vs. ) CASE NO. 80-1299RX
Respondent. )
Pursuant to notice, a hearing was held before Diane D. Tremor, Hearing Officer, with the Division of Administrative Hearings, on August 14, 1980, in Tallahassee, Florida, for the purpose of receiving oral argument on the parties' motions for summary judgment concerning the validity of Rules 17-4.28 and 17- 4.03, Florida Administrative Code.
For Petitioner: Robert C. Apgar
For Respondent: Alfred W. Clark
By an amended petition filed pursuant to Section 120.56, Florida Statutes, The Deltona Corporation ("petitioner") challenges the validity of Rules 17-4.28 and 17-4.03, Florida Administrative Code, promulgated by the Department of Environmental Regulation ("DER", "the Department", or "respondent"). Contending that the proceeding involved no genuine issue of material fact, petitioner moved for a summary judgment that the challenged rules are facially invalid as in excess of delegated legislative authority. The Department responded by moving to dismiss the proceeding for failure of petitioner to demonstrate standing to challenge the subject rules. In the alternative, the Department moved for summary judgment in its favor.
Having fully considered the oral argument, pleadings, affidavits and legal memoranda submitted by the parties, it is concluded that there are no genuine issues of material fact and summary disposition of the parties' claims is proper.
On or about May 3, 1978, the petitioner filed with the respondent an application for dredge and fill permits and for a water quality certificate to allow petitioner to complete a planned residential community on and adjacent to Marco Island, Florida. The application encompasses approximately 17,000 acres of petitioner's property, and hundreds of thousands of dollars were expended by petitioner in preparing the application.
On November 28, 1979, respondent issued a notice of "intent to deny" the permit application. Among the grounds for denial cited in the nine page "intent to deny" are that the petitioner
". . .has not provided the Department with affirmative reasonable assurance, as required by Subsection 17-4.28(3), Florida Administrative Code, that the immediate and the long-term impacts of this project will not violate State Water Quality Standards."
Similar language concerning assurance of water quality standards appears throughout the "intent to deny," as does the Department's assertion of dredge and fill permitting jurisdiction over the proposed development areas. Specific subsections and paragraphs of regulatory rules concerning jurisdiction are not identified in the Department's notice of "intent to deny."
The respondent's "intent to deny" is the subject of pending administrative proceedings between these same parties in Division of Administrative Hearings Case Nos. 79-2471 and 80-683. In those proceedings, the petitioner is contesting, inter alia, the Department's application of the rules under challenge herein.
By affidavit, the respondent's Chief of the Bureau of Standard Permitting, testified as follows:
"I am personally aware that dredge and fill activities often result in violations of water quality standards, result in adverse impacts to and create potentially harmful conditions for animal and plant life, result in the alteration of the chemical, physical and biological integrity of waters, and result in the emission of water contaminants."
CONCLUSIONS OF LAW
Petitioner challenges Rules 17-4.28 and 17-4.03, Florida Administrative Code. These rules were in effect at the time petitioner submitted its permit application and are now applicable to that application. In pertinent part, Rule 17-4.28, Florida Administrative Code, provides:
17-4.28 Dredging and/or Filling Activities;
Permits, Certifications (1). . .
These dredging and/or filling activities which are to be conducted in or connected
directly or via an excavated water body or series of excavated water bodies to the following categories of waters of the State (including the submerged lands of such waters and transitional zone of a submerged land) 1/ shall obtain a permit from the department prior to being undertaken:
rivers end natural tributaries thereto;
streams and natural tributaries thereto;
bays, bayous, sounds, estuaries, and natural tributaries thereto;
(4) natural lakes, except those owned entirely by one person; and except for lakes that become dry each year and are without standing water together with lakes of no more than ten
(10) acres of water area at a maximum average depth of two (2) feet existing throughout the year;
Atlantic Ocean out to the seaward limit of the State's territorial boundaries;
Gulf of Mexico out to the seaward limit of the State's territorial boundaries;
natural tributaries do not include intermittant natural water courses which act
as tributaries only following the occurrence of rainfall and which normally do not contain contiguous areas of standing water.
Rule 17-4.03, Florida Administrative Code, provides as follows: 17-4.03 General Prohibition.
Any stationary installation which will reasonably be expected to be a source of pollution shall not be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the Department, unless the source is exempted by Department rule. The Department may issue such permit only after it is assured that the installation will not cause pollution in violation of any of the provisions of Chapter 403, F.S., or the rules and regulations promulgated thereunder.
The petitioner's arguments in support of invalidity are threefold. First, it is contended that Rule 17-4.28(2), Florida Administrative Cede, extends DER's authority beyond the regulation of a discharge from an installation to the regulation of land use. In this regard, petitioner argues that DER has no statutory authority to regulate all dredging and filling activities, and may only regulate those installations which emit contaminants which cause pollution. Secondly, petitioner contends that Rule 17-4.28(2), Florida Administrative Code, unlawfully purports to give DER authority to regulate in areas outside the "waters of the State." Finally, with respect to both Rule 17-4.28(2), excepting subparagraph (2)(d), and Rule 17-4.03, petitioner contends that the rules purport to give DER regulatory authority over waters owned entirely by one person, contrary to the Specific language of Section 403.031(3), Florida Statutes.
The respondent contends that petitioner has failed to affirmatively demonstrate that it has standing to contest the validity of the two rules in the manner in which they are being challenged. Respondent asserts that since petitioner has failed to prove that its dredging and filling activities will not have a discharge; that its activities will occur in areas where waters of the State do not exist; or that its activities will be conducted on property owned entirely by petitioner, petitioner may not maintain the instant rule challenge proceeding.
The Department's "intent to deny" clearly asserts DER jurisdiction pursuant to Rule 17-4.48, Florida Administrative Code, by claiming that:
Approximately 1,500 acres of uplands and approximately 2,600 acres of waters of the State, submerged lands of waters of the State, and transition zone of submerged lands of waters of the State are proposed for developments. . .The. . .areas within the Department's dredge, fill, construction jurisdiction. The proposed work is not exempt from the Department's dredge, fill, construction authority, and a permit is therefore required.
It is clear from the "intent to deny" that respondent has applied challenged Rule 17-4.28(2), Florida Administrative Code, in evaluating petitioner's permit application.
The parties are currently involved in administrative proceedings filed pursuant to Section 120.57(1), Florida Statutes, wherein the actual application of the challenged rules will be the prime issue. It is not incumbent upon petitioner in this rule challenge proceeding to prove facts showing that its project will not have a discharge to the waters of the State when the rule itself does not speak in terms of discharges or sources of pollution. Stated differently, Deltona is net required to illustrate the existence of Department jurisdiction under the challenged rules when it is contending that there is no statutory authority for jurisdiction in the first instance. Petitioner has clearly illustrated that the challenged rule is being utilized as a ground for the "intent to deny" its application. That is a sufficient showing of real and immediate harm or injury resulting from the challenged rule.
Taking the petitioner's last contention first - that the challenged rules give DER regulatory authority over waters owned entirely by one person - the undersigned finds this challenge to be without merit. Rule 17-4.03 requires a permit for any stationary installation which will reasonably be expected to be a source of pollution. This rule tracks almost verbatim the language of Section 403.087, Florida Statutes, with the exception that the statute adds the words "air or water" before "pollution." Similarly, Rule 17-4.28 refers to dredging and filling activities conducted in or connected to water of the State. It is obvious that the challenged rules are directed to water or air pollution. With regard to water, DER only has jurisdiction over the waters of the State. To determine what constitutes the waters of the State, one first consults the statutory definition of "waters" found in Section 403.031(3), Florida Statutes. After listing what is included, that statute then proclaims that "waters owned entirely by one person other than the State are included only in regard to possible discharge on either property or water." The fact that the challenged
rules do not expressly incorporate that legislative prohibition against regulation of waters owned entirely by one person does not render them invalid. The rules need not expressly incorporate the statutory definition of waters.
Rules are to be read in conjunction with the enabling legislation, and they need not reiterate every statutory prohibition or requirement. Indeed, legislation was recently enacted which requires the Administrative Procedures Committee to identify and request agency repeal of rules or provisions of rules which reiterate or paraphrase statutes. See Chapter 80-391, Laws of Florida, amending 11.60(2)(b) and 120.545(1)(2), Fla. Stat.
The next two grounds asserted for the invalidity of Rule 17-4.28 must be considered together. Petitioner contends that DER has unlawfully extended its authority to areas other than waters of the State by use of the words "connected directly or via an excavated water body or series of excavated water bodies to" the waters of the State, when referring to dredging and/or filling activities. It is further alleged that DER has no statutory authority to require a permit for all dredging and/or filling activities conducted in or connected to waters of the state.
The Department of Environmental Regulation has the statutory authority to control and prohibit pollution of the waters of Florida, and for this purpose to
"establish a permit system whereby a permit
may be required for the operation construction, or expansion of any installation that may be a source of air or water pollution and provide for the issuance and revocation of such
permits and for the posting of an appropriate bond to operate." Section 403.061(14), Fla. Stat.
Further, the legislature has directed the Department to adopt rules and standards for the issuance, denial and revocation of permits and has mandated that no
"stationary installation which will reasonably be expected to be a source of air or water pollution shall be operated, maintained, constructed, expanded, or modified without an appropriate and currently valid permit issued by the department, unless exempted by department rule." Section 403.087(1), Fla.
Stat.
Rule 17-4.28(2), Florida Administrative Code, requires a permit for all dredging and/or filling activities conducted in or connected to the waters of the State. Petitioner contends that dredging and/or filling is not, per se, an "installation" as defined by statute and that Rule 17-4.28(2) does not confine itself to the only activity over which DER has jurisdiction - i.e., discharges or sources of pollution. The respondent argues that dredging and filling activities constitute an "installation" within the regulatory authority of the Department and that Rule 17-4.28(2) is a proper exercise of that authority.
An "installation" is defined in Section 403.031(8), Florida Statutes,
as
"any structure, equipment, facility, or appurtenances thereto, or operation which may emit air or water contaminants in quantities prohibited by rules of the department."
The Department defines an "installation" as "any. . .activity which may be a source of pollution." Rule 17-4.02(3), Fla. Admin. Code. Challenged Rule 17- 4.28(2) does not use the term "installation." The undersigned concludes that a dredging and/or filling activity conducted in or connected to the waters of the State may, dependent upon the circumstances, constitute an "installation" within the meaning of Section 403.031(8) and the Department's Rule 17-4.02(3).
However, this is not to say that all dredging and all filling activities may constitute a source of pollution or may reasonably be expected to do so or may emit contaminants in quantities prohibited by the Department's rules. Yet, by requiring a permit for all such activities, DER has made such a conclusion.
One could suppose that any structure, piece of equipment, facility or operation has the potential for emitting air or water contaminants (substances which are harmful to plant, animal or human life. 403.031(4), Fla. Stat.) DER only has authority, at least for Chapter 403 purposes, to require permits for those activities which emit contaminants in quantities prohibited by its rules. By statute, DER only has regulatory or permitting authority over those installations which "may be a source of air or water pollution" (Section 403.061(14), Florida Statutes) or more specifically, "which will reasonably be expected to be a source of air or water pollution." (Section 403.087(1) and (4), Florida Statutes.) The challenged rule, however, requires a permit for all dredging and/or filling activities conducted in or connected to the waters of the State, regardless of the size, duration, location or nature of the activity. To this extent, Rule 17-4.28(2), Florida Administrative Code, exceeds the Department's statutory authority and is invalid.
No agency of the State has inherent rulemaking authority. Section 120.54(14), Fla. Stat. A State agency has only the authority given to it by the legislature. If there is doubt as to an agency's authority to exercise a particular power, that doubt must be resolved against the agency. City of Cape Coral v. GAC Utilities, Inc. of Florida, 281 So.2d 493 (Fla. 1973). DER has no authority to require a permit for an activity not clearly included in the authorizing statute. Department of HRS v. The Florida Psychiatric Society, Inc., 382 So.2d 1280 (Fla. 1st DCA, 1980).
DER may only exercise its regulatory authority over those activities which will reasonably be expected to be a source of pollution. It may not require permits for all activities without regard to the activity's potential or reasonable likelihood for causing pollution.
The respondent cites case law 2/ to the effect that artificially created canals are "stationary installations" within the meaning of 403.087, Florida Statutes, and concludes therefrom that DER is authorized to regulate dredging and filling. This argument begs the issue. While a canal may be a structure which "may emit air or water contaminants in quantities prohibited by rules of the department," as defined in 403.031(8), Florida Statutes, dredging and filling is not a canal. A canal is simply one of the end results of dredging and filling. Also, in order for the permitting arm of DER to reach
out, it must be reasonable to expect that the canal will be a source of pollution to the waters of the State.
The undersigned is aware of Rule 17-4.04, Florida Administrative Code, which exempts many activities from the permitting requirements of Chapter 17-4. Specifically, subsection (12) of Rule 17-4.04 (formerly subsection (11)) exempts those operations or activities which the Department determines do not cause the issuance of quantities of contaminants sufficient to violate the law or the Department's rules. However, there is a paragraph following the listed exemptions of that rule, which reads as follows:
"These exemptions do not apply to any article, machine, equipment, contrivance or their exhaust system, the discharge from which contains air or water-borne concentration respectively in air or water."
Thus, it appears that the Department has net exempted from its regulatory jurisdiction the permitting of dredging and/or filling operations which are not a source of pollution. Even if the quoted language of Rule 17-4.04 did not exist, the exemption rule cannot supply the authority which DER statutorily lacks.
The final contention of the petitioner relates to the "connected to" language of Rule 17-4.28(2). Petitioner argues that this language unlawfully allows DER to regulate in areas other than waters of the State. As the rule now is written, it does give the agency authority to require a permit for any dredging and/or filling activity in areas outside the waters of the State. A dredging and/or filling operation located fifty miles from a state water body, but connected to that water body by a drainage ditch or wholly owned stream, would require it regardless of its impact upon the quality of the waters of the State. But, the problem with the "connected to" language is not that the rule reaches out to such an activity. The invalidity of the rule is that it reaches out without regard to pollution. As stated above, DER has authority only to require permits for installations which will reasonably be expected to be a source of pollution to the waters of the State. If that type of installation happens to be located in an area which is connected directly or by an excavated water body to waters of the State, DER may regulate it. In conclusion, if the activity for which DER requires a permit is limited to that which reasonably is expected to be a source of air or water pollution, DER may regulate it regardless of its location.
Based upon the findings of fact and conclusions of law recited herein, IT IS ORDERED THAT:
connected to the waters of the State, constitutes an invalid exercise of delegated legislative authority.
Done and ordered this 15th day of September, 1980, in Tallahassee, Florida.
DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301
1/ By a Final Order entered on September 15, 1980, in the case of The Deltona Corporation v. Dept. of Environmental Regulation, Case No. 80-1065R, the rules which defined the terms "submerged lands" and "transitional zone of a submerged land," Rules 17- 4.02(17) and 17-4.02(19), Fla. Admin. Code, were declared invalid.
2/ Sexton Cove Estates v. State Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA, 1976); Farrugia v. Frederick, 344 So.2d 921 (Fla. 1st DCA, 1977). Also see Dept. of Environmental Regulation v. Oyster Bay Estates, Inc., 384 So.2d 891 (Fla. 1st DCA, 1980)
Robert C. Apgar and Edgar Moore
Alfred W. Clark and
H. Ray Allen
