42-2.0132. Procedure for Filing Petitions from a Water Management District Order

(1) Review by the Commission is appellate in nature and shall be based solely on the record below unless the Commission determines that a remand for a formal evidentiary proceeding is necessary to develop additional findings of fact.

(2) Review by the Commission is appellate in nature and shall be based solely on the record below unless the Commission determines that a remand for a formal evidentiary proceeding is necessary to develop additional findings of fact.

(a) A request for review of an order or rule of a water management district pursuant to Section 373.114(1), F.S., shall be filed with the Secretary within 20 days after rendition of the order or adoption of the rule sought to be reviewed.

(b) A request for review of an order of the Department rendered pursuant to Section 373.114(2), F.S., requiring amendment or repeal of a water management district rule, shall be filed with the Secretary within 30 days of rendition.

(c) A request for review of any order or rule of the Department pursuant to Rule 42-2.0131, F.A.C., shall be filed with the Secretary within 20 days after adoption of the rule or rendition of the order sought to be reviewed.

(3) Simultaneous with filing, a copy of the request for review shall be served on the Secretary of the Department and all parties as provided in Rule 42-2.019, F.A.C.

(4) Within ten (10) days from receipt of the request for review, the Secretary shall determine whether the request for review is timely filed and sufficient. A request for review is sufficient if all elements of the request for review, as listed in either Rule 42-2.013 or paragraph 42-2.0131(2)(b), F.A.C., as applicable, are contained in the request for review. If the Secretary determines that the request for review does not contain the required elements, the Secretary shall notify the person requesting review, in writing, that the request is insufficient, identifying the missing element(s). The person requesting review shall have fifteen (15) days from the date of service of such written notice to file and serve the necessary additional information as provided in Rule 42-2.019, F.A.C. If the Secretary determines that the petition is still insufficient after the petitioner’s submittal of additional information within the fifteen day period, the Secretary shall again notify the person requesting review, in writing, that the request remains insufficient, identifying the missing element(s). The person requesting review shall have fifteen (15) days from the date of such written notice to file and serve the necessary additional information as provided in Rule 42-2.019, F.A.C. Failure to cure the deficiencies noted by the Secretary within the prescribed time periods shall be grounds for dismissal. A request for review which is determined to be insufficient by the Secretary shall not be considered to have been received for the purposes of this rule and Rules 42-2.013, 42-2.0131 and 42-2.015, F.A.C., until the Secretary has determined that the insufficiency is cured or the Department and the parties are otherwise notified by the Secretary.

(5) A request for review under Rule 42-2.013 or 42-2.0131, F.A.C., is not a precondition to seeking judicial review pursuant to Section 120.68, F.S., or seeking an administrative determination of rule validity pursuant to Section 120.56, F.S.

(6) Requests for review under Rule 42-2.013 or 42-2.0131, F.A.C., shall be heard by the Commission not more than 60 days after the date the request for review has been received and determined by the Secretary to be sufficient, unless waived by all parties.

(7) For reviews of orders initiated pursuant to Rule 42-2.013, F.A.C., except when it initiates the review, the Department shall:

(a) Within 15 days of receipt of the request for review, file a recommendation on the determination of whether, based on the record, the activity authorized by the order would substantially affect natural resources of statewide or regional significance, or whether the order raises issues of policy, statutory interpretation, or rule interpretation that have regional or statewide significance from the standpoint of agency precedent. The recommendation shall be served on all parties in accordance with Rule 42-2.019, F.A.C.

(b) Within 45 days of receipt of the request for review, file a recommendation on the merits of the request for review. The recommendation shall be served on all parties in accordance with Rule 42-2.019, F.A.C.

(8) Any statements in opposition to the acceptance of review, and any motions on jurisdictional or procedural grounds, shall not exceed 25 pages and shall be filed within 20 days after the Secretary’s receipt of the request for review. Such statements and motions may be combined in a single document, and shall be served in accordance with Rule 42-2.019, F.A.C.

(9) Oral arguments and any memoranda presented to the Commission shall be based solely on and shall specifically refer to the portions of the record below on file with the Commission.

(10) Oral argument will only be allowed in cases in which the record below needs to be clarified. The oral argument shall be limited to the situation or issues raised in the request for review.

(11) The Department or any party may submit a proposed order, provided it is filed and served on all parties in accordance with Rule 42-2.019, F.A.C., within 45 days of the Secretary’s determination of sufficiency.

(12) For requests for review brought pursuant to Rule 42-2.0131, F.A.C., any party may submit a memorandum of law in support of the party’s position. The memorandum shall not exceed 50 pages in length and shall be filed with the Secretary and a copy served on the Department and all other parties in accordance with Rule 42-2.019, F.A.C., at least 10 days prior to the hearing before the Commission.

(13) Prior to placing the matter before the Commission for decision, the Secretary is authorized to secure any further assistance he deems necessary for the evaluation, recommendation, and presentation of the request of review, using any appropriate funds.

Rulemaking Authority 373.114(1)(f), 380.07(1) FS. Law Implemented 373.114, 380.07 FS. History–New 2-20-94, Amended 3-15-95, 4-16-07.