House Bill 2023c1
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Florida House of Representatives - 2000 CS/HB 2023
By the Committee on Judiciary and Representatives Bense
and Feeney
1 A bill to be entitled
2 An act relating to administrative procedure;
3 amending s. 57.111, F.S.; increasing the
4 maximum net worth for qualification as a small
5 business party under the Florida Equal Access
6 to Justice Act; increasing the limitation on
7 the amount of attorney's fees and costs that
8 may be awarded under the act; amending s.
9 120.573, F.S., which provides for mediation of
10 disputes under the Administrative Procedure
11 Act; revising the parties who must agree to
12 mediation and to the length of the mediation
13 period; revising requirements relating to the
14 mediation agreement; providing requirements for
15 the conduct of such mediation; providing
16 conditions under which the party subject to
17 agency action is entitled to recover attorney's
18 fees and costs after a subsequent hearing;
19 amending s. 120.574, F.S., which provides for
20 summary hearings under said act; redesignating
21 such hearings as expedited hearings; revising
22 conditions under which such hearings may be
23 held; specifying time periods for filing
24 objections to a motion for such a hearing;
25 removing the requirement that the
26 administrative law judge's decision is final
27 agency action and providing for a recommended
28 order and final agency action on that order;
29 amending s. 373.1501, F.S., relating to
30 administrative action with respect to project
31 components of the Central and Southern Florida
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1 Project, s. 403.088, F.S., relating to
2 proceedings regarding permits for certain
3 facilities in the Everglades Protection Area,
4 and s. 408.7056, F.S., relating to certain
5 proposed orders under the Statewide Provider
6 and Subscriber Assistance Program, to conform
7 language with respect to expedited hearings;
8 amending s. 403.973, F.S., which provides for
9 expedited permitting for certain projects;
10 revising conditions under which the expedited
11 hearing provisions of the Administrative
12 Procedure Act apply to the expedited permitting
13 process; conforming language; amending s.
14 120.595, F.S.; providing for award of
15 attorney's fees and costs to the petitioner
16 when an agency statement is challenged under
17 the Administrative Procedure Act as not having
18 been properly adopted as a rule and the agency
19 has proceeded to rulemaking; amending s.
20 373.114, F.S.; providing that water management
21 district orders resulting from a s. 120.569,
22 F.S., or s. 120.57, F.S., evidentiary hearing
23 are not subject to the Land and Water
24 Adjudicatory Commission's review authority;
25 amending s. 373.4141, F.S.; providing that an
26 applicant for a permit for a stormwater
27 management system, dam, impoundment, or other
28 work under pt. IV of ch. 373, F.S., may elect
29 to publish notice of such application;
30 specifying effect of such publication on the
31 rights of substantially affected persons to
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1 initiate administrative proceedings with
2 respect to such application; providing
3 conditions under which approval or denial of an
4 application by a water management district
5 governing board is presumed correct in a
6 subsequent administrative proceeding;
7 specifying the date by which a final hearing
8 must be held when a permit application is
9 challenged and providing that certain
10 construction activities may be authorized
11 during the pendency of the administrative
12 proceeding; amending s. 403.412, F.S.;
13 providing that a citizen who is not a
14 substantially affected person may not initiate
15 certain administrative proceedings under the
16 Environmental Protection Act of 1971; providing
17 an effective date.
18
19 Be It Enacted by the Legislature of the State of Florida:
20
21 Section 1. Paragraph (d) of subsection (3) and
22 paragraph (d) of subsection (4) of section 57.111, Florida
23 Statutes, are amended to read:
24 57.111 Civil actions and administrative proceedings
25 initiated by state agencies; attorneys' fees and costs.--
26 (3) As used in this section:
27 (d) The term "small business party" means:
28 1.a. A sole proprietor of an unincorporated business,
29 including a professional practice, whose principal office is
30 in this state, who is domiciled in this state, and whose
31 business or professional practice has, at the time the action
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1 is initiated by a state agency, not more than 25 full-time
2 employees or a net worth of not more than $5 $2 million,
3 including both personal and business investments; or
4 b. A partnership or corporation, including a
5 professional practice, which has its principal office in this
6 state and has at the time the action is initiated by a state
7 agency not more than 25 full-time employees or a net worth of
8 not more than $5 $2 million; or
9 2. Either small business party as defined in
10 subparagraph 1., without regard to the number of its employees
11 or its net worth, in any action under s. 72.011 or in any
12 administrative proceeding under that section to contest the
13 legality of any assessment of tax imposed for the sale or use
14 of services as provided in chapter 212, or interest thereon,
15 or penalty therefor.
16 (4)
17 (d) The court, or the administrative law judge in the
18 case of a proceeding under chapter 120, shall promptly conduct
19 an evidentiary hearing on the application for an award of
20 attorney's fees and shall issue a judgment, or a final order
21 in the case of an administrative law judge. The final order
22 of an administrative law judge is reviewable in accordance
23 with the provisions of s. 120.68. If the court affirms the
24 award of attorney's fees and costs in whole or in part, it
25 may, in its discretion, award additional attorney's fees and
26 costs for the appeal.
27 1. No award of attorney's fees and costs shall be made
28 in any case in which the state agency was a nominal party.
29 2. No award of attorney's fees and costs for an action
30 initiated by a state agency shall exceed $75,000 $15,000.
31
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1 Section 2. Section 120.573, Florida Statutes, is
2 amended to read:
3 120.573 Mediation of disputes.--
4 (1) Each announcement of an agency action that affects
5 substantial interests shall advise whether mediation of the
6 administrative dispute for the type of agency action announced
7 is available and that choosing mediation does not affect the
8 right to an administrative hearing. If the agency and the
9 party subject to the agency all parties to the administrative
10 action agree to mediation, in writing, within 10 days after
11 the time period stated in the announcement for election of an
12 administrative remedy under ss. 120.569 and 120.57, the time
13 limitations imposed by ss. 120.569 and 120.57 shall be tolled
14 to allow the agency and parties to mediate the administrative
15 dispute. The mediation shall be concluded within 60 days of
16 such agreement unless otherwise agreed by the agency and the
17 party subject to the agency action parties. The mediation
18 agreement shall include provisions for mediator selection, the
19 allocation of costs and fees associated with mediation, and
20 the mediating parties' understanding regarding the
21 confidentiality of discussions and documents introduced during
22 mediation, and may address the allocation of attorney's fees
23 and costs. If mediation results in settlement of the
24 administrative dispute, the agency shall enter a final order
25 incorporating the agreement of the parties. If mediation
26 terminates without settlement of the dispute, the agency shall
27 notify the parties in writing that the administrative hearing
28 processes under ss. 120.569 and 120.57 are resumed.
29 (2) Mediation shall be conducted in the following
30 manner:
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1 (a) Each party shall have all persons necessary, with
2 complete settlement authority, present at the mediation.
3 (b) Each party shall mediate in good faith.
4 (c) All aspects of the mediation which are not
5 specifically established by this section must be conducted
6 according to the Florida Rules for Certified and
7 Court-Appointed Mediators adopted by the Florida Supreme
8 Court.
9 (d) If the parties do not settle the case pursuant to
10 mediation, the last offer of the party subject to agency
11 action made at mediation shall be recorded by the mediator in
12 a written report that describes the offer, states the amount
13 or content of the offer, the date the offer was made in
14 writing, and the date the offer was rejected. If the matter
15 subsequently proceeds to hearing under ss. 120.569 and 120.57
16 and the party subject to agency action prevails and the result
17 is the same or more favorable than the last offer made by that
18 party at mediation, then that party is entitled to recover
19 attorney's fees and costs from the petitioner.
20 Section 3. Section 120.574, Florida Statutes, is
21 amended to read:
22 120.574 Expedited Summary hearing.--
23 (1)(a) Within 5 business days following the division's
24 receipt of a petition or request for hearing, the division
25 shall issue and serve on all original parties an initial order
26 that assigns the case to a specific administrative law judge
27 and provides general information regarding practice and
28 procedure before the division. The initial order shall also
29 contain a statement advising the original parties addressees
30 that an expedited a summary hearing is available, provided the
31 affected agency agrees, upon the agreement of all parties
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1 under subsection (2) and briefly describing the accelerated
2 expedited time sequences, limited discovery, and final order
3 provisions of the expedited summary procedure.
4 (b) Within 15 days after service of the initial order,
5 any party may file with the division a motion for expedited
6 summary hearing in accordance with subsection (2). If a
7 nonagency party files such a motion, and the affected agency
8 does not file a written objection within 7 days after the
9 service of that motion, or if the affected agency files such a
10 motion, and the party who is the subject of the agency action
11 does not file a written objection within 7 days after the
12 service of the motion, then the motion shall be granted and an
13 order shall be entered setting the hearing date, which shall
14 be held within 30 days from the date the response period to
15 the motion expires. If the affected agency files such a
16 motion, and the party who is the subject of the agency action
17 files a response within 7 days after service of that motion
18 objecting to the expedited hearing, the administrative law
19 judge shall, within 5 days from the filing of that response,
20 enter an order granting the motion for expedited hearing,
21 unless he or she determines that any of the original parties
22 will be unduly prejudiced thereby, which hearing shall be held
23 within 30 days from the date the order granting the expedited
24 hearing is entered. If all original parties agree, in writing,
25 to the summary proceeding, the proceeding shall be conducted
26 within 30 days of the agreement, in accordance with the
27 provisions of subsection (2).
28 (c) Intervenors in the proceeding shall be governed by
29 the decision of the administrative law judge original parties
30 regarding whether the case will proceed in accordance with the
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1 expedited summary hearing process and shall not have standing
2 to challenge that decision.
3 (d) If a motion for expedited summary hearing is not
4 filed within 15 days after service of the division's initial
5 order, the matter shall proceed in accordance with ss. 120.569
6 and 120.57.
7 (2) In any case to which this subsection is
8 applicable, the following procedures apply:
9 (a) Motions shall be limited to the following:
10 1. A motion in opposition to the petition.
11 2. A motion requesting discovery beyond the informal
12 exchange of documents and witness lists described in paragraph
13 (b). Upon a showing of necessity, additional discovery may be
14 permitted in the discretion of the administrative law judge,
15 but only if it can be completed not later than 5 days prior to
16 the final hearing.
17 3. A motion for continuance of the final hearing date.
18 4. A motion requesting a prehearing conference, or the
19 administrative law judge may require a prehearing conference,
20 for the purpose of identifying: the legal and factual issues
21 to be considered at the final hearing; the names and addresses
22 of witnesses who may be called to testify at the final
23 hearing; documentary evidence that will be offered at the
24 final hearing; the range of penalties that may be imposed upon
25 final hearing; and any other matter that the administrative
26 law judge determines would expedite resolution of the
27 proceeding. The prehearing conference may be held by
28 telephone conference call.
29 5. During or after any preliminary hearing or
30 conference, any party or the administrative law judge may
31 suggest that the case is no longer appropriate for expedited
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1 summary disposition. Following any argument requested by the
2 parties, the administrative law judge may enter an order
3 referring the case back to the formal adjudicatory process
4 described in s. 120.57(1), in which event the parties shall
5 proceed accordingly.
6 (b) Not later than 5 days prior to the final hearing,
7 the parties shall furnish to each other copies of documentary
8 evidence and lists of witnesses who may testify at the final
9 hearing.
10 (c) All parties shall have an opportunity to respond,
11 to present evidence and argument on all issues involved, to
12 conduct cross-examination and submit rebuttal evidence, and to
13 be represented by counsel or other qualified representative.
14 (d) The record in a case governed by this subsection
15 shall consist only of:
16 1. All notices, pleadings, motions, and intermediate
17 rulings.
18 2. Evidence received.
19 3. A statement of matters officially recognized.
20 4. Proffers of proof and objections and rulings
21 thereon.
22 5. Matters placed on the record after an ex parte
23 communication.
24 6. The written decision of the administrative law
25 judge presiding at the final hearing.
26 7. The official transcript of the final hearing.
27 (e) The agency shall accurately and completely
28 preserve all testimony in the proceeding and, upon request by
29 any party, shall make a full or partial transcript available
30 at no more than actual cost.
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1 (f) The decision of the administrative law judge shall
2 be rendered within 30 days after the conclusion of the final
3 hearing or the filing of the transcript thereof, whichever is
4 later. The administrative law judge's recommended order
5 decision, which shall be final agency action subject to
6 judicial review under s. 120.68, shall include the following:
7 1. Findings of fact based exclusively on the evidence
8 of record and matters officially recognized.
9 2. Conclusions of law.
10 3. Imposition of a fine or penalty, if applicable.
11 4. Any other information required by law or rule to be
12 contained in a final order.
13 (g) The parties may file exceptions to the
14 administrative law judge's recommended order within 10 days
15 after its issuance. The agency shall issue the final order
16 within 30 days after the issuance of the administrative law
17 judge's recommended order. For a period of 2 years following
18 October 1, 1996, the division shall maintain a register of the
19 total number of formal proceedings filed with the division
20 under s. 120.57(1).
21 Section 4. Subsection (8) of section 373.1501, Florida
22 Statutes, is amended to read:
23 373.1501 South Florida Water Management District as
24 local sponsor.--
25 (8) Final agency action with regard to any project
26 component subject to s. 373.026(8)(b) shall be taken by the
27 department. Actions taken by the district pursuant to
28 subsection (5) shall not be considered final agency action.
29 Any petition for formal proceedings filed pursuant to ss.
30 120.569 and 120.57 shall require a hearing under the expedited
31 summary hearing provisions of s. 120.574, which shall be
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1 mandatory. The final hearing under this section shall be held
2 within 30 days after receipt of the petition by the Division
3 of Administrative Hearings.
4 Section 5. Paragraph (g) of subsection (2) of section
5 403.088, Florida Statutes, is amended to read:
6 403.088 Water pollution operation permits;
7 conditions.--
8 (2)
9 (g) The Legislature finds that the restoration of the
10 Everglades Protection Area, including the construction,
11 operation, and maintenance of stormwater treatment areas
12 (STAs) is in the public interest. Accordingly, whenever a
13 facility to be constructed, operated, or maintained in
14 accordance with s. 373.4592 is subjected to permitting
15 requirements pursuant to chapter 373 or this chapter, and the
16 issuance of the initial permit for a new source, a new
17 discharger, or a recommencing discharger is subjected to a
18 request for hearing pursuant to s. 120.569, the administrative
19 law judge may, upon motion by the permittee, issue a
20 recommended order to the secretary who, within 5 days, shall
21 issue an order authorizing the interim construction,
22 operation, and maintenance of the facility if it complies with
23 all uncontested conditions of the proposed permit and all
24 other conditions recommended by the administrative law judge
25 during the period until the final agency action on the permit.
26 1. An order authorizing such interim construction,
27 operation, and maintenance shall be granted if requested by
28 motion and no party opposes it.
29 2. If a party to the administrative hearing pursuant
30 to ss. 120.569 and 120.57 opposes the motion, the
31 administrative law judge shall issue a recommended order
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1 granting the motion if the administrative law judge finds
2 that:
3 a. The facility is likely to receive the permit; and
4 b. The environment will not be irreparably harmed by
5 the construction, operation, or maintenance of the facility
6 pending final agency action on the permit.
7 3. Prior to granting a contested motion for interim
8 construction, operation, or maintenance of a facility
9 authorized by s. 373.4592, the administrative law judge shall
10 conduct a hearing using the expedited summary hearing process
11 defined in s. 120.574, which shall be mandatory for motions
12 made pursuant to this paragraph. Notwithstanding the
13 provisions of s. 120.574(1), expedited summary hearing
14 proceedings for these facilities shall begin within 30 days of
15 the motion made by the permittee. Within 15 days of the
16 conclusion of the expedited summary proceeding, the
17 administrative law judge shall issue a recommended order
18 either denying or approving interim construction, operation,
19 or maintenance of the facility, which shall be submitted to
20 the secretary who shall within 5 days thereafter, enter an
21 order granting or denying interim construction operation or
22 maintenance of the facility. The order shall remain in effect
23 until final agency action is taken on the permit.
24 Section 6. Subsections (8), (13), and (15) of section
25 403.973, Florida Statutes, are amended to read:
26 403.973 Expedited permitting; comprehensive plan
27 amendments.--
28 (8) At the option of the participating local
29 government, appeals of its final approval for a project may be
30 pursuant to the expedited summary hearing provisions of s.
31 120.574, pursuant to subsection (15), or pursuant to other
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1 appellate processes available to the local government. The
2 local government's decision to enter into an expedited a
3 summary hearing must be made as provided in s. 120.574 or in
4 the memorandum of agreement.
5 (13) The applicant, the regional permit action team,
6 and participating local governments may agree to incorporate
7 into a single document the permits, licenses, and approvals
8 that are obtained through the expedited permit process. This
9 consolidated permit is subject to the expedited summary
10 hearing provisions set forth in subsection (15).
11 (15) The expedited hearing process as provided for in
12 s. 120.574 shall be used with regard to challenges to state
13 agency action in the expedited permitting process for projects
14 processed under this section. Notwithstanding s. 120.574, use
15 of the expedited hearing process does not require consent of
16 the affected agency or a determination by the administrative
17 law judge as to its propriety. are subject to the summary
18 hearing provisions of s. 120.574, except that the
19 administrative law judge's decision, as provided in s.
20 120.574(2)(f), shall be in the form of a recommended order and
21 shall not constitute the final action of the state agency. In
22 those proceedings where the action of only one agency of the
23 state is challenged, the agency of the state shall issue the
24 final order within 10 working days of receipt of the
25 administrative law judge's recommended order. In those
26 proceedings where the actions of more than one agency of the
27 state are challenged, the Governor shall issue the final order
28 within 10 working days of receipt of the administrative law
29 judge's recommended order. The participating agencies of the
30 state may opt at the preliminary hearing conference to allow
31 the administrative law judge's decision to constitute the
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1 final agency action. If a participating local government
2 agrees to participate in the expedited summary hearing
3 provisions of s. 120.574 for purposes of review of local
4 government comprehensive plan amendments, s. 163.3184(9) and
5 (10) apply.
6 Section 7. Subsection (14) of section 408.7056,
7 Florida Statutes, is amended to read:
8 408.7056 Statewide Provider and Subscriber Assistance
9 Program.--
10 (14) A proposed order issued by the agency or
11 department which only requires the managed care entity to take
12 a specific action under subsection (7) is subject to an
13 expedited a summary hearing in accordance with s. 120.574,
14 unless all of the parties agree otherwise. If the managed care
15 entity does not prevail at the hearing, the managed care
16 entity must pay reasonable costs and attorney's fees of the
17 agency or the department incurred in that proceeding.
18 Section 8. Paragraph (a) of subsection (4) of section
19 120.595, Florida Statutes, is amended to read:
20 120.595 Attorney's fees.--
21 (4) CHALLENGES TO AGENCY ACTION PURSUANT TO SECTION
22 120.56(4).--
23 (a) Upon entry of a final order that all or part of an
24 agency statement violates s. 120.54(1)(a), the administrative
25 law judge shall award reasonable costs and reasonable
26 attorney's fees to the petitioner, unless the agency
27 demonstrates that the statement is required by the Federal
28 Government to implement or retain a delegated or approved
29 program or to meet a condition to receipt of federal funds.
30 Notwithstanding any other provision of law to the contrary, if
31 a final hearing regarding the agency statement has been
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1 scheduled, and a final order has not been entered because the
2 agency has proceeded to rulemaking or a final order has been
3 entered in favor of the agency because the agency has
4 proceeded to rulemaking and has effectively relied upon s.
5 120.56(4)(e), the administrative law judge shall nevertheless
6 enter an order awarding the petitioner reasonable attorney's
7 fees and costs.
8 Section 9. Subsection (1) of section 373.114, Florida
9 Statutes, is amended to read:
10 373.114 Land and Water Adjudicatory Commission; review
11 of district rules and orders; department review of district
12 rules.--
13 (1) Except as provided in subsection (2), the Governor
14 and Cabinet, sitting as the Land and Water Adjudicatory
15 Commission, have the exclusive authority to review any order
16 or rule of a water management district, other than a rule
17 relating to an internal procedure of the district or an order
18 resulting from a s. 120.569 or s. 120.57 evidentiary hearing,
19 to ensure consistency with the provisions and purposes of this
20 chapter. Subsequent to the legislative ratification of the
21 delineation methodology pursuant to s. 373.421(1), this
22 subsection also shall apply to an order of the department, or
23 a local government exercising delegated authority, pursuant to
24 ss. 373.403-373.443, except an order pertaining to activities
25 or operations subject to conceptual plan approval pursuant to
26 chapter 378.
27 (a) Such review may be initiated by the department or
28 by a party to the proceeding below by filing a request for
29 review with the Land and Water Adjudicatory Commission and
30 serving a copy on the department and on any person named in
31 the rule or order within 20 days after adoption of the rule or
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1 the rendering of the order. For the purposes of this section,
2 the term "party" means any affected person who submitted oral
3 or written testimony, sworn or unsworn, of a substantive
4 nature which stated with particularity objections to or
5 support for the rule or order that are cognizable within the
6 scope of the provisions and purposes of this chapter, or any
7 person who participated as a party in a proceeding instituted
8 pursuant to chapter 120. In order for the commission to
9 accept a request for review initiated by a party below, with
10 regard to a specific order, four members of the commission
11 must determine on the basis of the record below that the
12 activity authorized by the order would substantially affect
13 natural resources of statewide or regional significance.
14 Review of an order may also be accepted if four members of the
15 commission determine that the order raises issues of policy,
16 statutory interpretation, or rule interpretation that have
17 regional or statewide significance from the standpoint of
18 agency precedent. The party requesting the commission to
19 review an order must allege with particularity, and the
20 commission must find, that:
21 1. The order is in conflict with statutory
22 requirements; or
23 2. The order is in conflict with the requirements of a
24 duly adopted rule.
25 (b) Review by the Land and Water Adjudicatory
26 Commission is appellate in nature and shall be based solely on
27 the record below. If there was no evidentiary administrative
28 proceeding below, the facts contained in the proposed agency
29 action, including any technical staff report, shall be deemed
30 undisputed. The matter shall be heard by the commission not
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1 more than 60 days after receipt of the request for review,
2 unless waived by the parties.
3 (c) If the Land and Water Adjudicatory Commission
4 determines that a rule of a water management district is not
5 consistent with the provisions and purposes of this chapter,
6 it may require the water management district to initiate
7 rulemaking proceedings to amend or repeal the rule. If the
8 commission determines that an order is not consistent with the
9 provisions and purposes of this chapter, the commission may
10 rescind or modify the order or remand the proceeding for
11 further action consistent with the order of the Land and Water
12 Adjudicatory Commission only if the commission determines that
13 the activity authorized by the order would substantially
14 affect natural resources of statewide or regional
15 significance. In the case of an order which does not itself
16 substantially affect natural resources of statewide or
17 regional significance, but which raises issues of policy that
18 have regional or statewide significance from the standpoint of
19 agency precedent, the commission may direct the district to
20 initiate rulemaking to amend its rules to assure that future
21 actions are consistent with the provisions and purposes of
22 this chapter without modifying the order.
23 (d) In a review under this section of a construction
24 permit issued pursuant to a conceptual permit under part IV,
25 which conceptual permit is issued after July 1, 1993, a party
26 to the review may not raise an issue which was or could have
27 been raised in a review of the conceptual permit under this
28 section.
29 (e) A request for review under this section shall not
30 be a precondition to the seeking of judicial review pursuant
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1 to s. 120.68 or the seeking of an administrative determination
2 of rule validity pursuant to s. 120.56.
3 (f) The Florida Land and Water Adjudicatory Commission
4 may adopt rules to set forth its procedures for reviewing an
5 order or rule of a water management district consistent with
6 the provisions of this section.
7 (g) For the purpose of this section, it shall be
8 presumed that activity authorized by an order will not affect
9 resources of statewide or regional significance if the
10 proposed activity:
11 1. Occupies an area less than 10 acres in size, and
12 2. Does not create impervious surfaces greater than 2
13 acres in size, and
14 3. Is not located within 550 feet of the shoreline of
15 a named body of water designated as Outstanding Florida
16 Waters, and
17 4. Does not adversely affect threatened or endangered
18 species.
19
20 This paragraph shall not operate to hold that any activity
21 that exceeds these limits is presumed to affect resources of
22 statewide or regional significance. The determination of
23 whether an activity will substantially affect resources of
24 statewide or regional significance shall be made on a
25 case-by-case basis, based upon facts contained in the record
26 below.
27 Section 10. Section 373.4141, Florida Statutes, is
28 amended to read:
29 373.4141 Permits; processing.--
30 (1) Within 30 days after receipt of an application for
31 a permit under this part, the department or the water
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1 management district shall review the application and shall
2 request submittal of all additional information the department
3 or the water management district is permitted by law to
4 require. If the applicant believes any request for additional
5 information is not authorized by law or rule, the applicant
6 may request a hearing pursuant to s. 120.57. Within 30 days
7 after receipt of such additional information, the department
8 or water management district shall review it and may request
9 only that information needed to clarify such additional
10 information or to answer new questions raised by or directly
11 related to such additional information. If the applicant
12 believes the request of the department or water management
13 district for such additional information is not authorized by
14 law or rule, the department or water management district, at
15 the applicant's request, shall proceed to process the permit
16 application.
17 (2) A permit shall be approved or denied within 90
18 days after receipt of the original application, the last item
19 of timely requested additional material, or the applicant's
20 written request to begin processing the permit application.
21 (3) An applicant may, within 30 days after filing an
22 application pursuant to this part, publish notice of his or
23 her application in a newspaper of general circulation in the
24 county or counties where the activity for which a permit is
25 requested may take place. The newspaper notice shall be in
26 accordance with the requirements of chapter 50, and shall set
27 forth, at a minimum, the name of the applicant; the name and
28 mailing address of the permitting agency; a brief description
29 of the activity the applicant is seeking a permit for and the
30 location of the activity; the location of the application
31 file; and that, within 21 days after the publication of the
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1 newspaper notice, any substantially affected person, pursuant
2 to ss. 120.569 and 120.57 or s. 403.412(5), must notify the
3 permitting agency, in writing, of any objections or concerns
4 with regard to the permit application in order to preserve his
5 or her right to initiate an administrative proceeding pursuant
6 to ss. 120.569 and 120.57 or s. 403.412(5). A substantially
7 affected person who, prior to the publication of the newspaper
8 notice, notified the permitting agency in writing of his or
9 her objections or concerns regarding the permit application is
10 not affected by this subsection. Failure to timely notify the
11 permitting agency as required by this subsection shall
12 constitute a waiver of administrative rights under ss.
13 120.569, 120.57, and 403.412(5), as applicable.
14 (4) When an application reviewed by a water management
15 district under this part is the subject of a notice of intent
16 to issue or deny and is approved or denied by a two-thirds
17 vote of the district's governing board, such approval or
18 denial by the governing board shall carry a presumption of
19 correctness in any administrative proceeding pursuant to ss.
20 120.569 and 120.57. A party opposed to the governing board's
21 action must overcome this presumption by a preponderance of
22 the evidence.
23 (5) The Division of Administrative Hearings shall
24 conduct a final hearing on a permit application under this
25 part challenged pursuant to ss. 120.569 and 120.57 within 90
26 days after receipt by the division of the petition or request
27 for hearing. During the pendency of the administrative
28 proceeding, the department or the water management district,
29 as applicable, may authorize construction activities which are
30 not subject to the allegations contained in the petition or
31 request for hearing initiating the administrative challenge.
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1 Section 11. Subsection (5) of section 403.412, Florida
2 Statutes, is amended to read:
3 403.412 Environmental Protection Act.--
4 (5) In any administrative, licensing, or other
5 proceedings authorized by law for the protection of the air,
6 water, or other natural resources of the state from pollution,
7 impairment, or destruction, the Department of Legal Affairs, a
8 political subdivision or municipality of the state, or a
9 citizen of the state shall have standing to intervene as a
10 party on the filing of a verified pleading asserting that the
11 activity, conduct, or product to be licensed or permitted has
12 or will have the effect of impairing, polluting, or otherwise
13 injuring the air, water, or other natural resources of the
14 state; however, a citizen of the state who is not
15 substantially affected by the activity, conduct, or product
16 may not institute, initiate, petition, or request a proceeding
17 pursuant to s. 120.569 or s. 120.57.
18 Section 12. This act shall take effect upon becoming a
19 law.
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