The Issue Whether a consumptive-use permit for quantities of water as applied for should be granted.
Findings Of Fact Applicant applied for a permit for a public supply of water from two (2) wells to accommodate 3,100 family units in Hillsborough County, Florida. Each well to be 500 feet deep and designated as "new use", i.e., a use not existing prior to January 1, 1975. Well "No. 1" would draw 72,000 gallons per day and well "No. 2", 682,000 gallons per day. The center of withdrawal is located at latitude 28 degrees 6' 18" North, longitude 82 degrees 29' 48" West in Hillsborough County, Florida. The applicant lists 802.2 acres as being owned, leased or otherwise controlled by it. Notice was published in a newspaper of general circulation, to-wit: The Tampa Tribune on April 28 and May 5, 1975, pursuant to Section 373.146, Florida Statutes. Notices of said public hearing were sent by certified mail to Lorenzo Lakes, A Joint Venture, Route 2, Box 737A, Lutz, Florida, and Hillsborough Dairy, Route 1, Box 115, Tampa, Florida A letter was received although it was not designated a letter of objection. The author of said letter is present at this hearing. His name is Mr. John Logan, Water Resources Director, Hillsborough County, Florida. The letter suggests that action on the subject application would be inappropriate at this time inasmuch as a part of the development is to be deeded to Hillsborough County for public roadways. A specific area does not appear to be established but it may exceed 50 acres. Additional acreage may be needed for flood easements for the extension of channel "F", a proposed part of the upper Tampa Bay Watershed Project. No formal letters of objection were received. The following exhibits were introduced without objection: Application for permit Proof of publication Letter from Mr. John Logan The witnesses were duly sworn and agreement by the parties reached on each point to be considered under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated pursuant thereto, particularly Rule 16J-2.11, with the exception that certain conditions were recommended by Mr. George Szell, Hydrologist for the Permittee, and said conditions were agreed to by the Permittee. Mrs. Sally Casper appeared as a member of the public questioning the need for new housing and objecting in essence to Rule 16J-2.11(2)(e) which restricts consideration of lake stages or vegetation to those not controlled by the applicant. Upon the request of the Hearing Officer the parties agreed to enter into a joint order of stipulation and submit said order to the Hearing Officer. Said stipulation was received by the Hearing Officer on July 7, 1975, and is attached hereto and made a part hereof and marked "Supplement to Record".
Findings Of Fact Application No. 76-00360 is for a new consumptive water use involving one well. The application seeks withdrawal of 1.29 million gallons per day average daily withdrawal and 2.59 million gallons per day maximum daily withdrawal. The water will be withdrawn from the Floridan Aquifer for the irrigation of tomatoes. The amount of water sought to be consumptively used will exceed the water crop as defined, by the district because approximately 25 percent of the water will be discharged off site. The land which is the subject of this application is being leased by the applicant for the purpose of growing tomatoes. Applicant's lease terminates in September, 1978 with an option to renew. Except as otherwise set forth above, the applied for consumptive use will not violate any of the conditions set forth in Subsections 16J-2.11(2), (3) or (4), F.A.C. The Southwest Florida Water Management District's staff recommends granting of the subject permit in the amounts requested with the following conditions: The applicant reduce runoff to 4.6 percent of the amount pumped by January 1, 1978. The district be allowed to install flowmeters and be allowed to go on the property to read these meters. The permit shall terminate on September 30, 1978, unless permitee seeks an extension. That the applicant give written notice of his intention to renew the lease if he so intends.
Recommendation It is hereby RECOMMENDED that Application No. 76-00360 be granted subject to the conditions set forth in paragraph 5 above. ENTERED this 26th day of May, 1976, in Tallahassee, Florida. CHRIS H. BENTLEY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 COPIES FURNISHED: Jay T. Ahern, Esquire Ralph Williford Staff Attorney Glisson and Williford Farms, Inc. Southwest Florida Water Post Office Box 911 Management District Ruskin, Florida 33570 Post Office Box 457 Brooksville, Florida 33512
The Issue Whether a consumptive use permit for the quantities of water requested in the application should be granted.
Findings Of Fact Application 7500137 seeks an average daily withdrawal of 2.4 million gallons of water with maximum daily withdrawal not more than 2.88 million gallons from an existing well in order to process phosphate and reclaim land. This is an existing use for mining operations located southwest of Lakeland, Florida, on land consisting of 1531 acres. Notice was published in a newspaper of general circulation, to wit: The Lakeland Ledger, on November 11 & 18, 1975, pursuant to Section 373.146, Florida Statutes. The application and affidavit of publication were admitted into evidence without objection as Composite Exhibit 1, together with correspondence from James R. Brown, Vice President, Dagus Engineers, Inc., dated November 19, 1975 to the Southwest Florida Water Management District. No objections were received by the Water Management District as to the application. Mr. George Szell, hydrologist of the Water Management District testified that the application met the conditions for a consumptive use permit as set forth in Chapter 16J-2.11, Florida Administrative Code, except that the quantity of water requested to be withdrawn is 41.06 per cent over the maximum average daily withdrawal permitted under the water crop theory as set forth in Section 16J-2.11(3), F.A.C. However, the Water Management District witness recommended waiver of that provision since the mining operations will be concluded in several years and thereafter the water table and hydrologic conditions will return to normal. The Water District staff recommended approval of the application with the condition that a meter be installed on the well and that the applicant be required to take monthly readings thereof and submit quarterly reports of the readings to the District. The applicant's representative agreed to these conditions at the hearing.
Recommendation It is recommended that Application No. 7500137 submitted by Poseidon Mines, Inc., for a consumptive water use permit be granted on the condition that a meter be installed on the applicant's well and that monthly readings be taken and submitted quarterly by the applicant to the Southwest Florida Water Management District. It is further recommended that the Board of Governors of the Southwest Florida Water Management District, pursuant to Rule 16J-2.11(5), for good cause, grant an exception to the provisions of Rule 16J-2.11(3), as being consistent with the public interest. DONE and ENTERED this 19th day of January, 1976, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J.T. Ahern, Staff Attorney Southwest Florida Water Management District P.O. Box 457 Brooksville, Florida 33512 Poseidon Mines, Inc. P.O. Box 5172 Bartow, Florida
The Issue Did Respondent, William D. Going, willfully and intentionally violate Florida Statutes and Southwest Florida Water Management District (District) rules regulating well construction? If he did, what corrective action is appropriate?
Findings Of Fact William Going is a licensed water well contractor. He has held License Number 1564 since 2007. Mr. Going is a managing member of Going Irrigation, Inc., and conducts business under that name. Mr. Going constructed four sand point irrigation wells at a residential property in St. Petersburg, Florida. He did not have and had not applied for a Well Construction Permit (WCP). 1 All citations to Florida Statutes are to the 2020 codification unless noted otherwise. 2 The findings are based upon the evidence admitted at the hearing and the stipulations of the parties. Mr. Going did not call or otherwise contact the District to request a WCP. The District operates an online permitting system called the Water Management Information System (WMIS). The District will issue a WCP based upon a telephone call, an application on its website, a faxed application, a mailed application, or a hand-delivered application. The District routinely issues permits within two hours of receiving an application, often within ten minutes to half an hour. The District's application system operates from 7:00 a.m. to 10:00 p.m. It is infrequently offline for a few hours. While quick, the process reviews significant information. It verifies that the well location is sufficiently distant from septic systems, verifies construction methods and materials, and verifies, if the well is for drinking water, that the well is not too close to a contamination site. Mr. Going is a registered and experienced user of WMIS. The District learned of the unpermitted wells on April 28, 2020, when it received an anonymous complaint. On May 5, 2020, approximately ten days after he constructed the wells, Mr. Going submitted WCP Application 889173 for construction of the four already completed sand point irrigation wells. He did not disclose that they were already completed. He falsely represented them as proposed. The District approved the application on May 6, 2020, and issued WCP 889173 to Mr. Going. On June 11, 2020, Mr. Going submitted four Well Completion Reports for the wells, falsely representing that each was completed on May 7, 2020. This was more than 30 days after Mr. Going completed the wells. Mr. Going claimed at the hearing that he tried to apply for a WCP for four or five days before constructing the wells but was locked out of the WMIS. Mr. Going said that his son usually obtained permits online for the company. He also claimed that he tried to apply online on April 24 and 25, 2019. His claims are not persuasive. There is no question that Mr. Going knew the requirements for obtaining a permit and reporting completion. In 2009, in Order No. SWF 09- 017, the District imposed a $500.00 fine and assessed five points against his license for an almost identical offense. In that case, Mr. Going also constructed a well without a permit from the District or applying for a permit. In that case, like this one, he sought to excuse failure to apply for a permit by claiming difficulties with the website. In that case he blamed his wife's unfamiliarity with computers, rather than his own, for failure to apply. In that case, like this one, he applied for and obtained a permit after constructing the well. Mr. Going knowingly and willfully constructed four unpermitted wells, filed a WCP application more than thirty days after he completed the wells, and misrepresented the dates of completion in the WCP completion reports that he filed with the District. Mr. Going tries to characterize his after-the-fact misrepresentations as mitigation. But they were not. Mitigation would have been contacting the District to advise it of the wells' unpermitted construction and the asserted justification for it. Furthermore, his misrepresentations deprived the District of the chance to prevent construction of the wells using improper materials or near a septic tank or contaminated location.
Findings Of Fact On December 31, 1976, Respondent's territorial jurisdiction was expanded by transfer of substantial areas formerly regulated by other water management districts. The transfer was effected pursuant to legislative revision of Section 373.069, F.S., which delineates the geographic boundaries of Florida's water management districts. The following rule promulgated by Respondent became effective on January 31, 1977, and was amended on February 3, 1981: 40C-4.031 (previously 16I-4.04, Florida Administrative Code). Implementation. These regulations shall become effective February 1, 1981, throughout the District and will be implemented in those areas transferred to the St. Johns River Water Management District from the Central & Southern Florida Flood Control District and the Southwest Florida Water Management District on the same date. Implementation in other areas will be effected pursuant to public hearing at subsequent dates determined by the Board. The regulations implemented by the above rule establish permitting procedures for projects which involve holding, diversion, or discharge of significant quantities of water. However, permits are required only in the transferred territory. Petitioner owns 11,500 acres located within the territory where permits are required. Petitioner seeks to improve his property for agricultural purposes, which involves the holding and diversion of surface waters. He has accepted Respondent's determination that his property is within the permitting area and has filed the requisite application. However, Petitioner contends that he is unable reasonably to confirm Respondent's determination that his property is situated in the regulated territory. Respondent demonstrated that a determination can be made by comparing the statutory descriptions of Respondent's jurisdiction prior to and after the transfer, and has maps available which reflect the permitting area. To accomplish this task independently requires knowledge of legal territorial descriptions (section, township, range) and a laborious comparison of legal descriptions set out in the 1975 and 1977 versions of the Florida Statutes. At the time reorganization of the water management districts became effective (December 31, 1976) , Respondent had limited regulatory capability. Its decision to implement permitting only in the transferred territory was based on this limited capability and the need to preserve continuity 1/ in areas where permits had previously been required. In the years following this decision, Respondent has continued to require permits only in those areas transferred in 1976. The evidence established that the boundary between the regulated and unregulated areas is one of convenience and has no hydrological or other scientific basis. Respondent is considering a revision of its rules to become effective sometime in 1982. This revision may enlarge the permitting territory and modify the criteria for grant or denial of permits. Petitioner asserts that his application is being evaluated by rules not yet adopted and fears that new standards may be applied after hearing on the application, which is now under consideration pursuant to Subsection 120.57(1), F.S., (DOAH Case No. 81-1588). Hearing is scheduled for December, 1981. In support of this contention, Petitioner points to the technical staff report prepared in May, 1981, which recommends denial of the application giving, among others, the following reasons: Volumes 1 and 2 of Phase 1 of the Upper Basin Plan catalogue a history of a diminish- ing water resource in the upper basin. The water resources in the upper basin have been harmed and the proposed project aggravates the existing harm to the resource. Moreover the proposed project is inconsistent with the overall objectives of the district for the upper basin. Resolutions 75-11 and 81-2, the 1977 Management Plan, and Volumes 1 and 2 of Phase I of the Upper Basin Plan indicate that the objectives of the District are to curtail inter-basin diversion and maintain and enhance, if possible, the existing hydro- logic regime in the upper basin. The pro- posed project is not in conformance with either of these statutory requirements. (Emphasis added.) An earlier technical staff report prepared in November, 1980, recommended grant of the application, with some modification. This report did not refer to inter-basin diversion.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: The petitioner West Coast Regional Water Supply Authority (WCRWSA) was formed in 1974 by inter-local agreement under Chapter 373, Florida Statutes, as a supply entity to provide and develop sources of water for its members and other governmental entities. The members of WCRWSA include the two cities of St. Petersburg and Tampa and the three counties of Pinellas (intervenor herein), Hillsborough and Pasco. The petitioner and the intervenor own and operate permitted well fields which are regulated by the respondent Southwest Florida Water Management District (SWFWMD) and are therefore subject to the rules and regulations of SWFWMD. All parties have stipulated, and the evidence so demonstrates, that the WCRWSA and Pinellas County are substantially affected by the challenged proposed rule and therefore have standing to challenge its validity. The proposed rule being challenged in this proceeding was considered by the Governing Board of SWFWMD as a result of a prior rule being declared invalid in another proceeding. The prior rule, codified as Rule 16J-2.11(3), Florida Administrative Code, provided as follows: 16J-2.11 Conditions for a Consumptive Use Permit Issuance of a permit will be denied if the amount of water consumptively used will exceed the water crop of lands owned, leased or otherwise controlled by the applicant. (Except where determined otherwise, the water crop [precipitation less evapotranspiration] throughout the District will be assumed to be three hundred sixty-five thousand (365,000) gallons per year per acre.) By Final Order dated April 9, 1980, 1/ that rule was declared to be an invalid exercise of delegated legislative authority on the grounds that it exceeded SWFWMD's statutory authority under Chapter 373, Florida Statutes, it impermissibly conflicted with provisions of Chapter 373, Florida Statutes, it created property rights to water by virtue of land ownership contrary to Chapter 373 and the decision in the case of Village of Tequesta v. Jupiter Inlet Corp., 371 So.2d and 663 (Fla. 1979); and it was a hydrologically unsound method of determining the issuance or denial of consumptive use permits and was accordingly arbitrary and capricious in nature. The two subsections of proposed Rule 40D-2.301 being challenged in this proceeding read as follows: "40D-2.301. Conditions for Issuance of Permits. Among other factors to be considered by the Board in determining whether a particular use is consistent with the public interest will be: the maximum amount to be withdrawn of a single day; the average amount to be withdrawn during a single week, during a typical growing (or irrigation) season, during an extreme cold season, during a year of extreme drought an during the term of the proposed permit; the amount to be withdrawn in relationship to amounts being withdrawn from adjacent or nearby properties; the proximity of withdrawal points to location of points of withdrawal by others; the total amounts presently permitted from the entire basin, or other hydrologic unit; and the change in storage that such withdrawal and use will cause. If the proposed consumptive use will average less than 1,000 gallons per acre per day, in the absence of evidence to the contrary, the Board will presume that the quantity of water proposed for consumptive use is consistent with the public interest and the applicant will not be required to submit further evidence on this point. If the proposed consumptive use is to average 1,000 gallons or more per acre per day, the applicant must establish that the proposed use of water in such quantity is consistent with the public interest. (NOTE: Present subsections 6 through 11 will be renumbered consecutively following the above new subsections.) The factors listed in subsection (6) of the proposed rule are not all- inclusive. Each of the factors listed are resource related or hydrological considerations. The effect of each of the factors listed is appropriate for consideration by the Governing Board of SEFWMD when making a determination as to whether a consumptive use permit should be granted. With the exception of that portion of subsection (6) relating to a weekly average amount to be withdrawn, the factors listed in subsection (6) are covered by existing specific rules of SWFWMD. The word "acre" in the phrase "1,000 gallons per acre per day" is intended to mean land owned, leased or otherwise controlled by the applicant. The figure of 1,000 gallons per acre per day represents the average quantity of water which is available within the respondent's District for man's use and to maintain natural systems. The figure is a district wide estimation. It cannot be arbitrarily applied to any specific site within the District due to the fact that different parcels of land do not possess identical geologic or hydrologic characteristics. The amount of water which is available from a specific parcel of land is dependent upon geographical and hydrological factors which vary considerably from site to site. These factors include, among other things, the amount of rainfall the land receives, the water table, the existence of confining layers, soil and vegetation types, and transmissivity, storage and leakage coefficients. Withdrawals of water in small amounts per acre per day are generally less likely to have adverse hydrologic effects on the water resources within the District than are withdrawals in greater amounts. In most areas of the District, 1,000 gallons per acre per day can be withdrawn without jeopardizing or adversely affecting the resource or the availability of water for others. This would not necessarily be true of coastal areas where salt water intrusion is a possibility or in areas where wells presently exist which withdraw large quantities of water on a daily basis. Eighty-nine percent (89%) of the more than 6,000 consumptive use permits which have been issued by the SWFWMD are for amounts less than 1,000 gallons per acre per day.
The Issue Whether a consumptive-use permit for the quantities of water applied for should be granted.
Findings Of Fact Applicant, by Application No. 7500025, applied for a consumptive-use permit for an average daily withdrawal of 138,000 gallons of water from one (1) well penetrating the Florida Acquifer. This is an existing use. Exhibits were entered without objection, as follows: Original application with attachments, marked "Exhibit 1". Proof of Publication, marked "Exhibit 2". There were no written objections. The witness for permittee, George Szell, Hydrologist, was questioned at length by the staff attorney on issues to be resolved under Chapter 373, Florida Statutes, and the Rules and Regulations promulgated thereunder by the Southwest Florida Water Management District, and particularly Rule 16J-2.11, Conditions for a Consumptive-Use Permit. A typed transcript of the testimony has been examined and made a part of the record for this hearing. The witness for the Board, Mr. Szell, objected to the granting of the permit on the grounds that the water crop was exceeded by 3.24 percent. Upon request of the Hearing Officer, the parties agreed to consider their differences and file a joint stipulation enumerating conditions upon which the parties agree. A joint stipulation signed by both parties was filed with the Division is marked "Supplement to the Record" and made a part of this recommended order. Mr. Szell recommended that the permit be granted consistent with the conditions in six (6) above.
Other Judicial Opinions A party who is adversely affected by this Summary 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 one copy of a Notice of Appeal with the Agency Clerk of the Division of Administrative Hearings and a second 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 the 30 days of rendition of the order to be reviewed.
The Issue The issue to be determined is whether Petitioner Cargor Partners VIII – Long Bar Pointe, LLLP (“Cargor”) is entitled to an award of attorney’s fees pursuant to section 57.105, Florida Statutes (2017).
Findings Of Fact Notice On February 17, 2017, the attorney for Cargor sent Joseph McClash a letter on law firm stationary. In the first paragraph of the letter it states, “Please allow this letter to serve as notice of Cargor’s intent to seek relief pursuant to Section 57.105, Florida Statutes (the “Statute”) against you, individually as qualified representative, and the named Petitioner.” Cargor sent an email to McClash on February 28, 2017, reminding McClash that “the 57.105 deadline is March 10, 2017.” McClash referred to a motion for attorney’s fees that he received on or about March 13, 2017, but the motion was not shown to the Administrative Law Judge nor introduced into evidence. On April 5, 2017, the same day that McClash voluntarily dismissed the petition for hearing in DOAH Case No. 17-0655, Cargor filed with DOAH its motion for attorney’s fees under section 57.105. Contested Claims The renewal of a FDOW is governed by section 373.421(2), Florida Statutes, which states in relevant part that the FDOW shall be renewed “as long as physical conditions on the property have not changed, other than changes which have been authorized by a permit pursuant to this part, so as to alter the boundaries of surface waters or wetlands.” If the boundaries of wetlands or other surface waters have been altered without a permit, the FDOW cannot be renewed and an application for a new FDOW is required. The SWFWMD reviewer explained in a letter requesting additional information from Cargor: Please be advised that letters of exemption do not qualify as permits issued under Part IV of chapter 373, F.S. and therefore if work has been done on the site that has altered the wetlands or other surface water boundaries in association with a letter of exemption, a new formal determination application will be required. McClash claims Cargor did not qualify for the renewal of its FDOW because Cargor altered the boundaries of surface waters or wetlands on its property after the 2011 FDOW was issued and the some of the alterations were made pursuant to letter of exemption. In its February 17, 2017, letter to McClash, Cargor set forth six grounds for Cargor’s contention that McClash’s petition for hearing should be withdrawn. The first three grounds were described in Cargor’s letter as follows: The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, which is the subject of this Proceeding, does not authorize any construction activity. Consequently, no standing to challenge is or could be properly presented. There is no injury in fact and no one is in immediate danger of a direct injury from the issuance of the Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, as of the date and time of filing the Petition in this Proceeding. Consequently, no standing to challenge is or could be properly presented. The Formal Determination of Wetlands and Other Surface Waters, dated December 28, 2016, is not a permit, license, or authorization. Consequently, no standing to challenge is or could be properly presented by an association. These were issues of law and they were decided against Cargor in an Order dated February 28, 2017. The fourth and fifth grounds described in Cargor’s letter involve the central issue in the case: Changes in the land have been previously authorized by the Southwest Florida Water Management District (“SWFWMD”) pursuant to existing and final permits including (i) SWFWMD ERP No. 43040157.001, dated August 6, 2014, (ii) SWFWMD CONCEPTUAL ERP No. 49040157.002, dated September 4, 2015, (iii) SWFWMD ERP No. 4304157.003, dated March 31, 2016, and (iv) SWFWMD Notice of Qualification for Permanent Farming Exemption, dated August 30, 2016. Changes in the land are authorized by the identified permits and authorizations. All changes in the land have occurred pursuant to the identified permits and authorizations. Allegations to the contrary are simply false and are not supported by material facts. In 2015, Cargor was issued a “Conceptual ERP” permit, which describes, among other things, planned modifications to some agricultural ditches. However, the conceptual permit does not allow the commencement of construction activities. On August 30, 2016, SWFWMD issued to Cargo a Permanent Farming Exemption, pursuant to section 373.406(13), which authorized Cargor to excavate three agricultural ponds in uplands. In its application for the exemption, Cargor also proposed to modify some agricultural ditches. On March 31, 2017, SWFWMD issued Cargor an ERP Individual Construction Major Modification, which, among other things, authorized work in ditches. This permit was issued just before McClash’s voluntary dismissal and, therefore, could not have authorized the changes on Cargor’s property that McClash described in the petition for hearing. Before filing his petition, McClash consulted with a wetland scientist, Clark Hull, about the merits of McClash’s proposed challenge to the FDOW renewal. Hull gave McClash an affirmative response, but his input was speculative because it was based on assumptions and representations that Hull had not investigated. McClash consulted with another wetland scientist, Pamela Fetterman, who conducted an “aerial, desktop review of publically available Geographic Information Systems (GIS) data.” Fetterman described her initial review as an evaluation of potential undelineated wetlands and other surface waters. The Administrative Law Judge ruled that the delineation approved by the 2011 FDOW became final and could not be challenged by McClash. McClash then asked Fetterman to review changes in physical conditions on the property that occurred after the FDOW was issued. Fetterman produced a report (McClash Exhibit R-6), in which she opined that the changes to physical conditions on Cargor’s property “have a high likelihood of affecting the previously delineated landward extent of wetlands and other surface waters.” She stated further: [C]hanges in physical conditions of the property took place prior to issuance of the [FDOW renewal] as purported “exempt agricultural activities”, and include ditch dredging alterations to delineated other surface waters. . . . A Permanent Farming Request for Exemption Confirmation letter was applied for on August 23, 2016 for construction of these ponds and modification of existing ditches, some of which were determined to be jurisdictional other surface waters by the subsequently re-issued [FDOW]. At the final hearing on fees, neither McClash nor Cargor made clear to the Administrative Law Judge: (1) the physical changes to the property that were alleged to be authorized by permit, (2) the physical changes that were alleged to be authorized by exemption, or (3) any physical changes that were alleged to be unauthorized. The sixth ground described in Cargor’s letter is as follows: The picture attached to the Petition as set forth in Paragraph 9, and the stop work allegation set forth in Paragraph 10 are irrelevant and have no factual relationship to any issue in the proceeding. Since any changes in the land have occurred pursuant to identified permits and authorizations, the allegations are simply false and/or intentionally misleading. It is not a basis for an award of attorney’s fees under section 57.105 that an irrelevant photograph was included in a petition for hearing. Moreover, the aerial photograph in McClash’s petition was relevant in this case because it showed the physical conditions of Cargor’s property. In the petition, McClash states that Manatee County issued a stop work order on November 16, 2016, for construction activities commenced on Cargor’s property without a County- approved erosion control plan. This allegation also pertained to physical changes to the property. All evidence about physical changes was relevant in determining whether Cargor was entitled to renewal of the FDOW. Fees Cargor claims fees based on 48.4 hours of attorney time (Edward Vogler) at an hourly rate of $410, and 3.6 hours of attorney time (Kimberly Ashton) at an hourly rate of $385, for a total of $21,230.00. The fees Cargor is seeking include the hours spent on legal issues raised by Cargor that were rejected by the Administrative Law Judge. These fees amount to at least $1,025. See Cargor Exhibit 1, Invoice entries for February 20, 2017. Cargor’s attorney testified that the fees are reasonable. Cargor did not call an expert witness to corroborate the reasonableness of the hourly rate and the reasonableness of the hours expended.
