Title: Volume IV State of Florida Division of Administrative Hearings
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 Material Information
Title: Volume IV State of Florida Division of Administrative Hearings
Physical Description: Book
Language: English
 Subjects
Spatial Coverage: North America -- United States of America -- Florida
 Notes
Abstract: Volume IV State of Florida Division of Administrative Hearings
General Note: Box 8, Folder 5 ( Vail Conference, 1995 - 1995 ), Item 79
Funding: Digitized by the Legal Technology Institute in the Levin College of Law at the University of Florida.
 Record Information
Bibliographic ID: WL00001465
Volume ID: VID00001
Source Institution: Levin College of Law, University of Florida
Holding Location: Levin College of Law, University of Florida
Rights Management: All rights reserved by the source institution and holding location.

Full Text


339


VOLUME IV
STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE BEARINGS


SUNCITY CENTER CORPORATION,
WALDEN LAKE, INC., and WALDEN
WOODS BUSINESS CENTER, LTD.,
Petitioner,
and
FLORIDA ENGINEERING SOCIETY, INC.,
Intervenor,
vs.
SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT,
Respondent.
------------------------------------/
THE SIERRA CLUB, INC.,
Petitioner,


and
FLORIDA ENGINEERING SOCIETY, INC.,
Intervenor,
VS.
SOUTHWEST FLORIDA WATER
MANAGEMENT DISTRICT,
Respondent.
------------------------------------


FLORIDA ELECTRIC POWER
COORDINATING GROUP, INC., THE
FLORIDA CHAMBER OF COMMERCE, INC.,
FLORIDA FARM BUREAU FEDERATION,
ASSOCIATION OF FLORIDA
COMMUNITY DEVELOPERS, and
FLORIDA HOME BUILDERS ASSOCIATION,
Petitioners,
and
FLORIDA ElNTINEERING SOCIETY, INC.,
Intervenor,
vs.
SUWANNEE RIVER WATER MANAGEMENT
DISTRICT, ST. JOHNS RIVER WATER
MANAGEMENT DISTRICT, SOUTHWEST
FLORIDA WATER MANAGEMENT DISTRICT,
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT, and DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Respondents.


CASE NO. 94-2719RP


CASE NO. 94-2721RP
-.-


CASE NO. 94-2722RP




( (c -V-


-----------------------------------------/
FINAL HEARING VOLUME IV
SEPTEMBER 27, 1994


. m,, nrnn nPPnrpTNIG TALIAHASSEE, FLA 904-222-5 43


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340


SUN CITY CENTER CORPORATION,
WALDEN LAKE, INC., and WALDEN
WOODS BUSINESS CENTER, LTD.,
Petitioners,
and
FLORIDA ENGINEERING SOCIETY, INC.,
Intervenor,
vs.
STATE OF FLORIDA, DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Respondents.


CASE NO. 94-2929RP


---- -----------------------/


GERALD M. WARD,
Petitioner,
and
FLORIDA ENGINEERING SOCIETY, INC.,
Intervenor,
vs.
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT,


Respondent.

VQH ACQUISITIONS, INC., commonly
known as KEY'S GATE, SUN CITY
CENTER CORPORATION, and BSM
MARINA, INC.,
Petitioners,


and
FLORIDA ENGINEERING SOCIETY, INC.,
Intervenor,
vs.
SOUTH FLORIDA WATER MANAGEMENT
DISTRICT and FLORIDA DEPARTMENT
OF ENVIRONMENTAL PROTECTION,
Respondents.
--------------------------------------
FLORIDA PHOSPHATE COUNCIL, INC.,
Petitioner,
and
FLORIDA ENGINEERING SOCIETY, INC.,
Intervenor,
vs.
SUWANNEE RIVER WATER MANAGEMENT
DISTRICT, ST. JOHNS RIVER WATER
MANAGEMENT DISTRICT, SOUTH
FLORIDA WATER MANAGEMENT DISTRICT,
and DEPARTMENT OF ENVIRONMENTAL
PROTECTION,
Respondents.


CASE NO. 94-2930RP


CASE NO. 94-2933RP


CASE NO. 94-2935RP


---- ----------------/


FOR THE RECORD REPORTING TALLAHASSEE, FLA 904-222-5491
4.3.1


/






342





1 APPEARANCES OF COUNSEL:

2 On behalf of Petitioners Florida Electric Power
Coordinating Group, Inc., Florida Chamber of Commerce,
3 Inc., Florida Farm Bureau Federation, Association of
Florida Community Developers, Florida Home Builders
4 Association, and the Florida Engineering Society, Inc.:

5 FRANK MATTHEWS, ESQ.
CAROLYN RAEPPLE, ESQ.
6 Hopping Boyd Green & Sams
123 South Calhoun Street
7 Post Office Box 6526
Tallahassee, FL 32314
8 (904) 222-7500

9 On behalf of Petitioners St. Joe Paper Company and Florida
East Coast Industries, Inc.:
10
WILLIAM L. HYDE, ESQ.
11 Earl, Blank, Kavanaugh & Stotts
215 South Monroe Street
12 Suite 350'
Tallahassee, FL 32301
13 (904) 681-1900

14 On behalf of the Florida Phosphate Council:

15 LAWRENCE CURTIN, ESQ.
Holland and Knight
16 6th Floor, Barnett Bank Building
315 South Calhoun Street
17 Tallahassee, FL 32301
(904) 224-7000
18
On behalf of Petitioner Gerald M. Ward:
19
GERALD M. WARD, P.E., pro se
20 Suite 202, 31 West 20th Street
Post Office Box 10441
21 Riviera Beach, FL 33419
(407) 863-1215
22

23

24

25


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343





1 APPEARANCES OF COUNSEL: (continued)

2 On behalf of Respondent St. Johns River Water Management
District:
3
KATHRYN L. MENNELLA, ESQ.
4 ANTHONY COLLIER, ESQ.
St. Johns River Water Management District
5 Post Office Box 1429
Palatka, FL 32178-1429
6 (904) 329-4215

7 On behalf of Respondent South Florida Water Management
District:
8
JOHN FUMERO, ESQ.
9 MARCY LaHART, ESQ.
I South Florida Water Management District
10 Post Office Box 24680
West Palm Beach, FL 33416
11 (407) 687-6256

12 On behalf of Respondent Southwest Florida Water Management
District:
13
JANICE M. McLEAN, ESQ.
14 WAYNE ALFIERI, ESQ.
Assistant General Counsel
15 Southwest Florida Water Management District
2379 Broad Street (U.S.41 South)
16 Brooksville, FL 34609-6899
(904) 796-7211
17
On behalf of Respondent Departmental of Environmental
18 Protection:

19 ROBERT GOUGH, ESQ.
Assistant General Counsel
20 State of Florida Department of Environmental Protection
Twin Towers Office Building
21 2600 Blair Stone Road
Tallahassee, FL 32399
22 (904) 921-9637

23 On behalf of Respondent Suwannee River Water Management
District:
24 DAVID FISK ESQ.
Suwannee Rikr W ter Management District
25 Route 3, Box
Live Oak, FL 32060


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434


1 as far as it refers to forms.

2 BY MR. MATTHEWS:

3 A Financial assurances is much more stringent than

4 it is in the present rules.

5 MS. MENNELLA: Object to the testimony on this

6 basis; in addition, financial assurances have not been

7 challenged, except to the'extent regarding the

8 differences on the SWFWMD rule, as far as mitigation

9 .requirements and financial statements.

10 MR. MATTHEWS: I'll be happy to try to frame the

11 questions to speak to those, if we're going to cut the

12 onion this thin.

13 THE HEARING OFFICER: All right.

14 MR. GOUGH: Move to strike the testimony,

15 THE HEARING OFFICER: He's going to get him to

16 qualify it, as far as the SWFWMD and financial

17 statements.

18 t BY MR. MATTHEWS:

19 Q Mr. Higgins, are you familiar with the fact that

20 'the proposed ERP handbook provisions in the Southwest

21 Florida Water Management District would no longer allow the

22 submission of an audited financial statement as a means of

23 complying with the financial responsibility application?

24 A Yes, I'm aware of that.

25 Q Could you anticipate that the inability to submit


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435


1 such a document would result in costs incurred by an

2 applicant --

3 MR. GOUGH: Objection, Your Honor. I have a

4 relevancy objection as to any issues related to the

5 cost of these rules. I know that the -- or I assume

6 that the petitioner is relying on the theory that

7 somehow streamlining has mandated a reduction in

8 costs, but if you look at -- and the opening

9 statement was explaining that Chapter 93-213 had two

10 intent sections as a result of the fact that the

11 Legislature just added on the streamlining bill to the

12 first section, which was a bill merging the Department

13 of National Resources with the Department of

14 Environmental Regulation to create DEP. Any -- all

15 that intent language that talks about efficiency in

16 there is directed toward efficiency as a result of

17 merging the two agencies.

18 The section (19) of Chapter 93-213 -- and I have

19 a copy here I would be happy to give you -- section

20 (19) of Chapter 93-213 is completely silent on any

21 aspect of efficiency; in fact, it says nothing more
22 than that we should just merge the two programs.
23 And I direct your attention to page 1658 of that
24 section (19), and if you read that section, you'll see

25 that there is no statement in here about concerns of
15 q


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436


1 cost reduction to the applicants.

2 Now, indeed the merger of the two programs will

3 result in certain savings, because the applicant will

4 only have to get one permit, but the contention that

5 this streamlining statute requires reduced costs and

6 therefore makes these costs relevant to this

7 proceeding, I think is false.

8 I think that at this time, the cost is not
JK7 ---p---------"---
9 relevant at all, and that it should not be allowed.

10 THE HEARING OFFICER: Okay. Mr. Matthews?

11 MR. MATTHEWS: Yes, I disagree with Mr. Gough's

12 legal analysis. I would be happy to agree with it, if

13 you would like to make a ruling on his relevancy

14 objection, as to whether sections (1) and (2) of

15 Chapter 93-213 are, in fact, intent provisions that

16 are germane to sections (19) through (47) of that act.

17 I'm surprised at Mr. Gough's response.

18 Obviously, we provided a board, which is now

19 included, I believe, as Exhibit 84. It was the

20 subject of opening statement. It has always been our

21 allegation that there are cost efficiencies and

22 streamlining obligations imposed pursuant to section

23 (2) of the act, and at this point, argue that it's

24 irrelevant what the cost consequences are of this act.

25 The rule in section (2) has no bearing on this


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437


1 proceeding.

2 MR. GOUGH: Section (2) is the intent for the

3 merger of the two agencies, and --

4 MR. MATTHEWS: According to Gough.

5 MR. GOUGH: It's pretty extraordinary to find an

6 intent section in the middle of a bill, and the reason

7 that it's there is evident-. This is just one of many

8 examples where the Legislature, you know, puts

9 together a train of environmental bills, and the first

10 part of this train was the merger of the Department of

11 Natural Resources and the Department of Environmental

12 Regulation. The second part of the train -- of this

13 bill is the train part that dealt with the permit

14 streamlining.

15 That's why you see this unusual situation where

16 you have an intent in the middle a bill; in fact, you

17 see that this bill has even several effective dates on

18 it, which resulted in confusion. When they stuck them

19 together, they didn't get the -- they forgot to

20 conform the effective dates.

21 And even if section (2) was relevant to

22 streamlining, it talks about efficiency in the

23 government -- efficient governmental services to the
24 public. It talks about maintaining and enhancing the

25 power and responsibilities of the environmental


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1 agencies in the most efficient and effective manner.
2 It talks about streamlining to government services for

3 the delivery of such services to the public in a

4 timely and cost efficient manner. It doesn't say

5 anything at all about the obligation of the
6 streamlining aspect of it to eliminate or reduce costs

7 to the applicants.
8 So I still contend that any testimony relating to

9 the costs to the applicants under the new ERP, whether
10 it's increased or decreased, is irrelevant.

11 MR. MATTHEWS: One of the longest objections I've

12 ever 'heard.

13 Again, if we're here to brief the applicability
14 of sections (1) and (2) of Chapter 92-213 to this

15 section that Mr. Gough maintains -- is prepared to
16 testify is not in fact modified by the previous

17 sections of the law, I think we better spend this
18 proceeding specific for that purpose It's certainly

19 not apparent in any unambiguous reading of the statute
20 that those provisions, as contained In this law, have

21 no applicability to this proceeding.
22 MS. MENNELLA: Well, I think the point that Mr.
23 Gough is making is that'even if you accepted your
24 argument that section (2) was applicable, reading
25 section (2), it is talking about efficient government


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439


1 service to the public. It is talking about instead of

2 having DER and DNR -- I mean, it's in the merger part

3 of the bill --

4 MR. MATTHEWS: I see no reference to the DNR or

5 DER in section (2).

6 MS. MENNELLA: I think that it precedes the part

7 of the bill that merges the two agencies, and it talks

8 about governmental services to the public. It's

9 talking about the agency from the -- the efficiency

10 side from the agency, not the efficiency side from the

11 unregulated public, and I think that that's the point

12 that is being made.

13 MR. MATTHEWS: I can see why an economic impact

14 statement wasn't prepared, but that's also evidence

15 that we fully intend to introduce. And I'd much

16 prefer a motion in limine, but yet one had never been

17 submitted.

18 THE HEARING OFFICER: I'm going to allow the

19 question. You can then make the arguments when it

20 comes time to propose recommended orders on whether or

21 not that's something that should be considered,

22 however you want to bolster your arguments at that

23 time, and I'll consider it at this time. But it's up

24 to you all. All right.

25 MS. McLEAN: Your Honor, I would like to enter an


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440


1 objection based on the relevancy, also, as far as the

2 continued line of this questioning. It's outside of

3 the scope of the stipulation, once again, as far as

4 item 31. The stipulated items as far as number 31 in

5 SWFWMD's deletion of the audited financial statement

6 and the list of financial responsibility applications

7 is based only to -- on that we allegedly are not

8 different -- do not have different physical and

9 natural characteristics, and Mr. Matthews is looking

10 to base this line of questioning on economics, and

11 that's outside the scope of the stipulation.

12 MR. MATTHEWS: I'm perplexed as to the fact that

13 we've made a general invalidity allegation as to these

14 rules, we specifically have alleged that they do not

15 maintain a statewide coordinated consistent cost-

16 efficient streamlined process, and we're unable,

17 apparently, to introduce evidence as to how actual

18 issues identified in the stipulation fail to do so.

19 MS. McLEAN: I think this is a good example of

20 the last discussion we had on the objection as far as

21 the general invalidity. There was no specifics under
22 number 33. There are specifics under 31, and I --

23 THE HEARING OFFICER: Okay. Under 31, and you
24 can see they're talking about the financial

25 responsibility mechanisms not allowing an applicant to


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1 demonstrate financial responsibility for the

2 mitigation, on and on and on, dealing with the audited

3 annual financial statement submitted by a CPA,

4 representative of the applicant's tangible net worth.

5 And I think what he is trying now to get from this

6 witness is, concerns the inability to submit the

7 financial information in that particular format

8 anymore, and to that extent, I'm going to allow him to

9 go into that, and so your objection is overruled.

10 All right, Mr. Matthews.

11 BY MR. MATTHEWS:

12 Q "Do you have an opinion, Mr. Higgins, as to

13 whether or not the inability to submit an audited financial

14 statement in SWFWMD's District could have a consequence on

15 the applicant's costs under the ERP program?

16 A I can envision those circumstances that could

17 have a significant cost, add a significant cost in

18 demonstrating or proving the financial assurance test.

19 Q Do you have ahy knowledge of physical or natural

20 characteristics of the Southwest Florida Water Management

21 District which would warrant their refusal to accept this

22 document, as opposed to the other three Districts in the

23 Department?

24 A None.

25 Q Specifically bringing you to the practicable


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4.3.11


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