whether Respondent has implemented an invalid rule pertaining to the issue of "interbasin diversion"; and (c) whether proposed amendments to Chapter 40C-4 are being applied to the Petitioner so as to cause the Petitioner to be affected by these proposed rules.
The parties submitted posthearing memoranda which contain proposed findings of fact. To the extent these proposed finding have not been adopted or otherwise incorporated herein, they have been specifically rejected as irrelevant or not supported by the evidence.
On December 31, 1976, Respondent's territorial jurisdiction was expanded by transfer of substantial areas formerly regulated by other water management districts. The transfer was effected pursuant to legislative revision of Section 373.069, F.S., which delineates the geographic boundaries of Florida's water management districts.
The following rule promulgated by Respondent became effective on January 31, 1977, and was amended on February 3, 1981:
40C-4.031 (previously 16I-4.04, Florida Administrative Code). Implementation. These regulations shall become effective February 1, 1981, throughout the District and will be implemented in those areas transferred to the St. Johns River Water Management District from the Central & Southern Florida Flood Control District and the Southwest Florida Water Management District on the same date. Implementation in other areas will be effected pursuant to public hearing at subsequent dates determined by the Board.
The regulations implemented by the above rule establish permitting procedures for projects which involve holding, diversion, or discharge of significant quantities of water. However, permits are required only in the transferred territory.
Petitioner owns 11,500 acres located within the territory where permits are required. Petitioner seeks to improve his property for agricultural purposes, which involves the holding and diversion of surface waters. He has accepted Respondent's determination that his property is within the permitting area and has filed the requisite application.
However, Petitioner contends that he is unable reasonably to confirm Respondent's determination that his property is situated in the regulated territory. Respondent demonstrated that a determination can be made by comparing the statutory descriptions of Respondent's jurisdiction prior to and after the transfer, and has maps available which reflect the permitting area. To accomplish this task independently requires knowledge of legal territorial descriptions (section, township, range) and a laborious comparison of legal descriptions set out in the 1975 and 1977 versions of the Florida Statutes.
At the time reorganization of the water management districts became effective (December 31, 1976) , Respondent had limited regulatory capability. Its decision to implement permitting only in the transferred territory was based on this limited capability and the need to preserve continuity 1/ in areas where permits had previously been required.
In the years following this decision, Respondent has continued to require permits only in those areas transferred in 1976. The evidence established that the boundary between the regulated and unregulated areas is one of convenience and has no hydrological or other scientific basis.
Respondent is considering a revision of its rules to become effective sometime in 1982. This revision may enlarge the permitting territory and modify the criteria for grant or denial of permits.
Petitioner asserts that his application is being evaluated by rules not yet adopted and fears that new standards may be applied after hearing on the application, which is now under consideration pursuant to Subsection 120.57(1), F.S., (DOAH Case No. 81-1588). Hearing is scheduled for December, 1981.
In support of this contention, Petitioner points to the technical staff report prepared in May, 1981, which recommends denial of the application giving, among others, the following reasons:
Volumes 1 and 2 of Phase 1 of the Upper
Basin Plan catalogue a history of a diminish- ing water resource in the upper basin. The water resources in the upper basin have been harmed and the proposed project aggravates the existing harm to the resource. Moreover the proposed project is inconsistent with
the overall objectives of the district for the upper basin. Resolutions 75-11 and 81-2, the 1977 Management Plan, and Volumes 1 and
2 of Phase I of the Upper Basin Plan indicate that the objectives of the District are to curtail inter-basin diversion and maintain and enhance, if possible, the existing hydro- logic regime in the upper basin. The pro- posed project is not in conformance with either of these statutory requirements. (Emphasis added.)
An earlier technical staff report prepared in November, 1980, recommended grant of the application, with some modification. This report did not refer to inter-basin diversion.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Petitioner is substantially affected by Respondent's permitting procedures. Section 120.56, F.S. (1979).
In Section 120.56 proceedings, the burden is upon one who attacks an agency rule to show that it is an invalid exercise of delegated legislative authority. See Agrico Chemical Co. v. State, 365 So.2d 759, 763 (Fla. 1st DCA 1979). A rule not adopted in accordance with the rulemaking procedures prescribed by Section 120.54 is invalid. Department of Environmental Regulation
v. Leon County, 344 So.2d 297, 299 (Fla. 1st DCA 1977).
Rule 40C-4.031, F.A.C., is not an invalid exercise of delegated legislative authority by reason of its failure to detail the territory where permits are required. Since this territory can be determined with precision starting with the information contained in the rule, there is no inherent ambiguity. Furthermore, Respondent maintains maps of the regulated area which it makes available to the public. Therefore, no practical reason exists to require promulgation by rule of territorial meters and bounds.
Subsection 373.074(1), F.S. (1977), provides:
It is the intent of the Legislature to
make the transfer of areas, and concomitant transfer of duties, responsibilities, assets, and related matters, as smooth and equitable as possible, preserving continuity wherever possible and desirable.
Subsection 373.413(1), F.S. (1977) provides:
Except for the exemptions set forth herein, the governing board or the depart- ment may require such permits and impose
such reasonable conditions as are necessary to assure that the construction or altera- tion of any dam, impoundment, reservoir, appurtenant work, or works will not be harmful to the water resources of the dis- trict. The department or the governing board may delineate areas within the dis- trict wherein permits may be required and may establish minimum size limitations below which permits may be issued without a public hearing, but in no event shall such limitations be extended to dams, impoundments, reservoirs, appurtenant
work, or works impounding or diverting waters exceeding 640 acres in area.
Section 373.113, F.S. (1977) provides:
In administering the provisions of this chapter the governing board shall
adopt, promulgate, and enforce such regu- lations as may be reasonably necessary to effectuate its powers, duties, and func- tions pursuant to the provisions of chap- ter 120.
Chapter 373, F.S., establishes state water conservation management policies, and assigns certain responsibilities to water management districts, including permit granting authority. Respondent's decision initially to require permits only in those areas transferred was consistent with legislative intent, the authority delegated to it, and the resources then available. Thus, in 1977, the boundary between regulated and unregulated areas was reasonable and not arbitrary. Nearly five years have passed, however, and the distinction between regulated and unregulated areas no longer has any transitional meaning.
Petitioner has no basis to complain that neighboring property owners remain free from regulation due to agency procrastination, since he has suffered no injury as a result of this delay. The wrong here, if any, is that the agency has failed to regulate the larger territory. A determination that the challenged rule is an incomplete exercise of delegated legislative authority does not make such exercise of authority invalid within the meaning of Subsection 120.56 (1), F.S.
Respondent's Rule 40C-4.301, F.A.C., sets forth detailed conditions for issuance of permits and establishes criteria which may result in denial. This rule became effective on January 31, 1977, and was amended effective February 3, 1981. It contains no reference to "interbasin diversion" as a permitting criteria or concept.
Respondent maintains that Rule 40C-4.301, F.A.C., contains adequate permitting criteria with respect to alterations in rates of flow, and that Respondent does not, therefore, need to utilize interbasin diversion as a permitting concept. This argument is not persuasive. Respondent's latest technical staff report (extract quoted above) is the basis for its intent to deny Petitioner's permit application and includes findings with respect to interbasin diversion.
Thus, Respondent has evidenced the use of interbasin diversion as a policy having general applicability in its evaluation of permit applications. As such, it is a "rule" within the meaning of Subsection 120.52(14), F.S., and may be applied only upon adoption pursuant to Section 120.54, F.S.
Petitioner is not content to prevent Respondent from utilizing interbasin diversion as a permitting concept at this stage of proceedings. Rather, Petitioner fears that Respondent will adopt and apply more stringent permitting standards prior to the entry of its final order in Case No. 81-1588.
Section 120.54, F.S., requires that Respondent give notice of intent to modify its permitting rules. This provision allows substantially affected persons to participate in rule adoption proceedings. These procedures will afford Petitioner ample protection in matters which are, at this time, speculative.
