Title: Osceola County, a political subdivision of the State of Fla. vs. St. Johns River Water Management District In The Supreme Court of Florida, Appeal From the District Court of Appeal, Fifth District- Petitioner's Brief on the Merits
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Title: Osceola County, a political subdivision of the State of Fla. vs. St. Johns River Water Management District In The Supreme Court of Florida, Appeal From the District Court of Appeal, Fifth District- Petitioner's Brief on the Merits
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Language: English
Publisher: Peeples Earl & Blank, Attorneys At Law
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Spatial Coverage: North America -- United States of America -- Florida
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Abstract: Jake Varn Collection - Osceola County, a political subdivision of the State of Fla. vs. St. Johns River Water Management District In The Supreme Court of Florida, Appeal From the District Court of Appeal, Fifth District-Petitioner's Brief on the Merits (JDV BOX 91)
General Note: Box 23, Folder 1 ( Miscellaneous Water Papers, Studies, Reports, Newsletters, Booklets, Annual Reports, etc. - 1973 -1992 ), Item 38
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
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IN THE SUPREME COURT OF FLORIDA


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

Petitioner,

vs.

ST. JOHNS RIVER WATER
MANAGEMENT DISTRICT,

Respondent.


Case No. 68,791


Appeal From The District Court Of Appeal, Fifth District







PETITIONER'S BRIEF ON THE MERITS


Neal D. Bowen, Esquire
Osceola County Attorney
Co-Counsel for Petitioner
17 South Vernon Avenue
Kissimmee, Florida 32741
(305) 847-1200


William L. Earl, Esquire
PEEPLES, EARL & BLANK, P.A.
Counsel for Petitioner
One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 358-3000


PEEPLES, EARL &S BLANK
ATTORNEYS AT LAW









TABLE OF CONTENTS


Page


TABLE OF AUTHORITIES . . . .


PRELIMINARY STATEMENT . . . .


STATEMENT OF THE CASE AND OF THE FACTS .

A. The Case . . .

B. The Facts . . .

1. Legislative Framework .

2. Administrative Review and
Proposed Action on Brevard's
Permit Application . .


SUMMARY OF THE ARGUMENT . . .

ARGUMENT . . . . .

I. CHAPTER 373, FLORIDA STATUTES. DOES NO


iii


. 2

S . 2

. . 2

. . 3



. 5


. . 10

. . 11


T


GRANT IMPLIED STATUTORY AUTHORITY TO
ALLOW THE ISSUANCE OF PERMITS FOR
DIVERSION OF WATER BEYOND LEGISLATIVELY
ESTABLISHED JURISDICTIONAL BOUNDARIES

A. Section 373.223(2) Provides No
Basis for Implied Statutory Authority

B. Rulemaking Authority Should Not Be
Implied Where the Legislature Has
Expressly Spoken . . .

C. A Statewide Water Resource Program
Does Not Imply Statutory Authority
For Extra-Territorial Permitting .

D. The Decision Below Improperly
Bifurcates the Reasonable Beneficial
Use Permitting Test . . .

E. Extra-Territorial Permitting is
Inconsistent and Cannot Be Reconciled
With Numerous Other Provisions of
Chapter 373 . . . .


PEOPLES, EA.L & BLANK
ATTORNEYS AT LAW


. .









F. All Doubts Concerning the Exercise
of an Asserted Administrative Power
Should be Resolved Against its
Exercise . . . . .


THE LOWER COURT'S FINDING OF IMPLIED
STATUTORY AUTHORITY VIOLATES THE
NON-DELEGATION PROHIBITION OF ARTICLE II,
SECTION 3 OF THE FLORIDA CONSTITUTION . .


A. The Authority to Modify the Boundaries
of Agency Jurisdiction May Not Be
Delegated . . . . .

B. Chapter 373 Provides No Meaningful
Legislative Standards or Guidelines . .

1. Administrative Standards
Cannot Fill a Legislative Void . .

C. There Can Be No Meaningful Judicial
Review of Interdistrict Permitting
Absent Legislative Standards . .


-- CONCLUSION . . . . . .


26





28



29


32


33



35


37


CERTIFICATE OF SERVICE
























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II.












TABLE OF AUTHORITIES


Armstrong v. City of Edgewater,
157 So.2d 422 (Fla. 1963) .

Askew v. Cross Key Waterways,
372 So.2d 913 (Fla. 1978) .

Carlile v. Game & Fresh Water
Fish Commission, 354 So.2d 362,
(Fla. 1977) . . .

City of Cape Coral v. GAC Utilitie
Inc., of Florida, 281 So.2d 493
(Fla. 1973) . . .

Conner v. Joe Hatton, Inc.,
216 So.2d 209 (Fla. 1968) .

Cross Key Waterways v. Askew,
351 So.2d 1062 (Fla. 1st DCA
1977) . . . .


. . . 16, 17


. . . 9, 10, 28



S . 14

s,

. . . 27


S . 29



S . .. 29, 30, 31,
32, 33, 35,
36


D'Alemberte v. Anderson,
349 So.2d 164 (Fla. 1977) . .. . 29

Department of Business Regulation
v. National Manufactured Housing
Federation, Inc., 370 So.2d 1132
(Fla. 1979) . . . . . 29

Department of Professional Regulation v.
Pariser, 483 So.2d 28 (Fla. 1st DCA 1985) . 9, 15, 16,
17

Dickinson v. State, 227 So.2d 36 (Fla. 1969). . 29, 32

Florida Bridge Co. v. Bevis,
363 So.2d 799 (Fla. 1978) . . .. 26

Florida Department of Law Enforcement
v. Hinson, 429 So.2d 723 (Fla. 1st DCA
1983) . . . . . .. 26

Harrington & Company, Inc. v. Tampa Port
Authority, 358 So.2d 168 (Fla. 1978). . . 32


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CASES


PAGE








PAGE


- Josephson v. Autrey, 96 So.2d 784
(Fla. 1957) . . . . . 31

Orr v. Trask, 464 So.2d 131 (Fla. 1985) . 29

Osceola County v. St. Johns River Water
Management District, 486 So.2d 616 (Fla.
5th DCA 1986) . . . .... .. .2, 5, 8, 9,
11, 18

Rebich v. Burdine's and Liberty Mutual
Insurance Co., 417 So.2d 284 (Fla. 1st
DCA 1982) . . . ......... 16

St. Johns River Water Management District
v. Deseret Ranches of Florida, Inc.,
421 So.2d 1067 (Fla. 1982). . .. . 18

State ex. rel. School Board of Martin
County v. Department of Education,
317 So.2d 68 (Fla. 1975) . . . .24

State Department of Environmental
Regulation v. Falls Chase Special
Taxing District, 424 So.2d 787
(Fla. 1st DCA 1982) . . .. . 26

State Department of Transportation v.
Mayo, 354 So.2d 359 (Fla. 1977) . .. . 26

State v. Roberts, 419 So.2d 1164
(Fla. 2d DCA 1982). . . . . .. 31

Thayer v. State, 335 So.2d 815 (Fla. 1976). . 16

Village of Tequesta v. Jupiter Inlet
Corporation, 371 So.2d 663 (Fla. 1979). . 4, 13

Woodgate Development Corp. v. Hamilton
Investment Trust, 351 So.2d 14 (Fla. 1977). . 24


CONSTITUTIONAL PROVISIONS


Art. II, S 3, Fla. Const. . . ... 10, 28, 29,
35, 37

Art. V, S 3(b)(3), Fla. Const. . . 2, 9





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PAGE

' STATUTES

S 120.54(7), Fla. Stat. (1985). . . 12

S 163.3161(3), Fla. Stat. (1985). . . 6

S 163.3167(1)(b), Fla. Stat. (1985) . ... 7

S 163.3177(6)(c), Fla. Stat. (1985) . . 7

5 163.3177(6)(d), Fla. Stat. (1985) . . 7

S Ch. 373, Fla. Stat. (1985) . . .. 3, 11, 24,
25, 26, 31,
32, 33

373.016(3), Fla. Stat. (1985) . . .. 4, 19, 20,
21


5 373.026(7), Fla. Stat. (1985)

S 373.0395, Fla. Stat. (1985)

5 373.069, Fla. Stat. (1985) .

S 373.069(1), Fla. Stat. (1985)

S 373.069(1)(a)-(e), Fla. Stat.

S 373.141(1), Fla. Stat. (1971)

5 373.216, Fla. Stat. (1985).


S 373.219(1), Fla. Stat. (1985)

S 373.223, Fla. Stat. (1985).


. . . 4, 19, 20

. . . 18

. . . 4, 16


. . 14

. . 14


(1985).


. . . 13

. . . 5, 19, 20,
21

. . . 5

. . . 10, 12, 15,
25


5 373.223(1), Fla. Stat. (1985) . . 22

S 373.223(1)(b), Fla. Stat. (1985). .... . 25

S 373.223(2), Fla. Stat. (1985) . . 9, 11, 12,
15, 16, 27

S 373.246, Fla. Stat. (1985) . . .. 24

S 373.246(1), Fla. Stat. (1985) . 24




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PAGE

S 373.246(2), Fla. Stat. (1985) . . 24

S 373.246(7), Fla. Stat. (1985) . . 25


FLORIDA LAWS

Ch. 57-380, S 8, Laws of Fla. . .. . 13

Ch. 72-299, Laws of Fla. . . . 3

Ch. 72-299, Part I, 3, Laws of Fla. . ... 20

Ch. 72-299, Part I, S 5(7), Laws of Fla.... 20

Ch. 72-299, Part II, S 3, Laws of Fla. . 13, 14

Ch. 73-190, S 12, Laws of Fla . .. 4

Ch. 76-243, S 10, Laws of Fla. . . 14

Ch. 77-104, S 113, Laws of Fla. . . 4

Ch. 82-101, S 8, Laws of Fla. . . . 20


FLORIDA ADMINISTRATIVE CODE

Fla. Admin. Code Rule 17-40.04(2), (1985) ...... 22

Fla. Admin. Code Rule 17-40.05, (1985). . 15, 34

Fla. Admin. Code Rule 17-101.040(10)(a),
(1985). . . . .... 21

Fla. Admin. Code Rule 17-101.040(10)(a)
(1) (3), (1985) . . . . 5

Fla. Admin. Code Rule 40A-2.031, (1985) . 21

Fla. Admin. Code Rule 40B-2.031, (1985) . 21

Fla. Admin. Code Rule 40C-2.012(2), (1985). . 21

Fla. Admin. Code Rule 40C-2.031, (1985) ..... 5, 21

Fla. Admin. Code Rule 40C-2.312, (1985) ..... .. 12, 15

Fla. Admin. Code Rule 40D-2.031, (1985) . 21


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PAGE

SFla. Admin. Code Rule 40E-2.031, (1985) . 5, 21


SECONDARY AUTHORITIES

Hamann, "Consumptive Water Use Permitting"
I Florida Environmental and Land Use Law 10-12
(Environmental & Land Use Law Section,
The Florida Bar, 1986). . . . 13

Kemp, "Interbasin Transfers of
Water in Florida", 56 Fla. B.J. 9 (1982). . .. 33

Maloney, "Florida's New Water Resources
Law" 10 U. Fla. L. Rev. 119 (1957). . . 13

Maloney, "Florida Water Law,"
Cox ed. (Va. Poly Inst., 1978) . . .. 13, 19

Maloney, Plager, Ausness, and Canter
"Florida Water Law," 210 (1980) . . .. 19

Maloney, Ausness, and Morris,
"A Model Water Code", (1972). . . .. 13, 22

Maloney, Capehart, and Hoofman,
"Florida's 'Reasonable Beneficial'
Water Use Standard: Have East and
West Met?", 31 U. Fla. L. Rev.
253 (1979). . . . . . 22

Martin, "Legislative Delegations
of Power and Judicial Review--Preventing
Judicial Impotence", 8 FSU L. Rev.
43 (1980) .. . ... .. . . 29, 35

Martin, "The Delegation Issue
in Administrative Law Florida vs.
Federal," 52 Fla. B.J. 35 (January, 1979) . 33, 34














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PRELIMINARY STATEMENT

The record below is presently not prepared and will not be

transmitted until October 20, 1986. Petitioner, Osceola County

will, therefore, cite to the record as set forth in its Appendix

to this Brief. Parties and other matters frequently referred to

are as follows:


1. App. Citations to the partial record provided in

Petitioner's Appendix accompanying this Brief.


2. Osceola County. Petitioner herein and the Petitioner in

the original prohibition proceedings below.


3. St. Johns. The St. Johns River Water Management

District is the Respondent in this Court as it was

below.


4. DER. The Florida Department of Environmental Regulation

is the agency which the court below found had implied

statutory authority to delegate certain powers to St.

Johns. DER was an amicus below.


5. Brevard County. Brevard County was the permit applicant

below. A dependent special district of Brevard County,

the South Brevard Water Supply Authority, appeared as

amicus below.







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STATEMENT OF THE CASE AND OF THE FACTS


A. The Case


This case is before the Court pursuant to Article V, Section

3(b)(3), Florida Constitution. Osceola County seeks reversal of

a decision by the District Court of Appeal, Fifth District,l

finding implied legislative authority for an administrative

agency, the Florida Department of Environmental Regulation, to

delegate to yet another agency, the St. Johns River Water

Management District, the power to issue permits to withdraw,

transport, and use water not located within the limits of St.

Johns's statutorily delineated geographic boundaries. The deci-

sion below presents first impression questions of statewide

importance that will fundamentally affect the future permitting

and distribution of Florida's finite water resources.

B. The Facts


This case began in 1984, when Brevard County applied to the

South Florida Water Management District ("South Florida"), one of

Florida's five regional water management districts, for a con-

sumptive use permit to develop a large well field in the Holopaw

area of Osceola County.2 This permit application was unusual in



1/ Osceola County v. St. Johns River Water Management
District, 486 So.2d 616 (Fla. 5th DCA 1986).

2/ App. 27, Affidavit of Dr. Gleason, Water Resources
Director, South Florida Water Management District.
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that Brevard County, where the water was to be consumed, is

located entirely within the jurisdictional boundaries of another

water management district, the St. Johns River Water Management

District ("St. Johns"). Brevard intended to construct a major

well field and withdraw and transport large volumes of water from

Osceola County in the South Florida Water Management District

to the St. Johns River Water Management District to be used in

South Brevard County.3 Because Brevard's application required

that the legislatively established geographic, jurisdictional

line between these two water management districts be crossed, it

is referred to as an interdistrict water permit.4


1. Legislative Framework


The statute controlling the permitting of water use and

transport does not prescribe how to proceed with applications

such as that filed by Brevard County.5 Chapter 373, Florida

Statutes, known as the "Florida Water Resources Act of 1972,"6

replaced several predecessor statutes and a common law system of

case-by-case judicial water rights determinations with a compre-

hensive administrative system of regulation, resource protection,






3/ App. 19 (Brevard Permit Application).

4/ The term "interdistrict" and "transdistrict" permit will
be used interchangeably herein.

5/ App. 66, St. Johns's Response to Order to Show Cause.
6/ Ch. 72-299, Laws of Fla.
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and water use permitting.7 To implement this system, the

legislature, effective July 1, 1973, created six regional water

management districts,8 including the St. Johns River Water

Management District and the South Florida Water Management

District. The geographic limits of each district's jurisdiction

was statutorily set forth by the legislature in detailed metes

and bounds legal descriptions.9

This overall statutory scheme vests DER with general super-

visory powers over water resources and the water management

districts, and authorizes DER to exercise any power authorized to

be exercised by a water management district.10 At the same time,

the statute requires that "to the greatest extent practicable

such power should be delegated to the governing board of a water

management district" because "water resource problems of the

state vary from region to region."11

In dealing specifically with the subject of water use per-

mitting, the legislature provided that either DER or a governing

board of a particular water management district could require






7/ See Village of Tequesta v. Jupiter Inlet Corporation, 371
So.2d 663, 670 (Fla. 1979).

8/ Ch. 73-190, S 12, Laws of Fla. (in 1977, the districts
were reorganized into five districts. Ch. 77-104, S 113, Laws of
Fla.).

9/ See S 373.069, Fla. Stat. (1985).

10/ 373.026(7), Fla. Stat. (1985).

11/ 5 373.016(3), Fla. Stat. (1985).
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permits for consumptive use of water.12 Subsequently, the

legislature mandated that each district, by October 31, 1983,

implement consumptive use permitting programs.13 DER, by admi-

nistrative rule, has delegated its water use permitting powers to

South Florida and St. Johns.14 The water management districts

presently permit all water use but have no independent authority

to permit the use of water located outside their own borders.15

Both South Florida and St. Johns, by rule, have formally imple-

mented the Act's consumptive use permitting powers within their

respective districts.16


2. Administrative Review and Proposed Action on
Brevard's Permit Application

As part of its review of Brevard's permit application, South

Florida twice requested additional information from Brevard

County concerning the impacts such a large scale withdrawal would

have on water resources in the South Florida Water Management

District at the site of the proposed well field in Osceola

County. Despite these requests, Brevard "failed to provide any






12/ 373.219(1), Fla. Stat. (1985).

13/ See S 373.216, Fla. Stat. (1985).

14/ See Fla. Admin. Code Rule 17-101.040(10) (a) (1),(3).

15/ See Osceola County, 486 So.2d at 619 (no independent sta-
tutory authorization).
16/ Fla. Admin. Code Rules 40E-2.031 (South Florida),
40C-2.031 (St. Johns).
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information regarding the impact of the proposed withdrawal in

Osceola County."17 Rather than comply with South Florida's

request, Brevard instead filed the same incomplete application in

its "home district," St. Johns, leaving its application in South

Florida pending and incomplete. Both Brevard applications

addressed only the "need issues" relating to the demand for the

water in St. Johns, and failed to provide any information

regarding the reasonableness or impact of this large scale

withdrawal on water resources.18

Osceola County notified St. Johns of its concerns regarding

Brevard's permit.19 Osceola County was concerned because the

legislature has imposed express statutory duties on counties con-

cerning the conservation, planning, and supply of water re-

sources. Local governments are statutorily mandated, among other

things, to plan for the most appropriate uses of water, to faci-

litate the adequate and efficient provision of water, and to con-

serve, develop, utilize, and protect natural resources including

water.20






17/ App. 27, Affidavit of Dr. Gleason, Water Resources
Director, South Florida Water Management District (emphasis in
original).

18/ App. 26, Affidavit of R. Moresi, former Director, Division
of Resource Management, St. Johns River Water Management
District.
19/ App. 11, see Osceola's Verified Petition for Prohibition.

20/ 163.3161(3), Fla. Stat. (1985).
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Local governments must also adopt comprehensive plans to

guide future development and growth.21 These plans are required

to contain a conservation element for the conservation, develop-

ment, utilization, and protection of natural resources including

water.22 In addition, these mandated local comprehensive plans

must contain a potable water element to provide and plan for the

future provision of potable water in the county.23 Local govern-

ments are also legislatively mandated to "assess their current,

as well as projected, water needs and sources for a ten year

period."24

Notwithstanding Osceola's objections and the absence of

information on the reasonableness of the permit or the impact of

interdistrict diversion, St. Johns determined that the applica-

tion was sufficient and issued a notice of proposed agency

action. St. Johns had limited its review only to the need for

water in Brevard County and failed "to address the impact of the

proposed withdrawal on the water resources in Osceola County or

on the water users of Osceola County, as required by the

reasonable-beneficial use test for consumptive use permits set

forth in Chapter 373, Florida Statutes."25 Over Osceola County's


21/ S 163.3167(1) (b), Fla. Stat. (1985).

22/ S 163.3177(6)(d), Fla. Stat. (1985).

23/ S 163.3177(6)(c), Fla. Stat. (1985).

24/ S 163.3177(6)(d), Fla. Stat. (1985).

25/ App. 26, Affidavit of R. Moresi, former Director, Division
of Resource Management, St. Johns River Water Management
District.
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objections, St. Johns scheduled Brevard County's application to

permit the withdrawal of water in the South Florida District for

a hearing on May 7, 1985.26

Osceola sought a writ of prohibition from the district court,

questioning the subject matter jurisdiction of St. Johns to act

upon a permit for the withdrawal, use, and transport of water

located outside its legislatively defined jurisdictional

boundaries.27 The district court granted an order to show cause

prohibiting St. Johns from acting on Brevard's permit pending the

district court's decision on the merits.

On March 6, 1986, the lower court rendered its decision.28

After rejecting St. Johns's assertion that Osceola lacked

standing,29 a divided district court construed Chapter 373 to hold

that "the legislature has impliedly granted to D.E.R. the

authority to allow inter-district diversions of water, and such

authority is properly delegated to the water management

districts."30




26/ App. 13.

27/ App. 11.

28/ App. 1.

29/ In summarily disposing of the standing issue, the court
stated "that counties in this state have various statutory duties
and responsibilities with respect to planning for water manage-
ment and conservation, sufficient to give them an interest in any
activity of the state or of the agencies of the state as may
appear to affect those duties and responsibilities." Osceola
County, 486 So.2d at 617.

30/ Osceola County, 486 So.2d at 620.
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The district court conceded that water management districts

do not have independent authority to allow interdistrict diver-

sions, but predicated its finding of implied authority upon a

belief that nothingig in the Water Resources Act prohibits

D.E.R. from allowing inter-district diversions of water,"31 that

statutory authority was necessarily implied from Section

373.223(2) and from DER's grant of statewide power to regulate

the management of water resources. The dissent asserted that the

real issue was "whether or not one water management district has

jurisdiction to act on a consumptive use permit outside of its

statutory boundaries, under the provisions of the Florida Water

Resources Act of 1972."32

Pursuant to Article V, Section 3(b)(3), Florida Constitution,

Osceola County petitioned to invoke this Court's jurisdiction on

grounds that the district court's decision directly conflicted

with Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1978) and

Department of Professional Regulation v. Pariser, 483 So.2d 28

(Fla. 1st DCA 1985), and because the decision expressly affects

the statutory water planning and provision duties of a class of

constitutional officers, county commissioners. On August 29,

1986, this Court ordered the filing of Osceola's brief on the

merits.






31/ Osceola County, 486 So.2d at 619.

h 32/ Osceola County, 486 So.2d at 620 (Sharp, J., dissenting).
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PEEPLES, EARL & BLANX
ATTORNEYS AT LAW








SUMMARY OF THE ARGUMENT


There is no express statutory authority for water management

districts to issue permits for water beyond their legislatively

delineated jurisdictional limits. The language and history of

the controlling statutory provision, section 373.223, Florida

Statutes, provide no support for the lower court's finding of

necessarily implied administrative authority. The lower court's

holding is, in fact, contrary to the present scheme of regional

water permitting, statutory permitting standards, and specific

legislatively delineated water management district boundaries.

The decision below directly conflicts with the holding in

Askew v. Cross Key Waterways, 372 So.2d 913 (Fla. 1979), by

finding implied statutory authority to administratively modify

water management district boundaries in violation of Florida's

nondelegation doctrine, under which an administrative agency may

not exercise the legislative function of modifying the geographic

boundaries of administrative jurisdiction. Assuming such implied

statutory authority could be delegated to an administrative

agency, the matter would still be unconstitutional under Article

II, Section 3, because there are no legislative standards to

guide the permitting of interdistrict diversions of water.

Without such legislative standards, neither citizens nor the

courts will be able to know how, when, or where such permits are

lawful.





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PEEPLES, EA L & BLANK
ATTORNEYS AT LAW










ARGUMENT


I.

CHAPTER 373, FLORIDA STATUTES, DOES NOT
GRANT IMPLIED STATUTORY AUTHORITY TO ALLOW
THE ISSUANCE OF PERMITS FOR DIVERSION OF
WATER BEYOND LEGISLATIVELY ESTABLISHED
JURISDICTIONAL BOUNDARIES.



The court below was unable to find any express legislative

grant authorizing DER to give a water management district the

authority to issue permits for withdrawal, use, and transport of

water located in another water management district. The district

court's finding of implied statutory authority for the permitting

of interdistrict diversions was predicated on section 373.223(2),

Florida Statutes. Such a finding contravenes the language and

legislative history of that section.


A. Section 373.223(2) Provides No Basis for
Implied Statutory Authority


The lower court specifically predicated its "necessarily

implied" statutory authority for interdistrict permitting by St.

Johns on section 373.223(2), Florida Statutes.33 Section

373.223(2) provides:

The governing board or the department may
authorize the holder of a use permit to
transport and use ground or surface water
beyond overlyin_ land, across county boun-
daries, or outside the watershed from which it




33/ Osceola County, 486 So.2d at 619.
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is taken if the governing board or department
determines that such transport and use is
consistent with the public interest, and no
local government shall adopt or enforce any
law, ordinance, rule, regulation, or order to
the contrary.

(emphasis added).

Careful analysis of this section and its history is crucial

to any finding or "necessarily implied" statutory authority to

allow interdistrict diversions. In addition to the lower court's

reliance, St. Johns has identified this provision as the sole

authority for its rule purporting to authorize it to permit water

use and transport beyond its district boundaries.34 DER has also

asserted that section 373.223 "plainly authorizes" DER to allow

water resources to be transferred from one district to another.35

This statute, on its face, makes no reference to the

transportation of water across legislatively established district

boundaries. The statute enumerates three types of water

transport that may occur within a water management district:

transport of ground water beyond the land lying above it, known

as "overlying land"; transport of water across county boundaries;

and transport of water beyond a watershed. S 373.223(2), Fla.

Stat. (1985). To understand the meaning of these provisions one






34/ See Fla. Admin. Code Rule 40C-2.312. Section 120.54(7),
Florida Statutes, requires that each agency's rules identify the
specific section or subsection of Florida Statutes being imple-
mented. St. Johns has named Section 373.223 as the statute being
implemented in its interdistrict diversion.

35/ See App. 79, DER's Response to Order to Show Cause.
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must first understand the common law rule which the current

statute supplanted. See generally Village of Teguesta v. Jupiter

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

The common law generally prohibited the transport and use of

water beyond riparian land when dealing with surface waters, or

overlying lands when groundwater was being removed. See Hamann,

"Consumptive Water Use Permitting," I Florida Environmental and

Land Use Law 10-12 (Environmental and Land Use Law Section, The

Florida Bar, 1986); Maloney, "Florida Water Law," Legal and

Administrative Systems for Water Allocation and Management,

35-36 (Cox ed. 1978).

A limited statutory exception to this common law rule was

passed in 1957. See Ch. 57-380, S 8, Laws of Fla. This enact-

ment, originally codified as section 373.141(1), Florida

Statutes, abrogated the common law prohibition and authorized the

diversion of excess waters "beyond riparian or overlying land."

See Maloney, "Florida's New Water Resources Law," 10 U. Fla. L.

Rev. 119, 132 (1957). The drafters of the Model Water Code,

the basis of the subsequent 1972 Florida Water Resources Act,

expanded the language of the 1957 exception and included it in

the proposed Model Water Code. See Maloney, Ausness, and Morris,

A Model Water Code S 2.02(2) (1972)(commentary). When the

legislature enacted the Florida Water Resources Act of 1972, it

incorporated this proposal and amended the 1957 wording to elimi-

nate the excess water requirement and to include transport out-




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side the watershed from which the water was taken. See

Ch. 72-299, Part II, S 3, Laws of Fla.

The enactment of the 1972 Water Resources Act, however, pro-

vided no authority for transporting water across county boun-

daries or across the statutory boundaries of the water management

districts established by the legislature in the very same Act.

Id. These omissions are critical since these specific enactments

are in derogation of the common law and must be strictly

construed. E.g., Carlile v. Game & Fresh Water Fish Commission,

354 So.2d 362, 364 (Fla. 1977).

Subsequent legislative amendments went even further to

foreclose a broad construction of these legislative grants. In

1976, subsequent to the establishment of the water management

districts and with full cognizance of their role and regulatory

function, the legislature added an additional authorization to

allow the transport of water "across county boundaries." Ch.

76-243, S 10, Laws of Fla. This legislation resolved any doubts

as to the right to permit the use and transport of water across

boundaries within a water management district, but included no

language extending permitting authority across legislatively

defined water management district boundaries.


In section 373.069(1), Florida Statutes, the legislature has

painstakingly delineated, in metes and bounds, the precise

geographic boundaries of each of the five water management

districts. S 373.069(1) (a)-(e), Fla. Stat. (1985). If the



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legislature desires that these boundaries be expanded, it need

only add to the exceptions enumerated in section 373.223(2). It

has not done so. The history and language of section 373.223

provide no authority for the lower court's finding of implied

authority to modify the legislatively established geographic

jurisdictional limits of such districts. The court's finding of

an implied exception should be reversed.


B. Rulemaking Authority Should Not Be
Implied Where the Legislature Has
Expressly Spoken.

Despite the absence of express statutory authority or any

authority reasonably implied from section 373.223, the district

court nonetheless found implied authority for St. Johns to permit

the withdrawal and transport of water located beyond its legisla-

tively delineated boundaries. Both DER and St. Johns have

adopted rules seeking to administratively implement or to provide

standards for interdistrict diversions of water. St. Johns's

rule cites only section 373.223 as a basis for its implementing

statutory authority and provides no criteria or standards. See

Fla. Admin. Code Rule 40C-2.312. DER's rule purports to

establish administrative standards for the permitting of inter-

district transfers of water despite the absence of express

authority or any legislative standards. See Fla. Admin. Code

Rule 17-40.05.

The lower court's affirmation of such rules, on the basis of

implied statutory authority, directly conflicts with a recent



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decision of the District Court of Appeal, First District.

Department of Professional Regulation v. Pariser, 483 So.2d 28

(Fla. 1st DCA 1985), announced an express and logical limitation

on the doctrine of implied delegation, directly conflicting with

the holding below. Pariser holds that the rule of expression

unius est exclusio alterius limits the agency authority which may

be implied from a statute in the face of express legislative enu-

meration of agency powers. Id. at 29.36

The lower court's findings are contrary to Pariser because in

section 373.223(2), and in the boundary definitions of section

373.069, the legislature expressly enumerates those circumstances

and locations where water may be transported. Those provisions,

however, provide no rulemaking authority to permit interdistrict

- diversions across district boundaries established in section

373.069 by the legislature.

Thus, the legislature has chosen not to include water manage-

ment district boundaries among the specific statutorily enu-

merated boundaries across which water management districts may

permit the transport of water. See S 373.223(2), Fla. Stat.

(1985). In construing a statute, courts should be extremely

cautious in adding to words enacted by the legislature.

Armstrong v. City of Edgewater, 157 So.2d 422, 425 (Fla. 1963);





36/ The rule of expression unius est exclusio alterius provides
that where a statute enumerates things upon which it operates, it
excludes those things not expressly mentioned. E.g., Thayer v.
State, 335 So.2d 815, 817 (Fla. 1976).
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S Rebich v. Burdine's and Liberty Mutual Insurance Co., 417 So.2d

284, 285 (Fla. 1st DCA 1982).

In the instant case, there is no indication whatsoever that

the legislature intended an implied authority allowing a water

management district to issue permits for water located beyond the

geographical limits the legislature has so carefully delineated.

When there is doubt as to legislative intent or where speculation

is necessary, such doubts should be resolved against the power of

courts to supply missing words in the statute. Armstrong, 157

So.2d at 425.

As it applies to the instant case, the court in Pariser

noted:


We recognize 'that rulemaking authority may be
implied to the extent necessary to properly
implement a statute governing the agency's
statutory duties and responsibilities,'
[citation omitted] however, when the legisla-
ture expressly has provided a method for
implementation .. we think it would be
erroneous to additionally imply such authority


Pariser, 483 So.2d at 29.

This language is applicable to the case at bar. Nothing in

Chapter 373 can be found to sustain a purported implied authority

to adopt administrative rules when the legislature has expressly

provided three instances when transport is authorized and when it

has expressly delineated districts within which permits are to

issue.37 The decision below should be reversed.



37/ None of the water management districts other than St.
Johns have adopted rules purporting to give them authority to
implement or permit interdistrict diversions.

PEOPLES, EAnL & BLANK
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C. A Statewide Water Resources Program Does
SNot Imply Statutory Authority for Extra-
Territorial Permitting.




Another predicate to the lower court's finding of implied

statutory authority was its belief that "[t]he statutory

authority to allow inter-district diversions of water is

necessarily implied in the grant to D.E.R. of statewide power to

regulate the management of water resources ." Osceola

County, 486 So.2d at 619. Such a conclusion misreads the basic

structure of Florida's presently implemented program for per-

mitting water use and transport in Florida.

Florida's unique system of water management, although compre-

hensive and statewide in scope, was designed to be flexible and

responsive to local needs, but regionally based and controlled.

The legislature, in enacting Chapter 373, provided a

"comprehensive statewide plan" for the protection and management

of state waters. Osceola County, 486 So.2d at 619. This same

plan, however, "divided" the state into five water management

districts with provision for both general supervision by DER and

assurance that regional and basin concerns would be addressed.

See St. Johns River Water Management District v. Deseret Ranches

of Florida, Inc., 421 So.2d 1067, 1068, 1070-71 (Fla. 1982).38




38/ The legislature has further declared that "future growth
and development planning reflect the limitations of the available
groundwater or other available water supplies." S 373.0395, Fla.
Stat. (1985).
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The views of the Act's principal architect, the late Dean

Frank Maloney, provide insight into the uniqueness of Florida's

system and the importance of regional administration as the cor-

nerstone of regulation and management of a comprehensive state

water resources program:


The Water Management Districts were
established so that their boundaries conform
closely to hydrologic lines. Although a water
management district may have more than one
river basin within its geographic area, the
lands affected by or affecting any given river
basin should be within the jurisdiction of a
single water management district. The inde-
pendence of those districts from one another
permits diverse approaches to management of
water resources. Water management problems
vary from one district to another and solu-
tions acceptable to a District's residents
may also vary from district to district.

F. Maloney, S. Plager, R. Ausness and B. Canter, Florida Water

Law, 210 (1980) (emphasis supplied).


More importantly, the legislature established a two-tiered

system with general supervisory powers in DER, section

373.026(7), Florida Statutes, and with actual consumptive use

permitting to be delegated to the water management districts.

S 373.216, Fla. Stat. (1985). Recognition of the importance of

this regional concept is reflected in section 373.016(3),

Florida Statutes:


The Legislature recognizes that the water
resource problems of the state vary from
region to region, both in magnitude and
complexity. It is therefore the intent of
the Legislature to vest in the Department of
Environmental Regulation or its successor

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agency the power and responsibility to
accomplish the conservation, protection,
management, and control of the waters of the
state and with sufficient flexibility and
discretion to accomplish these ends through
delegation of appropriate powers to the
various water management districts .

(emphasis added).

Contrary to the assertions of St. Johns and DER below, DER is

not a statewide consumptive use permitting authority, nor may it

authorize the regional water management districts to exercise

statewide consumptive use permitting jurisdiction.39 In enacting

the Water Resources Act, the legislature intended for DER to play

two roles with respect to the independent water management

districts. First, DER would exercise general supervision over

the districts in the development of state water resources policy.

5 373.026(7), Fla. Stat. (1985). Second, DER would serve as an

interim permitting authority for those water management districts

that remained unprepared to implement their own permit systems.

See 373.016(3), Fla. Stat. (1985); S 373.026(7), Fla. Stat.

(1985). DER was authorized to exercise any power authorized to

be exercised by a water management district. See Ch. 72-299,

Part I, S 3, S 5(7), Laws of Fla. Subsequently, however, the

legislature mandated that each water management district imple-

ment consumptive use permitting. Ch. 82-101, S 8, Laws of Fla.

(codified at 373.216, Fla. Stat. (1985)). DER, by rule, has






39/ App. 63, St. Johns Response to Order to Show Cause;
App. 79, DER's Response to Order to Show Cause.
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divested itself of whatever consumptive use permitting powers it

may have had within the boundaries of each water management

district. See Fla. Admin. Code Rule 17-101.040(10)(a). This is

consistent with the mandate of section 373.016(3).

The statutory language does not contemplate, nor have the

parties below asserted, statutory authority for DER exercising

concurrent consumptive use permitting jurisdiction with the water

management districts. This is particularly true because the

legislature recently required each district to implement a con-

sumptive use permitting program by 1983, and, in fact, each has

done so. See 5 373.216, Fla. Stat. (1985); Fla. Admin. Code

Rules 40A-2.031, 40B-2.031, 40C-2.031, 40D-2.031, 40E-2.031.

The legislature's logic behind confining consumptive use per-

mitting power to within the boundaries of each water management

district is apparent. If unknown and unforeseeable applicants

from one district of the state are permitted to withdraw water

from any district, irrespective of legislatively established

district boundary lines, Chapter 373's carefully crafted balance

between regional permitting and planning, envisioned by Chapter

373, will be undermined.40 Such a bold change should not be



40/ St. Johns itself describes the important relationship bet-
ween permitting and planning in the allocation of water within
its boundaries. Fla. Admin. Code Rule 40C-2.012(2).
(2) The policy of the District is to structure and exe-
cute its planning and research functions in order to
increase the District's knowledge and understanding of
water resources within the District and the problems of,
or associated with, the District's water resources to
develop a regulatory program based on and reflecting the
District's continually increasing knowledge and
understanding of those water resources.
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judicially accomplished by implying statutory authority to allow

interdistrict permitting through DER's general supervisory

powers.


D. The Decision Below Improperly Bifurcates
the Reasonable Beneficial Use Permitting
Test.


Under the Water Resources Act, applicants proposing new con-

sumptive uses of water within a water management district must

establish that the use: (1) is reasonable beneficial, (2) will

not interfere with existing legal users, and (3) is consistent

with the public interest. See S 373.223(1), Fla. Stat. (1985).

The reasonable beneficial use test is the cornerstone of the

consumptive use permitting standard. It requires that the water

management district evaluate an application both in terms of the

need for the water and the impact of the withdrawal on district

environmental and water resources. See, Maloney, Capehart,

Hoofman, "Florida's Reasonable Beneficial Use Water Standards:

Have East and West Met?," 31 U. Fla. L. Rev. 253 (1979); A Model

Water Code at 170. Thus, before issuing a water use permit, the

governing board of a district must balance the need for the water

with the impact on the resource of withdrawing such water. See

also App. 86, Fla. Admin. Code Rule 17-40.04(2).

The instant case provides a graphic example of how the per-

mitting of interdistrict diversions without legislative authority

or standards will undermine the policy behind the reasonable




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beneficial use test. Brevard failed to provide South Florida

with requested information on water resource impacts in Osceola

County.41 Nevertheless, St. Johns, Brevard's home district, was

proceeding to a hearing on the permit without resource impact

information.42 Thus, St. Johns determined that Brevard's need for

the use met the reasonable beneficial standard without applying

or considering the impact upon the resource as required under the

two-part balancing test mandated by the legislature in

Chapter 373.43 This parochial "only look at the needs in our

district" approach is precisely what the legislature sought to

prevent by establishing five regional water management districts.

Each district balances water needs in the district against the

impact of water withdrawal by employing the reasonable beneficial

use test. Obviously, the legislature did not intend to enable

water management districts to bifurcate the reasonable beneficial

use test by issuing permits without evaluating and weighing need

versus impact on the resource. The lower court's decision inevi-

tably compels this result.







41/ App. 27, Affidavit of Dr. Gleason, Water Resources
Director, South Florida Water Management District (emphasis in
original).
42/ App. 11, Osceola County's Petition for Writ of
Prohibition.

43/ App. 25, Affidavit of R. Moresi, former Director, Division
of Resource Management, St. Johns River Water Management
District.
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E. Extra-Territorial Permitting Cannot Be
Reconciled with Numerous Other Provisions
of Chapter 373

A court should adopt that construction which can be har-

monized and reconciled with other provisions of the same act.

E.g., Woodgate Development Corporation v. Hamilton Investment

Trust, 351 So.2d 14, 16 (Fla. 1977); State ex rel. School Board

of Martin County v. Department of Education, 317 So.2d 68 (Fla.

1975). The lower court's creation of implied authority does not

harmonize with the unique nature and regional consumptive use

permitting scheme of Florida's Water Resources Act.

In addition to destroying the legislatively mandated,

reasonable-beneficial use balancing test, extra-territorial per-

mitting by water management districts is inconsistent with

numerous other provisions of Chapter 373. For example, statutory

provisions for declaration of water shortages in section 373.246,

Florida Statutes, represent an instance where the failure of the

legislature to grant express statutory authority for trans-

district permitting of water makes eminent sense. Subsection (1)

of section 373.246 requires the governing board or department to

formulate a water shortage plan for implementation.

5 373.246(1), Fla. Stat. (1985). Subsection (2) enables the

governing board or department to declare a water shortage within

the district, and impose such restrictions on consumptive users

as may be necessary to protect the water resources of the area

from serious harm. S 373.246(2), Fla. Stat. (1985). The statute




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further provides that if the governing board finds an emergency

exists due to a water shortage within any area of the district,

the governing board may issue final orders, including prohibiting

use of water resources of the district. 373.246(7), Fla. Stat.

(1985).

Nothing in this section grants authority for one district to

impose its water shortage plan on another district to protect

either the users or the resource. Nor is there any authority

which would suggest which district's plan should prevail in the

event of an emergency. Were St. Johns able to authorize water

transport or withdrawal from another district, does it not follow

that it could also impose its water shortage plan upon that

district to assure the viability of its own extra-territorial

source? Such a result would promote district provincialism and

wreak havoc on the resource planning responsibilities of both

districts.

Another example of the implausibility of implied extra-

territorial permitting jurisdiction exists in Chapter 373

provisions relating to existing legal users and competing appli-

cants. Section 373.233, Florida Statutes, provides a means for

the districts to resolve conflicts among competing applicants for

the district's water resources. Section 373.223(1) (b), Florida

Statutes, protects existing legal users against new applicants.

If St. Johns were authorized to issue extra-territorial permits,

must existing legal users in the district where the resource is




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located apply in each and every water management district to

ensure that their rights are protected against foreign applicants

seeking extra-territorial permits from foreign districts?

The lower court's creation of implied statutory authority can

only create chaos. If the legislature desires to implement

extra-territorial water permitting, it can do so very easily by

amending Chapter 373 and providing guidelines for district

interactions. The lower court's finding of implied extra-

territorial permitting authority is inconsistent with the statu-

tory scheme of Chapter 373 and should be reversed.


F. All Doubts Concerning the Exercise of an
Asserted Administrative Power Should Be
Resolved Against its Exercise.

An administrative agency is a creature of statute. It

possesses only those powers expressly conferred by statute or

necessarily implied therefrom. E.g., Florida Bridge Co. v.

Bevis, 363 So.2d 799, 802 (Fla. 1978); State Department of

Transportation v. Mayo, 354 So.2d 359, 361 (Fla. 1977).

Agencies such as DER and the various water management

districts cannot expand their jurisdiction beyond that of their

legislative mandate. See, e.g., Florida Department of Law

Enforcement v. Hinson, 429 So.2d 723, 724 (Fla. 1st DCA 1983);

State Department of Environmental Regulation v. Falls Chase

Special Taxing District, 424 So.2d 787, 793 (Fla. 1st DCA 1982).

To allow one agency, as has the lower court, to derivatively

expand the scope of another agency's legislatively established



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geographical jurisdiction is even more erroneous.

Legislative history and rules of statutory construction

demonstrate that section 373.223(2), Florida Statutes, does not

provide water management districts with implied power to allocate

water resources outside their boundaries. Doubts about the

lawful existence of the asserted implied power to issue permits

for interdistrict diversions should be resolved against the exer-

cise thereof. See City of Cape Coral v. GAC Utilities, Inc., of

Florida, 281 So.2d 493, 496 (Fla. 1973).

Where Chapter 373 speaks clearly by the absence of any men-

tion of authority to permit interdistrict diversions, expressly

authorizes other diversions, and provides an overall statutory

scheme contrary to the lower court's holding, this Court must

conclude that the legislature did not intend such implied

administrative authority. The decision below should be reversed.

























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II.

THE LOWER COURT'S FINDING OF IMPLIED STATUTORY
AUTHORITY VIOLATES THE NON-DELEGATION
PROHIBITION OF ARTICLE II, SECTION 3 OF THE
FLORIDA CONSTITUTION.


The district court's decision directly conflicts with this

Court's holding in Askew v. Cross Key Waterways, 372 So.2d 913

(Fla. 1978). Cross Key holds that the legislature may not dele-

gate the "fundamental legislative task of determining which

geographic areas and resources are in greatest need of

protection." Id. at 919. Conflict exists because the court

below found implied statutory authority for an administrative

agency, the DER, to exercise the fundamental legislative task of

authorizing a water management district to issue permits for

water located outside that district's statutorily described

geographic jurisdiction.44

Florida's non-delegation doctrine is rooted in the fundamen-

tal democratic principle of separation of powers. Unlike its

federal counterpart, Article II, Section 3 of the Florida

Constitution expressly provides that:


Branches of government. The powers of
the state government shall be divided into
legislative, executive and judicial branches.
No person belonging to one branch shall exer-
cise any_powers appertaining to either of the
other branches unless expressly provided
herein.




44/ The non-delegation doctrine issue and this Court's Cross
Key decision were argued and briefed for the lower court.
App. 36.
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(emphasis added).

This Court has repeatedly held that the legislature may not

abdicate its law-making function to administrative agencies.

E.g., Department of Business Regulation v. National Manufactured

Housing Federation, Inc., 370 So.2d 1132, 1135 (Fla. 1979);

D'Alemberte v. Anderson, 349 So.2d 164, 169 (Fla. 1977); Conner

v. Joe Hatton, Inc., 216 So.2d 209 (Fla. 1968). Recently, in

Orr v. Trask, 464 So.2d 131, 134 (Fla. 1985), this Court again

reiterated its "historically strict view that Article II, Section

3 of the Florida Constitution, prohibits the delegation of

legislative powers absent meaningful legislative standards and

guidelines." See generally Martin, "Legislative Delegations of

Power and Judicial Review Preventing Judicial Impotence," 8 FSU

L. Rev. 43 (1980).

The non-delegation doctrine essentially provides that (1) the

legislature may not abdicate its responsibility for fundamental

and primary policy decisions such as delineating the scope of

agency jurisdiction, and (2) the legislature must supply adequate

guidelines to guide administrative agencies in tasks which are

properly delegated. Cross Key, 372 So.2d at 925. E.g.,

Dickinson v. State, 227 So.2d 36, 37 (Fla. 1969). Neither of

these tests are met by the lower court's holding.


A. The Authority to Modify the Boundaries of
Agency Jurisdiction May Not Be Delegated.

The legislative branch may not delegate to an agency of the

executive branch the policy function of designating the


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geographic area of concern subject to agency regulation. Cross

Key, 372 So.2d at 920. In Cross Key, the legislature attempted

to delegate, to the Administration Commission, authority to

establish "areas of critical state concern," within which the

Administration Commission would then regulate land use. Id. at

914. Unlike the instant case, the attempted delegation in Cross

Key was based on express statutory authorizing language accom-

panied b standards, albeit inadequate standards.45 Nonetheless,

this Court found the attempted delegation in Cross Key constitu-

tionally defective because it "reposits in the Administration

Commission the fundamental legislative task of determining which

geographic areas and resources are in greatest need of

protection." Id. at 919.

The court in Cross Key borrowed a quote from the lower court

to bring home the difficulties in conferring unfettered jurisdic-

tion upon an agency:


Up to the acreage limit, the Commission
is empowered to supersede as it chooses the
local governments regulating development in
historic Pensacola or St. Augustine, or at the
shores of the Atlantic and Gulf of Mexico to a
depth of a thousand feet, or in all acreage on
the Suwannee and St. Johns and their tribu-
taries or, indeed, in all the Florida Keys.
If Cedar Key, Ybor City, Palm Beach and the
path of the King's Road are found to be
historic resources of satisfactory importance,
they too may be designated.





45/ See Cross Key, 372 So.2d at 914, for a description of the
express delegation and accompanying standards invalidated in that
case.
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Cross Key, 372 So.2d at 919 (citing Cross Key Waterways v. Askew,

351 So.2d 1062, 1069 (Fla. 1st DCA 1977)).

The instant case provides yet another example of what will

happen if an administrative agency is permitted to usurp the

"fundamental legislative task" of establishing the limits of per-

mitting jurisdiction under Chapter 373. Under the lower court's

holding, the DER may, for example, authorize the South Florida

Water Management District -- whose jurisdiction has been care-

fully circumscribed by the legislature to conform, as nearly as

practicable, to hydrologic boundaries -- to issue a permit to

transport water the length of the state from Lake Jackson in Leon

County, for consumption in Orlando, Miami, or Key West. Just as

in Cross Key, this administrative overreaching of legislative

geographic boundaries allows an agency to circumvent the legisla-

ture and designate "the geographic area of concern which will be

subject to regulation." Cross Key, 372 So.2d at 920.

The exclusive legislative nature of the power to define the

geographic limits or applicability of jurisdiction is also

reflected in cases holding that a city council or county com-

mission may not delegate the legislative authority to modify or

amend geographic zoning districts. E.g., Josephson v. Autrey, 96

So.2d 784, 788 (Fla. 1957); State v. Roberts, 419 So.2d 1164,

1165 (Fla. 2d DCA 1982). In the instant case, the boundaries are

not zoning districts but legislatively established, geographi-

cally defined water management districts. In both instances,




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describing or modifying the geographic boundaries of such

districts is a legislative function. In the present case, it is

not the Act itself which is unconstitutional, but the interpreta-

tion and creation of implied authority forced upon the legisla-

tion by the court below. The decision below should be reversed.


B. Chapter 373 Provides No Meaningful
Legislative Standards or Guidelines.

Assuming the legislature could constitutionally delegate to

DER, and DER, in turn, could delegate to St. Johns, the authority

to permit withdrawal and transport of water located outside the

geographic borders of the district, there are no meaningful

legislative standards to guide such a double delegation. The

absence of standards also eliminates the means by which a court

could review the limits of such permitting authority.

In Cross Key, this Court held that "administration of

legislative programs must be pursuant to some minimal standards

and guidelines ascertainable by reference to the enactment

establishing the program." Cross Key, 372 So.2d at 925. See

also Harrington & Company _Inc. v. Tampa Port Authority, 358

So.2d 168, 170 (Fla. 1978); Dickinson v. State, 227 So.2d 36, 38

(Fla. 1969). In the present case, there are absolutely no

legislative standards as to how far one water management district

may go in seeking to import water from another area of the

state.

Although there is no "litmus test" to determine whether a




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PEEPLES, EARL & BLANK
ATTORNEYS AT LAW








legislative standard does or does not meet muster, one commen-

tator has suggested that the "important thing is to require

the legislature to 'legislate as far as practicable.'" Martin,

"The Delegation Issue in Administrative Law Florida vs.

Federal," 52 Fla. B.J. 35, 38 (January, 1979).

In the instant case, the legislature has not legislated as

"far as practicable." It has failed to provide even express sta-

tutory authority for the action at issue interdistrict per-

mitting much less legislative standards to govern DER or water

management districts in carrying out such authority. There are

no statutory standards for interdistrict diversions of water.

See Ch. 373, Fla. Stat. (1985). See also Kemp, "Interbasin

Transfers of Water in Florida," 56 Fla. Bar J. 9, 12 (1982).

Unlike Cross Key, where the legislature at least attempted to

provide standards which this Court held to be invalid, the deci-

sion below rests on implied authority to apply nonexistent

legislative standards.


1. Administrative Standards Cannot Fill a
Legislative Void.

Because there are no legislative standards, and due to the

obvious need for such standards, DER has attempted to administra-

tively promulgate its own standards to govern transport of water

across district boundaries. In its rules, DER purports to fill

the void of legislative standards with administrative guidelines

requiring that the transport be otherwise consistent with the




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public interest, that the present and projected needs of the

supply area be reasonably determined, that the major costs, bene-

fits, and environmental impacts be adequately determined, and

that the transport and use be approved by each district involved.

Fla. Admin. Code Rule 17-40.05.

Legislative standards are needed to avoid chaos when five

water management districts seek to obtain water not available in

their own districts by permitting water use and withdrawal from

other districts. DER's attempts to administratively bootstrap

interdistrict permitting standards is, no doubt, well inten-

tioned. Unfortunately, the constitutionally required test of

meaningful legislative standards can only be met by the

legislature:46



Legislators are presumably elected, at least
to some extent, on the basis of their stand on
various issues. It only seems to make sense
that we should require those legislators to
legislate 'as far as practicable' so that the
so called 'fundamental policy decisions' will
be made by them instead of the administrative
expert/ bureaucrat whose tenure in office will
most likely be unaffected by his/her respon-
siveness or unresponsiveness to the will of
the people.

The lower court's decision allows DER to use implied statu-

tory authority to promulgate self-conceived administrative stan-

dards. The decision below, therefore, does not meet the





46/ Martin, "The Delegation Issue in Administrative Law -
- Florida vs. Federal," 52 Fla. B.J. 35, 39 (Jan. 1979).
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separation of powers requirements of Article II, Section 3, of

the Florida Constitution.


C. There Can Be No Meaningful Judicial
Review of Interdistrict Permitting Absent
Legislative Standards.

One purpose of requiring meaningful legislative standards is

to provide benchmarks by which to gauge the lawfulness of admi-

nistrative actions. See generally Martin, "Legislative

Delegations of Power and Judicial Review Preventing Judicial

Impotence," 8 FSU L. Rev. 43 (1980). As this Court noted in

Cross Key:



A corollary of the doctrine of unlawful
delegation is the availability of judicial
review When legislation is so lacking in
guidelines that neither the agency nor the
court can determine whether the agency is
carrying out the intent of the legislature in
its conduct, then, in fact, the agency becomes
the lawgiver rather than the administrator of
the law.

Cross Key, 372 So.2d at 919.

Given the complete absence of legislative standards for

reviewing the permitting of interdistrict diversions, neither

this Court nor any other court will be able to undertake a

meaningful review of the legality of future interdistrict per-

mitting decisions. No one will know when, where, and how far a

water management district may go in issuing permits for water

transport to supplement that available within its own district.

The instant case is one in which the absence of express authority



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PEEPLES, EARL & BLANK
ATTORNEYS AT LAW









and any legislative standards makes administrative agencies the

lawgiver and not the administrator of the law. Cross Key, 372

So.2d at 919. The decision below should be reversed.




















































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PEEPLES, EARL & BLANK
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CONCLUSION




There is no express statutory authority for water management

districts to issue permits for water beyond their legislatively

delineated jurisdictional limits. The lower court's holding of

implied statutory authority has no basis in statutory history or

language. Even assuming implied authority existed, the exercise

of such implied authority violates Article II, Section 3, Florida

Constitution, by delegating to an administrative agency the

legislative function of transgressing or modifying its jurisdic-

tional boundaries.


The "implied power" to permit interdistrict diversions --

without legislative standards to determine how, when, or where

such permits are lawful -- makes such authority both highly

controversial and potentially disruptive of Florida's existing,

regional water permitting system. If the permitting of inter-

district diversions is to be allowed it should be upon clear

legislative authority, not judicial fiat based on implied

authority with no standards for review.


WHEREFORE, Osceola County respectfully requests that this

Court reverse the decision below and mandate issuance of a writ

prohibiting Respondent St. Johns from issuing permits for

withdrawal or transportation of water located beyond its legisla-

tively delineated boundaries.



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PEEPLES, EARL & BLANK
ATTORNEYS AT LAW









Respectfully submitted


Neal D. Bowen, Esquire
Osceola County Attorney
Co-Counsel for Petitioner
17 South Vernon Avenue
Kissimmee, Florida 32741
(305)'847-1200


PEEPLES, EARL & BLANK, P.A.
Counsel for Petitioner
One Biscayne Tower, Suite 3636
Two South Biscayne Boulevard
Miami, Florida 33131
Telephone: (305) 358-3000


By: _____ __ _
William L. Earl









































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PEEPLES, EARI &e BLANK
ATTORNEYS AT LAW









CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this c3 day of September, 1986, a

true copy of the foregoing has been provided by United States

mail to the following:


Vance W. Kidder, Esq.
St. Johns River Water
Management District
Post Office Box 1429
Palatka, Florida 32078-1429


Neal D. Bowen, Esq.
Osceola County Attorney
17 South Vernon Avenue
Kissimmee, Florida 32741


y


William L. Earl


































PEOPLES, EARL & BLANK
ATTORNEYS AT LAW




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