STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOE BURGESS, EARL KAIMER, )

KEITH FINLAYSON and the )

CONCERNED CITIZENS FOR THE )

EVERGLADES, INC., a not-for-profit ) Florida corporation, )

)

Petitioners, )

)

vs. ) CASE NO. 80-1899RX

)

THE SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly- designated Hearing Officer, William E. Williams, held a public hearing in this cause on December 1, 1980, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioners: Bruce E. Friedman, Esquire

5130 North Federal Highway, Suite 10 Fort Lauderdale, Florida 33308

For Respondent: Stanley J. Niego, Esquire

Post Office Box V 3301 Gun Club Road

West Palm Beach, Florida 33401

By Petition filed with the Division of Administrative Hearings on October 16, 1980, Petitioners, Joe Burgess, Earl Kaimer, Keith Finlayson and Concerned Citizens for the Everglades, Inc., pursuant to Section 120.56, Florida Statutes, challenged as an unpublished "rule" an "order" of Respondent, South Florida Water Management District (hereinafter "Respondent" or "District"), authorizing Respondent's staff to lower water levels in an area within Respondent's jurisdiction, known as Water Conservation Area 2A, commencing on November 1, 1978, and extending thereafter for a period of three years. This cause was assigned to the undersigned Hearing Officer by Order of Assignment dated October 21, 1980. Final hearing was scheduled for December 1, 1980, by Notice of

Hearing dated November 17, 1980.

At the final hearing, Petitioners called Keith Finlayson, Joseph Burgess, James H. Hartwell, and Shirleen Yedder as their witnesses. Petitioner, Earl Kaimer, made no appearance either personally or by counsel or other representative. Petitioners offered no exhibits. Respondent called J. Walter Dineen as its only witness and in addition, offered Respondent's Exhibits A through I, inclusive, each of which was received into evidence.

FINDINGS OF FACT

1. The Respondent is a multi-county water management district which was created by Chapter 25270, Laws of Florida, 1949, and which operates pursuant to the provisions of Chapter 373, Florida Statutes. The District is the local sponsor for the federally-authorized "Central and Southern Florida Project for Flood Control" and as such, operates and maintains various water control facilities and impoundments in South Florida, as authorized and constructed by the Federal Government. The jurisdiction of the District encompasses 16 counties in southern and central Florida, from Marion County in the north to Monroe County in the south.

   
   

2. Water Conservation Area 2A is one of several water conservation areas within Respondent's jurisdiction and is a part of the federally-authorized Central and Southern Florida Project for Flood Control. On April 13, June 2, August 10, September 26, October 19, and October 20, 1978, the Governing Board of the District held public hearings and workshop meetings to receive comments from the District staff and the general public concerning the proposed "draw down" or alteration of water levels in Water Conservation Area 2A. Notice of the September 26, 1978 public hearing was published in the Florida Administrative Weekly, Volume No. 4, No. 36, on September 8, 1978. By the terms of the notice, the purpose of the September 26th public hearing was:

   
   

   To provide interested citizens with an opportunity to express their opinions and hear testimony regarding the District's proposal to lower the water level in Conservation Area 2A, located

   in western Palm Beach and Broward counties. The purpose of the draw down is to con- solidate the bottom sediments so that a more flexible water schedule can be begun to preserve the natural Everglades ecology

   . . . .

   
   

3. After considering information received from staff and the general public, the Governing Board entered its "Order" No. 78-12 dated October 20, 1978 containing findings of fact and conclusions of law. This "order" provided, in pertinent part:

   
   

   1. That the staff take appropriate measures to accomplish the following:

      A draw down from current high water levels will be initiated October 31, 1978, with the goal of reducing water levels in the central portion of the marsh to ground level by December 31 (about 11.2 feet msl). From this point, water levels shall be allowed to continue to recede to a minimum level of 9.5' by the end of May, 1979.

      Water levels will be allowed to rise to about 12.5' msl by October 31, 1979.

   2. That the staff take appropriate measures to regulate water levels in Conservation Area 2A between 12.5' and 9.5' msl as provided in Paragraph 1. until November of 1981.

   3. That the regulation of Conservation Area 2A be carried out in a flexible manner to insure maximum environmental benefits and that adjustments in water level fluctuations and stages may be made

      predicated upon the environmental response of the Conservation Area 2A ecosystem resulting from the previous year's hydroperiod.

   4. That the staff pursue such research and data collection as is necessary to fully document the conditions of the marsh throughout the three year duration of the project.

      
      

4. No formal hearings pursuant to Section 120.57(1), Florida Statutes, were requested as a result of the aforementioned workshop, public hearings or agency action embodied in the "order" of October 20, 1978.

   
   

5. It is undisputed that Respondent did not comply with the requirements of Section 120.54, Florida Statutes, relating to rule making in issuing its Order of October 20, 1978.

   
   

6. Petitioner, Joe Burgess, is the owner of Hinckle's Bait and Tackle Shop on State Road 84 in Broward County, approximately 12 miles from Conservation Area 2A. Petitioner Burgess derives approximately 60 to 70 percent of his business from customers who use Conservation Area 2A for hunting, fishing, and other recreational purposes. In addition, Petitioner Burgess personally uses Conservation Area 2A for hunting and fishing.

   
   

7. Petitioner, Keith Finlayson, is an environmentalist who uses Conservation Area 2A for recreational purposes, including fishing, bird watching, observing animals in their natural habitats and flora identification. Petitioner Finalyson uses Conservation Area 2A for recreational purposes approximately two to three times per week.

   
   

8. Petitioner, Concerned Citizens for the Everglades, Inc., is a not-for- profit Florida corporation, some of whose members presently use Conservation Area 2A for hunting, fishing, and other recreational purposes. Other members of the organization derive their living from businesses supported by revenues obtained from the general public directly attributable to "use" of Conservation Area 2A.

   
   

9. One of the effects of the "draw down" will be to make certain portions of Conservation Area 2A inaccessible by boat during some periods of the year, thereby curtailing recreational and other use of the those areas.

   
   

10. Water Conservation Area 2A, and other such areas within the jurisdiction of Respondent, is surrounded by levies and various water control structures and is operated independently of other water conservation areas, which are also surrounded by levies and water control structures. All of the water conservation areas within Respondent's jurisdiction are subject to different and independent water regulation schedules. The evidence establishes that it is not feasible to apply the same regulation schedule to all water conservation areas due to differences in topography. In fact, it is anticipated that a different regulation schedule for Water Conservation Area 2A will be developed after the current three-year draw down period is concluded.

11. Although originally scheduled to commence on November 1, 1978, the "draw down" of water levels in Conservation Area 2A was delayed as a result of legal actions taken in state courts. As a result, the District did not actually begin the "draw down" until August, 1980.

    
    

    CONCLUSIONS OF LAW

    
    

12. Petitioner, Earl Kaimer, having failed to appear or to adduce testimony at final hearing to show that he would be "substantially affected" by the alleged rule within the meaning of Section 120.56, Florida Statutes, he is hereby dismissed as a party to this proceeding.

    
    

13. Petitioner, Concerned Citizens for the Everglades, Inc., is not "substantially affected" by the alleged rule within the meaning of Section 120.56, Florida Statutes, and as such, lacks standing to maintain this petition. See, Florida Department of Offender Rehabilitation v. Jerry, 353 So.2d 1230 (Fla. 1st DCA 1978); Florida Department of Education v. Florida Education Association, et al., 378 So.2d 893 (Fla. 1st DCA 1979); Department of Labor and Employment Security v. Florida Homebuilders Association, Case No. MM-159 (Fla. 1st DCA, December 9, 1980).

    
    

14. Petitioners, Joe Burgess and Keith Finlayson, are "substantially affected" by the alleged rule and as such, have standing to challenge the alleged rule by petition pursuant to Section 120.56, Florida Statutes.

    
    

15. Section 120.52(14), Florida Statutes, defines "rule" as:

    
    

    . . . 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 speci- fically required by statute or by an existing rule. The term also includes

    the amendment or repeal of a rule . . . .

    
    

16. The "Order" of October 28, 1978 does not constitute a "rule" within the intent and meaning of Section 120.52(14), Florida Statutes. In the first instance, the "Order" is not of "general applicability", in that it contains both geographic and temporal limitations. The "Order" affects only a relatively small geographical area in the District's 16-county jurisdiction and is limited by its own terms to a period of three years. See, Department of Commerce v. Matthews Corporation, 358 So.2d 256, 258 (Fla. 1st DCA 1978). Further, the "Order" fails to meet the test of "general applicability", in that it is limited in its application to the factual findings contained in the body of the "Order". As a result, the District's action in the "Order" could not be utilized by the agency as a "rule of decision" in other proceedings involving different fact patterns. Department of Administration v. Harvey, 356 So.2d 323, 326 (Fla. 1st DCA 1977). Clearly, the "Order" was the product of the District's exercise of its "quasi-judicial", rather than its "quasi-legislative" authority and was, therefore, not required to be performed in accordance with the strictures of a Section 120.54, Florida Statutes, rule-making proceeding. As the Court in Florida Cities Water Company v. Florida Public Service Commission, 384 So.2d 120, 121 (Fla. 1980), observed, ". . . agencies are not required to implement

    rulemaking procedures each time a new policy is developed . . . ." In such instances, it is necessary only that the agency's policy decision, when contested, be supported by evidence of record developed in the context of a proceeding held pursuant to Section 120.57, Florida Statutes. A clear point of entry for the Petitioners herein was afforded through the public hearing process, a remedy which the Petitioners apparently chose to forego.

    
    

17. The Petitioners having failed to demonstrate that the "Order" of October 28, 1978, constitutes a "rule" within the intent and meaning of Section 120.52(14), Florida Statutes, the relief sought by Petitioners should be, and the same is hereby DENIED.

Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that

DONE and ORDERED this 30th day of December, 1980, in Tallahassee, Leon County, Florida.

WILLIAM E. WILLIAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 1980.

COPIES FURNISHED:

Bruce E. Friedman, Esquire 5130 North Federal Highway Suite 10

Fort Lauderdale, Florida 33308

Stanley J. Niego, Esquire Post Office Box V

3301 Gun Club Road

West Palm Beach, Florida 33401

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, FL 32301

Liz Cloud, Chief

Bureau of Administrative Code Department of State

The Capitol, Room 1802 Tallahassee, FL 32301

Docket for Case No: 80-001899RX

Orders for Case No: 80-001899RX