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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
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