Notice of rights- 2001-02-08


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Notice of rights- 2001-02-08

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Title:
Notice of rights- 2001-02-08
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English
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Box 2

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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 )
L41-00051 ( USFLDC DOI )
l41.51 ( USFLDC Handle )

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University of South Florida
Lorida

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PAGE 1

S FWMD REG NOTICE OF RlytfTS -EXHIBIT C NOTICE OF RIGHTS 1 561 682 6896 P.1 4 / 1 9 Section 120 .569(1 ), Fla . Stat . (1997), requires that 11each notice shall inform the recipi&nt of any administrative hearing or judicial review that is available undtn this section , s . 120 .57, o r s . 120 .68; shall indicate the proc~dure which must bs 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 r ights. Petition for Administrative Proceedings 1 . A person whose substantial interests are affected by the South Florida Water Managemen1 District'! (SFWMD) action has the righ1 to request an adrnini~rative hearing on that action. The affected per son may request either a formal or an informal hearing, as set forth below . A point of entry into admirnstrative proceedings i s governed by Rules 28-106.111 and 40E-1.511, Fla. A dmin. Code, (also published as an exception to the Uniform Rules of Procedure as Ru l e 40E• 0 . ,09), as set forth below. Petitions are deemed filed upon receipt of the original documents by the SF'MD Cf e r k . a . Formal Admjnistratjye Hearing: If a genuine issue(s) of material fact i s i n di5Pute. the affected parson seeking a f ormar hearing on a SF\AJMD decision whic h does o r may de1ermine t h e i r substantial interests shall file a petition for hearing pursuant 10 Sections 120.569 and 120.57(1). F l a . Stat. or for mediation pursuant to Sectlon 120.573, Fla. stat. within 21 days, except as provided i n subsections c. and d . below, of either wrlnen no1ice through mail or posting or publicatiOn of notice that the SFWMD has or intends to take final age~ action . Petitions must substantially comply with the requiremen ts o f Rul e 28-106.201 (2), Fla. Admin. Code, a copy of whi ch is attached to this Notice a Rights. b. informal ,A.dmini ~rative Hearing: If there are no issues of material fact in dispute, the affQCtQd pQrson seeking an informal hearing on a SFWMD dooision which does or may determine their substantial int~r~sts $hall file a petition for hearing pursuant to Sections 120.569 and 120.57(2 ) . F la. Stat. o r for mediation pursuan1 to Section 120.573, Fla. S tat. within 21 days, Gxcept as provided In subsections c . and d . below, of either written notice through mai l or posting or publication of notice that the SFWMD has o r intends to take final agency action. Petitions must substantially comply with the requirement s o f Rul e 2 8 ~ 106.301 ( 2), F ! a . Admin. Code, a copy of which is attached t o t his Notice o f R ights. c . Administrative Complajnt and Order : If a Respondent ob1ects to a SFWMD Administrative Complaint and Order, pursuant to $action 373.119, Fla, Stat. (1997), the person named in the Administrative Complaint and O r der may file a petition f o r a hearing no tater than 14 day s after t h e date such order i s served. Petitions must substantially comply with the requirements of either subsoction a . o r b. abov8. d. State Lands Environroe[ltal Resource Pennit : Pursuant to Sectio n 373.427 , Fla . Stat ., and Rul e 40E1 .511(3), Fla. Admi n . Code (also plblished as an excep1ion to the Unifor m Rules of P rocedure as Rule 40E-0. 109(2)(c) ) , a petition objecting to the SFWMO' s agency action regarding consolidated applications for l=nvironmental Filesource Permtts and Use of Sovereign Submerged Lands (Sl.ERPs). must be filed within 14 days of the notice of consolidated intent to grant or deny the SLERP. Peti t ions must s ub~ant i ally comply with the requi rements of either subsection a . orb. above. e. Emeroeocy Authorization and Order: A person whose substantial interests are affected by a SFWMD Emergency Authorization and O rder, has a r ight to f ile a pet i t ion under Sections 120.569, 120.57(1), and 120.57(2), Fla. Stat., as provided in subsect ions a . ~nd b . above. However, the person, or the agent o f the person responsible for causing or con tributing to 1

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FEB-08-2001 07:39 SFI.JMD REG l 561 682 6896 P.1 5 / 1 5 the emergency conditions shall taKe whatever action necGssary to cause immediate compliance with tha terms of the Emergency Authorization and Order. f. Order for E'.mergency Actjon A person whose substantial interests are affected by a SFWMO Order for Emergency Action has a right to file a petition plJ'suant to Rules 28-107.005 and 40E-1 .611, Fla. Adm in. Code. copies of which are attached to this Notice of ~ights, and Section 373.119(3). Fla. Stat . . for a hearing on thG Order. Any subsequent agency action or proposed agency action to initiate a formal revocation proceeding shalJ be separately nolioed pursuant to section g . below. g . Permit Sus.pension Revocation Annulment, and Withdrawal: If the SFWMD issues an administrative complaint to suspend. revoke, annul, or withdraw a permit. the perrnittee may request a hearing to be conducted in accordance With Sections 120.569 and 120.57, Fla. Stat., Within 21 days of either written notice through mail or posting or publication of notice that the SFWMD has or intends to take final agency action. Petitions must substantially comply with the requirements of Rule 28-107.004(3), Fla. Admin. Code, a copy of wtiich is attached to this Notice of Rights. 2 . 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 may be affected by any such final decision of the SFWMD shall have, purslJan1 to Rule 40E-i.511(2) , Fla. Admin . Code (also published as an e>Cceptlon to the Uniform Rules of Procedur8 as Rule 40E.109(2)(c})1 an additional 21 days from the date of receipt of notice of sai d decision to request an administrative hearing . However, the scope of the admini strative hearing shall be limited to the substantial deviation . 3. Pursuant to Rule 40E-1.511 (4). Ra. Admin. Code, substantially affected persons entitled to a hearing pursuant to Section ~20.57(1). Fla. Stat. may waive their right to such a hearing and request an informal hearing before the Governing Board pursuant 10 Section 120.57(2). Fla. Stat., which may be granted at the option of the Governing Board. 4 . Pursuant to Rule 28-106 .111 (3), Fla. Admin. Code, persons may tile with the SFVJMD a request for extension of time for filing a petttion. The SFWMD, for good cause shown . may grant the extension . The request for extension must contain a certificate that the petitioner has con5ulted with all other parties, tt any, concernino the extension and that the SFWMD and all other parties agree to the extension. CIRCUIT COURT 5 . Pursuant to Section 373.617, Ffa. Stat., any substantially affected person who claims that final agency action of the SF'V'JMD relating to permit decisions constttutes 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. 6. Pursuant to Section 403 .412, Fla. Stat., any citizen of Florida may bring an action for injunctive relief against the SFWMO to compel the SFWMD to enforce the laws of Chapter 373, Fla. Stat.. and Title 40E, Fla, Admln. Code. The complaining party mLB file With the SFWMD Clerk a ver~ied complaint setting forth tho factG upon which the complaint is ba~ed and th8 manner in which the complaining party Is affected. If th& SFWMD d0$$ not take appropriate action on the complaint within 30 days of receipt, the complaining party may then f ife a civil suit for injunctive relief in the 15tri Judicial Circuit in and for Palm Beach County or circuit court in the county where the cause of action allegedly OCCU'red. 7 . Pursuant to Section 373.433. Fla, stat.. a private citizen of Florida may f i le suit in circuit court to require the abatement of any stonnwater managem8nt system. dam. impoundment, reservoir, appurtenant work or works that violate the provisions of Chapter 373, Fla. Stat . 2

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FEB08-2001 0 7 : 39 SFWMD REG 1 561 6 8 2 6896 P.1 6 / 1 9 DISTRICT COUAT OF APPEAL 8. Pursuant to SectiOn 120. 68, Fla. Stat., a party who is adversely affected by final SFWMD action may seek judicial revi&w of th8 SFWMO's final decision by filing a nQtice of appeal pursuant to Florida Rule of Appellate Procedure 9 .11 O in the Fol6th District Court of Appeal or In the appellate district wherg a party resides and filing a second copy of the notice wth the SFWMD Clerk within 30 days of rend9ring of too final SFWMD action. LAND AND WATER A0JU0ICATORY COMMISSION 9 . A party to a . "proc98Cing ~1ow' may sook review by the Land and Water AdjUdicatory Commission (U.WAC) cl 'SFVVMD'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., and Rules 42• 2 .013 and 42.0132, Fla. Admin. Code, a request for review of (a) an order or rul e of the SFVvMD must be filed with LAWAC 'Mthin 20 days after rendition of the order or adoption of the rule oought to be reviewed: (b) an order of the Departm811t of Environmental Protection (DEF) 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. , must be fil~ no latliK' than 20 days after rendition d the SFWMD' s final order. Simultaneous v\~th filing, a c~y of the request for review must be served on the DEP secretary, any person named in the SFWMD or DEP final order, and al l parties to the proceeding below. A copy of Rule 42-2.013, Fla. Admin. Code is attached to this Notice of Rights. PRIVA T E PROPERTY RIGHTS PROTECTION ACT 1 o. A propeny owner who alleges a specifie action of the SFWMD has inordinately burdenocl an existing use of the r8al 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 year ci the SFWMD action pursuant to the procedures set forth in Subsection 70.001 (4)(a), Fla. Stat. LAND USE AND ENVIRONMENTAL DISPUTE RESOLUTION 11. A property owner who alieges that a SFWMO development order (as tha1 term is defined in Section 70.51 (2)(a), Fla. Stat. to include permits) or SF\NMD enforcement action is unreasonable. or unfairly burdens the use of the real property, tn!lY file a request for relief with the SFWMD within 30 days of receipt of the SFVVMD's order or notice of agency action pursuant to the procedures set forth in Subsections 70.51 (4) and (6), Fla. Stat. MEOIATION 12. 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. Pursuant to Rule 28 , 06.111 (2), Fla Admin. Code, thG pethion for mediation shall be filed wthin 21 days of either written notice through mail or posting or publi~tion of notice that the SFWMD has or intends to take final agency action. Choosing mediation will not adve r54ily ffect the right to an administrative hearing rt mediation does not result in settlement. Pursuant to Rule 28.402, Fla. Admin. Code, the contents of the petition for mediation shall contain the toltoWing inforrMtion : (1) the name. addres.,, and telephone number of the person requesting mediation and that person's representative, if any; (2) a statement of the preliminary agency action; (3) an explanat ion of hew the pirson ' s substantial interests will be affected by the agency determination ; and (4) a s1aternent of relief sought. As provided i n Section 120.573, Fla. Stat. (1997) , the tirnely agreement of all the parties to mediate will toll the time limitations imposed by Sections 120. 569 and 120.57, Fla. Stat., for requesting and holding an adm inistrative hearing. Unless otherwise agreed by the parties, the mediation muS't be concluded withi n 60 days of th~ filXQCutlon of the agreement If mediation results in settlement ot the cispute. 1he SFVVMD must enter a f inal order incorporating the agreement of the parties. Persons whose substantial interest will be affected by such a modified agency decision have a right 10 petition for hearing Within 21 days of receipt of the final order in accordance with the requirements of Sections 120.569 and 120.57, Fla. Stat., and SFlMD Rule 28-106.201 (2), Fla. Admin. Code. If mediation tenninates Witrout settlement of the d ispute. the 3

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SFl,,_JMD REG 1 561 682 6896 P.17 / 1 9 SFWMD shall notify all par1i8S ,n writing that th& admini~rativ0 haaring p rocQss under Sections 120.569 and 120.57 . Fla . Stat., remain available for disposition of the dispute, and the notice wiH specify the deadlines that then 'Nill apply for challenging the agency action. VARIANCES AND WAIVERS 13. A per&l:>n wto is subject to regulation pursuant to a SFVVMD rule and believes the application of that nJ& will create a substantial hardshi p or will violate principles of fairness (as those terms are defined in Subsection 120.542(2), Fla . Stat . ) 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 variano8 or waivgr does not subst!tute or e~end the time for filing a petttion for an administrative hearing or 8Xercising any other right that a person may have concerning 1he SFWMD's action. Pursuant to Rule 28-104.002(2), Fla. Admin. Code, the petition must include the following information; (a) the caption shall read : Petition for (Variance from) or (Waiver of) Rule (Citation) (b) The name, address, telephone number and any facsimile number of the petitioner: (c) The name, a(tjress telephone number and any facsimile number of 1he anorney or qualified representative of the petitioner, (if any); (d) the applicable rule or portion of the rule; (e) the citation to the statue the rule is implementing: (t) the type of action requested; (g) the specific tacts that demonstrate a substantiaJ hardship or violation of princ~ls of fairness that would justify a waiver or variance for the petitioner; (h) the reason why the variance or the waiver requested would serve the purposes of the under1ying statute; and (i) a statement of whether the variance or waiver is permanent or temporary . If the variance or waiver is temporary, the petition shall include the dates indicating the duration of the requested variance or waiver. A person requesting an emergency variance from or waiver of a SF\NMD rule rnus1 clearly so state in the caption of the petition. In addition to the requirements of Section 120.542(5), Fla. Stat. pursuant to Rule 28-104.004(2}, Fla. Admin. Code, the petition must also include: a) the specific fac1s that make the situation an emergency; and b} the specific facts to show that the petitioner will suffer immediat~ adverse effect ur~ess the variance or waiver i s issued by the SFWMD more exped~iously than the applicable t imeframes set forth in Section 120 .542, Fla. Stat. WAIVER OF RIGHTS right. 14. Failure to observe the relevant rime framet. prescribed above will constitute a waiv8r of such 28-106.201 INITIATION OF PROCEE:DINGS (INVOLVING DISPUTE01$$t.JES OF MATERIAL FACT) (2) All petttion& filed under these rules shall contain: Toe name and address of each agency affected and each agencys file or identification number, if known; The name, address, and telephone number of the petitioner; the name, address, and 1elephone number of the p9tition8rs rgpresentative, if any, which shall be the address for sorvice purposes during the course ct the proceeding, and an explanation o1 how 1he petitioner' s substantial Interests will be aff ect0d by thQ ag~y determination ; A statemerrt of when and how the petitioner received notice of the agency decision; A statement of all disputed is&1es of material fact. If there ar~ none, the petition must so indicate; A concise statement of the u~imate facts alleged, as well as the rules and statutes which entttle the petitioner to relief; and A demand for relief. 4

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' ... FEB-08 2001 07:41 SFWMD REG 1 561 682 6896 P.18/ 1 9 20.106.301 INl11A110N OF PROCl:EDINGS (NOT lNVOLVING O!SPUTEO ISSUES OF MATERIAL FACT) (2) All petitions filed under these rules shall contain: The name and address of each agency affected ar1d each agency's file or identification number, it known; Tha name, address. and telephone numbQJ' of the petitioner; the name , address, and telephone numbar of the petitioner's representative, l any, which shall be the address for service purposes during the course of th~ proc;wding, and an explanation of how the petitioner ' s sub~tantial interests will be affec.ied by the agency detennination ; A statemer~ of when and how the petitioner receiVed notice of the agency decision; A concise statement of the Ultimate facts alleged, as well as the rules and statutes which entitle the petitioner 10 retief; and A demand for reliet. 2~107.004 SUSPENSION, FIEVOCA'TlON, ANNULMENT. OR W1THDRAWAL (3) Requests tor hearing filed in accordance with thi& rule shall include: The name ar~ address Qf the party making the reque~, for purposes of service; A statement that th~ party i~ reque$ting a hearing involving disputed issues of matenal fact, or a hearing f"lr)t it volving disputed issues of material fact; and A reference to the notice, order to show cause , administm1ive complaint, or other communioatio,, that the party has received from the agency. 42 .. z.oiJ REQUEST FOR REVIEW PURSUANT TO SECTION 373.114 OR 373.217 (1) In any proceeding arisino 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 aJI parties to the proceeding which resulted in the order sought to be reviewed. A certificate of service showing completion of se,vice as required by this subsection shall be a requirement for a detem1ination of sufficien c y under Rule 42 2 . 0132 . Failure to file the request with the Commission within the lim~ p~mod p,ovided 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, 1he 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 wtt1 particularity : {a) How the order or rule .confkts with the requirements , prov i sions and purpose~ 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 r~iew; (c) The oral or written statement , sworn or unsworn , which was submitted to the agercy concerning the rr.atter to be reviewed and the date and location of the ~1etement. if the individual or entity reque61ing the rsview has not participated in a proceeding preViously instituted pursuant to Chapter 120, F.S., on the order for which review is sought; (d) If review of an order is being sought, whether and how the activity authorized by the order would substsntial l y affect natural resou~es of S1atawide or regional significance , or whether the order raises issues of policy, statutory interpretation , or rule interpretation that have regional or statewide significance trom a s1andpoint of agency precedent. and all the factual bases in the record which the petitioner cla ims support such determination(s); and (e) The action requested to be taken by the Commission as a result of the review, whether to rescind or modi fy the order, or remand the prooeeding to the water management district for further action, or to require the water management district to initiate rulemaking to adopt , amend or repeal a rule. 2S.107.005 EMERGENCY •cTION {1) It the agency finds that immediate serious danger to the pubjic health, satety, or welfare requires emergency action, the agency shall summarily suspend, lirnit, er restrict a l icense. (2) the 14-day notice requirement of Section i20. 569(2)(b) , F. S.1 does not apply and shall not be construed to prevent a hearing at the earliest time practicable upon request of an aggrieved party . 5

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FEB-08-2001 0 7:42 SFlJM D R E G 1 5 61 682 6896 P. 9 / l S (3) Unless otherwise provided by law. within 20 days after emergency action taker, pursuant to paragraph (1) of 1hls rule, the agency shall iritiate a formal suspension or revocation proceeding i n compliance With Sections 120.569, 120.57. and 120.60, F .S. 40E-1.611 EMERGENCY AC110N (1) An emergency exists when immediate action is necessary to protect public health, safety or welfare ; the health of animals, fish or aquatic life; the works of the District; a public water supply, or recreational, commercial, industrial, agricultural or other reasonable uses of land and water resources. (2) Thiit Executive Director may employ the resources of the Oislrici to take whatever remedial action m,cessary to alleviate the emergency condition without the issuance of an emergency order , or in the event an emergency order has been issued. after the expiration of the reQUtSite t ime for compliance with that order . 6 TOTAL P. 1'3


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