On July 29, 1998, the First District Court of Appeal issued its opinion in St. Johns River Water Management District v. Consolidated-Tomoka Land Co. [2] in which the more restrictive administrative rulemaking standard adopted by the Legislature in 1996 was construed for the first time. The decision was much anticipated by administrative and environmental law practitioners and the court's 20-page opinion authored by Judge Padavano did not disappoint. [3] However, unlike McDonald, [4] Key Haven, [5] Groves-Watkins, [6] Cross Key Waterways [7] and other seminal administrative law cases commonly referred to by their first names, Consolidated-Tomoka will not survive the test of time. In fact, the decision did not survive the legislative session following its rendition as it was effectively overruled by legislation adopted in the 1999 Session.

     That legislation, Committee Substitute for House Bill 107 ("CS/HB 107" or "1999 legislation"), [8] specifically rejects the interpretation of the rulemaking standard in Consolidated- Tomoka, as well as the analyses in several other recent judicial decisions.[9] This article discusses the proper interpretation of the refined rulemaking standard in section 120.536(1), and also discusses the impact of the refined rulemaking standard on the rules that were upheld in Consolidated- Tomoka. [10]

     The 1999 legislation can trace its roots to the discussion and debate which led to the substantial revision of the Administrative Procedure Act ("APA") in 1996. The legislative history of the 1996 APA has been well chronicled by commentators, [11] and this article will not re-plow those fertile grounds. Nor will this article dissect the Consolidated-Tomoka decision as that has also been done by various commentators. [12] Instead, this article will highlight the pertinent components of the legislative history and the Consolidated-Tomoka decision to place the 1999 legislation in the appropriate context.

     The 1996 legislation imposed a more restrictive standard for rulemaking. The new standard, codified in section 120.536(1), evolved out of four years of legislative debate aimed at restricting agency rulemaking. The phrase "particular powers and duties" which was the cornerstone of section 120.536(1) first appeared in the recommendations of the 1993 Senate Select Committee on Governmental Reform. [13] That phrase was also included in several bills debated during the 1994 Session. [14] Language virtually identical to that in section 120.536(1) was included in a 1995 bill passed by the Legislature but vetoed by Governor Chiles. [15]

     The new rulemaking standard rejected a line of cases in which the courts upheld agency rules so long as they were "reasonably related to the purpose of the enabling legislation." [16] The new standard restricted agency rulemaking to "implement[ing], interpret[ing] or mak[ing] specific the particular powers and duties granted by the enabling statute." [17] The new standard also required a narrow construction of the enabling statute. [18] The legislative intent to restrict agency rulemaking authority through section 120.536(1) was clear. The only issue that remained was the extent of the restriction. Resolution of that issue centered on the proper interpretation of the phrase "particular powers and duties."

     One of the first cases in which this issue was litigated was Consolidated-Tomoka. [19] At issue in that case were rules proposed by the St. Johns Water Management District ("SJRWMD") to restrict development along the Tomoka River and Spruce Creek in Volusia County. [20] The proposed rules (hereinafter "TR/SC rules") were patterned after existing SJRWMD rules [21] applicable to the Econlochatchee River [22] and the Wekiva River. [23] Similar to those existing rules, the TR/SC rules established "regulatory basins" in which more stringent permitting standards and criteria, including protection of specified upland habitat, [24] were required to be met to receive an environmental resource permit ("ERP").

     At the rule challenge hearing, the SJRWMD introduced evidence to provide a environmental and scientific basis for the TR/SC rules. The administrative law judge ("ALJ") found the SJRWMD's evidence persuasive, [25] but held as a matter of law that the rules exceeded the SJRWMD's rulemaking authority as restricted by section 120.536(1). [26] Accordingly, the final order invalidated the TR/SC rules based upon the ALJ's conclusion that the language in the statutes upon which the TR/SC rules were based did not include "particular powers and duties" but was:

merely a general, nonspecific description of the agency's duties, and it espouses a statement of legislative policy or purpose rather than 'particular' programs or duties. Thus, it cannot be relied upon to adopt rules which create new geographic basins of special concerns with threshold requirements in those basins. [27]

     The SJRWMD appealed the final order to the First DCA. That appeal was joined by more than 15 amicii, including the Florida Legislature, the Governor and the Attorney General. [28]

     The First DCA reversed the final order and held that the TR/SC rules were valid. [29] The court held that the ALJ construed section 120.536(1) too narrowly. [30] The court correctly reasoned (as did the ALJ) that the Legislature's use of the word "particular" required the agency's powers to be "identified by some defining characteristic" rather than being "described in detail." [31] However, the court inexplicitly went further and concluded that section 120.536(1) "restricts rulemaking within the class of powers and duties identified in the enabling legislation." [32] In effect, the court transformed the narrow standard adopted by the Legislature into a broader, more deferential standard by interpreting "particular" to mean "class" (i.e., a group of like things) rather than "specific" or "identified." It was this judicial activism to which the Legislature was reacting in the adoption of CS/HB 107.

     Shortly after the court issued its decision in Consolidated-Tomoka, Representative Ken Pruitt, the primary sponsor of the 1996 legislation in the House, sent a memorandum to every member of the Legislature sharply criticizing the decision as inconsistent with the legislative intent underlying the 1996 legislation. [33] In that memorandum, Representative Pruitt stated:

I consider this decision to be a miscarriage of justice and an utter refusal by the courts to follow the Legislature's directive, which clearly sought to limit agency discretion in their rulemaking activities. . . . . [34]

That memorandum set the tone for the 1999 legislative activity on the APA.

     The 1999 legislation explicitly rejects the "class of powers and duties" test created by the court in Consolidated-Tomoka by amending section 120.536(1) as follows:

A grant of rulemaking authority is necessary but not sufficient to allow an agency to adopt a rule; a specific law to be implemented is also required. An agency may adopt only rules that implement or, interpret the, or make specific the particular powers and duties granted by the enabling statute. No agency shall have authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency's class of powers and duties, nor shall an agency have the authority to implement statutory provisions setting forth general legislative intent or policy. Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than implementing or interpreting the specific the particular powers and duties conferred by the same statute. [35]

     It has been suggested by the SJRWMD and others that the 1999 refinements to the rulemaking standard in section 120.536(1) will generate additional litigation because the standard remains ambiguous. [36] While litigation will certainly arise over the meaning of the refined rulemaking standard, its obvious intent is to further restrict rulemaking authority by specifying that the "class of powers and duties" standard was not restrictive enough.

     The 1999 legislation itself includes guidance as to the proper interpretation that standard. That guidance is inherent in the new section 120.81(1)(a) which provides:

Notwithstanding s. 120.536(1) and the flush left provisions of s. 120.52(8), district school boards may adopt rules to implement their general powers in s. 230.22. [37]

By referring to section 230.22 as containing "general powers", [38] the Legislature has provided a standard against which other statutes can be judged to determine whether they contain general or specific powers. Stated another way, because section 120.81(1)(a) is an acknowledgment by the Legislature that section 230.22 is insufficient to support rulemaking under the refined standard, statutes which have a similar degree of specificity (or lack thereof) in their language will not support rulemaking under the refined standard.

     The 1999 legislation will have no immediate impact on Consolidated-Tomoka or the TR/SC rules. In this regard, section 1 of the legislation provides:

     It is the intent of the Legislature that the modifications contained in section 2 and 3 of this act which apply to rulemaking are to clarify the limited authority of agencies to adopt rules in accordance with chapter 96-159, Laws of Florida, and are intended to reject the class of powers and duties analysis. However, it is not the intent of the Legislature to reverse the result of any specific judicial decision. [39]

     This language expresses a clear legislative intent to reject the analyses in Consolidated- Tomoka while not altering the result in that case. Notwithstanding these statements of legislative intent, it has been suggested by several environmental groups that the 1999 legislation will undermine the validity of those rules at issue in Consolidated-Tomoka and other rules based upon the same statutory authority. [40] Those observations are correct.

     While the 1999 legislation itself does not reverse the result of Consolidated-Tomoka and legislatively invalidate the rules at issue in that case, it does not legislatively validate those rules. [41] The language in section 1 of the bill is neutral. [42] However, the refined rulemaking standard calls into question the validity of those rules since it requires a more exacting nexus between an agency's rules and the enabling legislation and prohibits rulemaking based upon general powers and duties.

     The refined rulemaking standard in section 120.536(1) does not require the enabling legislation to mirror rules in their level of specificity. It does require the enabling legislation to include specific powers and duties rather than general ones such as those in section 373.413. In the context of basin-specific permitting rules such as the TR/SC rules, the statute needs to authorize or direct [43] the agency to single out particular areas or water courses for greater protection through more stringent permitting standards, and identify the type of standards which can be used (e.g., more stringent run-off standards, upland habitat protection zones, etc.). The statute must identify the areas or water courses to receive the increased protection or establish standards for the water management districts to do so. [44] Section 373.415(1)-(3), relating to the Wekiva River, is an example of the level of specificity that is necessary to support basin-specific permitting rules. In this regard, the SJRWMD's existing basin-specific permitting rules which are based upon the SJRWMD's general authority in section 373.413 to "protect the resources of the district" are based upon inadequate authority under the refined standard in section 120.536(1).

     Mindful of the potential impact of the refined rulemaking standard on existing agency rules, the Legislature established a procedure by which existing rules can be temporarily "shielded" from challenge under the refined standard. [45] This procedure is similar to the "shield" provisions included in the 1996 legislation, [46] and provides an opportunity for agencies to protect their existing rules from challenge under the refined rulemaking standard until July 1, 2001. [47]

     Under the "shield" provisions included in the 1999 legislation, each agency is required to report to the Joint Administrative Procedure Committee ("JAPC") those rules which exceed the rulemaking authority in section 120.536(1), as amended. [48] Those reports must be provided to JAPC by October 1, 1999. [49]  JAPC will then provide a composite list of rules to the President of the Senate and Speaker of the House prior to the 2000 Session. [50] Any rule for which the Legislature does not provide specific enabling legislation during the 2000 Session must be repealed. [51]

The "shield" provision in the 1996 legislation worked very well. Over 5,800 rules were reported to JAPC by agencies in accordance with the shield provisions of the 1996 legislation. [52] The Legislature approved 42 rule authorization bills ("RABs") in the 1998 Session which provided the requisite statutory authority for almost all of those rules. [53] Most of the RABs were approved in the form recommend by the agency. [54] In light of the legislative experience with the RABs in 1998 and the agencies' success in receiving the legislative authorization requested for their listed rules, the argument that the 1999 legislation will have the effect of undermining every existing environmental regulatory programs is without merit.

     In sum, the 1999 legislation sends a clear message to the courts and ALJs that agency rulemaking activities should be closely scrutinized to ensure that the rules implement but do not exceed the specific powers delegated to the agency by the Legislature. The water management districts and other agencies whose rules are based upon general authority in statutes such as section 373.413, would be well-advised to list those rules with JAPC and shield them from administrative challenge. [55] If the agency is able to demonstrate to the Legislature that the rule is necessary and appropriate (as the SJRWMD was able to demonstrate to an ALJ with respect to the TR/SC rules) it will be granted the requisite statutory authority for the rule; if not, the rule must be repealed (as it should). In either event, the policy decision regarding the need for additional protection of certain state resources will be made by the appropriate entity- the Florida Legislature.

Endnotes:

[1] Associate, Hopping Green Sams & Smith, P.A. The author, along with Frank Matthews, served as counsel to the petitioners in Consolidated-Tomoka at the administrative hearing and appellate levels. It has been implied in the press that the bill is a vendetta against the Consolidated-Tomoka ruling. See Shirish Date, Developer's Bill Clears Panel, Palm Beach Post, Mar. 12, 1999 ("Frank Matthews, who lost the Consolidated-Tomoka case . . . wrote the bill . . . ."). Hence the reference to "sour grapes" in the title to this article.

[2] 2717 So.2d 72 (Fla. 1st DCA 1998), rev. denied 727 So.2d 904 (Fla. 1999).

[3] See Donna E. Blanton, First DCA Construes New Rulemaking Standard, Admin. Law Sec. Newsl., at 11 (Sept. 1998)

[4] McDonald v. Dept. of Banking & Finance, 346 So.2d 569 (Fla. 1st DCA 1977). McDonald is generally acknowledged as the "granddaddy" of all administrative law cases. While it can be cited for various propositions, it is most commonly cited for the proposition that agencies are authorized to develop and "prove up" their policies through case-by-case adjudication, or "incipient policymaking." That aspect of McDonald was recently parodied in an article written by an Administrative Law Judge. See Daniel Manry, The Scarecrow in McDonald's Farm: A Fairy Tale About Administrative Law, 73 Fla. B. J. 60 (Mar. 1999) (quoting the following passage from Charles Dickens' novel Bleak House as a fitting description of McDonald: "no two . . . lawyers can talk about it for five minutes without coming to a total disagreement as to all the premeses")

[5] Key Haven Associated Enterprises, Inc. v. Board of Trustees of the Internal Improvement Trust Fund, 427 So.2d 153 (Fla. 1983). Key Haven is most commonly cited for the proposition that remedies afforded by the APA must be exhausted prior to challenging agency action in court. Id.; cf. Fla. Stat. § 120.68(9) (1997) (prohibiting rules from being challenged in the district courts of appeal in the first instance unless the sole issue presented is the constitutionality of the rule and there are no disputed issues of fact)

[6] Dept. of Transp. v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988). Groves-Watkins is most commonly cited as establishing the standard to be applied in bid protest proceedings which involve the agency's rejection of all bids. Id. at 913-14. The 1996 amendments to the APA effectively codified Groves-Watkins and also established the standard in bid protest proceedings not involving the rejection of all bids. See Fla. Stat. § 120.57(3)(f) (1997); see also William E. Williams & Vikki R. Shirley, Legislative Reform of Disputed Competitive Procurement Decisions, 71 Fla. Bar. J. 45, (Mar. 1997)

[7] Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1979). Cross Key Waterways is most commonly cited for the proposition that a legislative delegation of authority to an executive branch agency must include identifiable standards to guide the agency's implementation of the legislative policy. Id. at 925 (holding that a standardless delegation of authority would violate article II, section 3 of the Florida Constitution by allowing the agency to formulate policy). In this regard, Cross Key WaterWays could be characterized as more of a constitutional law case than an administrative law case. However, because executive branch agencies have no inherent rulemaking authority, see Grove Island, Ltd. v. Dept. of Environmental Reg., 454 So.2d 571, 573 (Fla. 1st DCA 1984), the non-delegation issue is a foundation of administrative law.

[8] CS/HB 107 (Chapter 99-379, Laws of Florida) was signed by Governor Bush on June 17, 1999, and became effective on that date. CS/HB 107 was referred to as the "worst bill of the [1999] Session" by the Florida Audubon Society. See Florida Audubon Legislative Wrap-up, at 5 (transmitted via ELULS Internet Mailing List on May 24, 1999) (copy on file with author). That point would certainly be debated by educators and others opposed to the "opportunity scholarships" (a.k.a. "vouchers") in Governor Bush's "A+" education plan and abortion rights advocates opposed to the "Choose Life" license plate and parental notification legislation.

[9] See, e.g., Fla. CS/HB 107, § 6 (1999) (amending to Fla. Stat. § 120.57(1)(j)) (rejecting Judge Ervin's interpretation of section 120.57(1)(j) in Dept. of Children and Families v. Morman, 715 So.2d 1076 (Fla. 1st DCA 1998)); Fla. CS/HB 107, § 4 (1999) (amending Fla. Stat. § 120.54(1)(f)) (responding to the court's decision in The Environmental Trust v. Dept. of Environmental Protection, 714 So.2d 493 (Fla. 1st DCA 1998), by prohibiting agencies from adopting retroactive rules "including retroactive rules intended to clarify existing law"); see also Fla. CS/HB 107, § 5 (1999) (amending Fla. Stat. § 120.56(2)(a) (rejecting the holding of Board of Clinical Laboratory Personnel v. Florida Ass'n of Blood Banks, 721 So.2d 317 (Fla. 1st DCA 1998) and clarifying the standard of proof in cases involving challenges to proposed rules). For an overview of these and other aspects of the 1999 legislation, see Lawrence E. Sellers, Jr., APA: Legislature Clarifies Agency Rulemaking Authority, Envt'l & Land Use Law Sec. Rep., at 9 (June 1999).

[10] For an alternative view on the impacts of the 1999 legislation on environmental rules, see Terrell K. Arline, The Environmental Impacts of the Administrative Procedures Act Bill, Envt'l & Land Use Law Sec. Rep., at 8 (June 1999).

[11] See, e.g., Florida APA Symposium, 48 U. Fla. L. Rev. 1 - 158 (1996) (various authors); F. Scott Boyd, Legislative Checks on Rulemaking Under Florida's New APA, 24 Fla. St. U.L. Rev. 309 (1997). The March 1997 edition of the Bar Journal was also devoted to the 1996 APA amendments.

[12] See Martha C. Mann, St. Johns River Water Management District v. Consolidated-Tomoka Land Co.: Defining Agency Rulemaking Authority Under the 1996 Revisions to the Florida Administrative Procedure Act, 26 Fla. St. U. L. Rev. 517 (1999); see also Blanton, supra note 3.

[13] See Senate Select Committee on Governmental Reform, Recommendations for Administrative Rulemaking, at 4 (Recommendation No. 1). The Senate Select Committee was created in 1993 and presented its final report prior to the 1994 Session. Another select committee, the House Select Committee on Agency Rules and Administrative Reform, was created in 1992 and also was debating the proper scope of agency rulemaking authority.

[14] See, e.g., A Brief History of Selected APA Bills in the 1994 Session, 22 Fla. St. U. L. Rev. 355 (1994) (discussing HB 237 and other APA bills considered in 1994 Session).

[15] See Fla. CS/CS/SB 536, § 4 (1995) (enrolled version) (proposing the creation of section 120.534(1), Florida Statutes).

[16] See, e.g., Dept. of Profession Regulation v. Durrani, 455 So.2d 515 (Fla. 1st DCA 1984). In Consolidated-Tomoka, the court conceded the Legislature's authority to reject a judicially-created standard for evaluating the validity of agency rules. Consolidated-Tomoka, 717 So.2d at 79.

[17] Fla. Stat. § 120.536(1) (1997).

[18] Id. ("Statutory language granting rulemaking authority or generally describing the powers and functions of an agency shall be construed to extend no further than the particular powers and duties conferred by the same statute." (emphasis supplied)).

[19] The scope of the new rulemaking standard in section 120.536(1) was also at issue in Dept. of Business and Professional Reg. v. Calder Race Course, Inc., 724 So.2d 100 (Fla. 1st DCA 1998) (invalidating proposed rules which authorized warrantless searches because the enabling legislation did not delegate the power to search). Calder was issued on the same day as Consolidated-Tomoka and purported to apply the reasoning from Consolidated-Tomoka. Id. at 102. An earlier decision from the Third District Court of Appeal invalidated proposed rules promulgated after the 1996 APA, but did not discuss section 120.536(1). PPI, Inc. v. Dept of Business and Professional Reg., 698 So.2d 306 (Fla. 3d DCA 1997) (upholding an agency rule which required surveillance cameras in cardrooms). A later decision from the Second District Court of Appeals narrowly construed section 120.536(1) as requiring the agency to "point to a specific law to be implemented." St. Petersburg Kennel Club v. Dept. of Business and Professional Regulation, 719 So.2d 1210 (Fla. 2d DCA 1998) (invalidating agency rule that defined the game of "poker").

[20] Consolidated-Tomoka, 717 So.2d at 75.

[21] In its amicus brief to the First DCA, the South Florida Water Management District noted that it had adopted similar basin-specific permitting rules as far back as 1981 based upon the general authority in Part IV of Chapter 373. See Initial Brief of the South Florida Water Management District and Southwest Florida Water Management District as Amicus Curiae for the Appellant St. Johns River Water Management District, St. Johns River Water Management District v. Consolidated-Tomoka Land Co., 1st DCA Case No. 97-02996, at 14 (served Oct. 30, 1997) (citing Fla. Admin. Code Ann. r. 40E-41).

[22] Fla. Admin. Code Ann. r. 40C-41.023(4), -41.063(5)(1998).

[23] Fla. Admin. Code Ann. r. 40C-41.023(3), -41.063(3)-(4)(1998). Unlike the TR/SC rules and the Econlochatchee rules, the Wekiva rules are clearly authorized by statute. See Fla. Stat. § 373.415(1)(1997) (authorizing the SJRWMD to "adopt rules establishing protection zones adjacent to the water courses in the Wekiva River System"). Section 373.415 was adopted in 1988 along with Part III of Chapter 369 which is known as the "Wekiva River Protection Act."

[24] The TR/SC rules established an upland riparian habitat protection zone ("RHPZ") of varying widths along the Tomoka River and Spruce Creek. Fla. Admin. Code Ann. r. 40C-41.063(6)(d)(1998). Consolidated-Tomoka v. Land Co. v. St. Johns River Water Management District, 19 FALR 2663, 2673-75 (DOAH 1997). The purpose of the RHPZ is to protect the habitat of listed and non-listed species that use the affected water courses rather than to protect the water courses themselves. See Fla. Admin. Code Ann. r. 40C-41.063(6)(d)2.(1998); see also Consolidated-Tomoka, 19 FALR at 2674. By upholding the RHPZ in Consolidated-Tomoka the First District Court of Appeals completed the expansion of the water management districts' authority which began in Florida Electric Power Coordinating Group v. Suwannee River Water Management District, 17 FALR 3242 (DOAH 1995), aff'd sub. nom. 674 So.2d 141 (Fla. 4th DCA 1996) (holding that the provisions of the ERP rules which are intended to protect existing upland nesting and denning sites of listed aquatic and wetland dependent species are "reasonably related to the implementation of the [districts'] authority under sections 373.413(1) and 373.416(1)).

[25] Consolidated-Tomoka, 19 FALR at 2670-76.

[26] Id. at 2685.

[27] Id. at 2684 (¶ 100). It is apparent from this language that the ALJ interpreted "particular powers and duties" to prohibit rulemaking based upon general powers and duties. See also id. ("[The new rulemaking standard] clearly implies that the specific law to be implemented must detail 'particular' powers, and not just 'general' ones, in order to support rulemaking.") (emphasis supplied). Contrary to the arguments of the SJRWMD and aligned amici on appeal, the ALJ did not interpret the new rulemaking standard to require detailed powers and duties. The First DCA's implicit acceptance of the SJRWMD's interpretation of the ALJ's holding, see Consolidated-Tomoka, 717 So.2d at 79, was one of the fundamental flaws that resulted in its misconstruction of section 120.536(1).

[28] Nine separate amicus briefs were filed, including a 63-page amicus brief filed by the Department of Environmental Protection. Several of those briefs were filed on behalf of multiple parties. For example, 1000 Friends of Florida, the Sierra Club and the Florida Wildlife Federation filed a joint amicus brief as did the Florida Association of Realtors and the Florida Homebuilders Association.

[29] Consolidated-Tomoka, 717 So.2d at 81.

[30] Id. at 79.

[31] Id.

[32] Id. at 80 (emphasis supplied). Elsewhere in the opinion, the court described its interpretation as follows:

[W]e conclude that the proper test to determine whether a rule is a valid exercise of delegated authority is a functional test based upon the nature of the power or duty at issue and not the level of detail in the applicable statute. The question is whether the rule falls within the range of powers the Legislature has granted to the agency for purposes of enforcing or implementing the statutes within its jurisdiction. The rule is a valid exercise of delegated legislative authority if it regulates a matter directly within the class of powers and duties identified in the statute to be implemented.

Id. (emphasis supplied).

[33] Memorandum from Representative Ken Pruitt to All House and Senate Members (Aug. 5, 1998) (on file with author) [hereinafter "Pruitt Memorandum"].

[34] Id. (emphasis supplied); see also Blanton, supra note 3, at 12 (quoting excerpts from Pruitt Memorandum).

[35] Fla. CS/HB 107, § 3 (1999) (strike-through and underscore original). The same changes were made to the "flush left" language in section 120.52(8).

[36] See Arline, supra note 10, at 8 ("Rule challenges of existing administrative rules are bound to become more prevalent in the future given changes [made by the CS/HB 107]."). In a memorandum to the Governor's office commenting on CS/HB 107, the SJRWMD suggested that the refinements to the rulemaking standard are unconstitutional since no definition is provided for the word "specific" in section 120.536(1). See Memorandum to J. Allison DeFoor and Ken Plante from Henry Dean, at 3-4 (May 10, 1999) (on file with Governor's Office). This argument is premised on the assumption that the absence of a definition of "specific" will require the ALJ to determine the adequacy of the level of specificity in the enabling legislation based upon nothing other than "his own subjection [sic] judgment." Id. at 4. This argument is without merit. ALJs, like the court in Consolidated-Tomoka (717 So.2d at 79), are perfectly able to utilize a dictionary in the event that the plain meaning of the word "specific" is unclear. The author submits, however, that the meaning of that word is clear based upon the legislative history underlying the 1999 amendments to section 120.536(1) discussed in this article.

[37] Fla. CS/HB 107, § 7 (1999) (creating Fla. Stat. § 120.81(1)(a)).

[38] The Legislature's reference to section 230.22 is telling. The general nature of that statute forced the local school districts to list thousands of rules with the Joint Administrative Procedures Committee pursuant to the "shield" provisions of the 1996 legislation. See text accompanying notes 45-54 infra. In response, the Legislature provided specific authority for the listed rules through the adoption of section 230.23005 in 1998. That statute prescribed an exhaustive list of "powers and duties" which school boards were authorized to implement and certainly complies with the standards in section 120.536(1) as originally adopted and as amended in 1999. The contrast between the specificity in section 230.23005 and the general directives in section 230.22, coupled with the legislative acknowledgment in section 120.81(1)(a), provides guidance as to the level of specificity which is required under the rulemaking standard. The level of specificity (or lack thereof) in the language of section 373.413 is more similar to that in section 230.22 than section 230.23005.

[39] Fla. CS/HB 107, § 1 (1999). Section 2 of CS/HB 107 includes the amendments to section 120.52, including the amendments to the "flush left" language in section 120.52(8). Section 3 of CS/HB 107 includes the amendments to section 120.536.

[40] See Letter from Nancy Brown, President, Florida League of Conservation Voters to Governor Jeb Bush, at 1 (May 7, 1999) ("We believe that if [CS/HB 107] becomes law, then it will be argued that section 373.413, Fla. Stat. (1997), is no longer specific enough to support the Tomoka rule and it will be challenged again. If this bill [sic] cannot support the Tomoka rule, then hundreds of other existing [environmental] rules are subject to invalidation."); accord Letter from Susan Caplowe, Florida Chapter of the Sierra Club, to Governor Jeb Bush, at 1 (May 7, 1999). See also Arline, supra note 10, at 8.

[41] Fla. CS/HB 107, § 1 (1999).

[42] The neutrality of the language is section 1 of CS/HB 107 is similar to the neutral language in section 373.415(4). That statue provides that "[n]othing in this section shall affect the authority of the water management districts created by this chapter to adopt similar protection zones for other courses." It does not specifically authorize water management districts to adopt basin-specific standards on water courses other than the Wekiva River, and it does not preclude them from doing so. The SJRWMD stipulated that section 373.415(4) does not provide a "specific affirmative grant of rulemaking authority" to adopt the TR/SC rules. See Prehearing Stipulation, Consolidated-Tomoka Land Co. v. St. Johns River Water Management District, DOAH Case No. 97-0870 RP, at 20 (filed Mar. 28, 1997). Neither the ALJ or the First DCA discussed the impact of section 373.415(4) on the TR/SC rules, further suggesting that statute is insufficient to support the rules under the standard in section 120.536(1). Through section 373.415(4), the Legislature effectively deferred until another time the issue of whether the water management districts can adopt basin-specific permitting standards. If the SJRWMD reports the TR/SC rules and its other basin-specific rules to JAPC, the time for that determination will be the 2000 Session.

[43] A "power" authorizes an agency to regulate, a "duty" obligates or directs it to do so. Hence, the use of the phrase, "powers and duties." An agency must be given both to adopt rules under section 120.536(1). See Fla. Stat. § 120.536(1) (1997) (first sentence).

[44] Cf . Cross Keys Waterways, 372 So.2d at 919 (invalidating a standardless delegation to the Administration Commission to designate areas to critical concern).

[45] Fla. CS/HB 107, § 3 (1999) (creating Fla. Stat. § 120.536(2)(b)).

[46] See Fla. Stat. § 120.536(2) (1997). For a thorough discussion of the "shield" provision in the 1996 legislation, see Boyd, supra note 11, at 343-45.

[47] Fla. CS/HB 107, § 3 (1999) (creating Fla. Stat. § 120.536(2)(b)). A listed rule is only protected from challenge on grounds that it exceeds the rulemaking standard in section 120.536(1), as amended. Id. The rule is not protected from challenge as upon other grounds that it is an "invalid exercise of delegated legislative authority." See Fla. Stat. § 120.52(8)(a), (d)-(g) (1997).

[48] Id. Fla. CS/HB 107, § 3 (1999) (creating Fla. Stat. § 120.536(2)(b)).

[49] Id. It is interesting to note that the "shield" provisions in the 1996 legislation gave the agencies one year to compile the lists of rules that exceed the rulemaking authority, while the 1999 legislation would have given the agencies only three months to compile the lists. Compare id. with Fla. Stat. § 120.536(2) (1997). This longer time-frame was warranted in 1996 because of the significant reform of the rulemaking standard contained in the 1996 legislation, as compared to the minor refinements proposed in the 1999 legislation.

[50] Fla. CS/HB 107, § 3 (1999) (creating Fla. Stat. § 120.536(2)(b)).

[51] Id.

[52] See Senate Governmental Reform and Oversight Committee, Rule Authorizing Bills Tracking Table (May 26, 1998) [hereinafter "RAB Tracking Table"]. Over 3,600 of the listed rules were reported by local school boards. See id. at 16 n.24. Authorization for all of the school board rules was provided in Chapter 98-153, Laws of Florida., which created section 230.23005. See id. at 6; see also note 38 supra.

[53] See RAB Tracking Table, supra note 44.

[54] Id.

[55] As of the date of this writing, the SJRWMD had not provided a list of rules to JAPC under the "shield" provisions in the 1999 legislation.