99-001905 The Sierra Club vs. Hines Interests Limited Partnership And St. Johns River Water Management District
 Status: Closed
Recommended Order on Thursday, December 30, 1999.


View Dockets  
Summary: Hines Interests Limited Partnership showed that it met the standards for consumptive use and environmental resource permits with specific modifications.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8THE SIERRA CLUB,

11Petitioner,

12and

13BOBBY C. BILLIE and SHANNON LARSEN,

19Intervenors,

20vs. DOAH No. 99-1905

24SJRWMD No. 99-1907

27HINES INTERESTS LIMITED PARTNERSHIP

31and ST. JOHNS RIVER WATER MANAGEMENT

37DISTRICT

38Respondents.

39_______________________________________/

40BOBBY C. BILLIE and SHANNON LARSEN,

46Petitioners,

47vs. DOAH No. 99-3933

51SJRWMD No. 99-1949

54HINES INTERESTS LIMITED PARTNERSHIP

58and ST. JOHNS RIVER WATER MANAGEMENT

64DISTRICT,

65Respondents.

66_______________________________________/

67THE SIERRA CLUB,

70Petitioner.

71vs. DOAH No. 99-3934

75SJRWMD No. 99-1951

78HINES INTERESTS LIMITED PARTNERSHIP

82and ST. JOHNS RIVER WATER MANAGEMENT

88DISTRICT

89Respondents.

90_______________________________________/

91FINAL ORDER ON CONSUMPTIVE USE PERMIT APPLICATION

98Pursuant to notice, the Division of Administrative Hearings,

106by its duly designated Administrative Law Judge, the Honorable

115Stephen F. Dean, held a formal administrative hearing in the

125above-styled cases on October 18-22, 1999, in St. Augustine,

134Florida.

135A. APPEARANCES

137For Petitioner The Sierra Club: Peter Belmont, Esquire

145102 Fareham Place North

149St. Petersburg, FL 33701

153Deborah Andrews, Esquire

15611 N. Roscoe Blvd.

160Ponte Vedra Beach, FL 32082

165For Petitioners/ Intervenors Bobby C. Billie and Shannon Larsen:

174Deborah Andrews, Esquire

17711 N. Roscoe Blvd.

181Ponte Vedra Beach, FL 32082

186For Respondent St. Johns River Water Management District:

194Veronika Thiebach, Esquire

197Jennifer Springfield, Esquire

200P.O. Box 1429

203Palatka, FL 32178-1429

206For Respondent Hines Interests Limited Partnership:

212Marcia Tjoflat, Esquire

215Lynne Matson, Esquire

2181301 Riverplace Blvd.

221Suite 1500

223Jacksonville, FL 32207

226John Metcalf, Esquire

229Tom Jenks, Esquire

232200 West Forsyth Street

236Suite 1400

238Jacksonville, FL 32202

241On December 30,1999, the Honorable Stephen F. Dean

250("Administrative Law Judge" or " ALJ") submitted to the St. Johns

262River Water Management District and all other parties to this

272proceeding a Recommended Order, a copy of which is attached

282hereto as Exhibit "A". This matter then came before the

293Governing Board on February, 2000 for final agency action. At

303that time, the Governing Board issued a Final Order and Order of

315Remand, which approved the applicant's ERP application and

323remanded the CUP application back to the ALJ to provide

333conclusions of law relating to the issue of whether the CUP

344application should be granted. Such conclusions of law were not

354included in the December 30,1999 Recommended Order. On April 26,

3652000, the ALJ submitted to the St. Johns River Water Management

376District and all other parties to this proceeding an Order on

387Remand: Additional Conclusions of Law, a copy of which is

397attached as Exhibit "B". Thereafter, Hines waived the Chapter

407120, Fla. Stat., timeframes for final agency action on the CUP

418permit application through June 15, 2000. Petitioners, The

426Sierra Club, Bobby C. Billie and Shannon Larsen ("Petitioners"),

437timely filed joint exceptions to the ALJ's Order on Remand and

448St. Johns River Water Management District ("District") timely

458filed exceptions to the ALJ's Order on Remand. Hines did not

469file exceptions. The District and Hines timely filed responses

478to exceptions. This matter then came before the Governing Board

488on June 13, 2000 for final agency action.

496B. STATEMENT OF THE ISSUES

501This Final Order on Remand involves one issue: whether

510Hines' application for an individual consumptive use permit

518("CUP") should be approved pursuant to Chapter 373, Florida

529Statutes, and Chapter 40C-2, Florida Administrative Code. All

537issues related to the ERP application were addressed in our

547February 10, 2000, Final Order.

552C. STANDARD OF REVIEW

556The rules regarding an agency's consideration of exceptions

564to a Recommended Order are well established. The Governing Board

574is prescribed by section 120.57(1)(1), Fla. Stat. (1999), in

583acting upon a Recommended Order. The Administrative Law Judge

592(" ALJ"), not the Governing Board, is the fact finder. Goss v.

605Dist. Sch. Bd. of St. Johns County , 601 So.2d 1232 (Fla. 5th DCA

6181992); Heifitz v. Dep't of Bus. Regulation , 475 So.2d 1277 (Fla.

6291st DCA 1997). A finding of fact may not be rejected or modified

642unless the Governing Board first determines from a review of the

653entire record that the findings of fact are not based upon

664competent substantial evidence or that the proceedings on which

673the findings or fact were based did not comply with essential

684requirements of law. Section 120.57(1)(1), Fla. Stat.; Goss ,

692supra . "Competent substantial evidence" is such evidence as is

702sufficiently relevant and material that a reasonable mind would

711accept as adequate to support the conclusion reached. Perdue v.

721TJ Palm Associates, Ltd. , 24 Fla. L. Weekly D1399 (Fla. 4th DCA

733June 16,1999).

736If a finding is supported by any competent substantial

745evidence from which the finding could be reasonably inferred, the

755finding cannot be disturbed. Freeze v. Dep't of Business

764Regulation , 556 So.2d 1204 (Fla. 5th DCA 1990); Berry v. Dep't of

776Envtl. Regulation , 530 So.2d 1019 (Fla. 4th DCA 1998). The

786Governing Board may not reweigh evidence admitted in the

795proceeding, may not resolve conflicts in the evidence, may not

805judge the credibility of witnesses or otherwise interpret

813evidence anew. Goss , supra ; Heifitz , supra; Brown v. Criminal

822Justice Standards & Training Comm'n. , 667 So.2d 977 (Fla. 4th DCA

8331996). The issue is not whether the record contains evidence

843contrary to the findings of fact in the Recommended Order, but

854whether the finding is supported by any competent substantial

863evidence. Florida Sugar Cane League v. State Siting Bd. , 580

873So.2d 846 (Fla. 1st DCA 1991). The term "competent substantial

883evidence" relates not to the quality, character, convincing

891power, probative value or weight of the evidence, but refers to

902the existence of some quantity of evidence as to each essential

913element and as to the legality and admissibility of that

923evidence. Scholastic Book Fairs v. Unemployment Appeals

930Commission , 671 So.2d 287, 289 (Fla. 5th DCA 1996).

939The Governing Board in its final order may reject or modify

950the conclusions of law over which it has substantive jurisdiction

960and interpretations of administrative rules over which it has

969substantive jurisdiction, provided the reasons for such rejection

977or modification are stated with particularity and the Governing

986Board finds that such rejection or modification is as or more

997reasonable than the ALJ's conclusion or interpretation. Section

1005120.57(1)(1), Fla. Stat. (1999). Furthermore, the Governing

1012Board's authority to modify a Recommended Order is not dependent

1022on the filing of exceptions. Westchester General Hospital v.

1031Dept. Human Res. Serve , 419 So.2d 705 (Fla. 1st DCA 1982). In

1043interpreting the "substantive jurisdiction" amendment as it first

1051appeared in the 1996 changes to the Administrative Procedures

1060Act, courts have continued to interpret the standard of review as

1071requiring deference to an agency in interpreting its own statutes

1081and rules. See , e.g. , State Contracting and Engineering

1089Corporation v. Department of Transportation , 709 So.2d 607, 608

1098(Fla. 1st DCA 1998).

1102D. RULINGS ON EXCEPTIONS

1106Petitioners jointly filed 12 exceptions to the ALJ's Order

1115on Remand. The District filed three exceptions to the ALJ's

1125Order on Remand. Hines did not file any exceptions to the ALJ's

1137Order on Remand. The parties' exceptions to the Recommended

1146Order have been reviewed and are addressed below.

1154Hereinafter, references to testimony will be made by

1162identifying the witness by surname followed by transcript page

1171number (e.g. O'Shea Vol. II: 6). References to exhibits received

1181by the ALJ will be designated "Petitioners" for Petitioners, The

1191Sierra Club, Bobby C. Billie and Shannon Larsen; "District" for

1201Respondent, St. Johns River Water Management District; and

"1209Hines" for Respondent, Hines Interests Limited Partnership,

1216followed by the exhibit number, then page number, if appropriate

1226(e.g. Hines 2: 32). Other references to the transcript will be

1237indicated with a "T" followed by the page number (e.g. T. Vol.

1249II: 60). References to the December 30,1999 Recommended Order

1259will be designated by " R.O." followed by the page number (e.g.

1270R.O.: 28). References to the ALJ's April 26, 2000 Order on

1281Remand will be designated as "Remand" followed by the page number

1292(e.g. Remand: 5). Unless otherwise noted, all references to

1301conclusions of law are to those in the April 26, 2000 Order on

1314Remand.

1315RULINGS ON DISTRICT'S EXCEPTIONS

1319District's Exception No. 1

1323District staff take exception to an apparent typographical

1331error in Conclusion of Law No. 2. It appears that the ALJ

1343transposed the numbers of a section in the District's rules. In

1354this conclusion of law, the ALJ states that 40C-2.031, F.A.C.,

1364sets out the conditions for issuance of a CUP. It is obvious

1376that this is a typographical error. The reference to "Section

138640C-2.031, Florida Administrative Code," should read "Section

139340C-2.301, Florida Administrative Code." Section 40C-2.031,

1399Florida Administrative Code ( F.A.C.), deals with the

1407implementation dates of individual consumptive use permitting

1414programs within the District, whereas section 40C-2.301, F.A.C.,

1422entitled Conditions for Issuance of Permits, sets forth the

1431conditions for issuance of a CUP. Therefore, District staff's

1440exception number 1 is granted and the reference to "Section 40C-

14512.031, Florida Administrative Code," in Conclusion of Law No. 2

1461is hereby corrected to read "Section 40C-2.301, Florida

1469Administrative Code."

1471District Exception No. 2

1475District staff take exception to Conclusions of Law Nos. 14,

148515, 16, and 17 on the basis that the ALJ incorrectly concludes

1497that subsection 40C-2.301 (2), F.A.C., does not apply to the

1507subject CUP application.

1510Subsection 40C-2.301 (2), F.A.C., states:

1515To obtain a consumptive use permit for a use

1524which will commence after the effective date

1531of implementation, the applicant must

1536establish that the proposed use of water:

1543(a) is a reasonable beneficial use;

1549(b) and will not interfere with any

1556presently existing legal use of water; and

1563(c) is consistent with the public interest.

1570Paragraph 40C-2.301 (5)(a), F.A.C., states:

1575A proposed consumptive use does not meet the

1583criteria for the issuance of a permit set

1591forth in subsection 40C-2.301 (2), F.A.C., if

1598such proposed water use will:

1603[List of six numbered reasons for denial.]

1610We agree with staff's analysis. The three-prong test in

1619subsection 40C-2.301 (23, F.A.C., is the umbrella provision of

1628the conditions for issuance of a consumptive use permit. This

1638provision applies to all CUP applications. Subparagraphs 40C-

16462.301 (5)(a)1 through 6 are individual grounds for denial of a

1657CUP application. If one of the six circumstances is present, the

1668three-prong test in subsection 40C-2.301 (2), F.A.C., is not met,

1678but the test nonetheless applies to the application. Subsection

168740C-2.301 (2) requires the applicant to establish that its

1696proposed use meets the three-prong test, and therefore, even if

1706the grounds for denial in subparagraphs 40C-2.301 (5)(a)1 through

17156 are not applicable to an application, the requirement that the

1726applicant's proposed use of water meets the criteria in

1735subsection 40C-2.301 (2) is not negated. In fact, paragraph 40C-

17452.301 (5)(b) states: "Compliance with the criteria set forth in

1755subsection (5)(a) above [the six reasons for denial] does not

1765preclude a finding by the Board that a proposed use fails to

1777comply with the criteria set forth in Section 40C-2.301 (2) above

1788[the three-prong test]." In Conclusions of Law Nos. 14,15,16,

1799and 17, the ALJ mistakenly concludes that the three-prong test in

1810subsection 40C-2.301 (2), F.A.C., does not apply if the grounds

1820for denial do not also apply. The Governing Board has

1830substantive jurisdiction and the primary responsibility to

1837interpret its own rules which it is required to enforce. As

1848explained above, the ALJ erroneously interpreted section 40C-

18562.301 (2) and we find that our interpretation is as reasonable,

1867or more reasonable, than the conclusion of the ALJ. Therefore,

1877District staff's exception number 2 is granted and the references

1887to subsection 40C-2.301 (2) as not applying to the subject CUP

1898application are hereby stricken from Conclusions of Law Nos. 14,

190815, 16, and 17.

1912District Exception No. 3

1916In their exceptions to the ALJ's December 30,1999

1925Recommended Order, District staff took exception to Finding of

1934Fact No. 82 in the December 30,1999 Recommended Order, relating

1945to the CUP application. In our February 10,2000 Final Order, we

1957reserved ruling on this exception. Thus, in their exception

1966number 3 to the Order on Remand, District staff is now

1977reasserting exception to Finding of Fact No. 82, in which, the

1988ALJ finds "[a]s an adjunct to the chemical plan, the water in

2000these shallow wells should be periodically tested to ensure no

2010chemicals leech [sic] into the surficial water table." To

2019implement this finding, paragraph 40C-2.301 (5)(b) states:

"2026Compliance with the criteria set forth in subsection (5)(a)

2035above [the six reasons for denial] does not preclude a finding by

2047the Board that a proposed use fails to comply with the criteria

2059set forth in Section 40C-2.301 (2) above [the three-prong test]."

2069In Conclusions of Law Nos. 14,15,16, and 17, the ALJ mistakenly

2082concludes that the three-prong test in subsection 40C-2.301 (2),

2091F.A.C., does not apply if the grounds for denial do not also

2103apply. The Governing Board has substantive jurisdiction and the

2112primary responsibility to interpret its own rules which it is

2122required to enforce. As explained above, the ALJ erroneously

2131interpreted section 40C0-2.301 (2) and we find that our

2140interpretation is as reasonable, or more reasonable, than the

2149conclusion of the ALJ. Therefore, District staff's exception

2157number 2 is granted and the references to subsection 40C-2.301

2167(2) as not applying to the subject CUP application are hereby

2178stricken from Conclusions of Law Nos. 14, 15, 16, and 17.

2189District Exception No. 3

2193In their exceptions to the ALJ's December 30,1999

2202Recommended Order, District staff took exception to Finding of

2211Fact No. 82 in the December 30,1999 Recommended Order, relating

2222to the CUP application. In our February 10,2000 Final Order, we

2234reserved ruling on this exception. Thus, in their exception

2243number 3 to the Order on Remand, District staff is now

2254reasserting exception to Finding of Fact No. 82, in which, the

2265ALJ finds "[a]s an adjunct to the chemical plan, the water in

2277these shallow wells should be periodically tested to ensure no

2287chemicals leech [sic] into the surficial water table." To

2296implement this finding, District staff recommend the following

2304language be added as a condition of the CUP permit:

2314The Permittee must submit a proposal to

2321periodically monitor the water quality of the

2328proposed surficial wells for indications that

2334the chemicals being applied on the golf

2341course are leaching into the surficial

2347aquifer. At a minimum, this plan must

2354include monitoring frequency, parameters, and

2359duration, well locations and method of

2365reporting data. The draft plan must be

2372submitted to the District in conjunction with

2379the Integrated Pest Management Plan required

2385to be submitted under ERP no. 4-109-0216.

2392After receiving written approval from the

2398District staff of a surficial water quality

2405monitoring plan, the permittee must implement

2411the approved plan.

2414We agree with District staff that the proposed permit condition

2424is necessary to implement the ALJ's finding. Moreover, in its

2434Response to Exceptions, Hines has indicated that it agrees with

2444this proposed permit condition. Thus, District exception number

24523 is granted.

2455RULINGS ON PETITIONERS' EXCEPTIONS

2459Petitioners' Exception No. 1

2463Petitioners take exception to the ALJ's alleged failure to

2472make findings of fact necessary to determine whether the public

2482interest test is met. Petitioners appear to be arguing that the

2493Governing Board's Final Order and Order of Remand required the

2503ALJ to make additional findings of fact regarding the public

2513interest test in the Order on Remand. As support, Petitioners

2523quote from our Final Order and Order of Remand, in which we

2535stated that "on remand for inclusion of the conclusions of law,

2546the Administrative Law Judge may find it necessary for additional

2556findings from the evidence to properly apply the findings to the

2567requisite law." Petitioners' argument is without merit. In our

2576previous order, we simply stated that the ALJ may make additional

2587findings of fact if necessary . Nowhere in that order did we

2599indicate that the ALJ was required to make additional findings of

2610fact or that such additional findings were necessary.

2618Petitioners also cite to section 120.569(2)(m), Fla. Stat.,

2626which provides that "[f] indings of fact, if set forth in a manner

2639which is no more than mere tracking of statutory language, must

2650be accompanied by a concise explicit statement of the underlying

2660facts of record which support the findings" and section 1

267020.57(1)(j) that provides that findings of fact shall be based

2680upon a preponderance of the evidence. Petitioners contend that

2689the ALJ failed to adhere to these statutory requirements

2698regarding findings of fact related to the public interest test

2708and other requirements of the rules. Petitioners do not identify

2718any specific findings of fact regarding the public interest test

2728or any other rule requirements that are lacking. Nevertheless, a

2738review of the ALJ's December 30, 1999 Recommended Order reveals

2748that the ALJ has made sufficient findings of fact to support a

2760conclusion of law that the public interest test has been met.

"2771Public interest" is defined by the District as "those

2780rights and claims on behalf of people in general." Rule 9.3, CUP

2792Applicants Handbook. This rule further states that "[I]n

2800determining the public interest * * *, the Board will consider

2811whether an existing or proposed use is beneficial or detrimental

2821to the overall collective well-being of the people or of the

2832water resources in the area, the District and the State." This

2843definition has two components which require a determination as to

2853whether the use is "detrimental" or "beneficial": 1) the overall

2864collective well being of the people; and 2) the water resource in

2876the area, the District and the state. William Nassau v. Vernon &

2888Irene Beckman, et al. , DOAH Case No. 92-0246 (St. Johns River

2899Water Management District, June 10, 1992). It is within our

2909purview to make a determination of whether the public interest

2919test has been met, based on the findings of fact determined by

2931the ALJ. The ALJ's findings of fact indicate that the proposed

2942water use will not be detrimental to the water resources of the

2954area, the District or the State and will not be detrimental to

2966the overall collective well being of the people. Moreover, the

2976ALJ's findings indicate that the proposed use will provide some

2986benefit to the overall collective well-being of the people. The

2996ALJ's findings of fact that support our conclusion that the

3006public interest test has been met include the following: (1) the

3017proposed water use is to serve the needs of people who use a

3030recreational facility, a sales office and a construction trailer

3039( R.O.: 7-8; Findings of Fact 4); (ii) irrigation water for the

3051golf course will primarily be drawn from the storm water

3061management system, with the Floridan aquifer serving as a

3070secondary source ( R.O.: 13-14, 33; Findings of Fact 18,19 and

308275); (iii) the surface water source is designed so as to minimize

3094impacts to wetlands ( R.O.: 13; Findings of Fact 18); (iv) the

3106water source for golf course way stations, the sales center, the

3117temporary clubhouse, and a construction trailer is surficial

3125aquifer wells with an anticipated drawdown of only 0.01 feet

3135( R.O.: 7,14; Findings of Fact 4 and 20); (v) the primary source

3149of irrigation water, the surface water management system, will

3158not adversely affect surface waters ( R.O.: 29; Findings of Fact

316963); (vi) the surface water management system will comply with

3179water quality standards ( R.O.: 30-31; Findings of Fact 66-69);

3189(vii) the allocated quantity of water is consistent with District

3199Standards and with the allocations for other golf courses in the

3210area ( R.O.: 32; Findings of Fact 74); (viii) water used for

3222irrigation is from the lower quality sources (the storm water

3232pond and the deeper aquifer), saving the more desirable shallow

3242aquifer for drinking and household uses ( R.O.: 33; Findings of

3253Fact 75); (ix) extensive water conservation measures have been

3262implemented ( R.O.: 32; Findings of Fact 76); (x) reclaimed water

3273will be used for irrigation when it becomes available to the site

3285( R.O.: 34; Findings of Fact 77); ( xi) the water use is not

3299expected to cause saline water intrusion ( R.O.: 34-35; Findings

3309of Fact 78, 80); ( xii) the water use will not adversely affect

3322existing legal uses of water ( R.O.: 34; Findings of Fact 79);

3334( xiii) the water use will not lower water levels so as to

3347adversely affect off-site vegetation ( R.O.: 35; Findings of Fact

335781); and ( ivx) additional testing will be undertaken to ensure

3368that groundwater quality is not adversely affected ( R.O.: 34-35;

3378Findings of Fact 78 and 82).

3384Consequently, the ALJ has entered substantial findings to

3392support a determination under Rule 9.3, A.H. CUP, that the

3402proposed water use is consistent with the public interest.

3411Moreover, we note that contrary to the Petitioners' contentions,

3420the ALJ's findings of fact are not a "mere tracking of the

3432statutory language", but instead are facts specific to this case

3442that the ALJ gleaned from the voluminous record in this case.

3453Thus, this exception is rejected.

3458Petitioners' Exception No. 2

3462Petitioners take exception to recommended conclusion of law

3470number 4, in which the ALJ concludes that the proposed use is for

3483a purpose that is reasonable and in the public interest.

3493Specifically, Petitioners contend that the ALJ sets forth no

3502facts or reasoning for drawing this conclusion, but merely tracks

3512the statutory language. Petitioners maintain that such a bare

3521statement the rule is met does not comply with section

3531120.569(2)(m), Fla. Stat. First, as was correctly pointed out by

3541District staff, Petitioners have misstated the ALJ's conclusion

3549of law and the pertinent rule provision. The ALJ's conclusion of

3560law number 4 and the District's rule 40C-2.301 (4)(b), F.A.C.,

3570both state that "[t]he use must be for a purpose that is both

3583reasonable and consistent with the public interest." (emphasis

3591provided). Further, it should be noted that section

3599120.569(2)(m), Fla. Stat., applies to "findings of fact."

3607Petitioners exception number 2 is directed at a "conclusion of

3617law." Thus, the cited statutory provision is not applicable.

3626Nevertheless, as described in detail in our holding on

3635Petitioners exception number 1, the ALJ made numerous factual

3644findings in the December 30, 1999 Recommended Order from which he

3655could reasonably conclude that the proposed use is for a purpose

3666that is both reasonable and in the public interest. Moreover,

3676contrary to Petitioners' assertions, in conclusion of law number

36854, the ALJ expressly stated that the use of stormwater and

3696groundwater for the purpose of irrigating a golf course and the

3707use of groundwater for the purpose of temporary household-type

3716uses, (i.e., drinking water uses at comfort stations,

3724construction and sales facilities) were reasonable purposes

3731consistent with the public interest. Thus, Petitioners'

3738exception number 2 is rejected.

3743Petitioners' Exception No. 3

3747Petitioners take exception to recommended conclusion of law

3755number 19, in which the ALJ concludes, among other things, that

3766the proposed use is consistent with the public interest. Again,

3776Petitioners maintain that the ALJ sets forth no facts or

3786reasoning for drawing this conclusion and that such a bare

3796statement the rule is met does not comply with section

3806120.569(2)(m), Fla. Stat. First, it should be noted that the

3816ALJ's conclusion of law number 19 is merely a summary of all of

3829his previous conclusions of law in numbers 1 through 18. It does

3841not contain any new conclusions not previously drawn by the ALJ

3852in the Order on Remand. For the reasons stated more fully in our

3865holdings on Petitioners' exceptions numbers 1 and 2, we find that

3876the ALJ made sufficient factual findings to reasonably conclude

3885that the propose use meets the public interest test. Thus,

3895Petitioners' exception number 3 is rejected.

3901Petitioners' Exception No. 4

3905Petitioners take exception to recommended conclusion of law

3913number 6, in which the ALJ concludes that there is no

3924environmental or economic harm caused by the consumptive use.

3933Petitioners argue that Hines failed to conduct an analysis of

3943surface or groundwater flow, and therefore there is insufficient

3952basis for the broad conclusion that there will be no

3962environmental harm caused by the consumptive use. Again,

3970Petitioners contend that the ALJ sets forth no facts or reasoning

3981for drawing this conclusion, but merely tracks the statutory

3990language and that such a bare statement the rule is met does not

4003comply with section 1 20.569(2)(m), Fla. Stat. Petitioners cite

4012to portions of the record that they believe support their

4022position that there is not sufficient data to support the ALJ's

4033conclusion. Petitioners also contend that the ALJ improperly

4041referred to a lack of saltwater intrusion and existing legal

4051users as reasons that this test is met. Petitioners maintain

4061that the requirements of 40C-2.301 (4)(d) regarding adverse

4069environmental and economic harm cannot be met by meeting the

4079saltwater intrusion and existing legal users criteria that are

4088addressed in other permitting criteria.

4093Once again, we start by pointing out that section

4102120.569(2)(m), Fla. Stat., applies to factual findings, not to

4111conclusions of law, such as the one being objected to here.

4122Next, it appears that in this exception, Petitioners' are

4131attempting to have us reweigh the evidence and reject the ALJ's

4142earlier findings of fact in the December 30,1999 Recommended

4152Order that support this conclusion. We are not at liberty to do

4164so. In the December 30,1999 Recommended Order, the ALJ made

4175findings of fact related to the issue of whether the proposed use

4187would result in environmental or economic harm in findings of

4197fact numbers 78, 79, 80, 81 and 82. It is not within our purview

4211to determine whether the record contains evidence contrary to the

4221Administrative Law Judge's finding of fact, but whether the

4230finding of fact is supported by competent substantial evidence.

4239Florida Sugar Cane League v. State Siting Bd. , 580 So.2d 846

4250(Fla. 1st DCA 1991); Heifetz v. Dept of Business Regulation , 475

4261So.2d 1277 (Fla. 1st DCA 1985). Notwithstanding that the record

4271may contain evidence contrary to the Administrative Law Judge's

4280finding, we are bound by these findings if the record discloses

4291any competent substantial evidence in support. Bradley , 510

4299So.2d 1122; West Coast Regional Water Supply Auth. v. Harris , 604

4310So.2d 892, cause dismissed , 613 So.2d 4 (Fla. 1992). It should

4321be noted that Petitioners failed to file any exceptions to the

4332ALJ's findings of fact supporting this conclusion in their

4341exceptions to the ALJ's December 30, 1999 Recommended Order. Nor

4351are Petitioners now arguing that the ALJ's findings are not

4361supported by competent substantial evidence. Instead,

4367Petitioners appear to be arguing that there are certain specific

4377tests that Hines should have conducted to support its

4386application. The District rules do not require any specific test

4396be conducted to meet the criterion in section 40C-2.301 (4)(d),

4406F.A.C. The record contains analyses that Hines conducted

4414regarding surface and groundwater flow. (Hines Exhibits 6, 7 and

442425). As evidenced by his findings of fact, the ALJ apparently

4435determined that the specific types of studies that Petitioners

4444argue in favor of are not required for him to reach his findings.

4457We are not free to second guess the ALJ in these factual

4469determinations. In any event, the record does contain competent

4478substantial evidence to support the ALJ's factual findings and

4487conclusion of law. Specifically, the record contains evidence

4495that, based on Hines' analysis of the potential for saltwater

4505intrusion in the Floridan aquifer, the potential for water level

4515drawdowns in the surficial aquifer and/or in adjacent wetlands

4524and the potential for impacts to ground and surface water

4534quality, the environmental harm caused by the consumptive use

4543will be reduced to an acceptable amount. (Silvers Vol. VI: 105).

4554Hines performed geophysical logging and a step- drawdown test on a

4565Floridan aquifer well, TW-1, which previously existed on the

4574site. This test included water quality sampling. (Davidson Vol.

4583III: 15-16; Hines Ex. 25). The information obtained from the

4593test was representative of data that exists from other Floridan

4603aquifer wells in the region, such as the City of St. Augustine's

4615wellfield, three miles from the project site, and the Dee Dot

4626Ranch wells. (Davidson Vol. III: 26; Silvers Vol. VI: 108-109).

4636This information was relied upon by the District's expert to

4646conclude that the proposed consumptive use will not cause

4655significant saline water intrusion (to such an extent as to be

4666inconsistent with the public interest), further aggravate

4673currently existing saline water intrusion problems, or seriously

4681harm the water quality of this source of water. (Silvers Vol.

4692VI: 108-109). As added assurance, District staff recommended a

4701permit condition that would require Hines to monitor the water

4711quality in the proposed Floridan aquifer well for indicators that

4721saltwater intrusion is occurring and to curtail or abate the

4731saltwater intrusion if it does occur. (Silvers Vol. VI: 109;

4741District Ex. 4). Moreover, the proposed surficial aquifer wells

4750will be approximately 70 feet deep. (Silvers Vol. VI: 110).

4760There are no known sources of saltwater close enough to the

4771proposed locations of these wells to present a concern regarding

4781a potential for saltwater intrusion. (Silvers Vol. VI: 110).

4790Further, the proposed pumping rates are too low to induce

4800saltwater intrusion. (Silvers Vol. VI: 110). Therefore, the

4808water quality of this source will not be seriously harmed by the

4820consumptive use. (Silvers Vol. VI: 110).

4826Hines performed geologic borings to determine the

4833characteristics of the surficial aquifer on the project site

4842property. (Davidson Vol. III: 15). Using the information

4850obtained from these borings and assuming a pumping rate of

4860approximately 400 gallons per day from each of the five proposed

4871surficial aquifer wells, District staff modeled the drawdowns in

4880the surficial aquifer. (Silvers Vol. VI: 112-113). Even at the

4890wellhead, the projected drawdown was only approximately one-

4898hundredth of a foot; this amount of drawdown is too small to be

4911shown on a map. (Silvers Vol. VI: 112-113). Hines and the

4922District also evaluated whether the use of surface water to

4932irrigate the golf course would adversely affect water levels in

4942Marshall Creek and associated wetlands by reducing the amount of

4952stormwater runoff going to these areas. ( Frye Vol. V: 25-27;

4963Miracle Vol.s VI: 142-158, and VII: 38-47). The Marshall Creek

4973site is Fla. and has sandy soils; these two characteristics

4983operate to minimize stormwater runoff volumes, and hence surface

4992flows contribute the smallest component of water to the wetlands

5002on this site. ( Frye Vol. V: 25, 27, 53-54). As a cautionary

5015measure, District staff recommended that a condition be placed on

5025the environmental resource permit for the golf course requiring

5034Hines to monitor the wetland located adjacent to Pond L ( the

5046Florida-shaped pond ) for changes resulting from dehydration, and

5055to mitigate for such changes if they do occur. ( Frye Vol. V: 25,

506927). Consequently, the proposed use will not cause the water

5079table or surface water level to be lowered so that interference

5090will be caused to existing legal users, nor will stages or

5101vegetation be adversely and significantly affected on lands other

5110than those owned, leased, or otherwise controlled by the

5119applicant. (Silvers Vol. VI: 112-113).

5124Using the Floridan aquifer characteristics derived from the

5132geophysical logs and the step- drawdown test, Hines modeled the

5142drawdowns in the Floridan aquifer based on different pumping

5151scenarios. (Davidson Vol. III: 16; Hines Ex. 25). The

5160District's expert reviewed this work and concluded that the

5169anticipated decline in the potentiometric surface will not

5177interfere with existing legal users. (Silvers Vol. VI: 114).

5186Therefore, the proposed use will not cause aquifer potentiometric

5195surface levels to be lowered so that interference will be caused

5206to existing legal users. (Silvers Vol. VI: 113).

5214As to Petitioners' argument that saltwater intrusion should

5222not be considered in determining whether a proposed use will

5232result in environmental or economic harm, we disagree. First,

5241nothing in chapter 373, Fla. Stat., or the District's rules

5251prohibits such a consideration. Moreover, we believe the ALJ

5260reasonably interpreted the criteria in 40C-2.301 (4)(d), F.A.C.,

5268as including a consideration of saltwater intrusion. While

5276clearly there are other possible environmental and economic

5284harms, saltwater intrusion is certainly one possible harm that

5293should be considered in this analysis. The mere fact that other

5304parts of the District's rules specifically address saltwater

5312intrusion, does not mean that an ALJ or this Board is prohibited

5324from considering saltwater intrusion in making its determination

5332under rule 40C-2.301 (4)(d), F.A.C. Thus, for all of the reasons

5343described above, Petitioners' exception number 4 is rejected.

5351Petitioners' Exception No. 5

5355Petitioners take exception to recommended conclusion of law

5363number 10, in which the AM concludes that the proposed

5373consumptive use will not cause or contribute to flood damage.

5383Petitioners assert that the ALJ's finding of fact no. 62 which

5394addresses flood prevention does not refer to the consumptive use

5404and that it only refers to off-site flooding. Moreover,

5413Petitioners conclude that there are insufficient findings of fact

5422to support the conclusion of law in accordance with section

5432120.569(2)(m), Fla. Stat. Although the ALJ does not reference

5441any specific findings of fact in conclusion of law no. 10, we

5453find that there are sufficient findings in the Recommended Order

5463that support the ALJ's conclusion. Specifically, in finding of

5472fact number 62 the ALJ found that by not increasing the discharge

5484rate off-site, the system will not result in off-site flooding

5494and that to prevent on-site flooding, Hines developed the project

5504to be flood-free as required by St. Johns County ordinance.

5514( R.O.: 29) In this finding, the ALJ expressly found that the

5526construction and operation of the system will not result in on-

5537site or off-site flooding. Further, finding of fact number 62

5547expressly found that there would be no on-site flooding.

5556Moreover, finding of fact number 62 relates to the CUP

5566application in the sense that it relates to the stormwater

5576management system, which is the primary source of water for golf

5587course irrigation and is contained within a section of the

5597Recommended Order entitled "Water Quantity Considerations," which

5604is not limited to ERP issues.

5610In addition, Petitioners contend that the Recommended

5617Order's Finding of fact number 62 and a statement in our Final

5629Order and Order of Remand contradict each other. Petitioners are

5639mistaken. In finding of fact number 62, the ALJ found that by

5651not increasing the discharge rate off-site, the system does not

5661cause or contribute to off-site flooding. Our Final Order and

5671Order of Remand stated that "the post development runoff will

5681exceed the pre-development runoff and that the increased volumes

5690of runoff resulting from the placement of impervious surface more

5700than compensates for the amount used for reuse water to irrigate

5711the golf course." ( F.O.: 25) These statements are not

5721contradictory. The ALJ's finding of fact number 62 addresses the

5731rate of discharge, whereas our finding addresses the volume of

5741discharge. The rate of discharge and the volume of discharge are

5752not coterminous. A post-development increase in stormwater

5759runoff does not necessarily mean that there will be flooding. In

5770fact, the ALJ made specific findings of fact that addresses how

5781the increased runoff would be handled ( R.O.: 7-8) and ultimately

5792found that the system would not result in flooding ( R.O.: 28).

5804For all of the reasons stated above, Petitioners' exception

5813number 5 is rejected.

5817Petitioners Exception No. 6

5821Petitioners take exception to recommended conclusion of law

5829number 9, in which the ALJ concludes that, with regard to section

584140C-2.301 (4)(j), Fla. Stat., "the groundwater sources of water

5850will not seriously be harmed if the conditions recommended are

5860met." Petitioners argue that only two water quality samples were

5870taken from the test well and that these samples showed that the

5882total dissolved solids parameter is in excess of the 500 mg/l

5893drinking water standard in section 62-550.320(1), F.A.C.

5900Petitioners argue that the permit requirement that Hines conduct

5909tests after the fact does not alleviate Hines' responsibility to

5919prove that the requirements are met in advance of approval of a

5931permit. Thus, Petitioners assert that Hines has failed to meet

5941its burden of proof that the water quality of the source of the

5954water shall not be seriously harmed by the consumptive use under

5965section 40C-2.301 (4)a)., F.A.C.

5969It appears that, by taking exception to conclusion of law

5979number 9, Petitioners are actually taking exception to the ALJ's

5989factual findings that support this conclusion. Once again,

5997Petitioners appear to be arguing that District rules require

6006certain specified tests to be conducted or a certain specified

6016number of samples to be taken. Petitioners are mistaken.

6025District rules do not contain any such requirements. Once again,

6035Petitioners are attempting to have the Governing Board reweigh

6044the evidence regarding what types of tests or what numbers of

6055samples are sufficient. Such a weighing of the evidence is the

6066job of the ALJ and is beyond our authority. In the December 30,

60791999 Recommended Order, the ALJ made numerous findings of fact

6089which support his conclusion that the "groundwater sources of

6098water will not be seriously harmed if the conditions are met."

6109In the Recommended Order, the ALJ made the following

6118relevant findings: ( i) other similar wells in the area have

6129pumped for years without inducing saltwater intrusion ( R.O.: 34;

6139Finding of Fact 78): (ii) tests of an existing on-site well

6150showed no changes in water quality ( R.O.: 34; Finding of Fact

616278); (iii) an additional pump test will be required to

6172demonstrate that no saltwater intrusion is occurring ( R.O.: 34;

6182Finding of Fact 78); (iv) water quality data indicate that the

6193surficial aquifer in the area meets secondary drinking water

6202standards ( R.O.: 35; Finding of Fact 80); (v) there is no

6214underlying saline water in the surficial aquifer ( R.O.: 35;

6224Finding of Fact 80); (vi) the wells are not located near a source

6237of lateral saline water intrusion ( R.O. 35; Finding of Fact 80);

6249(vii) the proposed pumping rates are so low, they will not cause

6261hydraulic pressure changes which would induce saltwater intrusion

6269( R.O.: 35; Finding of Fact 80); (viii) the low rate of pumping

6282from the surficial aquifer wells means that off-site vegetation

6291will not be adversely affected through lowered water levels or

6301stages ( R.O.: 35; Finding of Fact 81 ); and (ix) water in the

6315surficial aquifer will be periodically tested to ensure no

6324chemicals leak into the surficial aquifer ( R.O.: 35; Finding of

6335Fact 82). Thus, there is ample competent substantial evidence to

6345support the ALJ's determination that the groundwater sources of

6354water will not be seriously hammed Petitioners' reliance on

6363Metropolitan Dade County v. Coscan Flori da, Inc. 609 So.2d 644

6374(Fla. 3d DCA 1992), is misplaced. In Coscan , the permit

6384applicant and the agency had conducted no analysis as to whether

6395the project at issue would meet water quality standards. Id. At

6406648. The District Court concluded that the agency must make "an

6417effort to project at [the application] stage what the effects of

6428the proposed project will be." Id. In the instant case the ALJ

6440relied upon the District staff's analysis of the proposed effects

6450to groundwater. In addition to the application materials and

6459hydrogeological reports of on-site testing (Hines Exhibits 6, 7,

646825, 26, 27 and 28), District expert Silvers conducted her own

6479independent analyses of the effects of the consumptive use.

6488Silvers testified that further testing was not necessary to

6497provide reasonable assurances because ( i) the applicant

6505adequately demonstrated the aquifer characteristics; (ii) the

6512applicant adequately conducted the analytical modeling; (iii)

6519Silvers is aware of the saltwater interface based on past

6529investigations in the area; (iv) there was no potential for "up-

6540coming" of saltwater due to the shallowness of the wells and the

6552proposed withdrawal rates; (v) the applicant conducted draw-down

6560tests on the site; and (vi) the water quality from the tests are

6573consistent with regional data. (Transcript Volume VI, pages 108-

658209, 127 and 132-34). Thus, there is ample evidence at hearing to

6594support a conclusion that analyses were conducted and reasonable

6603assurances have been provided

6607For all of the reasons set forth above, Petitioners'

6616exception number 6 is rejected.

6621Petitioners Exception No. 7

6625Petitioners take exception to recommended conclusion of law

6633number 13, in which the ALJ concludes that the public interest

6644test contained in paragraph 40C-2.301 (2)(c), F.A.C., is met

6653because Hines is proposing to use the lowest quality sources of

6664water available while avoiding adverse impacts to existing legal

6673users and the water resources. Again, Petitioners argue that the

6683requirements that the consumptive use utilize the lowest quality

6692water source and not interfere with existing legal users are

6702separate tests, which presumably Petitioners believe cannot be

6710considered in making a public interest determination. Further,

6718Petitioners contend that the conclusion that the public interest

6727test is met does not have the supporting corresponding factual

6737specificity required by section 120.569(2)(m), Fla. Stat.

6744Nothing in chapter 373, Fla. Stat., or the District's rules

6754prohibits a consideration of the lowest quality source of water

6764or potential effects on existing legal users as part of the

6775public interest analysis. Petitioners appear to be arguing that

6784the ALJ cannot rely on the same finding of fact to support more

6797than one conclusion of law. We disagree. We believe the ALJ

6808reasonably interpreted the criteria in 40C-2.301 (2)(c), F.A.C.,

6816as including a consideration of the quality of the source of

6827water used and potential impacts to existing legal users. While

6837clearly there are other possible considerations that could factor

6846into a public interest determination, the quality of the water

6856source and the impact on existing legal users certainly are

6866factors that should be considered in this analysis. The mere

6876fact that other parts of the District's rules also address these

6887matters does not mean that an ALJ or this Board is prohibited

6899from considering these matters in making its public interest

6908determination under rule 40C-2.301 (2)(c), F.A.C.

6914As to Petitioners' argument regarding the factual support

6922for the ALJ's conclusions of law that the public interest test is

6934met, we have addressed that issue in our rulings on Petitioners'

6945exceptions 1 and 2, above. Thus, for all of the reasons

6956described above, Petitioners' exception number 7 is rejected.

6964Petitioners Exception No. 8

6968Petitioners take exception to recommended conclusion of law

6976number 14, in which the ALJ concludes that "In addition, none of

6988the six specific reasons for denial listed in Subsection 40C-

69982.301 (5), [ F.A.C.], must be applicable to the applicant."

7008Apparently Petitioners read this sentence as meaning that the ALJ

"7018exempted" Hines from this section of the rule. We believe that

7029Petitioners have misinterpreted the ALJ's statement. A careful

7037reading of the ALJ's Order on Remand indicates that this sentence

7048merely introduces his treatment of rule 40C-2.301(5), F.A.C., in

7057the balance of conclusion of law number 14 and conclusions of law

7069numbers 15 through 18. In each of these conclusions, the ALJ

7080explains how the facts of this case do not invoke the reasons for

7093denial in this rule. In other words, contrary to the

7103Petitioners' assertion, the ALJ is not "exempting" Hines from the

7113reasons for denial in the rule. Instead, the ALJ is saying that

7125for the permit to be issued, none of these six reasons for denial

7138must be invoked. The ALJ then explains why they are not invoked

7150under the facts of this case. Thus, this portion of Petitioners'

7161exception number 8 is rejected.

7166Further in this exception, Petitioners also express concern

7174with the ALJ's statement that subparagraphs 40C-2.301 (5)(a)1 and

718340C-2.301 (2), F.A.C., do not apply. We agree with Petitioners

7193with regard to 40C-2.301 (2), F.A.C.. We have already addressed

7203this issue in our ruling granting the District's exception number

72132. As to 40C-2.301 (5)(a)1, however, Petitioners are mistaken.

7222In his conclusion of law number 14, the ALJ analyzed rule 40C-

72342.301 (5)(a)1, F.A.C. and found that based on the specific facts

7245of this case, it does not apply -- i.e., the proposed use of

7258water will not significantly induce saline water encroachment in

7267this case. Thus, Petitioners' exception 8 is accepted in part

7277and rejected in part.

7281Petitioners Exception No. 9

7285Petitioners take exception to recommended conclusion of law

7293number 15, in which the ALJ concludes that subparagraph 40C-2.301

7303(5)(a)2 and subsection 40C-2.301 (2), F.A.C., do not apply.

7312Petitioners contend that these sections do apply and that because

7322Hines failed to conduct an analysis of surface or groundwater

7332flow, there was no factual basis for any conclusion that surface

7343water levels will not be lowered so that stages or vegetation

7354will be adversely and significantly affected on lands other than

7364those owned, leased or otherwise controlled by the applicant.

7373Petitioners make factual arguments, citing to various expert

7381witness testimony from the transcript, that they believe are

7390contrary to the ALJ's conclusion.

7395First, we agree with Petitioners that rule 40C-2.301 (2),

7404F.A.C., does apply in this case. We addressed this issue in our

7416ruling on the District's exception number 2 above. As to the

7427applicability of rule 40C-2.301 (5)(a)2, F.A.C., the ALJ did not

7437exempt Hines from this rule. The ALJ analyzed rule 40C-2.301

7447(5)(a)2, F.A.C., and determined that based on the specific facts

7457of this case, that rule Does not apply" -- i.e., the proposed use

7470will not cause the water table or surface water level to be

7482lowered so that stages or vegetation will be adversely and

7492significantly affected on lands other than those owned, leased or

7502otherwise controlled by the applicant.

7507As to Petitioners' arguments regarding the factual

7514underpinnings for these conclusions, we find that the ALJ did

7524provide sufficient findings of facts to reach the conclusion that

7534rule 40C-2.301 (5)(a)2, F.A.C., is not invoked in this case.

7544Specifically, the ALJ's findings of fact number 81 ( R.O.: 35) in

7556the December 30, 1999 Recommended Order states that maximum

7565drawdown from the surficial aquifer withdrawals will be

7573approximately 0.01 feet.

7576The remainder of Petitioners' exception number 9 is nothing

7585more than a rearguing of the evidence. As described more fully

7596above in our ruling on Petitioners exception 4, we are not free

7608to reweigh the evidence. Thus, Petitioners' exception number 9

7617is accepted in part and rejected in part.

7625Petitioners Exception No. 10

7629Petitioners take exception to recommended conclusion of law

7637number 16, in which the ALJ concludes that subparagraph 40C-2.301

7647(5)(a)3 and subsection 40C-2.301 (2), F.A.C., do not apply.

7656Again, we agree with Petitioners that 40C-2.301 (2), F.A.C., is

7666applicable. We addressed this issue in our ruling on District

7676exception number 2. As to the applicability of rule 40C-2.301

7686(5)(a)3, F.A.C., the ALJ did not exempt Hines from this rule.

7697The ALJ analyzed rule 40C-2.301 (5)(a)3, F.A.C., and determined

7706that based on the specific facts of this case, that rule does not

7719apply -- i.e., the proposed use will not cause the water table or

7732aquifer potentiometric surface level to be lowered so that

7741significant and adverse impacts will affect existing legal users.

7750In the remainder of this exception, Petitioners once again

7759reargue the weight of the evidence. We are not free to reweigh

7771the evidence in this Final Order. In addition, Petitioners

7780assert that the applicant has not provided reasonable assurance

7789that the proposed consumptive use will not interfere with

7798existing legal uses because a "full-blown pump test" will not be

7809performed until after the permit is issued and the proposed well

7820is constructed. The applicant must provide "reasonable

7827assurance" that the applicable requirements of sections 40C-

78352.301, Fla. Admin. Code, have been met. This standard has been

7846deemed not to require an absolute guarantee that a violation of a

7858rule is a scientific impossibility, only that its non-occurrence

7867is reasonably assured by accounting for foreseeable

7874contingencies. Manasota 88 v. Agrico , 12 FALR 1319, 1325 ( DER

78851990) aff'd 576 So.2d 781 (Fla. 2d DCA 1991). See also , Adams v.

7898Resort Village Utility , 18 FALR 1682, 1701 ( DEP 1996).

7908(applicant required to show a substantial likelihood that the

7917project will be successfully implemented in accordance with the

7926rules, but not to provide an absolute guarantee that the project

7937will comply with all the rules). The ALJ determined that the

7948groundwater modeling provided sufficient reasonable assurances.

7954See R.O.: 33, Finding of Fact 79 and Order on Remand: 6,

7966Conclusion of Law 16. For these reasons, Petitioners' exception

7975no. 10 is accepted in part and rejected in part.

7985Petitioners Exception No. 11

7989Petitioners take exception to recommended conclusion of law

7997number 17, in which the ALJ concludes that subsection 40C-2.301

8007(2), F.A.C., does not apply. We agree with Petitioners. We have

8018already addressed this issue in our ruling on the District's

8028exception 2. Thus, Petitioners' exception 11 is accepted.

8036Petitioners Exception No. 12

8040Petitioners take exception to the ALJ's recommended

8047conclusion of law number 19. Conclusion of law number 19

8057contains the ALJ's ultimate conclusion that the proposed water

8066use complies with the District's criteria for permit issuance.

8075Petitioners do not provide any specific reasons for this

8084exception. Petitioners merely state that the exception is "as

8093addressed more specifically above." Without a more specific

8101statement for the basis of these two exceptions, it is difficult

8112to address these exceptions in detail. We find that the ALJ made

8124sufficient findings of fact and conclusions of law to support

8134this ultimate conclusion. Petitioners' arguments "addressed more

8141specifically above" exception number 12 have been addressed above

8150in this Final Order. Thus, Petitioners' exception number 12 is

8160rejected.

8161FINAL ORDER

8163ACCORDINGLY, IT IS HEREBY ORDERED:

8168The portions of the Recommended Order dated December 30,

81771999, attached hereto, relating to the CUP application as well as

8188the Order on Remand dated April 26, 2000 are adopted in their

8200entirety except as modified by the final action of the Governing

8211Board of the St. Johns River Water Management District in the

8222rulings on Petitioners' Exceptions 8, 9, 10 and 11 and District's

8233Exceptions 1, 2, and 3. Hines' application number 50827 for an

8244individual consumptive use permit is hereby granted under the

8253terms and conditions contained in the District's proposed agency

8262action as set forth in the Technical Staff Report dated October

827319, 1999, attached hereto, with the addition of the following

8283condition:

82841) The Permittee must submit a proposal to

8292periodically monitor the water quality of the

8299proposed surficial wells for indications that

8305the chemicals being applied on the golf

8312course are leaching into the surficial

8318aquifer. At a minimum, this plan must

8325include monitoring frequency, parameters, and

8330duration, well locations and method of

8336reporting data. The draft plan must be

8343submitted to the District in conjunction with

8350the Integrated Pest Management Plan required

8356to be submitted under ERP no. 4-109-0216.

8363After receiving written approval from the

8369District staff of a surficial water quality

8376monitoring plan, the permittee must implement

8382the approved plan.

8385DONE AND ORDERED this 14th day of June, 2000, in Palatka,

8396Florida.

8397ST. JOHNS RIVER WATER

8401MANAGEMENT DISTRICT

8403BY:________________________

8404WILLIAM W. KERR CHAIRMAN

8408RENDERED this 15th day of June, 2000.

8415BY:________________________

8416SANDRA BERTRAM

8418DISTRICT CLERK

8420Copies to:

8422Deborah J. Andrews, Esquire

842611 N. Roscoe Blvd.

8430Ponte Vedra Beach, FL 32082

8435Peter Belmont, Esquire

8438102 Fareham Place, North

8442St. Petersburg, Florida 33701

8446Marsha P. Tjoflat, Esquire

8450Lynne Matson, Esquire

8453Rogers, Towers, Bailey,

8456Jones & Gay, P.A.

84601301 Riverplace Blvd.

8463Suite 1500

8465Jacksonville, FL 32207

8468John G. Metcalf, Esquire

8472Tom Jenks, Esquire

8475Pappas, Metcalf, Jenks, Miller

8479& Reisch

8481200 W. Forsyth Street

8485Suite 1400

8487Jacksonville, FL 32202

8490Veronika Thiebach, Esquire

8493Jennifer Springfield, Esquire

8496St. Johns River Water Management

8501District

8502P. O. Box 1429

8506Palatka, FL 32178-1429

8509NOTICE OF RIGHTS

85121. Any substantially affected person who claims that final

8521action of the District constitutes an unconstitutional taking of

8530property without just compensation may seek review of the action

8540in circuit court pursuant to Section 373.617, Florida Statutes,

8549and the Florida Rules of Civil Procedures, by filing an action

8560within 90 days of rendering of the final District action.

85702. Pursuant to Section 120.68, Florida Statutes, a party

8579who is adversely affected by final District action may seek

8589review of the action in the district court of appeal by filing a

8602notice of appeal pursuant to Fla.R.App. 9.110 within 30 days of

8613the rendering of the final District action.

86203. A party to the proceeding who claims that a District

8631order is inconsistent with the provisions and purposes of Chapter

8641373, Florida Statutes, may seek review of the order pursuant to

8652Section 373.114, Florida Statutes, by the Land and Water

8661Adjudicatory Commission (Commission) by filing a request for

8669review with the Commission and serving a copy on the Department

8680of Environmental Protection and any person named in the order

8690within 20 days of adoption of a rule or the rendering of the

8703District order.

87054. A District action or order is considered "rendered"

8714after it is signed by the Chairman of the Governing Board on

8726behalf of the District and is filed by the District Clerk.

87375. Failure to observe the relevant time frames for filing a

8748petition for judicial review as described in paragraphs #1 or #2

8759or for Commission review as described in paragraph #3 will result

8770in waiver of that right to review.

8777CERTIFICATE OF SERVICE

8780I HEREBY CERTIFY that a copy of the foregoing NOTICE OF

8791RIGHTS has been furnished by United States Mail to:

8800Deborah J. Andrews, Esquire

880411 North Roscoe Blvd

8808Ponte Vedra Beach, FL 32082

8813At 4:00 P.M. this 15th day of June, 2000.

8822CERTIFIED MAIL # Z 229 564 559

8829____________________________

8830SANDRA L. BERTRAM

8833DISTRICT CLERK

8835St. Johns River Water

8839Management District

8841Post Office Box 1429

8845Palatka, Florida 32178-1429

8848NOTICE OF RIGHTS

88511. Any substantially affected person who claims that final

8860action of the District constitutes an unconstitutional taking of

8869property without just compensation may seek review of the action

8879in circuit court pursuant to Section 373.617, Florida Statutes,

8888and the Florida Rules of Civil Procedures, by filing an action

8899within 90 days of rendering of the final District action.

89092. Pursuant to Section 120.68, Florida Statutes, a party

8918who is adversely affected by final District action may seek

8928review of the action in the district court of appeal by filing a

8941notice of appeal pursuant to Fla.R.App. 9.110 within 30 days of

8952the rendering of the final District action.

89593. A party to the proceeding who claims that a District

8970order is inconsistent with the provisions and purposes of Chapter

8980373, Florida Statutes, may seek review of the order pursuant to

8991Section 373.114, Florida Statutes, by the Land and Water

9000Adjudicatory Commission (Commission) by filing a request for

9008review with the Commission and serving a copy on the Department

9019of Environmental Protection and any person named in the order

9029within 20 days of adoption of a rule or the rendering of the

9042District order.

90444. A District action or order is considered "rendered"

9053after it is signed by the Chairman of the Governing Board on

9065behalf of the District and is filed by the District Clerk.

90765. Failure to observe the relevant time frames for filing a

9087petition for judicial review as described in paragraphs #1 or #2

9098or for Commission review as described in paragraph #3 will result

9109in waiver of that right to review.

9116CERTIFICATE OF SERVICE

9119I HEREBY CERTIFY that a copy of the foregoing NOTICE OF

9130RIGHTS has been furnished by United States Mail to:

9139Peter Belmont, Esquire

9142102 Fareham Place North

9146St Petersburg, FL 33701

9150At 4:00 P.M. this 15th day of June, 2000.

9159CERTIFIED MAIL # Z 229 564 562

9166____________________________

9167SANDRA L. BERTRAM

9170DISTRICT CLERK

9172St. Johns River Water

9176Management District

9178Post Office Box 1429

9182Palatka, Florida 32178-1429

9185NOTICE OF RIGHTS

91881. Any substantially affected person who claims that final

9197action of the District constitutes an unconstitutional taking of

9206property without just compensation may seek review of the action

9216in circuit court pursuant to Section 373.617, Florida Statutes,

9225and the Florida Rules of Civil Procedures, by filing an action

9236within 90 days of rendering of the final District action.

92462. Pursuant to Section 120.68, Florida Statutes, a party

9255who is adversely affected by final District action may seek

9265review of the action in the district court of appeal by filing a

9278notice of appeal pursuant to Fla.R.App. 9.110 within 30 days of

9289the rendering of the final District action.

92963. A party to the proceeding who claims that a District

9307order is inconsistent with the provisions and purposes of Chapter

9317373, Florida Statutes, may seek review of the order pursuant to

9328Section 373.114, Florida Statutes, by the Land and Water

9337Adjudicatory Commission (Commission) by filing a request for

9345review with the Commission and serving a copy on the Department

9356of Environmental Protection and any person named in the order

9366within 20 days of adoption of a rule or the rendering of the

9379District order.

93814. A District action or order is considered "rendered"

9390after it is signed by the Chairman of the Governing Board on

9402behalf of the District and is filed by the District Clerk.

94135. Failure to observe the relevant time frames for filing a

9424petition for judicial review as described in paragraphs #1 or #2

9435or for Commission review as described in paragraph #3 will result

9446in waiver of that right to review.

9453CERTIFICATE OF SERVICE

9456I HEREBY CERTIFY that a copy of the foregoing NOTICE OF

9467RIGHTS has been furnished by United States Mail to:

9476Marsha P. Tjoflat, Esquire

94801301 Riverplace Boulevard

9483Suite 1500

9485Jacksonville, FL 32207

9488At 4:00 P.M. this 15th day of June, 2000.

9497CERTIFIED MAIL # Z 229 564 560

9504____________________________

9505SANDRA L. BERTRAM

9508DISTRICT CLERK

9510St. Johns River Water

9514Management District

9516Post Office Box 1429

9520Palatka, Florida 32178-1429

9523NOTICE OF RIGHTS

95261. Any substantially affected person who claims that final

9535action of the District constitutes an unconstitutional taking of

9544property without just compensation may seek review of the action

9554in circuit court pursuant to Section 373.617, Florida Statutes,

9563and the Florida Rules of Civil Procedures, by filing an action

9574within 90 days of rendering of the final District action.

95842. Pursuant to Section 120.68, Florida Statutes, a party

9593who is adversely affected by final District action may seek

9603review of the action in the district court of appeal by filing a

9616notice of appeal pursuant to Fla.R.App. 9.110 within 30 days of

9627the rendering of the final District action.

96343. A party to the proceeding who claims that a District

9645order is inconsistent with the provisions and purposes of Chapter

9655373, Florida Statutes, may seek review of the order pursuant to

9666Section 373.114, Florida Statutes, by the Land and Water

9675Adjudicatory Commission (Commission) by filing a request for

9683review with the Commission and serving a copy on the Department

9694of Environmental Protection and any person named in the order

9704within 20 days of adoption of a rule or the rendering of the

9717District order.

97194. A District action or order is considered "rendered"

9728after it is signed by the Chairman of the Governing Board on

9740behalf of the District and is filed by the District Clerk.

97515. Failure to observe the relevant time frames for filing a

9762petition for judicial review as described in paragraphs #1 or #2

9773or for Commission review as described in paragraph #3 will result

9784in waiver of that right to review.

9791CERTIFICATE OF SERVICE

9794I HEREBY CERTIFY that a copy of the foregoing NOTICE OF

9805RIGHTS has been furnished by United States Mail to:

9814John G. Metcalf, Esquire

9818Pappas, Metcalf, Jenks, Miller & Reisch

9824200 W. Forsyth Street

9828Suite 1400

9830Jacksonville, FL 32202

9833At 4:00 P.M. this 15th day of June, 2000.

9842CERTIFIED MAIL # Z 229 564 561

9849____________________________

9850SANDRA L. BERTRAM

9853DISTRICT CLERK

9855St. Johns River Water

9859Management District

9861Post Office Box 1429

9865Palatka, Florida 32178-1429

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 06/26/2000
Proceedings: Final Order on Consumptive Use Permit Application filed.
PDF:
Date: 06/15/2000
Proceedings: Agency Final Order
PDF:
Date: 04/26/2000
Proceedings: Other
PDF:
Date: 04/26/2000
Proceedings: Order on Remand Additional Conclusions of Law sent out. (the jurisdiction over this case is relinquished to the agency for entry of its final order)
Date: 02/25/2000
Proceedings: St. Johns River Water Management District`s Responses to Petitioners` Exceptions; Respondent Hines Interests Limited Partnership`s Response to Petitioners` Joint Exceptions to Recommended Order filed.
Date: 02/25/2000
Proceedings: Petitioners` Joint Exceptions to the Recommended Order; Petitioners` Joint Response to Respondents` Exceptions filed.
Date: 02/25/2000
Proceedings: Exceptions to Recommended Order by Respondent, St. Johns River Water Management District; Respondent Hines Interersts Limited Partnership`s Exception to the Recommended Order filed.
PDF:
Date: 02/14/2000
Proceedings: Final Order and Order of Remand filed.
PDF:
Date: 02/09/2000
Proceedings: Remanded from the Agency
PDF:
Date: 12/30/1999
Proceedings: Recommended Order
PDF:
Date: 12/30/1999
Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held October 18-22, 1999.
Date: 11/30/1999
Proceedings: (J. Metcalf) Videotape w/cover letter filed.
Date: 11/22/1999
Proceedings: St. Johns River Water Management District`s Supplemental Motion for Official Recognition w/exhibits filed.
Date: 11/19/1999
Proceedings: Disk (St. Johns River Water Management District`s Proposed Recommended Order) w/cover letter filed.
Date: 11/18/1999
Proceedings: (D. Andrews) Notice of Filing; Disk (Petitioners` Joint Proposed Recommended Order and the proposed recommended order) filed.
Date: 11/17/1999
Proceedings: (M. Tjoflat) Respondent, Hines Interests Limited Partnership`s Memorandum of Law Regarding Shellfish Harvesting Waters filed.
Date: 11/17/1999
Proceedings: (M. Tjoflat) Notice of Filing to Submit Exhibits A and B to Respondent, Hines Interest Limited Partnership`s Memorandum of Law Regarding Shellfish Harvesting Waters filed.
Date: 11/15/1999
Proceedings: Petitioners` Joint Proposed Recommended Order (filed via facsimile).
Date: 11/15/1999
Proceedings: Respondent, Hines Interests Limited Partnership`s Memorandum of Law Regarding Shellfish Harvesting Waters filed.
Date: 11/15/1999
Proceedings: Respondent Hines Interests Limited Partnership`s Proposed Recommended Order (for Judge Signature); Disk filed.
Date: 11/15/1999
Proceedings: Proposed Recommended Order of the St. Johns River Water Management District (for Judge Signature) filed.
Date: 11/05/1999
Proceedings: Friday Morning Hearing Volume 9 (Transcript) ; Friday October 22, 1999 Afternoon Session Volume X (Transcript) filed.
Date: 11/05/1999
Proceedings: Volume VII Thursday Morning Session (Transcript) ; Afternoon Session Volume VIII (Transcript) filed.
Date: 11/05/1999
Proceedings: Volume IV (Transcript) ; Morning Session Volume IV (Transcript); Wednesday October 20, 1999 Afternoon Session Volume VI (Transcript) filed.
Date: 11/05/1999
Proceedings: (M. Tjoflat) Notice of Filing Final Hearing Transcripts; Volume I Monday Morning to Early Afternoon Hearing (Transcript) ; Monday October 18, 1999 Afternoon Session Volume II ; Tuesday Morning Hearing Volume III filed.
Date: 10/27/1999
Proceedings: Letter to Judge Dean from John Metcalf (filed via facsimile).
Date: 10/15/1999
Proceedings: St. Johns River Water Management District`s Motion for Official Recognition w/exhibits; St. Johns River Water Management District`s ERP Applicant`s Handbook 2/8/99 ; St. Johns River Water Management filed.
Date: 10/15/1999
Proceedings: (M. Tjoflat) (2) Second Amended Notice of Taking Deposition of Non-Party (filed via facsimile).
Date: 10/13/1999
Proceedings: Amended Notice of Taking Deposition of Non-Party with cover letter (filed via facsimile).
Date: 10/12/1999
Proceedings: Notice of Taking Deposition of Non-Party (28 attached to cover letter to Judge Dean) (filed via facsimile).
Date: 10/12/1999
Proceedings: (SJRWMD) Notice of Service of Answers to Petitioner the Sierra Club`s Interrogatories and Request to Produce to Respondent St. Johns River Water Management District filed.
Date: 10/12/1999
Proceedings: (SJRWMD) Notice of Service of Answers to Petitioners the Sierra Club, Bobby C. Billie and Shannon Larsen`s First Set of Interrogatories filed.
Date: 10/08/1999
Proceedings: Order Designating Hearing Room Locations sent out.
Date: 10/08/1999
Proceedings: Order Closing Files, Granting Intervention, and Prehearing Instructions (case nos. 99-1247, 99-1248 are the only cases closed).
Date: 10/07/1999
Proceedings: Respondent St. Johns River Water Management District`s Response to Petitioners` Motion for Continuance (filed via facsimile).
Date: 10/07/1999
Proceedings: (Petitioner) Notice of Taking Deposition (filed via facsimile).
Date: 10/06/1999
Proceedings: Respondent Hines Interest Limited Partnership`s Notice of Service of Answers to Petitioner the Sierra Club`s Interrogatories and Request for Production of Documents (filed via facsimile).
Date: 10/05/1999
Proceedings: Order sent out. (Hines` Motions to consolidate, to expedite proceeding, and for a prehearing conference are granted)
Date: 10/05/1999
Proceedings: Joint Response of Petitioner to Motion to Extend Discovery for a Limited Purpose by Respondent, Hines Interests Limited Partnership and Motion for Continuance (filed via facsimile).
Date: 10/04/1999
Proceedings: (T. Jenks) Notice of Taking Deposition (filed via facsimile).
Date: 10/01/1999
Proceedings: (M. Tjoflat) Motion to Extend Discovery for a Limited Purpose (filed via facsimile).
Date: 09/30/1999
Proceedings: (J. Metcalf) (2) Notice of Taking Deposition of Non-Party (filed via facsimile).
Date: 09/29/1999
Proceedings: (Petitioner) Notice of Taking Deposition (filed via facsimile).
Date: 09/29/1999
Proceedings: Notice of Joint Request for Production by Petitioners to Respondent St. Johns River Water Management District (filed via facsimile).
Date: 09/28/1999
Proceedings: Motion to Strike by Respondent, Hines Interest Limited Partnership (filed via facsimile).
Date: 09/22/1999
Proceedings: (SJRWMD) Notice of Related Cases (filed via facsimile). (for DOAH #`s: 99-1247, 99-1248, 99-1905 & 99-3934)
Date: 09/21/1999
Proceedings: Joint Response of Petitioners Sierra Club, Bobby C. Bullie and Shannon Larsen to Motion to Expedite (filed via facsimile).
Date: 09/20/1999
Proceedings: (SJRWMD) Notice of Related Cases (filed via facsimile). (for DOAH #`s: 99-1247, 99-1248, 99-1905 & 99-3933)
Date: 09/20/1999
Proceedings: (SJRWMD) Notice of Related Cases (filed via facsimile). (for DOAH #`s: 99-1247, 99-1248, 99-1905 & 99-3934) 9/22/99)
Date: 09/17/1999
Proceedings: (J. Met calf) Motion to Consolidate cases, Expedite Proceedings and for Pre-Hearing Conference; Notice of Filing Letter Withdrawing Permit Applications; Letter to V. Thiebach from T. Jenks Re: Withdrawing permit applications (filed via facsimile).
Date: 09/17/1999
Proceedings: (J. Metcalf) Notice of Telephonic Hearing 9/20/99; 2:00 p.m.) (filed via facsimile).
Date: 09/09/1999
Proceedings: (D. Andrews) Notice of Propounding Interrogatories by Petitioner Shannon Larsonto Respondent St. Johns River Water Management District (filed via facsimile).
Date: 07/22/1999
Proceedings: Order sent out. (telephone conference call scheduled for 2/2/99 is cancelled)
Date: 07/19/1999
Proceedings: Response to Petitioner`s Request for Production by Respondent, Hines Interests Limited Partnership filed.
Date: 06/21/1999
Proceedings: (SJRWMD) Notice of Service of Answers to Petitioner the Sierra Club`s First Set of Interrogatories filed.
Date: 06/07/1999
Proceedings: Notice of Hearing sent out. (hearing set for 10/11/99)
Date: 06/07/1999
Proceedings: Order sent out. (Consolidated cases are: 99-001247, 99-001248, 99-001905; final hearing has been tentatively set for October 11-22, 1999)
Date: 05/27/1999
Proceedings: (J. Metcalf) Notice of Telephonic Hearing filed.
Date: 05/12/1999
Proceedings: Response of Petitioner Sierra Club to Motion to Strike and for More Definite Statement by Respondent, Hines Interests Limited Partnership (filed via facsimile).
Date: 05/10/1999
Proceedings: Joint Response to Initial Order (filed via facsimile).
Date: 05/06/1999
Proceedings: Respondent Hines Interests Limited Partnership`s Motion to Strike and for More Definite Statement filed.
Date: 05/03/1999
Proceedings: (M. Tjoflat) Notice of Propounding Interrogatories to Petitioner, the Sierra Club filed.
Date: 04/29/1999
Proceedings: Initial Order issued.
Date: 04/26/1999
Proceedings: Notice of Related Cases; Joint Motion to Consolidate Cases; Notice of Transcription; Notice of Referral to Division of Administrative Hearing; Petition for Administrative Hearing filed.

Case Information

Judge:
STEPHEN F. DEAN
Date Filed:
04/26/1999
Date Assignment:
04/29/1999
Last Docket Entry:
06/26/2000
Location:
Ponte Vedra Beach, Florida
District:
Northern
 

Related DOAH Cases(s) (5):

Related Florida Statute(s) (14):

Related Florida Rule(s) (12):