Booker Creek Pres., Inc. v. SW FLA. WATER MGT. DIST.

534 So. 2d 419, 1988 WL 96447
CourtDistrict Court of Appeal of Florida
DecidedSeptember 22, 1988
Docket87-556
StatusPublished
Cited by7 cases

This text of 534 So. 2d 419 (Booker Creek Pres., Inc. v. SW FLA. WATER MGT. DIST.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Booker Creek Pres., Inc. v. SW FLA. WATER MGT. DIST., 534 So. 2d 419, 1988 WL 96447 (Fla. Ct. App. 1988).

Opinion

534 So.2d 419 (1988)

BOOKER CREEK PRESERVATION, INC. Manasota 88, Inc. and Sierra Club, Appellants,
v.
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT, Appellee.

No. 87-556.

District Court of Appeal of Florida, Fifth District.

September 22, 1988.
Rehearing Denied December 17, 1988.

*420 Peter B. Belmont, St. Petersburg, for appellants.

Kent A. Zaiser, Deputy Gen. Counsel, and A. Patricia Allen, Sr. Atty., Southwest Florida Water Management Dist., Brooksville, for appellee.

Roger W. Sims and Lawrence E. Sellers, Jr., Holland & Knight, Tallahassee, for amicus curiae, Florida Phosphate Council, Inc.

SHARP, Chief Judge.

Booker Creek Preservation, Inc., Manasota 88, Inc., and Sierra Club challenge the twelve exemptions created by the Southwest Florida Water Management District (the "District") in its newly adopted rule which establishes permitting criteria for isolated wetlands. Appellants appeared at the public hearings held by the District prior to its adoption of the rule. They timely appeal from an order of the District which adopted the rule[1] and take the position that none of the exemptions contained in the rule are valid or authorized by section 373.414. We agree in part.

Section 373.414(1) required the District to "adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department [Department of Environmental Regulation] for purposes of dredging and filling. Section 373.414 provides:

373.414 Wetlands. —
(1) By March 31, 1987, for those water management districts to which the department has delegated the responsibility for administration of its stormwater rule, each district shall adopt a rule which establishes specific permitting criteria for certain small isolated wetlands which are not within the jurisdiction of the department for purposes of regulation of dredging and filling. The rule shall include:
(a) One or more size thresholds of isolated wetlands below which impacts on fish and wildlife and their habitats will not be considered. These thresholds shall be based on biological and hydrological evidence that shows the fish and wildlife values of such areas to be minimal;
(b) Criteria for review of fish and wildlife and their habitats for isolated wetlands larger than the minimum size;
(c) Criteria for the protection of threatened and endangered species in isolated wetlands regardless of size and land use; and
(d) Provisions for consideration of the cumulative and offsite impacts of a project or projects.
(2) This section does not affect the authority of the water management districts to regulate impacts on water quality and water quantity.

Earlier, the District was given the responsibility for overseeing the management and storage of surface waters within its territory in Part IV of Chapter 373. As part of its enforcement tools, the District was empowered to measure and regulate dams, impoundments, reservoirs, and appurtenant works (§ 373.409), to require permits for the construction or alteration (§ 373.413), maintenance and operation of such structures (§ 373.416). In contrast with section 373.414, all three of these earlier sections employ precatory rather than mandatory directions to the District; e.g., "the governing board ... may require such permits and impose such reasonable *421 conditions as are necessary." §§ 373.413(1), 373.416(1), 373.409(1) Fla. Stat. Further, section 373.413(1) and 373.416(1) both expressly exclude from coverage "the exemptions set forth in this part."

To implement the surface water management provisions, the District adopted rule 40D-4.051, Florida Administrative Code. That rule contains ten activities which the District exempted from the permitting requirements of Part IV of Chapter 373:

40D-4.051 Exemptions.
The following activities are exempt from permitting under this chapter:
(1) The activities specified in sections 373.406, and 403.812, Florida Statutes.
(2) The construction, alteration, or operation of surface water management systems which satisfy the following requirements:
(a) The total land area does not equal or exceed 10 acres;
(b) The area of impervious surface will not equal or exceed 2 acres;
(c) The activities will not be conducted in wetlands;
(d) The activities will not be conducted in existing lakes, streams, or other watercourses;
(e) The surface water management system will not utilize drainage pumps or operable discharge structures;
(f) The activities will not utilize storm drainage facilities larger than one 24-inch diameter pipe, or its hydraulic equivalent;
(g) Discharges from the site will meet applicable state water quality standards, as set forth in chapter 17-3 and rule 17-4.242;
(h) The surface water management system meets the requirements of chapter 17-25 "Regulation of Stormwater;"
(i) The activities can otherwise reasonably be expected not to have significant adverse water resource impacts; and
(j) The surface water management system can be effectively maintained.
(3) Any project, work or activity which has received all governmental approvals necessary to begin construction and is under construction prior to October 1, 1984.
(4) Any project, work or activity which received a surface water management permit from the District prior to October 1, 1984.
(5) Any project, work or activity which did not require a surface water management permit from the District and had received all other necessary governmental approvals to begin construction or operation prior to October 1, 1984.
(6) Any phased or long term buildout project, including a development of regional impact, planned unit development, development with a master plan or master site plan, or similar project, which has received local or regional approval prior to October 1, 1984, if:
(a) The approval process requires a specific site plan and provides for a master drainage plan approved prior to the issuance of a building permit, and
(b) The developer has notified the District of its intention to rely upon this exemption on or before April 1, 1985.
Projects exempt under this subsection shall continue to be subject to the District's surface water management rules in effect prior to October 1, 1984.
(7) Mining, mining related activities and mining reclamation, except for phosphate. Projects exempt under this subsection shall continue to be subject to the District's surface water management rules in effect prior to October 1, 1984.
(8) (a) All normal and necessary farming and forestry operations as are customary for the area, which can be conducted without the construction of a new surface water management system.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Save Anna Maria, Inc. v. Dept. of Transp.
700 So. 2d 113 (District Court of Appeal of Florida, 1997)
DeMario v. Franklin Mortg. & Inv. Co.
648 So. 2d 210 (District Court of Appeal of Florida, 1994)
Ago
Florida Attorney General Reports, 1994
Manasota-88, Inc. v. State, Department of Environmental Regulation
567 So. 2d 895 (District Court of Appeal of Florida, 1990)
Cook v. Southwest Florida Water Management District
556 So. 2d 526 (District Court of Appeal of Florida, 1990)
Adam Smith Enterprises, Inc. v. STATE, DEPT. OF ENV. REG.
553 So. 2d 1260 (District Court of Appeal of Florida, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
534 So. 2d 419, 1988 WL 96447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/booker-creek-pres-inc-v-sw-fla-water-mgt-dist-fladistctapp-1988.