COLUMNS

           District Update -
            South Florida Water Management District

    Marcy LaHart

Administrative Law Judge Recommends Issuance of Permit for Lucky Lake Water Control Structure

     Administrative Law Judge Robert E. Meale has issued an order recommending that the Department of Environmental Protection issue an environmental resource permit to the South Florida Water Management District (SFWMD) for construction of a water control structure in the Merrit Canal in Southern Golden Gates Estates. The purpose of the water control structure is to retard overdrainage of wetlands that are encompassed within Florida Panther National Wildlife Refuge. The structure, an adjustable sheet pile weir, will be closed during the dry season, but will remain open during the wet season.

     Under a cooperative agreement with the United States Fish and Wildlife Service, the SFWMD has agreed to construct the structure, and is responsible for obtaining all necessary permits. Although the Department of Environmental Protection had proposed to approve the District's permit application in January of 1997, a petition was filed by Southern Golden Gates Estates property owners Jim and Tina McDonald, challenging the Department's notice of intent to issue the permit. Judge Meale granted subsequent requests to intervene filed by Walter Shaw and Clifford Fort, who also own property in Southern Golden Gates Estates.

     The petitioners and intervenors raised many issues at the hearing, including: their concern that the proposed structure would exacerbate flooding; should be built in a different location; would cause adverse impacts to wetlands and wildlife; and that the District lacked authority to apply for the permit. Sixteen days of the hearing were devoted to petitioners and intervenors arguments regarding the alleged inadequacies in the District's permit application. Nonetheless, Judge Meale has ruled that the structure complies with all applicable permitting criteria, will not cause flooding, and will result in improved water quality and enhanced wildlife habitat. Collier Cattle Corp. v. South Florida Water Management District, OGC Case No. 97-0341 (DEP Final Order issued August 4, 1998), DOAH Case No. 97-1682.

4th District Court of Appeal Upholds Governing Board's Order

     Florida's Fourth District Court of Appeal recently upheld the South Florida Water Management District Governing Board's final order authorizing Crestwood Lakes Associates to withdraw its application for a modification to a surface water permit after an administrative law judge had recommended denial of the permit.

     After an eight-day administrative hearing on the permit application, the administrative law judge (ALJ) found that while the project met all applicable water-quantity and water-quality criteria, it did not meet the environmental criteria because the mitigation and monitoring plan was deficient. The ALJ also found that the proposed modification should have been reviewed under the new Environmental Resource Permit criteria.

     Subsequent to entry of the recommended order, but before the Governing Board accepted or rejected the recommended order, Crestwood Lakes Associates filed a motion asking the Governing Board for permission to withdraw their permit application. The Governing Board allowed the withdrawal, subject to conditions that require Crestwood Lakes Associates to remedy the inadequacies in the mitigation proposal in the event they choose to reapply. The Governing Board's final order also mandated that any subsequent application be reviewed under the Environmental Resource Permit criteria.

     Royal Professional Builders challenged the Governing Board's final order, arguing that the Board was obligated to specifically rule to accept, reject, or modify each of the ALJ's findings of fact. Had the Board considered each of the Judge's 125 findings of fact, it would have been forced to review the entire record, including 55 exhibits and almost 1,900 pages of transcripts in order to determine whether the findings of fact were supported by competent, substantial evidence. The District argued that the Board's final order protected the rights of Royal Professional Builders by forcing Crestwood Lakes Associates to remedy the inadequacies in the permit application, while conserving agency time and labor by sparing the nine Board members the burden of reviewing a voluminous record in order to deny a permit application that the applicant was willing to voluntarily withdraw. The Fourth District Court of Appeal upheld the Governing Board's final order per curiam affirmed. (Case No. 97-3043, Final Order issued July 8, 1998).

Marcy LaHart is an attorney with the South Florida Water Management District. Ms. LaHart received her J.D. from the University of Oregon.