STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GBS GROVES, INC., and )

WITHERS AND HARSHMAN, INC., )

)

Petitioners, )

)

vs. ) CASE NO. 96-0879RP

) FLORIDA DEPARTMENT OF AGRICULTURE ) AND CONSUMER SERVICES, )

)

Respondent. )

)

FINAL ORDER

Upon due notice, William R. Cave, Hearing Officer, Division of Administrative Hearings (Division), held a formal hearing in this matter on July 11, 1996, in Lakeland, Florida.

APPEARANCES

For Petitioner: James T. Griffiths

Qualified Representative 2930 Winter Lake Road Lakeland, Florida 33803

For Respondent: Robert G. Worley, Esquire

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

STATEMENT OF THE ISSUE

Does the Florida Department of Agriculture and Consumer Services (Department)'s proposed rule 5E-1.023 constitute an invalid exercise of delegated legislative authority?

PRELIMINARY STATEMENT

By Petition filed February 21, 1996, Petitioners challenged as an invalid exercise of delegated legislative authority the Department's proposed rule 5E-1- 023, as published in the Florida Administrative Law Weekly, Volume 22, Number 5, on February 2, 1996. This matter was initially scheduled to be heard on March 18, 1996, but the hearing was cancelled upon the granting of an unopposed motion for continuance filed by Petitioners. The matter was rescheduled to be heard on July 11, 1996.

At the hearing, Petitioners testified on their own behalf and offered the testimony of Larry R. Gies, Edgar Davis, William G. Roe, II, Dr. H. J. Reitz, Dr. Robert C. J. Koo, Dr. Ivan Stewart and Dr. Ashok Alva. Petitioners'

exhibits 1 through 35 were received as evidence. The Department offered the testimony of Richard J. Budell, Kenneth Kuhl and Walt Kender. The Department's exhibits 1 through 10 were received as evidence. The parties' Joint Prehearing Stipulation (Joint Exhibit 1) was received as evidence.

Dr. Griffiths was determined to be a qualified representative. A transcript of the Final Hearing was filed with the Division of

Administrative Hearings (Division) on August 7, 1996. The parties timely filed

their respective Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Final Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings are made:

1. On February 2, 1996, the Department published in the Florida Administrative Weekly, Volume 22, Number 5, the text of proposed rule to be known as Rule 5ER-1.023, which the Department indicated that it intended to adopt. The proposed rule reads:

   
   

   5E-1.023 Fertilizer.

   
   

   Procedures for Landowners and Leaseholders to Submit the Notice of Intent to Comply with Nitrogen Best Management Practices (BMPs).

   1. Definitions

      1. "Interim Measures" means primarily horticultural practices consistent with the fertilizer recommendations published by the University of Florida or the Florida Agricultural and Mechanical University, or modified by the Department, to reflect public input.

      2. "Notice of Intent to Comply with BMPs" means a notice of intent to comply with nitrogen Interim Measures and/or BMPs, or

      to no longer apply fertilizers or other soil-applied nutritional materials containing nitrogen.

   2. Notice of Intent to Comply with Nitrogen BMPs and all document requests made of the department must be submitted

      to the Environmental Administrator, Florida Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services, 3125 Conner Blvd., Tallahassee, Florida 32399-1650. Proof of providing Notice of Intent to the Department must be retained by the submitter.

   3. The Notice must contain the following information related to the implementation of the BMPs and Interim Measures: the name of the BMP or Interim Measures to be followed,

      the date of implementation, the name or other identification of the parcel or land unit upon which the practices will be implemented, the county(s) where said parcels are located, and the signature of the landowner(s) or leaseholder(s).

   4. The Department will consider requests to: (a) adopt Best Management Practices and Interim Measures as defined in this rule, other than those incorporated herein, in accordance with Section 576.045(3)(b), Florida Statutes; and, (b) modify adopted Best Management Practice and Interim Measures as defined in this rule based upon submission of adequate data in accordance

      with Section 576.045(3)(b), Florida Statutes.

   5. Approved Nitrogen BMPs

      1. Shadehouse Grown Leatherleaf Ferns. The BMP for Shadehouse grown leatherleaf ferns found in the University of Florida, Cooperative Extension Service, Institute of Food and Agricultural Sciences Bulletin 300 (published February 1995), Irrigation and Nutrient Management Practices for Commercial Leatherleaf Fern Production in Florida" is hereby adopted. Copies may be obtained from

         Central Florida Research and Education Center, Institute of Food and Agricultural Sciences, University of Florida, 2807 Binion Road, Apoka, Florida 32707. The associated record keeping requirements specified in "Record- keeping For The Nitrogen Best Management Practices For Shadehouse Grown Leatherleaf Ferns" dated 12-01-95 is also adopted.

         Copies are available from the Department of Agriculture and Consumer Services, Division of Agricultural Environmental Services, 3125 Conner Blvd., Doyle Conner Building, Tallahassee, Florida 32399-1650.

   6. (a) Approved Nitrogen Interim Measures.

      1. Citrus. [The approved "Nitrogen Interim Measure For Florida Citrus", dated 12-01-95], and the associated recordkeeping requirements dated 12-01-95 [are hereby adopted and incorporated by reference into this rule]. Copies may be obtained from the Department of Agriculture and Consumer Services, Division of Agricultural Environ- mental Services, 3125 Conner Blvd. Doyle Conner Building, Tallahassee, Florida

      32399-1650. The foregoing documents are incorporated by reference into this rule. [Emphasis added]

      Specific Authority 576.045 FS. Law Implemented 576.045. History - New

2. Section 576.011(2), Florida Statutes, provides:

   
   

   (2) "Best-management practices" means practices or combinations of practices determined by research or field testing in representative sites to be the most effective and practicable methods of fertilization designed to meet nitrate groundwater quality standards, including economic and technological considerations.

   
   

3. Because of the lack of research or field testing with citrus to determine the most practicable methods of fertilization of citrus in conjunction with nitrate groundwater quality standards, the Department is proposing the Nitrogen Interim Measure for Florida Citrus rather than Best-management practices for citrus. Interim Measures is not defined by statute. However, the Department has defined Interim Measure in proposed rule 5E-1.023.

   
   

4. For 1, 2, and 3 year old citrus groves, the Approved Nitrogen Interim Measure For Florida Citrus (Nitrogen Interim Measure), dated 12-01-95, provides for maximum nitrogen (N) rates per calendar year to be determined by set amounts of N per tree. The range of annual N rates for groves four years old or older is set out in pounds per acre. For oranges the range is 120 - 240 pounds of N per acre per year. For grapefruit the range is 120 - 210 pounds N per acre per year.

   
   

5. On February 21, 1996, Petitioners filed a Petition challenging the Department's proposed rule 5E-1.023 on the basis that the proposed rule was an invalid exercise of delegated legislative authority. More specifically, the Petitioners challenges the Nitrogen Interim Measure dated 12-01-95, and more particularly, that portion of the Nitrogen Interim Measure setting the range of annual N rates for grapefruit and oranges in groves four years old or older which Petitioners contend is arbitrary and capricious.

   
   

6. GBS Groves, Inc. is a Florida corporation which owns a grapefruit grove in Polk County, Florida and such corporation is solely owned by James T. Griffiths and Anita N. Griffiths.

   
   

7. Withers and Harshman, Inc. is a Florida corporation owning grapefruit groves in Polk County and Highlands County, Florida with its principal place of business located in Sebring, Highlands County, Florida.

   
   

8. Petitioners would be substantially affected by the adoption of this proposed rule and thereby have standing to bring this action.

   
   

9. The parties have stipulated that:

   
   

   1. on November 5, 1993, the Department gave notice in the Florida Administrative Weekly of its intent to adopt proposed rule 5E-1.023; and

   2. proposed rule 5E-1.023 implements Section 576.045(6), Florida Statutes, by:

   1. establishing procedures for landowners and leaseholders to submit notice of intent to comply with nitrogen best management practices (BMPs) and interim measures; (2)

      adopting a specific BMP for shadehouse grown fern; and (3) adopting an interim measure for citrus.

      
      

10. Petitioners concede that their challenge to the proposed rule is based solely on Section 120.52(8)(e), Florida Statutes, in that the proposed rule is arbitrary and capricious.

    
    

11. Prior to, and independent of, the Department's work on proposed rule 5E-1.023, the faculty of the University of Florida, Institute of Food and Agricultural Sciences (IFAS), had begun work on revising IFAS's citrus fertilization guidelines. This revision eventually became SP 169, Nutrition of Florida Citrus Trees (SP 169), and supersedes the Agricultural Experiment Station Bulletin 536 series A through D, Recommended Fertilizers and Nutritional Sprays for Citrus (Bulletin 536), which had provided guidelines for Florida citrus fertilization since 1954. SP 169 is the official position of IFAS on the subject of nutritional requirements for citrus in Florida.

    
    

12. Sometime around August 1994, Department met with and requested IFAS to provide the Department with a interim measure for citrus fertilization which could be adopted by the Department. The Department reviewed the first draft of the proposed interim measure for citrus fertilization prepared by IFAS and concluded that it would not be acceptable to the citrus industry because it was too detailed. Thereafter, the first draft was revised by IFAS and now appears as: 6. Fertilizer Guidelines, SP 169, pages 21 through 25.

    
    

13. While IFAS's interim measure contains many recommendations, the recommendation most relevant to this proceeding is the recommended range of the annual rate of N for groves four years old or older. The recommended rates are expressed in pounds of N per acre per year. For oranges a range of 120 - 200 pounds of N per acre per year is recommended. For grapefruit a range of 120 -

    160 pounds of N per acre per year is recommended. For other varieties a range of 120 - 200 pounds per acre per year is recommended. SP 169 also provides the criteria, including, but not limited to, soil load, varieties, leaf and soil analysis, fertilizer placement and application frequency and timing for determining a rate within the recommended range and to exceed the upper level of the range. Using these criteria a range of 120 - 180 pounds of N per acre per year for grapefruit can be supported and range of 120 - 240 pounds of N per acre per year for oranges can be supported.

    
    

14. SP 169 also recommends that all available sources of N, including, but not limited to, organic sources and foliar applications, be included in the calculation of the annual N rate. Also recommended is that while the annual N rate may be exceeded in any given calendar year, the average annual rate over three years should not exceed the guidelines.

    
    

15. Subsequent to receiving the proposed citrus interim measure from IFAS, the Department held a series of meetings and public workshops wherein growers and representatives from the fertilizer industry and grower organizations were given an opportunity to be heard and to make suggestions.

    
    

16. In an effort to make the interim measure more flexible so as to gain industry acceptance, the Department compromised on several of the citrus fertilization guidelines set out in SP 169. The comprises were: (a) not to include any N from foliar application in the calculation of the annual N rate;

    (b) to include only fifty percent of the total N content of the source from all organic sources in the calculation of the annual rate of N; and (c) increase the

    recommended range of the annual rate of N for grapefruit and oranges to 120 -

    210 pounds per acre and 120 - 240 pounds per acre, respectively, without considering the criteria set out in SP 169 for determining a rate within the recommended range or to exceed the upper limits of the range.

    
    

17. In deciding not to include any N from foliar application in the calculation of the annual rate of N, the Department considered: (a) the fact that N from foliar application would be quickly absorbed through the leaf and reduce the likelihood of any N leaching into the ground water; (b) that the cost of foliar application of N would prevent the indiscriminate use of foliar application of N; and (c) that foliar application would give the grower wishing to obtain maximum yield a source of N not included in the calculation of the annual rate. However, the Department did not consider the additional cost of the N to the grower who heretofore had used sources of N other than foliar application for obtaining maximum yield.

    
    

18. In making the decision to include only 50 percent of the content of the source of N from all organic sources the Department took into consideration the public policy of encouraging the use of municipal sludge and other similar products, and the fact that on an average only fifty percent of the content of the source of N would be an available source of N. Although IFAS disagreed with the Department on not counting all the N in organic sources, IFAS did agree that since it was not known how much of the N in organic sources was immediately available, the figure of 50 percent of the content of the source was as good a figure as any.

    
    

19. Increasing the range of the annual rate of N per acre from 120 - 160 pounds to 120 - 180 pounds for grapefruit and from 120 - 200 pounds to 120 - 240 pounds for oranges came about as a result of a meeting on April 20, 1995, at Florida Citrus Mutual. Apparently, the justification for the increase was due to the recommendations contained in the Criteria for selecting a rate within the recommended rate set out in SP 169, Fertilizer Guidelines which provides:

    
    

    Crop load. Nitrogen requirements vary as crop load changes. Replacement of N lost by crop removal is the largest requirement for N. Groves producing low to average crops do no require high fertilizer rates. Higher rates may be considered for very productive groves. Rates for oranges up to

    240 lb per acre may be considered for groves producing over 700 boxes per acre. However, rates above 200 lb per acre should be used only if there is a demonstrated need based on leaf analysis, and if optimal fertilizer placement, timing, and irrigation scheduling are employed. For grapefruit producing over

    800 boxes per acre, 180 lb N may be considered.

    
    

20. The increase in the range of the annual rate per acre of N from 120 -

    180 pounds to 120 - 210 pounds for grapefruit came about as result of Dr. Koo's concern over a potassium deficiency. Most fertilizers are formulated on a 1 to

    1 ratio of N and potassium, and the application of only 180 pounds of potassium could result in a potassium deficiency. The Department did not consider if citrus trees could absorb N and potassium in a ratio other than a 1 to 1 which would have allowed the proper application of potassium without increasing the annual N rate.

21. The following language appears in SP 169, Fertilizer Guidelines, 6.2 Bearing Trees:

    
    

    Rates of 0.4 lb N per box for oranges land

    1. lb N per box for grapefruit were recommended previously. With good manage- ment, oranges frequently exceed 600 boxes per acre and grapefruit production is commonly above 800 boxes per acre. Use of

    2. lb N per box in groves producing over

    500 boxes per acre results in application of over 200 lb N per acre. The advantage of rates above 200 lb has not been demonstrated. Economic benefits are quest- ionable, and the potential for groundwater contamination increases. A significant yield response to rates above 200 lb N per acre appears unlikely, and other management

    practices should be first evaluated if grove performance at 200 lb N per acre is not satisfactory.

    
    

22. Experts, both growers and researchers, testifying for Petitioners and previous IFAS Research Bulletins on citrus fertilization, disagree with the statements: (a) that the advantage of annual rates of N above 200 pounds per acre has not been demonstrated; (b) that economic benefits of annual rates of N above 200 pounds per acre are questionable; and (c) that a significant yield response to annual rates of N above 200 pounds per acre appears unlikely. This language also appears to be in conflict the language quoted above dealing with the criteria, "Crop load". Petitioners' experts and previous IFAS Research Bulletins disagree with the conclusion that there is a basis for a higher annual rate of N per acre for oranges over grapefruit.

    
    

23. On November 14, 1995, the Department presented the citrus Interim Measure which recommended a range of 120 - 210 pounds N per acre annual rate for grapefruit and a range of 120 - 240 pounds N per acre annual rate for oranges to the Fertilizer Technical Council. After hearing testimony on the merits of the citrus Interim Measure, the Fertilizer Technical Council voted to recommend changing the citrus Interim Measure to provide that oranges and grapefruit be treated the same with a range of annual N rate per acre of 120 - 240 pounds for both. The Commissioner of Agriculture did not accept the recommendation from the Fertilizer Technical Council.

    
    

24. In addition to the Fertilizer Technical Council, a large segment of the citrus industry, including, but not limited to, growers and grower organizations, expressed their approval of using the same range of annual rates of 120 - 240 pounds of N per acre for both oranges and grapefruit. However, the Department had already compromised by increasing the maximum annual rate of nitrogen per acre for grapefruit by 30 pounds above the maximum annual rate suggested by IFAS in SP 169, while leaving the maximum annual rate of nitrogen per acre for oranges at 240 pounds, the maximum rate suggested by IFAS in SP 169.

    CONCLUSIONS OF LAW

    
    

25. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Sections 120.54(4) and 120.57(1), Florida Statutes.

    
    

    26. Sections 576.045(1), (4)(a)3., (5)(a)3. and (6), Florida Statutes, provide in pertinent part:

    
    

    1. FINDINGS AND INTENT.--

       1. The Legislature finds that nitrate residues have been found in groundwater and drinking water in various areas throughout the state at levels in excess of established water quality standards. The Legislature further finds that some fertilization practices could be a source of nitrate contamination.

       2. It is the intent of the Legislature to improve fertilizer-management practices as soon as practicable in a way that pro- tects the state's water resources and pre- serves a viable agricultural industry. This goal is to be accomplished through research concerning best-management prac- tices and education and incentives for the agricultural industry and other major users of fertilizers.

* * *

1. WAIVER OF LIABILITY.-- Notwith-

   standing any provision of law, the Department of Environmental Protection is not authorized to institute proceedings against any person under the provisions of s. 376.307(5) to recover any costs or damages associated with nitrate contamination of groundwater, or the evaluation, assessment, or remediation of nitrate contamination of groundwater, including sampling, analysis, and restor- ation of potable water supplies, where the nitrate contamination of groundwater is determined to be the result of the appli- cation of fertilizers or other soil-applied nutritional materials containing nitrogen, provided the property owner or leaseholder:

   * * *

   3. Implements practicable interim measures identified and adopted by the department which can be implemented immediately or according to rules adopted by the

   department. . . .

   * * *

2. COMPLIANCE--If the property owner or leaseholder implements best-management practices that have been verified by the Department of Environmental Protection to be effective at representative sites and

   complies with the following, there is a presumption of compliance with state nitrate groundwater quality standards:

   * * *

   3. Implements practicable interim measures identified and adopted by the department which can be implemented immediately or according to rules adopted by the

   department. . . .

   * * *

3. RULEMAKING.--

   1. The department, in consultation with the Department of Environmental Protection, Department of Health and Rehabilitative Services, the water management districts, environmental groups, the fertilizer industry, and representatives from the

affected farming groups, shall adopt rules to:

1. Specify the requirements of best- management practices to be implemented by property owners and leaseholders.

2. Establish procedures for property owners and leaseholders to submit the notice of intent to comply with best-management practices.

3. Establish schedules for implementation of best-management practices, and of interim measures that can be taken prior to adoption of best-management practices.

4. Establish a system to assure the implementation of best-management practices, including recordkeeping requirements.

1. Petitioners contend that proposed rule 5E-1.023 is an invalid exercise of delegated legislative authority in that the proposed rule is arbitrary and capricious.

   
   

2. The burden is upon the Petitioners to demonstrate, by a preponderance of the evidence, that the proposed rule is an invalid exercise of delegated legislative authority. Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA. 1978), cert. denied, 376 So.2d 74 (Fla. 1979). An invalid exercise of delegated legislative authority is defined by Section 150.52(8), Florida Statutes, which in pertinent part provides:

   
   

   (8) "Invalid exercise of delegated legislative authority" means action which goes beyond the powers, function, 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:

   * * *

   (e) The rule is arbitrary or capricious.

   
   

3. The law is well settled on the definition of the terms arbitrary and capricious. A rule or proposed rule is arbitrary or capricious if it is not supported by fact or logic, if it was adopted without thought or reason, or if

   it is not otherwise based on competent substantial evidence. Humana, Inc. v. Department of Health and Rehabilitative Services, 469 So.2d 889 (1st DCA Fla. 1985). Specifically, a "capricious" action is one taken without thought or reason, or which is taken irrationally. An "arbitrary" action is one taken that is not supported by facts or logic or is despotic. See, Agrico, 365 So.2d 759. The burden is placed on the Petitioners to demonstrate that the proposed rule is arbitrary and capricious. Cataract Surgery Center v. Health Care Cost Containment Board, 581 So.2d 1359 (Fla. 1st DCA 1991).

   
   

4. The Petitioners have failed to show by a preponderance of the evidence that the proposed rule, specifically the "Approved Nitrogen Interim Measure For Florida Citrus", is arbitrary or capricious, and thereby an invalid exercise of delegated legislative authority. The Department did not act without thought or reason, and its action was supported by facts and logic.

ORDER

Based on the foregoing, it is hereby

ORDERED that Petitioners' challenge to proposed rule 5E-1.023 is dismissed. DONE AND ENTERED this 23rd day of September, 1996, in Tallahassee, Florida.

WILLIAM R. CAVE, 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 23rd day of September, 1996.

APPENDIX TO RECOMMENDED ORDER CASE NO. 96-1426

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioners' Proposed Findings of Fact.

1. Proposed findings of fact 1-6, 9-12, 14, 15, 17, 18, 21, 67 and 76-78, are adopted in substance as modified in Findings of Fact 1 through 24.

1. Proposed findings of fact 7, 13, 22-66, 68-75, 79-95 are neither material nor relevant.

2. Proposed finding of fact 8 is adopted except that there was no proposed interim BMP.

3. Proposed findings of fact 16, 19, 20 are adopted except that the Department's action was neither arbitrary nor capricious.

Department's Proposed Findings of Fact.

1. Proposed findings of fact 1 - 15 are adopted in substance as modified in Findings of Fact 1 through 24.

COPIES FURNISHED:

Honorable Bob Crawford Commissioner of Agriculture The Capitol, PL-10

Tallahassee, Florida 32399-0810

Richard Tritschler General Counsel The Capitol, PL-10

Tallahassee, Florida 32399-0810

Dr. James T. Griffiths 2930 Winter Laske Road Lakeland, Florida 33803

Robert G. Worley, Esquire Department of Agriculture and

Consumer Services Room 515, Mayo Building

Tallahassee, Florida 32399-0800

Liz Cloud, Chief

Bureau of Administrative Code The Elliott Building Tallahassee, Florida 32399-0250

Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300

NOTICE OF RIGHT TO APPEAL

A party who is adversely affected by this final order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 96-000879RP

Orders for Case No: 96-000879RP