00-003853 James W. Slusher, Jr. vs. Martin County And South Florida Water Management District Status: Closed Recommended Order on Friday, May 31, 2002.

Summary: Applicant for well construction permit and consumptive use permit showed "reasonable assurances" warranting issuance of permits.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES W. SLUSHER, JR., )

)

Petitioner, )

)

vs. ) Case No. 00 - 3853

)

MARTIN COUNTY and SOUTH FLORIDA )

WATER MANAGEMENT DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on January 23 - 25, 2002, in Stuart, Florida, before

Administrative Law Judge Michael M. Parrish of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Howard K. Heims, Esquire

Virginia P. Sherlock, Esquire

Littman, Sherlock & Heims, P.A.

618 East Ocean Boulevard, Suite 5

Post Office Box 1197

Stuart, Florida 34995 - 1197

For Respondent: Douglas H. MacLaughlin, Esquire

South Florida Wate r Management District

3301 Gun Club Road

Post Office Box 24680

West Palm Beach, Florida 33416 - 4680

For Applicant: David A. Acton, Esquire

Senior Assistant County Attorney

Martin County Administrative Center

2401 Southeast Monterey Roa d

Stuart, Florida 34996 - 3397

STATEMENT OF THE ISSUES

The issues presented for decision in this case are:

(1) whether Martin County should be granted the re - issuance of

Water Use Permit No. 43 - 00752W for the Tropical Farms Water

Treatment Plant and ass ociated wells; and (2) whether Martin

County should be granted Water Well Construction Permit

No. SF032696B for the construction of Well No. 10 of the

Tropical Farms Water Treatment Plant, pursuant to the permitting

criteria of Chapter 373, Parts II and II I, Florida Statutes;

Chapters 40E - 2 and 40E - 3, Florida Administrative Code; and the

Basis for Review for Water Use Permit Applications of the South

Florida Water Management District.

PRELIMINARY STATEMENT

The Petitioner initiated this proceeding by filing a

petition, and later an amended petition, challenging the

issuance and reissuance of certain permits by the South Florida

Water Management District ("SFWMD"). The timeliness of the

challenge to the water use permit was litigated separately in an

earlier hearing, conducted on April 27, 2001. An order was

entered on that issue on August 2, 2001. The order of August 2,

2001, reads as follows, in pertinent part:

On April 27, 2001, an evidentiary hearing

was conducted in this case by means of

televideo co nnection between Tallahassee and

West Palm Beach, Florida. By pre - hearing

order, the issues in this case were

bifurcated, and the evidentiary hearing on

April 27, 2001, was limited to the issue of

whether the Petitioner had timely challenged

the water use permit which is associated

with the well construction permit at issue

in this case. All parties agree that the

challenge to the issuance of the well

construction permit was timely filed. Both

Respondents argue that the Petitioner failed

to challenge the water use permit in the

original petition and that the Petitioner

cannot, at a time more than 21 days after

notice of the use permit, amend his petition

to add a challenge to the use permit. The

timeliness issue has been raised in a motion

to strike and in a motion seeking leave to

amend the petition.

Upon consideration of the evidence

received at the hearing on April 27, 2001,

and careful review of the pleadings in the

file and the proposed recommended orders

submitted by all parties following the

hear ing, the undersigned is of the view, on

the present state of the record, that the

allegations of the original petition in this

case were sufficient to put the Respondents

on notice that the Petitioner was

challenging the water use permit, as well as

the we ll construction permit. The original

petition is by no means a model to be

followed by others who seek to challenge

water use permits, but it appears to be

legally sufficient to notify the Respondents

that the Petitioner was challenging the

water use perm it. This view of the

sufficiency of the original petition is

founded in large part upon the many

references in the original petition to

matters related to the "use of Well Number

10." Any fair - minded reading of the

original petition will lead to the

conc lusion that the Petitioner was objecting

to and challenging the use of the well.

In view of the foregoing, it is ORDERED:

1. That the motion to strike portions of

the original petition is denied.

2. That the motion to amend the original

petition is granted, and this case will go

forward on the issues raised in the Amended

Petition for Administrative Hearing which

was filed on November 2, 2000.

3. That a final hearing will be conducted

in this case at the earliest practicable

date following a reas onable opportunity for

all parties to prepare for hearing on all

issues raised in the amended petition.

Following a final hearing on the merits of

the case, a Recommended Order will be

prepared containing findings of fact and

conclusions of law addressed to all issues,

including the issues addressed at the

hearing on April 27, 2001.

At the final hearing on January 23 - 25, 2002, the County and

SFWMD presented the testimony of four witnesses: William S.

Burns, Director of Water Use Regulation for SFWMD; John Polley,

Director of the Utilities and Solid Waste Department of the

County; James Mercurio, Treatment Superintendent of the same

County department; and Linda Horn, a Water Facilities

Administrator with the Florida Department of Environmental

Protection an d former hydrogeologist for the County. The County

and SFWMD also offered Exhibits 1 - 5 and Exhibits 1 - 4 into

evidence, respectively, all of which were admitted.

Mr. Slusher presented the testimony of three witnesses:

Mr. Slusher, the Petitioner; Mrs. Dian e Slusher, wife of the

Petitioner; and Gerhardt M. Witt, a self - employed

hydrogeologist. Mr. Slusher also marked 14 exhibits for

identification, eight of which were admitted into evidence.

A transcript of the final hearing was prepared and filed

with the Division of Administrative Hearings on February 25,

2002. The parties timely filed their proposed recommended

orders with the Division on April 8, 2002. All of the proposed

recommended orders submitted by the parties have been carefully

considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner James W. Slusher, Jr., and his wife,

Diane L. Slusher, own a residential lot located in

unincorporated Martin County at 2376 SW Ranch Trail, Stuart,

Florida 34997. On the lot is a single family home. The size of

the residential lot is approximately 2.25 acres.

2. Mr. and Mrs. Slusher purchased the subject residential

lot and home in September of 1994 from Mrs. Stella Kassinger.

3. Mrs. Kassinger and her late husband (the “origi nal

owners”) had the home built on the residential lot in

approximately 1980.

4. When the original owners built the home, they had a

hole or “pit” dug in the rear portion of the lot.

5. From aerial photographs taken at the time (1979 - 1980),

and based upo n the common practice in the area, it appears that

the material from the “pit” was spread on - site to provide

additional elevation for, and to minimize the potential for

flooding of, the home and driveway that were constructed on the

lot. Thus, the origina l “design function” of the “pit” was to

provide fill for construction.

6. The original owners thereafter allowed the “pit” to

accumulate water and stocked it with fish so that Mr. Kassinger

could use it recreationally as a fishing pond. The “design

funct ion” of the original “pit” was thus changed so that it

would serve as a recreational amenity on the property.

7. During the subsequent 14 years that the original owners

lived in the home, they did nothing further to alter or improve

the fishing pond. Ove r the years, the area immediately around

the fishing pond became heavily vegetated and was used from time

to time by various wild birds and animals.

8. The fishing pond was used by the original owners for

fishing and for observing the wildlife it attracte d.

9. After purchasing the home, Mr. Slusher also stocked the

fishing pond with various fish over the years so that he and his

family could continue to use it recreationally. The fishing

pond continued to be used by the Slushers for fishing, for

observin g wildlife, and as a swimming area for their dogs.

10. Currently, the overall dimensions of the fishing pond

are approximately 90 feet wide, by 122 feet long, by 10 feet

deep at its deepest part, when filled to the level that was

natural prior to the oper ation of Water Well No. 10.

11. Potable water for the Slusher home is obtained from a

well drilled on the property, not from the public water system

of the County. The Slusher well is located approximately 33

feet from the home. It is attached by PVC pi pe to a pump

located next to the home. The original owners caused the well

to be drilled.

12. The record in this case does not contain any

persuasive evidence regarding the details of the Slusher

residential water well. Specifically absent are such deta ils as

the depth to which the well was originally drilled, the material

from which the well tube was made (i.e., cast iron or PVC), and

the current physical condition of the sub - surface portions of

the well.

13. Mr. Slusher has not done anything to repair or replace

the well since he and his wife purchased the home.

14. On August 2, 2000, Mr. Slusher filed a petition with

the SFWMD challenging the issuance of Water Well Construction

Permit No. SF032696B, and the "use of the well."

15. On November 3, 2000 , Mr. Slusher filed an amended

petition with the Division of Administrative Hearings,

challenging the issuance of Water Use Permit No. 43 - 00752W and

Water Well Construction Permit No. SF032696B.

16. Martin County (“the County”) is a political

subdivision of the State of Florida, established in 1925

pursuant to Section 7.43, Florida Statutes, and Section 1,

Chapter 10180, Laws of Florida.

17. SFWMD is an independent state agency, operating

pursuant to Chapter 373, Florida Statutes.

18. SFWMD originally i ssued Water Use Permit No. 43 - 00752W

to the County on April 15, 1993. The “water use permit” was for

wells and associated equipment at the Tropical Farms Water

Treatment Plant (“Tropical Farms WTP”).

19. SFWMD re - issued Water Use Permit No. 43 - 00752W to the

County on March 14, 1996. The re - issued “water use permit”

allowed additional wells to be drilled and additional draws of

water by the County at the Tropical Farms WTP.

20. One of the additional wells included in the re - issued

water use permit was “W ell No. 10.”

21. SFWMD issued Water Well Construction Permit

No. SF032696B to the County on March 28, 1996, allowing the

construction of Well No. 10 at the Tropical Farms WTP.

22. In accordance with the restrictions imposed by the

water well construction permit, the County drilled Well No. 10

on a site located at least 100 feet in distance from the fishing

pond on the Slushers’ property. The physical location of Well

No. 10 is essentially “adjacent to” the Slusher property.

23. County Well No. 10 is app roximately 120 feet deep and

draws water from the surficial aquifer. It commenced operation

in December of 1996.

24. It is uncontested that the operation of the well

field, especially County Well No. 10, has caused drawdowns of

the pond level and of the groundwater in the area of

Mr. Slusher's residential water well. The MODFLOW model used by

the County in support of its application indicates a maximum

drawdown of 7.4 feet.

25. The persuasive expert opinion evidence in this case

indicates that maximum d raw downs of 7 or 8 feet would be

expected in the area of Mr. Slusher's residential water well.

The County has acknowledged that the operation of Well No. 10

has had a significant effect on the drawdown of the water table

in the area of the pond.

26. Coun ty Well No. 10 appears to have been constructed in

a manner consistent with the applicable rules. The well was

properly drilled and grouted, the correct materials were used,

and the well was constructed in a manner that did not result in

harm to the water resources. The water use permit was issued

prior to the well construction permit, as is appropriate.

27. Although permitted originally in 1993 and again in

1996, the Tropical Farms WTP did not begin regular operations

until June of 1997. It is now part of a consolidated system

which includes four other water treatment plants, all operated

by the County for the purpose of obtaining and providing potable

water to the public county - wide.

28. In support of its applications for the issuance and

re - issuance of the water use permit, the County provided SFWMD

with so - called “MODFLOW calculations” done by a professional

engineering firm retained by the County. MODFLOW was developed

by the U.S. Geologic Survey and is considered the standard for

assessment of gro und water resource impacts.

29. The results of the three - dimensional MODFLOW modeling

showed that the drawdown effect on the water table of the

proposed wells for the Tropical Farms WTP would be unlikely to

cause any adverse effect on typical wells used b y homeowners,

even if the latter were located within the same small “square”

as one of the County’s wells.

30. Prior to the commencement of the operation of Well

No. 10 by the County, the water level in the fishing pond on the

Slusher property would vary only a few inches up or down during

the course of a typical year. After the County began to operate

County Well No. 10, Mr. Slusher observed and videotaped much

greater variations in the water level in the fishing pond on his

property. After County Well No. 10 began to operate, the pond

water level dropped to the extent that it would become virtually

empty of water from time to time. At other times, however, the

fishing pond would refill with water, such as in September of

1999, and in August of 2001.

31 . When the water in Mr. Slusher's pond gets very low, it

has an adverse impact on the fish in the pond; the fish die

because they have insufficient water. Mr. Slusher has not done

anything over the years since the operation of County Well

No. 10 began to attempt to prevent the variations in the water

level of the fishing pond, or to mitigate the occurrence of such

variations.

32. The County (together with the rest of southern

Florida) has experienced several periods of severe drought over

the past few ye ars. Yet other “ponds” on other properties in

the same neighborhood as the Slusher property have not

experienced the significant variance in water level that has

occurred in the fishing pond on the Slusher property since the

County began drawing water fro m Well No. 10.

33. The County does not operate Well No. 10 continuously.

Rather, it has attempted to reduce its use of the well.

34. SFWMD has never issued any notice to the County that

any mitigation was required on the Slusher property pursuant to

the limiting conditions of the water use permit.

35. The County does not dispute that its operation of Well

No. 10 has contributed to a drawdown in the level of the water

table in the surrounding area, nor that such a drawdown has

contributed to the variance in the water level in the pond on

the Slusher property. Indeed, the drawdown of the water table

generally was fully anticipated and predicted in the materials

submitted by the County to SFWMD.

36. The use of County Well No. 10 to draw water from the

sur ficial aquifer is not the only factor contributing to the

variances in the water level of the fishing pond on the Slusher

property. Evaporation and natural variances in the level of the

water table also contribute to changes in the water level of the

fish ing pond.

37. Bentonite is a naturally occurring clay that is mined

for a variety of uses, including the “lining” or “waterproofing”

of reservoirs, lagoons, ponds, ditches, and other man - made

bodies of water in order to seal them and to prevent or minimiz e

seepage or percolation of the water into the ground. Even

repeated wetting and drying of the clay does not reduce its

effectiveness. Bentonite is widely used and has not been found

to have any harmful or toxic effects on either human beings or

wildlife .

38. In some applications, bentonite clay is a superior

lining material when compared to a man - made liner, such as a

plastic or polymer sheet. In a small scale application where

the volume of water in a lined pond is relatively low, a man -

made liner cou ld be forced away (“balloon up”) from the bottom

of the pond by the pressure of a rising natural water table.

39. Lining the pond on the Slusher property with Bentonite

(or some similar clay) would create a virtually impervious layer

that would separate t he water in the pond on the Slusher

property from the surrounding water table. With such a lining

in place, County Well No. 10 would have no significant effect on

the water level of the pond.

40. The water level in the pond on the Slusher property

could also be stabilized at or near its normal level prior to

the operation of County Well No. 10 by installation of a water

supply that would add water to the pond whenever the pond

dropped below a specified level.

41. Mr. Slusher first complained to the Count y about the

effect of the County’s operation of Well No. 10 in 1997, when he

spoke with Jim Mercurio, a County water utilities employee.

42. Mr. Slusher also complained at about the same time to

SFWMD, which resulted in a “field investigation” in Septembe r

1997. At that time, Mr. Slusher complained about the lowering

of the water level in the pond on his property, but specifically

denied any adverse effect on the water from his residential

water well.

43. Mr. Slusher began to complain about the water qua lity

and water pressure in his residential water well sometime in

2000. The water flowing from Mr. Slusher's residential water

well now has an unpleasant odor, taste, and color, and the water

causes rust stains. The water pressure of the water flowing

fr om Mr. Slusher's residential water well is less than it was

before the construction of County Well No. 10.

44. The rust stains, odor, taste, and color are all due to

iron oxidation of the water drawn from the well on the Slusher

property.

45. The County regularly experiences similar problems with

iron oxidation in the water that it draws from its own wells in

the same area as the Slusher property, which the County must

treat at the Tropical Farms WTP. The problem of iron oxidation

(and accompanying odor and taste deficiencies) in the water is

thus not unique to the water drawn from the well on the Slusher

property. Iron oxidation in well water is not harmful to human

beings.

46. The evidence in this case does not include any

evidence of any testing of t he water quality of the water coming

from the Slusher residential well. Similarly, there is no

persuasive evidence as to the current condition of the sub -

surface portions of the Slusher residential well. Further, the

evidence regarding the cause of any d eterioration of the water

quality and/or the water pressure of the Slusher residential

water well is both anecdotal and speculative, and is not a

persuasive basis for determining the cause of any deterioration

of the water quality and/or water pressure of the subject

residential well. Specifically, the evidence is insufficient to

establish that the water quality and water pressure

deterioration complained of by Mr. Slusher are a result of the

operation of County Well No. 10. Such deterioration could be

ca used by other circumstances or conditions, including the

uninspected sub - surface condition of Slusher's residential water

well. The water quality and water pressure problems currently

experienced by Mr. Slusher could be minimized or eliminated by

connecti ng his residence to the residential water supply system

operated by the County. A branch of the County's public water

system already exists in Mr. Slusher's neighborhood within a few

hundred feet of his property.

47. The application and information provi ded to SFWMD by

the County were determined by SFWMD to provide “reasonable

assurances” that existing legal users would not be adversely

affected by the proposed wells or water treatment facility.

CONCLUSIONS OF LAW

48. The Division of Administrative Heari ngs has

jurisdiction over the subject matter of and the parties to this

proceeding, pursuant to Sections 120.569 and 120.57(1), Florida

Statutes.

49. Petitioner, as the owner of property “adjacent to” the

site of the County’s Well No. 10 and as a legal us er of water

from the well on his own property, has standing to initiate this

proceeding.

50. SFWMD, as the agency of the state with the

responsibility and authority to review and act upon the permits

in question in this proceeding, pursuant to Chapter 373 ,

Parts II and III, Florida Statutes, is a proper Respondent to

the amended petition.

51. Martin County, as the applicant for both of the

permits in question in this proceeding, has standing to

intervene in this proceeding.

52. The issuance of a water us e permit to the County by

SFWMD is governed by the conditions found in Chapter 373,

Part II, Florida Statutes, and in Chapter 40E - 2, Florida

Administrative Code, and in the Basis for Review of Water Use

Permit Applications of the South Florida Water Manage ment

District.

53. The issuance of a well construction permit to the

County by SFWMD is governed by the conditions found in Chapter

373, Part III, Florida Statutes, and in Chapter 40E - 3, Florida

Administrative Code.

54. As the applicant and the party ass erting an

affirmative entitlement to issuance of the permits in question

by SFWMD, the County has the burden of showing by a

preponderance of the credible evidence that it is entitled to

the permits. See Dep’t of Transportation v. J.W.C. Co., Inc. ,

396 So . 2d 778, 788 (Fla. 1st DCA 1981).

55. The proper standard for the County’s burden of proof

is one of providing “reasonable assurances,” not absolute

guarantees, that applicable water quality standards and the

public interest criteria will be met by its c onstruction and use

of County Well No. 10. See Manasota - 88, Inc. v. Agrico Chemical

Co. and FDEP , 12 FALR 1319 (February 19, 1990).

56. “Reasonable assurances” contemplates a substantial

likelihood that the project will be successfully implemented.

See Metropolitan Dade Co. v. Coscan Florida, Inc. , 609 So. 2d

644 (Fla. 3rd DCA 1992). An applicant for a permit is not

required to eliminate all contrary possibilities or address

impacts which are only theoretical and cannot be measured in

real life. See Ho ffert v. St. Joe Paper Co. , 12 FALR 4972

(October 29, 1990).

57. In the context of potential harm to natural resources,

the Florida courts have allowed state agencies such as SFWMD

considerable flexibility in interpreting “reasonable assurances”

and in ap plying individual permit standards based upon a

totality of the circumstances. See Booker Creek Preservation,

Inc. v. Mobil Chemical Co. , 481 So. 2d 10 (Fla. 1st DCA 1986).

58. If the County makes a prima facie showing of

reasonable assurances, then the burden shifts to Mr. Slusher to

go forward and present evidence of equivalent quality consistent

with the allegations of his amended petition. Such evidence

cannot be merely speculative and involve allegations of what

“might” have occurred. See Chipola B asin Protective Group, Inc.

v. Dep’t of Environmental Regulation , 11 FALR 467 (December 30,

1988).

59. If the contrary evidence offered by Mr. Slusher is not

at least of “equivalent quality” to that presented initially by

the County (and SFWMD), then the permits in question must be

approved. See Dep’t of Transportation v. J.W.C. Co., Inc. , 396

So. 2d 778, 788 (Fla. 1st DCA 1981). There is no “presumption

of correctness” in the mere fact that SFWMD made a preliminary

determination to issue the permits in question.

60. The construction and operation of Well No. 10 by the

County is clearly in the public interest. Also clearly in the

public interest is the operation of the Tropical Farms Water

Treatment Plant.

61. The only evidence presented on the well co nstruction

permit was that by Scott Burns, who was accepted as an expert in

water well construction permitting. The evidence establishes

that Well No. 10 was properly drilled and grouted, the correct

materials were used, and the well was constructed in a manner

that did not result in harm to the water resources. The water

use permit was issued prior to the well construction permit.

Consequently, reasonable assurances were provided that the

requirements in Chapter 40E - 3, Florida Administrative Code, were

met, and the County is entitled to have the well construction

permit issued.

62. The operation of a public water well, such as Well No.

10 of the County’s Tropical Farms WTP, requires a water use

permit from SFWMD. See Rule 40E - 2.041, Florida Administrat ive

Code.

63. A single private water well that has been drilled and

is being used solely for the domestic needs of a single family

residence, such as the well on the Slusher property, constitutes

a “legal use” of water which does not require a permit from

SFWMD. See Rule 40E - 2.051(1), Florida Administrative Code.

64. Through its outside engineering consultant and the

studies done with generally acceptable computerized modeling

techniques, which included consideration of direct, secondary

and cumulative i mpacts, the County provided “reasonable

assurances” to SFWMD that the construction and operation of the

entire Tropical Farms WTP, including Well No. 10, would comply

with all applicable water quality, water quantity, and

environmental permitting criteria, would not cause any

reasonably foreseeable adverse water resource impacts on other

legal users, and would comply with the applicable provisions of

Part II of Chapter 373, Florida Statutes, with the applicable

parts of Chapter 40E - 2, Florida Administrative Code, and with

the Basis for Review of Water Use Permit Applications of the

South Florida Water Management District.

65. Mr. Slusher’s residential water well constitutes a

“legal use” of water that had to be considered. See Rule 40E -

2.301(1)(f), Florida Administrative Code. However, there is no

legal requirement for a permit applicant to identify each such

“legal use” separately and provide “reasonable assurances”

directed solely to that particular “legal use.” Such an

obligation could become quite one rous to applicants, especially

where the “legal uses” are exempt from any permitting

requirements themselves and therefore could be unknown to both

the applicant and the agency in the absence of a door - to - door

inquiry of every property owner within the vic inity of the

proposed new water use. A generalized study, using

professionally acceptable techniques and standards, that

examines the potential impacts on all possible “legal users,”

such as the County provided to SFWMD in this case, is legally

sufficient to provide the necessary “reasonable assurances”

required by law.

66. The evidence in this case is insufficient to establish

that the construction and operation of County Well No. 10 was

the cause of any adverse impact to the quality and quantity of

wate r produced by Slusher's residential well. In this regard it

is significant to note that Mr. Slusher did not complain to

anyone about the quality or the quantity of water from his

residential water well until sometime in 2000, which was several

years after the County initiated its use of Well No. 10 in

December of 1996.

67. There is no legal requirement for SFWMD to issue a

permit prior to the creation of a man - made fishing pond on

private property, such as the one in question in this case.

Similarly, the re is no legal obstacle to the elimination of such

a man - made fishing pond on private property where, as in this

case, it does not constitute a legally defined or jurisdictional

“wetlands.”

68. The definition of “impoundment” in the Basis of

Review appea rs to include both natural and man - made features.

However, according to the Basis of Review, the environmental

features that SFWMD must evaluate when determining the impacts

of water withdrawal include only the former: “ Natural surface

water bodies such a s lakes, ponds, springs, streams, estuaries,

or other watercourses.” See Basis of Review, Section 3.3,

pg. A - 38.

69. Since the fishing pond on the Slusher property was not

a naturally occurring surface feature, but was man - made in 1980

in conjunction wit h the construction of the home on the subject

property, it is not a “natural surface water body” that must be

considered by SFWMD in evaluating effects on off - site

environmental features.

70. There is no evidence in this case that the fishing

pond on the Slusher property falls within any of the other

categories that must be considered by SFWMD when determining the

impacts of water withdrawal such as the County’s use of Well

No. 10.

71. The provisions of Section 3.6 of the Basis of Review,

concerning evalu ation of impact on “existing offsite land uses”

must also be considered in this case. It is in this context

that the “designed function of the water body” is relevant. See

Basis of Review, Section 3.6.A., pg. A - 40.

72. As SFWMD interprets the applicable statutes and rules,

a man - made fishing pond, stocked with fish by its owner and used

primarily for the recreational benefit of the owner, does not

constitute an “existing legal use” under Rule 40E - 2.301(f),

Florida Administrative Code, and therefore is no t entitled to

protection by SFWMD. A man - made fishing pond is neither

required to have a water use permit nor expressly exempted by

statute from needing one. Consequently, the corresponding

provisions of the Basis or Review would not be considered.

73. Finally, when evaluating the “public interest” prong

under Rule 40E - 2.301(1)(j), Florida Administrative Code, the

interpretation by SFWMD is that the “interest” of the “public”

must be on a scale larger than that of an individual homeowner,

“such as the re storation of the Everglades system, the

protection of an endangered species, the provision of reliable

water supply for a region for seasonal water supply - type

activity.” This is a reasonable interpretation, since it gives

meaning to the apparent attempt to distinguish between the

interest of an individual user and the interest of the public -

at - large. There being no evidence that the fishing pond on

Mr. Slusher’s property is open to the public for general use, it

does not appear to be encompassed within t he protection afforded

to the “public interest” by law.

74. In sum: For the reasons discussed above, the County

is also entitled to the water use permit it seeks to have

renewed.

75. In this case there does not appear to be any basis

upon which to inclu de as a condition for the issuance of the

subject permits that the County take action to mitigate the

adverse impacts to Mr. Slusher's fishing pond or to mitigate the

changes in water pressure and water quality in Mr. Slusher's

residential water well. It is nevertheless gratuitously noted

that there are reasonable ways in which such conditions could be

mitigated by either the County or Mr. Slusher, should either

choose to do so.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of L aw, it is hereby recommended that the Governing Board of the

South Florida Water Management District enter a final order

issuing Water Well Construction Permit No. SF032696B and re -

issuing Water Use Permit No. 43 - 00752W to Martin County, subject

to the gen eral and special conditions set forth therein.

DONE AND ENTERED this 31st day of May, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

MICHAEL M. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of May, 2002.

COPIES FURNISH ED :

Howard K. Heims, Esquire

Virginia P. Sherlock, Esquire

Littman, Sherlock & Heims, P.A.

618 East Ocean Boulevard, Suite 5

Post Office Box 1197

Stuart, Florida 34995 - 1197

Douglas H. MacLaughlin, Esquire

South Florida Water Management District

3301 Gun Club Road

Post Office Box 24680

West Palm Beach, Florida 33416 - 4680

David A. Acton, Esquire

Senior Assistant County Attorney

Martin County Administrative Center

2401 Southeast Monterey Road

Stuart, Florida 34996 - 3397

Frank R. Finch, Executive Director

South Florida Water Management District

Post Office Box 24680

West Palm Beach, Florida 33416 - 4680

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.