The 1999 Legislature passed significant amendments to the Administrative Procedures Act. CS/HB 107, the APA bill, was designed in part to overturn the case of St. Johns River Water Management District v. Consolidated Tomoka. Because the bill is retroactive in its application, it threatens virtually every environmental rule now on the books.

     By way of background, it should be noted that the following provision of the Florida Statutes was the focus of the Tomoka case.

373.413 Permits for construction or alteration.

(1) Except for the exemptions set forth herein, the governing board or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district . . . (Emphasis added)

The St. Johns River Water Management District had cited this section of Florida law in Tomoka as authority to adopt a new rule to regulate stormwater and protect the floodplains of the Tomoka River and Spruce Creek. The property owners challenged the rule under the 1996 amendments to the Florida Administrative Procedures Act. The Administrative Law Judge agreed with them and invalidated the rule. He found that Section 373.413, Fla. Stat. (1997), was not "detailed" enough under the 1996 amendments to support the Tomoka rule.

     The First District Court of Appeal reversed, holding that the rule was valid and based upon the agency’s authority under Section 373.413, Fla. Stat. (1997), to protect the "water resources of the District." Specifically, the Court found that the rule came "within the class of powers and duties identified in the enabling statute." It should be noted that while the APA contains language that it is not intended to overturn the "result" of any court cases, the bill specifically nullifies the reasoning behind the legal conclusion of the Court.

     While much of the discussion surrounding the APA bill involved the agencies’ ability to adopt "new" rules, in reality CS/HB107 is retroactive in application, as well as prospective. The amendments to Section 120.52(8), Florida Statutes proposed in the bill define what it takes for a rule to be a valid exercise of delegated legislative authority. These provisions can be likened to a "gauge" with which to measure the specific amount of statutory authority needed for any agency to adopt a rule. The 1996 amendments narrowed that gauge. CS/HB107 narrows it even further.

     The "retroactive" application of this bill is made through Section 120.56(3), Fla. Stat. (1997), which authorizes challenges to "existing rules." In these types of rule challenge proceedings, the "gauge" set forth in this bill would be applied to see if the rule is supported by a "specific" enough statute. Under the APA bill it could be argued that Section 373.413, Fla. Stat. (1997), is no longer specific enough to support the Tomoka rule and that rule could be challenged again. If this bill cannot support the Tomoka rule, then hundreds of other existing rules are subject to invalidation.

     Section 373.413, Florida Statutes is not only the basis of the Tomoka rule, it is also the specific enabling authority cited by both the Florida Department of Environmental Protection and the various Water Management Districts for more than 400 existing environmental rules currently on the books. These are not new rules. They are rules that have been in existence for many years and regulate such activities as dredge and fill in wetlands, mining, the implementation of the State Water Policy, flood protection, water quality, and surface water management systems. In addition, there are more than 1000 other existing environmental rules of the Department of Environmental Protection and rules of other non-environmental agencies that cite to similar, arguably "nonspecific" statutory authority.

     Under the APA bill, existing environmental rules, as well as all future rules proposed by state environmental agencies that are not based upon a "specific" statute, are subject to a rule challenge under Section 120.56, Fla. Stat. (1997).

     The 1996 amendments to Chapter 120 have already spawned litigation to invalidate existing environmental rules. In a recent case against the South Florida Water Management District challenging the denial of three no notice general permits, the property owner used the 1996 amendments to the APA to challenge the secondary impacts rule, which has been on the books since 1994. Royal Palm Beach Colony, L.P. v. South Florida Water Management District, DOAH Case No. 98-4163RX (Final Order issued March 3, 1999). Fortunately, the Administrative Law Judge upheld this rule under Tomoka. However, under the new amendments to the APA, this important environmental rule could be challenged again as not based upon a "specific" enough statute.

     Rule challenges of existing administrative rules are bound to become more prevalent in the future given the changes proposed by the APA bill. This will result in less protection of the health of our citizens and the environment. Given that the 1996 amendments to the APA also guaranteed the challenger’s an award of attorney’s fees of up to $15,000.00, the APA bill will also have a fiscal impact on the agencies, as they focus their resources on defending their rules.