STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ORLANDO CENTRAL PARK, INC. ) REAL ESTATE CORPORATION OF FLORIDA, )
N.V. and NATIONAL ASSOCIATION OF ) INDUSTRIAL and OFFICE PARKS, REGION IV, )
)
Petitioners, )
)
vs. ) CASE NO. 86-4721RP
) SOUTH FLORIDA WATER MANAGEMENT DISTRICT, )
)
Respondent, )
and )
)
THE FLORIDA AUDUBON SOCIETY, )
)
Intervenor/Respondent. )
)
FINAL ORDER
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 32302
For Respondent: Sarah E. Nall, Esquire
Irene M. Kennedy Quincey, Esquire Post Office Box 24680
West Palm Beach, Florida 33416-4680
For Intervenor/ Charles Lee (qualified lay Respondent: representative)
1101 Audubon Way
Maitland, Florida 32751 BACKGROUND
On November 26, 1986 petitioners, Orlando Central Park, Inc., Real Estate Corporation of Florida, N.V. and National Association of Industrial and Office Parks, Region IV, filed a Petition for Administrative Determination of Invalidity of Proposed Rules 40E-4.091 and 40E-4.301, Florida Administrative Code. Amendments to these rules had previously been proposed for adoption on November 7 and 21, 1986 by respondent, South Florida Water Management District. The proposed rules generally prescribe guidelines to be followed by he District
in reviewing applications for surface water permits that impact isolated wetlands. As grounds for having the rules declared invalid, petitioners alleged the rules conflicted with or exceeded the enabling statutory authority, were vague, ambiguous and unreasonable, were arbitrary and capricious, and were not accompanied by an adequate economic impact statement.
By Notice of Hearing dated December 4, 1986 a final hearing was scheduled on January 2, 1987 in Tallahassee, Florida. By agreement of the parties the final hearing was rescheduled to January 26 and 27, 1987 in Orlando, Florida.
On January 15, 1987 intervenor/respondent, The Florida Audubon Society, petitioned to intervene in this proceeding. The petition was orally granted during a telephone conference motion hearing held on January 20, 1987 subject to intervenor proving up its standing at final hearing. Without objection by the parties, its lay representative was found to be qualified pursuant to Rule 221- 6.08, Florida Administrative Code.
At final hearing, petitioners presented the testimony of Dennis E. Shipp, Eric B. Eicher, Frank P. Lindrum, Charles A. Padera, Ben W. Breedlove, and Larry Ray. They also offered petitioners' exhibits 1-17 which were received in evidence. Respondent presented the testimony of Richard Rogers, William Helfferick, Kevin L. Erwin, Gerald M. Ward and Charles A. Padera. It also offered respondent's exhibits 1-12. All were received in evidence. Intervenor presented the testimony of Dr. Bernard J. Yokel and Michael Duever and offered intervenor's exhibits 1 and 2 which were received in evidence. In addition, it adopted the testimony and evidence presented by respondent. Finally, the parties stipulated into evidence joint exhibits 1-4.
A ruling on motions to dismiss petitioners and intervenor for lack of standing was reserved and will be dealt with in this order.
The transcripts of hearing (two volumes) were filed on February 5, 1987. Proposed findings of fact and conclusions of law were filed by petitioners and respondent on February 13, 1987. A ruling on each proposed finding has been made in the Appendix attached to this Order.
As narrowed by the parties, the issue is whether the proposed amendment to Rule 40E-4.301(1)(0), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
Introduction
Respondent, South Florida Water Management District (SFWMD or District), is a creature of the legislature having been created under Chapter 373, Florida Statutes (1985). It has jurisdiction over and administers all "waters in the District", including the regulation of the management and storage of surface waters. According to the map depicted in Rule 40E-1.103, Florida Administrative Code, the SFWMD's jurisdiction appears to extend over all of Monroe, Dade, Broward, Collier, Palm Beach, Martin, Lee, Hendry and Glades Counties and portions of St. Lucie, Okeechobee, Osceola, Charlotte and Orange Counties, Florida. A precise legal description of its boundaries is found in Subsection 373.069(2)(e), Florida Statutes (1985).
Under the District's surface water management permitting authority, a permit is required for the construction of any works that impound, impede, obstruct or otherwise impact the flow of water, irrespective of whether the property contains a wetland of any nature.
To implement the above jurisdiction, the District has adopted by reference in Rule 40E-4.091(1)(a), Florida Administrative Code, a technical manual entitled "Basis of Review for Surface Water Management Permit Application within the South Florida Water Management District" (Basis for Review). The manual was first adopted in 1977 and has been readopted with various modifications since that time. The most recent version became effective in July 1986. The manual contains criteria to be used by the District when reviewing permit applications for the construction and operation of surface water management systems within its jurisdictional boundaries. These criteria specify the manner in which an applicant must provide reasonable assurance that a project meets SFWMD objectives, and include both water quantity and quality considerations as well as environmental standards designed to protect fish and wildlife. One feature of the Basis of Review is a provision allowing an applicant to submit and implement innovative project designs as long as they meet District objectives. Many of the principles embodied in the Basis of Review have been carried forward into the challenged rules.
An applicant may apply for a conceptual approval or a construction and operation (C&O) permit. The conceptual approval is a permit for a master plan when the applicant is not ready to submit all detailed drawings necessary to obtain a C&O permit. It is especially appropriate for large projects developed in phases. A conceptual approval does not authorize construction of a surface water management system, but rather authorizes a master plan with which subsequent construction and operation must be consistent. Once a conceptual permit has been issued, the individual C&O permits are then applied for and issued consistent with the terms of the conceptual permit.
In 1986 the Legislature enacted Section 373.414, Florida Statutes (Supp. 1986). That section requires the District, not later than March 31, 1987, to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department (of environmental regulation) for purposes of regulation of dredging and filling." The statute goes on to require that the rule include the following:
One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal;
Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size;
Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and
Provisions for consideration of the cumulative and offsite impacts of a project or projects.
The statute further provides that until the District adopts specific isolated wetland rules, its review of fish and wildlife impacts in small isolated wetlands is limited to:
Wetlands that are 5 acres in size or larger; or
Wetlands that are used by a federal or state designated threatened or endangered species; or
Wetlands located within an area of critical state concern designated pursuant to chapter 380; or
Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage
proposed for development, within a development project greater than 40 acres in size.
In response to the foregoing legislation, and after a series of meetings and workshops, on November 7, 1986 the District proposed to amend existing Rules 40E-4.091 and 40E- 4.301, Florida Administrative Code. The text of the amended portion of Rule 40E-4.301 reads as follows:
40E-4.301 Conditions for Issuance of Permits. (1)(m) is not against public policy, and
will meet the general and specific criteria in the document described in Rule 40E-4.091(1)(a), and
will meet the criteria for isolated wetlands, which are found in Appendix 7 of the document described in Rule
40E-4.091(1)(a)
(Underscored words represent the proposed amendment.)
In conjunction with the foregoing, the District prepared an economic impact statement (EIS) which read as follows:
SUMMARY OF THE ESTIMATE OF ECONOMIC IMPACT OF THE RULE:
1. COST TO THE AGENCY: The proposed rule largely reflects existing policy and procedure but enunciates the specific guidelines the District applies in permitting decisions. The rule strikes a balance between specific quantitative guidelines and administrative flexibility with regard to permitting decisions. While there may be some initial implementation costs to the District, a minimal total cost increase to the agency is expected. The specific quantitative guidelines provided in the Appendix are expected to facilitate agency decisions regarding required mitigation-
compensation, so that in the long run costs may actually decline as a result of implementation of the new criteria. There are no plans to change the size of District regulatory staff as a result of implementation of the standards in Appendix
To the extend that additional staff is required in the future to address the impacts of permitting decisions on wetland habitat on threatened and endangered species, this impact can more correctly be attributed to the adoption of Section 373.414, F.S., by the Florida Legislature than to this rule.
COSTS AND BENEFITS TO THOSE DIRECTLY AFFECTED: Appendix 7 provides the applicant with the choice of either meeting specific quantitative project design criteria or proposing a unique project design which will be reviewed by a qualitative standard to ensure that the proposed project complies with the District's objective of protecting isolated wetlands and their associated fish and wildlife functions and values. The requirements that project applications which
proposed to impact wetlands provide reasonable assurances, such as mitigation/compensation, maintenance plans, monitoring and a guarantee of performance, is expected to result in some cost increases to permittees. Such require- ments are likely to improve the effectiveness of District protecting the water and related land resources of the District.
IMPACT ON COMPETITION AND THE OPEN MARKET FOR EMPLOYMENT: No significant impact on competition and the open market for employment is expected.
IMPACTS ON SMALL BUSINESS: The quantitative criteria in the Appendix set differential standards on the basis of isolated wetland size rather than firm size. Large projects are expected to have slightly greater flexibility in meeting the reasonable assurance requirements than small projects; however, the differential impact on small business, as defined in Section 288.703, Florida Statutes, is not expected to be significant.
DATA AND METHODS USED: Data from the computer files of the District's Resource Control Department were the primary source of data used.
Appendix 7 adopted by reference in amended Rule 40E- 4.301(1)(o) is a document entitled "Basis of Review for Surface Water Management Permit Applications within the South Florida Water Management District - Appendix 7 - Isolated Wetlands" (Appendix 7). As originally proposed for adoption, the Appendix contained sections 1.0 through 6.0 covering the following subjects: introduction (1.0), glossary (numbered as 2.0 and containing sections 2.1, 2.2, 2.3, 2.4, 2.7., 2.9 and 2.10), size threshold (3.0), review procedures for projects which propose to impact isolated wetlands (numbered as 4.0 and containing sections 4.1-4.5), review criteria (5.0), quantitative design criteria (5.1.1., 5.1.2., 5.1.3, 5.1.4, 5.1.5, 5.1.7 and 5.1.8), qualitative criteria (5.2-5.2.3) and project guarantee criteria (numbered as 6.0 and containing sections 6.1-6.3). For purposes of surface water management permitting, Appendix 7 applies only to activities in isolated wetlands while all other activities are subject to the criteria embodied in the Basis of Review.
On November 26, 1986 petitioners, Orlando Central Park, Inc. (OCP), Real Estate Corporation of Florida, N.V. (REC), and National Association of Industrial and Office Parks, Region IV (NAIOP), filed a Petition for Administrative Determination of Invalidity of Proposed Rules wherein they sought to have declared invalid proposed rules 40E-4.091(1) and 40E-4.301(1)(o). In their petition, petitioners generally challenged all or portions of sections 2.0, 3.0, 4.0, 5.0, 5.1., 5.2 and 6.0-6.4 in Appendix 7 as well as the sufficiency of the EIS.
In light of the above petition having been filed, the District again considered its proposed rules on January 8, 1987 and amended Appendix 7 in a number of respects. The revised Appendix has been received in evidence as joint exhibit number 2. As a result of those revisions, and as reflected in their post- hearing pleadings, petitioners have limited their attack to sections 2.2, 4.2b, 4.3, 4.4, 5.1.1a, 5.1.1b, 5.1.1d, 5.1.2, 5.1.3 and 5.1.7 in Appendix 7 and the adequacy of the EIS.
On January 15, 1987 intervenor/respondent, The Florida Audubon Society (intervenor or FAS), filed a petition to intervene. This petition was granted conditioned upon intervenor proving up at final hearing its standing in the proceeding.
Standing
In order to challenge a proposed rule, a party must generally demonstrate that its substantial interests will be affected by the challenged rule. To do so, petitioners presented evidence on this issue at final hearing. In the same vein, the standing of intervenor was also questioned, and it too presented evidence to demonstrate its right to have access to this proceeding.
REC - REC is the owner and developer of a residential and commercial development consisting of approximately 2,400 acres known as the Buenaventura Lakes Planned Unit Development between Kissimmee and St. Cloud in Osceola County. The project has been subdivided into what is known as Basins 1, 2 and 3, of which the undeveloped acreage lies within the latter Basin. The corporation has plans to develop the remaining acreage into single family and multi-family residential and commercial developments but has not yet obtained the necessary environmental permits for the undeveloped tract. Through the testimony of an REC representative, the undeveloped acreage was described as having open grasslands, wooded areas and low, marshy areas. Some portions of the land were also described as a "wet, marshy, boggy area." However, their specific size was not disclosed, and there was only conjecture on the part of
petitioners' expert that the areas were in fact isolated wetlands as defined in the proposed rule. The representative fears that if jurisdictional isolated wetlands are located within Basin 3, and the rules are adopted, it will impact upon REC in that more restrictive permits will be required prior to any further development of the land.
The District has previously issued construction and operation permits for Basins 1 and 2 and necessary Department of Environmental Regulation (DER) permits have also been obtained. None have been sought or issued for Basin 3, and there was no evidence that a letter of conceptual approval covering drainage in Basin 3 has been issued by the District. Had one been issued, the project might be grandfathered and exempt from the pending rules. Even so, the record does not support a finding that isolated wetlands as defined in the proposed rule are definitely located within Basin 3 so as to make REC's substantial interest affected by this proceeding.
NAIOP - The NAIOP is a national non-profit organization of developers, consisting of some 6,000 members nationwide. In Florida, it has four chapters (Jacksonville, Fort Lauderdale, Orlando and Tampa) and "several hundred" members. As developers of office, industrial and commercial real estate, it is necessary that its members obtain permits from the District on certain projects within the District's jurisdiction.
The association monitors all rulemaking proceedings affecting its members, and has actively lobbied the legislature on environmental matters. It has appeared before the District and DER concerning rules and policy, especially those that affect the permitting process.
According to an NAIOP representative, Eric B. Eicher, approximately 30 percent of its state members do business in SFWMD jurisdictional territory. However, Eicher had no first-hand knowledge as to how many members owned property within the District, or whether any members are intending to develop isolated wetlands which would be subject to the proposed rule. Indeed, he admitted that only two members had even talked to him about the proposed rules. As such, the NAIOP has not demonstrated any immediate and discernible impact that the proposed rule would have on its members.
OCP - The OCP is a wholly-owned subsidiary of Martin-Marietta Corporation, a large corporation with offices in the Orlando area. However, Martin-Marietta is not a party in this proceeding. OCP itself is the owner and developer of an office, industrial and commercial park known as Orlando Center Park in Orange County, Florida. In addition, OCP acts as the developer of certain properties owned by Martin-Marietta. At the present time, OCP has approximately 2,400 acres in its own name which it intends to develop. They are generally located in an area west of the Florida Turnpike, south of Sand Lake Road, north of the Beeline Expressway and east of 1-4. Various aerial photographs and maps of the area were received in evidence as petitioners' exhibits 5, 8 and 9. It is undisputed that this property lies within the territorial jurisdiction of the SFWMD.
On November 17, 1977 the District issued a permit granting conceptual approval of a master plan for the development of certain properties owned by OCP. However, the permit itself (petitioners' exhibit 15) did not include a review of impacts on wetlands for OCP's property. Therefore, the project is not grandfathered under proposed rule 4.1, and is subject to the new rules. If the proposed rules are adopted, OCP would have to modify its master plan and reduce the amount of its sellable or developable property.
In two jurisdictional determinations performed by DER in 1983 and 1984, DER identified various isolated wetlands on OCP's property not subject to DER jurisdiction. These are located on what are identified as phases 8-B and 9 of the undeveloped tract of land (petitioners' exhibits 8 and 13). Since it is undisputed that OCP intends to develop this land, OCP is substantially affected by the proposed rules.
FAS - Intervenor, which supports the rule amendments, is a non-profit association with principal headquarters in Maitland, Florida. Its membership numbers some 30,000, of which a large part live in Southeastern Florida and within the territorial jurisdiction of SFWMD. Although only one member (its president) testified at final hearing, it was the president's contention that "most" of its members support the proposed rules and the perpetuation of the isolated wetland as a function for wildlife.
Through documentation offered in evidence as intervenor/respondent's exhibit 1, it was established that FAS owns various tracts of undeveloped land in Lee, St. Lucie and Collier Counties, which lie within SFWMD's boundaries. A part of these lands are isolated wetlands, and other parts are adjacent to wetlands areas. Although FAS expressed a fear that adjacent wetlands may be developed if the proposed rules are invalidated, it offered no proof of impending developments on isolated wetlands, or that such development would occur on properties adjacent to its own. Therefore, any adverse impact is remote and speculative, and has no immediacy or reality.
The FAS has entered into a contract with the Game and Fresh Water Fish Commission to administer the Florida Breeding Bird Atlas Program. Under the program, FAS has contracted to establish a baseline of the numbers and types of breeding birds in the State. The FAS fears that if the rule amendments are not adopted, the destruction of wetlands will occur, thereby interfering with its ability to carry out the contract. Again, however, it offered no proof of impending developments on adjacent isolated wetlands, or otherwise established that its substantial interests under the contract would be affected.
Economic Impact Statement
Other than the introduction of the EIS into evidence as joint exhibit 4, there was no relevant factual evidence presented by the parties concerning the insufficiency or inaccuracy of the EIS. It is noted, however, that the District merely estimated that the proposed rules would "result in some cost increases to the permittees", and did not attempt to precisely identify the economic impact. Respondent offered into evidence various documents upon which it relied in preparing the EIS. However, such documents are hearsay, and it was not shown what competent evidence, if any, they were intended to supplement and explain.
The Challenged Rules
Petitioners' real concern lies with portions of Appendix 7 which has been adopted and incorporated by reference by Rule 40E-4.301(1)(o), Florida Administrative Code. That document spells out in detail the criteria that will apply to applications for surface water management permits where the proposed activity affects isolated wetlands. As noted earlier, the Appendix is divided into a number of sections, which for ease of discussion will be referred to as "rules." Each challenged "rule" will be dealt with separately.
Rule 2.2 - This rule defines an "isolated wetland" as follows:
Any wetland not under the jurisdiction of the Department of Environmental Regulation (DER) for the purposes of regulation of dredging and filling. Multiple individual wetlands normally connected by surface flow during a wet season with average rainfall shall be presumed to be an isolated wetland.
The first sentence of the rule simply provides that any wetland not subject to DER dredge and fill jurisdiction is to be considered an isolated wetland and subject to Appendix 7 criteria. Conversely, if a wetland is subject to DER jurisdiction, any District regulated activity affecting that land must be considered under the existing Basis of Review criteria. Petitioners' concern is with the second sentence of the rule and is that whenever multiple isolated wetlands are connected by surface flow during the wet season, they believe the rule would confer jurisdiction in SFWMD not only over the isolated wetlands themselves, but also the uplands that lie adjacent to and between the individual wetlands. But, through credible and persuasive testimony, it was established that this is not the intent or result of the proposed amendment. Indeed, it was established that jurisdiction is intended to lie only over the wetlands themselves, and not the connecting uplands. Petitioners also object to the District aggregating small isolated wetlands into a single larger isolated wetland for jurisdictional purposes. However, such aggregation is necessary because of the biological interaction between the small wetlands. Petitioners further voiced some criticism of the provision in the rule that connected wetlands shall be presumed to be an isolated wetland. Even so, the rule allows an applicant to present evidence to contradict this presumption. Finally, despite suggestions to the contrary, there was no evidence of any conflicting DER policy or concept regarding isolated wetlands, how such wetlands are defined by DER, or that DER prefers the District to follow such policy or definition.
Rule 4.2b. - This rule prescribes certain information that must be filed by an applicant for a permit whenever the project impacts isolated wetlands. As is pertinent here, Section b. requires the following to be filed with the application:
b. A list of all plant and animal species listed as endangered, threatened or of special concern pursuant to 50 Code of Federal Regulations, Section 17.12, and Rules 39-27.03, 39-27.04 and 39-27.05, Florida Administrative Code, which are incorporated by reference and made a part of this rule which utilize the area and an evaluation of the probable significance of the area to the listed species.
Petitioners object to the requirement that an applicant submit a list of all plant species of special concern as defined by Rule 39-27.05, Florida Administrative Code. This rule was promulgated by the Game and Fresh Water Fish Commission and designates some forty-three plant "species of special concern". Petitioners' objection is based on the premise that the term "species" does not include plants, and that plant species are accordingly outside the purview of the District's permitting authority. However, they presented no evidence to support this construction of the term. In contrast, through testimony from a
National Audubon Society employee, it was established that the term "species" not only includes animals, but plants as well.
Mitigation/Compensation Rules - A number of rules within Appendix 7 make reference to mitigation and compensation proposals to be submitted by applicants whose projects impact isolated wetlands. As is relevant here, they include rules 4.3, 4.4, 5.1.1a., b. and d., 5.1.2, 5.1.3 and 5.1.7, all challenged by petitioners. These rules generally require or provide for mitigation when an applicant intends to impact or destroy all non-exempt isolated wetlands 0.5 acre to 5.0 acres in size. It is petitioners' contention that the District has no authority to require or otherwise provide for mitigation or compensation as a permit criterion.
Mitigation is defined in rule 2.8 as "remedying isolated wetland impacts by restoring or enhancing affected habitat, or by creating similar habitat of equal or greater function". Compensation is defined in rule 2.9 as the "replacement of isolated wetlands with a mixture of wetland/upland habitat, unique upland habitat, or otherwise provide overall benefits to the natural system".
Mitigation is a common practice in environmental permitting and has been routinely used by the District in its existing Basis for Review. Indeed, at the present time ``most'' applicants include a mitigation plan with their applications for permits. Even petitioners' expert conceded that the use of mitigation is "a reasonable practice" and has resulted in "better projects", and "better" protection of the water resources.
Rules 4.3 and 4.4 require applicants who propose mitigation or compensation to submit certain information with their applications. This information is necessary to insure that the mitigation/compensation plan will be successful. It is also noted that mitigation is not used or required for every project, and can be avoided where a project has other built-in compensation features. The new rules simply continue existing agency policy.
Rules 5.1.1a. and b. provide the following presumptions concerning mitigation and compensation:
Mitigation or compensation for elimination of isolated wetlands between 0.5 and 5.0 acres in size, pursuant to Section
5.1.2 below, shall be presumed to maintain wetland functions.
There is no presumption that the function of isolated wetlands over 5.0 acres in size
can be maintained by measures other than protection as defined in Section 2.4 above. Protection of isolated wetlands over 5.0 acres in size shall be the preferred method of providing the required reasonable assurance, however, other reasonable alternatives proposed by the applicant will be considered.
Section a. creates a presumption in favor of the applicant that mitigation or compensation, in ratios specified within the rules, shall be presumed to maintain the functions of isolated wetlands between .5 and 5 acres in size. Section b. eliminates this presumption for isolated wetlands over
five acres in size since the District's experience has been that applicants have not generally been successful in mitigating larger wetlands, and that it is more difficult to mitigate and compensate for larger projects. Even so, the rule allows an applicant to present "other reasonable alternatives" to mitigation.
Petitioners object to the presumption in Section b. since they contend it reposes in the District the authority to preserve isolated wetlands over 5.0 acres in size. However, this "authority" comes into play only when the criteria cannot be met, and the applicant fails to present "other reasonable alternatives".
Rule 5.1.1d. provides as follows:
(d) Protection of isolated wetlands or incorporation of isolated wetlands into surface water management systems in favored over isolated wetland destruction and mitigation or compensation. Wetland destruction and mitigation or compensation shall be considered only when there are no feasible project design alternatives for the particular site. Reasonable project design alternatives to isolated wetland impacts shall be considered.
This rule essentially favors the protection of isolated wetlands as opposed to their destruction. It goes on to permit destruction and mitigation/compensation whenever there are no "feasible project design alternatives". In other words, the District has established a first priority of preserving wetlands whenever possible, and allowing destruction only when no "reasonable project design alternatives" are available. Under the latter situation, mitigation/compensation will then be required. Petitioners assert the term "feasible project design alternative" is not readily understood, or comprehensible to the average person. However, even their engineer stated he could "apply it", and that he "normally" goes about designing projects consistent with the terms of the rule. It was further established that the District construes the terms "feasible" and "reasonable" to be synonymous, and that the rule would not require an applicant to present a proposal that was prohibitively expensive, or technically unfeasible.
Rule 5.1.2 also deals with mitigation/compensation and addresses mitigation ratios to be used by applicants. It reads as follows:
Isolated wetland mitigation shall be implemented based upon ratios of acres wet- lands created, or restored to acres of wet- lands destroyed which provide reasonable assurance that the mitigation will be successful. The following ratios shall be presumed to provide such reasonable assurance for type-for-type mitigation:
Forested swamp, non-cypress dominated-2. 5:1
Forested swamp, cypress dominated---2.0:1
Freshwater marshes 1.5:1
Ratios for mitigation with unlike habitat, including expanded littoral zones, or compen- sation shall be determined on a case-by-case basis. When type-for-type mitigation is
provided as defined in Section 2.8 and accepted by the District prior to isolated wetland impacts, a one-to-one ratio shall be presumed to provide such reasonable assurance.
The rule explains that the prescribed mitigation ratios provide reasonable assurance that the creation or restoration will be successful. It is a natural corollary to the District's mitigation/compensation policy. Testimony established that these ratios were reasonable, favor an applicant, and are consistent with the different natural communities to which they apply. Higher ratios of wetlands created to wetlands destroyed are necessary because of the time required for an artificially created replacement system to provide all of the previous native functions. Finally, the use of a one-to-one ratio when
type-for- type mitigation is used reduces the amount of land required by an applicant for mitigation, and provides flexibility from the otherwise specified ratios.
Rule 5.1.3 prescribes the use of mitigation/compen-sation where disturbed wetlands are impacted by a project. It reads as follows:
Disturbed isolated wetlands may be developed and their loss compensated for by:
Mitigation at ratios less than those required in 5.1.2, based on the degree of disturbance and the remaining functional qualities. Mitigation through restoration or other disturbed wetlands is preferred over wetland creation.
Preservation of unique uplands or in- clusion of developable uplands within an up- land/wetland protected system. Mitigation or compensation shall not be required for isolated wetlands which do not provide fun- ctions and values as expressed above in Sections 1.0 and 5.0.
Unlike rule 5.1.2., this rule provides for mitigation ratios based upon the degree of disturbance and the remaining functional qualities of the wetland. It is too is a natural corollary of the District's stated policy. It recognizes that some wetlands have been disturbed, and that the ratios prescribed in rule 5.1.2. are inappropriate and too rigid for a previously disturbed wetland.
Rule 5.1.7 - The final rule challenged by petitioners provides for the establishment of "buffer zones" under certain conditions. It is petitioners' contention that, like many of the other cited rules, the District has no authority to adopt the rule because buffer zones in upland areas are not a part of the surface water management system. A buffer zone is defined in rule 2.7 as "an area adjacent to the isolated wetland which protects wetland function and minimizes adverse impacts of upland development on wetland function". The challenged rule reads as follows:
Buffer zones may be required around all isolated wetlands that are to be protected or incorporated into a surface water management system to protect wetland function and mini- mize adverse impacts of upland development
on wetland function. Actual delineation of the buffer zone may vary according to site specific conditions. Buffer zones which extends (sic) at least fifteen feet landward from the edge of the wetland in all places and averages twenty-five feet from the landward edge of the wetland will be presumed to be adequate.
Prior to issuance of Construction and Operation permits, buffer zones shall be field verified and delineated in the field.
Buffer zones may consist of undisturbed uplands, open water bodies, wildlife corr- idors or other natural or structural features which serve the purpose stated
in Section 2.7 as appropriate for the particular site.
Upland areas or wildlife corridors adja- cent to buffer zones may be incorporated as compensation areas, provided they are in excess of the minimum buffer zone
and meet all other requirements for compen- sation areas.
Under current District policy, buffer zones are required around wetlands whenever they are necessary to maintain the integrity of the wetland. They are a reasonable tool in the District's arsenal to protect water, fish and wildlife resources. Testimony established that they are particularly essential when an applicant proposes to build a project immediately adjacent to a wetland so that erosion or destruction of the wetland may be avoided. The rule merely extends the District's existing policy to isolated wetlands.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.54(4), Florida Statutes (Supp. 1986).
Initially, the parties' standing to challenge or support the rules must be determined. In its proposed order, the District does not challenge the right of REC to bring this action, but does contend that OCP and NAIOP lack standing to do so. At the same time, petitioners argue that intervenor FAS has failed to demonstrate that its substantial interests are affected. Subsection 120.54(4)(a), Florida Statutes (Supp. 1986), provides that:
Any substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority.
To satisfy the foregoing statute, a party must establish at final hearing that it will suffer injury in fact, and that the injury is one that is subject to protection in the proceeding by virtue of a rule, statute or constitutional provision. Florida Medical Association, Inc. v. Department of Professional Regulation, 426 so2d 1112, 1118 (Fla. 1st DCA 1983). Further, the injury must not be speculative, nonspecific and hypothetical, and lacking in
immediacy and reality. The Florida Department of Offender Rehabilitation v. Jerry, 353 so.2d 1230, 1235 (Fla. 1978), cert. denied, 359 so.2d 1215 (Fla. 1978). Finally, where the party is an association, it must show that (a) a substantial number of its members, although not necessarily a majority, are substantially affected by the rule, (b) the subject matter of the rule is within the association's general scope of interest and activity, and (c) the relief requested must be the type appropriate for the association to receive on behalf of its members. Florida Home Builders Association v. Department of Labor and Employment Security, 412 So2d 351, 353 (Fla. 1982).
In the case at bar, the NAIOP, an association of developers, has failed to show that a "substantial number" of its members will be affected by the proposed rule. Indeed, only two members out of several hundred had even questioned the rules, and there was no evidence to show that any owned or intended to develop property with isolated wetlands. Therefore, the pending motion to dismiss NAIOP is granted. Florida Home Builders; Florida Medical Association, supra.
OCP, a corporation, presently has property on which isolated wetlands are found. Although the District issued a conceptual approval for a master plan on OCP's property in 1977, the permit itself did not address a review of impact on wetlands. Therefore, OCP must modify its master plan in order to conform to the proposed rules. Since the corporation intends to develop this property, the proposed rules will cause an "injury" which is a matter of concern in this proceeding.
Finally, REC did not establish that isolated wetlands as defined in rule 2.2 are located on its property, and whether they are of a size or configuration that would invoke District jurisdiction. Accordingly, the pending motion to dismiss REC is granted.
The status of intervenor FAS has also been challenged. Since FAS is an association, the requirements enunciated in Florida Home Builders apply. There is also the requirement that the association show injury in fact occasioned by the proposed rule. The record reflects no such injury that is specific and real, for FAS failed to show that the invalidation of the rules would result in destruction of wetlands adjacent to its property, or that any such owner had plans to do so. Therefore, the alleged injury is speculative, and lacking in immediacy and reality. Jerry, supra. Petitioners' motion to dismiss FAS is accordingly granted.
To defeat the challenged rules, petitioners raise three broad grounds. First, they contend a number of rules (2.2, 4.2, 4.3, 5.1.1, 5.1.2, 5.1.3 and 5.2) exceed the statutory authority in Chapter 373. Secondly, they assert two rules (2.2 and 5.1.1d.) are vague, arbitrary and capricious, and provide inadequate notice. Finally, they contend the EIS is not sufficient. Each ground will be dealt with separately.
The law is well-settled that one who challenges a proposed rule must show that (a) the agency adopting the rule has exceeded its authority, (b) the requirements of the rule are not appropriate to the ends specified in the legislative act, and (c) the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation but are arbitrary or capricious. Department of Administration, Division of Retirement v. Albanese, 445 So2d 639, 641 (Fla. 1st DCA 1984). In this regard, petitioners have lodged a two-pronged attack against the rules. In the first instance, they have purposely limited their challenge to claiming only that certain rules
exceed the statutory authority. By doing so, they seek to limit the inquiry to whether the proposed rules are authorized by statute, Department of Health and Rehabilitative Services v. Florida Psychiatric Society, 382 So2d 1280 (Fla. 1st DCA 1980), and to obviate the need to question their wisdom. Department of Insurance v. Insurance Services Office, 434 So.2d 908, 913 (Fla. 1st DCA 1983). While this may be true, the three bases for challenging a rule cited in Agrico are not necessarily mutually exclusive as petitioners suggest. For example, if a rule facially exceeds the statutory authority, no further inquiry is needed. But, if the law directs an agency to perform some function, and reasonable doubt as to the validity of what the agency has done still exists, one must then determine if the requirements of the rules comport with the "ends of the legislative act." In other words, has the agency done what the legislature has directed it to do. Even then, a rule that does not exceed the statutory authority and whose requirements are related to the legislative purpose, may still be so arbitrary and capricious as to render it invalid. With this in mind, and recognizing that an administrative rule cannot enlarge, modify, or contravene the provisions of a statute, Department of Business Regulation v.
Salvation Limited, Inc., 452 So2d 65, 66 (Fla. 1st DCA 1984), a review of the agency's statutory authority is necessary.
In its notice published in the Florida Administrative Weekly, and as required by Subsection 120.54(7), Florida Statutes (Supp. 1986), the District has cited Sections 373.044, 373.113, 373.413, 373.414, 373.416 and 373.426 as the sources of authority for the rules. The first two sections (373.044 and 373.113) authorize the District to "make and adopt reasonable rules, regulations, and orders which are consistent with law" and to "adopt, promulgate, and enforce such regulations as may be reasonably necessary to effectuate its powers, duties and functions". These statutes are generally referred to as the general rulemaking authority of the District under Chapter
373. In addition to this authority, SFWMD has relied upon Section 373.413 which allows the District to:
require such permits and improve such reasonable conditions as are necessary to assure that the construction or alteration of any dam, impoundment, reservoir, appurtenant work, or works will not be harmful to the water resources of the district.
The District further relies upon the previously cited Section 373.414, Florida Statutes (Supp. 1986) which reads as follows:
By March 31, 1987, for those water management districts to which the department has delegated the responsibility for administration of its stormwater rule, each district shall adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department for the purposes of regulation of dredging and filling. The rule shall include:
One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that
shows the fish and wildlife values of such areas to be minimal;
Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size;
Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and
Provisions for consideration of the cumulative and offsite impacts of a project or projects.
This section does not affect the authority of the water management districts to regulate impacts on water quality and quantity.
Until a water management district has adopted a rule to implement the provisions of subsection (1), review of fish and wildlife impacts in small isolated wetlands shall be limited to:
Wetlands that are 5 acres in size or larger; or
Wetlands that are used by a federal or state designated threatened or endangered species; or
Wetlands located within an area of critical state concern designated pursuant to chapter 380; or
Wetlands that are less than 5 acres in size having a cumulative total acreage greater than 30 percent of the total acreage
proposed for development, within a development project greater than 40 acres in size.
Further, Subsection 373.416 (1) provides in relevant part that the District may:
...require such permits and impose such rea- sonable conditions as are necessary to assure that the operation or maintenance of any dam, impoundment, reservoir, appurtenant work, or works will not be inconsistent with the overall objectives of the district and will not be harmful to the water resources of the district.
Reference to the cited Section 373.426 appears unnecessary since that section refers to the abandonment of certain works within the District's boundaries. Finally, although not cited by the agency, Sections 372.016 and 373.616, Florida Statutes (1985), are relevant. Subsections (2) and (3) of the former statute provide in part:
It is further declared to be the policy of the Legislature:
(a) To provide for the management of water
and related land resources:
* * *
(e) To preserve natural resources, fish and wildlife;
* * *
It is therefore the intent of the Legislature to vest in the Department of Environmental Regulation...the power and responsibility to accomplish the conservation, protection, management, and control of the waters of the state and with sufficient flexibility and discretion to accomplish these ends through delegation of appropriate powers to the various water management districts...
* * *
The latter statute (s. 373.616) provides that Chapter 373 "shall be construed liberally for effectuating the purposes described (therein)". Although Section 373.016 is a statement of general legislative intent, it also serves as an important aid in determining the purpose and scope of other
provisions within Chapter 373, including Section 373.414. Osceola County v. St. John's River Water Management District, So.2d (Fla. 1987), 12 FLW 113.
At the same time, the enactment of Section 373.616 expresses a legislative intent that the provisions of Chapter 373 be liberally construed to carry out the powers therein
Petitioners charge that insofar as proposed rules 4.3, 5.1.1, 5.1.2,
5.1.3 and 5.2 are concerned, the District has exceeded the above authority since those statutes do not expressly authorize the District to require or otherwise provide for or allow mitigation/compensation as a permit criterion or condition. They reason that because of this, any authority to promulgate these rules must be implied from the law. They further point out that before this may occur, it must be shown that the use of mitigation/compensation is essential to the District's authority, a showing they say the District has not made.
The general purpose of the law which prompted these rules is to establish "specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department (of environmental regulation) for purposes of dredging and filling jurisdiction". In this vein, the same law [Subsection 373.414(1)(c)] instructs the District to establish "criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use". (Emphasis added) Also pertinent is the stated legislative purpose in Subsection 373.016(2)(e) to "preserve natural resources, fish and wildlife". (Emphasis added) Although the words "mitiga- tion/compensation" are not specifically referred to in the enabling statute, the law expressly authorizes the establishment of criteria that protect threatened and endangered species and which meet the legislative purpose of preserving natural resources, fish and wildlife. To accomplish these goals, the District has chosen to use mitigation/compensation, a regulatory tool that is both reasonable and necessary to preserve and protect wetlands habitat. Indeed, since the agency by statute is charged with "protecting" and "preserving" wetlands, and the mitigation/ compensation rules provide for "restoring," "enhancing," "creating," and "replacing" wetlands, the rules do not enlarge, modify or contravene the provisions of Chapter 373. Moreover, the requirements of the rules (to mitigate and compensate for impacted wetlands) are reasonably related to the ends of the law which are to preserve and protect the habitat of
wetlands. Therefore, it is concluded the rules are a valid exercise of delegated legislative authority and should be sustained.
Petitioners next assert that SFWMD is not authorized to require or otherwise provide for preservation of isolated wetlands greater than 5.0 acres in size as set forth in proposed rule 5.1.1b. The question, then, is whether the agency may lawfully adopt a rule expressing a preference for preservation of certain isolated wetlands under the circumstances described in the rule. Again, it is noted that the agency's mandate is to protect and preserve the natural resources and habitat in isolated wetlands. This reasonably contemplates the preservation of such wetlands whenever an applicant fails to give the District reasonable assurance that proscribed injuries to habitat will not occur, and no reasonable alternatives have been proposed. Further, the use of this criterion is appropriate to the ends specified in the law since the rules merely carry out the legislative mandate. Therefore, it is concluded the rule is consistent with the statute, and is accordingly valid.
Petitioners have also challenged rule 5.1.7 on the ground the District is not authorized to require or provide for upland buffer zones. They reason that since by definition in rule 2.7 a buffer zone is "an area adjacent to the isolated wetland", and may be required as protection around an isolated wetland, the District has improperly asserted jurisdiction over upland areas. Such jurisdiction is improper, they say, because the District's authority is limited to "waters of the state" (s. 373.023(1), F.S.), and such restrictions would impair property rights as proscribed by Subsection 373.171(1), Florida Statutes 1985). They go on to argue that a buffer zone is not required since the District can simply deny a permit if other criteria are not satisfied.
It is true, as petitioners assert, that the rule calls for the establishment of buffer zones "around isolated wetlands" in order to "protect wetland function and minimize adverse impacts of upland development on wetland function". However, the agency is reposed with the power to preserve and protect wetland habitat. Moreover, Subsection 373.414(1)(d) specifically authorizes the District to make "provisions for consideration of the cumulative and offsite impacts of a project or projects". (Emphasis added) Under this authority, the District may utilize a method such as buffer zones to avoid the deleterious effects of offsite activities. Further, the extension of buffer zones into adjacent uplands is necessary in order to shield the habitat from impacts that originate on the upland property. Finally, the argument that a buffer zone "impairs" the owner's property rights is deemed to be unavailing. This is because the applicant is able to "use" his land subject only to the constraint that he buffer the adverse environmental impacts of the project. Accordingly, the rule is valid and should be sustained.
Petitioners next challenge proposed rule 5.1.1d. on the ground the SFWMD is not authorized to require the applicant to demonstrate that there are "no feasible project design alternatives" as a precondition to isolated wetland impact. According to the rule, "wetland destruction and mitigation or compensation shall be considered only when there are no feasible project design alternatives for the particular site". Petitioners argue that the imposition of the additional requirement of submitting an alternative project design is a burden not authorized by the law. They contend, therefore, that the rule is an invalid exercise of delegated legislative authority.
As stated many times before, the legislative intent is to protect threatened and endangered species in isolated wetlands, and to preserve natural resources, fish and wildlife. The questioned rule merely implements this
authority by requiring an applicant to show that no reasonable project design alternative exists before destruction will be permitted. Moreover, this requirement is appropriate to the ends specified in the legislative act since it carries out the legislative mandate. Therefore, the rule is valid.
Next, petitioners urge that proposed rules 4.2b. and 5.1.8 be invalidated on the ground the District is not authorized to require or provide for regulation of "plant species" or "species of special concern". Those two rules require an applicant to include in his application a list of all plant species "listed as endangered, threatened or of special concern pursuant to...Rule 39-27.05, Florida Administrative Code" and to "provide reasonable assurance that an isolated wetland that is utilized by species of plants...designated as endangered and threatened...shall be protected". Petitioners point out that although the District is empowered to provide "criteria for the protection of endangered and threatened species in isolated wetlands" (s. 373.414(1)(c), F.S.), this section must be read in pari materia with the preceding subsection of that statute which refers to the establishment of "criteria for review of fish and wildlife and their habitats". Thus, they contend that under the doctrine of expressio unius est exclusio it may be reasonably implied that the Legislature did not intend to grant authority in Subsection 373.414(1)(c) to regulate "species of special concern" or "plant species".
Had the Legislature intended to limit the term species" to only fish and wildlife, it could have easily done so. Instead, the grant of authority has been fashioned in a much broader sense, and reasonably encompass the authority to provide criteria for endangered or threatened plant species as well. This interpretation is consistent with Section 373.616 which provides that the provisions in Chapter 373 "be liberally construed in order to effectively carry out its purposes", and the evidence of record which established, without contradiction, that the generic term "species" includes not only animal species, but plant species as well. Therefore, rules 4.2b. and 5.1.8 are authorized by the enabling statute, and are valid.
Lastly, petitioners contend that proposed rule 2.2 is invalid because the District has defined an "isolated wetland" in a manner different from that used by DER, and that it has no authority to do so. The rule reads as follows:
Any wetland not under jurisdiction of the Department of Environmental Regulation (DER) for the purposes of regulation of dredging and filling. Multiple individual wetlands normally connected by surface flow during a wet season with average rainfall shall be presumed to be an isolated wetland.
Petitioners contend the second sentence of the rule is invalid since it results in an unlawful expansion of jurisdiction. More specifically, they point out that the rule authorizes the District to assert jurisdiction over non- jurisdictional upland areas between individual wetlands whenever such individual wetlands are connected by surface flow during a wet season with average rainfall, and to aggregate otherwise exempt wetlands under those circumstances. Because of this, they reason that the rule contravenes Rule 17-12.045, Florida Administrative Code, which they claim constitutes DER's definition of "isolated wetlands". The DER rule provides as follows:
17-12.045 Jurisdictional Intent. The
department recognizes that the natural border of certain water bodies listed in Rule 17- 12.030, Florida Administrative Code, may be difficult to establish because of seasonal fluctuations in water levels and other characteristics unique to a given terrain.
The intent of the vegetation indices in Rules 17-4.022, Florida Administrative Code, is to guide in the establishment of the border of the water bodies listed in Rule 17-12.030, Florida Administrative Code. It is the intent of this rule to include in the boundaries of such water bodies areas which are customarily submerged and which are contiguous to a recognizable water body (i.e., areas within the landward extent of waters of the state as defined in Rule 17- 4.020(17) and (18), Florida Administrative Code) . Isolated areas, because they infrequently flow into or otherwise exchange water with a described water body, are not intended to be included within the dredge and fill jurisdiction of the department. The vegetation indices in Rules 17-4.020(17) and 17-4.022, Florida Administrative Code, are presumed to accurately delineate the landward extent of such water bodies.
To begin with, there is no evidence of record that DER construes this rule as defining isolated wetlands, or that the District is bound to adhere to its terms. Moreover, petitioners' argument is erroneously founded on the premise that rule 2.2 authorizes the District to assert jurisdiction over upland areas between individual wetlands when they are connected by surface flow during a wet season with average rainfall. Such a premise is not supported by the more credible and persuasive testimony in this cause. Since the underpinnings of their premise are flawed, and there being no evidence that Rule 17-12.045 reflects DER's definition of "isolated wetlands", the contention of petitioners is rejected.
Petitioners next contend proposed rules 2.2 and 5.1.1d. are invalid because they are unreasonable, arbitrary and capricious, and provide inadequate notice to its users. Under this theory of attack, petitioners shoulder a different burden to prove by a preponderance of evidence that the requirements of the rule are not reasonably related to the purpose of the enabling legislation and that the proposed rule is arbitrary or capricious. Agrico Chemical Company v. State, Department of Environmental Regulation, 365 So2d 759, 763 (Fla. 1st DCA 1978), cert. denied, 376 So2d 74 (Fla. 1979). An arbitrary decision is one not supported by facts or logic, or is despotic, while a capricious decision is one which is taken without thought or reason, or irrationally. Id. at 763.
Petitioners do not directly contend the rules are arbitrary or capricious, or that they do not reasonably relate to SFWMD's statutory authority. Instead, they claim that "people of ordinary intelligence" must guess at the meaning of the terms "isolated wetland" and "feasible project design alternative" referred to in rules 2.2 and 5.1.1d., respectively. Because of this, they argue that the rules are impermissibly vague. However, the
evidence reflects that the definition of isolated wetlands is reasonable, and that this terms are comprehensible to those who work with District rules.
Further, the record establishes that the term "feasible project design alternative" means any project design that can be used in lieu of wetland destruction, and which is not prohibitively expensive or technically unfeasible. Even petitioners' own witness conceded he could understand the term, and that it essentially codified the customary manner in which he designed projects.
Finally, petitioners calm rule 5.1.1d. is not reasonably related to the permitting criteria in the enabling statute since the matter of an alternative project design is not a permitting criterion authorized by law.
This contention must also be rejected since the use of such a criterion is sanctioned by Section 373.414 which requires the District to establish "criteria for the protection of threatened and endangered species in isolated wetlands".
To this end, the rule requires an applicant to design his project "around" the wetlands wherever possible instead of submitting a plan that calls for the destruction or disturbing of the enabling legislation, is not arbitrary and capricious, and is concluded to be valid.
The final contention raised by petitioners concerns the sufficiency of the economic impact statement that accompanied the proposed rules. They contend that the EIS does not contain an estimate of the cost or the economic benefit to all persons directly affected by the rules, as required by Subsection 120.54(2)(b)2., Florida Statutes (Supp. 1986). More specifically, petitioners argue that the District failed to consider the economic impact of the rules upon petitioners and other landowners. In this regard, it is noted the EIS did not precisely quantify these anticipated costs but merely concluded that the rules could be "expected to result in some cost increases to permittees". Even so, the District can hardly be faulted for this since such costs are obviously speculative or incapable of precise estimation. Brewster Phosphates v. State, Department of Environmental Regulation, 444 So2d 483, 487 (Fla. 1st DCA 1984). Moreover, there has been no showing that any such deficiency in the statement has impaired the fairness of the proceeding or otherwise adversely affected the correctness of the action. Polk v. School Board of Polk County 373 So2d 960 (Fla. 2nd DCA 1979).
IT IS, THEREFORE,
ORDERED that the petition for administrative determination of invalidity of proposed rule 40E-4.301, Florida Administrative Code, be DENIED.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1987.
ENDNOTES
1/ Intervenor filed a document on February 16, 1987 giving notice that "it joins respondent in its proposed order, and proposed findings of fact in this proceeding".
2/ Since the objection to Rule 40E-4.091 has been withdrawn, only the proposed amendment to Rule 40E-4.301 will be addressed.
3/ Genstar Southern Development, Inc. and Richland Properties of Florida, Inc. were also parties in the original petition. However, they subsequently filed a Notice of Voluntary Dismissal Without Prejudice on January 16, 1987. Contrary to respondent's assertion, these entities are not barred from filing a future rule challenge to the same rules under Section 120.56, Florida Statutes (1985).
4/ Since this proceeding was begun, petitioners have twice narrowed their objections to various parts of the Appendix after the District met on January 8, 1987, and again after the final hearing, as evidenced by their post-hearing filings.
5/ Collier Enterprises, Collier Development Corporation, Isabel Collier Read, Miles C. Collier, Barron G. Collier, and Miles C. Collier and Barron G. Collier, as trustees for Inglis V. Collier irrevocable trust, were granted leave to intervene in this proceeding by Order dated January 15, 1987. They later filed a Notice of Withdrawal from Proceedings on January 23, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4721RP
Petitioners:
Covered in finding of fact 18.
Partially covered in findings of fact 13 and 14. Those findings stating that isolated wetlands are found on REC's property are rejected as not being supported by the evidence.
Partially covered in findings of fact 15-17. The finding which states that a substantial number of NAIOP's members will be substantially affected by the rules is rejected as being contrary to the evidence.
Covered in finding of fact 1.
Covered in findings of fact 21 and 22.
Generally covered in findings of fact 28-35. The totality of the evidence does not support the proposed finding that mitigation/compensation rules are a non-essential tool in the regulatory process.
Covered in finding of fact 32. Again, however, the totality of the evidence supports a finding that preservation of wetlands is a necessary criterion in order to carry out the legislative intent of Chapter 373.
Covered in finding of fact 35 except for the proposed finding that the use of buffer zones is a non-essential tool in the regulatory process. To the contrary, the totality of the evidence suggests the opposite conclusion.
Covered in finding of fact 33.
Covered in finding of fact 33 except the proposed finding that the provision is non-essential. The totality of the evidence dictates a finding that the provision is a necessary tool in carrying out the legislative intent.
Not used since the more credible and persuasive evidence supports a finding that the term is susceptible to understanding by those who use the District rules.
Generally covered in finding of fact 27 except that part which states the provision is non-essential in the regulatory process.
Rejected since it was not established that DER defines an "isolated wetland" in the manner described in Rule 17.12.045, Florida Administrative Code. Further, it may be logically inferred that the District must define the term "isolated wetlands" in order that users of the rule understand how the District construes that term.
Covered in finding of fact 26 except that petitioners' interpretation of rule 2.2 is rejected in favor of the interpretation used by the District. Further, the District witnesses uniformly stated that jurisdiction would not extend over upland areas lying between isolated wetlands.
Covered in finding of fact 24.
Respondents:
Covered in finding of fact 1.
Covered in finding of fact 1.
3 . Covered in finding of fact 3.
Covered in finding of fact 3.
Rejected as unnecessary.
Covered in finding of fact 4.
Covered in finding of fact 8.
Covered in finding of fact 8.
Covered in finding of fact 8.
Covered in findings of fact 28-35.
Rejected as unnecessary.
Covered in finding of fact 26.
Covered in findings of fact 28-35.
Covered in finding of fact 33.
Covered in finding of fact 36.
Covered in finding of fact 27.
Covered in finding of fact 24.
Covered in findings of fact 13 and 14.
Covered in findings of fact 15-17.
Covered in findings of fact 18-20 except that those findings which state the staff report was a part of the permit, and that OCP is not subject to the rules, are rejected.
Covered in findings of fact 21 and 22 except those findings which state FAS is substantially affected by this proceeding are rejected.
COPIES FURNISHED:
J. Kendrick Tucker, Esquire Ralph A. DeMeo, Esquire Post Office Box 1794 Tallahassee, Florida 32202
Sarah E. Nall, Esquire
Irene M. Kennedy Quincey, Esquire Post Office Box 24680
West Palm Beach, Florida 33416-4680
Mr. Charles Lee 1101 Audubon Way
Maitland, Florida 32751
V. Carroll Webb, Esquire Joint Administrative Procedures Committee
Room 120, Holland Building Tallahassee, Florida 32301
Ms. Liz Cloud, Chief
Bureau of Administrative Code Room 1801, The Capitol Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Mar. 06, 1987 | Final Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 06, 1987 | DOAH Final Order | Proposed 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. |
