14-005038 Manasota-88, Inc. vs. Land Trust No. 97-12 And Southwest Florida Water Management District
 Status: Closed
Recommended Order on Thursday, June 25, 2015.


View Dockets  
Summary: It is recommended that the agency deny the environmental resource permit because practicable modifications were not made to avoid wetland impacts and cummulative adverse effects of the project would cause significant environmental harm.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8JOSEPH MCCLASH,

10Petitioner,

11and

12SIERRA CLUB, INC., AND SUNCOAST

17WATERKEEPER, INC.,

19Intervenors,

20vs. Case No. 14 - 4735

26LAND TRUST NO. 97 - 12 AND

33SOUTHWEST FLORIDA WATER

36MANAGEMENT DISTRICT,

38Responde nts.

40_______________________________/

41MANASOTA - 88, INC.,

45Petitioner,

46and

47SIERRA CLUB, INC., AND SUNCOAST

52WATERKEEPER, INC.,

54Intervenors,

55vs. Case No. 14 - 5038

61LAND TRUST NO. 97 - 12 AND

68SOUTHWEST FLORIDA WATER

71MANAGEMENT DISTRICT,

73Respondents.

74__________ _____________________/

76FLORIDA INSTITUTE FOR SALTWATER

80HERITAGE, INC.,

82Petitioner,

83and

84SIERRA CLUB, INC., AND SUNCOAST

89WATERKEEPER, INC.,

91Intervenors,

92vs. Case No. 14 - 5135

98LAND TRUST NO. 97 - 12 AND

105SOUTHWEST FLORIDA WATER

108MANAGEMENT DISTRICT,

110Resp ondents.

112_______________________________/

113RECOMMENDED ORDER

115The final hearing in these consolidated cases was held on

125February 17 - 19, 2015, in Tamp a, Florida, before Bram D.E. Canter,

138Administrative Law Judge of the Division of Administrative

146Hearings (ÐDOAHÑ).

148APPEARANCES

149For Petitioner Joseph McClash:

153Joseph McClash, pro se

157711 89th Street Northwest

161Bradenton, Florida 34209

164For Petitioner Manasota - 88, Inc.:

170Joseph McClash, Qualified Representative

174711 89th Street Northwest

178Bradenton, Florida 34209

181For Petitioner Florida I nstitute for Saltwater

188Heritage, Inc.:

190Joseph McClash, Qualified Representative

194711 89th Street Northwest

198Bradenton, Florida 34209

201For Respondent Land Trust #97 - 12:

208Douglas P. Manson, Esquire

212Brian A. Bolves, Esquire

216Paria Shirzadi, Esquire

219MansonBolves, P.A.

2211101 West Swann Avenue

225Tampa, Florida 33606

228For Resp ondent Southwest Florida Water Management District:

236Christon R. Tanner, Esquire

240Martha A. Moore, Esquire

244Southwest Florida Water Management District

2497601 Highway 301 North

253Tampa, Florida 33637

256For Intervenor Sierra Club, Inc.:

261Ralf G. Brookes, Esquire

2651217 East Cape Coral Parkway , Suite 107

272Cape Coral, Florida 33904

276For Interve nor Suncoast Waterkeeper, Inc.:

282Justin Bloom, Esquire

285Post Office Box 1028

289Sarasota, Florida 34230

292STATEMENT OF THE ISSUE

296The issue to be determined is whether Respondent Land Trust

306# 97 - 12 (ÐLand TrustÑ) is entitled to an Environmental Resource

318Permit (ÐERPÑ) for its proposed project on Perico Island in

328Bradenton, Florida.

330PRELIMINARY STATEMENT

332On August 21, 2014, Respondent Southwest Florida Water

340Management District (ÐDistrictÑ) issued a Notice of Intended

348Agency Action to issue an ERP to Land Trust to construct a

360building pad for four single - family homes, an access drive, and

372surface water management system.

376On August 29, 2014, Petitioner Joseph McClash filed a

385petition for hearing to ch allenge the proposed ERP. On

395September 10, 2014, Petitioner Manasota - 88 , Inc., filed a

405petition for hearing. On September 18, 2014, Florida Institute

414for Saltwater Heritage, Inc. (ÐFISHÑ), filed a petition for

423hearing. The District referred the three pe titions to DOAH and

434they were consolidated for final hearing.

440On January 26, 2015, Sierra Club, Inc., moved to intervene

450in the proceeding. On January 27, 2015, Suncoast Waterkeeper,

459Inc., moved to intervene. The motions were granted.

467At the final hearin g , Land Trust presented the testimony of

478Jeb Mulock, P.E., an expert in engineering; and Alec Hoffner, an

489expert in soil science and wetland ecology. After the hearing,

499Land Trust was allowed to present the testimony of Anthony

509Janicki, Ph.D., through a t ranscript of his deposition. Land

519Trust Exhibits 1 - 3, 6 - 8, and 16 were admitted into evidence.

533The District presented the testimony of David Kramer, P.E.,

542an expert in surface water management system engineering;

550Al Gagne, an expert in wetland science; an d John Emery, an expert

563in wetland science. District Exhibits 4 and 6 - 7 were admitted

575into evidence.

577Petitioners presented the testimony of Jacqueline Cook, an

585expert in wetland science; Sam Johnston, an expert in

594environmental assessment and wetland scie nce; John Stevely, an

603expert in mangroves and marine habitat; Joseph McClash;

611Ed Sherwood; Robert B rown; and Jay Leverone. Petitioners '

621Exhibits 1 - 6, 31 - 32, 38 - 39, 41 - 43, 47, 53, 55, 74, 88, 88A, 91 -

642104, 110, and 112 were admitted into evidence.

650Members o f the public were allowed to make comments at the

662final hearing. Comments were received from Mary Shep herd ,

671Terry Wonder, Jan VonHahmann, and Sandra Ripberger.

678The five - volume T ranscript of the final hearing was filed

690with DOAH. The parties submitted pro posed recommended orders

699that were considered in the preparation of this Recommended

708Order.

709FINDINGS OF FACT

712The Parties

7141. Petitioner Joseph McClash is a resident of Bradenton,

723Florida , who uses the waters in the vicinity of the project for

735fishing, cra bbing, boating, and wildlife observation.

7422. Petitioner Manasota - 88, Inc., is an active Florida

752nonprofit corporation for more than 20 years. Manasota - 88 has

763approximately 530 members, most of who m (approximately 300)

772reside in Manatee County. The miss ion and goal of Manasota - 88

785includes the protection of the natural resources of Manatee

794County, including Anna Maria Sound and Perico Island.

8023. Petitioner FISH is an active Florida nonprofit

810corporation in existence since 1991. FISH owns real property in

820unincorporated Cortez in Manatee County and maintains a Manatee

829County mailing address. FISH has more than 190 members and more

840than 150 of them own property or reside in Manatee County. The

852mission and goal of FISH includes protection of the natural

862resources of Manatee County, including Anna Maria Sound and

871Perico Island.

8734. Intervenor Suncoast Waterkeeper, Inc., is an active

881Florida nonprofit corporation in existence since 2012. The

889mission of Suncoast Waterkeeper is Ðto protect and restore the

899S uncoastÓs waterways through enforcement, fieldwork, advocacy,

906and environmental education for the benefit of the communities

915that rely upon coastal resources.Ñ Suncoast Waterkeeper provided

923the names and addresses of 25 members residing in Manatee County.

934A substantial number of the members of Suncoast Waterkeeper use

944the area and waters near the proposed activity for nature - based

956activities, including nature observation, fishing, kayaking,

962wading, and boating along the natural shorelines of Anna Maria

972So und and Perico Island.

9775. Intervenor Sierra Club, Inc., is a national organization

986that is a California corporation registered as a foreign

995nonprofit corporation in Florida. Sierra Club has been permitted

1004to conduct business in Florida since 1982. The mission of Sierra

1015Club includes protection of the natural resources of Manatee

1024County, which include Anna Maria Sound and Perico Island. Sierra

1034Club provided the names and addresses of 26 members who live in

1046Manatee County. A substantial number of the me mbers of Sierra

1057Club use the area and waters near the proposed project for

1068nature - based activities , including observing native flora and

1077fauna, fishing, kayaking, wading, and boating along the natural

1086shorelines of Anna Maria Sound and Perico Island.

10946. Respondent Land Trust is the applicant for the

1103challenged ERP and owns the property on which the proposed

1113project would be constructed.

11177. Respondent District is an independent special district

1125of the State of Florida created, granted powers, and assigne d

1136duties under chapter 373, Florida Statutes, including the

1144regulation of activities in surface waters. The proposed project

1153is within the boundaries of the District.

1160The Project Site

11638. The project site is 3.46 acres of a 40.36 - acre parcel

1176owned by Lan d Trust. The parcel includes uplands, wetlands, and

1187submerged lands, on or seaward of Perico Island, next to Anna

1198Maria Sound, which is part of Lower Tampa Bay. Anna Maria Sound

1210is an Outstanding Florida Water.

12159. The project site is adjacent to a larg e multi - family

1228residential development called Harbour Isles, which is currently

1236under construction. Access to the Land Trust property is gained

1246through this development.

124910. The Land Trust parcel contains approximately seven

1257acres of high quality mangro ves along the shoreline of Anna Maria

1269Sound. They are mostly black and red mangroves, with some white

1280mangroves. The mangroves on the project site amount to a total

1291of 1.9 acres.

129411. Mangroves have high biological productivity and are

1302important to estu arine food webs. Mangroves provide nesting,

1311roosting, foraging, and nursery functions for many species of

1320wildlife.

132112. Mangroves also provide a buffer from storm surge and

1331help to stabilize shorelines.

133513. Wildlife species found on the project site i nclude

1345ibises, pelicans, egrets, spoonbills, mangrove cuckoos, bay

1352scallops, fiddler crabs, mangrove tree crabs, horseshoe crabs,

1360marsh rabbits, raccoons, mangrove bees, and a variety of fish.

137014. No endangered species have been observed on the project

1380s ite , but mangroves are used by a number of listed species .

1393The Proposed Project

139615. The proposed project is to construct a retaining wall,

1406place fill behind the wall to create buildable lots for four

1417single - family homes, construct an access driveway, an d install a

1429stormwater management facility.

143216. The stormwater management facility is a ÐStormtechÑ

1440system, which is an underground system usually used in situations

1450where there is insufficient area to accommodate a stormwater

1459pond.

146017. Riprap would be placed on the waterward side of the

1471retaining wall. The retaining wall would be more than 35 feet

1482landward of the mean high water line in most areas.

149218. Petitioners contend the proposed retaining wall is a

1501vertical seawall, which is not allowed in an e stuary pursuant to

1513section 373.414(5). ÐVertical seawallÑ is defined in section

15212.0(a)(111), Volume I, of the Environmental Resource Permit

1529ApplicantÓs Handbook (ÐApplicants HandbookÑ) as a seawall which

1537is steeper than 75 degrees to the horizontal. It f urther states,

1549ÐA seawall with sloping riprap covering the waterward face to the

1560mean high water line shall not be considered a vertical seawall.Ñ

157119. The retaining wall is vertical, but it would have

1581riprap covering its waterward face and installed at a slope of 70

1593degrees. The retaining wall is not a vertical seawall under the

1604DistrictÓs definition .

1607Stormwater Management

16092 0 . Stormwater in excess of the Stormtech systemÓs design

1620capacity would discharge into Anna Maria Sound. Because Anna

1629Maria Sound is an Outstanding Florida Water, District design

1638criteria require that an additional 50 percent of treatment

1647volume be provided.

16502 1 . The Stormtech system meets the DistrictÓs design

1660criteria for managing water quality and water quantity. Projects

1669which m eet the DistrictÓs design criteria are presumed to provide

1680reasonable assurance of compliance with state water quality

1688standards. PetitionersÓ evidence was not sufficient to rebut

1696this presumption.

169822 . Petitioners contend the District waiver of water

1707qua lity certification for the proposed project means that Land

1717Trust was not required to meet water quality standards. However,

1727that was a misunderstanding of the certification process. All

1736state water quality criteria are applicable.

174223 . Petitioners cont end water quality monitoring should be

1752imposed for this project. However, section 4.7 of the

1761ApplicantÓs Handbook , Volume II, provide s that if the applicant

1771meets the DistrictÓs design criteria, water quality monitoring is

1780not required.

178224 . Petitioners f ailed to prove the proposed stormwater

1792management system cannot be constructed, operated, or maintained

1800in compliance with applicable criteria.

1805Wetland Impacts

18072 5 . In order to create buildable lots, 1.05 acres of the

18201.9 acres of mangroves on the project site would be removed and

1832replaced with fill. A swath of mangroves approximately 40 f eet

1843wide would remain waterward of the retaining wall.

18512 6 . The proposed direct and s econdary impacts to the

1863functions provided by wetlands were evaluated using the Unif orm

1873Mitigation Assessment Method (ÐUMAMÑ) as required by Florida

1881Administrative Code Chapter 62 - 345. UMAM is used to quantify the

1893loss of functions performed by wetlands considering: current

1901condition, hydrologic connection, uniqueness, location, fish an d

1909wildlife utilization, time lag, and mitigation risk.

19162 7 . The District determined the filling of 1.05 acres of

1928wetlands would result in a functional loss of 0.81 units and the

1940secondary impacts resulting from installation of the retaining

1948wall would res ult in a loss of 0.09 units for a total functional

1962loss of 0.9 units. Petitioners contend the functional loss would

1972be greater.

19742 8 . Petitioners contend the wetland delineation performed

1983by Land Trust and confirmed by the District did not extend as far

1996la ndward as the hydric soils and, therefore, the total acreage of

2008affected wetlands would be greater. However, Petitioners did not

2017produce a wetland delineation for the project site, and their

2027evidence was not sufficient to rebut Land Trust's prima faci e

2038ev idence on this issue.

204329 . Petitioners Ó experts believe the secondary impacts

2052caused by the proposed project would be greater than calculated,

2062including fragmentation of the shoreline mangrove system, damage

2070to the roots of mangroves near the retaining wal l, and scouring

2082effects caused by wave action associated with the retaining wall.

2092Respondents assert that the analysis by PetitionersÓ expert

2100Jacqueline Co ok relied on federal methodology and that Ðthe

2110science used in her analysis is not contained in the state or

2122district rule criteria.Ñ

21253 0 . Reliance on science is always appropriate. However,

2135Ms. Co ok Ós use of a federal impact assessment methodology creates

2147doubt about whether her scoring is consis tent with UMAM. Despite

2158the unreliability of Ms. Co ok Ós UMAM score, it is found that

2171RespondentsÓ UMAM scor e under - calculated secondary impacts due to

2182scour and other effects of changed water movement that would be

2193cause d by the retaining wall.

21993 1 . It was not explained how the loss of storm buffering

2212and erosi on prevention functions of wetlands are accounted for in

2223the UMAM score.

2226Elimination or Reduction of Impacts

22313 2 . Section 10.2.1 of the ApplicantÓs Handbook , Volume I,

2242states that in reviewing a project the District is to consider

2253practicable design modi fications to eliminate or reduce impacts

2262to wetland functions. Section 10.2.1.1 explains:

2268The term ÐmodificationÑ shall not be

2274construed as including the alternative of not

2281implementing the activity in some form, nor

2288shall it be construed as requiring a p roject

2297that is significantly different in type or

2304function. A proposed modification that is

2310not technically capable of being completed,

2316is not economically viable, or that adversely

2323affects public safety through the

2328endangerment of lives or property is no t

2336considered Ðpracticable.Ñ A proposed

2340modification need not remove all economic

2346value of the property in order to be

2354considered not Ðpracticable.Ñ Conversely, a

2359modification need not provide the highest and

2366best use of the property to be Ðpracticable.Ñ

2374In determining whether a proposed

2379modification is practicable, consideration

2383shall also be given to cost of the

2391modification compared to the environmental

2396benefit it achieves.

23993 3 . Land Trust originally proposed constructing a surface

2409water retention pond . The Stormtech stormwater management system

2418would cause less wetland impact than a retention pond.

24273 4 . Land Trust contends the use of a retaining wall reduces

2440wetland impacts because, otherwise, more mangroves would have to

2449be removed to account for the slope of the waterward side of the

2462fill area. However, this proposition assumes the appropriateness

2470of the size of the fill area.

24773 5 . Land Trust also contends wetland impacts are reduced by

2489using the adjacent development to access the proposed project

2498site, rather than creating a new road. However, the evidence did

2509not establish that Land Trust had a practicable and preferred

2519alternative for access.

25223 6 . Unlike the Stormtech system, the retaining wall and

2533access driveway were not shown to be project mo difications.

25433 7 . The proposed project would cause fewer impacts to

2554wetlands if the fill area was reduced in size, which was not

2566shown to be impracticable. Reducing the size of the fill area

2577would not cause the project to be significantly different in ty pe

2589or function.

259138 . Land Trust did not demonstrate that it implemented

2601reasonable design modifications to eliminate or reduce impacts to

2610wetland functions.

2612Mitigation

261339 . Land Trust proposes to purchase credits from the Tampa

2624Bay Mitigation Bank, which is 17 miles north of the proposed

2635project site. The Tampa Bay Mitigation Bank is in the Tampa Bay

2647Drainage Basin. The project site is in the South Coastal

2657Drainage Basin.

26594 0 . Pursuant to section 10.2.8 of the ApplicantÓs Handbook,

2670Volume I, if an appli cant mitigates adverse impacts within the

2681same drainage basin, the agency will consider the regulated

2690activity to have no unacceptable cumulative impacts upon wetlands

2699and other surface waters. However, if the applicant proposes to

2709mitigate impacts in ano ther drainage basin , factors such as

2719Ðconnectivity of waters, hydrology, habitat range of affected

2727species, and water qualityÑ will be considered to determine

2736whether the impacts are fully offset.

27424 1 . The parties disputed whether there was connectivity

2752b etween the waters near the project site and the waters at the

2765Tampa Bay Mitigation Bank. The more persuasive evidence shows

2774there is connectivity.

27774 2 . There was also a dispute about the habitat range of

2790affected species. The evidence establishes that t he species

2799found in the mangroves at the project site are also found at the

2812mitigation bank. However, local fish and wildlife, and local

2821biological productivity would be diminished by the proposed

2829project. This diminution affects PetitionersÓ substantial

2835interests.

28364 3 . T he loss or reduction of storm buffering and erosion

2849prevention functions performed by the mangroves at Perico Island

2858cannot be mitigat ed for at the Tampa Bay Mitigation Bank.

28694 4 . C umulative impacts are unacceptable when the proposed

2880acti vity, considered in conjunction with past, present, and

2889future activities would result in a violation of state water

2899quality standards, or significant adverse impacts to functions of

2908wetlands or other surface waters. See § 10.2.8.1, ApplicantÓs

2917Handbook , Vol. I .

29214 5 . Section 10.2.8(b) provides that, in considering the

2931cumulative impacts associated with a project, the District is to

2941consider other activities which reasonably may be expected to be

2951located within wetlands or other surface waters in the same

2961drainage basin, based upon the local governmentÓs comprehensive

2969plan. Land Trust did not make a prima facie showing on this

2981point.

29824 6 . Land Trust could propose a similar project on another

2994part of its property on Perico Island. Any one owning property in

3006the area which is designated for residential use under the City

3017of BradentonÓs comprehensive plan and bounded by wetlands could

3026apply to enlarge the buildable portion of the property by

3036removing the wetlands and filling behind a retaining wall.

30454 7 . When considering future wetland impacts in the basin

3056which are likely to result from similar future activities, the

3066cumulative impacts of the proposed project would result in

3075significant adverse impacts to wetland functions in the area.

3084Public Interest

308648 . Fo r projects located in, on, or over wetlands or other

3099surface waters, an applicant must provide reasonable assurance

3107that the project will not be contrary to the public interest, or

3119if such activities significantly degrade or are within an

3128Outstanding Flori da Water, are clearly in the public interest, as

3139determined by balancing the criteria set forth in rule 62 -

3150330.302(1)(a), and as set forth in sections 10.2.3 through

315910.2.3.7 of the ApplicantÓs Handbook. Rule 62 - 330.302, which is

3170identical to section 373. 414, Fl orida Statutes , lists the

3180following seven public interest balancing factors to be

3188considered:

31891. Whether the activities will adversely

3195affect the public health, safety, or welfare

3202or the property of others;

32072. Whether the activities will adverse ly

3214affect the conservation of fish and wildlife,

3221including endangered or threatened species,

3226or their habitats;

32293. Whether the activities will adversely

3235affect navigation or the flow of water or

3243cause harmful erosion or shoaling;

32484. Whether the activ ities will adversely

3255affect the fishing or recreational values or

3262marine productivity in the vicinity of the

3269activity;

32705. Whether the activities will be of a

3278temporary or permanent nature;

32826. Whether the activities will adversely

3288affect or will enhan ce significant historical

3295and archaeological resources under the

3300provisions of Section 267.061, F.S.; and

33067. The current condition and relative value

3313of functions being performed by areas

3319affected by the proposed regulated activity.

332549 . The Parties s tipulated that the proposed project would

3336not have an adverse impact on public health, navigation,

3345historical resources, archeological resources, or social costs.

33525 0 . Land Trust proposes to give $5,000 to the City of

3366Palmetto for an informational kiosk at the City of PalmettoÓs

3376public boat ramp. A District employee testified that this

3385contribution made the project clearly in the public interest.

33945 1 . Reasonable assurances were not provided that the

3404proposed project is clearly in the public interest becaus e of the

3416adverse cumulative effects on the conservation of fish and

3425wildlife, fishing and recreational values, and marine

3432productivity of Anna Maria Sound, an Outstanding Florida Water.

3441CONCLUSIONS OF LAW

3444Standing

34455 2 . Standing to participate in a proceedi ng under section

3457120.57(1), Florida Statutes, is afforded to persons whose

3465substantial interests will be affected by the proposed agency

3474action. See § 120.52(13)(b), Fla. Stat. (2014) (definition of

3483Ðparty.Ñ)

34845 3 . For organizational standing under chapter 120, it must

3495be shown that a substantial number of an associationÓs members,

3505but not necessarily a majority, have a substantial interest that

3515would be affected, that the subject matter of the proposed

3525activity is within the general scope of the interests a nd

3536activities for which the organization was created, and that the

3546relief requested is of the type appropriate for the organization

3556to receive on behalf of its members. Fla. Home Builders AssÓn v .

3569DepÓt of Labor and Emp ' t Servs . , 412 So. 2d 351 (Fla. 1982 ); Fla.

3586League of Cities, Inc. v. DepÓt of Envtl. Reg. , 603 So. 2d 1363

3599(Fla. 1 st DCA 1992).

36045 4 . Section 403.412(6) , Florida Statutes, provides standing

3613to any Florida corporation not for profit which has at least 25

3625current members residing within the co unty where the activity is

3636proposed, and which was formed for the purpose of the protection

3647of the environment, fish and wildlife resources, and protection of

3657air and water quality, to initiate an administrative hearing,

3666provided the corporation was formed at least one year prior to the

3678date of the filing of application for the permit that is the

3690subject of the notice of proposed agency action.

36985 5 . Section 403.412(5) provides standing to any citizen to

3709intervene in an administrative, licensing, or other pr oceeding for

3719the protection of the air, water, or other natural resources of

3730the state from pollution, impairment or destruction, upon the

3739filing of a verified pleading.

37445 6 . Respondents stipulated to Petitioner McClashÓs

3752substantial interests in using the waters near the proposed

3761project, but did not stipulate to his alleged injury and contend

3772he failed to prove an injury to his interests. A petitioner can

3784establish standing by offering evidence to prove that its

3793substantial interests could be affected by the agencyÓs action.

3802St. Johns Riverkeeper, Inc. v. St. Johns River Water Mgmt. Dist . ,

381454 So. 3d 1051, 1054 (Fla. 5th DCA 2011). Petitioner McClash

3825offered evidence to prove his interests could be adversely

3834affected by the proposed project. He has stan ding.

38435 7 . Respondents stipulated to the standing of Petitioners

3853FISH, Manasota - 88, and Suncoast Waterkeeper to intervene in an

3864ongoing proceeding pursuant to section 403.412(5).

387058 . Sierra Club claims associational standing to intervene

3879under chapter 120 . Respondents stipulated that a substantial

3888number of Sierra Club members have substantial interests in the

3898use of the waters near the project site, but assert that Sierra

3910Club failed to demonstrate injury to these interests. Sierra Club

3920offered evidence to prove the interests of its members could be

3931adversely affected by the proposed project. Sierra Club has

3940standing under chapter 120.

394459 . Sierra Club also claims standing to intervene pursuant

3954to section 403.412(5), but Sierra Club is not a citizen of the

3966state; it is a foreign nonprofit corporation. Legal Envtl.

3975Assistance Found . v. DepÓt of Envtl. Protection , 702 So. 2d 1352

3987(Fla. 1st DCA 1997). Sierra Club does not have standing under

3998section 403.412(5).

4000Burden and Standard of Proof

40056 0 . This is a de novo proceeding designed to formulate final

4018agency action, not to review action taken preliminarily. See

4027Capeletti Bros. v. DepÓt of Gen . Servs . , 432 So. 2d 1359, 1363 - 64,

4043(Fla. 1st DCA 1983); Fla. Dep't of Transp. v. J. W .C. Co., Inc. ,

4057396 So. 2d 778 (Fla. 1st DCA 1981).

40656 1 . Because Petitioners challenge a permit issued by the

4076District under chapter 373, section 120.569(2)(p) is applicable .

4085This statute provides that the permit applicant must present a

4095prima facie case demonstrating entitlement to th e permit, but the

4106challenger has the burden of ultimate persuasion.

41136 2 . The standard of proof is a preponderance of the

4125evidence. § 120.57(1)(j), Fla. Stat.

41306 3 . Entitlement to an ERP requires reasonable assurance from

4141the applicant that the activities a uthorized will meet the

4151applicable conditions for issuance as set forth in rules 62 -

4162330.301 and 62 - 330.302 and related provisions of the Applicant's

4173Handbook.

41746 4 . Reasonable assurance that a proposed activity is clearly

4185in the public interest does not req uire a demonstration of need or

4198net public benefit. See 1800 Atlantic Developers v. DepÓt of

4208Envtl. Reg . , 552 So. 2d 946, 9 57 (Fla. 1st DCA 1989).

42216 5 . Whether assurances are reasonable will depend on the

4232circumstances involved, especially with respect to the potential

4240harm that could be caused. See AngeloÓs Aggregate Materials, Ltd.

4250v. DepÓt of Envtl. Protection , DOAH Case No. 09 - 1543 (Recommended

4262Order, June 28, 2013, adopted in its entirety by the Department of

4274Environmental Protection). The potential to harm an Outstanding

4282Florida Water requires greater assurances than for waters without

4291this special designation.

429466. Land Trust presented a prima facie case of entitlement

4304to the permit except with regard to the cumulative impacts of the

4316proposed proje ct. Petitioners then presented their case in

4325opposition to the permit and demonstrated that Land Trust was not

4336entitled to the permit for the reasons stated below.

4345Compliance with Applicable Criteria

43496 7 . The Stormtech system meets the DistrictÓs design

4359c riteria for managing water quality and water quantity. Projects

4369which meet the DistrictÓs design criteria are presumed to provide

4379reasonable assurance of compliance with state water quality

4387standards. Land TrustÓs proposed project complies with all

4395storm water management requirements.

43996 8 . Section 10.2.1 of the ApplicantÓs Handbook require s an

4411applicant to eliminate or reduce adverse impacts to the functions

4421of wetlands or other surface waters caused by a proposed project

4432by implementing practicable design modifications. Land TrustÓs

4439proposed project fails to comply with this requirement.

44476 9 . Pursuant to rule 62 - 330.301(d) and 62 - 330.301(f), an

4461applicant must provide reasonable assurance that the regulated

4469activity will not adversely impact the value of f unctions provided

4480to fish and wildlife and listed species by wetlands and other

4491surface waters. Land TrustÓs proposed project fails to comply

4500with this requirement.

450370 . Section 373.414(1)(b) provides that if an applicant is

4513unable to otherwise meet the c riteria, the District shall consider

4524measures proposed by or acceptable to the applicant to mitigate

4534adverse effects that may be caused by the regulated activity,

4544including the purchase of mitigation credits from a mitigation

4553bank.

45547 1 . The proposed mitiga tion must fully offset the expected

4566impacts. Land Trust did not provide reasonable assurance that the

4576adverse impacts caused by the proposed project would be fully

4586offset by purchasing mitigation credits from the Tampa Bay

4595Mitigation Bank.

45977 2 . Section 10 .2.8 of the ApplicantÓs Handbook states that

4609cumulative impacts are considered unacceptable when the proposed

4617activity, considered in conjunction with the past, present, and

4626future activities , would result in significant adverse impacts to

4635functions of wet lands or other surface waters within the same

4646drainage basin when considering the basin as a whole. The

4656cumulative impacts that would result from the proposed project

4665would result in significant adverse impacts to functions of

4674wetlands in the basin.

46787 3 . Determinations as to the sufficiency of mitigation for

4689adverse wetland impacts are within the jurisdiction of the

4698District. See Save Anna Maria, Inc. v. DepÓt of Transp. , 700 So.

47102d 113, 116 (Fla. 2nd DCA 1997).

47177 4 . The District rules state that Ðprotect ion of wetlands

4729and other surface waters is preferred to destruction and

4738mitigation.Ñ The proposed permit does not reflect that

4746preference.

47477 5 . Although not acknowledged by the District, this is an

4759unusual project. It resembles the kind of project that was

4769common in the 1960s and 1970s in Florida, before the enactment of

4781environmental regulatory programs, when high - quality wetlands

4789were destroyed by dredging and filling to create land for

4799residential development. In all the reported DOAH cases

4807involving ERPs and mitigation of wetland impacts, the

4815circumstances have involved impaired wetlands and/or the

4822restoration or permanent protection of other wetlands on the

4831project site. No case could be found where an applicant simply

4842paid for authorization to des troy almost an acre of high - quality

4855wetlands and convert it to uplands.

48617 6 . The District should determine that the proposed

4871mitigation is insufficient.

48747 7 . Land TrustÓs propos ed project is not clear ly in the

4888public interest as required by section 373.414 (1) and rule

489862 - 330.302(1) because it would cause significant adverse

4907cumulative effects on the conservation of fish and wildlife,

4916fishing and recreational values, and marine productivity of Anna

4925Maria Sound .

4928R ECOMMENDATION

4930Based on the Findings of Fact a nd Conclusions of Law set

4942forth above, it is

4946RECOMMENDED that the Southwest Florida Water Management

4953District issue a final order that denies the Environmental

4962Resource Permit.

4964DONE AND ENTERED this 25th day of June , 2015 , in

4974Tallahassee, Leon County, Flo rida.

4979S

4980BRAM D. E. CANTER

4984Administrative Law Judge

4987Division of Administrative Hearings

4991The DeSoto Building

49941230 Apalachee Parkway

4997Tallahassee, Florida 32399 - 3060

5002(850) 488 - 9675

5006Fax Filing (850) 921 - 6847

5012www.doah.state.fl .us

5014Filed with the Clerk of the

5020Division of Administrative Hearings

5024this 25th day of June , 2015 .

5031COPIES FURNISHED:

5033Christian Thomas Van Hise, Esquire

5038Abel Band, Chartered

5041Post Office Box 49948

5045Sarasota, Florida 34230 - 6948

5050(eServed)

5051M artha A. Moore, Esquire

5056Southwest Florida Water Management District

50617601 Highway 301 North

5065Tampa, Florida 33637

5068(eServed)

5069Douglas P. Manson, Esquire

5073MansonBolves, P.A.

50751101 West Swann Avenue

5079Tampa, Florida 33606

5082(eServed)

5083Joseph McClash

5085711 89th Street Northwest

5089Brad enton, Florida 34209

5093(eServed)

5094Ralf G. Brookes, Esquire

5098Ralf Brookes Attorney

51011217 East Cape Coral Parkway , Suite 107

5108Cape Coral, Florida 33904

5112(eServed)

5113Justin Bloom, Esquire

5116Post Office Box 1028

5120Sarasota, Florida 34230

5123(eServed)

5124Robert Beltram, P. E., Executive Director

5130Southwest Florida Water Management District

51352379 Broad Street

5138Brooksville, Florida 34604 - 6899

5143NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

5149All parties have the right to submit written exceptions within

515915 days from the date of this Recom mended Order. Any exceptions

5171to this Recommended Order should be filed with the agency that

5182will issue the Final Order in this case.

Select the PDF icon to view the document.
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Date
Proceedings
PDF:
Date: 04/10/2017
Proceedings: Mandate filed.
PDF:
Date: 03/23/2017
Proceedings: BY ORDER OF THE COURT: Appell's Motion for Attorney's Fees and Motion for Sanctions are denied.
PDF:
Date: 03/21/2017
Proceedings: Opinion filed.
PDF:
Date: 02/01/2017
Proceedings: Document filed with 5th DCA filed.
PDF:
Date: 01/10/2017
Proceedings: Notice of Oral Argument filed.
PDF:
Date: 12/07/2016
Proceedings: BY ORDER OF THE COURT: Appellant's "Motion to Accept the 15-Page Amended . . ." is granted.
PDF:
Date: 11/23/2016
Proceedings: Appellant's Motion to Accept the 15-Page Amended Appellant's Reply Brief Corrected Pagination filed.
PDF:
Date: 11/23/2016
Proceedings: Appellant's Response to Appellee Southwest Florida Water Management District's Motion for Sanctions Filed November 4, 2016, filed.
PDF:
Date: 11/23/2016
Proceedings: Appellant's Response to Appellee's Fourth Motion for Sanctions filed.
PDF:
Date: 11/14/2016
Proceedings: Appellant Joseph McClash's Corrected Pagination Amended Reply Brief filed.
PDF:
Date: 11/14/2016
Proceedings: Appellee Southwest Florida Water Management District's Motion for Sanctions, or, in the Alternative Response to Appellant Joseph McClash's Corrected Amended Motion for Attorney's Fees filed.
PDF:
Date: 11/14/2016
Proceedings: Appellant's Fourth Motion for Sanctions filed.
PDF:
Date: 11/08/2016
Proceedings: Appellant's Corrected Amended Motion for Statutory Attorney's Fees Under Section 120.595(5), Florida Statutes (Improperly Modified Findings of Fact) filed.
PDF:
Date: 11/08/2016
Proceedings: Appellant Joseph McClash's Amended Reply Brief filed.
PDF:
Date: 11/08/2016
Proceedings: Appellant's Amended Motion for Statutory Attorney's Fees Under Section 120.595(5), Florida Statutes (Improperly Modified Findings of Fact) filed.
PDF:
Date: 11/02/2016
Proceedings: BY ORDER OF THE COURT: Appellants' "Notice of Dropping Organizational Appellants" is stricken as premature with respect to its response to Appellee's Motion for Attorney Fees.
PDF:
Date: 08/12/2016
Proceedings: Response to Appellees' Third Motion for Sanctions filed.
PDF:
Date: 08/12/2016
Proceedings: Response to SWFWMD's August 3, 2016, Mpotion for Sanctions filed.
PDF:
Date: 08/04/2016
Proceedings: Appellees' Third Joint Motion for Sanctions filed.
PDF:
Date: 08/03/2016
Proceedings: Appellee Southwest Florida Water Management District's Motion for Sanctions, or, in the Alternative, Response to Appellant Joseph McClash's Motion to Accept Late Filed Motion for Attorney's Fees and Motion for Attorney's Fees filed.
PDF:
Date: 07/25/2016
Proceedings: Notice of Filing Regarding Intent of McClash to Continue as Individual Appellant filed.
PDF:
Date: 07/25/2016
Proceedings: Notice: Joseph McClash Remains as Individual Appellant filed.
PDF:
Date: 07/25/2016
Proceedings: Amended Notice of Voluntary Dismissal of Organizational Appellants filed.
PDF:
Date: 07/25/2016
Proceedings: Notice of Filing - Table of Contents & Citations (Reply) filed.
PDF:
Date: 07/25/2016
Proceedings: Notice of Filing - Corrected Certificate of Service filed.
PDF:
Date: 07/25/2016
Proceedings: Response to Appellees' Second Joint Motion for Sanctions filed.
PDF:
Date: 07/25/2016
Proceedings: Response to Appellees' Joint Motion for Sanctions filed.
PDF:
Date: 07/25/2016
Proceedings: Appellant Joseph McClash Motion to Accept Late Filed Motion for Attorney's Fees and Motion for Attorney's Fees filed.
PDF:
Date: 07/25/2016
Proceedings: Organizational Appellants' Response to Appellee SWFWMD's Motion for Attorney's Fees Filed July 15, 2016 filed.
PDF:
Date: 07/25/2016
Proceedings: Appellant Joseph McClash Response to Appellee SWFWMD's Motion for Attorney's Fees Filed July 15, 2016 filed.
PDF:
Date: 07/15/2016
Proceedings: Notice of Filing filed.
PDF:
Date: 07/15/2016
Proceedings: Appellee Southwest Florida Water Management District's Motion for Attorney's Fees filed.
PDF:
Date: 07/15/2016
Proceedings: Appellee's Second Joint Motion for Sanctions filed.
PDF:
Date: 07/15/2016
Proceedings: Appelles' Joint Motion for Sanctions filed.
PDF:
Date: 07/11/2016
Proceedings: Appellant's Notice Dropping Organizational Appellants & Response to Appelee's Motion for Attorney's Fees filed.
PDF:
Date: 07/11/2016
Proceedings: Request for Oral Argument filed.
PDF:
Date: 07/11/2016
Proceedings: Reply Brief filed.
PDF:
Date: 06/23/2016
Proceedings: Answer Brief of Appellee, Southwest Florida Water Management District filed.
PDF:
Date: 06/23/2016
Proceedings: Appellee Land Trust #97-12's Notice of Joinder in Southwest Florida Water Management District's Motion for Attorney's Fees filed.
PDF:
Date: 06/23/2016
Proceedings: Appellee Land Trust #97-12's Notice of Joinder in Southwest Florida Water Management District's Answer Brief filed.
PDF:
Date: 06/23/2016
Proceedings: Appellee's Answer Brief filed.
PDF:
Date: 06/23/2016
Proceedings: Appellee's Request for Oral Argument filed.
PDF:
Date: 05/10/2016
Proceedings: BY ORDER OF THE COURT: Appellees' Joint Unopposed Motion for an Extension of Time to File the Answer Briefs is granted.
PDF:
Date: 05/02/2016
Proceedings: Appellant's Initial Brief filed.
PDF:
Date: 04/26/2016
Proceedings: Record on Appeal filed.
PDF:
Date: 03/07/2016
Proceedings: Unopposed Motion for Extension of Time for Initial Brief filed.
PDF:
Date: 01/05/2016
Proceedings: BY ORDER OF THE COURT: Case has been noted as an unsuccessful mediation. All time limitations applicable to the prosecution of this appeal shall commence as of the date of this Order.
PDF:
Date: 12/30/2015
Proceedings: Notice of Appearance of Co-Counsel filed.
PDF:
Date: 11/23/2015
Proceedings: Notice of Change of Attorney of Record and Directions to Clerk to Update Attorney Information filed.
PDF:
Date: 11/20/2015
Proceedings: BY ORDER OF THE COURT: Order Appointing Mediator.
PDF:
Date: 11/19/2015
Proceedings: Amended Response to Order of Referral to Mediation filed.
PDF:
Date: 11/17/2015
Proceedings: Response to Order of Referral to Mediation filed.
PDF:
Date: 11/05/2015
Proceedings: Order of Referral to Mediation filed.
PDF:
Date: 11/04/2015
Proceedings: BY ORDER OF THE COURT: Appellee Land Trust #97-12's Motion to Transfer is denied.
PDF:
Date: 10/07/2015
Proceedings: Response and Objection to Land Trust #97-12's Motion to Transfer Venue filed.
PDF:
Date: 10/07/2015
Proceedings: Notice of Appearance of Co-Counsel filed.
PDF:
Date: 10/02/2015
Proceedings: Motion to Transfer filed.
PDF:
Date: 10/02/2015
Proceedings: Motion to Transfer filed.
PDF:
Date: 10/02/2015
Proceedings: Notice of Appearance filed.
PDF:
Date: 09/30/2015
Proceedings: Filing Fee Receipt filed.
PDF:
Date: 09/29/2015
Proceedings: Agency Final Order filed.
PDF:
Date: 09/29/2015
Proceedings: Petitioners' and Intervenors' Joint Response to Respondent's Exceptions to Recommended Order filed.
PDF:
Date: 09/29/2015
Proceedings: Southwest Florida Water Management District's Exceptions to the Recommended Order filed.
PDF:
Date: 09/29/2015
Proceedings: Respondent Land Trust #87-12's Exceptions to Recommended Order filed.
PDF:
Date: 09/29/2015
Proceedings: Notice of New Case Under Consideration for Mediation filed.
PDF:
Date: 09/29/2015
Proceedings: Acknowledgment of New Case, Fifth DCA Case No. 5D15-3424 filed.
PDF:
Date: 09/29/2015
Proceedings: Notice of Appeal filed.
PDF:
Date: 08/28/2015
Proceedings: Agency Final Order
PDF:
Date: 06/25/2015
Proceedings: Recommended Order
PDF:
Date: 06/25/2015
Proceedings: Recommended Order (hearing held February 17 through 19, 2015). CASE CLOSED.
PDF:
Date: 06/25/2015
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 05/08/2015
Proceedings: Southwest Florida Water Management District and Land Trust #97-12's Joint Proposed Recommended Order filed.
PDF:
Date: 05/08/2015
Proceedings: Petitioner's and Intervenor's Joint Proposed Recommended Order filed.
Date: 04/08/2015
Proceedings: Transcript of Proceedings (not available for viewing) filed.
PDF:
Date: 03/23/2015
Proceedings: Deposition of Anthony J. Janicki, Jr., Ph.D. (not available for viewing) filed.
PDF:
Date: 03/23/2015
Proceedings: Deposition In Lieu of Live Testimony at Final Hearing (Anthony J. Janicki, Jr., Ph.D.) filed.
PDF:
Date: 03/20/2015
Proceedings: Notice of Filing (Deposition in Lieu of Live Testimony of Anthony Janicki, Jr., Ph. D.) filed.
PDF:
Date: 03/13/2015
Proceedings: Petitioner's Corrected Cross Notice of Taking Deposition in Lieu of Testimony of Anthony Janicki, Ph.D filed.
PDF:
Date: 03/13/2015
Proceedings: Petitioner's Cross Notice of Taking Deposition in Lieu of Testimony of Anthony Janicki, Ph.D filed.
PDF:
Date: 03/13/2015
Proceedings: Southwest Florida Water Management District's Cross Notice of Taking Deposition in Lieu of Testimony of Anthony Janicki, Ph.D filed.
PDF:
Date: 03/12/2015
Proceedings: Respondent Land Trust #97-12's Notice of Taking Deposition in Lieu of Testimony of Anthony Janicki, Ph.D filed.
PDF:
Date: 02/19/2015
Proceedings: Stipulated Facts as to Manasota 88, Inc. filed.
PDF:
Date: 02/19/2015
Proceedings: Stipulated Facts as to Suncoast Waterkeeper, Inc. filed.
PDF:
Date: 02/19/2015
Proceedings: Stipulated Facts as to Florida Institute for Saltwater Heritage, Inc. filed.
Date: 02/17/2015
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 02/17/2015
Proceedings: Amended Stipulated Facts as to Sierra Club, Inc. filed.
PDF:
Date: 02/16/2015
Proceedings: Petitioner's Objections to Respondents' Unilateral Pre-hearing Filing filed.
PDF:
Date: 02/16/2015
Proceedings: Stipulated Facts as to Sierra Club, Inc. filed.
PDF:
Date: 02/16/2015
Proceedings: Responses to Request for Admissions to the Petitioner Manasota-88 Inc. filed.
PDF:
Date: 02/16/2015
Proceedings: Responses to Request for Admissions to the Petitioner Joseph McClash filed.
PDF:
Date: 02/16/2015
Proceedings: Responses to Request for Admissions to the Petitioner Florida Institute for Saltwater Heritage, Inc. filed.
PDF:
Date: 02/12/2015
Proceedings: Southwest Florida Water Management District's Response to Petitioner Manasota-88, Inc.'s Request for Admissions filed.
PDF:
Date: 02/12/2015
Proceedings: Southwest Florida Water Management District's Response to Petitioner Joseph McClash's Request for Admissions filed.
PDF:
Date: 02/12/2015
Proceedings: Land Trust #97-12's Response to Petitioner Joseph McClash's Request for Admissions filed.
PDF:
Date: 02/11/2015
Proceedings: Respondents Land Trust #97-12 and Southwest Florida Water Management District's Unilateral Joint Pre-Hearing Stipulation filed.
PDF:
Date: 02/11/2015
Proceedings: Notice of Service of Respondent Southwest Florida Water Management District's Response to Petitioner Manasota-88, Inc.'s First Set of Interrogatories filed.
PDF:
Date: 02/11/2015
Proceedings: Joseph McClash, Manasota-88, Inc., Florida Institute for Saltwater Heritage, Inc., Sierra Club, Inc., and Suncoast Waterkeeper, Inc. filed.
PDF:
Date: 02/10/2015
Proceedings: Suncoast Waterkeeper's Witness List and (Proposed) Exhibit List filed.
PDF:
Date: 02/10/2015
Proceedings: Sierra's Witness List and (Proposed) Exhibit List filed.
PDF:
Date: 02/10/2015
Proceedings: Order.
PDF:
Date: 02/09/2015
Proceedings: Order (granting motion in limine).
PDF:
Date: 02/09/2015
Proceedings: Order Granting Extension of Time.
PDF:
Date: 02/09/2015
Proceedings: Order Granting Petitions to Intervene.
PDF:
Date: 02/09/2015
Proceedings: (Respondent's) Motion for Extension of Deadline to File Pre-hearing Stipulation filed.
PDF:
Date: 02/09/2015
Proceedings: Petitioner's Response to Respondent Land Trust #97-12's and Southwest Florida Water Management District's Joint Motion in Limine filed.
PDF:
Date: 02/06/2015
Proceedings: Respondent Land Trust #97-12's and Southwest Florida Water Management District's Joint Motion in Limine filed.
PDF:
Date: 02/06/2015
Proceedings: Joint Response to Order to Show Cause filed.
PDF:
Date: 02/06/2015
Proceedings: (Petitioner's) Responses to Respondent Land Trust #97-12's First Interrogatories to Petitioner/Intervenor Florida Institute for Saltwater Heritage, Inc. filed.
PDF:
Date: 02/06/2015
Proceedings: (Petitioner's) Responses to Respondent Southwest Florida Water Management District's First Interrogatories to Petitioner Joseph McClash filed.
PDF:
Date: 02/06/2015
Proceedings: (Petitioner's) Modified Answers to Respondent Land Trust #97-12's First Interrogatories to Petitioner Joseph McClash filed.
PDF:
Date: 02/06/2015
Proceedings: Petitioner Joseph McClash's Fourth Amended Verified Petition and Verified Motion to Intervene filed.
PDF:
Date: 02/06/2015
Proceedings: Petitioner Manasota-88, Inc.'s Second Amended Verified Petition for Formal Administrative Hearing or Intervention filed.
PDF:
Date: 02/05/2015
Proceedings: Petitioner Florida Institute for Saltwater Heritage Inc. Second Amended Verified Petition for Formal Administrative Hearing or Intervention filed.
PDF:
Date: 02/04/2015
Proceedings: Southwest Florida Water Management District's Cross-notice of Taking Deposition Duces Tecum of Mark Coarsey filed.
PDF:
Date: 02/04/2015
Proceedings: Southwest Florida Water Management District's Cross-notice of Taking Deposition Duces Tecum of John Stevely filed.
PDF:
Date: 02/04/2015
Proceedings: Respondent Land Trust 97-12's Notice of Cancellation of Deposition Duces Tecum of Rob Brown filed.
PDF:
Date: 02/04/2015
Proceedings: Southwest Florida Water Management District's Cross-notice of Taking Deposition Duces Tecum of Lee Cook filed.
PDF:
Date: 02/04/2015
Proceedings: Order to Show Cause.
PDF:
Date: 02/04/2015
Proceedings: Order (on Petitioners' motions to amend their petitions for hearing).
Date: 02/03/2015
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 02/03/2015
Proceedings: Respondent Land Trust #97-12's Amended Notice of Taking Deposition Duces Tecum of Rob Brown filed.
PDF:
Date: 02/03/2015
Proceedings: Respondent Land Trust #97-12's Notice of Taking Deposition Duces Tecum of John Stevely filed.
PDF:
Date: 02/03/2015
Proceedings: Respondent Land Trust #97-12's Notice of Taking Deposition Duces Tecum of Mark Coarsey filed.
PDF:
Date: 02/03/2015
Proceedings: Respondent Land Trust #97-12's Response in Opposition to Suncoast Waterkeeper, Inc.'s Petition to Intervene filed.
PDF:
Date: 02/03/2015
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for February 3, 2015; 3:00 p.m.).
PDF:
Date: 02/03/2015
Proceedings: Southwest Florida Water Management District's Cross-notice of Taking Deposition Duces Tecum of Jay Leverone filed.
PDF:
Date: 02/03/2015
Proceedings: Southwest Florida Water Management District's Cross-notice of Taking Deposition Duces Tecum of Sam Johnston filed.
PDF:
Date: 02/02/2015
Proceedings: Respondent Land Trust #97-12's Response in Opposition to Sierra Club, Inc.'s Petition to Intervene filed.
PDF:
Date: 02/02/2015
Proceedings: Respondent Land Trust #97-12's Notice of Taking Deposition Duces Tecum of Jay Leverone filed.
PDF:
Date: 02/02/2015
Proceedings: Respondent Land Trust #97-12's Amended Notice of Taking Deposition Duces Tecum of Sam Johnston filed.
PDF:
Date: 02/02/2015
Proceedings: Respondent Land Trust #97-12's Response in Opposition to Petitioner Joseph McClash's Motion to Amend filed.
PDF:
Date: 02/02/2015
Proceedings: Respondent Land Trust #97-12's Response in Opposition to Petitioner Florida for Saltwater Heritage, Inc.'s Motion to Amend filed.
PDF:
Date: 01/30/2015
Proceedings: Respondent Land Trust #97-12's Response in Opposition to Petitioner Manasota 88, Inc.'s Motion to Amend filed.
PDF:
Date: 01/30/2015
Proceedings: Respondent Land Trust #97-12's Notice of Taking Deposition Duces Tecum of Rob Brown filed.
PDF:
Date: 01/30/2015
Proceedings: Respondent Land Trust #97-12's Notice of Taking Deposition Duces Tecum of Lee Cook filed.
PDF:
Date: 01/30/2015
Proceedings: Respondent Land Trust #97-12's Notice of Taking Deposition Duces Tecum of Sam Johnston filed.
PDF:
Date: 01/28/2015
Proceedings: Order (on Petitioner's motion to compel).
PDF:
Date: 01/28/2015
Proceedings: Motion to Amend Petitioner Joseph Mclash's Amendment to Joseph McClash's Third Amended Verified Petition and Verified Motion to Intervene filed.
PDF:
Date: 01/27/2015
Proceedings: Land Trust #97-12's Response in Opposition to Petitioner Joseph McClash's Motion to Compel and to Impose Sanctions filed.
PDF:
Date: 01/27/2015
Proceedings: Verified Petition to Intervene in Formal Administrative Hearing (filed by Suncoast Waterkeeper, Inc.) filed.
PDF:
Date: 01/27/2015
Proceedings: Respondent Land Trust #97-12's Motion to Strike Petitioner Joseph McClash's January 23, 2015 Amendment to Third Amended Verified Petition and Verified Motion to Intervene filed.
PDF:
Date: 01/26/2015
Proceedings: Verified Petition to Intervene In Formal Administrative Hearing filed.
PDF:
Date: 01/26/2015
Proceedings: Verified Petition to Intervene in Formal Administrative Hearing (filed by Sierra Club, Inc.) filed.
PDF:
Date: 01/23/2015
Proceedings: Petitioner Manasota-88, Inc.'s Motion to Amend Amended Verified Petition for Formal Administrative Hearing or Intervention filed.
PDF:
Date: 01/23/2015
Proceedings: Petitioner Florida Institute for Saltwater Heritage, Inc.'s Motion to Amend Amended Verified Petition for Formal Administrative Hearing or Intervention filed.
PDF:
Date: 01/23/2015
Proceedings: Petitioner Joseph McClash's Amendment to Joseph McClash's Third Amended Verified Petition & Verified Motion to Intervene filed.
PDF:
Date: 01/21/2015
Proceedings: Supplement to Petitioner Joseph McClash's Amended Motion to Compel and to Impose Sanctions filed.
PDF:
Date: 01/21/2015
Proceedings: Land Trust # 97-12's Response in Opposition to Petitioner Joseph McClash's Motion to Compel and to Impose Sanctions filed.
PDF:
Date: 01/20/2015
Proceedings: Petitioner Joseph McClash's Amended Motion to Compel and to Impose Sanctions filed.
PDF:
Date: 01/16/2015
Proceedings: Notice of Service of Respondent Southwest Florida Water Management District's Response to Petitioner Florida Institute for Saltwater Heritage Inc.'s First Set of Interrogatories filed.
PDF:
Date: 01/16/2015
Proceedings: Land Trust #97-12 Notice of Serving Response to Petitioner Florida Institute for Saltwater Heritage, Inc.'s First Set of Interrogatories filed.
PDF:
Date: 01/15/2015
Proceedings: Petitioner Joseph McClash's Motion to Compel and Impose Sanctions filed.
PDF:
Date: 01/13/2015
Proceedings: Manasota-88, Inc.'s Request for Admissions to Southwest Florida Water Management District filed.
PDF:
Date: 01/13/2015
Proceedings: Notice to Parties.
PDF:
Date: 01/13/2015
Proceedings: Jospeh McClash's Request for Admissions to Southwest Florida Water Management Distict filed.
PDF:
Date: 01/13/2015
Proceedings: Joseph McClash's Request for Admissions to Land Trust #97-12 filed.
PDF:
Date: 01/13/2015
Proceedings: Land Trust #97-12 Notice of Withdrawal of Motion to Compel and to Impose Sanctions filed.
PDF:
Date: 01/12/2015
Proceedings: Petitioner, Manasota-88, Inc.'s Notice of Service of Interrogatories to Respondent, Southwest Florida Water Management District's filed.
PDF:
Date: 01/12/2015
Proceedings: (Petitioner's) Responses to Respondent Land Trust #97-12's First Interrogatories to Petitioner/Intervenor Florida Institute for Saltwater Heritage, Inc. filed.
PDF:
Date: 01/12/2015
Proceedings: Land Trust #97-12's Request for Admissions to Florida Institute for Saltwater Heritage, Inc. filed.
PDF:
Date: 01/12/2015
Proceedings: Land Trust #97-12's Request for Admissions to Manasota-88, Inc. filed.
PDF:
Date: 01/12/2015
Proceedings: Land Trust #97-12's Request for Admissions to Joseph McClash filed.
PDF:
Date: 01/12/2015
Proceedings: Land Trust #97-12's Supplement to Motion to Compel and to Impose Sanctions filed.
PDF:
Date: 01/12/2015
Proceedings: Florida Institute for Saltwater Heritage, Inc.'s Response to Land Trust #97-12 Motion to Compel and to Impose Sanctions filed.
PDF:
Date: 01/09/2015
Proceedings: Land Trust #97-12's Motion to Compel and to Impose Sanctions filed.
PDF:
Date: 01/09/2015
Proceedings: Petitioners Joseph McClash, FISH and Manasota-88, Inc.'s Joint Potential Witness List filed.
PDF:
Date: 01/08/2015
Proceedings: (Respondent's) Potential Witness List filed.
PDF:
Date: 01/08/2015
Proceedings: Respondent Southwest Florida Water Management District's Witness List filed.
PDF:
Date: 01/06/2015
Proceedings: Petitioner Manasota-88, Inc.'s Notice of Filing Supplemental and Amended Responses to Interrogatories filed.
PDF:
Date: 01/05/2015
Proceedings: Respondent Land Trust #97-12's Amended Notice of Taking Deposition Duces Tecum of Corporate Representative of Manasota-88, Inc., filed.
PDF:
Date: 01/05/2015
Proceedings: Respondent Land Trust #97-12's Amended Notice of taking Deposition Duces Tecum of Corporate Representataive of Florida Institute of Saltwater Heritage, Inc., filed.
PDF:
Date: 01/05/2015
Proceedings: Petitioner Florida Institute for Saltwater Heritage, Inc.'s Notice of Filing Supplemental and Amended Responses to Interrogatories filed.
PDF:
Date: 01/05/2015
Proceedings: Order (denying the Motion to Dismiss).
PDF:
Date: 01/05/2015
Proceedings: Joseph McClash's Reponse to Resondent Land Trust 97-12 Motion to Dismiss Joseph McClash's Third Amended Verified Petition filed.
PDF:
Date: 01/02/2015
Proceedings: Petitioners' Manasota 88, Inc., Fish and Joseph McClash's Notice of Filing Expert Affidavit of Sam Johnston in Support of Petitions Filed and Any Motions or Responses filed.
PDF:
Date: 12/30/2014
Proceedings: Respondent Land Trust 97-12's Motion to Dismiss Joseph McClash's Third Amended Verified Petition filed.
PDF:
Date: 12/30/2014
Proceedings: Southwest Florida Water Management District's Cross-notice of Taking Deposition Duces Tecum of Corporate Representative of Florida Institute of Saltwater Heritage, Inc filed.
PDF:
Date: 12/30/2014
Proceedings: Southwest Florida Water Management District's Cross-notice of Taking Deposition Duces Tecum of Corporate Representative of Manasota-88, Inc filed.
PDF:
Date: 12/30/2014
Proceedings: Order (on Respondent's motion for summary recommended order).
PDF:
Date: 12/29/2014
Proceedings: Petitioner Joseph McClash's Notice of Filing Affidavit filed.
PDF:
Date: 12/29/2014
Proceedings: Motion for Continuance for Fish and Manasota-88 Respond to Land Trust #97-12 Motion for Summary Recommended Order filed.
PDF:
Date: 12/29/2014
Proceedings: Florida Institute for Saltwater Heritage, Inc. and Manasot-88 Joint Response in Opposition to Respondent Land Trust 97-12 Motion for Summary Recommended Order filed.
PDF:
Date: 12/24/2014
Proceedings: Land Trust #97-12 Notice of Filing Manasota-88's Partial Response to Interrogatories filed.
PDF:
Date: 12/24/2014
Proceedings: Amended Notice of Hearing (hearing set for February 17 through 20, 2015; 9:00 a.m.; Tampa, FL; amended as to final hearing start date).
PDF:
Date: 12/24/2014
Proceedings: Order (denying Petitioner's motion to change dates and venue for hearing; except tha the final hearing shall start one day later on February 17, 2015).
PDF:
Date: 12/23/2014
Proceedings: Respondents Land Trust #97-12 and Southwest Florida Water Management District's Joint Response in Opposition to Petitioner's Motion for Change of Dates and Venue filed.
PDF:
Date: 12/23/2014
Proceedings: Southwest Florida Water Management District's Cross-notice of Taking Deposition Duces Tecum of Joseph McClash filed.
PDF:
Date: 12/22/2014
Proceedings: (Respondent's) Motion for Summary Recommended Order filed.
PDF:
Date: 12/22/2014
Proceedings: Land Trust #97-12 Request for Production of Documents to Manasota-88, Inc. filed.
PDF:
Date: 12/22/2014
Proceedings: Land Trust #97-12 Request for Production of Documents to Florida Institute for Saltwater Heritage, Inc. filed.
PDF:
Date: 12/19/2014
Proceedings: Petitioner Joseph McClash's Notice of Filing District Responses to Interrogatories filed.
PDF:
Date: 12/17/2014
Proceedings: Respondent Land Trust #97-12's Notice of Taking Deposition Duces Tecum of Corporate Representative of Manasota-88, Inc. filed.
PDF:
Date: 12/17/2014
Proceedings: Respondent Land Trust #97-12's Notice of Taking Deposition Duces Tecum of Corporate Representative of Florida Institute of Saltwater Heritage, Inc. filed.
PDF:
Date: 12/17/2014
Proceedings: Respondent Land Trust #97-12's Notice of Taking Deposition Duces Tecum of Joseph McClash filed.
PDF:
Date: 12/17/2014
Proceedings: Petitioner's Motion for Change of Dates and Venue filed.
PDF:
Date: 12/17/2014
Proceedings: (Petitioner's) Notice of Unavailability filed.
PDF:
Date: 12/17/2014
Proceedings: Notice of Service of Petitioner, Florida Institute for Saltwater Heritage, Inc., to Southwest Florida Water Management District, Respondent's First Interrogatories and Petitioner, Florida Institute for Saltwater Heritage, Inc., to Land Trust No. 97-12, Respondent's First Interrogatories (filed in Case No. 14-005135).
PDF:
Date: 12/15/2014
Proceedings: Land Trust #97-12 Request for Production of Documents and Entry Upon Land for Inspection to Joseph McClash filed.
PDF:
Date: 12/11/2014
Proceedings: Joseph McClash's Third Amended Verified Petition and Verified Motion to Intervene (part 2) filed.
PDF:
Date: 12/11/2014
Proceedings: Order (on Respondent's motion for clarification).
PDF:
Date: 12/11/2014
Proceedings: Joseph McClash's Third Amended Verified Petition and Verified Motion to Intervene (part 1) filed.
PDF:
Date: 12/10/2014
Proceedings: Land Trust #97-12 Motion for Clarification filed.
PDF:
Date: 12/10/2014
Proceedings: Joseph McClash's Third Amended Verified Petition & Verified Motion to Intervene (incomplete) filed.
PDF:
Date: 12/09/2014
Proceedings: Order (granting motion to strike; denying motion for leave to file another second amended petition; and granting Petitoner leave to file a third amended petition no later than December 12, 2014).
PDF:
Date: 12/08/2014
Proceedings: Notice of Service of Motion to Allow the Filing of Joseph McClash's Second Amended Verified Petition & Verified Motion to Intervene Consistent with Rule 28-106.202 filed.
PDF:
Date: 12/08/2014
Proceedings: Motion to Allow the Filing of Joseph McClash's Second Amended Verified Petition & Verified Motion to Intervene Consistent with Rule 28-106.202 filed.
PDF:
Date: 12/08/2014
Proceedings: Notice of Service of Answers to Southwest Florida Water Management District's First Set of Interrogatories from Petitioner, Manasota-88, Inc. (filed in Case No. 14-005038).
PDF:
Date: 12/08/2014
Proceedings: Notice of Service Answers to Southwest Florida Water Management District's First Set of Interrogatories from Petitioner, Florida Institute for Saltwater Heritage, Inc., (filed in Case No. 14-005135).
PDF:
Date: 12/05/2014
Proceedings: Respondent Land Trust #97-12's Motion to Strike Petitioner Joseph McClash's December 5, 2014 Second Amended Verified Petition and Verified Motion to Intervene filed.
PDF:
Date: 12/05/2014
Proceedings: Order (on Respondent's Motion to dismiss Petitioner's response to the Order to Show Cause).
PDF:
Date: 12/05/2014
Proceedings: Joseph McClash's Second Amended Verified Petition & Verified Motion to Intervene filed.
PDF:
Date: 12/05/2014
Proceedings: Notice of Service Joseph McClash's Second Amended Verified Petition & Verified Motion to Intervene filed.
PDF:
Date: 12/05/2014
Proceedings: Notice of Service Florida Institute for Saltwater Heritage, Inc.'s Response to Order to Show Cause (filed in Case No. 14-005135).
PDF:
Date: 12/05/2014
Proceedings: Florida Institute for Saltwater HEritage, Inc.'s Response to Order to Show Cause (filed in Case No. 14-005135).
PDF:
Date: 12/03/2014
Proceedings: Notice of Service of Verification of Petitioner's Representative for Florida Institute for Saltwater Heritage, Inc. (filed in Case No. 14-005135).
PDF:
Date: 12/03/2014
Proceedings: Amended Verified Petition for Formal Administrative Hearing or Intervention (filed in Case No. 14-005135).
PDF:
Date: 12/01/2014
Proceedings: Notice of Service of Respondent Southwest Florida Water Management District's Response to Petitioner Joseph McClash's First Set of Interrogatories filed.
PDF:
Date: 12/01/2014
Proceedings: Respondent Land Trust #97-12's Motion to Dismiss Joseph McClash's Second Amended Verified Petition filed.
PDF:
Date: 12/01/2014
Proceedings: Order to Show Cause.
PDF:
Date: 12/01/2014
Proceedings: Notice of Appearance Joseph McClash as a qualified representative on behalf of Florida Institute for Saltwater and Manasota-88, Inc. (Joseph McClash) filed.
PDF:
Date: 11/26/2014
Proceedings: Notice of Service of Petitioner Manasota-88 Response to Respondent Land Trust No. 97-12 Interrogatories filed.
PDF:
Date: 11/24/2014
Proceedings: Notice of Service of Respondent Land Trust #97-12s Response to Joseph McClashs First Interrogatories filed.
PDF:
Date: 11/24/2014
Proceedings: Southwest Florida Water Management District's Notice of Service of Interrogatories to Petitioner Joseph McClash filed.
PDF:
Date: 11/19/2014
Proceedings: Respondent Land Trust #97-12's Motion to Dismiss Florida Institute for Saltwater Heritage's Petition for Lack of Standing filed.
PDF:
Date: 11/19/2014
Proceedings: Notice of Service of Petitioner Joseph McClash Response to Respondent Land Trust No. 97-12 Interrogatories filed.
PDF:
Date: 11/13/2014
Proceedings: Order Accepting Qualified Representative.
PDF:
Date: 11/12/2014
Proceedings: Land Trust #97-12 Response to Florida Institute for Saltwater Heritage, Inc.'s Request for Representation by Qualified Representative filed.
PDF:
Date: 11/12/2014
Proceedings: Respondent Land Trust #97-12's Response to Petitioner Joseph McClash's Request for Production of Documents and Things and Entry Upon Land for Inspection and Other Purposes filed.
PDF:
Date: 11/12/2014
Proceedings: Joseph McClash's Second Amended Verified Petition and Verified Motion to Intervene filed.
PDF:
Date: 11/12/2014
Proceedings: Notice of Service of Respondent Land Trust #97-12's First Interrogatories to Florida Institute for Saltwater Heritage, Inc. filed.
PDF:
Date: 11/10/2014
Proceedings: Petitioner's Request for Representation by Qualified Representative filed.
PDF:
Date: 11/10/2014
Proceedings: Petitioner's Request for Representation by Qualified Representative filed.
PDF:
Date: 11/07/2014
Proceedings: Southwest Florida Water Management District's Notice of Service of First Set of Interrogatories to Petitioner Florida Institute for Saltwater Heritage, Inc (filed in Case No. 14-005135).
PDF:
Date: 11/07/2014
Proceedings: Southwest Florida Water Management District's Notice of Service of First Set of Interrogatories to Petitioner, Manasota-88, Inc. (filed in Case No. 14-005038).
PDF:
Date: 11/07/2014
Proceedings: Order (dismissing Petitioner's first amended petition and granting leave to file a second amended petition).
PDF:
Date: 11/06/2014
Proceedings: Response by Petitioner Joseph McClash to Motion to Dismiss Filed by Respondent LAND TRUST #97-12 filed.
PDF:
Date: 11/06/2014
Proceedings: Notice of Hearing (hearing set for February 16 through 20, 2015; 1:00 p.m.; Tampa, FL).
PDF:
Date: 11/06/2014
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 11/03/2014
Proceedings: Respondent Land Trust #97-12's Motion to Dismiss for Lack of Standing filed.
PDF:
Date: 11/03/2014
Proceedings: Order (denying request for official recognition).
PDF:
Date: 10/31/2014
Proceedings: Joint Response to Initial Order (filed in Case No. 14-005038).
PDF:
Date: 10/31/2014
Proceedings: Response to Initial Order filed.
PDF:
Date: 10/31/2014
Proceedings: Order of Consolidation (DOAH Case No. 14-5135)).
PDF:
Date: 10/29/2014
Proceedings: Order of Consolidation (DOAH Case Nos. 14-4735 and 14-5038)).
PDF:
Date: 10/28/2014
Proceedings: Notice of Transfer.
PDF:
Date: 10/28/2014
Proceedings: Notice of Appearance (Martha Moore) filed.
PDF:
Date: 10/28/2014
Proceedings: Notice of Appearance (Craig Varn) filed.
PDF:
Date: 10/28/2014
Proceedings: Notice of Transfer.
PDF:
Date: 10/27/2014
Proceedings: Notice of Service of Respondent Land Trust #97-12's First Interrogatories to Petitioner Manasota-88, Inc filed.
PDF:
Date: 10/27/2014
Proceedings: Notice of Appearance (Paria Shirzadi) filed.
PDF:
Date: 10/27/2014
Proceedings: Notice of Appearance (Douglas Manson) filed.
PDF:
Date: 10/24/2014
Proceedings: Initial Order.
PDF:
Date: 10/23/2014
Proceedings: Agency action letter filed.
PDF:
Date: 10/23/2014
Proceedings: Amended Verified Petition for Formal Administrative Hearing or Intervention filed.
PDF:
Date: 10/23/2014
Proceedings: Agency referral filed.
PDF:
Date: 11/15/2009
Proceedings: Notice of Change of Attorney of Record and Directons to Clerk to Update Attorney Information filed.

Case Information

Judge:
BRAM D. E. CANTER
Date Filed:
10/23/2014
Date Assignment:
10/28/2014
Last Docket Entry:
04/10/2017
Location:
Tampa, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

Counsels

Related DOAH Cases(s) (3):

Related Florida Statute(s) (7):