15-004107 Environmental Confederation Of Southwest Florida, Inc. vs. Florida Fish And Wildlife Conservation Commission And Department Of Environmental Protection Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Tuesday, January 5, 2016.

STATE OF FLORIDA

DEPARTMENT OF ENVIRONMENTAL PROTECTION

ENVIRONMENTAL CONFEDERATION OF )

SOUTHWEST FLORIDA, INC., )

)

Petitioner, )

)

vs. ) OGC CASE NO. 15-0094

) DOAH CASE NO. 15-4107

FLORIDA FISH AND WILDLIFE )

CONSERVATION COMMISSION AND )

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION, )

)

Respondents. )

CONSOLIDATED FINAL ORDER

On January 5 , 2016, an Administrative Law Judge (ALJ) with the Division of

Administrative Hearings (DOAH), submitted an Order Closing File and Relinquishing

Jurisdiction (Order) to the Department of Environmental Protection (DEP or

Department) in the above captioned administrative proceeding. The Order is attached

as Exhibit A. The Order disposed of a pending administrative proceeding, in which the

Petitioner , Environmental Confederation of Southwest Florida , Inc. (Petitioner)

challenged the DEP ' s Consolidated Notice of Intent to Issue Environmental Resource

Permit and Letter of Consent to Use Sovereign Submerged Lands in File No . 22-

0303652-003 (Permit) to the Respondent, Florida Fish and Wildlife Conservation

Comm i ssion (FWC).

After ruling on the DEP's Motion in Limine and Motion to Relinquish Jurisdiction,

the ALJ canceled the scheduled final hearing and relinquished jurisdiction to the

Department for final action . In light of the ALJ's findings and conclusions, the Order was

treated as a recommended order of dismissal, and the parties were allowed the

opportunity to file written exceptions and responses . See Fla . Admin. Code R. 28 -

106 . 217 . On January 20 , the Petitioner filed its Exception to the Order , and on January

22 , the DEP filed a Response to Petit i oner ' s Exception . This matter is now on

administrative review before the Secretary of the Department for final agency action . 1

SUMMARY OF THE ORDER

The ALJ canceled the final hearing and relinquished jurisdiction after finding that

there remained no disputed issues of fact to be determined by DOAH . See Exhibit A .

The ALJ ruled that there was only one issue remaining in the case, i.e ., whether the

borrow area for fill material is in a wetland. He determined that the issue was decided

against the Petitioner in a previous case involving the same parties such that the

doctrines of res judicata and administrative finality applied . See Exhibit A at page 2 .

RULINGS ON EXCEPTIONS

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

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

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

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

So.2d 540, 542 (Fla . 4th DCA 2003) . An agency head reviewing a recommended order

is free to modify or reject any erroneous conclusions of law over which the agency has

substantive jurisdiction, however , even when exceptions are not filed . See§

1 The Secretary of the Department is delegated the authority to rev i ew and take final

agency action on applications to use sovereignty submerged lands when the application

involves an activity for which the Department has permitting responsibility . See Fla.

Admin. CodeR. 18 - 21.0051 (2).

120.57(1 )(I), Fla. Stat. (2015) ; Barfield v . Dep ' t of Health , 805 So . 2d 1008 (Fla. 1st DCA

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

1994). In reviewing a recommended order and any written exceptions, the agency's final

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

(2015). However, the agency need not rule on an exception that " does not clearly

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

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

appropriate and specific citations to the record ." /d .

PETITIONER ' S EXCEPTION

Exception No . 1

The Petitioner argues that it takes exception to the ALJ ' s Order :

... in order to preserve the status quo and allow the Second

Judicial Circuit Court case regarding Fisheating Creek (Case

No: 2015-ca-000497) to move forward. Since a temporary

injunction to enforce a settlement agreement is under

consideration in the Circuit Court , the Department of

Environmental Protection should not grant final approval for

permit number 22-0303652-003 because to grant approval

now would be in derogation of the Circuit Court's jurisdiction .

See Petitioners' Exception at page 1 . The Petitioner does not take exception to any

specific finding or conclusion in the ALJ ' s Order as required under Section 120.57(1)(k),

Florida Statutes . See§ 120.57(1 )(k) , Fla . Stat. (2015) . Therefore, this exception is

denied .

The DEP filed a Response to the Petitioner's Exception that more thoroughly

informed the Department regarding the status of the Second Judicial Circuit Court case.

The court had entered an Order Granting Defendant's Motion to Stay on September 4,

2015, requiring notification at the conclusion of the instant administrative proceeding

and prohibiting any filling of any portion of Fisheating Creek without further order from

the court . See Response to Petitioner ' s Exception at pages 1-2 . The DEP ' s Response

states that the court did not enter an order or judgement prohibiting the Department

from issuing the Permit. Further, the Petitioner does not provide any legal authority for

the assertion that approval of the permit "would be in derogation of the Circuit Court's

jurisdiction ."

Thus, the Petitioner's exception is actually a request to stay entry of the

Department's Final Order in the instant proceeding . The statutory deadline for entry of a

Final Order by the Department is 45 days after entry of the recommended order . See §

120 . 569(2)(1) , Fla . Stat. (2015) ("Unless the time period is waived or extended with the

consent of all parties, the final order ... must be rendered within [45] days ... " )and§

120 . 60(1 ), Fla. Stat. (2015) (reflecting that a license must be approved within 45 days

after the recommended order) . Therefore, to the extent that the Petitioner's exception is

a request to stay entry of the Final Order, the request does not reflect the consent and

waiver of the 45-day statutory deadline by "all parties, " and is denied.

CONCLUSION

Having considered the applicable law in light of the rulings on the Exception and

Response, and being - otherwise duly advised , it is

ORDERED that:

A. The Order Closing File and Relinquishing Jurisdiction (Exhibit A), is adopted

and incorporated herein by reference.

B. FWC ' s application for Environmental Resource Permit and Letter of Consent

to Use Sovereign Submerged Lands in DEP File No. 22-0303652-003, is GRANTED .

JUDICIAL REVIEW

Any party to this proceeding has the right to seek judi c ia l review of the Final

Order pursuant to Section 120 . 68 , Florida Statutes , by filing a Notice of Appeal pursuant

to Ru l es 9 . 110 and 9 . 190 , Florida Rules of Appellate Procedure , with the clerk of the

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

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

accompanied by the applicable filing fees with the appropriate District Court of Appeal.

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

with the clerk of the Department.

DONE AND ORDERED this LD!!:_ day of February , 2016 , in Tallahassee, Florida .

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

Marjory Stoneman Douglas Building

3900 Commonwealth Boulevard

Tallahassee , Florida 32399 - 3000

FILE D ON T HI S DATE P U R SUANT TO§ 1 20.52 ,

FLO R IDA STATUTES, WIT H TH E DESIG N ATE D

D E P A RT M ENT CLER K, RE C EI P T O F WHI C H I S

Z"'d ow 'Zlt d/ lo/J(p

' 1i i1

CLE R K DA T E

CERTIFICATE OF SERVICE

I CERTIFY that a copy of the foregoing Consolidated Final Order was sent by

electronic mail only to:

Jack Chisolm , Esquire

Department of Environmental Protection

3900 Commonwealth Blvd . , MS. 35

Tallahassee, FL 32399-3000

[e-mail] . fl . us

David G . Guest, Esquire

Bradley Marshall, Esquire

Earthjustice

111 South Martin Luther King Jr . Boulevard

Tallahassee , Florida 32301

dguest@earthjustice . org

[e-mail]

Bud Vielhauer , Esquire

Ryan Smith Osborne, Esquire

Florida Fish and Wildlife Conservation Commission

620 South Meridian Street

Tallahassee, Florida 32399-1600

Bud . Vielhauer@MyFWC . com

Ryan . Osborne@MyFWC . com

and by electronic filing to:

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee , FL 32399-1550

day of February, 2016 .

STATE OF FLORIDA DEPARTMENT

OF ENVIRONMENTAL PROTECTION

Administrative Law Counsel

3900 Commonwealth Blvd., M.S. 35

Tallahassee, FL 32399-3000

Telephone [phone]