683 F.2d 1311 Marie Lucie JEAN, et al., Plaintiffs, Lucien Louis, et al., Plaintiffs-Appellees, Miami Daily News, et al., Intervenors-Appellants, v. Alan C. NELSON, et al., Defendants-Appellants, Cross-Appellees. No. 82-5772. United States Court of Appeals, Eleventh Circuit. July 13, 1982. Rudolph W. Giuliani, Assoc. Atty. Gen., U. S. Dept. of Justice, Washington, D. C., for defendants-appellants, cross-appellees. Kurzban & Kurzban, P. A., Ira J. Kurzban, Michael J. Rosen, Miami, Fla., Bruce Wini..

The issue for determination in this case is whether proposed rules 62-40.410(3) and 62-40.474, in whole or in part, are invalid exercises of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes (2005).1The proposed rules are not invalid exercises of delegated legislative authority.

The issues are whether Respondent Centex Homes is entitled to the issuance of an environmental resource permit to construct a 2665 square-foot boat dock and authorization of a lease of 7807 square feet of sovereign submerged land in the portion of the Intracoastal Waterway known as Lake Worth Lagoon in Palm Beach County.Proposed dock of 420 ft. into Lake Worth Lagoon not entitled to a permit due to unmitigated impacts to seagrass, including threatened Johnson grass, nor to lease of sovereign submerged land for failure to comply with length of dock not exceeding 2590 ft.

On September 2, 1988, the Surveyors caused to be published notice of rulemaking within Chapter 21HH-6, Florida Administrative Code, which included amendments to Rule 21HH-6.002 and the addition of proposed rule 6.0052. This rulemaking addresses standards utilized in surveys done to establish the ordinary high water mark (OHWM), also referred to as ordinary high water line (OHWL), and prompted the challenge. Briefly stated, the challengers question the validity of the Surveyor's actions based on these allegations: (a) the Surveyors have materially failed to follow applicable rulemaking procedures set forth in Section 120.54, Florida Statutes; (b) the Surveyors have exceeded the grant of rulemaking authority; (c) the proposed rules enlarge, modify, or contravene the specific provisions of law implemented; (d) the proposed riles are vague, fail to establish adequate standards for agency decisions or vest unbridled discretion in the agency; (e) the rules are arbitrary and capricious; and (f) the rules violate Article II, Section 7, and Article X, Section 11, Florida Constitution (1968). More specifically, the Trustees contend that they, rather than the Surveyors, have exclusive or primary rulemaking authority to establish the means by which an OHWM is determined, subject to court review. The Trustees also contend that the economic impact statement is insufficient, and that the rules under attack do not constitute minimum technical standards as advertised, but are instead an attempt to establish statements of legal principles pertaining to the location of an OHWM in a circumstance where this issue is unsettled in the courts, the forum ultimately responsible for resolving disputes related to the proper location of an OHWM.Rules of the board of Land Surveyors which attempt to establish legal principles for determining location of ordinary high water mark stricken.

Pursuant to notice, a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on January 26 and 27, 1987 in Orlando, Florida. APPEARANCES For Petitioners: J. Kendrick Tucker, Esquire Ralph A. DeMeo, Esquire Post Office Box 1794 Tallahassee, Florida 32302Proposed Rule 4OE-4.301 found to be valid. Contentions made that rules exceeded statutory authority or requirements for Estimate of economic Impact Statement not met.

Thermography is found to be a valid and proven medical procedure by Hearing Officer. Recommend the procedure be declared medically necessary.

This matter came before the undersigned hearing officer on a petition challenging the validity of certain rules proposed to the Administration Commission. The challenged rules have been proposed under the authority of Chapter 380.05, F.S., and seek to implement the designation of Monroe County as an area of critical state concern by adopting rules under the authority of 380.05(8), F.S. APPEARANCES For Petitioners: Robert Angerer, Esquire Ervin, Varn, Jacobs and Odom Post Office Box 1170 Tallahassee, Florida 32302Rules designating county area of critical state concern are valid exercises of delegated legislative authority.