COLUMNS

           District Update -
            St. Johns River Water Management District

    Cynthia A. Chritton

Rule Challenge: The Tomoka River Hydrologic Basin and the Spruce Creek Hydrologic Basin

     In its opinion filed on July 29, 1998, the First District Court of Appeals reversed the Administrative Law Judge's final order and unanimously held that St. Johns River Water Management District (SJRWMD) acted within the authority delegated by the Legislature in adopting the proposed rules establishing special basin criteria for the Tomoka River Hydrologic Basin and the Spruce Creek Hydrologic Basin. The court declared the proposed rules to be valid. St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 23 F.L.W. D1787 (Fla. 1st Dist. Ct. App. July 29, 1998).

     In February 1997, the SJRWMD published proposed revisions to Chapters 40C-4 and 40C-41, Fla. Admin. Code, to establish special basin criteria for the Tomoka River Hydrologic Basin and the Spruce Creek Hydrologic Basin in eastern Volusia County. The rules would implement authority derived primarily from Sections 373.413, 373.416, and 373.418, Fla. Stat. The intent of the rules is to provide additional protection to the designated Outstanding Florida Waters of the Tomoka River and Spruce Creek and their hydrologic basins. The proposed rules consist of lower permitting thresholds and four new standards: a groundwater recharge standard; a floodplain storage standard; a stormwater management standard; and a Riparian Habitat Protection Zone standard; which are to be applied in addition to the existing district-wide standards in the Environmental Resource Permit (ERP) rules. A number of land owners in the Tomoka River and Spruce Creek area challenged the proposed rules on six of the seven potential grounds for invalidating rules under Section 120.52(8), Fla. Stat. (Supp. 1996).

     The Administrative Law Judge (ALJ) found that the proposed rules were not vague, arbitrary or capricious, were supported by competent and substantial evidence, and would "unquestionably accomplish the statutory objectives" of protecting the water resources from harm. Consolidated-Tomoka Land Co. v. St. Johns River Water Management District, 97 ER F.A.L.R. 132, ¶¶ 104, 112-115 (Fla. Div. of Admin. Hearings June 27, 1997) (Case Nos. 97-0870RP and 97-0871RP consolidated). Nonetheless, the ALJ held the proposed rules invalid by focusing on and restrictively interpreting new language in Chapter 120 finding that "an agency may adopt only rules that implement, interpret, or make specific the particular powers and duties granted by the enabling statute." Id. The ALJ determined that the new phrase "particular powers and duties" meant that the specific law to be implemented must now be detailed, setting forth "particular," "detailed " powers and duties and not just "general" ones. He concluded that the statutes cited by the SJRWMD as its rulemaking authority - the same statutes cited for a large number of the Districts' rules, including the ERP rules - did not contain sufficiently detailed powers and duties to support rulemaking. The SJRWMD, joined by six amici curiae, appealed the final order to the First District Court of Appeal.

     In reversing the ALJ's final order, the First DCA held that the "particular powers and duties" standard in Chapter 120 does not relate to the level of detail in statutory language used to describe the agency's power. St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 23 F.L.W. D1787, D1790 (Fla. 1st Dist. Ct. App. July 29, 1998). The court recognized that such an interpretation would prove unworkable due to the fact that the sufficiency of detail in statutory language is a subjective and relative concept. As such, it would be difficult to define and apply, and would produce endless litigation regarding the sufficiency of delegated powers. Rather, the court defined the question to be "whether the rule falls within the range of powers the Legislature has granted to the agency." Id. It is a functional test based on the nature of the power or duty in the statute being implemented, not the level of detail in the statutory language. The court reasoned that this approach meets the legislative goal of restricting the agencies' authority to promulgate rules, while ensuring that the agencies will have the authority to perform the essential functions assigned to them by the Legislature. Id. at D1790.

     Applying the functional test, the First DCA held that all of the rules proposed by SJRWMD are based on a valid exercise of delegated legislative authority because the rules regulate a matter directly within the class of powers and duties identified in Section 373.413, Fla. Stat. On August 13, 1998, Appellee Consolidated Tomoka filed a Request for Rehearing En Banc, Rehearing, and/or Certification.

Uniform Rules of Procedure, Chapter 28, Fla. Admin. Code

     The SJRWMD and other water management districts sought and were granted exceptions from the Uniform Rules of Procedure found in Chapter 28-101 through 28-110, Fla. Admin. Code. The Uniform Rules of Procedure became effective July 1, 1998, for all agencies subject to Chapter 120. §120.54(5), Fla. Stat. The Administration Commission granted SJRWMD's exceptions to retain existing procedural rules in Chapters 40C-1, 40C-3, 40C-4, 40C-20, 40C-21, and 40C-40, Fla. Admin. Code. Essentially, these exceptions govern variances from portions of the Environmental Resource Permitting requirements; variances from water well construction standards; variances from water shortages; granting emergency variances within the timeframes allowed by monthly Governing Board meetings; obtaining formal determinations of wetlands and other surface waters; noticing agency decisions by newspaper publication and by mail; timeframes for providing requested information regarding a permit or license application; emergency authorization for activities regulated under Part IV of Chapter 373, Fla. Stat.; emergency authorization of water well construction; and issuance of general permits in less than 90 days.

Saboffs v. St. Johns River Water Management District

     The Saboffs owned a 0.72 acre parcel in a Seminole County subdivision adjacent to the Little Wekiva River. The lot was located entirely within the District's regulatory Riparian Habitat Protection Zone (RHPZ) for the Little Wekiva, an area of heightened regulatory scrutiny adopted as part of the SJRWMD's Wekiva River Hydrologic Basin rule in Chapter 40C-41, Fla. Admin. Code. Under the rule, a presumption exists that any construction activities within the RHPZ, including land clearing, will adversely affect the abundance, food sources, or habitat of aquatic or wetland dependent species provided by the zone, and therefore, may not meet the requirements for permit issuance.

     In 1991, the Saboffs applied to SJRWMD for a Management and Storage of Surface Waters permit to construct a home, driveway, and swimming pool on their lot. The District approved the permit subject to a mitigation permit condition requiring that the Saboffs place a conservation easement over approximately one-half of the waterward portion of their lot. The permit condition allowed the Saboffs to conduct certain minimal activities within the easement. The Saboffs did not administratively challenge the permit. However, third party environmental organizations requested an administrative hearing based on the permit condition allowing specific minimal activities, contending that the terms of the condition were nonspecific and too lenient. As a result of the administrative proceeding, the conservation easement permit condition was revised. The final easement condition allowed the Saboffs to remove trees less than four inches in diameter, and build an elevated boardwalk to the Little Wekiva River, a treehouse, a sandbox, a swing set, and a picnic table all within the conservation easement. During the pendency of the administrative proceeding, all parties stipulated that the Saboffs could proceed with construction, and the Saboffs completed construction of their home, driveway, and pool.

     Pending the administrative hearing, the Saboffs sued the SJRWMD in circuit court asserting a claim of inverse condemnation, which was ultimately dismissed. The circuit court reasoned that, when considering the property as a whole, the Saboffs could not state a cause of action for inverse condemnation, because it was clear that they were not deprived of substantial economic use of their lot with a permit to construct the requested improvements. Saboffs v. St. Johns River Water Management District, No. 91-2970 CA-16B (Fla. 18th Cir. Ct. May 11, 1995). The Saboffs appealed to the Fifth District Court of Appeal, which affirmed the lower court's judgment. Saboffs v. St. Johns River Water Management District, 681 So. 2d 757 (Fla. 5th Dist. Ct. App. 1996) (per curiam).

     In November 1996, the Saboffs instituted the same inverse condemnation claim in the federal district court of the Middle District of Florida. Saboffs v. St. Johns River Water Management District, Case I, 96-1223-CIV. Orl-18 (M.D. Fla. 1998). The federal district court judge denied SJRWMD's various pre-trial motions and the case proceeded to trial in May 1998. The judge held that the conservation easement requirement constituted a taking and the jury subsequently awarded the Saboffs $114,000 as compensation. The SJRWMD has filed post-judgment pleadings and, absent a change in the judge's ruling, will appeal.

Cynthia A. Chritton is an attorney with the St. Johns River Water Management District concentrating in the area of regulatory litigation. She received her B.S. from Texas A&M University, her M.S. in Forestry from Stephen F. Austin State University, and her J.D. from Seattle University.