Osceola County v. St. Johns River Water Management Dist., 85-678

• Decision Date: 06 March 1986
• Docket Number: No. 85-678,85-678
• Citation: 486 So.2d 616,11 Fla. L. Weekly 595
• Parties: 11 Fla. L. Weekly 595 OSCEOLA COUNTY, a political subdivision of the State of Florida, Petitioner, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondent.
• Court: Florida District Court of Appeals

Page 616

486 So.2d 616

11 Fla. L. Weekly 595

OSCEOLA COUNTY, a political subdivision of the State of Florida, Petitioner, v. ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Respondent.

No. 85-678.

District Court of Appeal of Florida Fifth District.

March 6, 1986.

Rehearing Denied April 16, 1986.

William L. Earl and Elizabeth M. Weaver, of Peoples, Earl & Blank, P.A., Miami, for petitioner.

Vance W. Kidder, Palatka, for respondent.

Clifton A. McClelland, Jr., of Potter, McClelland, Griffith, Jones & Marks, P.A., Melbourne, amicus curiae, for South Brevard Water Authority.

Deborah A. Getzoff, Asst. Gen. Counsel, Tallahassee, amicus curiae, for State of Fla., Dept. of Environmental Regulation.

ORFINGER, Judge.

The issue presented in this petition for writ of prohibition is whether transfer of water from one water management district to another is authorized by law. Put another way, does the Department of Environmental Regulation of the State of Florida (D.E.R.) have the statutory authority to adopt an administrative rule prescribing the procedure to be followed and the guidelines to be observed by the respective water management districts in considering interdistrict water transfers? We answer the question in the affirmative and deny the writ.

The South Brevard Water Authority applied to the St. Johns River Water Management District for a consumptive use permit ¹ which would authorize the use, in Brevard County, of water to be drawn from the Holopaw region of Osceola County. ² Brevard County is completely within the St. Johns River Water Management District, as is a portion of Osceola County. However, the Holopaw region of Osceola County lies within the South Florida Water Management District (South Florida). Osceola County petitions this court for a writ of prohibition to prevent the St. Johns River Water Management District (St. Johns) from considering this consumptive use permit, claiming that an individual water management district lacks jurisdiction under the Florida Water Resources Act to consider a consumptive use permit application relating to water which will be diverted from outside its boundaries.

Petitioner asserts that the issue before the court is whether St. Johns may exercise jurisdiction on resources outside its territorial boundaries, but to state the question thusly virtually requires the conclusion that it may not. The real issue here is whether the Florida Water Resources Act gives D.E.R. the power to authorize such transfers.

Respondent challenges Osceola County's standing to seek this writ. We can dispose of that issue quickly by noting that counties in this state have various statutory duties and responsibilities with respect to planning for water management and conservation, sufficient to give them an interest in any activity of the state or of the agencies of the state as may appear to affect those duties and responsibilities. See, e.g. §§ 163.3161(3), 163.3177(6)(d), 373.196(1), (2) and (3), Fla.Stat. (1985). Osceola County has standing. See Gieger v. Sun First National Bank of Orlando, 427 So.2d 815 (Fla. 5th DCA 1983).

Respondent also asserts that Osceola County must first exhaust its administrative remedies before seeking relief in the courts. Here, prohibition is sought on the assertion that St. Johns lacks jurisdiction to even hear the request for a permit. A persuasive challenge to agency jurisdiction has been held to be a widely recognized exception to the exhaustion doctrine. State, Dept. of Environmental Regulation v. Falls Chase Special Taxing District, 424 So.2d 787 (Fla. 1st DCA 1983). It is necessary, therefore to examine Osceola County's challenge to determine whether it is persuasive on that issue.

The Water Resources Act was enacted in 1972 to provide the state with a comprehensive policy for the management of Florida water. See § 373.016, Fla.Stat. (1985). ³ The authority over water management activities was initially vested in the Department of Natural Resources (D.N.R.) but in 1975 the Florida Environmental Reorganization Act created the Department of Environmental Regulation (D.E.R.) as the centralized agency to implement the state's various environmental programs, including the management of the state's water resources. This centralization was partially effected by transferring D.N.R.'s authority over water management to D.E.R. Chapter 75-22, § 11, Laws of Fla. The D.E.R. was also authorized to adopt an integrated, coordinated plan for the use and development of Florida waters to be known as the State Water Use Plan. See § 373.036(1), Fla.Stat. (1985). Although the amended Water Resources Act gave D.E.R. broad authority over programs affecting the state's water resources, the legislature encouraged delegation of appropriate powers to the regional water management districts. See § 373.016(3), Fla.Stat. (1985).

The Water Resources Act originally established six water management districts. In 1977, the districts were reorganized into five districts. Chapter 77-104, § 113, Laws of Fla. Section 373.219, Florida Statutes, authorizes D.E.R. or the districts' governing boards to require permits for consumptive use of water. Section 373.223(2), Florida Statutes (1985), provides for transfers of water in this manner:

The governing board or the department may authorize the holder of a use permit to transport and use ground or surface water beyond overlying land, across county boundaries, or outside the watershed from which it is taken if the governing board or the department determines that such transport and use is consistent with the public interest, and no local government shall adopt or enforce any law, ordinance, rule, regulation, or order to the contrary.

D.E.R. has adopted Rule 17-40.05, Florida Administrative Code, which covers water transport, and specifically addresses inter-district transfers in this manner:

(1) The transport or use of water across District boundaries shall require approval of each involved District.

(2) In deciding whether the transport and use of water across District boundaries is consistent with the public interest pursuant to Section 373.223, Florida Statutes, the Districts should consider the extent to which:

(a) Comprehensive water conservation and reuse programs are implemented and enforced in the area of need.

(b) The major costs, benefits, and environmental impact have been adequately determined including the impact on both the supplying and receiving areas;

(c) The transport is an environmentally and economically acceptable method to supply water for the given purpose;

(d) The present and projected water needs of the supplying area are reasonably determined and can be satisfied even if the transport takes place;

(e) The transport plan incorporates a regional approach to water supply and distribution including, where appropriate, plans for eventual interconnection of water supply sources; and

(f) The transport is otherwise consistent with the public interest based upon evidence presented.

Petitioner claims that this administrative rule is an unauthorized usurpation of power because D.E.R. was not granted specific authority to approve inter-district diversions of water, nor do the water management districts have independent statutory authorization to approve inter-district movements of water. Petitioner reasons that since the legislature in providing for movement of water across county lines, beyond overlying lands and outside of the watershed from which it is taken, was silent as to inter-district transport, the legislature must have intended that each district would be limited to managing the water resources within its own boundaries and that water could not be moved from one district to another, under any circumstances. We reject this premise.

In relation to D.E.R., the five water management districts are both subordinate and independent. D.E.R. has chosen to retain supervisory authority over many of the regional functions delegated to the districts in order to assure uniformity and maximum effectiveness among the districts. See e.g., § 373.103, Fla.Stat. (1985); Fla.Admin.Code Rule 17-40.10(2)-(4). On the other hand, many powers and duties granted to the water management districts by law appear to be independent of D.E.R. See e.g., § 373.0693, § 373.0697, § 373.083-099, § 373.106, § 373.119, § 373.139, § 373.171, Fla.Stat. (1985). See also Deseret Ranches of Florida, Inc. v. St. Johns River Water Management District, 406 So.2d 1132, 1139 (Fla. 5th DCA 1981), affirmed in part, reversed in part, 421 So.2d 1067 (Fla.1982). It is conceded that the water management districts do not have independent authority to plan for the inter-district diversion of water. The primary question, then, is whether the water management districts have been properly delegated that authority by D.E.R.

Recognizing that the waters in the state are among Florida's basic resources, the Florida legislature, through Chapter 373, Florida Statutes, "The Florida Water Resources Act," provided a comprehensive statewide plan for the conservation, protection, management and control of state waters. Deseret Ranches, 421 So.2d at 1068. The legislature enacted the Water Resources Act to develop a regulatory framework of managing water resources at both a state and regional level. See § 373.016(3), Fla.Stat. (1985). The individual water management districts do not just promote local or regional interests and policies, but also further the state functions and policies relating to water resource conservation, control, planning and development. Nothing in the Water Resources Act indicates a legislative intent that water management districts operate solely as independent provinces, without regard for statewide concerns. This parochial view is clearly negated by the statute which implements a statewide water management plan. A two-tiered system of state and regional management was perceived by the legislature as the most effective way to conserve and manage the...