MICCOSUKEE TRIBE OF INDIANS OF FLORIDA, THE FRIENDS OF THE EVERGLADES, THE FLORIDA KEYS FISHING GUIDES ASSOCIATION, FISHERMEN AGAINST DESTRUCTION OF THE ENVIRONMENT, CLEAN WATER ACTION, FLORIDA CHAPTER OF THE SIERRA CLUB, AND FLORIDA AUDOBON SOCIETY, APPELLANTS,
v.
STATE OF FLORIDA, DEPARTMENT OF ENVIRONMENTAL PROTECTION AND ENVIRONMENTAL REGULATION COMMISSION, APPELLEES
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Environmental groups and the Miccosukee Tribe appealed the Department of Environmental Protection's summary denial of their petition requesting a numerical phosphorus standard for Everglades waters. The court reversed, holding that the Secretary lacked authority to deny the petition because the Environmental Regulation Commission has exclusive standard-setting authority under Florida law.
The Secretary violated administrative procedure by summarily denying the petition without first submitting it to the Commission. The Environmental Regulation Commission has exclusive standard-setting authority under Florida law, and the Secretary's powers do not include authority to deny petitions for water quality standards.
[1] A petition for rulemaking concerning water quality standards must be submitted to the Environmental Regulation Commission when the Commission exercises exclusive standard…
[2] The Secretary of the Department of Environmental Protection lacks the authority to summarily deny a petition for rulemaking that falls within the exclusive purview of the…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The commission shall exercise the exclusive standard setting authority of the department.”
Establishes the Commission's exclusive jurisdiction over standard-setting, which the Secretary cannot exercise.
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Join FLexlaw to unlock all legal intelligenceThe Miccosukee Tribe and environmental organizations filed a petition for rulemaking with the Department of Environmental Protection, requesting estab…
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PER CURIAM.
The Miccosukee Tribe of Indians of Florida and other plaintiffs [collectively referred to as Miceosukees], appeal from an order entered by the Department of Environmental Protection [Department] summarily denying their petition for rulemaking. We reverse.
The Miceosukees filed a petition for rule-making with the Department, pursuant to section 120.54(5), Florida Statutes (1993), requesting that the Environmental Regulation Commission [Commission], a branch of the Department, establish a numerical standard to limit concentrations of phosphorous in the surface waters of the Everglades Protection Area and contiguous Florida waters. Subsequently, the Secretary of the Department issued an order summarily denying the petition for rulemaking. This appeal follows.
The Miccosukees contend that the Secretary of the Department violated administrative procedure and due process by summarily dismissing their petition for rulemaking where the Commission has exclusive authority over water quality standards. We agree.
The powers and duties of the Commission are delineated as follows: “The commission shall exercise the exclusive standard setting authority of the department....” § 403.804(1), Fla. Stat. (1993). Additionally, the Secretary’s powers and duties are limited as follows: “The Secretary shall have the powers and duties of the heads of departments ... except that the Environmental Regulation Commission shall exercise the exclusive standard-setting authority pursuant to s. 403.804.” § 403.805(1), Fla. Stat. (1993). A “standard” is defined as “any rule of the Department of Environmental Regulation relating to air and water quality, noise, solid-waste management, and electric and magnetic fields associated with electrical transmission and distribution lines and substation facilities.” § 403.803(13), Fla. Stat. (1993). We find that the language of this legislative mandate is clear and unambiguous and that the Department improperly summarily denied the Miccosukees’ petition for rulemaking of a numerical water quality standard without first submitting the petition to the Commission as clearly and mandatorily required by the pertinent provisions of the Florida Statutes. §§ 403.803(13), 403.804(1), 403.805(1), Fla. Stat. (1993); see O’Connor v. Dade County, 410 So. 2d 605 (Fla. 3d DCA 1982).
Accordingly, because there has been a material error in procedure,1 we reverse and remand for the Miccosukee’s petition to be submitted to the Commission.
Reversed and remanded.
. § 120.68(8), Fla. Stat. (1993).
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ST. Johns River Water Mgmt. Dist. v. Zellwood Drainage & Water Control Dist., 677 So. 2d 342 (Fla. 1st DCA 1996)…appellant to have taken would have been to present its research and data to the Department of Environmental Protection and request that the department adopt numerical standards for the water bodies in issue. See Miccosukee Tribe of Indians v. State, 656 So. 2d 505 (Fla. 3d DCA 1995). AFFIRMED. KAHN and DAVIS, JJ., concur.…
Authorities Cited
- Barfield Burch, Jr. v. State, 410 So. 2d 605 (Fla. 3d DCA 1982)
- O'Connor v. Dade Cnty., 410 So. 2d 605 (Fla. 3d DCA 1982)