93-001479RU East Beach Water Control District, South Shore Drainage District, East Shore Water Control District, And South Florida Conservancy vs. Department Of Environmental Regulation Status: Closed DOAH Final Order on Tuesday, June 29, 1993.

Summary: Petitioner's failed to demonstrate that agency was applying any criteria not set forth in existing rules or statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EAST BEACH WATER CONTROL )

DISTRICT, SOUTH SHORE DRAINAGE )

DISTRICT, EAST SHORE WATER )

CONTROL DISTRICT and SOUTH )

FLORIDA CONSERVANCY, )

)

Petitioners, )

)

vs. ) CASE NO. 93-1479RU

)

STATE OF FLORIDA, DEPARTMENT )

OF ENVIRONMENTAL REGULATION, )

)

Respondent. )

__________________________________)

FINAL ORDER

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

designated Hearing Officer, William J. Kendrick, held a formal hearing in the

above-styled case on May 17 and 18, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Kevin S. Hennessy, Esquire

Messer, Vickers, Caparello,

Madsen, Lewis & Metz

2000 Palm Beach Lakes Boulevard Suite 900

West Palm Beach, Florida 33409

and

Parker D. Thomson, Esquire

Thomson, Muraro, Razook & Hart, P.A.

One Southeast Third Avenue Suite 1700

Miami, Florida 33131

For Respondent: Lori E. H. Killinger

Jennifer L. Mason

Assistant General Counsel

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent, Department of

Environmental Regulation (Department), has violated Section 120.535, Florida

Statutes, by the adoption of a policy, which meets the definition of a rule

under Section 120.52(16), Florida Statutes, without complying with the

rulemaking procedures established by Section 120.54, Florida Statutes.

PRELIMINARY STATEMENT

This is a proceeding brought under the provisions of Section 120.535,

FLorida Statutes, seeking an administrative determination that the Department

has violated the provisions of Section 120.535(1), Florida Statutes, by adopting

a policy, which meets the definition of a rule, without complying with the

rulemaking procedures established by law. The challenged policy, as alleged in

paragraph 19 of the petition, purports to be as follows:

The Department has made a policy

determination, which draws a distinction

between "agricultural stormwater discharges"

and other stormwater discharges regulated by

Chapter 373, Florida Statutes, and the rule

promulgated pursuant thereto. The Department

has identified the Petitioners' discharges as

"agricultural stormwater discharges" and has

subjected the Petitioners to a set of rules

and criteria that the Department has not

adopted but which are apparently different

from the general stormwater regulations

adopted pursuant to Chapter 373, Florida

Statutes.

At hearing, petitioners called Dwight R. Graydon, Eric Livingston, John

Scott Benyon, Alexander Padva, and John Cox, as witnesses, and petitioners'

exhibits 1-23 were received into evidence. 1/ The Department called Herbert

Zebruth as a witness, and its exhibits 1-7 were received into evidence.

The transcript of hearing was filed June 8, 1993, and the parties were

granted leave until June 18, 1993, to file proposed findings of fact. The

parties' proposals have been addressed in the appendix to this final order.

FINDINGS OF FACT

The petitioners

1. Petitioners are special taxing districts and political subdivisions of

the State of Florida, which were created pursuant to Chapter 298, Florida

Statutes. The petitioners and their pertinent structures and operations were

authorized by Chapter 298, Florida Statutes, for the purpose of providing

irrigation, drainage and flood protection for the landowners within their

respective boundaries. In order to effect this purpose, the petitioners

designed and operate their water control structures to pump excess stormwater

and surface water directly to Lake Okeechobee (the "Lake") in the case of East

Beach Water Control District (East Beach) and directly to the Rim Canal at the

southern end of the Lake in the case of South Shore Drainage District (South

Shore), East Shore Water Control District (East Shore), and South Florida

Conservancy District (South Florida).

2. East Beach covers a total area of approximately 6,542 acres located

along the southeast shore of the Lake. Approximately 75-80 percent of the lands

contained within the District are used for agriculture, with most of those lands

planted in sugarcane. The remaining 20-25 percent of the drainage area is

urbanized. The urban area includes the City of Pahokee.

3. South Shore covers a total area of approximately 4,230 acres located

along the Rim Canal at the south end of the Lake. Approximately 80-85 percent

of the lands contained within the District are used for agriculture, with most

of those lands planted in sugarcane. The remaining 15-20 percent of the

drainage area is urban and industrial. The urban area includes a portion of the

cities in South Bay, Lake Harbor, Bean City, South Shore Village, and sparsely

scattered home sites throughout the District.

4. East Shore covers a total area of approximately 8,136 acres located

along the Rim Canal at the south end of the Lake. With the exception of lands

developed as canals, levees, roads, and other service-related systems, the

entire district is used for agricultural purposes.

5. South Florida covers a total area of approximately 32,754 acres located

along the Rim Canal at the south end of the Lake with 28,649 acres located in

Palm Beach County and 4,105 acres located in Hendry County. Approximately 85-90

percent of the land is used for agricultural purposes and the remaining 10-15

percent is used for urban or industrial purposes. The City of Belle Glade

constitutes a major part of the urban land with the remainder situated around

the cities of South Bay, Lake Harbor and other scattered home sites.

6. Here, the parties have stipulated that petitioners have standing to

maintain this challenge.

Background

7. Before 1986, petitioners' discharges into the Lake had not been

regulated by the respondent, Department of Environmental Regulation

(Department).

8. In 1985 the Governor of the State of Florida issued Executive Order

Number 86-150. This executive order observed that the Lake Okeechobee Technical

Committee, formed to study water quality and water supply conditions in the

Lake, had found the Lake to be in danger of becoming hypereutrophic because of

the excessive amounts of nutrients, especially phosphorus, it was receiving, and

had recommended corrective actions to substantially reduce the nutrient load and

provide for long-term monitoring, research and management needs for the Lake.

To protect and preserve the Lake, the executive order directed, inter alia, that

the Department "bring all private and publically controlled backpumping sources

into the lake under permit review or under enforcement for operating without a

permit."

9. Pursuant to that executive order, the Department, in concert with

petitioners, began the process of regulating petitioners' discharges into the

Lake. The Department initially attempted to have the petitioners enter into

consent orders; however, the petitioners objected to that concept. Ultimately,

both the Department and petitioners agreed to the issuance of short-term

operating permits (TOPs) containing specific conditions aimed at determining the

composition of the discharges from petitioners' systems and at reducing the

pollution loading into the Lake.

10. The TOPs, issued December 30, 1986, and effective until September 23,

1988, were issued pursuant to the Department's regulatory authority over

pollution sources contained in Chapter 403, Florida Statutes, and Rule 17-4,

Florida Administrative Code. 2/

11. Pertinent to this case, Section 403.088, Florida Statutes, provided,

and continues to provide, as follows:

403.088 Water pollution operation permits; temporary permits;

conditions--

(1) No person, without written authorization

of the department, shall discharge into waters

within the state any waste which by itself or

in combination with the wastes or other

sources, reduces the quality of the receiving

waters below the classification established

for them . . .

(2)(a) Any person intending to discharge

wastes into the waters of the state shall

make application to the department for an

operation permit. Application shall be made

on a form prescribed by the department and

shall contain such information as the

department requires.

(b) If the department finds that the

proposed discharge will reduce the quality of

the receiving waters below the classification

established for them, it shall deny the

application and refuse to issue a permit. . .

(3)(a) A person who does not qualify for an

operation permit or has been denied an

operation permit under paragraph (b) of

subsection (2) may apply to the department

for a temporary operation permit . . .

(c) After consideration of the application,

any additional information furnished, and all

written objections submitted, the department

shall grant or deny a temporary operation

permit. No temporary permit shall be granted

by the department unless it affirmatively

finds:

1. The proposed discharge does not qualify

for an operation permit;

2. The applicant is constructing, installing,

or placing into operation, or has submitted

plans and reasonable schedules of

constructing, installing or placing into

operation, an approved pollution abatement

facility or alternate waste disposal system,

or that the applicant has a waste for which

no feasible and acceptable method of treatment

or disposal is known or recognized but is

making a bona fide effort through research and

other means to discover and implement such a

method;

3. The applicant needs permission to pollute

the waters within the state for a period of

time necessary to complete research, planning,

construction, installation, or operation of an

approved and acceptable pollution abatement

facility or alternate waste disposal system;

4. There is no present, reasonable,

alternative means of disposing of the waste

other than by discharging it into the waters

of the state;

5. The denial of a temporary operation permit

would work an extreme hardship upon the

applicant;

6. The granting of a temporary operation

permit will be in the public interest; or

7. The discharge will not be unreasonably

destructive to the quality of the receiving

waters.

(d) A temporary operation permit issued

shall:

1. Specify the manner, nature, volume, and

frequency of the discharge permitted;

2. Require the proper operation and

maintenance of any interim or temporary

pollution abatement facility or system

required by the department as a condition of

the permit;

3. Require the permitholder to maintain such

monitoring equipment and make and file such

records and reports as the department deems

necessary to ensure compliance with the terms

of the permit and to evaluate the effect of

the discharge upon the receiving waters;

4. Be valid only for the period of time

necessary for the permit holder to place into

operation the facility, system, or method

contemplated in his application as determined

by the department; and

5. Contain other requirements and

restrictions which the department deems

necessary and desirable to protect the quality

of the receiving waters and promote the public

interest.

And, Section 403.927, Florida Statutes, provided, and continues to provide, as

follows:

403.927 Use of water in farming and forestry

activities.--

(1) . . . it is the intent of the Legislature

to provide for the construction and operation

of agricultural water management systems under

authority granted to water management

districts and to control, by the department or

by delegation of authority to water management

districts, the ultimate discharge from

agricultural water management systems.

(2) . . . The department may require a

stormwater permit or appropriate discharge

permit at the ultimate point of discharge from

an agricultural water management system or a

group of connected agricultural water

management systems. . .

(4) As used in this section, the term:

* * *

(b) "Agricultural water management systems"

means farming and forestry water management or

irrigation systems and farm ponds which are

permitted pursuant to chapter 373 or which are

exempt from the permitting provisions of that

chapter.

The agricultural water management systems owned and operated by petitioners fall

within the definition of "agricultural water management systems" set forth in

Section 403.927(4)(b), Florida Statutes.

12. Consistent with the provisions of Section 403.088, Florida Statutes,

Rule 17-4.070(1), Florida Administrative Code, provides:

(1) A permit shall be issued to the applicant

upon such conditions as the Department may

direct, only if the applicant affirmatively

provides the Department with reasonable

assurance based on plans, test results,

installation of pollution control equipment,

or other information, that the construction,

expansion, modification, operation, or

activity of the installation will not

discharge, emit or cause pollution in

contravention of Department standards or

rules. However, for discharges of wastes to

water, the Department may issue temporary

operation permits under the criteria set forth

in Section 403.088(3), F.S.

Chapter 17-4, Florida Administrative Code, further delineates the specific

procedures to obtain permits and the specific standards for issuing and denying

permits.

13. In July 1988, petitioners applied for an extension of their TOPs. The

monthly water quality monitoring data petitioners had submitted to the

Department reflected, however, that the discharges from petitioners' systems

were in contravention of the Department's rules and standards. Accordingly,

since petitioners had not met the obligations set forth in the TOPs, the

Department advised petitioners that the TOPs would not be extended and that they

were required to apply for new operating permits.

The new permit applications

14. Following the Department's refusal to extend the TOPs, petitioners

filed applications for operating permits for their discharges, and the

Department, consistent with its previous reviews, undertook its review pursuant

to Chapter 403, Florida Statutes, and Chapter 17-4, Florida Administrative Code.

Effective July 1, 1989, however, Part IV of Chapter 373, Florida Statutes, was

amended with regard to, inter alia, the definition of stormwater management

systems so as to include pumped discharges such as petitioners.

15. Further, pertinent to this case, Part IV of Chapter 373 provided:

373.416 Permits for maintenance or

operation--

(1) . . . the governing board or department

may require such permits and impose such

reasonable conditions as are necessary to

assure that the operation or maintenance of

any stormwater management system, dam,

impoundment, reservoir, appurtenant work, or

works will comply with the provisions of this

part and applicable rules promulgated thereto,

will not be inconsistent with the overall

objectives of the district, and will not be

harmful to the water resources of the

district.

373.418 Rulemaking; preservation of existing

authority.--

(1) It is the intent of the Legislature that

stormwater management systems be regulated

under this part incorporating all of existing

requirements contained in or adopted pursuant

to chapters 373 and 403. Neither the

department nor governing boards are limited

or prohibited from amending any regulatory

requirement applicable to stormwater

management systems in accordance with the

provisions of this part. It is further the

intent of the Legislature that all current

exemptions under chapters 373 and 403 shall

remain in full force and effect and that this

act shall not be construed to remove or alter

these exemptions.

(2) In order to preserve existing

requirements, all rules of the department or

governing boards existing on July 1, 1989, .

. . shall be applicable to stormwater

management systems and continue in full force

and effect unless amended or replaced by

future rulemaking in accordance with this

part.

16. Upon the amendment of Part IV, Chapter 373, Florida Statutes,

petitioners amended their pending applications to reflect their desire that the

applications be processed pursuant to the newly amended provisions of Part IV,

Chapter 373, as they relate to stormwater management systems. The Department,

acknowledging the amendments to chapter 373, processed the applications

accordingly; however, in view of the provisions of section 373.418(1) which

"incorporat[ed] all of the existing requirements contained in or adopted

pursuant to chapters 373 and 403," the Department did not in fact change the

standards by which these applications were reviewed, to wit: Chapter 403,

Florida Statutes, and Chapter 17-4, Florida Administrative Code.

17. On March 14, 1991, the Department issued a notice of permit denial to

each petitioner. In each of the denials, the Department noted the provisions of

Section 373.416(1), Florida Statutes, ["the . . . department may require such

permits and impose such reasonable conditions as are necessary to assure that

the operation . . . of any stormwater system . . . will comply with the

provisions of this part and applicable rules promulgated thereto . . . and will

not be harmful to the water resources of the district"] and Section 373.418(1),

Florida Statutes, ["incorporating all of existing requirements contained in or

adopted pursuant to chapters 373 and 403"], and concluded that the applications

should be denied for the following reasons:

The Department has completed its review of the

subject application, supporting documents and

the discharge monitoring reports submitted by

the applicant as required by Department Permit

NO. IT50- 125678. Based on this review the

Department has made the determination that the

applicant has failed to provide reasonable

assurances that the discharge from the

agricultural stormwater management system

proposed by the applicant will be in

compliance with the aforementioned sections of

Chapter 373, F.S. and the Class I Surface

Water Quality Standards adopted by the

Department pursuant to Chapter 403.061, F.S.

and contained in Section 17-302.540, F.A.C.

and the Antidegradation Policy for Surface

Water Quality contained in Section

17-302.300(3), F.A.C.

18. The Department's action is facially consistent with the provisions of

chapter 373, and chapter 403 incorporated therein, as well as the existing rules

adopted pursuant to such chapters which require, whether the system be exempt or

not, that discharges comply with state water quality standards. See e.g.,

Sections 373.416, 373.418, 403.088 and 403.927, Florida Statutes, and Rules 17-

4.070(1), 17-25.060, 17-25.080, and Chapter 40E-4,

Florida Administrative Code.

19. Availing themselves of the point of entry accorded by the notice of

permit denial, petitioners filed a request for administrative hearing, pursuant

to Section 120.57, Florida Statutes, to contest the denial of their

applications. Such proceedings are currently pending before the Division of

Administrative Hearings, but distinct from this proceeding under Section

120.535, Florida Statutes.

The Section 120.535 challenge

20. The challenged policy, as alleged in paragraphs 19 of the petition,

purports to be as follows:

The Department has made a policy

determination, which draws a distinction

between "agricultural stormwater discharges"

and other stormwater discharges regulated by

Chapter 373, Florida Statutes, and the rules

promulgated pursuant thereto. The Department

has identified the Petitioners' discharge as

"agricultural stormwater discharges" and has

subjected the petitioners to a set of rules

and criteria that the Department has not

adopted but which are apparently different

from the general stormwater regulations

adopted pursuant to Chapter 373, Florida

Statutes.

Such articulation of the challenged policy is substantially identical to

petitioner's statement of the issue identified in their proposed final order, as

follows:

The issue for determination in this case is

whether the Department's policy to apply

criteria different from that contained in its

"Regulation of Stormwater Discharge" Rule

17-25, Florida Administrative Code, and/or

Rule 40E-4, Florida Administrative Code, of

the South Florida Water Management District

(SFWMD), when seeking to regulate an

agricultural stormwater management system, as

defined in Chapter 373, Part IV, Florida

Statutes, constitutes a rule . . . .

21. The premises for the petitioners' challenge are their contention that

the Department has drawn a distinction between the agricultural stormwater

discharges of petitioners and other stormwater discharges, which is not

supported by statutory or duly promulgated rules, and that the Department has

applied criteria, which are not supported by statutory or duly promulgated

rules, to evaluate petitioners' applications. The credible proof fails,

however, to support petitioners' premises.

22. Contrary to the assertions raised by petitioners, the statutory and

duly promulgated rules heretofore discussed provide ample authority for the

Department's action, and there is no credible proof that the Department is

applying any criteria that is not apparent from an application or reading of

such statutes and existing rules. Indeed, Rule 17-25.060(2), Florida

Administrative Code, provides:

The permit requirements of Chapter 17-4 or

other applicable rules, rather than those of

this chapter, shall apply to discharges which

are a combination of stormwater and industrial

or domestic wastewater or which are otherwise

contaminated by non-stormwater sources unless:

(a) the stormwater discharge facility is

capable of providing treatment of the non-

stormwater component sufficient to meet state

water quality standards . . . .

Here, the proof is compelling that the Department's decision was predicated on

existing statutory and rule authority, and that it did not apply any criteria

not promulgated as a rule or not contained within existing statutory authority

to evaluate petitioners' applications, or treat petitioners' discharges

differently than any other stormwater discharge contaminated by non-stormwater

sources.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, these proceedings. Section 120.535,

Florida Statutes.

24. Pertinent to this case, Section 120.535, Florida Statutes, provides:

(1) Rulemaking is not a matter of agency

discretion. Each agency statement defined as

a rule under s. 120.52(16) shall be adopted by

the rulemaking procedure provided by s. 120.54

as soon as feasible and practicable. . .

(2)(a) Any person substantially affected by

an agency statement may seek an administrative

determination that the statement violates

subsection (1). A petition for an

administrative determination of an agency

statement shall be in writing and shall state

with particularity facts sufficient to show:

* * *

2. That the statement constitutes a rule

under s. 120.52(16), in which case the

petition shall include the text of the

statement or a description of the statement.

25. Section 120.52(16), Florida Statutes, defines "rule" to mean:

. . . each agency statement of general

applicability that implements, interprets, or

prescribes law or policy or describes the

organization, procedure, or practice

requirements of an agency and includes any

form which imposes any requirement or solicits

any information not required by statute or by

an existing rule. The term also includes the

amendment or repeal of a rule . . .

26. Here, petitioners are seeking an administrative determination that the

following description is an "agency statement" that violates Section 120.535(1),

Florida Statutes:

The Department has made a policy

determination, which draws a distinction

between "agricultural stormwater discharges"

and other stormwater discharges regulated by

Chapter 373, Florida Statutes, and the rules

promulgated pursuant thereto. The Department

has identified the Petitioners' discharges as

"agricultural stormwater discharges" and has

subjected the Petitioners to a set of rules

and criteria that the Department has not

adopted but which are apparently different

from the general stormwater regulations

adopted pursuant to Chapter 373, Florida

Statutes.

As the challenger, the burden is upon the petitioners to demonstrate, by a

preponderance of the evidence, that such policy exists and that such policy

constitutes a rule as defined by Section 120.52(16), Florida Statutes. Section

120.535, Florida Statutes, Humana, Inc. v. Department of Health and

Rehabilitative Services, 469 So.2d 889 (Fla. 1st DCA 1985), and Agrico Chemical

Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA

1978).

27. Here, the proof fails to support the conclusions that the Department

has any policy, not predicated on existing statutory and rule authority, which

treats petitioners' discharges in a manner different from other stormwater

discharges that are contaminated by non-stormwater sources, or that the

Department's basis for review of petitioners' applications are not based on

requirements currently required by statute or existing rule. Under such

circumstances, petitioners have failed to demonstrate a violation of Section

120.535(1), Florida Statutes. See, St. Francis Hospital, Inc. v. Department of

Health and Rehabilitative Services, 553 So.2d 1351, 1354 (Fla. 1st DCA 1989),

["We recognize that an agency interpretation of a statute which simply

reiterates the legislature's statutory mandate and does not place upon the

statute an interpretation that is not readily apparent from its literal reading,

nor in and of itself purport to create rights, or require compliance, or to

otherwise have the direct and consistent effect of law, is not an unpromulgated

rule, and actions based upon such an interpretation are permissible without

requiring an agency to go through rulemaking."]

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that petitioners have failed to demonstrate a violation of Section

120.535(1), Florida Statutes, and their petition is denied.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th day of

June 1993.

___________________________________

WILLIAM J. KENDRICK

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 29th day of June 1993.

ENDNOTES

1/ By agreement of the parties, the record remained open to accord the parties

the opportunity to depose Randall Armstrong, and to file such deposition as a

late- filed exhibit. The transcript and video of Mr. Armstrong was filed with

the Division of Administrative Hearings on May 28, 1993, marked petitioner's

exhibits 23A and 23B respectively, and received into evidence.

2/ From the outset, petitioners conceeded that Chapter 403, Florida Statutes,

and Department rules mandated agency protection of adopted water quality

standards. However, petitioners contested the Department's authority to require

permits based on Chapter 403, initially taking the position that no permits

could be required but, if any regulatory permit were appropriate, petitioners

should be treated as a storm water source. The Department rejected this

position, contended that the pumping was not stormwater, and asserted that

"[t]he department has consistently taken this position with other similar pumped

discharges even through the original source of the water that is discharged is

rainwater. The basis for this position is outlined in the Final Order in DER v.

Deseret Ranches of Florida, Inc., DOAH Case No. 78- 2040." Accordingly, the

Department proposed to regulate the discharge under its general regulatory

authority. The propriety of the Department's treatment of the subject

discharges was not formally contested with regard to the issuance of the TOPs,

and appears consistent with Rules 17-25.060 and 17-25.080, Florida

Administrative Code.

APPENDIX

Petitioners' proposed findings of fact are addressed as follows:

1. Adopted in paragraph 6.

2-6. Adopted in paragraphs 1-5.

7. Addressed in paragraph 8.

8. Addressed in paragraph 7, otherwise not relevant.

9. Addressed in paragraphs 9 and 10 and endnote 2.

10 & 11. Addressed in endnote 2, otherwise not relevant.

12 & 13. Addressed in paragraphs 10, 11, 13 and 22.

14. Addressed in paragraphs 10-13, 21, 22, and endnote 2.

15. While the Department may consider it desirable to

promulgate a design or performance based rule, and may

be addressing such issue currently, it is not relevant

to this Section 120.535 proceeding, or to the

application of existing rules to petitioners'

discharges.

16. Rejected as unsupported by the credible proof. The

Department is permitting the discharge under existing

authority. See paragraphs 10-13, 21, 22 and endnote 2.

While the TOP's may have required petitioners to

reevaluate their systems as a means of meeting

Department standards, such requirement is consistent

with the provisions of Section 403.088 by which

petitioners gained their TOP's and is a potential

option available to petitioners to achieve a discharge

that meets Department standards. It is, however,

petitioners' option to formulate an appropriate

methodology to meet water quality standards,

recognizing their obligation to meet such standards.

17. Addressed in paragraph 14, otherwise previously

addressed.

18. Addressed in paragraph 16.

19. Not relevant.

20. While the Department may not have adopted any new rules

to address the amendments to Chapter 373, such was not

necessary. See paragraph 16. The memorandum cited does

not impose criteria upon petitioners but, rather,

delineates within the Department which section will

review the applications. As such, it is not relevant

to this Section 120.535 proceeding as phrased by

petitioners. See paragraph 20.

21. To the extent pertinent, addressed in paragraphs 10-13,

15, 21, 22, and endnote 2.

22. Accepted, but not shown to lack support in existing

statutory and rule authority. See paragraphs 10-13, 15,

21, 22 and endnote 2.

23-25. Rejected as argumentative or unsupported by the

credible proof. See paragraphs 10-13, 15, 21, 22 and

endnote 2.

26. Subordinate and misleading. See paragraph 22.

27 & 28. Rejected as argumentative and not supported by the

proof. See paragraph 22 and endnote 2.

29. Addressed in paragraph 15, otherwise rejected as

argument.

30 & 31. Addressed in paragraph 22 and endnote 2, otherwise

argumentative. Specifically, Rule 17-25.060(2),

Florida Administrative Code, accords authority to the

Department's evaluation.

32. Rule citations are accurate, however, see Rule 17-

25.060(2), Florida Administrative Code, and paragraphs

10-13, 15, 21, 22 and endnote 2.

33. Addressed in paragraphs 21 and 22, otherwise rejected

as contrary to the proof.

34. To the extent it is not a conclusion of law, addressed

in paragraphs 21 and 22. See also response to

paragraph 15.

35. Addressed in paragraphs 10-13, 15, 21, 22, and endnote

2.

36 & 37. Repetitious. Moreover, addressed in paragraphs 10-13,

15, 21, 22 and endnote 2.

38-42. Generally not relevant to the issue as phrased by

petitioners. Moreover, as to delegation, since the

provisions of the delegation agreement adopted by Rule

17-101.040(12)(a)4, Florida Administrative Code, are

not of record, the propriety of the Department

retaining jurisdiction is far from settled. Such

matter is, however, at issue in the Section 120.57

proceeding.

43 & 44. Addressed in paragraphs 17 and 22, and response to

paragraphs 38-42, otherwise contrary to the proof.

45. Addressed in paragraphs 21 and 22.

46. Rejected as conclusion of law or unnecessary to the

result reached.

47-50. To the extent necessary, addressed in paragraphs 21 and

22, and the response to paragraph 15.

The Department's proposed findings of fact are addressed as follows:

1 & 2. Addressed in paragraphs 1-6.

3. Addressed in paragraph 7.

4. Addressed in paragraph 8.

5. Addressed in paragraph 9.

6 & 7. Addressed in paragraph 10.

8-11. Addressed in paragraphs 11 and 12.

12 & 13. Addressed in paragraph 13.

14. Addressed in paragraphs 12 and 13.

15-17. Addressed in paragraphs 14 and 15.

18. Addressed in paragraph 16.

19. Addressed in paragraph 17.

20-24. Addressed in paragraphs 13, 18, and 20-22, otherwise

rejected as subordinate or recitation of testimony.

COPIES FURNISHED:

Kevin S. Hennessy, Esquire

Messer, Vickers, Caparello,

Madsen, Lewis & Metz

2000 Palm Beach Lakes Boulevard

Suite 900

West Palm Beach, Florida 33409

Parker D. Thomson, Esquire

Thomson, Muraro, Razook & Hart, P.A.

One Southeast Third Avenue

Suite 1700

Miami, Florida 33131

Lori E. H. Killinger

Jennifer L. Mason

Assistant General Counsel

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Virginia B. Wetherell, Secretary

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Daniel H. Thompson, Esquire

Acting General Counsel

Department of Environmental Regulation

2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Carroll Webb, Executive Director

Administrative Procedures Committee

120 Holland Building

Tallahassee, Florida 32399-1300

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 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.