84-002653 West Coast Regional Water Supply Authority vs. Southwest Florida Water Management District Status: Closed Recommended Order on Friday, July 26, 1985.

Summary: Applicant must demonstrate need for requested water quantity to show compliance with reasonable/beneficial use criterion. The need was not shown. Comprehensive use permit denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WEST COAST REGIONAL WATER )

AUTHORITY , )

)

Petitioner , )

)

vs. ) CASE NO. 84-2653

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT , )

)

Respondent. )

_________________________________)

S. C. BEXLEY, JR. , )

)

Petitioner , )

)

vs. ) CASE NO. 84-2654

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a consolidated administrative hearing was held before

Diane Demor, Hearing Officer with the Division of Administrative Hearings,

on November 13 through 16 and December 11 and 12, 1984, in Brooksville, Florida.

The prime issues for determination in this proceeding are whether the

consumptive use permit applications of either and/or both petitioners should be

granted.

APPEARANCES

For Petitioner Authority : Edward P. de la Parte, Jr.

and Edward M. Chew

705 East Kennedy Boulevard

Tampa, Florida 33602

For Petitioner Bexley : L. M. Blain, Thomas Cone

and Hallie Evans

202 Madison Street

Tampa, Florida 33602

For Respondent SWFWMD : J. Edward Curren

2379 Broad Street

Brooksville, Florida 33512-9712

For Intervenor James Benjamin Harrill

Pasco County : 7530 Little Road

New Port Richey, Florida 33553

For Intervenor Carl R. Linn

City of Street 267 75th Avenue

Petersburg: Saint Petersburg Beach,

Florida 33706

For Intervenor Ronald D. McCall

Pottberg: 100 East Madison Street

Tampa, Florida 33602

INTRODUCTION

The petitioners West Coast Regional Water Supply Authority (Authority) and

S. C. Bexley, Jr. ( Bexley) each filed an application with the Southwest Florida

Water Management District (District) to modify their existing consumptive use

permits. The contents and rationale for the requested modifications will be

more fully described in the Findings of Fact section of this Recommended Order.

Both petitioners seek to supply water to Pasco County. In District staff

reports dated June 29, 1984, it was recommended that both applications be denied

based on a finding that Pasco County presently has a sufficient supply of water

to meet its average annual water demands up to and including the year 1990.

Without ruling on its staff's recommendation, the District Governing Board

granted pending petitions for intervention, granted consolidation and referred

the consolidated proceedings to the Division of Administrative Hearings. The

intervening parties include Pasco County, which supports the public supply

portions of both applications; the City of Saint Petersburg, which opposes the

Bexley application and alleges that the proposed withdrawals would interfere

with the City's previously existing legal use of water at the South Pasco

Wellfield ; and Arlic C. T. Pottberg , as Trustee of the Otto Pottberg Trust, who

opposes the Authority's application on the ground that increased pumpage at the

Starkey Wellfield may adversely affect the Trust's adjoining property.

In essence, it is the position of applicant Bexley that his application for

a consumptive use permit (CUP) sufficiently complies with all statutory and

regulatory criteria for approval, and that proof of demonstrated need by the

intended user is not a threshold requirement for a CUP. In support of his

position, Bexley presented the testimony of Charles A. Arbuckle , accepted as an

expert in utility management, including evaluation of future water needs;

William Munz , the Director of Public Works and Utilities for Pasco County; John

James Gallagher, the County Administrator for Pasco County; Joe Dale Hardin ,

accepted as an expert in hydrogeology and conducting pump tests for CUPs ; Alton

Robertson, accepted as an expert in groundwater and surface water hydrology,

including the evaluation and assessment of environmental impacts caused by

groundwater withdrawals; Roy Silberstein; David Allen Wiley; Robert E. Vaughn,

accepted as an expert in the engineering and construction of public water

production and supply systems; William Coarser; and Susan Ames. Received into

evidence were Bexley's Exhibits 1 through 28.

The position of the applicant Authority is that Pasco County has no current

need for additional water and, therefore, both applications, insofar as they

request additional withdrawals of water, should be denied. In the alternative,

the Authority contends that if a need has been demonstrated for Pasco County,

the Authority, rather than Bexley, is entitled to additional withdrawals to

fulfill that need. In support of these positions, the Authority offered the

testimony of Gene Albert Heath, accepted as an expert in managing and

administering a water utility, including planning, construction, engineering,

water demand projections, finances and operations; Thomas V. Furman, accepted as

an expert in the planning of water supply systems, including evaluating

facilities, sources of supply and water demand projections; Terry Knepper; Jose

Ignacio Garcia-Bengochea, accepted as an expert in hydrogeology, surface water

hydrology c and engineering; George Cornwell, accepted as an expert in ecology;

Lane Craig Cady, accepted as an expert in engineering and utility system cost

evaluation; and William Duynslager, accepted as an expert in engineering and

water utilities management. Authority Exhibits 1 through 15 and 17 through 44

were received into evidence.

The District's overall position at the hearing was basically identical to

that of the Authority. Testifying on behalf of the District were Roy

Silberstein, accepted as an expert in hydrology; David Allen Wiley accepted as

an expert in hydrology; Theodore Rochow, accepted as an expert in environmental

science, particularly biology and ecology; Fritz Musselmann, the Director of

Real Estate at the District; and William D. Coarser, accepted as an expert in

biology. The District's Exhibits 1 through 11 were received into evidence.

The City of Saint Petersburg presented the testimony of Frank Crum,

accepted as an expert in hydrogeology, and Gene Heath. Its Exhibits 1 and 2

were received into evidence.

Intervenor Pottberg testified in his own behalf, and his Exhibit 1 was

received into evidence.

No witnesses or exhibits were offered during the hearing by intervenor

Pasco County.

During a previously announced evening session, members of the general

public were given the opportunity to testify. Ann Denker, Patricia Pieper and

Sylvia Young testified, and Public's Exhibits 1 through 3 were received into

evidence.

The parties were given the opportunity to file legal memoranda in support

of their respective positions, as well as proposed findings of fact and proposed

conclusions of law. All parties submitted post-hearing documents within a

timely manner after the filing of the hearing transcript, which occurred on June

6, 1985. These documents have been carefully considered by the undersigned

Hearing Officer. To the extent that the Findings of Fact proposed by the

parties are not included in this Recommended Order, they are rejected as not

being supported by competent substantial evidence adduced at the hearing,

irrelevant or immaterial to the issues in dispute or as constituting legal

conclusions as opposed to factual findings.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant facts are found:

WEST COAST REGIONAL WATER SUPPLY AUTHORITY (STARKEY WELLFIELD)

1. The Authority is a nonprofit five-member interlocal entity created in

1974, pursuant to Section 373.1962, Florida Statutes, for the purpose of

planning, designing and operating new sources of water supply to governmental

entities in Pasco, Pinellas and Hillsborough Counties. Its members include the

Counties of Pasco, Pinellas and Hillsborough and the Cities of St. Petersburg

and Tampa. The City of New Port Richey also has a seat on the Authority Board.

The Authority's revenues are presently derived entirely from the sale of water

to its customers. It owns and/or operates five wellfields, some of which are

connected by a water transmission pipeline to each other and to wellfields

operated or owned by Pinellas County and the City of St. Petersburg. In 1984,

the Authority supplied approximately 74 million gallons per day (mgd) to its

customers and held consumptive use permits (CUPs) for a total of 94 mgd average

and 144 mgd peak or maximum. The Authority anticipates that it will serve

approximately 800,000 people in the year 1985. Its master plan, which was last

updated in 1982, projects future water demands through 1995 and identifies

alternative sources of supply to satisfy those demands.

2. One of the wellfields presently operated by the Authority is the

Starkey Wellfield located in Pasco County. The Starkey Wellfield property,

located on some 5,400 or 6,947 acres, was acquired in phases by the Southwest

Florida Water Management District (District) over a period of years beginning in

the early 1970's. There are two remaining parcels which the District has

contracted to acquire in 1985 and 1986. These parcels will be acquired under

the "Save Our Rivers" program embodied in Section 373.59, Florida Statutes. The

various contracts between the District and the Starkey family contain

restrictive covenants which require that "the land remain, as nearly as

practicable, in its natural state" and that water withdrawals be restricted so

that they "do not substantially and/or permanently damage the lands adjacent to

the area." In 1981, the District granted the Authority an exclusive license to

operate a wellfield on the Starkey property provided that it maintain the

wellfield "as nearly as practicable in its natural state." All cater produced

from the property is to be for the water supply needs of the City of New Port

Richey and Pasco County, except that those entities can authorize the sale of

surplus water.

3. Prior to the Authority's involvement with the Starkey Wellfield, the

City of New Port Richey planned and constructed water supply facilities at the

extreme western portion of the wellfield. Four wells were originally permitted

for 3 mgd average and 4.5 mgd maximum. In 1979, in conjunction with Pasco

County as a co-applicant, the permit was modified to provide for increased

withdrawals of 8 mgd average and 15 mgd peak. This increase was not implemented

due to contractual problems between the City and the County. Then, in December

of 1981, the Authority became involved in the Starkey Wellfield. Pursuant to a

Water Transfer and Management Agreement and a Water Supply Agreement, the City

of New Port Richey's four existing wells were transferred to the Authority and

the Authority was authorized to construct additional wells and sell the water to

the City and Pasco County. As noted above, any surplus water could be sold to

others. These agreements have a term of 35 years, with an option of a 35-year

renewal period. If the agreements are terminated, the facilities are to revert

back to the City of New Port Richey and Pasco County.

4. In 1982, the Authority, the City of New Port Richey and Pasco County

obtained the present CUP authorizing the construction and operation of a total

of 14 wells and permitting withdrawals at an average annual rate of 8 mgd and a

maximum daily rate of 15 mgd. This CUP expires on February 3, 1986. The ten

presently operating wells have the capacity to produce 22 mgd. The financing

arrangements for the construction of the Starkey Wellfield are not sufficient to

complete construction. There is a shortfall of about $720,000, which the

Authority plans to make up in revenues from the facility.

5. On December 20, 1983, the Authority, with the City of New Port Richey

and Pasco County as co-applicants, applied to the District for a modification of

the 1982 CUP to increase withdrawals from 8 mgd average, 15 mgd maximum to 11

mgd average and 21 mgd maximum. At the time, the Authority believed that the

increases were justified by the projected water demands of the City and Pasco

County.

6. In preparing its water supply plan submitted to the District on March

1, 1984, the Authority determined that it would be feasible to interconnect the

Starkey Wellfield with the Cypress Creek pipeline and other major production

facilities. In order to finance this pipeline interconnection and again

believing that there was sufficient demand in Pasco County and the City of New

Port Richey to justify increased withdrawals, the Authority, along with the City

and the County, amended the application to modify their CUP on March 23, 1984.

This amendment sought average annual withdrawals of 15 mgd and maximum daily

withdrawals of 25 mgd. Also requested was the relocation of 2 wells that have

not yet been constructed.

7. Between 1971 and 1982, five pump tests have been performed at the

Starkey Wellfield, and monitor wells are installed throughout the property.

Except for the northwest corner of the property, existing withdrawals have not

changed the natural condition of the property. Utilizing these various tests

and monitoring results to predict the hydrologic effects of the Authority's

proposed increased withdrawals, the District found that the potentiometric

drawdown and the water table drawdown at the requested rates would each increase

to almost twice the drawdown at the currently permitted rates. The withdrawal

of water will cause the level of the potentiometric surface to be lowered more

than five feet outside the northern and southern boundaries of the Starkey

Wellfield property. The one-foot water table drawdown anticipated from the

increased withdrawals could have an adverse effect upon lands immediately

adjacent to the north and west. Likewise, this one foot water table drawdown

could cause adverse ecological effects on forests and wetlands within the

Starkey Wellfield properties. Approximately 40 percent of the Starkey property

is high quality wetlands.

8. In June of 1984, a three-day field validation multi-pump test was

performed for the Authority. These test results were not available to the

District at the time it performed its evaluation. The June tests showed aquifer

characteristics different than those previously thought to exist. A much higher

transmissivity level was found and the differing leakance values throughout the

property demonstrated that the aquifer beneath the Starkey Wellfield is not

homogenous. A higher transmissivity level decreases the extent of

potentiometric surface drawdown. After substituting the new aquifer

characteristics found from the June pump tests, the Authority's computer

modeling demonstrates no violation of District hydrologic rules with respect to

potentiometric surface and water table drawdowns at the increased level of

withdrawals. The Authority's ecologist did not feel that the increased

withdrawals would adversely affect natural conditions on the Starkey property,

stating that a one-foot water table drawdown is well within the adaptive range

of wetland vegetation. In addition, the Authority will maintain its existing

ecological monitoring plan on site.

9. The District has not established regulatory levels for the rate of flow

of streams or other water courses, for the potentiometric surface or for the

surface water in the vicinity of the Starkey Wellfield. Deep monitor wells on

the property indicate that there has been no increase in chloride

concentrations. Increased withdrawals are not expected to induce saltwater

encroachment. If it is found that the potentiometric surface at the Starkey

property boundary is lowered more than five feet, an alternative pumping

schedule can be put into effect to prevent that occurrence. The pattern of

production can be changed by shifting to different wells during the dry season.

Increased withdrawals will not lower off-site water tables, lakes or other

impoundments by more than one foot, and the potentiometric surface will not be

lowered below sea level.

10. The Authority's proposed consumptive use of 15 mgd average would

withdraw 2,777.77 gallons per acre per day if the Starkey Wellfield contains

5,400 acres, and 2,159.13 gallons per acre per day if it contains 6,947 acres.

Its present permitted withdrawals average more than 1,000 gallons per acre per

day.

11. The Authority's proposed increased withdrawals will not interfere with

any presently existing legal use of water.

BEXLEY (CENTRAL PASCO WELLFIELD)

12. Bexley owns 14,510 acres of land in Pasco County located immediately

east of the Starkey Wellfield. The land contains improved pasture, crops,

planted pine and some cypress heads and ponds. He presently holds a CUP

authorizing a combined average annual withdrawal of 2,416,000 gallons per day

with a maximum withdrawal of 11,520,000 gallons per day. Such withdrawals are

permitted for agricultural irrigation purposes and come from five wells.

13. In August of 1983, Bexley entered into a contract with Pasco County.

The contract requires Bexley to produce and supply to Pasco County an average of

9 mgd of public supply water and a maximum of 13 mgd. Pasco County is given the

exclusive right to purchase these amounts and, indeed, must pay for the water

made available, whether it is accepted or not. The term of the agreement

between Bexley and the County is 33 years.

14. Pursuant to his contract with Pasco County, Bexley applied to the

District on December 21, 1983 to modify his existing CUP. A decrease in

agricultural withdrawals was requested, as were five additional wells to produce

10 .0 mgd average and 13.5 mgd maximum for Pasco County's public water supply.

The five additional wells are to be located on 10,848 acres of land, to be known

as the Central Pasco Wellfield, located within the 14,510 acres owned or

controlled by Mr. Bexley. The modification would result in total (agricultural

irrigation and public water supply use) withdrawals of 11,881,000 gallons per

day annual average and 23,580,000 gallons per day maximum.

15. In order to determine the anticipated hydrologic effect of the

proposed withdrawals, Bexley's hydrologist reviewed and analyzed previous

studies of regional hydrogeology and other wellfields prepared by the District,

the United States Geological Survey and private consultants. He also conducted

a "slug test" and a single well pump test over a period of six days. The

aquifer characteristics of the Bexley property were found to be within the range

of values derived from other regional testing. Assuming an homogenous aquifer,

these characteristics were used in computer modeling to predict the effect of

increased withdrawals on and off the Bexley property. The five-foot

potentiometric drawdown is confined to the Bexley property, as is the three-foot

water table drawdown. The effects of any potentiometric surface and/or water

table drawdowns on agricultural crops in the vicinity of the production wells

can be offset by irrigation. No lake or other impoundment off-site will be

lowered more than one foot. The proposed withdrawals will not cause the

potentiometric surface to be lowered below sea level. Regulatory levels have

not been established by the District for potentiometric surface, stream flows or

surface water on the Bexley property. Although there was no deep monitor well

testing done, salt water encroachment is not anticipated as a result of the

proposed withdrawals. After an independent evaluation, the District staff also

concluded that the proposed Bexley withdrawals would not violate the District's

hydrologic rules.

16. The proposed public water supply use of 10 mgd average from 10,848

acres will average 921.80 gallons per acre per day. The combined public supply

and agricultural irrigation use of 11.8 mgd from 14,510 acres will average

818.78 gallons per acre per day.

CITY OF ST. PETERSBURG (SOUTH PASCO WELLFIELD)

17. The City of Saint Petersburg owns and operates the South Pasco

Wellfield, located on a 589 acre site to the south of the Bexley property. This

wellfield has been in operation since 1973, and the City has a CUP to withdraw

water at the rate of 16.9 mgd annual average and 24 mgd maximum as part of a

public supply system. This CUP expires on September 1, 1992. The CUP requires

the City to balance production from its South Pasco Wellfield equally with its

two other well fields -- Section 21 and Cosme-Odessa. Among the terms and

conditions of the CUP are that three regulatory wells be monitored so as not to

cause the cumulative weekly average elevations of the potentiometric surface of

the aquifer to be lower than the regulatory level set for each well. One of the

regulatory wells is located on State Road 54, about 1.5 miles south of the

Bexley southern property boundary. The regulatory level set for that well is

that the potentiometric surface not be below 42.0 feet above mean sea level on a

cumulative weekly average basis. On a noncumulative weekly average basis, the

elevations may be 37.0 feet above mean sea level. Since 1974, average water

levels at the State Road 54 regulatory well have fluctuated from 44.8 feet to

49.4 feet.

18. Bexley's proposed combined average withdrawals may cause a

potentiometric surface drawdown of between 1.3 and 1.9 feet at the State Road 54

regulatory well.

19. The City of Saint Petersburg presented evidence that if the City pumps

at its permitted average of 16.9 mgd and Bexley pumps at its average of 11.8

mgd, the City will only be able to withdraw 14.1 mgd without violating the

regulatory level for the State Road 54 well. However, this result was obtained

by starting off with the normal water levels in the State Road 54 well as they

existed in 1980-81, a particularly dry year, and then comparing them with the

results obtained if Bexley were to pump its total combined average of 11.8 mgd.

This methodology fails to take into account Bexley's permitted withdrawals of

2.4 mgd as they existed in 1980-81, and in effect, double-counted them by

initially ignoring their impact on the 1980-81 water levels and adding them back

in as a part of the new combined total. In addition, the exhibits and testimony

offered by the City failed to demonstrate that the cumulative weekly average

elevations would go below 42.0 feet if Bexley were pumping at its requested

average rate. While the City of St. Petersburg did utilize its permitted

average capacity in 1975, for the past five years it has averaged only between

10.1 and 12.3 million gallons per day from its South Pasco Wellfield. Even if

the regulatory level of the State Road 54 well were in jeopardy of violation, it

would be possible to shift the pumpage among the eight production wells to

counter such a result. The Bexley property is located approximately 3.5 miles

from the center of pumpage at the South Pasco Wellfield.

THE OTTO POTTBERG TRUST PROPERTY

20. The Otto Pottberg Trust Property, owned by the Pottberg family since

1936, is comprised of 8,000 acres of land located immediately north of the

Starkey Wellfield. The property is used for cattle grazing and a nursery

operation, and wildlife on the property is abundant. The intervenor Pottberg

has observed that since the operation of the well field began on the Starkey

property, the cattle ponds on the Pottberg property dry up and vegetation and

grasses are adversely affected during the dry seasons. He has observed a

noticeable decline in all lake levels. He fears that increased withdrawals from

the Starkey well field would diminish the use of his property for cattle grazing

and nursery operations, would create a fire hazard and would adversely affect

plant, animal and human life on his property.

21. The Authority's experts found no surface drawdowns which would extend

into the Pottberg property. The District determined that the potentiometric

surface drawdown resulting from the proposed increased withdrawals from the

Starkey Well field would exceed five feet on the northern boundary--thus

extending into the property owned by the Otto Pottberg Trust. Likewise, the

water table drawdown of one foot extends beyond the property at the northwest

corner. However, there was no evidence that there are lakes on the Pottberg

property at or near the northwest corner of the Starkey property, or that there

is an existing CUP well on the Pottberg property in the area where the

potentiometric surface drawdown exceeds five feet.

PASCO COUNTY'S WATER DEMANDS AND SUPPLIES

22. Pasco County is legally authorized and required to provide an adequate

public water supply for its citizens. Based upon per capita use and estimates

of population growth, the quantity of public supply water needed by Pasco County

has been estimated by various experts as follows:

YEAR AVERAGE MAXIMUM

MGD MGD

1985 11.3 20.3

1986 12.3

1988 12.8 28.6

1990 16.4 29.5

1993 18.8 40.8

1995 21.8 39.5

2000 27.2 49.0

In the year 1983, the Pasco County Utility Department actually utilized 8.1 mgd

for public water supply purposes.

23. Pasco County has a contract right and obligation to purchase the

following amounts of water produced by the Authority at the Starkey Wellfield:

YEAR AVERAGE AND MAXIMUM MGD

1985 7

1986 6.7

1987 6.4

1988 6.1

1989 5.8

1990 and thereafter 5.5

The City of New Port Richey also has an allocated entitlement to the remaining

amounts of water withdrawn from the Starkey Wellfield under its current permit.

The Water Supply Agreement for the Starkey Well field recognizes that the City

and County will have increasing water supply needs, and provides that they may,

upon giving the Authority two years prior notice, increase their entitlement.

24. The Pasco County Utility Department also has 13 CUPs covering public

supply wells located on or near the coast. These CUPs, which were renewed in

May of 1984 and expire in May of 1992, authorize a total withdrawal of 4 .54 mgd

average. The majority of these wells are located in coastal areas along and to

the west of the 10-foot potentiometric surface contour near the saltwater-

freshwater interface. Wells west of the 10-foot contour line generally have

high chloride levels. The County has experienced inefficiency in operating some

of these wells, and they are considered suitable mainly for fire control and

peaking purposes. A condition of the 13 CUPs requires a proportionate, or

gallon by gallon, decrease of average day withdrawals should Pasco County

acquire another source of public water supply.

25. Pinellas County is contractually obligated to provide Pasco County

with up to 10 mgd upon demand. Pasco County controls how much water it will

take from the Pinellas County water system. This water is produced by the

Authority from other wellfields located within Pasco County, is purchased by

Pinellas County and then is transported to Pinellas County. Upon request by

Pasco County, the water is then transported back up north again to Pasco County.

The water travels approximately 25 to 40 miles from Pasco County to Pinellas

County and back to Pasco County. The Pinellas County water system has

sufficient capacity to continue to provide 10 mgd to Pasco County. Pasco County

does not currently utilize the full 10 mgd, partially because such use would

currently present difficulties in fulfilling its contractual obligation or

entitlement from the Starkey Wellfield. The contract between Pinellas and Pasco

Counties was not placed into evidence. No evidence was presented as to whether

Pasco County is either able to or desires to eliminate or change its contract

with Pinellas County. It was the position of the Pasco County Director of

Public Works and Utilities that it would be more cost-effective to have an

alternative source of public water supply. There was insufficient evidence

produced at the hearing to determine if the Pinellas County water provided to

Pasco County is more or less expensive than the rates presently charged by the

Authority or by the contractual agreement between Bexley and Pasco County.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of these consolidated proceedings. Section

120.57(1)(b)(13), Florida Statutes. Each of the intervenors have adequately

demonstrated that they have standing to participate as substantially affected

persons in these consumptive use permit proceedings. Pasco County is a co-

applicant with the Authority and is the intended user of the water proposed to

be withdrawn by both applicants. The Pottberg Trust owns 8,000 acres of land

adjoining the Starkey Wellfield, and increased withdrawals of water from that

wellfield could, depending upon the amount and the location of the withdrawals,

have an ecological impact upon the southern portion of the Pottberg property.

The evidence demonstrates that withdrawals of water from the Bexley property

could, again dependent upon both the amount withdrawn by Bexley and the amount

withdrawn by the City, substantially affect the City of St. Petersburg's ability

to withdraw previously authorized quantities of water from its South Pasco

Wellfield.

27. The Florida Legislature has declared that the waters in this State are

among its basic resources, and has recognized that such waters have not

previously been conserved or fully controlled so as to realize their full

beneficial effect. To this extent, it is declared Legislative policy to provide

for the management of water and "to promote the conservation, development, and

proper utilization of surface and ground water." Section 373.016, Florida

Statutes. In order to implement this Legislative mandate, water management

districts are authorized by statute to require permits for the consumptive use

of water. Section 373.219, Florida Statutes.

28. An applicant for a CUP must establish that the proposed use of water

is a reasonable beneficial use, will not interfere with any presently existing

legal use of water and is consistent with the public interest. Section 373.223,

Florida Statutes. In addition, it is incumbent upon an applicant to demonstrate

that the proposed withdrawal of water will meet the hydrologic criteria set

forth in the District's Rule 40D-2.301(2) and (3), Florida Administrative Code.

In these consolidated proceedings, a determination of noncompliance with the

initial threshold criterion -- whether each applicants' proposed use is a

reasonable beneficial use, is determinative of all remaining issues.

29. Counsel for Mr. Bexley and for Pasco County have maintained throughout

these proceedings that an applicant is not required to demonstrate a "need" for

water as an independent criterion. It is contended that there is no statutory

or regulatory authority to deny an application for an alternative source of

water supply simply because the intended user has access to other sources of

supply which already are permitted. Bexley argues that so long as the water

actually applied for is to be used by Pasco County for public supply purposes,

the "reasonable beneficial use" criterion has been met. The District and the

Authority, on the other hand, contend that if the quantity of water requested is

not "necessary" or "needed," it is not a reasonable beneficial use and is

therefore not a legally authorized use.

30. After carefully considering the contentions of counsel and analyzing

the statutory and regulatory provisions with respect to the issuance of CUPs ,

common sense and logic dictates the conclusion that an applicant must

demonstrate a need for the quantity of water requested in order to show

compliance with the "reasonable beneficial use" criterion. To conclude

otherwise would permit an applicant to obtain a permit for unlimited amounts of

water, regardless of other permitted sources of water available to the

applicant, so long as one drop of the requested water was destined for a

reasonable beneficial purpose. This would totally defeat the Legislative policy

that our groundwater resources be managed, conserved and properly utilized. If

Pasco County, either through separate permits or contractual entitlements, is

authorized to withdraw more water than it needs for public supply purposes, that

water will either be put to other unauthorized uses or it will be preempted from

use by other reasonable beneficial users. Taken to the extreme, it is obvious

that one entity authorized to supply public water in an area may not preempt all

other water use in that area simply because that entity wishes to have

alternative, even if not additional, sources of supply. Such would not be a

"reasonable beneficial use" of the water requested.

31. The quantity of water requested is the cornerstone of the permit

evaluation system. A diversion of water which exceeds the amount reasonably

necessary for a beneficial use will either be wasted or will be preempted for

use by others. Such a "use" of the water is neither reasonable nor beneficial.

Likewise, whether the requested withdrawals interfere with existing legal uses

of water or are consistent with the public interest is dependent upon the

quantity of water withdrawn.

32. A demonstration of need for the quantity of water requested is

obviously contemplated and required. "Reasonable beneficial use" is statutorily

defined in Section 373.019(4), Florida Statutes, as:

" the use of water in such quantity as is

necessary for economic and efficient

utilization for a purpose and in a manner

which is both reasonable and consistent

with the public interest." ( underlining

supplied)

Likewise, Rule 17-40.04(2), Florida Administrative Code, lists 16 factors to be

given consideration in determining whether a water use is a reasonable

beneficial use. Among those factors are the "quantity of water requested for

the use" and "the demonstrated need for the use." It is clear that the mere

request, either through a CUP application or demonstration of a contractual

arrangement, for additional, supplemental or alternative sources of public

supply water is not sufficient by itself to demonstrate that the proposed use

will be reasonable and beneficial. It is the use of water which is permitted,

and use can only be reasonable and beneficial if the quantity requested is

needed by the applicant or the intended user. See Village of Tequestra v.

Jupiter Inlet Corp. 371 So.2d 663 (Fla. 1979). Also see Section 373.239(2)(a),

Florida Statutes, which allows the District to approve modifications to a CUP

requesting less than 100,000 gallons per day if the permittee can establish a

change in conditions resulting in the water allowed becoming "inadequate" for

the permittee's "need."

33. The evidence demonstrates that both applicants intend to provide water

to Pasco County. 1/ Having determined that a demonstration of need is essential

to a finding that the proposed use is a reasonable beneficial use, the needs or

demands and existing water supplies of Pasco County must be examined.

34. Pasco County presently has three sources of public water supply -- the

Starkey Wellfield, its 13 permitted wells and its contractual arrangement with

Pinellas County. In 1985, the water available to Pasco County from these three

sources is 21.5 million gallons per day on an average annual basis. These three

sources exceed the County's average demand for 1985 by 10.2 mgd. The permitted

or contractual supply from these three sources continues to exceed Pasco

County's average annual demand projections for all years for which projections

were made up until the year 1995. For the year 1986, supply exceeds demand by

8.9 mgd. In 1988, there is an excess supply of 7.8 mgd. In 1990, the supply

exceeds the demand by 3.6 mgd, and in 1993, the excess supply is 1.2 mgd. It is

only in the year 1995 that the projected average demand of 21.8 mgd exceeds the

supply provided from the currently permitted sources, and then only by 1.8 mgd.

35. In spite of the overabundant supply of water presently available to

Pasco County, the two applicants, with Pasco County's support, are now

requesting a combined total of 17 mgd average to be used for Pasco County's

public water supply. Bexley has a contractual arrangement with Pasco County for

the supply and purchase of 9 mgd. The Authority has no such contractual

arrangement beyond the present arrangement as set forth in Finding of Fact 23

above. Presumably, a portion of the additional 7 mgd average requested by the

Authority would go to the City of New Port Richey, though the evidence is not

clear on this point. Indeed, the only real "use" shown for the requested

increase in withdrawals by the Authority was to help finance the pipeline

interconnection proposed in the Authority's long range plans.

36. It is admitted by all parties that the County's present sources of

supply are sufficient in raw quantity t percent satisfy its demands through

1990. However, it is contended that it is within the authority and discretion

of the County through its Board of County Commissioners, and not the District,

to determine how the County will replace existing sources of supply with new

sources of supply. The County urges that it desires to reduce or eliminate its

reliance on its coastal wells as a result of environmental and water quality

concerns and also as a result of high operational and maintenance costs. The

evidence was insufficient in this proceeding to allow a conclusion that all or a

portion of these wells present a clear environmental or cost-prohibitive barrier

to use. Nevertheless, the County's intention, accepted by the District, to

abandon such use is evidenced by the permit conditions placed on these wells

requiring a gallon per gallon reduction in the permitted withdrawals should

other sources of water be acquired. Thus, the Board of County Commissioner's

discretionary authority to replace existing sources of supply with new sources

of supply has been recognized. If the County desires to cease using the 4.5 mgd

from its 13 permitted wells, it may do so today and still have an adequate

supply to meet its needs at least through 1988, and most probably through 1989.

By utilizing its entitlement from Pinellas County, it would have a 1988 supply

of 16 .1 mgd average when its demand for 1988 is 12.8 mgd. Demand projections

for 1989 were not made, but the 1990 demand is 16.4 mgd, or 0.9 mgd more than

its current supply.

37. It is further argued that Pasco County desires to reduce its reliance

on the Pinellas County contract and gain control of its own destiny with respect

to adequate and affordable water supplies. It is urged that the concept of

"need" includes more than raw quantity and that environmental and economical

considerations must be included. However, there was no evidence presented to

demonstrate that the Pinellas County supply is either inadequate, undependable,

uneconomical or presents adverse environmental effects. It must be presumed

that the District took into consideration the 10 mgd entitlement of water to

Pasco County when it issued the CUP covering the source of that water. There is

no competent substantial evidence that the Board of County Commissioners of

Pasco County intends to formally rescind or eliminate all or any portion of this

contractual arrangement with Pinellas County. Should the District ignore this

source of water to Pasco County and, at the same time, allow it to be preempted

from other uses? To do so would be to disregard its responsibility to provide

for the "management" of water resources and the "conservation" and "proper

utilization" of groundwater.

38. In summary, there is insufficient evidence in the record of this

proceeding to determine that Pasco County needs additional or alternative

sources of water through the year 1990. To authorize a use of water in a

quantity which greatly exceeds the demonstrated need of the intended user would

be in conflict with the statutory conditions for a permit -- that the proposed

use be a "reasonable beneficial use." Since Pasco County does not currently

need additional water and its request for alternative sources of water has not

been justified, both applicants have failed to demonstrate that the proposed

increased withdrawals are for a reasonable beneficial use. Their applications

must therefore be denied. Having failed to comply with the threshold criterion

for issuance of a CUP, neither applicant is entitled to a permit and all

remaining issues regarding interference with existing legal uses of water,

public interest, competing applications and compliance with the hydrologic

criteria are rendered moot.

39. Bexley's renewed motion to strike certain testimony and exhibits as

they relate to the "demonstrated need" theory is DENIED for the reasons

previously expressed regarding the reasonable beneficial use criterion. The

Authority's motion to strike from Bexley's written closing argument references

to a violation of federal and state antitrust laws is GRANTED.

40. The record evidence, both oral and documentary, in these cases related

solely to the two applicants' requests for increased withdrawals for public

water supply purposes. No evidence was presented regarding Bexley's

continuation of agricultural irrigation withdrawals or the request by the

Authority in its permit modification application to relocate two wells at the

Starkey Wellfield. Consequently, no findings of fact or conclusions of law on

the merits of these portions of the pending applications are made or intended in

this Recommended Order.

RECOMMENDED ORDER

Based upon the findings of fact and conclusions of law recited herein, it

is RECOMMENDED that:

1. the application, as amended, filed by the West Coast Regional Water

Supply Authority to modify its existing consumptive use permit by increasing

withdrawals at the Starkey Wellfield from 8 mgd average annual and 15 mgd

maximum daily to 15 mgd average and 25 mgd maximum be DENIED, and

2. the application filed by S.C. Bexley, Jr. to modify its existing

consumptive use permit by decreasing its agricultural irrigation withdrawal rate

and adding a public water supply at an average annual withdrawal rate of 10 mgd

and a maximum daily rate of 13.5 mgd, for a total combined average of 11.9 mgd

and a maximum of 23.6 mgd for agricultural and public water supply use, be

DENIED.

Respectfully submitted and entered this 26th day of July, 1985, in

Tallahassee, Florida.

___________________________________

DIANE D. TREMOR,

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of July, 1985.

ENDNOTE

1/ It is recognized that the Authority may also wish to provide water to the

City of New Port Richey from the Starkey Wellfield, but no evidence was

presented to demonstrate the future public water supply needs of that City.

COPIES FURNISHED:

L. M. Blain

202 Madison Street

Tampa, Florida 33602

Edward P. de la Parte , Jr.

705 East Kennedy Boulevard

Tampa, Florida 33602

J. Edward Curren

2379 Broad Street

Brooksville, Florida 33512-9712

Carl R. Linn

267 75th Avenue

St. Petersburg Beach, Florida 33706

Ronald D. McCall

100 East Madison Street

Tampa, Florida 33602

James Benjamin Harrill

7530 Little Road

New Port Richey, Florida 33553

Gary W. Kuhl

Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 33512-9712