Title: Final Order Water Crop Rule
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 Material Information
Title: Final Order Water Crop Rule
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Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Final Order Water Crop Rule, March 1980
General Note: Box 10, Folder 7 ( Unknown - 1979-1980 ), Item 1
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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Bibliographic ID: WL00002182
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text
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STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS


PINELLAS COUNTY, a political
subdivision of the State of
Florida,

Petitioner,

vs.

SOUTHWEST FLORIDA WATER MANAGEMENT
DISTRICT, an administrative agency
of the State of Florida,

Respondent.

WEST COAST REGIONAL WATER SUPPLY
AUTHORITY,

Petitioner,


vs.


Case No. 79-2325R


Case No. 79-2393R


SOUTHWEST FLORIDA WATER MANAGEMENT )
DISTRICT, an administrative agency .)
of the State of Florida, )
Resondent.
Respondent. )


FINAL ORDER


Pursuant to notice, an administrative hearing wa:,

held before Diane D. Tremor, Hearing Officer with the Division

of Administrative Hearings, on January 21, 22 and 23, 1980, in

Tampa, Florida. Upon request of the parties, oral closing

statements were made to the Hearing Officer on March 11, 1980,

in Tampa, Florida.


APPEARANCES


For Petitioner
Pinellas County:



For Petitioner West
Coast Regional Water
Supply Authority:


John T. Allen, Jr.
4508 Central Avenue
St. Potersburg, Florida 33711



Kenneth E. Apgar
403 North Morgan Street
Suite 102
Tampa, Florida 33602


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For Respondent Southwest
Florida Water Management
District; L. M. Blain
Thomas E. Cone, Jr.
Post Office Box 399
Tampa, Florida 33601

Jay T. Ahern
5060 U.S. 41 South
Brooksville, Florida 33512

For Intervenors: Rpbert Bruce Snow
Post Office Box 2060.
Brooksville, Florida 33512
COUNTY ATTORNEY FOR
HERNANDO COUNTY

Gerald A. Figurski
4025 Moon Lake Road
New Port Richey, Florida 33551
COUNTY ATTORNEY FOR PASCO COUNTY

Jeannette M. Haag
Haag and Haag
1900 West Main Street
Inverness, Florida 32650
ATTORNEY FOR THE WITHLACOOCHEE
REGIONAL WATER SUPPLY AUTHORITY

Randall N. Thornton
Post Office Box 58
Lake Panasoffkee, Florida 33538
ATTORNEY FOR SUMTER COUNTY
RECPEATION )\ND WATER CONSERVATIOIl
AND CONTROL, AUTHORITY AND SUMTER
COUNTY

John F. Wondel
Wendel, Broderick, Chritton &
Klepetko, Chartered
Post Office Box 5378
Lakeland, Florida 33802
ATTORNEY FOR CITRUS COUNTY

Robert S. Ryder
320 N.W. Third Avenue
Post Office Box 1635
Ocala, Florida 32670
ATTORNEY FOR WITHLACOOCHEE
REGIONAL PLANNING COUNCIL

'Carl R. Linn
214 Municipal Building
St. Petersburg, Florida 33701
ATTORNEY FOR CITY OF ST. PETERSBURG


INTRODUCTION

By a petition filed with the Division of Administrative

Hearings on November 21, 1979, Pinellas County seeks an admin-

istrative determination of the invalidity of an existing rule


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pursuant to Florida Statutes, Section 120,56. Shortly there-

after, the West Coast Regional Water Supply Authority filed a

similar petition challenging the same rule, as well as a motion

to intervene in the proceeding filed by petitioner Pinellas

County. Upon motion of the respondent Southwest Florida Water

Management District, the two cases were consolidated. Thereafter,

the following entities moved to intervene as parties respondent

in support of the validity of the rule in question: Pasco County,

Hernando County, Sumter County, Citrus County, the Withlacoochee

Regional Water Supply Authority, the Sumter County Recreation

and Water Conservation and Control Authority, and the Withlacoochee

Regional Planning Council. Several of these movants also filed

petitions in support of the validity of an existing rule. The

City of St. Petersburg moved to intervene contending that the

rule is an invalid exercise of delegated legislative authority.

By order of the undersigned Hearing Officer, all motions to

intervene were granted. The "petitions of the intervenors; in

support of the validity of an existing rule" were dismissed, as

no authority for such a petition exists within Chapter 120,,

Florida Statutes.

The cause proceeded to an evidentiary hearing on

January 21, 22 and 23, 1980, at the conclusion of which all parties

rested. The parties requested the opportunity to make oral closing

statements to the Hearing Officer.after the receipt of the trans-

cript of the hearing, and such request was granted. Closing state-

ments were heard on March 11, 1980. On March 7, 1980, the

respondent Southwest Florida Water Management District filed a

"suggestion of mootness," contending that the issues in dispute

had been rendered moot because the respondent had issued a final

order granting a consumptive use permit to the petitioners. A

similar "suggestion of mootness" was filed by intervenor Pasco


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County contending that the final order and permit issued by

the respondent, as well as a declaratory statement regarding the

applicability of the challenged rule, rendered the issues in

this proceeding moot. During the time scheduled for closing

statements, the respondent agency and the intervenors in support

of the rule also requested the Hearing Officer to take official

notice of the final order granting the consumptive use permit, the

permit itself and the declaratory statement issued to Pasco County

on March 4, 980, and proffered these documents into evidence

as Exhibits and L. The undersigned reserved ruling on the

objections b, petitioners to the admissibility of these documents

into evidence at that time.

I is the holding of the undersigned that official

notice will be taken of the February 6, 1980, final order granting

the permit to petitioners, the permit and the March 4, 1980

declaratory statement of the respondent to Pasco County for the

purpose of ruling on the suggestions of mootness. However, the

objections to proffered Exhibits K and L are sustained on the basis

of timeliness and that they are irrelevant and immaterial to any

issue in dispute herein, including the issue of the standing of

petitioners to seek a determination of the validity of a rule.

These rulings will be discussed further in the Conclusions of Law

portion of this order.

The petitioner Pinellas County and the respondent have

submitted to the Hearing Officer proposed final orders containing

proposed findings of fact and proposed conclusions of law. These,

as well as the legal memoranda submitted by the parties, have been

fully and carefully considered by the undersigned. To the extent

that the proposed findings of fact are not incorporated in this

final order, they are rejected as being either irrelevant and

immaterial to the issues for determination herein, not supported



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by competent, substantial evidence or as constituting con-

clusions of law as opposed to findings of fact.


FINDINGS OF FACT

Upon consideration of the oral and documentary

evidence adduced at the hearing, the following relevant facts

are found:

(1) The petitioner Pinellas County operates a water

system which serves a population of approximately 400,000. This

figure includes some 250,000 individual meter accounts and

150,000 wholesale customers, including the Pasco County Water

Authority (1) and.the Cities of Tarpon Springs, Clearwater,

Safety Harbor and Pinellas Park. At the time of the hearing,

Pinellas..County was conducting negotiations with the Cities of

Oldsmar and Dunedin to supply them with water. Like other suppliers

of water within the Southwest Florida Water Management District

(SWFWMD), Pinellas County is required to obtain consumptive use

permits (CUP) from SWFWMD. This petitioner currently operates two

wellfields -- the Eldridge-Wilde Wellfield containing 1,925 acres

and the East Lake Road Wellfield contaiining 5,861. acres. In

addition, Pinellas County receives water supplies from the West

Coast.Regional Water Supply Authority (WCRWSA), which operates the

Cypress Creek Wellfield containing 4,895 acres and the Cross Bar

Ranch Wellfield containing 8,060 acres.

(2) On an average daily basis, the Pinellas County

water system presently utilizes 45 million gallons of water per

day (mgd), with a peak use of 65 mgd. Projections indicate that

the estimated water demand for the Pinellas County water system



(1)
At the time of the hearing, condemnation proceedings were
pending whereby Pasco County is condemning the Pasco Water
Authority, including the contract to supply water between it and
Pinellas County.


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will be an average of 54.3 mgd, and.a peak use of 90.15 mgd

by 1980. For the year 1982, the estimate is 60.06 mgd average

and 98.71 mgd peak. For 1984, the estimate is 65.44 mgd average

and 106.65 mgd peak. At the time of the hearing, the present

permitted capacity available to Pinellas County was 73 mgd

average and 100 mgd peak or maximum. Estimates of projected

water demands for Pinellas County indicate a definite shortage

of water during peak periods by the year 1984 and a cushion of

only 1.29 million gallons'during peak periods as early as 1982.

Pinellas County has experienced water shortages in the recent

past, resulting in emergency measures such as sprinkling bans

during the daylight hours. Considering the possibilities of

equipment breakdowns or extremely dry periods, a cushion of

1.29 mgd is not a sufficient surplus.

(3) The WCRWSA was formulated by an interlocal agree-

ment under Chapter 373, Florida Statutes, and is authorized to

acquire water and water rights, develop, store and transport

water, and to provide, sell and deliver water for county or

municipal purposes or uses., The members of the WCRWSA are Pasco

County, the City of Tampa, Hillsborough County, the City of

St. Petersburg and Pinellas County. As noted above, the WCRWSA

operates two wellfields -- Cypress Creek and Cross Bar Ranch.

Pinellas County actually owns the land at the Cross Bar Ranch.

At the time of the hearing, the Cross Bar Ranch Wellfield was

permitted for 15 mgd average and 20 mgd peak.

(4) In August of 1979, the WCRWSA and Pinellas

County, as co-applicants, filed an application for a modification

of their consumptive use permit at the Cross Bar Ranch Wellfield

to authorize an annual average withdrawal of 30 mgd and a maximum

withdrawal of 45 mgd. Under the rules of respondent SWFWMD, an

application for an increased use is treated as a new application.


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Rule 16J-2.04(5), Fla. Admin. Code. Pasco County moved to

intervene in the petitioners' CUP application process concerning

the Cross Bar Ranch Wellfield. Among the issues raised by

Pasco County in their petition to intervene was whether the pro-

posed consumptive use would exceed the water crop of land owned,

leased or otherwise controlled by the applicants.

(5) At the time of the evidentiary hearing in the pre-

sent cause, SWFWMD had not yet held an administrative hearing on

the application for a CUP modification for the Cross Bar Ranch

Wellfield. The application was pending both at the time of

the filing of the petitions with the Division and at the time

that all parties rested at the conclusion of the evidentiary

hearing.

(6) The petitions filed in the instant cause challenge

the validity of SWFWMD's Rule 16J-2.11(3), Florida Administrative

Code. This rule is known as the water crop rule, and reads as

follows:

16J-2.11 Conditions for a Consumptive Use Permit.

(3) Issuance of a permit will be denied if the
amount of water consumptively used will exceed
the water crop of lands owned, leased or other-
wise controlled by the applicant. (Except where
determined otherwise, the water crop [precipitation
less evapotranspiration] throughout the District will
be assumed to be three hundred sixty-five thousand
(365,000) gallons per year;per acre.)

(7) Another subsection of Rule 16J-2.11 provides that

the governing board of SWFWMD may grant an exception to the water

crop rule. Subsection (5) of Rule 16J-2.11 provides that

(5) The Board for good cause shown may grant
exceptions to the provisions of paragraphs (2),
(3), (4), and (10) of this rule when after
consideration of all data presented, including
economic information, it finds that it is consistent
with the public interest.

(8) The caveat of the water crop rule is that only

1,000 gallons per acre per day may be withdrawn under any permit.

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The Cross Bar Ranch consists of 8,060 acres. Under the

challenged rule, only 8,060,000 gallons per day could be with-

drawn. Therefore, the application pending'before SWFWMD for

a CUP for 30 mgd average and 45 mgd peak far exceeds the water

crop rule, The existing permit also exceeds the limitations

of the rule.

(9) The water crop concept had its genesis in a

report on the amount of available water in a certain portion

of the respondent's water management district. The rule is

applied district-wide by SWFWMD. In spite of its seemingly

mandatory language, the rule is not ultimately implemented or

interpreted in a mandatory fashion by the respondent. Instead,

it is applied as an initial or threshold level of inquiry, or

"first cut," and, if the other criteria for a permit can be

satisfied, SWFWMD will grant an exception under subsection (5)

of Rule 16J-2.11. With one possible exception, the respondent

has never denied.a permit solely bo(euse tho p!,oliclation i.xcveer 'd,

the water crop concept. It would not be hydrologically sound to

deny a CUP solely on the basis of the water crop rule. Consumptive

use permits can be.adequately regulated-Without such a rule. No

other water management district in Florida has promulgated or

requires compliance with a water crop rule.

(10) The water crop concept is hydrologically un-

sound and cannot be properly applied to any specific piece of

property. A generalization of the amount of water which is

available throughout the district (1,000 gallons per acre per

day) cannot reasonably be applied in individual consumptive use

proceedings. This is due to the fact that the amount of water

which can be withdrawn from any specific parcel of land is

dependent upon the amount of rainfall the land receives, soil

types, the water table, the existence of confining layers,


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vegetation types and other variable hydroloqical factors.

These factors vary widely throughout the subject water

management district.

(11) If the water crop rule were strictly

applied by SWFWMD, the petitioners would be required

to purchase or otherwise acquire an additional 80,000

acres of land to supply their customers with the water

now permitted to be withdrawn. This would obviously result

in excessive financial burdens to the petitioners and,

ultimately, consumers.

(12) Without objection by the respondent or the

intervenors, evidence was adduced by the petitioners reqardina

the action of the Florida Joint Administrative Procedures

Committee in its review of Rule 16J2.11(3) in 1976. The

undersigned makes no finding of fact regarding this evidence

inasmuch as it is deemed irrelevant. and immaterial to the

ultimate determination in this cause.

(13) As noted above, the City of St. Petersburg is

a member of the WCRWSA. Because of recent water shortages;,

St. Petersburg has loaned to Pinellas'County a portion of its

allotment from a wellfield operated by WCRSWA. It is projected

that the City of St. Petersburg will need additional supplies

of water between the years of 1983 and 1985.

(14) The remaining intervenors are all charged with

the responsibility to obtain sufficient water supplies within

the district of SWFWMD. They are subject to the consumptive

use permitting rules of SWFWMD.

(15) Evidence was offered on the issue of whether

the water crop rule was strictly applied to Pinellas Cournty at

its East Lake Road Wellfield, which comprises 5,861 acres. At


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present, the amount of water withdrawal permitted is less

than the water crop for the amount of acreage of the well-

field. Though there was evidence that SWFWMD inquired as to

the control or ownership of the land, the actual permit appli-

cation was not introduced into evidence nor was there sufficient

evidence adduced by petitioner to illustrate the reasons for a

permit for an amount less than that which would be permitted

under the challenged rule.


CONCLUSIONS OF LAW

In this proceeding, petitioners contend that the

challenged water crop rule is an invalid exercise of delegated

legislative authority for the reasons that:

(1) the rule exceeds SWFWMD's statutory authority

under Chapter 373, Florida Statutes,

(2) the rule impermissibly conflicts with the pro-

visions of Chapter 373,

(3) the rule creates a property right to water by

virtue of land ownership, contrary to Chapter 373 and the Florida

Supreme Court's decision in the case of Village of Tequestra v.

Jupiter Inlet Corporation, 371 So. 2d 663 (Fla. 1979),

(4) the rule is arbitrary and without rational

basis in fact because it is a hydrologically unsound method to

determine the reasonable, beneficial use of water, and

(5) the Florida Joint Administrative Procedures

Committee has held that the rule exceeds statutory authority.


The City of St. Petersburg aligns itself with the contentions of

the petitioners.

The respondent SWFWMDasserts that the petitioners lack

standing as substantially affected persons to challenge the water


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crop rule. SWFWMD contends that it has proper statutory authority

to adopt such a rule, that the rule is not prohibited by the

Tequestra decision or Chapter 373 and that the rule is a valid

method to review applications for a consumptive use permit and to

determine the reasonable beneficial use of water. The remaining

intervenors align themselves with the contentions of SWFWMD.

On the issue of standing to seek an administrative

determination of the validity of an existing rule, respondent

urges that the petitioners have not demonstrated that they are

substantially affected by the water crop rule. Respondent points

to the fact that, at the time of the petition and the hearing,

petitioners had already received permission to withdraw almost

double the limits of the water crop rule from the Cross Bar

Ranch Wellfield. The rule thus had caused them no injury in the

past that would establish standing. Likewise, respondent con-

tends that the speculative concern of the petitioners about the

possibility of denial of their request for modification of that

permit and the possibility that Pasco County might appeal an

order modifying the permit has proved unfounded and illusory by

events occurring subsequent to the evidentiary hearing. SWFWMD

correctly concludes that Pinellas County has failed to prove

that the water crop rule was applied to limit withdrawals from

the East Lake Road Wellfield. .In summary, respondent contends

petitioners have failed to establish injury in the past, have

failed to show any continuing present adverse effects from the

rule and have failed to establish a likelihood of injury in the

future.

The most definitive case law on the subject of standing

to challenge rules pursuant to Chapter 120, Florida Statutes, is

found in the case of Florida Department of Offender Rehabilitation

v. Jerry, 353 So. 2d 1230 (Fla. 1st DCA, 1978). There, the First.

District Court of Appeal held that one challenging an administrative


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rule must demonstrate injury in fact or that the threat of

injury from the challenged rule is both real and immediate

and not conjectural or hypothetical. The Jerry case stands

for the proposition that an abstract, imagined injury is not

enough to confer standing.

Equally important in the Jerry case is the Court's

pronouncement as to the legal point in time in which one must

illustrate that he is substantially affected by a rule. There,

the Court stated that Jerry, a prison inmate who challenged a

rule subjecting an inmate to disciplinary confinement and for-

feiture of gain time, had

failed to demonstrate, either at the
time his petition for administrative relief
was filed or at the time of the hearing, that
he was then serving disciplinary confinement or
that his existing prison sentence had been sub-
jected to loss of gain time." 353 So 2d 1230,
at 1235.

hus, it is clear that the legal time that standing must be

roven is either at the time-of the filing of the oqtition or at

the time of'the evidentiary hearing.

In this instance, the petitioners have met both time

eriods with respect to standing. Both at the time of the filing

of the petitions and at the time of the evidentiary hearing, both

petitioners, as co-applicants, had pending before SWFWMD an

application to increase the amount of water to be withdrawn from

the Cross Bar Ranch Wellfield. Since such an increase is con-

sidered to be a new use under SWFWMD's Rule 16J-2.04(5), the

fact that petitioners had an existing permit exceeding the

limitations of.the water crop rule is immaterial. The application *

for modification must be considered anew by the respondent. In-

asmuch as the application for modified permit exceeds the water

crop rule, said rule could be utilized as grounds for denial of

the CUP application and petitioners are thereby adversely and

substantially affected by the rule. The fact that the applicants


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received a favorable final order and a permit from SWFWMD

.subsequent to the evidentiary hearing in this proceeding is

irrelevant and immaterial to the issue of standing. As

noted above, standing accrues either at the time of the

filing of the petition for a determination of the validity

of a rule or at the time of hearing.

For the reasons stated above with respect to standing,

the respondent's and intervenor's suggestions of mootness based

upon the subsequent issuance of a permit to petitioners are

denied. Petitioners are entitled to an administrative deter-

mination on the validity of Rule 16J-2.11(3), and subsequent

events can not alter this right. The suggestion of mootness on

the basis of the declaratory statement regarding the challenged

rule issued to Pasco County on March 4, 1980, is also denied.

To hold otherwise would permit an agency to avoid a proper

challenge to its rules by the simple device of issuing a declara-

tory statement prior to the entrance of a final order in every

rule challenge proceeding under Section 120.56, Florida St.atutes.

The declaratory statement issued by the respondent to Pasco County,

an intervenor in the present proceeding is not binding either

on the petitioners in this case or the Hearing Officer in reaching

a determination as to the validity of the challenged rule. As

recognized in the case of State Dept. of Health and Rehabilitative

Services v. Barr, 359 So. 2d 503 (Fla. 1st DCA, 1978), the effect of

a declaratory statement is one involving the principle of stare

decisis, and not res judicata.

In summary, it is held that the petitioners, as pending

applicants for a consumptive use permit exceeding the limitations

imposed by the water crop rule, have standing as substantially

affected persons to challenge the validity of that rule. It is

further held that all of the intervenors, as water suppliers

within the jurisdictional confines of the respondent SWFWMD and


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therefore subject to its rules, have a sufficient interest

in the proceeding so as to allow them to intervene as

parties.

The remaining issue for determination in this pro-

ceeding is whether Rule 16J-2.11(3) constitutes an invalid

exercise of delegated legislative authority. Chapter 373,

Part II, Florida Statutes, is the legislative act which

governs the permitting of consumptive uses of water. Section

373.223(1), Florida Statutes, lists the statutory criteria

required to be met prior to the issuance of a consumptive use

permit. That section reads as follows:

373.223. Conditions for a permit.-

(1) To obtain a permit pursuant to the
provisions of this chapter, the applicant
must establish that the proposed use of
water:
(a) Is a reasonable beneficial use as
defined in s. 373.019(5); and,
(b) Will not interfere with any prcni- ntly
existing legal use of wator; and
(c) Is consistent with the public interest.

A "reasonable-beneficial use" is defined in 373.0t9(4) as

"the use of water in such quantity as is
necessary for economic and efficient
utilization for a purpose and in a manner
which is both reasonable and consistent
with the public interest."

Section 373.171, Florida Statutes, empowers the respondent

SWFWMD to promulgate rules and regulations not inconsistent

with other provisions of Chapter 373.


The rule in question herein, Rule 16J-2.11, lists

in subsection(l) the three statutory conditions for a CUP

contained in Florida Statutes, 373.223(1). The rule then

goes on to state several instances wherein a.CUP will be

denied. One of these conditions is the challenged portion

of Rule 16J-2.11; to wit, subsection (3) which states

that the


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"issuance of a permit will be denied if the amount
of water consumptively used will exceed the water
crop of lands owned, leased, or otherwise controlled
by the applicant "

Thus, the challenged portion of the rule .dds a fourth criterion

to the three statutory criteria set by the legislature.

The undersigned has carefully searched the statutory

provisions of Chapter 373 for any indication of authority for

SWFWMD to add the water crop rule as a condition to the con-

sumptive use permitting process. No such authority can be found.

No agency has inherent rulemaking authority. Florida

Statutes, Section 120.54(14). The authority of administrative

agencies is derived from the Legislature. When the Legislature

has clearly set forth the criteria to be utilized in evaluation

of permits, an administrative rule which enlarges those criteria

by the addition of a further criterion is invalid. The fourth

criterion added by the respondent requires an applicant to

own, lease or otherwise control one acre of land for every 1,000

gallons of water per day applied for ihn the ,permit. application.

This requirement ties water withdrawal to land ownership, and

there is no legislative authority for such a requirement. An

agency can exercise its authority only as prescribed by statute,

and prescribed statutory criteria must be observed. A statute

enacted by the Legislature which sets conditions for a permit

may not be amended by an administrative agency by promulgating a

rule which adds further conditions. Likewise, the "reasonable-

beneficial use" standard contained in 373.223(1)(a) and defined

in S373.019(4) cannot be restricted to 1,000 gallons per day

per acre on land owned, leased or otherwise controlled by an

applicant. As pointed out in the case of City of Cape Coral v.

GAC Utilities, Inc. of Fla., 281 So 2d 493 (Fla. 1973), any

reasonable doubt as to the lawful existence of a particular power

that is being exercised by an administrative agency must be


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resolved against the exercise thereof, and the further exercise

of the power should be arrested. In this instance, there is no

legislative authority for SWFWMD to enact a rule which establishes

the water crop concept as a condition for granting or denying a

consumptive use permit.

The respondent urges that the requirement of the

challenged rule is not a mandatory criterion for the issuance

of a permit, and thus it does not conflict with the statutory

conditions listed in S373.223(1). As evidence of this contention,

SWFWMD points to the exception provision of subsection (5) of the

rule, and claims that subsection (3), the water crop rule, is only

utilized as a threshold tool for evaluating permit applications.

The established administrative interpretation by an agency of its

own rules should be accorded great weight, and the undersigned

does accord great weight to the agency's interpretation and

established implementation of the water crop rule in a permissive

fashion. Nevertheless, there is no st.atut.ory authority to make

water withdrawal levels dependent in any manner upon land owner-

ship. The exception provision of subsection (5), while indicating

the nonmandatory intent of subsection (3), is of no avail in

establishing the validity of the challenged water crop rule. It

contains nb standards for its application and permits unbridled

discretion on the part of SWFWMD in granting or denying exceptions.

In addition to the fact that the .Legislature did not

delegate to the water management districts the authority to set

water withdrawal levels according to the amount of land owned,

leased or controlled, the water crop rule conflicts with the

Florida Supreme Court's decision in Village of Tequestra v. Juniper

Inlet Corp., 371 So. 2d 663 (Fla. 1979). The water crop rule

states the amount of water available throughout the District.



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In effect, it reserves water to those owners of land within the

District who.have not applied-for a permit but who may wish to

use the water in the future. The Tcquestra case recognizes that'

Chapter 373 makes no provision for the continuation of an un-

exercised common law right to use the water under one's land.

Finally, the evidence adduced at the hearing clearly

illustrates that the water crop theory cannot be used to

accurately determine the amount of water which can be consumptively

used on any specific piece of land. This is due to the variety

of hydrological factors which must be considered for each given

parcel of land and the wide variety of such factors throughout

the District. The witnesses presented by the respondent agreed

that from a regulatory standpoint, a CUP should never be denied

based solely upon the water crop rule. To do so would be hydro-

logically invalid. As such, it must be concluded that the water

crop rule is arbitrary and capricious in nature and is an unsound

method of regulating and determining the issuance of consumptive

use permits.

The conclusions of the Florida Joint Administrative

Procedures Committee are not binding on a Division of Adminis-

trative Hearings Hearing Officer in reaching a determination as

to the validity of a rule under Chapter 120. For this reason,

the evidence adduced at the hearing regarding this issue is

deemed irrelevant and immaterial.

In summary, it is the conclusion of the undersigned

Hearing Officer that the challenged water crop rule is invalid in

that it exceeds SWFWMD's statutory authority, it impermissibly

conflicts with Chapter 373, Florida Statutes, it creates property

rights to water contrary to Chapter 373 and the decision of

Village of Tequestra v. Jupiter Inlet Corp., 371 So. 2d 663 (Fia.

1979) and it is hydrologically unsound and accordingly arbitrary

and capricious in nature.


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FINAL' ORDER

Based upon the findings of fact and conclusions of

law recited above,

IT IS ORDERED THAT Rule 16J-2.11(3), Florida

Administrative Code,. constitutes an invalid exercise of dele-

gated legislative authority and is therefore declared invalid.


Done and ordered this


--- day of April, 1980,


in Tallahassee, Florida.


Copies furnished;

John T. Allen, Jr.
4508 Central Avenue
St. Petersburg, Florida 33711

Kenneth E. Apgar
403 North Morgan Street
Suite 102
Tampa, Florida 33602

L. M. Blain
Thomas E. Cone, Jr.
Post Office Box 399
Tampa, Florida 33601

Jay T. Ahern
5060 U.S. 41 South
Brooksville, Florida 33512


Robert Bruce Snow
Post Office Box 2060.
Brooksville, Florida 33512

Gerald A. Figurski
4025 Moon Lake Road
New Port Richey, Florida 33551

Jeannette M. Haag
Haag and Haag
1900 West Main Street
Inverness, Florida 32650


)IANE D. TREMOR
hearing Officer
divisionn of Administrative Hearings
01 Collins Building
'allahassee, Florida 32301
904) 488-9675


Randall N. Thornton
Post Office Box 58
Lake Panasoffkee, Florida 33538

John I'. Wondcl
Wcndel, Broderick, Chritton and
Klepetko, Chartered
Post Office Box 5378
Lakeland, Florida 33802

Robert S. Ryder
320 NW Third Avenue
Post Office Box 1635
Ocala, Florida 32670


Carl R. Linn
214 Municipal Building
St. Petersburg, Florida


33701


Carroll Webb, Executive Director
Administrative Procedures Committee
120 Holland Building
Tallahassee, Florida 32301

Liz Cloud, Chief
Bureau of Administrative Code
1802 Capitol Building
Tallahassee, Florida 32301


-18-




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