K. ROBERTS, )
)
Petitioner, )
)
vs. ) CASE NO. 81-1079RX
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
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 May 15, 1981, in Tallahassee, Florida.
APPEARANCES
For Petitioner: Jane E. Heerema, Esquire
217 South Adams Street Tallahassee, Florida 32301
For Respondent: William W. Deane, Esquire
Assistant General Counsel
Department of Environmental Regulation 2600 Blair Stone Road
Tallahassee, Florida 32301
By Petition filed with the Division of Administrative Hearings on April 10, 1981, Petitioner challenges the validity of Rules 17-4.28(2), 17-4.28(8)(a), and 17-4.242(1)(a)2, Florida Administrative Code, as adopted by the Department of Environmental Regulation ("DER") on March 1, 1979. Revisions to those rules adopted in January, 1981, are not at issue.
Essentially, Petitioner argues that Rule 17-4.28(2), Florida Administrative Code, is invalid to the extent that Respondent asserts Chapter 403 permitting jurisdiction over dredging activities through it. The Petitioner also asserts that Rule 17-4.28(8)(a), Florida Administrative Code, is invalid because it prohibits dredge and/or fill permits in specific circumstances where no such prohibitions exist in Chapter 493, Chapter 253, or in any other statute under which Respondent could arguably regulate dredge and/or fill activities.
Petitioner argues that Rule 17-4.242(1)(a)2 is invalid to the extent that it requires an affirmative "public interest" showing of an applicant for a permit to dredge and fill in Outstanding Florida Waters without regard to whether the applicant's project will cause pollution, because no such requirement exists in Chapter 403, Florida Statutes. Petitioner does not contend that the challenged rules are "arbitrary or capricious," but instead argues only that DER lacks statutory authority to adopt the rules.
DER contends that dredging and filling constitute a "stationary installation" which can reasonably be expected to be a source of pollution. DER also contends that it may prohibit dredging or filling when such an activity will result in violations of state water quality standards, and also that ample statutory authority exists to require an affirmative public interest showing of an applicant in specific instances.
Final hearing in this cause was scheduled for May 15, 1981, by Amended Notice of Hearing dated April 24, 1981. At the final hearing, Petitioner called no witnesses and offered no exhibits, instead relying on certain stipulation, hereinafter reflected in the Findings of Fact section of this order, reached with Respondent prior to hearing. Respondent called no witnesses at the hearing, but offered DER Exhibits 1, 2, and 3, which were received into evidence over Petitioner's objections.
FINDINGS OF FACT
Petitioner and DER have stipulated to the following facts:
Petitioner is the owner and developer of real property in Franklin County, Florida.
2. DER has adopted Rules 17-4.28(2), 17-4.28(8)(a) and 17-4.242(1)(a)2, Florida Administrative Code, which: require a permit for dredge and fill activities under Chapter 403, Florida Statutes; prohibit permitting of dredge and fill activities in Class II waters approved for shellfish harvesting by the Department of Health and Rehabilitative Services (now the Department of Natural Resources); and require an affirmative public interest showing of an applicant for a license to construct a stationary installation in "Outstanding Florida Waters."
These rules substantially affect Petitioner for the following reasons:
Petitioner applied to DER for a development permit to dredge a navigation channel from his private canal into Alligator Harbor in Franklin County. The navigation channel was proposed to be 40 feet wide and 400 feet long, and was to be dredged to a depth of minus four (-4) feet mean low water, which would entail removing approximately 3,890 cubic yards of material. On May 28, 1980, DER issued an intent to deny the requested permit in file No. 19- 28442-1E.
On June 11, 1980, Petitioner filed a petition for administrative hearing on DER's intent to deny his permit application.
On June 12, 1980, DER informed Petitioner it would take no action on its Intent to Deny letter of May 28, 1980, for 60 days and allow Petitioner to submit additional information on the merits of his permit application during that period.
DER took no further action regarding the Intent to Deny or Petitioner's permit application, and, after Petitioner's request, on March 5, 1981, DER forwarded the petition for administrative hearing filed with it on June 11, 1980, to the Division of Administrative Hearings.
DER's Intent to Deny Petitioner's permit application stated DER had permitting jurisdiction under Chapter 403, Florida Statutes, and under Rule 17-4.28(2), Florida Administrative Code, because the proposed dredging would be in waters of the state within the definition contained in Rule 17-4.28(2), Florida Administrative Code.
DER's Intent to Deny Petitioner's application asserted that Petitioner's proposed project was located in Class II waters approved for shellfish harvesting and that dredging in such areas was prohibited by Rule 17- 4.28(8)(a), Florida Administrative Code.
DER's Intent to Deny Petitioner's application stated that Petitioner had not "affirmatively demonstrated that the proposed activity or discharge is clearly in the public interest pursuant to Section 17-4.242(2). .
. . The parties have agreed that the reference in the aforementioned quote should have been to Section 17-4.242(1)(a)2.
Counsel for each of the parties have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not contained in this order, they have been specifically rejected as being either irrelevant to the issues involved in this proceeding, or as not having been supported by evidence of record.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.56, Florida Statutes.
Petitioner has standing to maintain this challenge to Rules 17- 4.28(8)(a), and 17-4 .242 1 (a)2, because DER has issued an Intent to Deny a permit to dredge a navigation channel from Petitioner's private canal into, Alligator Harbor in Franklin County based, in part, on those rules.
Petitioner is not challenging the first sentence of Rule 17-4.28(8)(a), Florida Administrative Code, which states:
The Department recognizes the
value and importance of Class II waters to Florida's economy as existing or potential sites of commercial and recreational shellfish harvesting and
as a nursery area for fish and shellfish.
No agency has inherent rulemaking authority, Section 120.54(14), Florida Statutes and each rule promulgated by an agency must be based upon validly delegated legislative authority. Section 120.54(4)(a), Florida Statute
Petitioner challenges the facial validity of Rule 17-4.28(2), Florida Administrative Code, to the extent that DER asserts permitting jurisdiction through that rule over dredging activities, Petitioner argues that neither dredging nor the results of dredging are within DER jurisdiction conferred pursuant to Chapter 403, Florida Statutes, and that the rule is, therefore, facially invalid.
Insofar as here pertinent, Rule 17-4.28(2), Florida Administrative Code, provides as follows:
Those dredging and/or filling activities which are to be conducted in or connected directly or via excavated water body or series of excavated water bodies to . . . waters of the State (including the sub- merged lands of such waters and transitional zone of a submerged land) shall obtain a permit from the Department prior to being undertaken.
DER asserts as statutory authority for the adoption of the above- quoted rule Section 403.061, Florida Statutes. In Section 403.061(7), Florida Statutes, DER is authorized to [a]dopt, modify, and repeal rules and regulations to carry out the intent and purposes of this act. . . ." Section 403.061(16) Florida Statutes; authorizes DER to "[e]stablish a permit system whereby a permit may be required for the operation, construction, or expansion of any installation that may be source of . . . water pollution. "
The term "installation" is defined in Section 403.031(8), Florida Statues, as. . . structure, equipment, facility, or appurtenances thereto, or operation which may emit. . . water contaminants in quantities prohibited by rules of the department." (Emphasis added.)
"Pollution" is defined in Section 403.031(2), Florida Statutes, as The presence in the waters
of the state of any substances, contami-
nants . . . or man-made or man-induced alteration of the chemical, physical, biological, or radiological integrity of. . . water in quantities or at levels which are or may be potentially harmful or injurious to human health
or welfare, animal or plant life, or property, or unreasonably interfere with the enjoyment of life or property, including outdoor recreation.
DER contends that the challenged rule implements the provisions of Sections 403.087 and 403.088, Florida Statutes, which were passed by the legislature in 1971. Section 403.087(1) Florida Statutes, provides that, unless exempted by department rule, [n]o stationary installation which will reasonably be expected to be a source of . . . water pollution shall be operated, maintained, construed, expanded, or modified without an appropriate and currently valid permit issued by the department. . ." Section 403.088(1), Florida Statutes, provides that:
No person, without written authoriza- tion of the department, shall discharge into waters within the state any waste which, by itself or in combination with the wastes of other sources, reduces
the quality of the receiving waters below the classification established for them.
"Wastes" is defined in Section 403.031(5), Florida Statutes, as . .
. sewage, industrial wastes, and all other liquid, gaseous, solid, radioactive, or other substances which may pollute or tend to pollute any waters of the state."
DER has interpreted the language of Section 403.087 and Section 403.031(8), and concluded that dredging and filling activities are an . . . operation which may emit . . . water contaminants," thereby requiring a Section
403.087 permit. In addition, DER has also interpreted Section 403.088 relating to intentional discharges into waters of the state to apply to dredge and fill activities. It is specifically concluded, as a matter of law, that the challenged provisions of Rule 17-4.28(2) Florida Administrative Code, constitute a permissible interpretation of the statute left to the agency's decision by a substantive act of the legislature. See, Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238 (Fla. 1st DCA 1981); Sexton Co. v. State's Pollution Control Board, 325 So.2d 468 (Fla. 1st DCA 1976). This conclusion is buttressed by language added to Chapter 403, Florida Statutes, in 1977 by the Florida Legislature some six years after the initial passage of Sections 403.087 and 403.088, Florida Statutes. This added language, contained in Section 403.817, Florida Statutes, passed by the 1977 Legislature, authorized DER to establish by rule the natural landward extent of waters of the state for regulatory purposes. In Section 403.817(3) Florida Statutes, the legislature specifically recognized the applicability of both Chapter 403 and the regulatory rules of DER to "dredging and filling" activities. Petitioner's challenge to Rule 17-4.28(2), Florida Administrative Code, on the grounds that DER lacks Chapter 403 jurisdiction nor "dredge" and/or "fill" activities is without merit.
Petitioner next challenges the facial validity of the following language contained in Section 17-4.28(8)(a) Florida Administrative Code:
The department shall not [issue]
a permit for dredging and/or filling directly in areas approved for shell- fish harvesting by the Department of Health and Rehabilitative Services
[now the Department of Natural Resources]
Petitioner contends that the aforementioned rule is invalid in that it prohibits dredge and/or fill permits in specific circumstances where no such prohibitions exist in either Chapter 403 or Chapter 253, Florida Statutes. Petitioner additionally contends that DER's permitting jurisdiction under Chapter 403, Florida Statutes, is properly and legally decided only on a case- by-case basis, and that DER has not been authorized by the legislature to prohibit dredging or filling in the blanket fashion established by the rule.
In Section 403.021, Florida Statutes, the Florida Legislature has announced the following public policies:
The pollution of the air and waters constitutes a menace to public health and welfare, creates public nuisances, is harmful to wildlife, fish, and other aquatic life, and impairs domestic, agricultural, industrial, recreational, and other beneficial
uses of air and water.
It is declared to be the public policy of this state to conserve the waters of the state and to protect, maintain, and improve the quality thereof for public water supplies, for the propa- gation of wildlife, fish and other aquatic life, and for domestic, agri- cultural, industrial, recreational, and other beneficial uses, and to provide that no wastes be discharged into any waters of the state without first being given the degree of treatment necessary to protect the beneficial uses of such waters.
The Legislature finds and declares that control, regulation, and abatement of the activities which are causing or may cause pollution of the . . . water resources in the state and which are or may be detri- mental to human, animal, aquatic, or plant life . . . be increased to insure conservation of natural resources, to insure purity of
. . . water, . . . to insure protection and preservation of the public health, safety, welfare, and economic well- being, to insure and provide for recreational and wildlife needs as
the population increases and the economy expands, and to insure a continuing growth of the economy and the industrial development
Section 403.061, Florida Statutes, authorizes DER to:
Adopt, modify, and repeal rules and regulations to carry out the intent and purposes of this act.
Develop a comprehensive program
for the prevention, abatement, and control of the pollution of the waters of the state. In order to effect this purpose, a grouping of the waters into classes
may be made in accordance with the present and future most beneficial uses. Such classifications may from time to time be altered or modified. However, before
any such classification is made, or any modifications made thereto, public hear- ings shall be held by the department.
Establish ambient . . . water quality standards for the state as a whole or for any part thereof .
(16) Establish a permit system whereby a permit may be required for the opera-
tion, construction, or expansion of any installation that may be a source of air or water pollution . . .
The challenged rule is a portion of DER's response to the public policy considerations established by the legislature in Section 403.021, Florida Statutes, and to the broad rule making authority granted to DER in Section 403.061, Florida Statutes. DER has obviously chosen the alternative of rule making as opposed to Petitioner's contention that decisions concerning this subject matter should be determined on a case-by-case basis in quasi-judicature proceedings conducted pursuant to Section 120.57(1), Florida Statutes. In this regard, the court in Department of Health and Rehabilitative Services v. Framat Realty, Inc., 407 So.2d 238, 241-242 (Fla. 1st DCA 1981) held that:
. . . the APA plainly regards rules
as the valuable endpoint in the agency's development of policy. Rules represent an agency's considered decision on issues left to the agency's decision by a substantive act of the legislature.
If we are to regard seriously the incentives for rule making under the APA scheme, and if we are to credit the deliberative process that the legislature has prescribed for the development of agency policy, then surely an interpretative rule emerg- ing from this process should be accorded a most weighty presumption of validity. Otherwise the elaborate statutory scheme, pressing for rule making and prescribing how it shall be accomplished with maximum public and private participation, has no productive purpose, and it has become only a snare for agency action, a device for the evasion, avoidance,
or postponement of effective agency action in its authorized field of responsibility.
When as here an agency has responded to rulemaking incentives and has allowed affected parties to help the rules they know will regulate them in the future, the judiciary must not, and we shall not, overly re-
strict the range of an agency's inter- pretative powers. Permissible inter- pretations of a statute must and
will be sustained, though interpreta- tions are possible and may even seem preferable according to some views. If the rule binds too tightly to suit them, the appellee developers have their proper remedy in the representative
and politically responsive branches,
the legislative or executive, but not in the judiciary, nor in Section 120.56 rule challenge proceedings before a hearing officer.
Further as held in Florida Beverage Corp. v. Wynne, 306 So.2d 200,202 (Fla. 1st DCA 1975), where an agency is given broad rulemaking authority by statute . . . the validity of regulations promulgated thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation. . . . Additionally, the Florida Supreme Court has held that".
. . administrative construction of the statute by an agency or body responsible for the statute's administration is entitled to great weight and should not be overturned unless clearly erroneous." Pan American World Airways
v. Florida Public Service Commission, 427 So.2d 716,719 (Fla. 1983).
Additionally, this rule has been in effect since 1977 and, therefore, like the rule considered in Jax Liquors, Inc. v. Department of Business Regulation, supra:
. . . the presumption of the Rule's validity [has gained] added weight permits having laid upon the public record in [the] Florida Administra- tive Code for several legislative sessions without disapproval or interference by either the legis- lature or its Administrative Procedures Committee. . .
Finally, the following observation by the Florida Supreme Court in Hollywood Jockey Club, Inc. v. Stein, 182 So. 863, 869 (Fla. 1938) is pertinent here:
We think it might be safely said that in a general sense, the power to regulate does not include the power to prohibit; but as applied to the situation here presented the adoption of a rule . . . is a regulation rather than a pro- hibition. . . [E]very regulation commanding any act to be done in
a certain way impliedly and neces- sarily restricts or prohibits the doing of the act in any other way. In this sense all powers of regula- tion are to some extent prohibitory in their character and effect, and if this element nullified or in- validated rules and regulations it would completely defeat and destroy
a large part of the regulatory and rulemaking power vested by the legislature in the various boards and commissions which have been vested with such powers by the legis- lature in this state. . . .
It is specifically concluded, as a matter of law, that the challenged rule is within the range of permissible interpretations of the provisions of Sections 403.021, 403.061, 403.087, and 403.088, Florida Statutes, that it is reasonably related to the purposes of its enabling legislation, and that Petitioner has failed to establish that DER's interpretation of those various statutes is clearly erroneous. As a result, Petitioner has failed to establish the invalidity of Rule 17-4.28(2), Florida Administrative Code.
Petitioner last contends that Rule 17-4.242(1)(a)2, Florida Administrative Code, is invalid because it requires an affirmative "public interest" showing of an applicant for a dredge and fill permit without regard to whether the proposed project will cause any pollution. Petitioner contends that no such requirement exists in Chapter 403, Florida Statutes, and that the rule therefore impermissibly modifies the statute. Insofar as here pertinent, Rule 17-4.242(1), Florida Administrative Code, provides as follows:
(a) No Department permit or water quality certification shall be issued for any stationary installation which significantly degrades, either alone or in cominbation with other stationary
installations, or is within Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:
* * *
2. The proposed activity or discharge is clearly in the public interest . . .
As indicated previously in this order, Sections 403.087 and 403.088, Florida Statutes, authorize DER to regulate dredge and/or fill activities conducted in waters of the state. General rulemaking authority is conferred upon DER in Section 403.061, Florida Statutes, quoted above. Pursuant to that authority, and the authority conferred upon DER in Section 403.087 and 403.088, Florida Statutes, DER enacted Rule 17-4.242(1)(a)2, Florida Administrative Code. The "public interest" requirement contained in that rule is clearly authorized by Section 403.088(3)(c), Florida Statutes, which, in pertinent part, provides that:
. . . If the department finds that [a] proposed discharge will not reduce the quality of the receiving waters below the classification established for them, it may issue an operation permit if it finds that such degradation is necessary or desirable under federal standards
and under circumstances which are clearly in the public interest. (Emphasis added.)
In light of the clear legislative authorization contained in Section 403.088(3)(c), Florida Statutes, it is concluded that Petitioner's contention that Rule 17-4.242(1)(a)2, Florida Administrative Code, is facially invalid, is without merit.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is concluded that Petitioner has failed to establish the invalidity of the challenged rules, and that the relief sought by Petitioner should be, and the same is hereby DENIED.
DONE AND ENTERED this 17th day of June, 1983, at Tallahassee, Florida.
WILLIAM E. WILLIAMS
Filed with the Clerk of the Division of Administrative Hearings this 17th day of June, 1983.
Jane E. Heerema, Esquire
William W. Deane, Esquire Assistant General Counsel Department of Environmental
Ms. Liz Cloud
