Before SWFMD NAS Petition - 1998-06-25


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Before SWFMD NAS Petition - 1998-06-25

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Title:
Before SWFMD NAS Petition - 1998-06-25
Publication Date:
Language:
English
Physical Location:
Box 2

Subjects

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

Record Information

Source Institution:
University of South Florida
Holding Location:
University of South Florida
Rights Management:
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 )
L41-00011 ( USFLDC DOI )
l41.11 ( USFLDC Handle )

USFLDC Membership

Aggregations:
University of South Florida
Lorida

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Book

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PAGE 1

BEFORE THE SOUTH FLORIDA WATER MANAGEMENT DISTRICT . NATlONAL AUDlJl3ON SOCIETY, App]icati.on No. 980213-6 Petitioner, v . 101 RANCH, TNC. AND SOUTII FLORIDA WATER MANAGEMENT OISTRf CT, Respondents. _________________ ! PETITION FOR FORMAL ADMINISTRATIVE HEARIN(; Petitioner, NATIONAL AUDUBON SOCIETY, hereby files this Petition for Fonnal Administrative Hearing in accordance with Section 120.57 (1) and 120.569 Florida Statutes (1997) , and Fla. Admin. Code ch. 28 and 40El and in support thereof states as fo1lows: PARTIES 1. The agency affected by this petition is the South Florida Water Management District (hereinafter ''SFWMD"), 330 I Gun Club Road, West Palm Beach, Florida 33406 . 2. Petitioner is NA TTONAL AUDUBON SOCIF.TY (hereinafter 0Petitioner,.), 700 Droadway, New York, NY 100039562 . 3. The applicant is 101 Ranch, Inc. (hereinafter "101 Ranch"), 208 N. Parrot Avenue, Okeechobee, FL 34972. JURISDICTION 4. The application at . issue was mailed June 11, 1998 and rccei ved June 15, 1998 (hereinaft~r 0J\pplication"). As such , this petition is time1y filed in accordance with Section 120.57, ' -

PAGE 2

• Florida Statutes, Fla. Admin. Coder. 40E-l .5 l l) Fla . Admin. Code r . 28-5.111, et .s.e.q. an
PAGE 3

18. Whether the statement in the ERP that no adverse impact as to wading bird species are anticipated as a result of the construction is accurate; 19. Whether the ER}:>~rcview properly considered impacts to the crested caracara, sandhill crane, snail kite, burrowing owl, bald eagle, limpkit1, white ibis, woodstork, Florida water rat, indigo snake, gopher tonoisc, snowy egret, little blue heron, tri-colorcd heron, and Florida grasshqpper sparrow; 20. Whether the levies which are included in the Application were illegally constructed wherein the application is serving as an after~thc-facl permit; 21. Whether issuance of the pcrmiL with the proposed work requested is premature. DISPUTED ISSUES OF LAW Disputed issues of law include, but arc not limited to: 22. The application does not comply with the environmental evaluation r~quircments and mitigation ratios under the District rules and policies for issuance of an Envirnnmental Resource Pem1it; 23. Whether issuance of the permit is premature due to the fact that a regional study of the several properties adjacent to and in the proximity of the l 01 Ranch property is undervvay to identify a regional solution to the historic hydrology problem; 24. Whether the above referenced application is in contravention of the May 28, 1998:> Order Granting Motion for Preliminary Injunction in Case No.: 98-14144-CIV-Moore. ULTIMATE F ACTii Ultimate facts include, but are not limited lo: ' 4

PAGE 4

t Florida grasshopper sparrow. DISPUTED ISSUES OF FACT Disputed issues of fact, ._~nclude, but are not limited to: 9. Whether the delineation of wetlands and resultant acreage is correct; 1 0. Whether wetland #30 was impem1issibly ditched between 1986 and 1990 w~t.hout bcnefi t of permit ; 11. Whether tht! proposed dike along Fish Slough that will form the southwestern boundary of basin 3 violates the avoidance principal of w~t.land mitigation sequencing procedures; 12. Whether the mitigation ratio for wetland impacts is too low; 13. Whelher construction of the dike which creates secondary impacts by forcing water al Fish Slough to move south more quickly was properly considered in the permit review process; 14. 'Whether the conservation casement for the proposed ca~emen! area is appropriate in that the hydrology of the wetlands to be preserved by the easement are not under the direct" control of the applicant; 15. Whether the overall loss ofw~tlands on the 101 Ranch will impact the three wading bird rookeries on Sanctuary property since the feeding radius of the rookeries which include four (4) species of special concern (snowy egret, tri-colored heron, little blue heron, limpkin) include tht! wetlands subject to proposed impact; 16. Whether the 101 Ranch property i~ adjacent to property within the Save Onr Rivers Five Year Plan ; 17. Whether the application impermissibly constricts Fish Slough with dikes on both sides of the Slough; ' 3

PAGE 5

25. The delineation of wetlands and resultant acreage is incon~ct; 26. Wetland #30 wa" impermissihly ditched helween 1986 and 1990 without benefit of permit; 27. The proposed dike along Fish Slough that will form the southwestern boundary of Rusin 3 violates the avoidance principal of wetland mitigation sequencing proced , ures; t 28. The mitigation ratio for wetland impacts is too low; 29. Construction of the-dike which creates secondary impacts hy forcing water at Fish Slough lo move south more quickly was not properly considered in the permit review process; 30. The conservation easement for the proposed easement area is not appropriate in that the hydrology of the wetlands to be preserved by the easement arc not under the direct control of 101 Ranch; 31 . The overall loss of w~tlands on the l O 1 Ranch property will ir~pact the three wading bird rookeries on Srmctu.ary property since the feeding radius of the rookeri~s, which includes four (4) species of special concen1 (snowy egret, lri-colorcd heron> little blue heron, limpkin), include the wetlands subject. to proposed impact; 32. 101 Ranch property is adjacent to property within the Save Our Rivers Five Yeai-Plan; 33. The application impcm1issibly constricts Fish Slough with dikes on both sides of the slough~ 34. The statement in the ERP that no adverse impact as to wading bird spedes arc anticipated as a result of the construction is inaccurate; 35. The ERP review improperly con!iidercd impacts to the crested caracara, sandhill

PAGE 6

crane, ~nail kite, hunowing owl, hald eagle, limpkin, white ibis, woodstork, Florida water rat, indigo snake, gopher tortoise, snowy egret, little blue h~ron, triwcolored heron, and Florida grasshopper sparrow ; 36. The levies which arc included in the application were illegally constructed wherein the application is serving as an a!ler-the-fact pennit; 3 7. Issuance of the permit with proposed work requested is premature. PETITIONER'S SUBSTANTIAL INTEREST 38 . The above referenced Application adversely impacts the ecological and habitat benefits afforded endangered and threatened species and species of special concern which are resident to the Sanctuary . RULES AND ST A TUTF:S ENTITLING RELIEF 39. Rules and statutes entitling relief include, hut arc not limited_ to: (a) Fla. Stat. l 20.57. (b) Fla. Admin . Code ch. 28-5, 60Q~2 and 40E-l . (c) Endangered Species Act, 16 U.S.C. 1531, et seq. (d) Florida Constitution RELIEF RF.QUESTED A. That this Petition be forwarded to the Division of Administrative Hearings for entry of a ruling denying or modifying the Application . B. Any other relief deemed appropriate by the Division. Respectfully submitted this 25th day of June, 1998. 6

PAGE 7

. ... • ... NS, ESQUIRE ENS, P.A. ekiva Springs Road, Suite 800 Longwood, Florida 32779 , Telephone: (407) 772-2277 Facsimile: (407) 772-2278 A ttomcy for Petitioner I-'lorida Har No. 63 7165 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by facsimile and Federal Express this 251h day of June, 1998 to Vern Kaiser, Deputy Clerk, and Office of General Counsel, South Florida Water Management District, 3301 Gun Club Road, West Palm Beach, Florida 33406 . ' 7 J . A. R iNS, ESQUIRE J. A JRGENS, P.A . 505 Wckiva Springs Road, Suite 800 Longwood, Florida 32779 Telephone: {407) 772-2277 Facsimile: ( 407) 772 .. 2278 Attorney for Pcti ti oner Florida Bar No. 637165


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