## Facts

- A residential property built in 1980 included a man-made pond (approximately 90 feet by 120 feet and 10 feet deep) used to raise fish, with a berm to prevent overflow.
- James W. Slusher, Jr. purchased the property in 1994; the pond contained fish and he restocked it.
- Martin County drilled and operated a well on adjacent land.
- Operation of the well drained water from Slusher’s pond.
- Slusher filed an administrative petition challenging the South Florida Water Management District’s issuance of a water-use permit to Martin County, alleging adverse impacts on his pond.
- An administrative law judge recommended upholding the permit; the District adopted the recommendation and denied Slusher’s challenge.

## Issues

1. Whether Slusher’s fish-pond use qualified as a “presently existing legal use” protected by Fla. Admin. Code R. 40E-2.301(1)(f).
2. Whether the District could lawfully issue a water-use permit for a well that interfered with Slusher’s existing pond use.
3. Whether the District erroneously interpreted its own rules, warranting reversal under § 120.68(7)(e)2, Florida Statutes (2002).

## Decision

- The Fourth District Court of Appeal reversed the District’s final order and remanded.
- The court held the District misinterpreted its rules governing “presently existing legal uses.”
- The court concluded Slusher’s pond use fell within the category of protected existing legal uses under the District’s incorporated standards.
- Because the well’s operation actually drained the pond, the permit approval conflicted with the regulatory non-interference condition.

## Legal Principles

- Under Fla. Admin. Code R. 40E-2.301(1)(f), a permit applicant must provide reasonable assurances that the proposed water use will not interfere with presently existing legal uses at the time the application is complete.
- The District’s incorporated “Basis of Review” defines an “existing legal use” as a water use authorized by a District permit or a use that is existing and exempt from permit requirements.
- A reviewing court may reverse agency action when the agency erroneously interprets a provision of law and the correct interpretation compels a particular action. § 120.68(7)(e)2, Fla. Stat. (2002).
- An agency may not narrow the scope of protection for existing legal uses through an interpretation inconsistent with its own adopted rules and incorporated standards.

## Conclusion

The court required the Water Management District to treat Slusher’s long-existing, lawful pond use as a protected “presently existing legal use” and held that approving a permit for a well that drained the pond resulted from an erroneous rule interpretation and could not stand.


Slusher v. Martin County, 859 So. 2d 545 (Fla. 4th DCA 2003)