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

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONSERVANCY OF SOUTHWEST

FLORIDA, INC.,

Petitioner,

vs. Case No. 14 - 1329RP

SOUTH FLORIDA WATER MANAGEMENT

DISTRICT,

Respondent.

_______________________________/

SUMMARY FINAL OR DER

At the request of the parties, the scheduled final hearing

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

Administrative Law Judge of the Division of Administrative

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

120.57(1) (h), Florida Statutes (2013) .

APPEARANCES

For Petitioner: Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608 - 4922

For Responden t: Jennifer D. Bokankowitz, Esquire

Elizabeth D. Ross, Esquire

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

Wes t Palm Beach, Florida 33406 - 3007

STATEMENT OF THE ISSUE

The issue to be determined in this case is whether proposed

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

Florida Water Management District (Ðthe DistrictÑ) is an invalid

exercise of delegated legislative authority.

PRELIMINARY STATEMENT

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

Administrative Register a notice of the DistrictÓs proposal to

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

Comprehen sive Everglades Restoration Plan (ÐCERPÑ) project known

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

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

Petitioner Conservancy of Southwest Florida , Inc. (Ðthe

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

40E - 10.041(3)(d). The District moved to dismiss the rule

challenge, asserting that the Conservancy lacked standing because

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

Parties then jointly moved fo r a continuance of the final

hearing, stating their intent to file motions for summary final

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

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

In support of its motion, the Conservancy submitted the

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

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

Stephanie Goforth, Van Williams, Lynn Slabaugh,

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

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

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

Raven Lamoreaux, and Franklin Adams. The District relied solely

on the pleadings to support its motion.

FINDINGS OF FACT

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

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

Southwest Florida. The mission of the Conservancy is to protect

the environment and natural resources of Southwest Florida. The

Caloosahatchee River is an import ant focus of the ConservancyÓs

organizational activities and objectives.

2 . A substantial number of the members of the Conservancy

use the Caloosahatchee River for drinking water, boating,

fishing, wildlife observation, and scientific research.

3 . The pr oposed rules create a prospective reservation of

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

Basin Reservoir Ðfor fish and wildlife.Ñ

4 . The ConservancyÓs interests would be substantially

affected by the proposed reservation.

5 . The District is a regional water management agency

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

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

Florida.

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

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

Storage Reservoir:

(a) All surface water contained within and

released, via operation, from the

Caloosahatchee River (C - 43) West Basin

Storage Reservoir is reserved from

allocation.

(b) The water reserved under this paragraph

will be available for fish and wildlife

upon a formal determination of the

Governing Board, pursuant to state and

federal law, that the Caloosahatchee

River (C - 43) West Basin Storage Reservoir

is operational.

(c) The reservation contained within this

subsection and the criteria c ontained in

section 3.11.4 of the ApplicantÓs

Handbook for Water Use Permit

Applications within the South Florida

Water Management District, incorporated

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

shall be revised in light of changed

conditions or new informa tion prior to

the approval described in paragraph

(3)(b) above.

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

presently existing legal uses for the

duration of a permit existing on [RULE

ADOPTION DATE] are not contrary to the

public interest.

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

contending that it modifies or contravenes the implementing

statute, section 373.223(4).

CONCLUSIONS OF LAW

8 . Any person substantially affected by a proposed rule may

seek an administrative determination of the inv alidity of the

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

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

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

delegated legislative authorityÑ as action that goes beyond the

powers, functions, and duties delegated by the Legislature and

sets forth seven grounds for invalidity. The Conservancy invokes

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

contravenes the specific provisions of law implemented.

10 . T he Conservancy contends that proposed rule

40E - 10.401(3)(d) modifies or contravenes section 373.223(4):

The governing board or the department, by

regulation, may reserve from use by permit

applicants, water in such locations and

quantities, and for such se asons of the year,

as in its judgment may be required for the

protection of fish and wildlife or the public

health and safety. Such reservations shall

be subject to periodic review and revision in

the light of changed conditions. However,

all presently e xisting legal uses of water

shall be protected so long as such use is not

contrary to the public interest.

11. The Conservancy also alleges violations of the minimum

flow for the Caloosahatchee River that was established by the

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

proposed rule would worsen the situation. However, the

Conservancy did not claim in its petition that the proposed rule

contravenes section 373.042.

12. Furthermore, the protection of existing legal uses

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

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

legislative intent to protect a permitted use in a situation

where a use causes or contributes to the violation of an

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

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

minimum flow must be determined from the application of the

statutes and rules that govern minimum flows.

1 3 . A party may move for summary final order wh en there is

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

Stat. The Administrative Law Judge has determined from the

pleadings and affidavits that no genuine issue as to any material

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

to the entry of a final order.

1 4 . The petitioner has the burden of going forward.

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

1 5 . The agency then has the burden to prove by

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

invalid exercise of delegated legislative authority as to the

objections raised. Id.

1 6 . The proposed rule is not presumed to be valid or

invalid. § 120.56(2)(c) , Fla. Stat .

1 7 . On its face, proposed rule 40E - 10.401(3)(d), by

declaring e xisting permitted uses are not contrary to the public

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

373.223(4), which protects existing legal water uses Ðso long as

such use is not contrary to the public interest.Ñ

1 8 . Section 373.223(4) was a part of the Florida Water

Resources Act of 1972, which was substantially derived from A

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

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

The governing board by regulation may reserve

fro m use by permit applicants water in such

locations and quantities and for such seasons

of the year as in its judgment may be

required to implement a provision of the

State Water Plan. Such reservations shall be

subject to periodic review and revision in

t he light of changed conditions; provided,

however, that all presently existing legal

uses of water shall be protected.

1 9 . The authorsÓ commentary to this section in A Model

Water Code does not elaborate on the intent of the second

sentence regarding the protection of existing uses. However, the

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

existing water uses from reduction or interference as a result of

the water reservation. Because no temporal limitation on this

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

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

of the permit.

20 . Not content with the language recommended in A Model

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

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

legislative history was provided by the parties and none may

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

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

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

hereafter.

2 1 . The plain meaning of section 373.223(4) is to protect a

permitted water use from the effect of a reservation of water

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

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

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

water use than is granted by the statute. Under circumstances

where a permitted water use becomes contrary to the public

interest and no longer ÐprotectedÑ under the statute, the

proposed rule would maintain the protection.

2 3 . The District argues that even though the proposed rule

declares existing permitted uses not contrary to the public

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

Ðamend the determinationÑ in the future if justified by changed

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

District could not determine a permitted use was contrary to the

public interest without amending the rule. An otherwi se invalid

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

the future.

2 4 . Also unpersuasive is the DistrictÓs argument that there

are other statutes and District rules which allow for a

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

inconsistent with the public interest. An otherwise invalid rule

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

2 5 . The DistrictÓs interpretation of section 373.223(4) is

clearly erroneous.

2 6 . The District contends that th e ConservancyÓs

interpretation of section 373.223(4) Ðwould prohibit the District

from making a determination that existing legal uses are not

contrary to the public interest,Ñ which the District asserts

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

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

by a water management district to determine that one or more

existing water uses are not contrary to the public interest.

Existing legal uses are presumed not contrary to the pu blic

interest unless and until the District determines otherwise.

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

contraryÑ determination, but the determination cannot be made

prospectively for the duration of the permit for the reasons

alrea dy explained above.

2 7 . Section 373.223(4) only states that so long as an

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

protected from the effect of the water reservation. How an

existing use is determined to be contrary to the public interest

and the consequences of the determination are not addressed in

the statute. However, because the determination would be agency

action, it would be subject to the procedures and rights

established in chapter 120.

2 8 . The District argues that this is just what it i s doing

by adopting a rule pursuant to section 120.54 to declare existing

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

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

determination effective for the durati on of the existing permits.

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

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

of delegated legislative authority.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is determined that proposed Florida Administrative Code

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

legislative authority.

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

Tallahassee, Leon County, Florida.

S

BRAM D. E. CANTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk o f the

Division of Administrative Hearings

this 25th day of April , 2014 .

COPIES FURNISHED:

Marcy I. LaHart, Esquire

Marcy I. LaHart, P.A.

4804 Southwest 45th Street

Gainesville, Florida 32608 - 4922

Jennifer D. Bokankowitz, Esquire

South Florida Water Ma nagement District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3007

Blake C. Guillory, Executive Director

South Florida Water Management District

Mail Stop Code 1410

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3007

Liz C loud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

Ken Plante, Coordinator

Joint Administrative Procedures Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

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 administrative appeal with the agency clerk of the

Division of Administrative Hearings within 30 days of rendition

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

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

of the District Court of Appeal in the appellate district where

the agency maintains its headquarters or where a party resides or

as otherwise provided by law.