STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
FLORIDA ELECTRIC POWER ) COORDINATING GROUP, INC., THE ) FLORIDA CHAMBER OF COMMERCE, INC., ) FLORIDA FARM BUREAU FEDERATION, ) ASSOCIATION OF FLORIDA )
COMMUNITY DEVELOPERS, and ) FLORIDA HOME BUILDERS ASSOCIATION, )
)
Petitioners, )
and )
) FLORIDA ENGINEERING SOCIETY, INC., )
)
Intervenor, )
vs. ) CASE NO. 94-2722RU
) SUWANNEE RIVER WATER MANAGEMENT ) DISTRICT, ST. JOHNS RIVER WATER ) MANAGEMENT DISTRICT, SOUTHWEST ) FLORIDA WATER MANAGEMENT DISTRICT, ) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, and DEPARTMENT OF )
ENVIRONMENTAL PROTECTION, )
)
Respondents. )
) GERALD M. WARD, )
)
Petitioner, )
and )
) FLORIDA ENGINEERING SOCIETY, INC., )
)
Intervenor, )
vs. ) CASE NO. 94-2930RP
) SOUTH FLORIDA WATER MANAGEMENT ) DISTRICT, )
)
Respondent. )
) FLORIDA PHOSPHATE COUNCIL, INC., )
)
Petitioner, )
and )
FLORIDA ENGINEERING SOCIETY, INC., )
)
Intervenor, )
)
vs. ) CASE NO. 94-2935RP
) SUWANNEE RIVER WATER MANAGEMENT )
DISTRICT, ST. JOHNS RIVER WATER ) MANAGEMENT DISTRICT, SOUTH ) FLORIDA WATER MANAGEMENT DISTRICT, ) and DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondents. )
) ST. JOE PAPER COMPANY, and ) FLORIDA EAST COAST INDUSTRIES, ) INC., )
)
Petitioners, )
and )
) FLORIDA ENGINEERING SOCIETY, INC., )
)
Intervenor, )
vs. ) CASE NO. 94-2936RP
) SUWANNEE RIVER WATER MANAGEMENT ) DISTRICT, ST. JOHNS RIVER WATER ) MANAGEMENT DISTRICT, SOUTH ) FLORIDA WATER MANAGEMENT DISTRICT, ) and DEPARTMENT OF ENVIRONMENTAL ) PROTECTION, )
)
Respondents. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Susan B. Kirkland, held a formal hearing in this case from September 26 through 30, 1994, in Tallahassee, Florida and from October 3 through 7, 1994, in Orlando, Florida.
APPEARANCES
For Petitioners: Frank E. Matthews, Esquire Florida, et al Carolyn S. Raepple, Esquire
Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314
For Petitioners: William L. Hyde, Esquire
St. Joe Paper Gunster, Yoakley & Stewart, P.A. Company and 215 North Adams Street
Florida East Tallahassee, Florida 32301 Coast Industries, Inc.
For Petitioner: Lawrence N. Curtin, Esquire Florida Holland & Knight
Phosphate Post Office Drawer 810 Council, Inc. Tallahassee, Florida 32302
For Petitioner: Gerald M. Ward, Pro Se
Gerald M. Ward 31 West 20th Street, Suite 202
Post Office Box 10441
Riveria Beach, Florida 33419
For Respondent: Robert G. Gough, Esquire Department of Assistant General Counsel
Environmental Department of Environmental Protection Protection 2600 Blair Stone Road, Mail Station 35
Tallahassee, Florida 32399-2400
For Respondent: John Fumero, Esquire, General Counsel South Florida South Florida Water Management District Water Management Post Office Box 24680
District West Palm Beach, Florida 33416
For Respondent: Edward B. Helenston, Esquire Southwest Florida Assistant General Counsel
Water Management Southwest Florida Water Management District District
2379 Broad Street
Brooksville, Florida 36409-6899
For Respondent: Kathryn Mennella, Esquire
St. Johns River St. Johns River Water Management District Water Management Office of General Counsel
District Post Office Box 1429 Palataka, Florida 32178-1429
For Respondent: David Fisk, Assistant Executive Director Suwannee River Suwannee River Water Management District Water Management Route 3, Box 64
District: Live Oak, Florida 32060 STATEMENT OF THE ISSUES
Whether the following proposed rules are invalid exercises of delegated legislative authority as defined in Subsection 120.52(8), Florida Statutes:
1. Rules 40E-400.417(1)(c), 40E-400.427(1)(b), 40E-431.(1)(g), 40E-
400.475(1)(a), (b), 40E-400.483, and 40E-400.487.
Subsections 4.2.4.3(f), (g), (h), (i) of the South Florida Water Management District's Basis of Review.
Subsection X.2.7(a) of Suwannee River Water Management District's Applicant's Handbook: Environmental Resource Permitting, St. Johns River Water Management District's Applicant's Handbook: Management and Storage of Surface Waters, and South Florida Water Management District's Basis of Review.
Subsection X.2.7(b) of Suwannee River Water Management District's Applicant's Handbook: Environmental Resource Permitting, St. Johns River Water Management District's Applicant's Handbook: Management and Storage of Surface Waters, and South Florida Water Management District's Basis of Review.
Subsection X.3.2.2 of Suwannee River Water Management District's Applicant's Handbook: Environmental Resource Permitting, St. Johns River Water
Management District's Applicant's Handbook: Management and Storage of Surface Waters, and South Florida Water Management District's Basis of Review.
6. Rules 62-330.200(1)(d), 62-330.200(2)(h), and 62-330.200(4)(b).
PRELIMINARY STATEMENT
Petitions challenging the validity of rules proposed by South Florida Water Management District (SFWMD), Southwest Florida Water Management District (SWFWMD), St. Johns River Water Management District (SJRWMD), and Suwannee River Water Management District (SRWMD) (Districts) and the Department of Environmental Protection (Department) were filed on May 12, 1994, by Sierra Club (Sierra); on May 13, 1994, by Sun City Center Corp., Walden Lake, Inc., and Walden Woods Business Center, Ltd., (referred to collectively herein as "Sun City"), Florida Electric Power Coordinating Group, Inc., the Florida Chamber of Commerce, Florida Farm Bureau Federation, Association of Florida Community Developers, and Florida Home Builders Association; on May 26, 1994, by Gerald M. Ward (Ward); on May 27, 1994, by VOH Acquisitions, Inc., Sun City Center Corporation, and BSM Marina, Inc. (referred to collectively herein as "VOH"), Marine Industries Association of Palm Beach County, Inc., Old Slip Marina, J.H. Sprague Enterprises, Inc. (referred to herein collectively as "Marine Industries"), Florida Phosphate Council, Inc. (Phosphate), St. Joe Paper Company and Florida East Coast Industries, Inc. (referred to herein collectively as "St. Joe"). On May 27, 1994, an amended petition was filed by Florida Electric Power Coordinating Group, Inc., the Florida Chamber of Commerce, Inc., Florida Farm Bureau Federation, Association of Florida Community Developers, and Florida Home Builders Association.
All parties agreed to waive the 30-day requirement of Section 120.54(4)(e), Florida Statutes. On June 16, 1994, all of the cases were consolidated and set for final hearing from September 26 through October 7, 1994.
On July 11, 1994, the Florida Engineering Society, Inc. filed a petition for leave to intervene in the consolidated cases. Intervention was granted on August 1, 1994.
During September 1994, and prior to the commencement of the final hearing, Marine Industries, VOH, Sun City, and Sierra filed notices of withdrawal or voluntary dismissal of their petitions. Additionally on September 12, 1994, St. Joe filed a notice of partial voluntary dismissal, dismissing its challenge to the noticed general permits proposed in Rules 40B-400.485, 40C-400.485, 40E- 400.485, 17-341.485, 40B-400.487, and 40E-400.487, Florida Administrative Code.
Requests for Official Recognition were filed by SJRWMD on July 29, 1994, and SFWMD on August 1, 1994. By Order entered August 22, 1994, these requests were granted as to existing statutes and rules, but denied as to documents which are incorporated by reference, but not published, in the Florida Administrative Code. SWFWMD filed a Request for Official Recognition on August 31, 1994. By Order entered September 14, 1994, this request was granted. On September 15, 1994, SRWMD filed a Request for Official Recognition. This request was granted by the hearing officer at the commencement of the formal hearing. The Request for Official Recognition filed by the Department on September 20, 1994, was also granted at the commencement of the formal hearing. Petitioners, Florida et al., 1/ filed a Request for Official Recognition on September 26, 1994. This request was granted by the hearing officer on September 28, 1994.
During the final hearing, the parties settled the challenge to Rule 3.1.0, SWFWMD's Basis of Review and its incorporation by reference in Rule 17- 330.200(3)(e), Florida Administrative Code, based upon a revision to the proposed "no net loss" provision approved by the SWFWMD Governing Board on September 28, 1994. Also during the final hearing Petitioner Ward stipulated that challenge to Rule 4.2.4.3(i) based upon alleged duplication with 40 CFR 129 and 40 CFR 162 was dismissed. Additionally, on September 30, 1994, a Supplemental Joint Stipulation was executed settling all challenges to the permit condition regarding submittal of final operation and maintenance documents proposed in Rules 40B-400.115(1)(h), 40C-4.381(1)(h), and 40E- 4.381(1)(i), Florida Administrative Code.
In support of its petition, Florida et al. presented the testimony of the following expert witnesses: Dr. W. Michael Dennis, Robert W. Higgins, J. Steve Godley, Marcelle Anne Kinney, John Simpson, R.S. Murali, Victor Poteat, Stuart Bradow, and Ralph Bingham. Florida et al. also presented the testimony of Jeffrey Elledge and Janet Llewellyn. Florida et al.'s Exhibits 12-14, 17, 29- 31, 50, 52-54, 57, 63-64, 65, 66, 68-72, 84, 85, 92, 93, 98, 104, 125, 126, and
128A were admitted into evidence.
St. Joe presented no witnesses. St. Joe's Exhibits 9, 13-A, 13-K, 13-N, 13-I, and 13-O were admitted into evidence.
Phosphate offered no witnesses and no exhibits.
Ward testified in his own behalf. Ward's Exhibits W8, W13, W16, W20, W21, W23-A, and W-23B were admitted into evidence.
The Respondents presented the following expert testimony: Jeffrey Elledge, Janet Llewellyn, Patrick Mark Rose, Terrie Bates, Dr. Joseph M. Schaeffer, and Richard McLean. Respondents' Exhibits 1-3, 6-8, 10-28, 31, 33, 35-37, 40-43,
, 50-70 were admitted into evidence. Additionally Respondents' Exhibits 29, 30, and 32 were accepted into evidence as Joint Exhibits for Petitioners, Intervenors, and Respondents.
On October 17, 1994, the transcript of that portion of the final hearing conducted during September 26-30, 1994, was filed. On November 2, 1994, the transcript of that portion of the final hearing conducted during October 3-7, 1994, was filed. The parties timely filed their proposed recommended orders on December 19, 1994.
By Order dated March 30, 1995, Petitioners' motion to stay the proceedings until April 4, 1995, in order to allow the parties to reach an amicable resolution was granted. By later Order the consolidated cases were further stayed until April 7, 1995, at the request of all parties.
On April 6, 1995, Petitioners, Florida Electric Power Coordinating Group, Inc., The Florida Chamber of Commerce, Inc., Florida Farm Bureau Federation, Association of Florida Community Developers, Florida Home Builders Association, Florida Phosphate Council, Intervenor, The Florida Engineering Society, Inc., and Respondents entered into a settlement agreement of all claims and issues raised by these Petitioners and Intervenor in the consolidated cases. On the same date Petitioners, St. Joe Paper Company and Florida East Coast Industries, Inc., entered into a settlement agreement settling all claims and issues raised by these Petitioners with the exception of a challenge to three proposed rule provisions, which proposed rules and the grounds for challenge were stated in the settlement agreement. The parties requested that further proceedings be
stayed until May 1, 1995, to allow the governing boards of the water management districts and the Environmental Regulation Commission (ERC) to approve the rule changes that would effectuate the settlement agreement.
On May 1, 1995, the parties filed Parties' Joint Status Report, stating that the rule changes had been approved by the governing boards and the ERC and requesting that the Hearing Officer rule on the issues which had not been settled by the parties.
On May 12, 1995, Petitioners, Florida Electric Power Coordinating Group, Inc., Florida Farm Bureau Federation, Association of Florida Community Developers, Florida Homebuilders Association, and Intervenor Florida Engineering Society filed a Notice of Voluntary Dismissal in accordance with the settlement agreement filed on April 6, 1995. On May 12, 1995, Petitioners, St. Joe Paper Company and Florida East Coast Industries, Inc., filed a Notice of Partial Voluntary Dismissal in accordance with the terms of the settlement agreement filed April 12, 1995. On May 16, 1995, Petitioner, Florida Phosphate Council, filed a Notice of Voluntary Dismissal of Case No. 94-2935RP, in accordance with the settlement agreement filed on April 6, 1995.
By letter dated April 12, 1995, St. Joe set forth the provisions of its proposed findings of fact and conclusions of law which were applicable to the issues still to be resolved. On May 2, 1995, Respondents filed Respondents' Joint Identification of Proposed Findings of Fact and Conclusions of Law Which Require Resolution. On May 8, 1995, St. Joe filed Response of Petitioners St. Joe Paper Company and Florida East Coast Industries, Inc. to Respondents' Joint Identification of Proposed Findings of Fact and Conclusions of Law Which Require Resolution. On May 12, 1995, Respondents filed Respondents' Joint Reply to Petitioners' St. Joe Paper Co., and Florida East Coast Industries, Inc., Response to Respondents' Joint Identification of Proposed Findings and Conclusions Requiring Resolution. On May 17, 1995, St. Joe filed Addendum to Response of Petitioners St. Joe Paper Company and Florida East Coast Industries, Inc. A telephonic conference was held on June 6, 1995, to allow the parties to present argument as to the issues which remained to be resolved between St. Joe and Respondents.
Petitioner Ward did not enter into the settlement agreement; thus, those issues presented in Case No. 94-2930 are resolved in this Final Order.
The parties's proposed findings of fact are addressed in the Appendix to this Final Order.
FINDINGS OF FACT
BACKGROUND
In 1993, the Florida Legislature enacted Chapter 93-213, Laws of Florida, with the intent, among other things, to "develop a consistent state policy for the protection and mangement of the environment and natural resources," to "provide efficient governmental services to the public," and to "streamline governmental services, providing for delivery of such services to the public in a timely, cost-efficient manner."
One of the mechanisms contained in Chapter 93-213, Laws of Florida, to achieve this legislative intent was the consolidation of the Department of Environmental Protection's (Department) existing wetlands resource (a.k.a dredge and fill) regulatory program, which regulates dredging and filling in the waters
of the state, with the water management districts' (Districts) management and storage of surface water (MSSW) program, which regulates surface water management systems. These combined programs will be referred to as the "environmental resource permit" program (ERP Program).
The MSSW permitting program has been in place in the Districts for at least a decade, with South Florida Water Management District's (SFWMD) and St. Johns River Water Management District's (SJRWMD), district-wide program dating back to 1977 and 1983 respectively.
The Districts' MSSW permitting programs are similar. They require permits for surface water management systems proposed in either uplands or wetlands, unless exempted or below adopted permitting thresholds. Common examples of surface water management systems include: ditches, borrow pits, mines, buildings and parking lots.
The MSSW permitting programs all address water quantity issues such as flooding; water quality issues including stormwater treatment; and wetland protection issues. However, each agency's current permitting criteria are not identical and each District has adopted somewhat differing rules addressing permit required thresholds and permitting exemptions.
The current wetlands resource regulatory program covers dredge and fill activities in the waters of the state, i.e., surface waterbodies and wetlands connected, or contiguous to those waterbodies. Wetlands regulated under the current wetlands resource regulatory program are typically referred to as "contiguous wetlands." Waters of the state do not include isolated wetlands and uplands. There are fewer activities under the Wetland Resource Management (WRM) program than in the MSSW program. The existing WRM program does not deal with MSSW issues such as water quantity and stormwater quality treatment.
Under existing rules, proposed developments within a geographical jurisdiction of Suwannee River Water Management District (SRWMD), SJRWMD, Southwest Florida Water Management District (SWFWMD) and SFWMD often require both a MSSW permit and a WRM permit. Such a development would undergo MSSW permit review of the entire development site, while the WRM would focus on proposed dredging and filling in contiguous wetlands.
The permit review process for such a development currently involves submittal of both a MSSW permit application form and a WRM permit application form, each accompanied by an application fee. Existing rules establish different entities to receive notice of the two permit applications and different noticing procedures. If the applications are not complete, as is often the case, separate Requests for Additional Information (RAI) are then forwarded to the applicant. The RAI questions for MSSW and WRM applications are usually different, due to the different scope of the two permitting programs. The applicant responds separately to the RAIs and at this point, due to differing issues in the RAIs, the applicant often responds at different times. The impact of the proposed development is then reviewed under different MSSW and WRM criteria, and separate reports setting forth the two proposed agency actions are prepared. The permitting agency takes separate action on the applications, with two resulting points of entry for administrative hearings and potentially two such hearings. Additionally, different appeal processes are applicable. Finally, separate compliance activities are required for the two permits on the single development site.
Prior to the enactment of Chapter 93-213, Laws of Florida, the Districts and the Department were in the midst of an ongoing and voluntary joint rule development process designed to work toward the interagency goal of amending the differing MSSW rules and adopting one set of consistent, statewide MSSW rules. To that end, an interagency work group had been created and assigned the task of developing consistent water quantity, stormwater treatment, and environmental provisions for the MSSW rules.
This pre-1993 interagency work group had begun its task by gathering the existing MSSW rules of each District, dividing them by subject matter, and displaying them comparatively in "spread sheet" fashion. The group did not search for the most or least stringent requirement in the existing rules; rather the group sought to select the most common ground concepts which were based on the existing rules.
The goal of this pre-1993 joint rule development process was to achieve consensus among all the agencies regarding one set of statewide MSSW criteria.
With the passage of Chapter 93-213, section 30, Laws of Florida, codified at Section 373.414(9), Florida Statutes, the legislature directed the Districts and the Department to implement the ERP program.
The department and the governing boards, on or before July 1, 1994, shall adopt rules to incorporate the provisions of this section, relying primarily on the existing rules of the department and water management districts, into the rules governing the management and storage of surface waters. Such rules shall seek to achieve a statewide, coordinated and consistent
permitting approach to activities regulated under this part. Variations in permitting criteria in the rules of individual water management districts or the department shall only be provided to address differing physical or natural characteristics.
Such rules adopted pursuant to this subsection shall include the special criteria adopted pursuant to s. 403.061(29) and may include the special criteria adopted pursuant to s. 403.061(35). . . .
Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively. . . .
After the passage of Section 373.414(9), four interagency rule teams were created to draft rules: the mitigation banking team, the wetland delineation team, the ERP team, and the local government delegation team.
The ERP had two tasks: first, to fulfill the mandate of Subsection 373.414(9) by incorporating the dredge and fill provisions of Section 373.414 into the Districts' MSSW rules; second, to accomplish part of the pre-1993 interagency consistency goal by developing one set of MSSW rules addressing environmental issues.
The agencies decided to "fold into" the rulemaking process the environmental part of the voluntary pre-1993 consistency effort in order to have
a comprehensive package of environmental issues addressed at one time and to avoid confusion.
STANDING OF PETITIONER GERALD M. WARD
Petitioner, Gerald M. Ward (Ward), is a coastal and environmental engineer practicing in the fields of hydrographic and hydrodynamics, environmental permitting, water quality and shoreline processes. He is a registered professional engineer in the State of Florida and is licensed by the Department of Business and Professional Regulation.
As a professional engineer, Ward is regulated and controlled by Chapter 471, Florida Statutes, which regulates the practice of engineering.
Ward processes dredge and fill permits, water resource matters, water management permits and shoreline permits. He designs piers, ramps, riprap and other projects which would be governed by South Florida Water Management District's (SFWMD) proposed rules.
Sections of the proposed rules challenged by Ward would affect his design of or permit application process for projects included in sections 40E-
400.417 (boat ramp general permit), 40E-400.27(1)(b) (pier general permit), 40E- 400.431(1)(g) (riprap general permit), and Subsections 4.2.4.3.(f), (g), (h) and
(i) of SFWMD's Basis of Review (additional water quality considerations for docking facilities).
BOAT RAMP NOTICED GENERAL PERMIT
Ward has challenged SFWMD's boat ramp noticed general permit rule. The challenged rule provision is 40E-400.417(1)(c) which states:
A general permit is hereby granted to any person for construction, alteration, or mainten- ance of a boat ramp and the accessory docks provided:
* * * *
(c) the construction of a new boat ramp or the widening of an existing boat ramp which would increase the number of boat launching lanes does not occur in waters that are accessible to manatees in the following counties: Broward, Charlotte, Collier, Dade, Lee, Martin, Palm Beach, or St. Lucie, excluding the portions of those waters that are upstream of water control structures that preclude the passage of manatees, and inland waterbodies with no connection to coastal waters; however, the limiting provisions of this paragraph shall not apply to the construction of a new boat
ramp at a single family residence when the residence is not part of a larger plan of development proposed by the applicant.
The rule is proposed to implement Sections 373.118, 373.413, 373.416, and 373.426, Florida Statutes.
Ward challenges the rule on the basis that the rule enlarges and contravenes Section 370.12(2), Florida Statutes, and exceeds the authority in
Section 373.414(9), Florida Statutes, because it is not based on existing rules and the waters identified in paragraph 40E-400.417(1)(c) are more expansive than those listed in Section 370.12(2)(f), Florida Statutes.
Manatees use waters in Broward, Charlotte, Collier, Dade, Lee, Martin, Palm Beach and St. Lucie on a consistent and regular basis.
Rule 40E-400.417(1)(c) relates to a noticed general permit. A noticed general permit is an alternative to the standard general or individual permit for activities which have been determined to have minimal adverse impacts to the water resources of the district, both individually and cumulatively. For a noticed general permit the applicant submits to the water management district a Notice of Intent to Use a Noticed General Environmental Resource Permit along with the appropriate application fee. If the water management district does not determine within a specified time of receiving the application that the system does not qualify for a noticed general permit, the applicant may proceed with the intended activity. If the water management district notifies the applicant that the activity does not qualify for a noticed general permit, the applicant may apply for a standard general or individual permit.
In order to protect manatees, Section 370.12(f), Florida Statutes authorizes the Department of Environmental Protection to promulgate rules regarding the expansion of existing or construction of new marine facilities and mooring or docking slips and regulating the operation and speed of motorboat traffic only where manatee sightings are frequent and it can be generally assumed, based on available scientific information that they inhabit these areas on a regular or continuous basis. The statute specifies areas within certain counties in the state which manatees inhabit on a regular basis.
Section 373.118(1), Florida Statutes, authorizes the water management districts to:
[A]dopt rules establishing a general permit system under this chapter for projects, or categories of projects, which have, either singly or cumulatively, a minimal adverse impact on the
water resources of the district. Such rules shall specify design or performance criteria which, if applied, would result in compliance with the conditions for issuance of permits established in this chapter and district rules.
Rule 40E-400.417(1)(c) does not implement Section 370.12(2)(f), Florida Statutes. It sets forth a qualification for the granting of a noticed general permit for boat ramps. The rule does not preclude the permitting of boat ramps in the listed counties. Because manatees do use waters in the listed counties on a regular basis the water management district has determined that it cannot make a blanket determination in those counties that the construction of boat ramps will not individually or cumulatively have an adverse impact on manatees. The site of a boat ramp or docking facility is directly correlated with significant adverse impacts to manatees; thus, the water management district needs to look at the granting of permits for boat ramps on a case-by- case basis to ensure that boat ramps do not individually or cumulatively have a significant adverse impact on manatees.
FISHING PIER NOTICED GENERAL PERMIT
Ward has challenged SFWMD's fishing pier noticed general permit rule. The challenged rule provision is 40E-400.427(1)(b) which states:
A general permit is hereby granted to any person to construct, extend, or remove piers and associated structures as described below:
* * * *
(b) public fishing piers that do not exceed a total area of 2,000 sq. ft. provided the structure is designed and built to discourage boat mooring by elevating the fishing pier to a minimum height of 5 ft. above mean high water or ordinary high water, surrounding the pier with handrails, and installing and maintaining signs that state, "No Boat Mooring Allowed."
Ward challenges the rule on the basis that it is arbitrary and capricious and exceeds the authority in Section 373.414(9), Florida Statutes, because the minimum height requirement of five feet above the mean or ordinary high water is not based on existing rules and is not based on competent science and engineering.
The proposed rule is based on an existing rule of the Department, Rule 62-312.808 (formerly 17-312.808), Florida Administrative Code which contains no height restriction for piers.
The five-foot minimum height provision eliminates boat mooring at public fishing piers in order to restrict the scope of activity approved via this noticed general permit. If boats were allowed to moor at the fishing piers, there could be a significant adverse impact. The height limitation is necessary to ensure that piers approved will not individually or cumulatively cause more than a minimal adverse impact.
RIPRAP NOTICED GENERAL PERMIT
Ward has challenged SFWMD's riprap noticed general permit rule. The challenged rule provision is in 40E-400.431(1)(g) which states:
A general permit is hereby granted to any person installing riprap at the toe of an existing vertical seawall, provided:
* * * *
(g) the amount of wetland area filled shall not exceed 100 square feet . . .
Ward challenges the rule on the basis that the rule is arbitrary and capricious and exceeds the authority in Section 373.414(9), Florida Statutes, because the limitation of the amount of wetland area to no more than 100 square feet is not based on existing rules and is too limiting in that a larger area would still have only a minimal environmental impact.
The proposed rule is based on an existing general permit rule of the Department, Rule 62-312.804 (formerly 17-312.804); however, the existing rule does not limit the permit to 100 square feet. The 100 square foot limitation is
necessary in the proposed rule to ensure that the placement of riprap under this general permit will have no more than minimal individual or cumulative adverse impacts.
MINOR ACTIVITIES NOTICED GENERAL PERMIT (TO THE DEPARTMENT)
Ward has challenged the provisions of Rule 40E-400.483(1), (2) and (3) which state:
A general permit is hereby granted to the Department to conduct the activities described below:
the repair, replacement or alteration of any existing bridge, levee, dam, pump station, lock, culvert, spillway, weir, or any other water control structure with structures of the same design or comparable design, provided that the maximum discharge rate capacity and control elevation do not exceed that of the structure to be replaced. Minor deviations in the structure's design are authorized, including those due to changes in materials, construction techniques, or current construction codes or safety standards. Associated construction activities authorized by this permit include temporary fill plugs of cofferdams; upland
bypass channels; channel shaping needed to accommodate the repair, replacement, or alteration of the structure; and channel and bank stabilization, including riprap within 200 feet of the structure.
Replacement may occur at the same site, or adjacent to the original structure. The area of wetlands or other surface waters from which material is to be dredged or filled shall not exceed a total of 0.5 acres for any one structure;
canal bank and bottom stabilization necessary to repair erosion damage and restore previously existing canal configurations. Authorized repair methods include placement of riprap, sand cement toe walls, clean fill material, poured concrete,
geotechnical textiles or other similar stabilization materials. The distance to be restored or repaired shall not exceed 2000 feet at any one location
along canal banks and 500 feet along canal bottoms; and
aerial pipeline crossings (including support piles) of man-made canals consistent with the provisions of 40E-400.455, F.A.C., except that the width of the crossings may be up to 200 feet.
Ward challenges the rule provisions on the basis that the limitations of 0.5 acre area of wetlands or other surface waters to be filled, the 2000 feet to be restored, and the 200 foot crossing width, set forth in subsections (1), (2), and (3), respectively, are arbitrary and capricious, contravene the equal protection clause of the Florida Constitution, and exceed the authority contained in Section 373.414(9), Florida Statutes, because they are different from the standards in proposed rules 40E-400.457, 40E-400.455, and 40E-400.453.
The minor activities allowed to be conducted by the Department under this noticed general permit would be infrequent in number but essential to the management of the Department's lands for environmental purposes.
The half-acre limitation of fill was chosen because there was not a large number of those projects occurring within a year, and the activities occur in close relation to existing structures in already impacted areas.
Similarly, the 2000 square foot limitation of 40E-400.482(2) and the
200 foot limitation of 40E-400.483(3) were chosen because of the infrequency of these activities and the positive environmental effect of this type of activity.
The challenged activities and the limitations contained therein would not allow more than the minimal adverse impacts to occur both singularly and cumulatively when the proposed activities are conducted by the Department.
The activities allowed under the proposed notice permits in rules 40E- 400.453, 40E-400.455 and 40E-400.457, would occur substantially more frequently than those anticipated in proposed rule 40E-400.483.
The frequency of the occurrence of the activities in proposed rules 40E-400.453, 40E-400.455 and 40E-400.457, if allowed to result in the same impacts as in the proposed 40E-400.483, would allow more than minimal adverse impacts to occur.
Proposed rule 40E-400.455 authorizes impacts to natural streams and waterways, impacts not permitted under proposed rule 40E-400.483.
NOTICED GENERAL PERMIT TO THE DEPARTMENT TO CHANGE OPERATING SCHEDULES FOR WATER CONTROL STRUCTURES
Ward has challenged SFWMD's operation schedule noticed general permit. The challenged rule is found at 40E-400.487 and states as follows:
A general permit is hereby granted to the Department to change the operating schedules for existing water control structures that are owned and operated by the Department when such changes are for the purpose of environmental restoration or enhancement.
The Department shall hold at least one public meeting concerning the proposed operating schedule prior to its approval.
Ward's basis for challenge is that the rule enlarges, modifies and contravenes the statute in that the alteration of water control schedules for Department owned water control structures does not, either singularly or cumulatively, constitute minimal environmental impacts.
The permit is limited to the Department for existing water control structures owned and operated by the Department when the Department is implementing the schedule changes for environmental restoration or enhancement purposes. The schedule changes would have a beneficial environmental effect rather than an adverse impact. The Department owns a great deal of land which was purchased for the purpose of restoration or enhancement. By changing the schedules for the water control structures on these lands, the Department can control water levels so the wetlands will be benefited.
ADDITIONAL WATER QUALITY CONSIDERATIONS FOR DOCKING FACILITIES
Ward has challenged paragraphs 4.2.4.1(f),(g),(h), (i) of SFWMD's Basis of Review, which provide:
4.2.4.3 Additional water quality considerations for docking facilities
Docking facilities are potential sources of pollutants to wetlands and other surface waters. To provide the required reasonable assurance that water quality standards will not be violated, the
following factors must be addressed by an applicant proposing the construction of a new docking facility, or the expansion of or other alteration of an existing docking facility that has the potential to adversely affect water quality:
* * * *
Fueling facilities shall be located and operated so that the potential for spills or discharges to surface waters and wetlands is minimized. Containment equipment and emergency response plans must be provided to ensure that the effects of spills are minimized.
The disposal of domestic wastes from boat heads, particularly from liveaboard vessels, must be addressed to prevent improper disposal into wetlands or other surface waters. A liveaboard vessel shall be defined as a vessel docked at the facility that is inhabited
by a person or persons for any five consecutive days or a total of ten days within a 30 day period.
The disposal of solid waste, such as garbage and fish cleaning debris, must be addressed to prevent disposal into wetlands or other surface waters.
Pollutant leaching characteristics of materials such as pilings and anti-fouling paints used on the hulls of vessels must be addressed to ensure that any pollutants that leach from the structures and vessels will not cause violations of water quality standards given the flushing at the site and the type, number and concentration of the likely sources of pollutants.
Ward challenges subsection 4.2.4.3(f) on the basis that it is arbitrary and capricious and exceeds the authority contained in Section 373.414(9), Florida Statutes, because it is duplicative of the requirements in Sections 376.011 through 376.021 and 376.30 through 376.319, Florida Statutes.
Ward challenges subsection 4.2.4.3(g) on the basis that it is arbitrary and capricious and exceeds the authority contained in Section 373.414(9), Florida Statutes, because it is duplicative of and contrary to the requirements in Sections 403.413(5) and 327.53, Florida Statutes, and 33 CFR 159.
Ward challenges subsection 4.2.4.3(h) on the basis that it is arbitrary and capricious and exceeds the authority contained in Section 373.414(9), Florida Statutes, because it is duplicative of the requirements in Section 403.413, Florida Statutes.
Ward challenges subsection 4.2.4.3(i) on the basis that it is arbitrary and capricious and exceeds the authority contained in Section 373.414(9), Florida Statutes because it is duplicative of the requirements of state water quality standards.
Additionally Ward challenges these subsections on the basis that they are vague in that no specific standards are proposed.
The challenged provisions of SFWMD's Basis of Review relate to Rule 40E-4.301(1), Florida Administrative Code, which states:
In order to obtain a standard general, individual or conceptual approval permit under
this chapter or chapter 40E-40, F.A.C., an applicant must provide reasonable assurance that the construction, alteration, or operation, maintenance, removal or abandonment of a surface water management system:
* * * *
(e) Will not adversely affect the quality of receiving waters such that the water quality standards set forth in chapters 17-3, 17-4, 17-302, 17-520, 17-522, and 17-550, F.A.C., including any antidegradation provisions of sections 17-4.242(1)(a) and (b), 17-4.242(2) and (3), and 17-302.300 F.A.C., and any special standards for Outstanding Florida Waters and Outstanding National Resource Waters set forth in sections 17-4.242(2) and (3), F.A.C. will
be violated.
Proposed Rule 4.2.4.3 is proposed to implement Sections 373.016, 373.413, 373.416, and 373.426, Florida Statutes.
Fueling facilities have the potential to adversely affect water quality through spillage. Thus, in determining whether reasonable assurances have been provided that a proposed docking facility with fueling facilities will not cause water quality violations, it is reasonable to consider the location of the facility, particularly in reference to the ease and reliability of spill containment and clean up.
Existing Rule 17-302.300(5), F.A.C., referenced in proposed rule 40E- 4.0301(1)(e), provides in part that "Pollution which causes or contributes to .
. . continuing of existing violations is harmful to the waters of this State and shall not be allowed." Therefore consideration should be given to whether a fueling facility would contribute to an existing water quality violation through additional spills or discharges.
The Department has a fueling facility registration and spill containment program under Chapter 376, Florida Statutes. The program only applies to coastal facilities, whereas the ERP program is much broader in scope and applies to non-coastal as well as coastal facilities. In its past administration of the Chapter 376 program and the Wetland Resource Management (WRM) program, the Department has not considered the provisions of the two programs to conflict.
Boat heads in docking facilities provide a potential source of pollution. Violations of fecal coliform water quality standards attributed to
the absence of proper sewage disposal facilities are frequently found at larger docking facilities. Therefore, consideration of the size of boatslips, whether there are going to be liveaboards, and whether there are pump-out facilities for boat heads are all factors which should be considered when reviewing applications for docking facilities. Such factors have been considered in past permitting of such facilities.
The consideration of the availability of proper pump-out facilities for boat heads is important to ensure that the water quality standards will not be violated because boaters will be assured of a reasonable way to comply with the prohibition to the discharge of human waste directly into the waters as stated in Subsection 403.413(5), Florida Statutes.
The disposal of solid waste such as garbage and fish cleaning debris also has the potential to cause water quality violations, and has been considered in past permitting of docking facilities. Therefore, a docking facility's plan for the handling and disposal of fish cleaning waste and other solid waste should be considered in determining whether the applicant has provided reasonable assurance that water quality standards will not be violated. The consideration of solid waste disposal at docking facilities does not conflict with or duplicate the general ban of disposal of solid waste under the Florida Litter Law, Section 403.413, Florida Statutes, rather it facilitates compliance with that law by assuring that proper facilities for the disposal of solid waste will be available at docking facilities.
The use of pollutant leaching materials such as anti-fouling paints can cause water quality violations in docking facilities. Anti-fouling paints are applied to boat hulls, and work by slowly releasing toxic agents such as copper compounds to keep the boats free of encrusting organisms such as barnacles. If a docking facility is not well flushed, then violations of the water quality standard for copper can occur. The consideration of pollutant leaching materials does not duplicate state water quality standards, but only helps to provide assurance that the existing water quality standards will not be violated.
The challenged provisions of the Basis of Review are based on existing practices and rules of the Department. All of the considerations discussed above are the codifications of the existing considerations applied when reviewing WRM permit applications for docking facilities. They will be applied in the same manner in the proposed rules as they are under the existing rules.
ADOPTION BY REFERENCE OF OPERATING AGREEMENT
Ward has challenged Rule 40E-4.091(1) (c) which provides:
The following documents are incorporated
by reference into this chapter, Chapters, 40E-40 and 40E-400, F.A.C.:
* * * *
(c) Operating Agreement Concerning Regulation under Part IV, Chapter 373, F.S. adopted by reference in Section 40E-4.091, F.A.C.
Ward challenges the rule on the basis that in adopting the rule SFWMD failed to comply with the provisions of Section 120.54, Florida Statutes, in that the rule purports to adopt by reference a document (activity based split
operating agreement with DEP) which was not available at the time of publication of the proposed rule.
Operating agreements set forth the responsibilities of the Department and a District regarding the MSSW permitting and the WRM permitting within the geographic boundary of the District. In October, 1992, SFWMD and the Department entered into an operating agreement entitled "Operating Agreement Concerning Management and Storage of Surface Waters Regulation, and Wetland Resource Regulation Between South Florida Water Management District and Department of Environmental Regulation." This agreement was amended on January 18, 1994. This agreement was to terminate on the effective date of the rules adopted by both the Department and SFWMD pursuant to Section 373.414(9), Florida Statutes.
In the early part of 1994, the Department had requested input from the public on changes that needed to be made to the existing operating agreements. The SFWMD published its notice of proposed rulemaking in May, 1994. It is not clear from the evidence to what extent changes had been made to the existing operating agreements at the time the notice of rulemaking was proposed.
It is clear that from the time the notice of rulemaking was published that the Department and SFWMD had continued to develop the final operating agreement which was executed by the Department and SFWMD on August 11, 1994. This agreement was entitled "Operating Agreement Concerning Regulation under Part IV, chapter 373, F.S. Between South Florida Water Management District and Department of Environmental Regulation," was to supersede the previous operating agreement and was to become effective upon the adoption of the rule amendments which incorporate the agreement by reference.
Ward presented no evidence that he was prejudiced by the failure of SFWMD to have the Operating Agreement Concerning Regulation under Part IV, Chapter 373, F.S. between South Florida Water Management District and Department of Environmental Regulation finalized at the time the notice of rulemaking was published. Ward presented no testimony that he had information that he wanted to present to SFWMD on the content of the operating agreement. Ward presented no testimony that had the operating agreement been finalized at the time the notice of rulemaking was published that he would have challenged the operating agreement on a substantive basis. No evidence was presented that Ward attempted to obtain copies of whatever version of the operating agreement was available at the time the notice of rulemaking was published.
STREAMLINING
Ward has also challenged the above referenced rules and handbook provisions on the basis that they are invalid attempts to implement Section 373.414(9), Florida Statutes, in that they fail to achieve a streamlined statewide, coordinated and consistent permitting approach to activities regulated under Chapter 373, Part IV in a manner which eliminated duplicative and overlapping regulatory programs.
The challenged rules have resulted in a streamlined statewide, coordinated and consistent permitting approach to activities regulated under Chapter 373, Part IV.
SETTLEMENT AGREEMENT
Petitioners St. Joe Paper Company and Florida East Coast Industries, Inc. (hereinafter collectively referred to as St. Joe) entered into a settlement
agreement with Respondents on April 6, 1995. Paragraph 12(a) of the settlement agreement provides:
Petitioners, ST. JOE PAPER COMPANY AND FLORIDA
EAST COAST INDUSTRIES, INC. intend this Settle- ment Agreement to be a comprehensive settlement
of all claims and issues raised by said Petitioners in the consolidated cases with the limited exception of their challenge to the validity of the following
3 proposed rule provisions on only the grounds identified below:
The third paragraph in paragraph X.2.7(a) of SRWMD's Applicant's Handbook: Environmental Resource Permitting, SJRWMD's Applicant's Handbook:
Management and Storage of Surface Waters and SFWMD's Basis of Review, and that portion of 62-330.200(1)(d), 62-330.200(2)(h), and 62-330.200(4)(b), F.A.C., to
the extent that these DEP rules incorporate by reference said subparagraph. The subparagraph states: Unless additional measures are required for protection of wetlands used by species for nesting, denning, or significant feeding habitat, secondary impacts to
the habitat functions of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15' and an average width of 25', are provided abutting those wetlands that will remain under the permitted design. Buffers shall remain in an undisturbed condition, except for drainage features such as spreader swales and discharge structures, provided the construction or use of these features does not adversely impact wetlands.
PETITIONERS' CLAIMED FACTS OR GROUNDS FOR ALLEGED INVALIDITY:
The subparagraph that the 15-foot-wide buffer may be accepted as reasonable assurance of no adverse impact of the use of uplands on functions of wetlands or other surface waters is wholly unsubstantiated in fact or science, and is therefore arbitrary. (See Prehearing Stipulation: Part E, paragraph 24(1))
The subparagraph exceeds the delegated legislative authority by contemplating the creation of buffers abutting wetlands that will remain under the permitted design. (See Prehearing Stipulation: Part E, paragraph 24(3))
The subparagraph would enlarge, modify, and contravene statutory authority by incorporating a secondary impacts to water resources review into the proposed rules. (See Prehearing Stipulation: Part E, paragraph 5(1))
The subparagraph exceeds the grant of rule- making authority by purporting to regulate uplands. (See Prehearing Stipulation: Part E, paragraph 23(3))
Paragraph X.2.7(b) of SRWMD's Applicant's Handbook: Environmental Resource Permitting, SJRWMD's Applicants Handbook: Management and Storage of Surface Waters, and SFWMD's Basis of
Review, and 62-330.200(1)(d), 62-330.200(2)(h),
and 62-330.200(4)(b), F.A.C., to the extent that these DEP rules incorporate paragraph X.2.7(b) of the referenced Applicant's Handbook or Basis of Review.
PETITIONERS' CLAIMED FACTS OR GROUNDS FOR ALLEGED INVALIDITY:
The paragraph exceeds the grant of rulemaking authority by purporting to regulate uplands. (See Prehearing Stipulation: Part E, paragraph 23(3))
The paragraph's regulation of uplands deemed to be used by aquatic or wetland dependent species for denning or nesting and enabling existing nests or dens to be used successfully by these species enlarges or modifies existing statutory authority and exceeds the grant of rulemaking authority.
(See Prehearing Stipulation: Part E, paragraph 23(7))
The phrase "and impacts to uplands that are used by listed aquatic or wetland dependent species described in X.2.7(b)" in the third sentence of subsection X.3.2.2 (d) in SRWMD's Applicant's Handbook: Environmental Resource Permitting, SJRWMD's Handbook: Management and Storage of
Surface Waters, and SFWMD's Basis of Review, and 62-330.200(1)(d), 62-330.200(2)(h), and 62-
330.200(4)(b), F.A.C. to the extent that these DEP rules incorporate by reference said phrase in such Applicant's Handbooks or Basis or Review.
PETITIONERS' CLAIMED FACTS OR GROUNDS FOR ALLEGED INVALIDITY:
The phrase enlarges, modifies and contravenes statutory authority by requiring mitigation for certain uplands areas and by requiring mitigation for certain upland impacts. (See Prehearing Stipulation: Part E, paragraph 30(2))
BUFFERS
The purpose of Rule X.2.7(a) 2/ is to protect water quality and functions provided by wetlands and other surface waters to fish and wildlife and listed species, from secondary impacts caused by construction, alteration, and uses of a proposed system.
The challenged subparagraph in Rule X.2.7(a) provides for a buffer with a minimum width of 15 feet and an average width of 25 feet between wetlands and adjacent upland activities. This buffer is not a mandatory requirement. It is a "cookbook" type option which an applicant may use to provide reasonable assurances regarding the protection of habitat functions against secondary impacts. It is a "safe harbor" provision that if an applicant chooses to provide a wetland buffer according to its terms, the reviewing agency will consider there to be no secondary impacts to wetland functions. However, the buffer provision cannot be automatically used to satisfy secondary impacts when a wetland is actually being used by listed species for nesting, denning, or significant feeding habitat.
The buffer provision does not preclude an applicant from proposing alternative designs or utilizing other means to provide the required reasonable assurances.
The proposed buffer dimensions are based on the minimum distance which is required to protect wildlife habitat functions from adjacent upland disturbance, assuming a wetland is not being used by listed species for nesting, denning, or significant feeding habitat. SFWMD current rules allow for the provision of buffers around wetlands whether isolated or contiguous. SFWMD's current rule 5.1.7(a) of Appendix 7, SFWMD Basis of Review, provides for buffers for isolated wetlands with the same dimensions as in the proposed rule X.2.7(a).
RULE X.7.2(B)
Petitioners, St. Joe, have challenged Rule X.2.7(b) which provides:
An applicant shall provide reasonable assurance that the construction, alteration, and intended or reasonably expected uses of a proposed system will not adversely impact the ecological value of uplands to aquatic or wetland dependent listed species for:
existing nesting or denning by these species; and
enabling existing nests or dens to be used successfully by these species.
Table X.2.7-1 [Table 4.1.3, App. 5 SWFWMD BOR]
identifies those aquatic or wetland dependent listed species that use upland habitats for nesting and denning.
For those aquatic or wetland dependent listed species for which habitat management guidelines have been developed by the U.S. Fish and Wildlife Service (USFWS) or the Florida Game and Fresh Water Fish Commission (FGFWFC), compliance with these guidelines will provide reasonable assurance that the proposed system will not adversely impact upland habitat functions described in paragraph
(b). For those aquatic or wetland dependent listed species for which habitat management guidelines have not been developed or in cases where an applicant does not propose to use USFWS or FGFWFC habitat management guidelines, the applicant may propose measures to mitigate adverse impacts to upland habitat functions described in paragraph
(b) provided to aquatic or wetland dependent listed species.
Water resources include aquatic and wetland systems, like wetland and other surface waters, as well as the abiotic and biotic components of these systems. The abiotic components include the water itself, its chemical makeup and soils. The biotic component includes the plants which comprise the systems as well as the animals which are dependent upon the systems.
There is a dependency of each of the abiotic and biotic components upon one another. There are many complex interactions among the abiotic and biotic components which determine the essential nature of the resource itself.
Aquatic or wetland dependent wildlife are an integral component of the water resource. For example, they are necessary importers and exporters of chemical components to and from the systems; they help to revegetate wetlands through the transport of seed from one wetland to another. These animals are a critical part of the plant and animal food web which defines the system. The relationship between aquatic and wetland dependent animals and all other components of the water resource is a give and take relationship. Each component both "gives to and takes from" other components.
If a component of the water resource is eliminated there are direct and indirect impacts on other components, and thus, the nature of the water resource is impacted.
Some aquatic or wetland dependent species do not satisfy all of their life requirements in a wetland or aquatic system. They also utilize uplands for critical parts of their life cycle such as reproduction.
The purpose of proposed Rule X.2.7(b) is to regulate the ecological value of upland habitat used for reproduction by aquatic and wetland dependent listed species because each of the nesting and denning sites of these imperiled species requires regulatory protection to ensure that the species will continue to persist as an important component of the water resources.
RULE X.3.2.2(d)
Rule X.3.2.2(d) provides:
(d) Upland preservation ratios. Many wildlife species that are aquatic or wetland dependent spend critical portions of their life cycles in uplands. Uplands function as the contributing
watershed to wetlands and are necessary to maintain the ecological value of those wetlands. Because
of these values, the preservation of certain uplands may be appropriate for full or partial mitigation of wetland impacts [impacts to the upland portion of the riparian habitat protection zones described in subsection 11.3.5 and 11.4.4 (in SJRWMD AH only)], and impacts to uplands that are used by aquatic or wetland dependent species as described in subsection X.2.7.(b). The ratio guideline for upland preservation will be 3:1 to 20:1 (acreage of uplands preserved to acreage impacted.
St. Joe has challenged the portion of Rule X.3.2.2 which states, "and impacts to uplands that are used by aquatic or wetland dependent species as described in subsection X.2.7.(b)."
Section X.3.2.2 of the Applicant's Handbook and Basis of Review implement Sections 373.016, 373.413, 373.416, and 373.426, Florida Statutes.
Mitigation is an action or series of actions that an applicant can undertake to offset the adverse impacts that make a proposed project unpermittable. There are four kinds of mitigation for impacts to wetlands, other surface waters, or those uplands where certain habitat impacts are
regulated. These are creation, restoration, enhancement and preservation, or some combination of these four.
Mitigation cannot be required by the Department or the Districts under either the existing or proposed rules. Rather, mitigation is an option that the applicant can propose to help make a project meet permitting criteria.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.54, Florida Statutes.
Section 120.54(4)(a), Florida Statutes, provides that "[a]ny substantially affected person may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated legislative authority." The definition of invalid exercise of delegated legislative authority is found in Section 120.52(8), Florida Statutes, which provides:
'Invalid exercise of delegated legislative authority' means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one or more of the following apply:
The agency has materially failed to follow the applicable rulemaking procedures set forth in s. 120.54;
The agency has exceeded its grant of rulemaking authority, citation to which is required by s. 120.54(7);
The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(7);
The rule is vague, fails to establish adequate standards for agency decision, or vests unbridled discretion in the agency; or
The rule is arbitrary and capricious.
STANDING OF PETITIONER WARD
The test for standing in a rule challenge pursuant to Subsection 120.54(4), Florida Statutes, is whether the petitioner would be substantially affected by the proposed rule when it becomes effective. State Department of Health and Rehabilitative Services v. Alice P., 367 So.2d 1045, 1052 (Fla. 1st DCA 1979). The petitioner has the burden to establish that he has standing to bring the rule challenge.
In order for a petitioner to establish standing, he must demonstrate that he will suffer an injury in fact, or threat of injury, that is real and immediate, and not speculative, nonspecific and hypothetical or lacking in immediacy and reality and he must demonstrate that his alleged interest is arguably within the zone of interest to be protected or regulated. See, All Risk Corporation of Florida v. State Department of Labor and Employment Security, Division of Workers' Compensation, 413 So.2d 1200, 1202 (Fla. 1st DCA 1982).
Ward has established that he has standing to bring this rule challenge as to some of the rules challenged. Ward is a professional engineer who designs docks, piers, riprap, boat ramps, and other projects that would be governed by SFWMD's proposed rules, 40E-400.417(1)(c), 40E-400.427(1)(b), 40E-400.431(1)(g) and sections 4.2.4.1 (f), (g), (h), and (i) of SFWMD's Basis of Review.
As a professional engineer Ward is regulated by Chapter 471, Florida Statutes. Section 471.033(1), Florida Statutes, subjects professional engineers to disciplinary proceedings for actions which constitute negligence or incompetence in the practice of engineering. Rule 21H-19.001(4), Florida Administrative Code, provides:
A professional engineer shall not be guilty of negligence in the practice of engineering.
The term negligence set forth in 471.033(1)(g), Florida Statutes, is herein defined as the failure by a professional engineer to utilize
due care in performing in an engineering capacity or failing to have due regard for acceptable standards of engineering principles. Professional Engineers shall approve and seal only those documents that conform to acceptable engineering standards and safeguard the life, health, property and welfare of the public.
If Ward designed a project in accordance with the criteria set forth by SFWMD's proposed rules and those criteria were not within acceptable engineering principles or could result in harm to the life, health, property or welfare of the public, Ward could be subject to disciplinary actions for failure to use due care. Thus, Ward has established an injury in fact which is sufficiently immediate and direct to establish that he would be substantially affected by proposed rules 40E-400.417, 400.27(1)(b), 40E-400.431(1)(g), and Subsections 4.2.4.3 (f), (g), (h), and (i) of SFWMD's Basis of Review.
In Gerald B. Ward v. Board of Trustees of the Internal Improvement Trust Fund, 20 Fla. L. Weekly D582 (5th DCA March 8, 1995), the court held that Ward, who is the same petitioner in the instant case, had standing to challenge proposed amendments of the Department of Environmental Protection's rules relating to construction of docks in aquatic preserves. The court opined that Ward "satisfied the zone of interest test because his claims essentially assert that the proposed rules encroach upon his interests under Chapter 471 and are contrary to the purpose and intent of those laws." Based on the reasoning in Ward, it is clear that Ward has also satisfied the zone of interest test in the instant proceeding as it relates to proposed rules 40E-400.417(1)(c), 40E- 400.427(1)(b), 40E-400.431(g) and sections 4.2.4.1 (f), (g), (h), and (i) of SFWMD's Basis of Review.
Ward has established that he has standing to challenge proposed rules 40E-400.417(1)(c), 40E-400.427(1)(b), 40E-400.431(g), and sections 4.2.4.1 (f), (g), (h), and (i) of SFWMD's Basis of Review.
Ward has not established that he has standing to challenge proposed rule 40E-400.483(1), (2) and (3), which deals with a general permit issued to the Department to conduct minor activities, and proposed rule 40E-400.487, which deals with a noticed general permit to the Department to change operating schedules for water control structures. These rules deal with general permits
issued to the Department. Ward did not establish that he designed projects for the Department. Ward has not demonstrated how the issuance of these permits could encroach upon his activities as a professional engineer regulated pursuant to Chapter 471.
BOAT RAMP NOTICED GENERAL PERMIT
Section 373.118, Florida Statutes, states that the District may adopt rules establishing a general permit system under this chapter for projects, or categories of projects, which have either singly or cumulatively, a minimal adverse impact on the water resources of the District. Subsection 373.414(9), Florida Statutes, also contains a provision which state that "Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively." Both statutes limit general permits to projects that will have a minimal adverse impact.
Subsection 373.414(1)(a), Florida Statutes provides in part:
(a) In determining whether an activity, which is in, on or over surface waters or wetlands,
as delineated in s. 373.421(1), and is regulated under this part, is not contrary to the public interest or is clearly in the public interest, the governing board or the department shall consider and balance the following criteria:
* * * *
2. Whether the activity will adversely affect the conservation of fish and wildlife, including endangered or threatened species, or their habitats;
The reviewing agencies are mandated pursuant to Subsection 373.414(1)(a)2 to consider adverse impacts to endangered or threatened species and their habitat without limitation to the waters listed in subsection 370.12(2)(f), Florida Statutes. Statutes must be read in pari materia to give full effect to each other. Palm Harbor Special Fire Control District v. Kelly, 516 So.2d 249 (Fla. 1987); Carawan v. State, 515 So.2d 161, 168 (Fla. 1987). It is clear that the Legislature intended that manatees be protected whether it be pursuant to Chapter 373 or Chapter 370. Additionally, Section 370.12(2)(n), Florida Statutes, allows the Department to designate other portions of state waters where manatees are frequently sighted and it can be assumed that manatees inhabit such waters periodically or continuously. The proposed rule does not enlarge or contravene subsection 370.12(2)(f), Florida Statutes. The proposed rule does not exceed the authority of Section 373.414(9), which specifically contemplates the use of general permits as long as the permitted projects do not have more than a minimal adverse impact either individually or cumulatively. The Department and the Districts had the authority prior to the enactment of Section 373.414(9) to establish a system of general permits.
Ward's argument that because there was not an existing rule prior dealing with manatees and boat ramps before the challenged rule was proposed is without merit. Proposed rule 40E-400.417(1)(c) is a valid exercise of delegated legislative authority.
FISHING PIER NOTICED GENERAL PERMIT
Proposed rule 40E-400.427(1)(b) requires a minimum height of five feet above mean high water or ordinary high water for fishing piers permitted by a noticed general permit. Ward has challenged the proposed rule on several bases, including that it is arbitrary and capricious.
"A capricious action is one which is taken without thought or reason, or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic." Agrico Chemical Company v. State Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978) cert. den. 376 So.2d 74 (Fla. 1979).
The minimum height requirement for a fishing pier general permit is reasonably and logically based on the need to discourage boat usage so that fishing piers constructed under the general permit do not individually or cumulatively have significant adverse impacts. By requiring a minimum height of five feet it is unlikely that the pier would be used by boaters to moor their boats because the distance from the water to the pier would be too great to allow the boats to have access to the piers. If boats were allowed to moor at the piers, the construction of the piers could result in a significant adverse impact. The height requirement is neither arbitrary nor capricious.
The height requirement does not exceed the authority in Section 373.414(9), Florida Statutes, which contemplates the use of general permits for projects which will not have significant adverse impacts either individually or cumulatively. The Department does have an existing rule for general permits for fishing piers.
Section 309.01, Florida Statutes, deals with the construction of solid piers. It is intended to restrict the types of materials which may be discharged in the tide or salt waters of any bay, port, harbor, or river of the state. The minimum height of the enclosures and bulkheads is two and one half feet. The purpose of the proposed rule is to discourage boats from mooring at piers not to regulate the depositing of materials in the tidewaters. In order for an applicant to be granted a noticed general permit for piers, it is necessary that the construction of the pier will not result in significant adverse impacts either individually or cumulatively. In order to meet that criteria, the piers must be a minimum height of five feet.
Proposed Rule 40E-400.427(1)(b) is a valid exercise of delegated legislative authority.
RIPRAP NOTICED GENERAL PERMIT
Ward challenges the limitation of 100 square feet in proposed rule 40E-400.431(1)(g) for riprap noticed general permits as arbitrary and capricious and as exceeding the authority in Section 373.414(9), Florida Statutes, because the limitation is not based on existing rules and a larger area would still have only a minimal environmental impact.
The 100 square foot limitation is neither arbitrary nor capricious. It is reasonably calculated to result in projects that have a minimal environmental impact. Although reasonable men may differ as to what is a more reasonable size limitation, Ward has not demonstrated by a preponderance of the
evidence that SFWMD's decision to limit the riprap general noticed permit to areas of not more than 100 square feet was taken without thought or reason or was not supported by facts or logic.
The proposed rule is based on an existing rule of the Department for general noticed permits for riprap. Although the square foot limitation is not contained in the current rule, it is reasonably calculated to eliminate significant adverse impacts. One hundred square feet is a small area of wetlands that would be filled and therefore, a riprap project of that size should not individually or cumulatively result in more than a minimal adverse impact. Thus, the proposed rule is a valid exercise of delegated legislative authority.
MINOR ACTIVITIES NOTICED GENERAL PERMIT TO THE DEPARTMENT
I have determined that Ward does not have standing to challenge proposed rule 40E-400.483(1), (2), and (3); however, even if he did have standing to challenge the rule, he has failed to establish that the rule in an invalid exercise of delegated legislative authority. The proposed rule is based on a reasonable determination that the limitation on the amount of wetland area allowed to be filled, the footage to be restored and the footage to be crossed is necessary to restrict the impacts of proposed construction by the Department to minimal adverse impacts. Respondents have demonstrated that these activities which are performed by the Department would not occur on a frequent basis and as such would not a significant adverse impact either individually or cumulatively on the water resources. Thus, SFWMD has established that there is a rational basis for allowing a noticed general permit to the Department for these minor activities. Proposed Rule 40E-400.483(1),(2), and (3) is a valid exercise of delegated legislative authority.
NOTICED GENERAL PERMIT TO THE DEPARTMENT TO CHANGE OPERATING SCHEDULES FOR WATER CONTROL STRUCTURES
I have determined that Ward does not have standing to challenge proposed rule 40E-400.487; however, even if he did have standing, he has failed to establish that the proposed rule is an invalid exercise of delegated of legislative authority.
Both Sections 373.118 and 373.414(9), Florida Statutes, authorize the issuance of general noticed permits when the activities to be permitted have a minimal adverse impact on the water resources. The proposed rule specifies the criteria with which the applicant must comply in order to qualify for a noticed general permit. The changing of the operating schedule is limited to the implementation of the changes for the purpose of environmental restoration or enhancement only. Additionally, the Department is required to hold at least one public meeting concerning the operating schedules prior to the approval of the changes. This procedural requirement allows public comment to be considered prior to implementation, if any, to changes in operating schedules. The criteria is reasonably calculated to result in minimal adverse impacts to the environment and thus is a valid exercise of delegated legislative authority.
ADDITIONAL WATER QUALITY CONSIDERATIONS FOR DOCKING FACILITIES
Ward contends that the proposed sections 4.2.4.3.(f),(g),(h), and (i) are invalid because they vague in that they do not provide specific standards.
The general test for vagueness of a rule is whether persons of common intelligence are required to guess at the rule's meaning and could differ as to the rule's interpretation. State v. Cumming, 365 So.2d 153 (Fla. 1978); St. Petersburg v. Pinellas County Police Benevolent Association, 414 So.2d 293 (Fla. 2d DCA 1982).
In applying the standard, the person to whom the proposed rule applies is to be considered. Florida Optometric Association v. Board of Medicine, 14 F.A.L.R. 452, 481 (DOAH Oct. 30, 1991). The test for vagueness is more lenient where an administrative rule, rather than a penal statute is being examined. St. Petersburg v. Pinellas County Benevolent Association, supra at
295. Additionally, the leniency rule is particularly pertinent when dealing with environmental standards. Dept. of Environmental Regulation v. Goldring, 477 So.2d 532 (Fla. 1985); State v. Hamilton, 388 So.2d 561 (Fla. 1980).
Ward has failed to establish the proposed sections of SFWMD's Basis for Review are vague. A person of common intelligence would not be confused or required to guess at the meaning of the provisions. Ward asserts that the term "minimized" is not defined. A plain reading of the provision means that fueling facilities are to be operated and located so as to reduce the potential for spills or discharge as much as possible.
Ward also contends that the other provisions do not contain criteria but merely state that the issues must be addressed in the application. A plain reading of the rules would be that the applicant is to inform the reviewing agency of what measures that the applicant has taken to ensure that the disposal of domestic wastes, disposal of solid wastes and pollutant leaching characteristics will not cause a violation of the water quality standards. As an engineer, Ward should be aware of the water quality standards and how a project should be designed to ensure that the water quality standards are not violated. The Department is simply asking the applicant to describe what it plans to do in constructing the project to ensure that the specified activities which are likely to occur at docking facilities will not result in a violation of water quality standards.
Ward challenges the provisions on the basis that they are duplicative of other state and federal laws. Ward has not shown that the provisions of Chapter 376 concerning marine fueling facilities conflicts with the proposed rules. Chapter 376 is a registration program applicable to marine facilities, whereas the proposed rule is a permitting criteria applicable to both fresh water and marine facilities.
Ward contends that the proposed provision regarding consideration of domestic waste from boat heads in Section 4.2.4.3(g) is duplicative of and conflicts with the requirements of Sections 403.413(5) and 327.58, Florida Statutes, and 33 CFR 159. Section 403.413(5) prohibits the dumping of raw human waste in waters of the state from any vessel. Section 327.58 provides that the safety regulations under Chapter 327 shall apply to all vessels operating on waters of the state. Section 33 CFR 159 provides for the design and requirement of marine sanitation devices on certain vessels. In contrast, section 4.2.4.3(g) takes into consideration the likelihood that human wastes will be dumped from boat heads in determining whether reasonable assurances have been provided that the docking facility will not cause water quality violations.
Ward has not shown an irreconcilable conflict between proposed section 4.2.4.3(g) and Sections 327.58 and 403.413(5), Florida Statutes and 33 CFR 159.
Ward contends that section 4.2.4.3(h) regarding the consideration of disposal of solid waste such as fish cleaning debris is duplicative of the requirements of the Florida Litter Law, Section 403.413, Florida Statutes. The Florida Litter Law does not duplicate or supersede the provisions of Part IV of Chapter 373 to require reasonable assurance that projects not harm the water resources by causing water quality violations. The proposed rule is directed to requiring the applicant to provide reasonable assurances that the proposed activities will not cause water quality violations. Ward has not established that section 4.2.4.3(h) is invalid because it is duplicative of the Florida Litter Law.
Ward challenges section 4.2.4.3(i) regarding pollutant leaching characteristics of materials such as anti-fouling paint as duplicative of state water quality standards. The proposed section is not a water quality standard. The rule is directed to requiring reasonable assurance that the existing water quality standards will not be violated. It is appropriate that consideration be given to the leaching of copper from anti-fouling paints when determining whether reasonable assurance has been provided that a proposed docking facility will not cause violations of existing water quality standards. Ward has not established that section 4.2.4.3(i) is an invalid exercise of delegated legislative authority because it is duplicative of water quality standards.
Ward has not established that the challenged sections in 4.2.4.3 exceed the rulemaking authority in Section 373.414(9) because they were not previously codified in rules. Ward's argument is without merit. The proposed sections do not implement 373.414(9), but even it they did they would not exceed the authority. Section 373.414(9) requires that the Respondents rely primarily not exclusively on existing rules.
The proposed sections are based on logic, fact, and reason and are therefore not arbitrary or capricious. The Department's experience shows that spills from fueling facilities can cause water quality violations. Therefore, it is logical and reasonable to consider the location of such facilities and their spill containment and clean-up features. The Department's experience also shows that human waste released from boat heads in docking facilities can cause water quality violations. Therefore, the consideration of whether a docking facility has slips big enough to accommodate large enough to have boat heads, the availability of pump-out facilities for such boat heads and the presence of liveaboards is logical and reasonable in determining whether the proposed facility will cause water quality violations. Similarly, the Department's experience shows that the disposal of waste such as fish cleaning debris can cause water quality violations at docking facilities. Therefore, the consideration of accommodations to properly dispose of such wastes is logical and reasonable. Finally, the Department's experience shows that pollutant leaching materials such as anti-fouling paints can cause water quality violations at docking facilities. Therefore, it is logical and reasonable to consider the use of such materials in determining whether reasonable assurances have been provided that the docking facility will not cause water quality violations.
Ward has failed to establish that proposed sections 4.2.4.3(f),(g),(h), and (i) of SFWMD's Basis of Review are an invalid exercise of delegated legislative authority.
ADOPTION BY REFERENCE OF OPERATING AGREEMENT
Ward contends that proposed rule 40E-4.091 is invalid because SFWMD failed to make the operating agreement, which was incorporated by reference, available at the time of publication of the notice of rulemaking. Ward has established that the operating agreement incorporated by reference in proposed rule 40E-4.091 was not finalized at the time the notice of rulemaking was published.
Although the operating agreement is to be incorporated by reference, the agreement is a rule, and as such should have been available at the time of the notice of rulemaking in whatever form SFWMD intended at that time to be incorporated by reference. It is not clear to what degree the operating agreement had evolved by the time the notice of rulemaking was published. It is clear that the operating agreement intended to be incorporated for reference was not finalized until August 11, 1994.
SFWMD argues that Subsection 120.54(8), Florida Statutes, which states that: "Pursuant to the rule of the Department of State, a rule may incorporate material by reference but only as such material exists on the date the rule is adopted," means that material which is to be incorporated by reference does not have to be available at the time the notice of rulemaking is published. Respondents' argument is misguided. Essentially Section 120.54(8), means that an agency cannot change material which has been incorporated by reference without going through the rulemaking process. Just as the language of a rule which exists on the date the rule is adopted cannot be changed without going through the rulemaking process, neither can the language of material which is incorporated by reference as it exists on the date of adoption be changed without going through a separate rulemaking proceeding.
In order to determine whether a proposed rule should be invalidated because of a failure to follow the applicable rulemaking procedures set forth in Section 120.54, the challenger must demonstrate that the alleged procedural error is material and impairs the fairness of the proceedings or the correctness of the action. In other words, Ward must demonstrate that he was prejudiced by SFWMD not having the final version of the operating agreement available at the time the notice of rulemaking was published. Ward has failed to demonstrate that he was prejudiced. Thus, Ward has failed to establish that Rule 40E-4.091 is an invalid exercise of delegated legislative authority.
STREAMLINING
Ward has not demonstrated that SFWMD has exceeded its authority set forth in Section 373.414(9), Florida Statutes, because the challenged rules do not achieve a streamlined statewide, coordinated and consistent permitting approach. Ward has assumed that all the proposed rules implement Section 373.414(9), Florida Statutes, and they do not. The majority of the proposed rules implement other sections of Chapter 373 and are within SFWMD's authority to promulgate rules. Notwithstanding SFWMD's authority to implement rules under sections other than 373.414(9), the challenged rules have achieved a streamlined statewide coordinated and consistent permitting approach. Thus, Ward has failed to demonstrate that the proposed rules are an invalid exercise of delegated legislative authority.
BUFFERS
St. Joe has challenged the third paragraph in Rule X.2.7(a) on the basis that the 15-foot-wide buffer is arbitrary and capricious because the premise that it will create a reasonable assurance of no adverse impact of the use of uplands on functions of wetlands or other surface waters is wholly unsubstantiated in fact or science. Respondents presented expert testimony that the buffer dimensions are based on the minimum distance to protect wetland habitat functions from adjacent upland disturbance, assuming a wetland is not being used by listed species for nesting, denning, or significant feeding habitat. The buffer provision cannot automatically be used to provide assurance of no adverse impact when the wetland is being used for one these purposes. A similar buffer provision has been implemented by the SFWMD since 1987. Thus, the buffer dimensions provided in proposed rule X.2.7(a) are also based on SFWMD's experience in implementing it current rule. Thus, the third paragraph in Rule X.2.7(a) is not arbitrary or capricious.
St. Joe has also challenged the third paragraph in Rule X.2.7(a) on the basis that it exceeds the delegated legislative authority by contemplating the creation of buffers abutting wetlands that will remain under the permitted designs; enlarges, modifies, and contravenes statutory authority by incorporating a secondary impacts to water resources review; and exceeds the grant of rulemaking authority by purporting to regulate uplands.
The proposed rule implements Sections 373.413, 373.416, and 373.016, Florida Statutes. Section 373.413(1), Florida Statutes, provides:
Except for the exemptions set forth herein, the governing board or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district. The department or the governing board may delineate areas within the district where permits will be required.
Section 373.416(1), Florida Statutes, provides:
Except for the exemptions set forth in this part, the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources.
Sections 373.016(1) and (2), Florida Statutes, provides:
The waters in the state are among its basic resources. Such waters have not heretofore been conserved or fully controlled so as to realize their full beneficial use.
It is further declared to be the policy of the Legislature:
To provide for the management of water and related land resources:
To promote the conservation, development, and proper utilization of surface and ground water;
To develop and regulate dams, impoundments, reservoirs, and other works and to provide water storage for beneficial purposes;
To prevent damage from floods, soil erosion, and excessive drainage;
To minimize degradation of water resources caused by the discharge of stormwater;
To preserve natural resources, fish, and wildlife;
To promote the public policy set forth in s. 403.021;
To promote recreational development, protect public lands, and assist in maintaining the navigability of rivers and harbors; and
Otherwise to promote the health, safety, and general welfare of the people of this state.
Consideration of secondary impacts is within the authority of Sections 373.413, 373.416, and 373.016, Florida Statutes. In Sierra Club v. St. Johns River Water Management District and Florida Department of Transportation, Case No. RFR-92-001 (Florida Land and Water Adjudicatory Commission, July 22, 1992), the Florida Land and Water Adjudicatory Commission (FLWAC) determined that the SJRWMD had the authority under Chapter 373 to consider and evaluate cumulative and secondary impacts for both isolated and non-isolated wetlands.
Consideration of buffers to prevent secondary impacts to wetlands caused by adjacent projects is well within the statutory authority granted by Chapter 373. Thus, the third paragraph of proposed rule X.2.7(a) is a valid exercise of delegated legislative authority.
RULE X.2.7(b)
St. Joe challenges paragraph X.2.7(b) of SJRWMD's and SRWMD's Applicants Handbook and SFWMD's Basis of Review and the Department's Rules 62- 330.200(1)(d), 62-330.200(2)(h), and 62-330.200(4)(b), Florida Administrative Code, to the extent that they incorporate paragraph X.2.7(b). St. Joe contends that the paragraph exceeds the grant of authority by purporting to regulate uplands and that the regulation of uplands deemed to be used by aquatic or wetland dependent species for denning or nesting and enabling nests or dens to be used successfully by these species enlarges or modifies existing statutory authority and exceeds the grant of rulemaking authority.
Rule X.2.7(b) is proposed to protect existing upland nesting and denning sites of listed aquatic or wetland dependent species and the adjacent uplands which are necessary to enable these nests or dents to be successfully by
such species. Basic scientific principles support Respondents' position that aquatic or wetland dependent species are an integral part of the water resources which Respondents are authorized to protect from harm. Consequently, a rule regulating impacts to upland reproduction sites in order to ensure the continued survival of aquatic and wetland dependent listed species is reasonably related to the implementation of Respondents' authority under Sections 373. 413(1) and 373.416(1), Florida Statutes. Thus, proposed rule X.2.7.(b) and the rules of the Department which incorporate the paragraph are valid exercises of delegated legislative authority.
RULE X.3.2.2(d)
St. Joe has challenged the phrase "and impacts to uplands that are used by the listed aquatic or wetland dependent species described in X.2.7(b)" in the third sentence of subsection X.3.2.2(d) of SRWMD's and SJRWMD's Applicant's Handbook and SFWMD's Basis of Review as well as the Department's rules 62-330.200(1)(d), 62-330.200(2)(h), and 62-330.200(4)(b), Florida Administrative Code, to the extent that they incorporate the phrase.
St. Joe alleges that the phrase enlarges, modifies, and contravenes statutory authority by requiring mitigation for certain uplands areas and by requiring mitigation for certain uplands impacts.
The challenged phrase authorizes the use of upland preservation as a potential mitigation tool applicants may use to offset adverse impacts from their proposed developments. The provision additionally establishes a ratio guideline of 3:1 to 20:1 when upland preservation mitigation is proposed based upon Respondents' fundamental authority to regulate surface water management systems in order to protect the water resources from harm as set forth in Sections 373.413 and 373.416, Florida Statutes. If a system, as initially proposed, would have an adverse effect on the water resource, the applicant could use mitigation to offset the adverse impact to reach a positive or neutral impact level in relation to the water resources. Section 373.414(1)(b), Florida Statutes, authorizes the Respondents to "consider measures proposed by or acceptable to the applicant to mitigate adverse effect." The proposed phrase does not require upland mitigation but rather allows the Respondents to consider upland mitigation or preservation if proposed by the applicant. The phrase is a valid exercise of delegated legislative authority.
Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED:
Petitioners having voluntarily dismissed their petitions in Case Nos. 94-2722RU and 94-2935RP, the files of the Division of Administrative Hearings in Case Nos. 94-2722RU and 94-2935RP are hereby CLOSED.
In Case No. 94-2930RP, Petitioner Ward's challenges to proposed Rules 40E-400.483(1), (2), and (3) and 40E-400.487 are hereby DISMISSED for lack of standing.
3. In Case No. 94-2930RP, Rules 40E-400.417(1)(c), 40E-400.427(1)(b), 40E-
400.431(1)(g) and Sections 4.2.4.1 (f),(g), (h), and (i) of SFWMD's Basis of Review are valid exercises of delegated legislative authority. Petitioner's challenge to these proposed rules is hereby DISMISSED.
4. In Case No. 94-2936RP, the following proposed rules are valid exercises of delegated legislative authority:
The third subparagraph in paragraph X.2.7(a) of SRWMD's Applicant's Handbook: Environmental Resource Permitting, SJRWMD's Applicant's Handbook: Management and Storage of Surface Waters, and SFWMD' Basis of Review, and that portion of proposed rules 62-330.200(1)(d), 62-330.200(2)(h) and 62- 330.200(4)(b) to the extent that these Department rules incorporate said subparagraph by reference.
Paragraph X.2.7(b) of SRWMD's Applicant's Handbook: Environmental Resource Permitting, SJRWMD's Applicant's Handbook: Management and Storage of Surface Waters, and SFWMD's Basis of Review and proposed rules 62-330.200(1)(d), 62-330.200(2)(h) and 62-330.200(4)(b) to the extent that these Department rules incorporate paragraph X.2.7(b) by reference.
The phrase "and impacts to uplands that are used by listed aquatic or wetland dependent species described in X.2.7(b)" in the third sentence of subsection X.3.2.2(d) in SRWMD's Applicant's Handbook: Environmental Resource Permitting, SJRWMD' Applicant's Handbook: Management and Storage of Surface Waters, and SFWMD's Basis of Review and proposed rules 62-330.200(1)(d), 62- 330.200(2)(h), and 62-330.200(4)(b) to the extent that these Department rules incorporate said phrase by reference.
The petition in Case No. 94-2936RP is hereby DISMISSED.
DONE AND ORDERED this 24th day of July, 1995, in Tallahassee, Leon County, Florida.
SUSAN B. KIRKLAND
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 24th day of July, 1995.
ENDNOTES
1/ References to Petitioners "Florida, et al." are to Petitioners Florida Electric Power Coordinating Group, Inc., The Florida Chamber of Commerce, Inc., Florida Farm Bureau Federation, Association of Florida Community Developers, and Florida Home Builders Association, and Intervenor Florida Engineering Society.
2/ Sections of the Applicant's Handbooks and Basis of Review are referred to as "X" rather than the number which is used by each District.
APPENDIX TO RECOMMENDED ORDER, CASE NOS. 95-2930RP and 94-2936RP
To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:
Petitioner Ward's Proposed Findings of Fact. Standing Issue
Paragraphs 1-3: Accepted in substance.
Paragraph 4: Accepted except as to 40E-400.487.
Paragraph 5: Accepted.
Paragraphs 6-7: Rejected as subordinate to the facts actually found.
Petition Issues
Paragraph 1: Accepted to the extent that these provisions are contained in Chapter 93-213, Laws of Florida.
Paragraph 2: Rejected as not supported by the greater weight of the evidence.
Paragraph 3: Accepted in substance.
Paragraph 4: Rejected as not supported by competent substantial evidence.
Paragraph 4: (There were two paragraphs numbered 4): Accepted:
Paragraph 5: Rejected as not supported by the greater weight of the evidence as it relates to SFWMD's authority to promulgate the challenged rule.
Paragraph 6: Rejected as irrelevant.
Paragraph 7: Rejected as not supported by the greater weight of the evidence.
Paragraph 8: The first three lines are accepted. The remainder is rejected as irrelevant.
Paragraph 9: The first sentence is accepted. The second sentence is rejected as irrelevant. The third sentence is rejected as not supported by the greater weight of the evidence.
Paragraph 10: The first sentence is accepted. The remainder is rejected as subordinate to the facts found.
Paragraph 11: Accepted to the extent that the proposed rule deals with a noticed general permit for the Department to change operating schedules of its structures in SFWMD.
Paragraph 12: The first sentence is accepted in substance. The second and third sentences are rejected as not supported by competent substantial evidence.
The fourth sentence is rejected as subordinate to the facts found.
Paragraph 13: Accepted.
Paragraph 14: Accepted in substance.
Paragraph 15: Rejected as not supported by the greater weight of the evidence.
Paragraph 16: Accepted in substance.
Paragraph 17: Accepted to the extent that there are laws which deal with these topics but rejected to the extent that it implies that the Respondents do not have the authority to ensure that the docking facilities do not adversely impact the water quality.
Paragraph 18: Rejected as not supported by the evidence. The definitions of liveaboard are in different contexts.
Paragraph 19: Accepted in substance as to the first sentence. The second sentence is rejected as not supported by competent substantial evidence.
Paragraph 20: Accepted to the extent that there are laws dealing with the disposal of solid wastes, but rejected to the extent that the proposed rule duplicates other activities of the Department.
Paragraph 21:
Paragraph 22: Rejected as not supported by the greater weight of the evidence.
Petitioners St.Joe's Findings of Fact Designated After Settlement Agreement.
Paragraphs 1-6: Accepted in substance.
Paragraph 36: Accepted in substance.
Paragraph 37: Rejected as irrelevant based on the settlement agreement.
Paragraph 38: Accepted in substance.
Paragraph 39: Rejected as unnecessary detail.
Paragraphs 40-41: Accepted in substance.
Paragraph 42: Rejected as subordinate to the facts found.
Paragraph 43: Accepted in substance.
Paragraphs 44-56: Rejected as irrelevant based on the settlement agreement.
Paragraph 57: Accepted.
Paragraphs 58: Rejected as irrelevant based on the settlement agreement.
Paragraphs 59-60: Rejected as irrelevant given the statutes cited in the proposed rule as being implemented.
Paragraph 61: Accepted in substance.
Paragraphs 62-64: Rejected as subordinate to the facts found.
Paragraph 65: Accepted.
Paragraphs 66-68: Rejected as irrelevant.
Paragraphs 69-70: Rejected as subordinate to the facts found.
Paragraphs 77-108: Rejected as irrelevant based on the settlement agreement.
Respondent's Proposed Findings of Fact Designated After Settlement Agreement.
Paragraphs 1-10: Accepted.
Paragraph 15: Accepted.
Paragraphs 17-18: Accepted:
Paragraphs 43-44: Rejected as subordinate to the facts found.
Paragraph 47: Rejected as subordinate to the
facts found.
Paragraph 49: Rejected as unnecessary.
Paragraph 158: Accepted in substance.
Paragraph 173: Accepted in substance.
Paragraphs 174-175: Accepted.
Paragraphs 176-177: Accepted in substance.
Paragraphs 178-179: Accepted.
Paragraph 180: Accepted in substance.
Paragraphs 181-185: Accepted.
Paragraph 186: Rejected as unnecessary.
Paragraph 187: Rejected as unnecessary detail.
Paragraph 188: The first two sentences are accepted in substance. The remainder is rejected as subordinate to the facts found.
Paragraphs 191-196: Rejected as subordinate to the facts found.
Paragraphs 198-200: Accepted in substance.
Paragraph 202: Accepted in substance.
Paragraph 203: Accepted.
Paragraph 204: Rejected as unnecessary.
Paragraph 205-208: Accepted.
Paragraph 211: Accepted.
Paragraph 212-215: Rejected as unnecessary.
Paragraphs 219-224: Accepted.
Paragraphs 225-226: Accepted in substance.
Paragraph 264: Accepted as it relates to X.3.2.2(d).
Paragraph 265-266: Accepted.
Paragraph 268: Accepted.
30 Paragraph 286: Accepted.
Paragraph 287: Accepted in substance.
Paragraph 288: Rejected as unnecessary.
Paragraphs 299-302: Accepted in substance.
Paragraphs 303-314: Accepted.
Paragraphs 314-317: Accepted in substance.
Paragraphs 318-319: Accepted.
37: Paragraphs 320-322: Accepted in substance.
Paragraphs 323-325: Accepted in substance.
Paragraph 328: Rejected as not supported by the greater weight of the evidence.
Paragraph 329: Accepted in substance.
Paragraph 330: The first sentence is rejected as not supported by the greater weight of the evidence. The second sentence is accepted to the extent that it is the testimony of Ward.
COPIES FURNISHED:
Carolyn S. Raepple, Esquire Frank E. Matthews, Esquire
C. Allen Culp, Jr., Esquire Post Office Box 6526 Tallahassee, Florida 32314
Lawrence N. Curtin, Esquire Lynda L. Goodgame, Esquire Holland & Knight
Post Office Box 810 Tallahassee, Florida 32302
William L. Hyde, Esquire Gunster, Yoakley & Stewart, P.A.
215 South Monroe Street, Suite 350 Tallahassee, Florida 32301
Gerald M. Ward
Post Office Box 10441
Riveria Beach, Florida 33419
Edward B. Helvenston, Esquire Wayne Alfieri, Esquire
Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34609-6899
Kathryn Menella
St. Johns River Water Management District Post Office Box 1429
Palatka, Florida 32178-1429
David Fisk
Suwannee River Water Management District Route 3, Box 64
Live Oak, Florida 32060
John Fumero Marcy Lahart
South Florida Water Management District 3301 Gun Club Road
West Palm Beach, Florida 33416-4680
Robert Gough
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
Virginia B. Wetherell, Secretary Department of Environmental Protection Twin Towers Office Building
2600 Blair Stone Road Tallahassee, Florida 32399-2400
Kenneth J. Plante, Esquire General Counsel
Department of Environmental Protection 2600 Blair Stone Road
Tallahassee, Florida 32399-2400
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 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 in the appellate district where the agency maintains its headquarters or where a party resides. The Notice of Appeal must be filed withing 30 days of rendition of the order to be reviewed.
================================================================= DISTRICT COURT OPINION
=================================================================
IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT JANUARY TERM 1996
ST. JOE PAPER COMPANY and FLORIDA NOT FINAL UNTIL EXPIRES EAST COAST INDUSTRIES, INC., TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
Appellants,
CASE NO. 95-2828
v. DOAH CASE NO. 94-2722RU
SUWANNEE RIVER WATER
MANAGEMENT DISTRICT, ST. JOHNS AND RIVER WATER MANAGEMENT
DISTRICT, SOUTH FLORIDA WATER MANAGEMENT DISTRICT, and DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Appellees.
/ Decision filed May 22, 1996
Appeal from the State of Florida, Division of Administrative Hearings; L.T. Case No. 94-2936RP.
William L. Hyde of Gunster, Yoakley, Valdes-Panii & Stewart, Tallahassee, for appellants.
Robert G. Gough, Tallahassee, Marcy LaHart and John J. Fumero, West Palm Beach, Kathryn Mennella, Palatka, and Thomas W. Brown, Lake City, for appellees.
PER CURIAM.
AFFIRMED.
FARMER, GROSS, JJ., and GROSSMAN, MELVIN B., Associate Judge, concur.
MANDATE
From
DISTRICT COURT OF APPEAL OF FLORIDA FOURTH DISTRICT
This cause having been brought to the Court by appeal, and after due consideration the Court having issued its opinion;
YOU ARE HEREBY COMMANDED dthat such further proceedings be had in said cause as may be in accordance with the opinion of this Court, and with the rules of procedure and laws of the State of Florida.
WITNESS the Honorable Bobby W. Gunther, Chief Judge of the District Court of Appeal of the State of Florida, Fourth District, and seal of the said Court of West Palm Beach, Florida on this day.
DATE: June 7, 1996
CASE NO.: 95-2828
COUNTY OF ORIGIN: State of Florida Division of Administrative
Hearings
T.C. CASE NO.: 94-2936RP
STYLE: St. Joe Paper Company vs. Suwannee River Water Management District
Marilyn Beuttenmuller, Clerk District Court of Appeal Fourth District
ORIGINAL TO: State, Division of Administrative Hearings cc: William L. Hyde Susan B. Kirkland
Robert G. Gough John J. Fumero
Kathryn Mennella Thomas W. Brown
/CR
| Issue Date | Proceedings |
|---|---|
| Mar. 01, 2004 | Opinion filed. |
| Nov. 04, 1996 | Opinion issued 5/22/96 filed in L.T. Case No. 94-2936RP filed. |
| Jun. 12, 1996 | Opinion and Mandate from the fourth DCA filed. |
| May 28, 1996 | Opinion from the Fourth DCA (Affirmed)filed. |
| Jan. 30, 1996 | Records 95-6549RX and 94-2930RP returned from 4th DCA filed. |
| Jul. 24, 1995 | CASE CLOSED. Final Order sent out. Hearing held 09/26-30/94 & 10/03-07/94. |
| Jun. 08, 1995 | (John J. Fumero) Revised Notice of Telephone Conference -- Hearing filed. |
| May 24, 1995 | (DEP) Notice of Telephone Conference Hearing filed. |
| May 16, 1995 | (Lawrence N. Curtin) Notice of Voluntary Dismissal filed. |
| May 12, 1995 | (William L. Hyde) Notice of Partial Voluntary Dismissal by Petitioners St. Joe Paper Company and Florida East Coast Industries, Inc. w/cover letter filed. |
| May 12, 1995 | Respondents Joint Reply to Petitioner`s St. Joe Paper Co. and Florida East Coast Industries, Inc., Response to Respondents Joint Identification of Proposed Findings and Conclusions Requiring Resolution filed. |
| May 12, 1995 | (Frank E. Matthews) Notice of Voluntary Dismissal w/cover letter filed. |
| May 11, 1995 | (Frank E. Matthews) Parties' Joint Status Report filed. |
| May 08, 1995 | Response to Petitioners St. Joe Paper Company and Florida East Coast Industries,Inc. to Respondents` Joint Identification of Proposed Findings of Fact and Conclusions of Law Which Require Resolution; Letter to HO from William L. Hyde Re: Respondent Agen |
| May 04, 1995 | Letter to HO from William L. Hyde Re: "Respondents` Joint Identification of Proposed Findings of Fact and Conclusions of Law which Require Resolution." filed. |
| May 02, 1995 | Respondent's Joint Identification of Proposed Findings of Fact And Conclusions of Law Which Require Resolution filed. |
| May 01, 1995 | (Frank E. Matthews) Parties' Joint Status Report filed. |
| Apr. 14, 1995 | Letter to HO from William L. Hyde Re: Settlement Agreement; Letter from William L. Hyde Re: Typographical error on page 7 of the Settlement Agreement filed. |
| Apr. 06, 1995 | (Joint) Settlement Agreement filed. |
| Apr. 05, 1995 | Order Continuing Abeyance sent out. (Parties to file status report by 4/7/95) |
| Apr. 04, 1995 | (Joint) Motion for Continuing Abatement filed. |
| Mar. 30, 1995 | Petitioner's Motion to Stay Proceedings filed. |
| Mar. 30, 1995 | Order Granting Petitioner's Motion to Stay Proceedings sent out. (Counsel for petitioners, shall file status report by 4/4/95) |
| Mar. 10, 1995 | (Gerald M. Ward) Notice of Supplemental Authority filed. |
| Feb. 03, 1995 | Respondents' Joint Response to Petitioner Florida, Et Al.'s , Motion to Strike filed. |
| Jan. 25, 1995 | Florida Electric Power Coordinating Group, Inc., The Florida Chamber of Commerce, Inc., Florida Farm Bureau Federation, Association of Florida Community Developers, Florida Home Builders Association, and Florida Engineering Society, Inc.'s Motion to Str |
| Jan. 23, 1995 | (Southwest Florida Water Management District) Notice of Appearance w/cover letter filed. |
| Dec. 30, 1994 | Letter to HO from R/ Gough re: missing pages vi through viii -- Respondents' Joint Proposed Final Order filed. |
| Dec. 20, 1994 | Respondent Southwest Florida Water Management District`s Supplemental Proposed Final Order (For HO Signature) filed. |
| Dec. 20, 1994 | Respondents Joint Proposed Final Order; Computer disk copy of Proposed Final Order (For HO Signature) filed. |
| Dec. 19, 1994 | Notice Of Filing Petitioner Ward's Proposed Final Order; Petitioner Ward's Proposed Final Order; (For HO Signature) Disk Word Perfect 5.1 Proposed Final Order filed. |
| Dec. 19, 1994 | (L. Curtin) Notice Of Adoption Of Proposed Final Order filed. |
| Dec. 19, 1994 | Florida Electric Power Coordinating Group, Inc., The Florida Chamber Of Commerce, Inc., Florida Farm Burau Federation, Association Of Florida Community Developers, Florida Home Builders Association, and Florida Engineering Society, Inc.'s Proposed Final |
| Dec. 19, 1994 | Petitioners, Florida Electric Power Coordinating Group, Inc.` The Florida Chamber Of Commerce, Inc., Florida Farm Bureau Federation, Association Of Florida Community Developers, Florida Home Builders Association, And Florida Engineering Society (Florid |
| Dec. 19, 1994 | (W. Hyde) Proposed Final Order Of St. Joe Paper Company And Florida East Coast Industries, Inc.; Letter to HO from W. Hyde regarding the Proposed Final Order by Petitioners and the proposed rules of the Southwest Florida water Management District filed. |
| Dec. 05, 1994 | Order Granting Respondent's Unopposed Joint Motion for Extension of Page Limitation And Extension of Time to File Proposed Final Orders sent out. (motion granted) |
| Dec. 05, 1994 | Respondents' Unopposed Joint Motion for Extension of Page Limitation and Extension of Time to File Proposed Final Orders filed. |
| Nov. 02, 1994 | Transcripts (Volumes 10 thru 18/tagged) filed. |
| Oct. 17, 1994 | Transcripts (9 Volumes/tagged) filed. |
| Oct. 12, 1994 | Hearing Exhibits filed. |
| Oct. 12, 1994 | Respondents Joint Exhibits (One box/tagged from M. LaHart) filed. |
| Oct. 10, 1994 | Exhibits (one TAGGED bos) w/cover letter filed. (from Carolyn S. Raepple) |
| Oct. 10, 1994 | Exhibits (One Box Tagged) W/Cover Letter (from Carolyn S. Raepple) filed. |
| Oct. 07, 1994 | CASE STATUS: Hearing Held. |
| Oct. 07, 1994 | CASE STATUS: Hearing Held. |
| Sep. 28, 1994 | Order of Consolidation sent out. (Consolidated cases are: 94-2722RU,94-2930RP, 94-2935RP, 94-2936RP) |
| Sep. 28, 1994 | Case No/s 94-2719RP, 94-2721RP, 94-2722RU, 94-2929RP, 94-2930RP, 94-2933RP, 94-2935RP, 94-2936RP, 94-3381RP: unconsolidated. |
| Aug. 10, 1994 | Order of Consolidation sent out. (Consolidated cases are: 94-2719RP,94-2721RP, 94-2722RU, 94-2929RP, 94-2930RP, 94-2933RP, 94-2934RP, 94-2935RP, 94-2936RP) |
| Aug. 10, 1994 | Case No/s 94-2719RP, 94-2720RP, 94-2721RP, 94-2722RP, 94-2929RP, 94-2930RP, 94-2933RP, 94-2934RP, 94-2935RP, 94-2936RP: unconsolidated. |
| Jul. 05, 1994 | Order of Consolidation sent out. (Consolidated cases are: 94-2719RP,94-2721RP, 94-2722RP, 94-2929RP, 94-2930RP, 94-2933RP, 94-2934RP, 94-2935RP, 94-2936RP, 94-3381RP) |
| Jul. 05, 1994 | Case No/s: unconsolidated. |
| Jun. 29, 1994 | Response of Petitioner, Florida Phosphate Council, Inc., to Respondents` Joint Motion for More Definite Statement and Request for Oral Argument filed. |
| Jun. 23, 1994 | Case No/s 94-2719RP, 94-2721RP, 94-2722RU, 94-2930RP: unconsolidated. |
| Jun. 21, 1994 | Respondent's Joint Motion for More Definite Statement And Request forOral Argument filed. |
| Jun. 16, 1994 | (Petitioners) Notice of Serving First Set of Interrogatories to Respondent Suwannee River Water Management District; Notice of Serving First Set of Interrogatories to Respondent St. Johns River Water Management District filed. |
| Jun. 16, 1994 | (Petitioners) Notice of Serving First Set of Interrogatories to Respondent Department of Environment Protection; Notice of Serving First Set of Interrogatories to Respondent South West Florida Water ManagementDistrict; Notice of S erving First Set of Inte |
| Jun. 10, 1994 | Respondents Joint Motion to Consolidate (with DOAH Case No/s. 94-2722RU, 94-2719rP, 94-2721RP, 94-2929RP, 94-2930RP, 94-2933RP, 94-2934RP, 94-2935RP, 94-2936RP) filed. |
| Jun. 09, 1994 | Joint Motion to Consolidate (with DOAH Case No/s. 94-2722RU, 94-2719RP, 94-2929RP, 94-2930RP, 94-2933RP, 94-2934RP, 94-2935, 94-2936RP) filed. |
| May 31, 1994 | Joint Response to Order of Assignment; Amended Petition To Determine The Invalidity of Proposed Rules filed. |
| May 27, 1994 | Florida Phosphate Council, Inc's Petition for Leave To Intervene And Request For Formal Hearing filed. |
| May 27, 1994 | Joint Response to Order of Assignment filed. |
| May 27, 1994 | (Petitioners) Amended Petition to Determine the Invalidity of Proposed Rules w/Exhibits F-H filed. |
| May 27, 1994 | Florida Phosphate Council, Inc.`s Petition for Leave to Intervene and Request for Formal w/Exhibits A-E & cover ltr filed. |
| May 23, 1994 | Order of Assignment sent out. |
| May 20, 1994 | Letter to Liz Cloud & Carroll Webb from J. York w/cc: Agency General Counsel sent out. |
| May 13, 1994 | Petition to Determine the Invalidity of Proposed Rules; 1 Expando Folder of Exhibits to Petition filed. |
| Issue Date | Document | Summary |
|---|---|---|
| May 22, 1996 | Opinion | |
| Jul. 24, 1995 | DOAH Final Order | Engineer had standing to challenge Environmental Rules Permitting (ERP). Rules are valid. |
