Application notice of rights - 1998-06-11

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Application notice of rights - 1998-06-11

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Application notice of rights - 1998-06-11
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Box 2


Subjects / Keywords:
Ranchers -- Law and legislation -- Florida
Okeechobee, Lake (Fla.) ( lcsh )

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University of South Florida
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University of South Florida
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The University of South Florida Libraries believes that the Item is in the Public Domain under the laws of the United States, but a determination was not made as to its copyright status under the copyright laws of other countries. The Item may not be in the Public Domain under the laws of other countries.
Resource Identifier:
035069031 ( ALEPH )
981477171 ( OCLC )
L41-00005 ( USFLDC DOI )
l41.5 ( USFLDC Handle )

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University of South Florida

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South Florida Water Management District 3301 Gun Club Road, West Palm Beach, F1orida33406 • (561) 686-8800 • FL WATS 1-800-432-2045 TDD (561) 697-2574 June 11 101 Ranch 208 North Parrot Avenue Okeechobee, FL 34972 Subject: Application No. 980213-6, 101 Ranch, Okeechobee County, S5,6,7,8,9,17ffi4S /R34E Enclosed is a copy of this District's staff report covering the permit application referenced therein. It is requested that you read this staff report thoroughly and understand its contents. The recommendations as stated in the staff report will be presented to our Governing Board for consideration on June 11, 1998. . Should you wish to object to the staff recommendations or file a petition, please provide written objections, petitions and/or waivers (refer to the attached ''Notice of Right') to: Vern Kaiser, Deputy Clerk South Florida Water Management District Post Office Box 24680 West Palm Beach, Florida 33416-4680 The ''Notice of Rights" addresses the procedures to be followed if you desire a public hearing qr other review of the proposed agency action. You are advised, however, to be prepared tp .defend your position regarding the permit application when it is considered by the Governing Board for final agency action, . even if you agree with the staff recommendations, as the Governing Board may take final agency action which differs materially from the proposed agency action. Please contact the District if you have any questions concerning this matter. If we do not hear from you prior to the date on the "Notice of Rights", we will assume you concur with our recommendations. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a "Notice of Rights" has been mailed to the addressee this of June 1998, in accordance with Section 120.60 (3) Florida Statutes. Kenneth G . Ammon, P .E. Deputy Director Regulation Department KGA/ne CERTIFIED Z 082 065 524 RETURN RECEIPT REQUESTED GO'lJerning Board: 11th day Frank Williamson, Jr., Chairman Eugene K.. Pettis, Vice Chairman Mitchell W. Berger . Vera M. Carter William E. Graham William Hammond Richard A. Machek Michael D. Minton Miriam Singer Samuel E. Poole Ill, Executive Director Michael Slayton, Deputy Executive Director Mailing Address: P.O. Box 24680, West Palm Beach, FL 33416-4680


NOTICE OF RIGHTS Section 120.569(1), Fla. Stat. (1997), requires that "each notice shall inform the recipient of any administrative hearing or judicial review that is available under this section, s. 120.57, ors. 120.68; shall indicate the procedure which must be followed to obtain the hearing or judicial review, and shall state the time limits which apply." Please note that this Notice of Rights is not intended to provide legal advice. Not all the legal proceedings detailed below may be an applicable or appropriate remedy. You may wish to consult an attorney regarding your legal rights. PETITION FOR ADMINISTRATIVE PROCEEDINGS 1. Any person whose substantial interests are affected by the South Florida Water Management District's (SFWMD) action has the right to request an administrative hearing on that action. The affected person may request either a formal or an informal hearing, as set forth below. Petitions must substantially comply with the requirements of Rule 40E-l.521, Fla. Admin. Code . A copy of the relevant portions of the rule is attached to this Notice of Rights. Petitions are deemed filed upon receipt of the original documents by the SFWMD Clerk. a. If a genuine issue(s) of material fact is in dispute, the affected person may request a formal hearing pursuant to Sections 120.569 and 120.57(1), Fla. Stat. ( 1997), by filing a petition for formal hearing within 14 days of notice of proposed agency action. b. If there are no issues of material fact in dispute, the affected person may request an informal hearing pursuant to Sections 120.569 and 120.57(2), Fla. Stat. ( 1997), by filing a petition for an informal hearing within 14 days of notice of proposed agency action . Because the administrative hearing process is designed to formulate final agency action, the filing of a petition means that the SFWMD's final action may be different from the position taken by it previously. Persons whose substantial interests will be affected by any such final decision of the SFWMD have the right to petition to become a party to the proceeding, in accordance with Rule 40E-1.521, Fla. Admin . Code . In addition to the above requirements, if a Respondent objects to a SFWMD Administrative Complaint and Order, pursuant to Rule 40E-l.705(3), Fla. Admin. Code, the petition must also contain all defenses to the Administrative Complaint and Order, if any, and admit or deny each Finding of Fact contained therein, or state April, 1998 1 that the Respondent is without knowledge as to the same, which is deemed to be a denial. Furthermore, any person whose substantial interests are affected by a SFWMD Emergency Authorization and Order, has a right pursuant to Rule 40E-l.611, Fla. Admin. Code to request an administrative hearing. The petition must comply with the above requirements. However, the person, or the agent of the person responsible for causing or contributing to the emergency conditions shall take whatever action necessary to cause immediate compliance with the terms of the Emergency Authorization and Order. CffiCUIT COURT 2. Pursuant to Section 373.617, Fla. Stat. ( 1997), any substantially affected person who claims that final agency action of the SFWMD relating to permit decisions constitutes an unconstitutional taking of property without just compensation may seek judicial review of the action in circuit court by filing a civil action in the circuit court in the judicial circuit in which the affected property is located within 90 days of the rendering of the SFWMD's final agency action. 3. Pursuant to Section 403.412, Fla. Stat., any citizen of Florida may bring an action for injunctive relief against the SFWMD to compel the SFWMD to enforce the laws of Chapter 373, Fla. Stat., and Title 40E, Fla. Admin. Code. The complaining party must file with the SFWMD Clerk a verified complaint setting forth the facts upon which the complaint is based and the manner in which the complaining party is affected . If the SFWMD does not take appropriate action on the complaint within 30 days of receipt, the complaining party may then file a civil suit for injunctive relief in the 15th Judicial Circuit in and for Palm Beach County or circuit court in the county where the cause of action allegedly occurred.


4 . Pursuant to Section 373.433 , Fla . Stat., a private citizen of Florida may file suit in circuit court to require the abatement of any stormwater management system, dam, impoundment, reservoir, appurtenant work or works that violate the provisions of Chapter 373, Fla. Stat. DISTRICT COURT OF APPEAL 5. Pursuant to Section 120.68, Fla. Stat. (1997), a party who is adversely affected by final SFWMD action may seek judicial review of the SFWMD's final decision by filing a notice of appeal pursuant to Florida Rule of Appellate Procedure 9.110 in the Fourth District Court of Appeal or in the appellate district where a party resides and filing a second copy of the notice with the SFWMD Clerk within 30 days ofrendering of the final SFWMD action . LAND AND WATER ADJUDICATORY COMrYUSSION 6 . A party to a "proceeding below" may seek review by the Land and Water Adjudicatory Commission (LAW AC) of SFWMD's final agency action to determine if such action is consistent with the provisions and purposes of Chapter 373, Fla. Stat. Pursuant to Section 373 . 114, Fla. Stat. (1997), and Rules 42-2.013 and 42-2.0132, Fla. Admin. Code, a request for review of (a) an order or rule of the SFWMD must be filed with LA WAC within 20 days after rendition of the order or adoption of the rule sought to be reviewed; (b) an order of the Department of Environmental Protection (DEP) requiring amendment or repeal of a SFWMD rule must be filed with LAWAC within 30 days of rendition of the DEP's order, and (c) a SFWMD order entered pursuant to a formal administrative hearing under Section 120 . 57( 1 ), Fla . Stat. (1997), must be filed no later than 20 days after rendition of the SFWMD's final order. Simultaneous with filing, a copy of the request for review must be served on the DEP Secretary, any person named in the SFWMD or DEP final order, and all parties to the proceeding below . A copy of Rule 42 2 . 013, Fla . Admin. Code is attached to this Notice of Rights. PRIVATE PROPERTY RIGHTS PROTECTION ACT 7 . A property owner who alleges a specific action of the SFWMD has inordinately burdened an existing use of the real property, or a vested right to a specific use of the real property, may file a claim in the circuit court where the real property is located within 1 April , 1998 2 ... year of the SFWMD action pursuant to the procedures set forth in Subsection 70. 001(4)(a), Fla . Stat (1997) . LAND USE AND ENVIRONMENTAL DISPUfE RESOLurION 8. A property owner who alleges that a SFWMD development order (as that term is defined in Section 70 . 51(2)(a), Fla. Stat. to include permits) or SFWMD enforcement action is unreasonable, or unfairly burdens the use of the real property, may file a request for relief with the SFWMD within 30 days of receipt of the SFWMD's order or notice of agency action pursuant to the procedures set forth in Subsections 70.51(4) and (6), Fla. Stat. (1997) MEDIATION 9. A person whose substantial interests are, or may be, affected by the SFWMD's action may choose mediation as an alternative remedy under Section 120.573, Fla. Stat. (1997), within 14 days of receipt of notice of agency action or proposed agency action . Choosing mediation will not adversely affect the right to an administrative hearing if mediation does not result in settlement. A person may pursue mediation by reaching a mediation agreement with all the parties to the proceeding and by showing how the substantial interest of each mediating party is affected by the SFWMD's action or proposed agency action. The agreement must be executed by all the parties and filed with the SFWMD Clerk within 14 days of receipt of notice of 'lgency action or proposed agency action. The agreement to mediate must include the following: a) The names, addresses, and telephon e numbers of any persons who may attend the mediation ; b) The name, address, and telephone number of the mediator selected by the parties, or a provision for selecting a mediator within a specified timeframe; c) The agreed allocation of .the costs and fees associated with the mediation; d) The agreement of the partie s regarding confidentiality of discussions and documents introduced during mediation; e) The date, time, and place of the first mediation session, or a deadline for holding the first session, if not mediator has yet been chosen; f) The name of each party's representative who shall have the authority to settle or recommend settlement, and;


g) Either an explanation of how the substantial interests of each mediating party will be affected by the SFWMD action or proposed action or a statement clearly identifying the petition for hearing that each party has already filed, and incorporating it by reference. AB provided in Section 120.573, Fia. Stat." (1997), the timely agreement of all the parties to mediat.e will toll the time limitations imposed by Sections 120 . 569 and 120.57, Fla. Stat., for requesting and holding an administrative hearing. Unless otherwise agreed by the parties, the mediation must be concluded within 60 days of the execution of the agTeement. If mediation results in settlement of the dispute, the SFWMD must enter a final order incorporating the agTeement of the parties. Persons whose substantial interest will be affected by such a modified agency decision have a right to petition for hearing within 14 days of receipt of the final order accordance with the requirements of Sections 120.569 and 120.57, Fla. Stat. , and SFWMD Rule 40E-l.521; Fla. Admin . Code . If mediation terminates without settlement of the dispute, the SFWMD shall notify all parties in writing that the administrative hearing process under Sections 120.569 and 120.57, Fla. Stat., remain available for disposition of the dispute, and the notice will specify the deadlines that then will apply for challenging the agency action. VARIANCES AND WAIVERS 10. A person who is subject to regulation pursuant to a SFWMD rule and believes the application of that rule will create a substantial hardship or will violat.e principles of fairness (as those terms are defined in Subsection 120 . 542(2), Fla. Stat. (1997) ) and can demonstrate that the purpose of the underlying statute will be or has been achieved by other means, may file a petition with the SFWMD Clerk requesting a variance from or waiver of the SFWMD rule. Applying for a variance or waiver does not substitute or extend the time for filing a petition for an administrative hearing or exercising any other right that a person may have i\.pril, 1998 3 concerning the SFWMD's action . Pursuant to Uniform Rule of Procedure 28-104.002, Fla. Admin. Code, the petition must include the following : ~-a) The name, address, and telephone number of the petitioner; b) The name, address and telephone number of the attorney or qualified representative of the petitioner, if any; c) Each rule or portion of a rule from which a variance or waiver is requested; d) The underlying statute implemented by the rule identified in (c) above; e) The type of action requested; 0 The specific facts that would justify a variance or waiver for the petitioner; g) The reason why the variance or waiver would serve the purposes of the underlying statute implemented by the rule, and; h) A statement whether the variance or waiver is requested to be permanent or temporary and, if temporary, a statement of the expected duration dates of the requested variance or waiver. A person requesting an emergency variance from or waiver of a SFWMD rule must clearly so state in the caption of the petition. In addition to the requirements set forth in number 8. above, the petition must also include: a) the specific facts that make the situation an emergency; and b) the specific facts that show that the petitioner will suffer immediate and substantial hardship unless the variance or waiver is issued by the SFWMD more expeditiously than the applicable timeframes set forth in Section 120.542, Fla. Stat., and Rules 28-104.001 through 28 104.006, Fla. Adm . in . Code . WAIVER OF RIGHTS 11. Failure to observe the relevant time frames prescribed above will constitute a waiver of such right.


40E-l.521 INITIATION OF FORMAL PROCEEDINGS (1) Initiation of formal proceeding shall be made by filing a petition with the SFWMD Clerk within the applicable timeframes~ Set forth in this chapter. The term petition includes any application or other document which expresses a request for formal proceedings . (2) All petitions filed under these rules shall contain: (a) The name and address of the SFWMD and the SFWMD's file or identification number, if known; (b) The name and address of the petitioner or petitioners; (c) An explanation of how each petitioner's substantial interests will be affected by the SFWMD's determination; (d) A statement of when and how petitioner received notice of agency action or notice of proposed agency action; (e) A statement of all disputed issues of material fact. If there are none, the petition must so indicate. (0 A concise statement of the ultimate facts which petitioner believes entitle petitioner to the relief sought as well as the rules and statutes which support petitioner's claim for relief; (g) A demand for the relief to which the petitioner deems himself entitled; and (h) Other information which the petitioner contends is material . (3) Upon receipt of a petition for formal proceedings, the Office of Counsel shall review the petition for compliance with subsection (2) : the Board shall accept those petitions in substantial compliance therewith, which have been timely filed, which establish that the petitioner is a substantially affected party, and which state a dispute which is within the jurisdiction of the SFWMD to resolve. If accepted, the Board shall designate the presiding officer of the administrative hearing. The SFWMD shall promptly give written notice to ail parties of the action taken on the petition, and shall state with particularity its reasons therefor . 42-2.013 REQUEST FOR REVIEW PURSUANT TO SECTION 373.114 OR 373.217 (1) In any proceeding arising under Chapter 373, F.S., review by the Florida Land and Water Adjudicatory Commission may be initiated by the Department or a party by filing a request for such review with the Secretary of the Commission and serving a copy on any person named in the rule or order, and on all parties to the proceeding which resulted in the order sought to be reviewed. A certificate of service showing completion of service as required by this subsection shall be a requirement for a determination of sufficiency under Rule 42-2 . 0132. Failure to file the request with the Commission within the time period provided in Rule 42-2 . 0132 shall result in dismissal of the request for review. (2) The request for review shall identify the rule or order requested to be reviewed, the proceeding in which the rule or order was entered and the nature of the rule or order. A copy of the rule or order sought to be reviewed shall be attached. The request for review shall state with particularity: ' (a) How the order or rule conflicts with the requirements, provisions and purposes of Chapter 373, F.S., or rules duly adopted thereunder; (b) How the rule or order sought to be reviewed affects the interests of the party seeking review; (c) The oral or written statement, sworn or unsworn, which was submitted to the agency concerning the matter to be reviewed and the date and location of the statement, if the individual or entity requesting the review has not participated in a proceeding previously instituted pursuant to Chapter 120, F . S . . on the order for which review is sought; (cl) lf review of an order is being sought, whether and how the activity authorized by the order would substantially affect natural resources of statewide or regional significance, or whether the order raises issues of policy, statutory interpretation, or rule interpretation that have regional or statewide significance from a standpoint of agency precedent, and all the factual bases in the record which the petitioner claims support such determinationts); and (e) The action requested to be taken by the Commission as a result of the review, whether to rescind or modify the order, or remand the proceeding to the water management district for further action , or to require the water management district to initiate rulcmaking to adopt, amend or repeal a rule. April, 1998 4


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