STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE SEMINOLE TRIBE OF FLORIDA;
CITY OF MIAMI; FLORIDA PULP AND
PAPER ASSOCIATION ENVIRONMENTAL
AFFAIRS, INC.; AND MARTIN
COUNTY,
Petitioners,
vs.
DEPARTMENT OF ENVIRONMENTAL
PROTECTION AND FLORIDA
ENVIRONMENTAL REGULATION
COMMISSION,

Case Nos. 16-4431RP

16-4836RP
16-4875RP
16-4912RP

Respondents.
_______________________________/
CORRECTED ORDER OF DISMISSAL
These consolidated cases came before the Administrative Law
Judge on the motions to dismiss filed by Respondents, which seek
to dismiss all of the petitions for hearing filed in these rule
challenge cases on the basis that they are untimely and
Petitioners lack standing. Responses in opposition to the
motions were filed by Petitioners. On September 7, 2016, a
hearing was held in Tallahassee to receive oral argument on the
issue of timeliness.
This Order is being corrected to add the word not to a
statement on page 7.
Background
On June 30, 2016, notice was published in the Florida
Administrative Register about the Environmental Regulation
Commissions (ERC) proposal to amend two existing rules. The
ERC is part of the Department of Environmental Protection
(DEP). 20.255(6), Fla. Stat. (2016). The ERC exercises the
standard-setting authority of DEP. 403.804(1), Fla. Stat
(2016).

The Register notice indicates the ERCs proposal to amend

Florida Administrative Code Rules 62-302.400 and 62-302.530.
Rule 62-302.400 contains surface water classifications and rule
62-302.530 contains surface water criteria for each
classification, in a chart. The ERC proposes to revise rule
62.302.400 to create a new sub-classification called Class I-B,
Treated Potable Water Supplies and to reclassify seven
Class III waters to the new Class I-B. The ERC proposes to
revise many of the human health-based water quality criteria in
rule 62-302.530.
The June 30 notice in the Register also notified the public
that a hearing would be held before the ERC on July 26, 2016, to
receive public comment. The hearing was held as scheduled.
Close in time to the June 30 notice in the Register, DEP
filed a rule package with the Joint Administrative Procedures
Committee (JAPC) for its review as required by section
120.54(3)(a)4., Florida Statutes. On July 20, JAPC issued a
letter to DEP with comments on the proposed rules. Among the
comments was a statement that the strike-through/underline
version of proposed rule 62-302.530 that appeared in the
Register notice made the changes to the rule incomprehensible.
In response to the JAPC comments, DEP decided to prepare
and publish in the Register a Notice of Correction. The
Notice of Correction was published in the Register on August 4.
The Notice of Correction provided some additional explanation of
the changes that were proposed for rule 62-302.530 and provided
a link to the DEP website where interested persons could find an
information only version of the rule, which contained
annotations to aid the reader in seeing how existing and
proposed criteria compared.
It is also stated in the Notice of Correction that the
department has revised the SERC [Statement of Estimated
Regulatory Costs] to reflect that a lower cost regulatory
alternative (LCRA) to revise certain criteria for the new
Class-I treated designated use was received on July 21, 2016,
but was immediately withdrawn.
Appearing in the same August 4 issue of the Register was a
separate Notice of Change to proposed rule 62-302.400. No
Petitioner objects to the proposed changes to rule 62-302.400.
On August 5, the Seminole Tribe of Florida filed a petition
challenging proposed rule 62-302.530. In its petition, the

Seminole Tribe states that the proposed human health-based

surface water quality criteria do not protect human consumption
at a subsistence level and, therefore, would injure members of
the Seminole Tribe who continue to exercise their customary and
traditional hunting, fishing, trapping and frogging rights.
The petition also states that, This petition is filed within 10
days of the date of that final hearing . . . and is therefore
timely.
However, the Seminole Tribes petition was electronically
filed with the Division of Administrative Hearings at 5:02 p.m.
on August 5, the tenth day following the ERC hearing. Pursuant
to Florida Administrative Code Rule 28-106.104(3) of the Uniform
Rules, any document received by the agency clerk after 5:00 p.m.
shall be filed as of 8:00 a.m. on the next regular business
day. Therefore, the official time of filing for the Seminole
Tribes petition was 8:00 a.m. on August 8, 2016. On this
basis, DEP moved to dismiss the Seminole Tribes petition as
untimely.
In its response to DEPs motion to dismiss, the Seminole
Tribe asserted that its petition was timely because under
section 120.56(2)(a), a petition can be filed within 20 days of
the date of publication of a notice of change to a rule and the
August 4 Notice of Correction qualifies as a notice of change.
The Seminole Tribe moved to amend its petition to add this
point of entry claim, as well as other unrelated allegations.
DEP objected to the Seminole Tribes motion to amend, contending
that the Notice of Correction cannot be treated as a notice of
change.
On August 19, the City of Miami filed a petition
challenging the validity of proposed rule 62-302.530. In the
Citys petition, it asserts that its petition is timely based on
the Notice of Correction constituting a notice of change. The
City also asserts that the petition is timely based on the
deadline corresponding to a revised SERC. DEP moved to dismiss
the Citys petition as untimely, repeating its argument that the
Notice of Correction cannot be treated as a notice of change and
also arguing that the revised SERC does not afford a point of
entry for the City because the LCRA was immediately withdrawn.
On August 23, Florida Pulp and Paper Association
Environmental Affairs, Inc. filed a petition challenging the
validity of rule 62-302.530. In its petition, Florida Pulp and
Paper asserts that its petition is timely based on the filing
deadlines in section 120.56(2)(a) corresponding to a notice of

change and a revised SERC. DEP moved to dismiss the petition

for the reasons stated above and because Florida Pulp and Paper
did not allege that it was substantially affected by the
withdrawal of the LCRA.
On August 24, Martin County filed a petition challenging
the validity of proposed rule 62-302.530. In its petition, the
County asserts that its petition is timely based on the filing
deadlines corresponding to a notice of change, but admits in the
petition that it is being filed after 5:00 p.m. on the last day
for filing. As discussed above, any document received by the
agency clerk after 5:00 p.m. is treated as filed the next
regular business day. The official time of filing for the
Countys petition was 8:00 a.m. on August 25, 2016. DEP moved
to dismiss the Countys petition as untimely. In its response
to the motion to dismiss, Martin County asserts that procedural
violations in DEPs rulemaking process rendered the filing
deadlines null and void.
All parties referred to the June 30 and August 4 volumes of
the Register and official recognition is taken of these
materials, as well as JAPCs comment letter.
The Notice and Hearing
Martin County contends that several rulemaking errors by
DEP made the process so fundamentally flawed that none of the
filing deadlines in section 120.56(2)(a) are controlling. The
Seminole Tribe contends the notice in the Register was so
inadequate that it cannot control the applicable point of entry
to challenge the proposed rules.
Petitioners contention that the effect of proposed rule
62-302.530 could not be determined from the notice in the
Register is unpersuasive. JAPCs description of the strikethrough/underline version of the rule as incomprehensible is
hyperbole. The strike-through/underline version is difficult to
read and difficult to use for comparing existing water quality
criteria with proposed criteria. It is not incomprehensible.
All Petitioners knew that human health-based surface water
quality criteria were being changed by DEP. Workshops and a
public hearing were held on the proposed rules. Contact
information was provided in the June 30 notice if more
information was desired. The Seminole Tribe and Florida Pulp

and Paper were able to comprehend proposed rule 62-302.530 and

to determine that the rule would adversely affect their
substantial interests.
When a person is not certain whether a proposed rule would
adversely affect his or her substantial interests, reasonable
inquiry should be made. If the person is still confused after
making reasonable inquiry and the deadline for challenging the
proposed rule is near, the prudent person will file a petition
challenging the rule. If the proposed rule is vague, that can
be asserted in the petition. The proposition that the statutory
filing deadlines are tolled when it is difficult to read a
strike-through/underline version of the rule in the Register is
an unreasonable proposition.1/
Petitioners also contend that the rulemaking was
fundamentally flawed because the final public hearing before the
ERC was held on July 26, which was 26 days after the June 30
notice in the Register. Petitioners believe the ERC was
required to hold the hearing no less than 28 days after the
notice. Section 120.54(3)(a)2. states that, The notice shall
be published in the Florida Administrative Register not less
than 28 days prior to the intended action.
DEP contends it is the adoption of the proposed rules which
is the intended action and section 120.54(3)(e)6. provides,
The proposed rule shall be adopted on being filed with the
Department of State. DEP argues that it is the filing with the
Department of State that must take place no fewer than 28 days
after the date of the Register notice, not the date of the ERC
hearing.
It is also noted that section 120.54(3)(a)1. provides that
Prior to the adoption, amendment, or repeal of any rule other
than an emergency rule, an agency, upon approval of the agency
head, shall give notice of its intended action. In this
sentence, the term adoption means the creation of a new rule.
The wording supports a meaning of intended action as the
effectuation of one of these three actions creation,
amendment, or repeal all of which require filing with the
Department of State.2/
The procedural errors alleged by Petitioners are matters
that must be raised in a timely petition. The alleged errors do
not toll the deadline for filing a petition. It is concluded
that the alleged errors do not establish a basis for excusing an
untimely rule challenge petition.

The Notice of Correction

There is no reference in chapter 120 to correction or
notice of correction. Section 120.54(3)(d) refers to changes
and technical changes to proposed rules. However, a notice of
correction is a type of notice explicitly recognized in the
rules of the Department of State, which is the agency
responsible for publishing the Register. See 1-1.009(10),
Fla. Stat. (2016). Each volume of the Register is organized by
sections. Section III for all volumes of the Register is
entitled Notice of Changes, Corrections and Withdrawals.
In the June 30 Register that contained DEPs proposed
rules, there is a Notice of Correction for the Department of
Education to change a previously noticed meeting date. In the
August 4 Register that contained DEPs Notice of Correction,
there is another Notice of Correction for the Fish and Wildlife
Conservation Commission, which adds a date to the history
section of a proposed rule.
DEP proposed no change of any kind for rule 62-302.530.
The Notice of Correction did not make a change or a technical
change to the rule that was proposed in the June 30 Register
and approved by the ERC at the July 26 public hearing.3/
Some Petitioners argued that the Notice of Correction, for
the first time, made rule 62-302.530 comprehensible. Even if
true, it does not establish that the rule was changed. The rule
was not changed. If the Notice of Correction revealed an effect
of the proposed rule that was not previously apparent, that is
no different than if this effect was revealed by an oral or
written statement from a DEP employee. Such statements do not
change the rule that is proposed for adoption. Because rule
62-302.530 was not changed in any way, the provisions of
chapter 120 applicable to rule changes are not applicable here,
including the provision in section 120.56(2)(a) that allows a
person to file a rule challenge petition 20 days from the
publication of a notice of change.
Florida Pulp and Paper argued that the word correction
and the placement of the Notice of Correction in a section of
the Register where notices of change are also placed, would
cause a person to believe that DEPs Notice of Correction was
announcing a change to the proposed rule. Even if true, this
mistake would not alter the fact that no change was proposed.
The Department of States organization of the Register cannot

transform all notices of correction into notices of change that

provide new points of entry for persons to challenge unchanged
rules.
It is concluded that DEPs Notice of Correction cannot be
treated as a notice of change for calculating the filing
deadline for a rule challenge petition.
The Notice of Change and the Revised SERC
DEP caused to be published a Notice of Change for rule
62-302.400. Although rule 62-302.400 and rule 62-302.530 were
jointly proposed by the ERC and combined in the June 30 Register
notice, the Notice of Change only showed rule 62-302.400 and the
proposed changes to it. Florida Pulp and Paper argues that once
an agency has determined what will constitute the proposed
rule, that rule must remain intact for a notice of change.
This requirement is not apparent in section 120.54 and it would
not overcome the following impediment in section 120.56(2)(a)
applicable to challenges to proposed rules that have been
changed:
A person who is not substantially affected
by the proposed rule as initially noticed,
but who is substantially affected by the
rule as a result of a change, may challenge
any provision of the resulting proposed
rule.
Implicit in this statement is the meaning that a person who is
substantially affected by the rule as initially proposed, but
who did not file a rule challenge petition, may not challenge
any provision of the resulting rule, but is confined to
challenging the changed provisions. Even if the rule proposed
by DEP remained intact, Florida Pulp and Papers failure to
challenge the provisions of rule 62-302.530 that substantially
affected Florida Pulp and Paper when the rule was initially
proposed would prevent Florida Pulp and Paper from challenging
those provisions after the Notice of Change.
Petitioners contend that the deadline stated in section
120.56(2)(a) for filing a rule challenge petition within 20 days
of a revised SERC is available to any person who wishes to
challenge a proposed rule. DEP argues that, like the Notice of
Change, the revised SERC cannot be used by Petitioners to
calculate the deadline for their petitions because Petitioners

do not allege, and cannot allege, that they are substantially

affected by the revised SERC.
Sections 120.541(1) provides that a claim that an agency
should have prepared a SERC or a claim that an agency wrongly
rejected a LCRA can only be raised by a person whose substantial
interests are materially affected by the rules regulatory costs
or by the rejection of the LCRA. Section 120.541(1) would be
inconsistent with section 120.56(2)(a) if section 120.56(2)(a)
provides a new point of entry when a revised SERC has been
issued, to persons who are not substantially affected by the
revised SERC.
Furthermore, the revised SERC at issue here was
misidentified by DEP as such. It was not a revised SERC.
Section 120.541(1)(c) states, The agency shall revise a
statement of estimated regulatory costs if any change to the
rule made under s. 120.54(3)(b) increases the regulatory costs
of the rule. There may be other events that cause an agency to
revise the estimated costs of a proposed rule up or down, but
the revision contemplated by section 120.541 is a revision to
the estimated costs, not a change in the narrative accompanying
the estimated costs that has no effect on the costs.
Petitioners interpretation of section 120.56(2)(a) allows
for a situation the Legislature was unlikely to have intended,
where a person substantially affected by a proposed rule fails
to file a petition to challenge the rule within the available
deadlines, but, serendipitously, gets a new opportunity to
challenge the rule because of an unanticipated notice of change
or revised SERC, even though the challenger has no interest in
the rule provisions being changed or the revision to the SERC.
In contrast, the interpretation of section 120.56(2)(a) that
requires a person to be substantially affected by a notice of
change or a revised SERC in order to use the corresponding point
of entry, is more logical and preserves internal consistency
with related sections of chapter 120.
It is concluded that neither DEPs Notice of Change for
proposed rule 62-302.400 nor the revised SERC provided
Petitioners with the right to challenge proposed rule
62-302.530.
Accordingly, it is
ORDERED that the motions to dismiss are GRANTED and the
petitions are DISMISSED.

DONE AND ORDERED this 13th day of September, 2016, in

Tallahassee, Leon County, Florida.

S
BRAM D. E. CANTER
Administrative Law Judge
Division of Administrative Hearings
The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847
www.doah.state.fl.us
Filed with the Clerk of the
Division of Administrative Hearings
this 13th day of September, 2016.
ENDNOTES
1/

The Seminole Tribe cites a discussion of due process and

public notice that appears in Keys Citizens for Responsible
Government, Inc. v. Florida Keys Aqueduct Authority, 795 So. 2d
940 (Fla. 2001), but that case found the public notice for a
bond issuance to be adequate, despite some infirmities noted by
the Court. The case does not show us an example of inadequate
public notice.
2/

The Seminole Tribe cites Agrico Chemical Co. v. State

Department of Environmental Regulation, 365 So. 2d 759, 765
(Fla. 1st DCA 1978), in which the court held that intended
action can mean the approval of a rule by the ERC. However, in
Agrico, the court was dealing with a provision of the 1978
version of chapter 120 that prohibited adoption of a rule by an
agency until a hearing officer renders a decision if a rule
challenge has been filed. The rules at issue in Agrico were
challenged prior to the public hearing before the ERC and the
court held that the ERC should not have approved the rules while
the rule challenge was pending before the hearing officer. By
interpreting the term adoption in this context as including
the approval of the rules by the ERC, the court was able to
effectuate what it considered the legislative intent not to
allow an agency to hold a hearing and approve a rule which has
been challenged. The circumstances in Agrico are not present
9

here and, therefore, the discussion in the case is not

particularly helpful. The holding in the case does not appear
to have been followed.
3/

The City of Miami alleges in its petition that the annotated

version of proposed rule 62-302.530 made available on DEPs
website differs from the proposed rule that was published on
June 30, not simply because of the annotations, but with respect
to particular water quality criteria. This allegation was not
pursued by the City at oral argument nor demonstrated by any
Petitioner.
COPIES FURNISHED:
Andrew J. Baumann, Esquire
Lewis, Longman and Walker, P.A.
Suite 1500
515 North Flagler Drive
West Palm Beach, Florida 33401
(eServed)
Robert Angus Williams, Senior Attorney
Department of Environmental Protection
Mail Station 35
3900 Commonwealth Boulevard
Tallahassee, Florida 32399
(eServed)
Kerri L. McNulty, Esquire
Office of the City Attorney
Suite 945
444 Southwest 2nd Avenue
Miami, Florida 33130-1910
(eServed)
Gregory M. Munson, Esquire
Gunster, Yoakley and Stewart, P.A.
Suite 601
215 South Monroe Street
Tallahassee, Florida 32301
(eServed)

10

Elizaberth Lenihan, Assistant County Attorney

Martin County Attorney's Office
2401 Southeast Monterey Road
Stuart, Florida 34996
(eServed)
Ernest Reddick, Chief
Department of State
R. A. Gray Building
500 South Bronough Street
Tallahassee, Florida 32399-0250
(eServed)
Ken Plante, Coordinator
Joint Administrative Procedures Committee
Room 680, Pepper Building
111 West Madison Street
Tallahassee, Florida 32399-1400
(eServed)

11