91-002704 Wyatt S. Bishop, Jr. vs. Sarasota County Public Hospital Board, D/B/A Sarasota Memorial Hospital
 Status: Closed
Recommended Order on Thursday, September 5, 1991.


View Dockets  
Summary: Once applicant establishes entitlement to permit protestant must show he has not given reasonable assurances approval will not harm public interest.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8WYATT S. BISHOP, JR. and )

14JOAN JONES, )

17)

18Petitioners, )

20)

21vs. ) CASE NO. 91-2704

26) 91-2706

28SARASOTA COUNTY PUBLIC )

32UTILITIES DEPARTMENT and )

36SOUTHWEST FLORIDA WATER )

40MANAGEMENT DISTRICT, )

43)

44Respondents. )

46_______________________________)

47RECOMMENDED ORDER

49A hearing was held in this case in Sarasota, Florida on July 15 and 16,

641991, before Arnold H. Pollock, a Hearing Officer with the Division of

76Administrative Hearings.

78APPEARANCES

79For the Petitioners:

82Wyatt S. Bishop, Jr. Wyatt S. Bishop, Jr., pro se

925153 Tucumcari Trail

95Sarasota, Florida 34241

98Joan Jones Joan Jones, pro se

104719 East Baffin Road

108Venice, Florida 34293

111For the Respondents:

114Sarasota County Utilities William A. Dooley, Esquire

121Nelson, Hesse, Cyril, Smith,

125Widman, Herb, Causey & Dooley

1302070 Ringling Boulevard

133Sarasota, Florida 34237

136Cathy Sellers, Esquire

139Steel, Hector & Davis

143215 South Monroe Street

147Tallahassee, Florida 32301-1804

150Southwest Florida Water Edward B. Helvenston, Esquire

157Management District Vivian Arenas, Esquire

162Southwest Florida Water

165Management District

1672379 Broad Street

170Brooksville, Florida 34609-6899

173STATEMENT OF THE ISSUES

177The issue for consideration herein is whether Sarasota County Utilities

187should be issued a consumptive use permit to draw water from the 14 wells in

202issue here located in Sarasota County.

208PRELIMINARY STATEMENT

210On March 26, 1991, the staff of the Southwest Florida Water Management

222District, (District), indicated its intention, (revised July 8, 1991), to

232recommend approval of Sarasota County's, (County's), Application No. 208836.00

241for a consumptive use permit to draw water from wells located in the T. Mabry

256Carlton, Jr. Memorial Reserve. On April 8, 1991, after the initial

267recommendation was published, but before the filing of the revision thereto,

278Petitioner, Wyatt S. Bishop filed a Petition in opposition to the permit. On

291that same date, Petitioner Joan Jones filed her Petition in opposition to the

304granting of the permit and by letter dated April 29, 1991, the matter was

318forwarded to the Division of Administrative Hearings for appointment of a

329Hearing Officer. The City of Venice also filed a Petition in opposition, but

342that Petition was subsequently withdrawn, and subsequent to the parties'

352responses to the Initial Order herein, the case was set for hearing in Sarasota

366on July 15 and 16, 1991, at which time it was held as scheduled.

380At the hearing, Sarasota County presented the testimony of several County

391utility employees; a consulting hydrologist expert in that field and in ground

403water modeling; a civil engineer expert in his field; and a County

415environmentalist expert in ecology and hydrology. It also presented witnesses

425in rebuttal to the matters presented by Petitioners. The County also introduced

437County Exhibits 1 through 19.

442The District presented the testimony of an expert in hydrology and ground

454water modeling who reviewed the County's application and recommended its

464approval; and an environmental scientist expert in the area of wetland and

476wildlife habitats.

478Both Mr. Bishop and Ms. Jones appeared pro se and both testified in their

492own behalf. Ms. Jones indicated she would allow Mr. Bishop to question the

505Respondents' witnesses on her behalf. Mr. Bishop also presented the testimony

516of a local well driller; the water division manager for Sarasota County

528Utilities; and a County Commissioner; and also called the District's

538hydrologist, Mr. Basso. Petitioners also introduced Petitioner's Exhibits 1, 3

548- 5, 7, 9 - 12, and 14 - 18.

558A transcript was furnished and subsequent to the hearing, the Petitioners

569submitted joint Proposed Findings of Fact. Respondents also submitted joint

579Proposed Findings of Fact. All submittals have been ruled upon in the Appendix

592to this Recommended Order.

596FINDINGS OF FACT

5991. At all times pertinent to the issues herein, the Respondent, District,

611was the state agency responsible for themanagement of water resources within its

623area of geographical jurisdiction. Included therein was the responsibility for

633the permitting of consumptive water use. The Respondent, Sarasota County, is a

645political subdivision of the State of Florida and operates a public utilities

657division which is charged with meeting, among other things, the potable water

669needs of the residents of the County.

6762. Petitioners Wyatt S. Bishop and Joan Jones are both residents of

688Sarasota County and both draw their potable water from wells which utilize the

701aquifers pertinent to the wells for which the permit in issue here relate. Mr.

715Bishop lives approximately 7.5 miles north of the Carlton Reserve, the property

727on which the wells in issue are located, and Ms. Jones lives approximately 7

741miles from the Reserve, but in a different direction.

7503. Sarasota County filed an application for a consumptive use permit with

762the District on January 28, 1987 requesting an average daily withdrawal of 10.71

775million gallons per day, ( mgd), and a peak monthly withdrawal of 15.55 mgd.

789This application, assigned number 208836.00, was, over the next three years,

800amended by the County four separate times. These amendments reflected revised

811water demand determinations and were submitted to provide additional information

821requested by the District.

8254. The District issued a preliminary staff report and proposed intent on

837March 26, 1991 reflecting an approved withdrawal in the amount of 7.28 mgd

850average daily withdrawal and 11.1 mgd peak monthly withdrawal. These figures

861were revised, however, byan amendment by the District on July 8, 1991, and as

875amended, authorize 7.303 mgd average daily withdrawal and 9.625 mgd peak monthly

887withdrawal.

8885. The County's application was reviewed by an experienced hydrologist in

899the District office with extensive permit review experience who utilized, in his

911evaluation of the permit, the pertinent District rules and policies.

9216. By way of background, to more easily understand the circumstances here,

933Sarasota entered into a contract with Manatee County in 1973 which called for

946the latter to provide up to 10 mgd of water for a period of 40 years, up to and

965including the year 2013. However, in 1979, Manatee County's utilities director

976advised Sarasota County that it, Sarasota County, could not continue to rely on

989Manatee County's water after the expiration of the current contract, and would,

1001therefore, have to become self sufficient in water. Since the MacArthur tract,

1013now known as the Carlton Reserve, had just recently been identified by, inter

1026alia, the United States Geological Service as a potential long term water source

1039for Sarasota County, after Manatee County advised Sarasota County of its future

1051expectations, Sarasota County and the Manasota Basin Board hired a consulting

1062firm to conduct hydrological testing on the Carlton Reserve. This study

1073concluded that the Reserve had sufficient water resources to satisfy the needs

1085of the unincorporated areas of Sarasota County for an extended time into the

1098future.

10997. In 1985, because of its increased water needs and thetime necessary to

1112complete required studies on the utilization of the Myakka River, a surface

1124water resource, Sarasota County concluded that it was suffering a water supply

1136shortage and entered into a supplemental contract with Manatee County to provide

11482 million gallons of water per day over a 5 year period which would expire in

11641990.

11658. Sarasota County had not, however, been idle with regard to the

1177investigation of other water resources. Studies done included not only the

1188Myakka River mentioned above but a reservoir owned by the City of Bradenton, and

1202the Peace River. Nonetheless, it was determined that the Carlton Reserve was

1214the best source available overall, and in 1987, the County filed the application

1227in issue here.

12309. The permit was under consideration for approximately 3 1/2 years before

1242the initial decision by the District to grant it. During that time the County

1256experienced a significant deficiency in its water sources and found it

1267necessary, on February 5, 1991, to enter into another contract with Manatee

1279County to supply an addition 5 mgd. Terms of that contract clearly indicate the

1293expectations of both parties that Sarasota County will take reasonable steps to

1305develop its own water resources. It is not as though Sarasota County sat

1318quietly in the interim, however, and allowed the situation to develop. A

1330building moratorium to halt additional construction was proposed and as a

1341result, economic forces in the County indicated a potential loss of jobs to

1354County residents. None of this would be desirable from an economicstandpoint.

136510. In the course of the permit application process, 12 test wells were

1378sunk to conduct aquifer pump tests; to assess water quality, amounts and

1390availability, aquifer characteristics and drawdown; and to determine the impact

1400of withdrawal on water quality. Eight of these 12 wells are located on the

1414Carlton Reserve. The other 4 are located on property owned by the MacArthur

1427Foundation which is contiguous to the Carlton Reserve property and from which

1439Sarasota has a right by easement to draw water. The 2 wells yet to be

1454constructed will be on Sarasota County property.

146111. Sarasota County currently receives 10 mgd of water under its contract

1473with Manatee County; an additional 5 mgd under the February 5, 1991 contract; 2

1487mgd from the University wellfield, (with a peak withdrawal rate of 3 mgd); and

1501.9 mgd from the Sorrento wellfield, (with a peak withdrawal rate of 1.1 mgd).

1515This latter source is only producing currently .6 mgd of potable water due to

1529constraints imposed by the water treatment requirements. Taken together, the

1539current Sarasota County supply constitutes 18.6 mgd.

154612. The above does not take into account the County's agreement with the

1559City of Sarasota calling for the purchase of up to 2 mgd. Since this source is

1575not reliable, it is not included in the total, and the City is not considered an

1591available water source. In addition, the District and Sarasota County

1601stipulated on July 15, 1991 that within 30 days, the County would apply tophase

1615out routine water production from the Sorrento wellfield, relying on it only in

1628emergency situations with District consent. For this reason, it, too, is not

1640considered an available water supply source.

164613. These currently existing sources, with modifications as described,

1655will be the primary sources of potable water provided to 6 major service areas

1669in Sarasota County when the County's water treatment plant and transmission

1680system are complete in 1993. In attempting to define the County's future water

1693requirements, two major criteria were considered. The first was the County's

1704historical water demand, and the second, modifying it, relates to the demand

1716arising as a result of new water users being added to the system as a result of

1733the County's capital improvements and acquisition program. Water resources are

1743not unlimited.

174514. Current resources come primarily from Manatee County and there are

1756constraints on this supply as it is made available to Sarasota County. For

1769example, the 10 mgd contract expires in 2013. The 5 mgd contract expires in

17832001. Though the latter is subject to renewal, renewal is contingent upon the

1796availability of water supply at that time, and that is not a sure thing. It

1811can, therefore, readily be seen that 15 out of the 18.6 mgd routinely available

1825now comes from Manatee County, and those sources are not perpetual. In

1837addition, it is conceivable that Manatee County may pre-blend the water it

1849delivers to Sarasota County with water of lesser quality, so that the delivered

1862water may exceed the total dissolved solids standard of 500 ppm for potable

1875water. If thewater from Manatee County were reduced to that quality, the

1887University wellfield supply, which currently exceeds standards itself, and which

1897relies on blending with better quality Manatee County water to be potable, would

1910also be removed as a source of potable water to Sarasota County.

192215. In order to comply with the provisions of Section 373.171, Florida

1934Statutes, which requires the District to regulate the use of water by

1946apportionment, limitation, or rotating uses, to obtain the most beneficial use

1957of water resources and to protect the public health, safety and welfare, the

1970District analyzed the available water sources and determined that Sarasota

1980County relies upon its 10 mgd supply from Manatee County and the 2 mgd supply

1995from University wellfield to constitute 12 mgd usable water. The 5 mgd from

2008Manatee County would be used only in an emergency situation, and the Sorrento

2021wellfield would be abandoned.

202516. Future water demands must be predicted relying in great part upon an

2038historic record of prior water use. Utilizing a statistical procedure called

2049linear regression, a methodology accepted by the District, indicated a water

2060demand figure for the period from 1992 to 1997 based upon six use points

2074extending from 1985 to 1990. These use records reflected a low of 9.733 mgd and

2089a high of 12.808 mgd, the former being in 1985 and the latter in 1990. In

2105addition, the County estimated that its capital improvement program would add

2116between 10 and 12 thousand customers who presently use private wells, whose

2128water use would constitute approximately 2 mgd of additional demand. The

2139County's program toacquire some 42 private franchises now serving customers

2149would add an additional demand of 2 mgd. Taken together, these programs would

2162add in approximately 1.8 mgd per year to the need assessment, and it would

2176therefore appear that by 1997, the County's average daily demand, considering

2187all new users, would be 17.84 mgd.

219417. The water to be drawn from the Carlton Reserve is not currently

2207potable and will require some form of treatment to render it so. Sarasota

2220County proposes to use the Electrodialysis Reversal process, ( EDR), because, in

2232the County's judgement, it is more efficient than others such as reverse osmosis

2245and ion exchange. Whereas EDR is rated at up to 85% efficient, the others range

2260between 50% to 75% efficient. In that regard, in order to determine the

2273maximum amount of water to be drawn, providing a safety factor for a treatment

2287plant operation that is not working up to peak capacity in computing the water

2301needs, the EDR process was determined to be no more than 80% efficient.

2314Factoring in that efficiency potential, when the 1997 average daily demand is

2326subtracted from the County's projected water capacity, the withdrawal need in

23371997 is determined to be 7.303 mgd.

234418. However, as a part of its permitting process, the County also

2356calculated its peak month daily demand. This is a figure which represents the

2369maximum amount permitted to be drawn on a daily basis during the peak demand

2383period. This peak period was determined under Section b 3.2 of the District's

2396Basis of Review by taking the 1989 daily flow and using a sliding 31 day

2411calendar to determine the highest historical 31 day flow. Thisresulted in a

2423peak month coefficient of 6.16 which was then multiplied by the 1997 average

2436daily demand of 17.842 mgd which resulted in a peak month daily demand of 20.7

2451mgd. When existing water supplies are removed and the 80% EDR treatment process

2464factor is applied, the amount of raw water needed from the wellfield in issue on

2479a peak monthly basis would be 9.625 mgd. This peak monthly basis figure is

2493considered because of the intermittent periods of low rainfall and high water

2505demand within the County.

250919. Accepting the 1.8 gpd yearly increase; the peak factor of 1.16; and

2522the assumed water supply capacity of 18.6 mgd; Sarasota County's need will

2534exceed its available supplies by 1993. In fact, the County is already

2546experiencing low water pressure in part of its service area during peak demand

2559periods.

256020. County experts estimate that without the requested water from the

2571Carlton Tract, Sarasota County can expect to experience dry periods as early as

25841993 during the periods of peak water usage, generally between April and June.

2597For the above reason, when the application and its supporting information was

2609reviewed by Mr. Basso, the District hydrologist with extensive experience

2619reviewing more than 300 water use application, he determined that the water

2631supplies requested are necessary to meet the County's certain reasonable demand,

2642and that this meets the criteria set out in Rule 40D - 2.301(1)(a), F.A.C.

265621. Turning to the issue of hydrologic and environmental impacts, the

2667District's Basis For Review of Water Permit Applications provides for the use of

2680a "water use model" inevaluating water needs and the appropriateness of a

2692proposed withdrawal. In preparing its submittal to the District, Sarasota

2702County performed certain tests and modeling to derive the statistical and

2713scientific information used in support of its application. Specifically it used

2724the USGS' MODFLOW model utilizing information obtained from the pump tests run

2736on the wells in the pertinent areas. Consistent with the District's rule, the

2749water data and aquifer drawdown were determined by simulated pumping. The

2760tests run also provided the information on water quality in the aquifer and

2773physical characteristics including transmissivity, storage coefficient, specific

2780yield and leakance between aquifers. This data also helped in defining the

2792hydrogeologic framework of the Carlton Reserve.

279822. The Carlton Reserve's hydrogeology listed in descending order from the

2809surface, includes a surficial aquifer which varies in depth between 19 and 70

2822feet across the Reserve; a semi-confining clay unit separating it from the

2834intermediate aquifer; the upper intermediate and lower intermediate aquifer

2843which range in depth from 140 to 180 feet across the Reserve; another confining

2857layer, and the Upper and Lower Floridan aquifers.

286523. The hydrology and groundwater modeling expert who constructed the

2875model used in Sarasota County's permit application concluded that the water

2886table drawdown at the Reserve property boundary in the surficial aquifer would

2898be less than .3 of a foot; less than .4 of a foot in the intermediate aquifer;

2915and 2.9 feet in the Upper Florida aquifer. The water to be drawn consistentwith

2929this instant permit, if approved, would come from the Upper Floridan aquifer on

2942the Reserve.

294424. The County's experts were conservative in the assumptions used in the

2956groundwater model. It was assumed there would be no lateral water flow into the

2970model area and no recharge. In addition, the model called for all pumps to run

2985simultaneously at a maximum drawdown of 12.65 mgd for 90 days rather than at the

3000requested quantity of 9.625 mgd. Utilization of these assumptions provided a

3011scenario wherein "severe" impacts would be encountered. Based on the testing

3022and the modeling done, expert opinion was that there would be no quantity or

3036quality changes that would adversely effect water resources including ground and

3047surface water. This meets the criteria of Rule 40D-2.301. This opinion was

3059concurred in the District's hydrology expert. Nonetheless, in its proposed

3069approval, the District has imposed special permitting conditions which require

3079the County to monitor, analyze, and report water quality and water table level

3092information to the District on a monthly and annual basis.

310225. When it evaluates the information supplied by an applicant relating to

3114ground water monitoring, the District is required to consider certain

3124presumptions set forth in its Basis For Review. For example, the District

3136presumes that if there is a drawdown of more than 1 foot in the surficial

3151aquifer at a wetland, adverse environmental impacts will occur. In the instant

3163case, the County model concluded that the actual drawdown in the surficial

3175aquifer at the Carlton Reserve is less than .6 of onefoot and, therefore, there

3189should be no adverse environmental impact resulting from the withdrawal.

3199Nonetheless, the County has developed several plans designed to provide

3209information on environmental impacts which will continuously monitor such

3218parameters as rainfall and evaporation, wetlands hydroperiod changes and

3227vegetative changes in the wetlands to detect any changes which might be

3239attributed to the water pumping. These plans have been made special conditions

3251to the water use permit, and in the opinion of the County's ecology and

3265hydrology expert, would enable the County to adequately monitor and detect any

3277pertinent changes to the pertinent factors concerned on the Carlton Reserve. If

3289wetland changes are detected, a contingency plan will be in effect which will

3302require an alteration of pumping schedules or other action to minimize any

3314adverse impacts. The District expert in wetlands and wildlife habitat has

3325opined that these measures, with which he is familiar, are adequate to insure

3338that adverse impacts to the wetlands will not occur. This is consistent with

3351the provisions of Rule 40D-2.301(1).

335626. As was stated previously, the water to be drawn pursuant to this

3369permit will be drawn from the Upper Floridan aquifer. This water is not potable

3383but is treatable and is the lowest quality water which can be economically used

3397by the County. Water of a lower quality does exist in the Lower Florida

3411aquifer, but it is not economically treatable, and, in addition, use of this

3424Lower Floridan aquifer might cause vertical movement of the poorer quality water

3436into the upper strata. For all practical purposes,then, the lowest quality

3448water available to it will be used by the County and this is consistent with the

3464District's basis for review.

346827. Expert testimony indicates that saline water will not be infused into

3480the Upper Floridan aquifer. Salt water intrusion generally occurs when

3490groundwater is brought to a level below sea level. Even at the point of maximum

3505actual drawdown as a result of pumping on the Reserve, the fresh water level

3519will remain at least 20 feet above sea level, and as a result of the difference

3535in water level, no saline water intrusion into the fresh water supply will occur

3549even though salt water intrusion can also occur as a result of upward vertical

3563movement of lower quality water due to withdrawal. The District's hydrologist

3574and reviewing official also concluded that because of the confining layer below

3586the aquifer from which water will be withdrawn, there would not be any

3599significant upward movement of lesser quality water.

360628. The District's basis of review also envisions an aquifer pollution if

3618a proposed withdrawal would spread an identified contamination plume. Here no

3629contamination has been identified in the area from which the water will be

3642drawn, and therefore, contamination would not be spread.

365029. The Basis for Review also infers there will be adverse impact to off

3664site land if there is a significant drawdown of surface water bodies or if

3678damage to crops or other vegetation can be expected. Here, the water table

3691drawdown at the boundary of the Carlton Reserve is anticipated at less than .3

3705of one foot and any drawdown further out from the Reserve can be expected tobe

3720even less. As a result, no adverse impact to existing off site land useage is

3735expected.

373630. With regard to Rule 40D-2.301(1)(i), relating to an adverse impact on

3748existing legal uses, the District presumes that no adverse impact will exist if

3761the drawdown in the water table is no more than 2 feet at an affected well, or

3778the potentiometric surface at the well is not lowered by more than 5 feet.

3792Here, again applying the County's groundwater modeling demonstrates that the

3802drawdown at its worst, in the Upper Floridan aquifer, would be no more than 2.9

3817feet at the Reserve boundary and much less at the Petitioners' wells.

382931. Both Mr Bishop's and Ms. Jones' wells are approximately 7.5 and 7

3842miles, respectively, from the closest well on the Reserve property. Ms. Jones'

3854well is drilled into the intermediate aquifer which is above that which the

3867County proposes to use and should not be impacted. Mr. Bishop draws water from

3881the intermediate and surficial aquifers, both of which are above the Upper

3893Florida aquifer identified for use here, and the groundwater modeling would

3904suggest that his well would not be impacted either.

391332. Sarasota County's application contains reference to numerous proposals

3922for water conservation measures which it intends to implement or has already

3934implemented. It has adopted ordinances to enforce the District's watering

3944restrictions and is currently implementing a block inverted use rate structure

3955to promote conservation. It has developed programs for use in the schools

3967outlining water conservation efforts and is developing programs topromote the

3977increased use of treated waste water for golf course irrigation. The

3988requirement for a water conservation plan such as is described and envisioned by

4001the County is a condition of the water use permit proposed, and in addition,

4015the County has adopted an Ordinance, (90-38) which modifies its building code to

4028require installation of water conservation devices in new buildings erected in

4039the County. It has developed proposals for conservation measures such as water

4051auditing, meter testing, leak detection, system looping, and pressure reduction,

4061and has selected the EDR process of water purification as the most efficient use

4075of groundwater resources.

407833. Petitioner, Bishop, testified to his belief that approval of this

4089permit and the resultant water withdrawal on the Carlton Reserve would

4100necessitate an expansion of the boundaries of the District's Eastern Tampa Bay

4112Water Use Caution Area to a point where his property would be encompassed

4125therein. In support of his position, Mr. Bishop offered a notice to the effect

4139that new ground water withdrawals would not be permitted within a certain "most

4152impacted area" within the caution area. There was, however, no independent

4163evidence from hydrologists, geologists, or other conservationists, or

4171individuals familiar with the water conservation process, to support Mr.

4181Bishop's contention that either the boundaries would be expanded or that

4192withdrawal of the proposed permitted amounts of water from the Carlton Reserve

4204would cause the boundaries to be expanded.

421134. By the same token, Mr. Bishop's contention that theproposed withdrawal

4222from the wells here in issue would adversely effect his ability to draw water

4236from his existing well was not supported by any expert testimony or documentary

4249evidence tending to support or confirm his contention. He had no evidence

4261tending to contradict the County's and District's experts, all of whom indicated

4273there would be no adverse impact on the environment or water resources as a

4287result of the instant permit. Similarly, neither Petitioner offered any

4297evidence of a demonstrative nature that would draw any connection between the

4309proposed permitted withdrawals and potential salt water intrusion and water

4319level drawdown in their wells.

432435. The County introduced construction permits issued by its own health

4335department covering 8 of the 12 wells which have been drilled on the Carlton

4349Reserve as test wells. These wells were clearly sunk pursuant to an agreement

4362between the District and the County's public health unit which delegates

4373authority for water well construction permitting to the County. Taken together

4384the documentation indicates that these 12 wells on the Reserve were installed

4396and permitted pursuant to and consistent with appropriate permitting processes,

4406and the testimony of Mr. Bassarab, the County's expert who oversaw the

4418installation of the wells, reflects they are appropriately grouted and sealed.

4429Therefore, there will be no mixing of lower quality water from the lower portion

4443of the Floridan aquifer with the better quality water from the upper portion of

4457that aquifer. The County's evidence clearly refutes the allegation by Mr.

4468Bishop that the 12 test wells currently existingon the Carlton Reserve were

4480neither permitted nor inspected as required by the District.

448936. County Commissioner Hill, who testified on behalf of the Petitioners,

4500indicated that the wells applied for here are unnecessary and an inappropriate

4512expenditure of County funds. She claimed there are other valid sources of water

4525available to the County, including that extracted from excavated shell pits and

4537seawater from the Gulf of Mexico which could be treated and desalinated. The

4550Commissioner's comments as to alternate sources are not specifically rebutted.

4560However, she is neither an expert in hydrology or hydrogeology, and her

4572testimony is not persuasive. While other water sources may exist, the better

4584evidence clearly indicates that those sources are not sufficient to meet the

4596County's needs or are otherwise inappropriate for use by the County in

4608sufficient quantity to satisfy those needs.

4614CONCLUSIONS OF LAW

461737. The Division of Administrative Hearings has jurisdiction over the

4627parties and the subject matter of these proceedings. Section 120.57(1), Florida

4638Statutes.

463938. The County has sought, and the District proposes to issue a permit for

4653the withdrawal of 7.303 mgd average daily demand and 9.625 mgd peak month demand

4667of water for public consumption from 14 wells located on or adjacent to the

4681Carlton Reserve. A permit is required under the provisions of Rule 40D-2.041,

4693F.A.C..

469439. Under the provisions of Section 373.223, Florida Statutes, to

4704successfully apply for a water consumptive use permitthe applicant must

4714demonstrate that the proposed water use is reasonable and beneficial, will not

4726interfere with any presently existing legal use of water, and is consistent with

4739the public interest.

474240. In meeting these requirements, the applicant must provide reasonable

4752assurances that the criteria set forth in Rule 40D-2.301(1)(a) - (n) are met.

4765The criteria, all of which except (d) are applicable here, require a showing

4778that the proposed water use:

4783(a) is necessary to fulfill a certain

4790reasonable demand;

4792(b) will not cause quantity or quality changes

4800which adversely impact ground water

4805resources, including both surface and ground

4811water;

4812(c) will not cause adverse environmental

4818impacts to wetlands, lakes, streams,

4823estuaries, fish and wildlife, or other

4829natural resources;

4831(d) will not cause water levels or rates of

4840flow to deviate from the ranges set forth in

4849Chapter 40D-8;

4851(e) will utilize the lowest water quality the

4859applicant has the ability to use;

4865(f) will not significantly induce saline

4871water intrusion;

4873(g) will not cause pollution of the aquifer;

4881(h) will not adversely impact off site land

4889uses existing at the time of the application;

4897(i) will not adversely impact an existing

4904legal withdrawal;

4906(j) will utilize local water resources to the

4914greatest extent practicable;

4917(k) will incorporate water conservation

4922measures;

4923(l) will incorporate reuse measures to the

4930greatest extent practicable;

4933(m) will not cause water to go to waste; and

4943(n) will not otherwise be harmful to the

4951water resources within the District.

495641. The burden of proof rests upon the applicant to establish his

4968entitlement to the permit, Florida Department of Transportation v. J.W.C., Inc.,

4979396 So.2d 778, 787 (Fla. 1DCA 1981). Once that burden has been met, the burden

4994shifts to the protestant who must establish by competent, credible evidence that

5006the applicant has not demonstrated it is entitled to the permit.

501742. In meeting its burden, the applicant must "provide reasonable

5027assurances which take into account contingencies which might reasonably be

5037expected." Cornwell v. Southwood Properties, Inc., 12 Fla. Admin. L. Rep. 4972,

50494987 (DER Final Order December 6, 1990.) This requirement for "reasonable

5060assurances", however, does not mean "absolute guarantees the permit requirements

5070will be met", Manasota-88, Inc. v. Agrico Chemical Co., 12 Fla. Admin. L. Rep.

5084319, 325 (DER Final Order February 19, 1990), nor does it require the applicant

5098to eliminate all possibility of contrary result or those impacts which can not

5111be detected or measured in real life.

511843. Here, the County and the District, through the testimonyof experts in

5130those fields pertinent to the issues involved, have clearly demonstrated that

5141within the reasonably foreseeable future, additional water supplies will be

5151required to meet the reasonable anticipated needs of the County, increased as

5163they may be expected to be, by population growth and the assumption of

5176responsibility for current residents who now receive their water through other

5187sources. Clearly the current water sources, especially those in Manatee County,

5198can not be relied upon indefinitely. Manatee County has made it abundantly

5210clear that while it expects to fulfill its obligations under the present

5222contacts, it also expects Sarasota County to develop alternate water sources to

5234assume the burden at the expiration of the existing contracts.

524444. Further, the evidence is equally clear that even during the term of

5257the present contracts, the quality of the water received may diminish and may

5270not be of sufficient purity to be used successfully to blend with the lower

5284quality water from some current Sarasota County sources as is the current

5296practice.

529745. Albeit Mr. Bishop and Ms. Jones have passionately disputed the need

5309for the quantities of water proposed to be drawn under the terms of the permit,

5324their arguments are not based on any empirical data or demonstrable evidence of

5337a weight even approximating that of the concise and detailed expert testimony

5349provided by the Respondents.

535346. In short, what appears here is that the County and the District have

5367done that which, unfortunately, is demonstrably soseldom done by government;

5377that is, to plan, sufficiently far in advance, for those contingencies which may

5390be reasonably expected to occur. In this case, the issue involves the

5402anticipated water needs of Sarasota County. That the projected action may

5413increase costs to the taxpayers is regrettable but, reasonably, unavoidable, and

5424in any case, this cost to the taxpayers is not relevant to the issues defined in

5440the permitting of the consumptive use of water resources. Another arena is more

5453appropriate for the addressing of that issue.

546047. The issue in this forum is whether the permit applied for meets the

5474criteria for approval as set out in the statute and the District's rule, and a

5489thorough evaluation of the evidence as a whole, considering both that in support

5502and that in opposition, reveals clearly that it does. Careful examination of

5514the evidence and resolution of the differences therein indicates that the

5525requested permit:

5527Is necessary to fulfill a certain reasonable

5534future demand for potable water for the County

5542use;

5543Is not likely to cause quantity or quality

5551changes adversely impacting both surface and

5557ground water supplies;

5560Is not likely to cause adverse environmental

5567impacts to those protected resources

5572identified in the rule;

5576Will provide the County with the lowest

5583quality water it can use effectively;

5589Is not likely to induce intrusion of saline

5597water into the waterresource;

5601Is not likely to cause pollution of the

5609aquifers from which usable water is currently

5616or likely to be drawn;

5621Will not adversely impact existing off site

5628land uses;

5630Will not adversely impact the existing legal

5637withdrawals of either Petitioners or others;

5643Will utilize local water resources;

5648Will incorporate the County's water

5653conservation and reuse measures to the

5659greatest extent possible and will not cause a

5667waste of water; and

5671Will not likely be harmful in any way to the

5681District's water resources.

568448. In sum, the instant permit application is a reasonable projection of

5696the County's water needs into the foreseeable future. The evidence presented by

5708the parties, taken as a whole, reflects a clear and reasonable need for the

5722water, and reasonable assurance have been given and are supported by the

5734evidence that approval thereof is consistent with the District's criteria for

5745approval and in harmony with the best interests of the public. Properly

5757administered consistent with the conditions proposed for approval of the permit,

5768the permitted withdrawal should not interfere with any legal existing use of

5780water in Sarasota County or within the District.

5788RECOMMENDATION

5789Based on the foregoing Findings of fact and Conclusions of Law, it is,

5802therefore:

5803RECOMMENDED that consumptive water use permit No. 208836.00, providing for

5813authorized quantities as outlined in the intent to issue, subject to conditions

5825contained therein, be issued to Sarasota County.

5832RECOMMENDED in Tallahassee, Florida this 5th day of September, 1991.

5842_______________________________________

5843ARNOLD H. POLLOCK

5846Hearing Officer

5848Division of Administrative Hearings

5852The DeSoto Building

58551230 Apalachee Parkway

5858Tallahassee, Florida 32399-1550

5861(904) 488-9675

5863Filed with the Clerk of the

5869Division of Administrative Hearings

5873this 5th day of September, 1991.

5879APPENDIX TO RECOMMENDED ORDER

5883The following constitutes my specific rulings pursuant to Section

5892120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted

5904by the parties to this case.

5910FOR THE PETITIONERS:

59131. Rejected as not supported by the evidence.

59212. Accepted.

59233. Accepted.

59254. - 8. Resolved against the Petitioners on the basis information presented

5937by Respondents.

59399.- 13. Accepted and incorporated herein.

594514. - 16. Accepted and incorporated herein.

595217. Accepted and incorporated herein.

595718. & 19. Accepted and incorporated herein.

596420. - 23. Accepted.

596824. Accepted but not dispositive of any issue.

597625. Accepted.

597826. & 27. Noted as citation of authority.

598628. Rejected.

598829. & 30. Accepted as restatements of evidence but not as

5999Findings of Fact.

600231. Irrelevant.

600432. Rejected

600633. & 34. Not a error is, in fact, it is such.

601835. - 38. Irrelevant.

602239. - 43. Accepted.

602644. Accepted.

602845. Rejected.

603046. Accepted and incorporated herein.

603547. & 48. Rejected as a mere citation of testimony.

604549. Not understandable. Not a Finding of Fact.

605350. Accepted.

605551. Evidence is acceptable.

605952. Not sufficiently specific to rule upon.

606653. Not proven.

606954. Not specific.

607255. & 56. Rejected.

6076FOR THE RESPONDENTS:

60791. - 4. Accepted and incorporated herein.

60865. & 6. Accepted and incorporated herein.

60937. & 8. Accepted and incorporated herein.

61009. - 14. Accepted and incorporated herein.

610715. - 17. Accepted and incorporated herein.

611418. - 21. Accepted and incorporated herein.

612122. & 23. Accepted and incorporated herein.

612824. Accepted.

613025. - 27. Accepted and incorporated herein.

613728. & 29. Accepted and incorporated herein.

614430. - 32. Accepted and incorporated herein.

615133. Accepted and incorporated herein.

615634. Accepted.

615835. Accepted.

616036. - 37. Accepted and incorporated herein.

616738. Accepted and incorporated herein.

617239. Accepted.

617440. Accepted and incorporated herein.

617941. - 43. Accepted and incorporated herein.

618644. Accepted.

618845. Accepted and incorporated herein,

619346. - 48. Accepted and incorporated herein.

620049. Accepted - not a Finding of Fact.

620850. Accepted and incorporated in substance herein.

621551. Not correct as stated. Sarasota County will not be withdrawing saline

6227water from the upper Floridan aquifer. The remaining discussion is accepted.

623852. Accepted and utilized.

624253. & 54. Accepted.

624655. Accepted and incorporated herein.

625156. Accepted.

625357. - 59. Accepted and incorporated herein.

626060. Accepted.

626261 - 63. Not Findings of Fact but comments on the evidence.

627464. Accepted and incorporated herein.

627965. & 66. Not Findings of Fact.

6286COPIES FURNISHED:

6288Wyatt S. Bishop, Jr.

62925153 Tucumcari Trail

6295Sarasota, Florida 34241

6298Joan Jones

6300719 East Baffin Road

6304Venice, Florida 34293

6307William A. Dooley, Esquire

6311Nelson, Hesse, Cyril, Smith,

6315Widman, Herb, Causey & Dooley

63202070 Ringling Blvd.

6323Sarasota, Florida 34237

6326Cathy Sellers, Esquire

6329Steel, Hector & Davis

6333215 S. Monroe Street

6337Tallahassee, Florida 32301-1804

6340Peter G. Hubbell

6343Executive Director

6345Southwest Florida Water

6348Management District

63502379 Broad Street

6353Brooksville, Florida 34609-6899

6356Edward B. Helvenston, Esquire

6360Vivian Arenas, Esquire

6363SWFWMD

63642379 Broad Street

6367Brooksville, Florida 34609-6899

6370NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

6376All parties have the right to submit written exceptions to this Recommended

6388Order. All agencies allow each party at least 10 days in which to submit

6402written exceptions. Some agencies allow a larger period within which to submit

6414written exceptions. You should consult with the agency which will issue the

6426Final Order in this case concerning its rules on the deadline for filing

6439exceptions to this Recommended Order. Any exceptions to this Recommended Order

6450should be filed with the agency which will issue the Final Order in this case.

6465=================================================================

6466AGENCY FINAL ORDER

6469=================================================================

6470BEFORE THE GOVERNING BOARD OF THE

6476SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

6481ORDER NO. 91-43

6484OGC File No. 03091

6488WYATT S. BISHOP, JR.,

6492Petitioner

6493vs.

6494SARASOTA COUNTY PUBLIC CASE NO. 91-2704

6500UTILITIES DEPARTMENT and

6503SOUTHWEST FLORIDA WATER

6506MANAGEMENT DISTRICT,

6508Respondents.

6509___________________________/

6510JOAN JONES,

6512Petitioner

6513vs.

6514SARASOTA COUNTY PUBLIC CASE NO. 91-2706

6520UTILITIES DEPARTMENT and

6523SOUTHWEST FLORIDA WATER

6526MANAGEMENT DISTRICT,

6528Respondents.

6529____________________________/

6530FINAL ORDER

6532This cause was heard by the Governing Board of the Southwest Florida Water

6545Management District (District) pursuant to Section 120.57, Florida Statutes

6554( F.S.), for the purpose of considering the Recommended Order of the Hearing

6567Officer and the Exceptions filed by Wyatt S. Bishop, Jr. (Bishop) and issuing

6580a Final Order in the above-styled proceedings. On September 5, 1991, the

6592Hearing Officer submitted to all parties a Recommended Order, a copy of which is

6606attached hereto and incorporated herein by reference as Exhibit A. Pursuant to

6618Section 120.57(1)(b)9, F.S., and Rule 40D-1.564, Florida Administrative Code

6627( F.A.C.), the parties are entitled to submit written exceptions to the

6639Recommended Order. On September 20, 1991, Bishop timely filed Exceptions to the

6651Recommended Order. On September 24, 1991, Bishop filed copies of the transcript

6663as required by Rule 40D- 1.564(2), F.A.C.

6670The Governing Board has reviewed the Recommended Order and all Exceptions

6681thereto and finds that it can address each Exception in the manner set forth in

6696the Findings on Exceptions to Recommended Order, attached hereto and

6706incorporated herein by reference as Exhibit B. Those preliminary portions of

6717the Recommended Order regarding date and place of hearing, appearances entered

6728at the hearing, Statement of the Issues and Preliminary Statement are hereby

6740adopted and incorporated herein by reference.

6746FINDINGS OF FACT

6749The Governing Board hereby adopts and incorporates by reference the

6759Findings of Fact set forth in the Recommended Order, with the exception of

6772Findings of Fact 16 and 18, which are rejected in part due to typographical

6786errors which do not otherwise adversely affect the Hearing Officer's Findings of

6798Fact.

6799CONCLUSIONS OF LAW

6802The Governing Board hereby adopts and incorporates by reference the

6812Conclusions of Law set forth in the Recommended Order.

6821Whereas, based on the foregoing Findings of Fact and Conclusions of Law, it

6834is hereby ordered that Water Use Permit No. 208836.00 for Sarasota County be

6847immediately issued in the same form as Exhibit C attached hereto and

6859incorporated herein by reference for a period of six years from the date of

6873issuance.

6874Done and Ordered this 24th day of September, 1991, in Brooksville, Hernando

6886County, Florida.

6888By:_________________________

6889Charles A. Black, Chairman

6893Attest:_________________________

6894Sally Thompson, Secretary

6897(Seal)

6898Filed this 24th day of

6903September, 1991.

6905_________________________

6906Agency Clerk

Select the PDF icon to view the document.
PDF
Date
Proceedings
Date: 09/30/1991
Proceedings: Notice of Entry of Final Order w/Final Order filed.
PDF:
Date: 09/24/1991
Proceedings: Agency Final Order
Date: 09/23/1991
Proceedings: Petitioner Wyatt S. Bishop`s Exceptions to The Recommended Order filed.
Date: 09/12/1991
Proceedings: Petitioner Wyatt S. Bishop Notice of Filing of Exceptions to the Hearing Officer`s Recommended Order and Request That Lesser Portion of Transcripts be Filed filed.
PDF:
Date: 09/05/1991
Proceedings: Recommended Order
PDF:
Date: 09/05/1991
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 7/15-16/91.
Date: 08/15/1991
Proceedings: Letter to AHP from William A. Dooley (re: Proposed Findings) & attachment filed.
Date: 08/12/1991
Proceedings: Petitioner`s Highlited Copy of Permit Staff Report & Petitioner`s Highlited Pages taken from Petitioners Evidence- Attachment D w/cover ltr` Proposed Findings of Fact, Conclusions of Law and Recommended Order by Petitioners, Wyatt S. Bishop and Joan Jon
Date: 08/08/1991
Proceedings: Exhibit-15 filed. (From William A. Dooley)
Date: 08/07/1991
Proceedings: Letter to AHP from Scott L. Blair (re: denying permits) filed.
Date: 08/06/1991
Proceedings: Respondents' Joint Proposed Findings of Fact and Conclusions of Law filed. (From William Dooley)
Date: 08/05/1991
Proceedings: Letter to AHP from Joseph P. Hession (re: Objections) filed.
Date: 08/05/1991
Proceedings: Letter to AHP from Boyce H. Blackmon (re: ruling against the County on issuing the water use permit) filed.
Date: 07/29/1991
Proceedings: Transcript (2 Vols) filed.
Date: 07/29/1991
Proceedings: Petitioner`s Motion for Official Recognition of Certain Documents w/ filed. (From Wyatt Bishop, Jr.)
Date: 07/22/1991
Proceedings: Post Hearing Memorandum w/Exhibit-19 filed. (From Vivian Arenas)
Date: 07/22/1991
Proceedings: Letter to AHP from William Dooley (re: Introduction of additional testimony) & attachment filed.
Date: 07/19/1991
Proceedings: Subpoena Ad Testificandum filed. (From Wyatt S. Bishop, Jr.)
Date: 07/15/1991
Proceedings: CASE STATUS: Hearing Held.
Date: 07/11/1991
Proceedings: Notice of Taking Deposition filed. (from William A. Dooley)
Date: 07/10/1991
Proceedings: Respondent Southwest Florida Water Management District`s Motion to Withdraw and Amend Answers to Request for Admissions filed. (From Edward B. Halvenston)
Date: 07/08/1991
Proceedings: (Respondent) Motion to Withdraw and Amend Answers to Request for Admissions and Fourth Amended Answers to Request for Admissions; Fourth Amended Answers to Petitioner Wyatt S. Bishop`s Request for Admissions filed. (From Omer Causey)
Date: 07/03/1991
Proceedings: Notice of Certificate of Answers to Request for Admissions; Requests for Admissions; Petitioner, Wyatt S. Bishop`s Second Set of Interrogatories to the Sarasota County Public Utilities Department; Petitioner, Wyatt S. Bishop`s Answer to Sarasota County`
Date: 07/01/1991
Proceedings: Third Amended Answers to Request for Admission filed.
Date: 06/28/1991
Proceedings: Notice of Hearing Via Telephone Conference Call; Motion to Compel Answers to Interrogatories by Petitioner Bishop; Motion to Compel Answers to Interrogatories by Petitioner Jones filed. (From Omer Causey)
Date: 06/27/1991
Proceedings: (Sarasota) Motion to Compel Answers to Interrogatories by Petitioner Jones filed. (From Omer Causey)
Date: 06/24/1991
Proceedings: Motion to Withdraw and Amend Answers to Request for Admissions and Second Amended Answers to Request for Admissions; Second Amended Answers to Request for Admissions w/(unsigned) Order filed. (From O. Causey)
Date: 06/24/1991
Proceedings: Respondent Southwest Florida Water Management District`s Response to Wyatt S. Bishop`s Initial Request for Admissions filed. (from Vivian Arenas)
Date: 06/24/1991
Proceedings: The Respondent Southwest Florida Water Management District`s Notice of Service of Answers to Petitioner Joan Jones` First Set of Interrogatories filed. (From Vivian Arenas)
Date: 06/21/1991
Proceedings: Sarasota County's Notice of Answers to Interrogatories Propounded by Joan Jones filed. (From William A. Dooley)
Date: 06/21/1991
Proceedings: (Respondent) Amended Answers to Request for Admissions; Request to Produce (3); Answers to Request for Admissions; Request for Admissions; Notice of Taking Deposition (2); Sarasota County`s Notice of Second Set of Interrogatories to Jones; Sarasota Coun
Date: 06/17/1991
Proceedings: Notice of Service of Answers to Interrogatories; Petitioner, Wyatt S.Bishop`s First Set of Interrogatories to the Sarasota County Public Utilities Department filed. (From William Dooley)
Date: 06/14/1991
Proceedings: Petitioner, Wyatt S. Bishop`s Initial Request for Admissions to the Sarasota County Public Utilities Department filed. (From Wyatt S. Bishop, Jr.)
Date: 06/12/1991
Proceedings: Petitioner, Wyatt S. Bishop`s Notice of Serving Answers to Sarasota County Public Utilities Department`s Interrogatories to Bishop; Sarasota County`s Notice of Interrogatories to Bishop filed.
Date: 06/12/1991
Proceedings: Joint Notice of Interrogatories to Sarasota County w/Interrogatories filed.
Date: 06/05/1991
Proceedings: Petitioner, Wyatt S. Bishop`s Response in Opposition to Sarasota County Public Utilities Department`s Motion in Limine filed. (From Wyatt S. Bisop, Jr.)
Date: 06/03/1991
Proceedings: Petitioner, Wyatt S. Bishop`s First Set of Interrogatories to the Sarasota County Public Utilities Department filed.
Date: 05/31/1991
Proceedings: (Respondent) Motion in Limine; cc: Sarasota Countys Notice of Interrogatories to Bishop filed.
Date: 05/29/1991
Proceedings: Order Granting Motion for Consolidation and Setting Case for Hearing sent out. (91-2704, 91-2706 & 91-2707 consolidated; Hearing set for July 15-16, 1991; 9:00am; Sarasota).
Date: 05/23/1991
Proceedings: Notice of Appearance; Motion to Consolidate filed. (from W. Dooley)
Date: 05/23/1991
Proceedings: (Sarasota County) Request for Oral Argument and Notice of Hearing; Motion to Expedite Hearing & Affidavit filed. (from W. Dooley)
Date: 05/20/1991
Proceedings: Joint Response to Notice of Assignment and Initial Order, Joint Motion to Consolidate and Notice of Appearance of Additional Counsel filed.
Date: 05/08/1991
Proceedings: Initial Order issued.
Date: 05/01/1991
Proceedings: Agency Referral Letter; Notice of Referral and Notice of Related Cases; Petition for Administrative Determination of Substantial Interests;Individual Water Use Permit; Agency Action Letter filed.

Case Information

Judge:
ARNOLD H. POLLOCK
Date Filed:
05/01/1991
Date Assignment:
05/08/1991
Last Docket Entry:
09/30/1991
Location:
Sarasota, Florida
District:
Middle
Agency:
ADOPTED IN PART OR MODIFIED
 

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