92-007161 City Of Bradenton vs. Southwest Florida Water Management District Status: Closed Recommended Order on Tuesday, May 31, 1994.

Summary: Insufficient evidence to show that petitioner met the criteria for variance from water restrictions imposed under rule 40D-21.291(2)(c).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CITY OF BRADENTON, a Florida )

municipality, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7161

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings, by its duly

assigned Hearing Officer, William R. Cave, conducted a formal hearing in the

above-captioned matter on October 4, 5 & 6, 1993, in Bradenton, Florida.

APPEARANCES

For Petitioner: Barbara B. Levin, Esquire

Davis, Persson, Smith & Darnell

2033 Main Street, Suite 406

Sarasota, Florida 34237

William Lisch, Esquire

519 13th Street West

Bradenton, Florida 34205

For Respondent: James A. Robinson, Esquire

Mark F. Lapp, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34609-6899

STATEMENT OF THE ISSUE

Whether the City of Bradenton's (City) petition for a variance from

established lawn and landscape irrigation restrictions imposed under the

Southwest Florida Water Management District (District) Governing Board Order 92-

12, as amended, should be granted under Rule 40D-21.291(2)(c), Florida

Administrative Code.

PRELIMINARY STATEMENT

On October 28, 1992, the District advised the City that its earlier filed

Petition For Variance from the District Governing Board Order 92-12, as amended,

had been denied. On November 12, 1992, the City filed a Petition For Formal

Administrative Hearing with the District. On November 30, 1992, the District

filed a Notice Of Referral with the Division of Administrative Hearings

requesting the assignment of a Hearing Officer for the conduct of a hearing and

this proceeding ensued. The initial hearing in this matter was scheduled for

April 21 - 22, 1993 but due to continuances requested by the parties and

granted, and attempted settlement, the matter was not heard until October 4 - 6,

1993. As a result of a Motion To Dismiss filed by District, the issue to be

resolved by this proceeding was limited to whether the City could comply with

the criteria of Rule 40D-21.291(2)(c), Florida Administrative Code, in order to

be granted a variance from the District Governing Board Order 92-12, as amended.

At the hearing, the City presented the testimony of William Evers, Earl

Crawley, William Taylor, Harold Bridges, Lloyd Horvat and Jeffery Hottman. The

City's exhibits 1 - 4, and 6 - 21 were received as evidence in this case. The

City's exhibit 5 was rejected. The District presented the testimony of B. J.

Jarvis, Peter G. Hubbell, Donald Rome and Jay Yingling. The District's exhibits

1 - 6 were received as evidence in this case. Official Recognition was taken of

the District Governing Board Order Nos. 92-12, 92-21 and 92-60; Chapters 40D-0,

40D-1, 40D-2, 40D-21 and 40D-22, Florida Administrative Code and Chapter 373,

Florida Statutes.

A transcript of this proceeding was filed with the Division of

Administrative Hearings on November 2, 1993. The transcript as submitted to the

Division had a Volume I (pages 1-118), Volume II (pages 119-240), Volume II

(pages 241-357), Volume III (pages 358-509, no Volume IV, Volume V (pages 501-

563), Volume VI (pages 564-674) and Volume VII (pages 675-779). Volume II

(pages 241-357) has been renumbered as Volume III and Volume III (pages 358-509)

has been renumbered as Volume IV. By Joint Stipulation the parties requested

and were granted an extension of time for filing their Proposed Recommended

Orders with the understanding that any time constraint for entry of a

Recommended Order under Rule 28-5.402, Florida Administrative Code, was waived

in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties

timely filed their Proposed Recommended Orders under the extended time frame. A

ruling on each proposed finding of fact submitted by the parties has been made

as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the

hearing, the following relevant findings of fact are made:

BACKGROUND

1. The District is the agency authorized by Chapter 373, Florida Statutes,

and the rules promulgated thereunder to declare the existence of a water

shortage within all or part of the District where insufficient surface or ground

water is available to meet the needs of the users or when conditions are such as

to require temporary reduction in total use within the area in order to protect

the water resources, and to impose such restrictions as may be necessary to

reduce demand on available water supplies.

2. The City is located within Manatee County which is within the

geographical boundaries of the District and, as such, the City is subject to any

water restrictions imposed by the District that covers the area within which the

City is located.

3. The Bill Evers Reservoir, an in-stream reservoir in the Braden River,

formerly known as Ward Lake, provides the principle source of potable water for

the City. The Bill Evers Reservoir is located within Manatee County.

4. On August 13, 1991, the District issued Individual Water Use Permit No.

206392.01 to the City authorizing the withdrawal of a combined average annual

rate of 5.6 million gallons of water per day from the Bill Evers Reservoir and

one well, with a maximum combined rate not to exceed 8.2 million gallons of

water per day.

5. Condition 4 of the permit provides that if the District declares that a

water shortage exists pursuant to Chapter 40D-21, Florida Administrative Code,

the District shall alter, modify, or declare inactive all or parts of the permit

as necessary to address the water shortage.

6. Condition 10 of the permit requires the City, among other things, to

practice water conservation to increase the efficiency of transport,

application, and use, as well as to decrease waste and to minimize runoff from

the property.

7. On February 25, 1992, Governing Board of the District adopted Order 92-

12 imposing modified Phase III water restrictions based upon the Phase III water

restrictions adopted in Rule 40D-21.641, Florida Administrative Code. This

Order, which became effective on March 2, 1992, attached and incorporated by

reference Phase III water shortage restrictions as set forth in Chapter 40D-21,

Florida Administrative Code, and, except as amended or modified by the Order,

declared the same, without exception, to be in effect for all users within

DeSoto, Hardee, Hillsborough, Pasco, Pinellas, Manatee and Sarasota counties and

those portions of Charlotte, Highlands and Polk counties within the geographical

boundaries of the District.

8. In addition to the conservation measures set forth in Condition 10 of

the permit, Rule 40D-21.601(2), Florida Administrative Code, provides that all

wasteful and unnecessary water use is prohibited regardless of the phase of

water shortage.

9. Paragraph 11 of Order 92-12 imposed restrictions on, among other

things, the irrigation of established lawns and landscaping.

10. On March 25, 1992, the Governing Board of the District adopted Order

No. 92-21 amending Order No. 92-12 to allow for certain non-irrigation,

agricultural irrigation and golf course irrigation uses.

11. By letter dated July 22, 1992, the City petitioned the District for a

variance from the District's Water Shortage Restrictions imposed under Order 92-

12, as amended.

12. On October 26, 1992, the Governing Board of the District adopted Order

No. 92-60 amending Order 92-12 and Order 92-21 to allow certain car washing

uses.

13. By letter dated October 28, 1992, the District advised the City that

its request for a variance from the District's Water Shortage Restrictions

imposed under Order 92-12, as amended had been denied.

Measures Implemented Before Adoption Of Order 92-12

14. The City in accordance with Rule 40D-21.291(2)(c), Florida

Administrative Code, presented a plan to the District entitled "CITY OF

BRADENTON, FLORIDA - WATER DEMAND REDUCTION PLAN FOR ISSUANCE OF A VARIANCE FROM

THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT MODIFIED PHASE III WATER

RESTRICTIONS - GOVERNING BOARD ORDER 92-12, AS AMENDED" (Plan). The Plan as

revised to reflect the evidence received at the hearing was late filed as

Petitioner's exhibit 3.

15. The City's Plan describes the following historical programs and

measures implemented by the City prior to Order 92-12, as amended. The City

contends that these programs and measures are available alternative restrictions

which are binding and enforceable against the City and, along with other

measures, achieve the same level of demand reduction as the restrictions from

which the City seeks a variance.

(a) Inverted Rate Structure. In the fall of 1982, The City

implemented an inverted rate structure providing for increased costs to all

customers from $1.22 per thousand gallons water for the first 3,000 gallons to

$1.74 per thousand gallons of water used in excess of 3,000 gallons of water per

month. The City's inverted rate structure is consistent with the water

restrictions set forth in Rule 40D-21.641, Florida Administrative Code, and with

Condition 26 of the permit which requires the City to adopt a water conservation

oriented rate structure no later than January 1, 1993.

(b) Leak Detection and Systems Maintenance/Repair Program & Utility

Capital Improvements Program. These measures are one and the same, which were

implemented in 1982 to replace deteriorated and old water mains. This measure

is consistent with the prohibition of all wasteful and unnecessary water use set

forth in Rule 40D-21.601(2), Florida Administrative Code, the water restrictions

set forth in Rule 40D-21.641, Florida Administrative Code, and the practice of

water conservation as set forth in Condition 10 of the permit.

(c) Water Meter Testing and Replacement Program. This program was

established in 1980, and involves the testing, calibration and replacement of

water meters. This measure is consistent with the prohibition of all wasteful

and unnecessary water use set forth in Rule 40D-21.601(2), Florida

Administrative Code, with the restrictions set forth in Rule 40D-21.641, Florida

Administrative Code, and the practice of water conservation set forth in

Condition 10 of the permit.

(d) In-Home Leak Detection. This measure involves utilization of

City staff to investigate citizen complaints or requests for assistance in

ascertaining water loss from residential pipe and fixture leaks. This measure

implements Rule 40D-21.641(1), Florida Administrative Code, and is consistent

with the practice of water conservation set forth in Condition 10 of the permit.

(e) Process Modification. This program was implemented in 1986, and

involves the complete capture and recycling of all filter backwash and sludge

lagoon supernatant water at the City's new water treatment plant since its

construction in 1990. This measure implements Rule 40D-21.641(2), Florida

Administrative Code, and is consistent with the practice of water conservation

as set forth in Condition 10 of the permit.

(f) Runoff Reduction. The City has encouraged the use of certain

materials in construction of parking areas to allow for water percolation and to

reduce runoff. This measure implements Rule 40D-21.641(3), Florida

Administrative Code, and is consistent with the practice of water conservation

set forth in Condition 10 of the permit.

(g) Waste Water Reuse. The City currently uses the advanced waste

treated effluent from its Advanced Waste Treatment Plant for on-site irrigation

and as a source of plant wash down. This measure implements Rule 40D-21.641(3),

Florida Administrative Code, and is consistent with the practice of water

conservation set forth in Condition 10 of the permit.

16. In attempting to show a total water demand reduction of 26.4 percent

attributable to measures already in existence before the adoption of Order 92-

12, the City relies on a methodology and comparison of data from 1981 and 1983,

as well as from 1981 and 1992 which fail to consider the effects of effective

rainfall, net irrigation requirements, inflation and the extent of source

substitution (e.g., use of water from private wells or users otherwise going off

the system). These are significant factors which must be considered in

analyzing the reasons for reduction in total water demand on the City's water

system. Additionally, the City's analysis fails to take into account the

elements of the principles of price elasticity--the accepted means for

distinguishing customer responses specifically attributable to changes in price.

17. The City did not demonstrate any measurable demand reduction

attributable to the inverted rate structure, leak detection and system

maintenance/repair, water meter testing and replacement, in-home leak detection,

process modification, runoff reduction and waste water reuse.

18. There was insufficient evidence to establish facts to show that the

conservation measures implemented by the City before Order 92-12 resulted in an

estimated 26.4 percent demand reduction.

19. All of the conservation measures that the City contends attributed to

an estimated 26.4 percent demand reduction were in effect before the adoption of

92-12 and are in the nature of best management practices for public water supply

utilities such as City. These conservation measures are also consistent with

the practice of water conservation set forth in Condition 10 of the permit.

Existing Measures Implemented After Adoption of Order 92-12

20. Process modification, including the recycling of filter backwash and

sludge lagoon supernatant water, and various other improvements to the water

treatment process, reflect matters which are in the nature of best management

practices for water utilities such as the City's, and are common among such

utilities and are consistent with the practice of water conservation set forth

in Condition 10 of the permit.

21. Part of the process modification element of the Plan (namely, the

recycling of filter backwash) has existed in the new water treatment plant since

it was constructed in 1990 and existed in the old water treatment plant before

that time. Nevertheless, an analysis of the water treatment records between

March, 1992, and March, 1993, indicates a reduction in in-plant use of 110,000

gallons per day which is equivalent to 1.8 percent of total 1992 demand.

22. In January, 1993, the City implemented the reuse of effluent from its

waste water treatment plant for use in chlorine injection into the disinfection

process at the plant. This implementation has resulted in a savings of

approximately 108,000 gallons per day or 1.8 percent of the total 1992 demand.

23. The reuse of effluent for use in chlorine injection into the

disinfection process is in the nature of best management practice for utilities,

is consistent with the practice of water conservation as set forth in Condition

10 of the permit, and is a standard practice among utilities such as the City's.

24. A "good" reuse program contemplates a 50 per cent reuse level. The

City is presently reusing approximately 1.8 percent of total waste water.

Assuming the City was reusing waste water to the fullest extent contemplated

under its Plan, the percentage of reuse would amount to approximately 17 percent

which is well below a "good" reuse program.

Proposed Measures

25. The City is proposing construction of reuse facilities by July, 1994,

for locations identified as Mixon Groves, the Municipal Golf Course, Pirate

City, Tropicana, Red Barn Flea Market, McKechnie Field and Manatee County Boys

Club.

26. With the exception of McKechnie Field, there would be no reduction in

demand on the City's water supply system resulting from reuse of water at these

facilities since the major recipients of reuse of water would be replacing

private well use.

27. There was no evidence as to the amount of reduction in demand on the

City's water supply system which would result from reuse of water in connection

with McKechnie Field. Any savings of water from future reuse projects is

"undetermined".

28. The City has determined that it can safely reduce flushing of water

lines by approximately 77,400 gallons per day or 1.3 percent of total demand

without jeopardizing water quality. Therefore, continued flushing of lines by

use of water in excess of 77,400 gallons per day would be an unnecessary and

inefficient use of water, and inconsistent with the prohibition of all wasteful

and unnecessary water use set forth in Rule 40D-21.601(2), Florida

Administrative Code, and inconsistent with the practice of water conservation

set forth in Condition 10 of the permit.

General Findings

29. The City's percentage of water use which is unaccounted for (i.e., the

quantity of water which cannot be accounted for after billed and known uses are

tallied) is 22 percent of its total water usage and exceeds the industry

standard of 15 percent.

30. The City has analyzed the relationship of water restrictions on demand

reduction, and arrived at the conclusion that, except for the months of April

and May, water restrictions are not effective in reducing demand.

31. The methodology employed by the City in support of its proposition

that water use restrictions do not result in water demand reduction assumes in

part that because the month of August, 1988, was a comparatively wet month,

there was very little irrigation during that month by individual homeowners

within the City. However, the City's exhibit 3 clearly shows a significant

amount of water being used for irrigation by metered customers within the City

during the month of August, 1988. In fact, metered irrigation use during

August, 1988, was approximately 75 percent of the monthly average metered

irrigation use for 1988, which would certainly indicate that nonmetered

irrigation use by customers within the city would also be significant.

Therefore, the amount of irrigation usage that would result from the City's

methodology that is associated with the estimate of irrigation usage would be

understated by the actual irrigation usage in August, 1988. This causes serious

doubt as to the soundness of the City's methodology.

32. The City's conclusion that restrictions do not work and may even

increase demand does not consider the principle of net irrigation requirements

or its relationship to effective rainfall and evapotranspiration.

33. Net irrigation requirement is the amount of irrigation required to

provide a plant the amount of water it needs to survive over and above the

amount provided naturally. To calculate net irrigation requirement, both

evapotranspiration requirements (the total amount of water a plant needs to

survive) and effective rainfall must be calculated. Effective rainfall is the

amount of rain that satisfies evapotranspiration requirements. Because rain can

be lost as runoff or can percolate past the rootzone, not all rain is effective

at offsetting evapotranspiration (e.g., a two inch rain in one day would not

satisfy a 2.0 evapotranspiration requirement for a month). Net irrigation

requirement is the evapotranspiration requirement minus the effective rainfall.

34. The City's analysis and conclusion also fails to consider that people

are prone to irrigate more as the net irrigation requirement increases.

35. Enforcement of the water restrictions by the local government

officials plays an important role in the effectiveness of the restrictions in

reducing water demand. The City in its analysis and conclusions did not take

into consideration the level of enforcement of the water restriction within the

City.

36. The area within the District is experiencing drought-like conditions,

and it is during such periods, characterized by higher net irrigation

requirements, that water restrictions are apt to be imposed. Water restrictions

serve to reduce the rate of increase in water use which would naturally result

from less effective rainfall and greater watering needs.

37. The District commissioned and participated in a study prepared by

Brown and Caldwell in association with John B. Whitcomb, Ph.D., entitled Water

Price Elasticity Study, August 1993 (Price Elasticity Study), to quantify the

relationship between water price and water demand for customers in the

District's service area and to develop price elasticities that could be used by

utility directors in developing water conserving rate structures.

38. The Price Elasticity Study selected ten utilities, including the City,

to participate in the study and analyzed water use for ten customer classes

believed to be relatively common with the District's service area.

39. The results of the study indicate that for single- family homes

customers the imposition of irrigation restrictions, such as the one imposed by

Order 92-12, as amended, correlates with water use reductions, and that mean

water use dropped during the 2 day per week limitations by 2.3 percent. The

study finds the 2.3 percent savings of single-family homes base use applicable

to all participating utilities, including the City.

40. Paragraph 25 of Order 92-12, as amended, requests local government

officials to assist the District in implementation and enforcement of the Order

pursuant to Section 372.609, Florida Statutes. Furthermore, the District

specifically requested the City's assistance by letters addressed to the Mayor,

Public Works Director, City Clerk and Police Chief, as the District does with

all local government officials.

41. Private well users within the City would not be affected by the

variance, if granted. Therefore, the City's enforcement of water restrictions

against private well users within the City would be more difficult than at

present by reason of the difficulty of differentiating between use out of

private wells and use off the City's water system. However, while the City

admits that enforcement of restrictions on private well users within the City

would be more difficult under the variance, there was evidence that the City

could, and would, enforce the restrictions on private well users within the

City, if the variance was granted.

42. The District has independent enforcement authority under Chapter 373,

Florida Statutes, to enforce the restrictions. However, the District depends

heavily on the local government officials to assist in the enforcement of the

restrictions, and to that end, advises the local government officials, including

the City, of repeat violators of the restrictions. The District has given the

City written notice of repeat violators of the water restrictions set out in

Order 92-12, as amended which the City's Police Department has investigated.

However, some of the notices were for violations outside of the City which the

City did not investigate. The City's Police Department, as the arm of the City

responsible for enforcing Order 92-12, as amended, has both informational and

internal procedures for handling complaints of violations of water restrictions.

43. Because of the circumstances that may surround a water restriction

violation, the issuance of citations for violations of water restrictions is

within the sole discretion of the investigating police officer. There has never

been a citation issued or an arrest made by the City for water restriction

violation during the period of time from March, 1992 through August, 1993. In

fact, only 43 calls investigating alleged water restriction violations have been

made during the same time period by the City. However, there was no evidence

as to how many calls concerning alleged water restrictions within the City were

received by the City or that the City had failed to respond to a call or notice

of alleged water restriction violation within the City that was received by the

City.

44. Paragraph 26 of Order 92-12, as amended requests and encourages each

county and city within the District to adopt or implement, by ordinance or

otherwise, such measures as may be necessary to implement and enforce the water

use restrictions adopted thereby, and allows each local government the

discretion to determine local program emphasis, method of implementation and the

enforcement measure appropriate within the local government's jurisdiction.

Other than its enforcement of noticed alleged violations of water restrictions,

the City has taken no action or initiative in response to paragraph 26 of the

Order to actively encourage compliance with the water restrictions.

45. There is insufficient evidence to support the observation by the City

that the imposition of water restrictions result in increased irrigation.

Normally, when water restrictions are imposed, the weather conditions are such

that there is a higher evapotranspiration with a lower effective rainfall

resulting in higher net irrigation requirements which is not a condition brought

on by the imposition of water restrictions. Since people are more apt to water

when the net irrigation requirements are high, the water restrictions tend to

reduce the amount of irrigation. The City's observation is merely speculation.

Therefore, any methodology, conclusions or analysis which may rely on this

observation is faulty and without sufficient evidence to support such an

observation.

46. There is insufficient evidence to establish facts to show that any

element of the City's water collection, treatment and distribution system is

extraordinary or better than average among other utilities within the District's

jurisdiction and thereby, entitle any conservation of water (demand reduction)

as a result of the City's collection, treatment and distribution system to be

considered an available alternative restriction under Rule 40D-21.291(2)(c),

Florida Administrative Code.

47. While the Plan, if accepted by the District, would be binding on, and

enforceable by the City, there is insufficient evidence to establish facts to

show that the Plan would achieve the same level of demand reduction as the

restrictions from which the variance is sought and thereby, meet the criteria

for a variance under Rule 40D-21.291(2)(c), Florida Administrative Code.

CONCLUSIONS OF LAW

48. The Division of Administrative Hearings has jurisdiction over the

parties to, and the subject matter of, this proceeding pursuant to Section

120.57(1), Florida Statutes.

49. The City agrees that this matter comes within the District's

jurisdiction and that the District has the authority under Chapter 373, Florida

Statutes, and the rules promulgated thereunder by the District, to declare water

shortages within the District, to impose water restrictions on users within the

District to address those water shortages and to grant variances from those

water restriction. Since the issue of jurisdiction has been resolved, the City,

as the applicant for a variance, has the ultimate burden to establish by a

preponderance of the evidence entitlement to the requested variance. Florida

Department of Transportation vs. J. W. C. Co, Inc., 396 So.2d 778 (1 DCA Fla.

1983); See also, Young vs. State, Department of Community Affairs, 625 So.2d 831

(Fla. 1993).

50. In accordance with the authority granted the District under Sections

373.044 and 373.113, Florida Statutes, the District adopted Chapter 40D-21,

Florida Administrative Code, which sets forth the District's plan for

implementation during periods of water shortage as required by Section

373.246(1), Florida Statutes. Users may request relief from the provisions of

Rule 40D-21, Florida Administrative Code, by petitioning for a variance from the

District. Rule 40D-21.291(2)(c), Florida Administrative Code, provides in

pertinent part as follows:

(2) Criteria for Issuance - No petition for

variance shall be granted unless the

petitioner affirmatively demonstrates that

one or more of the following circumstances

exists:

* * *

(c) Alternative restrictions which achieve

the same level of demand reduction as the

restrictions from which a variance is

sought are available and binding and

enforceable.

1. These alternative restrictions shall be

summarized within a short-term water

reduction plan, prepared by the Petitioner,

to submitted to the District for

consideration.

2. i t t e d a m s o r t - t e h r b s  A n y u s u e w h o h a s r m

water reduction plan in compliance with a

Board order shall, upon approval, be bound by

such plan unless good cause exists for

changes to such plan and the plan is amended

accordingly. (Emphasis supplied)

51. The City has prepared and presented to the District a short-term plan

containing what the City contends are alternative restrictions which achieve the

same level of demand reduction as the restrictions from which the variance is

sought. The measures proposed in the City's Plan would be binding and

enforceable on the City if the variance was granted.

52. Each of the measures proposed in the City's Plan as alternative

restrictions: (a) are already required by statute, rule, conditions or terms of

the water use permit or Order 92-12; or (b) were already in effect at the time

Order 92-12 was adopted by the District; or (c) were in existence at the time

the variance was sought even though such measures were implemented after Order

92-12 was adopted; or (d) are in the nature of best management practices for

public utilities. Since reduction in demand attributable to alternative water

restrictions is intended to be in addition to, and not replaceable by, whatever

savings are achieved or achievable through the above measures, such measures

cannot be considered as alternative restrictions under Rule 40D-21.291(2)(c),

Florida Administrative Code,

53. Since the City has failed to affirmatively demonstrate that the

measures proposed in its Plan are alternative restrictions which will achieve

the same level of demand reduction as the restrictions from which the variance

is sought , it has failed to sustain the burden imposed upon the City in this

matter.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the District enter a Final Order denying the City's petition

for a variance from the established lawn and landscape irrigation restrictions

imposed under the District's Governing Board Order 92-12, as amended.

RECOMMENDED this 31st day of May, 1994, at Tallahassee, Florida.

___________________________________

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of May, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7161

The following constitutes my specific rulings, pursuant to Section 120.59(2),

Florida Statutes, on all of the proposed findings of fact submitted by the

parties in this case.

Petitioner, City of Bradenton

1. The following proposed findings of fact are adopted in substance as

modified in the Recommended Order. The number in parentheses is the Finding(s)

of Fact which so adopts the proposed finding(s) of fact: 1(7); 2(10); 3(12);

4(11); 6(13); 8-9(3); 12(15a); 16(3); 17(37); 19(38); 23-24(39); 48(40); 49(44);

50,51(42), 53-65(42), 67-70(42); 71(41); 72(42); 76(15a); 77-78(15b); 81-

82(15c); 84(15a); 101(17); 107-119(20-21); 120-126(22-27); 127-131(28); 132-

139(29); 140(25-28); 141(20-24); 142(23-24); 143(47); and 145-146(41).

2. Proposed findings of fact 5, 10, 11, 13-15, 18, 20-22, 25-32, 35-47,

52, 66, 73-75, 79, 80, 83, 85, 87-95, 97, 99, and 102-106 are either immaterial,

irrelevant, subordinate or unnecessary.

3. Proposed finding of fact 7 is covered in the Preliminary Statement.

4. Proposed findings of fact 33, 34, 86, 96, 98, and 100 are not supported

by competent substantial evidence in the record.

Respondent, Southwest Florida Water Management District

1. The following proposed finding(s) of fact are adopted in substance as

modified in the Recommended Order. The number in parentheses is the Finding(s)

of Fact which so adopts the proposed finding of fact: 1(7); 2(9); 3(7,8);

4(10,12); 5(4); 6(15); 7-8(6); 9(18); 10(17); 11-12(19); 13(20); 14(21);

16(22,23); 17(23,24); 18(25); 19(26); 20(27); 21-22(28); 24(47); 25(46); 26(29);

27(29); 28(30,35); 29-31(31); 32(45); 33(32); 34(33); 35(34); 36(36); 37(37,39);

38(40); 39(41); 40(43); 41(42); 42(43); and 43(44).

2. Proposed findings of fact 15, 23 and 44 are not supported by competent

substantial evidence in the record.

COPIES FURNISHED:

Barbara B. Levin, Esquire

Davis, Persson, Smith & Darnell

2033 Main Street, Suite 406

Sarasota, Florida 34237

William Lisch, Esquire

519 13th Street West

Bradenton, Florida 34205

James A. Robinson, Esquire

Mark F. Lapp, Esquire

Southwest Florid Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

Peter G. Hubbell

Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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

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

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

written exceptions. You should consult with the agency that will issue the

final order in this case concerning their rules on the deadline for filing

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

should be filed with the agency that will issue the final order in this case.

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE GOVERNING BOARD OF THE

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

CITY OF BRADENTON, a

Florida municipality,

Petitioner,

OGC FILE NO. 06492

vs. DOAH CASE NO. 92-7161

SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT,

Respondent.

____________________________/

NOTICE OF ENTRY OF FINAL ORDER

Notice is hereby given that the attached Final Order (No. SWF-94-68) in the

above-styled proceeding was entered by the Governing Board of the Southwest

Florida Water Management District (District) on June 28, 1994, and was filed

with the Agency Clerk and therefore rendered on June 30, 1994. This Notice is

given and a copy of the attached Final Order mailed to the attorney or

representative of record for each party in the proceeding as required by Section

120.59(4), Florida Statutes

In accordance with Section 120.59(4), F.S., each party is hereby informed

that the following administrative or judicial review may be available:

1. A party to a proceeding who claims that an order of the District is

inconsistent with the provisions and purposes of Chapter 373, F.S., may seek

review of the order by the Florida Land and Water Adjudicatory Commission

(Commission) pursuant to Section 373.114, F.S., by filing a request for review

with the Secretary of the Commission and by serving a copy on the Department of

Environmental Protection and on any person named in such order within twenty

(20) days after the rendering of the order by the District.

2. A party who is adversely affected by final agency action may seek

review of the action in the appropriate District Court of Appeal pursuant to

Section 120.68, F.S., by filing a Notice of Appeal pursuant to Rule 9.110,

Florida Rules of Appellate Procedure, within thirty (30) days after the

rendering of the final action by the District.

3. Any person who is substantially affected by a final order by the

District with respect to a permit on the ground that the final agency action is

an unreasonable exercise of the state's police power constituting a taking

without just compensation may seek review in the circuit court in the judicial

circuit in which the affected property is located by filing a petition for

review in such circuit court within ninety (90) days of the rendering of such

final order pursuant to Section 373.617, F.S.

PLEASE BE GOVERNED ACCORDINGLY.

_________________________________

Edward B. Helvenston

General Counsel

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing Notice of Entry of Final Order and attached Final Order

have been sent by United States mail or hand-delivered to the

following this 1st day of July, 1994:

Barbara B. Levin, Esquire William R. Lisch, Esquire

Davis, Persson, Smith & Darnell 519 13th Street West

2033 Main Street, Suite 406 Bradenton, Florida 34205

Sarasota, Florida 34237 Attorney for Petitioner

Attorney for Petitioner

James A. Robinson William R. Cave, Hearing

Mark F. Lapp Officer

Southwest Florida Water Division of Administrative

Management District Hearings

2379 Broad Street The DeSoto Building

Brooksville, Florida 34609-6899 1230 Apalachee Parkway

Attorneys for the District Tallahassee, Florida

32399-1550

__________________________________

Edward B. Helvenston

BEFORE THE GOVERNING BOARD OF THE

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

CITY OF BRADENTON,

Florida municipality,

Petitioner,

ORDER NO. SWF-94-68

vs. Case No. 92-7161

SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT,

Respondent.

___________________________/

FINAL ORDER

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

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

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

Officer and the Exception filed by the District, and for the purpose of issuing

a Final Order in the above-styled proceeding.

On May 31, 1994, the Hearing Officer submitted to all parties a Recommended

Order, a copy of which is attached hereto and incorporated herein by reference

as Exhibit "A". Pursuant to Section 120.57(1)(b)9, F.S., and Rule 40D-1.564,

Florida Administrative Code, the parties were entitled to submit written

exceptions to the Recommended Order within 15 days of the date of the

Recommended Order. On June 14, 1994, the District timely filed an Exception to

the Recommended Order. The City of Bradenton did not timely file any exceptions

to the Recommended Order.

The Governing Board has reviewed the Recommended Order and the Exception

thereto. Those preliminary portions of the Recommended Order regarding date and

place of hearing, appearances entered at the hearing, Statement of the Issue and

Preliminary Statement are hereby adopted and incorporated herein by reference.

FINDINGS OF FACT

The Governing Board hereby adopts and incorporates by reference the

Findings of Fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Governing Board hereby adopts and incorporates by reference the

Conclusions of Law set forth in the Recommended Order. Additionally, the

Governing Board adopts the Exception filed by the District, and therefore makes

the following additional conclusion of law:

Rule 40D-21.291(2)(c), F.A.C., requires

that the alternative restrictions achieve

a demand reduction at least equal to the

level of demand reduction actually

experienced by the applicant as a result

of water restrictions, or the level which

would be achieved by the applicant through

the reasonable enforcement of water

restrictions, whichever is greater.

WHEREFORE, based on the foregoing Findings of Fact and Conclusions of Law,

it is hereby ordered that the City of Bradenton's petition for variance from the

lawn and landscape irrigation restrictions imposed under the Governing Board's

Order 92-12, as amended, is DENIED.

DONE and ORDERED by the Governing Board of the Southwest Florida Water

Management District this 28th day of June, 1994, in Brooksville, Hernando

County, Florida.

By:_____________________________

Charles A. Black, Chairman

Attest:_____________________________

Sally Thompson, Secretary

Filed this 30th day of June, 1994.

___________________________

Louise Rigsby

Agency Clerk

COPIES FURNISHED TO:

Barbara B. Levin, Esquire

Davis, Persson, Smith & Darnell

2033 Main Street, Suite 406

Sarasota, Florida 34237

William R. Lisch, Esquire

519 13th Street West

Bradenton, Florida 34205

James A. Robinson, Esquire

Mark F. Lapp, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

=================================================================

AGENCY FINAL ORDER

=================================================================

BEFORE THE GOVERNING BOARD OF THE

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

CITY OF BRADENTON,

Florida municipality,

Petitioner,

ORDER NO. SWF-94-68

vs. Case No. 92-7161

SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT,

Respondent.

___________________________/

FINAL ORDER

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

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

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

Officer and the Exception filed by the District, and for the purpose of issuing

a Final Order in the above-styled proceeding.

On May 31, 1994, the Hearing Officer submitted to all parties a Recommended

Order, a copy of which is attached hereto and incorporated herein by reference

as Exhibit "A". Pursuant to Section 120.57(1)(b)9, F.S., and Rule 40D-1.564,

Florida Administrative Code, the parties were entitled to submit written

exceptions to the Recommended Order within 15 days of the date of the

Recommended Order. On June 14, 1994, the District timely filed an Exception to

the Recommended Order. The City of Bradenton did not timely file any exceptions

to the Recommended Order.

The Governing Board has reviewed the Recommended Order and the Exception

thereto. Those preliminary portions of the Recommended Order regarding date and

place of hearing, appearances entered at the hearing, Statement of the Issue and

Preliminary Statement are hereby adopted and incorporated herein by reference.

FINDINGS OF FACT

The Governing Board hereby adopts and incorporates by reference the

Findings of Fact set forth in the Recommended Order.

CONCLUSIONS OF LAW

The Governing Board hereby adopts and incorporates by reference the

Conclusions of Law set forth in the Recommended Order. Additionally, the

Governing Board adopts the Exception filed by the District, and therefore makes

the following additional conclusion of law:

Rule 40D-21.291(2)(c), F.A.C., requires

that the alternative restrictions achieve

a demand reduction at least equal to the

level of demand reduction actually

experienced by the applicant as a result

of water restrictions, or the level which

would be achieved by the applicant through

the reasonable enforcement of water

restrictions, whichever is greater.

WHEREFORE, based on the foregoing Findings of Fact and Conclusions of Law,

it is hereby ordered that the City of Bradenton's petition for variance from the

lawn and landscape irrigation restrictions imposed under the Governing Board's

Order 92-12, as amended, is DENIED.

DONE and ORDERED by the Governing Board of the Southwest Florida Water

Management District this 28th day of June, 1994, in Brooksville, Hernando

County, Florida.

By:_____________________________

Charles A. Black, Chairman

Attest:_____________________________

Sally Thompson, Secretary

Filed this 30th day of June, 1994.

___________________________

Louise Rigsby

Agency Clerk

COPIES FURNISHED TO:

Barbara B. Levin, Esquire

Davis, Persson, Smith & Darnell

2033 Main Street, Suite 406

Sarasota, Florida 34237

William R. Lisch, Esquire

519 13th Street West

Bradenton, Florida 34205

James A. Robinson, Esquire

Mark F. Lapp, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609-6899

=================================================================

NOTICE OF ENTRY OF FINAL ORDER

=================================================================

BEFORE THE GOVERNING BOARD OF THE

SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT

CITY OF BRADENTON, a

Florida municipality,

Petitioner,

OGC FILE NO. 06492

vs. DOAH CASE NO. 92-7161

SOUTHWEST FLORIDA WATER

MANAGEMENT DISTRICT,

Respondent.

____________________________/

NOTICE OF ENTRY OF FINAL ORDER

Notice is hereby given that the attached Final Order (No. SWF-94-68) in the

above-styled proceeding was entered by the Governing Board of the Southwest

Florida Water Management District (District) on June 28, 1994, and was filed

with the Agency Clerk and therefore rendered on June 30, 1994. This Notice is

given and a copy of the attached Final Order mailed to the attorney or

representative of record for each party in the proceeding as required by Section

120.59(4), Florida Statutes

In accordance with Section 120.59(4), F.S., each party is hereby informed

that the following administrative or judicial review may be available:

1. A party to a proceeding who claims that an order of the District is

inconsistent with the provisions and purposes of Chapter 373, F.S., may seek

review of the order by the Florida Land and Water Adjudicatory Commission

(Commission) pursuant to Section 373.114, F.S., by filing a request for review

with the Secretary of the Commission and by serving a copy on the Department of

Environmental Protection and on any person named in such order within twenty

(20) days after the rendering of the order by the District.

2. A party who is adversely affected by final agency action may seek

review of the action in the appropriate District Court of Appeal pursuant to

Section 120.68, F.S., by filing a Notice of Appeal pursuant to Rule 9.110,

Florida Rules of Appellate Procedure, within thirty (30) days after the

rendering of the final action by the District.

3. Any person who is substantially affected by a final order by the

District with respect to a permit on the ground that the final agency action is

an unreasonable exercise of the state's police power constituting a taking

without just compensation may seek review in the circuit court in the judicial

circuit in which the affected property is located by filing a petition for

review in such circuit court within ninety (90) days of the rendering of such

final order pursuant to Section 373.617, F.S.

PLEASE BE GOVERNED ACCORDINGLY.

_________________________________

Edward B. Helvenston

General Counsel

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the

foregoing Notice of Entry of Final Order and attached Final Order

have been sent by United States mail or hand-delivered to the

following this 1st day of July, 1994:

Barbara B. Levin, Esquire William R. Lisch, Esquire

Davis, Persson, Smith & Darnell 519 13th Street West

2033 Main Street, Suite 406 Bradenton, Florida 34205

Sarasota, Florida 34237 Attorney for Petitioner

Attorney for Petitioner

James A. Robinson William R. Cave, Hearing

Mark F. Lapp Officer

Southwest Florida Water Division of Administrative

Management District Hearings

2379 Broad Street The DeSoto Building

Brooksville, Florida 34609-6899 1230 Apalachee Parkway

Attorneys for the District Tallahassee, Florida

32399-1550

__________________________________

Edward B. Helvenston