STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOSEPH SMITH, LENA SMITH, ) EUGENE COLWELL, ANNA COLWELL, ) JERRY HARRIS and BRENDA HARRIS, )
)
Petitioners, )
)
vs. ) CASE NO. 93-7109RP
) ST. JOHNS RIVER WATER MANAGEMENT ) DISTRICT, )
)
Respondents, )
and )
) SIERRA CLUB, INC., DEFENDERS ) OF THE ENVIRONMENT, INC., STATE ) OF FLORIDA, DEPARTMENT OF ) ENVIRONMENTAL PROTECTION, and ) ATTORNEY GENERAL OF THE STATE ) FLORIDA, )
)
Intervenors. )
)
FINAL ORDER
Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on February 24 and 25, 1994, in Palatka, Florida, and March 11, 1994, in Gainesville, Florida.
APPEARANCES
For Petitioners: John F. McKeever, Esquire
Post Office Box 1450 Ocala, Florida 32678
For Respondent: Wayne E. Flowers, Esquire
Anthony J. Cotter, Esquire Post Office Box 1429 Palatka, Florida 32178-1429
For Intervenors,
Sierra Club, Inc. Peter Belmont, Esquire and Florida Defenders 511 31st Avenue North
of Environment, Inc.: St. Petersburg, Florida 33704
For Intervenor, Jennifer Mason
Department of Assistant General Counsel
Environmental Florida Department of Regulation: Environmental Regulation
2600 Blair Stone Road Tallahassee, Florida 32399-2400
For Intervenor, Jonathan A. Glogau Attorney General: Assistant Attorney General
Pl-01, The Capitol
Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE
Whether Proposed Rule 40C-2.302, Florida Administrative Code, constitutes an invalid exercise of delegated authority.
Whether a proposed amendment to Rule 40C-2.051(6), Florida Administrative Code, constitutes an invalid exercise of delegated authority.
PRELIMINARY STATEMENT
On November 26, 1993, the Respondent caused a Notice of Intent to be published in the Florida Administrative Weekly announcing the Respondent's intent to adopt proposed Rule 40C-2.302, Florida Administrative Code, and to amend Rule 40C-2.052(6), Florida Administrative Code. On December 17, 1993, the Petitioners filed a Petition for Administrative Determination of Invalidity of Proposed Rules challenging the proposed rule and the proposed amendment. The petition was assigned case number 93-7109.
On December 27, 1993, case number 93-7109 was assigned to the undersigned by Order of Assignment. The requirement of Section 120.54(4)(c), Florida Statutes, that a final hearing be held within thirty days of the assignment was waived by the Petitioners and Respondent. The final hearing was scheduled for February 24 and 25, 1994, by Notice of Hearing entered January 18, 1994.
On December 17, 1993, the Petitioners filed a Request for Public Hearing and For Proceeding Under Section 120.57, Florida Statutes, with the Respondent. Pursuant to this request, the Petitioners sought a "drawout" proceeding concerning the challenged rules pursuant to Section 120.54(17), Florida Statutes.
The request for drawout proceeding was filed by the Respondent with the Division of Administrative Hearings on January 31, 1994. The matter was designated case number 94-0544 and was assigned to the undersigned.
On January 31, 1994, the Respondent filed a Motion to Consolidate. The motion was granted by Order entered February 3, 1994. A separate order is being entered in case number 94-0544 simultaneously with this Final Order.
Petitions to intervene in this case were filed by the Sierra Club, Inc. and the Florida Defenders of the Environment, Inc., the Florida Department of Environmental Protection, and the Attorney General of the State of Florida. The petitions to intervene were granted. The Sierra Club, Inc. and the Florida Defenders of the Environment, Inc., also intervened in case number 94-0544.
On February 21, 1994, a motion hearing was conducted by telephone to consider several motions filed by the Sierra Club, Inc. and Florida Defenders of the Environment, Inc. A motion to dismiss was denied. A ruling on a motion in limine and a motion to strike was reserved. The Petitioners were required to file an amended petition in this case.
At the commencement of the final hearing, the motion in limine was denied and the motion to strike was granted in part, and denied in part.
By agreement, the Respondent presented its case first. This agreement did not, however, shift the burden of proof in this case from the Petitioners.
The Petitioners presented the testimony of O. Charles Swallows. Five exhibits were offered by the Petitioners and were accepted into evidence.
The Respondent presented the testimony of Charles Price Robinson, Greenville Berkeley Hall, James Edwin Weimer and Jeffrey Craig Elledge. Fifteen exhibits offered by the Respondent were accepted into evidence.
The Intervenors did not call any witnesses or offer any exhibits.
The parties stipulated that the facts alleged by each party in their respective petitions concerning their standing were true.
A transcript of the final hearing was filed April 4, 1994. All of the parties filed a proposed final order. All of the proposed orders, except the Attorney General's, contain proposed findings of fact. The Attorney General of the State of Florida adopted the proposed findings of fact of the Respondent.
The proposed final orders filed by the Petitioners and the Sierra Club, Inc., and the Florida Defenders of the Environment, Inc., were styled proposed "recommended orders."
A ruling on each proposed finding of fact contained in the proposed orders filed by the parties has been made either directly or indirectly in this Final Order, or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
FINDINGS OF FACT
The Parties.
The Petitioners, Joseph and Lena Smith, Eugene and Anna Colwell, and Jerry and Brenda Harris, are littoral owners and operators of sports fishing facilities on Orange Lake, a freshwater body of approximately 7,000 acres of open water and 15,000 acres of associated wetlands, whose southern margin constitutes the boundary between Alachua and Marion Counties in north central Florida.
Respondent, the St. Johns River Water Management District (hereinafter referred to as the "District"), is a special taxing district created by Chapter 373, Florida Statutes, charged with the statutory responsibility for the management of water and related land resources; the promotion of conservation, development, and proper utilization of surface and ground water; and the preservation of natural resources, fish and wildlife, pursuant to Chapter 373, Florida Statutes.
Intervenor, the Sierra Club, Inc. (hereinafter referred to as "Sierra"), is a not-for-profit California corporation registered to do business within the State of Florida. Sierra is an international corporation whose purpose is to explore, enjoy and protect the natural resources of the earth.
Intervenor, Florida Defenders of the Environment, Inc. (hereinafter referred to as "Florida Defenders"), is a not-for-profit Florida corporation whose purpose is to preserve and restore Florida's natural resources.
Intervenor, the Florida Department of Environmental Protection (hereinafter referred to as "DEP"), is an agency of the State of Florida charged with the responsibility of controlling and prohibiting pollution of the air and water of the State of Florida. See Chapter 403, Florida Statutes. DEP is also charged with responsibility for management of the Paynes Prairie State Preserve. Section 373.026, Florida Statutes.
Intervenor, the Attorney General of the State of Florida (hereinafter referred to as the "Attorney General"), sits as a Trustee of the sovereignty submerged lands of the State and as one of the legal owners of the State's property including the Paynes Prairie State Preserve.
The Challenged Rules.
The District issued an order on November 7, 1993, authorizing the publication of a notice of intent to amend Chapter 40C-2, Florida Administrative Code, by adopting proposed Rule 40C-2.302, Florida Administrative Code, and amending Rule 40C-2.051(6), Florida Administrative Code (hereinafter jointly referred to as the "Challenged Rules").
Proposed Rule 40C-2.302, Florida Administrative Code (hereinafter individually referred to as the "Reservation Rule"), provides:
40C-2.302 Reservation of Water From Use. The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida, is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. This reservation is for an average flow of [35] cubic feet per second (23 million gallons per day) representing approximately forty five per cent (45 percent) of the calculated historic flow
of surface water through Prairie Creek and Camps Canal.
The specific authority for the Reservation Rule is Sections 373.044, 373.113, 373.171, 373.216 and 373.219, Florida Statutes.
The law implemented by the Reservation Rule is Sections 373.219 and 373.223, Florida Statutes.
The proposed amendment to Rule 40C-2.051, Florida Administrative Code (hereinafter individually referred to as the "Exemption Rule"), provides, in pertinent part:
40C-5.2.051 Exemptions. No permit shall be required under the provisions of this rule for the following water uses:
through (5) No change
(6) Water, whether withdrawn or diverted, when used for purposes of protection of
fish and wildlife or the public health and safety when and where the Governing Board has, by regulation, reserved said water from use by permit applicant pursuant to Subsection 373.223(3), F.S.
The specific authority for the Exemption Rule is Sections 373.044,
373.113 and 373.171, Florida Statutes.
The law implemented by the Exemption Rule is Sections 373.103, 373.171, 373.216, 373.219, 403.501 et seq. and 288.501 et seq., Florida Statutes.
Orange Creek Basin.
Orange Creek Basin is the name given to the hydrological features of approximately 400 square miles of Alachua, Putnam and Marion Counties, Florida.
Orange Creek Basin is a major sub-basin of the Lower Ocklawaha River Basin.
Surface water in the Orange Creek Basin flows generally in a north to south direction.
Orange Creek Basin is made up of several sub-basins, including Newnans Lake, Paynes Prairie, Orange Lake and Lochloosa Lake sub-basins.
Surface water within the approximately 100 square miles of Newnans Lake sub-basin drains into Newnans Lake. When sufficiently high, water in Newnans Lake discharges over a weir structure from the southern end of the lake into Prairie Creek.
The weir structure at the southern end of Newnans Lake may be adjusted to control the amount of water flowing into Prairie Creek. The weir was installed in 1966. It was adjusted by the Florida Game and Freshwater Fish Commission in 1976.
Water flows south into Prairie Creek, the south and southwest through Prairie Creek to two man-made structures. The first is a gated culvert structure consisting of 3 Culverts (the "Camps Canal Culverts"), through which some of the Prairie Creek water enters Paynes Prairie.
The second man-made feature is a levee and a canal named Camps Canal. The levee diverts water in Prairie Creek, which does not flow into Paynes Prairie by gravity, through Camps Canal to the south to the River Styx, which flows into Orange Lake.
If the elevation of surface water in Prairie Creek exceeds 58.91 feet National Geodetic Vertical Datum (hereinafter referred to as "NGVD"), a portion of the volume of Prairie Creek will flow, by gravity, into Paynes Prairie through the Camps Canal Culverts.
The Paynes Prairie sub-basin covers an area of approximately 49 square miles. Surface water in this sub-basin drains into a natural geological feature known as Alachua Sink.
Surface water in the approximately 56 square mile Orange Lake sub- basin flows into Orange Lake.
Surface water flows out of Orange Lake through Orange Creek. Outflow is controlled by Orange Lake Dam. The Orange Lake Dam has a fixed crest elevation of 58 feet NGVD. Water levels in Orange Lake must exceed 58 feet NGVD before there is surface water outflow from Orange Lake.
Surface water within the approximately 75 square mile Lochloosa Lake sub-basin drains into Lochloosa Lake.
Lochloosa Lake has two outlets: Lochloosa Slough in the east and Cross Creek in the south. Cross Creek connects Lochloosa Lake to Orange Lake.
Paynes Prairie State Preserve.
Prior to the construction of the weir at the outlet from Newnans Lake to Prairie Creek, all surface water from Newnans Lake flowed from Newnans Lake to Prairie Creek unimpeded.
Prior to 1927 all surface water in Prairie Creek flowed south into an area known as Paynes Prairie.
Paynes Prairie is located in Alachua County.
All water in Prairie Creek entered Paynes Prairie and flowed across Paynes Prairie to Alachua Sink.
Alachua Sink is a natural geological feature located in the north- central portion of Paynes Prairie.
At Alachua Sink surface water enters the Florida aquifer.
In 1927 a levee was constructed around the eastern boundary of Paynes Prairie, and Camps Canal was excavated in order to divert water from Paynes Prairie. Due to the levee, water in Prairie Creek was diverted into Camps Canal beginning in approximately 1927. The water flowed into the River Styx and then into Orange Lake.
Canals and levees were also constructed within Paynes Prairie to convey surface water in Paynes Prairie into Alachua Sink and Camps Canal.
The modifications to Paynes Prairie made in 1927 were intended to drain Paynes Prairie so that the land could be utilized for agricultural purposes, including the raising of cattle. Paynes Prairie continued to be used primarily for the raising of cattle between 1927 and early 1970.
In 1970, the State of Florida began acquiring parts of Paynes Prairie. Property acquired by the State was used to create the Paynes Prairie State Preserve (hereinafter referred to as the "Preserve"). Land is still being acquired by the State.
The Preserve currently consists of approximately 20,600 acres. Approximately 18,000 acres of the Preserve were acquired within the first 4 years after acquisitions by the State began.
Approximately 12,000 acres are considered wetlands.
Two major highways, U.S. Highway 441 and Interstate 75 run north-south across the middle and western portion of Paynes Prairie. U.S. 441 was constructed in 1927 and I-75 was constructed in 1964.
In 1975 the State of Florida's Department of Natural Resources (which is now DEP) breached the levee at Camps Canal in order to restore part of the water flow from Prairie Creek to the Preserve.
In 1979 flashboard riser Culverts were placed in the breach in the Camps Canal levee.
In 1988 the Camps Canal Culverts were constructed.
The Preserve, a unique land feature, was designated a National Natural Landmark in 1974 by the United States Department of the Interior.
No consumptive use permit concerning water that flows into Paynes Prairie or the Preserve has been issued by the District. No consumptive use permits have been issued by the District for surface water withdrawals from Newnans Lake, Prairie Creek or Orange Creek.
The Current General Hydrologic Condition of the Preserve.
The Preserve is one of the largest continuous wetland systems in Florida and the Southeastern United States.
The Preserve and Paynes Prairie constitute one of the largest wetland areas formed by the collapse of a sinkhole, Alachua Sink.
Since 1975, at least some water has flowed into the Preserve from Prairie Creek through the Camps Canal Culverts and its predecessors.
The "inverts" of the Prairie Creek-Camps Canal Culverts are above the creek-canal bottom. This means that if water in Prairie Creek does not reach a certain level, no water will flow through the Camps Canal Culverts into the Preserve. Under these conditions, all water in Prairie Creek will flow through Camps Canal and eventually to Orange Lake.
The amount of water flowing through the Camps Canal Culverts is also limited to a maximum amount due to the size of the Culverts.
The exact amount of water that may flow through the Camps Canal Culverts into the Preserve depends on the amount of water in Prairie Creek coming from Newnans Lake and the capacity of the Culverts to move the water.
Water flowing into the Preserve through the Camps Canal Culverts constitutes approximately 50 percent of the surface water entering the Preserve.
After water flows into the Preserve through the Camps Canal Culverts it flows in a broad, shallow path, referred to as "sheetflow," over the eastern portion of the Preserve.
The sheetflow from Camps Canal Culverts creates approximately 550 to 600 acres of shallow marsh community.
The water eventually flows into an area known as Alachua Lake in the central portion of the Preserve.
Water discharging from Alachua Lake flows through a water control structure consisting of four gated Culverts, known as the Main Structure, into Alachua Sink.
Water also enters the Preserve from the north through a tributary known as Sweetwater Branch. Water flows through Sweetwater Branch into Alachua Sink. Sweetwater Branch is channelized over its entire length, preventing water from reaching into the Preserve or Alachua Lake.
The District's Purpose in Adopting, and the District's Interpretation of, the Challenged Rules.
The District's intent in adopting the Challenge Rules was to reserve water which the District had concluded is required for the protection of fish and wildlife in Paynes Prairie.
The District is attempting to carry out its intent by providing in the Reservation Rule that whatever amount of water that may flow through the Camps Canal Culverts by gravity into the Preserve may not be used for other purposes.
The District is further attempting to carry out its intent by providing in the Exemption Rule that any amount of water that has been reserved by the District because it is required for the protection of fish and wildlife pursuant to Section 373.223(3), Florida Statutes, exempt from the consumptive use permit process.
The Reservation Rule is not intended to reserve a specific quantity of water for the Preserve. Rather, the Reservation Rule reserves only that amount of water that flows through the Camps Canal Culverts by force of gravity. The intent is to allow the natural existing hydrologic regime of the Preserve to continue.
The quantity of the water reserved by the Reservation Rule is identified, in part, as follows:
The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida,
is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. . . . [Emphasis added].
The last sentence of the Reservation Rule goes on to prove:
This reservation is for an average flow of
[35] cubic feet per second (23 million gallons per day) representing approximately forty five per cent (45 percent) of the calculated historic flow of surface water through Prairie Creek and Camps Canal.
This portion of the Reservation Rule was not included by the District to establish a minimum and/or maximum quantity of water that is being reserved for the protection of fish and wildlife in the Preserve. This portion of the Reservation Rule represents a very condensed summary of the historical hydrologic data relied upon by the District in deciding to reserve water for the Preserve's fish and wildlife.
The Exemption Rule was intended to make clear that any time the District reserves water which it determines is required to protect fish and wildlife or the public safety, that no consumptive use permit is necessary.
The District's Determination that Water is Necessary for the Protection of Fish and Wildlife in Paynes Prairie.
In reaching its decision that the quantity of water flowing through the Camps Canal Culverts by force of gravity into the Preserve is required for the protection of the fish and wildlife of the Preserve, the District relied upon a study of the Orange Creek Basin which District staff had begun in the 1980s.
There were three objectives for the Orange Creek Basin study: (a) the first objective of the study was to develop a predictive hydrologic model that could be used to predict water levels throughout the basin and the water
courses that connect the various major lakes and prairie systems; (b) the second objective of the Orange Creek Basin study was to develop environmental and hydrologic criteria that could be used to evaluate the environmental impacts of different water management alternatives in the basin; and (c) the third objective was to look at alternatives for management of water within the District.
Substantial evidence concerning the manner in which the Orange Creek Basin study was conducted, the results of the study and the rationale for the District's conclusion that the quantity of water flowing through the Camps Canal Culverts by force of gravity is required to protect the fish and wildlife of the Preserve was presented during the final hearing of this case by the District.
The evidence presented by the District to support a finding that the quantity of water flowing through the Camps Canal Culverts by force of gravity is required to protect the fish and wildlife of the Preserve was not rebutted by competent subs by the Petitioners. The only witness called by the Petitioners was an expert in hydrology. The Petitioners' expert only suggested that he had questions about the District's hydrologic study. He was unable, however, to testify that the hydrologic study relied on by the District was unreasonable or inaccurate.
The Petitioners also offered no evidence to counter the testimony of the District's expert on the environment of Paynes Prairie. The testimony of the District's expert proved that, even without the results of the hydrologic study conducted by the District, the evidence concerning the Preserve's environment supports a finding that the water reserved by the Reservation Rule is required for the protection of fish and wildlife.
Generally, the evidence proved that, if the water being reserved is not continued to allow to flow naturally into the Preserve, the range of water fluctuations and the resulting natural impact of the environment of the Preserve will not be achieved.
There exists in the Preserve currently, a range of plant communities and fish and wildlife. The nature of those communities, fish and wildlife depends on the amount of water in the communities. The communities range from those existing in upland areas, which have the lowest levels of water, down to deep marshes, where water levels are the greatest. In between are emergent marsh (also called "shallow marsh"), cypress swamps, mixed scrub-shrub wetland, wet prairie, old field, hudric forest, mesic forest and xeric community.
The various types of communities are in a state of fluctuation depending on the levels of water flowing into the Preserve. The evidence presented by the District, and was uncontroverted by the Petitioners, proved that these fluctuations are environmentally desirable; that natural fluctuations of water levels in the Preserve are required for the protection of fish and wildlife. It is for this reason, therefore, that the District decided to reserve the amount of water flowing by gravity through the Camps Canal Culverts, and not some specified volume.
The Rationale for the District's Finding that Water is Required for the Protection of Fish and Wildlife.
Although the District and some of the Intervenors have proposed several findings of fact that support the ultimate finding of fact that the water reserved by the Reservation Rule is required to protect fish and wildlife. Those findings of fact are subordinate to the ultimate relevant fact in this case. Therefore, rather than rewrite all of those subordinate facts, the District's subordinate findings of fact (which cover those subordinate findings suggested by the Intervenors) will be quoted and adopted in this Final Order.
The findings of fact of the District quoted and adopted herein which relate to the hydrologic portion of the District's study are as follows. The findings have been modified to reflect terms used throughout this Final Order. The findings of the District adopted are District findings of fact 44 through 74:
Surface water hydrologic models are a tool used by water resource professionals to enable them to simulate or calculate certain characteristics of a hydrologic system from data that relates to or is collected from within that system. T. 65, 66, 90, 91, 779.
In this basin, the staff of the District developed a surface water model in order to calculate anticipated water levels and discharge volumes at various points
throughout the basin expected to be associated with several alternative water management strategies. T. 90, 91, SJ
Ex 1 p 27.
The specific model used by the District is the Streamflow Synthesis and Reservoir Regulation (SSARR) mathematical model, developed by the U.S. Army Corps of Engineers. This particular model is generally accepted and used in the field of hydrology for the purposes for which it was used here by the District staff. T. 90, 91, SJ Ex 1 p 27.
The model combines two types of data, the first of which are "fixed basin parameters" such as drainage area, soil moisture run-off relationships, and storage capacity of the water bodies in the basin. Fixed basin parameters do not change over time. T. 98, 99, SJ Ex 1 pp 32-37.
The second type of data used by the model is "time series" data such as rainfall, evaporation, lake elevations and discharges at several points throughout the basin. Time series data does change over time. T. 98, 99, SJ Ex 1 pp 38-40.
Rainfall data for the basin is the most important input element for the model because rainfall drives the system from a hydrologic perspective. T. 95.
Rainfall data from 5 recording stations scattered over the basin were utilized, with one station located at the University of Florida in Gainesville yielding data for more than 50 years, although only data for the 50 year period from 1942-1991 was used in the model. T. 96, 97, SJ Ex 1 pp 38, 39, 62, 175.
The other 4 rainfall recording stations used in the model have recorded rainfall for periods ranging from 11 years to 37 years.
SJ Ex 1 p 39.
In a basin the size of the Orange Creek Basin, day to day rainfall amounts may vary from one recording station to another, however, on an annualized basis, rainfall amounts are relatively consistent between
the rainfall recording stations utilized in the District's model. T. 97, 98, 184, 727.
Both the number and location of rainfall recording stations used for the model are adequate to characterize rainfall for the basin. T. 97, 98, 184.
Fifty years of hydrologic data were utilized by the District in the model, because corresponding records existed for rainfall, lake levels, and discharge for this period of time. In addition, a 50
year period is more likely to exhibit a full range of hydrologic conditions, such as droughts and floods, than a shorter increment of time would. T. 104.
The model utilizes both the fixed basin parameters and the time series data to calculate an associated lake level for any
of the lakes in the basin or a discharge measurement at one of several points in the basin for any particular day during the 50 year period represented by the hydrologic data on which the model is based. T. 98-100.
The model was initially run to calculate several hydrologic values with existing conditions in place. Existing conditions,
for purposes of comparison with other alternatives, assumes the Newnans Lake weir to be in place, the gates to the Camps Canal Culverts to be in an open position and the gates to the main structure Culverts in the Preserve to be in an open position. T. 99, SJ Ex 1 p 83.
For all scenarios examined, the model assumes existing land uses to be in place, in all years simulated, in order to allow consistent comparisons of hydrologic conditions over the 50 years for which
data was available. T. 134, 135.
In the "existing conditions" scenario the model calculates the volume of water discharging from Newnans Lake southward into Prairie Creek for each day during the
50 year period from 1942-1991. T. 100.
Discharge measurements were made by District staff at the downstream end of the Camps Canal Culverts from which a rating curve was developed for the structure. T. 101, 102, SJ Ex 1 pp 33, 36.
A rating curve is a means by which the flow capacity of a water control structure such as a culvert may be calculated. T. 101, 102.
Using the rating curve developed by District staff for the Camps Canal Culverts, the model, having calculated the volume of water moving from Newnans Lake into Prairie Creek, can then calculate the volume of water passing through the Culverts at the
Camps Canal Culverts into the Preserve versus the volume moving on southward through Camps Canal to Orange Lake for each day or year during the 50 year period from 1942-1991.
T. 101, 102, SJ Ex 1 p 84, Appendix Table E-45.
Having calculated the annual volume of surface water entering the Preserve and the annual volume moving into and through Camps Canal to Orange Lake for each of the 50 years between 1942- 1991, District staff then divided the 50 year totals for each by
50 to arrive at a yearly average volume of water going to the Preserve versus a yearly average volume going through Camps Canal to Orange Lake, under existing conditions.
T. 101-104, SJ Ex 1 p 84, Appendix Table E-45.
Based on the volumes calculated for the
50 year period between 1942-1991, on average,
45 percent of Prairie Creek flow enters Preserve through the Camps Canal Culverts under existing conditions. This equates to
35 cubic feet per second (cfs), or 23 million gallons per day (mgd). T. 103, 605, 606,
SJ Ex 1 p 84, Appendix Table E-45.
Also based on the volumes calculated for the 50 year period between 1942-1991, on average, 55 percent of Prairie Creek flow
goes into Camps Canal and moves on southward to the River Styx and then to Orange Lake under existing conditions. T. 103, SJ Ex 1 Appendix Table E-45.
Making a calculation of flow based on 50 years of historic hydrologic data does not guarantee that the next 50 years will be identical to the period during which the calculation was developed, however, it is reasonable to assume that the next 50 years will be statistically similar to the previous
50 years and that hydrologic conditions, on average, will be the same. T. 104, 143.
Both the general methodology and the specific model used by the District to quantify the average volume of flow entering the Preserve under existing conditions, which also represents the volume of flow which the rule would reserve for fish and
wildlife which use the Preserve, are based on logic and accepted scientific principles. T. 90, 91, 97, 102, 128, 729.
The rule in issue does not reserve a specific amount of water for the protection of fish and wildlife using the Preserve, rather, it reserves the amount which will flow by gravity through the existing Camps Canal Culverts with the gates in an open position, which will in essence, maintain the existing volume of flow into the Preserve. T. 604, 605, 624.
Thirty-five cfs does not necessarily represent the specific volume of water that will flow into Preserve on a given day, rather, the specific volume would be dependent on hydrologic conditions on that given day. T. 105, 106.
Nevertheless, 45 percent of flow, or 35 cfs, or 23 mgd, represents a reasonably accurate calculation, based on the data available, of the average volume of Prairie Creek flow which will enter the Preserve by gravity pursuant to the Reservation Rule.
T. 101- 104, 638, SJ Ex 1.
With the existing conditions hydrologic regime which the Reservation Rule would continue in place, the model calculates that the mean elevation of Orange Lake would be
57.26 feet NGVD. T. 121, 122, SJ Ex 8 (arithmetic mean).
If no Prairie Creek flow were allowed to enter the Preserve and all of its flow went to Orange Lake, the model calculates the mean elevation of Orange Lake to be
57.51 feet NGVD. T. 121, 122, SJ Ex 8 (arithmetic mean). Thus, the mean elevation of Orange Lake rises by only 0.25 feet when all of the Prairie Creek flow is diverted to Orange Lake. SJ Ex 8.
The impact of a 0.25 feet change in the mean elevation of Orange Lake from a hydrologic perspective is small given the 11 feet fluctuation in elevations that has occurred naturally over time in the lake.
T. 125.
By contrast, if no Prairie Creek flow were allowed to enter the Preserve and all of its flow went to Orange Lake, the mean elevation of water levels within the Preserve, as calculated by the model, would decline by 0.65 feet. SJ Ex 7.
Eliminating all Prairie Creek flow from the Preserve would decrease the amount of wetted acreage in the central portion of the prairie by up to 2400 acres. T. 203, SJ Ex 1 p 131, SJ Ex 6. In addition, the acreage
wetted in the eastern lobe of the Preserve by the sheetflow of Prairie Creek water as it moves from the Camps Canal Culverts to Alachua Lake would also be eliminated.
T. 116, SJ Ex 1 p 131.
The findings of fact of the District quoted and adopted herein which relate to the environment of, and the alternative course of action considered for, the Preserve are as follows. The findings have been modified to reflect terms used throughout this Final Order. The findings of the District adopted are District findings of fact 79 through 127:
The eastern and western lobes of the Preserve are approximately the same elevation and have similar gradients; however, the plant communities within the eastern lobe differ from the plant communities in the western lobe. The plant community within the eastern lobe is predominantly a shallow marsh community while the plant community within the western lobe varies from wet prairie to old field. T. 262, 263; SJ Exs 3, 10B, 10H.
For the western lobe of the Preserve, consisting of the area west of U.S. Highway 441, rainfall is the only source of water except when extremely high water levels occur in Alachua Lake. T. 263, 272. When extremely high water levels occur on Alachua Lake water can backflow through the culverts
under U.S. Highway 441 and Interstate Highway
75 and inundate the western lobe. T. 272.
The eastern lobe of the Preserve is dependent upon sheetflow from Prairie Creek for its source of water. T. 263. Prior to the construction of Cones Levee the sheetflow from Prairie Creek inundated approximately 1,200 acres of the eastern lobe. Today, however, sheetflow inundates
directly 600 acres and indirectly another 600 acres in the eastern lobe. T. 264, 265; SJ Ex 10B.
Without the Prairie Creek sheetflow, the biological character of the eastern lobe
would change to resemble the more terrestrial nature of the western lobe. T. 263, 272, 518.
The fish and wildlife inhabiting the Preserve are totally dependent upon its surface water hydrology. T. 276.
Of the 21 species of plants living within the Preserve that are listed by the federal government or the State of Florida as endangered, threatened or species of special concern, four species are wetland species. T. 268, 358, 359, 360.
Twenty species of animals living on the Preserve are listed by the federal government or the State of Florida as endangered, threatened or species of special concern. Seventeen of these species are wetland dependent. T. 269.
Birds, including a number of species listed as endangered or threatened such as great blue herons, woodstorks, anhingas, limpkins, sandhill cranes and ospreys, use the shrub communities around Alachua Lake, the cypress swamp in the eastern lobe and other areas of the eastern lobe for breeding, nesting, and foraging. T. 269, 270, 271, 277, 364, 365.
Several species of migratory ducks overwinter in the central area of the Preserve, particularly in the shrub wetland communities around Alachua Lake. Without the flow of water from Prairie Creek the open water in Alachua Lake would be lost and consequently, the overwintering habitat for the ducks would be lost. T. 240, 270, 518.
Immature bald eagles use the eastern lobe wetlands for foraging. T. 270. Additionally, the northern harrier, American kestrel and peragrine falcon use wetlands within the Preserve as foraging habitat.
T. 364, 365.
Mammals, such as river otters, brown water rat, bobcats, bats and long-tailed weasels, use the wetlands within the Preserve, and the eastern lobe particularly,
as breeding, nesting, and/or foraging habitat. Reptiles, such as the American alligator,
live in the Preserve. T. 270-271, 375, 377-378; SJ Ex 14.
The diversity and abundance of animals living in or using the Preserve is greater in the eastern lobe and central area than the western lobe. T. 273, 274. Different species of birds frequent the western lobe. Typically, species more indicative of a drier terrestrial environment are found in the western lobe. T. 272.
If the Prairie Creek flow is diverted from the Preserve, the eastern lobe would be driven towards a drier, terrestrial habitat and the functions of the eastern lobe wetlands would be totally lost.
T. 277.
The sheetflow across the eastern lobe is a unique feature of the Preserve, and without this sheetflow animals such as the endangered brown water rat would not live there. T. 277.
Without the Prairie Creek sheetflow, animals dependent on Alachua Lake and the wetlands, such as the brown water rat and the woodstork, would have to find other areas to live, forage, breed and nest due to the loss of wetlands and open water habitat. T. 277, 518.
When the water levels in the Preserve are low and wetlands are lost, the birds that depend on the wetlands for nesting will not nest in the Preserve nor elsewhere. T. 532.
The wetland communities within the Preserve require a range of water level fluctuations which includes periods of high water levels, average water levels and low water levels. Wetlands must remain wet long enough to exclude upland plants and to conserve hydric soils, yet sufficiently dry often enough to allow germination of wetland plants and the compaction and oxidation of flocculent sediments. T. 293, 294, 298, 299, 310, 311; SJ Ex 1 pp. 23-25.
Periods of high water levels maintain lower swamp and shallow marsh habitats, facilitate the dispersal of the seeds of wetland plants, allow wetland species that normally occur at lower elevations to move up into the forested communities, prevent the encroachment of upland species into the upper wetland area, and advance the
transportation of organic matter from uplands to wetlands. Inundation of the floodplain and forested communities provide nesting, spawning, refugia, and foraging habitat for fish and other aquatic organisms. T. 294, 296, 310, 311; SJ Ex 1 pp 23- 25.
The frequency, timing and duration of high water levels influence the composition and survival of wetland forests. T. 310, 311; SJ Ex 1 p 23.
Periods of average water levels create and maintain organic soils and maintain wetland habitat for wetland dependent wildlife. T. 293, 297; SJ Ex 1 p 25.
Periods of low water levels rejuvenate floodplain wetlands by allowing seed germination and growth of wetland plants. Seeds of many wetland plant species require saturated soils without standing water in order to germinate. T. 291, 293, 298, 299; SJ Ex 1 pp 24, 25.
Periods of low water levels increase the rate of aerobic microbial breakdown and decomposition of organic sediments, and
allows the consolidation and compaction of flocculent organic sediments. The consolidation, compaction and decomposition
of flocculent organic sediments improves substrates for fish nesting and seed germination. T. 298, 299; SJ Ex 1 pp 24-25.
Upland animals use the wetlands during periods of low water levels for foraging and breeding. T. 298, 299.
Three elevation transects were used by District staff to identify the elevations of plant communities on the Preserve and
develop environmental criteria for the Preserve floodplain. T. 302, 305-306;
SJ Ex 1 pp 26, 27, 31, 60.
Ecological criteria were developed by District staff to accommodate the hydroperiod requirements of lake and wetland biota. The ecological criteria consisted of
hydrologic duration, i.e. how long an area is flooded; and recurrence intervals, i.e. how often an area is flooded. T. 304, 309; SJ
Ex 1 pp 23, 61.
Maintaining appropriate hydrologic durations and recurrence intervals for plant communities enables the plant communities to support populations of fish and wildlife.
T. 307, 312.
The District identified the following five significant water management levels: infrequent high water level, frequent high water level, minimum average water level, frequent low water level, and infrequent low water level. The water management levels characterize zones along the elevation gradient of the Preserve. T. 307, 308; SJ Ex 1 p 61.
The five different recurrence intervals and the associated hydrologic durations
became the hydrologic criteria used by District staff for the water management levels. T. 312.
The District evaluated six water management alternatives for the Preserve: the "existing conditions" alternative which simulated the current morphometry of the Paynes Prairie sub-basin; the "total restoration" alternative, under which all the Prairie Creek flow is restored to Paynes Prairie; the "50/50 management" alternative, under which the inflow capacity at the Camps Canal Culvert is reduced by 50 percent and the outflow capacity at the main structure at Alachua Lake is reduced by 50 percent; the "elevation threshold" alternative, under which when the water level at Newnans lake is at 66 feet NGVD or above and the water level at Orange Lake is at 56 feet NGVD or below, then the inflow structure at Camps Canal Culvert is reduced by 50 percent while
the outflow capacity at the main structure is maintained at 100 percent; the "Sweetwater Branch" alternative, under which flow from Prairie Creek is replaced by Sweetwater Branch flow; and the "no restoration" alternative, under which the entire flow
from Prairie Creek is diverted to Orange Lake. T. 313, 314; SJ Ex 1 p 119.
Based upon the hydrologic durations and recurrence intervals defined by the ecologic criteria, the District determined five water management levels for each water management alternative. SJ Ex 1 p 61.
The five water management levels and the associated recurrence intervals and hydrologic durations form a fluctuation management regime. The fluctuation management regime for each water management alternative was evaluated with respect to the existing biological features of the
aquatic and wetland communities of the Paynes Prairie sub-basin. SJ Ex 1 pp 61, 124, 125.
Under the total restoration alternative the water levels on the Preserve would rise thereby improving the hydrologic regime on
the prairie, but the possibility of flooding and damaging U.S. Highway 441 would also increase. The minimum average water level of Orange Lake would decrease by 0.67 feet. T. 331, 333; SJ Ex 1 pp 125-130; SJ Ex 8.
The no restoration alternative would not satisfy all the hydrologic criteria. The minimum average water level on the Preserve would decrease by 1.01 feet under this alternative. Under this alternative
the acreage inundated by the minimum average water level is reduced by approximately 2,400 acres. Additional wetland acres are lost due to the absence of the Prairie Creek sheetflow across the eastern lobe. The minimum average water level in Orange Lake would increase by
0.16 of a foot. T. 324, 334-336; SJ Ex 1 pp 124, 125, 131; SJ Ex 8.
Eliminating the flow of Prairie Creek into Paynes Prairie would be detrimental to the current and future biological conditions on the Preserve. SJ Ex 1 p 131.
Under the 50/50 management alternative the average flow from Prairie Creek would be reduced from 45 percent to 22.5 percent and the outflow to Alachua Sink would be reduced by 26 percent. T. 337; SJ Ex 1 p 131.
The high water levels and the low water levels increase slightly within the Preserve and Orange Lake under the 50/50 management alternative; however, the residence time of water and the concentration of nutrients,
including phosphorous and nitrogen, would increase thereby degrading water quality within the Preserve. T. 338, 340, 341; SJ
Ex 1 pp 124, 125, 127, 128, 131, 132; SJ
Exs 7 and 8.
The reduction of sheetflow from Prairie Creek under the 50/50 management alternative would adversely affect the wetlands in the eastern lobe. SJ Ex 1 p 132.
Under the elevation threshold management alternative water levels within the Preserve would decrease. The Preserve would receive less water during some periods of naturally high flows reducing the duration and
frequency of inundation in the eastern lobe wetlands and, therefore, negatively impacting wildlife dependent upon seasonal high flows.
T. 344; SJ Ex 1 p 133; SJ Ex 7.
The flow provided by Sweetwater Branch provides approximately 15 percent of the Preserve's average inflow, whereas Prairie Creek provides approximately 50 percent of the Preserve's average inflow. T. 346.
Sweetwater Branch is more or less confined to a channel and discharges into Alachua Sink bypassing the Preserve and its eastern lobe. T. 347.
Under the Sweetwater Branch alternative the eastern lobe would be deprived of the sheetflow essential to the maintenance of wetlands and the wildlife in the eastern
lobe. The eastern lobe would dry out and the plant communities would change to old field or wet prairie. The functions of the plant communities to wildlife would also change under this alternative. T. 347.
The Sweetwater Branch alternative would not support fish and wildlife in the eastern lobe of the Preserve. T. 347.
The water quality of Sweetwater Branch is poor. Sweetwater Branch has higher concentrations of nitrogen and phosphorous than Prairie Creek. If the nutrient-rich Sweetwater Branch water was diverted onto
the Preserve the types and abundances of vegetative communities would change from native vegetation to monocultures of nuisance vegetation that thrive in nutrient-rich environments. T. 346-349; SJ Ex 1 pp 133-134.
The existing conditions alternative provides over the long term an average of approximately 45 percent of the Prairie Creek flow by gravity flow through the Camps Canal Culvert to the Preserve. T. 355, 356; SJ
Ex 1 p 121.
Under the existing conditions alternative, the five hydrologic criteria for both the Preserve and Orange Lake are met and the water level elevations meet the desired recurrence intervals and hydrologic durations. T. 324, 350, 351.
The fluctuation management regime provided by the existing conditions alternative partially restores sheetflow from Prairie Creek to the Preserve in sufficient, but fluctuating, water quantities necessary to maintain habitat for fish and wildlife within the eastern lobe. T. 350, 351.
It is essential for the protection of the fish and wildlife that utilize and depend upon the Preserve to maintain the flow of Prairie Creek into the Preserve.
T. 351, 517.
The Preserve needs flow from Prairie Creek in volumes reserved by the proposed
rule to protect its fish and wildlife. T. 351.
The management levels established by the environmental criteria used for each of the water bodies in the basin will continue to be met in Orange Lake with an average of
45 percent of Prairie Creek flow going to the Preserve and 55 percent going to Orange Lake. T. 432, SJ Ex 1 pp 127, 134, 146.
Based upon the substantial and uncontroverted evidence in this case, it is concluded that the water reserved by the Reservation Rule is required for the protection of fish and wildlife of the Preserve.
CONCLUSIONS OF LAW
Jurisdiction.
The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.54(4), Florida Statutes.
Burden of Proof.
The burden of proof in this proceeding was on the Petitioners. See Adam Smith Enterprises v. Department of Environmental Regulation, 553 So.2d 1260, (Fla. 1st DCA 1990); and Agrico Chemical Co. v. Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1979).
Standing.
Section 120.54(4), Florida Statutes, provides, in pertinent part, the following:
(4)(a) Any substantially affected person may seek an administrative determination of the
invalidity of any proposed rule on the ground that the rule is an invalid exercise of delegated legislative authority.
In order to conclude that a person is a "substantially affected" person, it must be proved:
1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a . . . hearing, and 2) that his substantial injury is of a type or nature the proceeeding is designed to protect.
Florida Society of Ophthalmology v. Board of Optometry, 532 So.2d 1279, 1285 (Fla. 1st DCA 1988), rev. denied, 542 So.2d 1333 (1989). See also Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981); and Professional Firefighters of Florida, Inc. v. Department of Health and Rehabilitative Services, 396 So.2d 1194 (Fla. 1st DCA 1981).
Based upon the stipulation of the parties that the allegations of fact supporting standing contained in their respective petitions are true, it is concluded that the Petitioners and the Intervenors are "substantially affected" persons with regard to the Challenged Rules.
The Petitioners' Challenge.
Section 120.54, Florida Statutes, authorizes a substantially affected person to seek an administrative determination that any proposed agency rule is an "invalid exercise of delegated legislative authority" as those terms are defined in Section 120.52(8), Florida Statutes. An "invalid exercise of delegated legislative authority" is defined in Section 120.52(8), Florida Statutes, as follows:
"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 decisions, or vests unbridled discretion in the agency; or
The rule is arbitrary or capricious.
In the amended petition filed in this case, it has been alleged that the Challenged Rules are an invalid exercise of delegated legislative authority as defined in Sections 120.52(8)(b), (c), (d) and (e), Florida Statutes.
Determining the precise bases for the Petitioners' challenge is more difficult. Because of inadequacies with the initial petition, the Petitioners were required to file an amended petition. A Motion in Limine and a Motion to Strike concerning the amended petition were considered at the commencement of the final hearing. Portions of the amended petition were struck and an effort to require the Petitioners to identify precisely the portions of the definition of an "invalid exercise of delegated authority" they believe each of the Challenged Rules violates was made. These efforts were not totally successful.
The Petitioners' proposed final order does little to clarify the Petitioners' position. Several of the issues raised in the amended petition have been withdrawn by the Petitioners in their amended petition and the Petitioners have addressed the remaining issues inconsistently with the specific allegations remaining in the amended petition. See pages 3 and 4 of the Petitioners' proposed final order.
Based upon all of the pleadings filed by the Petitioners in this case, it appears that the Petitioners have alleged essentially the following:
The Reservation Rule, when read in conjunction with the Exemption Rule, is invalid because it exceeds the District's authority (Section 120.52(8)(b), Florida Statutes), and contravenes laws implemented (Section 120.52(52(8)(c), Florida Statutes), because:
The Reservation Rule is inconsistent with the specific requirements of Section 373.223(3), Florida Statutes; and
The impact of the Challenged Rules
is to allocate a specific portion of surface water flows to a specific user without complying with Section 373.042, Florida Statutes (requiring the establishment of minimum flows and levels).
The Reservation Rule is invalid because it
is vague (Section 120.52(8)(d), Florida Statutes).
Allegations that the Challenged Rules are invalid because they are inconsistent with Section 373.216, Florida Statutes, and that the Exemption Rule is arbitrary have been specifically abandoned by the Petitioners in their proposed final order. It appears from the Petitioners' proposed final order, that the challenge to the Exemption Rule has been totally abandoned.
Because of the lack of certainty as to the bases for the Petitioners' challenge in this case, the validity of the Challenged Rules will be addressed more broadly than may be necessary.
General Rules Governing Agency Rule-Making.
Statutorily created agencies, such as the District, are without inherent rulemaking authority. Section 120.54(15), Florida Statutes. Any such authority granted to an agency is limited by the statute conferring the authority. See U.S. Shoe Corp. v. Department of Professional Regulation, 578 So.2d 376 (Fla. 1st DCA, 1991).
Where an agency is granted rulemaking authority, it is granted wide discretion in exercising that authority. Department of Professional Regulation
v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). An agency's interpretation of statutes which govern the agency's statutory duties and responsibilities is to be given great weight and should not be rejected unless clearly erroneous. Florida Hospital Association, Inc. v. Health Care Cost Containment Board, 593 So.2d 1137 (Fla. 1st DCA 1992).
Where authorization for rulemaking is not clearly conferred or fairly implied and consistent with the agency's general statutory duties, an agency is without authority to adopt a rule. See Department of Professional Regulation v. Florida Society of Professional Land Surveyors, 475 So.2d 939 (Fla. 1st DCA 1985). Any attempt to extend or enlarge an agency's jurisdiction beyond its statutory authority will be declared to be invalid. Board of Trustees of the Internal Improvement Trust Fund v. Board of Professional Land Surveyors, 566 So.2d 1358 (Fla. 1st DCA 1990).
The Validity of the Exemption Rule.
The authority relied upon by the District in promulgating the Exemption Rule is Sections 373.044, 373.113 and 373.171, Florida Statutes (1993).
The specific authority cited by the District in support of the Exemption Rule gives the District broad general authority to adopt rules regulating the use of water, as long as those rules are consistent with law.
There has been no showing in this case that the District has exceeded its authority by adopting a rule which is inconsistent with any law.
The laws implemented by the District in promulgating the Exemption Rule are Sections 373.103, 373.171, 373.219,, 403.501 et seq. and 288.501 et seq., Florida Statutes (1993).
Section 373.171, Florida Statutes, requires that the District, in adopting rules, regulate the use of water consistently with other provisions of Chapter 373, Florida Statutes.
Section 373.216, Florida Statutes, requires that the District "implement a program for the issuance of permits authorizing the consumptive use of particular quantities of water covering those areas deemed appropriate by the governing board. . . ." The District has complied with this requirement. The Exemption Rule is in no way contrary to the requirement of Section 373.216, Florida Statutes.
Section 373.219, Florida Statutes, further provides with regard to the program required by Section 373.216, Florida Statutes, that the District "may require such permits for consumptive use of water and may impose such reasonable conditions as are necessary to assure that such use is consistent with the overall objectives of the district "
The evidence in this case established that the Exemption Rule is a part of the "program for the issuance of permits authorizing the consumptive use of particular quantities of water" established by the District.
Consistent with the fact that Section 373.219, Florida Statutes, provides that requiring of permits is discretionary and not required, the Exemption Rule makes it clear that water designated by the District as required for the protection of fish and wildlife pursuant to its authority in Section 373.223(3), Florida Statutes, need not be issued a consumptive use permit.
The District's interpretation of its statutory authority for, and the laws implemented by, the Exemption Rule is not clearly erroneous and is within the range of possible interpretations of its authority.
The Petitioners have attempted to read the Exemption Rule and the Reservation Rule together. Clearly, the provisions of the Exemption Rule stand totally independent of the Reservation Rule. Even if the Reservation Rule were withdrawn or declared invalid, the Exemption Rule is consistent with the District's authority to adopt rules.
The Petitioners have failed to prove that the Exemption Rule is an invalid exercise of delegated legislative authority as defined in Section 120.52(8), Florida Statutes.
The Validity of the Reservation Rule; Sections 120.52(8)(b) and (c), Florida Statutes.
The authority relied upon by the District in promulgating the Reservation Rule is Sections 373.044, 373.113, 373.171, 216 and 219, Florida Statutes (1993). These provisions provide general authority to the District to promulgate rules regulating the use of water which are "consistent with law."
The laws implemented by the Reservation Rule are Sections 373.219 and 373.223, Florida Statutes.
The Petitioners have contended that the District has exceeded its authority granted by Section 373.044, Florida Statutes, in adopting the Reservation Rule because the District has failed to comply with Section 373.042, Florida Statutes. The evidence failed to support this argument.
The Petitioners allege that the Reservation Rule in effect allocates a specified portion of surface water flow of Prairie Creek and Camps Canal to a specified user without establishing minimum flows and minimum levels. This effect, the Petitioners argue, exceeds the District's authority granted by Section 373.044, Florida Statutes, and "contravenes" the provisions of Section 373.171(2) and (3), Florida Statutes.
The suggestion that the Reservation Rule "contravenes" the provisions of Section 373.171(2) or (3), Florida Statutes, may be based upon an assumption by the Petitioners that the District has cited those sections as laws implemented by the Reservation Rule. See Section 120.52(8)(c), Florida Statutes. If so, the Petitioners' assumption is incorrect. Therefore, the argument that the Reservation Rule "contravenes" Section 373.171(2) and (3), Florida Statutes, may be improperly pled.
It is possible that the Petitioners' use of the term "contravenes" was not intended to refer to Section 120.52(8)(c), Florida Statutes. Therefore, the issue will be addressed based upon the assumption that the Petitioners' use of the term "contravenes" was intended to suggest that there is an inconsistency of the Reservation Rule with Sections 373.171(2) and (3), Florida Statutes, that causes the Reservation Rule to exceed the District's authority for the rules which is limited to the adoption of rules that are "consistent with law."
Section 373.042, Florida Statutes, requires that the District establish minimum flows for surface watercourses in the District, and minimum levels of ground water in aquifers and surface waters. Section 373.042, Florida Statutes, is a part of Part I, the State Water Resource Plan, of Chapter 373, Florida Statutes.
The evidence proved that the District has not established minimum flows and minimum levels for the areas impacted by the Reservation Rule.
The evidence also proved that it was the District's intent in adopting the Reservation Rule to implement its authority contained in Section 373.223(3), Florida Statutes.
Section 373.223(3), Florida Statutes, is a part of Part II, Permitting of Consumptive Uses of Water, of Chapter 373, Florida Statutes, and provides:
The governing body or the department, by regulation, may reserve from use by permit applicants, water in such locations and quantities, and for such seasons of the year, as in its judgment may be required for the protection of fish and wildlife or the public health and safety. Such reservations may be subject to periodic review and revision in the light of changed conditions. However, all presently existing legal users of water shall be protected so long as such use is not contrary to the public interest.
There is no provision, express or implied, contained in Section 373.042, Florida Statutes, that restricts the District's ability to carry out its authority under Section 373.223(3), Florida Statutes. Nor is there any provision, expressed or implied, contained in Section 373.223(3), Florida Statutes, that requires that the provisions of Section 373.042, Florida Statutes, be complied with before exercising the District's authority under Section 373.223(3), Florida Statutes.
The provisions of Section 373.223(3), Florida Statutes, and Section 373.042, Florida Statutes, are parts of two different tools at the disposal of the District for protecting water resources. Section 373.223(3), Florida Statutes, is a part of the District's consumptive use permit program. Section 373.042, Florida Statutes, is a part of the District's minimum flows and levels program.
While both programs are required and should be consistently carried out, there is nothing in Chapter 373, Florida Statutes, that provides that, if one program is not carried out, the other program is prohibited from being carried out. See Citizens of Florida v. Mayo, 357 So.2d 731 (Fla. 1978). If there were such a prohibition, the District would not be able to issue any consumptive use permits until it complied with Section 373.042, Florida Statutes.
Section 373.171(2) and (3), Florida Statutes, which are a part of Part I, State Water Resource Plan, of Chapter 373, Florida Statutes, provides:
In promulgating rules and regulations and issuing order under this law, the governing board shall act with a view to full protection of the existing rights to water in this state insofar as is consistent with the purposes of this law.
No rule, regulation or order shall require any modification of existing use or disposition of water in the district unless it is shown that the use or disposition proposed to be modified is detrimental to other water users or to the water resources of the state.
The Reservation Rule is not inconsistent with the general provisions of Section 373.171(2) or (3), Florida Statutes. The Reservation Rule has been adopted pursuant to the authority of Section 373.223(3), Florida Statutes, and carries out the District's authority pursuant to that section of law. By providing the District with the authority of Section 373.223(3), Florida Statutes, the legislature must have intended that the reasonable exercise of that authority does not conflict with Section 373.171(2) or (3), Florida Statutes. The Reservation Rule is consistent with the authority of the District provided in Section 373.223(3), Florida Statutes, and, therefore, is not inconsistent with Section 373.171, Florida Statutes.
In light of the fact that there are no consumptive use permits for the water at issue, it cannot be said that the Reservation Rule in any way contravenes Section 373.171(3), Florida Statutes, by requiring any modification to an "existing use or disposition of water." The District's intent in adopting the Reservation Rule was only to reserve water that has been flowing into Paynes Prairie since 1975.
Finally, the Petitioners have contended that the District has exceeded its authority granted by Section 373.044, Florida Statutes, in adopting the Reservation Rule because the District is allowing the use of water without requiring that approval of the use be approved through the consumptive use permit process consistent with Section 373.216, Florida Statutes. In the proposed final order of the Petitioners it has been conceded that this argument must fail. The evidence also failed to substantiate the Petitioners' position
even if they had not abandoned their position. Based upon the authority provided by Section 373.223(3), Florida Statutes, it would be redundant to require that the District also require the issuance of a consumptive use permit pursuant to Section 373.223(1), Florida Statutes.
The Petitioners have failed to prove that the Reservation Rule is an invalid exercise of delegated authority as defined in Sections 120.52(8)(b) or (c), Florida Statutes.
The Validity of the Reservation Rule; Section 120.52(8)(d), Florida Statutes.
The Petitioners have contended that the Reservation Rule is vague because it:
Insufficiently identified the "location" of the water being reserved;
Fails to establish the specific "quantity" of water reserved "other than in terms of an anticipated average of 23,000,000 gallons per day over a fifty (50) year period" and in terms
of a percentage anticipated over a 50 year period, which the Petitioners suggest is inaccurate; and
Does not limit the reservation to any season(s) of the year.
Whether a rule is vague depends upon whether persons of common intelligence would be required to guess at the rule's meaning and would differ as to the rule's application. City of St. Petersburg v. Pinellas County Police Benevolet Association, 414 So.2d 293 (Fla. 2d DCA 1982).
Section 373.223(3), Florida Statutes, provides, in part, that the District may reserve water "in such locations" and "quantities" and "for such seasons of the year" as the District determines is required for the protection of fish and wildlife.
The location of the water reserved by the Reservation Rule is sufficiently identified and is not vague:
The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alacuah County, Florida, is necessary in order to protect the fish
and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida.
The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. . . . [Emphasis added].
The emphasized portion of the Reservation Rule sufficiently puts the public on notice of where the water that is being reserved is located. It is at that point where water from Prairie Creek/Camps Canal flows through the Camps Canal Culverts.
The quantity of the water reserved by the Reservation Rule is identified, in part, as follows:
The Governing Board finds that reserving a certain portion of the surface water flow through Prairie Creek and Camps Canal south of Newnans Lake in Alachua County, Florida, is necessary in order to protect the fish and wildlife which utilize the Paynes Prairie State Preserve, in Alachua County, Florida. The Board therefore reserves from use by permit applicants that portion of surface water flow in Prairie Creek and Camps Canal that drains by gravity through an existing multiple culvert structure into Paynes Prairie. . . . [Emphasis added].
The emphasized portion of the Reservation Rule sufficiently identifies the quantify of water which the District intends to reserve. This language is not vague. It is consistent with the intent of the District to reserve whatever amount of water naturally flows through the Camps Canal Culvert by virtue of gravity. The specific amount may, therefore, vary from day to day. It is a natural flow of water that the District intends to reserve and not any specified minimum or maximum amount of water that the District believes must flow into the Preserve.
The Petitioners' arguments in support of a determination that the "quantity" of water reserved is vague is essentially an attack on the underlying data relied upon by the District in adopting the Reservation Rule. Those arguments mischaracterize the evidence in this case and ignore the totality of the evidence presented by the District in support of the Reservation Rule.
The following very condensed summary of the data relied upon in support of the Reservation Rule is included in the Reservation Rule:
This reservation is for an average flow of
[35] cubic feet per second (23 million gallons per day) representing approximately forty five per cent (45 percent) of the calculated historic flow of surface water through Prairie Creek and Camps Canal.
It is this language that the Petitioners have suggested makes the Reservation Rule vague because, according to the Petitioners, the information set out in the foregoing quoted sentence of the Reservation Rule is inaccurate. This suggestion is incorrect.
Although the portion of the Reservation Rule quoted in paragraph 130 is not necessary and may actually cause some confusion about whether the District intended to establish a minimum amount of reserved water, the Petitioners' have not alleged that the quoted portion of the Reservation Rule is vague because it is contrary to the portion of the Reservation Rule quoted in paragraph 126.
Therefore, having failed to prove that the information set out by the District in the portion of the Reservation Rule quoted in paragraph 130 is inaccurate, the Petitioners have failed to prove that the Reservation Rule is vague in its identification of the quantity of water being reserved.
Finally, while it is true that the Reservation Rule does not specifically mention any season(s), it is reasonable to assume that the lack of any reference to a season or seasons means that the Reservation Rule applies in all seasons.
The Petitioners have failed to prove that the Reservation Rule is vague as alleged in their amended petition.
The Validity of the Reservation Rule; Section 120.52(8)(e), Florida Statutes.
An arbitrary and capricious action has been defined as follows:
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 Co. v. Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1979).
The weight of the evidence failed to prove that the Reservation Rule is arbitrary or capricious. The evidence proved that the Reservation Rule is in fact required for the protection of fish and wildlife of the Preserve. It cannot, therefore, be concluded that the Reservation Rule was adopted "without thought or reason or irrationally." It fact, a great deal of thought has been given to the Reservation Rule. It also has not been proved that the District's decision is not supported by facts or logic.
The Petitioners have failed to prove that the Reservation Rule is an invalid exercise of delegated legislative authority as defined in Section 120.52(8)(e), Florida Statutes.
ORDER
Based upon the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the Petitioners have failed to prove that Proposed Rule 40C-
2.302, Florida Administrative Code, or a proposed amendment to Rule 40C-
2.051(6), Florida Administrative Code, constitute an invalid exercise of delegated authority. Consequently, the Petitioners' amended petition is DISMISSED.
DONE AND ENTERED this 16th day of June, 1994, in Tallahassee, Florida.
LARRY J. SARTIN
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 16th day of June, 1994.
APPENDIX
Case Number 93-7109RP
The parties (except the Attorney General) have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Final Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.
The Petitioners' Proposed Findings of Fact
1 Accepted in 20, 23, 29-31, 38-39 and 40
Accepted in 37 and 42-45. The proposed fact concerning whether a consumptive use permit would be required if the District had not adopted the Reservation Rule is not relevant. Nor is the testimony concerning this suggested fact accepted as a correct interpretation of law. The next to the last sentence of the proposed finding is not supported by the weight of the evidence or relevant. Finally, the last sentence is not relevant to this proceeding.
Accepted in 8 and 10. The quotations of law in this proposed finding of fact are correct.
Accepted in 11 and 13. The quotations of law in this proposed finding of fact are correct.
Accepted in 9 and 12. The quotations of law in this proposed finding of fact are correct.
Although generally a correct summary of some of the testimony, the ultimate conclusion suggested by this paragraph ignores the weight of the evidence presented in this case. See 71-77.
Not supported by the weight of the evidence. See 49-51, 59, 61-64 and 75.
The ultimate findings suggested by this paragraph is not supported by the weight of the evidence. See 8, 20, 34, 44-43 and 49-51.
See 8.
Not supported by the weight of the evidence. The suggestion of this paragraph is that DEP is being provided the use of water reserved by the Reservation Rule. This is not technically correct. The water is technically being reserved for fish and wildlife of the Preserve.
The District's Proposed Findings of Fact
Accepted in 8
Accepted in 11
Correct statement of law
Accepted in 1
Accepted in 2
Accepted in 3
Accepted in 4
Accepted in 5
Accepted in 6
10 | Accepted | in | 14 | |
11 | Accepted | in | 17 | |
12 | Accepted | in | 18 | |
13 | Accepted | in | 19 | |
14 | Accepted | in | 20-21 | |
15 | Accepted | in | 20 and | 22 |
16 | Accepted | in | 21 and | 25 |
17 | Accepted | in | 25 | |
18 | Accepted | in | 26-27 | |
19 | Accepted | in | 75 | |
20 | Accepted | in | 45 | |
21 | Accepted | in | 75 | |
22 | Accepted | in | 28 | |
23 | Accepted | in | 29 | |
24 | Accepted | in | 31 | |
25 | Accepted | in | 32-33 | |
26 | Accepted | in | 34 | |
27 | Accepted | in | 35 | |
28 | Accepted | in | 36 | |
29 | Accepted | in | 36 | |
30 | Accepted | in | 37-38 | |
31 | Accepted | in | 38 | |
32 | Accepted | in | 40 | |
33 | Accepted | in | 41 | |
34 | Accepted | in | 43 | |
35 | Accepted | in | 48 and | 52 |
36 | Accepted | in | 53 |
Hereby accepted
Accepted in 55
Accepted in 56
Accepted in 47
41-43 Hereby accepted
44-74 Accepted in 75
Accepted in 38-39
Accepted in 44 and hereby accepted
Accepted in 46-47
Accepted in 72 79-127 Accepted in 76
Accepted in 61-62
Accepted in 63-64
Accepted in 65
Sierra's and Florida Defenders' Proposed Findings of Fact
Accepted in 1
Statement of Petitioners' position
Accepted in 3-4
Accepted in 5
Accepted in 38-39
Accepted in 36-37
Accepted in 44 and 46-47
Accepted in 47 and hereby accepted 9-21 Accepted in 76
22 Accepted in 66-67
23 Accepted in 14, 17-18, 20-21, 25 and 27
Accepted in 28-29
Accepted in 34
Accepted in 41 and 48
Accepted in 18 and 20-21
Accepted in 52
29 Accepted in 32-33, 49-51, 53 and 55-56
Accepted in 49
Accepted in 50 32-39 Accepted in 75
Accepted in 45
Accepted in 49-51 DEP's Proposed Findings of Fact
1 | Accepted | in | 1 |
2 | Accepted | in | 2 |
3 | Accepted | in | 3 |
4 | Accepted | in | 4 |
5 | Accepted | in | 5 |
6 | Accepted | in | 6 |
7 Statement of the Petitioners' argument 8 Accepted in 14-15, 17-18, 23-24 and 26
Accepted in 15, 18 and 20-21
Accepted in 34-36
Accepted in 41
Accepted in 22, 42-43 and 49
Accepted in 45
Accepted in 38-39
Accepted in 37
Accepted in 44
Accepted in 46
18-19 Accepted in 76
Hereby accepted
Accepted 52-53
Accepted in 54 and 76
Accepted in 76
Accepted in 77
Accepted in 8 and 61
Accepted in 64
Accepted in 11 and 65
Accepted in 58
Accepted in 66 and hereby accepted
Accepted in 66
Accepted in 67
32-36 Accepted in 75
37-38 Accepted in 76
39 Accepted in 75
40-46 Accepted in 76
COPIES FURNISHED:
Henry Dean Executive Director
St. Johns River Water Management District
P. O. Box 1429 Palatka, FL 32178
John P. McKeever Esquire Post Office Box 1450 Ocala Florida 34478-1450
Wayne E. Flowers Esquire Post Office Box 1429 Palatka Florida 32178-1429
Peter B. Belmont Esquire
511 31st Avenue North
St. Petersburg Florida 33704
Jennifer L. Mason Assistant General Counsel Department of
Environmental Protection 2600 Blair Stone Road
Tallahassee Florida 32399-2400
Jonathan A Glogau Assistant Attorney General
Office of the Attorney General PL-01 The Capitol
Tallahassee Florida 32399-1050
Carroll Webb Executive Director Administrative Procedures Committee Holland Building Room 120 Tallahassee Florida 32399-1300
Liz Cloud Chief
Bureau of Administrative Code The Capitol Room 1802 Tallahassee Florida 32399-0250
NOTICE OF RIGHT TO JUDICIAL REVIEW
ANY 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.
| Issue Date | Proceedings |
|---|---|
| Nov. 01, 1994 | Ltr. to P. Schultz from AC forward file for preparation of record on appeal in DOAH Case No. 94-0544 (TR & Exhibits were sent under separate cover) sent out. |
| Sep. 12, 1994 | Letter to Patricia C. Schultz & Ann Cole from John P. McKeever (re: disagree w/being charge for copies) filed. |
| Aug. 31, 1994 | Ltr. to J. McKeever from AC re: charges for copy of TR & Exhibits filed. |
| Aug. 31, 1994 | Ltr. to J. P. McKeever from P. Schultz re: copying TR & Exhibits w/cc: AC filed. |
| Jun. 16, 1994 | CASE CLOSED. Final Order sent out. Hearing held 02/24 & 25/94, 03/11/94. |
| Jun. 16, 1994 | Case No/s: 93-7109 & 94-544 unconsolidated. |
| May 10, 1994 | Petitioner`s Recommended Draw out Order filed. |
| May 09, 1994 | (2) Intervenors Proposed Recommended Order ( one filed in 93-544); filed. |
| May 09, 1994 | Petitioners` Proposed Recommended Order filed. |
| May 09, 1994 | Department of Environmental Protection`s Proposed Final Order w/cover ltr filed. |
| May 09, 1994 | Intervenor, Attorney General`s Proposed Final Order (filed in 94-544)filed. |
| May 09, 1994 | Proposed Final Order of St. Johns River Water Management District; Memorandum of Law in Support Proposed Final Order of St. Johns Water Management District; Proposed Recommended Order of St. Johns River Water Management District w/(unsigned) Order & Compu |
| Apr. 04, 1994 | Transcript (Volumes 1-5) w/SJRWMD Exhibit 1,2,3(3 ex.), 4,5,6,7,8,9,10(A-I),11, 14,15,16,17; Petitioners` Exhibit 1,2,3(A&B),4 &5 filed. |
| Mar. 11, 1994 | CASE STATUS: Hearing Held. |
| Mar. 09, 1994 | (Intervenors' Sierra Club and Florida Defenders of the Environment Memorandum of Law Regarding Sec. 120.54(17) "Drawout" Proceeding filed. |
| Mar. 09, 1994 | St. Johns River Water Management District's Memorandum of Law on Section 120.54(17), Fla. Stat. filed. |
| Feb. 25, 1994 | CASE STATUS: Hearing Partially Held, continued to 3/11/94; 9:00am; Gainesville) |
| Feb. 24, 1994 | (Petitioner) Amended Petition for Administrative Determination of Invalidity of Proposed Rules filed. |
| Feb. 23, 1994 | Amended Petition for Administrative Determination of Invalidity of Proposed Rules w/Exhibit-A filed. |
| Feb. 22, 1994 | Order Granting, in part, Motion to Expedite on Pending Motions, Denying Motion to Dismiss, Granting Attorney General`s Petition to Intervene, and Requiring Amended Petition in Case number 93-7109RP sent out. |
| Feb. 17, 1994 | Order Granting Petition by the Department of Environmental Protection for Leave to Intervene and Correcting Error in Order Granting Motions to Intervene sent out. |
| Feb. 17, 1994 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Feb. 17, 1994 | Attorney General`s Petition to Intervene filed. |
| Feb. 16, 1994 | Corrected Page One for Intervenor Sierra Club`s Motion In Limine and Motion to Expedite on Pending Motions filed. |
| Feb. 15, 1994 | Notice of Deposition of Intervenor Agency and Request for Production of Documents; Notice of Deposition of Intervenor Agency and Request for Production of Documents filed. |
| Feb. 14, 1994 | (Intervenors) Motion to Strike/for More Definite Statement; Motion to Dismiss for Lack of Timeliness filed. |
| Feb. 14, 1994 | Intervenor`s Motion in Limine filed. |
| Feb. 14, 1994 | (Intervenors) Motion to Expedite on Pending Motions filed. |
| Feb. 11, 1994 | Order Granting Motion to Intervene sent out (Sierra Club, Inc. granted intervention) |
| Feb. 07, 1994 | Order Concerning Motion to Convert Rule Challenge Proceeding sent out. |
| Feb. 04, 1994 | Petition by the Department of environmental Protection for Leave to Intervene filed. |
| Feb. 03, 1994 | Order Granting Motion to Consolidate sent out. (Consolidated cases are: 93-7109RP, 94-0544) |
| Feb. 01, 1994 | (The Sierra Club, Inc.) Motion to Intervene filed. |
| Jan. 31, 1994 | (Respondent) Notice of Related Case ; St. Johns River Water Management District`s Motion to Consolidate filed. |
| Jan. 18, 1994 | Notice of Hearing sent out. (hearing set for 2/24-25/94; 10:00am; Palatka) |
| Jan. 07, 1994 | (Joint) Stipulation of Parties on Hearing Date filed. |
| Dec. 27, 1993 | Order of Assignment sent out. |
| Dec. 20, 1993 | Motion to Convert Rule Challenge Proceedings; Request for Public Hearing and for Proceedings Under Section 120.57, Florida Statutes filed. |
| Dec. 20, 1993 | Letter to Liz Cloud & Carroll Webb from Marguerite Lockard w/cc: Agency General Counsel sent out. |
| Dec. 17, 1993 | Petition for Administrative Determination of Invalidity of Proposed Rule filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 16, 1994 | DOAH Final Order | Petitioners failed to prove rules reserving water for fish and wildlife of Paynes Prairie and exempting from consumptive use permit are invalid. |
