Swfl Water Mgmt District v. Charlotte County
| Decision Date | 01 September 2000 |
| Docket Number | 97-1626 |
| Parties | NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT; ENVIRONMENTAL CONFEDERATION OF SOUTHWEST FLORIDA; and MANATEE COUNTY, Appellants/Cross-Appellees, v. CHARLOTTE COUNTY, Appellee, and PINELLAS COUNTY; DESOTO COUNTY and HARDEE COUNTY; POLK COUNTY; and FLORIDA CITRUS MUTUAL, Appellees/Cross-Appellants. CaseConsolidated IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT Opinion filed |
| Court | Court of Appeal of Florida (US) |
Appeal from the Division of Administrative Hearings.
Virginia B. Townes of Akerman, Senterfitt & Eidson, P.A., Orlando, for Appellant/Cross-Appellee Southwest Florida Water Management District.
S. Ansley Samson and David G. Guest of Earthjustice Legal Defense Fund, Inc., Tallahassee, for Appellant/Cross-Appellee Environmental Confederation of Southwest Florida.
Teddy N. Williams, Jr., County Attorney, and Jeffrey N. Steinsnyder, Senior Assistant County Attorney, Bradenton, for Appellant/Cross-Appellee Manatee County.
Christopher H. Bentley and Diane Tremor of Rose, Sundstrom & Bentley, Tallahassee, for Appellee Charlotte County.
Edward P. de la Parte, Jr., David M. Caldevilla, and Charles R. Fletcher of de la Parte, Gilbert & Bales, P.A., Tampa, for Appellee/Cross-Appellant Pinellas County.
Kent A. Zaiser, Tallahassee; Daniel P. Fernandez, Tampa; Laura A. Olson, Tampa; and Gary A. Vorbeck, Arcadia, for Appellees/Cross-Appellants DeSoto County and Hardee County.
Mark F. Carpanini, Karla Foreman Wright, Palmer C. Davis, and Barbara Coleman, Bartow, for Appellee/Cross-Appellant Polk County.
Michael A. Skelton of Michael A. Skelton, P.A., Tampa, for Appellee/Cross-Appellant Florida Citrus Mutual.
Kathryn L. Mennella, Jennifer B. Springfield, and Stanley J. Niego, Palatka, for St. Johns River Water Management District, Amicus Curiae.
Robert G. Gough, Assistant General Counsel, Department of Environmental Protection, Tallahassee, for Department of Environmental Protection, Amicus Curiae.
DANAHY, PAUL W., (Senior) Judge.
Pursuant to section 120.68, Florida Statutes (Supp. 1996), the Southwest Florida Water Management District (the District), Manatee County, and the Environmental Confederation of Southwest Florida appeal portions of the comprehensive 652-page order of the Administrative Law Judge (ALJ) that invalidated several of the District's existing or proposed rules and agency statements. Several parties, including Pinellas County (Pinellas), DeSoto and Hardee Counties, and Florida Citrus Mutual, filed notices of cross-appeal challenging portions of the order which upheld the validity of certain proposed and existing rules and agency statements. The primary parties to the appeal are the District and Pinellas. There are eleven issues on appeal. Three of these issues have become moot because the District withdrew the rules in question, and we decline to rule on these particular issues. We reverse the ALJ's ruling on the four remaining issues in the appeal and affirm the ALJ's rulings on the issues raised in the cross-appeal.
Pinellas and various other parties filed numerous petitions for administrative proceedings pursuant to sections 120.535, 120.54, and 120.56, Florida Statutes (1995), challenging proposed and existing rules and agency statements of the District governing the issuance of Water Use Permits (WUPs). The primary basis of the challenges was that the particular rule or agency statement was an invalid exercise of delegated legislative authority as defined by section 120.52(8), Florida Statutes (1995). The proposed rules and agency statements were intended to govern the issuance of WUPs in the Southern Water Use Caution Area (SWUCA), a portion of the territory under the jurisdiction of the District encompassing all of DeSoto, Hardee, Manatee, and Sarasota Counties, and portions of Charlotte, Highlands, Hillsborough, and Polk Counties. The existing rules under challenge govern the issuance of WUPs throughout the entire area encompassed in the District's jurisdiction, which includes all or part of sixteen counties. The District's water use permitting rules are published in chapter 40D-2 of the Florida Administrative Code (FAC). The proposed SWUCA rules were published in the Florida Administrative Weekly. The agency statements under challenge in this case are contained in a separate document entitled "Basis of Review for Water Use Permit Applications" (BOR), which is incorporated by reference in rule 40D-2.091 and in proposed rule 40D-2.091. The BOR defines important terms, explains permitting policies and procedures, and outlines performance standards for several of the water use permitting conditions adopted by the District.
The ALJ consolidated the challenges of the various parties to the proposed and existing rules and agency statements and held a formal evidentiary hearing pursuant to section 120.57, Florida Statutes (1995). Although the hearing took place during a three-month period in 1995, the ALJ did not enter his order until March 1997. The order invalidated numerous existing and proposed rules and agency statements and also upheld numerous existing and proposed rules and agency statements.
Prior to the Florida Water Resources Act of 1972, which is codified in chapter 373, Florida Statutes, water rights were governed under Florida common law by the reasonable use rule. See Village of Tequesta v. Jupiter Inlet Corp., 371 So. 2d 663 (Fla. 1979). The Florida Water Resources Act brought Florida from a common law system to a statutory permitting system and was patterned, in large part, upon A Model Water Code, a legislative proposal drafted by law professors at the University of Florida. See Erik Swenson, Public Trust Doctrine and Groundwater Rights, 53 U. Miami L. Rev. 363 (Jan. 1999).
Section 373.016(3), Florida Statutes (1995), vests power and responsibility in the Department of Environmental Protection (DEP) "to accomplish the conservation, protection, management, and control of the waters of the state and with sufficient flexibility and discretion to accomplish these ends through delegation of appropriate powers to the various water management districts." The statute encouraged DEP to delegate power to the districts "to the greatest extent practicable." In 1989, DEP was directed by the legislature to "[a]dopt by rule a state water policy, which shall provide goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources." § 373.026(10), Fla. Stat. (1989). The resulting Water Policy is published at chapter 62-40 of the FAC. That the Water Policy Rules are intended as a guide to the water management districts in their promulgation of water permitting rules is further established in rule 62-40.110, the "Declaration and Intent" section of the Water Policy Rules. Prior to June 2000, section (2) of this rule stated: "This Chapter is intended to provide water policy goals, objectives, and guidance for the development and review of programs, rules, and plans relating to water resources, as expressed in Chapters 187, 373, and 403, Florida Statutes." Section (9) states:
Section 373.223(1), Florida Statutes (1995), states that to obtain a WUP, the applicant must establish that the proposed use of water: (a) is reasonable-beneficial; (b) will not interfere with any presently existing legal water use; and (c) is consistent with the public interest. Section 373.113, Florida Statutes (1995), states that in administering the provisions of chapter 373 a governing board of a water management district "shall adopt, promulgate, and enforce such regulations as may be reasonably necessary to effectuate its powers, duties, and functions pursuant to the provisions of chapter 120." See also § 373.044, Fla. Stat. (1995). Section 373.219(1), Florida Statutes (1995), gives the water management districts the power to require permits for the consumptive use of water and to impose such reasonable conditions as are necessary to ensure "that such use is consistent with the overall objectives of the district or department." Thus, the District may adopt reasonable rules in connection with its water use permitting duties in implementing the three-prong test under section 373.223(1). DEP maintains general supervisory authority over the water management districts. See § 373.026(7), Fla. Stat. (1995). DEP also has the exclusive authority to review the rules of the districts to ensure consistency with the Water Policy Rules. See § 373.114(2), Fla. Stat. (1995).
As we have said, chapter 120 was amended effective October 1, 1996, subsequent to the evidentiary hearing but prior to the entry of the order in this case. Prior to the amendment, the burden of persuasion fell on a challenger to establish the invalidity of both an existing rule and a proposed rule. See St. Johns River Water Management Dist. v. Consolidated-Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998), cited with approval in Department of Bus. & Prof'l Regulation v. Investment Corp., 747 So. 2d 374 (Fla. 1999). However, as noted in Consolidated-Tomoka, section 120.56(2)(a), Florida Statutes (Supp. 1996), was amended to place the burden on the agency to prove that a proposed rule is not an invalid delegation of legislative authority once the challenger has stated "with particularity the objections to the proposed rule and the reasons that the proposed rule is an invalid exercise of delegated legislative authority." § 120.56(2)(a). The court in Consolidated-Tomoka concluded that "[n]othing in section 120.56(2) requires the agency to carry the...
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