First District Interprets Florida Agency Rulemaking Authority
 
March 13, 2001
 
Roger W. Sims- Orlando

This decision is of significance as the most recent interpretation of the Florida Administrative Procedure Act requirement that rules be authorized by specific statutory authority.

South Shores Properties Partners (Partners) applied to Southwest Florida Water Management District (SWFWMD) for approval to develop 720 acres on Tampa Bay south of the City of Tampa. The property had an existing canal system separated from the bay by an earthen berm. The Partners took the position that the only SWFWMD permit needed was a standard general permit for minor surface water management systems (i.e., project drainage), and that an environmental resource permit (ERP) assessing impacts of the project was not required.

The Save the Manatee Club (Club) objected on the basis that an ERP was needed to assess the impacts of opening the berm and allowing project boat traffic access to the bay. The impact of proposed development on wildlife is one of the factors SWFWMD must consider in deciding whether to issue an ERP.

In taking the position that no ERP was necessary, the Partners relied on certain exemptions from ERP review approved before October 1, 1984. SWFWMD staff agreed with this position. The Club then filed a challenge before the Division of Administrative Hearings, seeking invalidation of the exemptions relied upon by the Partners [as provided in the SWFWMD rules at sections 40D-4.051(3), (5) and (6)].

Specifically, the Club argued that the enabling statute [§ 373.414(9)] does not authorize exemptions solely on the basis of prior governmental approvals. The Administrative Law Judge (ALJ) agreed and the exemptions were declared invalid. SWFWMD filed an appeal.

The Court of Appeal reviewed the ALJ’s decision against the specific language in the Florida Administrative Procedure Act (APA) which requires that

“…an agency may adopt only rules that implement or interpret the specific powers and duties granted by the enabling statute. No Agency shall have the authority to adopt a rule only because it is reasonably related to the purpose of the enabling legislation and is not arbitrary and capricious or is within the agency’s class of powers and duties….” §120.52(8), Fla. Stat. (1999)

The “class of powers and duties” standard had been used by the same Court of Appeal in 1998 to uphold rule criteria adopted by the St. Johns River Water Management District [St. Johns River Water Management District v. Consolidated Tomoka Land Co., 717 So. 2d 72 (Fla. 1st DCA 1998)]. This decision was subsequently rejected by the legislature, which amended section 120.52(8) to include the language barring the “class of powers and duties” standard.

Thus, the Court in Save the Manatee Club accepted the legislative mandate and adopted a narrow reading of §120.52(8), noting that rulemaking is a function “within the exclusive authority of the legislature”. 773 So. 2d at 598.

The opinion goes on to discuss the parties’ arguments concerning the authority for exemptions granted by the enabling statutes, particularly section 373.414(9), Florida Statutes. The court made it clear, however, that it would not second-guess the legislature again.

For years, private sector interests in Florida complained that the regulatory agencies were adopting rules to restrict growth and development far beyond the intent of the legislature. The Amendments to section 120.52(8) were intended in part to end overly-zealous environmental protection by agencies willing to read their authority with an eye towards restricting the issuance of permits and other approvals. The application of these amendments to restrict developer-friendly exemptions is, to say the least, an ironic, if not an unintended consequence of the legislative mandate. Stay tuned to see what happens during the 2001 session of the Florida Legislature.

Southwest Florida Water Management District v. Save Manatee Club and South Shores Properties Partners, LTD., 773 So. 2d 594 (Fla. 1st DCA 2000)