CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

VIII. Challenges to other Existing Rules

A. Rules Concerning Modification and/or Revocation of Permits

1551. Rule 40D-2.331 incorporates the requirements of Rule 40D-2.301 and requires compliance with all the various subsections of Rule 40D-2.301 during the term of a WUP. However, as discussed in Section VI A above, while the various criteria listed in Rule 40D-2.301 are appropriate factors to consider in issuing a permit, the failure to comply with a single criteria does not always and necessarily mean a use does not meet the statutory three-prong test. This interpretation is equally applicable to Rule 40D-2.331.

1552. Pinellas argues that Section 373.239(1), F.S., only authorizes a permittee to seek modification of the terms and conditions of an unexpired permit and does not allow a water management district to do so on its own initiative. Pinellas' interpretation would severely hamper the District's ability to protect the water resources and fulfill its other statutory duties. See, Sections 373.616 and 373.6161, F.S. Because the WUP issuance process necessarily involves an assessment of future impacts on a highly complex, ever changing environment, districts should be accorded some discretion to modify permits based upon actual experience and changed conditions. Even in the absence of explicit statutory authority, the ability to require modification of permits is necessarily implied from the various provisions of Chapter 373 which charge water management districts with the responsibility for protecting the water resources. "[R]ulemaking authority may be implied to the extent necessary to properly implement a statute governing the agency's statutory duties and responsibilities." Department of Professional Regulation, Board of Professional Engineers v. Florida Society of Professional Land Surveyors, 475 So.2d 939, 942 (Fla. 1st DCA 1985); see also, State Board of Education v. Nelson, 372 So.2d 114 (Fla. 1st DCA 1979) (the power to issue certificates for community college teachers necessarily and by fair implication included authority to specify conditions under which such certificates would be held and revoked.)

1553. Pinellas also contends that the District's rules regarding modification, as well as those regarding revocation, contravene Section 373.171(3) which provides:

1554. Some District witnesses erroneously suggested that this statute is not a limitation on the District's authority to revoke or modify a permit. This suggestion is rejected.¹⁸⁷ Because the District's rules are not irreconcilably and unavoidably in conflict with the statute, the rules are not invalid. Instead, they should be interpreted and applied consistent with Section 373.171(3). See, Hasper, supra, 459 So.2d at 400.

1555. With respect to revocation of permits, Pinellas claims that Section 373.243 is the only basis for revoking a WUP. However, Section 373.171(1)(b), authorizes a Governing Board to prevent "those uses which the governing board finds have ceased to be reasonable and beneficial." While it is somewhat difficult to reconcile these provisions, the rules of statutory construction direct that Sections 373.243 and 373.171 should be read in pari materia to avoid conflict and accomplish the purposes of Chapter 373. See e.g., Wakulla County v. Davis, 395 So.2d 540, 542 (Fla. 1981).

1556. Among the statutory goals are protecting the water resources of the state, promoting conservation, development and proper utilization of water, preserving natural resources and providing some certainty to water users.

1557. While Section 373.171(1)(b) is properly viewed as additional authority for revocation of a permit, the District's claim that its authority to revoke permits under this statute is not limited by the time constraints set forth in Section 373.243 is rejected. The legislature is presumed to have been aware of Section 373.171 when subsequently enacted Section 373.243 was passed in 1972. Floyd v. Bentley, 496 So.2d 862, 863-64 (Fla. 2d DCA 1986). The statutes should be construed in a way which harmonizes and reconciles them. Id. Section 373.243 should be recognized as a limitation on the District's authority to revoke a permit. It reflects the importance the authors of the Model Water Code placed on providing permit holders with some degree of certainty for the duration of a permit. See, Commentary to Model Water Code, p. 189. Because the District's rules regarding revocation are not irreconcilably and unavoidably in conflict with Section 373.243, the rules are not invalid. Instead, they should be interpreted and applied consistent with the statutory provisions. See, Hasper, supra, 459 So.2d at 400.

1558. The District argues that limiting permit revocations to one year duration pursuant to Section 373.243(3) could lead to some anomalous results, particularly in the resource protection context where the same problem which originally caused a revocation may still exist after one year has elapsed. However, limiting the revocation period to one-year or less for non- intentional violations preserves the sanctity of the permit. Any unique situations can be addressed on a case-by-case basis.

B. Water Shortage Declarations

1559. Pinellas has alleged that Rule 40D-2.511, F.A.C., enlarges and modifies the statutory authorization for declaring a water shortage because Section 373.246(3), F.S., limits the Governing Board to imposing "restrictions on one or more classes of water uses" and does not authorize restrictions on individual users. Pinellas' interpretation of the District's authority in this regard is overly narrow.

1560. Section 373.246 is one of two statutory sections authorizing the District to impose water shortage restrictions. The other provision, Section 373.175(2), specifically provides that a water management district may impose restrictions against "one or more users of the water resource." Pinellas claims that Section 175(2) cannot be considered as authority for the challenged rule because it was not specifically cited as authority for the rule. In this regard, Pinellas cites Florida League of Cities, Inc. v. Department of Insurance and Treasurer, 540 So.2d 850, 865 (Fla. 1st DCA 1989), rev. denied, 545 So.2d 1367 (Fla. 1989). However, unlike the Florida League of Cities case, there is specific statutory support in the same chapter of the Florida Statutes for the rule provision challenged in this proceeding.

1561. While the District did not cite Section 373.175 as express authority for Rule 40D-2.511 in the "Law Implemented" section of the rule, the existence of this provision within the statutory scheme cannot be ignored. It indicates that the legislature has granted broad authority to water management districts to regulate water usage during a water shortage and irrespective of whether the regulation is based upon a class of water users or individual uses.

1562. Pinellas points out that the District's water shortage plan in Chapter 40D-21, F.A.C. only provides for the imposition of restrictions against classes of water uses.¹⁸⁸ Pinellas claims that since Rule 40D-2.511(2) refers to protecting water resources from harm "as set forth in Part VI of Chapter 40D-21", the language in Rule 40D-2.511(2) authorizing water restrictions to be imposed on one or more users is impermissibly vague because it could be read to contravene the intent of Chapter 40D-21 which Pinellas claims is to impose water restrictions based upon a permit classification system. However, nothing in Chapter 40D-21 precludes the District from imposing restrictions on individual users.¹⁸⁹ The District does not interpret Chapter 40D-21 as being an exclusive manner of imposing restrictions. The District's interpretation of its own rules is entitled to deference.

1563. Pinellas also argues that there is no specific authority in Chapter 373 or elsewhere in the Florida Statutes which authorizes the District to create a WUCA. However, the legislature has implicitly recognized that a district has authority to designate a geographic area where regulatory measures can be tailored to address specific local problems. Sections 373.1961(2)(a), 373.246(2), 373.250(6)(e) and 403.064(2), F.S. (1995), all recognize that a district can designate specific areas of concern where special regulatory measures are necessary. In fact, in legislation in 1994 and 1995, the term "water resource caution areas" was used to describe such areas. See, Section 2 and 3 of Ch. 94-243 and Section 7 of Ch. 95-323, Laws of Fla. While the nomenclature used by the district is slightly different, these provisions confirm the authority for the District to establish a WUCA. See, Florida Society of Professional Land Surveyors, supra, 475 So.2d 939. The minor difference in terminology for the area is inconsequential.

1564. Rule 40-2.801(2)(e) provides that "offsite land uses" will be considered in determining whether an area should be declared a WUCA. Pinellas claims the terms "offsite" and/or "onsite" have no clear meaning in the context of a WUCA and, consequently, the use of such terms renders the rule vague and invalid. However, this reference simply indicates that, in establishing a WUCA, the District will consider land uses in the vicinity of the withdrawal locations and elsewhere. Land uses can obviously impact recharge and drainage as well as demand, all of which are pertinent factors in water planning. This reference is not a basis for invalidating the rule.