Fla. Stat. § 373.114 : Natural Resources; Conservation, Reclamation, And Use — Water Resources — Land and Water Adjudicatory Commission; review of district rules and orders; department review of district rules

Current through Chapter 269 of the 2016 Legislative Session

(1) Except as provided in subsection (2), the Governor and Cabinet, sitting as the Land and Water Adjudicatory Commission, have the exclusive authority to review any order or rule of a water management district, other than a rule relating to an internal procedure of the district or a final order resulting from an evidentiary hearing held under s. 120.569 or s. 120.57 or a rule that has been adopted after issuance of a final order resulting from an evidentiary hearing held under s. 120.56, to ensure consistency with the provisions and purposes of this chapter. Subsequent to the legislative ratification of the delineation methodology pursuant to s. 373.421(1), this subsection also shall apply to an order of the department, or a local government exercising delegated authority, pursuant to ss. 373.403- 373.443, except an order pertaining to activities or operations subject to conceptual plan approval pursuant to chapter 378 or a final order resulting from an evidentiary hearing held under s. 120.569 or s. 120.57.

(a) Such review may be initiated by the department or by a party to the proceeding below by filing a request for review with the Land and Water Adjudicatory Commission and serving a copy on the department and on any person named in the rule or order within 20 days after adoption of the rule or the rendering of the order. For the purposes of this section, the term "party" means any affected person who submitted oral or written testimony, sworn or unsworn, of a substantive nature which stated with particularity objections to or support for the rule or order that are cognizable within the scope of the provisions and purposes of this chapter. In order for the commission to accept a request for review initiated by a party below, with regard to a specific order, three members of the commission must determine on the basis of the record below that the activity authorized by the order would substantially affect natural resources of statewide or regional significance. Review of an order may also be accepted if three members of the commission determine that the order raises issues of policy, statutory interpretation, or rule interpretation that have regional or statewide significance from the standpoint of agency precedent. The party requesting the commission to review an order must allege with particularity, and the commission must find, that:

1. The order is in conflict with statutory requirements; or

2. The order is in conflict with the requirements of a duly adopted rule.

(b) Review by the Land and Water Adjudicatory Commission is appellate in nature and shall be based solely on the record below unless the commission determines that a remand for a formal evidentiary proceeding is necessary to develop additional findings of fact. If there is no evidentiary administrative proceeding resulting from a remand or referral for findings of fact by the commission, then the facts contained in the proposed agency action or proposed water management district action, including any technical staff report, shall be deemed undisputed. The matter shall be heard by the commission not more than 60 days after receipt of the request for review, unless waived by the parties; provided, however, such time limit shall be tolled by a referral or remand pursuant to this paragraph. The commission may refer a request for review to the Division of Administrative Hearings for the production of findings of fact, limited to those needed to render the decision requested, to supplement the record, if a majority of the commission determines that supplementary findings of fact are essential to determine the consistency of a rule or order with the provisions and purposes of this chapter. Alternatively, the commission may remand the matter to the agency below for additional findings of fact, limited to those needed to render the decision requested, to supplement the record, if a majority of the commission determines that supplementary findings of fact are essential to determine the consistency of a rule or order with the provisions and purposes of this chapter. Such proceedings must be conducted and the findings transmitted to the commission within 90 days of the remand or referral.

(c) If the Land and Water Adjudicatory Commission determines that a rule of a water management district is not consistent with the provisions and purposes of this chapter, it may require the water management district to initiate rulemaking proceedings to amend or repeal the rule. If the commission determines that an order is not consistent with the provisions and purposes of this chapter, the commission may rescind or modify the order or remand the proceeding for further action consistent with the order of the Land and Water Adjudicatory Commission only if the commission determines that the activity authorized by the order would substantially affect natural resources of statewide or regional significance. In the case of an order which does not itself substantially affect natural resources of statewide or regional significance, but which raises issues of policy that have regional or statewide significance from the standpoint of agency precedent, the commission may direct the district to initiate rulemaking to amend its rules to assure that future actions are consistent with the provisions and purposes of this chapter without modifying the order.

(d) In a review under this section of a construction permit issued pursuant to a conceptual permit under part IV, which conceptual permit is issued after July 1, 1993, a party to the review may not raise an issue which was or could have been raised in a review of the conceptual permit under this section.

(e) A request for review under this section shall not be a precondition to the seeking of judicial review pursuant to s. 120.68 or the seeking of an administrative determination of rule validity pursuant to s. 120.56.

(f) The Florida Land and Water Adjudicatory Commission may adopt rules to set forth its procedures for reviewing an order or rule of a water management district consistent with the provisions of this section.

(g) For the purpose of this section, it shall be presumed that activity authorized by an order will not affect resources of statewide or regional significance if the proposed activity:

1. Occupies an area less than 10 acres in size, and

2. Does not create impervious surfaces greater than 2 acres in size, and

3. Is not located within 550 feet of the shoreline of a named body of water designated as Outstanding Florida Waters, and

4. Does not adversely affect threatened or endangered species.

This paragraph shall not operate to hold that any activity that exceeds these limits is presumed to affect resources of statewide or regional significance. The determination of whether an activity will substantially affect resources of statewide or regional significance shall be made on a case-by-case basis, based upon facts contained in the record below.

(2) The department shall have the exclusive authority to review rules of the water management districts, other than rules relating to internal management of the districts, to ensure consistency with the water resource implementation rule as set forth in the rules of the department. Within 30 days after adoption or revision of any water management district rule, the department shall initiate a review of such rule pursuant to this section.

(a) Within 30 days after adoption of a rule, any affected person may request that a hearing be held before the secretary of the department, at which hearing evidence and argument may be presented relating to the consistency of the rule with the water resource implementation rule, by filing a request for hearing with the department and serving a copy on the water management district.

(b) If the department determines that the rule is inconsistent with the water resource implementation rule, it may order the water management district to initiate rulemaking proceedings to amend or repeal the rule.

(c) An order of the department requiring amendment or repeal of a rule may be appealed to the Land and Water Adjudicatory Commission by the water management district or any other party to the proceeding before the secretary.

Fla. Stat. § 373.114

s. 11, ch. 75-22; s. 72, ch. 83-310; s. 26, ch. 93-213; s.21, ch. 97-160; s.7, ch. 98-146; s.8, ch. 2002-261.