STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ZELLWOOD DRAINAGE & WATER ) CONTROL DISTRICT, et al., )

)

Petitioners, )

)

vs. ) CASE NO. 88-5486RX

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

)

FINAL ORDER

Final hearing in the above-styled action was held on February 27, 1989, in Tallahassee, Florida, before Mary Clark, Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows:

For Petitioners: Richard Adams, Jr., Esquire

Charles Davis, Esquire SMATHERS, PLEUS, ADAMS, FASSETT & DIVINE, P.A.

940 Highland Avenue Post Office Box 3627 Orlando, Florida 32802

For Respondent: Vance W. Kidder, Esquire

SPRIGGS & KIDDER

324 West College Avenue Tallahassee, Florida 32301

BACKGROUND AND PROCEDURAL MATTERS

This proceeding is related to another pending case, involving the same parties and a dispute over entitlement to a consumptive use permit, DOAH Case No. 85-0813. That case, and others involving the same or similar issues, but different permit applications, have been the subject of lengthy negotiations requiring the participation of several state agencies, including the Governor and Cabinet.

On November 3, 1988, Petitioners, hereinafter referred to as "Zellwood", filed their petition to determine the invalidity of certain rules of Respondent ("St. Johns"). St. Johns responded, and without objection, Petitioners filed an amended petition on November 22, 1988.

Also on November 22, 1988, an initial hearing was conducted wherein the parties presented argument on a single legal issue raised by the amended petition: whether St. Johns has authority to regulate water quality. At that time, the parties stipulated to a series of items, listed in Appendix A, as

acceptable for official recognition. The parties reserved the right to contest the relevance and probative value of those items.

The remaining issues in the petition were reserved and were heard at the February 27, 1989, hearing.

At the commencement of the final hearing, St. Johns presented a motion for amendment of paragraph 6 of the Amended Petition to conform to Zellwood's clarification of that paragraph. The motion was granted without objection.

St. Johns also presented two motions in limine, which were taken under advisement pending an opportunity for Zellwood to respond. Those motions were granted after argument on March 3, 1989. (See Order dated March 3, 1989).

At the hearing in support of its Amended Petition, Zellwood presented the testimony of Rex Clonts and Sanford Young. Its exhibits 1-4, 6 and 7, were received in evidence. Exhibit 5 was marked for identification but was rejected as irrelevant because it relates to settlement negotiations.

St. Johns presented the testimony of Jeffrey Elledge and Edgar Lowe. Its exhibits 1-3 were received into evidence.

As agreed, after hearing both parties submitted portions of depositions taken for use in this case and in the related case referenced above.

After the preparation of the transcript, each party submitted memoranda of law, proposed orders and objections to the depositions and other evidence. With one exception, all objections to evidence are overruled. The exception is Zellwood's objection to St. Johns' submittal of portions of the deposition of Edgar Lowe. Mr. Lowe testified at the hearing on behalf of St. Johns. There is no basis in Rule 1.330, Fla. Rules of Civil Procedure, for St. Johns' use of his deposition.

Although substantial portions of the deposition testimony relate to the section 120.57(1) proceeding, that testimony was nonetheless considered in the preparation of this order, to the extent that it related to the issues raised in Zellwood's amended petition. For Zellwood, the depositions included the following: Jeffrey Elledge, Lawrence Battoe, James Modica, Paul Parks and Larry Gerry. For St. Johns, the depositions included the following: Jeffrey Elledge, Lawrence Battoe, James Modica, Paul Parks, Sanford Young, Larry Gerry and Edgar Lowe [excluded, as provided above].

St. Johns has also objected to portions of the final hearing transcript and to certain items stipulated for official recognition at the initial hearing on November 22, 1988. Those objections are overruled. Again, some of this evidence is primarily relevant in the permit case. However, it has been considered here for its probative value, however limited, with regard to the issues related to the existence of agency unwritten rules and the validity of those rules. The order dated March 3, 1989, regarding the motions in limine adequately distinguishes the relevant issues.

Rulings in response to the parties' proposed orders are found in the attached Appendix B.

STATEMENT OF THE ISSUES

The issues for determination in this proceeding, are as follows:

1. Whether St. Johns' Rules 40C-2.301(4)(d),

   1. and (i), F.A.C. [adopted, as well, in the Applicant's Handbook as Sections 10.3(D),(H) and (I)] are invalid exercises of delegated legislative authority,

      1. because of vagueness and arbitrariness.

      2. because, to the extent water quality is regulated, St. Johns has exceeded its statutory authority.

2. Whether St. Johns utilizes an unwritten, and, therefore, invalid rule for determining allowable parts per million of phosphorus and nitrogen.

3. Whether St. Johns' policy of reliance on Department of Environmental Regulation (DER) Rule Chapter 17-3, F.A.C., constitutes an invalid rule.

MATERIAL ADMISSIONS AND STIPULATIONS

In Stipulations filed at or before the hearings on November 22, 1988 and February 27, 1989, the parties have agreed as follows:

1. Zellwood Drainage and Water Control District and the individual Petitioners in this case have standing to bring this Section 120.56, F.S., rule challenge.

2. Zellwood filed a timely consumptive use permit application with St. Johns, as an existing use. St. Johns classified the application as one for an existing use. The review of the application occurred in December 1985.

3. The sole basis of St. Johns' recommended denial is Zellwood's alleged non-compliance with Rules 40C-2.301(4)(d), (h), and (i), F.A.C., and those same provisions found in Section 10.3(D), (H) and (I) of the Applicant's Handbook.

4. The factual basis of St. Johns' denial of Zellwood's consumptive use permit application is the quality of the water discharged into Lake Apopka and the effect the discharge has

on the lake.

In its admissions filed at the February 27, 1989 hearing, St. Johns admits that unless an applicant has an operation permit issued by DER, St. Johns uses the State Water Quality standards in Chapter 17-3, F.A.C. (DER's rule) in deciding whether a use of water causes serious harm to the water quality of source or receiving waters, pursuant to Rules 40C-2.301(4)(h) and (i), F.A.C., and whether a use of water has reduced environmental or economic harm to an acceptable amount pursuant to Rule 40C-2.301(4)(d), F.A.C.

FINDINGS OF FACT

1. Petitioner, Zellwood Drainage and Water Control District was created as a special district in Orange County, Florida, by act of the Legislature, Chapter 20714, Laws of Florida, in 1942.

   
   

   The district is located south and west of the town of Zellwood, along the northeast shore of Lake Apopka, and comprises approximately 8700 acres.

   
   

2. The district is governed by a board of governors; William Rex Clonts, Jr. is currently Chairman.

   
   

3. Plainly stated, the purpose of the district is to make its lands suitable for farming by maintaining pumps, canals, a dike, roads and other improvements. The land within the district is lower than the level of the lake and surrounding land. Without drainage, the land could not be farmed.

   
   

4. The individual petitioners are farmers owning land and farms within the district. There are approximately twelve farms, primarily family-owned, growing broccoli, carrots, celery, leaf lettuce, radishes, greens, sweet corn and sod.

   
   

5. The farms within the district, utilizing the improvements of the district, pump water from Lake Apopka for nematode control and for irrigation in times of dry seasons. Except when the water is allowed to evaporate off the fields, water is then discharged back into Lake Apopka. Water is also discharged for flood control.

   
   

6. When water is used as described above, it moves across the lands and it tends to pick up nutrients depending on the composition of the soil and the concentrations of the soil in the water.

   
   

7. Almost every consumptive use of water has an associated discharge. From a regulatory standpoint, water quality and water quantity are intertwined. Both withdrawal from and discharge to a waterbody can degrade the water quality of that body.

   
   

8. The only consumptive use permit applications denied by St. Johns on the basis of the quality of the discharge water are Zellwood's, Duda Farms', and other neighbors of Zellwood near Lake Apopka.

   
   

   However, in cases other than these St. Johns has recognized water quality problems and has issued water use permits with conditions which would help remedy the problem.

   
   

9. When reviewing a consumptive use permit application such as Zellwood's, St. Johns applies, among others, these relevant provisions of its Rule 40C- 2.301, F.A.C.:

   
   

   40C-2.301 Conditions for Issuance of Permits.

   1. To obtain a consumptive use permit for a use existing on the effective date of implementation, the applicant shall apply for a permit under the provisions of Section 373.226, Florida Statutes, and Rule 40C- 2.04(2), Florida Administrative Code, and

      shall establish that it is a reasonable beneficial use and is allowable under the common law of Florida.

      * * *

      1. The following criteria must be met in order for a use to be considered reasonably beneficial:

         1. The use must be such quantity as is necessary for economic and efficient utilization.

         2. The use must be for a purpose that is both reasonable and consistent with the public interest.

         3. The source of the water must be

            capable of producing the requested amounts of water.

         4. The environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount.

         5. To the degree which is financially environmentally, and socially practicable, available water conservation and reuse measures shall be used or proposed for use.

         6. The consumptive use should not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems.

         7. The consumptive use should not cause or contribute to flood damage.

         8. The water quality of the source of the water should not be seriously harmed by the consumptive use.

         9. The water quality of the receiving body of water should not be seriously harmed by the consumptive use. A valid permit issued pursuant to Rule 17-4.240 or Rule 17- 4.260, Florida Administrative Code, shall establish a presumption that this criterion has been met. (emphasis added)

      
      

      Rules 17-4.240 and 17-4.260, F.A.C. are DER rules relating to operation permits for water pollution sources, and permits for sewage works, respectively.

      
      

10. Zellwood contends that the standards in 40C-2.301(4)(d), (h) and (i), F.A.C., above, have no scientific meaning, do not put the applicant on notice as to what discharge would be permitted, and leave too much discretion to the agency.

    
    

    Sanford "Sandy" Young is an environmental consultant who testified on behalf of Zellwood. He specializes in limnology, the study of physical, chemical and biological aspects of fresh water.

    
    

    Young claims that the language of the rules is too vague to allow him to advise a client. He contrasts these rules with the DER water quality standards in Chapter 17-3, F.A.C., adopted by the Environmental Regulation Commission, which do include specific numbers where possible.

11. St. John's department of resource management is responsible for reviewing and processing permit applications, including applications for consumptive use permits. In addition to using its own staff of engineers, hydrologists, and environmental specialists, the Department consults with its sister department of water resources, the district's program and research department, for additional technical expertise. On matters related to water quality, St. Johns' staff also consults with DER staff. St. Johns uses the provisions of DER rule Chapter 17-3 to measure the "serious harm" referenced in St. Johns' rules.

    
    

12. Rule 17-3.121(19), F.A.C., sets the standard for nutrients in surface waters classified as Class III, such as Lake Apopka, as follows:

    
    

    (19) Nutrients - In no case shall nutrient concentrations of a body of water be altered so as to cause an imbalance in natural populations of aquatic flora and fauna.

    
    

13. The nutrient standard provided in Rule 17-3.121, F.A.C., above, requires a site specific determination of the volume and concentrations of the nutrients that are discharged. The point at which an imbalance would be created is different from different bodies of water. Nutrients behave in a very site specific fashion, and in order to derive a scientific estimate of nutrient criteria for a specific body of water, the characteristics of that body have to be taken into account. It would be impossible to develop a numerical standard which would apply to all.

    
    

    The nutrient standard in Rule 17C-3.121, F.A.C. is applied, therefore, on a case-by-case basis.

    
    

14. In permit application review, when there is not sufficient time to do actual field samplings and to run an exhaustive model of nutrient loading, the staff relies on available data, available literature and what is provided in the application itself, to make a recommendation to the district board regarding approval or denial.

    
    

15. The staff's recommendation as to Zellwood was based on published literature on Lake Apopka and its existing water quality conditions and on available data from consultants on the quality and quantity of discharge and quantity from the Zellwood farms.

    
    

    As a rule of thumb, in this case, and not as an official district policy, the staff felt that .1 milligram per liter phosphorus, and 2 milligrams per liter nitrogen, would be an acceptable working level for discharge into Lake Apopka. That level itself would also depend on the amount of water being discharged. The .1 milligram and 2 milligrams level assumes a discharge of 20 billion gallons per year. The staff, in establishing such levels in consumptive use permits, strives to establish a discharge that will not contribute to the water quality of the receiving body staying below Class III standards (when that Class has been designated by DER).

    
    

16. St. Johns has not adopted the nutrient level described above as a rule, but neither does it apply the level generally to other permit applications. Without a given volume of water, without knowledge of the ecological state of the receiving body, it is impossible to determine whether a given nutrient concentration, such as the parts per liter of nitrogen and

    phosphorus described above, would cause an imbalance of natural flora and fauna in the receiving body.

    
    

17. St. Johns has adopted Rules 40C-2.301(4)(d), (h) and (i), F.A.C., in accordance with the rulemaking provisions of Section 120.54, F.S. In addition, Chapter 40C-2, F.A.C., has been reviewed by DER and accepted without objection as consistent with Chapter 17-40, F.A.C., the state water policy, and other applicable statutory standards.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Sections 120.56, F.S., and 120.57(1), F.S.

    
    

19. Section 120.56(1), F.S., provides that any person substantially affected by a rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.

    
    

    "Invalid exercise of delegated legislative authority" is defined in Section 120.52(8), F.S., as:

    
    

    ... action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if-any one or more of the following apply:

    1. The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;

    2. The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);

    3. The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);

    4. The rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the agency; or

    5. The rule is arbitrary or capricious.

    
    

20. Petitioners, the district and the individuals, have standing to bring this action, as stipulated by the parties. The denial of their permit application based upon the rules being challenged make them persons "substantially affected," as provided in Section 120.56(1), F.S.

    
    

21. The Petitioners have the burden of establishing by a preponderance of the evidence that the challenged rules are invalid. This is a stringent burden. Agrico Chemical Company v. State Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1979).

    
    

    THE AUTHORITY OF ST. JOHNS TO REGULATE WATER QUALITY THROUGH ITS CONSUMPTIVE USE PERMITTING PROCESS

22. In administering Chapter 373, F.S., "The Florida Water Resources Act of 1972," the governing boards of the water management districts are given the authority to "...make and adopt reasonable rules, regulations, and orders which are consistent with law..." Section 373.044, F.S.

    
    

    Section 373.219, F.S., provides in pertinent part:

    
    

    373.219 Permit required.-

    1. The governing board or the department may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area. However, no permit shall be required for domestic consumption of water by individual users.

       * * *

       To obtain a permit pursuant to Chapter 373, F.S., the applicant must establish that the proposed use of water:

       
       

       1. Is a reasonable-beneficial use as defined in s. 373.019(4);

       2. Will not interfere with any presently existing legal use of water; and

       3. Is consistent with the public interest.

          * * *

          Section 373.223(1), F.S.

          
          

          The uncontroverted evidence in this proceeding is that regulation of water use affects both the quantity and the quality of water.

          
          

          Petitioners concede this fact in their memorandum filed on December 8, 1988, at page 33. However, they argue that water quality issues in a consumptive permit process are properly limited to an effect of consumptive use on the quality of the source of the water; that is, the withdrawal only, and not discharge, can be considered.

          
          

23. In this regard, Petitioners are arguing inconsistent positions: first, that St. Johns has no authority to regulate water quality in the consumptive use permit process; and second, that it might regulate water quality, but only as affected by withdrawal from a water body source.

    
    

    As demonstrated by the evidence in this proceeding, consumptive use of water may necessarily involve both withdrawal from a source and discharge back to a receiving body. Water use, in that sense, is not so much a consumption, but rather a borrowing, where in the process of the use, the composition of the water is changed in some manner.

    
    

24. The purpose of Chapter 373, F.S. and of St. Johns' rules, is to assure that the change is "reasonable and consistent with the public interest."

    
    

25. Contrary to Petitioners' argument, the legislature did not intend that water management districts regulate only water quantity, and that DER, under Chapter 403, F.S., regulate water quality.

    Section 403.088, F.S., requires persons who discharge waste into the waters of the state to obtain a permit from DER.

    
    

    Nothing in the language of Chapter 403, F.S., or Chapter 373, F.S., suggests that the authority to regulate water pollution vests exclusively in the DER.

    
    

    The reference in Section 373.219, F.S., cited in paragraph #5 above, to conditions to assure use is not harmful to water resources of the area, plainly belies that intent. So also does the language of Section 373.414, F.S., added in 1986, to address criteria for the protection of certain wetlands:

    
    

    1. This section does not affect the authority of the water management districts to regulate impacts on water quality and water quantity. (Emphasis added.)

    
    

26. Overlapping jurisdiction of agencies, particularly in the area of environmental regulation, is not uncommon. In Pinellas County v. Lake Padqett Pines, 333 So.2d 472 (Fla. 2d DCA 1976) the court addressed apparent overlapping authorities involved with water conservation under Chapter 373, F.S., and Chapter 380, F.S., the "Florida Environmental Land and Water Management Act of 1972". In that case, the court determined that a project designed solely to provide water for an existing development was not itself a development of regional impact (DRI) subject to review under Chapter 380, F.S., but rather was subject only to the Chapter 373, F.S., supervision of the regional water management district and water supply authority established under Chapter 373, F.S.

    
    

    Significant in the court's construction of Chapters 373 and 380, however, is the recognition that there may well be situations in which the regulatory operation of both statutes and multiple agencies might come into play in another particular project.

    
    

27. The language of Chapters 373 and 403, F.S. evinces an intent that the agencies, DER and water management districts work hand in hand. DER is given responsibility for the administration of Chapter 373, F.S. at the state level, and general supervision of the water management districts in section 373.026,

    F.S. DER is required to review the rules of the water management districts to insure consistency with the state water policy and may order a district whose rule is found inconsistent to amend or repeal the rule. Section 373.114(2),

    F.S. Chapter 17-40, F.A.C. is the Department's state water policy.

    
    

    Rule 17-40.040, F.A.C. applies to the regulation of the use of water pursuant to Part II of Chapter 373, F.S. Rule 17-40.040(2)(m), F.A.C. establishes "the extent of water quality degradation caused" as a factor to be considered in determining whether water use is a reasonable-beneficial" use. In contrast to other factors listed in that rule, 17-40.040(2)(m) is not addressed exclusively to the source of water.

28. Petitioners have failed to prove that the rules at issue, to the extent that they regulate water quality related to discharges or water quality in general, exceed the authority of St. Johns.

    
    

    ARE RULES 40C-2.30(4)(d), (h) and (i), F.A.C., AS ALSO ADOPTED IN SECTIONS 10.3(D), (H) AND (I) OF THE

    APPLICANT'S HANDBOOK, VAGUE, ARBITRARY, OR CAPRICIOUS?

    
    

29. Rules 40C-2.301(4)(d), (h) and (i), F.A.C. are only three of eight criteria which must be met for a use to be considered "reasonably beneficial."

    
    

    A "reasonable-beneficial use" is one of three conditions which an applicant must meet pursuant to Section 373.223, F.S. in order to obtain a consumptive use permit.

    "Reasonable-beneficial use" is defined in Section 373.019 (4) , F.S. "Reasonable-beneficial use" means the use of

    water in such quantity as is necessary for

    economic and efficient utilization for a purpose and in a manner which is both reasonable and consistent with the public interest.

    
    

30. The rule fleshes out the statute.

    
    

    In Albrecht v. Department of Environmental Regulation, 353 So.2d 883 (Fla. 1st DCA 1978), the court upheld statutory language which prohibited destruction of certain marine life "...to such an extent as to be contrary to the public interest."

    
    

    The court distinguished Sarasota County v. Barg, 302 So.2d 737 (Fla. 1970), in which similar language was invalidated for vagueness. Barg, however, pre- dated the 1974 Administrative Procedures Act. That act, as noted in Albrecht, provides significant procedural safeguards to restrict an agency's discretion in considering permit applications. What is not specifically defined in the statute or implementing rules must be explicated and justified on a case-by-case basis in formal evidentiary proceedings under Section 120.57(1), F.S., in the evolutionary scheme described in McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977).

    
    

31. The test for vagueness is more lenient when an administrative rule, rather than a penal statute, is being examined. That principle is found in City of St. Petersburg v. Pinellas County, 414 So.2d 293 (Fla. 2d DCA 1982), rev. denied, 421 So.2d 518 (Fla. 1982) wherein the court upheld a municipal disciplinary rule prohibiting "improper conduct ... either on or off the job, which would tend to affect the employee's relationship to his job, his fellow workers, his reputation, or good will in the community."

    
    

    The "reduced to an acceptable amount" and "serious harm" language found in Rules 40C-2.301(4)(d), (h) and (i), F.A.C. are at least as specific as the standards approved above.

    
    

32. The vagueness test is essentially a legal test, rather than one that is derived from testimony such as that elicited from Petitioners' consultant,

    Sandy Young. He claimed that the rules provide insufficient guidance for him to advise his clients. On the other hand, the staff of St. Johns described how the rules are applied on a regular basis. They are not applied in a vacuum, but rather in the context of myriad other statutory and regulatory requirements governing the use of water.

    
    

33. What is not defined in the statute and rules will be supplied in the pending Section 120.57(1), F.S. proceeding on Zellwood's application.

    
    

    Petitioners have cited no cases in which language similar to that in the subject rules has been found vague, arbitrary, or capricious. Petitioners have failed to show the rules are invalid on those bases.

    
    

    ST. JOHNS USE OF DER RULES AT CHAPTER 17-3, F.A.C.

    
    

34. To flesh out its own rules in 40C-2.301, F.A.C., St. Johns admits that it routinely applies DER's rules regarding water quality criteria, particularly Chapter 17-3, F.A.C. Chapter 17-3, F.A.C. is not referenced by number in St. Johns' rules or in its Applicant's Handbook.

    
    

35. Petitioners argue that practice constitutes a policy in itself which is a rule and which has not been adopted as a rule as required in Section 120.54, F.S.

    
    

    It is well established that agency policy does not necessarily have to be adopted as a rule, but that such non-rule policy must be explicated and defended in each case in which it is relied upon. Island Harbor v. Department of Natural Resources, 495 So.2d 209, 221 (Fla. 1st DCA 1986).

    
    

    St. Johns will have the opportunity to explicate its policy in the companion Section 120.57(1), F.S. proceeding.

    
    

36. Section 373.219, F.S. allows the water management district to impose such reasonable conditions for consumptive use permits as are necessary to assure that the use is consistent with the overall objectives of the district or department and is not harmful to the water resources of the area. It would be absurd that a rule implementing this provision should reference, by number, every statute and rule of DER which sets out that department's "overall objectives." Applicants are amply on notice that DER's standards are relevant by virtue of Section 373.219, F.S. Further, in view of the overlapping jurisdiction with DER and administrative oversight function of that agency, as discussed above, St. Johns could not adopt rules in conflict with those of DER. The utilization by St. Johns of DER's rules simply furthers the cooperative relationship contemplated in Chapters 373 and 403, F.S. See Osceola County v. St. Johns River Water Management District, 504 So.2d 385, 388 (Fla. 1987).

    
    

37. Petitioners attach some significance to a memorandum purportedly written by DER staff person, R. Maloy, in January 1985, stating that, "We should have no objection to the pending consumptive use permit by the SJRWMD." That memo, received in evidence as Petitioners' exhibit 6 has no probative value in this proceeding, but may rather be relevant in the formal proceeding under Section 120.57(1), F.S.

    
    

38. St. Johns' failure to describe its practice of utilizing DER's rule in determining water quality issues is not an invalid exercise of delegated legislative authority.

    THE UNWRITTEN, "SECRET", NUTRIENT CRITERIA

    
    

39. In its review of Zellwood's permit application, St. Johns used a numerical standard of concentration of nitrogen and phosphorus. In order to be a "rule" as defined in Section 120.52(16), F.S., that standard must be an agency statement of general applicability.

    
    

    Zellwood failed to prove that it is.

    
    

40. Rather, the evidence provided by St. Johns' staff establishes that such standards must be derived on a case-by-case basis and in no sense could the parts per liter concentrations of nitrogen and phosphorus be automatically applied to discharges to other water bodies or to different discharges to the same water body.

    
    

41. For that reason, the "secret", unwritten standards are like the wage rate determinations found not to be rules in State Department of Commerce v. Matthews Corp., 358 So.2d 256 (Fla. 1st DCA 1978), and the Department of Transportation standards for composition of certain road-building material found not to be rules in Department of Transportation v. Blackhawk Quarry Co., 528 So.2d 447 (Fla. 5th DCA 1988).

Based on the foregoing, it is hereby, ORDERED:

The Petition by Zellwood Drainage and Water Control District, et al., for determination of the invalidity of St. Johns Water Management District Rules is DENIED.

ENTERED this 24th day of May, 1989, in Tallahassee, Leon County, Florida.

MARY CLARK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of May, 1989.

APPENDIX A

The following items are the subject of the parties' stipulation for official recognition:

DER rules chapters 17-3 and 17-4, F.A.C. (1987). St. Johns' rules chapters 40C-1 and 40C-2, F.A.C.

Applicants' Handbook Ferry Pass I & S. Association v. White's River Inspectors, etc., 48 So. 643 (Fla 1909).

In the matter of Application numbers 25793 and 25794, by S. N. Knight and Sons, etc, DOAH 76-238, recommended order dated 3/25/76, Final Order dated 7/8/76.

Deltona Corp. v. Adamczyk, 492 So.2d 463 (Fla. 5th DCA 1986). DER Rule Chapter 17-40, F.A.C.

DER Rule Chapter 17-101, F.A.C.

City of St. Petersburg v. S.W. Florida Water Management District, 355 So.2d 796 (Fla. 2nd DCA 1977).

Pinellas County v. Lake Padgett Pines, 333 So.2d 472 (Fla. 2nd DCA 1976) Model Water Code

Chapters 373 and 403, F.S. Chapter 85-148, Laws of Fla, "Lake Restoration

Act"

Section 11.60, F.S.

Section 120.545, F.S.

Attorney General's Report 77-95 Attorney General's report 75-16

1. Meteorology Center Precipitation records, 1970, 1971, 1972. Legislative Staff Analyses: CS/HB 4060 (Chapter 72-299, laws of Fla) HB

   4060, "First Draft"

   Excerpts from committee hearings

   January 4, 1986, Operating Agreement between DER and St. Johns. December 21, 1984, letter of intent to deny.

   8/3/84 Consumptive Use Permit Application. Chapter 20714, Laws of Fla.

   Pleadings in Case No. 88-5545-CA-J, Zellwood v. St. Johns, Circuit Ct. of the Seventh Judicial Cir., Putnam Co. and 88-6225- (A-J), St. Johns v. Zellwood.

   
   

   APPENDIX B

   
   

   The following constitute specific rulings on the findings of fact proposed by the parties:

   Petitioner's Proposed findings "Legislative Facts"

   1. through 23. Rejected as contrary to the language of Chapters 373 403,

1. The delegations are not exclusive to DER or to the water management districts. These are conclusions of law, rather than findings of fact. "Adjudicative Facts"

   1. and 2. Adopted by implication in paragraph 9.

3. through 5. Rejected as contrary to the weight of evidence and to the plain language of the rule.

6. and 7. The operative phrase are "as an unwritten rule" and "as a rule". These are rejected as contrary to the evidence and law.

9, 11, and 13. Adopted by implication. These facts are not controverted.

10. and 12. Rejected as contrary to the evidence.

14. Rejected as contrary to the language of the rule.

Respondent's Proposed Findings

1. Adopted in Paragraph 17.

2. and 3. Adopted in summary in Paragraph 9. The interpretation of the rule is, for purposes of this proceeding, an essentially legal, rather than factual interpretation.

1. Adopted in Substances in Paragraph 10.

2. and 6. Rejected as unnecessary

1. Rejected as argument.

2. Adopted in summary in Paragraphs 6 and 7.

3. Adopted in Paragraph 11.

4. Adopted in Paragraphs 12. and 13.

5. Adopted in Paragraph 11.

COPIES FURNISHED:

Richard Adams, Esquire Charles Davis, Esquire

SMATHERS, PLEUS, ADAMS, FASSETT & DIVINE, P.A.

940 Highland Avenue Post Office Box 3627 Orlando, Florida 32802

Vance W. Kidder, Esquire SPRIGGS & KIDDER

324 West College Avenue Tallahassee, Florida 32301

Liz Cloud, Chief

Bureau of Administrative Code 1802 The Capitol

Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32399-1300

A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO JUDICIAL REVIEW PURSUANT TO SECTION 120.68, FLORIDA STATUTES. REVIEW PROCEEDINGS ARE GOVERNED BY THE FLORIDA RULES OF APPELLATE PROCEDURE. SUCH PROCEEDINGS ARE COMMENCED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF THE DIVISION OF ADMINISTRATIVE HEARINGS AND A SECOND COPY, ACCOMPANIED BY FILING FEES PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL, FIRST DISTRICT, OR WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE PARTY RESIDES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED.

Docket for Case No: 88-005486RX

Orders for Case No: 88-005486RX