STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CALOOSA PROPERTY OWNERS' )
ASSOCIATION, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 82-3458RX
) STATE OF FLORIDA, DEPARTMENT ) OF ENVIRONMENTAL REGULATION, )
)
Respondent, )
and )
) CALEFFE INVESTMENT, LTD., and ) WORTHINGTON ENTERPRISES, INC., )
)
Intervenors. )
)
)
FINAL ORDER
The Petitioner, Caloosa Property Owners' Association, Inc., has filed a "Petition for Rule Challenge" under the provisions of Section 120.56, Florida Statutes. Petitioner contends that the Department of Environmental Regulation has a long-standing, unwritten practice of accepting "mitigation" or "trade- offs" offered by developers in granting applications for permits. Petitioner contends that the policy is a rule which has never been promulgated in the manner required by the Administrative Procedure Act and that it therefore constitutes an invalid exercise of delegated legislative authority. An Order of Assignment was entered by the Director of the Division of Administrative Hearings on January 5, 1983, and the final hearing was scheduled to be conducted on January 25.
Caleffe Investment, Ltd., and Worthington Enterprises, Inc., filed a Petition to Intervene, and Petitioner moved to consolidate this proceeding with a permit application proceeding in which the Intervenors are seeking a permit, opposed by petitioner, from the Department of Environmental Regulation. The parties agreed to waive the time limitations set out in Section 120.56, Florida Statutes, in order that the rule 231 challenge proceeding could be consolidated with the license application proceeding. The Petition to Intervene and the Motion to Consolidate were granted by Order entered January 20, 1983. The consolidated final hearing was conducted on March 31 and April 1, 1983, in West Palm Beach, Florida. A Motion to Dismiss filed by the Department of Environmental Regulation was denied by Order entered March 23, 1983.
The parties have submitted post-hearing legal memoranda which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law which follow. They have been
otherwise rejected as not supported by the evidence, contrary to the better weight of the evidence, irrelevant to the issues, or legally erroneous.
FINDINGS OF FACT
The Intervenors filed an Application for Dredge and Fill Permit with the Department of Environmental Regulation. The Department entered a notice of its intent to issue a permit. Petitioner requested a formal administrative hearing. The Department forwarded the matter to the Division of Administrative Hearings, where it was given Case No. 82-3155. A Recommended Order which includes Findings of Fact and Conclusions of Law has been entered in Case No.
82-3155. The Findings of Fact and Conclusions of Law set out in the Recommended Order are hereby incorporated into this Final Order and constitute a part of this Final Order.
The Petitioner is an association of home owners within a residential development known as "Caloosa." Intervenors are seeking to develop an industrial park on land adjacent to the Caloosa development. Surface and ground waters from the proposed industrial park would drain toward Caloosa. Prior to the Department's entry of the notice of intent to issue a permit to Intervenors, the Department's personnel evaluated the application in free-form proceedings. An environmental specialist who works with the Department as a permit processor proposed to deny the application on account of the fact that Intervenors proposed to fill approximately 70 acres of wetlands, 24 of which were within the Department's permitting authority under Rule 17-4.28, Florida Administrative Code. The administrator of the Department's Dredge and Fill Permitting Section came to the conclusion that denial of the application could not be justified.
He felt that the wetlands to be filled served only marginally to preserve water quality in the area. The Intervenors had proposed to artificially create wetland areas in order to compensate for the loss of filled wetland areas. The program administrator suggested to the permit processor that they negotiate to get the Intervenors to create additional artificial wetlands in order to mitigate against any possible adverse effect from the loss of natural wetland areas. These negotiations occurred, and the Intervenors agreed to increase artificially created wetland areas.
The Department of Environmental Regulation does not have a rule which provides that its personnel can engage in negotiations respecting a permit application. Negotiations are, however, an inherent part of a permitting process. The Department does not have any written or unwritten policy whereby it accepts such mitigating factors as artificially created wetlands as justifying the filling of natural wetlands. It does not appear that the Department has any rule or nonrule policy concerning mitigation or trade-offs, and it does not appear that the Department has ever had such a rule or policy. The Department does not have a policy of accepting concessions, trade-offs, or mitigating factors so as to allow an applicant to violate the Department's water quality standards.
Since there has been a permitting process, such factors as artificially created wetlands have been considered by the Department in determining whether an application meets the Department's criteria for issuance of a permit. The Department's policy is to consider whether an applicant has provided reasonable assurance that the short-term and long-term effects of proposed activities will not result in violations of water quality standards, as required under Rule 17- 4.28(3), Florida Administrative Code. If an applicant has proposed to construct artificial wetlands, the Department would logically consider it in making determinations about granting the permit. There is no evidence in the record of
this proceeding from which it could be concluded that the Department has any unpromulgated "mitigation" policy which has the effect of a rule.
CONCLUSIONS OF LAW
Petitioner has contended that the Department of Environmental Regulation has:
long-standing, unwritten practice of general applicability whereby it succumbs to the negotiating skills of developers and accepts trade-offs in exchange for permits.
Petitioner contends that this policy meets the definition of a rule. Petitioner has failed to establish that the Department has any such policy. Petitioner at most has established that the Department does from time to time consider such factors as the creation of artificial wetlands in evaluating whether an application meets the requirements of the Department's rules. Other than the fact that the Department has in the past considered such factors, the evidence does not establish the existence of any policy. Simply considering these factors on a case-by-case basis does not constitute a rule. See Section 120.52(14), Florida Statutes.
If an agency implements a policy which constitutes a "rule," but does not properly follow rule-making procedures, the policy may constitute an invalid exercise of delegated legislative authority. Florida State University v. Dann,
400 So.2d 1304 (1 DCA Fla. 1981); State Department of Administration v. Stevens,
344 So.2d 390 (1 DCA Fla. 1977). Petitioner has failed to establish the existence of any policy of the Department of Environmental Regulation which has the effect of a rule, but has not been properly promulgated.
FINAL ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is, hereby,
Petitioner has failed to establish that the Department of Environmental Regulation has any policy which has the effect of a rule that has not been properly promulgated as a rule as alleged in the "Petition for Rule Challenge," and the Petition is accordingly dismissed.
DONE AND ORDERED this 19th day of May, 1983, in Tallahassee, Florida.
G. STEVEN PFEIFFER Hearing Officer
Division of Administrative Hearings Department of Administration
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1983.
COPIES FURNISHED:
Randall E. Denker, Esquire Lehrman & Denker
Post Office Box 1736 Tallahassee, Florida 32302
Dennis R. Erdley, Esquire Alfred J. Malefatto, Esquire Department of Environmental
Regulation
2600 Blair Stone Road Tallahassee, Florida 32301
Robert M. Rhodes, Esquire Terry E. Lewis, Esquire James Hauser, Esquire Messer, Rhodes & Vickers Post Office Box 1876 Tallahassee, Florida 32302
Alan J. Ciklin, Esquire Boose & Ciklin
8th Floor The Concourse
2000 Palm Beach Lakes Boulevard West Palm Beach, Florida 33409
Tracy Sharpe, Esquire Farish, Farish & Romani
316 First Street
West Palm Beach, Florida 33402
Carroll Webb Esquire Executive Director
Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
Ms. Liz Cloud, Chief Administrative Code Bureau Department of State
The Capitol, Suite 1802 Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| May 19, 1983 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| May 19, 1983 | DOAH Final Order | Petitioners did not establish case for DER's permitting process being an unpromulgated rule. |
