STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PANAGIOTI TSOLKAS AND CHRISTIAN ) MINAYA, )

)

Petitioners, )

)

vs. ) Case No. 10-3100

) THE DAVID MINKIN FLORIDA REALTY ) TRUST, RICHARD THALL, ROBERT ) THALL, PETER L. BRIGER, PAUL H. ) BRIGER, THE LESTER FAMILY ) INVESTMENTS, LP, PALM BEACH ) COUNTY, AND SOUTH FLORIDA WATER ) MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, D. R. Alexander, on October 5 and 6, 2010, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Panagioti Tsolkas, pro se (Tsolkas) 822 North C Street

Lake Worth, Florida 33460-2437

For Petitioner: Christian Minaya, pro se

(Minaya) 901 North Federal Highway, Apartment A

Lake Worth, Florida 33460-2695

For Respondent: Susan Roeder Martin, Esquire (District) South Florida Water Management District

3301 Gun Club Road Mail Stop 1410

West Palm Beach, Florida 33406-3007

For Respondent: Amy Taylor Petrick, Esquire (County) Andrew J. McMahon, Esquire

Palm Beach County Attorney's Office

300 North Dixie Highway, Suite 359 West Palm Beach, Florida 33401-4605

For Respondents: Brian B. Joslyn, Esquire (Briger Group) Casey Ciklin Lubitz

Martens & O'Connell

515 North Flagler Drive, 20th Floor West Palm Beach, Florida 33401-4330

ISSUE

The issue is whether to approve an application by Respondents, Palm Beach County (County) and The David Minkin Florida Realty Trust, Richard Thall, Robert Thall, Peter L. Briger, Paul H. Briger, and The Lester Family Investments, LP (The Briger Group), for a conceptual Environmental Resource Permit (ERP) authorizing a surface water management system to serve a mixed-use development in the City of Palm Beach Gardens known as Scripps Florida Phase II/Briger (Scripps project).

PRELIMINARY STATEMENT

On April 16, 2010, Respondent, South Florida Water Management District (District), through a Staff Report, provided Notice of its Intended Agency Action to approve an application by the County and The Briger Group for a conceptual ERP to construct and operate a surface water management system to serve

a mixed use development at the Scripps project. On April 21, 2010, Petitioners (then numbering eight, but now numbering two) filed their first Petition/Request for Administrative Hearing.1 That filing was dismissed without prejudice by the District on May 4, 2010, for failing to meet the minimum pleading requirements for an administrative hearing. On May 4, 2010, minor revisions to the Staff Report were made by the District. A second Petition/Request for Administrative Hearing (Petition) was filed by Petitioners on May 19, 2010, generally contending that the applicants had failed to provide reasonable assurance that the permitting criteria would be satisfied. The Petition was forwarded by the District to the Division of Administrative Hearings on May 19, 2010, with a request that an administrative law judge be assigned to conduct a hearing. The District's Order of Transmittal noted, however, that except for Chapter 373, Florida Statutes, none of the other statutes cited by Petitioners as grounds for reversing the agency action were within the District's jurisdiction; also, five other sources of authority for reversing the agency action cited in the pleading were determined to be beyond the District's permitting

jurisdiction.2 By Notice of Hearing dated June 14, 2010, a final hearing was scheduled on October 5-7, 2010, in West Palm Beach, Florida.

On October 1, 2010, the parties filed a Joint Prehearing Stipulation (Stipulation). At the final hearing, Petitioner Tsolksas testified on his own behalf. Also, he offered Petitioner’s Exhibits 1 and 2. Exhibit 2 was received, subject to hearsay and relevance objections, while Exhibit 1 was received only as a proffer.3 Petitioner Minaya adopted the evidence presented by Tsolksas. Alfred Lark, one of the original petitioners, did not file a notice of voluntary dismissal or attend the final hearing. Accordingly, at the hearing, Respondents' request to dismiss him as a party was granted. The Briger Group and the County jointly presented the testimony of Ken Tuma, a planning and landscape architect with Urban Design Kilday Studios and accepted as an expert; Frederick Roth, Jr., a professional engineer with Michael B. Schorah & Associates, Inc., and accepted as an expert; Mary Lindgren, an environmental consultant with Environmental Services, Inc., and accepted as an expert; Edward R. Weinberg, an environmental consultant with EW Consultants, Inc., and accepted as an expert; and Robert S. Carr, Executive Director of the Archaeological and Historical Conservancy, Inc., and accepted as an expert. The District presented the testimony of Anita R. Bain, Director of the Environmental Resource Permit Division and accepted as an expert; and Anthony M. Waterhouse, Deputy Director of the Water Resource Regulation Department and accepted as an expert.

Respondents jointly presented Respondents' Exhibits 1-3, 5, 14,

14A, 14B, 33, 35, 42, 43, 48-51, 54a, 54b, 54d, 55, 57, 58, and

60, which were received in evidence.

Pursuant to the District's request, the undersigned took official recognition of Florida Administrative Code Chapter 40E-

4 and the Basis of Review for Environmental Resource Permit Applications Within the South Florida Water Management District (BOR) in effect as of November 11, 2009.

The Transcript of the hearing (four volumes) was filed on October 22, 2009. Proposed recommended orders were due no later than November 12, 2010, and were jointly filed by the County and The Briger Group on November 10, 2010, the District on

November 12, 2010, and Petitioners on November 15, 2010. All filings have been considered in the preparation of this Recommended Order.

Finally, on October 1, 2010, The Briger Group filed a Motion for Entry of an Order Finding the Lester Respondents [The Briger Group] Entitled to Recover Attorney's Fees Under

§ 57.105, Fla. Stat. (Notice of intent to file such a motion was served on all Petitioners on September 8, 2010.) That issue is addressed in the Conclusions of Law.

FINDINGS OF FACT

Based on the evidence presented by the parties, the following findings of fact are made:

1. The Parties

   
   

   1. Petitioner Tsolkas resides at 822 North C Street, Lake Worth, Florida, which is approximately 16.8 miles (in a straight line) south-southeast of the project site and approximately one mile west of the Intracoastal Waterway (ICW). Among others, he expressed concerns in this case about the potential extinction of species and the impact of the proposed site on the ICW. However, other than a general interest in environmental issues, he presented no evidence to demonstrate how he is affected by the issuance of the permit.

   2. Petitioner Minaya resides at 901 North Federal Highway, Apartment A, Lake Worth, Florida, and approximately the same distance from the project site and ICW. He has the same concerns as Petitioner Tsolkas but presented no evidence to demonstrate how the project will affect his substantial interests.

   3. The County is a chartered county and a political subdivision of the state. It owns approximately 70.0 acres of the site on which the Scripps project will be located and the 193.92-acre off-site mitigation area for the project at the Pine Glades Natural Area (Pine Glades). It is a co-applicant for an ERP.

   4. The Briger Group is a co-applicant for the modified ERP and owns 611.69 acres of the project site. The original permit

      
      

      that is being modified was issued as conceptual approval on January 19, 1978.

   5. The District is a public corporation in the State, having been created by special act in 1949 and operating pursuant to Chapter 373, Florida Statutes.

2. The Application

   
   

   1. On April 27, 2009, the applicants submitted an application to modify a conceptual ERP, Application No. 090427- 7, for a surface water management system to serve 681.89 acres of mixed-use development in the City of Palm Beach Gardens (City). The original permit was also issued as a conceptual approval in 1978 and has been modified conceptually on a number of occasions, most recently in 2001. The application includes

      193.92 acres of off-site mitigation at Pine Glades in the northern part of the County and additional off-site mitigation through the purchase of mitigation credits at the Loxahatchee Mitigation Bank in the southern part of the County.

   2. "Conceptual approval" means "an [ERP], issued by the District Governing Board, which approves a conceptual master plan for a surface water management system or a mitigation bank." Fla. Admin. Code R. 40E-4.021(5). It constitutes final agency action and is "binding to the extent that adequate data has been made available for review by the applicant during the review process." Id. After conceptual approval is obtained,

      
      

      the applicants must then file an application for an ERP to construct and operate the surface water management system. Therefore, no construction will be authorized by this permit.

   3. On April 16, 2010, the District issued a Staff Report recommending approval of the requested ERP. A Revised Staff Report making minor changes and clarifications to the original proposed agency action was issued on May 4, 2010.

3. The Project and the Site

   
   

   1. The proposed project that will be served by the surface water management system is a multi-use development on a 681-acre tract located south of Donald Ross Road and north of Hood Road in the City. The site is divided by Interstate 95 (I-95) into two wedge-shaped parcels known as the western and eastern parcels. The Florida Turnpike adjoins the western side of the western parcel. With the exception of the highways, the site is surrounded by residential development including two projects located just east of the site: Legends at the Gardens (on the northern side) and San Michele (on the southern side).

   2. A portion of the site located east of I-95 is mostly undeveloped and vegetated. However, approximately 60 acres located at the southeast corner of the site include an existing horse farm with improved and unimproved pastures. The central and southern portions of this parcel contain a number of ditches that were created prior to the 1950s. The portion of the site

      
      

      west of I-95 is undeveloped and vegetated, but it also includes a few mobile homes on approximately 2 acres at the southern end of the site.

   3. The upland habitats are disturbed and degraded and primarily include pine flatwoods, mixed hardwood-pine forest, hardwood hammock, and dry prairie, some of which are infested with Brazilian pepper, Australian pine, and Japanese climbing fern. There are also around 86 acres of state jurisdictional wetlands and other surface waters. Finally, the southwestern portion of the parcel located west of I-95 contains a prehistoric/archaeological site which is proposed for preservation.

   4. The County owns 70 acres of the property on the eastern parcel, while The Briger Group owns the remaining acreage. The project is anticipated to house the Scripps Research Institute, as well as ancillary institutional, commercial, and residential uses. The project received development of regional impact approval from the City on April 1, 2010, and is subject to a master plan that identifies land use districts, such as a biotech district, a town center district, residential districts, and a neighborhood-serving commercial district.

   5. The 70 acres owned by the County will be used to house the second phase of the Scripps Research Institute. It is

      
      

      unknown at this time whether the Scripps facility will house administrative offices, laboratory space, or some other use. The build-out schedule for the project is twenty years.

   6. Before construction can commence, the applicants will be required to obtain zoning and site plan approval from the City, authorization from both the Northern Palm Beach County Improvement District (Improvement District) and the Seacoast Utility Authority, and a permit from the County Health Department. Also, the applicants will be required to receive a construction-related modification to the ERP from the District.

4. The Surface Water Management System

   
   

   1. In 2001, the District issued a permit to the Improvement District for conceptual approval of a surface water management system for flood protection within a 4,059.9-acre area known as Unit 2, which includes the area of the proposed project. See Respondents' Exhibit 57. Drainage from the project site is presently covered by this permit. The Improvement District's system was designed, constructed, and is being operated and maintained for stormwater treatment. The waters in that system are not considered waters of the State.

   2. The proposed project will discharge into the Improvement District's system, which is upstream of a permitted man-made control structure on the property designed to retain or

      
      

      detain stormwater runoff in order to provide treatment and attenuation of the stormwater.

   3. The proposed system is primarily a wet detention system consisting of three large basins: A1, B1E(East), and B1W(West). The system has been designed to provide water quality and storm water attenuation prior to overflowing to the Improvement District's Unit 2 master system. As shown in the conceptual plans, Basin B1W is located on the west side of I-95 and has a control elevation of 13.5 feet National Geodetic Vertical Datum (NGVD). Mostly residential development is anticipated in this basin with a small supporting commercial development. An existing 60-inch culvert located under I-95 will continue to connect the two wetland areas, identified as W1 and W2, that are located on both the west and east sides of I- 95, respectively.

   4. Basin B1E is located in the southeastern portion of the site and will be controlled at 13.0 feet NGVD. Anticipated development in this area will be mostly residential neighborhoods as well. Exhibit 2 of the Staff Report reflects that runoff from the out-parcels and the northern half of Hood Road will be directed into the proposed project area. Pervious and impervious assumptions were made for future Hood Road improvements and are listed in the land use table. See Respondents' Exhibit 43 at p. 3 of 26. Basin B1E will overflow

      
      

      into the Unit 2 master system via a control structure and outfall pipe which discharges to a wet pond located within the adjacent San Michele development to the east.

   5. Industrial and commercial development is planned in Basin A1, which is the northeastern basin. The lakes will be controlled at elevation 13.0 feet NGVD. Runoff from this basin will be directed eastward into the Improvement District's Unit 2 master system via a control structure and pipe connection into the lake within the Legends of the Gardens development to the east. The applicants submitted site grading assumptions and pervious/impervious percentages as well as stormwater modeling to demonstrate compliance with the existing master system for the overall Improvement District's Unit 2 master system. In addition, the system for this basin has been designed to accommodate inflows from approximately 50 acres of I-95 right- of-way through an existing control structure which was permitted as part of the I-95 widening project.

   6. The proposed project includes direct impacts to a total of 78.47 acres of on-site wetlands. Wetland mitigation to offset the adverse impacts includes enhancement of 7.50 acres of on-site wetlands; the purchase of 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank; off-site wetland and upland restoration and enhancement of 163.41 acres of wetlands;

      
      

      and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades.

5. The ERP Permitting Criteria

   
   

   1. In order to obtain an ERP, an applicant must satisfy the conditions for issuance set forth in Rules 40E-4.301 and 40E-4.302. Additionally, the District has adopted BOR provisions that implement the relevant portions of the rules. The conditions for issuance primarily focus on water quantity, water quality, and environmental criteria and form the basis of the District's ERP permitting program.

   2. The first step in the District's environmental review is to identify wetlands and other surface waters. On March 5, 2009, the District issued a formal determination of wetlands delineating 34 wetland areas and 4 jurisdictional surface water ditches. This determination was not timely challenged and therefore represents final agency action. That determination was used in this permit application.

      1. Water Quantity Criteria

         
         

   3. Rule 40E-4.301(1)(a) requires an applicant to provide reasonable assurances that the propose activity will not cause adverse affects to water quantity, while Rule 40E-4.301(1)(b) requires reasonable assurances that the proposed activity will not cause adverse flooding to on-site or off-site property. The BOR provides a method to calculate allowable discharge rates.

      
      

   4. The evidence is that the proposed discharge is well within the standards imposed by the rules governing water quantity impacts. There will be no on-site or off-site flooding as a consequence of the proposed project.

   5. Rule 40E-4.301(1)(c) requires reasonable assurance that there will be no adverse impacts to existing surface water storage and conveyance capabilities. The evidence supports a finding that the proposed discharge will not cause any adverse impacts. Also, the system is capable of being developed and of functioning as proposed, as required by Rule 40E-4.301(1)(i).

   6. Petitioners contended that the project poses a threat of over-draining, which will significantly affect the region directly and cumulatively. However, the project does not pose a risk of over-draining because the control elevation of the project will be maintained at a level consistent with surrounding properties and the proposed drainage rate is less than the allowable rate under the rules.

      1. Water Quality

         
         

   7. Rule 40E-4.301(1)(e) sets forth the requirements relating to water quality. Also, BOR Section 5 contains the design criteria that a project must follow regarding off-site discharges to provide reasonable assurances to satisfy the above rule.

      
      

   8. Water quality treatment will be provided in a proposed wet detention system which utilizes stormwater ponds. The evidence shows that the ponds are larger than required, thereby providing water quality treatment in excess of what is required by the BOR. All water quality standards will be met.

      1. Hazardous Waste Management Plan

         
         

   9. Petitioners contend that no hazardous waste management plan was submitted to the District. However, a plan is not required now because it would need to address the specific uses for the property, which have not yet been designated. Special Condition 31 of the permit requires that such a plan be submitted at the time an application for construction approval is filed with the District. When this is submitted, it will be reviewed to determine if there are reasonable assurances that hazardous materials, if any, will not enter the proposed project's surface water management system.

      1. Elimination and Reduction

         
         

   10. Under BOR Section 4.2.1, after the District identifies the wetlands and other surface waters, the next step is to consider elimination and reduction of impacts. However, BOR Section 4.2.1.2(b) provides that an applicant is not required to demonstrate elimination and reduction impacts when:

       the applicant proposes mitigation that implements all or part of a plan that provides greater ecological value and that

       
       

       provides greater long term ecological value than the area of wetland or other surface water to be adversely affected.

       
       

   11. In considering this provision, the District concluded, consistent with the evidence, that the quality of the wetlands which will be adversely affected by this application is low, and the mitigation proposed will provide greater long-term ecological value than the wetlands impacted. This is because the mitigation at both Pine Glades and the Loxahatchee Mitigation Bank have regional ecological value, and these sites will provide greater long-term ecological value than the impacted wetlands.

       1. Secondary Impacts

          
          

   12. Rule 40E-4.301(1)(f) requires reasonable assurance that the project will not cause adverse secondary impacts to water resources. BOR Section 4.2.7 sets forth the requirements for on-site wetlands that will be preserved and enhanced. Under that section, secondary impacts to the habitat of wetlands associated with adjacent upland activities will not be considered adverse if buffers, with a minimum width of 15 feet and an average width of 25 feet, are provided abutting the wetlands. In this case, the single wetland area being preserved is buffered in accordance with those requirements. Applicants have satisfied the requirements of the rule.

       
       

       1. Mitigation

          
          

   13. If impacts to wetlands and other surface waters will occur, then mitigation may be offered to offset the impacts to functions identified in BOR Sections 4.2 through 4.2.9. To assess the impacts and the value of mitigation, the applicants used the statewide Uniform Mitigation Assessment Method and the Wetland Rapid Assessment Procedure. Those results are found in Appendix 1 of the application and in Responses to Requests for Additional Information submitted in August 2009 and January 2010. Page 13 of the Staff Report describes the mitigation.

   14. The District also performed its own independent analysis of both the impact and mitigation. That analysis demonstrated that sufficient mitigation is available in the options identified to offset the impacts. In fact, there was a net functional gain to the environment.

   15. In order to offset 50.76 acres of wetland impacts, the applicants will provide restoration and enhancement of 139.6 acres of wetlands and 23.81 acres of uplands, and preservation of 30.51 acres of other surface waters, or a total of 193.92 acres, at Pine Glades. Mitigation at this location offsets those impacts and is appropriate because it will provide more functional gain than the amount of functional loss for the same habitat types that are being impacted. Because Pine Glades is within the same drainage basin as the impacts, and the

       
       

       mitigation offsets the impacts, the District is not required to consider cumulative impacts. See § 373.414(8), Fla. Stat.; Fla. Admin. Code R. 40E-4.302(1)(b).

   16. Petitioners suggested that because Pine Glades is already owned by the County and intended to be restored, by allowing the applicants to receive mitigation credit for the restoration amounts to "double dipping." However, the evidence shows that the 193 acres proposed as mitigation in the permit is site-specific; no one has ever received mitigation credit for it in the past and no one will be able to receive mitigation credit for it in the future; and The Briger Group paid $86,250.00 per functional unit to reimburse the County for the cost of the land. Mitigation credit for restoration at Pine Glades is appropriate.

   17. As compensation for impacts to a total of 26.14 acres of freshwater marsh wetlands, the applicants will mitigate off- site by purchasing 13.70 freshwater herbaceous credits at the Loxahatchee Mitigation Bank. This bank is of regional ecological significance. Mitigation at this bank offsets the impacts and is appropriate because it will offset the impacts to freshwater marsh wetlands.

   18. Drainage basins are established by District rule in BOR Figure 4.4-1. While Petitioners contended that BOR Figure 4.4-1 does not accurately identify the geographic boundaries of

       
       

       the South Indian River Basin, which is being used here, the District is required to follow its own rules when reviewing an ERP application. Therefore, the use of Figure 4.4-1 was appropriate to determine whether the project is located within or outside of that drainage basin. Because the Loxahatchee Mitigation Bank is not located within the same basin as the proposed impacts, it was necessary for the District to consider cumulative impacts which will be mitigated at that bank. See

       § 373.414(8), Fla. Stat. This means that the applicants are required to give reasonable assurances that the impacts proposed for mitigation at Loxahatchee Mitigation Bank would not result in unacceptable cumulative impacts if the regulatory precedent set by the permit were applied to all properties within the basin that have the same type of habitat as that being impacted by the project and that have potential for development.

   19. The project will be located in the South Indian River Basin. The District's cumulative impact analysis for that basin supports a finding that there is very limited potential for future wetland loss in the basin and reasonable assurances have been given that there will be no adverse cumulative impacts. See Respondents' Exhibit 60.

       1. Species

          
          

   20. Rule 40E-4.301(1)(d) requires an applicant to demonstrate that the activities will not adversely impact the

       
       

       value of functions provided to fish and wildlife and listed species by wetlands and other surface waters. This evaluation is limited to wetland-dependent species. Upland species fall outside of the District's jurisdiction. Contrary to Petitioners' assertion, the hand fern is not a wetland-dependent species. Also, the District must rely on State-listed species, and not lists prepared by federal agencies.

   21. The evidence shows that the potential for utilization of this site by wetland-dependent species is minimal, and this site does not contain preferred habitat for nesting or denning of wetland dependent listed species. Although the site does not contain preferred habitat, the habitat value currently existing on this site will be replaced with mitigation at Pine Glades and the Loxahatchee Mitigation Bank.

       1. Public Interest Test

       
       

   22. In order to obtain a conceptual approval ERP, an applicant must provide reasonable assurances that the system located in, on, or over wetlands or other surface waters will not be contrary to the public interest and will not be inconsistent with the objectives of the District. See Fla. Admin. Code R. 40E-4.302(1)(a)1.-7.; § 373.414(1), Fla. Stat.

   23. The evidence establishes that reasonable assurances were provided to demonstrate that the proposed activities will not adversely affect the public health, safety, or the welfare

       
       

       or property of others; that they will not adversely affect the conservation of fish and wildlife, including endangered or threatened species or their habitat; that there are no issues related to navigability or the flow of water, erosion or shoaling; that the property does not currently provide fishing, recreational values, or marine productivity and is not open to the public; that the activity will be permanent; that there is an archeological site on the property which the applicants will preserve; that the mitigation will more than fully offset the impacts; and that the value of the functions currently being performed will not be adversely affected. Petitioners offered no evidence or analysis to rebut the expert testimony offered by Respondents.

   24. After balancing all seven factors, the evidence supports a finding that the activities will not be contrary to the public interest.

       1. Florida Coastal Management Program

          
          

   25. Petitioners contend that the project is inconsistent with the Florida Coastal Management Program (FCMA), which is administered by the Department of Environmental Protection (DEP). They also assert that the District is required to coordinate its review of the application with that agency and that it failed to do so. However, the issuance of the ERP (after a demonstration that all permitting criteria have been

       
       

       satisfied) constitutes certification that the project is consistent with the FCMA and no coordination with DEP is necessary.

       1. Other Criteria

       
       

   26. Any other criteria not discussed herein were either satisfied by the applicants or are not relevant to the project.

6. Petitioners' Evidence

1. Other than very limited cross-examination of some of Respondents' witnesses, Petitioner Minaya did not present any evidence to support his allegations.

2. Other than cross-examination of Respondents' witnesses, Petitioner Tsolkas, a lay person, testified that his standing was based on general concerns that the project would drive species (such as the hand fern) into extinction, that it would pollute waters, including the ICW, and that it would destroy habitat for other species. No competent or persuasive evidence to support these contentions was presented. Other issues raised by Mr. Tsolkas were matters beyond the District's jurisdiction and are not considered in the permitting process.

   CONCLUSIONS OF LAW

   
   

3. The Division of Administrative Hearings has jurisdiction over this matter pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

   
   

4. The burden of proof is on the party asserting the affirmative of an issue before an administrative tribunal. See

   Balino v. Dep't of Health & Rehabilitative Servs., 348 So. 2d 349, 350 (Fla. 1st DCA 1977). Therefore, the County and The Briger Group have the burden of proving by a preponderance of the evidence that they are entitled to modify the existing ERP.

5. The County and The Briger Group contend that Petitioners failed to establish standing. In its Proposed Recommended Order, the District did not take a position on this issue. Petitioner Minaya did not testify or present any evidence to demonstrate that his substantial interests are affected by the proposed agency action. Therefore, he did not prove that the issuance of the permit will affect his substantial interests. Petitioner Tsolkas based his standing on an interest in environmental issues, including the preservation of species, and his concern over impacts to the ICW. No relevant or competent evidence to support those concerns or issues was presented. Therefore, even though he appears to have a genuine interest in the environment, he failed to demonstrate that the issuance of this ERP will affect his substantial interests. It should be noted, however, that both Petitioners were given the opportunity to fully participate in this proceeding.

   
   

6. To establish entitlement to the ERP, the applicants must give reasonable assurance that the conditions for issuance of a permit have been met. See §§ 373.413 and 373.414, Fla. Stat.; Fla. Admin. Code R. 40E-4.301 and 40E-4.302. "Reasonable assurance" contemplates a substantial likelihood that the project will be successfully implemented. See Metropolitan Dade

   Cty v. Coscan Fla., Inc., et al., 609 So. 2d 644, 648 (Fla. 3d DCA 1992). However, this does not require an absolute guarantee of compliance with environmental standards.

7. For the reasons cited in the Findings of Fact, it is concluded that the applicants have provided reasonable assurances that the conditions for issuance of a permit have been met.

8. Finally, The Briger Group moved for attorney's fees and costs under Section 57.105, Florida Statutes. Jurisdiction is retained for the limited purpose of rendering a separate final order on that issue after the District's Final Order in this matter becomes final.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the South Florida Water Management District enter a final order granting Application No. 090427-7 with the conditions contained in the Amended Staff Report.

DONE AND ENTERED this 30th day of November, 2010, in Tallahassee, Leon County, Florida.

S

D. R. ALEXANDER 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 30th day of November, 2010.

ENDNOTES

1/ Prior to the hearing, Petitioners Palm Beach County Environmental Coalition, Carol Strick, Suki deJong, Alexandria Larson, and Rosa Durando filed notices of voluntary dismissal. As noted in the Preliminary Statement, Alfred Lark neither attended the final hearing nor filed a notice of voluntary dismissal and was dismissed as a party at hearing.

2/ These included references to Chapters 377, 252, 186, 375,

379, 380, 381, and 582, Florida Statutes; the Governor's Executive Order 07-127 relating to greenhouse gas reductions; Florida Administrative Code Rule 5B-40.0055; Palm Beach County Ordinance 94-13; and a provision in the National Environmental Policy Act.

3/ Because only a single copy of the exhibits was brought to the hearing, Mr. Tsolkas retained the original exhibits. Copies were never provided to the parties or the undersigned.

COPIES FURNISHED:

Carol Ann Wehle, Executive Director South Florida Water Management District 3301 Gun Club Road

West Palm Beach, Florida 33406-3007

Panagioti Tsolkas 822 North C Street

Lake Worth, Florida 33460-2437

Christian Minaya

901 North Federal Highway, Apartment A Lake Worth, Florida 33460-2695

Amy T. Petrick, Esquire

Palm Beach County Attorney's Office

300 North Dixie Highway, Suite 359 West Palm Beach, Florida 33401-4605

Brian B. Joslyn, Esquire Casey Ciklin Lubitz

Martens & O'Connell

515 North Flagler Drive, 20th Floor West Palm Beach, Florida 33401-4330

Susan Martin Roeder, Esquire

South Florida Water Management District 3301 Gun Club Road

Mail Stop 1410

West Palm Beach, Florida 33406-3007

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 10-003100

Orders for Case No: 10-003100