STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERAQUATIC, INC., APPLIED ) AQUATIC MANAGEMENT, INC., ) AQUATIC SYSTEMS, INC., ) BOLIDEN INTERTRADE, INC. ) and APPLIED BIOCHEMISTS, ) INC., )

)

Petitioners, )

)

vs. ) CASE NO. 93-1629RP

)

DEPARTMENT OF NATURAL )

RESOURCES, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 21 and 22 and May 4, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioners: Sandra P. Stockwell, Esquire

Post Office Box 11059 Tallahassee, Florida 32302

For Respondent: L. Kathryn Funchess, Esquire

Patricia V. Kingcade, Esquire 3900 Commonwealth Boulevard

Mail Station 35

Tallahassee, Florida 32399-3000 STATEMENT OF THE ISSUE

The issue is whether certain proposed revisions to Chapter 16C-20, Florida Administrative Code, pertaining to aquatic plant management, are an invalid exercise of delegated legislative authority.

PRELIMINARY STATEMENT

This matter began on March 26, 1993, when petitioners, Ameraquatic, Inc., Applied Aquatic Management, Inc., Aquatic Systems, Inc., Boliden Intertrade, Inc. and Applied Biochemists, Inc., filed a petition for determination of invalidity of a proposed agency rule contending that certain proposed revisions by respondent, Department of Natural Resources (DNR), to Chapter 16C-20, Florida Administrative Code, were invalid. As relief, they asked that the entire

chapter be declared an invalid exercise of delegated legislative authority. After being reviewed for legal sufficiency, the petition was assigned to the undersigned Hearing Officer on March 31, 1993.

By notice of hearing dated April 1, 1993, the final hearing was scheduled on April 21, 1993, in Tallahassee, Florida. Continued hearings were held on April 22 and May 4, 1993, at the same location.

At final hearing, petitioners presented the testimony of Dr. Daniel E. Canfield, Jr., a University of Florida professor and accepted as an expert in limnology and lake management; Roger D. Griffiths, district manager for a special taxing lake management district in Polk County; Paul C. Myers, president of Aquatic Management, Inc.; James Schmidt, product manager for Applied Biochemists, Inc.; James R. Yowell, a senior regulatory specialist for the Griffin Corporation; Carlton Layne, chief of the region four pesticides section of the Environmental Protection Agency; Steven J. Rutz, director of the division of agriculture and environmental services for the Department of Agriculture and Consumer Affairs; John Gardner, president of Aquatic Systems, Inc.; Richard L. Ward, national sales manager for Boliden Intertrade, Inc.; Thomas Latta, president of Ameraquatic, Inc. and accepted as an expert in lake management; Dr. Joseph C. Joyce, director of the center for aquatic plants and the center for natural resources at the University of Florida and accepted as an expert in herbicide and aquatic plant control; and Dr. William T. Haller, a University of Florida professor of agronomy and accepted as an expert in agronomy, weeds and weed control. Also, they offered petitioners' exhibits 1-6, 6A-6J, and 7-18.

All exhibits were received in evidence except exhibit 13 on which a ruling was reserved. Respondent presented the testimony of William E. Caton, environmental administrator for permitting in the DNR bureau of aquatic plant management and accepted as an expert in limnology and aquatic plant management; Thomas C. Brown, chief of the bureau of aquatic management; R. Kip Frohlich, a DNR biological administrator III and accepted as an expert in manatee biology, manatee ecology and manatee life history; and Andrew J. Leslie, Jr., a DNR biological scientist IV and accepted as an expert in lake ecology and the effects of herbicides. Also, it offered respondent's exhibits 1-9. All exhibits were received in evidence.

At hearing, respondent filed a motion to dismiss Applied Biochemists, Inc. as a party on the ground it was a foreign corporation and did not have a certificate of authority to transact business in the state. A ruling on the motion was reserved and is dealt with in the conclusions of law portion of this order.

The transcript of hearing (five volumes) was filed on May 27, 1993.

Proposed findings of fact and conclusions of law were filed by the parties on June 11, 1993. A ruling on each proposed finding has been made in the Appendix attached to this Final Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. Background

   
   

   1. Petitioners, Ameraquatic, Inc., Applied Aquatic Management, Inc. and Aquatic Systems, Inc., are Florida corporations engaged in the business of maintaining lakes and other waterbodies by controlling or eradicating noxious

      aquatic weeds. Petitioner, Boliden Intertrade, Inc., is a manufacturer of heavy industrial chemicals, six of which are copper sulfates used for aquatic plant control. Petitioner, Applied Biochemists, Inc., is also a manufacturer of herbicides used for the control of aquatic plants, including copper-based herbicides.

      
      

   2. On March 5, 1993, respondent, Department of Natural Resources (DNR), published notice of its intent to adopt substantial revisions to Chapter 16C-20, Florida Administrative Code. That chapter sets forth DNR's aquatic plant management policies, including permit application requirements, exemptions from permitting, review criteria to be used by DNR in determining if a permit should be issued, management method criteria and standards, public notification requirements, and penalties for violation of the chapter. Many of the proposed rules codify existing DNR informal policies. All of the rules cite, at a minimum, Sections 369.20, 369.22 and 369.251, Florida Statutes, as the statutes implemented while they cite the same statutes (and others) as the statutory authority for their adoption. On March 26, 1993, petitioners filed their petition challenging various portions of the proposed rules. As grounds for invalidating the rules, petitioners contended that certain rules (a) exceeded the rulemaking authority or modified, enlarged or contravened the specific provisions of law implemented, (b) were vague, failed to establish adequate standards for agency decisions, and vested unbridled discretion in the agency, and (c) were arbitrary and capricious.

      
      

2. Standing

   
   

   1. Ameraquatic, Inc., Aquatic Systems, Inc. and Applied Aquatic Management, Inc. are in the business of lake management, including the control of aquatic plants to meet lake management objectives. As such, these petitioners are subject to DNR's regulatory authority and must comply with the requirements of the proposed rules. They are accordingly affected by the agency action.

      
      

   2. Applied Biochemists, Inc. and Boliden Intertrade, Inc. are both foreign corporations and manufacture herbicides used for the control of aquatic plants, including copper-based herbicides. Although Applied Biochemists, Inc. has not registered to do business in the state, it distributes products through independent distributors and sales representatives throughout the state. Even so, by law it is not authorized to maintain an administrative action in this state, and thus it lacks standing to participate. As to Boliden Intertrade, Inc., the proposed rules place limitations on the use of herbicides for aquatic plant control, including copper-based herbicides, and its substantial interests are affected.

      
      

3. An Overview of the Process

   
   

   1. There are over 7,700 lakes in Florida greater than ten acres in size, each with its own individual characteristics. There are also more than 300,000 natural ponds and other waterbodies under five acres in size. Aquatic plants are found in most, if not all, of these waterbodies. Statutory law defines aquatic plants as including all floating, emersed, submersed and ditch bank species of plants growing in the aquatic environment. Although the scientific community is not in total agreement as to the benefit of aquatic plants, it is commonly believed that aquatic plants are beneficial in a lake's ecosystem, providing a substrate for animals, protection from predators and changing the chemical composition of the water. Aquatic plants also provide a nursery area for small fishes, as well as carbon and food for water fowl and other

      vertebrates. Even so, aquatic plants may be noxious, that is, they have the potential to hinder the growth of beneficial plants, interfere with irrigation or navigation, or adversely affect the public welfare or natural resources of the state. Accordingly, DNR has been given the duty of administering the Florida Aquatic Weed Control Act and Florida Nonindigenous Aquatic Plant Control Act, as codified in Part II of Chapter 369, Florida Statutes. Under these acts, DNR has the responsibility of controlling, eradicating and regulating noxious aquatic weeds in waters of the state in such a manner as to protect human health, safety and recreation, and to the "greatest degree practicable", prevent injury to plant and animal life and property. To carry out this statutory mandate, DNR has been given the authority to adopt rules and regulations, which are now codified in chapter 16C-20.

      
      

   2. Aquatic plant control can be accomplished by chemical, biological or mechanical means. As is relevant here, it includes the application of chemical products (herbicides) used to chemically control or regulate aquatic plant growth. DNR administers the control of aquatic plants through a program of contracts and permits with various public and private entities. Under current rules, before any persons (except those having a contract) can engage in the activity of controlling noxious aquatic plants, they must make application for a permit. However, DNR has exempted from permitting requirements control activities in certain types of waterbodies. They include, among others, all waterbodies less than ten acres in size not connected to Waters of Special Concern. The rules also prescribe the general criteria to be used for reviewing permit applications, operation requirements for licensees, including conditions for applying herbicides, and penalties for violating the chapter. The existing and proposed rules apply not only to professional pesticide applicators, such as petitioners, but also to members of the general public who can purchase and apply them as lay persons.

      
      

4. Registration of Herbicides

   
   

   1. Because herbicides are chemical poisons, they are regulated by the Federal Insecticide, Fungicide and Rodenticide Act, as amended. This act requires the Environmental Protection Agency (EPA) to assure that products entering channels of trade in the United States do so with no unreasonable adverse effect on man or the environment.

      
      

   2. The registration process of herbicides with EPA is a long, expensive and arduous one. Among other things, a company wishing to register products must conduct studies involving acute toxicity, chronic toxicity, environmental effects, effect on non-target organisms, and a chemistry package on how the product is formulated or synthesized. These studies, which must be conducted in accordance with EPA protocol, are then reviewed by the EPA staff. Once a manufacturer registers a product with EPA and has its product label stamped "Accepted", this means the product can be manufactured, distributed and sold within the channels of trade. The labeling is designed to ensure that the product, if used as directed, will cause no "unreasonable adverse effect on man and the environment" and will not reduce the quality of water below the classification established for it. It is noted that aquatic herbicides fall rather low on EPA's priority for product review. This is because they rank below other chemicals reviewed by EPA in terms of toxicity and exposure.

      
      

   3. If data submitted to the EPA indicates that when a product is used as directed it may affect either the habitat of an endangered species or the endangered species, the registration application is referred to the U. S. Fish and Wildlife Service for a jeopardy opinion. If jeopardy exists, the EPA must

      then review the registration packet and address these concerns, and the label is thereafter modified to protect the endangered species or its habitat.

      
      

   4. A chemical either passes the test as to environmental risk or it doesn't. There is no ranking within that determination. Therefore, two or more products may be registered for the same use without a determination as to which would be the safer of the two. None of the aquatic plant control herbicides have restricted use labels and there are no special requirements on persons who use them.

      
      

   5. Besides federal registration requirements, pesticides must be registered with the Department of Agriculture and Consumer Services (DACS) before being sold and distributed for use in Florida. For the purpose of making recommendations to the Commissioner of Agriculture regarding the sales, use and registration of pesticides, a Pesticide Review Council (PRC) has been established by the legislature and includes representatives from the Department of Health and Rehabilitative Services (HRS), DNR, DER, DACS and the Game and Fresh Water Fish Commission (Commission). In this way, DACS brings each agency's expertise to bear in determining solutions to pesticide problems.

      
      

   6. DACS does not make a comparative determination between products as to their relative safety or rank them according to safety. Also, it does not try to duplicate EPA's efforts. Rather, it assesses pesticides from the perspective of issues specific to Florida, such as groundwater and soil content, that may not have been addressed or assessed by EPA during that agency's registration process. Finally, there is nothing in law that prevents a state from imposing more restrictive uses on herbicides than does the EPA. Indeed, Florida and many other states have done so.

      
      

5. Are the Rules Invalid?

1. In their petition initiating this action, petitioners have challenged more than thirty proposed revisions to chapter 16C-20 on the theory they violate Subsections 120.52(9)(b)-(e), Florida Statutes. Although no objection or request for clarification was made by DNR, the petition is vague in some respects because it alleges that a "rule" is invalid for various reasons but gives no citation to the specific rule or part thereof being challenged. There is also no document filed in this case which sets out with specificity all of the language which petitioners find offensive. In addition, petitioners' proposed order does not address all matters raised in the initial petition, and it contains argument regarding the invalidity of certain rules or parts thereof which were not addressed in the initial petition, and argument that certain rules are invalid for different reasons than originally alleged. At the same time, the agency's proposed order does not provide a response to many of the allegations and argument in the petition. This has made a difficult task for the undersigned even more so. In an effort to simplify what is otherwise a factually complicated case, the undersigned has grouped what he perceives to be the challenged rules into the following broad areas of subject matter.

   
   

   1. Manatees

      
      

2. Manatees are an endangered species in this state and must by law be accorded a very high level of protection. They are herbivores and eat more than forty species of plants and vegetation. Although relatively slow-moving, manatees are highly mobile and move as much as twenty to thirty miles in a twenty-four hour period. They are also migratory in nature, generally moving south in the winter and north during the warmer months.

3. In an effort to provide protection to manatees from potentially harmful chemicals used in controlling aquatic plants, DNR has proposed to adopt several new rules which restrict the use of chemicals in areas where manatees congregate. These areas are known as "manatee aggregation sites" and are defined in section (14) of proposed rule 16C-20.0015 as follows:

   
   

   (14) "Manatee aggregation site" means a spe- cific area within a waterbody or canal system where a significant number of manatees peri- odically congregate, as identified by the department.

   
   

   Petitioners complain that the definition is vague and lacks definitive guidelines for the agency to use in determining whether an area constitutes a manatee aggregation site. However, for the following reasons, it is found that it would be impractical to identify specific sites, as petitioners suggest, or to provide more definite standards. To begin with, manatees tend to congregate at specific sites depending on environmental conditions and the availability of food sources. Therefore, the sites will vary as environmental conditions and food sources change from time to time. In addition, manatees have changing habits and "wide-ranging movements" and, except for a few well-known sites such as Crystal River, the areas in which significant numbers aggregate are not static. Because these sites are dependent on a number of constantly changing variables, it would be impractical, if not impossible, to name specific sites or place more definitive standards in the rule.

   
   

4. In subparagraph (1)(a)8. of proposed rule 16C-20.0055, DNR has restricted the use of herbicides in manatee aggregation sites in the following manner:

   
   

   8. Control activities using herbicides may

   be permitted in manatee aggregation sites at a time and in a manner specified in the permit.

   
   

   In addition, the last sentence in proposed rule 16C-20.0035(2) reads as follows:

   
   

   Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department.

   
   

   The above rules generally track and codify the informal policy used by DNR since 1990. Petitioners contend that subparagraph (1)(a)8. is vague, fails to establish adequate standards, or vests unbridled discretion in DNR. They also assert that the last sentence in proposed rule 16C-20.0035(2) vests unbridled discretion in DNR and is arbitrary or capricious.

   
   

5. Because manatees are an endangered species, they will never be tested, as other animals are, to determine the impacts of chemicals. Therefore, there is insufficient evidence to determine the impacts of herbicides on the species. Also, there are no documented cases of manatees dying from chemical toxicity. Indeed, the primary cause of death to manatees is from boating accidents. However, manatees have a long life span, and to the extent chemicals are used in waterbodies that they frequent, they will suffer exposure to chemicals for a long period of time. For this reason, DNR has proposed to allow herbicides to be used in manatee aggregation sites only after prior DNR approval is obtained.

   Since each area is site specific, and the conditions that might be imposed in a permit could vary depending on a waterbody's individual characteristics, it would be impractical to be more precise in subparagraph (1)(a)8.

   
   

6. The effect of copper on manatees is not known at this time. Thus, scientists do not know the normal copper level for a manatee. For the last three years, DNR has imposed a moratorium on the use of copper in systems frequented by manatees. An examination of manatees' liver tissues since 1990 reveals lower copper levels than those found in earlier studies. This suggests a correlation between the copper levels in manatees and the use of copper-based herbicides in waters that they frequent. However, it should be noted that copper is not considered to be a cumulative systemic poison. Like subparagraph (1)(a)8., rule 16C-20.0035(2) does not prohibit the use of copper-based herbicides in exempt waters that connect to waterbodies designated as manatee aggregation sites. Rather, it requires prior approval by DNR before copper- based chemicals can be used in these waters. Given the uncertainty at this time as to the long-term effects of copper on manatees, such a safeguard is consistent with the agency's mandate that, to the greatest degree practicable, it prevent injury to plant and animal life and property, and that it give special protection to the manatee. Therefore, the last sentence in proposed rule 16C-20.0035(2) is not arbitrary or capricious nor does it vest unbridled discretion in DNR.

   
   

   1. Interagency agreements

      
      

7. Proposed rule 16C-20.0011(2) incorporates by reference an interagency agreement between DNR and DER and a memorandum of agreement between DNR and the Division of State Lands. Section (3) of the same rule incorporates by reference an interagency agreement between DNR and the Commission. In addition, proposed rule 16C-20.0055(2)(b) incorporates by reference an interagency memorandum of understanding between DNR and DACS. These agreements and memoranda are necessary for two reasons. First, the legislature has specifically directed the agencies to enter into such agreements. Second, the legislature has directed that DNR "guide and coordinate the activities of all . . . agencies . . . charged with the control or eradication of aquatic weeds and plants." Thus, as to matters pertaining to the quality of waters in the state, sovereign lands, pesticide registration and fish and wildlife habitat management, DNR has the statutory authority to coordinate these activities to the extent they impact on aquatic plant management. The rule merely carries out this mandate and, contrary to petitioners' claim, does not deviate from the statutes implemented. To the extent petitioners quarrel with the validity of the language in the underlying agreements, these issues were not raised in the initial petition and need not be addressed.

   
   

8. Among other things, rule 16C-20.0055(2)(b) authorizes DNR employees, pursuant to the memorandum of understanding with DACS, "to remove samples from spray tanks to ascertain compliance with the terms of this chapter, and permit conditions." Under this rule, DNR employees would be able to inspect and sample spray tanks used by persons engaged in herbicide control activities to ascertain whether the user was complying with the requirements of the chapter and his permit. The source of authority is found in paragraph 11, page 9 of the DACS memorandum executed by the signatories on May 8, 1985. It provides in relevant part as follows:

   
   

   DACS, under authority of Section 487.13, F. S., grants to DNR authority, as agents of DACS, to enter upon and inspect vessels and

   vehicles for purposes of collecting informa- tion and samples necessary to determine com- pliance with provisions of pesticide product label or labeling relating to application of pesticides (herbicides) to waters of the state for aquatic plant control. DNR, in conducting inspection under authority granted by this agreement, shall adopt inspection, evidentiary and custody procedures as specified by DACS.

   
   

   Since the memorandum authorizes DNR to "collect . . . samples", and the rule allows DNR to "remove samples from spray tanks" for inspection purposes, the rule is consistent with the memorandum and does not exceed the grant of authority in that document.

   
   

   1. Potable water setbacks

      
      

9. In an effort to protect potable water sources from the harmful effects of chemicals, DNR has proposed to place certain restrictions on the use of herbicides within specified distances of potable water sources. These restrictions are in the form of setbacks and vary in distance depending on whether the waterbody is a lake or river, the plants to be removed are floating or submerged, and the activity takes place upstream or downstream from the water source.

   
   

10. The EPA has established three types of restrictions on aquatic herbicide products which are applied to potable water sources. First, there is a setback requirement which establishes a distance between potable water intake and treatment areas. Such a restriction has been imposed by EPA when it determines that the chemical is at too high a concentration for potable water. These restrictions appear on the product label. However, there are no setback requirements on copper-based chemicals because EPA considers them to be free of environmental risk when used at the prescribed rates. The second restriction is a time delay, which requires that after being treated with herbicides, the water not be used for a specified period of time. Most of the aquatic herbicides registered with EPA have time delay restrictions for swimming, fishing or irrigation. The last restriction is a tolerance restriction, which requires a monitoring program to sample water collected at the intake valve. It is noted that of the eight most commonly used aquatic herbicides, only two have setback restrictions, while the remaining six have either tolerance or time delay restrictions.

    
    

11. Proposed rule 16C-20.0055(1)(a)2.-4. establishes setback requirements for herbicides with labels which do not indicate a potable water intake setback distance. In other words, for those products without an EPA setback requirement on the label, DNR intends to prescribe specific setback requirements for using herbicides in potable water sources. In choosing this type of restriction, DNR decided against using a tolerance or monitoring type of restriction due to vigorous opposition made at a workshop by a member of the scientific community, and its concern over the lengthy amount of time required to obtain results through a monitoring system.

    
    

12. The proposed setback distances have been in use on an informal basis since 1985. They were established at that time through a collective effort by representatives of DNR, DER, DACS and the Commission to determine a reasonably safe distance between potable water sources and the use of chemical herbicides.

    The rule implements in part the DER interagency agreement which mandates that, when EPA has no setback requirement, DNR establish a "setback distance area based on available water quality monitoring data" and "with input from DER." DNR readily concedes that the proposed setback distances are not supported by scientific literature. However, they represent the best scientific judgment of four state agencies and, because the EPA does not consider Florida-specific issues during its registration process, the rule takes into account Florida's

    special drinking water concerns by placing restrictions on the use of herbicides in and near drinking water sources. Then, too, there is no credible evidence that the setback distances are unreasonable. Finally, the rule is in accord with the statutory mandate that DNR address by rule standards for "chemical . .

    . control activities", and the statutory requirement that it "protect human health, safety, and recreation and, to the greatest extent practicable, prevent injury to plant and animal life and property."

    
    

    1. Selection of herbicides

    
    

13. Proposed rule 16C-20.0055(1)(a)5. relates generally to herbicide control activities and provides that

    
    

    1. When more than one herbicide is registered for use in an aquatic site, the department shall require the use of the herbicide which it determines has the least adverse effect upon human health, safety, recreational uses, non-target plants, fish, and wildlife. In determining which herbicide shall be used, the following criteria shall be considered:

       1. Which herbicide will provide the greatest protection to human health, safety, and recreational uses.

       2. Which herbicide will provide the greatest protection to non-target and animal life.

       3. Which herbicide will be most effective at controlling the targeted species.

          
          

          Under the terms of this rule, when more than one herbicide is registered for the same use and site, which is not an unusual occurrence, DNR will make a determination, based on the criteria enumerated in subparagraphs a.-c., as to which herbicide has the least adverse impact upon humans, vegetation, recreational uses, fish and wildlife. Petitioners contend that the rule goes beyond the statutory grant of authority, contravenes the statutes implemented, is vague, fails to establish adequate standards and vests unbridled discretion in the agency, and is arbitrary and capricious.

          
          

14. Because most registered aquatic herbicides have some type of use restriction, DNR will evaluate each herbicide registered for a site to see which product provides "the greatest protection to human health, safety and recreational uses", or provides "the greatest protection to non-target plant and animal life", or which is the "most effective at controlling the targeted species". For example, an applicator may request to use a herbicide that would prevent the public from fishing for food in that waterbody for a specified number of days. If another registered product can effectively control the plants without such a restriction, DNR would approve the second product on the ground it provided "the greatest protection to human health". Similarly, if water hyacinths are intermixed with bulrush, a beneficial native plant used for

    fisheries, DNR would approve a herbicide that kills the water hyacinths but does not harm the bulrush. This decision would conform with the requirement that the herbicide selected offer "the greatest protection to non-target plant(s)." Finally, if a registered product is the only one that will control the targeted plant, under the last criterion DNR would have to take this factor into account in approving one of several registered products. It is noted that the criteria in subparagraphs a.-c. track the language in section 369.20 and thus do not exceed the statutory authority or enlarge, modify or contravene the statute implemented.

    
    

15. In making a determination under the rule, DNR does not intend to review the toxicologist data for herbicides because EPA has already done so. Thus, there is no need for special in-house expertise in this area. Also, DNR will continue its existing practice of allowing the decision to be made by a DNR regional biologist in consultation with the Tallahassee office. Although the decision may be subjective to a certain extent, the guidelines in the rule merely track the language in the statute implemented and thus are not vague or otherwise lacking in standards. Given the fact that most aquatic herbicides have some type of use restriction, DNR's proposal to require the use of the least restrictive herbicide is not arbitrary or capricious. Finally, the contention that DNR lacks funding and staff to carry out its responsibilities is not a ground for invalidating the rule.

    
    

    1. Definitions

       
       

16. Proposed rule 16C-20.0015 contains twenty-four definitions to be used in applying and interpreting the various provisions within chapter 16C-20. Of these, sections (1), (5), (11), (14) and (23) are subject to challenge on various grounds.

    
    

17. In section (1) of the proposed rule, DNR has defined the term "aquatic plant" as follows:

    
    

    1. "Aquatic plant" means any plant, in- cluding a floating, emersed, submersed, or ditchbank species, growing in, or closely associated with, an aquatic environment, and includes any part or seed of such plant. This includes those species listed in s. 369.251, F. S. (Emphasis added)

       
       

       Section 369.251 lists five species of plants that fall within the category of "invasive nonnative plants". Since the more credible evidence shows that these five species are wetland and upland species of plants and are not considered to be aquatic plants, they have been improperly included within that definition.

       
       

18. Section (5) of the rule defines the term "classes of surface water" as follows:

    
    

    (5) "Classes of surface water" means the classification of surface waters as defined by the Department of Environmental Regula- lation, pursuant to Rule 17-302.400, F.A.C.

    
    

    By its terms, section (5) adopts the same water classifications as are used by DER. Therefore, the rule does not contravene any statutes. Although the rule will obviously have to be amended at a future time if DER changes these

    classifications, this is not a ground to invalidate the rule. Further, by adopting this definition, DNR has not delegated its rulemaking authority to DER.

    
    

19. Section (11) defines the term "eradication program" as follows:

    
    

    (11) "Eradication program" means a method for the control of non-indigenous aquatic plants in which control techniques are utilized in a coordinated manner in an attempt to kill all the target aquatic plants on a permanent basis in a given geographical area.

    
    

    Petitioners contend that the definition is invalid because it modifies the law being implemented. That is to say, DNR has limited the eradication program to non-indigenous plants, thus excluding all indigenous plants. However, the law implemented (s. 369.20) directs the agency to control all noxious plants, whether indigenous or not. By limiting the rule in this manner, DNR has modified the implementing statute.

    
    

20. Section (14) of the rule defines the term "manatee aggregation site". For the reasons given in finding of fact 15, the definition is not deemed to be vague or overly imprecise.

    
    

21. Finally, section (23) of the rule defines "waters" as follows:

    
    

    (23) "Waters" mean rivers, streams, lakes, navigable waters and associated tributaries, canals, meandered lakes, enclosed water systems, and all other bodies of water.

    
    

    This rule tracks verbatim the definition of "waters" found in subsection 369.22(1)(g), one of the statutes cited as the specific authority and statute implemented. Therefore, DNR has not exceeded its grant of rulemaking authority nor contravened the statute implemented.

    
    

    1. Permits - applications

       
       

22. Under the current permitting scheme established in existing rule 16C- 20.002, all persons engaged in aquatic plant management activities, except those doing so in exempt waters, must file with DNR an application for a permit. Upon issuance, the permit is valid for a period of one year and may be subsequently renewed for a second year. The application now requires a listing of the acreage of the treatment site, the targeted plants, the acreage of the targeted plants, and the chemicals proposed for use. It also requires the applicant to submit a map of the water body, indicating the location of the vegetation desired for control. The existing rule does not call for the applicant to submit proof of ownership of the property being treated nor a drawing of the riparian owner's boundaries and boundary dimensions. In its revisions to rule 16C-20.002, DNR proposes to modify certain existing requirements and to add new requirements for obtaining a permit. The application form itself has not been formulated as of this time but will be filed with the Department of State upon these rules becoming effective. Petitioners contend that proposed changes in the last sentence of section (2) and paragraphs (3)(d), (5)(a) and (6)(b) of the rule are invalid for a number of reasons.

23. The apparent offending language in paragraph (3)(d) requires that

    
    

    (d) All applications, except for those from government agencies, research institutions, and wastewater treatment facilities approved by the Department of Environmental Regulation, shall be in the name of and signed by the riparian owner who shall, upon request, provide proof of riparian ownership.

    (emphasis added)

    
    

    As noted above, DNR does not currently require proof of ownership of the property being treated. In addition, it is not a practice of the industry to require proof of ownership while contracting for lake management services.

    Indeed, the industry says it does not ask if a person owns the property being treated or where the property boundaries are. Rather, it assumes that a person would not contract and pay for such services unless he owned the property. DNR now proposes to require such proof but will do so only in rare instances and under unusual circumstances. For example, when "border wars" erupt between adjoining property owners over who owns aquatic vegetation, and one owner does not want the vegetation to be controlled, DNR would request "proof of riparian ownership" to resolve this type of dispute. When these disputes have arisen in the past, DNR has been required to ascertain the same information that it now proposes to require by rule. Given the agency's valid need for this information, and the fact that this provision in the rule will be employed sparingly, the offending language is neither arbitrary or capricious.

    
    

24. In paragraphs (5)(a) and (6)(b) DNR proposes to add the following provisions:

    
    

    (5)(a) All conditions of the permit shall be stated on the permit.

    (6)(b) Following notice to the permittee, the department is authorized to amend a permit issued pursuant to this chapter during the term of the permit to restrict or limit the scope of the permitted activity. This shall be done if necessary to ensure the protection of human health, safety, recreation, plant and animal life, and property.

    
    

    Petitioners complain that paragraph (5)(a) is invalid because it fails to identify the "conditions" that may be stated on a permit. This contention overlooks the fact that it would be impractical to list every possible condition that could be stated on a permit or when that condition might be imposed. Then, too, an applicant need only review the other provisions in the chapter to learn when specific conditions may be warranted. As to paragraph (6)(b), this provision allows DNR to add conditions after a permit is issued when human health, safety, recreation and other similar issues come into play. Since the circumstances under which conditions may be imposed track the statutory language in section 369.20, the rule does not contravene the statute implemented.

    Further, by utilizing the statutory criteria, the rule contains adequate standards for the agency to follow.

25. Finally, the last sentence of section (2) of the rule reads as follows:

    
    

    As a condition of the permit, any aquatic plants removed pursuant to an aquatic plant control permit may be required to be relocated in the control area to maintain habitat or for other environmental benefits.

    
    

    Petitioners contend there are no standards or criteria in the rule for determining under what conditions relocation of vegetation may be required. They also argue that the rule is arbitrary and capricious. As to the latter contention, they point to a research project performed for DNR by Dr. Canfield, a University of Florida professor, which examined the relationship of plants to fish and determined the amount of vegetation that should remain in a controlled area. Some sixty lakes were included in the study, and Dr. Canfield concluded that there is no relationship between aquatic macrophytes and fish. In other words, in those lakes with macrophyte coverage between 15 percent and 85 percent, the sport fish population was uniformly good while the population was unpredictable in lakes having below 15 percent coverage and above 85 percent

    coverage. The study also indicated that the effect on the population may not be the direct result of vegetation because of other factors. The study further found no strong correlation between birds and aquatic macrophytes. Rather, lake trophic status was the dominant factor. In another study performed for the EPA by Dr. Haller, also a faculty member at the University of Florida, he evaluated the effect of grass carp, mechanical harvesting and the use of herbicides on fish population in twenty-four experimental Florida ponds. This study revealed that the removal of aquatic plants was immaterial to the fish populations.

    Finally, experience derived from the Polk County lake system shows that the clearing of lake front does not destroy the environment on that part of the lake but simply results in a different group of species utilizing that area.

    
    

26. DNR concedes that the Canfield study "provide(s) some broad generalities that are helpful." However, DNR chose not to accept Dr. Canfield's conclusions and instead relied upon other literature, not identified in the record, to support its theory that a correlation exists between vegetation and fish population and thus the proposed rule is justified. Since the more credible evidence supports a finding to the contrary, the last sentence of section (2) of proposed rule 16C-20.002 is deemed to be arbitrary and capricious.

    
    

    1. Permits - Criteria to be used

       
       

27. Proposed rule 16C-20.0045 sets forth the criteria for issuing, modifying, or denying a permit application. Petitioners allege that the second and third sentences of section (1), a part of paragraph (2)(b), subparagraphs (2)(c)2. and 6., subparagraphs (2)(d)2. and 3., subparagraph (2)(e)2., paragraph (2)(h) and section (4) are invalid because they exceed the statutory authority or statute implemented in some respect. In this regard, it is noted that the rule implements sections 369.20, 369.22 and 369.251 while the general authority is found in the same sections and section 370.021. Petitioners also contend that section (2) is invalid in its entirety because it fails to establish adequate standards or vests unbridled discretion in the agency. The criteria in question are somewhat lengthy, and because they are found in petitioners' exhibit 1 received in evidence, they are not repeated here.

    
    

28. Although proposed rule 16C-20.0045 has been substantially reworded, the criteria for issuing, modifying or denying a permit application are essentially unchanged from prior policy, and they generally track the criteria

    found in section 369.20. Thus, they do not exceed the rulemaking authority or contravene the statute implemented. While no specific weight has been assigned to each criterion, to do so, as petitioners suggest, would be impractical.

    Finally, the rules contain seven categories of criteria, some with subcategories, and are precise and understandable. Therefore, the section embodies adequate standards and does not vest unbridled discretion in the agency.

    
    

    1. Exempt waters

    
    

29. Proposed rule 16C-20.0035 describes the waters in which no permit is required in order to engage in aquatic plant control activities. The petition initiating this proceeding suggests that four portions of the rule are invalid. They read as follows:

    
    

    (1)(a) Waters wholly owned by one person, other than the state, provided there is no connection to Waters of Special Concern.

    * * *

    (c) In all waters, except aquatic preserves designated in Chapter 258, F.S., where riparian owners physically or mechanically remove aquatic plants to create an access corridor of sufficient length waterward from the shore to allow access for a boat or swimmer to reach open water. This access corridor shall not exceed a total of 25 feet in width. All unvegetated areas shall be cumulatively considered when determining the exempt access corridor . . .

    * * *

    (e) In waters of ten surface acres or less provided there is no connection to Waters of Special Concern. The acreage of waters in systems with any connections shall be calculated for each individual water rather than collectively as a system. Natural connections between non-exempt waters shall be considered part of those waters.

    * * *

    (2) Although certain waters are exempt from the department's permit requirements, all aquatic plant management activities shall be conducted in a manner so as to protect human health, safety, recreational use, and to prevent injury to non-target plant and animal life, and property, to the greatest degree practicable. When applying a herbicide in exempt waters, all persons shall comply with label rates, instructions, cautions, and directions, and shall follow the public notice requirements of paragraph 16C- 20.0055(2)(c), F.A.C. No aquatic plant management activity using herbicides or mechanical harvesting equipment shall be conducted when manatees are in the control area in exempt waters. Copper-based

    herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department.

    
    

30. As to paragraph (1)(a), petitioners complain that it is illogical and without reason to exempt only "waters owned by one person" and not waters owned by more than one person. Since the record does not contain any evidence to support a finding that this distinction is reasonable or logical, the rule is deemed to be arbitrary and capricious. As to the cited portion of paragraph (1)(c), petitioners first point out that in the second sentence the access corridor to the riparian owner's property is only twenty-five feet in width and is unreasonably small. They suggest that a larger corridor is necessary for an owner wishing to build a dock and park his boat. As to this requirement, DNR's witness Caton acknowledged at hearing that a reasonably sized access corridor would be more like fifty feet. Since the proposed access corridor is not supported by facts or logic, the second sentence in section (1)(c) which reads: "This access corridor shall not exceed 25 feet in width" is deemed to be arbitrary. Petitioners also suggest that the first and third sentences in section (1)(c) are invalid on the grounds they are vague or impermissibly imprecise in standards or criteria. Since reasonably intelligent persons should be able to understand the requirements of the rule, the two sentences are not vague. Further, they are not so imprecise as to be invalid. Finally, paragraph (1)(e) exempts from DNR permitting requirements all waterbodies smaller than ten acres in size that do not connect to Waters of Special Concern. This exemption is logical and reasonable given the fact that most waterbodies of this size are artifically created and do not connect to other waterbodies.

    
    

31. In section (2), DNR proposes to require applicators to adhere to label instructions and public notification requirements even when spraying herbicides in exempt waters. It also proposes to prohibit activities in exempt waters involving herbicides or mechanical harvesting equipment when manatees are observed. These requirements are consistent with the enabling statute which requires DNR to protect human health, recreational uses, animal life and property in all waters of the state, whether such waters are classified exempt or not. Therefore, the rule is not arbitrary or capricious, and it does not modify the law implemented. The allegation that the last sentence in section

    1. is invalid is discussed in other findings of fact and need not be repeated here.

       
       

       1. The use of copper-based herbicides

    
    

32. As a part of their case, petitioners presented extensive testimony on the issue of whether copper-based products are safe for use in waterbodies of this state. They contend that these products should not be subject to any additional restrictions over and beyond those already imposed by the EPA. They point out that EPA product registrations for copper-based herbicides do not restrict water use in any way, and they are labeled for use in drinking water reserviors, fish hatcheries, and crop and non-crop irrigation. Indeed, copper has been in use as a fungicide for at least 5,000 years. Also, no alternative products for the control of algae exist that do not have water use restrictions. In the opinion of one of petitioners' experts, the copper ion used in aquatic herbicides which causes the toxicity to the treated plants is very short-lived and very rapidly complexes with other elements of the aquatic environment so that it is immobilized and no longer toxic. In addition, petitioners rely on the fact that the application rate for copper-based herbicides is less than the tolerance level set by the Food and Drug Administration for finished drinking

    water. Finally, petitioners cite to studies performed on sheep and apple snails which support their position that there should be no restrictions on the use of copper-based products.

    
    

33. In 1990, DNR instituted a policy of limiting the use of copper-based herbicides in natural waterbodies and in areas frequented by manatees. Besides reserving the right to select the least harmful herbicide [rule 16C- 20.0055(1)(a)], and establishing potable water setbacks (rule 16C- 20.0055(1)(a)2.-4.), DNR also intends to codify at least a part of its existing policy as section (2) of proposed rule 16C-20.0035. That section reads as follows:

    
    

    (2) Although certain waters are exempt from the department's permit requirements, all aquatic plant management activities shall be conducted in a manner so as to protect human health, safety, recreational use, and to prevent injury to non-target plant and animal life, and property, to the greatest degree practicable. When applying a herbicide in exempt waters, all persons shall comply with label rates, instructions, cautions, and directions, and shall follow the public notice requirements of paragraph 16C- 20.0055(2)(c), F.A.C. No aquatic plant management activity using herbicides or mechanical harvesting equipment shall be conducted when manatees are in the control area in exempt waters. Copper-based herbicides shall not be used in any exempt waterbody connected to any natural waterbody designated as a manatee aggregation site without a permit from the department.

    
    

34. The above policy does not prohibit the use of copper in natural and non-degraded waters. Indeed, the evidence reveals that DNR has occasionally allowed the use of such products when the circumstances permitted. The underlying reason for DNR's policy, as expressed in the rules, is that copper is a very toxic metal and can migrate to areas where its level is lower, and its effect on organisms in a lake can range from death to sublethal and long term effects. Some organisms are more sensitive to copper than others and the normal levels of copper vary from organism to organism. There are many factors which affect the tissue concentration of copper in any organism, and copper may become available to organisms and aquatic plants by various mechanisms.

    
    

35. Bioavailability means that the element is readily available to the biological organisms within a system. Since scientists have not yet determined whether copper is bioavailable, DNR has chosen to take a more cautious approach toward the use of copper until more data is available. The restrictions on copper imposed by the rule do not affect the use of copper-based herbicides in waterbodies where these herbicides have historically been used or in highly degraded artificial waters. This is borne out by the fact that each year chapter 16C-20 licensees apply approximately 21,000 pounds of copper-based products to control aquatic plants. Given the uncertainty of the scientific community as to the long-term effects of copper-based products on manatees and other species, it is not unreasonable for DNR to place restrictions on the use of copper herbicides, particularly when manatees are present, potable water

sources are close by, or less restrictive herbicides are available. Moreover, because the EPA registration process does not consider Florida-specific issues, it is reasonable for the state to impose more stringent restrictions than does the EPA on the use of copper products. Accordingly, the rule is not arbitrary or capricious.

j. Penalties

1. The final revisions being challenged are found in proposed rule 16C- 20.0075, which authorizes DNR to take disciplinary action against a licensee, assess penalties for violations of the chapter, and require violators to revegetate an affected area pursuant to an approved plan. It also authorizes all law enforcement officers of the state to enforce this chapter. The relevant portions of the rule are set forth below:

   
   

   1. Following proper notice, the department is authorized to modify, revoke, suspend, annul, or withdraw any permit granted by it, or deny or modify any permit request, if the department determines that the following actions were committed by the permittee or applicant:

      (grounds omitted)

   2. A person violating this chapter may be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082, or 775.083, F. S.

   3. The department is authorized to require any person who violates the provisions of this chapter, by controlling plants without a permit, or controlling more plants than permitted (such as a person controlling

      plants in non-exempt waters without a permit), to reestablish vegetation in the affected area pursuant to a revegetation plan developed and approved by the department.

      * * *

      (5) All law enforcement officers of this state and its agencies with power to make arrests for violations of state law are authorized to enforce the provisions of this chapter.

      
      

      As to section (1), there is no authority in the implementing statutes [ss. 369.20, 369.22, 369.251 and 403.088] for DNR to discipline a licensee. As to section (2), it essentially tracks the language found in Subsection 369.25(5)(a), Florida Statutes, which pertains to aquatic plants. However, that statute is not cited as a source of authority, and none of the cited statutes authorizes DNR to impose by rule the same penal provisions as are found in the general law. Likewise, there is no authority in the statutes for DNR to require by rule that a violator reestablish vegetation pursuant to a plan. Finally, the statutes do not authorize DNR to adopt a rule allowing all law enforcement officers in the state to enforce this chapter. Therefore, sections (2), (3), and (5) are invalid. However, for the reason stated in the conclusions of law, section (1) is not invalid.

      CONCLUSIONS OF LAW

      
      

2. The Division of Administrative Hearings has jurisdic-tion of the subject matter and the parties hereto pursuant to Subsections 120.54(4) and 120.57(1), Florida Statutes.

   
   

3. As the party challenging the proposed rules, petitioners have the burden of proving by a preponderance of the evidence that the challenged rules are an invalid exercise of delegated legislative authority.

   
   

4. Ameraquatic, Inc., Applied Aquatic Management, Inc., Aquatic Systems, Inc., and Boliden Intertrade, Inc. are all substantially affected by the proposed rules and thus have standing to bring this action. Although Applied Biochemists, Inc., a foreign corporation, is affected by the rules, it has not obtained a certificate from the Department of State authorizing it to do business in Florida. Since Subsection 607.1502(1), Florida Statutes, provides that such a corporation "may not maintain a proceeding in any court in this state until it obtains a certificate of authority", and a "proceeding" is defined in Subsection 607.01401(20), Florida Statutes, as including an "administrative . . . action", Applied Biochemists, Inc. lacks standing to participate. Therefore, DNR's motion to dismiss is granted.

   
   

5. Subsection 120.52(9), Florida Statutes, defines an invalid exercise of authority as follows"

   
   

   "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, functions, and duties delegated by the legislature.

   
   

   The same statute goes on to provide that if any one or more of the following applies, an agency's proposed rule is invalid:

   
   

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

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

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

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

   5. The rule is arbitrary or capricious.

   
   

6. In considering the numerous allegations raised by petitioners, it is first noted that the petition initiating this action does not set out with specificity all of the rules or parts thereof being challenged. See, for example, paragraphs 17-22, 26-31, 34-39, and 41-49 of the petition, where no citation to a specific rule or language is given. Even so, the agency has never filed an objection nor requested clarification as to what specific language is the subject of this proceeding. Although the parties were requested in an off- the-record discussion at the conclusion of the hearing to be more specific, no document has been filed by either party spelling out precisely the language

   being challenged. Accordingly, the undersigned has analyzed the petition, as amplified by the parties' proposed orders, in an effort to discern the challenged rules. Where no rule or language has been cited in the factual allegations, and the undersigned could not ascertain the nature of the claim without engaging in speculation, those contentions have been disregarded.

   Further, some allegations in the initial petition are not pursued in petitioners' proposed order leaving the undersigned in doubt as to whether those claims have been abandoned. Where new claims are addressed for the first time in petitioners' proposed order, they have been disregarded. For example, petitioners have contended for the first time in their proposed order that proposed rules 16C-20.0011(2) and (3), which incorporate by reference various agency agreements and memoranda, do not comply with Rule 1S-1.005, Florida Administrative Code, and thus DNR violated subsection 120.52(9)(a) by materially failing to follow the applicable rulemaking procedures in subsection 120.54(8). Since this allegation was not raised in the initial petition, and respondent had no notice that this matter was in issue, the request for relief on this ground must necessarily be denied. Finally, petitioners have requested as ultimate relief that the entire chapter 16C-20 be invalidated. However, at best they are entitled to no more relief than the allegations in the petition warrant, that being the invalidation of some, but not all, parts of the chapter.

   
   

7. Under subsection 120.52(9)(b), a proposed rule is invalid if "the agency has exceeded its grant of rulemaking authority." This means that DNR cannot adopt a rule which exceeds the rulemaking authority found in Subsection 369.20(7), Florida Statutes. That subsection reads as follows:

   
   

   (7) No person or public agency shall control, eradicate, remove, or otherwise alter any aquatic weeds or plants in waters of the state unless a permit for such activity has been issued by the department, or unless the activity is in waters expressly exempted by department rule. The department shall

   develop standards by rule which shall address, at a minimum, chemical, biological, and mechanical control activities; an evaluation of the benefits of such activities to the public; specific criteria recognizing the differences between natural and artificially created waters; and the different amount or quality of littoral vegetation on various waters. Applications for a permit shall be made to the department. In reviewing such applications, the department shall consider the criteria set forth in subsection (2).

   
   

   Subsection (2) in turn provides as follows:

   
   

   (2) The Department of Natural Resources shall direct the control, eradication, and regulation of noxious aquatic weeds and direct the research and planning related to these activities as provided in this section, excluding the authority to use fish as a biological control agent, so as to protect

   human health, safety, and recreation and, to the greatest degree practicable, prevent injury to plant and animal life and property.

   
   

   In addition, almost identical provisions are found in Subsections 369.22(4) and (12), Florida Statutes, with respect to non-indigenous aquatic plant control.

   Finally, a general grant of authority for DNR to adopt rules and regulations is found in Section 370.021, Florida Statutes.

   
   

8. Petitioners first contend that rule 16C-20.0055(1)(a), to the extent it purports to regulate the use, selection and application of herbicides, is in violation of Section 487.011, Florida Statutes, which provides that the Florida Pesticide Law shall be administered by DACS. In addition, petitioners point to Subsection 487.051(2), Florida Statutes, which provides in part as follows:

   
   

   (2) . . . This chapter is intended as comprehensive and exclusive regulation of pesticides in this state. Except as provided in chapter 373, 376, 388, 403 and 482, or as otherwise provided by law, no agency . . . may adopt . . rules . . . pertaining to pesticides. (Emphasis added)

   
   

   While it is true that DNR claims no authority from chapters 373, 376, 388 or 482, subsection 369.20(7) does authorize DNR to "develop standards by rule which shall address, at a minimum, chemical . . . control activities." By including this language in the statute, the legislature obviously intended that DNR could address the use of chemicals (herbicides) insofar as they are used to control, eradicate and regulate noxious aquatic weeds. Since rule 16C-20.0055(1)(a) does precisely this, it does not violate Chapter 487, Florida Statutes.

   
   

9. Petitioners next contend that section (23) of proposed rule 16C- 20.0015, which defines the term "waters", exceeds the grant of rulemaking authority since it includes essentially all bodies of water and not just waters of the state, a more restrictive term. In its rule, DNR has defined "waters" as follows:

   
   

   (23) "Waters" mean rivers, streams, lakes, navigable waters and associated tributaries, canals, meandered lakes, enclosed water systems, and all other bodies of water.

   
   

   The source of authority of the rule is found in sections 369.20, 369.22, 369.251 and 370.021. Admittedly, subsection 369.20(7) provides that no person shall engage in the control of aquatic plants "in waters of this state" without a permit from DNR. However, subsection 369.22(1)(g), which must be read in pari materia with section 369.20, defines "waters" in the same manner as DNR has in the proposed rule. Given this statutory definition, it cannot be concluded that DNR has exceeded its rulemaking authority. Indeed, the agency has simply tracked verbatim the language found in the statute.

   
   

10. Petitioners next contend that DNR lacks authority to adopt rules to protect manatees from herbicides. They posit that there is no evidence in the legislative enactment that the legislature intended to provide DNR with omnibus authority to protect manatees from the "imagined threat" of herbicides. Manatees are, of course, a marine mammal designated by both the state and federal governements as an endangered or threatened species. See Subsection

    370.12(2), F. S. Since section 369.20(2) mandates that DNR "direct the control, eradication, and regulation of noxious aquatic weeds . . . so as . . . to the greatest degree practicable, prevent injury to plant and animal life and property", and manatees obviously fall within this protected category, the statute is broad enough to sanction the rules. The contention is accordingly rejected.

    
    

11. On the theory that all or parts of proposed rules 16C-20.0011(1) and (2), 16C-20.002(1), 16C-20.0015(3), (5), (11), and (16), 16C-20.0035(1)(c), and 16C-20.0075(1) modify, enlarge, or contravene the specific provisions of law implemented, petitioners contend in their proposed order that these rules violate subsection 120.52(9)(c). Since no specific claims on this ground were made in the initial petition regarding the alleged invalidity of the second sentence of proposed rule 16C-20.002(1), rules 16C-20.0015(3) and (16), and rule 16C-20.0035(1)(c), these contentions have been disregarded. The remaining contentions are dealt with separately below.

    
    

    1. Proposed rule 16C-20.0011(1) implements section 369.20 which provides in part as follows:

       
       

       (2) The Department of Natural Resources shall direct the control, eradication, and regulation of noxious aquatic weeds and direct the research and planning related to these activities. . . so as to protect human health, safety, and recreation and, to the greatest degree practicable, prevent injury to plant and animal life and property. (emphasis added)

       
       

       The proposed rule in turn reads as follows:

       
       

       (1) The Department of Natural Resources . .

       . shall administer the aquatic plant management program of the state through a system of contracts and permits so as to protect human health, safety, and recreation, to the greatest degree practicable, and to prevent injury to plant life, animal life, and property.

       
       

       Although the proposed rule essentially tracks the statutory language, it does vary in one material respect. By moving the word "and" from before to after the term "to the greatest degree practicable", the agency has effectively reversed the order of priority for protection established by the legislature and, contrary to the statute, has given the greatest protection to human health, safety and recreation. Therefore, the words "to the greatest degree practicable" must be striken since they enlarge on the statute implemented.

       
       

    2. Proposed rule 16C-20.0011(2) incorporates by reference a memorandum of agreement between DNR and the Division of State Lands relating to aquatic plant management activities as they may affect sovereign lands. Because DNR has the authority to "direct the control, eradication, and regulation of noxious aquatic weeds", [s. 369.20(2)], and to "supervise and direct all maintenance programs for control of nonindigenous aquatic plants", [s. 369.22(4)], the rule does not modify, enlarge or contravene the laws implemented. As to the contention that an unspecified part of the same rule is invalid because certain language in the

       underlying agreement (but not the rule) is in violation of the enabling statutes, petitioners' remedy is to challenge the underlying agreement, a claim not presented in their petition.

       
       

    3. Section (5) of proposed rule 16C-20.0015 defines "classes of surface water" as being "the classification of surface waters as defined by the Department of Environmental Regulation pursuant to Rule 17-302.400, F. A. C." Since the rule uses the same water classifications as does DER, and does not delegate DNR's rulemaking authority to DER, it does not modify, enlarge or contravene the statute implemented. The fact that DNR may have to amend its rule if DER changes its classifications at a future time is not a ground to invalidate the rule.

       
       

    4. In proposed rule 16C-20.0015(11), DNR has defined an "eradication program" as a "method of control of non-indigenous aquatic plants." By limiting the program to exclude indigenous plants, which can also be aquatic weeds, DNR has improperly modified subsection 369.20(7), which provides for the control of both indigenous and non-indigenous plants.

       
       

    5. Finally, proposed rule 16C-20.0075(1) authorizes DNR to take disciplinary action against a licensee. Although the implementing statutes (ss. 369.20, 369.22, 369.251 and 403.088) are silent as to DNR's authority to discipline a licensee, the power to issue a license carries with it the implied authority to revoke. State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979). Therefore, it is concluded that section (1) of the rule is valid. As to the allegations in the initial petition regarding the invalidity of sections (2), (3), and (5), Article I, Section 18 of the Florida Constitution prohibits agencies from imposing penalties that are not authorized by statute. Section (2) of the rule makes it "a misdemeanor of the second degree" to violate a provision of the chapter. Since there is no statutory authority for imposing this penalty by rule, section (2) clearly enlarges on DNR's statutory authority and is thus invalid. Likewise, as to section (3), there is no authority in the law implemented which authorizes DNR to require by rule that a violator revegetate an area pursuant to an approved plan. Finally, there is no statutory authority cited by DNR which allows it to adopt a rule permitting all law enforcement officers in the state to enforce chapter 16C-20. Therefore, section

    (5) is also invalid.

    
    

12. In their proposed order, petitioners next claim that all or parts of proposed rules 16C-20.002(2), (3)(d) and (5)(a) and (b), 16C-20.0015(8), (13), and (14), 16C-20.0035(1)(c), 16C-20.0045(2), 16C-20.0055(1)(b)3., and 16C- 20.0075(2) are invalid on the ground they are vague, fail to establish adequate standards for agency decisions, and vest unbridled discretion in the agency as proscribed by subsection 120.52(9)(d). In addition, the initial petition alleged that rule 16C-20.002(6)(b) was invalid on the same ground. Since the initial petition raised no specific claim on that ground regarding the invalidity of proposed rules 16C-20.0015(8) and (13), 16C-20.002(5)(a) and 16C- 20.0075(2), those contentions need not be addressed. As to the remaining rules, it is noted initially that the test for vagueness is whether men of common understanding and intelligence must guess at a rule's meaning. State, Department of Health and Rehabilitative Services v. Health Care & Retirement Corp., 593 So.2d 539, 541 (Fla. 1st DCA 1992). Further, a rule vests unbridled discretion in an agency when it fails to establish adequate standards and reserves to the agency the arbitrary power to determine private rights. Barrow

    1. Holland, 125 So.2d 749 (Fla. 1960). These principles will be used in judging the validity of petitioners' claims.

       1. The second sentence of proposed rule 16C-20.002(2) generally authorizes DNR, as a condition of a permit, to require revegetation of a part of the control area to maintain habitat or for other environmental benefits. Since the undersigned has declared the language to be arbitrary or capricious in a subsequent section of this order, there is no need to determine if the rule violates subsection 120.52(9)(d).

          
          

       2. Paragraph (3)(d) of the same rule requires, among other things, that the application be in the name of the riparian owner. This requirement is neither vague or so lacking in standards as to be invalid. As to the other application requirements, including a diagram of the riparian owner's property as set forth in subparagraphs (f)1.-7., they are sufficiently clear so that reasonably intelligent persons can understand them, and they do not repose unbridled discretion in the agency.

          
          

       3. Paragraph (5)(b) of the same rule provides that "permits shall be effective for a period of not to exceed three years from the date issued." Since the rule contains no standards for DNR to use in determining whether a permit would be issued for three years, or a shorter time period, and there are

          no statutory guidelines for the agency to follow on this subject, the rule vests unbridled discretion in the agency and thus violates subsection 120.52(9)(d).

          
          

       4. Paragraph (6)(b) of proposed rule 16C-20.002 authorizes DNR to amend a permit after issuance if necessary "to ensure the protection of human health, safety, recreation, plant and animal life, and property". Since these criteria track the language found in section 369.20, the rule contains adequate standards and does not vest unbridled discretion in the agency.

          
          

       5. As to section (14) of rule 16C-20.0015, which defines a "manatee aggregation site", the evidence supports a conclusion that the rule is sufficiently precise as to not violate subsection 120.52(9)(d).

          
          

       6. The second sentence of proposed rule 16C-20.0035(1)(c) exempts from DNR permitting requirements a twenty-five foot access corrridor for riparian owners when they use physical or mechanical means to create that corridor. The third sentence provides that "all unvegetated areas shall be cumulatively considered when determining the exempt access corridor." Since the language in the rule can be readily understood, and it is not imprecise, it is concluded that this portion of the rule does not violate subsection 120.52(9)(d).

          
          

       7. Paragraphs (2)(a) through (g) of proposed rule 16C-20.0045 enumerate the criteria to be considered by DNR in determining whether a permit should be issued. It is concluded that persons of common intelligence can readily understand their requirements and thus the rule is not vague. Further, the criteria are sufficiently precise to avoid being invalidated on the ground they vest unbridled discretion in the agency.

          
          

       8. Proposed rule 16C-20.0055(1)(b)3. requires a permit for aquatic plant management through flucuating water levels. The text of the rule reads as follows:

    
    

    3. An aquatic plant management permit is required to fluctuate water levels for aquatic plant management. Conditions for such fluctuation shall be stated in the permit and timed in such a manner to accomplish the desired control of the target plant species

    with the least possible adverse impact to other waters, aquatic life, riparian owners and water users. A permit to fluctuate water levels may also be required from the appropriate water management district.

    
    

    Since it would be virtually impossible for the rule to identify all conditions that might apply when using fluctuating water levels to control aquatic plants, and the criteria to be used by DNR when determining such conditions are adequately precise, the rule does not violate subsection 120.52(9)(d).

    
    

13. Finally, in their proposed order, petitioners contend that all or parts of proposed rules 16C-20.002(3)(d), 16C-20.002(3)(f), and 16C- 20.0035(1)(a) and (2) are arbitrary and capricious and therefore they violate subsection 120.52(9)(e). In their initial petition, petitioners also contended that the second sentence in proposed rule 16C-20.0035(1)(c) is invalid for the same reason. Since the intial petition did not allege proposed rules 16C- 20.002(3)(f) and 16C-20.0035(1)(a) were invalid on this ground, those two claims have been disregarded. As to the remaining rules, the case of Agrico Chemical Company v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1979) is helpful in resolving their validity. It defines the term "arbitrary and capricious" as follows:

    
    

    A capricious action is one taken without reason. An arbitrary decision is one not supported by facts or logic, or despotic.

    
    

    Under this test, a rule is invalid if it is not supported by facts or logic, or it was adopted without thought or reason. Put another way, if the decision "is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, it would seem that the decision is neither arbitrary or capricious." Dravo Basic Materials Co., Inc. v. State, Department of Transportation, 602 So2d 632, 634, n. 3 (Fla. 2d DCA 1992).

    
    

    1. The last sentence in section (2) of proposed rule 16C-20.002 generally authorizes DNR to require revegetation in a control area in order to maintain habitat or for other environmental benefits. Because the language is without reason and not supported by credible facts or logic, the last sentence is arbitrary and capricious.

       
       

    2. In proposed rule 16C-20.002(3)(d), DNR intends to require, among other things, that the riparian owner sign the permit application. Since there are facts and logic which support the rule, namely, DNR's intent to require such proof "in (those) rare instances when 'border wars' erupt between adjoining property owners over who owns aquatic vegetation", the rule is not arbitrary or capricious.

       
       

    3. In proposed rule 16C-20.0035(2), DNR intends to require applicators, while spraying in exempt waters, to still use herbicides in accordance with "label rates, instructions, cautions and directions", as well as adhere to public notice requirements. Petitioners complain that the requirement is arbitrary and capricious because it requires them to follow, while spraying in exempt waters, the same criteria as for non-exempt waterbodies. Because DNR is obliged to protect human health, safety, recreation, plants and animal life in all waters of the state, and not just those waters for which a permit is required, the rule cannot be said to be without reason or supporting facts.

    4. Finally, because the twenty-five foot access corridor in the second sentence of rule 16C-20.0035(1)(c) is not supported by facts or logic, that part of the rule is arbitrary and capricious. As to the restriction in the first sentence of the same paragraph against using chemical means for removing aquatic plants, but allowing physical and mechanical means, there is no record basis to make this distinction. Therefore, the first sentence is also deemed to be arbitrary and capricious.

    
    

14. Petitioners' exhibit 13 is received in evidence.

Based upon the foregoing findings of fact and conclusions of law, it is ORDERED that the following portions of the proposed revisions to Chapter

16C-20, Florida Administrative Code, are declared to be an invalid exercise of

delegated legislative authority:

1. the words "to the greatest degree practicable" in proposed rule 16C- 20.0011(1);

   
   

2. proposed rule 16C-20.0015(11);

c. proposed rule 16C-20.0075, (2), (3), and (5);

1. the last sentence in proposed rule 16C-20.002(2);

   
   

2. proposed rule 16C-20.002(5)(b); and

   
   

3. the first and second sentences in proposed rule 16C-20.0035(1)(c).

DONE AND ORDERED this 19th day of July, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1993.

APPENDIX TO FINAL ORDER, CASE NO. 93-1629RP

Petitioners:

1. Partially accepted in finding of fact 2.

2. Partially accepted in finding of fact 3. 3-4. Partially accepted in finding of fact 4.

5-14. Partially accepted in findings of fact 7-12. 15-18. Partially accepted in findings of fact 21-24. 19-21. Partially accepted in findings of fact 25-27.

1. Partially accepted in findings of fact 45-46.

2. Covered in preliminary statement.

24-28. Partially accepted in finding of fact 44.

29. Partially accepted in findings of fact 14-18. 30-33. Partially accepted in findings of fact 44-46. 34-46. Partially accepted in findings of fact 37-38. 47-48. Partially accepted in finding of 29.

49. Partially accepted in finding of fact 27. 50-53. Partially accepted in finding of fact 35.

1. Partially accepted in finding of fact 42.

2. Rejected as being irrelevant or cumulative.

3. Partially accepted in finding of fact 35.

57-59. Partially accepted in findings of fact 19 and 20. Respondent:

7. Rejected as being unnecessary.

8-11. Partially accepted in findings of fact 7-12.

12-19. Partially accepted in findings of fact 3 and 4. 20-23. Partially accepted in findings of fact 21-24.

24-32. Partially accepted in findings of fact 14-18. 33-36. Partially accepted in finding of fact 35.

1. Partially accepted in finding of fact 17.

2. Rejected as being unnecessary.

3. Partially accepted in finding of fact 6.

4. Partially accepted in finding of fact 40. 41-42. Partially accepted in finding of fact 26.

1. Partially accepted in finding of fact 40.

2. Partially accepted in finding of fact 37.

3. Partially accepted in finding of fact 5.

4. Partially accepted in finding of fact 42.

47-52. Partially accepted in findings of fact 44-46.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, cumulative, not supported by the more credible evidence, or a conclusion of law.

COPIES FURNISHED:

Sandra P. Stockwell, Esquire Post Office Box 11059 Tallahassee, FL 32302

L. Kathryn Funchess, Esquire Patricia V. Kingcade, Esquire 3900 Commonwealth Boulevard Mail Station 35

Tallahassee, FL 32399-3000

V. Carroll Webb, Director

Joint Administrative Procedures Committee Holland Building, Room 120

Tallahassee, FL 32399-1300

Liz Cloud, Chief

Bureau of Laws and Administrative Code The Capitol, Room 1802

Tallahassee, FL 32399-0250

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 30 days of rendition of the order to be reviewed.

================================================================= DISTRICT COURT OPINION

=================================================================

IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

AMERAQUATIC, INC., a NOT FINAL UNTIL TIME EXPIRES TO

Florida business APPLIED FILE MOTION FOR REHEARING

corporation; AND DISPOSITION THEREOF IF FILED AQUATIC MANAGEMENT, INC.,

a Florida business CASE NO. 93-2619 corporation; AQUATIC DOAH CASE NO. 93-1629RP

SYSTEMS, INC., a Florida business corporation; BOLIDEN INTERTRADE, INC., a

foreign corporation authorized to do business in the state of Florida; and APPLIED BIOCHEMISTS,

INC., a foreign corporation authorized to do business in the state of Florida,

Appellants,

STATE OF FLORIDA, DEPARTMENT OF NATURAL RESOURCES,

Appellee.

/ Opinion filed February 7, 1995.

An appeal from an order of the Department of Natural Resources. Sandra P. Stockwell of Stowell, Anton & Kraemer, Tallahassee, for Appellants.

L. Kathryn Funchess and Patricia V. Kingcade, Department of Environmental Protection, Tallahassee, for Appellee.

DAVIS, J.

Appellants, Ameraquatic, Inc., Applied Aquatic Management, Inc., Aquatic Systems, Inc. and Boliden Intertrade, Inc. appeal an order by a hearing officer of the Division of Administrative Hearings determining the validity of proposed revisions to Chapter 16C-20, Florida Administrative Code. The Department of Natural Resources ("DNR") has filed a cross-appeal.

Appellants challenged DNR's proposed revisions to Chapter 16C- 20. Chapter 16C-20 sets forth DNR's aquatic plant management policies and regulates the application of herbicides for plant control in aquatic systems. Appellants

challenged the proposed revisions to Chapter 16C-20 as an unlawful exercise of delegated legislative authority. Appellants alleged that DNR's proposal to regulate herbicides used in the chemical control of aquatic plants exceeded the scope of DNR's rulemaking authority; that DNR's provisions for herbicide selection and application review reserved unbridled discretion to DNR; and that DNR's proposal to regulate aquatic plant control activities in privately-owned waters was overbroad. After an evidentiary hearing, the hearing officer entered a final order determining that Chapter 16C-20 was valid in part and invalid in part. The hearing officer severed the invalid provisions.

On appeal, appellants argue that section 369.20(7), Florida Statutes and section 369.22(12), Florida Statutes, are invalid delegations of legislative power. Appellants also argue that the hearing officer erred in ruling (1) that DNR could regulate the use of pesticides under its statutory grant to regulate aquatic plant control activities; (2) that proposed rules 16C-20.0045(2) and 16C- 20.0055(1)(a)5 are valid exercises of delegated legislative authority; and

1. that DNR'S authority to regulate aquatic plant control activities extends to privately-owned water bodies.

   
   

   On cross-appeal, DNR asserts that the hearing officer erred in ruling (1) that proposed rule 16C-20.0015(11) modified the implementing statute and is therefore an invalid exercise of delegated legislative authority; (2) that portions of proposed rules 16C-20.002(2), 16C-2Q.0035(1)(a) and 16C- 20.0035(1)(c) are invalid exercises of delegated legislative authority; (3) that proposed rule 16C-20.0075(2) is an invalid exercise of delegated legislative authority; and (4) that Boliden Intertrade Inc. had standing to participate in the rules challenge proceeding.

   
   

   We hold that the hearing officer erred in ruling that proposed rule 16C- 20.0015(11) modified the implementing statute and is therefore an invalid exercise of delegated legislative authority. We also hold that the hearing officer erred in ruling that proposed rule 16C-20.0035(1)(a) and a portion of proposed rule 16C- 20.0035(1)(c) are arbitrary and capricious. we find no merit to the issues raised by appellants nor to the ether issues raised on cross- appeal by DNR, and therefore affirm as to those issues.

   
   

   Appellants argue that section 369.20(7), Florida Statutes and section 369.22(12), Florida Statutes, are invalid delegations of legislative power because the statutes delegate unbridled discretion to DNR to define and weigh criteria and standards regulating aquatic weed control activities. Section 369.20(7), Florida Statutes (1991), provides:

   
   

   No person or public agency shall control, eradicate, remove, or otherwise alter any aquatic weeds or plants in waters of the state unless a permit for such activity has been issued by the department, or unless the activity is in waters expressly exempted by department rule. The department shall develop standards by rule which shall address, at a minimum, chemical, biological, and mechanical control activities; an evaluation of the benefits of such activities to the public; specific criteria recognizing the differences between natural and artificially created waters; and the different amount and quality of littoral vegetation on various waters.

   Applications for a permit to engage in aquatic plant control activities shall be made to the department. In reviewing such applications, the department shall consider the criteria set forth in subsection (2).

   
   

   The language of section 369.22(12) is identical to that of section 369.20(7), except that section 369.22(12) addresses the control of nonindigenous aquatic plants.

   
   

   We hold that section 369.20(7), Florida Statutes and section 369.22(12), Florida Statutes, are valid delegations of legislative power. The legislature may not delegate the power to enact a law or to declare what the law shall be, or to exercise an unrestricted discretion in applying a law. Conner v. Joe Hatton, Inc., 216 So.2d 209, 210 (Fla. 1968). The legislature may perform its function by laying down policies and establishing standards while leaving to agencies the making of subordinate rules within prescribed limits and the determination of facts to which the policy, as declared by the legislature, is to apply. Husband v. Cassel, 130 So.2d 69, 71 (Fla. 1961). The fact that some authority, discretion or judgment is necessarily required to be exercised in carrying out a purely administrative or ministerial duty imposed by a statute, does not invalidate the statute. Conner, 216 So.2d at 210. Although the legislature is obliged by the nondelegation doctrine to establish adequate standards and guidelines, the drafting of detailed or specific legislation may not always be practical or desirable. State, Dep't of Citrus v. Griffin, 239 So.2d 577, 581 (Fla. 1970); Microtel Inc. v. Florida Pub. Serv. Comm'n, 464 So.2d 1189, 1191 (Fla. 1985). Under such circumstances, subordinate functions may be transferred by the legislature to permit administration of legislative policy by an agency with the expertise and flexibility needed to deal with complex and fluid conditions. Id.

   
   

   In the present case, the legislature articulated its policy with regard to the control of nonindigenous plants in section 369.22(3), Florida Statutes. In section 369.22(3), the legislature recognized that the uncontrolled growth of nonindigenous aquatic plants in the waters of Florida poses a variety of environmental, health, safety and economic problems. The legislature acknowledged the responsibility of the state to cope with the uncontrolled and seemingly never-ending growth of nonindigenous aquatic plants in the waters throughout Florida. Section 369.22(3) provides that it is the intent of the legislature that the state policy for the control of nonindigenous aquatic plants in waters of state responsibility be carried out under the general supervision and control of DNR. Section 369.22(3) further provides that it is the intent of the legislature that the control of nonindigenous aquatic plants be carried out primarily by means of maintenance programs, rather than eradication or complaint spray programs.

   
   

   The legislature provided minimum standards and guidelines in section 369.20(2) and section 369.22(4). Section 369.20(2), Florida Statutes (1991), provides:

   
   

   The Department of Natural Resources shall direct the control, eradication, and regulation of noxious aquatic weeds and direct the research and planning related to these activities, as provided in this section, excluding the authority to use fish as a biological control agent, so as to protect

   human health, safety, and recreation and, to the greatest degree practicable, prevent injury to plant and animal life and property.

   
   

   Section 369.22(4), Florida Statutes (1991), provides:

   
   

   The department shall supervise and direct all maintenance programs for control of nonindigenous aquatic plants, as provided in this section, excluding the authority to use fish as a biological control agent, so as to protect human health, safety, and recreation and, to the greatest degree practicable, prevent injury to plant, fish, and animal life and to property.

   
   

   The record shows that each permit to control aquatic plants is site specific. There are over 7,700 lakes of greater than ten acres in size and probably over 300,000 ponds in Florida. There is a tremendous diversity among lakes and numerous variables to consider in setting up an aquatic management plan. Given the numerous factors involved in the control of aquatic weeds and plants, we hold that more detailed or specific legislation, as proposed by appellants, would not be practical.

   
   

   Appellants argue that the hearing officer erred in ruling that DNR could regulate the use of pesticides under its statutory grant to regulate aquatic plant control activities because section 487.051(2) vests exclusive jurisdiction in the Department of Agriculture and Consumer Services ("DACS"). Section 487.051(2), Florida Statutes (Supp. 1992), provides, in part:

   
   

   This chapter is intended as comprehensive and exclusive regulation of pesticides in this state. Except as provided in Chapters 373, 376, 388, 403, and 482, or as otherwise provided by law, no agency, commission, department, county, municipality, or other political subdivision of the state may adopt laws, regulations, rules, or policies pertaining to pesticides, including their registration, packaging, labeling, distribution, sale, or use. .

   
   

   Appellants argue that DNR lacks the authority to regulate pesticide use under the as otherwise provided by law exception to section 487.051(2). Appellants further assert that DNR's authority to regulate the use of pesticides under section 403.088(1) pursuant to an interagency agreement with the Florida Department of Environmental Regulation is limited to requiring that the product be registered and that the applicator follow the instructions on the registered label or other state standards.

   
   

   In ruling that DNR has the authority to regulate pesticide use under its statutory grant to regulate aquatic plant control activities, the hearing officer recognized the "or as otherwise provided by law" exception in section 487.051(2). The hearing officer concluded that, because section 369.20(7) authorizes DNR to develop standards which address, at a minimum, chemical, biological and mechanical control activities, the legislature obviously intended that DNR could address the use of herbicides insofar as herbicides are used to

   control, eradicate and regulate noxious aquatic weeds. Since DNR is authorized to regulate pesticide use only to the extent that such agents are used in aquatic plant control, and because DNR's authority does not overlap with the authorization given to DACS in Chapter 487, we agree with the hearing officer's ruling that DNR is statutorily authorized to regulate herbicide use under the "as otherwise provided by law" exception of section 487.051(2).

   
   

   Appellants argue that proposed rules 16C-20.0045(2) and 16C-20.0055(1)(a)5 are invalid exercises of delegated legislative authority because the rules reserve unbridled discretion in DNR to define and weigh criteria regulating aquatic weed control activities. Proposed rule 16C-20.0045(2) provides:

   
   

   In determining whether a permit shall be issued for aquatic plant management purposes, the department shall consider the following criteria:

   1. The noxious aquatic plant species present and the potential of the target plants to create adverse effects.

   2. The amount and quality of the aquatic plants within the waterbody and the proposed management site, and their importance to biological communities that are utilizing them.

   3. The positive or adverse impacts of the aquatic plant management activities on public interest considerations such as:

      1. Health and safety of the public.

      2. Navigation.

      3. General public's access to, or use of, the waterbody.

      4. Riparian property owners' access to, or use of, the waterbody.

      5. Swimming, fishing or other recreational activities.

      6. Water flow or the potential for flooding.

   4. The positive or adverse impacts of the aquatic plant management activities on fish and wildlife considerations such as:

      1. Endangered or threatened species, species of special concern, or their prey species and habitat.

      2. The potential of the management activities to improve habitat for

         the production of fish and wildlife, including non-game species.

      3. The potential of the plant management activities to increase or improve native aquatic plant species diversity.

   5. The positive or adverse impacts of the proposed aquatic plant

      management activities on water quality considerations such as:

      1. Native plant coverage which may protect or improve water quality.

      2. Native plant coverage which may prevent or reduce shoreline erosion and runoff.

      3. Nutrient levels, dissolved oxygen levels, deposition of organic

      matter, herbicide residues or other impacts on water quality outside of the control area designated by the department.

   6. The protection of the receiving waterbodies consistent with the classes of surface waters

      established pursuant to Chapter 17- 302, F.A.C.

   7. The potential of the proposed activity to spread noxious aquatic plants, or to promote the survival and growth of native aquatic plants.

We agree with the hearing officer's conclusion that, because the criteria set forth in proposed rule 16C-20.0045(2) generally track section 369.20, Florida Statutes, the rule does not contravene the implementing statute or exceed DNR's rulemaking authority. We further agree with the hearing officer's conclusion that the criteria are precise and understandable.

The record contains competent substantial evidence to support the hearing officer's conclusion that the assignment of specific weight to each criterion, as suggested by appellants, would be impractical. The record shows that there are more than 7,700 natural lakes in Florida which are greater than ten acres in size, and that, when man-made systems are added, there are hundreds of thousands of lakes. Mr. Caton, the environmental administrator for the permitting section of the Bureau of Aquatic Plant Management of DNR, testified that the issuance of permits by DNR is site specific. Mr. Caton did not believe that it was possible to more narrowly define the criteria because there are many variables in the environment that must be considered in setting up an aquatic plant management plan. Mr. Caton explained that there is no way one can list all the variables and their interactions in a rule - because there are too many things to consider.

Proposed rule 16C-20.0055(1)(a)5 provides:

When more than one herbicide is registered for use in an aquatic site, the department shall require the use of the herbicide which it determines has the least adverse effect upon human health, safety, recreational uses, non- target plants, fish, and wildlife. In determining which herbicide shall be used, the following criteria shall be considered:

1. Which herbicide will provide the greatest protection to human health, safety, and recreational uses.

2. Which herbicide will provide the greatest protection to non-target plant and animal life.

3. Which herbicide will be most effective at controlling the targeted species.

DNR concedes that, in determining which herbicide is most appropriate for a given site, DNR will be restricted to reviewing product label requirements and will not engage in independent toxicologic research and testing. Further, DNR will continue its existing practice of allowing the herbicide selection decision to be made by a DNR regional biologist in consultation with the Tallahassee office.

The record shows that it is not unusual for more than one herbicide to be registered for uses that may be appropriate for a particular site. Thus, there is a clear need for DNR to determine which herbicide is most appropriate for a given site. As noted in the hearing officer's order, because most registered aquatic herbicides have some type of use restriction, DNR will evaluate each registered herbicide to see which product provides "the greatest protection to human health, safety and recreational uses," or provides "the greatest protection to non-target plant and animal life," or which is the "most effective at controlling the targeted species." For example, an applicator may request to use a herbicide that would prevent the public from fishing for food in that waterbody for a specified number of days. If another registered product can effectively control the plants without such a restriction, DNR would approve the second product on the ground it provided "the greatest protection to human health." Similarly, if water hyacinths are intermixed with bulrush, a beneficial native plant used for fisheries, DNR would approve a herbicide that kills the water hyacinths but does not harm the bulrush. This decision would conform with the requirement that the herbicide selected offer "the greatest protection to non-target plant(s)." Finally, if a registered product is the only one that will control the targeted plant, under the last criterion DNR would have to take this factor into account in approving one of several registered products.

Given the numerous factors involved in the control and eradication of aquatic weeds and plants, we hold that a weighing of criteria, as proposed by appellants, would not be practical. We agree with the hearing officer's ruling that, because the criteria in proposed rule 16C-20.0055(1)(a)5 track the language in section 369.20, Florida Statutes, the rule does not exceed the statutory authorization or enlarge, modify or contravene the statute.

On cross-appeal, DNR argues that the hearing officer erred in ruling that the definition of "eradication program" set forth in proposed rule 16C- 20.0015(11) modifies the implementing statute and is therefore an invalid exercise of delegated legislative authority. The hearing officer found that, because section 369.20 directs DNR to control all noxious plants whether indigenous or not, the definition of "eradication program" in the proposed rule dealing only with nonindigenous plants, is a modification of the implementing statute. Proposed rule 16C-20.0015(11) defines "eradication program" as the following:

'Eradication program' means a method for the control of non-indigenous aquatic plants in which control techniques are utilized in a

coordinated manner in an attempt to kill all the target aquatic plants on a permanent basis in a given geographical area.

Section 369.22(2)(e) ,Florida Statutes(1991), the implementing statute, defines "eradication program" as the following:

An 'eradication program' is a method for the control of nonindigenous aquatic plants in which control techniques are utilized in a coordinated manner in an attempt-to kill all the aquatic plants on a permanent basis in a given geographical area.

Since DNR tracked the language of the implementing statute virtually verbatim, we hold that the limitation of "eradication program" to include only nonindigenous aquatic plants is not an invalid exercise of delegated legislative authority.

DNR argues that the hearing officer erred in ruling that the last sentence of proposed rule 16C-20.002(2) is arbitrary and capricious and is therefore an invalid exercise of delegated legislative authority. Proposed rule 16C- 20.002(2) provides:

Permits issued pursuant to this chapter are not intended to allow for the collection and subsequent use of the removed plants, unless specifically provided for in the permit conditions. As a condition of the permit, any aquatic plants removed pursuant to n aquatic plant control permit may be required to be relocated in the control area to maintain habitat or for other environmental benefits.

We hold that the hearing officer's ruling that the last sentence of proposed rule 16C-20.002(2) is arbitrary and capricious is supported by competent substantial evidence in the record. The hearing officer concluded that DNR relied upon literature, not identified in the record, to support its theory that a correlation exists between aquatic vegetation and the fish population, and the rule is based on this correlation.

Appellants presented the testimony of Dr. Canfield, Dr. Haller and Mr.

Griffiths to dispute this theory. Dr. Canfield, a professor at the University of Florida with a specialty in limnology, testified that he participated in a research study of approximately 60 lakes which examined the relationship between aquatic plants and fish and determined the amount of vegetation that should remain in a controlled area. Dr. Canfield concluded that there was no relationship between aquatic macrophytes and fish, and that there might be other factors which affect the fish population. Dr. Canfield further concluded that there was no strong correlation between aquatic macrophytes and the bird population around lakes. Dr. Haller, a faculty member in the agronomy department at the University of Florida, testified that over the past 20 years, revegetation has not been a common practice and has not been necessary. Dr.

Haller explained that, after vegetation is removed, wave action frequently causes native vegetation to return to the site. Dr. Haller believed that it is a hardship on homeowners to require revegetation when there is no evidence indicating that revegetation is beneficial. Mr. Griffiths, the district manager

for Lake Management District, testified that in Polk County the clearing of lake fronts has not resulted in the destruction of the environment in that portion of the lake. Mr. Griffiths noted that although the wildlife in the area may change, the clearing of lake fronts had not resulted in a lack of wildlife in the cleared area.

The testimony of these three witnesses constitutes direct evidence repudiating DNR's underlying basis for the rule. Because DNR did not adduce any evidence to the contrary other than literature not made part of the record, there is no error in the hearing officer's ruling.

DNR argues that the hearing officer erred in ruling that the last sentence of proposed rule 16C-20.0035(1)(a) is arbitrary and capricious. Proposed rule 16C-20.0035(1)(a) provides:

No aquatic plant control permit is required by the department for the following waters:

(a) Waters wholly owned by one person, other than the state, provided there i5 no connection to Waters of Special Concern.

DNR asserts that testimony concerning the various uses of waterbodies supports an inference that waters owned by one person should be treated differently than waters owned by multiple owners. In ruling that proposed rule 16C-20.0035(1)(a) is arbitrary and capricious, the hearing officer concluded that the record did not contain any evidence to support a distinction between waters owned by one person and waters not owned by one person. we hold that the hearing officer erred in ruling that proposed rule 16C- 20.0035(1)(a) is arbitrary and capricious. Section 369.20(7) and section 369.22(12) authorize DNR to make exemptions to the permitting requirement. In addition to statutory authorization for the exemption, the record contains testimony concerning the competing uses of waterbodies and how these uses must be taken into consideration in aquatic plant control management. There was also testimony regarding the impact of herbicides upon certain uses and how certain activities, such as swimming, fishing and irrigation may be restricted by the application of certain products. If a waterbody is owned, by a single owner, there are no competing uses, nor would there be the same level of concern or need for regulation.

DNR argues that the hearing officer erred in ruling that the first and second sentences of proposed rule 16C-20.0035(1)(c) are arbitrary and capricious. Proposed rule 16C-20.0035(1)(c) provides, in part:

No aquatic plant control permit is required by the department for the following waters:

(c) In all waters, except aquatic preserves designated in Chapter 258, where riparian owners

physically or mechanically remove aquatic plants to create an access corridor of sufficient length waterward from the shore to allow access for a boat or swimmer to reach open water. This access corridor shall not exceed a total of

25 feet in width. . .

DNR asserts that references in the record to the adverse effects of herbicides on wildlife and fish support the exemption for the removal of aquatic plants by physical or mechanical means in creating an access corridor. The hearing officer found that there was no record basis to support the allowance for the removal of aquatic plants in the 25 foot corridor by physical or mechanical means, but not by chemical means.

We find no error in the ruling that this rule is invalid to the extent that it excludes removal of aquatic plants by chemical means. Dr. Haller testified that he participated in a three-year study which evaluated grass carp, mechanial harvesting and the use of herbicides on fish populations in 24 experimental ponds in Florida. He further testified that there is no scientific basis for an exemption for mechanical removal of aquatic plants, but not for removal by chemical means because research shows that the mechanical removal of aquatic weeds kills a significant number of fish, invertebrates and snails which would have an opportunity to leave the area if chemicals are used. Dr. Haller's testimony was not rebutted by DNR and is the only evidence on this issue.

DNR further argues that the hearing officer erred in striking the exemption for 25 foot access corridors. The hearing officer found that the 25 foot access corridor exemption was not supported by facts or logic because a 25 foot access corridor was unreasonably small. We agree with DNR that the 25 foot access corridor exemption is logically based and has not been shown to be arbitrary and capricious. Therefore, we reverse that ruling. /1

We have examined the remaining issues raised in the appeal and cross-appeal and find them to be without merit. Accordingly, we reverse the hearing officer's rulings that proposed rule 16C- 20.0015(11) is an invalid exercise of delegated legislative authority and that proposed rule 16C-20.0035(1)(a) and a portion of proposed rule 16C-20.0035(1)(c) are arbitrary and capricious. We affirm the hearing officer's order in all other respects.

ZEHMER, C.J., and BOOTH, J., CONCUR.

ENDNOTE

1/ Although an access corridor of 25 feet is logically based, we recognize that the exception to the aquatic plant control permit requirement created by proposed rule 16C-20.0035(1)(c) must fail because the proposed rule provides only for the removal of aquatic plants by physical or mechanical means.

Docket for Case No: 93-001629RP

Orders for Case No: 93-001629RP