10-003100 Panagioti Tsolkas, Alfred Lark, And Christian Minaya vs. The David Minkin Florida Realty Trust, Richard Thall, Robert Thall, Peter L. Briger, Paul H. Briger, The Lester Family Investments, Lp, Palm Beach County, And South Florida Water Management District Status: Closed Recommended Order on Tuesday, November 30, 2010.

Summary: Applicants provided reasonable assurances that rule criteria satisfied for conceptual approval for an ERP for a surface water management system for Scripps project in Palm Beach County.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PANAGIOTI TSOLKAS AND CHRISTIAN )

MINAYA, )

)

Petitioner s, )

)

vs. ) Case No. 10 - 3100

)

THE DAVID MINKIN FLORIDA REALTY )

TRUST, RICHARD THALL, ROBERT )

THALL, PETER L. BRIGER, PAUL H. )

BRIGER, THE LESTER FAMILY )

INVESTMENTS, LP, PALM BEACH )

COUNTY, AND SOUTH FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent s. )

_______________________________ _ )

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Ad ministrative Hearings by its assigned

Administrative Law Judge, D . R. Alexander, on October 5 and 6 ,

20 10, in West Palm Beach , Florida.

APPEARANCES

For Petitioner : Panagioti Tsolkas, pro se

(Tsolkas) 822 North C Street

Lake Worth, Florida 33460 - 2437

For Petitioner: Christian Minaya, pro se

(Minaya) 901 North Federal Highway, Apartment A

Lake Worth, Florida 33460 - 2695

For Respondent : Susan Roeder Martin, Esquire

(District) Sou th Florida Water Management District

3301 Gun Club Road

Mail Stop 1410

West Palm Beach, Florida 33406 - 3007

For Respondent: Amy Taylor Petrick, Esquire

(County) Andrew J. McMahon, Esquire

Palm Beach County Attorney's Office

300 North Dixie Highway, Suite 359

West Palm Beach, Florida 33401 - 4605

For Respondents: Brian B. Joslyn , Esquire

( Briger Group) Casey Ciklin Lubitz

Martens & O'Connell

515 North Flagler Drive, 20th Floor

West Palm Beach , Florida 33401 - 4330

ISSUE

The issue is whether to approve an application by

Respondent s , Palm Beach County (County) and The David Minkin

Florida Realty Trust, Richard Thall, Robert Thall, Peter L.

Briger, Paul H. Briger, and The Lester Family Investments, LP

(The Briger Group ) , for a conceptual Environmental Resource

Permit (ERP) authorizing a surface water management system to

serve a mixed - use development in the City of Palm Beach Gardens

known as Scripps Florida Phase II/Briger (Scripps project) .

PRELIMINARY STATEMENT

On April 16, 20 10 , Respondent, South Florida Water

Management District (District), through a Staff Report, provid ed

Notice of its Intended Agency Action to approve an application

by the County and The Briger Group for a conceptual ERP to

construct and operate a surface water management system to serve

a mixed use development at the Scripps project. On April 21,

2010 , Petitioners (then numbering eight , but now numbering two )

filed their first Petition /Request for Administrative Hearing. 1

Th at filing was dismissed without prejudice by the District on

May 4, 2010, for failing to meet the minimum pleading

requirements f or an administrative hearing. On May 4, 2010,

minor revisions to the Staff Report were made by the District .

A second Petition / Request for Administrative Hearing (Petition)

was filed by Petitioners on May 19, 2010 , generally contending

that the applicant s had failed to provide reasonable assurance

that the permitting criteria would be satisfied . The Petition

was forwarded by the D istrict t o the Division of Administrative

Hearings on May 19, 2010, with a request that an administrative

law judge be assigne d to conduct a hearing. The District's

Order of Transmittal noted, however, that except for Chapter

373, Florida Statutes , none of the other statutes cited by

Petitioners as grounds for reversing the agency action were

within the District's jurisdiction; also, five other sources of

authority for reversing the agency action cited in the pleading

were determined to be beyond the District's permitting

jurisdiction. 2 By Notice of Hearing dated June 14, 2010, a final

hearing was scheduled on October 5 - 7, 2010, in West Palm Beach,

Florida.

On October 1, 2010, the parties filed a Jo int Prehearing

Stipulation (Stipulation). At the final hearing, Petitioner

Tsolksas testified on his own behalf. Also, he offered

Petitioner Ó s Exhibit s 1 and 2. Exhibit 2 was rec eived, subject

to hearsay and relevanc e objections , while Exhibit 1 was

received only as a proffer . 3 Petitioner Minaya adopted the

evidence presented by Tsolksas. A lfred Lark , one of the

original petitioners, did not file a notice of voluntary

dismissal or attend the final hearing. Accordingly, at the

hearing, Respondents' request to dismiss him as a party was

granted. The Briger Group and t he County jointly presented the

testimony of Ken Tu m a, a planning and landscape architect with

Urban Design Kilday Studios and accepted as an expert; Fred erick

Roth, Jr., a professional engineer with Michael B. Schorah &

Associates, Inc. , and accepted as an expert; Mary Lin dg ren, a n

environmental consultant with Environmental Services, Inc. , and

accepted as an expert; Edward R. Weinberg, a n environmental

consultant with EW Consultants, Inc. , and accepted as an expert;

and Robert S. Carr, Executive Director of the Archaeological and

Historical Conservancy, Inc. , and accepted as an expert. The

District presented the tes timony of Anita R. Bain, D irector of

the Environmental Resource Permit Division and accepted as an

expert; and Anthony M. Waterhouse, Deputy Director of the Water

Resource Regulat ion Department and accepted as an expert .

Respondents jointly presented Resp ondents' Exhibits 1 - 3, 5, 14,

14A, 14B, 3 3 , 35, 42, 43, 48 - 51, 54a, 54b, 54d, 55, 57, 58, and

60, which were received in evidence.

P ursuant to the District's request, the undersigned took

official recognition of Florida Administrative Code Chapter 40E -

4 a n d the B asis of Review for Environmental Resource Permit

Applications Within the South Florida Water Management District

(B OR ) in effect as of November 11, 2009.

The T ranscript of the hearing ( four volumes) was filed on

October 2 2 , 2009. P roposed r ecommend ed o rders were due no later

than November 12, 2010, and were jointly filed by the County and

The Briger Group on November 10, 2010, the District on

November 1 2 , 20 10 , and Petitioners on November 15, 2010 . A ll

filings have been considered in the preparat ion of this

Recommended Order.

Finally, on October 1, 2010, The Briger Group filed a

Motion for Entry of an Order Finding the Lester Respondents [ The

Briger Group] Entitled to Recover Attorney's Fees Under

§ 57.105, Fla. Stat. (Notice of intent to file such a motion

was served on all Petitioners on September 8, 2010.) That issue

is addressed in the Conclusions of Law.

FINDINGS OF FACT

Based on the evidence presented by the parties, the

following findings of fact are made:

A. The Parties

1. Pet itioner T solkas resides at 822 North C Street, Lake

Worth, Florida , which is approximately 16.8 miles (in a straight

line) south - southeast of the project site and approximately one

mile west of the Intracoastal Waterway (ICW). Among others, h e

expressed c oncerns in this case about the potential extinction

of species and the impact of the proposed site on the ICW.

However, other than a general interest in environment al issues,

he presented no evidence to demonstrate how he is affected by

the issuance of th e permit.

2. Petitioner Minaya resides at 901 North Federal Highway,

Apartment A, Lake Worth, Florida , and approximately the same

distance from the project site and ICW . He has the same

concerns as Petitioner Tsolkas but presented no evidence to

demonstr ate how the project will affect his substantial

interests .

3. The County is a chartered county and a political

subdivision of the state. It owns approximately 70.0 acres of

the site on which the Scripps project will be located and the

193.92 - acre off - sit e mitigation area for the project at the Pine

Glades Natural Area (Pine Glades) . It is a co - applicant for an

ERP.

4. The Briger Group is a co - applicant for the modified ERP

and owns 611.69 acres of the project site. The original permit

that is being mod ified was issued as conceptual approval on

January 19, 1978.

5. The District is a public corporation in the State,

having been created by special act in 1949 and operating

pursuant to Chapter 373, Florida Statutes.

B . The Application

6. On April 27, 2009, the applicants submitted an

application to modify a co nceptual ERP, Application No. 090427 -

7, for a surface water management system to serve 681.89 acres

of mixed - use development in the City of Palm Beach Gardens

(City) . The original permit was als o issued as a conceptual

approval in 1978 and has been modified conceptually on a number

of occasions, most recently in 2001 . The application includes

193.92 acres of off - site mi tigation at Pine Glades in the

northern part of the County and additional off - site mitigation

through the purchase of mitigation credits at the Loxahatchee

Mitigation Bank in the southern part of the County.

7. "Conceptual approval" means "an [ERP], issued by the

District Governing Board, which approves a conceptual master

plan for a surface water management system or a mitigation

bank." Fla. Admin. Code R. 40E - 4.021(5). It constitutes final

agency action and is "binding to the extent that adequate data

has been made available for review by the applicant during the

review proce ss." Id. After conceptual approval is obtained,

the applicants must then file an application for an ERP to

construct and operate the surface water management system.

Therefore, no construction will be authorized by this permit.

8. On April 16, 2010, th e District issued a Staff Report

recommending approval of the requested ERP. A Revised Staff

Report making minor changes and clarifications to the original

proposed agency action was issued on May 4, 2010 .

C. The Project and the Site

9. The proposed p roject that will be served by the surface

water management system is a multi - use development on a 681 - acre

tract located south of Donald Ross Road and north of Hood Road

in the City. The site is divided by Interstate 95 (I - 95) into

two wedge - shaped parcel s known as the western and eastern

parcel s . The Florida Turnpike adjoins the w estern side of the

western parcel . With the exception of the highways, the site is

surrounded by residential development including two projects

located just east of the site: Legends at the Gardens ( on the

northern side ) and San Michele ( on the southern side ) .

10. A portion of the site located east of I - 95 is mostly

undeveloped and vegetated. However, approximately 60 acres

located at the southeast corner of the site include an existing

horse farm with improved and unimproved pastures. The central

and southern portions of this parcel contain a number of ditches

that were created prior to the 1950s. The portion of the site

west of I - 95 is undeveloped and vegetated, but it als o includes

a few mobile homes on approximately 2 acres at the southern end

of the site.

11. The upland habitats are disturbed and degraded and

primarily include pine flatwoods, mixed hardwood - pine forest,

hardwood hammock, and dry prairie, some of which a re infested

with Brazilian pepper, Australian pine , and Japanese climbing

fern. There are also around 86 acres of state jurisdictional

wetlands and other surface waters. Finally, the southwestern

portion of the parcel located west of I - 95 contains a

preh istoric/archaeological site which is proposed for

preservation.

1 2 . The County owns 70 acres of the property on the

eastern parcel, while T he Briger Group owns the remaining

acreage. The project is anticipated to house the Scripps

Research Institute, as well as ancillary institutional,

commercial, and residential uses. The project received

development of regional impact approval from the City on

April 1, 2010, and is subject to a master plan that identifies

land use districts, such as a biotech distri ct, a town center

district, residential districts, and a neighborhood - serving

commercial district.

1 3 . The 70 acres owned by the County will be used to house

the second phase of the Scripps Research Institute. It is

unknown at this time whether the Scri pps facility will house

administrative offices, laboratory space, or some other use.

The build - out schedule for the project is twenty years.

1 4 . Before construction can commence, the applicants will

be required to obtain zoning and site plan approval fro m the

City, authorization from both the Northern Palm Beach County

Improvement District (Improvement District) and the Seacoast

Utility Authority, and a permit from the County Health

Department. Also, the applicants will be required to receive a

construct ion - related modification to the ERP from the District.

D . The Surface Water Management System

15. In 2001, the District issued a permit to the

Improvement District for conceptual approval of a surface water

management system for flood protection within a 4,059.9 - acre

area known as Unit 2, which includes the area of the proposed

project. See Respondents' Exhibit 57. D rainage from the

project site is presently covered by this permit. The

Improvement District's system was designed, constructed, and is

bei ng operated and maintained for stormwater treatment. The

waters in that system are not considered waters of the State.

16. The proposed project will discharge into the

Improvement District's system , which is upstream of a permitted

man - made control struc ture on the property designed to retain or

detain stormwater runoff in order to provide treatment and

attenuation of the stormwater.

17. The proposed system is primarily a wet detention

system consisting of three large basins: A1, B1E (East) , and

B1W (West ) . The system has been designed to provide water

quality and storm water attenuation prior to overflowing to the

Improvement District's Unit 2 master system. As shown in the

conceptual plans, Basin B1W is located on the west side of I - 95

and has a contro l elevation of 13.5 feet National Geodetic

Vertical Datum ( NGVD ) . Mostly residential development is

anticipated in this basin with a small supporting commercial

development. An existing 60 - inch culvert located under I - 95

will continue to connect the two wetland areas, identified as W1

and W2, that are located on both the west and east sides of I -

95, respectively.

18. Basin B1E is located in the southeastern portion of

the site and will be controlled at 13.0 feet NGVD. Anticipated

development in this a rea will be mostly residential

neighborhoods as well. Exhibit 2 of the Staff Report reflects

that runoff from the out - parcels and the northern half of Hood

Road will be directed into the proposed project area. Pervious

and impervious assumptions were mad e for future Hood Road

improvements and are listed in the land use table. See

Respondents' Exhibit 43 at p. 3 of 26. Basin B1E will overflow

into the Unit 2 master system via a control structure and

outfall pipe which discharges to a wet pond located wit hin the

adjacent San Michele development to the east.

19. Industrial and commercial development is planned in

Basin A1, which is the northeastern basin. The lakes will be

controlled at elevation 13.0 feet NGVD. Runoff from this basin

will be directed eastward into the Improvement District's Unit 2

master system via a control structure and pipe connection into

the lake with in the Legends of the Gardens development to the

east. The applicants submitted site grading assumptions and

pervious/impervious pe rcentages as well as stormwater modeling

to demonstrate compliance with the existing master system for

the overall Improvement District's Unit 2 master system. In

addition, the system for this basin has been designed to

accommodate inflows from approximat ely 50 acres of I - 95 right -

of - way through an existing control structure which was permitted

as part of the I - 95 widening project.

20. The proposed project includes direct impacts to a

total of 78.47 acres of on - site wetlands. Wetland mitigation to

offs et the adverse impacts includes enhancement of 7.50 acres of

on - site wetlands; the purchase of 13.70 freshwater herbaceous

credits at the Loxahatchee Mitigation Bank; off - site wetland and

upland restoration and enhancement of 163.41 acres of wetlands;

and preservation of 30.51 acres of other surface waters, or a

total of 193.92 acres, at Pine Glades.

E . The ERP Permitting Criteria

2 1 . In order to obtain an ERP, an applicant must satisfy

the conditions for issuance set forth in R ules 40E - 4.301 and

40E - 4.30 2. Additionally, the District has adopted BOR

provisions that implement the relevant portions of the rules.

The c onditions for i ssuance primarily focus on water qua ntity,

water qua l ity, and environmental criteria and form the basis of

the District ' s ERP permitting program.

22. The first step in the District's environmental review

is to identify wetlands and other surface waters. On March 5,

2009, the District issued a formal determination of wetlands

delineating 34 wetland areas and 4 jurisdictional s urface water

ditches. This determination was not timely challenged and

therefore represents final agency action. That determination

was used in this permit application.

a. Water Quantity Criteria

2 3 . Rule 40E - 4.301(1) (a) require s an applicant to provid e

reasonable assurances that the propose activity will not cause

adverse affects to water quantity, while Rule 40E - 4.301(1)(b)

requires reasonable assurances that the proposed activity will

not cause adverse flooding to on - site or off - site property. The

B OR provides a method to calculate allowable discharge rates.

2 4 . The evidence is that the proposed discharge is well

within the standards imposed by the rules governing water

quantity impacts. There will be no on - site or off - site flooding

as a conseque nce of the proposed project.

2 5 . Rule 40E - 4.301(1)(c) requires reasonable assurance

that there will be no adverse impacts to existing surface water

storage and conveyance capabilities. The evidence supports a

finding that the proposed discharge will no t cause any adverse

impacts. Also, the system is capable of being developed and of

functioning as proposed, as required by Rule 40E - 4.301(1)(i).

2 6 . Petitioners contended that the project poses a threat

of over - draining, which will significantly affect t he region

directly and cumulatively. However, the project does not pose a

risk of over - draining because the control elevation of the

project will be maintained at a level consistent with

surrounding properties and the proposed drainage rate is less

than t he allowable rate under the rules .

b. Water Quality

2 7 . Rule 40E - 4.301(1)(e) sets forth the requirements

relating to water quality. Also, BOR Section 5 contains the

design criteria that a project must follow regarding off - site

discharges to provide re asonable assurances to satisfy the above

rule.

2 8 . Water quality treatment will be provided in a proposed

wet detention system which utilizes stormwater ponds. The

evidence shows that the ponds are larger than required, thereby

providing water quality treatment in excess of what is required

by the BOR. All water quality standards will be met.

c. Hazardous Waste Management Plan

2 9 . Petitioners contend that no hazardous waste management

plan was submitted to the District. However, a plan is not

requir ed now because it would need to address the specific uses

for the property, which have not yet been designated. Special

Condition 31 of the permit requires that such a plan be

submitted at the time an application for construction approval

is filed with th e District. When this is submitted, it will be

reviewed to determine if there are reasonable assurances that

hazard ous materials, if any, will not enter the proposed

project's surface water management system.

d. Elimination and Reduction

30 . Under BOR Section 4.2.1, after the District identifies

the wetlands and other surface waters, the next step is to

consider elimination and reduction of impacts. However, BOR

Section 4.2.1.2 (b) provides that an applicant is not required to

demonstrate elimination a nd reduction impacts when:

the applicant proposes mitigation that

implements all or part of a plan that

provides greater ecological value and that

provides greater long term ecological value

than the area of wetland or other surface

water to be adversely a ffected.

3 1 . In considering th is provision, the District concluded ,

consistent with the evidence, that the quality of the wetlands

which will be adversely affected by this application is low , and

the mitigation proposed will provide greater long - term

e cological value than the wetlands impacted. This is because

the mitigation at both Pine Glades and the Loxahatchee

Mitigation Bank have regional ecological value , and these sites

will provide greater long - term ecological value than the

impacted wetlands .

e. Secondary Impacts

3 2 . Rule 40E - 4.301(1)(f) requires reasonable assurance

that the project will not cause adverse secondary impacts to

water resources. BOR Section 4.2.7 sets forth the requirements

for on - site wetlands that will be preserved and enh anced. Under

that section, secondary impacts to the habitat of wetlands

associated with adjacent upland activities will not be

considered adverse if buffers, with a minimum width of 15 feet

and an average width of 25 feet, are provided abutting the

wetlan ds. In this case, the single wetland area being preserved

is buffered in accordance with those requirements. Applicants

have satisfied the requirements of the rule.

f. Mitigation

3 3 . If impacts to wetlands and other surface waters will

occur, then mit igation may be offered to offset the impacts to

functions identified in BOR Sections 4.2 through 4.2.9. To

assess the impacts and the value of mitigation, the applicants

used the statewide Uniform Mitigation Assessment Method and the

Wetland Rapid Assessm ent Procedure. Those results are found in

Appendix 1 of the application and in Responses to Requests for

Additional Information submitted in August 2009 and January

2010. Page 13 of the Staff Report describes the mitigation.

3 4 . The District also perf ormed its own independent

analysis of both the impact and mitigation. That analysis

demonstrated that sufficient mitigation is available in the

options identified to offset the impacts. In fact, there was a

net functional gain to the environment.

3 5 . In order to offset 50.76 acres of wetland impacts, the

applicants will provide restoration and enhancement of 139.6

acres of wetlands and 23.81 acres of uplands, and preservation

of 30.51 acres of other surface waters, or a total of 193.92

acres, at Pine Gla des. Mitigation at this location offsets

those impacts and is appropriate because it will provide more

functional gain than the amount of functional loss for the same

habitat types that are being impacted. Because Pine Glades is

within the same drainage basin as the impacts, and the

mitigation offsets the impacts, the District is not required to

consider cumulative impacts. See § 373.414(8), Fla. Stat. ; Fla.

Admin. Code R. 40E - 4.302(1)(b) .

36. Petitioners suggested that because Pine Glades is

already owned by the County and intended to be restored, by

allowing the applicants to receive mitigation credit for the

restoration amounts to "double dipping." However, the evidence

shows that the 193 acres proposed as mitigation in the permit is

site - specific; no one has ever received mitigation credit for it

in the past and no one will be able to receive mitigation credit

for it in the future; and T he Briger Group paid $86,250.00 per

functional unit to reimburse the County for the cost of the

land. Mitigation credit for restoration at Pine Glades is

appropriate.

3 7 . As compensation for impacts to a total of 26.14 acres

of freshwater marsh wetlands, the applicants will mitigate off -

site by purchasing 13.70 freshwater herbaceous credits at the

Loxahatchee Mitig ation Bank. This bank is of regional

ecological significance . Mitigation at this bank offsets the

impacts and is appropriate because it will offset the impacts to

freshwater marsh wetlands.

3 8 . Drainage basins are established by District rule in

BOR Fig ure 4.4 - 1. While Petitioners c ontended that BOR Figure

4.4 - 1 does not accurately identify the geographic boundaries of

the South Indian River Basin, which is being used here, the

District is required to follow its own rules when reviewing an

ERP applicati on. Therefore, the use of Figure 4.4 - 1 was

appropriate to determine whether the project is located within

or outside of th at drainage basin . Because the Loxahatchee

Mitigation Bank is not located within the same basin as the

proposed impacts, it was nece ssary for the District to consider

cumulative impacts which will be mitigated at that bank. See

§ 373.414(8), Fla. Stat. This means that the applicants are

required to give reasonable assurances that the impacts proposed

for mitigation at Loxahatchee M itigation Bank would not result

in unacceptable cumulative impacts if the regulatory precedent

set by the permit were applied to all properties within the

basin that have the same type of habitat as that being impacted

by the project and that have potentia l for development.

3 9 . The project will be located in the South Indian River

Basin. The District's cumulative impact analysis for that basin

supports a finding that there is very limited potential for

future wetland loss in the basin and reasonable assur ances have

been given that there will be no adverse cumulative impacts.

See Respondents ' Exhibit 60.

g . Species

40 . Rule 40E - 4.301(1)(d) requires an applicant to

demonstrate that the activities will not adversely impact the

value of functions provided to fish and wildlife and listed

species by wetlands and other surface waters . This evaluation

is limited to wetland - dependent species. Upland species fall

outside of the District's jurisdiction. Contrary to

Petitioners' assertion, the hand fern is not a wetland - dependent

species. Also, the District must rely on State - listed species,

and not lists prepared by federal agencies.

41 . The evidence shows that the potential for utilization

of this site by wetland - dependent species is minimal, and this

site does not contain preferred habitat for nesting or denning

of wetland dependent listed species. Although the site does not

contain preferred habitat, the habitat value currently existing

on this site will be replaced with mitigation at Pine Glades and

the Loxahatchee Mitigation Bank.

h . Public Interest Test

4 2 . In order to obtain a conceptual approval ERP, an

applicant must provide reasonable assurance s that the system

located in, on, or over wetlands or other surface waters will

not be contrary to the public interest and will not be

inconsistent with the objectives of the District. See Fla.

Admin. Code R. 40E - 4.302(1)(a) 1. - 7. ; § 373.414(1), Fla. Stat.

4 3 . The evidence establishes that reasonable assurances

were provided to demonstrate that the propo sed activities will

not adversely affect the public health, safety, or the welfare

or property of others; that they will not adversely affect the

conservation of fish and wildlife, including endangered or

threatened species or their habitat; that there are no issues

related to navigability or the flow of water, erosion or

shoaling; that the property does not currently provide fishing,

recreational values, or marine productivity and is not open to

the public; that the activity will be permanent; that there i s

an archeological site on the property which the applicants will

preserve; that the mitigation will more than fully offset the

impacts ; and that the value of the functions currently being

performed will not be adversely affected. Petitioners offered

no e vidence or analysis to rebut the expert testimony offered by

Respondents.

4 4 . After balancing all seven factors, the evidence

supports a finding that the activities will not be contrary to

the public interest.

i . Florida Coastal Management Program

4 5 . P etitioners contend that the project is inconsistent

with the Florida Coastal Management Program (FCMA) , which is

administered by the Department of Environmental Protection

(DEP) . They also assert that the District is required to

coordinate its review of t he application with that agency and

that it failed to do so . However, the issuance of the ERP

(after a demonstration that all permitting criteria have been

satisfied) constitutes certification that the project is

consistent with the FCMA and no coordinati on with DEP is

necessary.

j . Other Criteria

4 6 . Any other criteria not discussed herein were either

satisfied by the applicants or are not relevant to the project.

F . Petitioners' Evidence

47. Other than very limited cross - examination of some of

Respo ndents' witnesses, Petitioner Minaya did not present any

evidence to support his allegations .

48. Other than cross - examination of Respondents'

witnesses, Petitioner Tsolkas , a lay person, testified that his

standing was based on general concerns that th e project would

drive species (such as the hand fern) into extinction, that it

would pollute waters, including the ICW, and that it would

destroy habitat for other species. No competent or persuasive

evidence to support these contentions was presented. O ther

issues raised by Mr. Tsolkas were matters beyond the District's

jurisdiction and are not considered in the permitting process.

CONCLUSIONS OF LAW

4 9 . The Division of Administrative Hearings has

jurisdiction over this matter pursuant to Sections 120. 569 and

120.57 (1) , Florida Statutes .

50 . The burden of proof is on the party asserting the

affirmative of an issue before an administrative tribunal. See

Balino v. Dep 't of Health & Rehabilitative Servs. , 348 So. 2d

349, 350 (Fla. 1st DCA 1977). Theref ore, the County and The

Briger Group have the burden of proving by a preponderance of

the evidence that they are entitled to modify the existing ERP.

51 . The County and The Briger Group contend that

Petitioners failed to establish standing. In its Propo sed

Recommended Order, t he District did not take a position on this

issue. Petitioner Minaya did not testify or present any

evidence to demonstrate that his substantial interests are

affected by the proposed agency action. Therefore, he did not

prove tha t the issuance of the permit will affect his

substantial interests. Petitioner Tsolkas based his standing on

an interest in environmental issues, including the preservation

of species, and his concern over impacts to the ICW. No

relevant or c ompetent evi dence to support those concerns or

issues was presented. Therefore, even though he appears to have

a genuine interest in the environment, he failed to demonstrate

that the issuance of th is ERP will affect his substantial

interests. It should be noted, ho wever, that both Petitioners

were given the opportunity to fully participate in this

proceeding.

5 2 . To establish entitlement to the ERP, the applicants

must give reasonable assurance that the conditions for issuance

of a permit have been met. See §§ 373 .413 and 373.414, Fla.

Stat.; Fla. Admin. Code R. 40E - 4.301 and 40E - 4.302. "Reasonable

assurance" contemplates a substantial likelihood that the

project will be successfully implemented. See Metropolitan Dade

C ty v. Coscan Fla., Inc., et al. , 609 So. 2d 644, 648 (Fla. 3d

DCA 1992). However, this does not require an absolute guarantee

of compliance with environmental standards.

5 3 . For the reasons cited in the Findings of Fact, it is

concluded that the applicants have provided reasonable

assurances tha t the conditions for issuance of a permit have

been met.

5 4 . Finally, T he Briger Group moved for attorney's fee s

and costs under Section 57.105, Florida Statutes. Jurisdiction

is retained for the limited purpose of rendering a separate

final order on t hat issue after the District's Final Order in

this matter becomes final.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the South Florida Water Management

District enter a final order granting A pplica tion No. 090427 - 7

with the conditions contained in the Amended Staff Report.

DONE AND ENTERED this 30th day of November , 20 10 , in

Tallahassee, Leon County, Florida.

S

D . R. ALEXANDER

Administrative Law Judge

Division of A dministrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of November , 20 1 0 .

ENDNOTE S

1/ Prior to the hearing, Petitioners Palm Beach County

Environmental Coalition, Carol Strick, Suki deJong, Alexandria

Larson, and Rosa Durando filed notices of voluntary dismissal.

As noted in th e Preliminary Statement, Alfred Lark neither

attended the final hearing n or filed a notice of voluntary

dismissal and was dismissed as a party at hearing .

2 / These included references to Chapters 377, 252, 186, 375,

379, 380, 381, and 582, Florida Statutes; the Governor's

Executive Order 07 - 127 re lating to greenhouse gas reductions;

Florida Administrative Code Rule 5B - 40.0055; Palm Beach County

Ordin ance 94 - 13; and a provision in the National Environmental

Policy Act.

3 / Because only a single copy of the exhibits was brought to

the hearing, Mr. T solkas retained the original exhibits. C opies

were never provided to the parties or the undersigned.

COPIES FURNISHED:

Carol Ann Wehle, Executive Director

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, Florida 33406 - 3007

Panagioti Tsolkas

822 North C Street

Lake Worth, Florida 33460 - 2437

Christian Minaya

901 North Federal Highway, Apartment A

Lake Worth, Florida 33460 - 2695

Amy T. Petrick, Esquire

Palm Beach County Attorney's Office

300 North Dixie Highway, Suite 359

We st Palm Beach, Florida 33401 - 4605

Brian B. Joslyn, Esquire

Casey Ciklin Lubitz

Martens & O'Connell

515 North Flagler Drive, 20th Floor

West Palm Beach, Florida 33401 - 4330

Susan Martin Roeder , Esquire

South Florida Water Management District

3301 Gun C lub Road

Mail Stop 1410

West Palm Beach, Florida 33406 - 3007

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit written exceptions within

15 days of the date of this Recommended Order. Any exceptions

to this Recommended Order shoul d be filed with the agency that

will render a final order in this matter.