98-004163RX Royal Palm Beach Colony, L.P. vs. South Florida Water Management District Status: Closed Recommended Order on Tuesday, March 9, 1999.

Summary: Rules on secondary impacts and no notice general permits are valid. South Florida Water Management District not limited to considering direct impacts.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROYAL PALM BEACH COLONY, L.P., )

)

Petitioner, )

)

vs. ) Case No. 98-4163RX

)

SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent, )

)

and )

)

1000 FRIENDS OF FLORIDA, INC., )

)

Intervenor. )

__________________________________)

FINAL ORDER

Pursuant to notice, a formal hearing was held in this case

on October 20-22, 1998, and November 9 and 10, 1998, at West Palm

Beach, Florida, before SUSAN B. KIRKLAND, a duly designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Alfred J. Malefatto, Esquire

Theresa Moore, Esquire

Greenberg, Traurig, Hoffman,

Lipoff & Quentel, P.A.

Phillips Point East Tower, Suite 310

777 South Flagler Drive

West Palm Beach, Florida 33401

For Respondent: Douglas MacLaughlin, Esquire

Marcy I. LaHart, Esquire

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

For Intervenor: Terrel Arline, Esquire

Post Office Box 5948

Tallahassee, Florida 32314-5948

STATEMENT OF THE ISSUES

Whether Rules 40E-400.315(f) and 40E-4.301(f), Florida

Administrative Code, and Section 4.1.1(f) and 4.2.7(a)-(d), Basis

of Review Handbook for Environmental Resource Permit Application,

are an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

On September 28, 1998, Petitioner, Royal Palm Beach Colony,

L.P. (Royal Palm), petitioned for an administrative determination

of the validity of existing Rules 40E-400.315(1)(f), and 40E-

4.301(1)(f), Florida Administrative Code, and Sections 4.1.1(f)

and 4.2.7(a)-(d), Basis of Review Handbook for Environmental

Resource Permit Application.

The rule challenge was consolidated with a pending Section

120.57(1) proceeding concerning the denial of No-Notice General

Permits by the Respondent, South Florida Water Management

District (SFWMD) for three lots owned by Royal Palm.

Intervenor 1000 Friends of Florida, filed a petition for

leave to intervene, which was granted.

At the final hearing of the consolidated cases, Royal Palm

presented the following witnesses: Randy Rieger, K. Daniel

Shalloway, Joesph A. Pike, James M. Hudgens, J. Bradley Melko,

Jay Foy, and Sam B. Upchurch. Petitioner's Exhibits 1-68 were

admitted in evidence.

SFWMD presented the testimony of the following witnesses:

Terrie Bates, Robert Robbins, Anthony Waterhouse, Richard Orth,

and Robert Mitchell. Respondent's Exhibits 1-28 were admitted in

evidence.

Joint Exhibits 1-4 were admitted in evidence. 1000 Friends

of Florida, Inc.'s Exhibits 1-3 were admitted in evidence.

Official recognition was taken of Chapters 40E-4 and 40E-400,

Florida Administrative Code, the "Basis of Review for

Environmental Resource Permit Application within the South

Florida Water Management District - November 1996," and

Chapter 373, Part IV, Florida Statutes.

The parties were to file their proposed orders within 30

days of the filing of the transcript, which was filed on

November 23, 1998. Petitioner requested and was granted two

extensions of time to file the proposed orders. Respondent

requested an additional extension of time to file proposed

orders, and the time for filing proposed orders was extended to

January 19, 1999. The parties' proposed orders have been

considered in rendering this Final Order.

FINDINGS OF FACT

1. Respondent, South Florida Water Management District

(SFWMD), is a public corporation existing by virtue of

Chapter 25270, Laws of Florida, 1949, and operating pursuant to

Chapter 373, Florida Statutes, and Title 40E, Florida

Administrative Code, as a multipurpose water management district,

with its principal office in West Palm Beach, Florida.

2. Petitioner, Royal Palm Beach Colony, L.P. (Royal Palm),

owns three lots in Unit 11 of the Indian Trail Improvement

District, located in northwest Palm Beach County, Florida.

3. Intervenor 1000 Friends of Florida, Inc., is a not-for-

profit, tax exempt membership corporation, organized and existing

under the laws of the State of Florida.

4. By letter dated March 19, 1998, Royal Palm notified

SFWMD that Royal Palm was entitled to No Notice General Permits

for Activities in Uplands (NNGP) for three of the lots which it

owns in Unit 11, Lots 61, 245, and 247.

5. Royal Palm intends to build one single-family home on

each of the lots. The proposed development of the lots would

include individual septic tanks and stormwater retention ponds.

6. By letter dated April 9, 1998, SFWMD informed Royal Palm

that SFWMD staff had determined that the three lots do not

qualify for no-notice general permits for single family home

construction.

7. As part of the basis for denial of the NNGPs, the

April 9, 1998, letter stated:

Reasonable assurances have not been provided

to show that the proposed system or project

is not part of a larger common plan of

development. See Rule 40E-400.315(1)(f),

Fla. Admin. Code. Royal Palm Beach Colony is

the owner of approximately 170 lots within

Unit 11 of the Indian Trail Improvement

District, and the three proposed lots appear

to be merely part of this large common plan

of development.

8. As an additional basis for denial, the April 9 letter

stated:

Reasonable assurances have not been provided

to show that construction and/or operation of

the proposed system will not cause adverse

secondary impacts to the water resources,

including, but not limited to, significant

interference with the construction and

operation of a regional stormwater system

needed for adequate flood protection and

stormwater treatment in the Unit 11 area.

See Rule 40E-4.301(1)(f), Fla. Admin. Code.

9. Royal Palm filed a Petition for Administrative

Determination of the Invalidity of the above-cited rules, Rule

40E-400.315(1)(f) and Rule 40E-4.301(1)(f), Florida

Administrative Code. Also being challenged are those portions of

SFWMD's "Basis of Review Handbook for Environmental Resource

Permit Applications" (BOR), which discuss secondary impacts,

Sections 4.1.1(f) and 4.2.7(a)-(d).

10. SFWMD's Environmental Resource Permit (ERP) program has

four different types of permits: NNGPs, noticed general permits,

standard general permits, and individual permits. The permits

are grouped according to degree of potential impact and,

correspondingly, according to degree of regulatory review.

11. NNGPs are for very minor activities that have no

potential to cause adverse impacts or harm to water resources

provided that the criteria in the rule are met. A NNGP typically

receives no review by SFWMD staff. An applicant reviews the

criteria, and if the proposed project meets the criteria the

project may be undertaken without notification to or approval by

SFWMD.

12. The degree of regulatory review for water management

systems that do not qualify for NNGPs will vary. A system that

qualifies for a noticed general permit pursuant to Rule 40E-400,

Subpart C, Florida Administrative Code, will be reviewed within

30 days of receipt of notice, and if the criteria listed in the

general permit rule are met it is presumed that the project meets

all SFWMD's standards and is permittable. If the system does not

fit within a noticed general permit and if the proposed system is

less than 100 acres total size or has less than one acre of

wetland impact, the project will be reviewed as a standard

general permit pursuant to Rule 40E-40, Florida Administrative

Code. Standard general permits are reviewed and issued by SFWMD

staff, and unlike the noticed general permits, there are no

presumptions that if certain limited criteria are met that all

the SFWMD standards are met. The proposed project is reviewed to

determine if reasonable assurances have been provided that all

standards have been met. Finally, if a proposed water management

system is greater than 100 acres or entails more than one acre of

filled wetlands, an individual environmental resource permit is

required. As with standard general permits, these applications

are reviewed to determine if the applicant has provided

reasonable assurance that all SFWMD standards are met.

Individual environmental resource permits require permit

authorization from SFWMD's governing board.

13. Unlike the noticed general, the standard general, and

the individual environmental resource permits, the NNGP does not

require any regulatory review. An individual minor system

fitting within the specific criteria for a NNGP can proceed with

the activity without noticing SFWMD. Such a permit is very

similar to an exemption from the permitting requirements.

14. The use of a NNGP was not intended for approval of

water management systems that contain shared or common water

management facilities, such as a common drainage system for a

housing development. Such systems require regulatory review to

ensure that the system does not cause adverse water quality,

water quantity, or environmental impacts.

15. To allow a series of individual projects to have

authorization to proceed under a NNGP, when together they are

part of a larger common plan of development or sale, cumulatively

would have a significant adverse impact to flood protection and

environmental protection. Such master systems are to have

regulatory review under one of the other three SFWMD permits.

Thus, the requirement that a project permitted pursuant to a NNGP

not be part of a larger common development or sale was placed in

Rule 40E-400.315(1)(f), Florida Administrative Code. Without

such a requirement, it would be possible to development a larger

system without regulatory review by permitting individual systems

within the larger system using a NNGP.

16. The term "not part of a larger common plan of

development or sale" contained in Rule 40E-400.315(1)(f), Florida

Administrative Code, originated in Section 403.813(2)(q), Florida

Statutes, which contains exemptions from permitting under Chapter

373, Florida Statues. In developing Rule 40E-400.315(1)(f),

SFWMD did not further define the term because the plain meaning

of the term was deemed adequate, as it was by the Florida

Legislature when it did not define the same term in Section

403.813(2)(q).

17. The plain meaning of the term is consistent with

SFWMD's regulatory scheme for permitting water management

systems. The most minimal permit authorization, the NNGP, should

not authorize projects that are part of a larger common plan of

development or sale because the larger projects are more likely

to have larger water resource impacts.

18. Interpretations of the term "part of a larger common

plan of development" by staff from SFWMD are consistent. The

interpretations indicate that the individual project and the

larger master plan have shared or common water management

systems. The focus is on whether common infrastructure would be

needed to carry out the individual project.

19. In its permitting program, SFWMD looks at all adverse

impacts to water resources, whether direct, secondary, or

cumulative. When evaluating secondary impacts, SFWMD looks for

the same adverse impacts on water resources that it would for

direct impacts, such as adverse impacts on the functions of

wetlands or surface waters or adverse impacts on water quality.

20. SFWMD interprets a secondary impact as some impact,

other than a direct impact in the footprint of the proposed

project, which is closely linked and causally tied to proposed

activity to be permitted.

21. Section 4.2.7, BOR sets guidelines for how SFWMD

considers secondary impacts from water management systems. In

developing Section 4.2.7, SFWMD applied existing case law

concerning secondary impacts.

22. Section 4.2.7(a), BOR, regulates construction,

alteration, and reasonably expected uses of a proposed system so

that the functions of wetlands to fish and wildlife and listed

species are protected from adverse impacts caused by activities

in adjacent uplands. Such secondary impacts may result, for

example, from disturbance during adjacent upland construction or

disturbance due to the close proximity of human habitation to a

wetland where none previously existed. Section 4.2.7(a), BOR,

gives examples of secondary impacts, and provides a mechanism in

the form of a buffer that creates a presumption that provides

reasonable assurance that secondary impacts to habitat functions

of wetlands will not be adverse, assuming a wetland is not being

used by a listed species for nesting, denning, or significant

feeding habitat.

23. Section 4.2.7(b), BOR, protects existing upland nesting

or denning sites of listed aquatic or wetland dependent species

and the adjacent uplands which are necessary to enable these

nests or dens to be used successfully by such species.

24. Section 4.2.7(c), BOR, looks at potential adverse

secondary impacts to significant historical and archeological

resources. The intent of the section is to allow consideration

of secondary impacts of a project that may have a very minor

impact from construction, but more serious implications once in

operation. For example, a water control structure that may have

a footprint of only a tenth of an acre may result in greater

water velocities that would harm submerged archeological

resources.

25. Section 4.2.7(d), BOR, considers specific water

resource impacts from future project phases and activities that

will be very closely linked and causally related to the proposed

system. This section seeks to prevent future impacts that may be

necessitated by a proposed project design. As part of the

analysis, SFWMD will consider the impacts of the intended or

reasonably expected uses of future activities on water quality

and wetland and other surface water functions.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.56, Florida Statutes.

27. Under Section 120.56(3), Florida Statutes, the party

challenging existing rules has the ultimate burden of

establishing that the rule is invalid. See St. Johns River Water

Management District v. Consolidated-Tomoka Land Co. , 717 So. 2d

72 (Fla. 1st DCA 1998). Therefore, the case law which presumes a

rule to be valid until the challenger establishes the rule is

invalid is applicable when considering challenges to existing

rules. Id. at 76.

28. Royal Palm challenges Rules 40E-400.315(1)(f) and 40E-

4.301(1)(f), Florida Administrative Code, and Sections 4.4.(f)

and 4.2.7 of the District's Basis of Review incorporated by

reference in Rule 40E-4.091, Florida Administrative Code, under

subsections 120.53(8)(c) and (d), Florida Statutes, which define

"invalid exercise of delegated legislative authority" as:

[A]n 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 of the following

applies:

* * *

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required by

s. 120.54(3)(a)1.;

(d) The rule is vague, fails to

establish adequate standards for agency

decisions, or vests unbridled discretion in

the agency . . . .

29. Rule 40E-400.315(1)(f), Florida Administrative Code,

provides:

(1) A no notice general permit is

hereby granted for the construction or

alteration of minor systems located entirely

within uplands, provided that the proposed

system meets all of the following criteria:

* * *

(f) the project is not part of the

larger common plan of development or sale.

30. The general test for vagueness of a rule is whether

persons of common intelligence are required to guess at the

rule's meaning and differ as to the rule's interpretation. State

v. Cumming , 365 So. 2d 153 (Fla. 1978); St. Petersburg v.

Pinellas County Benevolent Association , 414 So. 2d 293 (Fla. 2d

DCA 1982). The test for vagueness is more lenient where an

administrative rule, rather than a penal statute is being

examined. Id. at 295. A rule vests unbridled discretion in an

agency when it fails to establish adequate standards and reserves

to the agency the arbitrary power to determine private rights.

Brown v. Holland , 125 So. 2d 749 (Fla. 1960).

31. The term "not part of a larger common plan of

development or sale" is not vague and can be construed according

to its plain and ordinary meaning. SFWMD has applied the plain

and ordinary meaning when it prohibits the use of a NNGP for

individual projects which share infrastructure with a larger

project. By using the ordinary meaning of the term, SFWMD has

adequate standards for its decision. Rule 40E-400.315(1)(f),

Florida Administrative Code, does not vest unbridled discretion

with SFWMD.

32. The laws being implemented by Rule 40E-400.315(1)(f),

Florida Administrative Code, are listed in the rule's history

note as Sections 373.118, 373.414, 373.416, and 373.426, Florida

Statutes.

33. Section 373.118, Florida Statutes, provides:

(1) The governing board may adopt rules

establishing a general permit system, which

have, either singly or cumulatively, a

minimal adverse impact on water resources of

the District. Such rules shall specify

design or performance criteria which, if

applied, would result in compliance with the

conditions for issuance of permits

established in this chapter and District

rules.

34. Section 373.413, Florida Statutes, concerns permits for

construction and states:

(1) Except for exemptions set forth herein,

the governing board or the department may

require such permits and impose such

reasonable conditions as are necessary to

assure the construction or alteration of any

stormwater management system, dam,

impoundment, reservoir, appurtenant work, or

works will comply with the provisions of this

part and applicable rules and will not be

harmful to the water resources of the

district. . . .

Section 373.416, Florida Statutes, contains the same language for

permits for maintenance and operation. Section 373.426, Florida

Statutes, has similar language for permitting requirements for

abandonment of systems.

35. Rule 40E-400.315(1)(f), Florida Administrative Code,

does not enlarge, modify, or contravene the statutes listed in

its history notes. The limitation on the use of NNGP for

projects which are not part of a larger common plan of

development or sale is necessary in order to comply with the

statutory requirements of allowing no more than a minimal impact,

singly or cumulatively, on the water resources of SFWMD and that

the stormwater management systems within SFWMD not be harmful to

the water resources of SFWMD.

36. Rule 40E-400.315(1)(f), Florida Administrative Code, is

not an invalid exercise of delegated legislative authority.

37. Rule 40E-4.301(1)(f), Florida Administrative Code,

provides:

(1) In order to obtain a standard

general individual, or conceptual approval

permit under this chapter or Chapter 40E-40,

F.A.C., an applicant must provide reasonable

assurance that the construction, alteration,

operation, maintenance, removal or

abandonment of a surface water management

system:

* * *

(f) will not cause adverse secondary

impact to the water resources.

38. Section 4.1.1(f) of the BOR provides:

The District addresses the conservation of

these beneficial functions in the permitting

process by requiring applicants to provide

reasonable assurances that the following

conditions for issuance of permits, set forth

in Sections 40E-4.301 (Conditions for

Issuance) and 40E-4.302 (Additional

Conditions for Issuance), F.A.C., are met.

Applicants must provide reasonable assurances

that:

* * *

(f) a regulated activity will not cause

adverse secondary impacts to the water

resources (paragraph 40E-301(1)(f), F.A.C.)

(see subsection 4.2.7);

39. Section 4.2.7(a)-(d), BOR, provides:

Pursuant to paragraph 4.1.1(f), an applicant

must provide reasonable assurances that a

regulated activity will not cause adverse

secondary impacts to the water resource, as

described in paragraphs (a) through (d),

below. Aquatic or wetland dependent fish and

wildlife are an integral part of the water

resources which the District is authorized to

protect under Part IV, Chapter 373, F.S.

Those aquatic or wetland dependent species

which are listed as threatened, endangered,

or of special concern are particularly in

need of protection.

A proposed system shall be reviewed under

this criterion by evaluating the impacts to:

wetland and surface water functions

identified in subsection 4.2.2; water

quality; upland habitat for aquatic or

wetland dependent listed species; and

historical and archaeological resources.

Deminimis or remotely related secondary

impacts will not be considered. Applicants

may propose measures such as preservation to

prevent secondary impacts. Such preservation

shall comply with the land preservation

provisions of subsection 4.3.8. If such

secondary impacts can not be prevented, the

applicant may propose mitigation measures as

provided for in subsections 4.3 through

4.3.8.

The secondary impact criterion consists of

the following four parts:

(a) An applicant shall provide

reasonable assurance that the secondary

impacts from the construction, alteration,

and intended or reasonably expected uses of a

proposed system will not cause violations of

water quality standards or adverse impacts to

the functions of wetlands or other surface

waters, as described in subsection 4.2.2.

Impacts such as boat traffic generated by a

proposed dock, boat ramp or dry dock

facility, which causes an increased threat of

collision with manatees; impacts to wildlife

from vehicles using proposed roads in

wetlands or surface waters; impacts to water

quality associated with the use of septic

tanks or propeller dredging by boats and

wakes from boats; and impacts associated with

docking facilities as described in paragraphs

4.2.4.3(f) and (h), will be considered

relative to the specific activities proposed

and the potential for such impacts. Impacts

of groundwater withdrawals upon wetlands and

other surface waters that result from the use

of wells permitted pursuant to Chapter 40E-2,

F.A.C., shall not be considered under rules

adopted pursuant to Part IV, Chapter 373,

F.S., since these impacts are considered in

the consumptive use permit application

process.

Secondary impacts to the habitat functions of

wetlands associated with adjacent upland

activities will not be considered adverse if

buffers, with a minimum width of 15' and an

average width of 25', are provided abutting

those wetlands that will remain under the

permitted design, unless additional measures

are needed for protection of wetlands used by

listed species for nesting, denning, or

critically important feeding habitat. The

mere fact that a species is listed does not

imply that all of its feeding habitat is

critically important. Buffers shall remain

in an undisturbed condition, except for

drainage features such as spreader swales and

discharge structures, provided the

construction or use of these features does

not adversely impact wetlands. Where an

applicant elects not to utilize buffers of

the above described dimensions, buffers of

different dimensions, measures other than

buffers or information may be proposed to

provide required reasonable assurance.

Deminimis or remotely related secondary

impacts such as changes in air quality due to

increased vehicular traffic associated with

road construction will not be considered

unacceptable.

(b) An applicant shall provide

reasonable assurance that the construction,

alteration, and intended or reasonably

expected uses of a system will not adversely

impact the ecological value of uplands to

aquatic or wetland dependent listed animal

species for enabling existing nesting or

denning by these species, but not including;

1. areas needed for foraging;

2. wildlife corridors, except for those

limited area of uplands necessary in ingress

and egress to the nest or den site from the

wetlands or other surface water;

Table 4.2.7-1 identifies those aquatic or

wetland dependent listed species that use

upland habitats for nesting or denning.

For those aquatic or wetland dependent listed

animal species for which habitat management

guidelines have been developed by the U.S.

Fish and Wildlife Service (USFWS) or the

Florida Game and Fresh Water Fish Commission

(FGFWFC), compliance with these guidelines

will provide reasonable assurance that the

proposed system will not adversely impact

upland habitat functions described in

paragraph (b). For those aquatic or wetland

dependent listed animal species for which

habitat management guidelines have not been

developed or in cases where an applicant does

not propose to use USFW or FGFWFC habitat

management guidelines, the applicant may

propose measures to mitigate adverse impacts

to upland habitat functions described in

paragraph (b), provided to aquatic or wetland

dependent listed animal species.

(c) In addition to evaluating the

impacts in the area of dredging and filling

in, on, or over wetlands or other surface

waters, and as part of the balancing review

under subsection 4.2.3, the District will

consider any other relevant activities that

are very closely linked and causally related

to any proposed dredging or filling which

will cause impacts to significant historical

and archaeological resources.

(d) An applicant shall provide

reasonable assurance that the following

future activities will not result in water

quality violations or adverse impacts to the

functions of wetlands and other surface

waters as described in subsection 4.2.2:

1. additional phases or expansion of

the proposed system for which plans have been

submitted to the District or other

governmental agencies; and

2. on-site and off-site activities

regulated under Part IV, Chapter 373, F.S.,

or activities described in section

403.813(2), F.S., that are very closely

linked and causally related to the proposed

system.

40. The laws being implemented by Rule 40E-400.301(1)(f),

Florida Administrative Code, are listed in the rule's history

notes as Sections 373.413, 373.416, and 373.426, Florida

Statutes. These cited statutes give SFWMD the authority to

regulate adverse impacts to the water resources of the State.

The statutes do not limit the impacts to direct impacts. A

secondary impact can also adversely impact water resources.

41. Petitioner argues that the statutes do not mention

secondary impacts; therefore, SFWMD has no authority to regulate

adverse secondary impacts. An express recitation of a term in

the enabling statute is not a prerequisite for a rule invoking

the range of powers granted to an agency by the statute. For

example, in upholding the validity of proposed rules that create

standards pertaining to recharge, runoff, and floodplain storage,

the First District Court of Appeal in Tomoka, supra , noted that

Section 120.52(8), Florida Statutes, does not require the

Legislature to refer to specific topics such as recharge, run-

off, and floodplain management in the enabling statutes. Rather,

the question is whether the rule falls within the range of powers

the Legislature has granted to the agency.

42. Case law supports the validity of SFWMD's rules

regulating secondary impacts to water resources. Prior to the

adoption of SFWMD's secondary impact rule, there was well

established case law that authorized review of secondary impacts.

Most of these cases involved interpretation of Sections 403.021

and 403.918, Florida Statutes, concerning the Department of

Environmental Protection's dredge and fill program prior to 1995.

The requirements and purposes stated in those statutes are

essentially the same as in Sections 373.016 and 373.414, Florida

Statutes. There was no mention of secondary impacts in Chapter

403, Florida Statutes, but the courts held that secondary impacts

to water resources were not a modification, enlargement, or

contravention of the statute. See Florida Power Corp. v. DER ,

605 So. 2d 149 (Fla. 1st DCA 1992) (DER may consider secondary

impacts involving removal of wetland vegetation and removal of

hydric soils as a result of installation and maintenance of a

powerline involving an application for fill in wetlands for power

poles.); Conservancy, Inc. v. A. Vernon Allen Builders , 580 So.

2d 772 (Fla. 1st DCA 1991), rev. den. 591 So. 2d 631 (Fla. 1991)

(DER may consider the impacts of contemplated development of

estate homes on a coastal barrier island in review of a permit

application for installation of a sewage pipeline system where

development of the 75 estate homes was not speculative and was

closely linked and casually related to the proposed dredging and

filling.); Cape Cave v. DER , 498 So. 2d 1309 (Fla. 1st DCA 1986)

(DER may consider the water quality impacts from septic tank

discharges when considering a dredge and fill and stormwater

permit for a development.); del Campo v. DER , 452 So. 2d 1004

(Fla. 1st DCA 1984) (Hearing Officer erroneously excluded

evidence of possible environmental impact on the island of a

proposed residential development during a hearing requiring a

dredge and fill permit for construction of a bridge to the

island.)

43. Rule 40E-400.301(1)(f), Florida Administrative Code,

and Sections 4.1.1(f) and 4.2 (a)-(d) of the BOR, do not enlarge,

modify, or contravene Sections 373.413, 373.416, and 373.426,

Florida Statutes.

44. When evaluating secondary impacts, SFWMD is considering

the same adverse impacts it would for direct impacts, such as not

meeting SFWMD's criteria for water quality, for effects on upland

habitat for aquatic and wetland dependent species, for effects on

wetland and surface water functions, and for historical and

archeological impacts. See Section 373.414(1), Florida Statutes,

and the introductory paragraph of Section 4.2.7, BOR.

45. Section 4.2.7, BOR, establishes a comprehensive

guideline describing secondary impacts, and how the SFWMD will

regulate secondary impacts when they are present. When SFWMD

adopted Section 4.2.7, it interpreted and applied existing case

law that had defined and authorized secondary impact

consideration for water related regulation. See Florida Power v.

DER , Conservancy, Inc. v. Vernon Allen Builder , Cape Cave v. DER ,

and del Campo v. DER , supra .

46. In Section 4.2.7(c), BOR, SFWMD will consider any

impacts "that are closely linked and causally related to any

proposed dredging and filling." This term comes directly from

the holding in Conservancy, Inc, , in which the court overruled a

Department of Environmental Regulation order holding that

secondary impacts did not apply. The court stated, "we disagree

with Appellee [DER] that the contemplated development of 75

estate homes is speculative and is not closely linked and

causally related to the proposed dredging and filling."

Conservancy, Inc. at 779.

47. Section 4.2.7(d), BOR, provides that SFWMD will

consider those future projects or activities which would not

occur "but for" the proposed system. In Conservancy, Inc. , the

court explains in great detail the development of the secondary

impact and cumulative impact in regulatory review. The court

notes that secondary impacts have been limited to those impacts

that may result from the permitted activity itself and that the

secondary impact can not be too "remote in distance or conceptual

relationship" from the permitted activity. Id. at 777, 778.

Considering future activities or projects that would not occur

but for the proposed system is consistent with case law.

48. Rule 40E-400.301(1)(f), Florida Administrative Code,

and Sections 4.1.1(f) and 4.2.7, BOR, are not vague, establish

adequate standards for SFWMD's decisions, and do not vest

unbridled discretion with SFWMD. The rule and sections from the

BOR are valid exercises of legislative delegated authority.

ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that Rules 40E-400.315(1)(f)and 40E-

400.301(f), Florida Administrative Code, and Sections 4.1.1(f)

and 4.2.7 of the Basis of Review for Environmental Resource

Permit Applications for the South Florida Water Management

District (1996), are valid exercises of delegated legislative

authority and the petition of Royal Palm Beach Colony, L.P., is

DENIED.

DONE AND ORDERED this 9th day of March, 1999, in

Tallahassee, Leon County, Florida.

___________________________________

SUSAN B. KIRKLAND

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of March, 1999.

COPIES FURNISHED:

Samuel H. Poole, III, Executive Director

South Florida Water

Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

Douglas H. MacLaughlin, Esquire

South Florida Water

Management District

3301 Gun Club Road

West Palm Beach, Florida 33406

Alfred J. Malefatto, Esquire

Teresa J. Moore, Esquire

Greenberg, Traurig, Hoffman,

Lipoff, Rosen & Quentel, P.A.

777 South Flagler Drive

Suite 300 East

West Palm Beach, Florida 33401

Terrell K. Arline, Esquire

1000 Friends of Florida

Post Office Box 5948

Tallahassee, Florida 32301

Charles F. Schoesch, Esquire

Caldwell & Pacetti

234 Royal Palm Way, Suite 300

Palm Beach, Florida 33480

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.