The Issue Whether Application #01109-L and Application #01109-J for a public water supply system to serve approximately 17,500 acres of land in Lee County, Florida, should be granted and a permit issued by the South Florida Water Management District.
Recommendation Based upon the foregoing Findings and Conclusions of Law, the Hearing Officer recommends that a water use permit be issued to the applicant pursuant to Applications #01109-J and #01109-L for a total annual allocation of 1.64 BGY for ten (10) years subject to the thirty-one (31) limiting conditions attached to the "Florida Cities Water Company" report, which report is a part of the record of this case. DONE and ORDERED this 18th day of January, 1980, in Tallahassee, Leon County Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1980. COPIES FURNISHED: Stephen A. Walker, Esquire South Florida Water Management District Post Office Box V West Palm Beach, Florida 33402 Ross A. McVoy, Esquire 318 North Monroe Street Post Office Box 669 Tallahassee, Florida 32302 Terry F. Lenick, Esquire Assistant County Attorney County of Lee Post Office Box 398 Fort Myers, Florida 33902 =================================================================
The Issue The issue to be determined in this case is whether proposed Florida Administrative Code Rule 40E-10.041(3)(d) of the South Florida Water Management District (“the District”) is an invalid exercise of delegated legislative authority.
Findings Of Fact The Conservancy is a non-profit Florida corporation with its offices in Naples, Florida. It has 6,200 members residing in Southwest Florida. The mission of the Conservancy is to protect the environment and natural resources of Southwest Florida. The Caloosahatchee River is an important focus of the Conservancy’s organizational activities and objectives. A substantial number of the members of the Conservancy use the Caloosahatchee River for drinking water, boating, fishing, wildlife observation, and scientific research. The proposed rules create a prospective reservation of water in the not-yet-operational Caloosahatchee River (C-43) West Basin Reservoir “for fish and wildlife.” The Conservancy’s interests would be substantially affected by the proposed reservation. The District is a regional water management agency created, granted powers, and assigned duties under chapter 373, Florida Statutes (2013). It is headquartered in West Palm Beach, Florida. Proposed rule 40E-10.041(3) states: (3) Caloosahatchee River (C-43) West Basin Storage Reservoir: All surface water contained within and released, via operation, from the Caloosahatchee River (C-43) West Basin Storage Reservoir is reserved from allocation. The water reserved under this paragraph will be available for fish and wildlife upon a formal determination of the Governing Board, pursuant to state and federal law, that the Caloosahatchee River (C-43) West Basin Storage Reservoir is operational. The reservation contained within this subsection and the criteria contained in section 3.11.4 of the Applicant’s Handbook for Water Use Permit Applications within the South Florida Water Management District, incorporated by reference in Rule 40E-2.091, F.A.C., shall be revised in light of changed conditions or new information prior to the approval described in paragraph (3)(b) above. Pursuant to subsection 373.223(4), F.S., presently existing legal uses for the duration of a permit existing on [RULE ADOPTION DATE] are not contrary to the public interest. The Conservancy challenges only paragraph (3)(d), contending that it modifies or contravenes the implementing statute, section 373.223(4).
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts relevant to the issues presented for determination are found: At the first hearing on January 8, 1981, the petitioner and the respondent stipulated and agreed that an appropriate rate base for petitioner's water operations was $249,622, that an appropriate rate base for petitioner's sewer operations was $714,919, and that an appropriate overall rate of return on petitioner's net investment was 13.07 percent. The reopening of the hearing was occasioned by a dispute over the appropriate amount of contributions-in-aid-of- construction (CIAC) attributable to petitioner's sewer operations. The petitioner takes the position that $84,500 is the appropriate amount of CIAC and the respondent and intervenor are of the opinion that the appropriate amount of CIAC is $317,000. Thus, the prior stipulation with regard to the figures contained in petitioner's Exhibit 4 is dissolved and the appropriate rate bases are dependent upon a resolution of the disputes concerning CIAC and additional rate case expenses occasioned by the reopening of the hearing. Quality of Service. The fifteen customers who testified at the hearing were concerned primarily with the large increase in sewer rates requested by the petitioner. The majority of petitioner's customers are elderly, retired persons on fixed incomes. Other than one witness who did not like the taste of the water and two customers who complained of billing errors, there was no adverse testimony concerning the quality of water or sewer services provided by petitioner to its customers. The petitioner's water and treated sewage consistently meets the standards and regulations imposed by regulatory agencies. There are no corrective orders or citations outstanding against petitioner's water or sewer operations. Charge for Delinquent Accounts. The petitioner presently computes a late payment charge of five percent of the overdue balance on delinquent accounts. Its request to charge a $10.00 fee when delinquency in payment results in a termination of water service and a charge of $2.20 for processing a delinquent bill which does not result in a termination of service is based upon actual labor and mailing costs necessary to the performance of these functions. These charges are reasonable and comport with similar charges made by other utility companies. Monthly Versus Quarterly Billing Cycle. The petitioner is presently billing its customers on a quarterly basis and has requested approval to change to monthly billing. The additional expense associated with monthly, as opposed to quarterly, billing would amount to $22,626.00 annually, or approximately 64 cents per customer per bill. The working capital allowance formula of one-eighth operation end maintenance expense is based upon a 45-day lag period or monthly billing system. If petitioner continues to bill on a quarterly cycle, its working capital allowance should be increased. Meters do occasionally stop working, meter boxes and covers become broken and water lines can develop leaks. Billing on a monthly basis would allow the petitioner to determine on a more frequent basis when a meter or a water line becomes inoperable, thus assuring that customers are accurately billed and preventing hazardous conditions with possible liability on petitioner's behalf. On a quarterly billing system, a meter could be incorrectly functioning for 90 to 150 days before the utility becomes aware of it. Between 1978 and 1900, the petitioner replaced 405 meters. No evidence was offered as to the amount of water, and therefore revenue, lost as a result of the nonfunctioning meters. With the exception of those in Duval County, most water and sewer utilities bill their customers on a monthly basis. Rate Case Expenses. Prior to the close of the January 8, 1991, hearing, the petitioner and the respondent Public Service Commission stipulated that the appropriate amount of rate case expense was $57,900.00 and that said expense should be amortized over a three-year period. The only remaining issue is the appropriate amount of rate case expense resulting from the reopening of the hearing due to the dispute regarding CIAC, and the appropriate period of amortization as to those expenses. The petitioner has claimed additional rate case expenses attributable to the new hearing in the amount of $15,100.00, for a total rate case expense of $73,000.00. This $15,100.00 is made up of additional attorneys' fees in the amount of $9,000.00, additional fees to three certified public accountant firms in the amount of approximately $4,000.00 and additional printing costs and miscellaneous costs of approximately $2,000.00. These amounts constitute estimates based upon incurred and expected hours of professional time occasioned by the new hearing. The figures were prepared for the April 10 hearing and do net include expenses or time spent on the May 14, 1981 hearing. The subject application is the petitioner's first application for a rate increase. While the use of one accounting firm may have been more economical and efficient, the use of two independent accounting firms is not unusual in a utility's first rate case due to the necessity of gathering historical data, the preparation of the minimum filing requirements of the Public Service Commission and the expertise required in regulatory matters. The two independent consulting firms did not engage in duplications of effort. The reopening of the hearing to resolve the CIAC dispute also resulted in many hours of PSC staff time. The petitioner has gained an extended benefit from the legal and accounting work done in this first application for a rate increase, and rate case expenses in a future application should be lower as a result of the efforts devoted to the present rate increase request. A three-year period has been a normal and reasonable period of time between rate cases. Contributions-in-aid-of-construction. The petitioner provides water and sewer service to the Beverly Hills Subdivision, which was developed in several stages. Units 1, 2 and 3 have septic tanks and Units 4, 5 and 6 are connected to a centralized sewerage treatment plant. During the period of 1069 and 1970, the petitioner collected a premium of $500.00 for homes sold in Units 4 and 5. There was evidence that some purchasers of homes in Units 4 through 6 were charged a premium of $1,000.00. Since no evidence was adduced as to the number of $1,000.00 fees which were collected, it is assumed for computational purposes that all such fees collected were in the amount of $500.00. There premiums were printed on petitioner's promotional literature as "houses in sewer areas extra." On land sales contracts, the premiums were referred to as "land improvements," "sewers" or "Unit 4 or 5 improvements," and on the closing statements the premiums were referred to as "land improvement fee." This fee was separate from and in addition to the monthly or quarterly charge for day to day sewer service. The utility presented no evidence that there was any other reason for the collection of $500.00 for "improvements" in Units 4 through 6. The collected premiums for the years 1969 and 1970 in the amount of $84,500.00 were recorded on the petitioner's books as "sales -- sewer charge" and the petitioner reduced the plant account and revenues by this amount. Also, in 1969, a New York branch office collected $500.00 fees in the total amount of $14,500.00. This amount was recognized by petitioner as taxable income and was not credited to the plant account. While the petitioner does not concede that the $500.00 premiums collected in 1969 and 1970 actually constitute CIAC, it does not contest the inclusion of the $84,500.00 as CIAC since it did not pay federal income taxes on that amount in 1969 and 1980. In 1971, petitioner continued to collect $500.00 premiums for lots sold in Units 4 through 6 and treated them in the same manner as they were treated on its books and records in 1969 and 1970. The amount of $54,500.00 was collected as premiums in 1971. Subsequently, the Internal Revenue Service audited the petitioner's 1971 tax return and treated the $500.00 collections amounting to $54,500.00 as revenue subject to income tax liability. The petitioner continued to collect the $500.00 premiums from purchasers in Units 4 through 6 until 1974. Due to the Internal Revenue Service report or directive which classified the 1971 $500.00 premiums as revenues, the petitioner incurred federal income tax liability on the premiums collected from 1971 through 1974. In 1972, the books of the petitioner changed with respect to the treatment of the $500.00 premiums. Prior to that time, the funds were segregated and declared as reductions to plant. After that time, the funds were treated on the corporate books as revenues from the sale of homes and were placed in a separate corporate account. Funds from sources other than sewer premiums wore also deposited into that account and monies from that account were used for such things as engineering services, sewer plant construction, roads, advertising, repairs, storm drainage and materials. Promotional materials, contracts of sale and closing statements, as well as customer testimony, indicate that petitioner consistently characterized the $500.00 fees for Units 4 through 6 as a charge for the sewer service available in those Units. The only difference between the homes in Units 1 through 3 and the homes in Units 4 through 6 was the presence of the sewer system in the latter as opposed to septic tanks in the former. Between 1969 and 1974, the petitioner sold 634 homes which included the $500.00 (or in some instances $1,000.00) premium for sewer service. Assuming a $500.00 fee from each purchaser, the total premiums collected amount to $317,000.00. The petitioner paid federal income taxes on all such $500.00 fees collected with the exception of the $84,500.00 collected in 1969 and 1970. Due to the three-year statute of limitations on refunds, the petitioner cannot now recover or recoup the taxes paid on that income. The imputation of CIAC to funds which petitioner has treated in the past for Internal Revenue purposes as income will substantially reduce petitioner's future sewer rate base and will reduce the petitioner's cash flow potential. If CIAC is imputed to these $500.00 premiums, it is estimated that the petitioner's sewer operation would offer revenue reductions in the approximate amount of $25,000.00 per year. Prior to December of 1973, no governmental agency regulated petitioner's water and sewer rates. The petitioner came under the jurisdiction of the Florida Public Service Commission in December of 1973. Although the petitioner did not produce the revenue agent's report which allegedly required the $500.00 fees to be reported as income, the testimony of petitioner's expert witness was that only a regulated utility could report tax-free Contributions- in-aid-of-construction. For federal income tax purposes, the CIAC of an unregulated utility was treated as ordinary taxable income. The assets represented by such funds can be depreciated for income tax purposes.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the issues in dispute between the parties be resolved as follows: The quality of service provided by the petitioner to its water and sewer customers be found adequate; A delinquent account charge he set at $10.00 if service must be disconnected and $2.20 if only a delinquent notice must be mailed; The petitioner's request to change from a quarterly to a monthly billing cycle be granted; Rate case expenses in the amount of $73,000.00 be approved, said amount to be amortized over a three-year period; and The $500.00 premiums collected between 1969 and 1974, in the total amount of $317,000.00, be treated as contributions-in-aid-of-construction and the petitioner's sewer rate base be accordingly reduced. Respectfully submitted and entered this 14th day of July, 1981, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1981. COPIES FURNISHED: R.M.C. Rose and Martin Friedman 1020 East Lafayette Street Tallahassee, Florida 32301 Marta M. Suarez-Murias and Paul Sexton, Staff Counsel Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Suzanne Brownless and Steven Burgess Office of Public Counsel Room 4, Holland Building Tallahassee, Florida 32301 Steve Tribble, Clerk Florida Public Service Commission 101 East Gaines Street Tallahassee, Florida 32301 Charles E. Lertora, Jr. Beverly Hills Civic Association, Inc. Post Office Box 23 Beverly Hills, Florida 32665
The Issue Whether the Division of Administrative Hearings (DOAH) has jurisdiction to conduct a formal hearing under the provisions of Sections 120.569 and 120.57(1), Florida Statutes, if a Petition for Relief is referred to the DOAH for formal hearing based on a Notice of Determination: No Jurisdiction issued by the Florida Commission on Human Relations (FCHR).
Recommendation Based on the foregoing, it is RECOMMENDED that the FCHR resume jurisdiction of the matter and complete the investigation of the Charge of Discrimination, pursuant to Section 760.11(3), Florida Statutes, or permit Petitioner to make her election of remedies pursuant to Section 760.11(8), Florida Statutes. DONE AND ENTERED this 15th day of February, 2002, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 2002. COPIES FURNISHED: William R. Amlong, Esquire Amlong & Amlong, P.A. 500 Northeast Fourth Street Second Floor Fort Lauderdale, Florida 33301-1154 Denise Crawford, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Keith C. Tischler, Esquire Powers, Quaschnick, et. al. 1669 Mahan Center Boulevard Post Office Box 12186 Tallahassee, Florida 32317-2186 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Pal-Mar has filed application No. 29454 pursuant to Chapter 373, Florida Statutes, requesting approval for a surface water management system known as Phase III of Pal-Mar Water Management District, to serve approximately 3,600 acres of residential land in Martin County, Florida. The project discharges to C-44, the St. Lucie canal. SFWMD's staff report recommends approval be granted for the proposed water management system based on considerations of water quality, rates of discharge, environmental impact and flood protection. Approval is subject to certain conditions which are not material to the instant cause. As background material to the staff report, the staff makes reference to the U.S. Army Corps of Engineers report entitled "Survey-Review Report of Central and Southern Florida Flood Control Project, Martin County," dated September 22, 1967. The Corps of Engineers' report was not used in the decision-making process but rather was included in the staff report to provide a comprehensive overview. Whether the Corps of Engineers' plans were ever implemented would not affect the recommendations of the staff. The land in question is currently zoned "IZ" (interim zoning) according to Martin County's zoning regulations. In this category, if the neighborhood is predominantly one classification of usage, then the zoning director is to be governed by the regulations for that class of usage in determining the standard zoning regulations to be applied to the interim zoning district. If no trend of development has been established in the neighborhood, the minimum standards of the R2 single family zoning district are to be complied with. Rule 16K-4.035, Florida Administrative Code, entitled Basis of Review of Applications for Construction of Works, provides in Section (2) that all applications such as the instant one shall be reviewed in accordance with the provisions of the district's "Basis Of Review For Construction Of Surface Water Management Systems Serving Projects With Two Or More Acres Of Impervious Area Within The South Florida Water Management District - December, 1977." The Basis of Review provides in Part VI that before an application will be considered for the issuance of a permit, the proposed land use must be "compatible with the applicable zoning for the area." The evidence indicates that the land in question has a history of agricultural use. However, the evidence also discloses that far from being a trend towards agricultural use there is a trend away from it. A major portion of the neighboring lands will be devoted to Phases I, II, IV and V, of the Pal-Mar Water Management District. According to Florida Land Sales Board registrations, the land in question is subdivided into one-half acre, one acre, 1.4 acre and two acre lots. The average project density is one lot per acre. In addition, there is some mobile home usage within neighboring areas. If there is a trend, it is toward R2 zoning type usage. SFWMD's staff concluded that the proposed land use was compatible with the applicable zoning for the area. Martin County has failed to establish that such compatibility does not exist. In the Redraft of Order Permitting Change of Plan of Reclamation and Change of Name dated November 4, 1969, the Honorable C. Pfeiffer Trowbridge, Circuit Court Judge of the Nineteenth Judicial Circuit in and for Martin County, observes that the Petitioner in that case (herein Pal-Mar) "permanently and irrevocably withdrew its application to drain into the St. Lucie canal thereby removing all reasons for objections" to the proceedings in Circuit Court. However, there is no evidence to indicate that there exists a prohibition against drainage into the St. Lucie canal or that Judge Trowbridge's order is intended to preclude approval of Pal-Mar's present application.
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the final hearing in this case, the following findings of fact are made. Respondent, DER, is the state agency charged with administering the provisions of Chapter 403, Florida Statutes, and rules promulgated thereunder, including the issuing of dredge and fill and certain stormwater permits/water quality certifications. Developers Diversified applied to DER for a dredge and fill permit/water quality certification to construct a shopping center and associated stormwater facilities by filling approximately four acres of DER jurisdictional wetlands. The project site is located at the intersection of State Road 71 and U.S. Highway 90, east of Marianna, Jackson County, Florida. The project is to be known as the Crossroads Shopping Center. It will be constructed on a 20-acre site and will consist of 165,000 square feet of enclosed area and approximately 1000 parking spaces. The center will include a major department store, a grocery store, a junior department store, and various other retail stores. The project site includes an unnamed watercourse (hereinafter known as the "north/south watercourse") which exits the site under U.S Highway 90 and connects to a flood plain to the Chipola River, an Outstanding Florida Water, which is about one mile away. Existing improvements to the property include a metal building, which is being used as an auto parts store, a vacant concrete building, and a residence. Developers Diversified has already removed five or six houses from the site. To the west of the site are several restaurants, a Holiday Inn, gas stations, and automobile dealerships. Other surrounding land use is a mixture of residential, commercial, and agricultural development. Developers Diversified subsequently modified its application and the application was eventually deemed complete on January 15, 1988. On April 12, 1988, DER issued an Intent To Deny. The Intent To Deny indicated that the project would be permittable if certain further modifications were made. After receipt of the Intent to Deny, Developers Diversified further modified the project and reduced wetland impacts to the point that only approximately 0.83 acres of DER jurisdictional wetlands will be filled. Other project modifications included moving the project approximately thirty feet to the west to reduce the amount of fill in the wetlands; the addition of wing walls at areas where fill will be sloped, thereby removing fill from stream areas; the use of an elevated pipe system to convey stormwater across the stream, so as not to impact natural flow; reduction of the project size by approximately 10,000 square feet; and the removal of one outlet, a one-half acre to one acre parcel. The stormwater treatment system was also redesigned to alleviate DER's water quality concerns. The stream systems on site comprise four identifiable watercourses: a) The largest is a north/south stream system which originates off site at a groundwater spring located adjacent to the northeast of the site and then flows south parallel to the eastern boundary of the project site and continues off site through a culvert beneath Highway 90 on the southern boundary of the site. b) The next largest is a small, intermittent forked tributary system which originates in a seepage slope system in the north central area of the project site and discharges into the larger north/south watercourse. c) The next largest is an intermittent east/west watercourse originating in a seepage slope system in the northwestern area of the project site which discharges into the north/south watercourse. d) The smallest is an intermittent watercourse located in the western central area of the site which originates at an outfall pipe from an unidentified source. The streams on site are tributaries to the Chipola River, which is designated in Rule 17-3.041(4)(i), Florida Administrative Code, as an Outstanding Florida Water. The streams themselves are classified as Class III waters pursuant to the standards in Rule 17-3.121, Florida Administrative Code. The site currently receives untreated stormwater runoff from both State Road 71 and Highway 90. Stormwater collection systems from these roads discharge directly through outfall pipes into the stream systems on site. The streams on site currently appear to receive discharges from a number of septic tank systems located either on site or on adjacent sites. High fecal and total coliform levels found in water samples taken by the applicant's experts in the course of water quality analysis of the stream systems on site are evidence of these discharges. The ecosystem found in the undisturbed portion of the project site is a wet mesic hardwood system which is a product of the geologic and hydrologic character of the site. This type of ecosystem is uncommon in the state of Florida and is generally found only in the north central area of the Florida Panhandle. The dominant physical characteristic of the undisturbed wet mesic hardwood ecosystem on site is the presence of functioning seepage slopes. The seepage slopes on this site are hydrogeological formations which are relatively rare within the boundaries of the state of Florida. They occur as gently sloping hillsides or steeper ravines with characteristically porous upper layers of soil composed of sand or sandy clay situated atop lower strata of impervious white clays or limestone rock. Rainwater percolates through the upper layers of these slopes and collects on top of the lower impervious layers. The water then flows down gradients beneath the soil surface, following the contour of the impervious layer until it either encounters a fissure which allows an avenue to the surface in the form of small sinkholes and seepage points, or reaches the bottom of the ravine or slope where it discharges into the larger visible stream systems on the site. The effect of the seepage slope is the attenuation of rainfall-related moisture content in the soils on site and the resultant flattening of the hydroperiod in the system. This effect creates a wet hardwood ecosystem on this site which supports relatively unusual floral and faunal communities for Florida. Despite their hydrologic functions in relation to the wetlands on the site, most of the seepage slope systems on the site are not considered jurisdictional wetlands pursuant to the Department's rule criteria contained in Rule 17-12.030, Florida Administrative Code. The functions of the seepage slope systems on and adjacent to the project site not generally sensitive to adjacent development activities which do not impair the integrity and porosity of the upper strata of the soils on the slope. Department dredge and fill regulations do not provide protection from the adverse effects of silvicultural and agricultural activities for any part of the seepage slope systems on site. Developers Diversified would not be precluded from using for future commercial development purposes a substantial portion of the seepage slope systems on site which is not directly impacted by the proposed project and not within the Department's wetlands jurisdictional area. The natural hydroperiod of a large portion of the seepage slope systems associated with the Chipola River system was destroyed when a dam was constructed nearby at Highway 90 to create Merrits Mill Pond. Because of this factor, the function of the remaining seepage systems is more important. On June 16, 1988, DER, in response to the applicant's permit modifications, issued an Intent to Issue with ten permit conditions, including a mitigation plan consisting of a conservation easement over approximately 12.54 acres on and adjacent to the project site. On June 21, 1988, Developers Diversified filed with DER Proof of Publication of Notice of Proposed Agency Action. The stormwater system is designed to meet the requirements of Chapter 17-25, Florida Administrative Code. The stormwater discharge system utilizes filter fabric and sand to filter oil and grease to prevent water quality violations. The detention ponds have over 50 per cent more storage volume than required by Chapter 17-25, Florida Administrative Code, and are designed to drain through the filters in 36 hours or less. The filtration system is designed using sand media in accordance with Rule 17-25.025(2), Florida Administrative Code. This media is separated from perforated drain pipe by filter fabric which will hold the sand in place. As both ponds are designed to draw down in 36 hours or less, a safety factor of at least 2 is provided (72 hours divided by 36 hours 2). The stormwater system is not only designed to meet the minimum requirements of Chapter 17-25, Florida Administrative Code, but is also overdesigned to accommodate the first three- quarters of an inch of runoff. The system was overdesigned in order to receive not only the stormwater runoff from the project, but also DOT discharges from U.S. Highway 90 and State Road 71, which presently discharge into waters of the state in an untreated condition. Developers Diversified proposes utilization of construction and post- construction Best Management Practices ("BMP") to minimize the potential for adverse water quality impacts. These BMP include the construction of a ten-foot high retaining wall to prevent encroachment into the adjacent small, intermittent channel; steep embankment slopes sodded or stabilized to minimize erosion; silt fencing used along the limits of jurisdictional areas prior to construction; hay bales to reduce erosion upgradient from silt fences; sheet pilings to construct foundations of the pipe bridge; geotextile material to stabilize fill embankments to reduce erosion; disturbed areas to be sodded, grassed, or landscaped to minimize erosion after construction; use of Marafi- Miragrid fabric to stabilize slopes where staking sod alone would be ineffective to hold the slopes; and the use of natural vegetation in uplands, where possible, to retard erosion. Developers Diversified will also employ an on-site full-time engineer to assure that the stormwater system is properly constructed, that all permit conditions are complied with by the contractor, and that construction impacts are minimized. Developers Diversified will conduct the following post-construction activities: monthly monitoring of stormwater inlets to check for buildup of debris; regular sweeping of the parking lot; mowing of the berms of the stormwater retention ponds and removal of debris from the ponds; regular inspection of the ponds for signs of erosion; and regular inspection of the filter fabric by an engineer to make sure that the filtration system is functioning properly. BMP during and after construction will minimize erosion. The stormwater design assures that virtually no particulate load will reach waters of the state. Further, the drainage basin for this site is only approximately 0.2 square miles. Consequently, relatively little runoff from the site potentially contributes to the Chipola River. Improved water quality will result from treating the presently untreated DOT stormwater. In addition, water quality will also be improved by eliminating presently untreated discharge which appears to include sewage. There is, therefore, little potential for degradation of the Chipola River. DER has imposed as a permit condition, and Developers Diversified has agreed to, the posting of a construction bond equal to the amount of the construction costs of the stormwater system plus 10 per cent, to ensure that the stormwater system is constructed in accordance with permit conditions. Water quality sampling was conducted at 11 locations on site and in the conservation area. The results of this sampling indicate a violation of state water quality standards (Chapter 17-3, Florida Administrative Code) at Sampling Station No. 4. Sampling Station No. 4 was selected to measure the water quality from the 6-inch PVC pipe located west of the north/south watercourse. Sampling at this station indicates water quality violations of standards for conductivity (specific conductance), ammonia, and total and fecal coliform. The apparent source of this discharge is effluent from untreated domestic wastewater. Residences and commercial establishments in the vicinity of the project currently use septic tanks. Developers Diversified has agreed to fund the extension of the City of Marianna's sewer system to the project site. Pursuant to Chapter 371, Florida Statutes, all commercial establishments and residences in the area of the project site which are currently on septic tank systems will be required to hook up to city sewage. Therefore, the presence of untreated effluent in waters on the site should be eliminated. The stormwater system at the Crossroads Shopping Center will be constructed so as to provide adequate retention areas to pick up the DOT discharge, which is presently discharging to waters of the state in an untreated condition. Therefore, the improvement in site conditions relating to elimination of the untreated sewage and DOT discharges should be considered a public benefit. No threatened and endangered animal species were observed on site during the course of extensive site inspections by both Developers Diversified's consultants and DER staff. Because of the altered character and location of the site, it is unlikely that any such animal species would be found in the particular habitat on this site. Furthermore, DER permitting staff requested comments from the Florida Game and Freshwater Fish Commission regarding threatened and endangered animal species, and no comments were received. There is no evidence of record in this proceeding that shows the existence of any threatened or endangered animal species on site. No identified populations of plants on the threatened or endangered species list were found on the project site, with the exception of a single pyramid magnolia sighted in the upland area adjacent to the spring head of the north/south tributary. The project site is populated by ubiquitous animal species that can forage in the wetlands and uplands adjacent to the 0.83 acres proposed for filling. Small salamanders, frogs, and minnows were observed in the few areas of pooled or flowing water. It is unlikely that these animals would be significantly affected by the project because they are either located in the conservation area or can forage in areas which will be left undisturbed. Wetlands to be filled on the site also provide minimal opportunities for detrital export. The site contains no water deep enough to have permanent fish populations or to otherwise be of recreational value. Due to the relatively small area to be filled, the small size of the drainage basin, and the large area of wetlands within the Chipola River Basin which contributes to the Chipola River, removal of these wetlands will result in no measurable impact to fish and recreational values in the Chipola River. Permit conditions and construction and post-construction BMP will prevent harmful erosion or shoaling. This project will have no effect on navigation or the flow of water either on site or in the Chipola River. On-site waters present no opportunity for fishing or recreation. There should be no direct or indirect impacts on fishing and recreational values in the Chipola River. Since the on-site system is not a marine system, the proposed project will not affect marine productivity. This shopping center development will be permanent in nature. The construction activity associated with the development will, of course, be temporary. DER typically does not require applicants to conduct archeological site surveys. Instead, DER staff routinely requests comments on potential historic or archeological impacts of dredge and fill projects from the Secretary of State's office. DER staff requested comments from the Secretary of State's office in this case, but no comments were received. Consequently, there is no evidence of record to show the existence of any significant historical or archeological resources on the project site. The City of Marianna and Jackson County have no zoning code, land use map, regulations on development in wetlands, or restrictions on commercial development and only limited restrictions on residential development related to the dedication of infrastructure to the county. There is no evidence in the record indicating that existing projects impact waters of the state in the area of the project, nor is there evidence that there are other projects which are under construction, have been permitted, or have been the subject of a jurisdictional determination. Similarly, there is no evidence that any other specific projects may "reasonably be expected" in nearby jurisdictional areas. Commercial and agricultural uses already surround the site. Since the site is located at a major road intersection, the possibility of future development exists. Should development occur, the conservation easement proposed by the applicant will be especially valuable because it will preserve a majority of the wetland system in the vicinity of the project site. Since the enactment of the mitigation provisions of Section 403.918(2)(b), Florida Statutes, in 1984, the Department has attempted to adopt a rule to carry out this legislative provision. The Environmental Regulation Commission has approved a mitigation rule for adoption, but the rule has been the subject of successive administrative rule challenges. As a result, the Department has been operating under evolving non-rule mitigation policy in processing dredge and fill applications since 1984. Three Department memoranda provide guidance to Department staff involved in the evaluation of mitigation issues raised in connection with dredge and fill applications currently pending before the Department: a) a March 24, 1987, memorandum from Department Secretary Dale Twachtmann to Randy Armstrong on the subject of "Interim Mitigation Policy," b) an April 30, 1987, memorandum from Randy Armstrong to Department District Mangers and Mark Latch on the subject of "Evaluation of Mitigation," and c) a June 20, 1988, memorandum from Secretary Dale Twachtmann to Randy Armstrong titled "Policy for Wetlands Preservation as Mitigation." The selection of the proposal which will be considered to ameliorate the adverse impacts of a project is a site specific, fact specific, and project specific type of determination. Therefore, it is difficult to describe in general terms what kind of measures will be acceptable as mitigation. As indicated in all three memos, the Department does consider a wide variety of types of proposals in determining how a permit applicant can best mitigate the adverse impacts of the proposed project. The Department's dredge and fill permitting technical staff and policy makers generally go through at least three steps in considering what type of mitigation will be best suited for a specific project. The first step is to consider reasonable modifications to project placement and design which will minimize or eliminate any of the anticipated adverse impacts. If, for some reason, the applicant cannot reasonably comply with the Department's suggested modifications to minimize the adverse impacts by redesigning its project, the applicant is then allowed to develop alternatives for the creation of artificial wetland habitat or the enhancement of existing impacted wetlands on the project site. If for some reason the creation and enhancement of wetland areas on-site is not feasible, then the option of the creation or enhancement of wetland areas adjacent to the project may be explored. As a final matter, the Department may consider the dedication of property rights to the state as means of preserving wetlands and other valuable natural areas as a means of mitigating for expected adverse impacts. Property dedication can take the form of perpetual conservation easements or the conveyance of fee simple title on properties within the project boundaries or adjacent to the project site. As a result of a finding by the Department that Developers Diversified's proposed project proposed project was not permittable because of the adverse impacts of the habitat loss in the more valuable western potions of the east/west tributary and the northern forked seepage stream system, the Department considered modification options and mitigation proposals with the applicant in an effort to ameliorate those adverse impacts. The Department suggested a list of modifications which the applicant could make to the proposed project to eliminate or minimize the filling of jurisdictional wetlands on the project site. The applicant made the following modifications to the project in response to the Department's suggestions: The project was moved 30 feet to the west to reduce encroachment into the wetlands from 1.26 acres to 0.83 acres. An elevated stormwater drain crossing of the jurisdictional area was designed to eliminate the fill pipeline crossing originally proposed. A retaining wall 10 feet high and 150 feet long was designed to prevent encroachment of the project into approximately 1,000 square feet of wetlands to preserve a small, intermittent stream channel. Steep embankment slopes (1:1.5) were designed to reduce encroachment into the wetlands. These slopes will be sodded or otherwise stabilized to minimize erosion. Silt fencing will be installed along all limits of project construction adjacent to jurisdictional areas prior to commencement of construction and will be maintained during the entire construction phase. Geotextile or equivalent will be used to stabilize the fill (embankment) to support the building foundations and roadwork along the east side of the site. This will serve to reduce erosion of the fill into the jurisdictional area during and after project construction. All areas disturbed during construction and not paved or covered by structures will be sodded, grassed, or landscaped to minimize erosion after project construction. Mirafi-Miragrid fabric will be used to stabilize slopes where staking sod alone would be ineffective. This material will hold sod firmly in place until it is established. The Department considered wetlands creation and enhancement proposals provided by the applicant for areas both within the boundaries of the site and adjacent to the site. The Department and Developers Diversified discussed the feasibility of developing plans for the re-creation of both the hardwood slope forest type environment and the seepage slope environment either on site or adjacent to the site. However, in further exploring those options, both Department staff and the applicant's engineers agreed that the topography and soil characteristics of the area, combined with the complex nature of the systems which would have to be re-created, made both options impractical and most likely impossible. The department considered the option of accepting preservation of the seepage slope system as mitigation only after determining that wetland creation and/or enhancement options were not available to mitigate the adverse impacts of the project. As a means of utilizing the option of preservation of the remaining wetlands and other natural features within or adjacent to the project site, the Department considered the applicant's proposal for conveying conservation easements over all of the approximately 6 acres, both jurisdictional wetlands and uplands, which remained on the northern and eastern side of the project site. In addition, the applicant arranged for the donation of a conservation easement over approximately 6.5 acres of additional jurisdictional wetlands and related upland areas adjacent to the northern and eastern boundaries of the project site. The proposal provided for the execution of perpetual conservation easements over approximately 12.564 acres of high quality seepage slope and stream systems on or adjacent to the project site. The Department's guidelines on the acceptance of preservation proposals as mitigation recognize that the State of Florida is paying high prices for environmentally unique and threatened land through public land acquisition programs such as the Conservation and Recreation Lands Program. As a result, the Department considers that the possibility of acquiring such properties by donation makes the serious consideration of such preservation proposals environmentally and economically necessary. The Department considered the following factors in determining whether or not it was appropriate to accept the proposed conveyance of conservation easements in this case: Whether or not the parcel is under consideration for purchase and management as a conservation area or is immediately adjacent to one, or is of such high quality as to provide clear benefit to the state as preserved land; The current degree of threat to the parcel; The proximity of the parcel to the site of the project for which mitigation is required; The quality of the conveyance instrumcnt and the status of other encumbrances, such as mineral rights; Whether the parcel is within, near, or adjacent to any waters with a special designation such as parks, aquatic preserves, and Outstanding Florida Waters; The condition of the property as a result of previous activities, such as the disposal of hazardous or solid waste. The Department considered the following factors in assessing the relative value of the areas proposed for preservation on and adjacent to this project site: Relative proximity to existing or anticipated activity that would affect its environmental value; Existing water quality; Presence of threatened or endangered species; Presence of feral animals that would affect resources; Presence of historic or archeological sites; The hydrological importance of the surface water and ground water at that location; The configuration of the parcel. The proposed conservation easements mitigate the adverse effects of the proposed filling by perpetually preserving virtually all of the watershed for the north/south tributary on site and ensuring the continued functioning of this system in the face of future unrestricted commercial development in the area. The proposed preservation option ratio preserves over 15 acres of similar or better quality wetland and related uplands slope systems for every acre of jurisdictional wetlands to be filled. This 15:1 ratio is within the limits of the acceptable range of 10:1 to 100:1 proposed in the Department Secretary's June 20, 1988, memorandum for this type of preservation proposal. The Department has already accepted a mitigation proposal in one standard form dredge and fill permitting matter which involved the use of preservation through conservation areas alone. The DER Southwest District Office has issued Warning Notices to Developers Diversified for two shopping center projects in Pasco County, known as Bayonet Point and Pasco Square. At Pasco Square, the stormwater system was allegedly not constructed in accordance with permit specifications and the mitigation and enhancement areas were allegedly also not constructed. At Bayonet Point, a retention area was allegedly overgrown with nuisance species, a littoral shelf for a retention area was not complete, and portions of the stormwater system were not properly constructed. In addition, DER did not have proof that the conservation easement had been recorded with the Clerk of the Court. Subsequently, the permit was modified to eliminate the littoral shelf requirement. At the time of this hearing, all work on Bayonet Point has been completed to DER's satisfaction. Required work is underway at Pasco Square. No Notice of Violation or other enforcement action has been pursued against Developers Diversified relating to these or any other projects. The CBPG is a not-for-profit corporation incorporated under the laws of the State of Florida and, as such, is considered to be a citizen of the state for the purposes of Section 403.412(5), Florida Statutes. The CBPG filed a verified petition for hearing alleging that the activities sought to be permitted will impair, injure, or pollute the natural resources of the state. The CBPG was concerned about the loss of wetlands on the proposed development site. The totality of the evidence fails to support a finding that CBPG undertook this action for an improper purpose or that its motives were frivolous. The correct full name of the Florida Sierra is "the Florida Chapter of the Sierra Club." The nature of Florida Sierra and of the Sierra Club is described as follows in Section 1.1 of Article 1 of the Bylaws of the Sierra Club Florida Chapter: This Chapter is constituted by action of the Board of Directors of the Sierra Club on February 14, 1971, in accordance with and subject to the provisions of the Bylaws of the Sierra Club. This Chapter is an integral part of the Sierra Club and is governed by its Bylaws; it is not a separate legal entity. The Sierra Club is a California- based corporation registered as a foreign non-profit corporation with the Florida Secretary of State. Section 1.5 of Article 1 of the same Bylaws provides, in pertinent part: "The members of this Chapter shall be those members of the Sierra Club who reside within the geographical limits of the Chapter. . . ." Those geographical limits are identical to those of the State of Florida. And Section 2.1 of Article 2 of the subject Bylaws requires that the management of the affairs and activities of Florida Sierra be carried out in a manner consistent with the purposes of Sierra Club National and the policies and directives of the National Board. The purposes of Florida Sierra include the protection, exploration, and enjoyment of the natural resources of the state. In that regard, the organization has an outings program, is involved in conservation issues, distributes a newsletter, and educates and champions other activities promoting the protection of the natural resources of the state. Florida Sierra has its own bank account with a treasurer responsible for its finances. The Bylaws of Florida Sierra vest the powers and duties of "the Florida Chapter of the Sierra Club" in a board of directors referred to as the Florida Executive Committee. Florida Sierra has not alleged, and there is no evidence of record, that it is a Florida corporation. Florida Sierra has not registered in any county in Florida under the Fictitious Name Statute, Section 865.09, Florida Statutes. Furthermore, Florida Sierra is not an unincorporated association. The national Sierra Club, Inc., a California corporation, is registered in Florida as a foreign corporation authorized to do business in this state.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Environmental Regulation enter a final order granting the application of Developers Diversified, Inc., to fill approximately 0.83 acres of wetlands and for the construction and operation of a stormwater treatment and conveyance system in relation to the development of the Crossroads Shopping Center in Marianna, Florida, and issuing permits with appropriate conditions governing the construction of a shopping center and the stormwater collection and treatment system and the execution of conservation easements as included in the Department's Intent to Issue dated June 16, 1988. DONE AND ENTERED this 14th day of November, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of November, 1988. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 88-3355 The following are my specific rulings on all of the proposed findings of fact submitted by all parties. Findings proposed by Developers Diversified Paragraphs 1, 2, 3, 4, and 5: Accepted. Paragraph 6: Most rejected as unnecessary historical details. Paragraphs 7, 8, 9, 10, 11, 12, and 13: Accepted in substance, with some unnecessary details omitted. Paragraph 14: Covered in introduction; not necessary in findings of fact. Paragraph 15: Accepted. Paragraph 16: First two sentences covered in introduction; not necessary in findings of fact. The remainder of this paragraph is accepted in substance. Paragraph 17: Rejected as subordinate and unnecessary details. Paragraphs 18, 19, 20, 21, 22, and 23: Accepted. Paragraph 24: Accepted in substance with some redundant language omitted. Paragraph 25: Rejected as subordinate and unnecessary details not fully supported by the weight of the evidence. Paragraphs 26, 27, and 28: Accepted. Paragraphs 29 and 30: Accepted in substance with some clarifying additions. Paragraphs 31, 32, and 33: Accepted. Paragraph 34: Accepted with clarifying addition. Paragraph 35: Accepted. Paragraphs 36 and 37: Accepted in substance with some unnecessary material omitted. Paragraphs 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, and 48: Accepted in substance, although findings actually made are more closely modeled on the proposals submitted by the DER. Paragraphs 49 and 50: Rejected as constituting conclusions of law or argument, rather than proposed findings of fact. (Matters addressed by these paragraphs are discussed in the conclusions of law.) Paragraph 51. Accepted. Paragraph 52: Rejected as subordinate and unnecessary details. Findings proposed by Petitioner Paragraphs 1, 2, 3, and 4: Accepted in substance with a number of unnecessary details omitted. Paragraph 5: First sentence accepted. Remainder rejected as not fully supported by persuasive competent substantial evidence and as, in any event, subordinate and unnecessary details. Paragraph 6: Rejected as subordinate and unnecessary details. Paragraph 7: (There is no paragraph 7.) Paragraphs 8 and 9: Rejected as subordinate and unnecessary details. Paragraph 10: Rejected as an unnecessary generality in light of other evidence about this specific system. Paragraph 11: Accepted. Paragraph 12: Rejected as irrelevant because not found in this system. Paragraph 13: Accepted in part; some parts rejected as unnecessary historical background. Paragraphs 14 and 15: Accepted in substance with some unnecessary details omitted. Paragraph 16: A few details from this paragraph have been incorporated into the findings, but most have been rejected as unnecessary. Paragraphs 17 and 18: Accepted in substance with some unnecessary details omitted. Paragraph 19: Rejected in part as speculative and in part as subordinate and unnecessary details. Paragraph 20: Rejected as not supported by persuasive competent substantial evidence. Paragraph 21: First sentence accepted. Second sentence rejected as subordinate and unnecessary details. Third sentence rejected as irrelevant. Fourth sentence accepted. Paragraph 22: First sentence accepted. Remainder rejected as argument and as subordinate and unnecessary details. Paragraph 23: Rejected as constituting primarily argument rather than proposed findings of fact. Paragraphs 24 and 25: Accepted. Paragraph 26: Rejected as speculation and as not supported by persuasive competent substantial evidence. Paragraph 27: Rejected as constituting argument or conclusions of law rather than proposed findings of fact. Paragraphs 28, 29, and 30: Accepted in substance with some unnecessary details omitted. Paragraph 31: Rejected as constituting for the most part argument rather than proposed findings of fact. To the extent findings are proposed, they are irrelevant or not supported by competent substantial evidence. Paragraph 32: Accepted in substance. Paragraphs 33, 34, and 35: Rejected as contrary to the greater weight of the evidence. Paragraph 36: Accepted with additional clarifying details. Paragraph 37: Rejected as not supported by persuasive competent substantial evidence. Paragraph 38: Rejected as redundant. Paragraph 39: Accepted in substance. Paragraph 40: First sentence accepted. Second sentence rejected as irrelevant. Third sentence rejected as constituting argument rather than proposed findings of fact. Paragraph 41: Accepted in substance. Paragraph 42: For the most part rejected as unnecessary details. Paragraph 43: Rejected in part as constituting unnecessary details and in part as constituting argument rather than proposed findings of fact. Paragraph 44: Rejected as primarily constituting argument rather than proposed findings of fact. Paragraph 45: Accepted in substance, with the exception of the last sentence, which suggests an incorrect inference. Paragraphs 46 and 47: Accepted. Paragraph 48: Accepted with the exception of the proposition that Florida Sierra acts "independently" of the national organization. (It cannot be truly independent if it is not a separate legal entity.) Paragraph 49: Accepted in substance, with some unnecessary details omitted. Findings proposed by DER Paragraphs 1, 2, 3, 4, 5, 6, 7, and 8: Accepted in substance. Paragraphs 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18: Accepted. Paragraphs 19, 20, 21, and 22: Accepted in substance. Paragraph 23: Accepted in substance, with exception of last two sentences, which are conclusions of law. Paragraph 24, 25, 26, 27, 28, 29, 30, and 31: Accepted in substance. Paragraph 32: Rejected as constituting a conclusion of law rather than a finding of fact. This proposed conclusion is discussed in the conclusions of law. Paragraphs 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, and 44: Accepted. Paragraph 45: Last sentence accepted. Remainder omitted as constituting unnecessary historical background. Paragraphs 46, 47, and 48: Accepted. Paragraph 49: Rejected as redundant and unnecessary. Paragraph 50: Accepted. Paragraph 51: Accepted in substance, with clarification of ratio figures. (The formula appears to be 12.54 divided by .83 = 15.108433.) Paragraph 52: Accepted. Paragraph 53: Rejected as redundant and unnecessary. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, Florida 33704 William E. Williams, Esquire Robert D. Fingar, Esquire J. D. Boone Kuersteiner, Esquire Huey, Guilday, Kuersteiner & Tucker P. O. Box 1794 Tallahassee, Florida 32302 Steven K. Hall, Esquire Carol Forthman, Esquire Richard Donelan, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale Twachtmann, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 =================================================================
The Issue The issue in this case is whether Florida Administrative Code Rule 40E-7.523(2)(c) is an invalid exercise of delegated legislative authority.*
Findings Of Fact The Parties 1. The District is a public corporation existing by virtue of Chapter 25270, Laws of Florida (1949), and operating pursuant to Chapter 373, Florida Statutes, and Title 40E-7, Florida Administrative Code, asa multipurpose water management district, with its principal office in West Palm Beach, Florida. 2. KRVSA is a Florida corporation whose members are substantially affected by the rule in question. 3. Phillip B. Griner is an individual who holds a Special Use License to use the Lower Reedy Creek Management Area/Rough Island Management Unit Protected Zone. He has been a member of KVSA since its inception in 1998 and was serving on its board of directors at the time of the final hearing.
Conclusions Based upon the foregoing Findings of Fact and Conclusions of Law, the Petition for Administrative Hearing is denied. DONE AND ORDERED this 19th day of December, 2003, in Tallahassee, Leon County, Florida. Pan ate J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of December, 2003.
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of appeal with Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the Appellate District where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. 31
The Issue The preliminary issue in this case is whether the South Florida Water Management District (District) has jurisdiction over the Petition for Formal Administrative Hearing (Petition) filed by the Save the Manatee Club (Club)--i.e., whether the Petition was timely or, if not, if the District has jurisdiction under principles of equitable tolling or excusable neglect.
Findings Of Fact On October 11, 1999, Hidden Harbor filed with the District an application for an Environmental Resource Permit (ERP) to construct and operate a surface water management system serving a proposed residential development in Lee County, Florida. In January 2001, the Club sent an email to the Florida Wildlife Conservation Commission (FWCC) stating that it was concerned about Hidden Harbor's Application No. 991011- 13, as it might impact an area the Club would like to see as a manatee sanctuary, and was requesting copies of all FWCC documents relating to the permit. FWCC forwarded a copy of this email to the District on January 19, 2001. At the time, the Club's internet website gave the address of its main office in Maitland, Florida, as the Club's official mailing address. On April 9, 2001, the Club opened a Southwest Florida regional satellite office in Estero, Florida, and installed Laura Combs as Regional Coordinator in charge of that office. Responsibility for monitoring the Hidden Harbor application was delegated to Combs and the satellite office. Nonetheless, the Club's website continued to give the address of its main office in Maitland, Florida, as the Club's official mailing address. Combs's prior work experience with the Club was as assistant director of governmental relations in Tallahassee, Florida. In that position, she tracked legislation and actions of the Governor and Cabinet that were of interest to the Club. She had no role in the filing of petitions for administrative hearings on actions of governmental agencies. Combs's education included a bachelor's degree in English and a master's degree in urban and regional planning. She did not have specific legal education in the filing of petitions for administrative hearings on actions of state governmental agencies. On May 30, 2001, the District mailed to the Club at its Maitland office address a letter enclosing the "District's staff report covering the [Hidden Harbor] permit application [No. 991011-13]" and notifying the Club that the "recommendations as stated in the staff report [to grant the attached draft permit] will be presented to our Governing Board for consideration on June 14, 2001." The Club also was advised: Should you wish to object to the staff recommendation or file a petition, please provide written objections, petitions and/or waivers (refer to the attached "Notice of Rights") to [the District's deputy clerk]. The "Notice of Rights" addresses the procedures to be followed if you desire a public hearing or other review of the proposed agency action. You are advised, however, to be prepared to defend your position regarding the permit application when it is considered by the Governing Board for final agency action, even if you agree with the staff recommendation, as the Governing Board may take final agency action which differs materially from the proposed agency action. The Notice of Rights stated that it was intended to conform to the requirement of Section 120.569(1), Florida Statutes, to "inform the recipient of any administrative hearing or judicial review that is available under this section [120.569(1)], s. 120.57 or s. 120.68." It cautioned: Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. The Notice of Rights included a section entitled "Petition for Administrative Proceedings," which stated in pertinent part: 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 40E-0.109), as set forth below . . .. 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 . . . of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Pertinent to this case, the Notice of Rights included a verbatim reproduction of Florida Administrative Code Rule 28- 106.201, addressing required contents of a petition to initiate proceedings involving disputed issues of material fact. Rules 28-106.111, 40E-1.5111, and 40E-0.109 were not reproduced in the Notice of Rights. It is not clear from the evidence when the letter dated May 30, 2001, with attachments (the Notice Correspondence), was received in the Club's Maitland office. It was not date-stamped, as time-sensitive correspondence normally would be. Apparently, it was decided to forward the Notice Correspondence to the new satellite office in Estero for handling. Combs received the forwarded Notice Correspondence in early June 2001. This was the "first time [Combs] had been through this type of process." Combs reviewed the Notice Correspondence, eventually focusing on paragraph 1.a. of the "Petition for Administrative Proceedings" section of the Notice of Rights. She did not read any of the cited statutes and rules except for the rules reproduced verbatim as part of the Notice of Rights. Combs made conflicting statements regarding her understanding of the District's administrative process. However, it appears that she understood that the Club could file a petition within 21 days of receipt of the Notice Correspondence, or within 21 days of the "final" action of the District's Governing Board. She testified that, because the Notice Correspondence did not bear a date-stamp, it was unclear when the first 21-day time period began or ended; as a result, she decided to wait until the District's Governing Board took "final" action and file a petition within the second 21-day time period. Combs appeared at the meeting of the District's Governing Board on June 14, 2001, and spoke in opposition to issuance of the draft permit. Notwithstanding the Club's opposition, the Governing Board decided to issue the draft permit. Combs does not have authority to file petitions for administrative hearings on District actions. She consulted with her supervisor, Patricia Thompson, and they made a recommendation to the Club's governing board, which has ultimate authority to file petitions. Prior to Combs's involvement in the Hidden Harbor application, the Club had staff legal counsel, who could be consulted with respect to the filing of petitions and would advise the Club's governing board. However, the Club did not have staff legal counsel at the time of Combs's involvement and through the time of filing of this petition. (The Club now again has staff legal counsel.) Neither Combs nor Thompson saw any need to consult an attorney. It is not clear when the recommendation of Combs and Thompson was presented to the Club's governing board or when the Club's governing board made its decision to file the Petition. Neither Thompson nor any member of the Club's governing board (nor anyone else who may have participated in the decision to file the Petition) testified. Several (according to Combs, approximately 12) times after the District's Governing Board's meeting on June 14, 2001, Combs telephoned the District's offices to obtain a copy of the District's Governing Board's "final" action when it was reduced to writing. It is not clear from the evidence why several telephone calls were required. Eventually, on June 26, 2001, Combs received a copy of the permit issued to Hidden Harbor; there was no Notice of Rights attached. On July 17, 2001, the Club filed its Petition challenging the permit issued to Hidden Harbor. In the meantime, Hidden Harbor had obtained a final development order from Lee County in reliance on the Club's failure to petition for an administrative hearing. The Club is not a newcomer to Florida's administrative process. It can be officially recognized that the Club has participated in numerous proceedings before DOAH. At least one of those cases involved issues similar to those presented for determination in this case. See Conclusion of Law 32, infra.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the South Florida Water Management District enter a final order dismissing the Petition. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. _________________________________ J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 2001. COPIES FURNISHED: Cindy L. Bartin, Esquire Post Office Box 861118 St. Augustine, Florida 32086 Martha M. Collins, Esquire 233 3rd Street North, Suite 100 St. Petersburg, Florida 33701 Keith W. Rizzardi, Esquire South Florida Water Management District 3301 Gun Club Road West Palm Beach, Florida 33406-3089 Frank R. Finch, Executive Director South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680
