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)
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