79-002325RX Pinellas County vs. Southwest Florida Water Management District Status: Closed DOAH Final Order on Wednesday, April 9, 1980.

Summary: Challenged rule is valid.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PINELLAS COUNTY, a political )

subdivision of the State of )

Florida, )

)

Petitioner, )

)

vs. ) CASE NO. 79- 2325RX

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, an )

administrative agency of the )

State of Florida, )

)

Respondent. )

_________________________________)

WEST COAST REGIONAL WATER SUPPLY )

AUTHORITY, )

)

Petitioner, )

)

vs. ) CASE NO. 79- 2392RX

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, an )

administrative agency of the )

State of Florida, )

)

Respondent. )

_________________________________)

FINAL ORDER

Pursuant to notice, an administrative hearing was held before Diane D.

Tremor, Hearing Officer with the Division of Administrative Hearings, on January

21, 22 and 23, 1980, in Tampa, Florida. Upon request of the parties, oral

closing statements were made to the Hearing Officer on March 11, 1980, in Tampa,

Florida.

APPEARANCES

For Petitioner John T. Allen, Jr.

Pinellas County: 4508 Central Avenue

St. Petersburg, Florida 33711

For Petitioner Kenneth E. Apgar

West Coast 403 North Morgan Street

Regional Water Suite 102

Supply Authority: Tampa, Florida 33602

For Respondent L. M. Blain

Southwest Florida Thomas E. Cone, Jr.

Water Management Post Office Box 399

District: Tampa, Florida 33601

Jay T. Ahern

5060 U.S. 41 South

Brooksville, Florida 33512

For Intervenors: Robert Bruce Snow, County Attorney

Hernando County Post Office Box 2060

Brooksville, Florida 33512

Pasco County Gerald A. Figurski, County Attorney

4025 Moon Lake Road

New Port Richey, Florida 33551

Withlacoochee Jeannette M. Haag, Attorney

Regional Water Haag and Haag

Supply 1900 West Main Street

Authority Inverness, Florida 32650

Sumter County Randall N. Thornton, Attorney

Recreational and Post Office Box 58

Water Conservation Lake Panasoffkee, Florida 33538

and Control

Authority and

Sumter County

Citrus County John F. Wendel

Wendel, Broderick, Chritton &

Klepetko, Chartered

Post Office Box 5378

Lakeland, Florida 33802

Withlacoochee Robert S. Ryder

Regional Planning 320 North West Third Avenue

Council Post Office Box 1635

Ocala, Florida 32670

City of St. Carl R. Linn

Petersburg 214 Municipal Building

St. Petersburg, Florida 33701

INTRODUCTION

By a petition filed with the Division of Administrative Hearings on

November 21, 1979, Pinellas County seeks an administrative determination of the

invalidity of an existing rule pursuant to Florida Statutes, Section 120.56.

Shortly thereafter, the West Coast Regional Water Supply Authority filed a

similar petition challenging the same rule, as well as a motion to intervene in

the proceeding filed by petitioner Pinellas County. Upon motion of the

respondent Southwest Florida Water Management District, the two cases were

consolidated. Thereafter, the following entities moved to intervene as parties

respondent in support of the validity of the rule in question: Pasco County,

Hernando County, Sumter County, Citrus County, the Withlacoochee Regional Water

Supply Authority, the Sumter County Recreation and Water Conservation and

Control Authority, and the Withlacoochee Regional Planning Council. Several of

these movants also filed petitions in support of the validity of an existing

rule. The City of St. Petersburg moved to intervene contending that the rule is

an invalid exercise of delegated legislative authority. By order of the

undersigned Hearing Officer, all motions to intervene were granted. The

"petitions of the intervenors in support of the validity of an existing rule"

were dismissed, as no authority for such a petition exists within Chapter 120,

Florida Statutes.

The cause proceeded to an evidentiary hearing on January 21, 22 and 23,

1980, at the conclusion of which all parties rested. The parties requested the

opportunity to make oral closing statements to the Hearing Officer after the

receipt of the transcript of the hearing, and such request was granted. Closing

statements were heard on March 11, 1980. On March 7, 1980, the respondent

Southwest Florida Water Management District filed a "suggestion of mootness,"

contending that the issues in dispute had been rendered moot because the

respondent had issued a final order granting a consumptive use permit to the

petitioners. A similar "suggestion of mootness" was filed by intervenor Pasco

County contending that the final order and permit issued by the respondent, as

well as a declaratory statement regarding the applicability of the challenged

rule, rendered the issues in this proceeding moot. During the time scheduled

for closing statements, the respondent agency and the intervenors in support of

the rule also requested the Hearing Officer to take official notice of the final

order granting the consumptive use permit, the permit itself and the declaratory

statement issued to Pasco County on March 4, 1980, and proffered these documents

into evidence as Exhibits K and L. The undersigned reserved ruling on the

objections by petitioners to the admissibility of these documents into evidence

at that time.

It is the holding of the undersigned that official notice will be taken of

the February 6, 1980, final order granting the permit to petitioners, the permit

and the March 4, 1980 declaratory statement of the respondent to Pasco County

for the purpose of ruling on the suggestions of mootness. However, the

objections to proffered Exhibits K and L are sustained on the basis of

timeliness and that they are irrelevant and immaterial to any issue in dispute

herein, including the issue of the standing of petitioners to seek a

determination of the validity of a rule. These rulings will be discussed

further in the Conclusions of Law portion of this order.

The petitioner Pinellas County and the respondent have submitted to the

Hearing Officer proposed final orders containing proposed findings of fact and

proposed conclusions of law. These, as well as the legal memoranda submitted by

the parties, have been fully and carefully considered by the undersigned. To

the extent that the proposed findings of fact are not incorporated in this final

order, they are rejected as being either irrelevant and immaterial to the issues

for determination herein, not supported by competent, substantial evidence or as

constituting Conclusions of law as opposed to findings of fact.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant facts are found:

1. The petitioner Pinellas County operates a water system which serves a

population of approximately 400,000. This figure includes some 250,000

individual meter accounts and 150,000 wholesale customers, including the Pasco

County Water Authority 1/ and the Cities of Tarpon Springs, Clearwater, Safety

Harbor and Pinellas Park. At the time of the hearing, Pinellas County was

conducting negotiations with the Cities of Oldsmar and Dunedin to supply them

with water. Like other suppliers of water within the Southwest Florida Water

Management District ( SWFWMD, Pinellas County is required to obtain consumptive

use permits (CUP) from SWFWMD. This petitioner currently operates two

wellfields -- the Eldridge-Wilde Wellfield Containing 1,925 acres and the East

Lake Road Wellfield Containing 5,861 acres. In addition, Pinellas County

receives water supplies from the West Coast Regional Water Supply Authority

( WCRWSA), which operates the Cypress Creek Wellfield Containing 4,895 acres and

the Cross Bar Ranch Wellfield Containing 8,060 acres.

2. On an average daily basis, the Pinellas County water system presently

utilizes 45 million gallons of water per day ( mgd), with a peak use of 65 mgd.

Projections indicate that the estimated water demand for the Pinellas County

water system will be an average of 54.3 mgd, and a peak use of 90.15 mgd by

1980. For the year 1982, the estimate is 60.06 mgd average and 98.71 mgd peak.

For 1984, the estimate is 65.44 mgd average and 106.65 mgd peak. At the time of

the hearing, the present permitted capacity available to Pinellas County was 73

mgd average and 100 mgd peak or maximum. Estimates of projected water demands

for Pinellas County indicate a definite shortage of water during peak periods by

the year 1984 and a cushion of only 1.29 million gallons during peak periods as

early as 1982. Pinellas County has experienced water shortages in the recent

past, resulting in emergency measures such as sprinkling bans during the

daylight hours. Considering the possibilities of equipment breakdowns or

extremely dry periods, a cushion of 1.29 mgd is not a sufficient surplus.

3. The WCRWSA was formulated by an interlocal agreement under Chapter 373,

Florida Statutes, and is authorized to acquire water and water rights, develop,

store and transport water, and to provide, sell and deliver water for county or

municipal purposes or uses. The members of the WCRWSA are Pasco County, the

City of Tampa, Hillsborough County, the City of St. Petersburg and Pinellas

County. As noted above, the WCRWSA operates two wellfields -- Cypress Creek and

Cross Bar Ranch. Pinellas County actually owns the land at the Cross Bar Ranch.

At the time of the hearing, the Cross Bar Ranch Wellfield was permitted for 15

mgd average and 20 mgd peak.

4. In August of 1979, the WCRWSA and Pinellas County, as co-applicants,

filed an application for a modification of their consumptive use permit at the

Cross Bar Ranch Wellfield to authorize an annual average withdrawal of 30 mgd

and a maximum withdrawal of 45 mgd. Under the rules of respondent SWFWMD, an

application for an increased use is treated as a new application. Rule 16J-

2.04(5), Fla. Admin. Code. Pasco County moved to intervene in the petitioners'

CUP application process concerning the Cross Bar Ranch Wellfield. Among the

issues raised by Pasco County in their Petition to intervene was whether the

proposed consumptive use would exceed the water crop of land owned, leased or

otherwise controlled by the applicants.

5. At the time of the evidentiary hearing in the present cause, SWFWMD had

not yet held an administrative hearing on the application for a CUP modification

for the Cross Bar Ranch Wellfield. The application was pending both at the time

of the filing of the petitions with the Division and at the time that all

parties rested at the conclusion of the evidentiary hearing.

6. The petitions filed in the instant cause challenge the validity of

SWFWMD'S Rule 16J-2.11(3), Florida Administrative Code. This rule is known as

the water rule, and reads as follows:

16J-2.11 Conditions for a Consumptive Use Permit.

(3) Issuance of a permit will be denied if the

amount of water consumptively used will exceed

the water crop of lands owned, leased or

otherwise controlled by the applicant.

(Except where determined otherwise, the water

crop [precipitation less evapotranspiration]

throughout the District will be assumed to be

three hundred sixty-five thousand (365,000)

gallons per year per acre.)

7. Another subsection of Rule 16J-2.11 provides that the governing board

of SWFWMD may grant an exception to the water crop rule. Subsection (5) of Rule

16J-2.11 provides that

(5) The Board for good cause shown may grant

exceptions to the provisions of paragraphs (2),

(3), (4), and (10) of this rule when after

consideration of all data presented, including

economic information, it finds that it is

consistent with the Public interest.

8. The caveat of the water crop rule is that only 1,000 gallons per acre

per day may be withdrawn under any permit. The Cross Bar Ranch consists of

8,060 acres. Under the challenged rule, only 8,060,000 gallons per day could be

withdrawn. Therefore, the application pending before SWFWMD for a CUP for 30

mgd average and 45 mgd peak far exceeds the water crop rule. The existing

permit also exceeds the limitations of the rule.

9. The water crop concept had its genesis in a report on the amount of

available water in a certain portion of the respondent's water management

district. The rule is applied district-wide by SWFWMD. In spite of its

seemingly mandatory language, the rule is not ultimately implemented or

interpreted in a mandatory fashion by the respondent. Instead, it is applied as

an initial or threshold level of inquiry, or "first cut," and, if the other

criteria for a permit can be satisfied, SWFWMD will grant an exception under

subsection (5) of Rule 16J-2.11. With one possible exception, the respondent

has never denied a permit solely because the application exceeded the water crop

concept. It would not be hydrologically sound to deny a CUP solely on the basis

of the water crop rule. Consumptive use permits can be adequately regulated

without such a rule. No other water management district in Florida has

promulgated or requires compliance with a water crop rule.

10. The water crop concept is hydrologically unsound and cannot be

properly applied to any specific piece of property. A generalization of the

amount of water which is available throughout the district (1,000 gallons per

acre per day) cannot reasonably be applied in individual consumptive use

proceedings. This is due to the fact that the amount of water which can be

withdrawn from any specific parcel of lad is dependent upon the amount of

rainfall the land receives, soil types, the water table, the existence of

confining layers, vegetation types and other variable hydrological factors.

These factors vary widely throughout the subject water management district.

11. If the water crop rule were strictly applied by SWFWMD, the

petitioners would be required to purchase or otherwise acquire an additional

80,000 acres of land to supply their customers with the water now permitted to

be withdrawn. This would obviously result in excessive financial burdens to the

petitioners and, ultimately, consumers.

12. Without objection by the respondent or the intervenors, evidence was

adduced by the petitioners regarding the action of the Florida Joint

Administrative Procedures Committee in its review of Rule 16J-2.11(3) in 1976.

The undersigned makes no finding of fact regarding this evidence inasmuch as it

deemed irrelevant and immaterial to the ultimate determination in this cause.

13. As noted above, the City of St. Petersburg is a member of the WCRWSA.

Because of recent water shortages, St. Petersburg has loaned to Pinellas County

apportion of its allotment from a wellfield operated by WCRSWA. It is projected

that the City of St. Petersburg will need additional supplies of water between

the years of 1983 and 1985.

14. The remaining intervenors are all charged with the responsibility to

obtain sufficient water supplies within the district of SWFWMD. They are

subject to the consumptive use permitting rules of SWFWMD.

15. Evidence was offered on the issue of whether the water crop rule was

strictly applied to Pinellas County at its East Lake Road Wellfield, which

comprises 5,861 acres. At present, the amount of water withdrawal permitted is

less than the water crop for the amount of acreage of the wellfield. Though

there was evidence that SWFWMD inquired as to the control or ownership of the

land, the actual permit application was not introduced into evidence nor was

there sufficient evidence adduced by petitioner to illustrate the reasons for a

permit for an amount less than that which would be permitted under the

challenged rule.

CONCLUSIONS OF LAW

16. In this proceeding, petitioners contend that the challenged water crop

rule is an invalid exercise of delegated legislative authority for the reasons

that:

(1) the rule exceeds SWFWMD's statutory

authority under Chapter 373, Florida Statutes,

(2) the rule impermissibly conflicts with the

provisions of Chapter 373,

(3) the rule creates a property right to water

by virtue of land ownership, contrary to Chapter

373 and the Florida Supreme Court's decision in

the case of Village of Tequestra v. Jupiter

Inlet Corporation, 371 So.2d 663 (Fla. 1979),

(4) the rule is arbitrary and without a rational

basis in fact because it is a hydrologically

unsound method to determine the reasonable,

beneficial use of water, and

(5) the Florida Joint Administrative Procedures

Committee has held that the rule exceeds statutory

authority.

The City of St. Petersburg aligns itself with the contentions of the

petitioners.

17. The respondent SWFWMD asserts that the petitioners lack standing as

substantially affected persons to challenge the water crop rule. SWFWMD

contends that it has proper statutory authority to adopt such a rule, that the

rule is not prohibited by the Tequestra decision or Chapter 373 and that the

rule is a valid method to review applications for a consumptive use permit and

to determine the reasonable beneficial use of water. The remaining intervenors

align themselves with the contentions of SWFWMD.

18. On the issue of standing to seek an administrative determination of

the validity of an existing rule, respondent urges that the petitioners have not

demonstrated that they are substantially affected by the water crop rule.

Respondent points to the fact that, at the time of the petition and the hearing,

petitioners had already received permission to withdraw almost double the limits

of the water crop rule from the Cross Bar Ranch Wellfield. The rule thus had

caused them no injury in the past that would establish standing. Likewise,

respondent contends that the speculative concern of the petitioners about the

possibility of denial of their request for modification of that permit and the

possibility that Pasco County might appeal an order modifying the permit has

proved unfounded and illusory by events occuring subsequent to the evidentiary

hearing. SWFWMD correctly concludes that Pinellas County has failed to prove

that the water crop rule was applied to limit withdrawals from the East Lake

Road Wellfield. In summary, respondent contends petitioners have failed to

establish injury in the past, have failed to show any continuing present adverse

effects from the rule and have failed to establish a likelihood of injury in the

future.

19. The most definitive case law on the subject of standing to challenge

rules pursuant to Chapter 120, Florida Statutes, is found in the case of Florida

Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA,

1978). There, the First District Court of Appeal held that one challenging an

administrative rule must demonstrate injury in fact or that the threat of injury

from the challenged rule is both real and immediate and not conjectural or

hypothetical. The Jerry case stands for the proposition that an abstract,

imagined injury is not enough to confer standing.

20. Equally important in the Jerry case is the Court's pronouncement as to

the legal point in time in which one must illustrate that he is substantially

affected by a rule. There, the Court stated that Jerry, a prison inmate who

challenged a rule subjecting an inmate to disciplinary confinement and for

feiture of gain time, had

". . .failed to demonstrate, either at the

time his petition for administrative relief

was filed or at the time of the hearing, that

he was then serving disciplinary confinement

or that his existing prison sentence had been

subjected to loss of gain time." 353 So 2d

1230, at 1235.

Thus, it is clear that the legal time that standing must be proven is either at

the time of the filing of the petition or at the time of the evidentiary

hearing.

21. In this instance, the petitioners have met both time periods with

respect to standing. Both at the time of the filing of the petitions and at the

time of the evidentiary hearing, both petitioners, as co-applicants, had pending

before SWFWMD an application to increase the amount of water to be withdrawn

from the Cross Bar Ranch Wellfield. Since such an increase is considered to be

a new use under SWFWMD's Rule 16J-2.04(5), the fact that petitioners had an

existing permit exceeding the limitations of the water crop rule is immaterial.

The application for modification must be considered anew by the respondent.

Inasmuch as the application for a modified permit exceeds the water crop rule,

said rule could be utilized as grounds for denial of the CUP application and

petitioners are thereby adversely and substantially affected by the rule. The

fact that the applicants received a favorable final order and a permit from

SWFWMD subsequent to the evidentiary hearing in this proceeding is irrelevant

and immaterial to the issue of standing. As noted above, standing accrues

either at the time of the filing of the petition for a determination of the

validity of a rule or at the time of hearing.

22. For the reasons stated above with respect to standing, the

respondent's and intervenor's suggestions of mootness based upon the subsequent

issuance of a permit to petitioners are denied. Petitioners are entitled to an

administrative determination on the validity of Rule 16J-2.11(3), and subsequent

events can not alter this right. The suggestion of mootness on the basis of the

declaratory statement regarding the challenged rule issued to Pasco County on

March 4, 1980, is also denied. To hold otherwise would permit an agency to

avoid a proper challenge to its rules by the simple device of issuing a

declaratory statement prior to the entrance of a final order in every rule

challenge proceeding under Section 120.56, Florida Statutes. The declaratory

statement issued by the respondent to Pasco County, an intervenor in the present

proceeding, is not binding either on the petitioners in this case or the Hearing

Officer in reaching a determination as to the validity of the challenged rule.

As recognized in the case of State Dept. of Health and Rehabilitative Services

v. Barr, 359 So.2d 503 (Fla. 1st DCA, 1978), the effect of a declaratory

statement is one involving the principle of stare decisis, and not res judicata.

23. In summary, it is held that the petitioners, as pending applicants for

a consumptive use permit exceeding the limitations imposed by the water crop

rule, have standing as substantially affected persons to challenge the validity

of that rule. It is further held that all of the intervenors, as water

suppliers within the jurisdictional confines of the respondent SWFWMD and

therefore subject to its rules, have a sufficient interest in the proceeding so

as to allow them to intervene as parties.

24. The remaining issue for determination in this proceeding is whether

Rule 16J-2.11(3) constitutes an invalid exercise of delegated legislative

authority. Chapter 373, Part II, Florida Statutes, is the legislative act which

governs the permitting of consumptive uses of water. Section 373.223(1),

Florida Statutes, lists the statutory criteria required to be met prior to the

issuance of a consumptive use permit. That section reads as follows:

373.223. Conditions for a permit.-

(1) To obtain a permit pursuant to the

provisions of this chapter, the applicant must

establish that the proposed use of water:

(a) Is a reasonable beneficial use as defined

in s. 373.019(5); and

(b) Will not interfere with any presently

existing legal use of water; and

(c) Is consistent with the public interest.

A "reasonable-beneficial use" is defined in 373.019(4) as

"the use of water in such quantity as is

necessary for economic and efficient

utilization for a purpose and in a manner

which is both reasonable and consistent with

the public interest."

Section 373.171, Florida Statutes, empowers the respondent SWFWMD to promulgate

rules and regulations not inconsistent with other provisions of Chapter 373.

25. The rule in question herein, Rule 16J-2.11, lists in subsection (1)

the three statutory conditions for a CUP contained in Florida Statutes,

373.223(1). The rule then goes on to state several instances wherein a CUP will

be denied. One of these conditions is the challenged portion of Rule 16J-2.11;

to wit, subsection (3) which states that the

"issuance of a permit will be denied if the

amount of water consumptively used will exceed

the water crop of lands owned, leased, or

otherwise controlled by the applicant.

Thus, the challenged portion of the rule adds a fourth criterion to the three

statutory criteria set by the legislature. The undersigned has carefully

searched the statutory provisions of Chapter 373 for any indication of authority

for SWFWMD to add the water crop rule as a condition to the consumptive use

permitting process. No such authority can be found.

26. No agency has inherent rulemaking authority. Florida Statutes,

Section 120.54(14). The authority of administrative agencies is derived from

the Legislature. When the Legislature has clearly set forth the criteria to be

utilized in evaluation of permits, an administrative rule which enlarges those

criteria by the addition of a further criterion is invalid. The fourth

criterion added by the respondent requires an applicant to own, lease or

otherwise control one acre of land for every 1,000 gallons of water per day

applied for in the permit application. This requirement ties water withdrawal

to land ownership, and there is no legislative authority for such a requirement.

An agency can exercise its authority only as prescribed by statute, and

prescribed statutory criteria must be observed. A statute enacted by the

Legislature which sets conditions for a permit may not be amended by an

administrative agency by promulgating a rule which adds further conditions.

Likewise, the "reasonable beneficial use" standard contained in 373.223(1)(a)

and defined in 373.019(4) cannot be restricted to 1,000 gallons per day per acre

on land owned, leased or otherwise controlled by an applicant. As pointed out

in the case of City of Cape Coral v GAC Utilities, Inc. of Fla., 281 So 2d 493

(Fla. 1973), any reasonable doubt as to the lawful existence of a particular

power that is being exercised by an administrative agency must be resolved

against the exercise thereof, and the further exercise of the power should be

arrested. In this instance, there is no legislative authority for SWFWMD to

enact a rule which establishes the water crop concept as a condition for

granting or denying a consumptive use permit.

27. The respondent urges that the requirement of the challenged rule is

not a mandatory criterion for the issuance of a permit, and thus it does not

conflict with the statutory conditions listed in 373.223(1). As evidence of

this contention, SWFWMD points to the exception provision of subsection (5) of

the rule, and claims that subsection (3), the water crop rule, is only utilized

as a threshold tool for evaluating permit applications. The established

administrative interpretation by an agency of its own rules should be accorded

great weight, and the undersigned does accord great weight to the agency's

interpretation and established implementation of the water crop rule in a

permissive fashion. Nevertheless, there is no statutory authority to make water

withdrawal levels dependent in any manner upon land ownership. The exception

provision of subsection (5), while indicating the nonmandatory intent of

subsection (3), is of no avail in establishing the validity of the challenged

water crop rule. It contains no standards for its application and permits

unbridled discretion on the part of SWFWMD in granting or denying exceptions.

28. In addition to the fact that the Legislature did not delegate to the

water management districts the authority to set water withdrawal levels

according to the amount of land owned, leased or controlled, the water crop rule

conflicts with the Florida Supreme Court's decision in Village of Tequestra v.

Juniper Inlet Corp., 371 So.2d 663 (Fla. 1979). The water crop rule states the

amount of water available throughout the District. In effect, it reserves water

to those owners of land within the District who have not applied for a permit

but who may wish to use the water in the future. The Tequestra case recognizes

that Chapter 373 makes no provision for the continuation of an unexercised

common law right to use the water under one's land.

29. Finally, the evidence adduced at the hearing clearly illustrates that

the water crop theory cannot be used to accurately determine the amount of water

which can be consumptively used on any specific piece of land. This is due to

the variety of hydrological factors which must be considered for each given

parcel of land and the wide variety of such factors throughout the District.

The witnesses presented by the respondent agreed that from a regulatory

standpoint, a CUP should never be denied based solely upon the water crop rule.

To do so would be hydrologically invalid. As such, it must be concluded that

the water crop rule is arbitrary and capricious in nature and is an unsound

method of regulating and determining the issuance of consumptive use permits.

30. The conclusions of the Florida Joint Administrative Procedures

Committee are not binding on a Division of Administrative Hearings Hearing

Officer in reaching a determination as to the validity of a rule under Chapter

120. For this reason, the evidence adduced at the hearing regarding this issue

is deemed irrelevant and immaterial.

31. In summary, it is the conclusion of the undersigned Hearing Officer

that the challenged water crop rule is invalid in that it exceeds SWFWMD'S

statutory authority, it impermissibly conflicts with Chapter 373, Florida

Statutes, it creates property rights to water contrary to Chapter 373 and the

decision of Village of Tequestra v. Jupiter Inlet Corp., 371 So.2d 663 (Fla.

1979) and it is hydrologically unsound and accordingly arbitrary and capricious

in nature.

FINAL ORDER

Based upon the findings of fact and conclusions of law recited above,

IT IS ORDERED THAT Rule 16J-2.11(3), Florida Administrative Code,

constitutes an invalid exercise of delegated legislative authority and is

therefore declared invalid.

Done and ordered this 9th day of April, 1980, in Tallahassee, Florida.

___________________________________

DIANE D. TREMOR, Hearing Officer

Division of Administrative Hearings

Room 101, Collins Building

Tallahassee, Florida 32301

[phone]

ENDNOTE

1/ At the time of the hearing, condemnation proceedings were pending whereby

Pasco County is condemning the Pasco Water Authority, including the Contract to

supply water between it and Pinellas County.

COPIES FURNISHED:

John T. Allen, Jr.

4508 Central Avenue

St. Petersburg, Florida 33711

Kenneth E. Apgar

403 North Morgan Street

Suite 102

Tampa, Florida 33602

L. M. Blain

Thomas E. Cone, Jr.

Post Office Box 399

Tampa, Florida 33601

Jay T. Ahern

5060 U.S. 41 South

Brooksville, Florida 33512

Robert Bruce Snow

Post Office Box 2060

Brooksville, Florida 33512

Gerald A. Figurski

4025 Moon Lake Road

New Port Richey, Florida 33551

Jeannette M. Haag

Haag and Haag

1900 West Main Street

Inverness, Florida 32650

Randall N. Thornton

Post Office Box 58

Lake Panasoffkee, Florida 33538

John F. Wendel

Wendel, Broderick, Chritton and

Kelpetko, Chartered

Post Office Box 5378

Lakeland, Florida 33802

Robert S. Ryder

320 North West Third Avenue

Post Office Box 1635

Ocala, Florida 32670

Carl R. Linn

214 Municipal Building

St. Petersburg, Florida 33701

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code

1802 Capitol Building

Tallahassee, Florida 32301