Concerned Citizens of Putnam County for Responsive Government, Inc. v. St. Johns River Water Management Dist., 92-2095

• Decision Date: 23 July 1993
• Docket Number: No. 92-2095,92-2095
• Citation: 622 So.2d 520
• Parties: 18 Fla. L. Weekly D1643 CONCERNED CITIZENS OF PUTNAM COUNTY FOR RESPONSIVE GOVERNMENT, INC., et al., Appellants, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, et al., Appellees.
• Court: Florida District Court of Appeals

Page 520

622 So.2d 520

18 Fla. L. Weekly D1643

CONCERNED CITIZENS OF PUTNAM COUNTY FOR RESPONSIVE

GOVERNMENT, INC., et al., Appellants, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, et al., Appellees.

No. 92-2095.

District Court of Appeal of Florida,

Fifth District.

July 23, 1993.

David G. Guest and Kenneth B. Wright of Sierra Club Legal Defense Fund, Tallahassee, for appellants.

Wayne E. Flowers, General Counsel, St. Johns River Water Management Dist., Palatka, for appellee St. Johns River Water Management Dist.

No appearance for appellees Duane L. Bork, Howard M. Sheridan, and Brenda B. Sheridan.

PETERSON, Judge.

Concerned Citizens of Putnam County for Responsive Government, Inc. and Citizens for Water, Inc. (collectively Citizens) appeal the trial court's dismissal with prejudice of Citizens' complaint for injunctive relief against the St. Johns River Water Management District (District). The complaint requested that the District be required (1) to establish minimum water flows and levels; (2) to cease, until the flows and levels are established, issuance of consumptive water permits within certain areas of the District which have critical water shortage problems; and (3) to reduce the volume of water consumption in the critical areas until the water resources and ecology can recover. Citizens alleged that, because of the District's failure to establish and maintain minimum water flows and levels, it has allowed excessive water withdrawal. The excessive water withdrawal, Citizens alleged, has damaged water resources and ecology, has caused certain lakes to dry up, and has caused the flow rates of certain natural springs to diminish dramatically. We vacate the order of dismissal and remand for further proceedings.

In 1972 the legislature enacted Chapter 373, Florida Statutes, the "Florida Water Resources Act of 1972" (the Act). Section 373.013, Fla.Stat. (Supp.1972). The dual purpose of the Act was to provide for conservation of the available water resources while maximizing beneficial use. City of St. Petersburg v. Southwest Water Management District, 355 So.2d 796, 798 (Fla. 2d DCA1977), appeal dismissed, 358 So.2d 129 (Fla.1978), cert. denied, 368 So.2d 1364 (Fla.1979). The Department of Natural Resources and later the Department of Environmental Regulation (DER) was made responsible for administration of Chapter 373 on a statewide basis. Section 373.026, Fla.Stat. (1972 Supp.); Sec. 373.026, Fla.Stat. (1975). Section 373.069 created the five water management districts of the state, including appellee. The legislature has stated its policy to be that, "to the greatest extent possible," the DER delegate its power to the governing boards of the water management districts. Section 373.016(3), Fla.Stat. By rule 17-101.040(12)(a)3, the department has authorized the District to administer and enforce certain laws and rules, including section 373.042.

Citizens has standing to maintain the action against the District pursuant to section 403.412(2), Florida Statutes:

(a) The Department of Legal Affairs, any political subdivision or municipality of the state, or a citizen of the state may maintain an action for injunctive relief against:

1. Any governmental agency or authority charged by law with the duty of enforcing laws, rules, and regulations for the protection of the air, water, and other natural resources of the state to compel such governmental authority to enforce such laws, rules, and regulations;

2. Any person, natural or corporate, or governmental agency or authority to enjoin such persons, agencies, or authorities from violating any law, rules, or regulations for the protection of the air, water, and other natural resources of the state.

The purpose of this statute was discussed in Friends of the Everglades, Inc. v. Board of County Com'rs of Monroe County, 456 So.2d 904 (Fla. 1st DCA 1984), review denied sub nom. Upper Keys Citizens Ass'n v. Board of County Com'rs of Monroe County, 462 So.2d 1108 (Fla.1985):

Section 403.412, Florida Statutes (1971), Florida's Environmental Protection Act, was enacted as a means of carrying out Florida's constitutional mandate to abate air and water pollution within this state. Florida Wildlife Federation v. State, Department of Environmental Regulation, 390 So.2d 64, 66 (Fla.1980). See also Art. 11, Sec. 7, Fla. Const. The act has been described as reflecting "a legislative purpose to provide a procedure where governmental bodies could be compelled to enforce applicable environmental laws and individuals, corporations and governmental bodies could be restrained from violating any of the applicable environmental laws." Orange County Audubon Society, Inc. v. Hold, 276 So.2d 542, 543 (Fla. 4th DCA1973) (e.s. in original). Accordingly, it has been said to have "created a new cause of action, giving the citizens of Florida new substantive rights not previously possessed" and to enable those citizens to institute suit for the protection of their environment without a showing of "special injury" as previously required. Florida Wildlife Federation, 390 So.2d at 66-67.

Id. at 912-13.

The portion of the Act which requires establishment of minimum flows and levels, and which, Citizens contends, the District has ignored for twenty years, is found in section 373.042, Florida Statutes:

Minimum flows and levels.--Within each section, or the water management district as a whole, the department or the governing board shall establish the following:

(1) Minimum flow for all surface watercourses in the area. The minimum flow for a given watercourse shall be the limit at which further withdrawals would be significantly harmful to the water resources or ecology of the area.

(2) Minimum water level. The minimum water level shall be the level of ground water in an aquifer and the level of surface water at which further withdrawals would be significantly harmful to the water resources of the area.

The minimum flow and minimum water level shall be calculated by the department and the governing board using the best information available. When appropriate, minimum flows and levels may be calculated to reflect seasonal variations. The department and the governing board shall also consider, and at their discretion may provide for, the protection of nonconsumptive uses in the establishment of minimum flows and levels.

It is undisputed that the District has not set minimum flows and levels for waters in the District except for the Wekiva River and Black Water Creek areas. See Fla.Admin.Code R. 40C-8.031. The District has, however, recognized the importance of minimum flows and levels in rules it has promulgated. For example, Florida Administrative Code Rule 40C-301 provides:

(5)(a) A proposed consumptive use does not meet the criteria for the issuance of a permit ... if such proposed water use will:

* * * * * *

5. cause the rate of flow of a surface water course to be lowered below a minimum flow which has been established pursuant to Section 373.042(1), [Florida Statutes] ...; or

6. cause the level of a water table aquifer, the potentiometric surface level of an aquifer source, or the water level of a surface water source to be lowered below a minimum level which has been established pursuant to Section 373.042(2), [Florida Statutes]....

Citizens' argument is simply stated: In section 373.042, the Florida Legislature issued a 1972 mandate that water districts "shall" establish minimum flows and levels in water courses, surface waters, and aquifers and the District failed to do so. In response, the District argues that, notwithstanding the word "shall," the statute does not require the District to establish minimum flows and levels.

District Arguments

1. Directory vs. Mandatory

First, the District argues that the word "shall" in section 373.042 is not mandatory but directory and that it is within its discretion whether to establish minimum flows and levels. It concludes that, since the legislature did not set a deadline for the establishment of the minimum levels, as it has done in other statutes, ¹ the term "shall" was meant to be discretionary. We disagree.

Although there is no fixed construction of the word "shall," it is normally meant to be mandatory in nature. S.R. v. State, 346 So.2d 1018 (Fla.1977), citing Neal v. Bryant, 149 So.2d 529 (Fla.1962). The interpretation of the word "shall" depends upon the context in which it is found and upon the intent of the legislature as expressed in the statute. State v. Goodson, 403 So.2d 1337, 1339 (Fla.1981); S.R., 346 So.2d at 1019, citing White v. Means, 280 So.2d 20 (Fla. 1st DCA1973). Where a property right, rather than an "immaterial matter," or a matter of "substance" rather than a "matter of convenience" is involved, the word "shall" will be strictly construed. Neal, 149 So.2d at 532.

In the instant case, we begin our analysis with the premise that "shall" is mandatory, the "normal meaning." S.R. v. State, 346 So.2d 1018. Next, we employ the "legislative-intent" analysis described in S.R. and find nothing in Chapter 373 that persuades us that "shall" is intended to be other than mandatory. The legislature has employed three different words--"shall," "may," and "is authorized"--as introductory words in Chapter 373 to instruct the agencies to exercise the duties given to them. Review of the body of the sections following these introductory words does not reveal to us a pattern that would allow us logically to conclude that the word "shall" is directory and we note that, unless at least some of the subsections using the word "shall" are mandatory, the water management districts created by the legislature in section 373.069 would operate in a wholly discretionary fashion. Surely, such a result was not intended.

Finally, we analyze section 373.042 to determine whether it deprives anyone of property or property rights and whether an "immaterial matter" is involved. While the statute does not affect property directly, it...