12-3-0M BEFORE THE GOVERNING BOARD.” SOUTH FLORIDA WATER MANAGEMENT DISTRIGE$ 2205 2859 Fit sour HATER MAHA FLORIDA WILDLIFE FEDERATION, JUPITER peat FARMS ENVIRONMENTAL COUNCIL, INC., d/b/a LOXAHATCHEE RIVER COALITION, AUDUBON SOCIETY OF THE EVERGLADES, and MARGE KETTER, SFWMbD Order No. 2004-208 FOF ERP Petitioners, Case No. 04-3064. wt VS. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, PALM BEACH COUNTY, and LANTANA FARMS ASSOCIATES, INC. t2 at CA- Clos Respondents. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) PALM BEACH COUNTY ENVIRONMENTAL COALITION, STEVEN BELL, ALEXANDRIA LARSON, and MICHAEL CHRISTENSEN, Petitioners, SOUTH FLORIDA WATER MANAGEMENT DISTRICT, PALM BEACH COUNTY, and LANTANA FARMS ASSOCIATES, INC. ) ) ) ) ) ) Vs, ) Case No. 04-3084 ) ) ) ) ) Respondents. ) ) FINAL ORDER This matter was presented before the Governing Board of the South Florida Water Managemsnt District on December 8, 2004, for the consideration of the Recommended Order issusd on Decamber 3, 2004 (incorporated herein, with modifications set forth baiow, and attached hereto as Exhibit “A”), by the duly-appointed Administrative Law Judge ALJ") with the Division of Administrative Hearings (DOAH") Claude B. Arrington DA GENENT GISTRICY Summary of the Proceedings On May 12, 2004, Respondents Palm Beach County (the “County”) and Lantana Farms filed an Environmental Resource Permit (“ERP”) Application to authorize conceptual approval of a Surface Water Management (“SWM”) system to serve 1,919 acres of a phased, mixed-use development to be known as the Palm Beach County Biotechnology Research Park (“BRP”) and operation approval for 536 acres in Phase 1A. Present use of the site, known as Mecca Farms, supports an active orange grove with approximately 73 acres of drainage and irrigation ditches/canals, a 30-acre active sand mining operation, and a 272-acre above-ground impoundment. The BRP is intended to house The Scripps Research Institute (“Scripps”), a not-for- profit state-of-the-art biomedical research institution as designated by the Florida Legislature in Section 288.955(1)(c), Florida Statutes. The site will also contain attendant commercial, institutional, and residential uses. On August 11, 2004, the District issued a Notice of Intent to issue the ERP. Thereafter, Petitioners timely filed two separate Petitions challenging the issuance of the Permit, and, after striking portions of the Petitions, the District issued orders transmitting the Petitions to DOAH for hearing. The Petitions were assigned case numbers 04-3064 and 04-3084 and were consolidated for hearing on September 24, 2004. Pursuant to Sections 403.973 and 120.574, Florida Statutes, the County moved for expedited procesdings, which took place on November 1-5, 2004, before ALJ Ciaude 3. Arringtcn. Based on the testimonial and documentary evidence presenisd at the final thai hearing. the ALJ determined that the Applicants nad provided reasonable assurances the pranosead project would comply with ER® Criterta. Thersicre, on December 3, 2004, bo the ALJ issued a Recommended Order memorializing such determination, and recommending that SFWMD issue the subject permit for the conceptual approval of a SWM for the BRP and the Phase 1A construction and operation subject to the general and special conditions set forth in the Staff Report and Amended Staff Report. In addition, the ALJ recommended that the District add the following special condition: Prior to application for construction within 1,000 feet of the eastern boundary of the above-ground impoundment, the applicants shall conduct a wildlife survey to identify any nesting or roosting areas in the adjoining off-site wetlands utilized by listed species of wading birds. If such nesting or roosting areas are found the permittee shall, if determined necessary by the District, incorporate additional buffers or other appropriate measures to ensure protection of these wetland functions. The expedited process, under Section 403.973(15)(b), Florida Statutes, and Section 120.574, Florida Statutes, does not address the filing of Exceptions to the ALu’s Recommended Order and responses thereto. In this case, in a November 17, 2004 letter (prior to the issuance of the ALJ's Recommended Order on December 3, 2004), the District's General Counsel advised the parties that the District, in its discretion, would allow Exceptions to the ALJ’s Recommended Order to be filed with the District up to 5:00 p.m. on the business day following the issuance of the ALJ's Recommended Order. On Friday, December 3, 2004, after receiving the ALJ’s Recommended Order, the District's General Counsel again contacted Petitioners and Respondents, reminding them that any Exceptions would be due before 5:00 p.m. on Monday, December €, 2004. None cf the parties timely filed Exceptions to the Recommended Ordar. Thereafter, at 5:52 p.m. on Monday, December 6, 2004, Petisoners Palm Beach County Environmental Coalition, Alexandia Larson and Michas! Christensen attempted to Me Exceptions, which are deemed rejected as untimely filed.’ On December 7, 2004, District staff timely filed responses to Petitioners’ exceptions and Palm Beach County timely filed a Motion to Strike and Response to Exceptions. Standard of Review Section 120.57(1)(I), Florida Statutes, provides that an agency reviewing a DOAH recommended order may not reject or modify the findings of fact of an ALJ, “unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” See Friends of Children v. Department of Health and Rehabilitative Services, 504 So. 2d 1345, 1347, 1348 (Fla. 1°' DCA 1987). Florida law defines “competent substantial evidence” as “such evidence as is sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.” DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1975); Gulf Coast Elec. Co-op v. Johnson, 727 So. 2d 259, 262 (Fla. 1999). Furthermore, an agency may not create or add to findings of fact because an agency is not the trier of fact. See id. The Governing Board ‘Even were the Exceptions filed timely, the arguments raised in the Exceptions are of no moment. Petitioners contend that after hearing the testimony of Herb Zebuth, the ALJ should have launched an investigation into the actions of the Department of Environmenta! Protection (“DEP”). ALJs are not vested with the authority to initiate or conduct investigations into agency actions. Additionally, this allegation related to the DEP, not the District, and the DEP was not a party to this administrative chalienge. In addition, the Exceptions incorrectly state that the testimony of certain witnesses wos not permitted because of ts ily incorrect subpoenas The record efi that no listec witnesses who appeared were denied the right io testify. has determined that all of the findings of fact made by the ALJ in this case are based on competent, substantial evidence that is sufficiently relevant and material such that a reasonable mind would accept it as adequate to support the conclusion reached. Therefore, the Governing Board will not disturb any of the ALJ's Findings of Fact. With respect to the standard of review regarding an ALJ's conclusions of law, Section 120.57(1)(I), Florida Statutes, provides that an agency may reject or modify an ALJ's conclusions of law and interpretations of administrative rules “over which it has substantive jurisdiction” whenever the agency's interpretation is “as or more reasonable” than the interpretation made by the ALJ. See Deep Lagoon Boat Club Ltd. v. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001). Florida Courts have consistently applied this section's “substantive jurisdiction limitation” to prohibit an agency from reviewing conclusions of law that are based upon the ALJ's application of legal concepts such as collateral estoppel, res judicata, hearsay, but not from reviewing conclusions of law that are based upon the ALJ's application of an agency's administrative rules or procedures, For example, in Deep Lagoon Boat Club Ltd. v. Sheridan, the Second District Court of Appeal held that the scope of the Secretary of the Department of Environmental Protection's review of an ALJ's conclusions of law did not extend to the legal concepts of collateral estoppel and res judicata. See 784 So. 2d at 1141-42. The court explained that the Legislature intended to limit the scope of agency's review to those matters within the agency's “administrative authority” or “substantive expertise.” Id. ai 1142 n.2. Similarly, in Barfietd v. Department of Health, the First District Court of Appeal held ihat determining whether certain Cocuments were inadmissible hearsay in a dentistry licensing case was not within the Board of Dentistry’s substantive expertise. See 805 So. 2d 1008, 1011 (Fla. 1° DCA 2001). Part IV, Chapter 373 of the Florida Statutes, and Title 40E of the Florida Administrative Code, which form the basis for the ERP Criteria that the proposed permit must satisfy, provide SFWMD (and its Governing Board) with the requisite and necessary authority to require ERP Permits and impose such reasonable conditions as are necessary to ensure that the water resources of the SFWMD are protected. The Governing Board has the administrative authority and substantive expertise to exercise regulatory jurisdiction over the administration and enforcement of ERP Criteria. Therefore, the Governing Board has substantive jurisdiction over the ALJ’s conclusions of law and interpretations of administrative rules, and is authorized to reject or modify the ALJ’s conclusions or interpretations if it determines that its conclusions or interpretations are “as or more reasonable” than the conclusions or interpretations made by the ALJ. The Governing Board, however, makes no such determination, and adopts the ALJ's conclusions of law in toto, with the following clarifications: Minor Clarifications to Recommended Order In the Recommended Order's Preliminary Statement, found on page three, the following corrections should be made to make clear that the Applicants are both Palm Beach County and Lantana Farms: “Respondents, Palm Beach County (the County) and Lantana Farms (collectively, the Applicants). applied to the district for an ERP for the BRP, to be constructed on a 1,919-acre site known as Mecca Farms.” On page four of the Recommended Order, the first complete sentence should be amended to make clear that the conceptual plan does not include off-site projects: impact jurisdictional wetlands. "The conceptual plan took into account off-site projects by designing the system to accommodate certain off-site flows as well as the secondary impacts of certain off-site activities." This clarification is consistent with Findings of Fact made by the ALJ. In addition, on page four in the last sentence of the first paragraph, there is a typographical error regarding the acreage involved in the Phase 1A construction. This sentence should be amended as follows: "The Phase 1A construction involves clearing, grading, and lake construction on 256 536 acres of the southern part of the Mecca property.” ORDER Based upon the foregoing, the Governing Board, having considered the ALJ’s Recommended Order and the oral argument presented by the parties, and being otherwise fully advised in the premises, hereby ORDERS as follows: The late-filed Exceptions filed by Petitioners Palm Beach County Environmental Coalition, Alexandria Larson, and Michael Christensen are rejected as untimely filed, The ALJ’s Recommended Order is adopted in toto and incorporated as modified herein. DONE AND SO ORDERED, this 877 day of December, 2004, in West Palm Beach, Florida. PAREN te ok Voin g ley . SOUTH FLORIDA WATER MANAGEMENT DISTRICT BY ITS OVERNING BOARD oa f Weer SHERYL wWObD. General Counsel LEGAL FORM APPROVED TEW CARDENAS LLP yay Board Counsel to the Governing Board BY: «J attla FS} lOce DATE: L2./, fp Pa By. > o . ca Santiago D. Echemendia, Esq. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a copy of the foregoing Final Order has been furnished Fd this Ss day of December, 2004, via facsimile and U.S. Mail to the following parties and counsel: Susan Roeder Martin, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406 Marcy |. LaHart, Esquire Law Offices of Mary |. LaHart, P.A. 711 Talladega Street West Palm Beach, Florida 33405-1443 Susan Kennedy, Esquire 16343 Jupiter Farms Road Jupiter, Florida 33478 Andrew McMahon, Esquire Paim Beach County Attorney's Office 30% N. Olive Avenue, Suite 601 West Palm Beach, Florida 33401 EI They; f a SHERYL WOOD, General Soueat Barry M. Silver, Esquire Law Offices of Barry Silver 1200 South Rogers Circle, Suite 8 Boca Raton, Florida 33487 Frank E. Matthews, Esquire Hopping, Green & Sams, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32301 SOUTH FLORIDA WATER MANAGEMENT DISTRICT 3301 Gun Club Road, MSC 1410 West Palm Beach, FL 33401 (961) § 82-6251 NOTICE OF RIGHTS Section 120.569(1), Fla. Stat. (1997), requires that “each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, or s. 120.68; shall indicate the procedure which must be followed to obtain the hearing or judicial review, and shall state the time limits which apply.” Please note that this Notice of Rights is not intended to provide legal advice. Not all the fegal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. Petition for Administrative Proceedings 1. A person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. A point of entry into administrative proceedings is governed by Rules 28-106.111 and 40E-1.511, Fla. Admin. Code, (also published as an exception to the Uniform Rules of Procedure as Rule 40€-0.109), as set forth below. Petitions are deemed filed upon receipt of the original documents by the SFWMD Clerk. a. Formal Administrative Hearing: if a genuine issue(s) of material fact is in dispute, the affected person seeking a formal hearing on a SFWMD decision which does or may determine their substantial interests shall file a petition for hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. or for mediation pursuant to Section 120.573, Fla. Stat. within 21 days, except as provided in subsections c. and d. below, of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Patitions must substantially comply with the requirements of Rule 28-106.201(2), Fla. Admin. Code, a copy of the which is attached to this Notice of Rights. b. Informal Administrative Hearing: If there are no issues of material fact in dispute, the affected person seeking an informal hearing on a SFWMD decision which does cr may determine their substantial interests shail file a petition for hearing pursuant to Sections 120.569 and 120.57(2), Fla. Stat. or for mediation pursuant to Section 120.573. Fla. Stat. within 21 days, except as provided in subsections c. and d. below, of either written natice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Petitions must substantially comply with the requirements of Rule 28-106.301(2). Fla. Adrnin. Code, a copy of the which is ateched to this Notice of Rights. c. Administrative Complaint and Order: if a Responcent objects to a SFWMD Administrative G banc O-ler, pursuant to Section 373.119. Fla Stat. ( tne person named in the Administrative Complaint and Crder may file a latsr than 14 ca, c Paiitic [nl d. State Lands Environmental Resource Permit: Pursuant to Section 373.427, Fla. Stat., and Rule 40E-1.511(3), Fla. Admin. Code (also published as an exception to the Uniform Rules of Procedure as Rule 40E- 0.109(2)(c)), a petition objecting to the SFWMD's agency action regarding _ consolidated applications —_ for Environmental Resource Permits and Use of Sovereign Submerged Lands (SLERPs), must be filed within 14 days of the notice of consolidated intent to grant or deny the SLERP. Petitions must substantially comply with the requirements of either subsection a. or b. above. e. Emergency Authorization and Order: A person whose substantial interests are affected by a SFWMD Emergency Authorization and Order, has a right to file a petition under Sections 120.569, 120.57(1), and 120.57(2), Fla. Stat., as provided in subsections a. and b. above. However, the person, or the agent of the person responsible for causing or contributing to the emergency conditions shail take whatever action necessary to cause immediate compliance with the terms of the Emergency Authorization and Order. i Order for Emergency Action, A person whose substantial interests are affected by a SFWMD Order for Emergency Action has a right to file a petition pursuant to Rules 28-107.005 and 40E-1.611, Fla. Admin. Code, copies of which are attached to this Notice of Rights, and Section 373.119(3), Fla. Stat., for a hearing on the Order. Any subsequent agency action or proposed agency action to initiate a formal revocation proceeding shall be separately noticed pursuant to section g. below. g. Permit Suspension, Revocation, Annulment, and Withdrawal: If the SFWMD issues an administrative complaint to suspend, revoke, annul, or withdraw a permit, the permittee may request a hearing to be conducted in accordance with Sections 120.569 and 120.57, Fla. Stat., within 21 days of either written notice invcugh mail or posing cr pubbcation of notice that the SFWMD has cr intends fo take final agency action. Petitions must substantally comply with the requirements of Rule 28-107.004(3), Fla. Admin. Code. a cony of the whice is attached to this Notice of Riuris any such fina: decision of the SFWMD shail have, pursuant to Rule 40E-1.511(2), Fla. Admin. Code {also published as an exception to the Uniform Rules of Procedure as Rule 40E-0.109(2}(c}), an additional 21 days from the date of receipt of notice of said decision to request an administrative hearing. However, the scope of the administrative hearing shall be limited to the substantial cleviation. 3. Pursuant to Rule 40E-1.511(4), Fla. Admin. Coda, substantially affected persons entitled to a hearing pursuant to Section 120.57(1), Fla. Stat, may waive their right to such a hearing and request an informal hearing before the Governing Board pursuant to Section 120.57(2), Fla. Stat., which may be granted at the option of the Governing Board. 4. Pursuant to Rule 28-106.111(3), Fla Admin. Code, persons may file with the SFWMD a request for extension of time for filing a petition. The SFWMD, for good cause shown, may grant the extension. The request for extension must contain a certificate that the petitioner has consulted with all other parties, if any, concerning the extension and that the SFWNMD and all other parties agree to the extension CIRCUIT COURT 5. Pursuant to Section 373.617, Fla. Stat., any substantially affected person who claims that final agency action of the SFWMD relating to permit decisions constitutes an unconstitutional taking of property withcut just compensation may seek judicial review of ths action in circuit court by filing a civil action in the circuit caurt in the judicial circut in which the affected property is located within 99 deys of the rendering of the SFWMD's finai agency action 6. Pursuant to Section 403.412, Fla. Stat., any citizen of Florida may bring an action for injunctive relief against the SFV/MD to compel the SFWMD to enforce the laws of Chapter 373. Fla. Stat., and Title 40E, Fla. Admin. Code. The complaining party must file with the SFWMD Clerk a verified complaint setting forth the facts upon which the complaint is based and the manner in which the complaining party is affected. If the SFWMD does not take appropriate action on the cornplaint within 30 days of receipt, the comolaining party may then file a civil suit for iunctive reli the 15" Judicial Circuit in and for Palm h County or circuit court in the county where the 2 Of action allegedly eccurred. Yoo cau ? Stal. a Fuesula t ction 373.433. Fia pnvate citizen cf Florida may file suit in circuit court to require the abat DISTRICT COURT OF APPEAL 8. Pursuant to Section 120.68, Fla. Stat.. a party who is adversely affected by final SFWMD action may seek judicial review of the SFWMD's finai decision by fiting a notice of appeal pursuant to Florida Rule of Appellate Procedure 9.110 in the Fourth District Court of Appeal or in the appellate district where a party resides and filing a second copy of the notice with the SFWMD Clerk within 30 days of rendering of the final SFWMD action. LAND AND WATER ADJUDICATORY COMMISSION 9. A party to a “proceeding below” may seek review by the Land and Water Adjudicatory Commission (LAWAC) of SFWMD's final agency action to determine if such action is consistent with the provisions and purposes of Chapter 373, Fla. Stat. Pursuant to Section 373.114, Fia. Stat, and Rules 42-2.013 and 42-2.0132, Fla. Admin. Code, a request for review of (a) an order or rule of the SFWMD must be filed with LAWAC within 20 days after rendition of the order or adoption of the rule sought to be reviewed; (b) an order of the Department of Environmental Protection (DEP) requiring amendment or repeal of a SFWMD rule must be filed with LAWAC within 30 days of rendition of the DEP’s order, and (c) a SFWMD order entered pursuant to a formal administrative hearing under Section 120.57(1), Fia. Stat., must be filed no later than 20 days after rendition of the SFWMD’'s final order. Simultaneous with filing, a copy of the request for review must be served on the DEP Secretary, any person named in the SFWMD or DEP finai order, and all parties to the proceeding below. A copy of Rule 42-2.013, Fla, Admin, Cede is attached to this Notce of Rights PRIVATE PROPERTY RIGHTS PROTECTION ACT 10. A property owner who alleges a specific action of the SFWMD has inordinately burdened an existing use of the real property, or a vested right to a specific use of the real property, may file a claim in the circuit court where the real property is located within 1 year of the SFWMD action pursuant to the procedures set forth in Subsection 70.001(4)(a), Fla Stat. LAND USE AND ENVIRONMENTAL DISPUTE RESOLUTION 11. A property owner who alleges that a SFWMD development order (as that term is defined in Section 70.51(2)(a), Fla. Stat. to include permits) or SFWMD enforcement action is unreasonable, or unfairly burdens the use of the real property, may file a request for relief with the SFWMD within 30 days of raceipt of the SFYVMD's order or notice of agency action pursuant to the procedures set forth in Subsections 70.51/4) and (6), Fla. Stat MEDIATION 12 A person whose substanti fected by the SFWMO's ai or may mete shalt be brough pubiicaiton of notice that the SFWMD has or intends to take final agency action. Choosing mediation will not adversely affect the right to an administrative hearing if mediation does not result in settlement. Pursuant to Rule 28-106.402, Fla. Admin. Code, the contents of the petition for mediation shalt contain the following information: {1} the name, address, and telephone number of the person requesting mediation and that person’s representative, if any; (2) a statement of the preliminary agency action; {3) an explanation of how the person's substantial interests will be affected by the agency determination; and (4) a statement of relief sought. As provided in Section 120.573, Fla. Stat. (1997), the timely agreement of all the parties to mediate will toll the time limitations imposed by Sections 120.569 and 120.57, Fla. Stat., for requesting and holding an administrative hearing. Unless otherwise agreed by the parties, the mediation must be concluded within 60 days of the execution of the agreement. If mediation results in settlement of the dispute, the SFWMD must enter a final order incorporating the agreement of the parties. Persons whose substantial interest will be affected by such a modified agency decision have a right to petition for hearing within 21 days of receipt of the final order in accordance with the requirements of Sections 120.569 and 120.57, Fla. Stat, and SFWMD Rule 28-106.201(2), Fla. Admin. Code. If mediation terminates without settlement of the cispute, the SFWMD shall notify all parties in writing that the administrative hearing process under Sections 120.569 and 120.57, Fla. Stat., remain available for dispositicn o* the dispute, and the notice will specify the deadlines that then will apply for challenging the agency action VARIANCES AND WAIVERS 43. A person who is subject to regulation pursuant to a SFWMD tule and believes the application of that rule will create a substantial hardship or will violate principles of fairness (as those terms are defined in Subsection 120.542(2), Fla. Stat.) and can demonstrate that the purpose of the underlying statute will be or has been achieved by other means, may file a petition with the SFWMD Clerk requesting a variance from or waiver of the SFWMD rule. Aaplying fer a variance or waiver does not substtute or extend the time for filing a petition for an administrative hearing ar exercising any other right that a person may have concerning the SFWMD’'s action Pursuant to 2 28-104.002/2), Fila, Admin. Code, the petition must include the following information: () the captian s Petition for (Variance frovn) or (Waiver of) Rule (C {b) The name, address, telechone ni and avy facsimile rurnber of ihe petitioner: ic) The name, address telephone number and any facsimile number of the attorney or qualified representative of the petitioner, (if any); (d) the applicable rule or portion of the rule; {e) the citation to the statue the rule is implementing; (f) the type of action requested; (g) the specific facts that demonstrate a substantial hardship or violation of principals of fairness that would justify a waiver or variance for the petitioner: (h) the reason why the variance or the waiver requested would serve the purposes of the underlying statute; and {i) a statement of whether the variance or waiver is permanent or temporary, If the variance or waiver is temporary, the petition shall include the dates indicating the duration of the requested variance or waiver. A person requesting an emergency variance from or waiver of a SFWMD rule must clearly so state in the caption of the petition. In addition to the requirements of Section 120.542(5), Fla. Stat. pursuant to Rule 28- 104.004(2), Fla. Admin. Code, the petition must also include: a) the specific facts that make the situation an emergency; and b) the specific facts to show that the petitioner will suffer immediate adverse effect unless the variance or waiver is issued by the SFWMD more expeditiously than the applicable timeframes set forth in Section 120.542, Fla. Stat. WAIVER OF RIGHTS 14, Failure to observe the relevant time frames prescrived above will constitute a waiver of such right. 28-106.201 INITIATION OF PROCEEDINGS (INVOLVING DISPUTED ISSUES OF MATERIAL FACT) (2) All petitions fited under these rules shall contain: (a) The name and address of each agency affected and each agency's file or identification number, if known; (5) The name, address, and telephone number of the petitioner, the name, address, and telephone number of the petitioner's representative, if any, which shail be the address for service purposes during the course of the and an explanation of how the petitioner's substantial interesis will be affected by the agency determination: (c) A statement of when and how the petitioner teceived notice of the ayency decision: (d} A statement of all disputed issues of material fact. if here are none, the oetition must so n 28-106.301 INITIATION OF PROCEEDINGS (NOT INVOLVING DISPUTED ISSUES OF MATERIAL FACT) (2) All petitions filed under these rules shal! contain: (a) The name and address of each agency affected and each agency's file or identification number, if known; (b) The name, address, and telephone number of the petitioner; the name, address, and telephone number of the petitioner's representative, if any, which shall be the address for service purposes during the course of the proceeding, and an explanation of how the petitioner’s substantial interests will be affected by the agency determination; (c) A statement of when and how the petitioner received notice of the agency decision; (d) A concise statement of the ultimate facts alleged, as well as the rules and statutes which entitle the petitioner to relief; and (e) A demand for relief, 28-107.004 SUSPENSION, REVOCATION, ANNULMENT, OR WITHDRAWAL (3) Requests for hearing filed in accordance with this rule shail include: (a) The name and address of the party making the request, for purposes of service; (b) A statement that the party is requesting a hearing involving disputed issues of material fact, or a hearing not involving disputed issues of material fact; and (c) A reference to the notice, order to show cause, administrative complaint, or other communication that the narty has received from the agency 42-2.013 REQUEST FOR REVIEW PURSUANT TO SECTION 373.114 OR 373.217 (1) In any proceeding arising under Chapter 373, F.S., review by the Florida Land and Water Adjudicatory Commission may be initiated by the Department or a party by filing a request for such review with the Secretary of the Commission and serving a copy on any person named in the ruie or order, and on ali parties to the proceeding which resulted in the order sought to be reviewed. A Certificate of service showing completion of service as required by this subsection shall be a requirement for a determinatior of sufficiency under Rule 42-2.0132. Failure to file the request with the Commission within the time period provided in Rule 42-2.0132 shall result in dismissal of the request for review (2) The requesi for review shall identify the rule or order requested to be reviewed, the proceeding in which the rule c° order was an d Ne nature of the cule copy of the rule er order sought to be reviewed s be attached request for review shalt with particularity: (a) Hew the or rule corflicts with the provisions and purposes of Chaoter 373, duly adested th requirements under (>) How the ruie or order sought to be reviewed affects the interests of the party seeking review: (c) The oral or written statement, sworn or unsworn, which was submitted to the agency concerning the matter to be reviewed and the date and location of the statement, if the individual or entity requesting the review has not participated in a proceeding previously instituted pursuant to Chapter 120, F.S., on the order for which review is sought; (d) If review of an order is being sought, whether and how the activity authorized by the order would substantially affect natural resources of statewide or regional significance, or whether the order raises issues of policy, statutory interpretation, or rule interpretation that have regional or statewide significance from a standpoint of agency precedent, and all the factual bases in the record which the petitioner claims support such determination({s); and (e) The action requested to be taken by the Commission as a result of the review, whether to rescind or modify the order, or remand the proceeding to the water management district for further action, or to require the water management district to initiate rulemaking to adopt, amend or repeal a rule. 28-107.005 EMERGENCY ACTION (1) If the agency finds that immediate serious danger to the public health, safety, or welfare requires emergency action, the agency shall summarily suspend, limit, or restrict a license. (2) the 14-day netice requirement of Section 120 569(2\b}, F. S, does not aonly and shall not be construed to prevent a hearing at the earliest time practicable upon request of an aggrieved party. (3) Unless otherwise provided by law, within 20 days after emergency action taken pursuant to paragraph (1) of this rule, the agency shail initiate a formal suspension or revocation proceeding in compliance with Sections 120.569, 1209.57. and 120 60, F.S. 40E-1.611 EMERGENCY ACTION ({t) An emergency exists when immediate action is necessary to protect public health, safety or welfare; the health of animals, fish or aquatic life; the works of the District; a public water supply, or recreational, commercial, industrial, agricultural or other reasonable uses of land and water resources. 2) The Executive Director may empioy the resources cf the District to take whatever remedial action necessary to alleviate the emergency condition without the i wy oder, ¢ 2 event avi has been issued ration of

Docket for Case No: 04-003064

Orders for Case No: 04-003064