ARTICLES

   WATER MANAGEMENT DISTRICT UPDATES
       (September, 1997)

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

by Karen A. Lloyd

SWUCA & SWUCA II-- Charlotte County vs. Southwest Florida Water Management District, DOAH No. 94-5742RP, Final Order, March 26, 1997. In March 1997, the District received the administrative law judge's Final Order on the challenges to the District's Southern Water Use Caution Area rules (also known as the SWUCA). This Order also addressed the existing water use permitting rule challenges that were consolidated with the hearing on the proposed SWUCA rules. (Note: the full text of the final order is currently on the Section's website at http://www.eluls.org/special/contents.html.)

The Order, which took about one year for the judge to write, follows a hearing that was the longest in DOAH history spanning about nine months, and that was after three years of public input and rulemaking on the proposed SWUCA rules.

Background

The SWUCA covers the southern half of the District. It covers all or portions of eight counties from southern Hillsborough to Charlotte County. Historically, there has been excessive pumping in the SWUCA. United States Geological Survey potentiometric change maps for 1969 to 1975 show extensive drawdowns in the SWUCA from pumpage.

Water use permits were not required in the District until 1977 but a lot of the SWUCA was not included in the original District boundaries. Most of the Eastern Tampa Bay (ETB) and Highlands Ridge Water Use Caution Areas (the two existing WUCAs in the SWUCA) were not a part of the District until the late 1970s. Because these areas were added late to the District, water use permits were not required there until 1980. Therefore, the District inherited a resource that was severely stressed prior to the implementation of regulation activities. This fact, coupled with the lack of hydrologic data within the area in the 1970s, resulted in the initial permitting activity being more of an inventory of use that was already out there rather than a true allocation of available resources.

To address the suspected resource problem and the lack of hydrologic data, the District began water resource assessment projects (WRAPs) and designated Water Use Caution Areas (WUCAs) in the 1980s. The WRAPs showed that a significant Floridan aquifer potentiometric surface decline remained in the late 1980s and early 1990s. The WRAPs also show that salt water intrusion and lake level declines were linked to that decline. The establishment of the WUCAs and the implementation of interim solution rules in the WUCAs has contributed, along with other factors, to the decline in ground water withdrawals within the SWUCA over the past seven years since the District first started working on fixing SWUCA problems.

Based on the WRAPs for the ETB and the Highlands Ridge WUCA it was determined that the southern half of the District should be treated as a linked ground water basin. That is because a withdrawal in any one location can have an effect basin-wide. So in 1992 the District declared the southern half of the District the SWUCA.

The Proposed SWUCA Rules

In light of the background and resource problem, the District determined that the SWUCA rules would have two objectives:

1. The first objective is to preserve resources, specifically protect the fresh water supply in the Floridan, and stabilize the lake levels in Polk and Highlands Counties. 2. The second objective of the rules is to limit the impact of the proposed regulations on the economy of the region and existing users.

There were four principal rules proposed to achieve the first objective of preserving the resource:

1. Establish a Floridan Aquifer Minimum Level for the Ground Water Basin: The District treated the area as a linked ground water basin and establishing a basin-wide minimum Floridan aquifer level. This is because a withdrawal in any one location could have an effect basin-wide, unlike withdrawals in the Northern Tampa Bay area.

2. No New Quantities: Another mechanism is that no new quantities will be permitted so long as the potentiometric surface is below the established minimum level.

3. Reductions in Permitted Quantities: In addition, existing permitted quantities are reduced through various methods beginning with the effective date of the rule (pasture), at five years from the date the rules go into effect, on renewal and whenever quantities are reallocated.

4. Alternative Sources: Finally, there are incentives and requirements for ground water users to develop and use other sources. These include: a. That, when a ground water user accepts alternative source water and gives up the right to pump ground water, a credit permit is then available to pump up to half of what was given up. b. That permittees must evaluate the feasibility of using reclaimed water and desal rather than ground water and that it must be used by the applicant where determined by the District to be economically, technically and environmentally feasible.

Next are the principal rules designed to achieve the second objective to limit the impact of the proposed regulations on the economy and existing users.

1. Preferential Treatment of Existing Permits: First, existing permits will be renewed if they meet certain permitting criteria even if the actual level is below the minimum level and new quantities are prohibited to be issued. 2. Conservation Phased In: Another way that the impact to existing users is dealt with is that all existing permits are subject to being reduced but gradually through conservation phased-in over ten years. For agricultural and irrigation permits the conservation measures included permitting on a five-in-ten drought, rather that a two-in-ten drought which results in less water being permitted, increased efficiencies and water conserving credits. For public supply the conservation measures included per capita limits, water conservation rate structure and billing requirements.

3. Reallocation: Another mechanism to reduce the impact on existing permittees is reallocation. Since new quantities will not be allowed when the water level is below the minimum level, the rules provide for reallocation to move permitted water between users as an alternative to the competing applications provisions in Chapter 373, F.S.

The competing applications process is specifically set out in Chapter 373.233 F.S. It provides that, were there insufficient water to satisfy all applications, the Governing Board may act on the applications by determining which application will best serve the public interest and grant that application only.

The reallocation rule was designed as an alternative to competing for water. Reallocation allows those who need water to get it from and existing permit and use it in another location for another purpose. If an existing permittee and the person who needs the water can agree to the transaction, they apply to the District for approval. The District then evaluates the application to determine if the new use meets the permitting criteria. If so, the existing permit is modified to delete the transferred quantities and the transferred quantities are incorporated into a new permit.

The Final Order

The administrative law judge found the following proposed rules valid:

1. Minimum Floridan Aquifer Level. The judge upheld the science that was used to establish the level. The judge also found that socioeconomic factors could be balanced with the science in establishing the minimum level.

2. The Phase-in Of And Conservation Requirements. The administrative law judge found the following proposed rules invalid:

a. Preferential Treatment of Existing Users. The proposed rules allow the District to treat renewal applications and permit applications for new quantities differently. The District proposed to renew permits and deny new quantities when the potentiometric surface is below the established minimum. The judge said the District can't do that.

The judge's opinion is that applications for new quantities and for renewal quantities must be treated the same under Chapter 373, F.S. He states that there is no statutory authority for the District to presuppose by rule that renewal should be granted before new applications will be considered and that such preference can only come from the legislature.

Further, he finds that there is no vested right to a continuation of water use after expiration of a permit outside the competing use statute. The competing applications process in Chapter 373, F.S., does prefer existing uses over new uses if both are judged to be equally in the public interest.

b. Reallocation. Regarding reallocation, the judge fount that specific legislative authority is needed before the District could authorize water users to among themselves and by private agreement determine the allocation of scarce water supplies.

c. Reuse and Desalination Investigations and Determinations of Feasibility. The judge determined that the District does not have the authority to determine whether development by the applicant of a reuse or desalination system is economically, technically and environmentally feasible.

With respect to reuse, the judge concluded that while Chapters 373 and 403, F.S., recognize reuse as a desirable goal, the decision whether to construct the necessary facilities was specifically left to the utilities and not the District.

As to desalination, the judge found no authority for the District to investigate and implement desalination on its own but not to shift the responsibility for developing desalination to certain public supply applicants through the water user permitting process.

Appeal of the Final Order

Right now, the effect of the Final Order is stayed because the District and all other parties to the case, except Charlotte County, (for a total of nine) have appealed the Final Order to the Second District Court of Appeals. An interdistrict/DEP work group has been formed to discuss appellate issues, such as on what basis to appeal any particular ruling by the judge. The Florida Department of Environmental Protection and the St. Johns River Water Management District have been granted leave to file briefs as amicus curiae. A briefing schedule has not been set.

That means the District will continue to issue permits as we have in the past, but that in the SWUCA no rules will go into effect - not even those found valid.

SWUCA II

Pending the resolution of appeal the District is relying on the current ETB and Highlands Ridge WUCA rules to address permit applications in the SWUCA. One of the ETB rules denies new quantities but allows renewals. The District is developing a competing applications rule to replace those provisions. For the long-term, the District will be forming a "management" committee consisting of all interested groups and governments to develop a new management approach for SWUCA likely combining new ideas with the previous SWUCA provisions that are valid and/or upheld on appeal.

Challenges To and Final Order Addressing Existing Consumptive Use Permitting Criteria

This will summarize some of the major determinations by the administrative law judge regarding challenges to the District's water user permitting program rules. Most of the other water management districts have rules similar to the ones that were challenged.

1. Basis of Review: The District's incorporation of the Basis of Review into our rules through 40D-2.019 and use of the Basis was found invalid. The Basis had been challenged on the grounds that it did not include law implemented and specific authority after each provision as is required under 120 for each rule. It was also argued that the District could not incorporate its own documents into its rules. Both of those challenges failed.

2. 40D-2.301 F.A.C. Conditions of Issuance: This rule is the District's conditions for issuance of a permit and has several components that were challenged. There are 14 criteria that are interpretive of the 3 prong test, such as that the proposed use must be for a reasonable demand and not cause adverse environmental impacts.

These criteria were challenged as expanding the statutory 3 part test which states that to get a permit the use must be reasonable-beneficial, not interfere with existing legal uses and in the public interest. These challenges were found invalid.

Rule 40D-2.301 also requires that an applicant satisfy all 14 criteria, though for certain applicants our rules allow the applicant to mitigate to the satisfaction of the District. The administrative law judge said we could not require that. We instead must balance the 14 criteria so that the failure to satisfy a single criterion does not necessarily preclude issuance of a permit.

3. Local Sources First: One of the District's 14 criteria for issuance of a permit is that local water resources must be used to the greatest extent practicable. The District's rules do not contain any provisions describing which resources will be considered local and they do not set out the standards the District will use in determining whether an applicant can develop a local resource. Because of the lack of those standards and because the rule elevates local source considerations to a conclusive criterion the judge found them invalid.

4. Individual and Cumulative Criteria: 40D-2.301 also requires that the 14 criteria be met by an applicant on an individual and a cumulative basis. The cumulative requirement was challenged. The administrative law judge upheld this requirement. He found that it was clearly in the public interest to protect environmental resources and that they will not be protected in the absence of consideration of cumulative impacts.

5. Modification and Revocation of Permits: Several of the District's rules allow the District on its own initiative to modify or revoke permits during the term of the permit. These rules were challenged on a number of grounds including that only an applicant could seek a modification of its permit and that Section 373.171, F.S. prevented the District from revoking permits. The administrative law judge found no merit to these arguments and upheld the District's right to modify and revoke permits.

6. Water Shortage Declarations: As to our water shortage rule, while the 373 provisions concerning declaration of water shortages address classes of users and uses, they do not specifically authorize the Governing Boards to issue orders directed at specific users. The District's rule that does that, in other words authorizes a water shortage order to be directed at a specific user, was upheld.

7. Presumptions: In the District's Basis of Review for Water Use Permit Applications there are a number of performance standards that must be met to satisfy the corollary criterion in the 40D-2.301 conditions for issuance. The District uses presumptions to help in determining whether the performance standards have been met.

For example, the wetlands performance standards include that wetland hydroperiods shall not deviate from their normal range and duration to the extent that plants, and habitat are adversely impacted. The presumption states that the District presumes that a withdrawal of water will not cause unacceptable environmental impacts if the withdrawal of water, combined with other withdrawals, does not lower the water table at the wetland by more than 1 foot. The District uses the presumptions as guidelines for screening permit applications to isolate those which need further site-specific review and analysis because the proposed application would exceed the presumption. The presumptions can always be overcome by site-specific information about whether the application meets the performance standard.

The presumptions were challenged as beyond the District's authority to adopt because they might be used to shift the burden of proof from the applicant, the burden it has under 373, to prove entitlement to a permit.

The administrative law judge found that it is not clear from the face of the presumptions that they are merely screening tools and don't shift the burden of proof from the applicant and so are invalid in their current form.

8. Reuse Investigation: There was a challenge to the District's Basis of Review provisions that creates a permit condition that is included on permits in the Northern Tampa Bay Water Use Caution Area (NTBWUCA) which requires the investigation of use of reuse.

This reuse requirement doesn't go as far as the SWUCA reuse provision that requires investigation of reuse and if feasible the use of reuse. Therefore the NTBWUCA provision was upheld. 9. Investigation of Desalination: The last Basis of Review provision that will be covered is the challenge to the permit condition that is included on permits in the NTBWUCA that requires the investigation of the feasibility of desal and implementation of desal if found feasible. The administrative law judge found this requirement invalid for the same reasons ad the desal provision on SWUCA.

Summary

While a number of existing water use permitting rules were found invalid the great majority were upheld. The judge affirmed the District's broad statutory powers to regulate use of the water resource, including articulating what the three part test means in Section 373.223, F.S., the power to recall, revoke and revise permits, to issue water shortage orders and to require conservation measures, such as rate structures and per capita limitations which were not covered in this article. Some of the rules that were found invalid will be rewritten. Others are under discussion with the other Districts and DEP regarding whether to appeal them or not.

Karen A. Lloyd is currently responsible for rulemaking and policy development for water use matters, including minimum flows and levels, water use permitting and water resource development for the Southwest Florida Water Management District, Ms. Lloyd was a partner in a Tampa law firm before returning to practice at the District in 1993. Her practice included environmental, land use and real estate law. Ms. Lloyd has been an attorney with the District from 1982 to 1985. At that time she was responsible for real estate transactions, procedural rulemaking, personnel and other administrative and regulatory activities. She received her B.S. degree, magna cum laude, in 1982 from the University of Florida. Ms. Lloyd is a member of the Environmental and Land Use Law Section of the Florida Bar.

SOUTH FLORIDA WATER MANAGEMENT DISTRICT

SECONDARY IMPACTS, THE PUBLIC INTEREST TEST, WATER QUALITY, MITIGATION AND MINIMIZATION-- Florida Bay Initiative, Inc., The Florida Keys Fishing Guides Association, Michael Collins and Charles W. Causey (FBII); 1000 Friends of Florida, Inc.; and Florida Keys Citizens' Coalition (FKCC) v. Florida Department of Transportation and South Florida Water Management District and Intervenor, Monroe County, DOAH Case Nos. 95-5525, -5526, -5527, ER FALR 97:121, Final Order, South Florida Water Management District, June 11, 1997..

by Susan Roeder Martin

The Petitioners challenged SFWMD's Notice of Intent to Issue a Surface Water Management (SWM), Wetland Resource Management (WRM); and Right of Way Occupancy (ROW) permits to FDOT. The SWM permit pertains to the construction and operation of a SWM system serving 20.4 miles of U.S.1 in southern Dade and northern Monroe counties. The WRM permit provides authorization for dredge and fill activities for the widening of the existing two-lane roadway embankment to a four-lane embankment with three paved lanes. The ROW permit authorizes the replacement of the U.S. 1 bridge crossing the C-111 Canal. (Only FBII's Petition challenged the ROW permit)

The Petitioners' challenges resulted in approximately six weeks of formal administrative hearing held in September, October and November, 1996 before Administrative Law Judge Claude B. Arrington of the Division of Administrative Hearings. The Petitioners' main challenges focused on secondary impacts, the public interest test, water quality, mitigation and minimization. On April 11, Administrative Law Judge Arrington entered his Recommended Order recommending issuance of the three permits. The Petitioners filed exceptions.

On June 11, 1997 the SFWMD Governing Board considered the Recommended Order and Exceptions. The meeting was televised live in the Florida Keys. The Governing Board voted to adopt the Recommended Order and reject the Petitioners' Exceptions. The Final Order was issued on June 20, 1997 and will be available on the District's web site by the end of next week at http://www.sfwmd.gov.

On July 10, 1997, the Petitioners appealed the Final Order to the Florida Land and Water Adjudicatory Commission. On July 18, 1997, FBII also filed a Notice of Appeal in the Third District Court of Appeal and1000 Friends filed in the First District Court of Appeal. The Petitioners, FBII filed a Motion To Stay Appeal and 1000 Friends filed a Motion to Abate Appeal until the conclusion of the action before FLAWAC.

Susan Martin is a senior attorney specializing in Regulatory and Permitting issues at the South Florida Water Management District. Ms. Martin was admitted to the Florida Bar in 1983 and has been with the SFWMD since 1994.

LOWER EAST COAST REGIONAL WATER SUPPLY PLAN: AFTERMATH OF 1997 WATER SUPPLY LEGISLATION

by Cecile Ross, SFWMD

Many readers are already aware that since 1991 the South Florida Water Management District (SFWMD) has been developing a water supply plan for the several million people in Southeast Florida, for extensive agriculture and public uses supplied by Lake Okeechobee and in South Dade County, and for the Everglades ecosystem. In response to the 1997 water supply law (CS/HBs 715, 1249, 1321 & 1339), District staff is scoping out a process for insuring that the Lower East Coast Regional Water Supply Plan (Plan) adequately addresses requirements in the newly created Section 373.0361, regarding regional water supply plans.

The timeline for presenting a draft Plan to the SFWMD Governing Board has been adjusted to allow for drafting of water supply development and water resource development components, required by subsections 373.0361(2)(a) and (b). We are now scheduled to release a draft in the Spring of 1998. The major focus of this effort will be to frame and resolve policy and technical questions raised by these new requirements. For example, the water supply development component in a regional water supply plan must be based on a demand analysis of reasonable-beneficial uses for a 1 in 10 year drought event. This may sound straightforward, however, no set methodology exists for calculating this level of demand. This is especially true for the system in South Florida, where the level of drought typically varies from coastal to inland regions and from central to southern regions within the planning area, and where water levels may be artificially "propped" up by deliveries from the Central and Southern Florida Flood Control Project (C&SF Project), regardless of local drought conditions.

Cutting edge policy and technical issues regarding the implementation of the Plan through the regulatory consumptive use permitting process are also raised. How will water availability from each source, either ground or surface water, be evaluated? How will the regional water supply from the C&SF Project be distributed for agricultural, urban and environmental needs? How will individual permits be analyzed cumulatively so as not to exceed water availability from each water source? All of these questions, and many more, must be answered. Of course, the ultimate policymakers, the SFWMD Governing Board, must also be well educated on these issues to make these difficult decisions.

In addition to the above, water supply and resource development options, cost estimates, implementation timetables, and funding entities must be identified. With the assistance of the Lower East Coast Regional Water Supply Plan Advisory Committee, made up of interested entities from around the planning area, District staff will be able to resolve these issues, and will produce the Plan within the next few months, as scheduled. District Staff is also consulting with the other water management districts and the Department of Environmental Protection to achieve development of a regional water supply plan that is consistent with other planning efforts throughout Florida.

Cecile Ross is an Associate Attorney at the South Florida Water Management District practicing in all facets of water law, including water use planning, rulemaking, permitting, and administrative proceedings. Prior to coming to the District, Ms. Ross was an Assistant General Counsel at the Department of Environmental Regulation during 1990-1991 and the Staff Attorney of the House Committee on Natural Resources at the Florida Legislature during 1989-1990. Ms. Ross received a B.S. in Biology from Northeastern University in 1985 and a Juris Doctor from Florida State University College of Law in 1989.

SELECTED RULES WHICH BECAME EFFECTIVE AFTER 7/1/96, AND PENDING RULES

by Jim Drosakis

EAA Basin Total Phosphorus Load Calculation (Docket No. 96-7)

In support of direction contained in the Everglades Forever Act, Basin phosphorus load calculations are to being clarified so that EAA privilege tax incentive credits can be determined at the September Governing Board meeting. Chapter 40E-63 8/25/96

Melaleuca Mitigation Ratios and Regulatory Removal Incentives (Docket No. 96-4)

This rule is to establish fair and equitable mitigation ratios for melaleuca-dominated wetlands and to provide regulatory incentives for landowners to remove melaleuca from their undeveloped lands. Chapter 40E-4 1/1/97

Lower West Coast Water Use Basin Expiration Dates (Docket No. 96-7)

This rule is to extend the water use permit expiration dates for the Lower West Coast regulatory basin to accommodate the regulatory implementation of the Lower East Coast Water Supply Plan. Chapters 40E-2, 40E-20 and 40E-23 November, 1997 (projected)

Interim Lower East Coast Minimum Flows and Levels (Docket No. 94-4)

The proposed rule is to adopt interim minimum flows and levels for various areas of the lower east coast region. Proposed Chapter 40E-8 Rule Development ongoing.

Lower West Coast Water Supply Plan Regulatory Implementation (Docket No. 94-5)

Anticipated rulemaking for implementation of the Lower West Coast Water Supply plan will substantially revise the Basis of Review for water use permitting. A broad range of issues is expected to be covered in this effort, including: environmental protection criteria, allocation criteria, and reuse. Chapters 40E-2, 40E-20 and 40E-23 Rule Development ongoing.

Dade County Delegation Rule (Docket No. 95-2)

This rule is to incorporate by reference a delegation agreement with Dade County regarding specific ERP permitting responsibilities. Chapters 40E-4, 40E-40 and 40E-400 Rule Development ongoing.

Mitigation Banking / ERP rule Revisions (Docket No. 97-6)

Rulemaking is to conform existing mitigation bank permitting criteria with recent legislation and related matters. The rule is also to address administrative issues, "glitches" and editorial omissions in the Environmental Resource Permit criteria. Chapters 40E-4, 40E-40 and 40E-400 Rule Development ongoing.

For additional information concerning District rulemaking, please contact Jim Drosakis, Rules Analyst at (561) 687-6275 or e-mail him at jim.drosakis@sfwmd.gov.

ST. JOHNS RIVER WATER MANAGEMENT DISTRICT

THE TOMOKA RIVER HYDROLOGIC BASIN AND THE SPRUCE CREEK HYDROLOGIC BASIN RULE CHALLENGES--Consolidated-Tomoka Land Co., v. St. Johns River Water Management District, 97 ER FALR 132 (Fla. Div. of Admin. Hearings June 27, 1997) (Case Nos. 97-0870RP and 97-0871RP consolidated).

by Nancy B. Barnard and Cynthia A. Chritton

The "Tomoka Rule Challenge" is one of the first cases to be filed under the new Administrative Procedures Act (A.P.A.) as revised by the 1996 legislature. The rule challenge was initiated in March 1997, when a number of land owners in the Tomoka River and Spruce Creek area filed two petitions for administrative hearing. The SJRWMD had 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 Volusia County on January 17, 1997. 23 Fla. L. Weekly, No. 3, 265. Subsequently, the SJRWMD published on February 28, 1997, a Notice of Change to the proposed rule under chapter 120.56, Fla. Stat. 23 Fla. L. Weekly, No. 9, 1063. In April, Administrative Law Judge, Donald R. Alexander, conducted the three-day hearing in Tallahassee. The judge entered his final order on June 27, 1997.

The intent of the rulemaking was to provide additional protection to the designated Outstanding Florida Waters of the Tomoka River and Spruce Creek and their hydrologic basins. The proposed basins encompass approximately 245 square miles in the eastern part of Volusia County. Specific changes proposed to chapters 40C-4 and 40C-41 include lowered permit thresholds from the current rule of 40 acres or more of land area to 10 acres or more of land area, and from the current rule's permit threshold of 12 or more acres of impervious surface to two acres or more of impervious surface. The proposed Tomoka Rule also includes three engineering criteria and one biological criterion. Of the three engineering criteria, the Rule applies a recharge standard within the basins of 'three inches of runoff from a directly connected impervious area within the delineated Most Effective Recharge Area' where currently no recharge standard applies. Second, the Tomoka Rule proposes a 'no-net reduction in flood storage within a 100-year floodplain' within these basins. Third, the revisions include specific requirements for stormwater treatment: the stormwater treatment method of detention with filtration cannot be used as the sole treatment method for sites greater than 10 acres. Finally, the proposed Tomoka Rule imposes a biological criterion of a Riparian Habitat Protection Zones (RHPZ). The RHPZ would create a 50 to 550 foot-wide upland zone adjacent to the streams and specific tributaries within the basins.

Petitioners challenged the rule on six bases under section 120.52(8), Fla. Stat. (Supp. 1996). Specifically, petitioners asserted that (1) the SJRWMD exceeded its grant of rulemaking authority; (2) the rule enlarges, modifies, or contravenes the specific provisions of the law implemented; (3) the rule is vague, fails to establish adequate standards for agency decisions, or vests unbridled discretion in the SJRWMD; (4) the rule is arbitrary or capricious; (5) the rule is not supported by competent substantial evidence; and (6) the rule imposes regulatory costs on the regulated person which could be reduced by less costly regulatory alternatives that substantially accomplish the statutory goals. Id., 5. Furthermore, petitioners requested attorneys' fees and costs under section 120.595(2), Fla. Stat., on the theory that the SJRWMD's actions were not substantially justified and that no special circumstances exist that would make an award of attorneys' fees to petitioners unjust. Id.

The administrative law judge found that "the proposed rules are not vague, arbitrary or capricious, are supported by competent and substantial evidence, and substantially accomplish the statutory objectives." Id., 104, 112-115. Furthermore, the judge found that petitioners' "no-rule alternative" to the Statement of Estimated Regulatory Costs (SERC) did not substantially accomplish the statutory objectives of sections 373.413 and 373.416, Fla. Stat., of preventing harm to the water resources. Id., 77-83.

The SJRWMD asserted that the statutory language of sections 373.413 (1) and 373.416 (1), Fla. Stat., set forth the newly required specific power and duty, that is "to make sure that surface water management systems are not harmful to the water resources of the district." Yet, the judge concluded the new "law now contemplates that rules must implement statutes which describe more specific programs." Id., 100. He determined that the language of sections 373.413 (1) and 373.416 (1), Fla. Stat., is "merely a general, non-specific description of the agency's duties, and it espouses a statement of legislative policy or purpose rather than particular programs and duties, Id. This determination applies to all four of the proposed criteria. Additionally, the judge found that the recharge criterion and the RHPZ criterion enlarge the specific provisions of the law implemented because they do not contain the "particular duties and powers necessary to support rulemaking."Id., 102-103.

The SJRWMD has appealed the decision and petitioners have cross-appealed. The case is now pending before the First District Court of Appeal. Consolidated-Tomoka Land Co., v. St. Johns River Water Management District, Case No. 97-02996 (Fla. 1st Dist. Ct. App., filed July 23, 1997). The court has scheduled initial briefs to be filed in October of this year.

Nancy B. Barnard serves as Senior Assistant General Counsel with the St. Johns River Water Management District practicing primarily in the area of regulatory litigation. She received a Bachelor of Engineering from Vanderbilt University, and her J.D. from the University of Florida. Nancy defended the Tomoka Rule Challenge before DOAH with co-counsel, William H. Congdon, Deputy General Counsel.

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.