedings: Notice of Appearance (Jennifer Bokankowitz) filed.
PDF:
Date: 03/21/2014
Proceedings: Notice of Appearance (Douglas H MacLaughlin) filed.
PDF:
Date: 03/21/2014
Proceedings: Notice of Appearance (Elizabeth Ross) filed.
PDF:
Date: 03/20/2014
Proceedings: Rule Challenge transmittal letter to Liz Cloud from Claudia Llado copying Ken Plante and the Agency General Counsel.
PDF:
Date: 03/20/2014
Proceedings: Order of Assignment.
PDF:
Date: 03/19/2014
Proceedings: Petition to Determine Invalidity of Proposed Administrative Rule filed.

Case Information

Judge:
BRAM D. E. CANTER
Date Filed:
03/19/2014
Date Assignment:
03/20/2014
Last Docket Entry:
04/25/2014
Location:
West Palm Beach, Florida
District:
Southern
Agency:
Water Management Districts
Suffix:
RP
 

Counsels

Related Florida Statute(s) (7):