14-006132RP Kathleen Still vs. Department Of Environmental Protection Status: Closed DOAH Final Order on Friday, February 13, 2015.

Summary: Petitioners are estopped to challenge the unchanged portions of the rule and failed to prove that the changed portions of the rule are vague.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL STILL,

Petitioner,

vs. Case No. 14 - 5658RP

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondent,

and

SUWANNEE RIVER WATER MANAGEMENT

DISTRICT, NORTH FLORIDA UTILITY

COORDINATING GROUP, AND ST.

JOHNS WA TER MANAGEMENT DISTRICT,

Intervenors.

_______________________________/

KATHLEEN STILL,

Petitioner,

vs. Case No. 14 - 6132RP

DEPARTMENT OF ENVIRONMENTAL

PROTECTION,

Respondent,

and

SUWANNEE RIVER WATER MANAGEMENT

DISTRICT AND NORTH FLORIDA

UTILITY COORDINA TING GROUP,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER

Petitioner Paul Still , Respondent Department of

Environmental Protection (ÐDepartmentÑ) , and Interv enor Suwanee

River Water Management District filed motions for summary final

order. A hearing on the motions was held on February 6, 2015, in

Tallahassee, Florida , before Bram D.E. Canter, Administrative Law

Judge of the Division of Administrative Hearing s (ÐDOAHÑ).

APPEARANCES

For Petitioners: Paul Edward Still , pro se

Kathleen M. Still , pro se

14167 Southwest 101st Avenue

Starke, Florida 32091

For Respondent: Jeffrey Brow n, Esquire

Department of Environmental Protection

Office of General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florid a 32399 - 3000

For Intervenor Suwannee River Water Management District:

Frederick T. Reeves, Esquire

Frederick T. Reeves, P.A.

5709 Tidalwave Drive

New Port Ri chey, Florida 34562

George T. Reeves, Esquire

Davis, Schnitker, Reeves

and Browning, P.A.

Post Office Drawer 652

Madison, Florida 32341

For Intervenor North Florida Utility Coordinating Group:

Edward P. De La Parte, Jr., Esquire

Nicolas Porter, Esquire

De La Parte and Gilbert, P.A.

101 East Kennedy Boulevard, Suite 2000

Post Office Box 2350

Tampa, Florida 33601 - 2350

For Intervenor St. Johns River Water Management District:

Kris H. Davis, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32178

STATEMENT OF THE ISSUE

The issue to be determined in these consolidated cases is

whether proposed Florida Administrative Co de Rule 62 - 42.300 is an

invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

In March 2014, the Department proposed to adopt rules

62 - 42.100, 62 - 42.200, and 62 - 42.300, which would establish

minimum flows for the Ichetucknee River and Lower Santa Fe River,

together with their associated springs (Ðthe MFL waterbodiesÑ)

and establish special review criteria for proposed water

withdrawals in the area of the MFL waterbodies. Petitioner

Paul Still and two environmental associations chal lenged the

proposed rules as invalid exercises of delegated legislative

authority. Petitioner Still also challenged the Statement of

Estimated Regulatory Costs (ÐSERCÑ) the Department prepared in

conjunction with the proposed rules. Following a DOAH hear ing, a

Final Order was issued on September 11, 2014, which determined

that proposed rules 62 - 42.100 and 62 - 42.200 were valid, but the

minimum flows set forth i n proposed rule 62 - 42.300 were invalid

because they were vague. That rule challenge proceeding i s

referred to hereafter as ÐStill - I.Ñ

On November 7, 2014, the Department published a Notice of

Change, which described changes to proposed rule 62 - 42.300

intended to address the vagueness issue. The Department also

prepared an a ddendum to its SERC. Paul Still filed a petition

challenging proposed rule 62 - 42.300; both the changed and the

unchanged parts of the rule. He also challenged the SERC

a ddendum. Subsequently, a nearly identical petition was filed by

Paul StillÓs wife, Kathleen Still.

FINDINGS OF FACT

1. The parties agree and the Administrative Law Judge has

determined that there exists no genuine issue as to any material

fact.

2. In the December 4, 2014 SERC a ddendum, the Department

described the changes to the proposed rule as follow s:

The Notice of Change filed on November 7,

2014 does not change the proposed minimum

flows or the recovery strategy included in

the proposed rules. The Notice of Change

merely adds the existing technical

information that the Administrative Law Judge

fou nd missing in the original rule text,

which results in the proposed rule being

found by the Judge to be vague.

Specifically, these changes include:

1) Adding the period of record used to

establish the baseline flows in the Lower

Santa Fe and Ichetucknee Rivers and

subsequently used to develop the proposed

minimum flows, and,

2) Adding the method used for filling the

data gaps in the baseline flow record for the

Ichetucknee River.

3. The Final Order in Still - I determined that the proposed

minimum flow s were vague because they did not include a period of

record (of water flow data) to be used with the flow duration

frequencies. Flow duration frequencies are percentages of time

that a p articular amount of flow ( in cubic feet per second ) is

equaled or ex ceeded , which can vary depending on the period of

record that is used . The proposed rule now describes the period

of record that was used to derive the minimum flows.

4. Petitioners contend that the rule is still vague because

the rule does not identify the period of record that will be used

in the future to determine whether the minimum flows are being

achieved. Petitioners expressed concern that Suwannee River

Water Management District might use a scientifically unsound

period of record to determine th at the MFL waterbodies are no

longer Ð in recovery. Ñ

5 . Neither the Department nor Suwan n ee River Water

Management District identified in Still - I or in this proceeding

the period of record that will be used to determine whether the

minimum flows have been achieved. However, the Recovery Strategy

for the MFL waterbodies is in its first phase. The rule

contemplates that the MFL waterbodies will remain in recovery at

least until completion of the North Florida Southeast Georgia

Regional Groundwater Flow Model in 2019 and the MFLs and the

Recovery Plan are re - evaluated with the model as part of phase

2. See proposed Fla. Admin. C ode R . 62 - 42.300(1)(d). This

interpretation was confirmed by the Department and the District

at the hearing on the motions for summa ry final order.

6 . T he Supplemental Regulatory Measures (which are

unchanged) do not require applicants for consumptive use permits

to determine or show how a proposed withdrawal of water will

affect the flow duration frequencies set forth in the rule. T he

period of record to be used in determining whether the minimum

flow s are achieved is not used in the permitting process.

CONCLUSIONS OF LAW

7. 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.

8. A party may move for summary final order when there is

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

Stat. The Administrative Law Judge has determined that no

genuine issue as to any material fact exists and the parties are

entitled as a matter of law to the entry of a final order.

9 . The doctrine of res judicata applies to bar a cause of

action when that cause was fully a djudicated in a previous

lawsuit between the same parties and a judgment on the merits was

rendered. See Kimbrell v. Page , 448 So. 2d 1009 (Fla. 1984).

The estoppel applies to every matter presented and every other

matter Ðthat mig ht with propriety have been litigated and

determined in that action.Ñ Id. , at 1012.

1 0 . The doctrine of collateral estoppel applies to bar the

re - litigation of specific factual and legal issues that were

previously adjudicated in a proceeding between the same parties,

but involving a different cause of action. See Zimmerman v.

Office of Ins. Reg. , 944 So. 2d 1163 (Fla. 4th DCA 2006).

1 1 . Res judicata and collateral estoppel serve to limit

litigation by determining for all time an issue that ha s been

ful ly and fairly litigated. Trucking Employee s of N orth Jersey

Welfare Fund, Inc. v. Romano , 450 So. 2d 843, 845 (Fla. 1984).

1 2 . In a challenge to a proposed rule , the issue for

determination is often described as whether the rule is an

invalid exercise of delegated legislative authority, but a

proposed rule usually has several parts, each of which is subject

to challenge on the same or different grounds of invalidity.

Some parts of the rule may be determined to be valid exercises of

delegated legislative authority and other parts invalid.

Therefore, a rule challenge can reasonably be viewed as a bundle

of causes of action, each cause directed to a different part of

the proposed rule. Res judicata applies to bar any one of these

causes of action, once adj udicated, from being re - litigated

between the same parties.

1 3 . If instead, one views Still - I as involv ing a single

cause of action -- whether the rule as initially proposed was

invalid -- and the current proceeding as involv ing a different

cause of action -- w hether rule 62 - 42.300, as changed, is in valid --

then collateral estoppel bars the re - litigation of the factual

and legal issues that were previously adjudicated in Still - I .

1 4 . With regard to the unchanged parts of proposed rule

62 - 42.300, res judicata o r collateral estoppel bars Petitioner

Paul Still from claiming they are invalid.

1 5 . When res judicata and collateral estoppel apply to bar

a partyÓs claims, they also bar the claims of a person in privity

with that party, whether connected by contract, o wnership, or

other mutual interest. See Thompson v. Haynes , 249 So. 2d 69

(Fla. 1st DCA 1971). The Supreme Court of Florida has described

privity for purposes of res judicata as the kind of mutual

interest that makes one Ðvirtually representedÑ in the pr evious

lawsuit. See Stogniew v. McQueen , 656 So. 2d 917, 920 (Fla.

1995) . See also Massey v. David , 831 So. 2d 226, 232 (Fla 1st

DCA 2002)(ÐA person may be bound by a judgment even though not a

party if one of the parties to the suit is so closely aligne d

with his interests as to be his virtual representative.Ñ); EEOC

v. Pemco Aeroplex, Inc. , 383 F.3d 1280, 1286 (11th Cir. 2004),

quoted in Cook v. State , 921 So. 2d 631, 635 (Fla. 2d DCA

2005 ) ( ÐPrivity is a flexible legal term, comprising several

different types of relationships and generally applying when a

person, although not a party, has his interests adequately

represented by someone with the same interests who is a party.Ñ ) .

16. Paul Still was the virtual represent ative of Kathleen

Still in Still - I b ecause her identical claims and interests

(regarding the unchanged parts of rule 62 - 42.300) were adequately

represented by Paul Still , and th ose claims and interests were

heard and determined . 1/ Therefore, Kathleen Still should also be

barred from challen ging the unchanged parts of proposed rule

62 - 42.300.

1 7 . Petitioners contend that section 120.56(2)(a), Florida

Statutes, affords Kathleen Still the right to challenge the

entirety of rule 62 - 42.300 on the same grounds that were rejected

in Still - I, becau se she has recently applied to the District for

a consumptive use permit. Section 120.56(2)(a) states, in part:

A person who is substantially affected by a

change in the proposed rule may seek a

determination of the validity of such

change. A person who is not substantially

affected by the proposed rule as initially

noticed, but who is substantially affected by

the rule as a result of a change, may

challenge any provision of the rule and is

not limited to challenging the change to the

proposed rule.

18. First, Kathleen Still is not substantially affected as

a result of the changes to the rule because the rule only adds

clarification about how the minimum flow s were derived. The

changes do not affect the minimum flows or the Supplemental

Regulatory Meas ures. Kathleen Still ha s standing to argue that

the changes adversely affect her , but the plain language of the

changes and the undisputed facts demonstrate that the changes do

not substantially affect her . Therefore, section 120.56(2)(a)

does not provid e Kathleen Still a means to challenge the rule as

initially noticed.

19. Second, Kathleen Still is estopped to challenge the

unchanged p arts of the rule. Her interests were adequately

represented by Paul Still in Still - I. She stands in the same

position as Paul Still, a person substantially affected by the

rule as initially proposed. The permit application added to

Kathleen StillÓs substantial interests for purposes of standing,

but standing is not the issue; the issue is whether Kathleen

Still may chal lenge the unchanged parts of the proposed rule.

She is estopped from doing so.

20 . The change s to the rule were added by the Department to

cure the vagueness determined in the Final Order in Still - I.

Vagueness requires a determination that the rule forbids or

requires the performance of an act in terms that are so vague

that persons of common intelligence must guess at its meaning and

differ as to its application. S W . Fla. Water. M gmt. Dist. v .

Charlotte Cnty. , 774 So. 2d 903, 915 (Fla. 2d DCA 2001 ).

21. Petitioners are not estopped to present their claim

that the changes do not cure the vagueness, but they failed to

prove their claim. The rule is not vague.

2 2 . The period of record that will be used to determine in

the future whether the minimum flows have been achieved is not

stated in the rule, but it can be determined later as part of the

phase 2 re - evaluation of the minimum flows. The period of record

must be identified in the rule at that time. Petitioners are not

injured by the absence of this information in the rule now.

2 3 . PetitionersÓ challenges to the SERC also fail. Because

the changes to the rule simply add information about how the

minimum flows were derived, there are no economic costs

associated with the changes. That makes mo ot the debates about

whether the lower cost regulatory alternative was timely or

whether the SERC covered the wrong time period. All of

PetitionersÓ other claims of invalidity directed to the SERC are

barred by estoppel.

DISPOSITION

Based on the fo regoing Findings of Fact and Conclusions of

Law, it is determined that proposed rule 62 - 42.300 is a valid

exercise of delegated legislative authority.

DONE AND ORDERED this 13th day of February , 2015 , 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 C lerk of the

Division of Administrative Hearings

this 13th day of February , 2015 .

ENDNOTE

1/ In her own case, Kathleen Still requested that Paul Still

appear as her Qualified Representative.

COPIES FURNISHED:

Paul Edward Still

14167 Southwest 101st Avenue

Starke, Florida 32091

(eServed)

Kathleen M. Still

14167 Southwest 101st Avenue

Starke, Florida 32091

(eServed)

Jeffrey Brown, Esquire

Department of Environmental Protection

Office of General Counsel

Mail Station 35

3900 Commonwealth Bouleva rd

Tallahassee, Florida 32399 - 3000

(eServed)

Frederick T. Reeves, Esquire

Frederick T. Reeves, P.A.

5709 Tidalwave Drive

New Port Richey, Florida 34562

(eServed)

Edward P. De La Parte, Jr., Esquire

De La Parte and Gilbert, P.A.

101 East Kennedy Bouleva rd, Suite 2000

Post Office Box 2350

Tampa, Florida 33601 - 2350

(eServed)

George T. Reeves, Esquire

Davis, Schnitker, Reeves and Browning, P.A.

Post Office Drawer 652

Madison, Florida 32341

(eServed)

K ris H. Davis, Esquire

St. Johns River Water Managemen t District

4049 Reid Street

Palatka, Florida 32178

(eServed)

Ken Plante, Coordinator

Joint Administrative Procedure Committee

Room 680, Pepper Building

111 West Madison Street

Tallahassee, Florida 32399 - 1400

(eServed)

Ernest Reddick, Chief

Alexandra Nam

Department of State

R.A. Gray Building

500 South Bronough Street

Tallahassee, Florida 32399 - 0250

(eServed)

Jonathan P. Steverson, Secretary

Department of Environmental Protection

Office of General Counsel

Mail Station 35

3900 Commonwealth Boulevar d

Tallahassee, Florida 32399 - 3000

(eServed)

Matthew Z. Leopold, General Counsel

Department of Environmental Protection

Office of General Counsel

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

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 commenc ed 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,

accompanied 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.