STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA AQUATIC WEED CONTROL, INC., )

)

Petitioner, )

and )

)

POLK COUNTY, )

) CASE NO. 83-3990RX

Intervenor, )

)

vs. )

) DEPARTMENT OF NATURAL RESOURCES, )

)

Respondent. )

)

FINAL ORDER

This administrative rule challenge was heard on March 12, 1984, by R. L. Caleen, Jr., Hearing Officer with the Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Glenn N. Smith, Esquire

1 Corporate Plaza, Penthouse B

110 East Broward Boulevard Past Office Box 1900

Ft. Lauderdale, Florida 33302

For Intervenor: Dawn Grant Kahre, Esquire

Office of the County Attorney Post Office Box 60

Bartow, Florida 33830

For Respondent: Charles J. Hardee, Esquire

Suite 1003, Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

ISSUE

Whether a Department of Natural Resources' memorandum interpreting a department rule exempting certain aquatic plant control activities from permitting requirements is an unpromulgated rule and therefore an invalid exercise of delegated legislative authority.

BACKGROUND

On December 27, 1983, Florida Aquatic Weed Control, Inc. ("Petitioner") filed a petition challenging the validity of a memorandum issued by respondent

Department of Natural Resources ("DNR"). Specifically, Petitioner alleged that DNR issued a policy statement in the form of a memorandum, dated December 2, 1982; that this policy statement is a rule within the meaning of Section 120.52(15), Florida Statutes, and that it is void since it was not formally adopted as such.

Hearing was thereafter set for February 13, 1984, then continued on the parties' request and reset for March 12, 1984. Polk County was granted intervenor status.

At hearing, Petitioner and intervenor presented the testimony of Thomas Latta, Paul Meyers, and Mike Mahler. DNR presented no witnesses. Petitioner's Exhibit Nos. 1 through 6 were received into evidence.

Post-hearing proposed findings of fact and conclusions of law were filed by April 4, 1984. Those proposed findings which are incorporated in this order are adopted; otherwise they are rejected as unsupported by the evidence or unnecessary to resolution of the issues presented.

Based on the evidence presented, the following facts are determined: FINDINGS OF FACT

1. In 1982, DNR adopted Chapter 16C-20, Florida Administrative Code--rules governing the administration of the aquatic plant control program of this state. Under these rules persons must obtain permits from DNR prior to engaging in aquatic plant control operations. Rule 16C-20.035, however, grants specific exemptions to this permitting requirement:

   
   

   1. No permit is required by the Department of persons who undertake the following specific aquatic plant control operations:

      1. Control activities undertaken in waters owned by one person, other than the State, which do not discharge to waters or property owned by other persons.

         * * *

         (g) Control activities in water of 10 surface acres or less.

         
         

2. On December 2, 1982, the DNR memorandum in question was issued to "clarify" these two exemptions. As to the Subsection 1(a) exemption, above, the memorandum states:

   
   

   A permit is required if the waters discharge into adjacent waters. A discharge includes

   standing as well as flowing water connections. . . .

   
   

   (Petitioner's Exhibit No. 2)

   
   

3. As to the Subsection (1)(g) exemption, the memorandum states:

   
   

   Again, if there is a standing or flowing connection to other waters, the surface acreage, including adjoining waters must be considered when totaling the acreage.

   (Petitioner's Exhibit No. 2)

   
   

4. DNR has not promulgated the "clarifying" language in this rule memorandum as a rule in accordance with the rule-making procedures of Section 120.54, Florida Statutes.

   
   

5. Based, at least in part, upon this interpretive memorandum, DNR issued a Cease and Desist letter to petitioner on May 11, 1983. In this letter, DNR alleged that petitioner applied aquatic herbicides to certain waters in Broward County without first obtaining the required permit. According to the letter, the water in question did not meet the exemption criteria "since there was a continuous connection and frequent water exchange with the adjacent waters of the Old Plantation Water Control Water District." (Petitioner's Exhibit No. 3)

   
   

6. Intervenor Polk County operates an aquatic weed control program, which includes the use of aquatic herbicides. The DNR permitting exemption provisions, and the challenged memorandum interpreting them, substantially affect the operation of its program.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding. Both petitioner and intervenor are substantially affected by the challenged memorandum within the meaning of Section 120.56, Florida Statutes.

   
   

8. Section 120.52(15), Florida Statutes, defines a rule as:

   
   

   Each agency statement of general applicability that implements, interprets, or prescribes law or policy. . . .

   
   

   In McDonald v. Department of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977), the court amplified this statutory definition by holding that a rule is a statement of general applicability, which is intended, by its own effect, to create rights, or to require compliance, or to otherwise have the direct and consistent effect of law. Agency statements which are rules but have not been adopted as rules according to the rulemaking procedure of Section 120.54 are invalid or illicit rules--and subject to invalidation in Section 120.56 proceedings. State Department of Administration v. Stevens, 344 So. 2d 290 (Fla. 1st DCA 1971). In deciding whether an agency statement is a rule, the agency's characterization of the statement is not controlling. State Department of Administration v. Harvey, 356 So. 2d 323, 325 (Fla. 1st DCA 1977) ("The breath of the [statutory] definition . . . indicates that the legislature intended the term to cover a great variety of agency statements regardless of how the agency designates them.")

   
   

9. Agencies are entitled to some leeway in formulating policy through agency orders. McDonald, supra. But that latitude does not permit them to, in effect, adopt a rule without complying with rulemaking procedures. Gulfstream Park v. Division of Pari-mutuel Wagering, 407 So. 2d 263, 265 (Fla. 3d DCA 1981). When an agency statement interprets a statute or rule in a way not readily apparent from the language--or which is not derived directly or indirectly from the language--and that interpretive statement has the consistent effect of law, is a rule within the meaning of Section 120.52(15)--and must be adopted as one. See, e.g., Gulfstream Park, supra; Department of Revenue v.

   U.S. Sugar Corp., 388 So. 2d 596 (Fla. 1st DCA 1980); Amos v. Department of Health and Rehabilitative Services, 444 So. 2d 43, 46 (Fla. 1st DCA 1983).

   
   

10. All agency statements of policy, however, are not rules. As stated in McDonald:

    
    

    The APA does not chill the open development of policy by forbidding all utterance of it except under the strict rule making process of Section 120.54 . . . The folly of imposing rule making process of all statements of incipient policy is evident.

    
    

    346 So. 2d at 580.

    
    

    After conceding that the Comptroller's statement was, in a pedantic sense, a rule because it had the appearance of an agency statement of general applicability that implements, interprets, or proscribes law or policy, the McDonald court observed:

    
    

    It would immediately stifle Department policymaking and ultimately destroy the ABA to label the Comptroller's statement a "rule"

    . . . Given such strictures on policy utterance, public information concerning agency purpose would vanish. Agency orders

    . . . and agency declaratory statements of the applicability of its rules would tend to become arrid, unreasoning edicts because explanation and interpretation, without rulemaking, would be held fatal to the intended action. Florida's APA does not have those bizarre effects. For the Section

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

    
    

    346 So. 2d at 581.

    
    

11. Thus an agency statement of general applicability which interprets law or policy is not a rule when it simply mimics or explains a statutory or rule provision, or expresses an interpretation derived directly or indirectly from the language. This is because it is not intended, by its own effect, to require compliance and otherwise have the direct and consistent effect of law. The agency's policy choice is rooted in the statute or rule, not in the interpretation. Cf. DeDakis v. Florida Real Estate Commission, 388 So. 2d 22 (Fla. 1st DCA 1980).

    
    

12. Measured by these standards, it is concluded that the challenged December 2, 1982, memorandum is not a rule within the meaning of Section 120.52(15), and need not be promulgated as one. The memorandum simply interprets the rule in a logical manner, consistent with the language, without

    contradicting or changing it. The interpretation expressed by the memorandum is reasonably implied by and derived from the language of the rule.

    
    

13. Rule 16C-20.035(1)(a) exempts (from permitting) aquatic plant control activities in waters owned by one person (other than the State) which do not discharge to waters or property owned by others. The challenged memorandum interprets "a discharge" as including "standing as well as flowing water connections." The rule does not define "discharge" so it must be given its commonly accepted meaning. Webster's Third New International Dictionary (unabridged) defines "discharge" to include vent, liberation, set at liberty, release from confinement, and release. This term, then, is broad enough to encompass standing, as well as flowing, water connections to the water or property of others. Both standing and flowing waters are released from or free of the confining boundaries of a discrete water body.

    
    

14. Rule 16C-20.035(1)(g) exempts (from permitting) aquatic plant control activities in water of 10 surface acres or less. When there is a standing or flowing water connection to other surface waters, the challenged memorandum interprets the rule as including the acreage of adjoining waters for purposes of the exemption. This interpretation does nothing more than give effect to the language of the rule. The rule uses "water" in its broadest, unrestricted sense; it is not a term descriptive of discrete, identifiable water body--such as lakes, or ponds. "Water" is not defined in terms of water bodies. 1/ The language of the rule thus logically dictates that all connected and continuing surface water acreage be included for purposes of qualifying for the exemption.

Based on the foregoing, it is

ORDERED: That the Petition to Determine the Invalidity of a Rule filed by petitioner on December 27, 1983, is denied.

DONE and ORDERED this May of June, 1984, in Tallahassee, Florida.

R. L. CALEEN, JR. Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

FILED with the Clerk of the Division of Administrative Hearings this 8th day of June, 1984.

ENDNOTE

1/ But see Rule 16C-20.015(13): "Waters" means rivers, streams, lakes, navigable waters, and associated tributaries, canals, meandered lakes, enclosed water systems and any other bodies of water.

COPIES FURNISHED:

Glenn N. Smith, Esquire

1 Corporate Plaza Penthouse B

110 East Broward Boulevard Post Office Box 1900

Ft. Lauderdale, Florida 33302

Dawn Grant Kahre, Esquire Office of the County Attorney Post Office Box 60

Bartow, Florida 33830

Charles J. Hardee, Esquire Suite 1003, Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32303

Liz Cloud, Chief

Bureau of Administrative Code 1802 Capitol Building

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Elton Gissendanner, Director Department of Natural Resources Executive Suite

3900 Commonwealth Building

Tallahassee, Florida 32303

Docket for Case No: 83-003990RX

Orders for Case No: 83-003990RX