Grove Isle, Ltd. v. State Dept. of Environmental Regulation

• Decision Date: 22 March 1984
• Docket Number: No. AO-354,AO-354
• Citation: 454 So.2d 571
• Parties: GROVE ISLE, LTD., Appellant, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.
• Court: Florida District Court of Appeals

Page 571

454 So.2d 571

GROVE ISLE, LTD., Appellant, v. STATE of Florida DEPARTMENT OF ENVIRONMENTAL REGULATION, Appellee.

No. AO-354.

District Court of Appeal of Florida First District.

March 22, 1984.

Rehearing Denied Aug. 16, 1984.

Kenneth G. Oertel, of Oertel & Hoffman, P.A., Tallahassee, and Larry Stewart, of Floyd, Pearson, Stewart, Richman, Greer & Weil, Miami, for appellant.

John C. Bottcher, Deputy Gen. Counsel; Bram D.E. Canter, Asst. Gen. Counsel, State Dept. of Environmental Regulation, Tallahassee, for appellee.

Parker D. Thomson, Douglas M. Halsey, and Laura Besvinick, and David A. Doheny, Miami, for amici curiae, Tropical Audubon Society, Bayshore Homeowners Ass'n, Coconut Grove Civic Club, Tigertail Ass'n and David A. Doheny.

SHIVERS, Judge.

Grove Isle appeals the final order issued by a hearing officer for the Division of Administrative Hearings (DOAH) upholding the validity of two rules of the Department of Environmental Regulation (DER). At issue is the validity of DER Rules 17-3.041 and 17-4.242, Fla.Admin.Code. These rules were applied by DER in denying Grove Isle's application for a permit to construct a concrete fixed pier marina in Biscayne Bay, a body of water designated as "Outstanding Florida Waters" by DER Rule. Rule 17-3.041, which is entitled "Special Protection, Outstanding Florida Waters," declares that DER policy is to afford the highest protection to waters designated "Outstanding Florida Waters." The rule also designates several classifications of "Outstanding Florida Waters." One such classification is designated as "Aquatic Preserves" and includes Biscayne Bay. Rule 17-4.242, which is entitled "Special Protection: Outstanding Florida Waters; Equitable Abatement" states that:

(1) Outstanding Florida Waters

(a) No department permit or water quality certification shall be issued for any stationary installation which significantly degrades, ... or is within Outstanding Florida Waters, unless the applicant affirmatively demonstrates that:

....

2. The proposed activity or discharge is clearly in the public interest; and either,

b. The existing ambient water quality within Outstanding Florida Waters will not be lowered as a result of the proposed activity or discharge....

(emphasis added)

It is a cornerstone of administrative law that administrative bodies or commissions, unless specifically created in the constitution, are creatures of statute and derive only the power specified therein. Florida Power & Light Co. v. Florida Public Service Commission, 8 FLW 116, --- So.2d ---- (Fla., March 17, 1983); Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908 (Fla. 1st DCA), cert. denied, 360 So.2d 1247 (Fla.1978); State ex rel. Greenberg v. Florida State Board of Dentistry, 297 So.2d 628 (Fla. 1st DCA); cert. dismissed, 300 So.2d 900 (Fla.1974). As such, administrative bodies have no inherent power to promulgate rules and must derive that power from a statutory base. Section 120.54(14), Fla.Stat. (1981). Grove Isle contends on appeal, as it did before the DOAH hearing officer, that the challenged rules are invalid because they were enacted without legislative authority.

Section 403.087, Florida Statutes (1981), provides specific statutory authority which allows DER to "adopt, amend, or repeal rules, regulations, and standards for the issuance, denial, and revocation of permits." Also, section 403.061(7), Florida Statutes (1981), provides DER with authority to "adopt, modify, and repeal rules and regulations to carry out the intent and purposes of this act." We think that the proper standard of review concerning rules promulgated pursuant to these sections, such as the rules sub judice, is set forth in General Telephone Co. of Florida v. Florida Public Service Commission, 446 So.2d 1063 (Fla.1984). The rules should be sustained as long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary or capricious. Id. The party challenging the validity of an agency rule must show that the agency adopting the rule has exceeded its authority, that the requirements of the rule are not appropriate to the ends specified in the legislative act, and that the requirements contained in the rule are not reasonably related to the purpose of the enabling legislation but are arbitrary or capricious. Department of Administration, Division of Retirement v. Albanese, 445 So.2d 639 (Fla. 1st DCA 1984); Agrico Chemical Co. v. State, Department of Environmental Regulation, 365 So.2d 759 (Fla. 1st DCA 1978), cert. denied, 376 So.2d 74 (Fla.1979).

Grove Isle first contends that both Rules 17-3.041 and 17-4.242 are invalid because the designation of "Outstanding Florida Waters," as described in both rules, does not constitute a classification of water made "in accordance with the present and future most beneficial uses" as required by section 403.061(10). This contention is without merit. Although the title "Outstanding Florida Waters" is not as descriptive as to the present and future most beneficial uses of these waters as are other classifications of water bodies made by DER, we believe that the title along with the criteria set forth in Rule 7-4.242 amply demonstrate that the designation of "Outstanding Florida Waters" refers to environmentally sensitive waters which are to be given extremely restrictive uses. We find, therefore, that the classification "Outstanding Florida Waters," as used in Rules 17-3.041 and 17-4.242 does not conflict with the statutory requirements of section 403.061(10).

We agree, however, with Grove Isle's further contention that Rule 17-4.242 is an invalid exercise of delegated legislative authority insofar as it establishes a "public interest" requirement as a precondition to the issuance of a construction permit. In addition to imposing an affirmative duty on an applicant for a permit to demonstrate that the proposed activity will meet DER's water quality standards, Rule 17-4.242 also imposes a separate affirmative duty on the applicant to demonstrate that the "proposed activity or discharge is clearly in the public interest." Grove Isle, Ltd. v. Bayshore Homeowners' Association, 418 So.2d 1046 (Fla. 1st DCA 1982), rev. denied, 430 So.2d 451 (Fla.1983). This "public interest" requirement is not defined. No criteria are provided, in the rule or elsewhere, which would enable a permit applicant, DER, or a court to determine whether an applicant had satisfied this requirement. The "public interest" requirement is not tied to any particular form of air or water pollution, or even to pollution in general. In other words, the rule appears to allow DER to determine arbitrarily whether an applicant has proposed an activity which is "clearly in the public interest" based on DER's subjective and unwritten notions of what the "public interest" might be.

Section 403.087(2), Florida Statutes (1981), lays an affirmative duty upon DER to issue permits. Section 403.087, inter alia, states:

(3) The department shall issue permits on such conditions as are necessary to effect the intent and purposes of this section.

(4) The department shall issue permits to construct, operate, maintain, expand, or modify an installation which may reasonably be expected to be a source of pollution only when it determines that the installation is provided or equipped with pollution control facilities that will abate or prevent pollution to the degree that will comply with the standards or rules promulgated by the department, except as provided in s. 403.088, and which will comply with the prohibitions in s. 124.41 of Vol. 40 of the Code of Federal Regulations.

(emphasis added). By its terms, the statute would require DER to issue a permit if the applying installation can comply with the standards or rules promulgated by DER to abate or prevent pollution and can comply with the prohibitions in the Code of Federal Regulations. The only exception is provided in section 403.088.

In the instant case, the hearing officer seized upon section 403.088 as providing statutory authority for the "public interest" requirement of Rule 17-4.242. It is true that section 403.088(2)(b) contains language which authorizes the issuance of an operation permit if DER finds, inter alia, "circumstances which are clearly in the public...