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CHARLOTTE COUNTY v. SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
IX. Challenges to Non-rule Agency Statements 1565. Prior to the adoption of Section 120.535, F.S., in 1991, the establishment of agency policy through rulemaking was a matter of agency discretion. Florida courts had held that rulemaking could not be mandated and an agency's policy could be developed at the agency's choice by adjudication of individual cases. See, Florida League of Cities v. Administration Comm'n, 586 So.2d 397 (Fla. 1st DCA 1991); Florida Public Service Commission v. Indiantown Telephone System, Inc., 435 So.2d 892 (Fla. 1st DCA 1983). Under this approach, it was perfectly acceptable for official agency policy to not appear in the agency's enacted rules. See, McDonald, supra, 346 So.2d 569, 582. 1566. The Florida Legislature rejected the concept of rulemaking as a matter of agency discretion and instead mandated that agency rules be adopted as soon as "feasible and practicable." See, Chapter 91-30, Laws of Florida.190 1567. Section 120.52(16) defines a "rule" in pertinent part as follows: (16) "Rule" means each agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the organization, procedure, or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule. The term does not include: (a) Internal management memoranda which do not affect either the private interests of any person or any plan or procedure important to the public and which have no application outside the agency issuing the memorandum.... See, Balsam v. Department. of Health & Rehabilitative Services, 452 So.2d 976 (Fla. 1st DCA 1984). 1568. Whether an agency statement is a rule which must be adopted in accordance with statutory procedures is determined by the effect of the statement rather than an agency's characterization by some label other than "rule". Amos v. Department of Health and Rehabilitative Services, 444 So.2d 43, 46 (Fla. 1st DCA 1983). 1569. Pursuant to Sections 120.535(2) and (4), an administrative proceeding can be brought to compel a state agency to discontinue reliance on an unpromulgated policy statement as a basis for agency action. See, Christo v. Department of Banking and Finance, 649 So.2d 318, 321 (Fla. 1st DCA 1995) rev. dismissed mem. 660 So.2d 712. (Section 120.535, F.S. is the method to challenge an agency's failure to adopt agency statements of general applicability as rules); Federation of Mobile Home Owners of Fla., Inc. v. Florida Manufactured Housing, Assoc., Inc., 683 So.2d 586 (Fla. 1st DCA 1996). 1570. Pinellas has filed petitions in this case contending that certain policies of the District violate Section 120.535(1). To establish a prima facie case in an action under Section 120.535, a petitioner must demonstrate that: (a) the agency's statements constitute a rule as defined by Section 120.52(16); and (b) the agency has not adopted the statements by the rulemaking procedure of Section 120.54. See, Sections 120.535(1) and (2). 1571. After a prima facie case has been presented, rulemaking is presumed feasible and practicable and the burden shifts to the agency to prove that rulemaking is not feasible or practicable because: (a) it has not had sufficient time to acquire knowledge and experience necessary to address the statements by rulemaking; (b) related matters are not sufficiently resolved by the agency to address the statements by rulemaking; (c) the agency is currently using the rulemaking procedure expeditiously and in good faith to adopt rules which address the statements; (d) it is not reasonable under the circumstances to establish precise or detailed principles, criteria, or standards; or (e) the issue involved is so narrow in scope that more specific resolution is impractical except through adjudication of a party's substantial interests based on its particular circumstances. See, Section 120.535(1)(a) and (b), F.S.27 1572. There is no dispute that the District applies the inverse of the presumptions found in the BOR when reviewing applications for water use permits.191 1573. Several Petitioners have alleged the District's use of the inverse of the presumptions in the WUP process violates Section 120.535, F.S. The confusion and uncertainty regarding how the inverse presumptions can be applied and what is necessary to overcome them, especially in a contested permitting case, highlights the problems with the District's permitting presumptions in their current form. In view of the conclusions reached herein regarding the District's use of presumptions, the challenges to the District's application of the inverse presumptions are arguably moot. However, because of the uncertainty in this area of the law, certain issues merit discussion. 1574. The inverse presumptions are not always simply the logical result of the adopted statements. While there could in some instances be an acceptable scientific basis for concluding that some level of measurable impact is always acceptable or unacceptable, it does not follow that the inverse is always true. Most of the presumptions do not address the manner in which the District will review and consider withdrawals that exceed the thresholds. When an inverse presumption is applied, it can serve by its own effect to create certain rights, to require compliance and otherwise to have the direct and consistent effect of law. As such, the statement constitutes a rule within the meaning of Section 120.52(16), F.S. See, Balsam, supra, 452 So.2d 976. Consequently, it cannot be applied unless it has been adopted in accordance with the rule making requirements of Section 120.54, F.S. C. The "Water Use Design Aids," Section C-1 of the District's Water Use Permit Information Manual 1575. In 1989, when the District developed and adopted major revisions to its water use permitting rules, including Chapter 40D-2 and the BOR, the District also created Part C-1 of the Water Use Permit Information Manuals, the Water Use Design Aids, which includes a Withdrawal Impact Analysis that sets forth "acceptable methods for analyzing impacts which result from water withdrawals. The District will perform the analysis for all applications to determine compliance with Chapter 40D-2." The District has not adopted the Water Use Design Aids as a rule. 1576. The Withdrawal Impact Analysis allows WUP applicants to use a groundwater flow model to demonstrate compliance with the presumptions and performance standards in the BOR. Absent site specific information which would indicate a complete investigation was required for the particular applicant's proposed use, the District will perform the Part C-1, Level 1 - Basic Analysis for all WUP applications. Under the Level 1 analysis, the District models only the applicant's proposed withdrawals. If the modeling of the applicant's withdrawals under the Level 1 individual analysis indicates the drawdowns from the withdrawal will be below the Level I threshold, then the applicant is deemed to have met the Conditions for Issuance in Rule 40D-2.301(1), F.A.C., and the District generally does no further analysis before issuing a WUP. The net result is that smaller uses of water are generally permitted without any scrutiny beyond the Level 1 individual analysis because they are below the threshold.192 1577. If the applicant does not satisfy the Level 1 individual analysis, then the applicant (or the District) must perform the Level 2 - Comprehensive Analysis (a limited cumulative impact analysis) in order to demonstrate compliance with the District's permit criteria before a WUP will be issued. Under the Level 2 limited cumulative impact analysis, the District models the drawdown contours of the applicant's individual use and, depending on whether the proposed withdrawal is in the northern or southern portion of the District, the District will include in the model simulation all permitted withdrawals within the applicant's one or four foot modeled drawdown contour to determine if the thresholds are exceeded.193 1578. The District claims that the Design Aids simply "represent an effort by the District to communicate to the regulated public as best as possible the computer modeling techniques that it will apply in analyzing the impact of a proposed withdrawal." District's proposed Conclusions of Law No. 481, pp. 304-305. 1579. The District argues that the Design Aids do not ...purport in and of itself to create certain rights and adversely affect others or serve by its own effect to create rights, or to require compliance, or otherwise have the direct and consistent effect of law. All Part C-1 does is describe a screening methodology for modeling the impact of a proposed withdrawal to determine whether that withdrawal will meet the performance standards and the Conditions for Issuance". It is the performance standards and the Conditions for Issuance which serve by their own effect to create rights, require compliance, or otherwise have the direct and consistent effect of law. District's proposed Conclusions of Law No. 485, p. 306. 1580. The District's characterization of the Design Aids is not controlling and it is necessary to examine the effect of the agency statement in question. See, State Department of Administration, Division of Personnel v. Harvey, 356 So.2d 323, 325 (Fla. 1st DCA 1977). 1581. The District's argument ignores that applicants under the Level I threshold can obtain permits without any further justification. Moreover, as written and applied, satisfaction of the Part C-1 analyses provides a basis for concluding that the District's impact-related Conditions for Issuance have been satisfied. While the District characterizes the Part C-1 analyses and presumptions as rebuttable and "non-evidentiary", the language of Part C-1 provides that all Performance Standards in the BOR are considered met if the applicant satisfies the Part C-1 analyses. Thus, Part C-1 has the effect of creating rights. Furthermore, the computer modeling performed as part of the analyses under the Design Aids become the basis for applying the presumptions set forth in the BOR. The Water Use Design Aids constitute a rule as defined in Section 120.52(16), F.S. 1582. While the District asserts that a permit applicant is not required to utilize any particular computer modeling procedure to support its application and demonstrate compliance with the performance standards, the evidence established that all applications are initially evaluated by the District utilizing the Design Aids. 1583. The District points out that Part C-1 expressly provides that: "Other methods of analysis may be used when circumstances warrant a different approach". 1584. The District argues that, because it will deviate from the specific computer modeling methodologies described under the Level 1 and Level 2 Analyses when case-specific circumstances warrant, the Design Aids are not generally applicable and, thus, do not constitute a rule. In this regard, the District claims that, when actual field observations show an area such as the most impacted area of Northern Tampa Bay exceeds the performance standards, the Design Aids are not used because no permits will be issued for new quantities. Exceptions to a rule do not obviate the character of a rule which is applied in the absence of demonstrated reasons why it should not be. Moreover, there is no mechanism in place for the public or a reviewing body to determine when the Design Aids will be applied and/or what factors will be considered in making this determination. 1. Whether it is feasible or practicable to adopt Part C-1 of the Design Aids as a rule 1585. As noted above, no violation of Section 120.535 occurs if an agency demonstrates that rulemaking is either not feasible or not practicable in accordance with the criteria set forth in subsections (1)(a) and (b) of the statute. 1586. The District argues that rulemaking is neither feasible nor practicable for Part C-1 of the Design Aids "because the science that is related to the use of computer modeling techniques for the purpose of predicting the impact of a proposed withdrawal is in a constant state of flux, requiring the exercise of considerable professional judgment as to the most appropriate technique under the circumstances of a particular case and the need for flexibility to utilize new or modified techniques as they are developed." District's proposed Conclusions of Law No. 491, pp. 310-311. For example, the District notes that the Level 2 methodology states that a 90-day simulation is "generally" applied. The District asserts that it needs flexibility because the use of a 90 day simulation period is not necessarily appropriate in all cases and it must be able to take into account site-specific considerations to determine the best type of model and modeling assumptions to be utilized. However, this need for flexibility does not preclude rule-making. See, Ameriquatic, supra, 651 So.2d 114. Rules can be drafted in a manner that provides for the exercise of professional judgment to deal with site-specific issues while accommodating technological developments. 1587. The District has not met its burden of proof that it is not feasible or practical to adopt the Design Aids or a version thereof as a rule. Rules can be drafted in a manner that provides for the exercise of professional judgment to deal with site-specific issues and that accommodate technological developments. 1588. The District's suggestion that Part C-1 is appropriately viewed as an internal management memorandum and thus exempt from rulemaking requirements is rejected. See, Department of Revenue v. Vanjaria Enterprises, Inc., 675 So.2d 252 (Fla. 5th DCA 1996). 1589. In sum, it is concluded that the failure to adopt the Design Aids in accordance with the requirements of Section 120.54, F.S., contravenes Section 120.535.
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