STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDREW MACHATA and )

NEIL LANZENDORF, )

)

Petitioners, )

)

vs. )

)

DEPARTMENT OF ENVIRONMENTAL ) PROTECTION f/k/a DEPARTMENT OF )

NATURAL RESOURCES, ) CASE NOS. 90-8074*

) 90-8075

Respondent, ) 93-0604RU

)

vs. ) *Recommended Order issued

) under this DOAH Case No.

CENTER FOR MARINE CONSERVATION, ) DONNA DEVLIN, and CARIBBEAN )

CONSERVATION CORPORATION, )

)

Intervenors. )

)

FINAL ORDER

Pursuant to written notice, a formal hearing was conducted in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on May 11-15, 1992, and February 22-27, 1993, in Vero Beach, Florida; and on April 14-16, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Thomas G. Tomasello, Esquire

Oertel, Hoffman, Fernandez & Cole, P.A. Post Office Box 6507

Tallahassee, Florida 32314-6507

For Respondent: Dana M. Wiehle

Assistant General Counsel

Department Of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399

For Intervenors: David G. Guest, Esquire

Kenneth B. Wright, Esquire Sierra Club Legal Defense Fund Post Office Box 1329 Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether Florida Administrative Code Rules 16B-33.005(1), 16B- 33.005(3)(c), 16B-33.005(3)(g), 16B-33.005(7), 16B-33.007(7), 1/ and certain agency statements interpreting those rules are an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8), Florida Statutes. 2/

PRELIMINARY STATEMENT

Respondent recommended to the Governor and Cabinet that Petitioner's 3/ application for a coastal armoring permit should be approved. The Governor and Cabinet denied the application without explanation.

Petitioner timely filed a petition for formal hearing on November 19, 1990.

The matter was referred to the Division of Administrative Hearings on December 21, 1990, and assigned to Hearing Officer Donald D. Conn on January 7, 1991.

After several continuances, the case was transferred to the undersigned on April 22, 1991. A formal hearing was scheduled for August 1, 1991, pursuant to a Notice Of Hearing issued on April 22, 1991. An Order Granting Intervention was entered on May 31, 1991. The matter was continued so the parties could pursue settlement negotiations.

Settlement negotiations were unsuccessful, and a portion of the formal hearing was conducted on May 11-15, 1992, in Vero Beach, Florida. The formal hearing was again continued so the parties could pursue settlement negotiations.

On February 4, 1993, Petitioner filed a Petition For Determination Of Invalidity Of Agency Statements. The petition challenged certain existing rules and agency statements pursuant to Sections 120.56 and 120.535. Expedited time requirements for rule challenges were waived by all of the parties. On February 15, 1993, the actions instituted pursuant to Sections 120.535, 120.56, and

120.57(1) were consolidated.

On February 23, 1993, Respondent filed a Motion To Dismiss the action instituted pursuant to Section 120.535. Ruling on Respondent's motion was reserved for disposition in this Final Order.

The formal hearing in the consolidated proceeding was reconvened from February 22-27, 1993, in Vero Beach, Florida. Pursuant to the agreement of the parties, venue for the formal hearing was moved to Tallahassee, Florida, and concluded on April 14-16, 1993.

During the formal hearing, Petitioner presented the testimony of 11 witnesses. Fifty-seven of Petitioner's exhibits were admitted in evidence. Respondent presented the testimony of five witnesses and had 51 exhibits admitted in evidence. Intervenors presented the testimony of six witnesses and had 26 exhibits admitted in evidence. The identity of the witnesses and exhibits, and the evidentiary rulings regarding each, are described in the transcript of the formal hearing filed with the undersigned on August 7 and 10, 1992, May 10, 1993, and July 26, 1993.

The parties timely filed proposed findings of fact and conclusions of law on August 16, 1993. The parties' proposed findings of fact are addressed in the Appendix to this Final Order.

FINDINGS OF FACT

1. The Parties

   
   

   1. Except as provided in this Final Order, the findings in the Recommended Order entered in the action instituted pursuant to Section 120.57(1) are adopted by this reference as though fully stated herein. Petitioner is a "property and/or riparian owner" within the meaning of Section 161.053(5)(a). Petitioner owns a single family residence located on a parcel of land situated on highway A1A in Orchid Island, Indian River County, Florida. The parcel fronts the Atlantic Ocean and extends landward from the mean high water line to highway A1A.

      
      

   2. Petitioner's home is a major habitable structure within the meaning of Rules 16B-33.002(54)(a) and 16B-33.005(3)(b) and (c). Petitioner's home is a two story residence that includes a garage, swimming pool, and patio. The foundation of the home is a nonconforming foundation within the meaning of Rule 16B- 33.007(4).

      
      

   3. Petitioner's application for a coastal armoring permit was prepared and submitted in accordance with the requirements of Section 161.053(5), Rule 16B-33.008, and other applicable requirements. Respondent determined that the application was complete on or before August 14, 1990.

      
      

   4. Respondent is the agency responsible for assessing applications for coastal armoring permits. Respondent recommends action to the Governor and Cabinet. The Governor and Cabinet sit as the agency head and take final agency action. Respondent was formerly known as the Department of Natural Resources ("DNR"). On July 1, 1993, the Department of Environmental Protection ("DEP") was created, and DNR was reorganized into DEP. 1993 Laws of Florida, Chapter 93-21.

      
      

   5. Intervenors represent the interests of marine turtles and their nesting habitats. Intervenor, Center For Marine Conservation (the "Center"), is a nonprofit organization that researches marine life. The Center has 8,000 contributing members in Florida that enable it to conduct research and conservation activities. Intervenor, Donna Devlin, is an officer of the Center and citizen of the state. Intervenor, Caribbean Conservation Corporation ("CCC"), is a not-for-profit Florida corporation engaged in sea turtle research and conservation in Florida. The CCC receives support from private foundations and the contributions of its 5,000 members.

      
      

2. Background

   
   

   1. Petitioner began construction of his home prior to March 4, 1987.

      When construction commenced, the coastal construction control line defining that portion of the beach-dune system subject to fluctuations based on a 100 year storm surge (the "CCCL") 4/ was located seaward of Petitioner's home. On March 4, 1987, the CCCL was reestablished and moved landward of Petitioner's home.

      Construction had progressed sufficiently so that Petitioner's home was grandfathered by applicable regulatory restrictions, and construction was subsequently completed.

      
      

   2. On Thursday, March 9, 1989, a Northeast storm impacted the east central coast of Florida. The storm lasted approximately five days 5/ and eroded the shoreline in front of Petitioner's home.

   3. The dune fronting Petitioner's home was severely undercut by wave action from the storm. Petitioner temporarily placed a partial rock revetment on the seaward side of the dune.

      
      

   4. On July 19, 1989, Petitioner filed an application for a permit to complete the rock revetment and subsequently amended the application to include the steel sheet pile bulkhead at issue in this proceeding. Respondent agreed to recommend approval of the steel sheet pile bulkhead if Petitioner demonstrated his home is vulnerable to a 10 or 15 year return interval storm event (a "RISE").

      
      

   5. The return interval of a storm is its statistical probability of occurrence. A lower return interval indicates a greater probability of occurrence and a higher rate of frequency. A high frequency storm is a storm with a return interval of 25 years or less. Storms with a return interval greater than 25 years are major storms with greater force. 6/

      
      

   6. On April 17, 1990, Petitioner submitted an application for a permit to construct and maintain a vertical steel sheet- pile bulkhead 303 feet long. The proposed bulkhead is located as far landward as possible. It is 10 to 15 feet landward of the dune bluff line, and vegetation line, and 23 feet seaward of Petitioner's existing patio. All work on the bulkhead is to take place landward of the steel wall.

      
      

   7. The proposed bulkhead is designed to withstand the force of a high frequency storm with a return interval up to 25 years. The proposed bulkhead is less impactive than other rigid coastal armoring devices that provide equivalent protection.

      
      

   8. On May 22, 1990, Respondent issued a letter of intent to approve the proposed bulkhead and gave landowners adjacent to Petitioner's property notice of Respondent's intended action. Adjacent property owners did not object to the proposed bulkhead. Respondent recommended approval of Petitioner's application subject to stated conditions.

      
      

   9. On August 14, 1990, an agenda item recommending approval of Petitioner's application was considered by the Governor and Cabinet. The agenda item represented that Petitioner's home was vulnerable to a 15 year RISE. After hearing arguments, the Governor and Cabinet denied Petitioner's application without explication. 7/

      
      

   10. Immediately following the denial of Petitioner's application, the Governor and Cabinet directed Respondent's staff to develop a coastal armoring policy for the state. Armoring applications completed as of August 14, 1990, including Petitioner's, were expressly exempt from the new policy.

       
       

   11. The Governor and Cabinet adopted a coastal armoring policy on December 18, 1990 (the "1990 policy"). Since Petitioner's application was completed on or before August 14, 1990, the proposed bulkhead is expressly exempt from all of the provisions of the 1990 policy. No applications other than those at issue in this consolidated proceeding were complete on or before August 14, 1990.

       
       

   12. A Final Order denying Petitioner's application for a coastal armoring permit was filed with Respondent's clerk on November 1, 1990. On November 19, 1990, Petitioner timely filed a petition for a formal administrative proceeding in accordance with Section 120.57(1).

3. Nature And Scope Of Rule Challenges

   
   

   1. Petitioner asserts two types of rule challenges in this proceeding. First, Petitioner challenges the validity of certain rules that have been promulgated in compliance with statutory rulemaking requirements ("written rules"). 8/ Second, Petitioner challenges the validity of agency statements allegedly defined as a rule in Section 120.52(16) but not promulgated in compliance with statutory rulemaking requirements ("unwritten rules").

      
      

   2. Petitioner claims that Rules 16B-33.005(1), 16B- 33.005(3)(c) and (g), 16B-33.005(7), and 16B-33.007(7) are an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(b)-(e).

      Petitioner asserts that these written rules:

      
      

      1. exceed the scope of Respondent's delegated legislative authority, within the meaning of Section 120.52(8)(b);

      2. enlarge, modify, or contravene the specific provisions of law implemented, within the meaning of Section 120.52(8)(c);

      3. are vague, without adequate standards for agency decisions, and permit the exercise of unbridled discretion, within the meaning of Section 120.52(8)(d); and

      4. are arbitrary and capricious, within the meaning of Section 120.52(8)(e).

         
         

         Petitioner asserts that the unwritten rules are an invalid exercise of delegated legislative authority because:

         
         

      5. Respondent materially failed to comply with statutory rulemaking requirements, within the meaning of Section 120.52(8)(a); and

      6. the unwritten rules suffer the same infirmities as those alleged for the written rules.

   
   

4. Delegated Authority And Law Implemented

   
   

   1. Respondent's rulemaking authority is delegated in Section 370.021(1). That section provides that Respondent:

      
      

      . . . shall make, adopt, promulgate, amend, and repeal all rules and regulations necessary or convenient for the carrying out of the duties, obligations, powers, and responsibilities conferred . . . .

      
      

   2. The specific provisions of law implemented by each of the written rules at issue in this proceeding are found in Sections 161.052 and 161.053. Section 161.052(1) provides in relevant part:

      
      

      No person . . . shall excavate or construct any . . . seawall . . . within 50 feet of the line of mean high water at any riparian

      coastal location fronting the . . . Atlantic

      . . . shoreline . . . .

      
      

   3. Section 161.053(1)(a) declares that the beaches and coastal barrier dunes in Florida:

      
      

      . . . are subject to frequent and severe fluctuations and represent one of the most valuable natural resources of Florida and that it is in the public interest to preserve and protect them from imprudent construction which can jeopardize the stability of the beach-dune system, accelerate erosion, provide inadequate protection to upland structures, endanger adjacent properties, or interfere with public beach access . . . .

      
      

   4. Section 161.053(5) provides in relevant part:

      
      

      . . . a permit to . . . excavate or

      construct [a seawall] on property seaward of established coastal construction control lines may be granted by . . . [Respondent] as follows:

      1. The [Respondent] may authorize an excavation or erection of a structure at any coastal location as described in subsection

   1. upon receipt of an application from a property and/or riparian owner and upon consideration of facts and circumstances, including:

      1. Adequate engineering data concerning shoreline stability and storm tides related to shoreline topography;

      2. Design features of the proposed structures or activities; and

      3. Potential impacts of the location of such structures or activities, including potential cumulative effects of any proposed structures or activities upon [the] beach- dune system, which, in the opinion of [Respondent], clearly justify such a permit.9/

   
   

5. Written Rules

   
   

   1. The written rules challenged by Petitioner are set forth in relevant part below. Disputed terms in each rule are underlined (hereinafter, "disputed terms").

      
      

   2. Rule 16B-33.005(1) provides in relevant part that activities seaward of the CCCL shall be limited and:

      
      

      . . . the necessity of such development, construction or alteration shall be stated and clearly justified by the applicant. (emphasis supplied)

   3. Rule 16B-33.005(3)(c) provides in relevant part:

      
      

      In those cases in which a rigid coastal protection structure is the only feasible means of protecting an existing habitable major structure . . . , then that rigid coastal protection structure shall be located as far landward as possible, consistent with design and construction requirements. (emphasis supplied)

      
      

   4. Rule 16B-33.005(3)(g) provides in relevant part:

      
      

      . . . Where justified and properly designed and constructed . . . [rigid coastal protection structures] will provide some measure of protection for upland structures

      . . . . (emphasis supplied)

      
      

   5. Rule 16B-33.005(7) provides in relevant part that coastal armoring:

      
      

      . . . may not have an adverse impact on the beach or dune system at a specific site; however, a number of similar structures or activities along the coast may have a significant cumulative impact resulting in the general degradation of the beach or dune system along that segment of shoreline. The [Respondent] may not authorize any construction or activity whose cumulative impact will threaten the beach or dune system or its recovery potential following a major storm event . . . . (emphasis supplied)

      
      

   6. Rule 16B-33.007(7) provides in relevant part:

   
   

   The necessity for activities seaward of the control line or setback line shall be stated and clearly justified by the applicant in accordance with the requirements of this Chapter . . . . (emphasis supplied)

   
   

6. Written Rules: Challenge To Delegated Authority And Law Implemented

   
   

   1. Petitioner claims, inter alia, that the disputed terms are an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(b) and (c). Petitioner asserts that the disputed terms exceed the grant of rulemaking authority and enlarge, modify, or contravene the specific provisions of law implemented.

      1. Necessity

         
         

   2. The legislature finds in Section 161.053(1)(a) that it is in the public interest to preserve and protect the beach-dune system from imprudent construction. In the same section, the legislature finds that any imprudent construction seaward of the CCCL, ". . . can jeopardize the stability of the beach-dune system . . . [and] accelerate erosion . . . . " Legislative findings and determinations are presumed correct. 10/

      
      

   3. The legislative findings in the law implemented in Section 161.053(1)(a) are not enlarged, modified, or contravened in Rule 16B-33.005(3). Rule 16B-33.005(3) finds:

      
      

      The construction . . . of . . . flexible coastal . . . protection structures such as beach nourishment, dune construction and stabilization, and sand fencing is encouraged over the construction of rigid coastal . . . protection structures (seawalls, bulkheads, revetments, mounds, groins, etc.). Rigid coastal protection structures do not protect the beach. In most cases, they may be expected to have a long-term adverse effect

      on the beach in their immediate vicinity. . . .

      
      

      The quoted administrative findings are within the scope of the agency's expertise, are entitled to deference, and were not shown by a preponderance of evidence to be clearly erroneous. 11/

      
      

   4. Rigid coastal armoring generally does not protect the beach-dune system and may have a long term adverse effect. Respondent implicitly determined that construction of unnecessary rigid coastal armoring is imprudent construction within the meaning of Section 161.053(1)(a). That determination is a reasonable construction of a statute by the agency statutorily required to administer it. 12/ The requirement in Rules 16B- 33.005(1) and 16B-33.007(7) for applicants to demonstrate the necessity for proposed armoring is a reasonable means of protecting the beach dune system from unnecessary and imprudent construction. The agency's construction is entitled to great weight and was not shown by a preponderance of evidence to be clearly erroneous. 13/

      
      

      1. Clearly Justify

         
         

   5. Respondent is required in Section 161.053(5)(a)3 to consider potential cumulative impacts on the beach-dune system which "clearly justify" a permit. Section 161.053(5)(a) provides that Respondent may issue a coastal armoring permit "upon consideration of facts and circumstances including" (emphasis supplied) cumulative impacts on the beach-dune system which "clearly justify" a permit within the meaning of Section 161.053(5)(a)3. Words of inclusion in Section 161.053(5)(a) do not exclude items not enumerated in Section 161.053(5)(a)(3). 14/ Thus, Respondent may consider other facts and circumstances which "clearly justify" a permit.

      
      

   6. The cumulative impacts requirement in Section 161.053(5)(a)3 is a legislative requirement imposed for the purpose of protecting the beach-dune system from imprudent construction. The necessity requirement is an administrative requirement imposed for the same purpose. 15/ Respondent

      correctly assesses its administrative requirement by the same standard legislatively mandated for assessing the cumulative impacts requirement, i.e., the "clearly justify" standard.

      
      

      1. Feasible

         
         

   7. Disregarding feasibility for the moment, the requirement that rigid coastal armoring must be the only means of protection protects the beach-dune system from imprudent construction. Imprudent construction can jeopardize dune stability and accelerate erosion. Rigid coastal armoring does not protect the beach-dune system and may be expected to have a long term adverse effect on the beach-dune system.

      
      

   8. The requirement that an alternative to rigid coastal armoring must be "feasible", arises by reasonable implication and benefits applicants. The feasibility requirement precludes consideration of any alternative that is not "feasible."

      
      

      1. Similar Structures, Segment Of Shoreline, and Threaten

         
         

   9. Respondent must consider "similar structures" when assessing cumulative impacts on the beach-dune system pursuant to Section 161.053(5)(a)3. The cumulative impact doctrine generally requires consideration of impacts from: the proposed project; existing projects; projects under construction; projects for which there are pending applications; and projects which may reasonably be expected to be located in that segment of shoreline. 16/

      
      

   10. Section 161.053(1)(a) expressly authorizes Respondent to establish a "segment" of the CCCL further landward of the impact zone of a 100-year storm. That segment of the CCCL is established to protect the beach-dune system from imprudent construction seaward of the CCCL. The purpose of defining a "segment of the shoreline" in Rule 16B-33.005(7) is to protect the beach-dune system from cumulative adverse impacts of imprudent construction seaward of the CCCL. The "segment of shoreline" in Rule 16B-33.005(7) does not enlarge, modify, or contravene legislative authority to establish a "segment" of the CCCL in the law implemented.

       
       

   11. Section 161.053(1)(a) requires Respondent to protect the beach-dune system from imprudent construction that can "jeopardize" its stability. The beach-dune system is jeopardized by imprudent construction if the beach-dune system is exposed to danger. 17/ The beach-dune system is "threatened" by armoring if it is endangered. 18/ Respondent's authority to protect the beach- dune system from cumulative impacts that "threaten" the system does not enlarge, modify, or contravene authority in the law implemented to protect the system from imprudent construction that can "jeopardize" it within the meaning of Section 161.053(1)(a).

       
       

       1. Disputed Terms

       
       

   12. The disputed terms are reasonably necessary or convenient, within the meaning of Section 370.021(1), for Respondent to issue coastal armoring permits in a manner that protects the beach-dune system from imprudent construction in accordance with Sections 161.053(1)(a) and 161.053(5)(a). The disputed terms do not enlarge, modify, or contravene the specific provisions of law implemented in Sections 161.052 and 161.053.

7. Written Rules: Inadequate Standards; Arbitrary Or Capricious

   
   

   1. Petitioner claims, inter alia, that the disputed terms are an invalid exercise of delegated legislative authority within the meaning of Sections 120.52(8)(d) and (e). Petitioner asserts that the disputed terms are vague, without adequate standards to guide agency decisions, vest unbridled discretion in the agency, and are arbitrary or capricious.

      
      

      1. Quasi-Scientific Terms: Feasible

         
         

   2. The term "feasible" is a dual use term with both general and scientific application. Although its general meaning has no technical significance, its scientific meaning has technical significance in an array of disciplines including engineering. 19/ Technical and economic feasibility assessments are indispensable incidents of the expertise reasonably necessary to carry out the duties, obligations, powers, and responsibilities conferred on Respondent by the legislature. Within the scope of that expertise, engineers customarily employ an array of techniques to determine economic feasibility, including costs over the life of the project and many other cost- benefit assessments.

      
      

   3. The absence of a written definition of "feasible" in Respondent's rule does not render the rule vague, subject to unbridled discretion, arbitrary, or capricious within the meaning of Sections 120.52(8)(d) and (e). The term "feasible" is a quasi-scientific term or word of art that has an established technical meaning or application within the scope of Respondent's expertise. 20/ The exercise of agency discretion is constrained by any established definition that is appropriate under the facts and circumstances surrounding a particular application.

      
      

      1. Unscientific Terms

      
      

   4. The terms "necessity", "clearly justify", "similar structures", "segment of the shoreline", and "threaten" are neither scientific terms nor words of art. None of the quoted terms have an established technical meaning or application within the scope of Respondent's expertise. Terms that are neither defined in the enabling legislation, scientific terms, nor words of art, should be given their plain and ordinary meaning. 21/

      
      

   5. The plain and ordinary meanings of the quoted terms are vague for purposes of Section 120.52(8)(d). Persons of common understanding and intelligence may only guess at the meaning of the quoted terms when applying for coastal armoring permits. 22/ No competent and substantial evidence in this proceeding showed that the meaning of any one quoted term is prescribed by custom and usage or technical significance within the scope of Respondent's expertise.

      
      

   6. Respondent's rules fail to establish adequate standards for agency decisions within the meaning of Section 120.52(8)(d). No criteria are provided by rule or otherwise which would enable a permit applicant or a court to know whether an applicant has satisfied the requirements implicit in each of the quoted terms. 23/ For example, no criteria inform an applicant that:

      
      

      1. the "necessity" for proposed armoring must be "clearly justified" by computer model results which must be verifiable through replication on the computer model used

         exclusively by Respondent for such purposes since 1988; 24/

      2. "similar structures" can be either similar to armoring devices or similar to upland structures with dune viability and proximity to the shoreline that are assumed to be similarly situated to the dune viability and shoreline proximity associated with the proposed armoring but not verified as such; 25/ and

      3. "segment of shoreline" can include any part of the shoreline from one mile north or south of the proposed armoring site to at least nine miles north or south of the site excluding publicly owned shoreline. 26/

         
         

   7. The vagueness of the quoted terms and the absence of adequate standards to constrain the exercise of agency discretion vests unbridled discretion in Respondent, within the meaning of Section 120.52(8)(d). The same infirmities render the quoted terms arbitrary or capricious within the meaning of Section 120.52(8)(e). 27/

   
   

8. Challenge To Agency Statements: Interpreting The Written Rules

   
   

   1. In interpreting and implementing its written rules, Respondent consistently applies a multi-tiered test to assess applications for rigid coastal armoring permits. First, the applicant must state and "clearly justify" the "necessity" for protecting a major habitable structure, within the meaning of Rules 16B-33.005(1), 16B-33.005(3)(g), and 16B-33.007(7). Second, the applicant must show that direct and cumulative impacts on the beach-dune system and marine turtles, caused by the location of coastal armoring and by the armoring itself, clearly justify armoring within the meaning of Section 161.053(5)(a)3. 28/ In the cumulative impacts assessment, Respondent considers "similar structures" and the "threat" to that "segment of shoreline" within the meaning of Rule 16B- 33.005(7). If both requirements of the first tier are satisfied, Respondent then considers alternatives to the proposed armoring. Isolated rigid coastal armoring that does not close the gap in existing armoring, such as the proposed bulkhead, must be the only "feasible" means of protection within the meaning of Rule 16B-33.005(3)(c).

      
      

   2. Respondent has interpreted and applied the disputed terms through agency statements in evidence in this proceeding. Petitioner asserts that those agency statements prescribe, interpret, and implement agency policy that has general applicability within the meaning of Section 120.52(16).

      
      

   3. Petitioner asserts that the agency statements are invalid rules because Respondent materially failed to comply with statutory rulemaking requirements within the meaning of Section 120.52(8)(a). In addition, Petitioner claims the unwritten rules are invalid pursuant to Sections 120.52(8)(b)-(e).

      
      

   4. A rule is statutorily defined in Section 120.52(16) to include:

      
      

      . . . any agency statement of general applicability that implements, interprets, or prescribes law or policy . . . and includes

      any requirement . . . not specifically required by statute or by an existing rule. . . . (emphasis supplied)

      
      

      A policy statement that does not satisfy the test of general applicability in Section 120.52(16) is incipient policy. 29/ A policy statement that satisfies the test of general applicability but has not been promulgated in compliance with statutory rulemaking requirements is an unwritten rule. 30/

      
      

   5. Incipient policy can be prescribed, interpreted, and implemented without complying with statutory rulemaking requirements. In an administrative proceeding, an agency must explicate or prove up any incipient policy required to satisfy the ultimate "burden of persuasion," if the agency is the petitioner, or to explicate that policy required to go forward with the evidence if the agency is the respondent. 31/

      
      

   6. When incipient policy emerges into general applicability, it loses its incipient character, notwithstanding the form or appellation attributed to it by the agency, and emerges as a rule. 32/ With two exceptions, 33/ agency policy that emerges as an unwritten rule is unenforceable in an administrative proceeding until it is promulgated in compliance with statutory rulemaking requirements. 34/

      
      

      1. Incipient Policy

         
         

   7. The Governor and Cabinet adopted a coastal armoring policy on December 18, 1990 (the "1990 policy"). The 1990 policy specifically prohibits all coastal armoring within the Archie Carr National Wildlife Refuge. Petitioner's home is located within the Refuge. A qualifying structure located outside the Refuge must be vulnerable to a five year RISE to qualify for coastal armoring. A notice of vulnerability caveat states that an applicant who constructs his or her home after the notice of public hearing for the CCCL in the county in which the home is located is presumed to have notice of vulnerability and is disqualified from obtaining a coastal armoring permit.

      
      

   8. The 1990 policy is applicable to all coastal armoring permits in the state, except Petitioner's. It was not promulgated in accordance with statutory rulemaking requirements prior to 1993 when the 1990 policy was promulgated, in modified form, in Respondent's proposed rules. 35/ However, the general applicability of the 1990 policy is not at issue in this proceeding. The proposed bulkhead is exempt from the substantive provisions of the 1990 policy in its original form and in any form included in Respondent's proposed rules. Therefore, the 1990 policy is not being used to determine the substantial interests of Petitioner within the meaning of Sections 120.535(2)(a) and 120.56(1).

      
      

   9. The proposed bulkhead is exempt from the prohibition against armoring in the Archie Carr National Wildlife Refuge. It is also exempt from the requirement that proposed armoring must be vulnerable to a five year RISE. Except as stated hereinafter, general vulnerability provisions under the pre- 1990 policy and requirements for Petitioner's home to be vulnerable to a specific 10 or 15 year RISE lost any general applicability they may have once had when they were superseded by the 1990 policy. They are applicable, if at all, only to Petitioner.

   10. Agency statements interpreting the terms "similar structures", "segment of shoreline", and "threaten" in Rule 16B- 33.005(7) are properly characterized as incipient policy. The statements fail to satisfy the test of general applicability in Section 120.52(16). The evidence showed that Respondent interprets and implements these terms with little, if any, consistency.

       
       

       1. Unwritten Rules

       
       

   11. Three agency statements are applied by Respondent to all applicants for coastal armoring, including Petitioner. Each statement implements, interprets, or prescribes policy within the meaning of Section 120.52(16).

       
       

   12. Since 1988, Respondent requires all applicants for coastal armoring permits to clearly justify the necessity for coastal armoring with computer model results that demonstrate an upland structure is vulnerable to a specific RISE. 36/ Computer modeling analyzes certain scientific parameters to mathematically simulate storm surge elevation and erosion for a specific RISE. Computer model results must show that the eroded profile of a specific RISE will reach the foundations of the upland structure.

       
       

   13. Respondent uses a computer model known as the Dean erosion model. Computer model results submitted by applicants must be verified through replication on the Dean erosion model. 37/

       
       

   14. Respondent applies a 2:1 requirement to assess the economic feasibility of alternatives to coastal armoring. The 2:1 requirement compares the cost of relocating the upland structure ("relocation") or dune enhancement or modification ("enhancement") to the cost of proposed armoring. If the cost of relocation or enhancement is no more than twice the cost of proposed armoring, then relocation or enhancement is economically feasible.

       
       

       8.02(a) Dean Model Requirements: Failure To Promulgate

       
       

   15. Applicable statutes and rules do not require computer model results in order to clearly justify the necessity for armoring. Nor do applicable statutes and rules prescribe a particular type of computer model to be used in assessing vulnerability of the upland structure. However, Respondent in fact imposes both requirements to clearly justify the necessity for armoring.

       
       

   16. The evidence showed that Respondent has a longstanding requirement for computer model results. That requirement implements, interprets, or prescribes policy within the meaning of Section 120.52(16). The requirement affects the substantial interests of all applicants for coastal armoring permits. 38/

       
       

   17. Respondent does not in form or appellation characterize 39/ the Dean erosion model as the only computer model that may be used to assess vulnerability. Nor does Respondent attempt to explicate the reasonableness of such a requirement. In effect, however, Respondent requires, without exception, for the results of other computer models to be verified through replication on the Dean erosion model.

       
       

   18. Respondent's exclusive application of the Dean erosion model implements, interprets, or prescribes policy within the meaning of Section 120.52(16). The requirement affects the substantial interests of all applicants for coastal armoring permits.

   19. Respondent's requirement that vulnerability to a specific RISE must be demonstrated with computer model results is a policy statement of general applicability in Section 120.52(16). Respondent's requirement that vulnerability to a specific RISE must be demonstrated, or verified through replication, on the Dean erosion model is also a policy statement of general applicability. Both requirements are intended by their own effect to require compliance, are consistently applied to a broad class of persons, or otherwise have the direct and consistent effect of law (collectively, the "Dean model requirements"). 40/

       
       

   20. The Dean model requirements are rules, within the meaning of Section 120.52(16). Each requirement is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(a). Respondent has materially failed to promulgate its rules in compliance with statutory rulemaking requirements.

       
       

       8.02(b) Dean Model Requirements: Inadequate Standards; Arbitrary or Capricious

       
       

   21. The Dean model requirements lack adequate standards to guide the exercise of administrative discretion in the selection of computer input variables. In the absence of such standards, the selection of input variables lacks sufficient constraints to prevent unbridled discretion, and is arbitrary or capricious, within the meaning of Sections 120.52(8)(d) and (e).

       
       

       8.02(b)[1] Input Variables: Local Calibration Data

       
       

   22. Computer models must be calibrated for high frequency storm events in order to accurately predict the erosion limits of such storms. Results of an erosion model that has not been properly calibrated may be unreliable. 41/

       
       

   23. The most accurate method of calibration uses site specific data. 42/ Neither the original Dean erosion model utilized by Respondent to support its recommendation of approval to the Governor and Cabinet nor the EDUNE erosion model utilized by Petitioner's expert coastal engineer during the formal hearing were calibrated using site specific data for Petitioner's home.

       
       

   24. Both the original Dean and EDUNE computer models were calibrated using erosion data from the 1985 Thanksgiving Day storm (the "Thanksgiving Day storm"). No storm hydrograph for the Thanksgiving Day storm is available for Indian River County, and no site specific data for that storm are available for Petitioner's home.

       
       

   25. In the absence of site specific data, the accuracy of an erosion model depends on the selection of proper input variables. A change in any input variable can alter the results of the model and affect its accuracy.

       
       

   26. The principal input variables for the Dean and EDUNE computer models are: the existing beach profile; the scale parameter, or A factor; the storm surge hydrograph; the storm surge run-up; and the erosion factor. Other input variables include wave height and parameters defining the eroded profile above the storm surge elevation.

       
       

   27. Each input variable is a specific number. Applicable statutes and rules do not prescribe numeric values to be used in calibrating erosion models. Instruction manuals prescribe some, but not all, of the numeric values to be used in the absence of local calibration data.

   28. The selection of proper input variables, in the absence of site specific data, requires the exercise of professional engineering judgment. The reasonableness and competency of the professional judgment used in selecting proper input variables directly affects the accuracy of computer model results.

       
       

   29. An erosion factor of 1.5 was properly used in the original Dean model. It showed that the eroded profile of a 15 year RISE would reach the foundations of Petitioner's home. Due to differences in computer models, an erosion factor of 2.5 was properly used by Petitioner's expert in his EDUNE model to show that the eroded profile of a 10 year RISE would reach the foundations of Petitioner's home.

       
       

   30. The A factor is another input variable used in erosion modeling. It defines the shape of the shoreline profile.

       
       

   31. The A factor is determined by numerically fitting the shoreline to the depth of the nearshore breaking wave. A higher A factor produces less erosion in the computer model. The A factor can be increased by fitting the shoreline to a depth beyond the nearshore breaking wave.

       
       

   32. The A factors used in the original Dean model and the EDUNE model were appropriate. Each model was properly determined by fitting the shoreline to the depth of the nearshore breaking wave.

       
       

   33. Respondent prepared a revised Dean model for the formal hearing. The revised Dean model used an erosion factor of 1.0 and an A factor of 0.19 to project the eroded profile. It showed that the eroded profile of a 15 year RISE would not reach the foundation of Petitioner's home. The revised Dean model decreased the erosive force of the projected RISE by fitting the shoreline to a depth beyond the nearshore breaking wave.

       
       

   34. The discrepancy in results between the original and revised Dean model is significant. It elucidates the need for standards to prevent agency employees from acting with unrestrained discretion to enforce invisible policy. 43/

       
       

       8.02(b)[2] Input Variables: Storm Surge And Erosion

       
       

   35. Standards for the selection of input variables are needed to guide agency discretion in prescribing, interpreting, and implementing government policy of general applicability. The selection of those standards should be made in a manner that serves the purposes of the specific application and the larger purposes of protecting the beach-dune system from imprudent construction that can increase the effects of storm force.

       
       

   36. Storm force may be measured by storm surge or erosion. Both characteristics of storm force present threats to upland structures and to the beach-dune system.

       
       

   37. Both characteristics of storm force must be considered in assessing specific applications for coastal armoring permits. Respondent is required in Sections 161.053(1)(a) and 161.053(5)(a) to issue coastal armoring permits in a manner that protects the beach-dune system from imprudent construction that can accelerate "erosion." For the same purpose, Respondent is required in Section 161.053(1)(a) to establish a CCCL to define that portion of the beach-dune system subject to severe "storm surge."

   38. One of the complexities faced in calibrating computer models is that storm surge and erosive force may not be proportional in an actual storm. The Thanksgiving Day storm, for example, had a storm surge elevation equal to a high frequency storm with a return interval of 15 years but an erosive force 2.8 times greater than a major storm such as hurricane Eloise in 1975.

       
       

   39. The Dean model requirements lack adequate standards for selecting input variables to establish the proper proportion for storm surge and erosive force. If a computer model is calibrated for greater erosive force, the results can be used to demonstrate that the storm surge elevation of a less severe storm, with a lower RISE, produces an eroded profile that reaches the foundation of an applicant's home. Conversely, if a computer model is calibrated for less erosive force, the results can be used to demonstrate that the storm surge elevation for the same storm produces an eroded profile that does not reach the foundation of an applicant's home.

       
       

   40. To the extent computer models emphasize erosive force over storm surge, vulnerability for coastal armoring is subject to a standard that is different from the design criteria for construction seaward of the CCCL. Design criteria for foundations and armoring devices are assessed in Respondent's rules by reference to storm surge. 44/ However, Respondent assesses vulnerability in terms of both storm surge and sediment characteristics. 45/ In the action instituted pursuant to Section 120.57(1), Respondent failed to explicate a justification for imposing disparate standards for design and vulnerability requirements and failed to articulate standards to guide agency decisions in applying separate standards to each requirement.

       
       

   41. Standards for input variables must be established to assure that computer model results measure storm surge and erosive force in a manner that accurately assesses a particular application and protects the beach-dune system from imprudent construction. Without such standards, the objectivity and reliability intended for a computer model become an illusion. The computer model is transformed into a panoply for invisible policy making. 46/ The lack of adequate standards for selecting input variables vests unbridled discretion in Respondent and renders the Dean model requirements arbitrary or capricious, within the meaning of Sections 120.52(8)(d) and (e).

       
       

   42. Respondent's written rules, at a minimum, should notify applicants that the necessity for coastal armoring must be clearly justified with computer model results demonstrating vulnerability to a specific RISE. Applicants should also be informed that computer model results must be verified by replication on the Dean erosion model.

       
       

   43. To the extent it is feasible to include actual input variables in the written rules, input variables should be disclosed. To the extent disclosure is infeasible, applicant's should know: that their substantial interests may depend on the input variables selected; the standards used to select the actual input variables; and the identity and source of documents containing information relied on by Respondent to guide its assessment of each application. Respondent is in the best position to determine, within the scope of its expertise, the most efficacious means of complying with statutory rulemaking requirements.

       8.02(c) The 2:1 Requirement: Failure To Promulgate

       
       

   44. The 2:1 requirement prescribes, interprets, and implements policy within the meaning of Section 120.52(16). The 2:1 requirement affects the substantial interests of all applicants for coastal armoring. It requires compliance with Rule 16B-33.005(3)(c) by demonstrating that relocation or enhancement are more than twice as costly as the proposed armoring.

       
       

   45. Respondent's 2:1 requirement satisfies the test of general applicability in Section 120.52(16). 47/ It is intended by its own effect to require compliance, is consistently applied to all applicants for coastal armoring permits, or otherwise has the direct and consistent effect of law. 48/

       
       

   46. Respondent does not in form or appellation characterize 49/ the 2:1 requirement as a rule. In effect, however, Respondent implements and interprets policy that has general applicability by requiring, without exception, compliance with the 2:1 requirement in order to show that proposed armoring is the only feasible means of protection.

       
       

   47. The 2:1 requirement is a rule, within the meaning of Section 120.52(16), and an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(a). Respondent has materially failed to promulgate its rule in compliance with statutory rulemaking requirements.

       
       

       8.02(d) The 2:1 Requirement: Modifies Or Contravenes Law Implemented

       
       

   48. Engineers customarily employ an array of techniques to determine economic feasibility. Any of the techniques employed by engineers to assess feasibility are included in the feasibility requirement that is authorized by reasonable implication in the law implemented in Sections 161.052 and 161.053.

       
       

   49. Applicants for coastal armoring may use any engineering technique that is appropriate under the circumstances to comply with Rule 16B-33.005(3)(c). By selecting one test, to the exclusion of all others, Respondent has imposed a test for feasibility that is more restrictive than the authorized test.

       
       

   50. Respondent has modified or contravened the feasibility requirement authorized in Sections 161.052 and 161.053. 50/ For that reason, the 2:1 requirement is an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(c).

       
       

       8.02(e) The 2:1 Requirement: Inadequate Standards; Arbitrary or Capricious

       
       

   51. The exercise of agency discretion in assessing economic feasibility can involve both scientific and unscientific applications. To that extent, agency discretion required to determine economic feasibility, unlike that required to determine technical feasibility, is more easily expanded beyond the scope of agency expertise.

       
       

   52. Engineers routinely prepare economic feasibility assessments.

       However, the discretion required to determine which costs will be included in such an assessment is not exclusively within the scope of agency expertise. For example, relocation costs considered by Respondent in applying the 2:1 requirement do not include: the contractor's overhead or contingencies; remodeling costs, including the cost of repairing damage to restore the

       structure to pre-move condition; landscaping the new site to conform to original site specifications; and the cost of moving pools, patios, retaining walls or any other ineligible structure. 51/ The cost of the proposed armoring includes costs associated with the use of related state owned property. 52/ The lack of standards to guide agency discretion in determining costs to be included in the assessment renders the 2:1 requirement invalid within the meaning of Sections 120.52(8)(d) and (e).

       
       

       CONCLUSIONS OF LAW

       
       

   53. The Division of Administrative Hearings has jurisdiction over the subject matter and parties in this proceeding. Sections 120.535, 120.56, and

   120.57. The parties were duly noticed for the formal hearing.

   
   

9. Motion To Dismiss Petition To Intervene

   
   

   1. Petitioner moved to dismiss Intervenors' original petition to intervene on the ground that Intervenors failed to show their interests are substantially affected by the proposed bulkhead. Petitioner's motion to dismiss is denied.

      
      

   2. The evidence demonstrated that the proposed bulkhead will have little, if any, adverse impact on marine turtles and their nesting habitats. However, the potential harm to Intervenors' interests was sufficient to give Intervenors standing to present evidence in support of their interests and to contest evidence presented by Petitioner. The presence of Intervenors in this proceeding provided an invaluable and essential voice for a threatened and endangered species of life.

   
   

10. Respondent's Motion To Dismiss

    
    

    1. On February 23, 1993, Respondent filed a Motion To Dismiss the action instituted pursuant to Section 120.535. Ruling was reserved for disposition in this Final Order.

       
       

    2. The provisions of Section 120.535 were enacted in 1991 Laws of Florida, Chapter 91-30, Sections 3 and 11-12, as amended in Chapter 91-191. Chapter 91-191, Section 11, provides that Section 120.535 applies to "actions instituted" on or after March 1, 1992. 53/

       
       

    3. Section 120.535 applies to "actions instituted" pursuant to other sections in Chapter 120, including Sections 120.57(1) and 120.56. Chapter 91- 191, Section 12 established the effective date for the enactment. If Chapter

       91-191, Section 11 means that the provisions of Section 120.535 apply to actions instituted pursuant to Section 120.535, either Section 11 or Sections 12 would be a nullity. Significance and effect must be accorded each section in a manner that gives effect to the act as a whole. Villery v. Florida Parole and Probation Commission, 396 So.2d 1107, 1111 (Fla. 1980); State v. Gale

       Distributors, Inc., 349 So.2d 150, 153 (Fla. 1977); Ozark Corporation v.

       Pattishall, 185 So 333, 337 (Fla. 1938); Topeka Inn Management v. Pate, 414 So.2d 1184, 1186 (Fla. 1st DCA 1982). The legislature should never be presumed to pass a purposeless and useless piece of legislation. Sharer v. Hotel Corporation of America, 144 So.2d 813, 817 (Fla. 1962).

       
       

    4. Sections 120.535 and 120.57(1)(b)15 were both enacted in the same act. 54/ Both sections authorize an agency to rely on unwritten rules as a basis for final agency action in certain circumstances.

    5. Under Sec. 120.535(5), an agency may rely on its unwritten rule for final agency action in a separate proceeding if the agency has engaged in prescribed rulemaking activity or if such activity is neither feasible nor practicable within the meaning of Sections 120.535(1)(a) or (b). Under Section 120.57(1)(b)15, an agency may rely on its unwritten rule, in an action instituted pursuant to Sec. 120.57(1), if the agency demonstrates that its rule is within the scope of delegated legislative authority and explicates the rule in the administrative proceeding. Section 120.535(8) provides in relevant part:

       
       

       . . . A proceeding pursuant to this section may be brought in conjunction with a proceeding under any other section of [Chapter 120], or consolidated with such a proceeding.

       
       

    6. Section 120.535 does not apply to the action instituted pursuant to Section 120.57(1) on November 19, 1990. However, Section 120.535 does apply to the action instituted pursuant to Section 120.56 on February 4, 1993.

       
       

    7. Section 120.68(15) prohibits judicial review of a petition challenging the validity of a rule except to review a final order entered in Sections 120.54 and 120.56. 55/ Section 120.535 is not a proceeding to determine the validity of a rule within the meaning of Section 120.68(15). Section 120.535 is a proceeding to prevent the enforcement of an unwritten rule unless requirements are met. See Sections 120.535(1)(a) and (b), Section 120.535(2)(a), and Section 120.535(5). The failure to exclude Section 120.535 from the prohibition in Section 120.68(15) does not prohibit Petitioner from obtaining judicial review of a final order entered in the action instituted pursuant to Section 120.535. Respondent's motion to dismiss the action instituted pursuant to Section 120.535 is denied.

       
       

    8. The action instituted pursuant to Section 120.535 does not deprive Petitioner of authority to seek a final order in Section 120.56 determining the invalidity unwritten rules at issue in Section 120.535. The legislature did not make Section 120.535 the sole means of challenging an unwritten rule. 56/

       
       

    9. Section 120.535(8) requires that all proceedings to determine a violation of Section 120.535(1) shall be brought pursuant to Section 120.535. The scope of Section 120.535(8) is explicitly and clearly limited to a violation under Section 120.535(1). Section 120.535(8) does not reach a violation under any other section in Chapter 120, including Section 120.56.

       
       

    10. The presumption is that no change in existing law is intended unless a statute is explicit and clear in that regard. Thornber v. City of Fort Walton Beach, 568 So.2d 914, 918 (Fla. 1990). Separate provisions in Chapter 120 must be accorded significance in order to give effect to Chapter 120 as a whole. Villery, 396 So.2d at 1111; Gale Distributors, 349 So.2d at 153; Ozark Corporation, 185 So at 337 (Fla. 1938); Topeka Inn Management, 414 So.2d at 1186.

        
        

    11. Sections 120.535 and 120.56 provide substantially affected parties with separate remedies for enforcing statutory rulemaking requirements. Those remedies are not mutually exclusive. 57/ Unlike Section 120.56, Section 120.535 does not invalidate an unwritten rule. Section 120.535 prevents the application of an unwritten rule, subject to prescribed exceptions, until proposed rulemaking is begun. 58/

    12. Section 120.56 authorizes a determination of invalidity of an existing rule. If an unwritten rule is determined to be invalid, it is unenforceable and can not be applied until it is promulgated in compliance with statutory rulemaking requirements. If the unwritten rule is eventually promulgated and becomes enforceable, the end result may not be too dissimilar from that intended in Section 120.535 for an unwritten rule that is eventually promulgated. However, the procedure used to enforce rulemaking is different in each section. 59/

    
    

11. Section 120.56(5): Adoption Of Section 120.57(1)(b)15

    
    

    1. Section 120.56(5) provides that hearings conducted to determine the invalidity of an unwritten rule shall be conducted in the same manner as provided in Section 120.57(1). Section 120.57(1)(b)15 provides that an unwritten rule may be applied in a hearing conducted pursuant to Section 120.57(1) if the rule is shown to be within the scope of delegated legislative authority and is explicated. 60/ If Section 120.56(5) adopts Section 120.57(1)(b)15, then Respondent is authorized to apply an unwritten rule in Section 120.56 if the unwritten rule is explicated and otherwise valid within the meaning of Sections 120.52(8)(b)-(e).

       
       

    2. The effect of adoption generally is the same as if the statute adopted is written into the adopting statute. Hecht v. Shaw, 151 So 333 (Fla. 1933). However, subsequent modifications to a statute adopted by reference in another statute may or may not apply in the adoptive statute. See, e.g., Reino v. State, 352 So.2d 853, 859 (Fla. 1977) (rejecting the state's assertion that when a statute adopts another statute by reference, the adoption includes only those provisions in effect at the time of adoption and that subsequent modification or repeal of the adopted statute does not affect the adopting statute).

       
       

    3. The only stated exception to the adoption of Section 120.57(1) is "that the hearing officer's order shall be final agency action." Where an adoptive statute enumerates the things which are not adopted it generally may be construed as adopting those things not enumerated. Cf. Thayer v. State, 335 So.2d 815, 817 (Fla. 1976); Ideal Farms Drainage Dist. v. Certain Lands, 19 So.2d 234, 239 (Fla. 1944); University of Florida, Institute of Agricultural Services v. Karch, 393 So.2d 621, 622 (Fla. 1st DCA 1981); Wanda Marine Corporation v. State, Department of Revenue, 305 So.2d 65, 70 (Fla. 1st DCA 1974).

       
       

    4. The enacting legislation prohibits Section 120.57(1)(b)15 from being applied to actions instituted before March 1, 1992. 61/ That prohibition arguably implies that Section 120.57(1)(b)15 may thereafter apply to actions instituted pursuant to other sections in Chapter 120, including Section 120.56. The legislative history states that Section 120.57(1)(b)15:

       
       

       . . . codifies the procedure for review of agency statements within the statutory definition of a "rule" and not adopted by the rulemaking procedure . . . . The intent of the procedure required by this section is to assure that statutory authority exists for

       all agency statements and that an evidentiary basis for each statement is provided in the record of adjudication. (emphasis supplied)

       
       

       House Of Representatives Committee On Governmental Operations Final Bill Analysis & Economic Impact Statement (HB 1879) at 9- 10.

       
       

    5. Section 120.56(5) does not adopt Section 120.57(1)(b)15 for three reasons. First, adoption of Section 120.57(1)(b)15 ignores applicable rules of statutory construction. Second, Section 120.57(1)(b)15 modifies, expands, or otherwise alters rights in existence at the time that Section 120.56(5) was enacted; and rights in existence prior to the time Section 120.57(1)(b)15 was enacted. Third, adoption of Section 120.57(1)(b)15 contravenes legislative intent for Section 120.57(1)(b)15 and for Chapter 120 as a whole.

       
       

       1. Rules Of Construction

          
          

    6. Amendment of a statute by implication is generally not favored. This rule of construction has special application where a new provision in the adopted statute is not expressly designated as an amendment to the adoptive statute. Cf. State v. J.R.M., 388 So.2d 1227, 1229 (Fla. 1980). The rule also has special application where an earlier statute, such as Section 120.56, has been in existence and recognized for a long period. Calhoun v. Baden, 15 So.2d

       444 (Fla. 1943) (a statute repeatedly reenacted for 25 years is not repealed by implication except on diametrical repugnance or express statement of intent).

       
       

    7. Section 120.56(5) is a specific reference statute. It refers to a particular statute by section number. Goodman v. Kendall Gate-Investco., Inc.,

       395 So.2d 240, 241 (Fla. 3d DCA 1981). A general reference statute refers to the law on a subject generally. Id.

       
       

    8. As a specific reference statute, Section 120.56(5) is properly construed as incorporating only those provisions of Section 120.57(1) which were in effect when Section 120.56(5) was enacted. But see Reino, 352 So.2d at 859. Conversely, a general reference statute incorporates the law in effect at the time that the adoptive act was enacted and all subsequent laws on the same subject matter. State v. Smith, 189 So.2d 846, 847 (Fla. 4th DCA 1966).

       
       

    9. Assuming arguendo that Section 120.56(5) is properly characterized as a general reference statute, the subject matter of Section 120.56 and Section 120.57(1)(b)15 are dissimilar. While both sections relate to unwritten rules, each section authorizes a determination of invalidity on dissimilar grounds.

       
       

    10. Section 120.56 authorizes a determination of invalidity on any of the grounds of invalidity in Sections 120.52(8)(a)-(e). However, a determination of invalidity may be based solely on the finding that an agency materially failed to comply with statutory rulemaking requirements within the meaning of Section 120.52(8)(a). In such a case, issues of invalidity in Sections 120.52(8)(b)-(e) are neither required nor prohibited in a determination of invalidity in Section 120.56.

        
        

    11. Section 120.57(1)(b)15 authorizes a determination of invalidity on any ground of invalidity in Sections 120.52(8)(b)- (e). A determination of invalidity in Section 120.57(1)(b)15 may not be based on a finding that the agency materially failed to comply with statutory rulemaking requirements within the meaning of Section 120.52(8)(a). Thus, issues of invalidity in Section 120.52(8)(a) are irrelevant in an action to which Section 120.57(1) applies.

        1. Existing, Modified, And New Rights

           
           

    12. Section 120.57(1)(b)15 may be adopted in Section 120.56(5) to the extent Section 120.57(1)(b)15 merely codifies rights already existing in Section

        120.56 and applicable case law. However, Section 120.57(1)(b)15 may not create new rights in Section 120.56 or modify, expand, or otherwise alter rights existing in Section 120.56 and applicable case law prior to the date Section 120.57(1)(b)15 became effective. 62/

        
        

        11.02(a) Existing Rights

        
        

    13. Prior to the enactment of Section 120.57(1)(b)15, Sections 120.57(1) and 120.56 authorized challenges to unwritten rules on coterminous grounds. Neither section prohibited a challenge to an unwritten rule on any ground of invalidity now codified in Sections 120.52(8)(a)-(e). However, both sections authorized a determination of invalidity based solely on a material failure to comply with statutory rulemaking requirements now codified in Section 120.52(8)(a). Grounds for invalidity in Sections 120.52(8)(b)-(e) were neither prohibited nor required for a determination of invalidity in Sections 120.57(1) or 120.56. 63/

        
        

    14. Established judicial construction of Sections 120.57(1) and 120.56 held that a substantially affected party was authorized to challenge an unwritten rule under either Section 120.56 or 120.57(1), or both. McDonald, 346 So.2d at 580. 64/ The judicial construction of Sections 120.56 and 120.57 was consistently reenacted by the legislature. Subsequent reenactment of statutory provisions that have received a definite judicial construction is presumed to constitute legislative approval of that judicial construction. State ex rel. Szabo Food Services, Inc. v. Dickinson, 286 So.2d 529 (Fla. 1973); Walsingham v. State, 250 So.2d 857 (Fla. 1971); Collins Investment Co. v. Metropolitan Dade County, 164 So.2d 806 (Fla. 1964); Advisory Opinion to Governor, 96 So.2d 541 (Fla. 1957); Depfer v. Walker, 169 So 660 (Fla. 1935); Davies v. Bossert, 449 So.2d 418 (Fla. 3d DCA 1984); Aronson v. Congregation Temple De Hirsch of Seattle, Washington, 138 So.2d 69 (Fla. 3d DCA 1962). Courts are barred from changing an earlier judicial construction when the judicial construction of the statute is presumed to have been reenacted. Deltona Corporation v. Kipnis, 194 So.2d 295 (Fla. 2d DCA 1966).

        
        

    15. Section 120.57(1)(b)15 authorizes a challenge to an unwritten rule in an action instituted pursuant to Section 120.57(1). One of the purposes of Section 120.57(1)(b)15 is ". . . to assure that statutory authority exists for all agency statements." House Of Representatives Committee On Governmental Operations Final Bill Analysis & Economic Impact Statement (HB 1879) at 10; Florida Department of Revenue v. A. Duda & Sons, Inc., 608 So.2d 881, 884 (Fla. 5th DCA 1992) (legislative history, including staff analysis and economic impact statements, are appropriate means of ascertaining legislative intent). By authorizing a challenge to an unwritten rule, Section 120.57(1)(b)15 merely codifies rights in existence prior to its enactment.

        11.02(b) New Rights: Application And Explication Of Unwritten Rules

        
        

    16. Prior to the enactment of Section 120.57(1)(b)15, an agency was authorized to explicate policy statements that lacked general applicability within the meaning of Section 120.52(16). Such policy statements were not defined as a rule but were defined as incipient policy. Agencies were authorized to apply incipient policy and to explicate incipient policy in an administrative proceeding. McDonald, 346 So.2d at 580-582.

        
        

    17. An agency was not authorized under prior law to explicate policy statements that had general applicability within the meaning of Section 120.52(16). Such policy statements were defined as an unwritten rule. Invalidation of unwritten rules was a principal goal of Chapter 120 and its necessary effect if statutory rulemaking requirements were not to atrophy by nonuse. McDonald, 346 So.2d at 580-582; Straughn v. O'Riordan, 338 So.2d 832, 834 n. 3 (Fla. 1976).

        
        

    18. Contrary to prior law, Section 120.57(1)(b)15 authorizes an agency to apply an unwritten rule and to explicate the rule. Section 120.57(1)(b)15 provides that an unwritten rule "shall be demonstrated" to be within the scope of delegated legislative authority and requires the recommended order to:

        
        

        . . . provide an explanation of the statement that includes the evidentiary basis which supports the statement applied and a general discussion of the justification for the statement.

        
        

        The right to apply an unwritten rule and the right to explicate the rule are new rights not in existence prior to the enactment of Section 120.57(1)(b)15.

        
        

        11.02(c) Modification: Elimination Of Grounds

        
        

    19. Section 120.57(1)(b)15 modifies the authority to challenge an unwritten rule in Section 120.57(1) by repealing the ground that an agency materially failed to comply with statutory rulemaking requirements now codified in Section 120.52(8)(a). Section 120.57(1)(b)15 expressly authorizes the application of an agency statement defined as a rule in Section 120.52(16) but not promulgated in compliance with statutory rulemaking requirements.

        
        

    20. Section 120.57(1)(b)15 is intended to assure that statutory authority exists for all agency statements. Therefore, the other grounds for invalidity codified in Sections 120.52(8)(b)-(e) are the only authorized grounds for a determination of invalidity in Section 120.57(1)(b)15.

        
        

        11.02(d) Modification: Burden Of Proof

        
        

    21. Section 120.57(1)(b)15 imposes the burden of proof for an unwritten rule on the agency seeking to apply the rule. In other respects, the burden of proof in the action instituted pursuant to Section 120.57(1) is unchanged. The agency has the burden of explicating incipient policy in accordance with the ultimate burden of persuasion, if the agency is the petitioner, and the burden of going forward with the explication of incipient policy if the agency is the respondent. Similarly, the adverse party has the burden of proving that an agency statement is a rule. Once the general applicability of the agency statement is established, however, the burden of proof shifts to the agency.

    22. Before an unwritten rule can be applied to affect the substantial interests of a party, the agency must satisfy two requirements. First, the rule must be demonstrated to be within the scope of delegated legislative authority. Second, the rule must be explicated by evidence, an explanation, and a general discussion of its justification.

        
        

    23. No express provision in Section 120.57(1)(b)15 places the burden of proving the invalidity of an unwritten rule on the party against whom the agency seeks to apply the rule. Section 120.57(1)(b)15 does not provide that an agency statement shall be applied unless its "invalidity" is proven by the party against whom the agency seeks to apply the rule. Compare Section 120.56(1) (using the term "invalidity").

        
        

    24. No necessary implication in Section 120.57(1)(b)15 imposes the burden of proving the validity of an unwritten rule on a party against whom the agency seeks to apply its statement. The legislature does not intend its enactments to have such absurd results. Foley v. State, 50 So.2d 179, 182 (Fla. 1951). Where legislation is susceptible to more than one interpretation, the preferred interpretation is that which avoids an unreasonable result. Agrico Chemical Company v. State Department of Environmental Regulation, 365 So.2d 759, 766 (Fla. 1st DCA 1978).

        
        

        1. Legislative Intent

        
        

    25. The primary object of statutory construction is to ascertain legislative intent and carry that intent into effect to the fullest degree. If the literal context of an adoptive statute conflicts with legislative intent, the literal context must yield to legislative intent. Byrd v. Richardson- Greenshields Securities, Inc., 552 So.2d 1099, 1102 (Fla. 1989); Vildibill v. Johnson, 492 So.2d 1047, 1049 (Fla. 1986); City of Boca Raton v. Gidman, 440 So.2d 1277, 1281 (Fla. 1983); Griffis v. State, 356 So.2d 297 (Fla. 1978).

        
        

        11.03(a) Section 120.57(1)(b)15

        
        

    26. The legislature intended to place the burden of proof in 120.57(1)(b)15 on an agency seeking to apply an unwritten rule. Section 120.57(1)(b)15 is intended, in relevant part, to ". . . assure that . . . an evidentiary basis for each statement is provided in the record of an adjudication." (emphasis supplied) House Of Representatives Committee On Governmental Operations Final Bill Analysis & Economic Impact Statement (HB 1879) at 9-10.

        
        

    27. By placing the burden of proof on an agency, the legislature assures an evidentiary basis in the record of adjudication. The legislature assures that an unwritten rule "shall be demonstrated" to be within the scope of delegated legislative authority and that the recommended order will include an explanation, justification, and evidentiary basis.

        
        

    28. If the burden of proving the invalidity of an unwritten rule is placed on a substantially affected party and if no evidence of invalidity is submitted, an unwritten rule may be applied with no evidentiary basis in the record of adjudication. Such a result fails to effectuate legislative intent for Section 120.57(1)(b)15. By imposing the burden of proving the validity of an unwritten rule on the agency, an evidentiary basis in the record of adjudication is assured or the agency statement can not be applied.

    29. Placing the burden of proof on an agency seeking to apply an unwritten rule, in effect, creates a presumption of invalidity for unwritten rules. 65/ A presumption of invalidity for unwritten rules maximizes the scope of statutory rulemaking requirements and serves one of the principal purposes of Chapter 120.

        
        

    30. The Florida Supreme Court has long held that one of the principal goals of Chapter 120 is:

        
        

        . . . the abolition of "unwritten rules" by which agency employees can . . . adopt, change, and enforce . . . invisible policy making.

        
        

        Straughn v. O'Riordan, 338 So.2d at 834 n. 3.

        
        

        In McDonald v. Department of Banking and Finance, 346 So.2d 569 (Fla. 1st DCA 1977), the court held that invalidation of an unwritten rule is:

        
        

        . . . the necessary effect of [Chapter 120] if the prescribed rulemaking procedures are not to be atrophied by nonuse. Straughn v. O'Riordan, 338 So.2d 832, 834 (Fla. 1976)

        . . . .

        
        

        McDonald, 346 So.2d at 580.

        
        

        11.03(b) Section 120.535: In Pari Materia

        
        

    31. Legislative intent for Section 120.57(1)(b)15 must be ascertained by considering legislative intent for Section 120.535. The provisions of Sections

        120.535 and 120.57(1)(b)15 were enacted by the same legislature and in the same act. 66/ Both sections relate to the same subject matter, i.e., unwritten rules.

        
        

    32. Statutes enacted in the same act and relating to the same subject matter must be considered in pari materia in a manner that harmonizes them and gives effect to legislative intent for the entire act. Major v. State, 180 So.2d 335, 337 (Fla. 1965); Abood v. City of Jacksonville, 80 So.2d 443, 444-445 (Fla. 1955); Tyson v. Stoutamire, 140 So 454, 456 (Fla. 1932). Such enactments are imbued with the same spirit and actuated by the same policy. Pfeiffer v. City of Tampa, 470 So.2d 10, 15 (Fla. 2d DCA 1985).

        
        

    33. Section 120.535 is intended to maximize the scope of statutory rulemaking requirements. House Of Representatives Committee On Governmental Operations Final Bill Analysis & Economic Impact Statement (HB 1879) at 3-4. To that end, the legislature explicitly and clearly rejected the judicially created exception to statutory rulemaking known as the "prove up" exception. The "prove up" exception gave a restrictive definition to the term "general applicability" in Section 120.52(16). A narrow definition of general applicability maximized the scope of incipient policy that could be explicated to affect the substantial interests of a party in an administrative hearing without complying with statutory rulemaking requirements.

        
        

    34. The legislature expressly intended to reverse the prove up exception applied in cases such as: Southern Bell Telephone and Telegraph Company v. Public Service Commission, 443 So.2d 92 (Fla. 1983); Florida Cities Water Company v. Public Service Commission, 384 So.2d 1280 (Fla. 1980); Florida League

        of Cities, Inc. v. Administration Commission, 586 So.2d 397 (Fla. 1st DCA 1991); Florida Power Corporation v. State, Siting Board, 513 So.2d 1341 (Fla. 1st DCA 1987); Anheuser-Busch, Inc. v. Department of Business Regulation, 393 So.2d 1177 (Fla. 1st DCA 1981); Hill v. School Board of Leon County, 351 So.2d 732 (Fla.

        1st DCA 1977). See House Of Representatives Committee On Governmental Operations Final Bill Analysis & Economic Impact Statement (HB 1879) at 3-4.

        Cf. Barker v. Board of Medical Examiners, 428 So.2d 720, 722 (Fla. 1st DCA 1983) and Department of Highway Safety and Motor Vehicles v. Florida Police Benevolent Association, 400 So.2d 1302, 1304 (Fla. 1st DCA 1981) (holding that attempts to label agency action as either a rule or non-rule policy have been largely discarded). 67/

        
        

    35. Section 120.57(1)(b)15 is an anomaly in the larger effort to maximize the scope of statutory rulemaking requirements and reject the prove up exception. That anomaly is a legislative concession to administrative desire to preserve wise and efficacious agency policy and to avoid the practical burdens inherent in complying with statutory rulemaking requirements. This concession to administrative convenience should not be propagated in Section 120.56 without explicit and clear legislative direction.

        
        

    36. Although the desire to preserve wise policy is salutary, the legislature recognizes the perverse effect such a desire has on statutory rulemaking requirements and the goal of eliminating unwritten rules. 68/ Adoption of the prove up exception for all rule challenges would relegate statutory rulemaking requirements to unwise or ministerial rules that lack efficacy and can not be explicated. 69/

        
        

    37. The legislature does not intend its enactments to have absurd results. Foley, 50 So.2d at 182; Agrico, 365 So.2d at 766. While the potential for such a result is embodied in Section 120.57(1)(b)15, that potential should not be extended to Section 120.56 by implication.

        
        

    38. Legislative efforts to maximize the scope of statutory rulemaking requirements serves both due process and equal protection goals. Statutory rulemaking requirements are intended to impose due process requirements for adequate notice on a state agency taking action based on its administrative laws. Cf. Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So.2d 419, 422 (Fla. 5th DCA 1988) (rulemaking is a quasi- legislative function); Amos v. Department of Health and Rehabilitative Services, District IV, 444 So.2d 43, 47 (Fla. 1st DCA 1984) (fairness of administrative proceedings requires that affected persons be given adequate and full notice). 70/

        
        

    39. Adequate notice and fairness are essential elements of due process and equal protection. Statutory rulemaking requirements assure due process by mandating notice of an agency's general policy statements that affect the substantial interests of regulated persons. In Amos, the court stated:

        
        

        Central to the fairness of administrative proceedings is the right of affected persons to be given the opportunity for adequate and full notice of agency activities. These persons have the right to locate precedent and have it apply, and the right to know the factual basis and policy reasons for agency action. State ex rel. Department of General Services v. Willis, 344 So.2d 580 (Fla. 1st

        DCA 1977). Inconsistent results based upon similar facts, without a reasonable explanation,[71/] violate Section 120.68(12) (b), Florida Statutes, as well as the equal protection guarantees of both the Florida and United States Constitutions. North Miami General Hospital, Inc. v. Department of Health and Rehabilitative Services, 355 So.2d 1272, 1278 (Fla. 1st DCA 1978).

        
        

        Amos, 444 So.2d at 47.

        
        

    40. The presumption of invalidity for unwritten rules in Section 120.57(1)(b)15 does not address all of the due process and equal protection considerations inherent in statutory rulemaking requirements. For example, Section 120.57(1)(b)15 does not require an agency to provide substantially affected parties with notice of an unwritten rule prior to the moment of explication in the formal hearing. While discovery affords a substantially affected party possessing adequate funding and competent legal counsel with the means of obtaining notice prior to explication, Section 120.57(1)(b)15 effectively shifts the economic and legal onus of that notice to all substantially affected parties regardless of their financial means and legal sophistication. Such a deficiency should not be extended beyond the application for which it was intended.

        
        

    41. The due process and equal protection goals embodied in statutory rulemaking requirements can not be further compromised for administrative convenience by adopting the prove up exception in Section 120.56. Rules purportedly have the force and effect of law. Adoption of the prove up exception in Section 120.56 eliminates the last requirement for promulgation of administrative laws. 72/ Such a result, should be accomplished explicitly and clearly by legislative direction and not by quasi- judicial implication. 73/

    
    

12. Existing Law After Section 120.57(1)(b)15

1. The provisions of Sections 120.535 and 120.57(1)(b)15 were part of the same act, and both sections expressly authorize the application of unwritten rules. See Sections 120.535(1)(a), 120.535(1)(b), and 120.535(5). Section

   120.56 does not contain language authorizing the application of unwritten rules.

   
   

2. The presumption is that no change in Section 120.56 is intended unless the legislature is explicit and clear in that regard. Thornber, 568 So.2d at 918. Section 120.56 does not explicitly and clearly change prior law.

   
   

3. The legislature has not included a provision in Section 120.56 explicitly and clearly authorizing agencies to apply and explicate their unwritten rules or imposing the burden of proof on such agencies when they do so. Neither Section 120.56 nor Section 120.52(8)(a) have been amended to eliminate the failure to comply with statutory rulemaking requirements as a ground for invalidity in Sections 120.56(1) and 120.52(8)(a). Finally, Section 120.57(1)(b)15 does not explicitly and clearly amend Section 120.56.

   
   

4. After the enactment of Section 120.57(1)(b)15, an unwritten rule is still invalid, within the meaning of Sections 120.52(8)(a) and 120.56(1), solely because the agency has materially failed to comply with statutory rulemaking requirements. 74/ Section 120.56(5) does not adopt Section 120.57(1)(b)15 for purposes of Section 120.56. 75/

1. Merits

   
   

   1. Petitioner has the burden of proof in this proceeding. The burden of proof in an administrative proceeding is on the party asserting the affirmative of the issue unless the burden is otherwise established by statute. Young v. State, Department of Community Affairs, 567 So.2d 2 (Fla. 3d DCA 1990); Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

      
      

   2. Petitioner satisfied his burden of proof in the action instituted pursuant to Section 120.56. Petitioner showed by a preponderance of evidence that the challenged rules are an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8).

      
      

   3. Respondent's written rules are valid within the meaning of Sections 120.52(a)-(c). Respondent did not materially fail to comply with statutory rulemaking requirements. None of the written rules exceed the grant of rulemaking authority in Section 370.021(1). None of the written rules enlarge, modify, or contravene the law implemented in Sections 161.052 and 161.053.

      
      

   4. Rule 16B-33.005(3)(c) is valid within the meaning of Sections 120.52(8)(d) and (e). Adequate standards to guide agency decisions and preclude the exercise of unbridled discretion are provided by implication within the scope of agency expertise.

165. Rules 16B-33.005(1), 16B-33.005(3)(g), 16B-33.005(7), and 16B-

33.007(7) are an invalid exercise of delegated legislative authority within the meaning of Sections 120.52(8)(d) and (e). The rules fail to establish adequate standards to guide agency decisions and preclude the exercise of unbridled discretion. The absence of such standards enables the rules to be interpreted and applied in a manner that is arbitrary or capricious.

1. Three agency statements in this proceeding are challenged as having the effect of a rule within the meaning of 120.52(16). First, Respondent requires all applicants for coastal armoring permits to clearly justify the necessity for coastal armoring with computer model results showing that an upland structure is vulnerable to a specific RISE. Second, Respondent requires all computer model results to be verified through replication on the computer model used exclusively by Respondent since 1988. Third, Respondent requires all applicants for coastal armoring permits to demonstrate that the proposed armoring is the only feasible means of protection by complying with the 2:1 requirement.

   
   

2. Each agency statement prescribes, interprets, and implements agency policy within the meaning of Section 120.52(16). Each statement affects the substantial interests of applicants for coastal armoring.

   
   

3. Each agency statement satisfies the test of general applicability in Section 120.52(16). Each statement is intended by its own effect to create rights, require compliance, or otherwise have the direct and consistent effect of law. Florida Public Service Commission v. Central Corporation, 551 So.2d 568, 570 (Fla. 1st DCA 1989); Friends of the Everglades, Inc., v. Department of Community Affairs, 495 So.2d 1193, 1194 n. 2 (Fla. 3d DCA 1986); Balsam v. Department of Health and Rehabilitative Services, 452 So.2d 976, 977-978 (Fla.

   1st DCA 1984); Department of Corrections v. Sumner, 447 So.2d 1388, 1390 (Fla. 1st DCA 1984); McDonald, 346 So.2d at 580; Department of Administration v.

   Stevens, 344 So.2d 290, 296 (Fla. 1st DCA 1977).

   
   

4. Respondent does not in form or appellation characterize the three agency statements as rules. However, it is the effect of an agency statement, rather than the characterization, form, or appellation given to it by the agency, that determines whether the statement is a rule. Amos, 444 So.2d at 47; State Department of Administration v. Harvey, 356 So.2d 323, 325 (Fla. 1st DCA 1978).

   
   

5. The three agency statements defined as a rule in Section 120.52(16) are an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(a). Respondent materially failed to comply with statutory rulemaking requirements in Section 120.54.

   
   

6. Section 120.56(1) authorizes a determination of invalidity of an unwritten rule. A determination of invalidity may be based on any one or all of the grounds described in Sections 120.52(8)(a)-(e).

   
   

7. The undersigned is authorized in Section 120.56(1) to dispose of the action instituted pursuant to Section 120.56 solely on the ground that there was a material failure to comply with statutory rulemaking requirements within the meaning of Section 120.52(8)(a). Jurisdiction also exists to reach issues of invalidity in Sections 120.52(8)(b)-(e). A decision to exercise jurisdiction over issues raised in Sections 120.52(8)(b)-(e) is discretionary.

   
   

8. The exercise of discretionary jurisdiction in appropriate circumstances provides a forum to expose, inform, and challenge agency policy. McDonald, 346 So.2d at 583. The action in McDonald was instituted pursuant to Section 120.57(1). However, an action instituted pursuant to Section 120.56(1) is no less concerned with agency policy and is required in Section 120.56(5) to be conducted in the manner prescribed for Section 120.57(1). When an unwritten rule is ultimately promulgated in compliance with statutory rulemaking requirements, the policy considerations elucidated in the administrative proceeding may be embodied in the written rule. 76/

   
   

9. The actions authorized in Sections 120.56, 120.535, and 120.57(1)(b)15 provide similar forums to elucidate the wisdom and efficacy of agency policy. Unlike the latter two sections, however, an unwritten rule can not be applied in Section 120.56 to determine the substantial interests of a party. 77/ Thus, Section 120.56 maximizes the scope of statutory rulemaking requirements by enforcing rulemaking requirements to the fullest extent possible.

   
   

10. Respondent's three unwritten rules are valid within the meaning of Sections 120.52(8)(b) and (c). Each rule is within the scope of Respondent's rulemaking authority in Section 370.021(1). None of the rules enlarge, modify, or contravene the law implemented in Sections 161.052 and 161.053.

    
    

11. The three unwritten rules are an invalid exercise of delegated legislative authority within the meaning of Section 120.52(8)(d) and (e). The Dean model requirements fail to establish adequate standards for the selection of input variables used in the required computer model results and fail to constrain the exercise of unbridled discretion. The absence of such standards enables the Dean model requirements to be interpreted and applied in a manner that is arbitrary or capricious.

12. The unwritten rule defined in this Final Order as the 2:1 requirement is an invalid exercise of delegated legislative authority within the meaning of Sections 120.52(c), (d), and (e). The requirement suffers the same infirmities as those suffered by the Dean model requirements. In addition, the 2:1 requirement modifies and contravenes the specific provisions of law implemented by limiting the feasibility requirement authorized by reasonable implication in Sections 161.052 and 161.053.

    
    

13. The legislature intends for Respondent to choose appropriate scientific techniques or methodology for administering Sections 161.052 and 161.053, within the scope of Respondent's expertise. Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 495 So.2d 209, 217-218 (Fla. 1st DCA 1991). The legislature also intends for Respondent to exercise those choices within the constraints imposed by applicable law.

    
    

14. Action required to perform an agency's statutory responsibilities must be performed within the constraints of applicable law. Cf. Washington v. Kirksey, 811 F.2d 561 (11th Cir. 1987) (even though dismissal of an instructor is unavoidable, the school board may not take such action in a manner that violates due proces constraints); Tri-State Systems, Inc. v. Department of Transportation, 500 So.2d 212, 216 (Fla. 1st DCA 1986) (failure to disclose a subsequent fact that is contrary to an earlier asserted position estops the state from taking action based on the subsequent fact). When Respondent effectuates legislative intent for Sections 161.052 and 161.053 through policy statements of general applicability, Respondent must comply with statutory rulemaking requirements.

    
    

15. The three unwritten rules are invalid within the meaning of Section 120.56(1). Invalid rules can not be applied in this or any other proceeding. Therefore, the action instituted pursuant to Section 120.535 to prevent enforcement of invalid rules is moot.

    
    

16. Intervenors' Notice Of Compliance With Section 120.535 And Request For Hearing was filed on August 31, 1993. The notice included copies of proposed rules published subsequent to the close of the record in the consolidated proceeding and requested a hearing concerning the proposed rules. On September 15, 1993, Respondent filed a Motion For Official Recognition of proposed rules. On September 15, 1993, Petitioner filed a response in opposition to Respondent's Motion For Official Recognition and requested attorney fees under Section 120.57(1)(b)4.

    
    

17. Intervenors' request for a hearing is denied. Respondent's Motion For Official Recognition is denied. Petitioner's request for attorney fees is denied. A determination of invalidity in Section 120.56(1) makes each of the issues moot.

ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that:

1. Rule 16B-33.005(3)(c) is a valid exercise of delegated legislative authority. Rules 16B-33.005(1), 16B-33.005(3)(g), 16B-33.005(7), and 16B- 33.007(7) are an invalid exercise of delegated legislative authority within the meaning of Sections 120.52(8)(d) and (e). The three agency statements defined as rules in Section 120.52(16) are an invalid exercise of delegated legislative

   authority within the meaning of Section 120.52(8)(a), (d), and (e). The 2:1 economic feasibility requirement is also invalid within the meaning of Section 120.52(8)(c).

   
   

2. The rules determined to be invalid are unenforceable in this or any other proceeding. Therefore, the action instituted pursuant to Section 120.535 is moot.

DONE AND ORDERED this 16th day of February 1994, in Tallahassee, Florida.

DANIEL MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399

(904) 488

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 1994.

ENDNOTES

1/ All references to rules are to those published in the Florida Administrative Code on the date of this Recommended Order. All references to proposed rules are to proposed rules set forth in Respondent's Exhibit No. 73.

2/ All chapter and statute references are to Florida Statutes (1993) unless otherwise stated.

3/ Petitioner, Machata, is the only petitioner in the actions instituted pursuant to Secs. 120.535 and 120.56.

4/ The legislature requires Respondent to establish a CCCL in each county satisfying prescribed prerequisites. The legislature intends for Respondent to:

. . . establish coastal construction control lines on a county basis along the sand beaches of the state fronting . . . the Atlantic Ocean . . . . so as to define that portion of the beach-dune system which is

subject to severe fluctuations based on a 100- year storm surge, storm waves, or other predictable weather conditions.

Sec. 161.053(1)(a).

Prerequisites for the establishment of a CCCL include: a comprehensive engineering study, topographic survey, and a determination that establishment of a CCCL is necessary for the protection of upland properties and the control of beach erosion.

5/ All numeric values in this Final Order are approximate.

6/ Storm force may be measured either by storm surge elevation or by erosive force. Storm surge and erosive force of an actual storm may be disproportionate. Standards for measuring storm force are discussed in paras. 83-91, infra, and paras. 74-80 in the Recommended Order.

7/ The Governor and Cabinet take final agency action. If no written policy has been promulgated on a particular subject or if written policy is silent with respect to a particular subject and no explication of final agency action is given, the policy being applied, if any, must be determined, if at all, from all of the surrounding facts and circumstances.

8/ The same rules are challenged in this proceeding and in a separate action filed pursuant to Sec. 120.57(1). See DOAH Case Nos. 90-8074 and 90-8075 consolidated with this proceeding pursuant to the stipulation of the parties.

9/ Respondent is authorized in Sections 161.053(5)(b)-(f) to impose conditions on a coastal armoring permit including those determined to be necessary to protect sea turtles, assure public access, assure the adequacy of design and construction, and mitigation or other reasonable assurances for compliance with permit conditions.

10/ Smithers v. North St. Lucie River Drainage Dist., 73 So.2d 235, 237 (Fla. 1954).

11/ Island Harbor Beach Club, Ltd. v. Department of Natural Resources, 495 So.2d 209, 217-218 (Fla. 1st DCA 1986) (it was by legislative design that the determination of technical issues was left to agency discretion).

12/ See Key Biscayne Council v. State of Florida, Department of Natural Resources, 579 So.2d 293 (Fla. 3d DCA 1991) (reversing final order for failing to adequately develop issue of "necessity" in Rule 16B-33.005(1)); Woodholly Associates v. Department of Natural Resources, 451 So.2d 1002 (Fla. 1st DCA 1984) (applicant carried its burden of proving "necessity" and justification for construction seaward of CCCL).

13/ Pan American Airways, Inc. v. Florida Public Service Commission, 427 So.2d 716 (Fla. 1983); Cataract Surgery Center v. Health Care Cost Containment Board,

581 So.2d 1359, 1361 (Fla. 1st DCA 1991) citing Department of Professional Regulation, Board of Medical Examiners v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984).

14/ Thayer v. State, 335 So.2d 815, 817 (Fla. 1976) (expressio unius est exclusio alterius; the mention of one thing implies the exclusion of another).

15/ The "necessity" requirement is imposed to protect the beach- dune system from the adverse impacts of imprudent construction. See paras. 31-33, supra.

16/ Cf. Conservancy, Inc. v. A. Vernon Allen Builder, Inc., 580 So.2d 772, 777- 778 (Fla. 1st DCA 1991); para. 35 in the Recommended Order.

17/ Webster's II New Riverside University Dictionary (1984) at 652. 18/ Webster's II New Riverside University Dictionary (1984) at 1204.

19/ The term "feasible" is also used in the legal field. See, e.g., Sec. 120.535(1)(a).

20/ Department of Natural Resources v. Wingfield Development Company, 581 So.2d 193, 197 (Fla. 1st DCA 1991).

21/ State, Department of Business Regulation, Division of Alcoholic Beverages and Tobacco v. Salvation Limited, Inc., 452 So.2d 65, 67 (Fla. 1st DCA 1984).

22/ State, Department of Health and Rehabilitative Services v. Health Care and Retirement Corporation of America, 593 So.2d 539, 541 (Fla. 1st DCA 1992).

23/ Grove Isle, Ltd. v. State Department of Environmental Regulation, 454 So.2d 571, 573 (Fla. 1st DCA 1984).

24/ See paras. 63-91, infra, and paras. 58-82 in the Recommended Order.

25/ Ambiguity in Respondent's rules concerning the term "structures" has its origin in the law implemented. First, the term "structures" is used in Secs. 161.052(1) and 161.053(5)(a) to mean both upland structures and seawalls. In Sec. 161.053(5)(a) the term refers to armoring structures. This ambiguity is replicated throughout Respondent's rules. See, e.g., Rule 16B-33.005(3)(c).

The ambiguity in Rule 16B-33.005(7) substantially affects applicants when Respondent interprets the terms "similar structures" to mean either similar upland structures or similar armoring structures. See paras. 116-138 in the Recommended Order.

26/ Compare Rule 16B-33.005(3) (finding that rigid coastal armoring devices may be expected to have a significant long-term adverse effect on the beach in their "immediate vicinity") with Rule 16B-33.005(7) (assessing cumulative impacts over that "segment of the shoreline"). See also Proposed Rule 16B- 33.005(2)(43)(b) (defining cumulative impacts, in part, as impacts from construction in the "same general area"). See paras. 128-130 in the Recommended Order.

27/ Compare: Grove Isle, 454 So.2d 571; and Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So.2d 419, 423-424 (Fla. 5th DCA 1988) (a rule is arbitrary and capricious if it exceeds the statutory source upon which it is based and is not reasonably related to purposes of the law implemented); with Cataract Surgery Center, 581 So.2d at 1361 (the analysis required to determine if a rule contravenes the law implemented is slightly different from the analysis required to determine if a rule is arbitrary or capricious).

28/ Petitioner asserts that Sec. 161.053(5)(a)3 limits the cumulative impact analysis to cumulative impacts caused by the location of coastal armoring and excludes cumulative impacts caused by the armoring itself. That argument is rejected. Sec. 161.053(5)(a)3 requires Respondent to consider:

Potential impacts of the location of [armoring devices], including potential cumulative effects of any proposed structures

. . . upon such beach-dune system . . . .

(emphasis supplied)

Clearly, Sec. 161.053(5)(a)3 requires consideration of impacts from the location of armoring. However, Sec. 161.053(5)(a) makes it equally clear that the items in Secs. 161.053(5)(a)1-3 are only some of the facts and circumstances Respondent is authorized to consider. The term "including" in Sec. 161.053(a) authorizes Respondent to consider other facts and circumstances relevant to the purpose of protecting the beach-dune system from imprudent construction that can jeopardize the stability of the beach-dune system and accelerate erosion within

the meaning of Sec. 161.053(1)(a). Furthermore, by using the term "including" in Sec. 161.053(5)(a)3, the legislature defines "location" to include "potential cumulative effects of proposed structures," including the armoring itself.

29/ Rulemaking requirements do not require invalidation of incipient agency policy.

. . . [Chapter 120] does not have those bizarre effects . . . .

* * *

. . . [Chapter 120] . . . recognizes the inevitability and desirability of refining incipient agency policy through adjudication of individual cases.

McDonald v. Department of Banking and Finance, 346 So.2d 569, 581 (Fla. 1st DCA 1977).

30/ Statutory rulemaking requirements apply to agency policy statements of general applicability. In McDonald, the court said:

. . . the Section 120.54 rulemaking procedures are imposed . . . on policy statements of general applicability, i.e., those statements which are intended by their own effect to create rights, or to require compliance, or otherwise to have the direct and consistent effect of law. E.g., Stevens,

344 So.2d 290. . . . (emphasis not supplied)

* * *

. . . [Chapter 120] . . . requires rulemaking for policy statements of general applicability . . . (emphasis not supplied)

McDonald, 346 So.2d at 581.

31/ See, e.g., Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778, 788 (Fla. 1st DCA 1981).

32/ The agency administering a policy should know when its policy first emerges into general applicability. Secs. 120.53(2)(a) and (3), 120.532, and

120.533 require final orders to be indexed so that substantially affected persons may have access to the agency's knowledge as soon as practicable.

33/ One exception is Sec. 120.57(1)(b)15, enacted in 1991, and applicable to actions instituted on or after March 1, 1992. 1991 Laws Of Florida, Ch. 91-30, Secs. 4 and 11-12, as amended in Ch. 91-191, Secs. 11-12. The other exception is Sec. 120.535 enacted in the same acts at Secs 3 and 11-12.

34/ Invalidation of unwritten rules that have not been legitimated by the statutory rulemaking process:

. . . is the necessary effect of [Chapter 120] if the prescribed rulemaking procedures are not to be atrophied by nonuse. Straughn v. O'Riordan, 338 So.2d 832, 834 (Fla. 1976)

. . . .

McDonald, 346 So.2d at 580.

A principal goal of Chapter 120 is:

. . . the abolition of "unwritten rules" by which agency employees can . . . adopt, change, and enforce . . . invisible policy making.

Straughn v. O'Riordan, 338 So.2d 832, 834 n. 3. (Fla. 1976). But see Sec. 120.57(1)(b)15.

35/ See Respondent's Exhibit 73.

36/ Regardless of the specific RISE applicable to an application, Respondent requires all applicants to use computer model results to clearly justify the necessity for proposed armoring.

37/ The Dean erosion model is named for its developer, Dr. Robert Dean at the University of Florida.

38/ Memorandum PM-27-90 was issued in 1990 to provide guidance to agency personnel in assessing vulnerability requirements for coastal armoring permits. Respondent argues that PM-27-90 is an "internal management memorandum" and an exception to the statutory definition of a rule in Sec. 120.52(16)(a). That argument is specifically rejected.

PM-27-90 was not applied solely as an internal management memorandum. PM- 27-90 provided guidance for the purpose of determining the substantial interests of all applicants for coastal armoring permits. See Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43, 45-47 (Fla. 1st DCA 1983) (an agency memorandum intended to guide agency personnel in the removal of certain persons from their homes was a rule which determined the substantial interests of private parties).

While PM-27-90 was superseded by the 1990 policy, Respondent's requirements to clearly justify the necessity for coastal armoring with computer model results and to comply with the 2:1 requirement survive in unwritten form irrespective of their origin. Agency policy can be prescribed, interpreted, or implemented in written form or in practice. Statutory rulemaking requirements do not turn on the characterization of an agency statement by the agency. The manner in which agency policy is prescribed, interpreted, or implemented may involve issues of substance over form, issues of de jure or de facto policy, or both.

The policy in Armor and PM-27-90 was cast in the form of an internal management memorandum. In substance, however, it was an unwritten rule. A de facto policy is one that is not prescribed in any particular form. Without design, however, it emerges as it is implemented on a case-by-case basis over time. The requirement for computer model results is a de facto unwritten rule.

39/ The effect of an agency statement, rather than the characterization, form, or appellation given to it by the agency, determines whether the statement is a rule. Amos, 444 So.2d at 47; State Department of Administration v. Harvey, 356 So.2d 323, 325 (Fla. 1st DCA 1978).

40/ Florida Public Service Commission v. Central Corporation, 551 So.2d 568,

570 (Fla. 1st DCA 1989); Friends of the Everglades, Inc., v. Department of Community Affairs, 495 So.2d 1193, 1194 n. 2 (Fla. 3d DCA 1986); Balsam v. Department of Health and Rehabilitative Services, 452 So.2d 976, 977-978 (Fla. 1st DCA 1984); Department of Corrections v. Sumner, 447 So.2d 1388, 1390 (Fla. 1st DCA 1984); McDonald, 346 So.2d at 580; Department of Administration v. Stevens, 344 So.2d 290, 296 (Fla. 1st DCA 1977).

41/ The Dean erosion model has not been calibrated for high frequency storm events. Dr. Robert Dean is currently under contract with Respondent to develop the data base necessary to calibrate the Dean erosion model for high frequency storm events in each county in Florida. Dr. Dean has not completed his calibration for all counties in Florida including the site of the proposed bulkhead.

42/ The importance of site specific data and a storm surge hydrograph in assessing vulnerability is underscored in Respondent's proposed rules. Proposed Rule 16B-33.00525(2)(a)2 provides, inter alia, that vulnerability is to be determined by an analysis of site specific physiographic features including a "storm surge hydrograph and duration."

43/ Straughn, 338 So.2d at 834 n.3.

44/ Respondent's rules describe design criteria for coastal armoring and conforming foundations by reference to storm surge. For example, Rule 16B- 33.007(6)(b) provides in relevant part:

Design considerations for rigid coastal . . . protection structures shall include structural . . . components as impacted by waves superimposed upon the design storm surge . . . . [and] . . . should be designed for the minimum wave loads which are applicable for the design storm conditions which justify the structures. Seawalls . . . are generally designed for a 20-to-50-year storm event. . . . (emphasis supplied)

Rule 16B-33.007(4)(c) describes design criteria for conforming foundations in terms of storm surge as follows:

All habitable major structures shall be elevated on, and securely anchored to, an adequate pile foundation in such a manner as to locate the building support structure above the design breaking wave crests or wave uprush as superimposed on the storm surge with dynamic wave setup of a one-hundred-year storm. . . . (emphasis supplied)

Proposed Rule 16B-33.007(4)(b) adds the following language:

. . . The design breaking wave crest or wave uprush shall be the greater of three feet or the depth limited breaking wave based on the maximum predicted depth of water at the front edge of the structure for a one- hundred-year storm.

Rule 16B-33.007(4)(h) describes design criteria for qualifying structures by reference to hydrostatic and hydrodynamic loads during a storm surge as follows:

. . . maximum water pressure resulting from a fully peaked, breaking wave superimposed on the design storm surge with dynamic wave setup.

Rule 16B-33.007(4)(i) requires structural design to include:

. . . maximum water pressures resulting from the motion of the water mass associated with a one-hundred-year storm event.

45/ See Proposed Rule 16B-33.005(12)(b). 46/ Straughn, 338 So.2d at 834 n.3.

47/ Proposed Rule 16B-33.005(34) states that an act is "feasible" if:

. . . the cost of dune enhancement, or modification or relocation of a structure to be protected is no more than twice the cost of the proposed protection structure. . . .

(emphasis supplied)

A proposed rule which takes effect after commencement of the formal hearing may be considered for the purpose of determining whether the same policy in unwritten form has general applicability within the meaning of Sec. 120.52(16). Cf. Baptist Hospital, Inc. v. State, Department of Health and Rehabilitative Services, 500 So.2d 620, 625 (Fla. 1st DCA 1987); Turro, M.D. v. Department of Health and Rehabilitative Services, 458 So.2d 345, 346 (Fla. 1st DCA 1984).

48/ Central Corporation, 551 So.2d at 570; Friends of the Everglades, 495 So.2d at 1194 n. 2; Balsam, 452 So.2d at 977-978; Sumner, 447 So.2d at 1390; McDonald,

346 So.2d at 580; Stevens, 344 So.2d at 296.

49/ The effect of an agency statement, rather than the characterization, form, or appellation given to it by the agency, determines whether the statement is a rule. Amos, 444 So.2d at 47; Harvey, 356 So.2d at 325.

50/ See Pederson v. Green, 105 So.2d 1, 4 (Fla. 1958) (administrative rule restricting statutory exemption for feed to particular types is unduly restrictive of the feeds exempted under the enabling legislation); Campus Communications, Inc. v. Department of Revenue, State of Florida, 473 So.2d 1290, 1295 (Fla. 1985) (the plain and ordinary meaning of the term "newspaper" can not be interpreted narrowly to deny an exemption); State, Department of Health and Rehabilitative Services v. McTigue, 387 So.2d 454, 456 (Fla. 1st DCA 1980) (statutory requirement for statement from licensed physician was unduly restricted by requirement in rule that physician be a Florida physician); Salvation Limited, 452 So.2d at 67 (rule interpreting statutory terms "restaurant" or "serve" to require food to be prepared and cooked on the premises is unnecessarily restrictive).

51/ Under Proposed Rule 16B-33.00525(1)(c), each home is an "eligible structure."

52/ See, e.g., Proposed Rule 16B-33.002(34).

53/ Ch. 91-30, Sec. 11 provided that the act applied to actions instituted on or after January 1, 1992.

54/ 1991 Laws Of Florida, Ch. 91-30, Sec. 3-4, as amended Ch. 91-191.

55/ 1992 Laws of Florida, Chapter 92-166, Section 10, was codified in Section 120.68(15). Section 120.68(15) provides:

No petition challenging an agency rule as an invalid exercise of delegated legislative authority shall be instituted pursuant to this section, except to review an order entered pursuant to a proceeding under s.

120.54(4) or s. 120.56 unless the sole issue presented by the petition is the

constitutionality of a rule and there are no disputed issues of fact. (emphasis supplied)

Section 120.68(15) was enacted after Section 120.535 was codified.

56/ One of the principal purposes of Ch. 120 is the abolition of unwritten rules. Straughn, 338 So.2d at 834.

57/ See Maher, S., Administrative Procedure Act Amendments: The 1991 and 1992 Amendments To The Florida Administrative Procedure Act, 20 Fla. St. U. L. Rev. 367, 399-405 [hereinafter, "Administrative Amendments"] for a discussion of which remedies are "more powerful" under various facts and circumstances.

58/ Exceptions to the general requirement for proposed rulemaking are authorized in Secs. 120.535(1)(a) and (b).

59/ A determination of invalidity in Sec. 120.56 precludes the application of an unwritten rule in any pending proceeding. Generally, the rule can not be applied until it is formally adopted in compliance with statutory rulemaking requirements. An unwritten rule may be applied much sooner in Sec. 120.535 if: rulemaking is begun pursuant to Sec. 120.535(5); or it is shown that rulemaking is either impracticable or infeasible within the meaning of Sec. 120.535(1)(a) or (b).

60/ The final order must include an explanation of the unwritten rule that includes an evidentiary basis to support the rule and a general discussion of its justification.

61/ 1991 Laws Of Florida, Chapter 91-191, Section 11

62/ York v. State, ex rel. Schwaid, 10 So.2d 813, 815 (Fla. 1943); McCord v. Smith, 43 So.2d 704 (Fla. 1950); Hamilton v. Williams, 200 So 80 (Fla. 1941); Board of County Commissioners of Jackson County v. International Union of Operating Engineers, Local 653, et al., 620 So.2d 1062 (Fla. 1st DCA 1993); Dewberry v. Auto-Owners Ins. Co., 363 So.2d 1077 (Fla. 1978); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So.2d

412 (Fla. 4th DCA 1974); State, Department of Agriculture & Consumer Services v. Strickland, 262 So.2d 893 (Fla. 1st DCA 1972); Heberle v. P.R.O. Liquidating Co., 186 So.2d 280, 282 (Fla. 1st DCA 1966). Cf. Department of Agriculture and Consumer Services v. Bonanno, 568 So.2d 24 (Fla. 1990); Senfeld v. Bank of Nova Scotia Trust Co. Ltd., 450 So.2d 1157, 1164, 1165 (Fla. 3d DCA 1984).

Procedural provisions that take effect after commencement of a formal hearing generally may be considered in recommending final agency action. Baptist Hospital, Inc. v. State, Department of Health and Rehabilitative Services, 500 So.2d 620, 625 (Fla. 1st DCA 1987); Turro, M.D. v. Department of Health and Rehabilitative Services, 458 So.2d 345, 346 (Fla. 1st DCA 1984).

63/ A material failure to comply with rulemaking requirements may occur at any point on a continuum from an invisible unwritten rule to a defectively promulgated rule. A challenge to an unwritten rule may also seek a determination of invalidity on other grounds. A hearing officer has discretionary jurisdiction to dispose of the rule challenge solely on the ground that the failure to comply with statutory rulemaking requirements is material or to also address issues of invalidity in Secs. 120.52(8)(b)-(e).

One factor to be considered in exercising such discretionary jurisdiction is a concern for agency policy. The concern for agency policy that infuses an action instituted pursuant to Sec. 120.57(1) is also a concern in proceedings conducted pursuant to other sections in Ch. 120, including Sec. 120.56. Rather

than limit the determination of invalidity in Sec. 120.56 to the failure to comply with statutory rulemaking requirements, discretion may be exercised to provide " a forum to expose, inform and challenge agency policy and discretion .

. . ."

McDonald, 346 So.2d at 583. The charge in Sec. 120.57(1) to record and critique agency policy revealed on the record is no less important in Sec.

120.56. This function creates agency incentives for rulemaking when the unwritten rule invalidated in Sec. 120.56 is ultimately promulgated.

64/ In McDonald, the court stated:

. . . we have recognized the availability of an administrative remedy against any agency policy statement of general applicability which has not been adopted through rulemaking. Section 120.56; Dep't of Administration v. Stevens, 344 So.2d 290 (Fla. 1st DCA, 1977). A remedy is available also in Section 120.57 proceedings affecting a party's substantial interests. State ex rel. Dep't of Gen. Serv. v. Willis, 344 So.2d 580, 591-92 (Fla. 1st DCA 1977)

McDonald, 346 So.2d at 580.

65/ Compare Agrico Chemical Company v. State Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1978) (the burden of proof in a challenge to either an adopted or proposed written rule is on the party challenging the rule).

66/ 1991 Laws of Florida, Ch. 91-30, Sections 3 and 4, respectively, as amended by Ch. 91-191.

67/ The scope of Sec. 120.57(1)(b)15 must also be limited by Sec. 120.68(12)(b) prohibiting agency action that is inconsistent with an existing rule.

Otherwise, Sec. 120.57(1)(b)15 permits an agency to deviate from a written rule, in violation of Sec. 120.68(12), if the deviation itself is an unwritten rule that is within the scope of delegated legislative authority and is explicated in an administrative hearing.

Prior to 1984 Sec. 120.68(12) permitted an agency to deviate from its existing rule if the deviation was explicated during the administrative hearing. "Other incentives" for rulemaking were judicially recognized in the requirement for state agencies to repeatedly explicate their unwritten rules in administrative hearings (the "prove up" exception). Barker, 428 So.2d at 722 and Florida Police Benevolent Association, 400 So.2d at 1304 (holding that attempts to label agency action as either a rule or non-rule policy have been largely discarded). Over the years it became clear that judicially recognized incentives were not "equal to the task." Maher, Amendments, at 374. In 1984, language authorizing a deviation from an existing rule upon explication was deleted from Sec. 120.68(12). Since then, cases have generally invalidated agency action to enforce unpromulgated rules. Central Corporation, 551 So.2d at 570; Department of Corrections v. Piccirillo, 474 So.2d 1199, 1202 (Fla. 1st DCA

1985); Department of Corrections v. Holland, 469 So.2d 166, 167 (Fla. 1st DCA

1985); Gar-Con Development, Inc. v. State, 468 So.2d 413 (Fla. 1st DCA 1985);

Department of Corrections v. Adams, 458 So.2d 355, 356-357 (Fla. 1st DCA 1984). But see St. Francis Hospital, Inc., v. Department of Health and Rehabilitative Services, 553 So.2d 1351, 1354 (Fla. 1st DCA 1989) (an agency may deviate from an existing rule if the deviation is explicated). Other cases upheld explicated agency statements found to be incipient policy that did not satisfy the

requirement for general applicability within the meaning of Sec. 120.52(16). Friends of the Everglades, Inc. v. Department of Community Affairs, 495 So.2d 1193, 1194 n. 2 (Fla. 3d DCA 1986); C.H. Barco Contracting Co. v. State, Department of Transportation, 483 So.2d 796 (Fla. 1st DCA 1986); White Advertising International v. State, Department of Transportation, 368 So.2d 411 (Fla. 1st DCA 1979). Failure to limit Sec. 120.57(1)(b)15 by the terms of Sec. 120.68(12)(b) would resurrect the judicial recognition of "other incentives" proven by experience to be inadequate and already rejected by the legislature. See also Burris, The Failure of the Florida Judicial Review Process to Provide Effective Incentives For Agency Rulemaking, 18 Fla. St. U. L. Rev 661, 677-685 (1991) [hereinafter, Burris, "Effective Incentives For Rulemaking"]).

68/ Burris, Effective Incentives For Rulemaking at 667-677.

69/ Sec. 120.535(1)(a)1, for example, authorizes the application of an unwritten rule to determine the substantial interests of a party when the agency has not had sufficient time to acquire the knowledge and experience reasonably necessary to promulgate the rule. This condition implies the agency has enough knowledge and experience to apply an unwritten rule to determine the substantial interests of a party but not enough knowledge and experience to reduce the rule to writing before it does so. Similarly, Sec. 120.535(1)(b)1 authorizes the application of an unwritten rule to determine the substantial interests of a party when detail or precision in the establishment of principles, criteria, or standards for agency decisions is not reasonable to allow an agency to reduce the rule to writing but is sufficient to enable the agency to apply the rule in unwritten form to determine the substantial interests of a party. See Burris, Effective Incentives For Rulemaking, at 690-697.

70/ See Burris, Effective Incentives For Rulemaking, at 686-690 (describing the quasi-legislative function for rulemaking); Administrative Amendments at 371 (statutory rulemaking requirements are designed to make agency policy clear and accessible to all).

71/ Authority to deviate from a written rule was repealed by the legislature in 1984 through an amendment to Sec. 120.68(12). No deviation from an existing rule is statutorily authorized irrespective of the explication for such a deviation in the formal hearing. See n. 67, supra.

72/ Sec. 120.535 authorizes the application of an unwritten rule as a basis for final agency action without rulemaking. See, e.g., Secs. 120.535(1)(a) and (b). If the prove up exception is applied to unwritten rules in Sec. 120.56, unwritten rules are subject to the same test of invalidity as unwritten rules in Secs. 120.52(8)(b)-(e). However, a written rule could still be invalidated for a material defect in compliance with statutory rulemaking requirements. An unwritten rule would not be invalid for such a defect. Such a result would create a disincentive to formally promulgate agency rules.

73/ Exclusion of the prove up exception from Sec. 120.56 may result in atrophy of the prove up exception by nonuse. That may be the legislative design.

Repeal of the prove up exception in Secs. 120.57(1)(b)15 is the ultimate solution for maximizing the scope of statutory rulemaking authority. While such a solution is beyond the authority of this Final Order, it is equally beyond the authority of this Final Order to apply the prove up exception to all rule challenges, by implication in Sec. 120.56(5), when the legislature intended to reject the prove up exception and maximize the scope of statutory rulemaking authority.

74/ The legislature has not made the requisite statutory changes to assure that Sec. 120.535 is the exclusive means of challenging an unwritten rule. See, e.g., Administrative Amendments at 400.

75/ The same obstacles to adoption of Sec. 120.57(1)(b)15 by Sec. 120.56(5) make consolidation of proceedings under Secs. 120.57(1) and 120.56 problematic when the two proceedings involve identical challenges to the same unwritten rules. The petitioner has the burden of proving the invalidity of the rule under Sec. 120.56, but the agency has the burden of proving the validity of the rule under Sec. 120.57(1)(b)15. There are several possibilities for applying the burden of proof and right to explicate in a consolidated proceeding.

Regardless of whether rule challenges under Secs. 120.56 and 120.57(1) are consolidated, the right of an agency to explicate its unwritten rule in Sec.

120.57(1)(b)15 creates the potential for conflicting orders in the two proceedings. A final order determining a rule to be invalid because it fails to comply with statutory rulemaking requirements in Sec. 120.52(8)(a) may conflict with a recommended order determining that an unwritten rule is valid within the meaning of Sec. 120.52(8)(b)-(e).

76/ Cf. Burris, Effective Incentives For Rulemaking, at 701 (concluding that courts must be free to shape the factual record to encourage rulemaking). 77 In similar fashion, an unwritten rule can not be applied pursuant to Sec.

120.57(1)(b)15 if Sec. 120.535(2)(a) applies to the same action.

APPENDIX TO FINAL ORDER, CASE NO. 93-060RU

Petitioner's Proposed Findings Of Fact. 1.-20. Accepted in substance

21. Rejected in part as not supported by credible and

persuasive evidence 22.-55. Accepted in substance

56. Rejected as unsupported by the evidence 57.-58. Accepted in substance

59. Rejected as to the scope of its application 60.-62. Rejected as irrelevant and immaterial

63.-72. Rejected as not supported by credible and persuasive evidence

73.-112. Accepted in substance

113.-114. Rejected as irrelevant an immaterial

115. Accepted in substance

116.-123. Rejected as irrelevant and immaterial 124.-127. Accepted in substance

Respondents' Proposed Findings Of Fact. 1.-24. Accepted in substance

25. Accepted in part but rejected as to the use of the word

"only". Agency policy is implemented, interpreted, and prescribed without actual knowledge by the Governor

and Cabinet

26.-38. Accepted in substance

39. Rejected as to the characterization of the "apparent interest" of the Governor and Cabinet as the basis for Respondent's action

40.-43. Accepted in substance

44. Rejected as not supported by credible and persuasive evidence. The Governor and Cabinet rejected the application without explication

45.-48. Rejected as irrelevant and immaterial to the issues of the rule challenge. The specific RISE applicable in this proceeding is irrelevant to the rule challenge.

The invalidity of the written and unwritten rules has nothing to do with the specific RISE that should be applied.

49.-74. Accepted in substance

75.-81. Rejected as irrelevant and immaterial 82.-101. Accepted in substance

102. Rejected as not supported by credible and persuasive evidence

103.-104. Accepted in substance

105.(a) Rejected as irrelevant and immaterial to the rule challenge

105.(b) Accepted in substance

106. (omitted from the PRO) 107.-112. Accepted in substance

113. Rejected as not supported by credible and persuasive evidence

114.-126. Accepted in substance

127. Rejected as unsupported by credible and persuasive evidence

Intervenors' Proposed Findings Of Fact.

Intervenors' proposed findings of fact failed to comply with the requirements of the order of the undersigned entered on the record during the formal hearing and are rejected on that basis

COPIES FURNISHED:

Virginia B. Wetherell, Secretary Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Kenneth Plante, Esquire General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Tallahassee, Florida 32399-2400

Thomas G. Tomasello, Esquire Oertel, Hoffman, Fernandez & Cole Post Office Box 6507

Tallahassee, Florida 32314-6507

Dana M. Wiehle

Assistant General Counsel

Department of Environmental Protection 2600 Blair Stone Road

Mail Station 35

Tallahassee, Florida 32399

David G. Guest, Esquire Kenneth B. Wright, Esquire Sierra Club Legal Defense Fund Post Office Box 1329 Tallahassee, Florida 32302

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 the 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-000604RU

Orders for Case No: 93-000604RU