08-001316 St. Johns Riverkeeper, Inc., City Of Jacksonville, And St. Johns County vs. St. Johns River Water Management District Status: Closed DOAH Final Order on Friday, December 18, 2009.

Summary: Applicant did not prove entitlement under Sections 57.105 and 120.595, Florida Statutes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ST. JOHNS RIVERKEEPER, INC., )

CITY OF JACKSONVILLE, and ST. )

JOHNS COUNTY, )

)

Petitioners, )

)

vs. ) Case Nos. 08-1316

) 08-1317

ST. JOHNS RIVER WATER ) 08-1318

MANAGEMENT DISTRICT, )

)

Respondent, )

)

and )

)

SEMINOLE COUNTY, )

)

Intervenor. )

)

FINAL ORDER

On October 9, 2009, a hearing was held in this case before

J. Lawrence Johnston, Administrative Law Judge, Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner St. Johns Riverkeeper, Inc.:

John R. Thomas, Esquire

Thomas & Associates, P.A.

233 Third Street North, Suite 101

St. Petersburg, Florida 33701-3818

Michael L. Howle, Esquire

Howle Law Firm, P.A.

1437 Walnut Street

Jacksonville, Florida 32206-4636

Kenneth B. Wright, Esquire

Bledsoe Jacobson Schmidt & Wright

1301 Riverplace Boulevard, Suite 1818

Jacksonville, Florida 32207-9022

For Petitioner City of Jacksonville:

Jason R. Teal, Esquire

City of Jacksonville

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

Seann M. Frazier, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Tallahassee, Florida 32302-7742

For Intervenor: Edward P. de la Parte, Jr., Esquire

Nicolas Q. Porter, Esquire

de la Parte & Gilbert, P.A.

101 East Kennedy Boulevard, Suite 2000

Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issues are whether attorney's fees and costs should be

assessed against Petitioners, St. Johns Riverkeeper, Inc.

(Riverkeeper), and City of Jacksonville (Jacksonville), and paid

to Intervenor, Seminole County (Seminole), under Sections

120.595(1) and 57.105, Florida Statutes. 1

PRELIMINARY STATEMENT

Seminole applied to the St. Johns River Water Management

District (SJRWMD) for a consumptive use permit (CUP) to withdraw

water from the St. Johns River. When SJRWMD issued a Technical

Staff Report (TSR) and gave notice of its intent to grant a CUP

to Seminole, Riverkeeper and Jacksonville filed challenges that

were referred to DOAH for a hearing. Before the hearing,

Seminole filed motions for attorney's fees and costs against

Riverkeeper and Jacksonville under Sections 120.595(1) and

57.105, Florida Statutes. After the CUP hearing, a Recommended

Order (RO) and a Final Order (FO) were entered granting a CUP to

Seminole, with an added condition that Seminole would not

withdraw surface water from the river on any day after there were

discharges to the river from the Iron Bridge Regional Wastewater

Treatment Facility during times of the year when algal blooms may

occur (the Iron Bridge condition). Jurisdiction over the motions

for attorney's fees and costs was reserved. After the CUP FO,

Seminole invoked the reserved jurisdiction, and a hearing was

scheduled for August 17 and rescheduled for October 9, 2009, in

Tallahassee.

Prior to the hearing, the part of Seminole's motion seeking

attorney's fees and costs under Section 120.595(1), Florida

Statutes, was stricken as to Riverkeeper based on Riverkeeper's

argument that it was not a "non-prevailing adverse party" due to

the addition of the Iron Bridge condition. Jacksonville did not

seek similar relief before the hearing.

At the hearing, Seminole called three witnesses:

Neil Armingeon; Jimmy Orth; and Lisa Rinaman. Seminole also had

Jacksonville Exhibit 6 and Seminole Exhibits A20, A22, A25-A28,

A30, A39, A45-A50, A54, A56, A60, A71, A73, A84, A89 (clips 2 and

4), and A90 admitted in evidence. Seminole also offered

deposition transcripts as its Exhibits A1-A3, A6, A7, A10, A12,

and A15-A18, but it was agreed that excerpts would be designated

post-hearing, subject to the rulings on objections.

Jacksonville called Dana Morton and had its Exhibits 3-5

admitted in evidence. Riverkeeper re-called Mr. Armingeon and

called Michael Howle, Esquire. Riverkeeper also offered its

Exhibits 5, 6, and 11. Riverkeeper Exhibit 11 was admitted in

evidence. Ruling was reserved on objections to Exhibits 5 and 6;

the objections are overruled, and Exhibits 5 and 6 are admitted

in evidence.

Seminole, Jacksonville, and Riverkeeper requested official

recognition of various documents (including exhibits and excerpts

from the testimony previously admitted in evidence during the CUP

hearing), but it was agreed that excerpts would be designated

post-hearing, subject to the rulings on objections.

A three-volume Transcript of the final hearing was filed on

October 26, 2009. A schedule was established for designating

official recognition documents and deposition transcript

excerpts, objections, and cross-designations. The objections

were overruled. Jacksonville's designated official recognition

document (Chapter 95 of the Jacksonville Ordinance Code), and all

deposition transcript excerpts designated as Seminole Exhibits

A1-A3, A6, A7, A10, A12, and A15-A18, plus an additional

deposition transcript, with deposition exhibits 174-188,

designated by Seminole as its Exhibit A9, were received in

evidence. 2

The parties were given until December 1, 2009, to file

proposed final orders, and those filings have been fully

considered.

FINDINGS OF FACT

A. Prevailing Party Fees and Costs against Jacksonville

1. Like Riverkeeper, Jacksonville opposed Seminole's CUP

in part because Seminole did not provide reasonable assurance

that the proposed CUP would not cause adverse environmental

impacts, including water quality impacts. The CUP RO and FO

found that the Iron Bridge condition was intended to resolve

those concerns by providing the necessary assurance as to water

quality.

2. Seminole asserts that Jacksonville cannot rely on the

Iron Bridge condition because it withdrew all issues as to

water quality. Although Jacksonville withdrew paragraphs 35(d)

and 41(d) of its Petition, which identified water quality as a

disputed issue of material fact, Jacksonville did not withdraw

paragraphs 35(e) and (j), 36, 46-48, 61, and 63, which asserted

a failure by SJRWMD to properly ascertain the extent of harm to

the river's water quality and environmental values.

3. Seminole also asserts that Jacksonville's professed

concern about the water quality issue addressed by the Iron

Bridge condition is a fabrication to avoid liability for

attorney's fees and costs. But in his deposition on August 31,

2008, Mr. Morton testified that his concerns included

"biological integrity, potential for dissolved oxygen

violations, [and] potential for the narrative nutrient

standards to be impacted." He also testified that he had

numerous discussions with several experts for SJRWMD on the

river's water quality, including John Hendrickson, whose

testimony and evidence at the CUP hearing was the factual basis

for the Iron Bridge condition.

4. Seminole asserts that Jacksonville's reliance on the

Iron Bridge condition cannot be based on Mr. Morton's testimony

because: he testified during his deposition on August 31,

2008, that he knew of nutrient level violations in Duval

County, but not upstream; by the time of his deposition,

Jacksonville already stipulated it would not raise the issue

"whether the Proposed Use will cause detrimental environmental

effects in that portion of the river located in Duval County";

and Jacksonville withdrew all water quality claims and

stipulated at the CUP hearing that it no longer contested water

quality and nutrient loading.

5. The stipulation to which Seminole refers was the

following exchange of counsel during the CUP hearing:

MR. de la PARTE: Your Honor, we would

move Seminole County Exhibits 50 and 51 into

evidence. There's an objection on the basis

of relevance.

MR. WRIGHT: Your Honor, the issue of

nutrient loading, and specifically the TMDL,

is no longer an issue in this case. And on

that basis, we don't believe that these

exhibits are relevant.

MR. de la PARTE: Let me just make it

clear, because there was still an issue of

serious harm to water quality in the river

was reserved as an issue. I'm all for

knocking out issues, if we can. If the

nutrient loading part of that is no longer an

issue in this proceeding, we would not move

these into evidence, Your Honor, but we were

under the assumption that that was still

something that the Petitioners were raising

in the case, as a result of the proposed

withdrawal.

MR. FRAZIER: For Jacksonville, that

issue is withdrawn. The stipulation withdrew

that issue, for us at least.

MR. WRIGHT: As far as the issues for

purposes of meeting the TMDL, it's not an

issue for us either.

This stipulation addressed total maximum daily load (TMDL)

nutrient loading limitations. It is not clear that Jacksonville

was waiving the issue that increased "residence time" of

nutrients in the river from reduced flow would increase algal

biomass and the duration of algal blooms, or that those issues

did not remain within the water quality issues preserved by

Jacksonville.

B. Sanctions for Unreasonable Delay under § 57.105(3)

6. Seminole asserts that Riverkeeper and Jacksonville

filed their challenges to Seminole's CUP primarily for the

purpose of unreasonable delay. Riverkeeper and Jacksonville

knew their challenges would delay the issuance of Seminole's

CUP. They also maintained that SJRWMD should not issue the CUP

before the completion of a study of the cumulative impacts of

surface water withdrawals from the St. Johns River and its

largest tributary, the Oklawaha River.

7. Seminole argued that Riverkeeper's primary purpose of

unreasonable delay was proven by statements made in various

member newsletters and internet blogs to the effect that more

than just the allocation of surface water requested in

Seminole's CUP was at stake because more CUP applications to

withdraw surface water from the river would follow Seminole's

CUP. Those statements were made for purposes of rallying

support among the members and increasing membership, were based

on information available at the time (some of which was

inaccurate), and often were "cut-and-pasted" from previous

statements to save time and effort (sometimes resulting in

erroneous information being included).

8. Seminole also argued that Jacksonville's primary

purpose of unreasonable delay was proven by Jacksonville's

narrowing of the environmental issues, and limitation of its

evidentiary presentation to impingement and entrainment of

aquatic organisms in the intake structure for the CUP, which

would not justify Jacksonville's litigation of the CUP case.

But the environmental issues preserved by Jacksonville, and

evidence presented by all the parties during the CUP hearing,

were broader than just impingement and entrainment. They

included alleged impacts on salinity, submerged aquatic

vegetation, and increased "residence time" of nutrients in the

river from reduced flow (enough to increase algal biomass and

the duration of algal blooms), and other environmental features

of the St. Johns River.

9. Seminole argues that unreasonable delay was proven by

findings in the CUP RO and FO that further delay until after

the completion of SJRWMD's cumulative impacts study was

unwarranted and not in the public interest. But that is not

the same as a finding that Petitioners' participation in the

CUP proceeding was primarily for the purpose of unreasonable

delay.

10. Seminole did not prove that the primary purpose of

Riverkeeper and Jacksonville was to unreasonably delay the

issuance of the CUP. Rather, their primary purpose was to

prevent the CUP from being issued without reasonable assurances

that all permitting criteria were met (including not only

environmental criteria but also need for the requested

allocations). The delay inherent in the proceeding was not

unreasonable. Neither Riverkeeper nor Jacksonville litigated

in a way calculated to lengthen the proceeding unnecessarily or

unreasonably.

C. Sanction for Lack of Factual Support for Claims

11. Seminole also asserts that Riverkeeper and

Jacksonville knew or should have known that several of their

claims were not supported by the material facts necessary to

establish the claims or by the application of then-existing law

to those material facts.

(i) Environmental Claims

12. The CUP RO and FO found no measurable impacts on

salinity, submerged aquatic vegetation, and several other

environmental features of the St. Johns River.

13. As to those environmental claims, not proven at the

CUP hearing, Riverkeeper presented the testimony and evidence

of: Quinton White, Ph.D., an expert in marine biology; Mark E.

Luther, Ph.D., an expert in hydrology and hydrologic modeling;

and Roy R. (Robin) Lewis, III, an expert in ecology.

Jacksonville presented the testimony and evidence of

Terry Cheek, C.F.P., an expert in biology.

14. It was reasonable for Riverkeeper and Jacksonville to

believe they could support these environmental claims with the

material facts necessary to establish the claims and by the

application of then-existing law to those material facts.

15. In addition, the CUP RO and FO found that, without

the Iron Bridge condition, reduced flow from the withdrawals

would increase "residence time" of nutrients in the river

enough to increase algal biomass and the duration of algal

blooms. This finding related to most, if not all, of the

environmental claims filed by Riverkeeper and Jacksonville.

(ii) Need Claims

16. In the CUP case, Riverkeeper and Jacksonville claimed

that Seminole did not need the requested allocation of surface

water. Seminole asserts that Riverkeeper and Jacksonville knew

or should have known that those claims were not supported by

the material facts necessary to establish the claims or by the

application of then-existing law to those material facts.

17. The CUP RO and FO found a need for the CUP based in

large part on the interplay between the St. Johns River surface

water CUP and a pending application to consolidate Seminole's

existing groundwater CUPs, which were expired or expiring. It

did not appear that any party anticipated a finding that the

interplay between the two CUPs established a clear need for the

allocation of surface water requested in the CUP. Instead, all

parties appeared to assume Seminole's entitlement to at least

the groundwater allocations requested in the pending

groundwater CUP application. (Riverkeeper asserted that

higher-than-requested groundwater allocations should have been

assumed.) Seminole (and SJRWMD) appeared to recognize the

interplay between the two CUPs as essentially a "safety

feature" that would correct any over-allocation of surface

water.

18. At the CUP hearing, Riverkeeper presented the

testimony and evidence of Dr. John Woolschlager, an engineer.

Jacksonville presented the testimony and evidence of

Nolton Johnson, also an engineer. Riverkeeper and Jacksonville

also cross-examined Richard Doty, an expert for SJRWMD, and

Dr. Terrence McCue, an expert for Seminole. But for the

unanticipated finding on the interplay between the surface

water and groundwater CUPs, the evidence on demonstration of

need could have supported a finding that Seminole did not

demonstrate a need for the entire requested surface water CUP

allocation. It was reasonable for Riverkeeper and Jacksonville

to believe they could support their claims, that not all of

Seminole's requested surface water CUP allocation was needed,

with the material facts necessary to establish the claims and

by the application of then-existing law to those material

facts.

D. Factual Support for Claims Unknown When Filed

19. Seminole appears to argue that, regardless of what

may have been reasonable at the time of the CUP hearing, it was

not reasonable at the time of filing for Riverkeeper and

Jacksonville to believe that they could support their claims

with the material facts necessary to establish the claims and

by the application of then-existing law to those material

facts. This argument is rejected.

(i) Jacksonville

20. Jacksonville's initial Petition was filed on March 4,

2008. An Amended Petition was filed on April 17, 2008,

supported by the affidavit of Vincent Seibold, Jacksonville's

Division Chief for Environmental Quality. Mr. Seibold's

affidavit swore that Seminole's proposed use may have the

effect of impairing, polluting, or otherwise injuring the water

or other natural resources of the State. On June 18, 2008,

Jacksonville filed a Corrected Petition to Intervene, which was

treated as a Second Amended Petition. It was supported by the

affidavit of Dana Morton, an aquatic biologist employed by

Jacksonville. His affidavit swore that Seminole's proposed CUP

will have the effect of impairing, polluting, or otherwise

injuring the water or other natural resources of the State.

21. Seminole took Mr. Seibold's deposition on July 31,

2008. Mr. Seibold, a professional engineer, testified at his

deposition that he used "may" rather than "will" in his

affidavit because he did not have enough information to

determine whether Seminole's proposed use was permittable. He

testified that he would have to review more information

regarding Seminole's proposed use than was available at the

time of his deposition to allege that Seminole's proposed CUP

will have the effect of impairing, polluting, or otherwise

injuring the water or other natural resources of the State. He

also testified that he was referring to impairment or injury

from impingement and entrainment and from increases in

salinity. He had not seen any studies or specific information

regarding the design of Seminole's intake structure that would

support his conclusion and was unaware of any data indicating

that measurable increases in salinity would result from

Seminole's CUP withdrawals. Mr. Seibold also testified that

neither he nor his staff had evaluated whether Seminole's

proposed CUP was necessary to fulfill a potable demand, but the

proposed CUP did not demonstrate to him that there was a need

for the part of the allocation intended to augment Seminole's

reuse system. Overall, Mr. Seibold did not think that the

proposed CUP provided reasonable assurance that it was

permittable.

22. Seminole took Mr. Morton's deposition on August 31,

2008. During his 20 years of work for the City, Mr. Morton has

studied St. Johns River extensively. He would be considered

the City's in-house expert for purposes of evaluating impacts

from a proposed surface water withdrawal on the overall

biological or ecological health of the river.

23. Mr. Morton reviewed the Corrected Petition to

Intervene a few hours before he signed his affidavit. He did

not conduct his own separate study or technical analysis of the

potential environmental impacts of Seminole's proposed

withdrawal. His affidavit was based on his review of the TSR

and his knowledge of the river, which included discussions with

several experts for SJRWMD on the river's water quality,

including Mr. Hendrickson.

24. As he testified in his deposition on August 31, 2008,

Mr. Morton's environmental concerns included adverse impacts to

biological integrity, potential for dissolved oxygen

violations, and potential for the narrative nutrient standards.

He also testified that, shortly after signing his affidavit, he

had additional discussions with several experts for SJRWMD,

including Mr. Hendrickson, on the proposed CUP's impacts on the

water quality of the river. He clarified in his deposition on

July 27, 2009, and in testimony during the attorney's fee

hearing on October 9, 2009, that his concerns about the

proposed CUP's impacts on the water quality of the river

included impacts from increased nutrient residence time and

algae blooms.

25. Seminole also takes the position that Jacksonville

must be limited to the testimony of Terry Cheek and

Nolton Johnson, the two retained experts produced by

Jacksonville for deposition on August 31, 2008, to testify

regarding the "basis and evidence" for each of Jacksonville's

allegations. Mr. Cheek testified regarding Jacksonville's

allegations of environmental harm, and Mr. Johnson testified

regarding Jacksonville's allegations that Seminole did not need

the requested allocation of water.

26. At his deposition, Mr. Cheek testified that he did

not become aware of Seminole's CUP until May 2008, and that the

work he performed occurred after the filing of Jacksonville's

original Petition. Mr. Cheek testified that he was unaware of

any measurable impact that Seminole's proposed CUP would have

on water quantity and quality, on wetlands, estuaries or other

aspects of the natural resource, other than entrainment and

impingement of fish eggs in the CUP intake structure.

27. Mr. Johnson testified that Seminole did not need the

requested allocation of water. Mr. Johnson testified he was

not aware of Seminole's CUP until June 2008.

28. Notwithstanding Jacksonville's designation of

Mr. Cheek and Mr. Nolton to answer Seminole's deposition

questions as to the "basis and evidence" for Jacksonville's

allegations, it was reasonably clear that Jacksonville also was

relying on the testimony of Mr. Seibold and Mr. Morton, whose

depositions were taken, respectively, a month earlier and on

the same day as the depositions of Mr. Cheek and Mr. Johnson.

(ii) Riverkeeper

29. Riverkeeper's Petition challenging Seminole's

proposed CUP on March 4, 2008, was prepared by Neil Armingeon

and Riverkeeper's part-time, in-house counsel, Michael Howle.

Both had considerable knowledge about the St. Johns River and

the environmental concerns experts have about the river and

surface water withdrawals from it. They also had consulted

with John Woolschlager, P.E., Ph.D., who was on the faculty of

the University of North Florida at the time, on the subject of

minimum flows and levels for the river. They reviewed SJRWMD's

TSR on Seminole's proposed CUP. Attorney Howle, and to a more

limited extent Mr. Armingeon, also reviewed the CUP application

and Seminole's responses to requests for additional information

before preparing Riverkeeper's Petition.

30. According to the testimony of Attorney Howle, he also

consulted with Dr. Woolschlager specifically on Seminole's CUP

after Dr. Woolschlager reviewed the TSR and the CUP application

documents that were posted at the District's website

e-permitting portal, and Dr. Woolschlager provided a

preliminary opinion that the requested allocation of surface

water from the river was not needed. Seminole attacked on the

credibility of Riverkeeper's evidence, pointing out

Dr. Woolschlager's deposition testimony in the CUP case that

his work for Riverkeeper on the case began after his retention

as an expert witness in August 2008. The testimony of Attorney

Howle and Mr. Armingeon explained that, at the time his

preliminary opinion was given, Dr. Woolschlager proposed terms

for his formal retention in a draft agreement. Riverkeeper's

all-volunteer Board of Directors, which meets only monthly and

carefully considers all substantial expenditures, did not

immediately approve Dr. Woolschlager's proposed retention.

Before Riverkeeper's Board voted to retain him,

Dr. Woolschlager accepted a faculty position in Arizona.

During the time he was moving himself and his family from

Florida to Arizona and commencing employment in Arizona,

Riverkeeper had difficulty communicating with Dr. Woolschlager.

31. Seminole attacked the credibility of the testimony of

Attorney Howle and Mr. Armingeon, challenging Riverkeeper to

produce any corroborating evidence. In response, Riverkeeper

produced a copy of Dr. Woolschlager's proposed retainer

agreement dated February 27, 2008, which was admitted in

evidence as Riverkeeper Exhibit 11.

32. After the admission of Riverkeeper Exhibit 11,

Seminole continued to attack the credibility of the testimony

of Attorney Howle and Mr. Armingeon that Dr. Woolschlager gave

his preliminary opinion prior to the filing of the Petition,

citing CUP deposition testimony given by Mr. Armingeon and

Dr. Woolschlager and some of Riverkeeper's CUP discovery

responses.

33. In his CUP deposition Dr. Woolschlager testified in

part as follows:

Q. And what information was supplied to you

on which you -- that you saw showing that

categorization?

A. Well, I've seen that in several places.

It was in the Seminole County Water Supply

Plan I previously mentioned. It's on the St.

Johns Water Management District Web site.

Q. And when did you review or obtain the

information that you relied on to see the

water service areas or identify the water

service areas?

A. This is all occurring in early August.

Q. Have you visited any of these existing

potable water facilities?

A. No.

Q. Would it be correct to say that your

familiarity with the Seminole County potable

water system began in early August as a

result of this case?

A. That is correct.

(Seminole Exhibit A9, p. 11.) Seminole contends that these

questions should have elicited testimony about what

Dr. Woolschlager reviewed for his preliminary opinion in

February 2008, if there actually was one. But it appears from

the context of the deposition in its entirety that

Dr. Woolschlager was being asked questions about the work he

did after his formal retention in August 2008, questions

intended to prepare Seminole for the CUP hearing, not about any

preliminary review he might have done previously.

34. In his CUP deposition, Mr. Armingeon testified in

part as follows:

Q. Did any expert provide information to the

St. Johns Riverkeeper, Incorporated which was

used to prepare the Petition for

Administrative Hearing?

A. Would you define expert? How would you

define that?

Q. I would define expert as someone who has

more knowledge than the public at large and

has a skill either through education or

experience.

A. No.

Q. Did the St. Johns Riverkeeper,

Incorporated consult with any expert

concerning Seminole County's proposed

withdrawal from the St. Johns River prior to

filing its Petition for Administrative

Hearing?

A. No.

Q. Since filing the Petition for

Administrative Hearing, has the St. Johns

Riverkeeper retained any experts to assist it

in analyzing the impact of Seminole County's

proposed withdrawal from the St. Johns River?

A. We retained one expert.

Q. And which expert is that?

A. Robin Lewis.

Q. And when was Mr. Lewis retained?

A. Last week.

Q. Has Mr. Lewis completed his analysis of

the impact of Seminole County's proposed

withdrawal from the St. Johns River and

shared that information with the St. Johns

Riverkeeper, Incorporated?

A. No.

Q. As of today's date, has the St. Johns

Riverkeeper, Incorporated relied on the

opinion of any experts to support its

position regarding the proposed withdrawal by

Seminole County from the St. Johns River?

A. Define relied. I'm not sure I understand

what that means.

Q. Relied means, in the normal vernacular,

that you have considered an analysis or study

or opinion, professional opinion, supplied to

you by an expert, to confirm your belief that

this withdrawal is going to cause harm or

damage to the river.

DEPONENT: Could you repeat the question?

(Pending question read back by court

reporter).

A. (By the Deponent) We have relied on our

own opinion.

Q. And when you say your own opinion, who do

you mean in the collegial we?

A. Myself.

Q. Anybody else?

A. No.

Q. Do you consider yourself an expert on the

hydrologic impacts of the proposed withdrawal

by Seminole County from the St. Johns River?

A. An expert? No.

Q. Do you consider yourself an expert on the

ecological effects of the proposed withdrawal

by Seminole County from the St. Johns River?

A. No.

Q. Do you consider yourself an expert with

respect to any impact caused by the proposed

withdrawal by Seminole County from the St.

Johns River?

A. Expert? No.

(Seminole Exhibit A1, p. 11-13.) Seminole contends that these

questions should have elicited the disclosure of

Dr. Woolschlager, if he actually had given Riverkeeper a

preliminary opinion. But it appears from the context of the

deposition in its entirety that this testimony was focused on

environmental impacts, not need, which was the subject of

Dr. Woolschlager's preliminary opinion.

35. Similarly, Seminole argues that Riverkeeper should

have disclosed Dr. Woolschlager in response to written

discovery requests for the names of persons having knowledge

about the CUP case, if he actually had given Riverkeeper a

preliminary opinion. But those discovery requests were

answered during the time when Riverkeeper was unable to

communicate with Dr. Woolschlager to determine if he would be

formally retained as an expert witness. As soon as

communication with Dr. Woolschlager was re-established, and he

was retained to testify, Riverkeeper disclosed to Seminole that

he would be testifying at the CUP hearing.

36. Regardless of whether Riverkeeper should have

disclosed Dr. Woolschlager and his preliminary opinion earlier

in response to CUP discovery requests, Riverkeeper's

explanation for not disclosing Dr. Woolschlager until after his

formal retention is accepted as true. It is found that

Dr. Woolschlager actually provided Riverkeeper with a

preliminary opinion, as described in the testimony of Attorney

Howle and Mr. Armingeon, prior to the filing of Riverkeeper's

Petition.

37. Riverkeeper has a legal committee of prominent

attorneys from the Jacksonville area. The committee reviewed

and vetted Riverkeeper's Petition before it was filed.

CONCLUSIONS OF LAW

E. Prevailing Party Fees and Costs against Jacksonville

38. Section 120.595(1)(e)3., Florida Statutes, authorizes

claims against a "non-prevailing adverse party," which is

defined as "a party that has failed to have substantially

changed the outcome of the proposed or final agency action

which is the subject of the proceeding. In the event that a

proceeding results in any substantial modification or condition

intended to resolve the matters raised in a party's petition,

it shall be determined that the party having raised the issue

addressed is not a nonprevailing adverse party."

39. The CUP RO and FO found the Iron Bridge CUP condition

to be necessary for the provision of reasonable assurance as to

water quality. For that reason, the Iron Bridge CUP condition

was substantial. Jacksonville's opposition did not fail to

substantially change the outcome of the proposed CUP, and

Jacksonville was not a "nonprevailing adverse party" under

Section 120.595(1), Florida Statutes.

40. Seminole contends that Jacksonville meets the

definition of "nonprevailing adverse party" because SJRWMD

already was studying the impacts on water quality and natural

resources from increased "residence time" resulting from

Seminole's CUP and would have completed its study and required

the Iron Bridge CUP condition on its own initiative either

during Seminole's CUP proceeding or after issuance of the CUP

FO. Regardless what SJRWMD may have done on its own

initiative, the Iron Bridge CUP condition was intended to

resolve water quality issues raised by Jacksonville's

opposition.

41. Seminole also contends that Jacksonville cannot rely

on the Iron Bridge condition because it withdrew all issues as

to water quality. Actually, Jacksonville withdrew some but not

all water quality issues. The remaining allegations were broad

enough to include the impacts on water quality and natural

resources from increased "residence time" resulting from

Seminole's CUP. Seminole's other arguments why Jacksonville

should not be allowed to rely on the Iron Bridge condition for

purposes of Section 120.595(1)(e)3. have been rejected. Like

Riverkeeper, Jacksonville is not a "non-prevailing adverse

party," and Seminole is not entitled to attorney's fees and

costs from Jacksonville under Section 120.595(1), Florida

Statutes.

42. Even if Jacksonville were a "non-prevailing adverse

party" under Section 120.595(1), Florida Statutes, it also was

necessary for Seminole to prove that Jacksonville's

participation in this proceeding was for an "improper purpose."

§ 120.595(1)(e)1, Fla. Stat. An "improper purpose" is defined

as participation in a proceeding "primarily to harass or to

cause unnecessary delay or for frivolous purpose or to

needlessly increase the cost of litigation, licensing or

securing the approval of an activity." Id. It would not be

enough for Seminole to prove that there was no basis for some

of the claims made by Jacksonville; rather, Seminole would have

had to prove that Jacksonville presented no justiciable

controversy. See Friends of Nassau County, Inc. v. Nassau

County , 752 So. 2d 42, 49-51 (Fla. 1st DCA 2000)(utilizing an

objective standard under a statute to determine whether "a

justiciable controversy existed under the pertinent statutes

and regulations"). In contrast, it is not necessary to prove a

complete absence of any justiciable controversy of law or fact

under Section 57.105, Florida Statutes. See , e.g. , Albritton

v. Ferrera , 913 So. 2d 5, 8 (Fla. 1st DCA 2005); Wendy's v.

Vandergriff , 865 So. 2d 520, 523 (Fla. 1st DCA 2003). Seminole

did not meet this heavy burden of proof.

F. Fees and Costs under Section 57.105

43. Seminole seeks attorney's fees and costs against both

Riverkeeper and Jacksonville and under Section 57.105, Florida

Statutes, which provides in part:

(1) Upon the court's initiative or motion of

any party, the court shall award a reasonable

attorney's fee to be paid to the prevailing

party in equal amounts by the losing party

and the losing party's attorney on any claim

or defense at any time during a civil

proceeding or action in which the court finds

that the losing party or the losing party's

attorney knew or should have known that a

claim or defense when initially presented to

the court or at any time before trial:

(a) Was not supported by the material

facts necessary to establish the claim or

defense; or

(b) Would not be supported by the

application of then-existing law to those

material facts.

However, the losing party's attorney is not

personally responsible if he or she has acted

in good faith, based on the representations

of his or her client as to the existence of

those material facts. If the court awards

attorney's fees to a claimant pursuant to

this subsection, the court shall also award

prejudgment interest.

(2) Paragraph (1)(b) does not apply if the

court determines that the claim or defense

was initially presented to the court as a

good faith argument for the extension,

modification, or reversal of existing law or

the establishment of new law, as it applied

to the material facts, with a reasonable

expectation of success.

(3) At any time in any civil proceeding or

action in which the moving party proves by a

preponderance of the evidence that any action

taken by the opposing party, including, but

not limited to, the filing of any pleading or

part thereof, the assertion of or response to

any discovery demand, the assertion of any

claim or defense, or the response to any

request by any other party, was taken

primarily for the purpose of unreasonable

delay, the court shall award damages to the

moving party for its reasonable expenses

incurred in obtaining the order, which may

include attorney's fees, and other loss

resulting from the improper delay.

(4) A motion by a party seeking sanctions

under this section must be served but may not

be filed with or presented to the court

unless, within 21 days after service of the

motion, the challenged paper, claim, defense,

contention, allegation, or denial is not

withdrawn or appropriately corrected.

(Under Subsection (5), the statute applies in administrative

proceedings. 3 )

(i) Unreasonable Delay under Subsection (3)

44. Seminole did not prove that either Riverkeeper or

Jacksonville took action in this case "primarily for the

purpose of unreasonable delay." § 57.105(3), Fla. Stat.

(ii) Factual Support for Claims

45. Under Section 57.105(4), Florida Statutes, there is

no liability for Jacksonville's withdrawn claims (or, in

accordance with the prehearing rulings, for Riverkeeper's

claims).

46. As to Jacksonville, the relevant filing for purposes

of Section 57.105(1) is the Corrected Petition to Intervene,

which was treated as a Second Amended Petition.

47. Seminole did not prove that Riverkeeper or

Jacksonville knew or should have known that any of the claims

they did not withdraw within the "safe harbor" period set out

in Subsection (4) of the statute were not supported by the

material facts necessary to establish the claim or by the

application of then-existing law to those material facts. See

§ 57.105(1), Fla. Stat.

DISPOSITION

Based on the foregoing Findings of Fact and Conclusions of

Law, Seminole's motions for attorney's fees and costs against

Riverkeeper and Jacksonville are denied.

DONE AND ORDERED this 18th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

J. LAWRENCE JOHNSTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of December, 2009.

ENDNOTES

1/ Unless otherwise indicated, all statutory references are to

the 2009 Florida Statutes.

2/ Jacksonville designated excerpts of the deposition

transcripts submitted as its Exhibits 3-5. These depositions

were designated in their entirety by Seminole and were admitted

in evidence as Seminole Exhibits A15 and A16. An errata sheet

was added to Seminole Exhibit A3.

3/ As reflected in the DOAH file, it has been ruled that the

procedural requirements of Subsection (4) have been met; and

claims withdrawn by Riverkeeper within the "safe harbor" period

in Subsection (4) have been stricken from Seminole's motions for

attorney's fees and costs.

COPIES FURNISHED :

Patrick F. McCormack, Esquire

St. Johns County Attorney's Office

4020 Lewis Speedway

St. Augustine, Florida 32084-8637

Timothy A. Smith, Esquire

St. Johns River Water Management District

4049 Reid Street

Palatka, Florida 32177-2529

Kenneth B. Wright, Esquire

Bledsoe Jacobson Schmidt & Wright

1301 Riverplace Boulevard, Suite 1818

Jacksonville, Florida 32207-9022

Seann M. Frazier, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Tallahassee, Florida 32302-7742

Edward P. de la Parte, Jr., Esquire

de la Parte & Gilbert, P.A.

101 East Kennedy Boulevard, Suite 2000

Tampa, Florida 33602

Michael L. Howle, Esquire

Howle Law Firm, P.A.

1437 Walnut Street

Jacksonville, Florida 32206-4636

Jason R. Teal, Esquire

City of Jacksonville

117 West Duval Street, Suite 480

Jacksonville, Florida 32202

John R. Thomas, Esquire

Thomas & Associates, P.A.

233 Third Street North, Suite 101

St. Petersburg, Florida 33701-3818

NOTICE OF RIGHT TO JUDICIAL REVIEW

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 the agency 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.