The South Florida Water Management District
(“District”) issued an environmental resource permit
(“ERP”) for a surface water management system to
serve a biotechnology research park for the Scripps
Research Institute (“Scripps”) along with supporting
commercial, institutional, residential and
educational uses. Palm Beach County (“County”) is
the current owner of the 1,919-acre citrus grove and
sand mining site which will be the home to Scripps.
As the property owner, the County applied to the
District for environmental resource and water use
permits. The District issued notice of its intent
to issue the ERP and that was challenged by the
Florida Wildlife Federation, Jupiter Farms
Environmental Council, Audubon Society of the
Everglades, Palm Beach County Environmental
Coalition and several private individuals
(“Petitioners”).
The permit application was
approved for expedited permitting pursuant to
Subsection 403.973(15)(b), Florida Statutes. The
purpose of expedited permitting is to “encourage and
facilitate the location and expansion of those types
of economic development projects which offer job
creation and high wages, strengthen and diversify
the state’s economy, and have been thoughtfully
planned to take into consideration the protection of
the state’s environment.” Section 403.973, Florida
Statutes. Projects approved for expedited
permitting are subject to the same substantive
standards and review that apply to other permits,
however the review period is shortened. Existing
agency nonprocedural standards for permit
applications are not modified. Subsection
403.973(16), Florida Statutes.
Projects approved for expedited
permitting can request a summary proceeding under
Section 120.574, Florida Statutes. When a project
is approved for expedited permitting, there are two
main variations in the summary proceeding process.
First, the Section 120.574, Florida Statutes,
requirement that all parties must agree in writing
to the summary proceeding is waived for “state of
the art biomedical research” institutions. In
addition, under Section 120.574, Florida Statutes,
the administrative law judge’s decision is final
agency action. In contrast, Subsection
403.973(15)(a), Florida Statutes, provides that the
administrative law judge’s decision shall be in the
form of a recommended, rather than final order for
projects subject to the expedited permitting
process.
The request for summary hearing
must be made within fifteen days after service of
the initial order. Hearings are to be conducted
within 30 days. However, the Scripps hearing was
delayed slightly due to the two hurricanes that
struck Palm Beach County shortly after the petitions
were filed. Discovery, in a summary proceeding, is
limited to the informal exchange of documents and
witness lists.
Motions under Section 120.574, Florida Statutes,
are limited to those requesting a continuance or a
pre-hearing conference.
The summary hearing itself is
the same as a normal administrative hearing. All
parties have the right to present evidence, respond,
conduct cross examination and present rebuttal
evidence. Subsection 120.574(2)(c), Florida
Statutes.
Many issues were raised in the
Scripps final hearing. However the most interesting
issue concerned the ERP requirement that an
applicant must demonstrate that its activities will
not be harmful to water resources and will “not be
inconsistent with the overall objectives of the
District”. Sections 373.414 and 373.416, Florida
Statutes. In this area, the objectives of the
District focus on the Congressionally-approved
Comprehensive Everglades Restoration Plan (CERP)
pertaining to restoration of the Northwest Fork of
the Loxahatchee River. The Petitioners contended
that development should not be allowed on the site
because it would be inconsistent with CERP and the
site should instead be reserved for potential future
use by the District as a reservoir. Administrative
Law Judge Arrington did not agree and found that
reasonable assurances had been provided
demonstrating that the site was not needed for a
reservoir. Instead, Palm Beach County included a
250-acre natural flow-way in its project design to
facilitate a route from a storage area to the south
to the river.
Pursuant to Subsection
120.574(2)(f), Florida Statutes, the decision of the
administrative law judge must be issued within 30
days after the conclusion of the final hearing or
filing of the transcript, whichever is later. The
District had ten working days from receipt of the
recommended order to issue a final order. The
District adopted the Administrative Law Judge’s
Final Order on December 8, 2004. This decision was
appealed to the Fourth District Court of Appeal.
Oral arguments were held on May 18, 2004, and a per
curiam affirmance was issued on the same day as the
oral argument. Palm Beach County Environmental
Coalition v. South Florida Water Management Dist.,
902 So. 2d 812 (Table)
(Fla. 4th DCA 2005).
