90-005835RX Sierra Club, Inc., And The Florida Wild Life Federation, Inc. vs. St. Johns River Water Management District Status: Closed DOAH Final Order on Tuesday, December 18, 1990.

Summary: Rules related to isolated welands are invalid for failure to protect wetlands as intended by statute and for failure to consider cummulative impact

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SIERRA CLUB, INC., and the )

FLORIDA WILDLIFE FEDERATION, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 90-5835RX

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent, )

)

and )

)

E. I. DU PONT DE NEMOURS & )

COMPANY (INC.) and ASSOCIATED )

MINERALS (USA) INC., )

)

Intervenors. )

_____________________________________)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly

designated Hearing Officer, Mary Clark, held a formal hearing in the above-

styled case on October 16, 1990, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Peter B. Belmont, Esquire

511 31st Avenue North

St. Petersburg, Florida 33704

For Respondent: Wayne E. Flowers, Esquire

Kathryn L. Mennella, Esquire

Post Office Box 1429

Palatka, Florida 32178-1429

For Intervenors: Frank E. Matthews, Esquire

Hopping Boyd Green & Sams

123 South Calhoun Street

Post Office Box 6526

Tallahassee, Florida 32314

STATEMENT OF THE ISSUES

This is a challenge to certain administrative rules adopted by the St.

Johns River Water Management District relating to permitting criteria for

isolated wetlands.

Section 373.414, F.S. mandates that permitting criteria for isolated

wetlands be adopted by water management districts, by rule, by March 31, 1987.

The statute also includes four more specific requirements for those rules.

Petitioners contend that St. Johns River Water Management District Rule

Chapter 40C-4, F.A.C. and the Applicant's Handbook, Management and Storage of

Surface Waters, adopted as a rule by reference, fail to comply with the

statutory mandate and are an invalid exercise of delegated legislative authority

by the District.

Respondent, St. Johns River Water Management District, contends that its

rules comply with Section 373.414, F.S.. St. Johns River Water Management

District contests the standing of Petitioner, the Florida Wildlife Federation,

Inc.

Intervenors, E.I. Du Pont De Nemours and Company, Inc. and Associated

Minerals (USA), Inc., support the District's position and contest the standing

of both Petitioners.

PRELIMINARY STATEMENT

On September 19, 1990, Petitioners, the Sierra Club, Inc., (Sierra) and the

Florida Wildlife Federation, Inc., (FWF) filed their petition pursuant to

Section 120.56, F.S., challenging the validity of certain existing rules of the

Respondent, St. Johns River Water Management District.

E. I. Du Pont De Nemours and Company, Inc., and Associated Minerals (USA),

Inc., filed a petition to intervene in the proceeding on October 15, 1990.

Intervention was granted, without objection, at the commencement of the hearing;

however, participation was limited to cross-examination of witnesses.

Also at the commencement of the hearing, and without objection,

Respondent's request for official recognition was granted for the following:

Chapters 373 and 378, F.S.; Chapters 16C-37, 40C-1 and 40C-4, F.A.C.; Rules 39-

27.003 and 39-27.004, F.A.C.; and Part I, Part II, Section 16, Subsections 18.0,

18.1, 18.2, and 18.3 of Section 18, and Appendix K of the document, Applicant's

Handbook: Management and Storage of Surface Water, as incorporated by reference

in Rule 40C-4.091, F.A.C..

In support of its petition, Petitioners presented the following witnesses:

Joseph Travis, qualified as an expert in the ecology of isolated wetlands; Paul

Moler, qualified as an expert in wildlife biology, herpetology and the ecology

of isolated wetlands; John Palis, qualified as an expert in zoology; Laurie Anne

McDonald, qualified as an expert in zoology and ecology; and Richard Farren.

The District presented the following witnesses: Jeffrey Elledge, qualified

as an expert in surface water management and the District's permitting

requirements for surface water management systems; Gregory L. Daugherty,

qualified as an expert in mine reclamation; and Lawrence Gerry and Glenn Lowe,

Jr., both qualified as experts in wetlands ecology and the application of the

District's management and storage of surface waters rules as they relate to

wetlands.

Petitioners' exhibit #1, and Respondent's exhibits #1-4 were received in

evidence.

A transcript of the proceeding was filed on October 30, 1990, and the

parties submitted their proposed final orders on November 15, 1990. Findings of

Fact recommended by the parties are separately addressed in the attached

appendix.

FINDINGS OF FACT

1. Petitioner, Sierra Club, Inc., (Sierra) is a non-profit corporation

registered to do business within the state of Florida. It is an international

organization, with regional committees, state chapters, and local regional

groups. The Florida chapter has 15 regional groups, several of which are

located within the jurisdictional boundaries of the St. Johns River Water

Management District (SJRWMD). About 6,000 members live within the boundaries of

the SJRWMD.

2. The overall purpose of Sierra is to explore, enjoy and protect the

natural resources of the earth. Sierra commonly offers outings for the

enjoyment and education of its members and the general public. These involve

traveling, hiking, birdwatching and other wildlife observation. Part of the

outings program includes hiking and viewing of isolated wetlands and wildlife

dependent on those wetlands. These outings take place within the SJRWMD.

3. Some Sierra members are actively involved in work related to isolated

wetlands, including studies, consulting, and managing of wetlands, some of which

are located within the SJRWMD.

4. The Florida Wildlife Federation, Inc. (FWF) is a non-profit corporation

registered to do business in the state of Florida. It is comprised of

organizations and individual members who support the wise use and management of

Florida's natural resources. Sportsmen and naturalists who belong to the club

are involved in hunting, fishing, hiking, birdwatching, nature photography and

other activities loosely called "naturalizing". These activities take place

within SJRWMD boundaries and rely on wildlife species which live in, or are

dependent upon, isolated wetlands. FWF attracts membership by publicity of its

existence and purpose directed to sportsmen and naturalists.

5. Respondent, SJRWMD, is a political subdivision of the state of Florida,

with the authority to regulate, through its permitting process, the management

and storage of surface waters (MSSW) within its designated geographical

boundaries, pursuant to Part IV of Chapter 373, F.S.

Prior to adoption of the administrative rules in issue in this proceeding,

the Florida Department of Environmental Regulation (DER) delegated to Respondent

the responsibility for administration of its stormwater rule.

6. Intervenors conduct heavy metal mining operations within the District.

These mining operations are regulated pursuant to Chapter 40C-4, F.A.C. and the

Applicant's Handbook. Virtually all mining activities exceed existing

permitting thresholds and all District wetland criteria apply to the activities.

7. Since 1983, SJRWMD has been regulating wetlands and wetland MSSW

impacts, including isolated wetlands, throughout its 19-county area. The rules

adopted in 1983 included all wetlands, both isolated and non-isolated.

8. In 1986, the legislature created Section 373.414, F.S., which provided

as follows:

373.414 Wetlands.--

(1) By March 31, 1987, for those water

management districts to which the department

has delegated the responsibility for

administration of its stormwater rule, each

district shall adopt a rule which establishes

specific permitting criteria for certain small

isolated wetlands which are not within the

jurisdiction of the department for purposes

of regulation of dredging and filling. The

rule shall include:

(a) One or more size thresholds of isolated

wetlands below which impacts on fish and

wildlife and their habitats will not be

considered. These thresholds shall be based

on biological and hydrological evidence that

shows the fish and wildlife values of such

areas to be minimal;

(b) Criteria for review of fish and

wildlife and their habitats for isolated

wetlands larger than the minimum size;

(c) Criteria for the protection of

threatened and endangered species in isolated

wetlands regardless of size and land use; and

(d) Provisions for consideration of the

cumulative and offsite impacts of a project

or projects.

(2) This section does not affect the

authority of the water management districts

to regulate impacts on water quality and

water quantity.

(3) Until a water management district has

adopted a rule to implement the provisions of

subsection (1), review of fish and wildlife

impacts in small isolated wetlands shall be

limited to:

(a) Wetlands that are 5 acres in size or

larger; or

(b) Wetlands that are used by a federal or

state designated threatened or endangered

species; or

(c) Wetlands located within an area of

critical state concern designated pursuant to

chapter 380; or

(d) Wetlands that are less than 5 acres in

size having a cumulative total acreage greater

than 30 percent of the total acreage proposed

for development, within a development project

greater than 40 acres in size.

Section 373.414(3), F.S. (1986) was repealed effective March 31, 1987, the

deadline by which the districts were to have their own isolated wetlands rules

in place. Sections 373.414(1) and (2), F.S. remain in effect.

9. "Wetlands" is defined in SJRWMD's MSSW rule as:

...hydrologically sensitive areas which are

identified by being inundated or saturated by

surface or groundwater with a frequency and

duration sufficient to support, and that under

normal circumstances do support, a prevalence

of vegetation typically adapted for life in

saturated soil conditions. Wetlands generally

include swamps, marshes, bogs and similar

areas.

Rule 40C-4.021(11), F.A.C.

This definition is repeated in Section 10.7.3 of the Applicant's Handbook.

10. Section 10.7.3 also provides:

Wetlands are important components of the water

resource because they serve as spawning,

nursery and feeding habitats for many species

of fish and wildlife, and because they provide

important flood storage and water quality

benefits. Not all wetlands provide these

benefits, nor do they provide them to the same

extent. A wide array of physical and chemical

factors affect the functioning of any wetland

community.

* * *

11. Small isolated wetlands are totally unique biological systems. They

are not small versions of large wetlands. They play two major roles in animal

ecology: to harbor diverse species that use the habitat for their entire life

cycle, and to provide a productive resource for transient species.

If a wetland is truly isolated, its fish population is generally limited to

the smaller-bodied, smaller-mouthed varieties which are limited in their

predatory abilities. This permits the abundance of amphibians and invertebrates

not found in larger, more permanent wetlands where the fish would rapidly

decimate the population.

Amphibians are a cornerstone of the vertebrate food chain. They are food

for a variety of snakes, which in turn, are food for hawks.

Wading birds find easy prey as the isolated wetlands begin drying up and

contracting. The entire cycle of the pond, from fully wet to dry, is

significant.

12. Ambystoma tigrinum (tiger salamanders) are hatched and raised in

isolated wetlands; they leave, and must return to breed in the same pond. They

have a strong homing instinct. Ignorant of intervening events, they are often

found spending their honeymoon dodging cars on an apartment complex pavement,

seeking in vain the pond of their birth.

13. The SJRWMD adopted Chapter 40C-4, F.A.C. and its Applicant's Handbook

to regulate the construction, operation, alteration, removal or abandonment of

surface water management systems, to insure that those activities will not harm

the water resources of the District and insure that they are consistent with the

objectives of the District. Activities which do not meet certain thresholds

established in Rule 40C-4.041, F.A.C. do not require a District MSSW permit,

including those activities impacting an isolated wetland.

The threshold provisions pre-date Section 373.414, F.S. and still apply.

The threshold provisions of Rule 40C-4.041(2)(b), F.A.C., challenged by

Petitioners, state as follows:

40C-4.041 Permit Required.

* * *

(b) An individual or general permit is

required prior to the construction, alteration,

operation, maintenance, abandonment or removal

of a surface water management system which:

1. Is capable of impounding a volume of

water of forty or more acre feet; or

2. Serves a project with a total land area

equal to or exceeding forty acres; or

3. Serves a project with a total land area

equal to or exceeding ten acres, when any part

of the project is located within the Wekiva

River Hydrologic Basin north of State Road

436; or

4. Provides for the placement of twelve or

more acres of impervious surface which

constitutes 40 or more percent of the total

land area; or

5. Provides for the placement of one half

acre or more of impervious surface, when any

of the impervious surface is located within

the Wekiva river Hydrologic Basin north of

State Road 436; or

6. Contains a traversing work which

traverses:

a. A stream or other watercourse with a

drainage area of five or more square miles

upstream from the traversing work; or

b. An impoundment with more than ten acres

of surface area; or

7. Contains a surface water management

system which serves an area of five or more

contiguous acres of a hydrologically sensitive

area with a direct hydrologic connection to:

a. A stream or other watercourse with a

drainage area of five or more square miles; or

b. An impoundment with no outfall, which is

not wholly owned by the applicant and which is

ten acres or greater in size; or

c. A hydrologically sensitive area not

wholly owned by the applicant.

8. Is wholly or partially located within

the Wekiva River Hydrologic Basin's Riparian

Habitat Protection Zone as described in

paragraph 40C-41.063(3)(e).

The same threshold provisions are contained in Section 3.3.1, Applicant's

Handbook, also challenged by Petitioners.

14. In 1987, after passage of Section 373.414, F.S. the District amended

its wetland regulations to provide that all wetlands would be evaluated,

regardless of size, within the already-established permit thresholds:

A wide variety of wetland habitats exist

within the St. Johns River Water Management

District. The functions which these habitats

serve are dependent on many factors.

Biological and hydrological evidence

demonstrate that size is not the single

determinant of wetland value. Since the

District bases its evaluation on wetland

functions, the District will review impacts

to all wetlands (a zero acre threshold will

be employed) in reviewing impacts to fish and

wildlife and their habitats for systems

requiring a permit from the District.

* * *

10.7.5 Wetland Evaluation

Applicant's Handbook

15. As the result of an objection by the Joint Administrative Procedures

Committee (JAPC) stating that the District had failed to comply with Section

373.414(1)(a), F.S., the District amended the zero acre review threshold for

isolated wetlands and adopted a 0.5 acre review threshold, based upon biological

investigations indicating that wetlands below this size have minimal fish and

wildlife value. In all applications for MSSW permits under Chapter 40C-4, the

District reviews impacts to isolated wetlands unless those wetlands are less

than 0.5 acre in size and are not used by threatened or endangered species.

No permit application, however, is required for projects under the

thresholds described in paragraph 13, above, even though those projects might

include wetlands larger than 0.5 acres.

Staff of the SJRWMD concedes that the non-regulated isolated wetlands might

have significant value and agrees with Petitioner's experts that isolated

wetlands found in projects below the Rule 40C-4.041(2)(b), F.A.C. thresholds

(called "get-in-the-door" thresholds) could have more than minimal fish and

wildlife value.

16. Petitioners challenge the entire Chapter 40C-4, F.A.C. and Applicant's

Handbook for non-compliance with Section 373.414(1)(d), F.S. The SJRWMD does

not consider, and nothing in its rules require consideration of, cumulative

impacts of a series of isolated wetlands included in below-threshold projects

even though there could be a negative cumulative impact from the loss of those

wetlands.

17. Petitioners challenge section 10.7.4 Wetland Review Criteria,

Applicants Handbook, to the extent that it may limit consideration of impacts to

isolated wetlands to off-site aquatic and wetland dependent species, unless

threatened or endangered species are involved. This section provides in

pertinent part:

10.7.4 Wetland Review Criteria

In determining whether a system will meet the

objective contained in Paragraph 9.1.1(j) and

that part of the criterion contained in

Paragraph 10.2.1(e) regarding hydrologically

related environmental functions, the District

will, except when threatened or endangered

species are involved, consider only the

impacts to off-site aquatic and wetland

dependent species relative to the functions

currently being provided by the wetland to

these types of fish and wildlife.

This assessment of off-site impacts is based

upon a review of pertinent scientific

literature, soils and hydrologic information,

and a general understanding of the ecological

resources of the site. Generally, site

specific biological data collection is not

required. An applicant must provide

reasonable assurance that a proposed system

will not cause adverse off-site changes in:

(a) the habitat of an aquatic and wetland

dependent species,

(b) the abundance and diversity of aquatic

and wetland dependent species, and

(c) the food sources of aquatic and wetland

dependent species.

The only exception to limiting review of a

system under this Subsection to off-site

impacts is where wetlands are used or

reasonable scientific judgement would indicate

use by threatened or endangered species listed

in Sections 39-27.003 and 39-27.004, F.A.C.,

which are aquatic or wetland dependent. In

this instance, both off-site and on-site

impacts will be assessed.

18. Petitioners also challenge section 16.1.3(a), Applicant's Handbook, to

the extent that it may limit mitigation requirements to off-site impacts. If a

project as initially proposed is subject to Respondent's surface water

permitting requirements, and as initially proposed fails to meet wetland review

criteria, mitigation may be considered as a means of bringing the proposed

project within permitting requirements. The challenged portion provides:

16.1.3 Mitigation

(a) Mitigation is defined here as action or

actions taken to offset the adverse effects

of a system on off-site functions and in the

care of threatened or endangered species, to

offset the adverse effects of a system on

on-site and off-site functions.

Although there may be a difference in degree of functions performed by

isolated wetlands on site, as compared to the degree of functions performed by

isolated wetlands off-site, the difference in negligible. Adverse ecological

effects on-site will also be felt off-site. In developing its criteria SJRWMD

staff could not conceive of a situation where a functioning wetland or isolated

wetland would be eliminated and not have an off-site impact.

19. Finally, Petitioners challenge the last paragraph of Section 16.1.4,

Applicant's Handbook, related to mitigation for mining projects that fall under

the jurisdiction of the Department of Natural Resources (DNR) pursuant to

section 378.601, F.S. (heavy mineral extraction). Section 16.1.4, Wetland

Creation, Applicant's Handbook, provides guidelines to be used to estimate the

extent of wetland creation which may mitigate for the destruction of a unit of

wetland. The challenged portion of the section provides:

For lands and mining activities that fall

under the jurisdiction of the Florida

Department of Natural Resources pursuant to

section 378.601, F.S. mitigation or

compensation plans that are consistent with

the land reclamation policies and criteria

approved by that agency will be considered by

the District as satisfactory mitigation.

(emphasis added).

20. The District is not required to allow mitigation if impacts are so

substantial that they cannot be offset. If the District does not consider a DNR

reclamation plan as sufficient, the District applies its wetland review criteria

in section 10.7.4, Applicant's Handbook. For heavy mineral mining, DNR requires

one-to-one mitigation for every wetland, regardless of type, that is disturbed

by the zoning activity, and the restoration of wildlife habitat, including

threatened or endangered species. Heavy mineral mining, in contrast to other

mining such as phosphate, has far less impact on the environment. This is

reflected in the success which has been experienced in restoring wetlands

disturbed by heavy mineral mining.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings (DOAH) has jurisdiction in

this matter pursuant to section 120.56, F.S., which provides, in pertinent part,

(1) Any person substantially affected by a

rule may seek an administrative determination

of the invalidity of the rule on the ground

that the rule is an invalid exercise if

delegated legislative authority.

. . .

22. Both petitioners in this action are corporations, and are, therefore,

"persons", pursuant to Section 1.01(3), F.S.

Petitioners are also "substantially affected". They established that

progressive or cumulative loss of isolated wetlands will result in adverse

impacts throughout the food chain. Those impacts will substantially affect

these organizations, which exist for the purpose of promoting the use and

management of Florida's natural resources and for the purpose of exploring,

enjoying and protecting the natural resources of the earth. Loss of resources

will directly and substantially affect the organizations' ability to attract and

maintain their membership. Petitioners have a legitimate corporate interest in

the rule.

As corporations, Petitioners are distinguishable from the petitioner in

Florida Home Builders Assn. v. Department of Labor, 412 So.2d 351 (Fla. 1982).

In that case, the Court looked beyond the association itself to its members, a

substantial number of whom were determined to be "substantially affected".

Thus, standing for the association was derived from the standing of its members.

Assuming that the standing principles formulated in Homebuilders, supra, are

applicable, Petitioners also demonstrated that a substantial number of their

members, although not necessarily a majority, are substantially affected by the

challenged rule.

23. "Invalid exercise of delegated legislative authority" is defined in

Section 120.52(8), F.S. as:

. . . action which goes beyond the powers,

functions, and duties delegated by the

Legislature. A proposed or existing rule is

an invalid exercise of delegated legislative

authority if any one or more of the following

apply;

(a) The agency has materially failed to

follow the applicable rulemaking procedures

set forth in s. 120.54;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(7);

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(7);

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency; or

(e) The rule is arbitrary or capricious.

24. Those who seek to invalidate the proposed rules have the burden of

showing that:

. . . the agency, if it adopts the rule, would

exceed its authority; that the requirements

of the rule are not appropriate to the ends

specified in the legislative act; that the

requirements contained in the rule are not

reasonably related to the purpose of the

enabling legislation or that the proposed rule

or the requirements thereof are arbitrary and

capricious. Agrico Chemical Co. v. State Dept.

of Environmental Regulation, 365 So.2d 760,763

(Fla. 1st DCA 1979)

25. An agency has wide discretion in its rulemaking authority. Austin v.

Department of Health and Rehabilitative Services, 495 So.2d 777 (Fla. 1st DCA

1986). When an agency construes a statute in its charge in a permissible way,

that interpretation must be sustained even though another may be possible, or

even, in the view of some preferable. HRS v. Framat Realty, Inc., 407 So.2d

238, 241 (Fla. 1st DCA 1981), Little Munyon Island v. Dept. of Environmental

Regulation, 492 So.2d 735 (Fla. 1st DCA 1986).

26. Petitioners have partially met their burden of proof. They assert

that the thresholds in Paragraph 40C-4.041(2)(b), F.A.C., are an invalid

exercise of delegated legislative authority because such thresholds are not

based on biological and hydrological evidence that shows that isolated wetlands

below such thresholds have minimal fish and wildlife values. "The primary

legislative concern in passing Section 373.414, appears to have been to preserve

wildlife and fish in small isolated wetlands because they are unique as to both

their ecosystems and species." Booker Creek Preservation, Inc. v. Southwest

Florida Water Management District, 534 So.2d 419, 424 (Fla. 5th DCA 1988), rev.

den. 542 So.2d 1334 (1989). The District was required "to adopt a rule which

establishes specific permitting criteria for certain small isolated wetlands . .

." Subsection 373.414(1), F.S. (Emphasis added). The necessary elements of the

"permitting criteria" are those set forth in the subparagraphs of Subsection

373.414(1), including the establishment of one or more thresholds of isolated

wetlands below which impacts on fish and wildlife or their habitat will not be

considered because of minimal fish and wildlife values. Paragraph

373.414(1)(a), F.S.

27. The District has been regulating impacts to isolated wetlands since

1983. To fulfill the requirement of Section 373.414, F.S., the District amended

its "permitting criteria" in the wetland review criteria section of its

Applicant's Handbook. The District adopted a 0.5 acre isolated wetland

threshold with the reasonable presumption that isolated wetlands below such

threshold have minimal fish and wildlife values. Section 10.7.4, Applicant's

Handbook. This threshold was established by biological and hydrological

evidence which was not disputed in this proceedings.

The problem, however, is that the District has simply grafted its isolated

wetlands threshold onto its existing permitting thresholds in Rule 40C-

4.041(2)(b), F.A.C. and Section 3.3.1 Applicant's Handbook. The result is that

fewer isolated wetlands are subject to District review than were prior to the

adoption of the 0.5 acre threshold. If, as argued by the District, the 0.5 acre

threshold is meaningful, and biologically and hydrologically appropriate, then

the considerably larger thresholds, which are applied first, are not consistent

with the requirements of Section 373.414, F.S. Isolated wetlands which are over

0.5 acre in size, which have more than minimal fish and wildlife values, but are

in projects beneath the primary thresholds, will not be protected.

28. In Booker Creek Preservation, Inc., supra, the isolated wetlands rule

adopted by the Southwest Florida Water Management District (SWFWMD) was

challenged by several environmental groups, including the Petitioner, Sierra

Club, on the grounds that SWFWMD had improperly provided exemptions to their

isolated wetlands rule. In striking down a majority of the exemptions set forth

in the challenged rule, the court held that Section 373.414 contains only one

express exemption: wetlands within the jurisdiction of the Department of

Environmental Regulation for the purposes of regulation of dredging and filling.

Booker Creek Preservation, Inc., at 423. The court stated that water management

districts are without authority to vary the impact of Section 373.414 by

creating waivers or exemptions. Booker Creek Preservation, Inc., at 423.

Whether styled a "threshold" or "exemption", the District's rules at Section

40C-4.041(2)(b), F.A.C. and 3.3.1 Applicant's Handbook, as applied to isolated

wetlands, exclude from District review some isolated wetlands intended for

protection under Section 373.414, F.S. For that reason, Section 40C-

4.041(2)(b), F.A.C. and its provision in the Applicant's Handbook, contravene

the requirement of the statute and are invalid.

29. Similarly, the challenged rules fail to provide for the consideration

of cumulative impacts of a project or projects, as required by Section

373.414(1)(d), F.S.

While "cumulative impacts" is not defined, a legislative example is

included in Section 373.414(3)(d), F.S., which governed review by water

management districts until March 31, 1987, the date by which their own rules

were to be adopted. This subsection required review of sub-threshold isolated

wetlands when their cumulative total acreage exceeded 30 percent of total

project acreage within projects greater than 40 acres in size.

The District was not required to adopt this same standard, but is required

to adopt some standard for review of cumulative impacts.

A Section 120.56, F.S. proceeding cannot be used to attack what a rule does

not say, unless the rule contravenes the statute it purports to implement by

removing a requirement which is textually mandated in the statute. Such a rule

would contravene its implementing statute and be invalid under Section

120.52(8)(c), F.S., Krisher v. Department of Lottery, 10 FALR 2465, 2469 (Final

Order by Hearing Officer, William R. Dorsey, Jr., March 31, 1988).

SJRWMD argues that it does consider cumulative impacts, because each

project that is permitted by the District cannot have adverse impacts and does

not allow residual impacts which are not mitigated. Still, the District

does not review any impacts to isolated wetlands by sub-threshold projects, nor

impacts to sub-threshold wetlands within permitted projects, no matter how

substantial their cumulative size, unless threatened or endangered species are

impacted.

30. Petitioners have failed to prove their assertion that the challenged

rules contravene Section 373.414(1)(b), F.S. because the review criteria and

mitigation requirements only apply to off-site impacts to fish and wildlife,

unless threatened or endangered species are present. The evidence in this

proceeding established that virtually all on-site impact will also be felt off-

site. Even if the District may not have gone far enough in its regulation,

deference must be accorded its application and interpretation of its rules.

31. Similar deference is accorded the District's interpretations of

Section 16.1.4, Applicant's Handbook. A heavy mineral mining activity subject

to District MSSW permitting and requiring mitigation under the rule may provide

mitigation sufficient for the purposes of Chapter 373, F.S., if the mitigation

is consistent with the land reclamation policies and criteria approved by DNR

under Chapter 16C-37, F.A.C. Sierra Club argues that such plans and DNR rules

do not address threatened and endangered species in isolated wetlands,

cumulative and off-site impacts, and restoration of isolated wetlands as

required under Section 373.414, F.S. The uncontradicted evidence established

that the restoration requirements of DNR Rule 16C-37, F.A.C. is applicable to

all wetlands, whether contiguous or isolated. See Rule 16C-37.002(16), F.A.C.

Heavy mineral mining activities are required to restore every acre of wetland

that is disturbed, and the restoration must address habitat for threatened and

endangered species. See Rule 16C-37.008(5) and (6), F.A.C. Furthermore, under

Sections 10.7.4 (last paragraph), 16.1.3(a) and 16.1.4, Applicant's Handbook, if

impacts to functions provided by isolated wetlands to threatened or endangered

species are of such a type or nature that they cannot be offset or mitigated,

the District does not accept a DNR approved plan as sufficient to meet the

wetland review criteria. In such case, the rules allow the District discretion

to apply the wetland review criteria in Section 10.7.4, Applicant's Handbook.

Accordingly, the last paragraph of Section 16.1.4, Applicant's Handbook, does

not contravene the plain language of Section 373.414, F.S.

ORDER

Based on the foregoing, it is hereby,

ORDERED:

1. Petitioners' challenge to rule 40C-4.041(2)(b), F.A.C., and Section

3.3.1 Applicant's Handbook, as applied to isolated wetlands, is sustained, and

those rules are invalid.

2. Petitioners' challenge to Chapter 40C-4, F.A.C. and to the Applicant's

Handbook, for failure to include provisions for the consideration of cumulative

impacts of a project or projects on isolated wetlands, is sustained, and those

rules are invalid.

3. Petitioners' challenges to Section 10.7.4, Section 16.1.3(a), and

Section 16.1.4, Applicant's Handbook, as related to the failure to include on

site impacts and certain mitigation requirements are dismissed.

DONE AND ORDERED this 18th day of December, 1990, in Tallahassee, Leon

County, Florida.

____________________________________

MARY CLARK

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the Division

of Administrative Hearings this 18th

day of December, 1990.

APPENDIX TO FINAL ORDER

Findings of Fact Proposed by Petitioners

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3. Adopted in paragraph 3.

4. Adopted in paragraph 4.

5.-11. Adopted in substance in paragraphs 11 and 12; however, it was not

established that wetlands as small as .25 acre should be regulated.

12.-14. Adopted in summary in paragraph 15.

(no #13 in proposed order)

15. Rejected as unnecessary.

16. Rejected as contrary to the weight of evidence.

17. Adopted in paragraph 18.

18. Rejected as unnecessary.

19. Adopted in paragraph 13.

20. Adopted in paragraph 5.

Findings of Fact Proposed by Respondent

1. Adopted in paragraphs 1-3.

2. Adopted in paragraph 4.

3.-4. Adopted in paragraph 5.

5. Adopted in paragraph 8.

6. Rejected as unnecessary.

7.-8. Adopted in paragraph 13.

9. Adopted in paragraph 7.

10. Adopted in paragraph 14.

11. Adopted in paragraph 15.

12. Adopted in paragraph 18.

13. Rejected as cumulative and unnecessary.

14. Rejected as immaterial. The sub-threshold cumulative impacts are not

addressed.

15. Adopted in paragraph 19.

Findings of Fact Proposed by Intervenors

1. Adopted in part in paragraphs 1 and 2, otherwise rejected as immaterial.

2. Adopted in part in paragraph 4, otherwise rejected as immaterial.

3.-5. Adopted in substance in paragraphs 6 and 20.

COPIES FURNISHED:

Peter B. Belmont, Esquire

511 31st Avenue North

St. Petersburg, FL 33704

Wayne E. Flowers, Esquire

Kathryn L. Mennella, Esquire

P.O. Box 1429

Palatka, FL 32178-1429

Frank E. Matthews, Esquire

Hopping Boyd Green & Sams

123 S. Calhoun Street

P.O. Box 6526

Tallahassee, FL 32314

Henry Dean, Executive Director

St. Johns River Water Management District

P. O. Box 1429

Palatka, FL 32178-1429

Carroll Webb, Executive Director

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, FL 32399-1300

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 RULE OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE

COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE

DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING

FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR

WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY

RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE

ORDER TO BE REVIEWED.