14-005302 Last Stand (Protect Key West And The Florida Keys, D/B/A Last Stand), And George Halloran vs. Key West Resort Utilities Corporation, And State Of Florida Department Of Environmental Protection
 Status: Closed
Recommended Order on Friday, January 15, 2016.


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Summary: Petitioners did not prove, by a preponderance of the evidence, that Respondent failed to provide reasonable assurance entitling it to issuance of the challenged permit. Recommend issuance of the permit.

1STATE

2FINAL

3on February 11 , 2016 . This matter is now on administrative review before the Secretary

18of the Department for final agency action .

26BACKGROUND

27The Florida Legislature , in 2010, enacted Section 403.086(10) , Florida Statutes ,

37which addresses the discharge of domestic wastewater in the Florida Keys . That

50statute found that the discharge of inadequately treated and managed domestic

61wastewater from small wastewater facilities and septic tanks and other onsite systems

73in the Florida Keys compromises the coastal environment , including the nearshore and

85offshore waters , and threatens the quality of life and local economies that depend on

99these resources . Section 403 . 086(1 0) directs that after December 31 , 2015 , all new or

116expanded domestic wastewater discharges must comply with the treatment and

126disposal requirements of the statute and DEP rules . Specifically, domestic wastewater

138treatment facilities having design capacities greater than or equal to 100,000 gallons per

152day must provide basic disinfection of the wastewater pursuant to DEP rule and must

166treat the wastewater to a level of treatment , which, on a permitted annual average

180basis , produces an effluent that contains no more than the following concentrations of

193the specified constituents : Biochemical Oxygen Demand (CBOD5) of 5 milligrams per

205liter (mg/L); Suspended Solids of 5 mg/L; Total Nitrogen, expressed as N of 3 mg/L ; and

221Total Phosphorus , expressed asP of 1 mg/L. Collectively , these effluent standards

232constitute the " advanced wastewater treatment" (AWT) standan;ls .

241Section 403 . 086(10)(e) also imposed requirements regarding disposal of treated

252domestic wastewater effluent through underground injection. Class V injection wells

262serving domestic wastewater treatment facilities having design capacities of less than

273one million gallons per day (MGD) are to be at least 90 feet deep and cased to a

291minimum depth of 60 feet , or to such greater cased depth and total well depth as may

308be required by DEP rule . Class V injection wells serving wastewater treatment facilities

322with design capacities greater than or equal to 1 MGD , excluding backup wells , are to

337be cased to a minimum depth of 2,000 feet or to such greater depth as may be required

356by DEP rule .

360The Respondent KWRU currently is permitted, pursuant to Permit FLA014591

370(the Existing Permit) , to operate a domestic wastewater facility (the Existing Wastewater

382Facility or Facility) located at 6630 Front Street , Stock Island, Florida. Stock Island is

396located immed i ately east and slightly north of Key West.

407On April 15 , 2014 , KWRU applied to DEP for a permit modification seeking to

421expand the capacity of the Existing Wastewater Facility (proposed Project or Project) .

434On June 23, 2014, DEP issued a Notice of Intent to Issue the wastewater facility permit

450mod i f i cat i on and two underground injection control (UIC) permits for two new Class V

469injection wells (Permit at Issue). The Petitioners timely challenged the Permit at Issue

482and the case was referred to DOAH for assignment of an ALJ to conduct an

497administrative hearing . The hearing was conducted in April and May, 2015; the Hearing

511Transcript was filed on June 18 , 2015 ; and the part i es filed proposed recommended

526orders on July 20 , 2015 . The ALJ subsequently issued the RO on January 15, 2016 .

543SUMMARY OF THE RECOMMENDED ORDER

548In the RO , the ALJ recommended that the Department enter a final order

561approving issuance of the Permit at Issue. (RO at page 114) . The ALJ concluded that

577KWRU satisfied its burden to establish prima facie entitlement to the Permit at Issue .

592(RO 64-67, 76 , 77, 125 , 132, 138, 148-150, 189,216, 230,242,243,247,252-253,

607260 , 262, 266 , 272, 281, 297, 300 , 314 , 347, 355 , 358, 359). The ALJ further

622concluded that the Petitioners alleged numerous grounds for denial of the Permit at

635Issue , but did not prove that the proposed Project, as designed , fails to comply with or

651violates Section 403 . 086(10) and applicable DEP rules. (ROW 80 , 86 , 91 , 92 , 102,

666105,133 , 139,151,190 , 217 , 218 , 231,238,245,248,251 , 254 , 257 , 265,280,287 ,

683298 , 345 , 357) . Thus, the ALJ ultimately concluded that KWRU provided reasonable

696assurances that the Project met all applicable permitting standards and requirements ,

707including those established in Section 403.086(10) . (RO 359).

716Standing

717The ALJ found that the individual Petitioner, George Halloran , demonstrated

727standing to challenge the Permit at Issue in this proceeding . (RO 305). The Petitioner

742Halloran presented evidence that he resides in Key West , Florida , that his residence

755fronts on the water and he owns a boat. He demonstrated that he and his family use

772and enjoy the waters around Key West for swimming , fishing, kayaking, and other in­

786water recreational uses. (RO 288) . The Petitioner Halloran challenged the Permit at

799Issue because he is concerned that the Project will degrade the waters around Key

813West, where he and his family recreate ; and that nutrients will harm the seagrasses ,

827coral reefs , and benthic communities in the waters around Key West. (RO 11 289) .

842The ALJ concluded that Last Stand did not meet the test for associational

855standing to participate as a party to this proceeding. (RO 1111 291-296 , 306). The ALJ

870found that Last Stand did not prove that a substantial number of its members '

885substantial interests potentially could be injured by the Project. (RO 11 306). The ALJ

899concluded that Last Stand failed to present any evidence showing that a substantial

912number of its members have substantial interests in the resources that could be injured

926as a result of the Project. (RO 11 306).

935STANDARDS OF REVIEW OF DOAH RECOMMENDED ORDERS

942Section 120.57(1 )(I) , Florida Statutes, prescribes that an agency reviewing a

953recommended order may not reject or modify the findings of fact of the ALJ " unless the

969agency first determines from a review of the entire record , and states with particularity in

984the order , that the findings of fact were not based on competent substantial evidence ."

999§ 120 . 57(1)(1), Fla . Stat. (2015); Charlotte Cty. v . fMC Phosphates Co ., 18 So . 3d 1089

1020(Fla. 2d DCA 2009); Wills v . Fla. Elections Comm ' n , 955 So . 2d 61 (Fla . 1st DCA 2007 ).

1043The term "competent substantial evidence " does not relate to the quality , character,

1055convincing power, probative value or weight of the evidence . Rather , " competent

1067substantial evidence " refers to the existence of some evidence as to each essential

1080element and as to its admissibility under legal rules of evidence. See e.g ., Scholastic

1095Book Fairs , Inc . v. Unemployment Appeals Comm ' n, 671 So . 2d 287, 289 n.3 (Fla. 5th

1114DCA 1996); Nunez v . Nunez , 29 So . 3d 1191 , 1192 (Fla. 5th DCA 2010).

1130A reviewing agency may not reweigh the eviden c e presented at a DOAH final

1145hearing , attempt to resolve confli c ts ther e in , or judg e the cr e dibility of witnesses . See ,

1166e . g ., Rogers v. Dep ' t of Health , 920 So.2d 27 , 30 (Fla. 1st DCA 2005) ; Belleau v. Dep ' t

1190of Envtl . Prot ., 695 So . 2d 1305 , 1307 (Fla . 1st DCA 1997) ; Dunham v . Highlands Cty .

1212Sch . Bd. , 652 So. 2d 894 (Fla. 2d DCA 1995) . If there is competent substantial

1229evidence to support an ALJ ' s findings of fact , it is irrelevant that there may also be

1247competent substantial evidence supporting a contrary finding . See , e . g ., Arand

1261Construction Co . v. Dyer, 592 So . 2d 276, 280 (Fla. 1st DCA 1991 ) ; Conshor , Inc . v.

1281Roberts , 498 So . 2d 622 (Fla. 1st DCA 1986) .

1292The ALJ ' s decision to accept the testimony of one expert witness over that of

1308another expert is an evidentiary ruling that cannot be altered by a reviewing agency,

1322absent a complete lack of any competent substantial evidence of record supporting this

1335decision . See , e.g ., Peace River/Manasota Region a l Water Supply Authority v . IMC

1351Phosphate s Co ., 18 So . 3d 1079 , 1 088 (Fla . 2d DCA 2009) ; Collier Med . Ctr . v . State ,

1375Dep ' t of HRS , 462 So. 2d 83 , 85 (Fla. 1st DCA 1985) ; Fla. Chapter of Sierra Club v .

1396Orlando Utils . Comm ' n, 4 3 6 So . 2d 383 , 389 (Fla. 5th DCA 1983) . In addition , an

1418agency has no authority to make independent or supplemental findings of fact. See ,

1431e.g ., North Port , Fla. v. Con sol . Mineral s, 645 So . 2d 485, 487 (Fla. 2d DCA 1994 ) ; Fla .

1455Power & Light Co . v . Fla . Siting Bd . , 693 So. 2d 1025 , 1026-1027 (Fla . 1st DCA 1 997).

1478Section 120.57(1 )(1) , Florida Statutes , authori z es an agency to reject or modify

1492an ALJ ' s conclus i ons of law and interpretations of administrative rules " over which it has

1510substantive jurisdiction ." See Barfi e ld v . Dep ' t of Health , 805 So . 2d 1008 (Fla . 1st DCA

15332001 ) ; LB . Bryan & Co. v. Sch. Bd . of Broward Cty ., 746 So . 2d 1194 ( Fla . 1st DCA

15581999) ; Deep Lagoon Boat Club , Ltd. v . Sheridan , 784 So . 2d 1140 ( F l a . 2d DCA 2001 ) .

1582Considerable deference should be accorded to these agen c y interpretations of statutes

1595and rules within their regulatory jurisdiction , and such agency interpretations should not

1607be overturned unless " clearly erroneous ." See , e.g. , Falk v . Beard , 614 So. 2d 1086 ,

16231089 (Fla . 1993) ; Dep ' t of Envtl. Reg . v. Goldring , 477 So . 2d 532 , 534 (Fla. 1985 ) .

1646Furthermore, agency interpretations of statutes and rules within their regulatory

1656jurisdiction do not have to be the only reasonable interpretations. It is enough if such

1671agency interpretations are " permissible " ones . See , e . g . , Suddath Van Lines , Inc . v.

1688Dep ' t of Envtl . Prot ., 668 So. 2d 209 , 212 (Fla. 1st DCA 1996) . If an ALJ improperly

1710labels a conclusion of law as a find i ng of fact, the label should be d i sregarded and the

1731item treated as though it were actually a conclusion of law. See , e . g ., Battaglia

1748Properties v . Fla . Land and Water Adjudicatory Comm ' n , 629 So. 2d 161 , 168 (Fla. 5th

1767DCA 1994 ) . However, neither should the agency label what is essent i ally an ultimate

1784factual determination as a " conclusion of law " in order to modify or overturn what it may

1800view as an unfavorable finding of fact. See , e . g ., Stokes v. State , Bd . of Prof'/ Eng ' rs ,

1822952 So . 2d 1224 (Fla . 1st DCA 2007).

1832Agencies do not have jurisdiction , however , to modify or reject rulings on the

1845admissibility of evidence . Evidentiary rulings of the ALJ that deal with " factual i ssues

1860susceptible to ord i nary methods of proof that are not infused with [agency] policy

1875considerations ," are not matters over which the agency has " substantive jurisdict i on ."

1889See Martuccio v . Dep ' t of Prof'/ Reg ., 622 So . 2d 607 , 609 ( Fla . 1st DCA 1993 ); Heifetz

1914v . Dep ' t of Bus . Reg. , 475 So. 2d 1277, 1281 (Fla . 1st DCA 1985) . Evidentiary rulings

1936are matters within the ALJ ' s sound " prerogative . . . as the finder of fact " and may not be

1957reversed on agency review . See Martuccio , 622 So . 2d at 609 .

1971RULINGS ON EXCEPTIONS

1974A party that files no exceptions to certain findings of fact "has thereby expressed

1988its agreement with , or at least waived any objection to, those findings of fact. " Envtl .

2004Coalition ofF/a ., Inc . v . Broward Cty . , 586 So . 2d 1212 , 1213 (Fla. 1st DCA 1991) ; see

2025a/so Colonnade Medical Ctr. , Inc. v. State of Fla. , Agency for Health Care Admin., 847

2040So. 2 d 540, 542 (Fla. 4th DCA 2003) . How e ver, an agency head reviewing a

2058recommended order is free to modify or reject any erroneous conclusions of law over

2072which the agency has substantive jurisdiction , even when exceptions are not filed . See

2086§ 120.57(1 )(I) , Fla. Stat. (2014); Barfield v . Dep ' t of Health , 805 So . 2d 1008 (Fla . 1st

2108DCA 2001); Fla . Public Employee Council , 79 v . Daniels , 646 So . 2d 813,816 (Fla . 1st

2128DCA 1994) .

2131Finally, in reviewing a recommended order and any written exceptions , the

2142agency ' s final order "shall include an explicit ruling on each exception. "

2155See§ 120 . 57(1)(k), Fla . Stat. (2015) . However , the agency need not rule on an

2172exception that " does not clearly identify the disputed portion of the recommended order

2185by page number or paragraph , that does not identify the legal basis for the exception , or

2201that does not include appropr i ate and specific citations to the record. " /d .

2216RESPONDENT DEP ' S EXCEPTION

2221The DEP takes exception to the proposed finding in the first sentence of

2234paragraph 250 of the RO, where the ALJ observes that "[a]s more fully discussed

2248below , the antidegradation requirements in these rules apply only to a direct discharge

2261to surface waters, which is not present in this case ." The DEP argues that this finding

2278should be treated as a legal conclusion , and along with the related conclusion in

2292paragraph 343, should not be adopted in this Final Order. The DEP further argues that ,

2307based on the ALJ ' s findings, resolution of the question regarding application of

2321antidegradation policies to the discharge at issue in this proceeding is not necessary .

2335The ALJ found that " even if the antidegradation rules did apply to the discharge of

2350effluent through the injection wells , Petitioners failed to prove that the discharge would

2363degrade surface waters ." See RO 251 ; see a/so RO 188 , 212, 228 .

2377The Department agrees with the ALJ , for all the reasons outlined in the RO and

2392in the ruling on the Petitioners ' Exception Two below , that a " direct discharge to surface

2408waters , ... is not present in this case. " Because there is no direct discharge , certain

2423requirements (e . g ., the requirement to obtain certain types of discharge permits) do not

2439apply to this Project. However, the Department modifies the ALJ ' s conclusions in

2453paragraphs 250, 251 and 343, to reflect that Florida ' s antidegradation policy applies in

2468this case because the express language of the Department rule makes it applicable in

2482Monroe County . See Cleveland Clinic Fla . Hospital v . Agency for Healthcare Admin .,

2498679 So. 2d 1237 (Fla. 1st DCA 1996) (reflecting that agencies are required to follow

2513their own rules). Rule 62-528 . 630(7) , Florida Administrative Code, provides :

2525All Class V Group 3 wells designed to inject domestic

2535wastewater in Monroe County shall be required as part of

2545the operation permit application to provide reasonable

2552assurance that operation of the well will not cause or

2562contribute to a violation of surface water standards as

2571defined in Chapter 62-302, F . A.C . (Emphasis added)

2581The definition of water quality standards in Chapter 62-302 states:

2591. .. standards [are] composed of designated present and

2600future most beneficial uses (classification of waters), the

2608numerical and narrative criteria, including Site Specific

2615Alternative Criteria, applied to the specific water uses or

2624classification , the Florida anti-degradation policy , and the

2631moderating provisions, such a variances, mixing zone rule

2639provisions , or exemptions .

2643Fla . Admin . CodeR. 62-302 . 200(42); see also In re : Florida Administrative Code Rules

2660400 - 8 . 041(16 and 400-8.041(17) , OGC Case No. 13-0914 , 2014 WL 7649082 * 7 (Fla .

2678DEP Order on Consistency, November 25, 2014) (reflecting that the state ' s

2691antidegradation policy is a component of Florida ' s water quality standards) . 1 The ALJ ' s

2709factual findings in paragraphs 188 , 212, 228, and 251 still support the conclusions in

2723paragraphs 346 and 347. 2

27281 Florida's antidegradation policy , is set forth in Rules 62-302.300(11 )-(18), and 62-

2741302.700 (Special Protection, Outstanding Florida Waters, and Outstanding National

2750Resource Waters). The antidegradation policy for OFWs in Rule 62-302 . 700

2762specifically provides that the "policy of this section shall be implemented through the

2775permitting process pursuant to Rule 62-4 . 242 , F.A.C. " See Fla . Admin. CodeR. 62-

2790302 . 700(7) ; see also In re : Florida Administrative Code Rules 400-8 . 041(16 and 400-

28078 . 041(17) , OGC Case No. 13-0914, 2014 WL 7649082 *8 (Fla . DEP Order on

2823Consistency, November 25, 2014).

28272 The Department's interpretation of Rule 62 - 528 . 630(7) regarding application of

2841Florida ' s antidegradation policy in Monroe County , is more reasonable than that of the

2856ALJ. See§ 120 . 57(1 )(I) , Fla . Stat. (2015) .

2867A rule ' s language can clearly indicate when the Department is not required to

2882apply all the components of Flor i da ' s water quality standards . For example , " designated

2899present and future most beneficial uses " refers to the Classification system for waters

2912set forth in Chapter 62-302. 3 General rules such as : Rule 62 - 520.31 0(2) [ " discharge to

2931ground water shall not impair the designated use of contiguous surface waters"] ; and

2945Rule 62-520.400(1 )(f) [ " All ground water shall at all places and at all times be free from .

2964. . discharges in concentrations which , . . . [i]mpair the .. . beneficial uses of adjacent

2981waters " ]. clearly do not apply all the components of Florida ' s water quality standards .

2998Based on the plain language of Rule 62-528.630(7), the legal conclusion of the

3011ALJ in paragraph 343 is rejected and not adopted in this Final Order ; and paragraphs

3026250 and 251 are modified based on the above discussion . Therefore , the DEP ' s

3042Exception is granted .

3046PETITIONERS ' EXCEPTIONS

3049EXCEPTION ONE

3051The Petitioners take exception to paragraph 306 of the RO , where the ALJ

3064concludes that Last Stand did not demonstrate standing to challenge the Permit at

3077Issue . The Petitioners assert procedural and legal error on the part of the ALJ . See

3094Petitioners ' Exceptions at pages 5-8 . In paragraph 306, the ALJ determined :

3108306 . However , Petitioner Last Stand has not demonstrated

3117its standing to challenge the Permit at Issue . Specifically ,

3127Last Stand did not present evidence show i ng that a

31383 " Designated use " shall mean the present and future most beneficial use of a body of

3154water as designated by the Environmental Regulation Commission by means of the

3166Classification system contained i n this chapter . Fla . Admin . CodeR. 62 - 302 . 200(9) .

3185substantial number of its members ' substantial interests

3193potentially could be injured by the Project. The stipulated

3202facts regarding Last Stand ' s members dealt with potential

3212impacts to their interests in the use and enjoyment of natural

3223and economic resources in Monroe County and the Florida

3232Keys, but Last Stand did not present any evidence showing,

3242or aimed at showing, that the Project may impact natural or

3253economic resources on such a broad scale . Rather, Last

3263Stand's evidence specifically focused on potential impacts to

3271natural resources in the vicinity of Stock Island . However. it

3282failed to present any evidence showing that a substantial

3291number of its members have substantial interests in those

3300resources that could be injured as a result of the Project.

3311Thus, Last Stand failed to meet the requirement , established

3320in Florida Home Builders Association v. Department of Labor

3329and Employment Security, 412 So . 2d 351 (Fla . 1982) , to

3341demonstrate that a substantial number of its members'

3349substantial interests may be affected by the proposed

3357agency action.O Accordingly, Last Stand has not shown that

3366it has standing to participate as a party to this proceeding . O

3379(Emphasis added).

3381The Petitioners' procedural argument is that the ALJ overlooked a "rul[ing] from

3393the bench" made at the hearing during the Petitioners' case (T . Vol. 10 , p. 1427, lines

341012-15) . This argument is without merit because in administrative proceedings under

3422chapter 120, Florida Statutes , such dispositive rulings are required to be in writing as

3436part of an ALJ ' s recommended order. See§ 120 . 57(1)(k) , Fla. Stat. (2015) ("The [ALJ]

3454shall complete and submit to the agency . .. a recommended order consisting of

3468findings of fact , conclusions of law , and recommended disposition ... . " ) . Courts have

3483recognized that a trial judge ' s oral comments during the hearing are preliminary

3497observations that may change once the judge considers the totality of the evidence and

3511applicable legal standards. See State v . R.M ., 696 So.2d 449 , 452 (Fla. 4th DCA 1997)

3528(" Trial judges may think out loud and then change their mind in the quiet of thei r

3546study ." ).

3549The Petitioners further argue that paragraph 306 is in error because the

3561stipulated facts includes a reference to the " proposed project" such that the stipulat i on

3576does reference a geographic point within Monroe County . See Petitioners ' Exceptions at

3590page 6 ; see al s o RO 295 . The Petitioners ' argument , however , is directed to the first

3609half of paragraph 306. The argument ignores the ALJ ' s findings in the latter half of

3626paragraph 306 that Last Stand ' s evidence focused on the natural resources in the

3641v i cinity of Stock Island , but did not prove " that a substantial number of its members have

3659substantial interests in those resources that could be injured as a result of the Project. "

3674In paragraph 296 , to wh i ch the Petitioners did not take exception , the ALJ found :

3691296. Last Stand tendered, for admission into evidence ,

3699aff i davits of some of its members attesting to the substantial

3711interests they contend will be injured by the Proje c t.

3722However , Last Stand had refused to allow Respondents to

3731engage in dis c overy regarding these members' alleged

3740substantial interests ; accordingly , the undersigned did not

3747allow these members to testify at the final hearing . O The

3759affidavits were ex c luded from admission into evidence as

3769unsupported hearsay . See§ 120.57(1)(c) , Fla . Stat.

3777Th e findings in paragraphs 291 through 296 , to which the Pet i tioners did not take

3794e x ception , are the underlying facts for application of the associational standing test

3808articulated in Fla . Home Builders Assoc . v . Dep ' t of Labor and Employment Sec ., 412

3828So.2d 351 (Fla . 1982). See also NRA of Am ., Inc v . . City of Miami , 774 So.2d 815 , 816

3850(Fla . 3d DCA 2000 ) (recognizing that an association whose membership lists are legally

3865protected from discovery still must s how standing to sue ).

3876The Petitioners also assert " further evidence of standing that was presented at

3888the hearing ," by detailed citations to the record . See Petitioners ' E x ceptions at pages 6 -

39078 . However , the Petitioners do not present any analysis of how this evidence proves

3922Last Stand ' s stand i ng under the applicable legal standard . If , the Petitioners want th e

3941Department to reweigh the evidence and the ALJ ' s evidentiary rulings , that is improper.

3956See Martuccio v . Dep ' t of Prof'/ Reg ., 622 So . 2d 607 , 609 (Fla . 1st DCA 1993) ; Heifetz

3979v . Dep ' t of Bus . Reg., 475 So.2d 1277 , 1281 (Fla . 1st DCA 1985) . If the Petitioners

4001want the Department to modify or reject the ALJ ' s application of associational standing

4016case law , the Department finds no error and adopts the ALJ ' s findings and conclusions

4032in paragraph 306.

4035Therefore, based on the foregoing reasons , the Petit i oners ' Exception One is

4049denied .

4051EXCEPTION TWO

4053The Petitioners take exception to paragraphs 244 , 249 , 250 , 251 , 313 , 314 , 315 ,

4066316 , 317,338 , 339,340,341,342, and 343 of the RO . The Petitioners contend that the

4084ALJ "misread " Rule 62-620 . 200(13) , and that the Department applied an unadopted

4097rule. See Petitioners ' Exceptions at pages 10-15 .

4106Rule 62-620 . 200(13) defines " [d]ischarge of a pollutant " to mean

4117any addition of any pollutant or combination of pollutants , as

4127defined in 40 CFR 122 . 2 , to waters from any point source

4140other than a vessel or other floating craft which is being used

4152as a means of transportation . This definition includes

4161additions of pollutants into waters from surface runoff which

4170is collected or channeled by man , and discharges through

4179pipes , sewers , or other conveyances which do not lead to a

4190treatment works . This term does not include an addition of

4201pollutants by any indirect discharger .

4207The Petitioners contend that the ALJ , as well as the DEP i n Port Antigua Townhouse

4223Ass ' n , Inc . v . Seanic Corp. , 23 F . A.L.R. 661 (Fla . Dep ' t of Envtl. Prot. 2000) (cited by

4248the ALJ) , are i ncorrect that discharges of wastewater effluent into qass G-Ill ground

4262water through underground injection wells do not constitute d i scharges into surface

4275waters under Chapters 62-302 or 62-620 . The Petitioners ' rationale is that " indirect

4289discharger " is not defined in Florida Statutes or the Florida Admin i strative Code , and as

4305such the definition of " indirect discharger " in 40 C . F.R. section 122.2 , part of the

4321regulations implementing the National Pollutant Discharge El i mination System , must be

4333utilized . See Petitioners ' Exceptions at pages 11-12 .

4343However , the ALJ addressed this point in endnote 59 to the RO by noting that

4358Florida has its own regulatory scheme and federal definitions are only applicable where

4371expressly incorporated into Florida regulations . Rule 62-620.200(13) expressly

4380incorporates the federal definition of " pollutant. " It does no t incorporate the definiti o n of

" 4396indirect discharger ." Therefore , that federal definition i s not app li cab l e to interpreting

4413and applying Rule 62-620.200(13). The DEP ' s interpretation that the proposed

4425discharge is properly classified as an indirect discharge ( Ma i er , T . Vol. 13 , p. 1797 , l i nes

444624 -25 ; p . 1798 , lines I - 2 , p. 1799 , lines 1 - 21) is a permissible interpretation given the

4467plain language of Rule 62-620 . 200(13). Great deference should be accorded t o agency

4482interpretations of statutes and rules that they enforce , and such interpretations should

4494not be overturned unless clearly erroneous . See , e . g ., Dep ' t of Envtl . Reg . v . Goldring ,

4517477 So. 2d 532 , 534 (Fla . 1985) .

4526Contrary to the Petitioners ' argument, an agency cannot be said to be operating

4540on the basis of an unadapted rule , where the interpretation of a term is made with

4556respect to the plain language of the term itself . See , e.g ., St. Francis Hospital, Inc. v .

4575Oep ' t of Health and Rehab . Servs. , 553 So . 2d 1351 , 1354 (Fla . 1st DCA 1989) ( " [A]n

4597agency i nterpretat i on of a statute which simply reiterates the legislature's statutory

4611mandate and does not place upon the statute an i nterpretation that i s not readily

4627apparent from its literal reading , nor in and of itself purport to create certain rights , or

4643requ i re compliance , or to otherwise have the direct and consistent effect of the law , is

4660not an [unadapted] rule, and actions based upon such an interpretation are permissible

4673without requiring an agency to go through rulemaking . " ) . Also , the Petitioners did not

4689raise this as an issue for adjudication by the ALJ . See§ 120 . 57(1 )(e), Fla . Stat. (2015) .

4710Therefore , based on the foregoing reasons , the Petitioners ' Exception Two is

4722denied .

4724EXCEPTION THREE

4726The Petitioners take exception to paragraphs 169 , 171 , 185 - 187, 188, 189 , 190,

4740214 , 215 , 216 , 217 , 218 , 233,237,238 , 241 , 242 , 243 , 250,252,257 , 259,260 , 261 ,

4757262 , 264 , 265 , 273 , and 334 , "to the extent that these paragraphs rely on a finding that

4774ground water and surface water are not connected in a meaningful way in the vicinity of

4790Stock Island , Monroe County , wher e the KWRU discharge wells and storage ponds

4803holding reclaimed water ... are located ." See Petitioners' Exceptions at page 23 . The

4818Petitioners essentially argue that the ALJ erred in finding " that there is not a significant

4833hydrauli c connect i on in the vicinity of Stock Island between groundwater and s urface

4849water " because it contradicts the parties ' stipulation that groundwater and surface water

4862in this general area are connected . See Petitioners ' Exceptions at pages 23-24 .

4877Contrary to the Petitioners' argument, the ALJ ' s finding did not contradict the

4891stipulation . As pointed out by the Respondent KWRU in its response , the ALJ's findings

4906resolved disputed issues related to the extent and specific locations of any groundwater

4919and surface water connection that were the subject of extensive and competing expert

4932testimony. See RO mJ 171-172; Fourqurean T. Vol. 2 , p. 207; Rhodes T. Vol. 6, p . 676 ;

4950Paul T . Vol. 8 , pp . 1020-1042 ; Alfieri T . Vol. 11, pp. 1498-1508; see also KWRU

4968Response to Petitioners' Exceptions at page 8. The ALJ's findings are supported by

4981competent substantial evidence that confining materials impede the vertical movement

4991of effluent at the KWRU site (Alfieri T. Vol. 11, pp . 1485-1490) , and that injected effluent

5008will migrate laterally below the confining layers for a substantial distance offshore before

5021rising to surface waters at some unknown location or locations (Alfieri T . Vol. 11 , pp .

50381507 , 1508). See RO 185-190. The ALJ's decision to accept the testimony of one

5052expert witness over that of another expert is an evidentiary ruling that cannot be altered

5067by a reviewing agency, absent a complete lack of any competent substantial evidence

5080of record supporting this decision . See Peace River/Manasota Regional Water Supply

5092Authority v. fMC Phosphates Co ., 18 So.3d 1079 , 1088 (Fla. 2d DCA 2009) .

5107The Petitioners also assert procedural error in the admission or exclusion of

5119certain testimony and documentary evidence. Agencies do not have jurisdiction,

5129however , to modify or reject rulings on the admissibility of evidence . Evidentiary rulings

5143of the ALJ that deal with " factual issues susceptible to ordinary methods of proof that

5158are not infused with [agency] policy considerations ," are not matters over which the

5171Department has "substantive jurisdiction. " See Martuccio v . Dep ' t of Prof'/ Reg. , 622

5186So.2d 607, 609 (Fla. 1st DCA 1993) ; Heifetz v. Dep ' t of Bus . Reg. , 475 So.2d 1277,

52051281 (Fla . 1st DCA 1985) .

5212Therefore , based on the foregoing reasons, the Petitioners ' Exception Three is

5224denied .

5226EXCEPTIONS FOUR AND FIVE

5230The Petitioners take exception to paragraphs 169 , 214, 215, 216 , 217,218,233,

5243237 , 238 , 243 , 250 , 252 , 257 , 259 , 260 , 261 , 262 , 264 , and 265 , 322 , 323 " to the extent

5261that these paragraphs allege compliance with Surface Water or Ground Water

5272regulations for existing KWRU or proposed expanded project without the DEP review of

5285sampling and analysis of laboratory results for effluent discharged from KWRU

5296compared with water quality standards;" and "without the requirement for groundwater

5307sampling prior to leaving the KWRU prop e rty or by an analysis of the effluent if

5324groundwater monitoring wells are not used for compliance purposes . " See Petitioners '

5337Exceptions at pages 30 - 36 .

5344Contrary to the Petitioners ' argument, the ALJ made extensive findings regarding

5356existing water quality (RO 154-170, 258 - 260) and future water quality (RO 42,

5370212 , 228 , 229 , 230, 261 ) , with a focus on the water quality criteria at issue in this

5388proceeding . The ALJ ' s findings are supported by competent substantial record

5401evidence in the form of testimony and exhibits from Ken Weaver (T . Vol. 6 , pp. 752 ,

5418757 - 759 , 779-786 ; Joint Exs . 66 , 67 , 77) ; David Rhodes (T . Vol. 5 , pp. 629-630) ; Ed

5437Castle (T. Vol. 3 , pp. 326-328; Joint Ex. 16) ; and Mike Alfieri (T . Vol. 11 , pp. 1513-1517 ,

54551523 ; KWRU Ex . 28 , p . 633).

5463The Petitioners seek to have the Department reweigh the evidence . However ,

5475the Department is not authorized to reweigh the evidence presented at a DOAH final

5489hearing, attempt to resolve conflicts therein , or judge the credibility of witnesses . See ,

5503e.g ., Rogers v . Dep ' t of Health , 920 So.2d 27 , 30 (Fla . 1st DCA 2005) ; Belleau v . Dep ' t

5528of Envtl . Prot. , 695 So . 2d 1305 , 1307 (Fla . 1st DCA 1997) . If there is competent

5548substantial evidence to support the ALJ's findings of fact , i t is irrelevant that there may

5564also be competent substantial evidence supporting a contrary finding. See , e.g ., Arand

5577Construction Co . v. Dyer , 592 So . 2d 276 , 280 (Fla . 1st DCA 1991 ) ; Conshor, Inc . v .

5599Roberts , 498 So . 2d 622 (Fla . 1st DCA 1986) .

5611Therefore , based on the foregoing reasons , the Petitioners ' Exceptions Four and

5623F i ve are denied .

5629EXCEPTION SIX

5631The Petitioners take exception to paragraphs 250 , 251 , 252 , and 254 , " to the

5644extent that these provisions find and conclude that Petitioners failed to prove that the

5658discharge would degrade surface waters ; surface waters in the Florida Keys , including

5670those in and around Stock Island and Key West currently meet nutrient criteria; and

5684Petitioners failed to prove that KWR failed to provide reasonable assurances that

5696disposal of the effluent through the injections wells would not degrade surface waters in

5710violation of rules 62-4 . 242 , 62-302 . 300 , 62-302.530(47)(a) and 62-302.700(1 ) .

5724[antidegredation and surface water quality for narrative nutrient standards] . " See

57351 9

5737Petitioners' Exceptions at page 36 . The Petitioners also take exception to paragraphs

5750169,214 , 215,216,217 , 218 , 233 , 237,238,243 , 250 , 252 , 257 , 259 , 260,261 , 262 ,

5767264, 265 , " to the extent that these paragraphs allege that KWRU can demonstrate

5780reasonable assurance that the discharge into the UIC injection well will not cause or

5794contribute to surface water quality violations for existing KWRU or proposed expanded

5806project without the needed sampling and analysis of adjacent surface waters and the

5819benthic community. " See Petitioners' Exceptions at page 37 . Finally , the Petit io ners

5833also take exception to paragraphs 198, 199-203, 207 and 211, on the basis that the

"5848ALJ's paraphrasing of Dr . Fourqurean's testimony is not correct or misquoted from his

5862testimony, deposition, or in the opinion letter testimony he provided. " See Petitioners '

5875Exceptions at page 42 .

5880In this lengthy exception , the Petitioners essentially argue that the ALJ should

5892have given more weight to Dr . Fourqurean's testimony. See Petitioners ' Exceptions at

5906pages 36-43 . The ALJ ' s findings in paragraphs 200, 201, 203 , 204, 207, 226, regarding

5923Dr. Fourqurean ' s testimony cannot be reweighed by the Department to reach a different

5938conclusion than that reached by the ALJ. See Bill Salter Advertising , Inc. v. Dep ' t of

5955Transp. , 974 So . 2d 548 , 551 (Fla. 1st DCA 2008) ( " In reviewing the record , ... the

5973agency [cannot] re-weigh the evidence presented, judge the credibility of the witnesses,

5985or otherwise interpret the evidence to fit a desired ultimate conclusion."). In addition ,

5999the Department cannot make independent or supplemental findings of fact. See Fla .

6012Power & Light Co. v. Fla . Siting Bd., 693 So . 2d 1025, 1026-1027 (Fla . 1st DCA 1997).

6032The ALJ ' s findings are supported by competent substantial ev i dence as outlined

6047in the ruling on Exceptions Four and Five abov e, incorporated herein . Therefore, based

6062on the foregoing reasons , the Petitioners ' Exception Six is denied .

6074EXCEPTION SEVEN

6076The Petitioners take exception to paragraphs 169 , 170 , 227 , 229 , 230 , 231 , 240 ,

6089250 , 252 , an d 254 of the RO . The Petitioners contend that is it a " [f]undamental error of

6108law to use impaired waters designations within Marine Nutrient Regions , referred to as

6121WBIDs , both off-shore and near shore , rather than water quality compliance data to

6134demonstrate that the point source d i scharges (UIC wells or storage pond) is compliant

6149with groundwater or surface water standards ." See Petitioners ' Except i ons at page 44 .

6166In another exception , the Petitioners essentially argue that the ALJ should not

6178have given weight and credence to Ken Weaver ' s testimony . See Petitioners '

6193Exceptions at pages 44 - 49. The ALJ ' s findings regarding Ken Weaver ' s testimony

6210cannot be reweighed by the Department to reach a different conclusion than that

6223reached by the ALJ . See Bill Salter Advertising , In c. v . Dep ' t of Transp ., 974 So . 2d 548,

6247551 (Fla . 1st DCA 2008) ( ' 1 1n reviewing the record , ... the agency [cannot] re-weigh the

6266evidence presented , judge the credibility of the witnesses , or otherwise interpret the

6278evidence to fit a desired ultimate conclusion ." ) . In addition , the Department c annot

6294make independent or supplemental findings of fact. See Fla . Power & Light Co . v . Fla .

6313Siting Bd ., 693 So . 2d 1025 , 1026-1027 (Fla. 1st DCA 1997) .

6327The ALJ ' s findings are supported by competent substantial evidence as outl i ned

6342in the ruling on Exceptions Four and Five above , incorporated herein . Therefore , based

6356on the forego i ng reasons , the Petit i oners ' Exception Seven i s denied .

6373EXCEPTION EIGHT

6375The Petitioners take exception to paragraph 215 of the RO. The Petitioners

6387essentially contend that the ALJ placed undue emphasis on a reasonable assurances

6399document to find that " the Project will meet the narrative nutrient criterion i n rule 62 -

6416302 . 530(47)(b )" (RO 1J 215) . However, the context of paragraph 215, nam e ly

6433paragraphs 210-217 of the RO , show that the ALJ ' s findings regarding reasonable

6447assurance of compliance with narrative nutrient standards are not based solely on

6459compliance with the reasonable assurances document. The ALJ ' s findings in

6471paragraphs 210-217 are supported by competent substantial r ecord evidence in the

6483form of testimony and exhibits from William Precht (T. Vol. 12 , pp. 1721-1722 , 1724-

64971725) , Mike Alfieri (T . Vol. 11 , pp . 1513-1517), and Ken Weaver (T. Vol. 6 , pp . 779-785 ;

6516Joint Exs . 66 , 67) . See , e . g ., Southpointe Pharmacy v . Dep ' t of Health and Rehab .

6539Servs ., 596 So.2d 106 , 109 (Fla . 1st DCA 1992) (reflecting that it is an abuse of

6557discretion to disregard findings of fact that are based on c ompetent substant i al

6572evidence) .

6574The Petitioners also take e x ception to paragraph 229 of the RO . However , the

6590expert testimony of Ken Weaver supports the ALJ ' s findings in paragraphs 227, 228,

6605and 229 . (Weaver , T. Vol. 6 , pp . 752 , 757-759; Joint Ex. 77) . See /d .

6623Therefore , based on the foregoing reasons, the Petitioners ' Exception Eight is

6635denied .

6637EXCEPTION NINE

6639In this exception to paragraph 235 of the RO , the Petitioners argue that the

6653permit should be denied based on the " free - from " standards . See Petitioners '

6668Exceptions at page 54 . With respect to the " free-from " standards , the ALJ characterized

6682the Petitioners ' theory as follows :

6689232 . Petitioners allege that the effluent contains iron and

6699copper above detection limits , as well as personal care

6708products and pharmaceuticals , and that these constituents

6715violate rules 62-302.500(1 )(a)5 . and 62-302 . 530(61 ) .

6726The Petitioners do not dispute that characterization . Existing rules provide specific ,

6738numeric standards for iron and copper. See Fla . Admin . CodeR. 62 - 302 . 530 (23), (39) .

6758Thus, the "free-from " rule does not regulate the concentration of those elements in

6771surface waters . See Fla . Admin. Code R. 62 - 302 . 500(1 )(a)5 (prohibiting discharge of

6789components " present in concentrations which are carcinogenic , mutagenic, or

6798teratogenic to human beings or to significant , locally occurring , wildlife or aquatic

6810species , unless specific standards are established for such components in subsection

682162-302 . 500(2) or Rule 62-302.530, F . A.C ." (Emphasis supplied)) . See a/so J. T.

6838McCormick v . City of Jacksonvi/le , 12 F . A.L.R. 960 (Fla . Dep ' t of Envtl. Reg . 1990) .

6860With regard to the remaining categories of personal c are products and pharmaceuticals ,

6873the ALJ found that the Petitioners failed to support their allegation that effluent will

6887contain those substances (RO 1l233). The ALJ further found that the Petitioners failed

6900to substantiate the allegation that those substances were carcinogenic , mutageni c,

6911teratogenic , tox i c , or otherwise prohibited under the " free-from " rule (RO 1f 234 ) .

6927The Petitioners did not provide any record citations to dispute the ALJ ' s findings

6942i n paragraph 235 that the Petitioners did not present any evidence that copper and iron

6958are present in the proposed discharge in amounts that would violate the " free-from "

6971standards or any other applicable surface water standards . See§ 120 . 57(1 )(1) , Fla . Stat.

6988(2015).

6989Therefore , based on the foregoing reasons , the Petitioners ' Exception Nine is

7001denied .

7003EXCEPTION TEN

7005The Petitioners ta k e exception to paragraphs 230 , 231 , 243 , and 253 , to the

7020extent that these findings state that the proposed KWRU AWT [Advanced Waste

7032Treatment] effluent, even if not diluted by groundwater or surface water , wou l d not

7047cause or contribute to a violation of the appli c able narrative or numeric nutrient criteria .

7064See Petitioners' Exceptions at pages 55-57 . The ALJ's findings are supported by

7077competent substantial record evidence in the form of expert testimony from Ken Weaver

7090(T . Vol. 6 , pp . pp . 752, 757 - 760 , 782 , 785-786 ; Joint Ex. 77) and Mike Alfieri (T . Vol. 11 ,

7114pp. 1511-1517 , 1556-1557). See§ 120.57(1)(1) , Fla . Stat. (2015) ; see a/so Southpointe

7126Pharmacy v . Dep ' t of Health and Rehab. Servs ., 596 So . 2d 106 , 109 (Fla . 1st DCA

71481992) (reflecting that it is an abuse of discretion to disregard find i ngs of fact that are

7166based on competent substantial evidence) .

7172Therefore , based on the foregoing reasons, the Petitioners ' Exception Ten is

7184denied .

7186EXCEPTIONS ELEVEN AND SEVENTEEN

7190The Petitioners take exception to paragraph 228 of the RO , where the ALJ found

7204that "[e ]ven with the increased volume of wastewater treated by the Expanded

7217Wastewater Facility , implementation of the AWT standard ... will substantially reduce

7228the amount of total nitrogen and total phosphorus discharged into ground water through

7241the injection wells ." (RO 11228) . The Petitioners appear to argue that the comparison of

7257nutrient loadings in paragraph 228 is an incorrect reasonable assurance analysis . See

7270Petitioners ' Exceptions at pages 58-61 .

7277As KWRU points out in its response , the operative analysis is that surface waters

7291are currently meeting applicable nutrient criteria under the existing discharge ' s nutrient

7304mass loading . See KWRU ' s Response to Petitioners ' Exceptions at pages 22-23. Thus ,

7320for purposes of the reasonable assurance analysis , the relevant comparison is between

7332current nutrient mass loading and proposed mass loading under the Permit at Issue

7345(Weaver , T. Vol. 6, p. 794 ; Castle , T. Vol. 3, pp. 326-328, Joint Ex. 16).

7360Therefore , based on the foregoing reasons, the Petitioners ' Exceptions Eleven

7371and Seventeen are denied.

7375EXCEPTION TWELVE

7377The Petitioners take exception to paragraphs 243 , 251 , 252 , 253, and 254 , "to

7390the extent that they reach a conclusion that the effluent discharged from KWRU will not

7405cause significant impacts to surface water quality in the vicinity of the discharges ." See

7420Petitioners' Exceptions at page 61 . As outlined in the rulings on Exceptions Ten and

7435Eleven above, incorporated herein, the ALJ ' s findings are supported by competent

7448substantial record evidence . See§ 120 . 57(1 )(1) , Fla . Stat. (2015); see also Southpointe

7464Pharmacy v . Dep ' t of Health and Rehab . Servs ., 596 So.2d 106, 109 (Fla . 1st DCA

74851992) (reflecting that it is an abuse of discretion to disregard findings of fact that are

7501based on competent substantial evidence) .

7507Therefore , based on the foregoing reasons , the Petitioners ' Exception Twelve is

7519denied.

7520EXCEPTION THIRTEEN

7522The Petitioners take exception to paragraphs 257-266 , " to the extent that they

7534conclude groundwater in the vicinity of the discharge wells at KWRU, and groundwater

7547in the vicinity of the golf course storage ponds and irrigation area , will meet groundwater

7562standards with the expanded discharge proposed including maintaining beneficial and

7572reasonable use of adjacent surface waters; and that no enforcement actions indicates

7584that no violations have occurred or will occur under the new expanded discharge ." See

7599Petitioners' Exceptions at pages 64-66.

7604The ALJ's findings in paragraphs 257-266 are supported by competent

7614substantial evidence in the form of expert testimony from David Rhodes (T . Vol. 5, pp .

7631627-631 ) , Christopher Johnson (T . Vol. 1 , pp. 78-79) , Mike Alfieri (T. Vol. 11 , p. 1523;

7648Joint Ex . 73 and 74), and Gary Maier (T. Vol. 13, pp . 1807-1808). See /d.

7665Therefore, based on the foregoing reasons, the Petitioners ' Exception Thirteen is

7677denied .

7679EXCEPTION FOURTEEN

7681The Petitioners take exception to paragraphs 212 , 231 , 237 , 239 , 240, 244 , 245 ,

7694and 253 , " to the extent that these findings and conclusions rely upon dilution in

7708groundwater beyond the property boundary or dilution in surface water to meet water

7721quality standards. " See Petitioners' Exceptions at pages 66-69 . The Petitioners do not

7734provide any legal authority or policy justification for the proposition that the effluent must

7748meet surface water criteria at KWRU's property boundary . It is appropriate for the ALJ

7763to consider dilution of constituents in the subsurface when determining compliance with

7775surface water standards . See , e . g ., Port Antigua Townhouse Ass ' n, Inc . v . Seanic

7795Corp ., 23 F.A . L.R. 661 , 674 (Fla . Dep ' t of Envtl. Prot. 2000) ( " After undergoing chemical

7816reduction in the groundwater as well as extremely high dilution rates , the levels of

7830nitrogen and phosphorous that would be expected ... will be infinitesimal. . . " ).

7844Competent , substantial record evidence supports the ALJ ' s findings with regard

7856to the substantial dilution that is likely to occur in the subsurface and in surface waters.

7872(Alfieri, T . Vol. 11 , pp . 1511-1514 ; Maier , T. Vol. 5, p . 552 ; Rhodes, T. Vol. 5, p. 632) .

7894The Petitioners are correct that Rule 62-620 . 620(2)(g)(l)(c) provides that "permit

7906conditions ensure that dilution will not be used as a substitute for treatment. " However ,

7920the Department interprets this rule to mean that effluent must be treated to the requisite

7935treatment standard (in this case AWT) before injection, and dilution cannot be used to

7949meet the requisite treatment standard . (Maier, T. Vol. 13 , pp . 1795-1797) . Considerable

7964deference should be accorded to the Department's interpretations of statutes and rules

7976within its regulatory jurisdiction, and such interpretations should not be overturned

7987unless " clearly erroneous ." See , e . g ., Falk v. Beard , 614 So.2d 1086 , 1089 (Fla . 1993);

8006Dep't of Envtl . Reg . v. Goldring , 477 So . 2d 532, 534 (Fla . 1985) .

8024Therefore , based on the foregoing reasons , the Petitioners ' Exception Fourteen

8035is denied .

8038EXCEPTION FIFTEEN

8040The Petitioners take except ion to paragraph 264, " because the Healthy Beaches

8052Program does not establish microbial compliance for wastewater treatment plant

8062facilities ." See Petitioners ' Exceptions at pages 69-72 . The competent substantial

8075evidence shows that KWRU utilizes high level disinfection. (Maier, T. Vol. 13, p. 1789) .

8090The ALJ's finding that data from the Healthy Beaches Program shows that no beach

8104closures have been attributed to KWRU is supported by competent substantial

8115evidence. (Maier , T . V ol. 13, pp . 1791-1792) . See, e . g., Southpointe Pharmacy v . Dep ' t

8137of Health and Rehab . Servs ., 596 So.2d 106, 109 (Fla . 1st DCA 1992) (reflecting that it

8156is an abuse of discretion to disregard find i ngs of fa ct that are based on competent

8174substantial evidence) .

8177Therefore, based on the foregoing reasons, the Petitioners ' Exception Fifteen is

8189denied .

8191EXCEPTION SIXTEEN

8193The Petitioners take exception to paragraphs 233 and 234. However, as the ALJ

8206found in those paragraphs , the Petitioners did not present any evidence showing that

8219pharmaceutical or personal care products will be present in the wastewater treatment

8231plant's effluent. The record likewise is devoid of any competent substantial evidence

8243that such constituents are carcinogenic; mutagenic ; or teratogenic to human beings or

8255to significant , locally occurring wildlife or aquatic species; or that they are injurious or

8269chronically toxic to, or produce adverse physiological or behavioral response, in

8280humans, animals , or plants. (RO 233 , 234). See§ 120 . 57(1 )(1) , Fla. Stat. (2015) .

8296Therefore, based on the foregoing reasons , the Petitioners' Exception Sixteen is

8307denied.

8308EXCEPTION EIGHTEEN

8310The Petitioners take exception to paragraphs 320 , 321 , and 323 , " that are based

8323on the interpretation that subsection (h) of section 403.086(1 0) does not impose an

8337affirmative permitting obligation on the DEP when determining how deep to require the

8350discharge well to be cased , or whether to permit the discharge, in the case of a

8366treatment plant in Monroe County with permitted capacity of less than 1 MGD." See

8380Petitioners ' Exceptions at page 75 .

8387As discussed by the ALJ, the plain language of the statute ("[i]f it is demonstrated

8403that a discharge . . . will cause or contribute to a violation of state water quality

8420standards ... " (emphasis added)) , precludes the Petitioners ' interpretation that the

8431statute imposes such an affirmative permitting obligation . The reasonable interpretation

8442set forth by the ALJ conforms to the DEP's interpretation. (Maier, T. Vol. 5, p. 543).

8458Considerable deference should be accorded to the Department's interpretations of

8468statutes and rules within its regulatory jurisdiction , and such interpretations should not

8480be overturned unless " clearly erroneous ." See , e . g ., Falk v . Beard , 614 So . 2d 1086,

85001089 (Fla . 1993); Dep ' t of Envtl . Reg . v . Goldring, 477 So.2d 532 , 534 (Fla . 1985) .

8523Therefore , based on the foregoing reasons , the Petitioners' Except i on Eighteen

8535is denied .

8538EXCEPTION NINETEEN

8540The Petitioners take exception to paragraphs 70 , 85 , 86 , 88 , 89 , 91, 92 , and 328 ,

8555to the extent they assert that " without a capacity analysis report, or capacity analysis

8569report equivalent data , that DEP has been provided with or relied upon data that is

8584sufficient to determine that reasonable assurances have been provided as required by

8596Fla . Admin . CodeR. 62-4 . 030 , 62 - 4 . 070, 62-620.320, and 62- 528 . 630(7) , F . A . C ." See

8622Petitioners ' Exceptions at page 78 .

8629The ALJ ' s findings and conclusions are supported by competent substantial

8641record evidence in the form of expert testimony from Gary Maier (T. Vol. 5, pp . 523-

8658528) . See§ 120.57(1 )(1) , Fla. Stat. (2015); see also Southpointe Pharmacy v. Dep ' t of

8675Health and Rehab . Servs ., 596 So.2d 106, 109 (Fla . 1st DCA 1992) (reflecting that it is

8694an abuse of discretion to disregard findings of fact that are based on competent

8708substantial evidence); Dep ' t of Envtl . Reg . v. Goldring, 477 So . 2d 532 , 534 (Fla . 1985)

8729(reflecting that considerable deference should be accorded to the Department's

8739interpretation of rules within its regulatory jurisdiction) .

8747Therefore, based on the foregoing reasons, the Petitioners ' Exception Nineteen

8758is denied .

8761EXCEPTION TWENTY

8763The Petitioners take exception to paragraphs 64 , 110 , 319 , and 324 , " to the

8776extent that these paragraphs state that KWRU was accurate in the design year 2020 ,

8790flows as being . 0849 MGD AADF . " See Petitioners ' Exceptions at pages 81-83 .

8806Competent substantial evidence was presented by KWRU ' s expert engineer ,

8817Edward Castle , regarding the design year utilized , and the rationale for flow projections

8830developed for the design year . (T. Vol. 3 , pp . 308 , 353-355 , 359-361 , 364-365; Joint Ex .

884842, Bates 0048-0051 ) . See§ 120 . 57(1 )(I) , Fla . Stat. (2015) ; see a/so Southpointe

8865Pharmacy v . Dep ' t of Health and Rehab . Servs ., 596 So . 2d 106 , 109 (Fla . 1st DCA

88881 992) (reflecting that it is an abuse of discretion to disregard findings of fact that are

8905based on competent substantial evidence).

8910Therefore , based on the foregoing reasons , the Petitioners ' Exception Twenty is

8922denied .

8924EXCEPTIONS TWENTY-ONE AND TWENTY-THREE

8928The Petitioners take exception to paragraphs 98 , 100 , 129 , 130, 132, 133, and

8941324 , " to the extent that Fla . Admin . Code R. 62-600 . 400(3)(a) , requirement to consider

8958seasonality of flows is indicated . " See Petitioners ' Exceptions at pages 83 and 91-94 .

8974The Petitioners argue that the "design capacity timeframe metric selected by the

8986applicant ( ' AADF') is not the appropriate metric for design capacity for KWRU ' s

9002expanded discharge , because AADF does not consider sustained peak flows that occur

9014' seasonally ' at the KWRU wastewater treatment plant. " See Petitioners ' Exceptions at

9028page 83.

9030Competent substantial evidence was presented by KWRU's expert engineer ,

9039Edward Castle , regarding the annual average daily flow (AADF) as the appropriate time

9052frame because historical flow records do not show significant seasonal variations in

9064flow . (T. Vol. 3, pp. 314-315, 366 - 369 ; Joint Ex. 79). See§ 120.57(1)(1) , Fla . Stat.

9082(2015); see also Southpointe Pharmacy v . Dep't of Health and Rehab . Servs ., 596

9098So . 2d 106, 109 (Fla. 1st DCA 1992) (reflecting that it is an abuse of discretion to

9116disregard findings of fact that are based on competent substantial evidence) . Further ,

9129DEP ' s expert Gary Maier testified that the variations in flow do not reflect a significant

9146seasonal variation that would require the use of a smaller averaging period than AADF .

9161(T . Vol. 13, p. 1788). See Dep ' t of Envtl . Reg . v. Go l dring, 477 So.2d 532 , 534 (Fla.

91851 985) (reflecting that considerable deference should be accorded to the Department's

9197interpretation of rules within its regulatory jurisdiction).

9204The Petitioners argue that the ALJ should have given more weight to their

9217expert ' s testimony . See Petitioners ' Exceptions at pages 91 - 94. However, the ALJ ' s

9236decision to accept the testimony of one expert witness over that of another expert is an

9252evidentiary ruling that cannot be altered by a reviewing agency , absent a complete lack

9266of any competent substantial evidence of record supporting the decision . See , e.g. ,

9279Peace River/Manasota Regional Water Supply Authority v . fMC Phosphates Co., 18

9291So.3d 1079, 1088 (Fla. 2d DCA 2009) .

9299Therefore , based on the foregoing reasons , the Petitioners ' Exceptions Twenty­

9310One and Twenty-Three are denied .

9316EXCEPTION TWENTY- TWO

9319The Petitioners take exception to paragraphs 114 , 120-125 , 130 , and 324 , on the

9332basis that the ALJ erred in finding Mr. Castle's calculations for future flows were correct.

9347See Petitioners ' Exceptions at pages 84-91 . Competent substantial evidence was

9359presented by KWRU ' s expert engineer , Edward Castle , regarding the rationale for

9372calculating future flows . (T . Vol. 3 , pp . 353-355 , 359-361 , 364-367 ; Joint Ex. 89, Bates

93892955) . See§ 120.57(1 )(1) , Fla . Stat. (2015); see also Southpointe Pharmacy v . Dep ' t of

9408Health and Rehab . Servs. , 596 So.2d 106 , 109 (Fla . 1st DCA 1992) (reflecting that i t is

9427an abuse of discretion to disregard findings of fact that are based on competent

9441substantial evidence).

9443The Petitioners also argue that the ALJ should have given more weight to their

9457expert's testimony . See Petitioners ' Exceptions at pages 88-89 . However , the ALJ ' s

9473decision to accept the testimony of one expert witness over that of another expert is an

9489evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack

9503of any competent substantial evidence of record supporting the decision . See , e . g .,

9519Peace River / Manasota Regional Water Supply Authority v . IMC Phosphates Co. , 18

9533So . 3d 1079 , 1088 (Fla . 2d DCA 2009) .

9544Therefore , based on the foregoing reasons , the Petitioners ' Exception Twenty­

9555Two is denied .

9559EXCEPTION TWENTY-FOUR

9561The Petitioners take exception to paragraphs 55 and 56 of the RO, on the basis

9576of application of the " best evidence rule ." The Petitioners essentially argue that the

9590ALJ's inferences in paragraphs 55 and 56 are not supported by certain documentary

9603evidence . See Petitioners ' Exceptions at pages 94-96 . Contrary to the Petitioners '

9618argument, the competent substantial evidence supporting the ALJ ' s reasonable

9629inferences also include the expert testimony of Edward Castle (T . Vol. 3 , pp . 308 - 309) ,

9647and Christopher Johnson (T. Vol. 1, p. 84). See Heifetz v . Dep ' t of Bus . Reg ., 475 So . 2d

96711277, 1281 (Fla . 1st DCA 1985) (reflecting that it is the ALJ ' s function to draw

9689permissible inferences from the evidence).

9694Therefore , based on the foregoing reasons , the Petitioners ' Exception Twenty­

9705Four is denied .

9709EXCEPTION TWENTY-FIVE

9711The Petitioners take exception to the portion of paragraph 60 of the RO , where

9725the ALJ found the permitted capacity " establishes an absolute limit , on an annual

9738average daily basis, on the quantity of wastewater that can be treated by , and

9752discharged from , the Expanded Wastewater Facility ."

9759The ALJ's finding is supported by competent substantial evidence in the form of

9772expert testimony from Gary Maier (T. Vol. 4, p. 520, lines 4-8) . Paragraph 60 is also a

9790correct statement of the nature of permitted capacity as defined in Rule 62-600.200(49) .

9804The rule provides that permitted capacity " means the treatment , reuse , or disposal

9816capacity for which a facility is approved by Department permit expressed in units of

9830mgd. The permit shall specify the time frame associated with the permitted capacity

9843(e.g., annual average daily flow, monthly average daily flow , three-month average daily

9855flow). " Fla . Admin . Code R. 62-600 . 200(49); see a/so Southpointe Pharmacy v. Dep ' t of

9874Health and Rehab. Servs ., 596 So . 2 d 106 , 109 (Fla . 1st DCA 1992) (reflecting that it is

9895an abuse of discretion to disregard findings of fact that are based on competent

9909substantial evidence) ; Dep ' t of Envtl . Reg . v. Goldring , 477 So.2d 532 , 534 (Fla . 1985)

9928(reflecting that considerable deference should be accorded to the Department's

9938interpretation of rules within its regulatory jurisdiction) .

9946Therefore , based on the foregoing reasons , the Petitioners ' Exception Twenty­

9957Five is denied.

9960EXCEPTION TWENTY-SIX

9962The Petitioners take exception to paragraphs 279 , 280 , 281 , 330 , 333 , 334 , 335,

9975and 344 . The Petitioners argue that " the increased permitted capacity of the reuse

9989system constitutes a ' new or expanded reuse or land application project , ' so that an

10005engineering report and reuse feasibility study were required as part of the applications

10018for the Permit at Issue , . .. " See Petitioners ' Exceptions at pages 98-100.

10032The ALJ ' s findings and conclusions are supported by competent substantial

10044evidence in the form of expert testimony from Edward Castle (T . Vol. 4 , p . 466), David

10062Rhodes (T. Vol. 6 , p. 698) , and Gary Maier (T. Vol. 4 , p. 504 ). See South pointe

10080Pharmacy v . Dep ' t of Health and Rehab . Servs . , 596 So . 2d 106, 109 (Fla. 1st DCA

101021992) (reflecting that it is an abuse of discretion to disregard findings of fact that are

10118based on competent substantial evidence) ; Dep ' t of Envtl. Reg . v . Goldring , 477 So . 2d

10137532 , 534 (Fla . 1985) (reflecting that considerable deference should be accorded to the

10151Department ' s interpretation of rules within its regulatory jurisdiction) .

10162Therefore , based on the foregoing reasons , the Petitioners ' Exception Twenty­

10173Six is denied .

10177EXCEPTION TWENTY-SEVEN

10179The Petitioners take exception to paragraphs 64-67 of the RO , " to the extent that

10193these sections state that . 849 MGD AADF is the appropriate design capacity for the

10208expanded wastewater facility , is the appropriate permitting capacity, and that WWTP

10219and UIC wells meet rule requirements ." See Petitioners' Exceptions at pages 100-101.

10232Competent substantial evidence supports the ALJ ' s findings in paragraphs 64-67

10244in the form of expert testimony from KWRU ' s engineer, Edward Castle (T. Vol. 3, pp.

10261308 - 309, 314-315, 353-354 , 361, 364-369; Joint Exs . 21, 79 , 89 Bates 2955) . See§

10278120 . 57(1 )(I), Fla. Stat. (2015); see also Southpointe Pharmacy v . Dep ' f of Health and

10297Rehab . Servs. , 596 So.2d 106 , 109 (Fla. 1st DCA 1992) (reflecting that it is an abuse of

10315discretion to disregard findings of fact that are based on competent substantial

10327evidence) . Further, DEP's expert Gary Maier testified that the variations in flow do not

10342reflect a significant seasonal variation that would require the use of a smaller averaging

10356period than AADF. (T . Vol. 13 , p. 1788) . See Dep ' t of Envtl. Reg . v . Goldring, 477 So . 2d

10381532 , 534 (Fla . 1985) (reflecting that considerable deference should be accorded to the

10395Department's interpretation of rules within its regulatory jurisdiction).

10403The Petitioners appear to argue that the ALJ should have given more weight to

10417their expert's testimony. See Petitioners ' Exceptions at page 101. However , the ALJ's

10430decision to accept the testimony of one expert witness over that of another expert is an

10446evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack

10460of any competent substantial evidence of record supporting the decision . See , e.g .,

10474Peace River / Manasota Regional Water Supply Authority v . fMC Phosphates Co ., 18

10489So . 3d 1079 , 1088 (Fla . 2d DCA 2009) .

10500Therefore , based on the foregoing reasons, the Petitioners ' Exception Twenty­

10511Seven is denied .

10515CONCLUSION

10516Having reviewed the matters of record , the Exceptions and the Responses , and

10528being otherwise duly advised ,

10532It is therefore ORDERED that:

10537A . The Recommended Order (Exhibit A) is adopted , except as modified by

10550any of the above rulings on Exceptions , and i s incorporated by reference

10563herein.

10564B . Domestic Wastewater Facility Permit FLA014951-012-DWIP is

10572APPROVED ;

10573C . UIC Permits 18490-020 and 18490 - 021 are APPROVED .

10585JUDICIAL REVIEW

10587Any party to this proceeding has the right to seek judicial review of the Final

10602Order pursuant to Section 120.68 , Florida Statutes , by filing a Notice of Appeal pursuant

10616to Rules 9.110 and 9 . 190 , Florida Rules of Appellate Procedure , with the clerk of the

10633Department in the Office of General Counsel, 3900 Commonwealth Boulevard, M . S . 35,

10648Tallahassee , Florida 32399-3000 ; and by filing a copy of the Notice of Appeal

10661accompanied by the applicable filing fees with the approp r iate Distr i ct Court of Appeal.

106783 7

10680The Notice of Appeal must be filed within 30 days from the date this Final Order is filed

10698with the clerk of the Department.

10704DONE AND ORDERED this a Lj.&. day of February , 2016 , in Tallahassee,

10716Florida .

10718STATE OF FLORIDA DEPARTMENT

10722OF ENVIRONMENTAL PROTECTION

10725Secretary

10726Marjory Stoneman Douglas Building

107303900 Commonwealth Boulevard

10733Tallahassee, Florida 32399 - 3000

10738FILED ON THIS DATE PURSUANT TO§ 120.52,

10745FLORIDA STATUTES , WITH THE DESIGNATED

10750DEPARTMENT CLERK , RECEIPT OF WHICH IS

10756HEREBY ACKNOWLEDGED .

10759r.:1 -a LJ-Jt>

10762DATE

10763CERTIFICATE OF SERVICE

10766CERTIFY that a copy of the foregoing Final Order has been sent by electronic

10780mail to :

10783Diana L. Davis , Esquire Barton W . Smith, Esquire

10792Legacy Matters, P .A. Nick Batty , Esquire

10799800 Village Square Crossing, Ste 348 Smith Oropeza Hawks , PL

10809Palm Beach Gardens, FL 3341 0 138-142 Simonton Street

10818legacymatters@outlook.com Key West , FL 33040

10823bart@smithoropeza .com

10825Sidney Bigham , Esquire nick@smithoropeza.com

10829Department of Environmental Protection

108333900 Commonwealth Blvd ., M . S. 35

10841Tallahassee , FL 32399-3000

10844Sidney.bigham@dep . state.fl.us

10847and by electronic filing to:

10852Division of Administrative Hearings

10856The DeSoto Building

108591230 Apalachee Parkway

10862Tallahassee , FL 32399-1550

10865thiS . <.fl. day="" of="" february,="">

10867STATE OF FLORIDA DEPARTMENT

10871OF ENVIRONMENTAL PROTECTION

10874M. FFOLKES

10876Administrative Law Counsel

108793900 Commonwealth Blvd ., M . S . 35

10888Tallahassee , FL 32399-3000

10891Telephone 850/245-2242

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 03/03/2016
Proceedings: Petitioners' Last Stand (Protect Key West and the Florida Keys, d/b/a Last Stand) and George Halloran's Exceptions to the Recommended Order filed.
PDF:
Date: 02/24/2016
Proceedings: Agency Final Order
PDF:
Date: 02/24/2016
Proceedings: Respondent KW Resort Utilities Corp.'s Responses to Petitioners' Last Stand (Protect Key West and the Florida Keys, d/b/a Last Stand and George Halloran's Exceptions to Recommended Order filed.
PDF:
Date: 02/24/2016
Proceedings: Respondent KW Resort Utilities Corp.'s Responses to Respondent State of Florida Department of Environmental Protection's Exceptions to Recommended Order filed.
PDF:
Date: 02/24/2016
Proceedings: Florida Department of Environmental Protection's Responses to Petitioners', Last Stand and George Halloran, Exceptions filed.
PDF:
Date: 02/24/2016
Proceedings: State of Florida Department of Enviornmental Protection's Exceptions to Recommended Order filed.
PDF:
Date: 02/24/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 02/11/2016
Proceedings: Respondent KW Resort Utilities Corp.'s Responses to Petitioners' Last Stand (Protect Key West and the Florida Keys d/b/a Last Stand) and George Halloran's Exceptions to Recommended Order filed.
PDF:
Date: 02/11/2016
Proceedings: Respondent KW Resort Utilities Corp.'s Responses to Respondent State of Florida Department of Environmental Protection's Exceptions to Recommended Order filed.
PDF:
Date: 01/26/2016
Proceedings: Petitioners' Motion for Additional Time to File Exceptions and Responses filed.
PDF:
Date: 01/15/2016
Proceedings: Recommended Order
PDF:
Date: 01/15/2016
Proceedings: Recommended Order (hearing held April 28-May 1, 11-15 and 18-19 , 2015). CASE CLOSED.
PDF:
Date: 01/15/2016
Proceedings: Order on Motions for Attorney`s Fees and Sanctions.
PDF:
Date: 01/15/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 10/01/2015
Proceedings: Florida Department of Environmental Protection's Correction to Proposed Recommended Order filed.
PDF:
Date: 08/17/2015
Proceedings: Department of Environemntal Protection's Response in Opposition to Petitioners' Motion for Attorneys Fees and Costs filed.
PDF:
Date: 08/17/2015
Proceedings: KW Resort Utilities Corp.'s Motion to Strike Petitioners' Motion for Attorneys Fees and Costs filed.
PDF:
Date: 08/17/2015
Proceedings: Affidavit in Support of Petitioners Motion for Attorney Fees filed.
PDF:
Date: 08/10/2015
Proceedings: Last Stand and George Halloran Petitioners' Motion for Attorneys Fees and Costs from Respondents filed.
PDF:
Date: 07/27/2015
Proceedings: Last Stand and George Halloran Petitioners' Response in Opposition to Respondent's Motion for Sanctions filed.
PDF:
Date: 07/23/2015
Proceedings: Notice of Mailing Petitioner's Proposed Recommended Order to Doah and USB Flash Drive filed.
PDF:
Date: 07/20/2015
Proceedings: Petitioners' Proposed Recommended Order filed.
PDF:
Date: 07/20/2015
Proceedings: Notice of Filing Affidavit of Christopher Johnson filed.
PDF:
Date: 07/20/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Motion for Sanctions Against Petitioners (Protect Key West and the Florida Keys d/b/a Last Stand) and George Halloran filed.
PDF:
Date: 07/20/2015
Proceedings: (Respondent's) Proposed Recommended Order filed.
PDF:
Date: 07/20/2015
Proceedings: Florida Department of Environmental Protection's Proposed Recommended Order filed.
PDF:
Date: 06/22/2015
Proceedings: Petitioners' Voluntary Withdrawal of Motion for Attorneys Fees and Costs Under 57.105 without Prejudice and Response in Opposition to Motion to Strike and for Fees and Costs filed.
PDF:
Date: 06/22/2015
Proceedings: Notice of Filing Transcript.
PDF:
Date: 06/17/2015
Proceedings: (Respondents') Notice of Mailing Transcripts filed.
PDF:
Date: 06/17/2015
Proceedings: Respondents' Joint Motion to Strike Petitioners' Motion for Attorneys Fees and Costs filed.
PDF:
Date: 06/16/2015
Proceedings: Last Stand and George Halloran Petitioners' Motion for Attorneys Fees and Costs filed.
PDF:
Date: 06/08/2015
Proceedings: Order Granting Extension of Time for Filing and Extending Page Limit of Proposed Recommended Orders.
PDF:
Date: 06/04/2015
Proceedings: Respondents' Joint Opposition to Petitioners' Motion for Additional Time and Pages filed.
PDF:
Date: 06/04/2015
Proceedings: (Respondent's) Notice of Mailing Exhibits filed.
PDF:
Date: 06/04/2015
Proceedings: Petitioners' Motion Regarding Post Hearing Submittals Request for Additional Time and Pages filed.
PDF:
Date: 05/28/2015
Proceedings: DEP's (Proposed) Trial Exhibits (exhibits not available for viewing) filed.
PDF:
Date: 05/27/2015
Proceedings: Notice of Mailing Petitioner's (Proposed) Exhibits to Doah (not available for viewing) filed.
PDF:
Date: 05/15/2015
Proceedings: Notice of Telephonic Final Hearing (hearing set for May 18 and 19, 2015; 1:00 p.m.).
PDF:
Date: 05/08/2015
Proceedings: Order Allowing Testimony by Telephone.
PDF:
Date: 05/07/2015
Proceedings: State of Florida Department on Environmental Motion for Leave to Allow Testimony by Telephone filed.
PDF:
Date: 05/04/2015
Proceedings: Notice of Telephonic Status Conference (status conference set for May 6, 2015; 2:30 p.m.).
PDF:
Date: 05/04/2015
Proceedings: Notice of Hearing (hearing set for May 11 through 15, 2015; 9:00 a.m.; Key West, FL).
PDF:
Date: 04/24/2015
Proceedings: Joint Pre-hearing Stipulations filed.
PDF:
Date: 04/24/2015
Proceedings: Order Granting Motion to Quash.
PDF:
Date: 04/24/2015
Proceedings: Order Granting Motion in Limine to Exclude Evidence.
PDF:
Date: 04/24/2015
Proceedings: Petitioners Unopposed to the Florida Department of Environmental Protection Emergency Motion to Quash Subpoenas filed.
PDF:
Date: 04/24/2015
Proceedings: Florida Department of Environmental Protection's Emergency Motion to Quash Subpoenas filed.
PDF:
Date: 04/24/2015
Proceedings: Notice of Filing Subpoena Duces Tecum Requiring Witness Appearance at Final Hearing filed.
PDF:
Date: 04/23/2015
Proceedings: Order Cancelling Telephonic Motion Hearing.
PDF:
Date: 04/23/2015
Proceedings: Amended Notice of Telephonic Motion Hearing (motion hearing set for April 23, 2015; 11:30 a.m.; amended as to date time and conference line information).
Date: 04/22/2015
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 04/21/2015
Proceedings: Petitioners Objection and Memorandum in Support of the Objection to Respondent Applicant KW Resort Utilties Corp.'s Motion in Limine to Limit Petitioners' Expert Witness' Opinions and Exclude Evidence filed.
PDF:
Date: 04/21/2015
Proceedings: Respondents' Joint Objection and Response in Opposition to Petitioners' Motion to Correct Exhibits and Exhibits List filed.
PDF:
Date: 04/21/2015
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for April 21, 2015; 3:00 p.m.).
PDF:
Date: 04/21/2015
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for April 24, 2015; 3:00 p.m.).
PDF:
Date: 04/21/2015
Proceedings: Motion to Correct Petitioners' Exhibits and Exhibits List filed.
PDF:
Date: 04/17/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Motion in Limine to Limit the Petitioners' Expert Witness' Opinions and Exclude Evidence filed.
PDF:
Date: 04/07/2015
Proceedings: Order Denying Petitioners` Objection Regarding Video of KW Resort Utilities Corp. Facilities.
Date: 04/07/2015
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 04/06/2015
Proceedings: Undeliverable envelope returned from the Post Office.
PDF:
Date: 04/06/2015
Proceedings: Order Allowing Testimony by Telephone.
PDF:
Date: 04/06/2015
Proceedings: Notice of Service of Petitioner George Halloran's Amended Response to Respondent Applicant's Second Set of Interrogatories filed.
PDF:
Date: 04/06/2015
Proceedings: Order Denying Motion to Strike Expert Witness John Paul.
PDF:
Date: 04/03/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Opposition to Petitioners' Motion for Leave of Court to Accept Expert Witness Testimony by Telephone at the Hearing filed.
PDF:
Date: 04/03/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Opposition to Petitioners' Improperly Titled Motion to Exclude Video of Tour of Wastewater Treatment Facility and Retention Ponds filed.
PDF:
Date: 04/02/2015
Proceedings: Order on Motion to Compel.
Date: 04/01/2015
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 03/31/2015
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for April 1, 2015; 1:00 p.m.).
PDF:
Date: 03/30/2015
Proceedings: Petitioners' Objection to Respondent KW Resort Utilities Corp.'s Motion to Strike Expert Witness Testimony filed.
PDF:
Date: 03/30/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Motion to Strike Petitioners' Expert John Paul and for Sanctions filed.
PDF:
Date: 03/30/2015
Proceedings: (Petitioners') Motion for Leave of Court to Allow Certain Petitioners' Expert Witnesses to Appear by Telephone at the Hearing filed.
PDF:
Date: 03/30/2015
Proceedings: Petitioners' Objection to Respondent KW Resort Utilities Corp.'s Plant Video Tour of KW Resort Utilities Corp.'s Wastewater Treatment Facility and Key West Golf Course Retention Ponds filed.
PDF:
Date: 03/30/2015
Proceedings: Notice of Service of Petitioner George Halloran's Notice of Response to Respondent Applicant's Second Set of Interrogatories filed.
Date: 03/27/2015
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 03/27/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Opposition to Petitioners' Motion to Compel Responsive Answers to Initial Interrogatories and Initial Production Request, or Alternatively, Leave of Court is Requested to Propound Additional Interrogatories and Request for Production and Petitioners' Request a Motion to Compel Expedited Response to the Amended Interrogatories and Request for Production and Memorandum of Law in Support filed.
PDF:
Date: 03/26/2015
Proceedings: Order Denying Motion to Strike Petitioners` Experts Fourqurean and Zedneck.
PDF:
Date: 03/25/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Notice of Cancellation of Deposition (of William Lynch) filed.
PDF:
Date: 03/25/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Witness List filed.
PDF:
Date: 03/24/2015
Proceedings: Petitioners' Protect Key west and the Florida Keys, d/b/a Last Stand and George Halloran, Witness List filed.
PDF:
Date: 03/24/2015
Proceedings: Respondent KW Resort Utilities Corp's Witness List filed.
PDF:
Date: 03/24/2015
Proceedings: Florida Department of Environmental Protection's Witness List filed.
PDF:
Date: 03/24/2015
Proceedings: Petitioners' Objection and Memorandum in Support of the Objection to Respondent Applicant KW Resort Utilities Corp.'s Motion to Strike Petitioners' Experts James Fourqurean and Scott Zednek filed.
PDF:
Date: 03/24/2015
Proceedings: Petitioners' Motion to Compel Responsive Answers to Initial Interrogatories and Initial Production Request, or Alternatively, Leave of Court is Requested to Propound Additional Interrogatories and Request for Production and Petitioners' Request a Motion to Compel Expedited Responses to the Amended Interrogatories and Request for Production and Memorandum of Law in Support filed.
PDF:
Date: 03/24/2015
Proceedings: Order Granting Respondent KWRU`s Motion to Compel.
PDF:
Date: 03/23/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Amended Motion to Strike Petitioners' Experts James Fourqurean and Scott Zedneck filed.
PDF:
Date: 03/23/2015
Proceedings: Notice of Telephonic Status Conference (status conference set for March 27, 2015; 4:00 p.m.).
PDF:
Date: 03/23/2015
Proceedings: Petitioners' Objection to Respondent Applicant's Motion to Compel Responses to Additional Interrogatories and Objection to Attempt to Waive Petitioners' Attorney Client Work Product Privilege filed.
PDF:
Date: 03/23/2015
Proceedings: Petitioners' Notice of Cancellation of Deposition (of William Precht) filed.
PDF:
Date: 03/23/2015
Proceedings: Respondent KW Resort Utilities Corp's Motion to Strike Petitioners' Experts James Fourqurean and Scott Zedneck filed.
PDF:
Date: 03/23/2015
Proceedings: Respondent's Notice of Cancellation of Deposition (James Fourqurean) filed.
PDF:
Date: 03/23/2015
Proceedings: Respondent's Notice of Cancellation of Deposition (Scott Zedneck) filed.
PDF:
Date: 03/20/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Motion to Compel filed.
PDF:
Date: 03/20/2015
Proceedings: Order on Motion for Protective Order.
PDF:
Date: 03/19/2015
Proceedings: Petitioners' Motion to Compel Responsive Answers to Interrogatoriesand Production Request and Memorandum of Law in Support filed.
Date: 03/19/2015
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 03/19/2015
Proceedings: Florida Department of Environmental Protection's Emergency Motion for Protective Order filed.
PDF:
Date: 03/18/2015
Proceedings: Notice of Service of Respondent KW Resort Utilities Corp.'s Responses to Petitioner Last Stand (Protect Key West and the Fllorida Keys, d/b/a Last Stand) and George Halloran's Second Set of Interrogatories filed.
PDF:
Date: 03/16/2015
Proceedings: Petitioners' Exhibits 1-7 filed (Filed in error).
PDF:
Date: 03/13/2015
Proceedings: Notice of Service of Amended Responses filed.
PDF:
Date: 03/13/2015
Proceedings: Notice and Certificate of Service of Respondent DEP's Response to Second Set of Interrogatories to Petitioner Last Stand (Protect Key West and the Florida Keys, d/b/a Last Stand) and George Halloran filed.
Date: 03/13/2015
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 03/12/2015
Proceedings: Notice of Service Petitioners' Second Interrogatories to Respondent Department of Environmental Protection filed.
PDF:
Date: 03/12/2015
Proceedings: Notice of Depositions (of Naja D'Albissin and George Halloran) filed.
PDF:
Date: 03/10/2015
Proceedings: Notice of Telephonic Pre-hearing Conference (set for March 13, 2015; 11:00 a.m.).
PDF:
Date: 03/09/2015
Proceedings: Petitioners' Objection to Respondent KW Resort Utilities Corp.'s Invitation to Court and All Parties to Tour KW Resort Utilities Corp.'s Wastewater Treatment Facility and Key West Golf Course Retention Ponds filed.
PDF:
Date: 02/09/2015
Proceedings: Order Denying Motion to Compel and Granting Protective Order.
PDF:
Date: 02/06/2015
Proceedings: Notice of Serving Respondent KW Resort Utilities Corp.'s Second Set of Interrogatories to Petitioner George Halloran filed.
PDF:
Date: 02/04/2015
Proceedings: Notice of Respondent KW Resort Utilities Corp.'s Invitation to Court and All Parties to Tour KW Resort Utilities Corp's Wastewater Treatment Facility and Key West Golf Club Retention Ponds filed.
PDF:
Date: 02/03/2015
Proceedings: Department of Environmental Protection's Response to Petitioners' First Request for Production of Documents filed.
PDF:
Date: 02/03/2015
Proceedings: Notice of Service of Respondent, Department of Environmental Protection's, Answers to Petitioners' First Set of Interrogatories filed.
PDF:
Date: 01/30/2015
Proceedings: Notice of Service of Respondent KW Resort Utilities Corp.'s Responses to Petitioner Last Stand (Protect Key West and the Florida Keys, d/b/a Last Stand) and George Halloran's First Set of Interrogatories filed.
PDF:
Date: 01/30/2015
Proceedings: Notice of Service of Respondent KW Resort Utilities Corp.'s Responses to Petitioner Last Stand (Protect Key West and the Florida Keys, d/b/a Last Stand) and George Halloran's First Set of Interrogatories filed.
PDF:
Date: 01/30/2015
Proceedings: Notice of Service of Petitioner, Last Stand's Response to Respondent Applicant's Request for Production filed.
PDF:
Date: 01/29/2015
Proceedings: Notice of Service of Petitioner Halloran's Response to Respondent Applicant's First Set of Interrogatories filed.
PDF:
Date: 01/29/2015
Proceedings: Notice of Service of Petitioner Last Stand Response to Respondent Applicant's First Set of Interrogatories filed.
PDF:
Date: 01/27/2015
Proceedings: Notice of Service of Petitioners' Response to Respondent Florida Department of Environmental Protection's First Set of Interrogatories filed.
PDF:
Date: 01/27/2015
Proceedings: Notice of Service of Petitioners' Response to First Set of Production Request by Respondent Florida Department of Environmental Protection filed.
PDF:
Date: 01/22/2015
Proceedings: Respondent KW Resort Utilities Corp.'s Written Objection to Petitioners' Request for Entry Upon Land for Inspection and Other Purposes and Motion for Protective Order filed.
PDF:
Date: 01/16/2015
Proceedings: (Proposed) Agreed Order Granting Petitioners an Extension of Time to Respond to Respondent KW Resort Utilities Corp.'s First Requests for Production and First Sets of Interrogatories filed.
PDF:
Date: 01/13/2015
Proceedings: State of Florida Department of Environmental Protection's Response and Objections to Petitioner's Motion to Compel filed.
Date: 01/09/2015
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 01/08/2015
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for April 28 through May 1, 2015; 9:00 a.m.; Key West, FL).
PDF:
Date: 01/08/2015
Proceedings: Notice of Telephonic Status Conference (status conference set for January 9, 2015; 3:15 p.m.).
PDF:
Date: 01/08/2015
Proceedings: Petitioners' Motion to Compel Applicant to Allow Entry Upon Land for Inspection and Other Purposes and Memorandum in Support filed.
PDF:
Date: 01/07/2015
Proceedings: Joint Motion to Reschedule Hearing filed.
Date: 01/06/2015
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 12/31/2014
Proceedings: Request for Entry Upon Land for Inspection and Other Purposes filed.
PDF:
Date: 12/29/2014
Proceedings: Order Granting Motion for Leave to Accept Second Amended Verified Petition.
PDF:
Date: 12/29/2014
Proceedings: Order Denying Amended Motion to Dismiss or in the Alternative Motion to Strike.
PDF:
Date: 12/29/2014
Proceedings: Notice of Telephonic Status Conference (status conference set for January 6, 2015; 4:00 p.m.).
PDF:
Date: 12/29/2014
Proceedings: Petitioners' First Set of Interrogatories to Respondent Applicant KW Resort Utilities Corporation filed.
PDF:
Date: 12/29/2014
Proceedings: Notice of Petitioners' First Set of Interrogatories to Respondent Applicant KW Resort Utilities Corporation filed.
PDF:
Date: 12/29/2014
Proceedings: Petitioners' First Request for Production to Respondent Applicant KW Resort Utilities Corporation filed.
PDF:
Date: 12/29/2014
Proceedings: (Petitioners') Second Amended Verified Petition for Formal Administrative Hearing, Request for Mediation & Motion to Intervene filed.
PDF:
Date: 12/29/2014
Proceedings: (Petitioners') Motion for Leave of Court to Accept Second Amended Verified Petition filed.
PDF:
Date: 12/17/2014
Proceedings: Petitioners' First Set of Interrogatories to Respondent Florida Department of Environmental Protection filed.
PDF:
Date: 12/17/2014
Proceedings: Notice of Service of Petitioners' First Set of Interrogatories to Respondent Florida Department of Environmental Protection filed.
PDF:
Date: 12/17/2014
Proceedings: Petitioners' First Request for Production of Documents to Respondent Department of Environmental Protection filed.
PDF:
Date: 12/16/2014
Proceedings: Notice of Serving Respondent KW Resort Utilities Corp.'s First Set of Interrogatories to Petitioner George Halloran filed.
PDF:
Date: 12/15/2014
Proceedings: Notice of Serving Respondent KW Resort Utilities Corp.'s First Set of Interrogatories to Petitioner Last Stand (Protect Key West and the Florida Keys, d/b/a Last Stand) filed.
PDF:
Date: 12/15/2014
Proceedings: Petitioners' Objection and Memorandum in Support of the Objection to Respondent's Applicant's Motion to Dismiss or in the Alternative Motion to Strike filed.
PDF:
Date: 12/09/2014
Proceedings: Amended Notice of Appearance for State of Florida Department of Environmental Protection (Sidney C. Bigham,III, Benjamin M. Melnick, and Glenn W. Rininger, III) filed.
PDF:
Date: 12/08/2014
Proceedings: Respondent Department of Environmental Protection's First Request for Production of Documents to Petitioners filed.
PDF:
Date: 12/08/2014
Proceedings: Notice of Service of Florida Department of Environmental Protection's First Set of Interrogatories to Petitioners filed.
PDF:
Date: 12/05/2014
Proceedings: Respondent KW Resort Utilities Corp.'s Amended Motion to Dismiss or in the Alternative Motion to Strike filed.
Date: 12/05/2014
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 12/04/2014
Proceedings: Respondent KW Resort Utilities Corp.'s Motion to Dismiss or in the Alternative Motion to Strike filed.
PDF:
Date: 12/03/2014
Proceedings: Notice of Telephonic Status Conference (status conference set for December 5, 2014; 2:30 p.m.).
PDF:
Date: 11/26/2014
Proceedings: Notice of Telephonic Status Conference (status conference set for December 1, 2014; 3:30 p.m.).
PDF:
Date: 11/26/2014
Proceedings: Amended Order of Pre-hearing Instructions.
PDF:
Date: 11/25/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 11/25/2014
Proceedings: Notice of Hearing (hearing set for February 16 through 20, 2015; 9:00 a.m.; Key West, FL).
Date: 11/21/2014
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 11/20/2014
Proceedings: Notice of Telephonic Scheduling Conference (status conference set for November 21, 2014; 2:00 p.m.).
PDF:
Date: 11/19/2014
Proceedings: Notice of Transfer.
PDF:
Date: 11/18/2014
Proceedings: Respondents' Amended Notice of Appearance and Designation of Email Addresses Pursuant to Florida Rule of Judicial Administration 2.516 filed.
PDF:
Date: 11/18/2014
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 11/17/2014
Proceedings: Notice of Appearance (Benjamin Melnick) filed.
PDF:
Date: 11/13/2014
Proceedings: Initial Order.
PDF:
Date: 11/13/2014
Proceedings: Notice of Intent filed.
PDF:
Date: 11/13/2014
Proceedings: Amended Petition for Formal Administrative Hearing, Request for Mediation, and Motion to Intervene filed.
PDF:
Date: 11/13/2014
Proceedings: Request for Assignment of Administrative Law Judge and Notice of Preservation of Record filed.

Case Information

Judge:
CATHY M. SELLERS
Date Filed:
11/13/2014
Date Assignment:
11/18/2014
Last Docket Entry:
03/03/2016
Location:
Key West, Florida
District:
Southern
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (1):

Related Florida Statute(s) (12):

Related Florida Rule(s) (5):