12-002811 Florida Audubon Society vs. Sugar Cane Growers Cooperative Of Florida, United States Sugar Corporation, Sugar Farms Co-Op, And South Florida Water Management District
 Status: Closed
Recommended Order on Monday, February 10, 2014.


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Summary: Petitioner failed to prove that the Applicants are not entitled to the Works of the District permits in the Everglades Agricultural Area.

11-

2SOUTH FLORIDA WATER MANAGEMENT DISTRICT

7April 17, 2014

10Claudia L1ado, Clerk of the Division

16State of Florida, Division of

21Administrative Hearings

231230 Apalachee Parkway

26Tallahassee, FL 32399-3060 o

30o

31Dear Ms. L1ado:

34Subject: Florida Audubon Society v. Sugar Cane Growers

42Cooperative, United States Sugar Corporation, Sugar Farms

49Co-op and South Florida Water Management District, DOAH

57Case No. 12-2811

60Pursuant to subsection 120.57(1)(m), Florida Statutes, enclosed is a copy of

71the South Florida Water Management District's Final Order in the above

82referenced matter. The exceptions to the recommended order and responses

92to those exceptions filed by the parties are also enclosed.

102If you have any questions, please call me at 561.682.6259.

112Sincerely,

113Joyce B. Rader

116Paralegal Specialist

118JBR

119Enclosures

1203301 Gun Club Road, West Palm Beach, Florida 33406 • (561) 686-8800 • FL WATS 1-800-432-2045

136Mailing Address: P.O. Box 24680, West Palm Beach, FL 33416-4680 • www.sfwmd.gov

148BEFORE THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT ,'0

156APR I 7 2014 2: 28 PH

163Florida Audubon Society,

166Petitioner,

16722

168vs. 2014-33-FOF-WOD (S .

172NOUAH Case No. 12-2811

176Sugar Cane Growers Cooperative

180United States Sugar Corporation,

184Sugar Farms Co-op and

188South Florida Water Management District,

193Respondents,

194---------------_/

195FINAL ORDER

197On February 10, 2014, Bram D. E. Canter, an administrative law judge ("ALJ")

212with the Division of Administrative Hearings ("DOAH"), issued a Recommended Order to

226the South Florida Water Management District ("District") in this case. A copy of the

242Recommended Order is attached as Exhibit A. After review of the Recommended

254Order, exceptions and responses to exceptions, and the record of the proceeding

266before DOAH, this matter is now before the Executive Director of the District for final

281agency action.

283STANDARD OF REVIEW FOR RECOMMENDED ORDERS

289Section 120.57(1 )(1), Florida Statutes, prescribes that an agency reviewing a

300recommended order may not reject or modify the findings of fact of an ALJ, "unless the

316agency first determines from a review of the entire record, and states with particularity in

331the order, that the findings of fact were not based on competent substantial evidence."

345§120.57(1)(1), Fla. Stat. (2013); Charlotte County v. fMC Phosphates Co., 18 So. 3d

3581089 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So. 2d 61 (Fla. 1 st DCA

3762007). The term "competent substantial evidence" does not relate to the quality,

388character, convincing power, probative value or weight of the evidence. Rather,

"399competent substantial evidence" refers to the existence of some evidence (quantity) as

411to each essential element and as to its admissibility under legal rules of evidence. See

426e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So. 2d 287,

439289 n.3 (Fla. 5th DCA 1996).

445The ALJ's function in an administrative hearing is to consider all evidence

457presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences

467from the evidence, and reach ultimate findings of fact based on competent, substantial

480evidence. Heifetz v. Dep't of Bus. Regulation, 475 SO.2d 1277, 1281 (Fla. 1st DCA

4941985). A reviewing agency may not reweigh the evidence presented at a DOAH final

508hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See,

521e.g., Rogers v. Dep't of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Belleau v. Dep't

539of Envtl. Prot., 695 So. 2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands

554County Sch. Bd., 652 So. 2d 894 (Fla. 2d. DCA 1995). These evidentiary-related

567matters are within the province of the ALJ, as the "fact-finder" in these administrative

581proceedings. See, e.g., Tedderv. Fla. Parole Comm'n, 842 So. 2d 1022,1025 (Fla. 1st

595DCA 2003); Heifetz, 475 So. 2d 1281. Agencies do not have jurisdiction to modify or

610reject rulings on the admissibility of evidence. Evidentiary rulings of the ALJ that deal

624with "factual issues susceptible to ordinary methods of proof that are not infused with

638[agency] policy considerations," are not matters over which the agency has "substantive

650jurisdiction." See So. Fla. Cargo Carriers Ass'n, Inc. v. Dep'tof Bus. & Prof! Regulation,

664738 So. 2d 391 (Fla. 3d DCA 1999); Martuccio v. Dep't of Prof! Regulation, 622 So. 2d

681607, 609 (Fla. 1st DCA 1993); Heifetz v. Dep't of Bus. Regulation, 475 So. 2d 1277,

6971281 (Fla.1st DCA 1985); Fla. Power & Light Co. v. Fla. Siting Bd., 693 So. 2d 1025,

7141028 (Fla. 1st DCA 1997). Evidentiary rulings are matters within the ALJ's sound

"727prerogative ... as the finder of fact" and may not be reversed on agency review. See

743Martuccio, 622 So. 2d at 609.

749Also, the ALJ's decision to accept the testimony of one expert witness over that

763of another expert is an evidentiary ruling that cannot be altered by a reviewing agency,

778absent a complete lack of any competent substantial evidence of record supporting this

791decision. See, e.g., Peace River/Manasota Regional Water Supply Authority v. IMC

802Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State,

818Dep't of Health & Rehab. Servs., 462 So. 2d 83, 85 (Fla. 1 st DCA 1985); Fla. Chapter of

837Sierra Club v. Orlando Utils. Comm'n, 436 So. 2d 383, 389 (Fla. 5th DCA 1983). An

853agency has no authority to make independent or supplemental findings of fact. See,

866e.g., North Port, Fla. v. Consol. Minerals, 645 So. 2d 485,487 (Fla. 2d DCA 1994) ("The

884agency's scope or review of the facts is limited to ascertaining whether the hearing

898officer's factual findings are supported by competent substantial evidence."); Manasota

90988, Inc. v. Tremor, 545 So. 2d 439, 441 (Fla. 2d DCA 1989) (citing Friends of Children

926v. Dep't of Health & Rehab. Servs., 504 So. 2d 1345 (Fla. 1 st DCA 1987)) (a state

944agency reviewing an ALJ's proposed order has no authority to make independent and

957supplementary findings of fact to support conclusions of law in the agency final order).

971Section 120.57(1 )(1), Florida Statutes, authorizes an agency to reject or modify

983an ALJ's conclusions of law and interpretations of administrative rules "over which it has

997substantive jurisdiction." See Barfield v. Dep't of Health, 805 So. 2d 1008 (Fla. 1 st DCA

10132001); Deep Lagoon Boat Club, Ltd. v. Sheridan, 784 So. 2d 1140 (Fla. 2d DCA 2001).

1029An agency's review of legal conclusions in a recommended order, are restricted to

1042those that concern matters within the agency's field of expertise. See, e.g., Charlotte

1055County v. IMC Phosphates Co., 18 So. 3d 1089 (Fla. 2d DCA 2009); G.E.L Corp. v.

1071Dep't of Envtl. Prot., 875 So. 2d 1257, 1264 (Fla. 5th DCA 2004).

1084Section 120.57(1)(1), Florida Statutes, prohibits the agency from using the

1094rejection or modification of a conclusion of law to form the basis for rejection or

1109modifications of findings of fact.

1114If an AU improperly labels a conclusion of law as a finding of fact, thelabel

1129should be disregarded and the item treated as though it were actually a conclusion of

1144law. See, e.g., Battaglia Properties v. Fla. Land and Water Adjudicatory Comm'n, 629

1157So. 2d 161, 168 (Fla. 5th DCA 1993). However, neither should the agency label what is

1173essentially an ultimate factual determination as a "conclusion of law" in order to modify

1187or overturn what it may view as an unfavorable finding of fact. See, e.g., Stokes v.

1203State, Bd. of Prof! Eng'rs, 952 So. 2d 1224 (Fla. 1st DCA 2007).

1216An agency has the primary responsibility of interpreting statutes and rules

1227within its regulatory jurisdiction and expertise. See, e.g., Pub. Employees Relations

1238Comm'n v. Dade County Police Benevolent Ass'n, 467 So. 2d 987, 989 (Fla. 1985); Fla.

1253Public Employee Council 79 v. Daniels, 646 So. 2d 813, 816 (Fla. 1st DCA 1994).

1268Considerable deference should be accorded to these agency interpretations of statutes

1279and rules within their regulatory jurisdiction, and such agency interpretations should not

1291be overturned unless "clearly erroneous." See, e.g., Collier County Bd. of County

1303Comm'rs v. Fish & Wildlife Conservation Comm'n, 993 So. 2d 69 (Fla. 2d DCA 2008);

1318Falk v. Beard, 614 So. 2d 1086, 1089 (Fla. 1993); Dep't of Envtl. Regulation v. Goldring,

1334477 So. 2d 532, 534 (Fla. 1985). Furthermore, agency interpretations of statutesand

1346rules within their regulatory jurisdiction do not have to be the only reasonable

1359interpretations. It is enough if such agency interpretations are "permissible" ones. See,

1371e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Prot., 668 So. 2d 209, 212 (Fla. 1st DCA

13891996).

1390Based on Chapter 373, Florida Statutes, and Title 40E of the Florida

1402Administrative Code, the Governing Board has the administrative authority and

1412substantive expertise to exercise regulatory jurisdiction over the administration and

1422enforcement of the Everglades Works of the District program. Therefore, the Governing

1434Board has substantive jurisdiction over the ALJ's conclusions of law and interpretations

1446of administrative rules, and is authorized to reject or modify the ALJ's conclusions or

1460interpretations if it determines that its conclusions or interpretations are "as or more

1473reasonable" than the conclusions or interpretations made by the ALJ.

1483RULINGS ON EXCEPTIONS

1486The case law of Florida holds that parties to formal administrative proceedings

1498must alert reviewing agencies to any perceived defects in DOAH hearing procedures or

1511in the findings of fact of ALJs by filing exceptions to DOAH recommended orders. See,

1526e.g., Comm'n on Ethics v. Barker, 677 So. 2d 254, 256 (Fla. 1996); Henderson v. Dep't

1542of Health, Bd. of Nursing, 954 So. 2d 77, 81 (Fla. 5th DCA 2007); Fla. Dep't of Corrs. v.

1561Bradley, 510 So. 2d 1122, 1124 (Fla. 1st DCA 1987). Having filed no exceptions to

1576certain findings of fact the party "has thereby expressed its agreement with, or at least

1591waived any objection to, those findings of fact." Envtl. Coalition of Fla., Inc. v. Broward

1606County, 586 SO.2d 1212, 1213 (Fla. 1 st DCA 1991); see also Colonnade Medical Ctr.,

1621Inc. v. State of Fla., Agency for Health Care Admin., 847 SO.2d 540, 542 (Fla. 4th DCA

16382003).

1639In reviewing a recommended order and any written exceptions, the agency's final

1651order "shall include an explicit ruling on each exception." See §120.57(1)(k), Fla. Stat.

1664(2013). However, the agency need not rule on an exception that "does not clearly

1678identify the disputed portion of the recommended order by page number or paragraph,

1691that does not identify the legal basis for the exception, or that does not include

1706appropriate and specific citations to the record." Id.

1714Petitioner's Exceptions Generally

1717Petitioner raises 40 exceptions to the Recommended Order. Many of the

1728exceptions fail to comply with the requirements of section 120.57(1)(k), Florida Statutes,

1740because they either do not include alegal basis for the exception, do not include

1754appropriate citations to the record or do not clearly explain the disputed portion of the

1769Recommended Order. Although, the District is not required to include an explicit ruling

1782on exceptions that do not comply with section 120.57(1)(k), Florida Statutes, the District

1795has endeavored to ascertain what Petitioner's exceptions are and, where possible, rule

1807on each, notwithstanding their failure to comply with those statutory requirements.

1818Petitioner's Exceptions No.1 to fourth paragraph of Preliminary Statement

1827Petitioner takes exception to the fourth paragraph of the Preliminary Statement.

1838The fourth paragraph summarizes the ALJ's ruling in a June 6, 2013, order. Petitioner's

1852exception seeks to reargue the ALJ's ruling regarding whether section 373.4592(4)(f)4.,

1863Florida Statutes, requires additional water quality measures in the Works of the District

1876permits issued after December 31, 2006. Petitioner does not dispute that the ALJ issued

1890the referenced order or that the summary of the ALJ's ruling is accurate. Because the

1905ALJ's Preliminary Statement does nothing more than summarize the procedural history

1916of the case, the ALJ's inclusion of this statement in the Preliminary Statement is proper.

1931Further, the ALJ expressly explains the ruling in the June 6, 2013, order in the

1946Conclusions of Law "because of its importance to the recommendation made below."

1958See Conclusion of Law 59. Therefore, Petitioner is afforded an opportunity to raise

1971these issues in relation to those Conclusions of Law.

1980For the reasons set forth herein, Exception NO.1 is denied.

1990Petitioner's Exception No.2 to fourth paragraph of Preliminary Statement

1999Petitioner again takes exception to the fourth paragraph of the Preliminary

2010Statement discussed above in the discussion of Exception NO.1. Petitioner's exception

2021again seeks to reargue the ALJ's interpretation of section 373.4592(4)(f)4., Florida

2032Statutes, and asserts that as a result of that incorrect interpretation the ALJ improperly

2046excluded evidence that discharges from the Applicants' farms cause or contribute to

2058violations of water quality standards in the Everglades Protection Area. As stated in

2071response to Exception No.1, Petitioner does not dispute that the ALJ issued the

2084referenced order or that the summary of the AU's ruling is accurate. Because the

2098ALJ's Preliminary Statement does nothing more than summarize the procedural history

2109of the case, the ALJ's inclusion of this statement in the Preliminary Statement is proper.

2124Further, as to the resultant exclusion of evidence, the evidentiary rulings are matters

2137within the ALJ's prerogative and the District does not have the authority to overturn

2151those evidentiary rulings. See Standard of Review for Recommended Orders, supra.

2162Petitioner was permitted, however, to proffer evidence on that issue. See Petitioner's

2174Exception No.2; 10/18/13 Tr. Vol. 111413:20-420:23.

2180For the reasons set forth herein, Exception NO.2 is denied.

2190Petitioner's Exception No.3 to seventh paragraph of Preliminary Statement

2199Petitioner takes exception to the seventh paragraph of the Preliminary

2209Statement, specifically that portion regarding the testimony of Ernest Barnett, a District

2221witness. This paragraph only lists by name the District's witnesses and exhibits. As

2234explained above, the Preliminary Statement does nothingmore than summarize the

2244procedural history of the case. Again, Petitioner does not dispute that Mr. Barnett

2257testified and that District exhibit 0-001 1 (Mr. Barnett's curriculum vitae) was admitted

2270through Mr. Barnett's testimony. Rather, Petitioner asserts that the testimony of Ernest

2282Barnett and introduction of documents associated with his testimony was in

2293contravention of sections 120.569(2)0) and 120.57(1)(b), Florida Statutes, because

2302Petitioner was not allowed an opportunity to cross-examine Mr. Barnett. Petitioner

2313further asserts that any findings of fact based on testimony or documents that were not

2328subject to cross-examination are erroneous, but does not specifically identify any such

2340findings of fact in this exception.

2346Mr. Barnett's testimony primarily addressed his education, background and

2355expertise as contained in his curriculum vitae. 4/24/13 Tr. 25:4-26:4, 31 :23-42:13. No

2368objection was raised by Petitioner regarding this testimony or the admission of the

2381exhibit. Mr. Barnett then explained the Restoration Strategies and the location of the

23941 Although Petitioner refers to "associated documents," the record is clear that only D-001 was admitted

2410through Mr. Barnett's testimony and that Petitionerspecifically did not object to its admission. 4/24/13 Tr.

242541:5-10.

2426Everglades Protection Area. When Mr. Barnett began to explain his understanding of

2438legal documents involved in Everglades litigation, Petitioner's counsel objected that the

2449documents did not need to be interpreted by Mr. Barnett. 4/24/13 Tr. 46:21-24. In an

2464exchange between the ALJ and Petitioner's counsel, the ALJ explained that "if he says

2478this is what it meant, I'm taking it only as what the District thinks it meant. ... It's not

2497controlling what I think it meant." 4/24/13 Tr. 48:4-9. Following legal argument invited by

2511the ALJ as to the parties' interpretation of various legal proceedings and documents

2524about which Mr. Barnett was expected to testify, the ALJ stopped Mr. Barnett's

2537testimony, stating "I don't think it's effective to have Mr. Barnett's testimony now on this

2552part ... of it. I think time would be better spent in counsel preparing their argument on

2569theseissues." 4/24/13 Tr. 67:21-68:5. Without objection, Petitioner's counsel agreed to

2579the ALJ's course of action. 4/24/13 Tr. 69:20-70:11. The ALJ requested all relevant

2592documents to review in advance of the legal memoranda to be filed by counsel. 4/24/13

2607Tr. 73: 18-19. At that time, District counsel reserved the right to re-call Mr. Barnett if

2623needed. 4/24/13 Tr. 75:17-24. Approximately six months later when the evidentiary

2634portion of the hearing resumed, District staff noted that it had not included Mr. Barnett

2649as a witness on its amended witness list. 10/17/13 Tr. Vol. I 16:12-15. In the six months

2666between Mr. Barnett's testimony and the conclusion of the evidentiary hearing,

2677Petitioner did not request to cross-examine Mr. Barnett, did not raise an objection to the

2692ALJ regarding theirlack of opportunity to cross-examine him, did not call him as part of

2707Petitioner's case, and did not seek to strike Mr. Barnett's testimony.

2718Petitioner failed to preserve any objection regarding cross-examination of Mr.

2728Barnett, therefore the issue is waived. Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010).

2744Even assuming, for the sake of argument, that some of Mr. Barnett's testimony should

2758be excluded, there is ample evidence in other portions of the record to support any

2773finding of fact which might be attributed to Mr. Barnett's testimony. See, e.g.,

2786Recommended Order Preliminary Statement paragraph 3 (documents officially

2794recognized), Exh. JR-001 (Restoration Strategies Regional Water Quality Preliminary

2803Plan), Exhs. JR-002, JR-003, JR-004 and JR-005 (NPDES and EFA Permits and

2815related Consent Orders). Furthermore, the ALJ clearly indicated that Mr. Barnett's

2826testimony would not control his interpretation of a document. Therefore, none of the

2839findings of fact would change and any error would be harmless. Because the ALJ's

2853Preliminary Statement does nothing more than summarize the procedural history of the

2865case, the ALJ's inclusion of this statement in the Preliminary Statement is proper.

2878For the reasons stated herein, Exception NO.3 is denied.

2887Petitioner's Exception No.4 to Finding of Fact 5

2895Petitioner takes exception to Finding of Fact 5 wherein the ALJ describes the

2908Applicants as owners and lessees of agricultural lands in the EAA, specifically as it

2922relates to Basin 10 50-018-13 (Pride Section 8). Petitioner asserts that U[t]he evidence

2935showed that U. S. Sugar is neither the landowner nor lessee of this parcel." Petitioner

2950fails to provide a citation to the record in support of their assertion. While the District

2966was not required to rule on this exception, see Rulings on Exceptions section, supra,

2980there is competent substantial evidence in the record to support the challengedfinding.

2992U. S. Sugar's permit includes lands that are owned by the State of Florida which are

3008leased to a company known as Pride. U. S. Sugar has provided its management

3022agreement to the District which the District considers to be equivalent to a lease for that

3038specific situation. See 10/17/13 Tr. Vol. I 101:16-103:11. Petitioner's exception

3048requests the District to improperly reweigh the evidence. As explained in the Standard

3061of Review for Recommended Orders, supra, these evidentiary-related matters are within

3072the province of the ALJ, as the "fact-finder" in these administrative proceedings and

3085where there is competent substantial evidence to support a finding of fact, the District

3099may not disturb that finding.

3104For the reasons stated herein, Exception NO.4 is denied.

3113Petitioner's Exception No.5 to Finding of Fact 13

3121Petitioner takes exception to Finding of Fact 13 wherein the ALJ summarizes

3133Rule 40E-63.145, Florida Administrative Code, regarding compliance with the 25

3143percent phosphorus reduction requirement for the Everglades Agricultural Area ("EAA")

3155Basin. Petitioner argues that the rule addresses compliance after a permit is issued and

"3169not the requirements for issuance of new [Works of the District] permits after December

318331, 2006." Petitioner, however, fails to explain the significance of their exception.

3195Petitioner also fails to explain how their exception applies to the permits at issue in this

3211proceeding since the permits are renewals of existing permits and not new permits.

3224Petitioner fails to provide any citation to the record in support of their assertion.

3238Although the District is not required to rule on this exception under those circumstances,

3252see Rulings on Exceptions section, supra, an attempt has been made to ascertain the

3266meaning of Petitioner's exception and respond to it.

3274Petitioner appears to argue that evidence concerning the success or failure of the

3287permittees to achieve the 25 percent phosphorus reduction requirement for the EAA

3299Basin is not relevant when the District determines whether to issue the permits that are

3314the subject of this proceeding. The AU correctly determined that whether the 25

3327percent phosphorus reduction requirement in the EM Basin is presently being met is

3340relevant to this proceeding. The District is required to impose on permittees "such

3353reasonable conditions as are necessary to assure that the permitted discharge will be

3366consistent with the overall objectives of the District and will not be harmful to water

3381resources." Rule 40E-63.143(1), Fla. Admin. Code. The main overall objective of the

3393EM regulatory program is to reduce the total phosphorus load from the EM. See Rule

340840E-63.011 (5), Fla. Admin. Code (regulatory program is to address the total

3420phosphorus load from the EAA); Rule 40E-63.101(1), Fla. Admin. Code (goal of the

3433program "is to reduce by 25% the total phosphorus loads discharged from the EM.").

3448For the reasons stated herein, Exception NO.5 is denied.

3457Petitioner's Exception No.6 to Finding of Fact 20

3465Petitioner takes exception to Finding of Fact 20 wherein the ALJ finds that

3478preceding Findings of Fact (11 through 19) which recite the history leading up to the

34931992 Consent Decree in United States v. SouthFlorida Water Management District,

3504Case No. 88-1886-CIV-HOEVELER (S.D. Fla.); the 1994 Everglades Forever Act,

3514section 373.4592, Florida Statutes (1994); and the subsequent amendment of the

3525Consent Decree in 1995, "indicate the intent of the Legislature and the parties to the

3540Consent Decree to conform state law and the Consent Decree to each other." Petitioner

3554fails to recognize that the chronological developments discussed by the AU refer to

"3567state law," or at least the entire Everglades Forever Act, section 373.4592, Florida

3580Statutes, rather than just section 373.4592(4)(f)4., Florida Statutes. See, e.g.,

3590paragraphs 15 through 18. While Petitioner may believe there is no need to refer to

3605legislative intent for that one subsection because the intent is clear to them, this

3619proceeding shows that all parties do not agree on the intent of this subsection.

3633Petitioner does not dispute the factual basis for Finding of Fact 20, or its

3647predicate findings in Findings of Fact 11, 12 and 14 through 19. By failing to take

3663exception to those findings of fact, Petitioner has accepted those findings and waived

3676objection to them. See Rulings on Exceptions section, supra.

3685Rather, Petitioner argues that it is improper to consider legislative intent when the

3698statute, section 373.4592(4)(f)4., Florida Statutes, is clear and unambiguous. In making

3709that argument, however, Petitioner asks the District to accept their alternative

3720interpretation of the legislative history. Such an exercise would be no different than that

3734undertaken by the AU. Petitioner's exception requests the District to improperly

3745reweigh the evidence. As explained in the Standard of Review for Recommended

3757Orders, supra, these evidentiary-related matters are within the province of the ALJ, as

3770the "fact-finder" in these administrative proceedings and where there is competent

3781substantial evidence to support a finding of fact, the District may not disturb that finding.

3796For the reasons stated herein, Exception NO.6 is denied.

3805Petitioner's Exception No.7 to Finding of Fact 25

3813Petitioner takes exception to Finding of Fact 25 wherein the AU found that

3826annual phosphorus loads from the EAA have been reduced by approximately 50

3838percent. Petitioner does not argue that no competent substantial evidence exists in the

3851record to support the finding of fact. Rather, Petitioner posits that the compliance

3864formula used to measure the phosphorus reduction in the EAA Basin is flawed. The

3878compliance formula is contained in Appendix A3 and incorporated by reference in Rule

389140E-63.091 (3), Florida Administrative Code. Therefore, any challenge to the validity of

3903the compliance formula must be undertaken as a rule challenge, which is not within the

3918scope of this proceeding.

3922Additionally, Petitioner's argument that, because of the alleged flaw in the

3933compliance formula, "reductions in load are not attributable to the [best management

3945practices ("BMP")] regulatory program" (emphasis in original) misunderstands the ALJ's

3957finding. The full sentence of the ALJ's finding to which Petitioner takes exception states

3971that "[s]ince full implementation of the BMP regulatory program, annual phosphorus

3982loads have been reduced by approximately 50 percent." The ALJ's finding does not

3995attribute the reductions to the regulatory program itself, but rather uses the

4007implementation of the BMP program as a measure of time. Petitioner's exception

4019requests the District to improperly reweigh the evidence. However, the ALJ's finding is

4032supported by competent substantial evidence. 4/23/13 Tr. 161:3-14, 162:24-163-5;

404110/18/13 Tr. Vol. III 455:2-456:4. As explained in the Standard of Review for

4054Recommended Orders, supra, these evidentiary-related matters are within the province

4064of the ALJ, as the "fact-finder" in these administrative proceedings and where there is

4078competent substantial evidence to support a finding of fact, the District may not disturb

4092that finding.

4094For the reasons stated herein, Exception NO.7 is denied.

4103Petitioner's Exception No.8 to Finding of Fact 31

4111Petitioner takes exception to Finding of Fact 31 wherein the ALJ found that the

4125strategies codified in the 2013 amendments to the Everglades Forever Act, section

4137373.4592, Florida Statutes (2013), "do not materially change the BMP program in the

4150EAA." Petitioner does not challenge this finding. Rather, Petitioner's exception is that

"4162[t]he 2013 amendments do not change the language of section 373.4592(4 )(f)4."

4174without explaining the relevance of that statement or providing any further basis to

4187support their exception. Therefore, it is impossible to ascertain Petitioner's exception or

4199respond to it. Section 120.57(1)(k), Florida Statutes, provides that an agency need not

4212rule on an exception that "does not identify the legal basis for the exception, or that

4228does not include appropriate and specific citations to the record." Therefore, the District

4241is not required to rule on this exception. See Rulings on Exceptions section, supra.

4255For the reasons stated herein, Exception NO.8 is denied.

4264Petitioner's Exception No.9 to Finding of Fact 32

4272Petitioner takes exception to Finding of Fact 32 wherein the ALJ found that "[i]t is

4287beyond the scope of this proceeding to question the wisdom of the programs that have

4302been established by statute and rule." The point made by the ALJ is that he is bound by

4320the findings and enactments of the Legislature. Petitioner again appears to

4331misapprehend the ALJ's finding, but in doing so does not directly challenge the finding.

4345Petitioner does not argue that no competent substantial evidence supports the ALJ's

4357finding. Rather, Petitioner requests the District to make additional findings of fact to

4370support their position that the stormwater treatment areas have been deficient. As

4382explained in the Standard of Review for Recommended Orders, supra, the District is

4395without authority to make supplemental findings of fact. Further, Petitioner's statements

4406regarding the stormwater treatment areas are not responsive to Finding of Fact 32.

4419For the reasons stated herein, Exception NO.9 is denied.

4428Petitioner's Exception No. 10 to Finding of Fact 34

4437Petitioner takes exception to Finding of Fact 34 wherein the ALJ addressed

4449Petitioner's argument that "additional water quality measures" are required in the permit.

4461Petitioner does not state an exception to this finding. Rather, Petitioner's exception

4473merely cross-references their exceptions to Preliminary Statement paragraphs 4 and 7;

4484and Findings of Fact 5, 13,20,25,31 and 32, Exception Nos. 1 through 9, respectively.

4501While it is difficult, in some instances, to determine how the arguments set forth in the

4517cross-referenced exceptions specifically address the issue raised in Petitioner's

4526exception to Finding of Fact 34, the prior exceptions were denied for the reasons stated

4541therein and Petitioner adds nothing further in Exception No. 10. Moreover, upon a

4554reading of the complete language of the ALJ's finding, it is evident that the portion to

4570which Petitioner takes exception is actually nothing more than a cross-reference to a

4583subsequent conclusion of law.

4587For the reasons stated herein, and in the rulings on Exceptions 1 through 9,

4601Exception No. 10 is denied.

4606Petitioner's Exception No. 11 to Finding of Fact 36

4615Petitioner takes exception to Finding of 36 wherein the ALJ found that "soils

4628and crops are similar throughout the EM." Petitioner does not argue that there is no

4643competent substantial evidence in the record to support the ALJ's finding of fact.

4656Rather, Petitioner cites to testimony of their witness, Dr. Simpson. Petitioner's exception

4668requests the District to improperly reweigh the evidence. However, there is competent

4680substantial evidence in the record to support the finding. See 4/23/13 Tr. 119: 11­

4694120:15; 10/17/13 Vol. I 44:12-18; 10/18/13 Tr. Vol. III 442:16-17. As explained in the

4708Standard of Review for Recommended Orders, supra, these evidentiary-related matters

4718are within the province of the ALJ, as the "fact-finder" in these administrative

4731proceedings and where there is competent substantial evidence to support a finding of

4744fact, the District may not disturb that finding.

4752For the reasons setforth herein, Exception No. 11 is denied.

4762Petitioner's Exception No. 12 to Finding of Fact 37

4771Petitioner takes exception to Finding of Fact 37 wherein the ALJ found that "[t]he

4785BMPs proposed by theApplicants are based on research in the EM and

4797recommendations specifically for EAA soils and crops grown there." Petitioner's

4807exception to this finding is that "BMPs in the ... permits have not varied significantly

4822since the mid-1990's despite advancements in BMP science and technology." Again,

4833Petitioner does not actually raise an exception to the finding of fact, but rather, argues a

4849different point without explicating the significance of that statement in relation to the

4862ALJ's finding of fact. Essentially, Petitioner requests the District to make additional

4874findings of fact to support their position that BMPs have not varied significantly. The

4888ALJ's finding is supported by competent substantial evidence in the record of the

4901proceeding. See 4/23/13 Tr. 97:25-98:17, 134:9-137:23; 10/18/13 Vol. III Tr. 434:16-20,

4912438:21-439:13. As explained in the Standard of Review for Recommended Orders,

4923supra, the District is without authority to make supplemental findings of fact. Further,

4936Petitioner's statements regarding the BMPs are not responsive to Finding of Fact 37.

4949For the reasons set forth herein, Exception No. 12 is denied.

4960Petitioner's Exception No. 13 to Findings of Fact 38 and 39

4971Petitioner takes exception to Findings of Fact 38 and 39 wherein the ALJ found

4985that there is no rule criterion for determining the amount of tailoring needed for BMP

5000plans, except that the plan must achieve the overall goal of reducing phosphorus loads

5014in the EAA discharges by at least 25 percent. The finding goes on to say that the BMP

5032plans currently used by the Applicants are achieving the overall goal of reducing

5045phosphorus discharges from the EAA by at least 25 percent. Petitioner does not argue

5059that the finding is not supported by competent substantial evidence. Rather, Petitioner

5071argues that evidence at hearing supports their position that due to "six 'hot spot' farms.

5086.. discharging phosphorus in significantly greater amounts than neighboring farms ...

5097the BMP plans [should have been] adjusted to address this." Essentially, Petitioner

5109requests the District to make additional findings of fact to support their position that

5123BMP plans for six "hot spot" farms should have been adjusted. Petitioner also cross­

5137references their exceptions to Findings of Fact 13 and 25, Exception Nos. 5 and 7,

5152respectively. Those prior exceptions were denied for the reasons stated in the

5164discussion of those exceptions.

5168The ALJ's finding is supported by the record of the proceeding. See, e.g.,

518110/18/13 Tr. Vol. 434:16-451:7. As explained in the Standard of Review for

5193Recommended Orders, supra, the District is without authority to make supplemental

5204findings of fact.

5207For the reasons stated herein, and in the rulings on Exceptions 5 and 7,

5221Exception No. 13 is denied.

5226Petitioner's Exception No. 14 to Findings of Fact 40 and 41

5237Petitioner takes exception to Findings of Fact 40 and 41 wherein the ALJ found

5251that Audubon did not show that any particular BMP that the Applicants are currently

5265using was improper, did not identify any BMP that it believed should be used, and did

5281not prove the Applicants' BMP plans do not meet applicable requirements.

5292Petitioner does not state an exception to these findings. Rather, Petitioner's

5303exception merely cross-references their exceptions to Findings of Fact 37, 38 and 39,

5316Exception Nos. 12 and 13, respectively, and states that Aud ubon proffered evidence of

5330a 35 point BMP plan. Those prior exceptions were denied for the reasons stated in the

5346discussion of those exceptions. The record references are two transcript cites, one of

5359which is to Petitioner's opening statement and the other to a proffer of evidence.

5373Petitioner does not provide any further explanation of their exception.

5383For the reasons stated herein, and in the rulings on Exception Nos. 12 and 13,

5398Exception No. 14 is denied.

5403Petitioner's Exception No. 15 to Finding of Fact 42

5412Petitioner takes exception to Finding of Fact 42 wherein the ALJ found that many

5426of the application completeness issues raised by Petitioner reflected minor deficiencies

5437that are more appropriately resolved between the District and applicants. The purpose

5449of this language is unclear since subsequent findings of fact make it clear that Petitioner

5464failed to demonstrate that the applications are incomplete. This finding of fact goes on to

5479state the completeness issues raised by the Petitioner are "not violations of criteria that

5493likely would affect a third party's interest in environmental protection." The purpose of

5506this finding is unclear since the Petitioner was allowed to present evidence on this issue.

5521Further, Petitioner does not directly challenge the ALJ's finding. Rather,

5531Petitioner's exception argues that the District does not have the authority to disregard its

5545rules or legislative enactments. Petitioner's exception does not, however, identify any

5556specific rules or statutes it contends the District disregarded, but rather references,

5568without specifics, subsequent exceptions. Therefore, it is impossible to ascertain

5578Petitioner's exception is and to respond to it. Presumably, rulings on those subsequent

5591exceptions will respond to specific exceptions from Petitioner.

5599For the reasons stated herein, Exception No. 15 is denied.

5609Petitioner's Exception No. 16 to Finding of Fact 44

5618Petitioner takes exception to Finding of Fact 44 wherein the ALJ found that the

5632District's practice for renewal applications is to not require resubmittal of unchanged

5644information previously submitted to the District. Petitioner's exception specifically states

5654that they "agree with the statement generally." Rather, Petitioner disputes the

5665suggestion that the practice is permissible. Petitioner cross-references their exception

5675to Finding of Fact 42, Exception No. 15, denied for the reasons set forth in the

5691discussion of that exception, which argues that the District does not have the authority

5705to disregard its rules. Petitioner, however, overlooks the portion of the ALJ's finding that

5719the District's practice is explained in the Application Guidebook at page v., itself

5732incorporated by reference in Rule 40E-63.091(10), Florida Administrative Code. By

5742reference to the Application Guidebook in the finding of fact, the ALJ clearly indicates he

5757relied on that rule for his finding. See also 10/17/13 Tr. Vol. I 118:1-120:6. Petitioner

5772does not contend that there is no competent substantial evidence in the record to

5786support the finding of fact. As explained in the Standard of Review for Recommended

5800Orders, supra, the District does not have the authority to overturn the ALJ's finding of

5815fact if there is competent 'substantial evidence in the record to support it.

5828For the reasons stated herein, and in the ruling on Exception No. 15, Exception

5842No. 16 is denied.

5846Petitioner's Exception No. 17 to Finding of Fact 45

5855Petitioner takes exception to Finding of Fact 45 wherein the ALJ found that the

5869Applicants supplemented their applications at the final hearing. Petitioner appears to

5880argue that, even after post-hearing supplementation by one of the applicants, the

5892Applicants did not provide all of the information Petitioner contended was missing from

5905their applications. Petitioner cites to their summary exhibitsPXA-034, PXA-035, and

5915PXA-036 as the only support for this argument. When Petitioner's counsel sought to

5928admit the exhibits, he advised that the "exhibits were tendered this morning ... [to] take

5943consideration of the additional materials that were provided yesterday by the

5954Respondents and to try to incorporate those .... " 10/18/13 Tr. Vol. III 403:9-22. One

5968Applicant was then permitted to submit additional materials, one such submission taking

5980place at the end of the hearing after Petitioner's summary exhibits were admitted, to

5994which Petitioner did not object, and another submission after the close of the hearing, to

6009which Petitioner objected and the ALJ accepted as a proffer but subsequently granted

6022the motion to supplement. 10/18/13 Tr. Vol. IV 547:22-548:2, 548:24-551:8 and Endnote

60343 of the Recommended Order. Those exhibits, received into evidence on the last day of

6049the hearing, cannot therefore accurately summarize remaining deficiencies in the

6059applications, at least as to the applicant who submitted the subsequent supplemental

6071information. Again, Petitioner does not argue that there is no competent substantial

6083evidence in the record to support the ALJ's finding. Rather, they request the District to

6098improperly reweigh the evidence. As explained in the Standard of Review for

6110Recommended Orders, supra, these evidentiary-related matters are within the province

6120of the ALJ, as the "fact-finder" in these administrative proceedings and where there is

6134competent substantial evidence to support a finding of fact, the District may not disturb

6148that finding.

6150For the reasons stated herein, Exception No. 17 is denied.

6160Petitioner's Exception Nos. 18 through 22 Generally

6167Petitioner's Exception Nos. 18 through 22, to Findings of Fact 46, 48, and 50

6181through 52, respectively, argue that the applications were incomplete for various

6192reasons. The following paragraphs respond specifically to each exception. In general

6203however, Petitioner's exceptions do not argue that there is no competent substantial

6215evidence in the record to support these findings. Finding of Fact 45 explains that the

6230Applicants supplemented their applications at the final hearing and one applicant also

6242supplemented their application post-hearing. It is evident from Finding of Fact 45 that

6255the ALJ considered all of the supplemental submittals in making his findings in Findings

6269of Fact 46, 48 and 50 through 52. Petitioner's exceptions request the District to

6283improperly reweigh the evidence. As explained in the Standard of Review for

6295Recommended Orders, supra, these evidentiary-related matters are within the province

6305of the ALJ, as the "fact-finder" in these administrative proceedings and where there is

6319competent substantial evidence to support a finding of fact, the District may not disturb

6333that finding.

6335Petitioner's Exception No. 18 to Finding of Fact 46

6344Petitioner takes excepti'on to Finding of Fact 46 wherein the ALJ found that, upon

6358consideration of Petitioner's argument that undated applications and other forms that

6369have not been signed by appropriate entities are incomplete, the District's rule

6381interpretation and practices, and the additional signatures and dates submitted,

6391Petitioner "failed to demonstrate that the Applications are incomplete based on the

6403identity of the persons who signed application forms or the lack of dates." Petitioner's

6417exception argues their position on various rule provisions and evidence to support their

6430argument that the applications are incomplete. In further support, Petitioner cross­

6441references their exceptions to Findings of Fact 45 and 42, Exception Nos. 17 and 15,

6456respectively. Those exceptions were denied for the reasons stated in the discussions of

6469those exceptions. Petitioner does not argue that there is no competent substantial

6481evidence in the record to support this finding. Rather, they request the District to

6495improperly reweigh the evidence. As explained in the Standard of Review for

6507Recommended Orders, supra, these evidentiary-related matters are within the province

6517of the ALJ, as the "fact-finder" in these administrative proceedings and where there is

6531competent substantial evidence to support a finding of fact, the District may not disturb

6545that finding.

6547For the reasons stated herein, and in the rulings on Exception Nos. 17 and 15,

6562Exception No. 18 is denied.

6567Petitioner's Exception No. 19 to Finding of Fact 48

6576Petitioner takes exception to Finding of Fact 48 wherein the ALJ found that

6589Petitioner's contention that applications are incomplete because a completed Form

65990779 was not included in the application was not proven. Petitioner's exception argues

6612their position on a rule provision to support their argument that the applications are

6626incomplete. In further support, Petitioner cross-references their exceptions to Findings

6636of Fact 44 through 46, Exception Nos. 16 through 18, respectively. Those exceptions

6649were denied for the reasons stated in the discussion of those exceptions. Petitioner

6662does not argue that there is no competent substantial evidence in the record to support

6677this finding. Rather, they request the District to improperly reweigh the evidence. As

6690explained in the Standard of Review for Recommended Orders, supra, these

6701evidentiary-related matters are within the province of the ALJ, as the "fact-finder" in

6714these administrative proceedings and where there is competent substantial evidence to

6725support a finding of fact, the District may not disturb that finding.

6737For the reasons stated herein, and in the rulings on Exception Nos. 16 through

675118, Exception No. 19 is denied.

6757Petitioner's Exception No. 20 to Finding of Fact 50

6766Petitioner takes exception to Finding of Fact 50 wherein the ALJ found that

6779Petitioner failed to prove that applications were incomplete based on lease information.

6791Specifically, Petitioner's exception argues that the duration of leases are required to be

6804as long as the permit duration to establish reasonable assurances, citing Rule 40E­

681763.130(1 )(c), Florida Administrative Code. Petitioner argues that the District's "practice"

6828of allowing leases with a duration shorter than that of the permit "contradicts. the plain

6843language of the promulgated rules [and] is an unadopted rule." However, Petitioner fails

6856to acknowledge the last sentence of Rule 40E-63.130(1)(c), Florida Administrative

6866Code, which specifically states that other alternatives submitted by an applicant will be

6879considered. Petitioner does not argue that there is no competent substantial evidence in

6892the record to support this finding. Rather, they request the District to improperly reweigh

6906the evidence. As explained in the Standard of Review for Recommended Orders, supra,

6919these evidentiary-related matters are within the province of the ALJ, as the "fact-finder"

6932in these administrative proceedings and where there is competent substantial evidence

6943to support a finding of fact, the District may not disturb that finding.

6956Finally, as to Petitioner's argument that the District's "practice" regarding lease

6967durations is an unadopted rule, notwithstanding the express language in Rule 40E-'

697963.130(1)(c), Florida Administrative Code, Petitioner never pled such an allegation and

6990cannot now raise such a claim for the first time at this stage of the proceeding. Lamar

7007Adver. of Ft. Walton Beach v. Dep't of Transp., DOAH Case No. 06-3255, 2007 WL

70221040902 at *9 (Div. of Admin. Hearings, April 4, 2007) (subsequently adopted in the

7036July 2, 2007 Final Order of the Florida Department of Transportation available at

7049https://www.doah.state.fl.us/ROS/2006/06003255%20AFO.pdf).

7050For the reasons stated herein, Exception No. 20 is denied.

7060Petitioner's Exception No. 21 to Finding of Fact 51

7069Petitioner takes exception to Finding of Fact 51 wherein the ALJ found that the

7083preponderance of the evidence shows that the Applicants participated in education and

7095training programs. Petitioner does not contest that the evidence at hearing showed

7107attendance at training. Rather, Petitioner argues that Rule 40E-63.136(1 )(g), Florida

7118Administrative Code, requires the Applicants to develop and implement an education

7129and training program for both management and operations staff and the evidence does

7142not prove the existence of such a formalized program. In sum, Petitioner does not

7156actually object to the ALJ's finding. Petitioner requests the District to make an

7169additional finding of fact addressing whether a formalized education and training

7180program exists. As stated in the Standard of Review for Recommended Orders, supra,

7193the District is without authority to make supplemental findings of fact.

7204For the reasons stated herein, Exception No. 21 is denied.

7214Petitioner's Exception No. 22 to Finding of Fact 52

7223Petitioner takes exception to Finding of Fact 52 wherein the ALJ found that

7236Petitioner failed to prove, for any of the reasons raised in their petition or presented at

7252hearing, that Applicants' applications are incomplete. This finding of fact summarizes

7263the results of Findings of Fact 42 through 51. Petitioner's exception does nothing more

7277than cross-reference their exceptions to Findings of Fact 44 through 46,48, 50 and 51,

7292Exception Nos. 16 through 21, respectively. Those exceptions were denied as set forth

7305in the discussions of those exceptions.

7311For the reasons stated herein, and in the rulings on Exception Nos. 16 through

732521, Exception No. 22 is denied.

7331Petitioner's Exception No. 23 to Finding of Fact 53

7340Petitioner takes exception to Finding of Fact 53 wherein the ALJ found that the

7354evidence presented by Petitioner was insufficient to prove the Applicants are violating

7366water quality standards applicable in the EAA. Petitioner does not actually state an

7379exception to this finding. Rather, Petitioner points to their exceptions to paragraph 4 of

7393the Preliminary Statement, Exception Nos. 1 and 2, testimony of their witness, Dr. Naja

7407and several pages from the 2013 South Florida Environmental Report. Paragraph 4 of

7420the Preliminary Statement addresses evidentiary issues regarding discharges causing

7429or contributing to any violation of water quality standards in the Everglades Protection

7442Area, commonly referred to as the EvPA, and not the EM. The referenced pages of the

74582013 South Florida Environmental Report address phosphorus concentrations in the

7468EvPA. Those pages do not address water quality in the EM. In addition, Petitioner's

7482Exception Nos. 1 and 2 were denied for the reasons set forth in the discussion of those

7499exceptions. Petitioner does not argue that there is no competent substantial evidence

7511in the record to support this finding. Rather, Petitioner's exception requests the District

7524to improperly reweigh the evidence. As explained in the Standard of Review for

7537Recommended Orders, supra, these evidentiary-related matters are within the province

7547of the ALJ, as the "fact-finder" in these administrative proceedings and where there is

7561competent substantial evidence to support a finding of fact, the District may not disturb

7575that finding.

7577For the reasons stated herein, and in the rulings on Exception Nos. 1 and 2,

7592Exception No. 23 is denied.

7597Petitioner's Exception No. 24 to Finding of Fact 54

7606Petitioner takes exception to Finding of Fact 54 wherein the ALJ found that

7619Petitioner failed to carry their burden to prove Applicants are not entitled to the permits

7634which are the subject of this proceeding. This finding summarizes the results of all of

7649the Findings of Fact. Petitioner's exception does nothing more than cross-reference all

7661of their preceding exceptions, Exception Nos. 1 through 23 without any further

7673argument. Those exceptions were all denied as set forth in the discussions of those

7687exceptions.

7688For the reasons stated herein, and in the rulings on Exception Nos. 1 through 23,

7703Exception No. 24 is denied.

7708Petitioner's Exception No. 25 to Conclusions of Law 61 and 62

7719Petitioner takes exception to Conclusions of Law 61 and 62 which interpret the

77321992 Consent Decree in United States v. South Florida Water Management District,

7744Case No. 88-1886-CIV-Hoeveler (S. D. Fla.). Based on that interpretation, the ALJ

7756concludes that "[t]he Consent Decree allowed the remedy to be expansion or

7768enhancement of the STAs, without any change in regulation of permittees in the EAA".

7783While it is difficult to discern Petitioner's exception to these conclusions of law,

7796Petitioner does not appear to take exception to the ALJ's above-quoted portion of these

7810conclusions. The only issue that is clearly discernible is Petitioner's concern that the

7823term "phosphorus criterion" in Conclusion of Law 62 is unclear. In addition, Petitioner

7836cross-references their exceptions to the fourth paragraph of the Preliminary Statement

7847and Finding of Fact 32, Exception Nos. 1,2 and 9, respectively, but does not explain the

7864significance of those exceptions to these conclusions of law. Exception NO.1 relates to

7877the imposition of "additional water quality measures," Exception No.2 relates to whether

7889discharges are causing or contributing to violations of water quality standards, and

7901Exception NO.9 relates to the efficacy of the STAs. The cross-referenced exceptions do

7914not address interpretation of the Consent Decree or the issue of the term "phosphorus

7928criterion." Each of those exceptions has been denied for the reasons set forth in the

7943discussion of those exceptions.

7947For the reasons stated herein, and in the rulings on Exception Nos. 1, 2 and 9,

7963Exception No. 25 is denied.

7968Petitioner's Exception No. 26 to Conclusion of law 63

7977Petitioner takes exception to Conclusion of Law 63 which addresses Petitioner's

7988argument that "because the phosphorus standard is not being achieved in all areas of

8002the EvPA," Works of the District permits, pursuant to section 373.4592(4)(f)4., Florida

8014Statutes, are required "to include additional water quality measures that will result in

8027elimination of the violation, (or perhaps the Applicants' share)." This paragraph is a

8040finding of fact rather than a conclusion of law. The only finding in this paragraph is that

8057Petitioner "does not identify the water quality measures it believes should be imposed."

8070Petitioner asserts that they "proposed additional BMPs, more tailored to the specific

8082crop and soil types," and provides transcript citations. However, a review of Petitioner's

8095citations to the transcript indicates that they did not provide competent substantial

8107evidence to support that assertion. Petitioner's counsel addressed a 35 point BMP plan

8120in his opening statement but that is not evidence (4/23/13 Tr. 72:6-73); the remaining

8134citations are to Petitioner's witnesses, Dr. Simpson and Dr. Naja, who each testified to

8148why additional BMPs should be required but not to what those BMPs should be

8162(10/17/13 Tr. Vol. 11219:17-221:9,219:23-221:9;2 10/18/13 Tr. Vol. III. 326:3-340:7).

8173The ALJ's finding that Petitioner failed to make any such recommendation is clear in the

8188record. See Findings of Fact 38 through 40.

8196For the reasons stated herein, Exception No. 26 is denied.

8206Petitioner's Exception No. 27 to Conclusion of Law 64

8215Petitioner takes exception to Conclusion of Law 64 wherein the ALJ concluded

8227that Petitioner's interpretation of section 373.4592(4)(f)4., Florida Statutes, makes the

82372 Petitioner's citation to this portion of the transcript incorrectly indicates it is in Volume III of the transcript,

8256but it actually appears in Volume II as cited here.

8266Act inconsistent with the 1992 Consent Decree. The ALJ concludes that Petitioner's

8278interpretation of the statute makes it inconsistent with the statute because the Consent

8291Decree "did not require a more stringent EM regulatory program." Petitioner's

8302exception acknowledges that the "Consent Decree does not require a more stringent

8314. EAA regulatory program." Petitioner then goes on to argue that the Consent Decree

"8328does not preclude the District from imposing more stringent requirements." Petitioner

8339does not, however, explain the significance of that statement in the context of the

8353Conclusion of Law. Audubon also gives no basis to reject the Conclusion of Law.

8367Instead, it appears that Audubon is requesting a supplemental conclusion. There is

8379therefore, no basis to reject this Conclusion of Law.

8388For the reasons stated herein, Exception No. 27 is denied.

8398Petitioner's Exception No. 28 to Conclusion of Law 65

8407Petitioner takes exception to Conclusion of Law 65 wherein the ALJ concluded

8419that Petitioner's interpretation of section 373.4592(4)(f)4., Florida Statutes, is

8428inconsistent with the 2003 and 2013 amendments to the EFA. Petitioner's exception

8440does nothing more than reargue their position on this issue, which has been fully briefed

8455before the ALJ. See Petitioner's Final Hearing Brief, dated April 17, 2013; Petitioner's

8468Supplemental Final Hearing Brief, dated April 26, 2013; Petitioner's Second

8478Supplemental Final Hearing Brief, dated May 10, 2013, corrected May 13, 2013;

8490Petitioner's Response to Respondents' Final Hearing Memoranda, dated May 16, 2013;

8501Order, dated June 6, 2013.

8506Petitioner's interpretation of section 373.4592, Florida Statutes, is contrary to the

8517District's interpretation thereof. Interpretation of section 373.4592, Florida Statutes, falls

8527within the District's substantive jurisdiction and the District is entitled to deference in that

8541interpretation. See Standard of Review of Recommended Orders, supra. Conclusion of

8552Law 65 is a correct interpretation of section 373.4592, Florida Statutes, and is

8565consistent with the District's interpretation of that section.

8573For the reasons stated herein, Exception No. 28 is denied.

8583Petitioner's Exception No. 29 to Conclusion of law 66

8592Petitioner takes exception to Conclusion of Law 66 which correctly sets forth the

8605District's interpretation of the phrase "taking into account the water quality treatment

8617actually provided by the STAs" in section 373.4592(4)(f)4., Florida Statutes, and then

8629concludes that "additional water quality measures are not required unless existing and

8641approved STA projects (along with BMP plans) are not adequate to eliminate a water

8655quality violation." Petitioner's exception reargues their position on this issue, which has

8667been fully briefed before the ALJ. See Petitioner's Final Hearing Brief, dated April 17,

86812013; Petitioner's Supplemental Final Hearing Brief, dated April 26, 2013; Petitioner's

8692Second Supplemental Final Hearing Brief, dated May 10, 2013, corrected May 13,

87042013; Petitioner's Response to Respondents' Final Hearing Memoranda, dated May 16,

87152013; Order, dated June 6, 2013. Petitioner's interpretation of section 373.4592, Florida

8727Statutes, is contrary to the District's interpretation thereof.

8735Section 373.4592(4)(f)4., Florida Statutes, "required implementation of additional

8743water quality measures" by December 31, 2006, taking into account the water quality

8756treatment "actually provided by the STAs and the effectiveness of the BMPs." §

8769373.4592(4)(f)4., Fla. Stat. Petitioner argues that this means additional BMPs are

8780mandatory as opposed to expanded STAs. The District interprets "additional water

8791- -----------------

8793quality measures," however, to mean STA acreage, more BMPs, or a combination of

8806the two, as determined by the District. See Finding of Fact 34.

8818This is a reasonable interpretation, especially in light of the Everglades Forever

8830Act's repeated mandate for the District to research the effectiveness of BMPs and

8843STAs, and the requirement in section 373.4592(4)(f)4., Florida Statutes, to "[take] into

8855account the water quality treatment actually provided" by the STAs and BMPs. §

8868373.4592(4)(f)4., Fla. Stat.

8871The District's decision to not require additional BMPs is also consistent with the

8884legislative finding that "the Long-Term Plan provides the best available phosphorus

8895reduction technology based upon a combination of the BMPs and STAs described in the

8909Plan .... " § 373.4592(3)(b), Fla. Stat. The Long-Term Plan, as amended in 2013,

8922requires implementation of the District's Restoration Strategies Plan, dated April 27,

89332012, which requires additional STA acreage, but not additional BMPs. See Findings of

8946Fact 22, 24,30,31; JR-001, Restoration Strategies. See Gulf Coast Hasp., Inc. v. Dep't·

8961of Health and Rehabilitative Services, 424 So. 2d 86, 89, 92 (Fla. 1st DCA 1982)

8976(legislative finding of policy "must be considered as settled by the Legislature and is not

8991one for the agency or for [the] court to redetermine"; "[a]rguments concerning the

9004potential effect of the legislation or questioning the wisdom of such legislation are

9017matters which should be presented to the Legislature itself.") Remedial projects were

9030proposed in the 2003 Long-Term Plan, which modeling showed could achieve the

9042phosphorus criterion by December 31, 2006 (Long Term Plan at Table ES-3) however,

9055as recognized in the Long Term Plan, "it is alsopossible that these improvements and

9069strategies will not, in and of themselves, provide adequate assurance of an ability to

9083consistently meet that objective on a long-term basis." Id. at ES-7. As a result, the

9098Long-Term plan incorporated additional, post-2006 remedies. Id.; see also, Long Term

9109Plan Chapters 5 and 6. See Findings of Fact 22 through 24.

9121December 31, 2006, and the predicted reductions in phosphorus

9130concentrations had not been achieved in all STAs on a regular basis. See Finding of

9145Fact 26. At that point, though, the dates in section 373.4592(4)(f)4.,Florida Statutes,

9158became a non-issue. Discharges to the Everglades were above the criterion, and, as a

9172result, administrative orders were issued, pursuant to Florida Department of

9182Environmental Protection regulations, authorizing the District to continue to operate its

9193pumps to provide flood control in the region provided it built additional remedial

9206measures to achieve the criterion. See Findings of Fact 27 and 29.

9218Interpretation of section 373.4592, Florida Statutes, falls within the District's

9228substantive jurisdiction and the District is entitled to deference in that interpretation. See

9241Standard of Review for Recommended Orders, supra. Conclusion of Law No. 66 is a

9255correct interpretation of section 373.4592(4), Florida Statutes, and is consistent with the

9267District's interpretation of that section.

9272Petitioner also argues that it "could not present evidence that the discharges from

9285the 'hot spot' farms cause or contribute to water quality violations in the Everglades

9299Protection Area" and cross-references their exceptions to the fourth paragraph of the

9311Preliminary Statement, Exception Nos. 1 and 2. Those exceptions were denied for the

9324reasons set forth in the discussion of those exceptions. The issue of Petitioner not

9338being permitted to present evidence is linked to Finding of Fact 29 and Conclusions of

9353Law 67 and 68. In those paragraphs the ALJ concluded that Petitioner could not

9367collaterally attack the adequacy of the 2012 EFA Permit and Consent Order because

9380Petitioner did not timely challenge the Permit and Consent Order. The Permit and

9393Consent Order authorized the District to continue to operate its pumps provided it built

9407additional remedial measures designed to achieve compliance with the phosphorus

9417standard in the EvPA. Petitioner's exception fails to recognize that there are no

9430violations because all discharges are fully permitted.

9437For the reasons set forth herein, and in the rulings on Exception Nos. 1 and 2,

9453Exception No. 29 is denied.

9458Petitioner's Exception No. 30 to Conclusion of law 67

9467Petitioner takes exception to Conclusion of Law 67 which concluded that

9478Petitioner did not challenge the adequacy of the existing approved plans as set forth in

9493the 2012 EFA Permit and Consent Order and cannot collaterally challenge them in this

9507proceeding. Petitioner's exception argues that the ALJ's evidentiary rulings prohibited

9517them from challenging the adequacy of those plans. Petitioner references their

9528Exception No. 3 where they argued that they were not permitted to cross-examine Mr.

9542Barnett. That issue has been addressed in the discussion of Exception NO.3.

9554In addition, the ALJ's conclusion that Petitioner cannot collaterally attack in this

9566proceeding the adequacy of the plans as established in the 2012 EFA Permit and

9580Consent Order is legally correct. Petitioner argues they did not have to challenge the

9594actions that approved those plans in order to maintain their challenge to the Works of

9609the District permits at issue in this case. While it is correct that Petitioner can maintain

9625their challenge to the Works of the District permits, as they have, that does not mean

9641that they can collaterally challenge the action of another agency (the Florida

9653Department of Environmental Protection) through their challenge to the Works of the

9665District Permits. In addition, in issuing the Works of the District permits at issue in this

9681case, the District could accept and rely upon the EFA Permit and Consent Order as

9696providing reasonable assurances that discharges from farms, which pass through the

9707STAs before release into the EvPA, will not cause or contribute to violations of the

9722phosphorus criterion in the EvPA. See, e.g., Conservancy Inc. v. A. Vernon Allen

9735Builder, Inc., DOAH Case No 88-4760, 1993 WL 130430, at *7 (Dep't of Envtl. Reg.

9750Jan. 4, 1993) ("where an MSSW permit issuance by a water management district has

9765become final, the Department may accept the MSSW permit as reasonable assurance

9777that, as to the operation of the system within the scope of the dredge and fill permit, the

9795surface water management system will not cause violations of state water quality

9807standards.")

9809For the· reasons stated herein, and in the ruling on Exception No.3, Exception

9822No. 30 is denied.

9826Petitioner's Exception No. 31 to Conclusion of Law 68

9835Petitioner takes exception to Conclusion of Law 68 that states "no additional

9847water quality measures are required in the [Works of the District] Permits because the

9861projects described in the 2012 EFA Permit and Consent Order are designed to achieve

9875compliance with water quality standards." Petitioner does not state what the exception is

9888to this conclusion of law. Rather, Petitioner's exception is nothing more than a cross­

9902reference to their exceptions to the fourth and seventh paragraphs of the Preliminary

9915Statement and Conclusions of Law 66 and.67, Exception Nos. 1 through 3, 29 and 30,

9930respectively. Petitioner does not provide any further explanation as to the significance of

9943those exceptions on this exception and those exceptions have been denied based on

9956the discussion of those exceptions.

9961For the reasons stated herein, and in the rulings on Exception Nos. 1 through 3,

997629 and 30, Exception No. 31 is denied.

9984Petitioner's Exception No. 32 to Conclusion of law 68

9993Petitioner again takes exception to Conclusion of Law 68. This exception is to the

10007portion of that conclusion of law that analyzes the legal effect of the 2012 Consent

10022Order and states "[a]fter these projects [i.e., those described in the 2012 EFA Permit

10036and Consent Order] are completed, EM discharges will not cause or contribute to a

10050violation of water quality standards." Petitioner argues that this is a finding of fact, not a

10066conclusion of law, and there is no testimony to support this finding.

10078However, Petitioner has taken the above quoted language out of context and it is

10092necessary to view the Conclusion of Law as a whole to address their exception. The

10107entirety of the Conclusion of Law states:

10114Because the projects described in the 2012 EFA permit and consent order

10126are designed to achieve compliance with the phosphorus standard in the

10137EvPA, no additional water quality measures are required in the [Works of

10149the District] Permits. After these projects are completed, EM discharges

10159will not cause or contribute to a violation of water quality standards.

10171Findings of Fact 28 through 32 support the first sentence of this conclusion of

10185law. The second sentence, to which Petitioner objects, is a logical conclusion in light of

10200the predicate statement, because the referenced EM discharges discharge into the

10211projects described in the 2012 EFA permit and consent order. See Finding of Fact 10.

10226Therefore, the ALJ's conclusion is not incorrect.

10233Even if this statement is a finding of fact as Petitioner argues, the record contains

10248competent substantial evidence to support such a finding. See Findings of Fact 10, 13,

1026225, 29 through 32, and 39 through 41. It is the ALJ's function to draw permissible

10278inferences from the evidence and make ultimate findings based thereon. An ultimate

10290fact is a mixture of fact and law defined as "'[t]hose facts found in that vaguely defined

10307field lying between evidential facts on the one side and the primary issue or conclusion

10322. of law on the other, being but the logical results of the proofs, or, in other words, mere

10341conclusions of fact.'" Tedder v. Fla. Unemployment Appeals Comm'n, 697 So. 2d 900,

10354902 (Fla. 2d DCA 1997) citing Black's Law Dictionary 1365 (5th ed. 1979). Ultimate

10368findings of fact are necessary for proper review of administrative orders and are within

10382the sole province of the ALJ to make. Tedder, 697 So. 2d at 903. As explained in the

10400Standard of Review for Recommended Orders, supra, these evidentiary-related matters

10410are within the province of the ALJ, as the "fact-finder" in these administrative

10423proceedings and where there is competent substantial evidence to support a finding of

10436fact, the District may not disturb that finding.

10444For the reasons stated herein, Exception No. 32 is denied.

10454Petitioner's Exception No. 33 to Conclusion of Law 69

10463Petitioner takes exception to Conclusion of Law 69 where the ALJ concludes that

10476the District's interpretation of section 373.4592(4)(f)4., Florida Statutes, "harmonizes the

104861992 Consent Decree, the 1994 Act, the 2003 and 2013 amendments to the Act, and

10501the 2012 EFA Permit and Consent Decree." Petitioner does not state what the

10514exception is to this conclusion of law. Rather, Petitioner's exception is nothing more

10527than a cross-reference to their exceptions to the fourth and seventh paragraphs of the

10541Preliminary Statement and Conclusions of Law 61 through 68, Exception Nos. 1 through

105543 and 25 through 32, respectively. Petitioner does not provide any further explanation

10567as to the significance of those exceptions on this exception and those exceptions have

10581been denied based on the discussion of those exceptions.

10590For the reasons stated herein, and in the rulings on Exception Nos. 1 through 3

10605and 25 through 32, Exception No. 33 is denied.

10614Petitioner's Exception No. 34 to Conclusions of law 70 and 71

10625Petitioner's takes exception to Conclusions of Law 70 and 71 to the extent they

10639conclude that Petitioner's "interpretation of the express language 'actually provided' in

10650[section 373.4592(4)(f)4., Florida Statutes,] "to mean that 'only the current level of

10663treatment provided by the STAs can be considered' is internally inconsistent with the

10676Act 'as a whole.''' As stated by the ALJ in Conclusion of Law 70 "it is not the District's

10695interpretations of subparagraph 4. that stands in Audubon's way; it is the Act, as a

10710whole. Audubon's interpretation would create an internally inconsistent element of an

10721otherwise integrated regulatory program." Petitioner's exception is that their

"10730interpretation is consistent with the plain meaning of the express language of the

10743statute, apparently referring to their interpretation of section 373.4592(4)(f)4., Florida

10753Statutes. Petitioner's exception reargues their position on this issue, which has been

10765fully briefed before the ALJ. See Petitioner's Final Hearing Brief, dated April 17, 2013;

10779Petitioner's Supplemental Final Hearing Brief, dated April 26, 2013; Petitioner's Second

10790Supplemental Final Hearing Brief, dated May 10, 2013, corrected May 13, 2013;

10802Petitioner's Response to Respondents' Final Hearing Memoranda, dated May 16,2013;

10813Order, dated June 6, 2013.

10818Petitioner's interpretation of section 373.4592, Florida Statutes, is contrary to the

10829District's interpretation thereof. (See the discussion of Exception No. 29 for the District's

10842interpretation of the statute). Interpretation of section 373.4592, Florida Statutes, falls

10853within the District's substantive jurisdiction and the District is entitled to deference in that

10867interpretation. See Standard of Review of Recommended Orders, supra. Conclusions of

10878Law 70 and 71 are a correct interpretation of section 373.4592, Florida Statutes, and

10892are consistent with the District's interpretation of that section.

10901For the reasons stated herein, Exception No. 34 is denied.

10911Petitioner's Exception No. 35 to Conclusion of Law 72

10920Petitioner takes exception to Conclusion of Law 72 where the ALJ concluded that

10933the District's interpretation of section 373.4592 3 "is a reasonable one and it better

10947harmonizes with the Act as a whole." Although not mentioned by Petitioner, this

10960statement is directly preceded by the ALJ's conclusion that the Petitioner's interpretation

10972of that statutory section "is not the only possible interpretation." The ALJ's conclusion

10985correctly applies the well-settled principle that an agency's interpretation of the rules

10997and statutes over which it has substantivejurisdiction is entitled to deference. See

11009Standard of Review for Recommended Orders, supra. It is evident from the

11021Recommended Order that the AU analyzed the statute as a whole and came to a well-

11037reasoned reading. The AU's interpretation is consistent with the District's.

11047Interpretation of section 373.4592, Florida Statutes, falls within the District's substantive

11058jurisdiction and the District is entitled to deference in that interpretation. See Standard of

11072Review of Recommended Orders, supra.

110773 It must be noted that the AU's conclusion of law, however, contains a scrivener's error. The ALJ cites to

11097section 373.4295 instead of 373.4592, a clear transposition of numbers.

11107For the reasons stated herein, Exception No. 35 is denied.

11117Petitioner's Exception No. 36 to Conclusion of Law 73

11126Petitioner takes exception to Conclusion of Law 73 where the ALJ states the

11139well-established law regarding deference to an agency's interpretation of its own

11150statutes and rules. The ALJ merely recites the principle stated in Department of

11163Environmental Regulation v. Goldring, 477 So. 2d 532 (Fla. 1985). The Florida

11175Supreme court states "[C]ourts should accord great deference to administrative

11185interpretations of statutes which the administrative agency is required to enforce. Id. at

11198534. The AU accurately references the statement of the Florida Supreme Court.

11210Petitioner does not actually dispute the ALJ's conclusion. Instead, it appears that

11222the Petitioner is requesting that a supplemental conclusion be set forth in the order.

11236Petitioner states that [t]he principle of deference does not allow an agency to ignore the

11251express and plain language of a statute," citing Abram v. State, Department of Health,

11265Board of Medicine, 13 So. 3d 85, 88 (Fla. 4th DCA 2009). Throughout the course of this

11282proceeding, the interpretations of section 373.4592, Florida Statutes, posited by the

11293parties have been the subject of considerable debate. See, e.g., Petitioner's Final

11305Hearing Brief, dated April 17, 2013; Petitioner's Supplemental Final Hearing Brief, dated

11317April 26, 2013; Petitioner's Second Supplemental Final Hearing Brief, dated May 10,

113292013, corrected May 13, 2013; Petitioner's Response to Respondents' Final Hearing

11340Memoranda, dated May 16, 2013; Order, dated June 6, 2013; Applicants' Notice of

11353Joinder and Supplemental Brief, dated April 25, 2013; Applicants' Memorandum of Law

11365Regarding the Scope and Effect of Fla. Stat. § 373.4592(4)(f)4., dated May 10,2013;

11379Applicants' Response to Petitioner's Second Supplemental Final Hearing Brief, dated

11389May 16, 2013; District's Memorandum Addressing Issues Raised by the Count on April

1140224,2013, dated April 25,2013; District's Memorandum of Law Regarding Issues Stated

11415in the Court's Order Dated May 1, 2013, dated May 10, 2013; District's Reply

11429Memoranda to Petitioner's Second Supplemental Final Hearing Brief, dated May 16,

114402013. Therefore, Petitioner's argument that the District's interpretation is not allowed

11451deference because the language is "express and plain" is not applicable to the instant

11465proceeding.

11466In addition, the ALJ's conclusion of law is a statement as to the general policy of

11482deference to an agency. The District may not reject such a conclusion because the

11496District's authority to do so is restricted to those that concern matters within the

11510agency's field of expertise. See Standard of Review for Recommended Orders, supra.

11522For the reasons stated herein, Exception No. 36 is denied.

11532Petitioner's Exception No. 37 to Conclusion of law 74

11541Petitioner takes exception to Conclusion of Law 74 where the ALJ concluded that

11554the Works of the District permits which are the subject of this proceeding are not

11569inconsistent with "the District's objective to reduce phosphorus loading from the EAA by

11582at least 25 percent, which is being achieved." Petitioner's only directly expressed

11594exception to this conclusion of law mirrors their exceptions to Findings of Fact 13 and

1160925, Exception Nos. 5 and 7, respectively (to which they also cross-reference). Petitioner

11622also cross-references their exceptions to Conclusion of Law 66 and the fourth

11634paragraph of the Preliminary Statement, Exception Nos. 29, 1 and 2, respectively. All of

11648the cross-referenced exceptions were denied for the reasons set forth in the discussion

11661of those exceptions. This Conclusion of Law is supported by Finding of Fact

11674For the reasons stated herein, and in the rulings on Exception Nos. 5, 7, 1, 2 and

1169129, Exception No. 37 is denied.

11697Petitioner's Exception No. 38 to Conclusion of law 74

11706Petitioner again takes exception to Conclusion of Law 74. This exception is to the

11720ALJ's conclusion that "the District's objective to prevent harm to the canals of the EAA

11735was not shown to be violated." Petitioner cross-references their exceptions to

11746Conclusion of Law 66 and paragraph 4 of the Preliminary Statement, Exception Nos.

1175929, 1 and 2, respectively. Those exceptions were denied for the reasons set forth in the

11775discussion of those exceptions.

11779Petitioner's only argument stated in this exception does not appear to dispute the

11792ALJ's statement regarding the canals. Rather, Petitioner asserts that evidence they

11803sought to admit that was precluded by the ALJ would have shown that the STAs are

11819being harmed and the ALJ did not address that harm. As to the exclusion of evidence,

11835the evidentiary rulings are matters within the ALJ's prerogative and the District does not

11849have the authority to overturn those evidentiary rulings. However, as noted by

11861Petitioner, they were permitted to proffer evidence on that issue. See Petitioner's

11873Exception No. 38; 10/18/13 Tr. Vol. 111407:7-408:21, 413:20-420:23. There is no finding

11885of fact to support the Petitioner's assertion regarding the STAs and the District is without

11900authority to make supplemental findings. See Standard of Review for Recommended

11911Orders, supra.

11913For the reasons stated herein, and in the rulings on Exception Nos. 29, 1 and 2,

11929Exception No. 38 is denied.

11934Petitioner's Exception No. 39 to Conclusion of Law 74

11943Petitioner again takes exception to Conclusion of Law 74. This exception is to the

11957ALJ's conclusion that "the District's strategies for preventing harm to the EvPA have

11970been authorized in the unchallenged 2012 EFA permit and Consent Order.l> Petitioner

11982does not state what the exception is to this conclusion of law. Rather, Petitioner's

11996exception is nothing more than a cross-reference to their exceptions to Conclusions of

12009Law 61 through 68, Exception Nos. 25 through 32, respectively. Petitioner does not

12022provide any further explanation as to the significance of those exceptions on this

12035exception and those exceptions have been denied based on the discussion of those

12048exceptions.

12049For the reasons stated herein, and in the rulings on Exception Nos. 25 through

1206332, Exception No. 39 is denied.

12069Petitioner's Exception No. 40 to Conclusion of law 75

12078Petitioner takes exception to Conclusion· of Law 75. This conclusion is the

12090ultimate legal conclusion where the ALJ concluded that Petitioner failed to meet their

12103burden to prove that the Applicants are not entitled to the Works of the District permits

12119which are the subject of this proceeding. Petitioner does not state what the exception is

12134to this conclusion of law. Rather, Petitioner's exception is nothing more than a cross­

12148reference to their exceptions to Conclusions of Law 61 through 74, Exception Nos. 25

12162through 39, respectively. Thoseexceptions have been denied based on the discussion

12173of those exceptions.

12176For the reasons stated herein, and in the rulings on Exception Nos. 25 through

1219039, Exception No. 40 is denied.

12196District Staffs Exception Nos. 1, 2 and 3

12204District Staff takes exception to Findings of Fact 13, 25 and 39, and requests the

12219District to clarify and/or correct those findings. District Staff's exceptions fail to comply

12232with the requirements of section 120.57(1)(k), Florida Statutes, because they either do

12244not include a legal basis for the exception or do not include appropriate citations to the

12260record.

12261Because the District is without authority to modify findings of fact unless the

12274findings are not supported by competent substantial evidence, and District staff has not

12287argued that to be the Case or provided citations to the record to support their requested

12303clarifications and/or corrections, District Staff's Exception Nos. 1 through 3 are denied.

12315Corrections and Modifications to the Recommended Order

12322District Staff points out in their Exceptions and Corrections to Recommended

12333Order that the Preliminary Statement erroneously states that District exhibits 0-037 and

123450-039 were admitted into evidence but they were not. See 4/23/2013 Tr. 78:22-23.

12358District Staff provides corrected language for that paragraph on page 5 and Petitioner

12371does not object to that correction. However, District Staff's correction is not accurate. To

12385accurately reflect the District's exhibits admitted during the course of this proceeding,

12397the following language will replace the Recommended Order paragraph on paQ.e 5

12409which states the District exhibits admitted:

12415District Exhibits 0-001, 0-003, 0-005, D-014 through 0-017, 0-025

12424through 0-036,0-038, 0040, 0-042 and 0-043 were admitted into

12434evidence.

12435Additionally, as noted in footnote 2, above, Conclusion of Law 72 contains a

12448scrivener's error. The ALJ cites to section 373.4295 instead of 373.4592, a clear

12461transposition of numbers as there is no section 373.4295 within the Florida Statutes.

12474Therefore, the correct citation, 373.4592, will be substituted for that error.

12485Finally, Applicants advise in their joint response to Petitioner's exceptions, that

12496the lease between Roth Farms, the District and Palm Beach County for Basin ID NO.

1251150-035-03 expired during the course of the proceeding on February 26, 2014.

12523Therefore, the permit renewal for Works of the District Permit Number 50-00031-E may

12536not include that lease.

12540ORDER

12541Having reviewed the Recommended Order, the exceptions and responses to

12551exceptions, and the record of the proceeding before DOAH and considered the

12563applicable law and being otherwise duly advised, it is ORDERED that:

12574A. Petitioner's exceptions are denied for the reasons set forth above.

12585B. District staff's exceptions are denied for the reasons set forth above.

12597C. The Recommended Order (Exhibit A) is adopted in its entirety, except as

12610corrected in the Corrections and Modifications to the Recommended Order

12620section, supra, and incorporated herein by reference.

12627D. United States Sugar Corporation's renewal of Works of the District Permit

12639Number 50-00018-E is approved.

12643E. Sugar Farms Co-op's renewal of Works of the District Permit Number 50-00047­

12656E is approved.

12659F. Sugar Cane Growers Cooperative of Florida's renewal of Works of the District

12672Permit Number 50-00031-E is approved and modified to delete the lease

12683between Roth Farms, the District and Palm Beach County.

12692G. A Notice of Rights is attached as Exhibit B.

12702The District's Governing Board delegated to the Executive Director authority to

12713take final action on permit applications under part IV of Chapter 373, Florida Statutes.

12727Section 373.083(5), Fla. Stat.; District's Policies and Procedures, Subsection 101-41 (a).

12738DONE and SO ORDERED, this 17th day of April, 2014 in West Palm Beach,

12752Florida.

12753SOUTH FLORIDA WATER

12756MANAGEMENT DISTRICT,

12758BY ITS EXECUTIVE DIRECTOR

12762B aec:GUiiiOry, P. E.

12766ATIEST:

12767BY_-----:::....::...-'<-tt-=---'->

12768DATE: _q...>...+/J'---I 1 /-,--,-/1 __

12775I I

12777CERTIFICATE OF SERVICE

12780I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished

12794by electronic mail on this f1 of April, 2014, to all counsel of record listed on the

12811attached Service List.

12814Carolyn S. Ansay, General Counsel

12819SERVICE LIST

12821Thomas E. Bishop, Esq. Irene Kennedy Quincey, Esq.

12829Michael G. Tanner, Esq. Pavese law Firm

12836Charles H. Hardage, Esq. 4524 Gun Club Road, Suite 203

12846Gilbert Feltel, Esq. West Palm Beach, Florida 33415

12854Tanner Bishop ireneguincey@paveslaw.com

12857One Independent Drive, Suite 1700 Attorneys for Respondent United States

12867Jacksonville, Florida 32202 Sugar Corporation

12872mtanner@tannerbishop.com

12873tbishop@tannerbishop.com

12874chardage@tannerbishop.com

12875gfeltel@tannerbishop.com

12876Attorneys for Petitioner Florida Audubon Society

12882Anna H. Upton, Esq. Rick J. Burgess, Esq.

128909005 Eagles Ridge Drive luna E. Phillips, Esq.

12898Tallahassee, Florida 32312 Gunster Yoakley & Stewart, P .A.

12907anna@ahupton.com 450 East las Olas Boulevard, Suite 1400

12915Attorneys for Petitioner Florida Audubon Society Fort lauderdale, Florida 33301

12925rburgess@gunster.com

12926Gary V. Perko, Esq. Iphillips@gunster.com

12931Mohammad O. Jazil, Esq. Attorneysfor Respondent United States

12939Hopping Green & Sams, P.A. Sugar Corporation

12946119 South Monroe Street, Suite 300

12952Tallahassee, Florida 32301 Silvia Morell AldE}rman, Esq.

12959garyp@hgslaw.com Thomas A. Range, Esq.

12964mohammadj@hgslaw.com Akerman Senterfitt

12967Attorneys for Respondent Florida Sugar 106 East College Avenue, Suite 1200

12978Cane Growers Cooperative of Florida: Tallahassee, Fl 32301

12986Silvia.alderman@akerman.com

12987tom.range@akerman.com

12988Attorneys for Respondent Sugar Farms Co-Op

12994Matthew Coglianese, Esq. Jeffrey Collier, Esq.

13000Gabriel Nieto, Esq. Douglas H. Maclaughlin, Esq.

13007Rasco Klock Reininger et al Kirk L. Burns, Esq.

13016283 Catalonia Avenue, Suite 200 South Florida Water Management District

13026Coral Gables Fl, 33134 3301 Gun Club Road, MSC 1413

13036Phone No.: 305-476-7100 West Palm Beach, Fl 33406

13044EMail Address:mcoglianese@rascoklock.com jacollier@sfwmd.gov

13047EMail Address:gnieto@rascoklock.com dmaclaugh@sfwmd.gov

13050Attorneys for Respondent Sugar Farms Co-Op kburns@sfwmd.gov

13057Attorneys for Respondent South Florida Water

13063Management District

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 04/22/2014
Proceedings: Agency Final Order filed.
PDF:
Date: 04/17/2014
Proceedings: Agency Final Order
Date: 02/12/2014
Proceedings: Returned 18 boxes containing Transcripts and Exhibits via Federal Express to Agency filed.
PDF:
Date: 02/10/2014
Proceedings: Recommended Order
PDF:
Date: 02/10/2014
Proceedings: Recommended Order (hearing held April 23-26, 2013, and October 17 and 18, 2013). CASE CLOSED.
PDF:
Date: 02/10/2014
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/11/2013
Proceedings: Respondent, South Florida Water Management District's Notice of Filing Corrected Proposed Recommended Order filed.
PDF:
Date: 12/10/2013
Proceedings: Order Granting Motion.
PDF:
Date: 12/09/2013
Proceedings: South Florida Water Management District's Proposed Recommended Order filed.
PDF:
Date: 12/09/2013
Proceedings: Petitioner Florida Audubon Society's Notice of Filing Proposed Recommended Order filed.
PDF:
Date: 12/09/2013
Proceedings: Respondent South Florida Water Management District's Motion for Enlargement of Page Limits for Proposed Recommended Order filed.
PDF:
Date: 12/09/2013
Proceedings: Notice of Filing Farmers' Joint Proposed Recommended Order filed.
Date: 12/09/2013
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 12/09/2013
Proceedings: Notice of Filing Transcripts filed.
PDF:
Date: 11/26/2013
Proceedings: Order Granting Extension of Time.
PDF:
Date: 11/25/2013
Proceedings: Joint Motion for Extension of Time to File Proposed Recommended Orders filed.
PDF:
Date: 11/13/2013
Proceedings: Notice of Filing Transcript Volume I-IV (not available for viewing).
PDF:
Date: 11/04/2013
Proceedings: Letter to Judge Canter from J. Collier regarding joint notice of filing record (filed CD) filed.
PDF:
Date: 11/01/2013
Proceedings: Petitioner Florida Audubon Society's Response in Opposition to Sugar Cane Growers Cooperative of Florida's Motion to Supplement the Record filed.
Date: 11/01/2013
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 11/01/2013
Proceedings: Joint Notice of Filing Record through October 18, 2013 filed.
PDF:
Date: 10/25/2013
Proceedings: Sugar Cane Growers Cooperative of Florida's Motion to Supplement the Record filed.
Date: 10/17/2013
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/16/2013
Proceedings: Farmers' Joint Motion for Protective Order filed.
PDF:
Date: 10/15/2013
Proceedings: Order (denying motion for reconsideration).
PDF:
Date: 10/15/2013
Proceedings: Respondents' Corrected Joint Response to Florida Audubon's Motion for Reconsideration filed.
PDF:
Date: 10/15/2013
Proceedings: Respondents Joint Response to Florida Audubon's Motion for Reconsideration filed.
PDF:
Date: 10/14/2013
Proceedings: Amended Notice of Hearing (hearing set for October 17 and 18, 2013; 9:00 a.m.; West Palm Beach, FL; amended as to dates of hearing).
PDF:
Date: 10/11/2013
Proceedings: Florida Audubon Society's Motion for Reconsideration filed.
PDF:
Date: 10/10/2013
Proceedings: Petitioner Florida Audubon Society's Notice of Filing Summary Evidence filed.
PDF:
Date: 10/04/2013
Proceedings: Audubon's Amended Witness and (Proposed) Exhibit Lists filed.
PDF:
Date: 10/04/2013
Proceedings: Respondents' Joint Response to Order of October 1, 2013 filed.
PDF:
Date: 10/01/2013
Proceedings: Order.
Date: 10/01/2013
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 09/24/2013
Proceedings: Notice of Case Management Conference filed.
PDF:
Date: 09/11/2013
Proceedings: Amended Notice of Hearing (hearing set for October 16 through 18, 2013; 9:00 a.m.; West Palm Beach, FL; amended as to hearing room location).
PDF:
Date: 06/07/2013
Proceedings: Notice of Continuation of Hearing (hearing set for October 16 through 18, 2013; 9:00 a.m.; West Palm Beach, FL).
PDF:
Date: 06/06/2013
Proceedings: Order.
PDF:
Date: 05/29/2013
Proceedings: Respondent, South Florida Water Management District's Notice of Supplemental Filing Regarding Amendments to Everglades Forever Act filed.
PDF:
Date: 05/21/2013
Proceedings: Notice of Availability for Final Hearing filed.
PDF:
Date: 05/20/2013
Proceedings: Response of Respondents to Order Granting Continuance filed.
PDF:
Date: 05/16/2013
Proceedings: Farmers' Response to Audubon's Second Supplemental Final Hearing Brief filed.
PDF:
Date: 05/16/2013
Proceedings: Petitioner Florida Audubon Society's Response to Respondents' Final Hearing Memoranda filed.
PDF:
Date: 05/16/2013
Proceedings: Respondent, South Florida Water Management District's, Reply Memoranda to Petitioner, Florida Audubon Society's Second Supplemental Final Hearing Brief filed.
PDF:
Date: 05/15/2013
Proceedings: Letter to Judge Canter from Jeffrey A. Collier regarding exhibits entered and admitted into evidence (exhibits on CD not available for viewing) filed.
PDF:
Date: 05/14/2013
Proceedings: Joint Notice of Filing Amended Record as of April 26, 2013 filed.
Date: 05/14/2013
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 05/13/2013
Proceedings: Petitioner Florida Audubon Society's Notice of Filing Final Hearing Transcript filed.
PDF:
Date: 05/13/2013
Proceedings: Petitioner Florida Audubon Society's Notice of Correction to its Second Supplemental Final Hearing Brief filed.
PDF:
Date: 05/10/2013
Proceedings: Respondent, South Florida Water Management District's Memorandum of Law Regarding Issues Stated in the Court's Order Dated May 1, 2013 filed.
PDF:
Date: 05/10/2013
Proceedings: Petitioner Florida Audubon Society's Second Supplemental Final Hearing Brief filed.
PDF:
Date: 05/10/2013
Proceedings: Farmers' Memorandum of Law Regarding the Scope and Effect of Fla. Stat. 373.4592(4)(f)4 filed.
PDF:
Date: 05/10/2013
Proceedings: Respondent, South Florida Water Management District's, Notice of Filing Enrolled Version of CS/HB 7065 and Underline/Strikethrough Text of Entire Everglades Forever Act filed.
Date: 05/03/2013
Proceedings: South Florida Water Management District's Proposed Exhibits filed (CD exhibits not available for viewing).
PDF:
Date: 05/02/2013
Proceedings: Index of Record Through April 26, 2013 (with CD) filed.
PDF:
Date: 05/01/2013
Proceedings: Order.
PDF:
Date: 05/01/2013
Proceedings: Order Granting Continuance (parties to advise status by May 20, 2013).
Date: 04/30/2013
Proceedings: CASE STATUS: Pre-Hearing Conference Held.
Date: 04/30/2013
Proceedings: Joint Proposed Exhibits filed (with CD) (exhibits not available for viewing).
PDF:
Date: 04/29/2013
Proceedings: Joint Notice of Filing Record through April 26, 2013 filed.
PDF:
Date: 04/29/2013
Proceedings: Order.
PDF:
Date: 04/26/2013
Proceedings: Notice of Correction by Respondent, South Florida Water Management District filed.
PDF:
Date: 04/26/2013
Proceedings: Petitioner Florida Audubon Society's Supplemental Final Hearing Brief filed.
PDF:
Date: 04/25/2013
Proceedings: Farmers' Notice of Joinder and Supplemental Brief filed.
PDF:
Date: 04/25/2013
Proceedings: Respondent, South Florida Water Management District's Memorandum Addressing Issues Raised by the Court on April 24, 2013 filed.
PDF:
Date: 04/24/2013
Proceedings: Amended Notice of Hearing (hearing set for April 26 and May 1 through 3 and 6 through 9, 2013; 9:00 a.m.; West Palm Beach, FL; amended as to hearing dates and venue).
Date: 04/23/2013
Proceedings: CASE STATUS: Hearing Partially Held; continued to May 1, 2013; 9:00 a.m.; West Palm Beach, FL.
PDF:
Date: 04/22/2013
Proceedings: Notice of Availability for Final Hearing filed.
PDF:
Date: 04/18/2013
Proceedings: Amended Notice of Hearing (hearing set for April 23 through 26, 29 through May 2 and 6 through 9, 2013; 9:00 a.m.; West Palm Beach, FL; amended as to venue and hearing room location).
PDF:
Date: 04/17/2013
Proceedings: Petitioner Florida Audubon Society's Final Hearing Brief filed.
PDF:
Date: 04/10/2013
Proceedings: Joint Pre-hearing Stipulation filed.
PDF:
Date: 04/10/2013
Proceedings: Order Granting Extension of Time.
PDF:
Date: 04/10/2013
Proceedings: Consent Motion for Extension of Deadline to File Pre-hearing Stipulation filed.
PDF:
Date: 04/03/2013
Proceedings: Order (denying joint request for judicial review and stipulation concerning scope of review).
PDF:
Date: 04/03/2013
Proceedings: Respondents' Joint Request for Judicial View and Stipulation Concerning Scope of View filed.
PDF:
Date: 03/29/2013
Proceedings: Joint Notice of Continued Videotaped Deposition of Thomas W. Simpson, Ph.D.,filed.
PDF:
Date: 03/27/2013
Proceedings: Order Granting Extension of Deadlines.
PDF:
Date: 03/27/2013
Proceedings: Joint Motion by All Parties for Extension of Deadlines filed.
PDF:
Date: 03/22/2013
Proceedings: Amended Notice of Hearing (hearing set for April 23 through 26, 29 through May 2 and 6 through 9, 2013; 9:00 a.m.; Delray Beach, FL; amended as to hearing room location).
PDF:
Date: 03/21/2013
Proceedings: Notice of Appearance (Gilbert Feltel) filed.
PDF:
Date: 03/19/2013
Proceedings: Order (denying Petitioner's motion to exclude expert witnesses).
PDF:
Date: 03/19/2013
Proceedings: Amended Notice of Videotaped Deposition Duces Tecum of Millard M. Fisher, III, Ph.D filed.
PDF:
Date: 03/19/2013
Proceedings: Amended Notice of Videotaped Deposition Duces Tecum of Paul J. Whalen filed.
PDF:
Date: 03/15/2013
Proceedings: Respondent, South Florida Water Management District's Response to Petitioner Florida Audubon Society's Motion to Exclude Respondent South Florida Water Management District's Expert Witnesses filed.
PDF:
Date: 03/14/2013
Proceedings: Order (on motion to compel).
PDF:
Date: 03/14/2013
Proceedings: Petitioner Florida Audubon Society's Motion to Exclude Respondent South Florida Water Management District's Expert Witnesses filed.
PDF:
Date: 03/14/2013
Proceedings: Letter to Judge Canter from C. Hardage regarding a copy of the notice of intended agency action filed.
PDF:
Date: 03/13/2013
Proceedings: Notice of Videotaped Deposition Duces Tecum of Thomas DeBusk filed.
PDF:
Date: 03/13/2013
Proceedings: Notice of Videotaped Deposition Duces Tecum of Millard M. Fisher, III, Ph.D filed.
PDF:
Date: 03/13/2013
Proceedings: Notice of Videotaped Deposition Duces Tecum of Paul J. Whalen filed.
PDF:
Date: 03/13/2013
Proceedings: Notice of Videotaped Deposition Duces Tecum of Gary Goforth, Ph.D filed.
PDF:
Date: 03/13/2013
Proceedings: Notice of Videotaped Deposition Duces Tecum of Pamela S. Wade filed.
PDF:
Date: 03/13/2013
Proceedings: Notice of Videotaped Deposition Duces Tecum of Forrest T. Izuno, Ph.D filed.
PDF:
Date: 03/13/2013
Proceedings: Notice of Videotaped Deposition Duces Tecum of Garth Redfield filed.
PDF:
Date: 03/13/2013
Proceedings: Notice of Videotaped Deposition Duces Tecum of Ernest L. Barnett filed.
PDF:
Date: 03/12/2013
Proceedings: Sugar Cane Growers Cooperative of Florida's Notice of Service of Verified Responses to Petitioner's Second Set of Interrogatories filed.
PDF:
Date: 03/12/2013
Proceedings: Sugar Cane Growers Cooperative of Florida's Objections and Responses to Florida Audubon Society's Second Request for Production of Documents filed.
PDF:
Date: 03/12/2013
Proceedings: Sugar Cane Growers Cooperative of Florida's Notice of Service of Unverified Responses to Petitioners' Second Set of Interrogatories filed.
PDF:
Date: 03/11/2013
Proceedings: Respondent, United States Sugar Corporation's, Objections and Responses to Petitioner, Florida Audubon Society's Second Request for Production filed.
PDF:
Date: 03/11/2013
Proceedings: Respondent, United States Sugar Corporation's, Notice of Service of Objections and Responses to Florida Audubon Society's Second Set of Interrogatories filed.
PDF:
Date: 03/11/2013
Proceedings: Sugar Farms Co-op's Objections and Responses to Florida Audubon Society's Second Request for Production filed.
PDF:
Date: 03/11/2013
Proceedings: Certificate of Service of Sugar Farms Co-op's Objections and Responses to Petitioner's Second Interrogatories filed.
PDF:
Date: 03/11/2013
Proceedings: Respondent, South Florida Water Management District's Notice of Serving Objections and Responses to Petitioner's First Request for Production filed.
PDF:
Date: 03/11/2013
Proceedings: Respondent, South Florida Water Management District's Notice of Serving Answers to Petitioner's First Set of Interrogatories filed.
PDF:
Date: 03/11/2013
Proceedings: Joint Notice of Videotaped Deposition Duces Tecum of G. Melodie Naja, Ph.D filed.
PDF:
Date: 03/11/2013
Proceedings: Joint Notice of Videotaped Deposition Duces Tecum of Thomas W. Simpson, Ph.D filed.
PDF:
Date: 03/08/2013
Proceedings: Supplemental Affidavit of Anna H. Upton filed.
PDF:
Date: 03/08/2013
Proceedings: Petitioner Florida Audubon Society's Response in Opposition to Respondents United States Sugar Corporation, Sugar Cane Growers Cooperative of Florida and Sugar Farms Co-op's Motion to Compel and Request for in Camera Inspection filed.
PDF:
Date: 03/05/2013
Proceedings: Stipulation Concerning Scope and Extent of Entry Upon Lands Pursuant to FLA. R. CIV. P. 1.350 filed.
PDF:
Date: 03/01/2013
Proceedings: Respondents, United States Sugar Corporation, Sugar Cane Growers Cooperative of Florida and Sugar Farm Co-op's, Motion to Compel and Request for in Camera Inspection filed.
PDF:
Date: 01/22/2013
Proceedings: South Florida Water Management District's Disclosure of Fact Witnesses filed.
PDF:
Date: 01/22/2013
Proceedings: Witness Disclosure of Petitioner Florida Audubon Society filed.
PDF:
Date: 01/22/2013
Proceedings: Joint Fact Witness Disclosure of Respondents Sugar Cane Growers Cooperative of Florida, United States Sugar Corporation, and Sugar Farms Co-op filed.
PDF:
Date: 01/15/2013
Proceedings: Respondents' Joint Re-notice of Videotaped Deposition Duces Tecum of Eric Draper filed.
PDF:
Date: 01/15/2013
Proceedings: Respondents' Joint Re-notice of Videotaped Deposition Duces Tecum of Charles Lee filed.
PDF:
Date: 01/15/2013
Proceedings: Respondents' Joint Re-notice of Videotaped Deposition Duces Tecum of Julie Hill-Gabriel filed.
PDF:
Date: 01/15/2013
Proceedings: Respondents' Joint Re-notice of Videotaped Deposition Duces Tecum of Corporate Representative(s) filed.
PDF:
Date: 01/04/2013
Proceedings: Respondent United States Sugar Corporation's First Request for Production of Documents to Petitioner, Florida Audubon Society filed.
PDF:
Date: 01/04/2013
Proceedings: Notice of Service of Respondent United States Sugar Corporation's First Set of Interrogatories to Petitioner, Florida Audubon Society filed.
PDF:
Date: 01/03/2013
Proceedings: Respondents' Joint Notice of Deposition Duces Tecum of Charles Lee filed.
PDF:
Date: 01/03/2013
Proceedings: Respondents' Joint Notice of Deposition Duces Tecum of Eric Draper filed.
PDF:
Date: 01/03/2013
Proceedings: Respondents' Joint Notice of Deposition Duces Tecum of Julie Hill-Gabriel filed.
PDF:
Date: 01/03/2013
Proceedings: Respondents' Joint Notice of Deposition Duces Tecum of Corporate Representative(s) filed.
PDF:
Date: 12/26/2012
Proceedings: Respondent Sugar Cane Growers Cooperative of Florida's Notice of Serving its Second Set of Interrogatories to Petitioner Florida Audubon Society filed.
PDF:
Date: 12/21/2012
Proceedings: Joint Expert Disclosure of Respondents Sugar Cane Growers Cooperative of Florida, United States Sugar Corporation, and Sugar Farms Co-op filed.
PDF:
Date: 12/21/2012
Proceedings: Certificate of Service of Joint Expert Disclosure of Respondents Sugar Cane Growers Cooperative of Florida, United States Sugar Corporation, and Sugar Farms Co-op filed.
PDF:
Date: 12/21/2012
Proceedings: South Florida Water Management District's Disclosure of Expert Witnesses filed.
PDF:
Date: 12/21/2012
Proceedings: Expert Witness Disclosure of Petittioner Florida Audubon Society filed.
PDF:
Date: 12/17/2012
Proceedings: Order (denying Petitioner's Motion to Supplement Order Granting Continuance and Rescheduling Hearing).
PDF:
Date: 12/14/2012
Proceedings: Motion to Supplement Order Granting Continuance and Rescheduling filed.
PDF:
Date: 11/26/2012
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for April 23 through 26, 29 through May 2 and 6 through 10, 2013; 9:00 a.m.; Delray Beach, FL).
PDF:
Date: 11/21/2012
Proceedings: Joint Motion by All Parties for Continuance and Modification of Order of Pre-hearing Instructions filed.
PDF:
Date: 11/19/2012
Proceedings: Notice of Appearance (M. Coglianese) filed.
PDF:
Date: 11/19/2012
Proceedings: Notice of Appearance (G. Nieto) filed.
PDF:
Date: 11/16/2012
Proceedings: Certificate of Service of Sugar Farms Co-op's Second Set of Interrogatories to Petitioner filed.
PDF:
Date: 11/06/2012
Proceedings: Notice of Service of Respondent South Florida Water Management District's First Set of Interrogatories on Petitioner, Florida Audubon Society filed.
PDF:
Date: 11/06/2012
Proceedings: South Florida Water Management's First Request for Production of Documents to Petitioner, Florida Audubon Society filed.
PDF:
Date: 10/31/2012
Proceedings: Order (on Respondent's motion to strike and request for oral argument).
PDF:
Date: 10/31/2012
Proceedings: Notice of Appearance (M. Tanner) filed.
PDF:
Date: 10/31/2012
Proceedings: Notice of Appearance (C. Hardage) filed.
PDF:
Date: 10/30/2012
Proceedings: Petitioner Florida Audubon Society's Response to South Florida Water Management District's Motion to Strike filed.
PDF:
Date: 10/30/2012
Proceedings: Notice of Videotaped Deposition of Corporate Representative(s) (of Sugar Cane Growers Cooperative of Florida) filed.
PDF:
Date: 10/23/2012
Proceedings: Respondent United States Sugar Corporation's Notice of Joinder in the South Florida Water Management District's Motion to Strike and Request for Oral Argument filed.
PDF:
Date: 10/23/2012
Proceedings: Respondent Sugar Cane Growers Cooperative of Florida's Notice of Joinder in South Florida Water Management District's Motion to Strike and Request for Oral Argument filed.
PDF:
Date: 10/23/2012
Proceedings: Order Granting Extension of Time.
PDF:
Date: 10/22/2012
Proceedings: Petitioner Florida Audubon Society's Consent Motion for Extension of Time filed.
PDF:
Date: 10/19/2012
Proceedings: Respondent Sugar Farms Co-op's Notice of Joinder in the District's Motion to Strike and Request for Oral Argument filed.
PDF:
Date: 10/16/2012
Proceedings: Respondent, South Florida Water Management District's Motion to Strike and Request for Oral Argument filed.
PDF:
Date: 10/15/2012
Proceedings: Respondent Sugar Cane Growers Cooperative of Florida's First Request for Production of Documents to Petitioner Florida Audubon Society filed.
PDF:
Date: 10/15/2012
Proceedings: Respondent Sugar Cane Growers Cooperative of Florida's First Set of Interrogatories to Petitioner Florida Audubon Society filed.
PDF:
Date: 10/10/2012
Proceedings: Notice of Appearance (T. Range) filed.
PDF:
Date: 10/10/2012
Proceedings: Respondent Sugar Farms Co-op's First Request for Production to Petitioner Florida Audubon Society filed.
PDF:
Date: 10/10/2012
Proceedings: Certificate of Service of Sugar Farms Co-op's First Set of Interrogatories to Petitioner filed.
PDF:
Date: 10/10/2012
Proceedings: Notice of Cancellation of Videotaped Deposition of Corporate Representative(s) (of Sugar Cane Growers Cooperative of Florida) filed.
PDF:
Date: 10/09/2012
Proceedings: Notice of Appearance (K. Burns) filed.
PDF:
Date: 10/02/2012
Proceedings: Notice of Videotaped Deposition of Corporate Representative(s) filed.
PDF:
Date: 10/02/2012
Proceedings: Notice of Videotaped Deposition of Corporate Representative(s) filed.
PDF:
Date: 09/28/2012
Proceedings: Respondent, United States Sugar Corporation's, Notice of Service of Objections and Responses to Florida Audubon Society's First Request for Production filed.
PDF:
Date: 09/28/2012
Proceedings: Respondent, United States Sugar Corporation's, Notice of Service of Objections and Responses to Florida Audubon Society's First Set of Interrogatories filed.
PDF:
Date: 09/28/2012
Proceedings: Sugar Cane Growers Cooperative of Florida's Objections and Reponses to Florida Audubon Society's First Request for Production of Documents filed.
PDF:
Date: 09/28/2012
Proceedings: Sugar Cane Growers Cooperative of Florida's Notice of Service of Responses to Petitioners' First Set of Interrogatories filed.
PDF:
Date: 09/28/2012
Proceedings: Certificate of Service of Sugar Farms Co-op's Objections and Responses to Petitioner's First Interrogatories filed.
PDF:
Date: 09/28/2012
Proceedings: Respondent Sugar Farms Co-op's Response to Petitioner's First Request for Production of Documents filed.
PDF:
Date: 09/21/2012
Proceedings: Notice of Videotaped Deposition of Corporate Representative(s) filed.
PDF:
Date: 09/10/2012
Proceedings: Notice of Appearance (Douglas MacLaughlin) filed.
PDF:
Date: 08/29/2012
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 08/29/2012
Proceedings: Notice of Hearing (hearing set for January 14 through 18 and 22 through 25, 2013; 1:00 p.m.; Delray Beach, FL).
PDF:
Date: 08/24/2012
Proceedings: Joint Response to Initial Order filed.
PDF:
Date: 08/23/2012
Proceedings: Notice of Appearance (Mohammad Jezil) filed.
PDF:
Date: 08/23/2012
Proceedings: Order (denying motion to dismiss paragraphs 23, 24, 25, and 28 (d) of Petitioner's amended petition).
PDF:
Date: 08/23/2012
Proceedings: Respondent Sugar Farms Co-op's Reply to Petitioner's Response to Sugar Farms Co-op's Motion to Dismiss filed.
PDF:
Date: 08/23/2012
Proceedings: Order (on Respondent's motion to dismiss).
PDF:
Date: 08/22/2012
Proceedings: Petitioner Florida Audubon Society's Response to Sugar Cane Growers Cooperative of Florida's Motion to Dismiss filed.
PDF:
Date: 08/22/2012
Proceedings: Order (on Respondents' motions to dismiss).
PDF:
Date: 08/22/2012
Proceedings: Petitioner Florida Audubon Society's Response to Respondent United States Sugar Corporation's Motion to Dismiss filed.
PDF:
Date: 08/21/2012
Proceedings: Petitioner, Florida Audubon Society's Response to Respondent Sugar Farms Co-op's Motion to Dismiss filed.
PDF:
Date: 08/20/2012
Proceedings: Order (on motion for substitution of counsel).
PDF:
Date: 08/20/2012
Proceedings: Order Granting Extension of Time.
PDF:
Date: 08/17/2012
Proceedings: Initial Order.
PDF:
Date: 08/17/2012
Proceedings: Notice of Substitution (Thomas Bishop) filed.
PDF:
Date: 08/17/2012
Proceedings: Petitioner Florida Audubon Society's Motion for Extension of Time filed.
PDF:
Date: 08/17/2012
Proceedings: Petitioner Florida Audubon Society's Motion for Substitution of Counsel filed.
PDF:
Date: 08/17/2012
Proceedings: Agency referral filed.
PDF:
Date: 08/17/2012
Proceedings: Order on Amended Petitions' Compliance with Requisite Rules, Authorizing Transmittal to the Division of Administrative Hearings, and Notice of Preservation of Record filed.
PDF:
Date: 08/17/2012
Proceedings: Agency action letter filed.

Case Information

Judge:
BRAM D. E. CANTER
Date Filed:
08/17/2012
Date Assignment:
08/17/2012
Last Docket Entry:
04/22/2014
Location:
West Palm Beach, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (6):

Related Florida Rule(s) (6):