14-001329RP
Conservancy Of Southwest Florida vs.
South Florida Water Management District
Status: Closed
DOAH Final Order on Friday, April 25, 2014.
DOAH Final Order on Friday, April 25, 2014.
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.
- Date
- Proceedings
- 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: 04/07/2014
- 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 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: 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.).
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
-
Jennifer D. Brown, Esquire
Address of Record -
Marcy I. LaHart, Esquire
Address of Record -
Douglas H. MacLaughlin, Sr., Esquire
Address of Record -
Elizabeth D. Ross, Esquire
Address of Record -
Douglas H. MacLaughlin, Esquire
Address of Record -
Jennifer Brown, Esquire
Address of Record -
Douglas Harold MacLaughlin, Esquire
Address of Record -
Elizabeth D Ross, Esquire
Address of Record -
Marcy LaHart, Esquire
Address of Record