Booker Creek Preservation, Inc. v. Southwest Florida Water Management Dist.
| Decision Date | 22 September 1988 |
| Docket Number | No. 87-556,87-556 |
| Parties | 13 Fla. L. Weekly 2209 BOOKER CREEK PRESERVATION, INC. Manasota 88, Inc. and Sierra Club, Appellants, v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Appellee. |
| Court | Florida District Court of Appeals |
Peter B. Belmont, St. Petersburg, for appellants.
Kent A. Zaiser, Deputy Gen. Counsel, and A. Patricia Allen, Sr. Atty., Southwest Florida Water Management Dist., Brooksville, for appellee.
Roger W. Sims and Lawrence E. Sellers, Jr., Holland & Knight, Tallahassee, for amicus curiae, Florida Phosphate Council, Inc.
Booker Creek Preservation, Inc., Manasota 88, Inc., and Sierra Club challenge the twelve exemptions created by the Southwest Florida Water Management District (the "District") in its newly adopted rule which establishes permitting criteria for isolated wetlands. Appellants appeared at the public hearings held by the District prior to its adoption of the rule. They timely appeal from an order of the District which adopted the rule 1 and take the position that none of the exemptions contained in the rule are valid or authorized by section 373.414. We agree in part.
Section 373.414(1) required the District to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department [Department of Environmental Regulation] for purposes of dredging and filling. Section 373.414 provides:
373.414 Wetlands.--
(1) By March 31, 1987, for those water management districts to which the department has delegated the responsibility for administration of its stormwater rule, each district shall adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department for purposes of regulation of dredging and filling. The rule shall include:
(a) One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal;
(b) Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size;
(c) Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and
(d) Provisions for consideration of the cumulative and offsite impacts of a project or projects.
(2) This section does not affect the authority of the water management districts to regulate impacts on water quality and water quantity.
Earlier, the District was given the responsibility for overseeing the management and storage of surface waters within its territory in Part IV of Chapter 373. As part of its enforcement tools, the District was empowered to measure and regulate dams, impoundments, reservoirs, and appurtenant works (§ 373.409), to require permits for the construction or alteration (§ 373.413), maintenance and operation of such structures (§ 373.416). In contrast with section 373.414, all three of these earlier sections employ precatory rather than mandatory directions to the District; e.g., "the governing board ... may require such permits and impose such reasonable conditions as are necessary." §§ 373.413(1), 373.416(1), 373.409(1) Fla.Stat. Further, section 373.413(1) and 373.416(1) both expressly exclude from coverage "the exemptions set forth in this part."
To implement the surface water management provisions, the District adopted rule 40D-4.051, Florida Administrative Code. That rule contains ten activities which the District exempted from the permitting requirements of Part IV of Chapter 373:
40D-4.051 Exemptions.
The following activities are exempt from permitting under this chapter:
(1) The activities specified in sections 373.406, and 403.812, Florida Statutes.
(2) The construction, alteration, or operation of surface water management systems which satisfy the following requirements:
(a) The total land area does not equal or exceed 10 acres;
(b) The area of impervious surface will not equal or exceed 2 acres;
(c) The activities will not be conducted in wetlands;
(d) The activities will not be conducted in existing lakes, streams, or other watercourses;
(e) The surface water management system will not utilize drainage pumps or operable discharge structures;
(f) The activities will not utilize storm drainage facilities larger than one 24-inch diameter pipe, or its hydraulic equivalent;
(g) Discharges from the site will meet applicable state water quality standards, as set forth in chapter 17-3 and rule 17-4.242;
(h) The surface water management system meets the requirements of chapter 17-25 "Regulation of Stormwater;"
(i) The activities can otherwise reasonably be expected not to have significant adverse water resource impacts; and
(j) The surface water management system can be effectively maintained.
(3) Any project, work or activity which has received all governmental approvals necessary to begin construction and is under construction prior to October 1, 1984.
(4) Any project, work or activity which received a surface water management permit from the District prior to October 1, 1984.
(5) Any project, work or activity which did not require a surface water management permit from the District and had received all other necessary governmental approvals to begin construction or operation prior to October 1, 1984.
(6) Any phased or long term buildout project, including a development of regional impact, planned unit development, development with a master plan or master site plan, or similar project, which has received local or regional approval prior to October 1, 1984, if:
(a) The approval process requires a specific site plan and provides for a master drainage plan approved prior to the issuance of a building permit, and
(b) The developer has notified the District of its intention to rely upon this exemption on or before April 1, 1985.
Projects exempt under this subsection shall continue to be subject to the District's surface water management rules in effect prior to October 1, 1984.
(7) Mining, mining related activities and mining reclamation, except for phosphate. Projects exempt under this subsection shall continue to be subject to the District's surface water management rules in effect prior to October 1, 1984.
(8) (a) All normal and necessary farming and forestry operations as are customary for the area, which can be conducted without the construction of a new surface water management system. Site preparation, clearing, fencing, contouring to prevent soil erosion, soil preparation, plowing, planting, harvesting; and the construction of access roads, and the placement of bridges and culverts to facilitate these operations do not constitute construction of a new surface water management system, provided such operations and facilities do not impede or divert the flow of surface waters entering or leaving the operation or intrude into or otherwise substantially and adversely impact significant wetlands.
(b) The construction, operation and maintenance of a farming or forestry irrigation system, including headers, ditches, furrows and tailwater recovery ponds, which contain water only following a rainfall event or resulting from withdrawals or diversions from ground water or surface water by wells or pumps. Nevertheless, a Consumptive Use Permit may be required for such withdrawals or diversions.
(c) The maintenance of existing irrigation and drainage ditches, dikes and insect control structures, provided that no more dredging is to be performed than is necessary to restore the dike or irrigation or drainage ditch to its original design specifications.
(9) Phosphate mining and mining related surface water management systems are exempt from the requirements of this chapter, provided that all Conditions for Exemption in rule 40D-4.053(1) are met. However, nothing in this section is intended to exempt phosphate mining from the Department of Environmental Regulation's authority for permitting in dredge and fill jurisdictional areas.
(10) Phosphate mine reclamation and restoration conducted in accordance with Chapter 16C-16, F.A.C., the Mine Reclamation rules of the Florida Department of Natural Resources, is exempt from the requirements of this chapter provided that all Conditions for Exemption in rule 40D-4.053(2) are met.
The District promulgated the challenged rule pertaining to isolated wetlands in this case by making it an amendment or addition to Rule 40D-4.051, thereby incorporating these same exemptions for permitting for the isolated wetlands. It also added two other exemptions as part of the new rule:
4.2 Conceptual Approval--Applications which propose to impact isolated wetlands may be approved in concept with a Letter of Conceptual Approval issued prior to the effective date of this appendix (March 31, 1987) will be governed by permit conditions and the laws and rules in effect at the time of issuance.
4.3 Developments of Regional Impact--For projects where an application for developmental approval was filed under the Development of Regional Impact (DRI) process pursuant to section 380.06, Florida Statutes, prior to March 31, 1987, the developer may request that the project be reviewed under the Chapter 40D-4 wetland permitting criteria in effect prior to October 1, 1986. The ultimate approval of the request lies with the District and will be based on whether the DRI was designed in compliance with the wetlands criteria in effect prior to October 1, 1986. The developer has until July 1, 1987 to notify the District in writing of its intention to rely upon this provision.
Appellants argue that none of the exemptions to the isolated wetlands permitting criteria are valid or authorized by section 373.414.
The route by which...
To continue reading
Request your trial
-
Adam Smith Enterprises, Inc. v. State Dept. of Environmental Regulation
...v. State, Department of Environmental Regulation, 444 So.2d 483 (Fla. 1st DCA 1984); Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So.2d 419 (Fla. 5th DCA 1988) (issue of authority for direct appeal addressed in f.n. 1, wherein the court held: "This is ......
-
Manasota-88, Inc. v. State, Dept. of Environmental Regulation, MANASOTA-88
...Telephone Company of Florida v. Public Service Commission, 446 So.2d 1063 (Fla.1984); Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So.2d 419 (Fla. 5th DCA 1988); Polk v. School Board of Polk County, 373 So.2d 960 (Fla. 2d DCA 1979); City of Key West v.......
-
DeMario v. Franklin Mortg. & Inv. Co., Inc., 93-2678
...agency may not enlarge, modify, or contravene the provisions of a statute. See Booker Creek Preservation, Inc. v. Southwest Florida Water Management Dist., 534 So.2d 419 (Fla. 5th DCA 1988); Campus Communications, Inc. v. Department of Revenue, 473 So.2d 1290 (Fla.1985); Seitz v. Duval Coun......
-
Save Anna Maria, Inc. v. Department of Transp.
...an improper delegation of its statutory duties to another state agency and cites Booker Creek Preservation, Inc. v. Southwest Florida Water Management Dist., 534 So.2d 419 (Fla. 5th DCA 1988), for that proposition. As both DOT and DEP point out, however, Booker Creek is not applicable in th......
-
Save a Little Room for Me: the Necessity of Naming as Inventors Practitioners Who Conceive of Claimed Subject Matter - David Hricik, Alexandra Geczi, and Zachary Thomas
...to enlarge a restrictive grant of jurisdiction from the Legislature"). 157. Booker Creek Pres., Inc. v. S.W. Fla. Water Mgmt. Dist., 534 So. 2d 419, 423 (Fla. Dist. Ct. App. 1988) (maintaining that an agency cannot vary the impact of a statute by restricting or limiting its operation throug......
-
The scarecrow in McDonald's Farm: a fairy tale about administrative law.
...120.54. [8] FLA. STAT. [sections] 120.54(1)(a). [9] Booker Creek Preservation, Inc. v. Southwest Florida Water Management District, 534 So. 2d 419, 422 (Fla. 5th D.C.A. [10] State v. Jenkins, 469 So. 2d 733, 734 (Fla. 1985); Florida Livestock Board v. Gladden, 76 So. 2d 291,293 (Fla. 1954);......