SOUTH FLORIDA WATER MANAGEMENT DISTRICT 3301 Gun Club Road, West Palm Beach, Florida 33406 * (561) 686-8800 * FL WATS 1-800-432-2045 * TDD (561) 697-2574 Mailing Address: P.O. Box 24680, West Palm Beach, FL 33416-4680 * wwwsfwmd.gov J 23, 2002 e > anuary 23, _ & e ¥ Hon. J. Lawrence Johnston Be, Xo Administrative Law Judge CS & Division of Administrative Hearings te Be. “A The DeSoto Building dts GEE Fs 1230 Apalachee Parkway CLO, C1 oS Tallahassee, FL 32399-3060 SUBJECT: COVE ROAD LAND TRUST, L.L.P., v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, MARTIN COUNTY BOARD OF COUNTY COMMISSIONERS, and SUMMERFIELD STUART PARTNERS DOAH CASE NO. 01-3870 01-3885 Dear Judge Johnston: The Governing Board of the South Florida Water Management District issued a Final Order adopting your Honor's Recommended Order of Dismissal in toto at its December 13, 2001 Governing Board meeting. In compliance with Subsection 120.57(1)(m), Fla. Stat., a copy is enclosed for your records. If you have any questions concerning this matter, please feel free to contact me at (561) 682-6274 or my legal assistant, Jan Sluth, at (661) 682-6299. Sincerely, Ruth A. Holmes Associate Attorney Office of Counsel RAH/jls Enclosures Cc: Robert P. Diffenderfer, Esq. & Eric Ash, Esq., w/out encl. Patricia |. Taylor, Martin Co. Bd. of County Commissioners, w/out encl. E. Lee Worsham, Esq., w/out encl. GOVERNING BOARD EXECUTIVE OFFICE Trudi K. Williams, Chair Michael Collins Patrick J. Gleason, Ph.D., P.G. Henry Dean, Executive Director Lennart E. Lindahl, Vice-Chair Hugh M. English Nicolas J. Gutiérrez, Jr., Esq. Pamela Brooks-Thomas Gerardo B. Fernandez Harkley R. Thornton poe peppers = op I Ne ono ataa al STATE OF FLORIDA arn, Op, DIVISION OF ADMINISTRATIVE HEARINGS ,'%, COVE ROAD LAND TRUST, L.L.P., ees Petitioner, : DOAH Case Nos. 01-3870 vs. 01-3885 ; Order No. SFWMD 2001-721 FOF SWM ‘SOUTH FLORIDA WATER MANAGEMENT — “DISTRICT, MARTIN COUNTY BOARD OF SCY COUNTY COMMISSIONERS, and SUMMER- FIELD STUART PARTNERS, Closed Respondents. : / FINAL ORDER On November 15, 2001, Administrative Law Judge (“ALJ”) J. Lawrence Johnston, Division of Administrative Hearings, submitted to the South Florida Water Management District (“SFWMD”), and all other parties to this matter, a Recommended Order of Dismissal, a copy of which is attached hereto as Exhibit “A.” Petitioner, Cove Road Land Trust, L.L.P., filed exceptions to the Recommended Order, a copy of which is attached hereto as Exhibit “B". SFWMD staff, Summerfield Stuart Partners (“Summerfield”) and Martin County Board of County Commissioners (“Martin County”) filed responses to the exceptions, copies of these are attached hereto as Exhibits “C’ and “D" respectively. ins oe . ‘BACKGROUND In two petitions for administrative hearing filed with the District ¢ on n August 7, 2001 the Petitioners challenged, pursuant to Section 120.57(1), Fla. Stat, and Rule 40E- ' i . t 1.521, Fla. Admin. Code, Application Nos. 000320-1 and 000823-8 for proposed : modification to the 1991 Conceptual Approval for Summerfield Golf Club, Permit No. 43- 00887-S issued by the SFWMD in 1991. Petitioner alleged in both petitions that the ; surface water discharge from Summertield would discharge onto Petitioner’s property without authorization or permission and the discharges have caused and continue to cause ° flooding and impoundment of water on Petitioner's property. The Governing Board authorized the Executive Director, or his designee, to execute this Agreement. The Resolution setting forth this designation is attached as Exhibit “E" and is incorporated herein. Having considered the Recommended Order entered by the ALJ, the Exceptions filed thereto by the Petitioner, and the Responses to Exceptions filed by the SFWMD staff, Summerfield and Martin County and after having further reviewed the record of this proceeding and being otherwise fully advised i in the premises: ITIS ORDERED that: (1) The ALu’s Recommended Order of Dismissal dated November 15, 2001 is adopted in toto for the reasons set forth in the Responses to the Exceptions filed by the i Summerfield, Martin County and the SFWMD staff, ‘except as modi (2) The responses to the exceptions filed by Summerfiel, Martin County and the SFWMD staff are adopted and i ted herein with the fo (a) Summerfield and Martin + County's Responses to Petitioner's Exceptions to the Recommended Order of Dismissa nhac uli ached s.scciliiakssnseadiialihal i. Page 2, paragraph 2 statement that Summerfield, Martin County and nearby landowners filed applications “Tpjursuant to a request from the District” is not part of the record and therefor not adopted in this order. ii. . Page 5, last paragraph on the page, second word “appeal” should be changed to “appellate.” ” iti. Page 6, Summerfields legal. conclusion that the District's Governing Board does not have “substantive jurisdiction” over “general legal principles involved in a determination of whether or not Petitioner has standing’ is not adopted. Such general legal principles involving “standing” may be based upon administrative rules where the Governing Board has “substantive jurisdiction” pursuant to Section 120.57(1)(]). | iv. Page 7, first sentence carried over from page 6 that the District's Governing Board “must accept the ALJ’s recommendation to dismiss the petitions” is not adopted. Pursuant to Section 120.57(1)(\),the Governing Board has jurisdiction to accept, reject or modify the ALu’s interpretations of administrative rules where the Board has substantive jurisdiction. In this case, the Board was not strictly bound to accept the entire Recommended Order if it found the interpretation or application of rules was — incorrect. v. Pages 9 and 10 beginning with the first full paragraph to ihe end of this section is not part of the record nor r the ‘Recommended Order and therefore > not adopted herein. vi. Page 11, paragraph 4 is not adopted due to the paragraph’s reliance on Wiregrass Ranch, Inc. v. Saddlebrook Resorts, Inc., 645 So.2d 374, 376 ore ore Page 3, paragraph 4, last sentence, the word “its” is deleted. Page 5, paragraph 12, first sentence, the word "basis" replaces the "bases". : Page 6, paragraph 14(3) is revised to state, “Summerfield's untary permit application to redirect most of its flow to the south opens up for ideration the basin's overall historic flow." - iv. Page 7, paragraph 19, second sentence, the word "the" before “whether a reduction’ | is deleted. ; v. Page 7, paragraph 23, the word "cleverly" is deleted. vi. Page 8, paragraph 26, second sentence should state, "Again, ve Petitioner's intention is to use District rules in such a way ..." (formerly stated, "in such as way . ’). . . "DONE AND > 80 ORDERED, this _\ 2 day of December, 2001, in West Paim a Beach, Palm Beach County, Florida. SOUTH /FLORIDA WATER MANAGEMENT DISTRIC, OVE [ ; 3 f OO is eRd®VAIY, Water Resources Management % Z LEGAL FORM APPROVED: ty Gyros Ny ip \ | Ww _ Lp ) BY eA. fT) Yee BY: F DATE: (cee Léa ot, §6O/ DATE: fvaler CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing has b 2001 via facsimile and U.S. Mail to Robert P. Diffend een furnished this ao erfer, Esq., and day of December, Eric Ash, Esqa., Lewis, Longman & Walker, P.A., 1700 Palm Beach Lakes Bivd., Suite West Palm Beach, FL 3 Martin County Board of 2401 SE Monterey Road, 3401; Patricia |. Taylor, Stuart, FL 34996; and P.A., 222 Lakeview Avenue, 4000, E. Lee Worsham, Commissioners, Ruden, McCloskey, Smith & Schuster, & Russell, Suite g00, West Palm Beach, FL 33401 FILED WITH THE CLERK OF THE SOUTH ER MANAGEMENT DISTRICT SOUTH FLORIDA WATER MANAGEMENT T FLORIDA WAT DISTRICT Club Road, MSC 1410 West Palm Beach, FL (561) 682-6251 ON BY “Ruth A. Holmes, Esq. Assoc. Attorney bic DISTRICT, MARTIN COUNTY BOARD STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS COVE ROAD LAND TRUST, L.L.P., Petitioner, Case Nos. 01-3870 61-3885 vs. SOUTH FLORIDA WATER MANAGEMENT OF COUNTY COMMISSIONERS, and SUMMERFIELD STUART PARTNERS, Respondents. ' RECOMMENDED ORDER _OF DISMISSAL On October 9, 2001, Regpondents filed a Joint Motion for a Summary Final Order. Peti t's Agreed Motion for Extension of Time to File Response to Motion for Summary Final Order was granted, and petitioner's Re ponse was filed on October 25, 2001. A telephone hearing on the motion was held on November 1, 2001. St authorized in this case by Section 120.57({1) (h), orida Statutes. However, jurisdiction apace can be relinquished tinder Section 420.57(1) (i) when "a dispute of material fact no longer exists . - .." In addition, a party's standing is jurisdictional, and a case can be dismissed whenever it is established that a petitioner lacks standing. See Grand Dunes, Ltd. v. Walton county, 714 So. 20d 743, 475 EXHIBIT A ce cee ETE omar cot a eer me Een ge OT (Fla. ist DCA 1998) ("In the administrative context, '[s]tanding has been equated with jurisdiction of the subject matter of litigation and has been held subject to the same rules .. ..'") (Application 000320-1); the other (Application 000823) permit for construction of Phases IV and Vv of the gunmerfield golf club, under the conceptual permit. The 1991 conceptual Permit allowed Summerfield Stuart Partners to discharge 10 cubic ‘feet per - second (cfs) from Basin B north to Eue’Coral Gard ns and Cove Road drainage system; the proposed Uhauce the flow by redirecting all but 3.42 / away from Petitioner. Petitioner does not cfs to the south, ~ want any f1 the north to be allowed anymore. In opposing the Joint Motion for a Summary Final Order, Petitioner attempts to characterize the agency action as allowing 3. “a2 cs to flow north towards Petitioner. If allowing cha flow were the effect of vagency ‘action int is case, s mmary disposition would not “be warranted. “But ‘the “Water Management District's action in modifying ‘the 91 onceptual — “R reduction in flow does not have a substantial effect on Petitioner, and Sd acl de cl ai ck ll a A Mic aA A at All ial 1 tioner does not have standing to contest the reduction under Pet on 420. +52 (22) (b), Florida Statutes. Te: ‘is much too late for Petitioner to challenge the flow ; allowed under the 1991 conceptual permit under Sections 120.569 and, 120. .57(1), ‘Florida Statutes, and Petitioner cannot use the point “of ventzy created by the construction permit to challenge the modified conceptual permit. See Perdue v. Td Palm (Beach) Assoc ates, Ltd., and South Florida water _Management District, “735 ‘so. 7 2a 660 (Fla. ath DCA 1999). “The Petition for Formal Administrative proceeding also may be seen as” seeking revocation or modification of the 1991 conceptual permit. But only the water Management District can revoke or modify one of its permits. See Section 373.429, lorida Statutes. This section does not provide a cause of action or standing for third parties. Petitioner argues in part that it can pring this action nonetheless because Florida pdministrative Code Rule 40E- 4.305(1) states: "Conceptual approvals constitute final District action and are binding to the extent that adequate data has been submitted for review by the applicant during the review process." (Emphasis added by Petitioner.) But it is concluded that, even assuming petitioner could prove that adequate data was not submitted for review during the conceptual permit review process, this rule is intended to bind the District to the terms Te ae en ae a RR EE EE TE ee REIT ET pee TP CTP WPR TT TET FR of a conceptual permit "to the extent that adequate data has been submitted." It was not intended to allow a third party to seek revocation or modification of a conceptual permit on the ground that adequate data was not submitted during the conceptual permit review process. ‘concerning modification of conceptual permits, states in - pertinent part: "Those portions of the modified pr oject, and any additional areas impacted by the ‘modification(s), shall be reviewed ‘in | accordance with ‘the same criteria in effect at the time of said modifi clon." (Emphasis added by Petitioner.) g But “petitioner is not at fected ‘by the "additional areas impacted by the modification(s)" (die. e., the area to the south) , and this “rule does not give ex "standing to challenge the modification in this case. if dismissal seems arsh in the face of Petitioner s ; atlegations that inadequate data was presented during the ‘review : process for the 1991 Conceptual Permit and that there actually was. no historical “E1SH co the: hove at the time of that review, petitioner | is not’ without ther remedies. ‘Petitioner is now pursuing an action in state circuit court for a atement under ; Section. 373. 433, peta statutes, for nuisance, for trespass, . for negligence, and for an injunction. See Weekley v. Pace ree sage ee ical Sa a I a A le Assembly Ministries, Inc., 671 So. 24d 220 (Fla. 1st DCA 1996). Damages to Petitioner's property, if any, also can be recovered in state circuit court. See Westland Skating Center, Inc. v. Gus Machado Buick, inc., 542 So. 959 (Fla. 1989). Based on the foregoing, final hearing previously scheduled in this case for Novembex 28-29, 2001, is canceled, and it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition for Formal Administrative proceeding in this case. Jurisdiction is reserved to rule on the Motion for an Evidentiary Hearing to petermine Whether the Petitions were Filed for an Improper purpose filed by Summerfield Stuart Partners on October 10, 2001. DONE AND ENTERED this St aay of November, 2001, in Florida. Tallahassee, Leon County, Kiministrative Law Judge Division of administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 :3(850) 488-9675 SUNCOM 278-9675 Fak Filing (850) 921-6847 www.doah.state.fl.us riled with the Clerk of the Division of Administrative Hearings this 15th aay of November, 2001. TI EF pager ER TT ile din BORER a, il Me aii BR Ye nESSSS tee eee COPIES FURNISHED: ber : piffenderfer, Esquire tewis, Longman & Walker, P.A, “1990 Palm Beach Lakes Boulevard Suite 1000 “West Palm Beach, Florida 33401 Douglas H. MacLaughlin, Esquire th Florida Water Management District 3301 Gun Club Road * post Office Box 24680 “West Palm Beach, Florida 33416-4680 icia I. Taylor, Esquire “Martin County Attorney's Office 5 - 101 Southeast’ Monterey Road Stuart, Florida 34996-3322 E. Lee Worsham, E ire - Ruden, McClosky, Smith, Schuster “é Russell, P.A. “2° 993 Lakeview Avenue, Suite 800 West Palm Beach, Florida 33401-6112 -" peank R. Pinch, Executive Director “South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final order in this case. ti ike] ats ae pe econ —e STATE OF FLORIDA. DIVISION © OF ADMINISTRATIVE HEARINGS EROAD LAND TRUST, L.L.P. DOAH CASE NO, 01-3885 DOAH CASE NO, 01-3870 ISTRICT, } SUNT Y COMMISSIONERS and ~ SUMMERFIELD STUART PARTNERS, * Respondents. ‘PETITIONER’S EXCEPTIONS TO RECOMMENDED ORDER OF DISMISSAL PETITIONER, ‘Cove Road Land Trust, L.L.P. (“CRLT”), pursuant to Section 120.57, 1 tatutes: and Rule 28- 106.217, F.A.C.., files its exceptions to the Recommended Order of ntered Nov ember 15, 2001, in this matter, and in support thereof states the following: ~ The Administrative Law Tudge ere i in his conchisions of law that: a) - No asp £0 ‘naterial fact exists; b) Petitioner lacks standing: - c) T he agency action in this case, modification of a conceptual permit, does not have a substantial effect on Petitioner; dq) Petitioner is not a substantially interested party pursuant to Section ~ 170.52(12)(b), Florida Statutes; -EXHIBIT B sid baal RO Se ee a TI ae EE TO or * oer eee ae : the pe orginal concept p confirm Petitioner’ s standing. attempting £0 use a point of entry created by the construction permit t to change the modified conceptual permit; iebaseonael 9 ‘Petitio T cannot challenge the adequacy of the data submitted to support it, pursuant to Rule 40E-4.305(1), F.A.C.; 8 “The Srepased conceptual modification does not affect Petitioner and therefore is immune ft from challenge, pursuant to Rule 40E-4.331(1) F.A.C.; h) the “portions of the modified project, and...additional areas impacted by See aieaidaiiaias eye ee the modifications” do not affect Petitioner. mene _ ma ~ Responder has amined facts which, as a matter of law, demonstrate and . STANDARD OF REVIEW 3. As the Agency charged with final order authority in this case, South Florida Water Management District (“SFWMD”) has authority to modify or substitute its own conclusions of law for those set out in the recommended order by the Administrative Law Judge (ALJ). 4. A summary ‘final order may only be entered if there is no genuine issue as to any ~naterial fact, Jones v. Stoutenburgh, 91 So. 2d 299 (Fla. 1956); Warring v. Winn-Dixie Stores Inc., 105 So. 2d 915 (Fla. 3d DCA 1958). In determining entitlement to a summary final order, all inferences must be resolved in favor oft the ne party opposing the summary final order. Manning vy. Clark, 71 So. 2d 508 (Fla. 1954). 5. Documents attached to a pleading are included as part of the pleading for all purposes, and if the document attached to the pleading contradicts the pleading, it must be denied. Rule 1.130, Fla. R. Civ. P.; Harry Pepper & Assoc. Inc. v. Lasseter, 247 So. 2d 736 (Fla. 34 DCA 1971), cert. denied, 252 So. 24.797. ce RR a ee et eee es a ee ia i a kk ke akan is s the andowner onto whick ‘ _ property. A central issue in demonstrate compliance with the i. DISCUSSION The term “Pay means “any other person.. “whose substantial interests will be affected by a proposed agency action... .” Section 120.52(12)(b), Florida Statutes. Petitioner ited property, and the property which is the subject of the permit modification, discharges water. It is uncontested that pursuant to the permit, and the permit ‘as ¢ proposed 1 to be modified, water from Summerfield’s land will drain onto CRLT Recommended Order of Dismissal is whether the downstream owner ‘has an in interest, which i is substantial or is affected by proposed agency action. 7. The proposed 1 modification at issue should be viewed in context. When the original conceptual permit was 5 issued for Summerfield, a factual determination was made that ; roughly 200 hundred acres of ‘Summerfil's property contributed flow amounting to 10 cfs, t the north onto CRLT property. The flow quantity, 10 cfs, is the product of the size of the ‘contributing basin times the area basin discharge rate (.05 cfs/acre). That factual issue, the area which contributed the flow and the ‘amount of the flow, would surely have been capable of challenge in an administrative proceeding at the time the conceptual permit was issued. Respondents concede as mach. Tn that Proceeding, the question of whether 10 cfs, 3.42 cfs, or 0 cfs (or 200, 68 or 0 actes) storia flowed to the north ‘would have been Tipe for determination and a material factual issue in n the ‘proceeding. Resolution of that fac staal is issue was essential to istrict’s permiting criteria. 8. Petitioner fas long made the argutivent, and Respondents “Summerfield and Martin County have n now admitted, that that analysis of contributing ‘basin and historic flow supporting the original conceptual permit jg incorrect. That is why the permit is being modified by Respondents. The application for the modification states “the current design and permit for arp or Sie ae emer Heer eee Orr RTO WE car’ ro gp Basin ‘B’ (approximate ly acres) is to discharge to the Coral Gardens drainage basin via : culverts under Cove Road. SFWMD staf now feel that Basin ‘B’ did not historically drain : to the north as previously thought and permitted and that redirecting Basin ‘B’ southward = : “will restore the historic drainage pattern for Basin ‘B’.” Respondents’ Application 000320-1, submitted August 23, 2000, attached as an Exhibit to Respondents’ Motion for Summary Final i Qreer _ 9. - Admitting now that 10 cfs north is the wrong answer to the question of what is the “historic drainage of Basin “B” . Respondents assert that the correct answer is 3.42 cfs north. The » ynderlying question, and that which must be answered in order to demonstrate entitlement for any permit, is the same, “what is the historic drainage of Basin ‘B’?” Respondents originally answered 10 cfs, recogniz their error and changed their answer to 3.42 cfs. Meanwhile, Petitioner asserts that the “correct answer is 0. Petitioner has a substantial interest within the “meaning of Section 120.52(12)(b), Florida Statutes, in any proposed agency action purporting to answer that question because it is the recipient of any water which is routed north. For the same reason that Petitioner was substantially affected by the original conceptual permit decision, it is substantially affected by a change in that decision. 10. The ALI determined: In opposing the Joint Motion for a Summary Final Order, Petitioner attempts to characterize the agency action as allowing 3.42 cfs to flow north towards Petitioner. If allowing such a flow were the effect of agency action in this case, summary disposition would not be warranted. But the SFWMD’s action in modifying the 1991 Conceptual Permit was to reduce flow, not to establish flow. A reduction in flow does not have a substantial effect on Petitioner, and Petitioner does not have standing to contest the reduction under Section 120.52(12)(b), _ Florida Statutes, Recommended Order of Dismissal, p. 2. Oe ee cer ET OI ET ecw near” 0 gar rr ‘ection 405-4.305, F.A.C., governs conceptual approvals. It provides, at subsection (4): _ The conceptual approval, . . . shall be modified in accordance with conditions “contained in Chapter 40E-4 and 40E-40, F.A.C. A conceptual permit or modification must meet the same standard for permit issuance: (oe + nor shall a conceptual approval permit applicant be relieved of the District’s .. information requirements or the need to meet the standards of issuance of permits » pursuant to Chapter 40E-4.305(5), F.A.C. ‘The standards concerning modification of permits, and the scope of review for the fification of a permit, are contained in Rule 40E-4.331, F.A.C. Concerning conceptual permits, the Rule provides: (1) Applications to modify a conceptual approval may be made for an “alteration of the design of the permitted surface water management system. Those ‘portions of the modified roject, and any additional areas impacted _by_the ‘triodification(s), shall be reviewed in accordance with the same criteria in effect at i that time of said modification. (Emphasis added.) ~ 43. The conditions for issuance of a permit are detailed in Rule 40E-4.301, F.A.C. It provides: 7 (1) ~——s Inorder to obtain a. . . conceptual approval permit under this Chapter .. . “applicant must provide reasonable assurance that the construction, alteration, peration, maintenance, removal or abandonment of a surface water management " system: not (a) will not cause adverse water quantity impacts to receiving waters “and adjacent lands; een) will not cause adverse flooding to on-site or off-site property;.... tt is clear from the rules “governing conceptial permits and conceptual permit permit modification must meet the same informational and permitting the original permitting decision in this wore - modification proposes 3. “The ALJ has mischaracteriz as some cOfisideration of whether discharge of surface waters to the north would cause adverse water auantiy impac § or adverse flooding. That same inquiry must be made and : that si same standard must be met | in reviewing the permit modification. The Respondents have . admitted that the underlying factual basis for that permit was incorrect. That raises, as a very material factual issue, ‘what the correct basin analysis is. In order to be entitled to the permit modi cation, which allows 3 ‘ef to flow to the north, Rule 40E-4.301, F. A.C., requires that a : finding be made that 3. 42 cfs directed toward the north will not cause adverse water quantity BS, : impacts or adverse foding impacts. In response to the same underlying question the conceptual as ; the correct answer to the question of Basin “B” historic drainage. The ALJ in the conclusion recited above, has improperly characterized the proposed agency action. The concept modification amounts to a finding that 3.42 cfs historically _cioharges to the north on p Pestione s property from Basin “B”, SFWMD cannot issue a a permit which allows that drainage ‘to ‘the north unless it first determines that the basin historically performed in that fashion. Whether the answer is 10 cfs, 3.42 cfs, or 0 cfs, the rules require that that answer, whatever it is, be subject: to testing in a fact finding proceeding. 15. The ALJ determined: It i is much | too ‘ate t to ‘Petitioner to challenge the flow allowed under the 1991 “Conceptual Permit under Sections 120.569 and 120.57(1), Florida Statutes, and Petitioner cannot use the point of entry created by the construction permit to _ challenge the modified conceptual permit. See Purdue _v. TJ Palm (Beach) Associates, Ltd., and South Florida Water Management District, 755 So, 2d 660 (Fla. 4" DCA 1999). Recommended Order of Dismissal, p. 3. Pp ““The Petitioner is not challenging the 1991 conceptual permit. The permittee initiated a modification of the 1991 conceptual permit. That permittee - initiated modification ‘of the “4991 conceptual permit is the action being challenged by the 6 weep co ORE REO RET TRR SERIE NTTIE et em EMER BERR TREES TE wit: lle arth =~ en ee oe ak ak i ak lili, lh ak ills. case in Perdue, the Petitioner is not attempting to collaterally attack an permittee -initiated ALI determined: The Petition for Formal Administrative Proceeding also may be seen as seeking {VOcation or modification of the 1991 Conceptual Permit. But only the SFWMD oke or modify one of its permits. See Section 373.429, Florida Statutes. This section does not provide a cause of action or standing for third parties. Recommended Order of Dismissal, p. 3. 1er’s challenge. In this case the permittees, Summerfield and Martin “wert County, initiated a modification to their conceptual permit. The permittee is certainly entitled to That act of modification, however, opens a point of entry for substantially $ to challenge the modification. 17. The ALJ determined: joner also argues in part that it can bring this action because Florida Pei ‘Administrative Code Rule 40E-4.331(1), concerning modification of conceptual “"pétimits, states in pertinent part: “Those portions of the modified project, and any __ additional areas impacted by the modification(s), shall be reviewed in accordance -s-with the same criteria in effect at the time of said modification.” (Emphasis added by Petitioner.) But Petitioner is not affected by the “ additional areas impacted by — the modification(s)” (i.e., the area to the south), and this rule does not give Petitioner standing to challenge the modification in this case. Recommended Order of Dismissal, p. 3. ignores the first portion of the quoted language from Rule 40E-4.331(1). The Petitioner is not affected by the “ additional areas impacted by the modifications” (i.e., the area to the south) in the sense that it is not located south of Summerfield and any increase in drainage to the south does not increase drainage onto the Petitioner’s property. The Petitioner is, however, cted by “those portions of the modified project . . . impacted by the modifications”. The cation reflects a recalculation and redistribution of drainage from so-called Basin Pore reper ee Oe ceeep op prmerrcc ver er ree we TSR TRON “Bp”. Th question ‘being answered by the modification (i.e., what is the historic drainage of Basin B”) makes clear that it is Basin “B” which is the “portion of the modified project impacted” within the meaning of Rule 40E-4.331(1). Basin “B”, therefore, must be reviewed in accordance with the same criteria in effect at the time of said modification. - IV. PROPOSED RECOMMENDED ORDER Petitioner Proposes that the following conclusions of law be adopted by SFWMD, in lieu of the ne Recommended Order of Dismissal entered by the ALJ: a, “Entry of a Summary Final Order, pursuant to Section 120.57(1)(h), Florida tes, is not appropriate in this case. b. The proposed permit modification challenged by Petitioner in this case raises an issue of material fact as to the historic drainage of the so-called Summerfield : Basin “B”. SFWMD originally permitted that basin for 10 cfs discharge to the north. Sk ak i tae AMIR IE BE “The permittee has admitted that the analysis supporting the original permit was incorrect and now asks for a permit modification allowing it to continue to discharge 3.42 cfs north. ~The Petitioner alleges that a correct analysis of Basin “B” drainage shows that 0 cfs corcomncmne. discharges north. This factual dispute is material and Petitioner is a party within the ‘s _ meaning of Section 120.52(12)(0)._ Florida Statutes, whose substantial interest will be | 4d ‘ . i affected by the proposed agency “action. i c. — Inits application ‘for permit modification, the permittee has admitted that | . the origina basin analysis submited in “support of the original conceptual permit is correct. The entire permit file, “including the application, was attached to and corporated in the permittee's Motion for Summary Final Order. The factual statements in the application contradict the Motion for Summary Final Order and demonstrate that Te oe meee apne boi : there is a ‘genuine issue 0 ‘material fact to be determined in this proceeding. Where a . document attached 2 aS an 1 exhibit to a pleading contradicts the pleading, the pleading must be denied. Rule 1.130, Fla. R. Civ. P.; Harry Pepper & Assoc. Inc. v. Lasseter, 247 So. 24 736 la. 3d DCA 1971), cert. denied, 252 So. 2d 797. a. Even if the permittee’ 5 statements in its application for conceptual permit modification had n not been included as part of the permittee’s Motion for Summary Final ; Order, it is clear from ie proposed modification that an issue of material fact exists which f summary final order. The proposed modification amounts to a we reanalysis of the so-called 4 Summerfield Basin “B” and effects a change as to both how that basin area is “defined and the quantity of water allowed to be discharged from that ~ basin. Basin “B BY "is therefore that “portion of the modified project impacted by the modification,” within the meaning of Rule 40E-4.331(1), F.A.C. Discharges from Basin “B”, both to the north and the south, must therefore meet the District’s criteria for issuance of permits. e. Petitioner has standing, as 4 substantially interested party affected by any proposed agency action concerning Summerfield Basin “B”, to challenge that proposed agency action. WHEREFORE, this Proceeding is hereby REMANDED to the Division of Administrative Hearings ; for ‘hearing on the petition filed in this case. WHEREFORE, Petitioner respectfully requests that South Florida Water Management District reject the Recommended Order of Dismissal entered in this case on November 15, 2001, eer og TTR RE ETT ee oe fet Bia “substitute the above prop Esquire, and Kathel amended order in its stead and remand this cause to the Division of Administrative Hearings for hearing on the petition filed in this matter. Florida Bar No. 4 14906 ERIC ASH, ESQUIRE Florida Bar No. 0976891 Lewis, Longman & Walker, P.A. 1700 Palm Beach Lakes Bivd. 1000 West Palm Beach, FL 33401 Telephone: (561) 640-0820 Attomeys for Petitioner CERTIFICATE OF SERVICE {| HEREBY CERT TIFY that a true and correct copy of the foregoing has been furnished to E. Lee Worsham, Esquire, Ruden, McClosky, Smith, Schuster & Russell, P.A., 222 : Lakeview ‘Avenue, Suite 800, West Palm Beach, FL 33401; Douglas H. MacLaughlin, “Adams, “Esquire, “South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, FL 33406 and Patricia I. Taylor, Esquire, Martin oS uaa sean ep ae County Board of County Commissioners, Martin County Attorney’s Office, 2401 S.E. Monterey Road, Stuart, FL “34996, by facsimile and U.S. Mail, this 30" day of November, 2001. 10 Soren - soUTH FLORIDA WAT STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS COVE ROAD LAND TRUST, L.L.P., Petitioner, YS. ; ; DOAH Case Nos. 91-3870 : 01-3885 SOUTH FLORIDA WATER MANAGEMENT __.. DISTIRCT, MARTIN COUNTY BOARD OF ~~ “GOUNTY COMMISSIONERS, and SUMMER- FIELD STUART PARTNERS, Respondents. ee ; ER MANAGEMENT DISTRICT’S RESPONSE TO PETITIONER’S EXCEPTIONS TO RECOMMENDED ORDER OF DISMISSAL The Respondents, SOUTH FLORIDA WATER MANAGEMENT DISTRICT (“District”), pursuant to Section 120.57, Florida Statutes and Rule 28-106.217, F.A.C.. files its response to Petitioner’s Exceptions to the Recommended Order of Dismissal _ (“Exceptions”) entered November 15, 2001. SUMMARY 1. On November 15, 2001, the Administrative Law Judge (ALJ) issued a Recommended Order of Dismissal (“Dismissal”) in the above styled cases. 2. From a review of the pleadings and motions and a non-evidentiary hearing, the ALJ concluded that: a) In 1991, the District issued Conceptual Surface Water Management Permit no. 43-00687-S (the conceptual permit) to Summerfield Stuart Partners EXHIBIT C SRE RE OPER : ‘summeticl allowing for, among other things, the flow of 10 cubic feet per “second ‘of water from Suimmerfield’s property to the north onto and across Petitioner’s property. b) The conceptual permit issuance provided for a point of entry to challenge the discharge of this water. c) No party challenged the conceptual permit. d) In 2001, Summerfield fequested a construction permit modifying the 1991 ater, from 10 : 2 cfs flowing from Summerfield’s property onto and across » cfs down to Petitioner’s property (the 6.38 cfs would be directed to the south, not affecting ae . Petitioner’ s Property). i : a e) Petitioner fi filed its ‘petition claiming that the modification is based on a new analysis of historic flow of water within the encompassing basin. f) However, Petitioner’s ultimate desire is to reduce the flow to its property to zero. g) Petitioner is thereby challenging the original 1991 Conceptual Permit which allowed for the full flow of 10 cubic feet per second to its property. | eo 3B Based on the above, the ALJ further determined that Petitioner lacks standing on two grounds. a) The first ground is that Petitioner has lost its point of entry to chalienge the » flow of the 10 cfs ofy water to its property by some 10 years and therefore lacks standing. b) The second 1 ground ‘is that the District's s action in | modifying the 1991 Conceptual Permit. was to reduce flow, not establish flow. A reduction in flow does not oS have @ substantial effect on Petitioner and therefore, Petitioner does not have standing to i contest the reduction under Section $20.52 (12)(b), Fla. Stat. (Recommended Order of Dismissal, page 2-3). 4. Petitioner’s exceptions and its original Petition are predicated upon its allegation that the District has entertained the redirection of most of the water towards the south due Jy aitiiciee to adgency determination, subsequent to the 1991 permit, that historic flow went south. : Thus, Petitioner alleges there is no reason why the its property to the north should be ___ Furthermore, the Petitioner argues that this recent analysis reopens a point of ‘entry for discussion of historic flow. Therefore, Petitioner claims it has standing as a i cen - “substantially affected party. STANDARD OF REVIEW 6. The standard for reviewing the ALI's Recommended Order of Dismissal in this case is set forth in Section 120.57(1)(1) of the Florida Statutes. The statute, in pertinent ~ “part, States as follows: ) The agency may adopt the recommended order as the final order of the agency. The agency in its final order may reject or modify conclusions of mn Sag law over which it has substantive jurisdiction and interpretation of ~~ Gninistrative rules over which it has substantive jurisdiction. When rejecting or modifying such conclusion of law or interpretation of administrative rule, the agency must state with particularity its reasons for ok cece malta Candy Al coeliac rejecting or modifying such conclusion of law or interpretation of sas: ~“;dministrative rule and must make a finding that its substituted conclusion ‘of law or interpretation of administrative rule is as or more reasonable than that which was rejected or modified....The agency may not reject or modify the findings of fact unless the agency first determines from a review of the entire record, and states with particularity in the order, that the that the findings of fact were not based upon competent substantial seep ce ee Mae ce -ITE CORT CORE rr rr evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law.... 7. As has been stated in previous motions and as will be clarified below, this matter does not involve disputed issues of material fact, Therefore the only applicable standard is review of conclusions of law and interpretations of administrative rules. 8. Concerning conclusions of law and interpretations of administrative rules, the District may reject oF modify only those conclusions of law or interpretations of administrative rules over which it has substantive jurisdiction. 9. Determining standing as a pure matter of law is probably not a matter of law over which the District's Governing Board has substantive jurisdiction. This is reflected in the f Deep Lagoon Boat Club, Lic. v. sikh ; recent case 0 con Boat Club, Ltd. v. Sheridan, 784 So.2d 1140 (Fla. 2d DCA 2001). 10. In Deep Lagoon the Department of Environmental Protection (DEP) had originally issued a permit for a marina. The permit was challenged by Sheridan, but the challenge was unsuccessful and the permit was issued. That permit eventually expired before construction took place. The same applicant again applied for a permit, and again Sheridan filed a challenge. The applicant sought dismissal of the challenge claiming collateral estoppel and res judicata. Sheridan argued against these claims because the environmental rules had changed since the first permit was issued. The ALJ ruled that collateral estoppel and tes judicata were not applicable. The issue on appeal was whether the agency, DEP, had the rig view the ALJ's conclusions interpreting whether collateral estop el and res judicata were applicable. The court found that interpretation a matter over which DEP did not have substantive jurisdiction or a aed cep copper Pe expertise, and thus DEP did not have the right to review the ALJ's legal conclusions on these matters. 11. If the ALJ's decision in this matter turned solely on 4 legal interpretation of standing issues, under Deep Lag oon such a conclusion would probably not be subject to review by the District's Governing Board. 12. However, as is further discussed below and throughout the record, the bases for the ALJ's determination of standing results from the ALI's interpretation of the District rules at issue for a permit modification ( (ie. does the permit application at issue allow consideration of Petitioner's interest in not having any flow of water from the Summerfield property - if so, , the Petitioner t has standing, if not, the Petitioner does not have standing). These are issues in which the District has substantive jurisdiction and expertise and as such, are interpretations which the Board may modify or reject so long as the Board’s interpretation is “as or more zeasonable” than what has been concluded. Ultimately, the Board’s review of the ALJ’s interpretation could have an impact on the standing conclusion. DISCUSSION Ee aan STANDING 13. The well accepted standard for standing is as set forth in Agrico Chemical Co. v. artment of Environmental Régulation, 406 So.2d 478 (Fla. 24 DCA 1981). In order Department of Environmental Kegulghoh to establish standing one must demonstrate: 38) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of the type or nature which the proceeding is designed to protect. a ia open oper cee eee npr oat 14, The thrust of Petitioner's exceptions is that the overall flow from the Summerfield property is appropriate for consideration in this proceeding. See Exceptions 6 - 9, 14 - 17. To that end, Petitioner asserts the following: 1) that the 1991 conceptual permit. allowing all flow from the Summerfield property was incorrect; 2) that under the District's historical flow considerations (Section 6.2(a) and (b) of the Basis of Review) there should be no flow coming onto its property from Summerfield; and 3) Summerfield's voluntary permit application to reduce most of the flow from its property to Petitioner's property opens Up for reconsideration what is the appropriate the overall flow. 15. The key to determining whether these matters are appropriate in this proceeding is whether these matters are appropriate for review when considering an application to modify the 1991 permit. If so, the Petitioner clearly meets the standing test under Agrico. If such a review is not appropriate under this permit application, Petitioner is not suffering any injury of sufficient immediacy, its alleged injury is not the type this proceeding is designed to protect, and it clearly fails the standing test. 16. The permit application being considered in this proceeding is simply a request to modify the 1991 permit. It would reduce the flow onto Petitioner's property presently authorized under the 1991 permit. 17. The District must review this application and approve or deny it based on whether the applicant has provided reasonable assurances that modified discharges that it is proposing will meet District standards. 40E-4.301 and 40E-4.302, F.A.C. The District cannot require Summerfield to increase its proposed discharge to the south (and thus reduce further the discharge to the north onto Petitioner's land) as a requirement of this permit modification application. 408-4.331, FAC. 18. Because the discharge as proposed under this permit modification does not direct any additional discharge onto Petitioner's property, and because there is no basis in this See PR ELUTE ver pee owe with a proceeding to require the applicant to further reduce the discharge going to Petitioner's property, the Petitioner has no standing in this maiter. 19, On the other hand, to challenge overall basin flow is challenging the 1991 conceptual permit. The current and relevant issue to be decided is the whether a reduction in flow to the north injures Petitioner. 20. Stated another way, if Petitioner claimed that it wanted to retain the full water flow and this reduction would ‘actually injure the property, the reduction would be injurious. The Petitioner would have standing. 21. Petitioner has not claimed that the reduction will cause injury. Therefore, it does not have standing. . ~ . ISSUES OF MATERIAL FACT 22. To further its desire to debate historic flow in the administrative setting, Petitioner alleges two separate reasons as a pasis for disputed issues of material fact, First, the District allegedly opened the door for historic flow debate. Second, the ALJ misapplied District rules. Taken together, Petitioner hopes these two disputed issues will confer standing upon them. 23. Petitioner cleverly creates the impression that the District has changed its opinion on historic flow within the basin ‘and such change was-the sole impetus for the modification. Creating this impression puts the cart before the horse by creating an alleged disputed issue of material fact, but which is not relevant for an initial standing analysis. 24. The references to an admission by the District regarding historic flow is really a statement made by Summerfield in its application for permit modification. The District pre Per cee perenne ans or ae staff did not adopt this opinion in its staff report. District rule 40-E.305(3), F.A.C. states in part, where “there is any inconsistency between the permit and the staff report and other information in the application file (Summerfield application statement) that permit and the staff report shall control.” 25, Nevertheless, Petitioner used this opinion over and over in its Exceptions to create the impression that the modification was solely based on a new analysis thus opening the ; door for all “interested” parties to throw in their two cents on the basin’s historic flow. 26. ~ Petitioner also use: this opinion to make a further leap that the reduction in flow isin essence an “admission” that overall flow is fair game for debate. Again, Petitioner’s intention is to use Distt rules in such as way so as to create a disputed issue of material fact as to what the overall flow should be in hopes of creating standing to proceed . 27. AS stated earlier, the Governing Board has legal authority to modify the ALI’s recommendation on issues concerning this permit and the rules governing it. If the Board finds that the ALJ misinterpreted the District’s rule on modification, then the Board can reject or modify the interpretation and that could have an effect on the ALJ *s standing analysis. 28. As stated in the Standard of Review, Section 120.57 (1)() Fla. Stat., the agency has substantive jurisdiction over its own rules. Should the Board reject the ALJ’s interpretation of 40E-4.331, BAC. it “must make a finding that its substituted interpretation of the e rule is ‘as or more reasonable” than the ALJ's interpretation. 29. To further create disputed issues of fact, Petitioner misapplied 40E-4.331, F.A.C. by suggesting that, in essence, if historic flow was fully reviewed at the conceptual oR Te care ac ae ae oper - ere cerge permit application level, then historic flow must be fully reviewed at the modification level. 30. The ALJ properly rejected Petitioner’ s argument. The rule precisely states that “{t]hose portions of the modified project, and any additional areas impacted by the modification shall be reviewed with the same criteria in effect at the time of said modification” ‘As the “ALI pointed out, the “additional areas impacted” are the areas to the south, opposite o of Petitioner’s property. (Recommended Order of Dismissal, page 4). 31. Petitioner, on n the other hand, uses 40E-4. 301, F.A. C. to further suggest that the review process for a modification is the same as the review process for a conceptual permit. T ake ep further, this suggestion means that every modification request should require a a redundant analysis which could result in an enormous taxpayer expense or the revocation of conceptual permits each time a modification is requested. 32, The ALJ was correct when he stated that the conclusions reached in a conceptual permit are meant to bind the District. (Recommended Order of Dismissal, page 3-4). If conceptual permits did not bind the District, then entire developments could be lost at the whim of a differing engineering or hydrologic opinions years down the line, 33. Rejecting this interpretation and adopting Petitioner's self serving interpretation could not possibly be an “as or more reasonable interpretation” as required under Section 120.57(1)Q). 34. Under “A0E- 4, 331, Petitioner is not 4 substantially affected party because its property is not an “additional area” which the modification impacts and conceptual permits are meant to bind the District. Therefore, Petitioner has not created a disputed fact as to its standing in this case. ce eqeep ogee owe ere” ke ae A Ae eee CONCLUSION 35. The Standard of Review under Section 120. 57(1)(), limits the Governing Board’s rejection or modification of the ALI’s recommendation to areas where the Board has substantive jurisdiction, such as the District rules and how the rules were applied. 36. | The Board cannot reject or modify the ALJ’s conclusion of the fundamental legal principal of standing, if it finds the ALJ’s interpretation of District rules was correct. 37. In this case the facts as 5 stated i in ‘paragraph 2, except (g) are undisputed. 38. Those undisputed facts do do ‘not ‘confer standing in this administrative proceeding to Petitioner. . 39. The ALJ correctly interpreted 40E-4.331, F.A.C. Petitioner is not a substantially affected party. | 40. Because Petitioner is not a substantially affected party and the point of entry to challenge the 1991 conceptual permit has long since closed, Petitioner lacks standing to proceed in this case. 41. Based on the foregoing, The Governing Board should reject the Petitioner’s proposed order and adopt the ALI’s “Recommended Order of Dismissal in toto. Respectfully Submitted, Ruth A. Holmes, Esq. Florida Bar No. 0118915 South Florida Water Management District 3301 Gun Club Road West Palm Beach, FL 33401 10 ge — oe rr PR RRR TT Fr rr oe ae Telephone: (561)682-6274 CERTIFICATE OF SERVICE | HEREBY CERITFY that a copy of the foregoing has been furnished this 10 day of December 2001 via facsimile an U.S. Mail to Robert Pp. Diffenderfer, Esq. and Eric Ash, Esq, Lewis, Longman, & Walker, P.A. 1700 Palm Beach Lakes Blvd., Suite 1000, West Palm Beach, Florida 33401; Patricia 1. Taylor, Martin County Board of Commissioners, 2401 SE Monteray Road, Stuart, Florida 34996; and E. Lee Worsham, Ruden, McCloskey, Smith, Schuster, & Russell, P.A., 222 Lakeview Avenue, Suite 800, west Palm Beach, Florida 33401 eee, ; ( ( 5 carrey joa 's Ruth A. Holmes, Esq. Fee CLERK OF THE SOUTH fx ATER MANAGEMENT DISTRICT pecan BEX (0, JOO7 BY DEPUTY CLERK il ed a a ks. cot i ae ae fle Be ah - BEFORE THE GOVERNING BOARD OF THE souTH FLORIDA WATER MAN AGEMENT PISTRICT COVE ROAD LAND TRUST, LLP. Petitioner, POAH CASE NO. 61-3870 Vv. DOAH CASE NO. 91-3885 SOUTH FLORIDA WATER MANAGEMENT DISTRICT, MARTIN COUNTY BOARD OF COUNTY COMMISSIONERS and SUMMERFIELD STUART PARTNERS, - Raspondents. a RESPONDENTS SUMMERFIELD’S AND MARTIN COUNTY’S JOINT RESPONSE TO PETITIONER'S EXCEPTION $ TO THE RECOMMENDED ORDER pursuant to Rule 38-106.217, F.A.C., Respondents Martin County Board of County Commissioners Martin County”) and Summerfield Stuart Partners Summerfield”) file the following joint response to the Exceptions filed by Petitioner (the “Exceptions”) in opposition to the Recommended Order that was entered on November 15, 2001, by Administrative Law Judge J. Lawrence Johnston (the “ALJ”) Statement of the Case 1. On August 7, 2001, Petitioner Cove Road Land Trust (the “petitioner” or the “CRLT”) filed two Petitions for Formal Administrative Hearings challenging Applications 000320-1 and 000823-8 filed by Martin County and Summerfield (the & applications”), 10 rnodify the conceptual management and storage of surface waters Permit Number 43-00087-S issued in 1991 (the «4991 Conceptual Pe it”) and authorize construction. Respondent South Florida Water Management District (the “District”) forwarded the petitions to the Division of Administrative Hearings (DOAH”) fora WPB:1 3359471 EXHIBIT D wee cere chert a a ee Section 120.5701). FS. fact-finding pearing. The ALJ subsequently consolidated both petitions. 2. The 1991 Conceptual Permit authorized 10 cfs for the design storm to be discharged to the north toward the Petitioner’s property. In 1993, Summerfield constructed its surface water management system, which discharges to the north, a5 approved. Pursuant to 4 request from the District, the Petitioner and other nearby japdowners, Respondents ‘Summerfield and Martin County filed the Applications now being challenged by the Petitioner. The Applications request redirection to the south of all but 3.42 cfs, which will continue to discharge to the north. Petitioner wants the feroaining 3.42 ofs to be ceased or redirected to the south. 3B. All respondents jointly filed a Motion for a Summary Final Order Against Petitioner (the *Joint Motion”) pased upon the following grounds: A. > Petitioner does not have standing. B. Petitioner did not allege 4 genuine issue of material fact. C. Respondent District does not have jurisdiction to accept the petitions because Petitioner is not challenging the modification requested by Summerfield and Martin County and is not challenging the specific action that is proposed by Respondent District. D. The facts that would entitle the Petitioner to relief have previously, peen determined adversely to the Petitioner and were final agency agijon in 1991, when Respondent District approved the Conceptual . Permit for Summerfield in 1991; and E. _ Because Petitioner gid not challenge the 1991 Conceptual Permit jagued to Summerfield, which approved Summeifield’s flows to the north, the Petitioner waived its right to challenge the factual — findings determined by the District that were required before the -vsemeess 1991 Conceptual Permit could be issued and which were incorporated into that permit. \WPB:1 235947 ae ee eer it”’ apm RE OF 4, A telephonic hearing on the Joint Motion was held by the ALJ with all parties participating. The ALJ issued his Recommended Order of Dismissal on November 15, 2001. His Recommended Order is based upon his legal conclusion that the Petitioner does not have standing to bring the present action and consequently that the District is without jurisdiction to hold a Section 120.57, F.S. hearing. The reasons given by the ALI for his recommendation of dismissal are: A The Applications are not to establish Summerfield’s flow to the north across Petitioner's property. The District established Summerfield’s flow in 1991 when it approved Summerfield’s 1991 Conceptual Permit. The Applications instead aze to reduce flow towards the Petitioner (Emphasis supp: ied by Summerfield and Martin County); B. Petitioner has no standing: Petitioner did not allege 4 disputed genuine issue of material fact; D. The proposed reduction in flow does not have a substantial effect on Petitioner, it only affects the property to the south where the redirected flows would go; E. Petitioner waited 10 years to challenge Summerfield’s northern discharge throvgh its property and consequently its action was, “puch too late;” F. Petitioner cannot initiate revocation of or modification to the 1991 permit; only the District can do it and G. Petitioner does not have standing to challenge the adequacy of the data that were presented in 1991 to the District during the initial conceptual permit review process; only the District has the authority to challenge the sufficiency of data submitted by Summerfield. WRB: 33594:1 ferent eer epee gp et ‘The District May Not Reject the ALJ’s Conclusion of Law that Petitioner Lacks Standing For the Petitioner to prevail in the face of the AL's Recommended Order of Dismissal, the District Governing Board must have the legal authority to reject the ALY’s conclusions of law that the District does not have jurisdiction te entertain this matter because the Petitioner does not have standing to pring this action. | Toward this end, the Petitioner, i Exception No. 3, urges that the District has the authority to modify or qubstitute its own conclusions of law for those in DOAH’s recommended order, without limitation. Howevet, Petitioner has grossly misstated the law regarding the authority of the District Governing, Board to reject the ALI’s conclusions of law and, as applied to this case, the Petitioner is simply wrong. While once this was the law in Florida, in. 1999 the Florida Legislature amended Chapter 120, F.S. and now an agency may only, “.. reject or modify the conclusions of law over which. it has substantive jurisdiction” (underlined language added by the Legislature in 1999). Section 120.5701)0), F.S- (1999) (the #1999 Amendments”). In Deep Lagoo# Boat Club, Ltd. V. Sheridan, 784 $0.24 1140 (Fla. a DCA 2001), (the “Deep Lagoon” case), the Second District Coutt of appeal interpreted jhis language. The District is pound to follow the Deep Lagoon decision, MeGauley ¥. Goldstein, 653 $0.24 1108 (Fla. 4° DCA 1995). Following the Deep Lagoon case, a5 & result of the 1999 Amendments the District Governing Board does not have authority to reject the ALJ's conclusions of law that the “Petitioner does not have standing and that the District does not have jurisdiction to heat wPB:13359421 aa peroepr rer yny en this matter. ‘Consequently, as armatter of law, the District Governing Board must accept the ALP’s recommended order and dismiss Petitioner’s actions, No further inquiry need be made for this proceeding. fh Deep Lagoon, a petitioner challenged a proposed environmental resource permit that the Florida Department of Environmental Protection (the “FDEP”) was about 10 issue. The FDEP had previously issued a permit authorizing the identical activity, but the first permit had expired. During the hearing, the applicant urged that the doctrines of res judicata and collateral estoppel barred petitionet’s action, because the relevant issues for the second payment had previously been determined adversely to the petitioner before the first permit could be issued. The petitioner argued that, following issuance of the first permit, the law regarding secondary impacts had changed so these legal doctrines did not bar the petitioner from challenging the second permit. In the final order, the FDEP Secretary sided with the petitioner, and adopted the ALI’s recommended order that the permit should be denied. As part of the recommended order, the ALJ determined that the doctrines of res judicata and collateral estoppel did not bar petitioner’s action challenging the second permit. However, in the appeal, the FDEP argued that the Secretary’s interpretation of the 1999 Amendments was too restrictive. The FDEP contended that, because determining the secondary impacts of the project was within the agency's substantive jurisdiction, the Secretary should have been able to reject the ALJ’s conclusions of law that the doctrines of res judicata and collateral estoppel did not apply. The appeal court agreed with the petitioner, that the permit should be denied, and confirmed that, as the result of the 1999 Amendments, the Secretary did not have WPB:133594:3 tn ee ed oe ad reer” substantive jurisdiction over the application of res judicata and collateral estoppel. The court's reasoning was that the FDEP’s application of res judicata and collateral estoppel was not one that involved the FDEP’s area of expertise but, instead, required applying a lezal concept typically resolved by judicial or quasi-judicial officers. Deep Lagoon, supra. at 1142. Like res judicata and collateral estoppel, standing is of course a fundamental legal concept typically resolved by judicial or quasi-judicial officers. Standing is a basic and fundamental judicial doctrine and is a limitation on legislative power to grant a private person the right to litigate a matter of essentially public concert. Standing to sue depends upon whether the plaintiff’s economic or civil interest or the interest of the public is sufficiently important to justify a judicial determination of the controversy. A party has no right to object to proceedings that do not affect him. “,..Standing is, in the final analysis, that sufficient interest in the outcome of litigation which will warrant the court’s entertaining it..." General Development Corp. v. Kirk, 251 So.2d 284, 286 (Fla. 2 DCA 1971), See also Sec. 4-15, Trawick ’s Florida Practice and Procedure (2000) at pp 65 and 66. Therefore, the general legal principles involved in a determination of whether or not Petitioner CRLT has standing are not matters over which the District has “substantive jurisdiction.” Deep Lagoon, supra at 1143, Accordingly, the ALJ’s conclusion of law that Petitioner lacks standing may not be rejected by the District Governing Board. Accordingly, because in our matter the ALJ determined as a matter of law that the Petitioner does not have standing and consequently, that the District does not have jurisdiction over this matter, the District Governing Board may not reject this conclusion WPB:432594:1 TRE EES ETE 20 ARR RE RE ER ree ae or SSRs one Ter RR mE re POORER RECT RRR OTR RE rR er of law and must accept the ALI’s recommendation to dismiss the petitions. Section 120.570)(), B.S. Deep Lagoon, supra. ‘Property Rights May Not be Determined in an Administrative Proceeding ‘There is another fundamental and very important reason that the District does not have jurisdiction to entertain the petition filed by the CRLT. The common thread in Petitioner's allegations is that Summerfield does not have the “legal rights” or permission to drain water onto or into the Petitioner’s property. Determining Summerfield’s “legal rights” to drain into Petitioner’s property, and conversely the Petitioner’s responsibility to accept the discharge from Summerfield, requires a determination not only regarding historic discharge but whether Summerfield may have obtained a prescriptive easement to drain across the CRLT property. In other words, resolution of this conflict requires a determination of the parties’ property rights. The circuit courts of Florida have exclusive original jurisdiction, “...in all actions involving titles or boundaries or right of possession of real property.” Art. V, Sec. 20(2)(3), Fla, Const. Sec. 26.012@)(g), F.8,. An administrative proceeding is not the proper forum to resolve disputes related to title of or to possession of real property. See Buckley v. Dept. Of Health and Rehabilitative Services, 516 So. 24 1008, 1009 Fla. 1. DCA 1988); Miller v. Dept of Environmental Regulation, $04 So 2d 1325 (Fla. i* DCA 1987); Haneman v. Carter, 17 F.ALR. 3684, 3690 (Fla. DEP. 1995); Powell v. Alabama Electric Cooperative, 15 PF. ALR. 325, 326 (Fla. DER 1992). Accordingly, the District Governing Board may not resolve private property rights; only the circuit courts may do that. WPB133594:1 ; ; ; i i oR RR etree bees eye Response to Petitioner’s Specific Exceptions More specifically, with respect to Petitioner’s individual Exceptions, Respondents Summerfield and Martin County respond in numerical order to the Exceptions as listed by the Petitioner: 1. Exception No, 1. In Exception No. 1 the Petitioner lists the ALIs conclusions with which the Petitioner disagrees. Petitioner elaborated its reasons for disagreement in later Exceptions and those will be responded to in order. Accordingly, no corresponding response or comment to Exception No. 1 is required. 2,5,8,9,14 ¥Exception Nos. 2, 5, 8.9.14, These Exceptions all discuss the Petitioner's position that admissions allegedly were made by the Respondents. Petitioner attempts to characterize the following as an “admission” by the Respondents: (3) Summerfield’s and Martin County’s actions in applying to redirect the majority of their discharge to the south, (ii) reference in the Application by Summerfield’s consultant to conclusions reached in drainage studies conducted by other consulting firms and (iii) the reference in the Application by Summerfield’s consultants to the District staff's “feelings” with regard to the direction of historic drainage. Attempting to call this an “admission” is such a “stretch” that it barely justifies a response. However, assuming arguendo, without agreeing, that a discussion regarding “admissions” is warranted at this point, Martin County and Summerfield respond as follows: First, for something to constitute an “admission” by a party, tt must be concerning a fact or issue that is germane to a matter being heard on its merits. Somehow, the Petitioner has leaped into a fact-finding hearing way before the District has decided * WWPB:182594:1 PORE OTR Irae er ee Sop meee pores SORE ORR RRR EERE or EE re TR REET whether the Petitioner has standing to bring this action and whether the District has jurisdiction to hear it. The ALJ determined as a matter of law that Petitioner does not have standing to bring this proceeding in the first place, and consequently that the District does not have jurisdiction to hear this matter so by definition any alleged “admission” to anything is totally irrelevant and immaterial to this case at this state of the proceedings, since there is no hearing being conducted on the merits of Petitioner’s petitions. Neither Summerfield nor its consultant ever gave any opinion regarding historic discharges or concerning “legal drainage” rights. The cousultant’s application contained hearsay that referenced what others might have said or written and there was no suggestion or indication in the record that this position was ever agreed to by Summerfield. In fact, Summerfield has always disagreed vehemently that historic discharge from the Summerfield property was ever to the south. As has been explained, Summerfield applied to redirect its flows as an accommodation to the District, to the Petitioner and to other nearby property owners. Even if Summerfield’s consultant had given the gratuitous opinion that historically drainage did go to the south, such opinion would not be considered an admission regarding the issue of whether Summerfield has “lawful” drainage to the north across the Petitioner’s property. The issue of “lawful” drainage is an ultimate issue and requires the application of a legal standard to a set of facts. See Ehrhardt, Florida Evidence Sec. 703.1 (2000 Edition) at p 598. fin 15 and cases cited therein. Petitioner alleges in its petition that Summerfield does not have the “legal right” to drain across Petitioner’s property and this is why Summerfield must cease or redirect its flows. Again, these are property rights issues, not appropriate for an administrative WPB1 3339421 SSR RRR OF TR t t b b B 5 i i t i: SR oe rome SOR ECR RICOTTA OES RR ET TREE PNET TEE proceeding, but the inquiry does not end with a determination regarding the direction of historic flow. The Petitioner improperly treats the direction of “historic drainage” as being tantamount to whether or not Summerfield’s discharge is “lawful.” This approach is greatly oversimplified. Deciding this matter requires a declaration regarding the common law of water rights, and this declaration mrust also take into account the law of prescriptive rights. Discharge that is opposite the direction of “historic flows,” if tolerated for the requisite period and under the right conditions, will ripen into a prescriptive easement and therefore be “lawful.” Consequently, resolution of this matter . must be done by circuit court outside the penmitting process. Department of Transportation v. Burnette, 384 So. 24 916 Fla. 1* DCA 1980); Florida Water Law, 1980, Maloney, Plager, et al at 630 and corresponding footnotes; Westland Skating Center, Inc. v. Gus Machado Buick, Inc., 542 So0.2d 959 (Fla. 1989). Permit Challenge Will Not Proyide Relief Desired by Petitioner the ALI , in his Recommended Order, correctly pointed out that, “Petitioner does not want any flow to the north to be allowed anymore.” Recommended Order, page 2. The only relief available arising out of the petitions is denial of the modifications requested in the Applications. This relief does not provide Petitioner the relief it wants. If the District denied the County’s and Summerfield’s Applications being - challenged by the Petitioner, or if the Applications were withdrawn, Summerfield’s 1991 Conceptual Permit would stand intact, unmodified. Petitioner's property would stil) be subject to the 10 cfs to the north, which has been unchallenged final agency action of the District since 1991. This explains why the ALI concluded that the Petitioner as a matter WPB.13335941 10 of fact, and of law, will not be substantially affected by the District’s proposed action in redirecting 2/3 of the 10 cfs to the south. 3. Exception No. 3, The bedrock of all of the Petitioner’s Exceptions, including Exception No. 3, depends upon the power of the District to reject the Administrative Law Judge’s conclusions that the Petitioner has no standing and that the District does not have jurisdiction to hold a section 120.57, F.S. hearing challenging Summerfield’s Applications. For the reasons explained above, it is now the law that the Di strict ig without authority to reject the ALJ’s conclusions of law that the Petitioner is without standing and that the District is without jurisdiction in this matter. Consequently the petitions must be dismissed and the District is without the power to take any other action on the Recommended Order other than to adept it and dismiss the petitions. 4, Exception No.4, The ALI, in his recommended order at page |, stated that a summary final order is not authorized by Chapter 120. This is a uniform interpretation that is made by DOAH because, with regard to Sec. 120.57(1) proceedings, DOARH’s role is to find facts, not to issue final orders terminating cases. Wiregrass Ranch, Inc. v. Saddlebrook Resorts, Inc., 645 So 2d 374, 376 (Fla. 1991). Further, he explained why he had to relinquish jurisdiction to the District, It follows that the ALJ believes that he can only make a recommendation to the agency and he issued a recommended order that is now before the District Governing Board for consideration. Thus, Petitioner’s reference in Exception No. 4 to the standards that must be met before a summary final order or summary judgment can be issued is not relevant to the instant proceeding. WeB:133594:1 li oe RR OO RRR PE LT eS TT Me 5. Exception No.5, The case cited by Petitioner in this Exception is cited for the purpose of arguing that Summerfield and Martin County “admitted” in the Application, contained in an Exhibit to the Joint Motion, that it made a mistake in the 1991 Conceptual Approval regarding historic drainage. Summerfield and Martin County agree with the Petitioner that the Application is part of an Exhibit to the Joint Motion. However, for the reasons explained in the response to Exceptions 2,5, 8,9 and 14, nothing in the Application contradicis the Joint Motion and, even if Summerfield or Martin County had made such an admission, which they did not, it would not affect the ALJ’s recommendation, which is to end the proceeding before it can be heard on the merits. 6. Exception No, 6. Summerfield and Martin County agree with the Patitioner’s statement of the law regarding standing and that the central issue in the Recommended Order of Dismissal is whether the Petitioner will be injured in fact by the proposed agency action. Petitioner again states that the permit modification will authorize drainage of water from Summerfield into the CRLT property. (Emphasis supplied.) As was noted by the ALJ, the unchallenged 1991 Conceptual Permit authorized 10 cfs to flow through the CRLT property and the proposed amendment will reduce that flow to 3.42 cfs. The ALJ found that the amendment is for the purpose of reducing flow, not establishing it. The ALJ also found that the reduction in flow will not injure the Petitioner. The ALJ determined that if the Petitioner is being injured by the existing flow, the reduction in flow will cause the Petitioner less injury than the pre- amendment condition, WPB:1 3359471 So TERRE OEE ES oe ed A lia od Teper re 7. Exception No.7. In Exception No. 7, the Petitioner concurs that it could have challenged the 1991 Conceptual Permit, that the issue of historic flow direction and quantity from Summerfield was a material factual issue ripe for challenge at that time and that a factual determination on that issue was made by the District when it issued that permit. Summerfield and Martin County concur with the language in Exception No. 7 and its inevitable conclusion that the 1991 Conceptual Permit did determine, a3 a matter of fact, and of law, that 10 cfs historically flowed to the north from Summerfield and that Summerfield has the “legal rights” to drain that quantity and in that direction. §. Exception No. 8. See response to Exceptions 2,5,8,9, and 14, above. 9. Exception No. 9. See response to Exceptions 2,5,8,9, and 14, above. Assuming for argument purposes, even if Summerfield’s drainage must be directed to the south, it may not be accomplished as part of this proceeding. Summerfield has not requested redirection of all of its drainage to the south and the District has net requested the modification or revocation of Summerfield’s permit, See the Recommended Order of Dismissal at pages 3 and 4. 10, Exception No. 10, Summerfield and Martin County concur with Petitioner’s quote lifted from the ALI’s Recommended Order of Dismissal. 11-13. Exception Nos. 11 through 13. Summerfield and Martin County do not disagree with the Petitioner's quotes of rule language from the F.A.C. 14. Exeeption No. 14, The Petitioner disagrees with the ALI’s finding of fact that the Amendments being challenged reduce flow and do not establish flow, which was done by the District when it issued the 1991 Conceptual Permit. After agreeing in Hxception No. 7 that the 1993 Conceptual Permit approved 10 cfs to the north, the WPB133594:1 13 Sep eRe ee SPOR REIT ERIE wr TTT PTE ERT RERETREETET SORT ory " TERRE RETO OR NORRIE ere on rrr cee Petitioner continues to argue that the Application to reduce flow to the north from 10 cfs to 3.42 efs for the design storm is tantamount to the establishment of the flow of 3.42 cfs from Summerfield in the first place. The District may not reject or modify findings of fact unless it first determines from a review of the entire record, and states with particularity in the Final Order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law. Sec. 120.57(1)(), F.S. The Petitioner has not poi nted out why the ALJ's finding of fact regarding this issue is not based upon competent substantial evidence, or presented any evidence in support of the Petitioner’s position, or argued that the proceedings did not comply with essential requirements of law. Under these circumstances, the ALJ's finding of fact that the current Application is to reduce flow and not to establish it may not be disturbed. 15. Exception No. 15. Again, the Petitioner argues that the Application has “opened up” for challenge all of the original flow that was approved by the District in 1991 when it approved the Conceptual Permit, but simultaneously the Petitioner takes a position inconsistent with its argument that it is not challenging the 1991 Conceptual Pennit, The ALJ made a finding of fact that the Application was requesting a redirection of most of the flow to the south, but was not requesting any change to 3.42 cfs out of the original 10 cfs flow that was authorized in 1991 to flow to the north. The Petitioner has not given any legitimate reasons why this finding should be rejected. See response to Exception No.14 above. 16. Exception No. 16, Same response as to Exception No. 15 above. WP8:; 1 33594:17 14 Sl COMMA eee ee td Lee a ca a ee SpE ep oem spre 17. Exception No. 17, The ALY made a finding of fact that a reduction of 10 ef 10 3.42 of flow toward the Petitioner’ 5 property affected the property to the Sourh of Summerfield but did not affect the Potitiones’s property. Again, the Petitioner simply chooses to argue with the findings of faets made by the ALJ. Petitioner bas never explained how it is harmed or affected by the reduction of flow from 10 off to 3.42 cfs te the north. Petitioner argues that the modification is answering the question, “what is the historic drainage of Basia “G7” However, what is clear from Petitioner’s Exception No. 7, 3s that the Petitioner agrees that the 1991 Conceptual Permit already answered that by conchiding that 10 of: hisosieally flowed to the north from Summerficld, That determination is final agency action, unchallenged by the Petitioner, as admitted by the Petitioner in its Exception No. 7. 18 (a-{e) _Excention Nos. 18 (a) fe), For all the foregoing reasons, the proposed order urged in Exeeption Nv. 18 by the Petitioner should be rejected. 227 Lakeview Avenue, Suke 800 West Palo Beach, FL 33401 (561) 838-4500 » Berhreh- E. Worsham Florida Bar No.. 195594 WPS1 335941 is i i Aa POPE: re OORT Tre pee eer opr pos CERTIFICATE OF SERVICE THEREBY CERTIFY that a copy of the foregoing has been furnished this day of December 2001 via facsimile transmission to Robert P. Diffenderfer, Esq. and Eric Ash, Esq., Lewis, Longman & Walker, P.A., 1700 Palin Beach Lakes Blvd., Suite 1000, West Palm Beach, FL 33401 and Ruth Holmes, Esq., SOUTH FLORIDA WATER MANAGEMENT DISTRICT, 330! Gun Club Road, West Palm Beach, FL 33406. RUDEN, McCLOSKY, SMITH, SCHUSTER & RUSSELL, P.A., Attorneys for Respondent, SUMMERFIELD STUART PARTNERS 222 Lakeview Avenue, Suite 800 West Palm Beach, FL 33401 (561) 838-4500 SABBARE EE, SR UURDA Py By: Be rhiohetn Pa ee OF ge ‘by, E. hee Worsham f Ss Ry s Florida Bar No.: 195594 Faye 36% go eee ite ft fa: SEAL if: 4 oe owere > fei 4 Bey ish SS Gigere nee? a > 4, e ON MAE Waves PILED WITH THE CLERK OF THE “SOUTH FLORIDA WATER MANAGEMENT DISTRICT W8:13359477 16 to come i ts A PE germane ger cp oreee mere See ce oF paren pe peepee ge . ee Lil eA Se A a a SOUTH FLORIDA WATER MANAGEMENT DISTRICT RESOLUTION NO. 01-34_ A RESOLUTION OF THE GOVERNING BOARD OF THE SOUTH ‘FLORIDA WATER. - MANAGEMENT DISTRICT RELATING TO. -EFFICIENCY IN GOVERNING BOARD GOVERNANCE: ADMINISTRATIVE AUTHORITY TO BE DELEGATED BY THE GOVERNING BOARD; PROVIDING FOR THE EXECUTION OF CERTAIN POWERS, DUTIES AND FUNCTIONS BY DISTRICT STAFF; ESTABLISHING THE SCOPE AND TERMS OF ANY DELEGATION; PROVIDING AN EFFECTIVE DATE WHEREAS, §373.083(5), Fla. Stat., authorizes the South Florida ‘Water - Management District Govetning Board ("Governing Board") to execute any of the powers, duties, and functions vested in the Governing Board through the executive Girector or other district staff as designated by the governing board; and WHEREAS, pursuant to §373.083(5), Fla. Stat., the governing board may ‘establish the scope and terms of any delegation; and WHEREAS, the Governing Board desires to increase administrative efficiency, including the efficiency of Governing Board meetings, by delegating administrative © _ authority that does net have any spending authority or significant policy considerations; ‘and WHEREAS, taking this action will increase eificiencies in matters concerning Governing Board governance, and will have minimal, if any, impacts o nthe agency's budget now therefore BE IT RESOLVED BY THE GOVERNING BOARD OF THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT: EXHIBIT E orca ome POOR RR = SERENE REN Ct sia MALLS nae aa : j & r a7 Section 1. The following. matters congerning Chapt er 120, Fila. St proceedings, including administrative hearing, are hereby delegated as follows: (1) (4) (.) (7): sud Ruling. on motions to exiend the deadline for filing a petition for administrative hearing. ‘. Delegates: Executive Director, Gen ral Counsel, Deputy Géneral Counsel, Referral of petitions for administrative “hearing for bid protests filed pursvent ts §120.57(3), F.S., to the Division of Administrative Hearings (D0AH). Delegates: Executive Director, General Counsel, Deputy General Counsel, Referral of petitions for administrative hearing to the Division of Administrative Hearings filed subsequent to the Governing Board acting upon the- permit application or other agency action being challenged. . Delegates: Executive Director, General Counsel, Deputy General Counsel. Enter orders determining whether a petition for administrative hearing is timely filed or meets required pleading requirements. elegates: Executive Director, General Counsel, Deputy General Counsel. Enier final orders approving the withdrawal of a petition for administrative hearing. Delegaies: Executive Director, General Counsel, Deputy General Counsel. Execute final orders following Governing Board action. Delegates: Executive Director, Deputy Executive’ Director or equivalent, General Counsel. — Responding to 403.412 petitions (petitions to ‘enforce District actions). Delegates: Executive Director, General Counsel, Deputy General Counsel. Section 2. The following real estais maters are hereby delegaied as foliows: (1.) — Nm ww Accept or amend conservation easements that have been conveyed to the District in connection with the District's issuance of parmits. Delegates: Executive Director, Deputy. Executive Director or equivalent, General Counsel. Advise DEP on District position (no ob ajection/obiss reservations held by Board of Trustees of the Internal In the Board of Edu ication. sper me SEN ek ee PRR PT PRE wee oe of Oo, 4 N Wt o “ye alegates: Executive Director, Deputy Executive Director or equivalent Oo General Counsel. Approval of utility easements on District lands to serve District facilities. Delegates: ‘Executive Director, Deputy Executive Director or equivalent eneral Counsel. : Termination nek leases or reservations of use of land for cause or convenience. Delegates: Executive Director, Deputy Executive Director or equivaleni, General Counsel oo Determinations with regard to a displaced person's eligibility to receive relocation assistance benefits and the amount of the payment to be made to the displaced person as required under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, as amended and as may be amended in the future. Such determinations include taking final agency action on a displaced person's relocation assistance benefits claim after a recommended order is issued in any formal administrative hearing held by the Division of Administrative Hearings. Delegates: Executive Director, Deputy Executive Director or equivalent, General Counsel. , . . For those real esiate transactions that are acted upon by the Governing Board, the following related matters to such transactions are delegated, including the execution of appropriate legal instruments: — ; a) deciding the acceptability of title exceptions that affect the title to the _- property to be acquired. b) - exte nding the time limits set forth in an Agreement for Sale and Purchase of real property and interests in real property including but not limited io the time to close, review of title information, preparation and . review of corrections to deeds, easements, and other recorded instruments, 2 including legal descriptions, provided that such correction does not affect the purchase price, the price per acre as reflected in the CAARF, or require a ré-appraisal of the value of the subject real property already approved by the Governing Board. RRM aaiaienet ea meee epee o Vente aaa, bop eee oe Seren rrr OC NE tO tte te fon] ado approving assignme ents and amendments to 1) Governing Soard a Proved agreement s for sale and Pu rchase of land interests, and 2) lea ases and reservations where such assignments and amendments do not aife ct the “pure chase price, the price im acre as reflected | in the CAARF, OF require py re-apprai isal of the value e subject r eal property and do not mater ially affect the terms of the Agree ment for Sale nd Pure chase | approved by the Governing Board. , Delegates: Executive Director, Deputy Executive Dir ector or ‘equivalent, General Counsel. Section 3. “The following regulatory and planning matters are ‘her eby dlegatod as follows: oe - (1) Approval of special case agreements to deviate from division of ERP permitting or enforcement responsibilities between the District and DEP. < Delegates: Executive Director, Deputy Executive Director or equivalent, _- General Counsel. a - — (2.) Review of and recommend appropriate changes to Chapter 298 Water Control District water conirol plans, pursuant to Section 298: 225, F.S. Delegates: Executive Director, Deputy Executive Director ‘or equivalent, _ General Counsel. a - (3.) Issue general permits pursuant to §373.1 18(4), Fla. Stat. Delegates: Executive Director, Deputy Executive Director oF equivalent, General Counsel. . - Section 4. The following matters concerning agency administration are hereby delegated as follows: (1.) Acceptance of donations of property to the District, including real property, interests in real property, and personal property. Delegates: Executive Director, Deputy Executive Director. or equivalent, Genera: Counsel. — ro ~~ . Granting rights. of entry on to District p property and accepting rights of entry on to ‘non-District property. cypmes onn Sees a ee a ae eR a, a oe oe ae ee el a ae " bo : . Delegates: Exsoutive Director, Deputy Executive . Director f equivalent, . ‘General Counsel, . . . (3.) Accapt service of process for the District or staff acting in thelr official capacity, ‘Delegates: General Counsel, Deputy General Counsel, Office of Counse attorneys. . . : , (4) ‘Execute all permit applications for permits sought by the District Delegates: Executive Director, Deputy Executive Director or equivalent, General Counsel. , (3). Certification of rules for filing with the Department of State or the District clerk, Delegates: Executive Director, Deputy Executive Director or equivalent, General Counsel. , (6.} Certification pursuant to §119. 07(3)(w),. F, S., that investigatory records of the Inspector General require an exemption from disclosure under the Public Records Law, Ch. 119, F.S. to protect the integrity of an investigation or avoid unwarranted damage to an individual's good name or reputation. Delegates: Executive Director, Deputy Executive Director or equivalent, General Counsel. Section 5. The Executive Director, without being relieved of the responsibility, has the authority to execute the power, duty or function delegated herein through such employees or depariments as he or she shall designate. Section 6. The Executive Director or any other authorized staff shall refrain from exercising the authority set forth herein when a specific matter involves. significant controversy or public policy issues, as determined by the Executive Director or a Governing Board member. Such matters shall be presenied to the Governing Board for any required action. Section 7, At Governing Board direction, the Executive Director may provide reporis to the Governing Board summarizing specified actions taken pursuant to the delegations authorized herein other than those delegations nat are solely ministerial in nature. SORE EE PPR reeore forge rrerrese ore se che ot te eae eee a wv “AO 08 SEONG Rt “ Section £ 8. This resolution shali take eff fect immediately upon adoption, ‘PASSED and ADOPTED thi s 12th day of April 2001. _ ATTEST: BEY Assistant Secretary SOUTH FLORIDA WATER MANAGEMENT DISTRICT, BY HS Ge VERNING BOARD *SHfice of Counsel POPERERT PT Deer ee

Docket for Case No: 01-003870