01-002294 Becky Ayech vs. Southwest Florida Water Management District Status: Closed Recommended Order on Tuesday, November 27, 2001.

Summary: Applicant satisfied criteria for renewal of water use permit, where withdrawal amounts requested were drastically reduced and Petitioner could not demonstrate any impact to her well would be caused by proposed withdrawals.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BECKY AYECH, )

)

Petitioner, )

)

vs. ) Case Nos. 01 - 2294

)

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

_______________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in

this case on September 25, 2001, in Sarasota, Florida, before

Lawrence P. Stevenson, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Becky Ayech, pro se

421 Verna Road

Sarasota, Florida 34240

For Respondent: Jack R. Pepper, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether

Responden t, the Southwest Florida Water Management District

(the "District"), should issue Water Use Permit ("WUP")

No. 20005687.003 to Dr. Thomas E. Kelly, pursuant to the terms

of the proposed permit issued on April 11, 2001.

PRELIMINARY STATEMENT

On April 11 , 2001, the District issued notice of final

agency action for approval of general WUP No. 20005687.003 to

the applicant, Dr. Thomas E. Kelly. The permit would

authorize the use of 1,700 gallons of water per day ("gpd"),

on an average annual basis, for irr igation and restroom use at

Pop's Golf and Batting Center in unincorporated Sarasota

County.

On May 1, 2001, Petitioner filed with the District a

petition for formal hearing, challenging the proposed issuance

of WUP No. 20005687.003 to Dr. Thomas E. Kelly , as more fully

described below. On June 7, 2001, the District referred the

petition to the Division of Administrative Hearings for

assignment of an administrative law judge and conduct of a

formal administrative hearing pursuant to Section 120.57(1),

Flo rida Statutes.

At the formal hearing, the District presented the

testimony of Ralph Perna, the owner of Pop's Golf and Batting

Center, and of David Brown, a senior professional geologist

with the District and expert in geology, hydrogeology, well

and o ther withdrawal facility construction, and water use

permitting. The District's Exhibits 1 through 8 were admitted

into evidence.

Petitioner testified on her own behalf and presented the

testimony of Ellen Richardson, a Sarasota resident. At the

hearing , Petitioner's Exhibits 1 through 14, C through H, N, R

through T and V were admitted. Petitioner's Exhibits J

through L, M, O, P, and Q were rejected. Ruling was reserved

on Petitioner's Exhibits 15 through 50 and B. By order issued

on October 17, 2001 , Petitioner's Exhibits 15 through 50 and B

were admitted into evidence.

A Transcript of the final hearing was filed with the

Division of Administrative Hearings on October 18, 2001. By

order issued October 26, 2001, the District's motion for

extension w as granted, and the parties were ordered to file

their proposed recommended orders no later than November 5,

2001. Both parties filed Proposed Recommended Orders on

November 5, 2001.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record in this proceeding, the

following findings of fact are made:

I. PARTIES

1. Petitioner Becky Ayech is a resident of Sarasota

County and a citizen of the State of Florida.

2. The District is a water management dis trict in the

State of Florida created pursuant to Section 373.069(1)(d) and

(2)(d), Florida Statutes. The District is the governmental

agency charged with the responsibility and authority to review

and act upon water use permit applications, pursuant to

C hapter 373, Part II, Florida Statutes, and Chapters 40D - 1 and

40D - 2, Florida Administrative Code.

3. Dr. Thomas E. Kelly is the owner of the real property

in Sarasota County on which Pop's Golf and Batting Center is

located, and as such is recognized as t he applicant for and

holder of any WUP issued for the property. Pursuant to a 50 -

year lease with Dr. Kelly, Ralph Perna owns and operates Pop's

Golf and Batting Center and is the person who would be

responsible for day - to - day compliance with the terms of the

WUP at issue. Neither Dr. Kelly nor Mr. Perna formally

intervened in this proceeding.

II. THE PROPOSED PERMIT

4. The proposed permit is for irrigation and sanitary

uses at a golf driving range and batting cage facility called

Pop's Golf and Battin g Center, on Fruitville Road in Sarasota

County. The site leased by Mr. Perna comprises approximately

30 acres, of which the westward 15 acres is taken up by the

Pop's facility. The eastern 15 acres is heavily wooded,

overgrown with brush, and contains a five - acre lake.

5. The majority of the 15 acres used by Pop's is taken

up by the landing area for the driving range. Near the front

of the facility are a tee box and putting green sown with

Bermuda grass. This grassy area, about six - tenths of an acre,

i s the only part of the 30 - acre property requiring irrigation,

aside from some landscape plants in front of the business

office. The landing area is not watered and is not even set

up for irrigation.

6. The Pop's facility is in a low - lying area

historic ally prone to flooding. For this reason, the tee box,

putting green, and business office are elevated about two and

one - half feet higher than the landing area. This elevation

also serves the esthetic purpose of allowing golfers to follow

the flight of th eir drives and watch the balls land.

7. The proposed WUP is a renewal of an existing permit.

The existing permit is premised on the property's prior use

for agriculture, and permits withdrawals of 34,000 gpd on an

average annual basis and 99,000 gpd on a peak monthly basis.

The renewal would authorize withdrawals of 1,700 gpd on an

average annual basis and 4,400 gpd on a peak monthly basis,

reductions of

95 percent and 96 percent, respectively.

8. "Average annual" quantity is the total amount of

water withdrawn over the course of one year. This quantity is

divided by 365 to arrive at the allowable gallons per day.

"Peak monthly" quantity is the amount of water allowed to be

withdrawn during the driest month of the year. This quantity

is divided by 30 to arrive at the allowable gallons per day.

9. Pop's draws water from two wells on the property. A

six - inch diameter well, designated District Identification No.

1 ("DID 1"), is used for irrigation of the tee box and putting

green. A four - inch diameter well, designated District

Identification No. 3 ("DID 3"), is used to supply water to the

two restrooms at the facility.

III. THE PERMIT CONDITIONS

10. The proposed WUP includes the following basic

information: the permittee's name and address; the perm it

number; the date the permit application was filed; the date

the permit was issued; the expiration date of the proposed

permit; the property location; the quantity of water to be

permitted; the withdrawal locations; and the water use

classification propo sed pursuant to the District's permit

application.

11. The District's permit application provides the

applicant with the following five choices regarding proposed

water use: Public Supply; Industrial or Commercial;

Recreation or Aesthetic; Mining or Dewa tering; and

Agriculture. The proposed permit in this case has been

classified as Recreation or Aesthetic.

12. The proposed WUP would allow the permittee to

withdraw from DID 1 an average of 1,600 gpd, with a peak

monthly withdrawal of 4,200 gpd, and to withdraw from DID 3 an

average of 100 gpd, with a peak monthly withdrawal of 200 gpd.

13. The proposed WUP contains four Special Conditions.

Relevant to the issues raised in this proceeding, Special

Condition No. 3 requires the permittee to incorporate b est

water management practices, to limit daytime irrigation to the

greatest extent practicable, to implement a leak detection and

repair program, to conduct a system - wide inspection of the

irrigation system at least once per year, and to evaluate the

feasi bility of improving the efficiency of the current

irrigation system.

14. Special Condition No. 4 requires the permittee to

submit a conservation plan no later than April 30, 2006. The

plan must address potential on - site reuse of water and

external sour ces of reuse water.

15. The proposed WUP also contains 16 Standard

Conditions. Standard Condition No. 2 reserves the District's

right to modify or revoke the WUP following notice and a

hearing, should the District determine that the permittee's

use of t he water is no longer reasonable and beneficial,

consistent with the public interest, or if the water use

interferes with an existing legal use of water.

16. Standard Condition No. 3 provides that the permittee

may not deviate from the terms of the WUP wi thout the

District's written approval.

17. Standard Condition No. 4 provides that, if the

District declares a water shortage pursuant to Chapter 40D - 21,

Florida Administrative Code, the District may alter, modify,

or declare inactive all or any part of th e proposed WUP as

necessary to address the water shortage.

18. Standard Condition No. 5 provides that the District

will collect water samples from DIDs 1 and 3, or require the

permittee to submit water samples to the District, if the

District determines t here is a potential for adverse impacts

to water quality.

19. Standard Condition No. 9 provides that the District

may require the permittee to cease or reduce its withdrawals

if water levels in aquifers fall below minimum levels

established by the Distric t.

20. Standard Condition No. 11 provides that the District

may establish special regulations for Water Use Caution Areas

("WUCAs"), and that the permit will be subject to such

regulations upon notice and a reasonable period to come into

compliance.

21. Standard Condition No. 12 requires the permittee to

install flow metering or other measuring devices to record

withdrawal quantities, when the District deems it necessary to

analyze impacts to the water resource or existing users.

IV. CONDITIONS FOR ISSU ANCE OF PERMIT

22. Generally, the miniscule withdrawals proposed by

Pop's would not fall within the District's permitting

authority, which mostly confines itself to withdrawals of

100,000 gpd or more. However, Rule 40D - 2.041(1)(c), Florida

Administrative Code, requires a permit for any withdrawal from

a well having an outside diameter of six inches or more at the

surface. DID 1 has an outside diameter of six inches.

23. An applicant for a WUP must demonstrate that the

proposed use of water is reasonabl e and beneficial, is in the

public interest, and will not interfere with any existing legal

use of water, by providing reasonable assurances on both an

individual and a cumulative basis that the proposed use of

water satisfies the 14 specific conditions se t forth in Rule

40D - 2.301(1)(a) - (n), Florida Administrative Code, identified in

the subheadings below.

(a) Necessary to Fulfill a Certain Reasonable Demand

24. Pop's is open for business twelve hours per day.

During the summer months, it averag es 100 customers per day.

The tee box and putting green at Pop's are heavily used. When

golfers hit balls from the tee box, they make small gouges, or

divots, in the Bermuda grass. These divots are later filled

with sand, and the grass naturally grows o ver them.

Irrigation is essential to the health of the Bermuda grass,

allowing the application of fertilizer and chemicals to treat

for pests and fungus. The tee box and putting green are

watered as little as possible, because over - watering can

itself le ad to fungus problems with the Bermuda grass.

25. The District uses an irrigation allocation computer

program called AGMOD to determine reasonable average annual

and peak monthly quantities for irrigation in an objective and

consistent manner. Data on t he pump capacity, soil type, the

area to be irrigated, and its geographic location are input,

and AGMOD allocates a quantity of water sufficient to irrigate

for the driest 20 percent of the time, based on 75 years of

historic rainfall data. The AGMOD prog ram allows quantities

for irrigation of the fairways of a typical golf course;

however, Pop's does not have fairways and thus the proposed

permit does not authorize any water for such irrigation.

26. The District's expert, David Brown, credibly

testified that the amounts allocated under this permit are

conservative because the area to be irrigated is a high

traffic area, because the irrigation methodology employed by

Pop's ensures that

75 percent of the water withdrawn from DID 1 will get to the

grass, be cause of the fertilizers and chemicals necessary to

maintain and repair the grass, and because of the elevation of

the area to be watered. Mr. Brown testified that the AGMOD

model uses native soil types, not the fill used to elevate the

tee box and puttin g green, and therefore the soil for the

elevated areas will likely require more water and drain more

quickly than AGMOD indicated.

27. The quantities allocated for withdrawals from DID 3

on an average annual and peak monthly basis are necessary to

fulfill the demand associated with the use of the two

restrooms by Pop's employees and customers.

28. In summary, the amounts of water authorized for

withdrawal under the proposed permit are no more than

necessary to fulfill a certain reasonable demand.

(b) Q uantity/Quality Changes Adversely Impacting Resources

29. The evidence at the hearing established that the

operation of DIDs 1 and 3 pursuant to the terms of the

proposed WUP will cause no quality or quantity changes

adversely impacting the water resource s. The proposed

withdrawal amounts constitute a decrease of 95 percent on an

average annual basis and of

96 percent on a peak monthly basis from the existing permit.

30. The District reasonably presumes that decreases in

permitted withdrawal amounts wil l not cause quantity or

quality changes that will adversely impact the water

resources. Nonetheless, Mr. Brown performed groundwater

modeling to confirm that the District's presumption was

correct in this case.

31. The first step in model development is to study the

geology at the site being studied. Mr. Brown looked at

detailed information from surrounding WUPs and geographic logs

to arrive at a "vertical" view of the stratigraphic column in

place at Pop's, giving him an idea of which zones below Pop's

produce water and which zones confine water and impede its

movement between the producing units. Mr. Brown then looked

to site - specific aquifer test information from other permits

to give him an idea of the "horizontal" continuity of the

system across the area under study.

32. The hydrogeologic profile at Pop's contains five

different aquifer production zones separated by confining

units of clay or dense limestone. Moving downward from the

surface, the production zones are the surficial aquifer, zones

ca lled Production Zone 2 ("PZ - 2") and Production Zone 3 ("PZ -

3") within the intermediate aquifer, and the Suwannee

limestone and Avon Park limestone layers within the Upper

Floridan aquifer system.

33. DID 3 has approximately 96 feet of casing and a

total d epth of approximately 195 feet. It draws water from

PZ - 2, the upper production zone of the intermediate aquifer.

34. DID 1 was built before the District assumed

regulation of well construction and consumptive water use;

therefore, the District does not p ossess specific information

as to its construction. Mr. Brown reviewed historical

documents, including a 1930s report by the United States

Geological Survey ("U.S.G.S.") about irrigation wells drilled

in the location now occupied by Pop's. Mr. Brown's re view led

him to a reasonable conclusion that DID 1 has approximately 75

to 100 feet of casing and is drilled to a total depth of 600

to 700 feet below land surface. The District's water level

measurements confirmed

Mr. Brown's judgment, indicating that t he well penetrates only

through the Suwannee limestone formation in the Upper Floridan

aquifer.

35. His hydrogeological findings in place, Mr. Brown

proceeded to perform a number of analyses using a five - layer

groundwater model based on the "Mod - Flow EM" program developed

by the U.S.G.S. to determine whether the withdrawals

authorized by the proposed WUP would have any adverse impacts

on water resources. The model's five layers simulated the

five aquifer zones found in the area of Pop's. Mr. Brown

perfor med simulations to predict the effect of the combined

pumping of DID 1 and DID 3 at 1,700 gpd on a steady state

basis and at 4,400 gpd for a period of 90 days. A "steady

state" model assumes continuous pumping at the stated quantity

forever. The scenario for pumping 4,400 gpd for 90 days is

called a "transient" model, and simulates the effect of

continuous pumping at the peak month quantity, without

replenishment of the water source, for the stated period.

Both the steady state and transient models used by Mr. Brown

were conservative, in that it is unlikely that their scenarios

would actually occur at Pop's.

36. The modeling predicted that Pop's withdrawals would

have no effect on the surficial aquifer or on the deep Avon

Park limestone formation. Becau se DID 1 is likely to open to

the PZ - 2, PZ - 3, and Suwannee limestone production zones, Mr.

Brown analyzed the steady state and transient conditions for

each zone. The greatest effect predicted by any of the

modeling runs was a drawdown in water levels of approximately

two - hundredths of a foot in the PZ - 3 and Suwannee limestone

zones. This drawdown would extend no farther than the

boundary of Pop's property.

37. All of the predicted drawdowns were smaller than the

natural fluctuations in water levels caus ed by changes in

barometric pressure. Thus, any possible effects of

withdrawals at the quantities proposed in the WUP would be

lost in the background noise of the natural water level

fluctuations that occur in all confined aquifers.

38. The water level o r pressure within subterranean

production zones is referred to as the "head." For water to

move from one zone to another, there must be a difference in

head between the zones. The evidence established that

groundwater quality declines with depth at the P op's site, but

that the heads in the PZ - 2, PZ - 3, and Suwannee limestone

production zones are essentially the same in that area. The

similarity in heads means that there is no driving force to

move water between the zones and thus no potential for adverse

water quality changes caused by DID 1's being open to multiple

production zones.

39. In summary, the amounts of water authorized for

withdrawal under the proposed permit will not cause quantity

or quality changes which adversely impact the water resources ,

including both surface and ground waters.

(c) Adverse Environmental Impacts to Wetlands, Lakes,

Streams, Estuaries, Fish and Wildlife, or Other Natural

Resources

40. Mr. Brown's model indicated there would be no

drawdown from the surficial aquifer, where there would be the

potential for damage to water related environmental features

and/or the fish and wildlife using those features as habitat.

Petitioner offered no evidence indicating that the proposed

water use will cause adverse environmental imp acts.

(d) Deviation from Water Levels or Rates of Flow

41. The District has not established minimum flows or

levels for the area including Pop's. Therefore, Rule 40D -

2.301(1)(d), Florida Administrative Code, is not applicable to

this WUP.

(e) Utili zation of Lowest Quality of Water

42. Ninety percent of the water withdrawn from DID 1

will come from the Suwannee limestone formation and is highly

mineralized and of lower quality than the water in PZ - 2 or PZ -

3.

43. DID 3 draws its water from PZ - 2. As noted above,

DID 3 provides water to the two restrooms on the premises of

Pop's. Because its water is used in the public restrooms, DID

3 is considered a limited public supply well, the water from

which must meet potable standards. Mr. Brown testified that,

though PZ - 2 provides water of higher quality than do the zones

beneath it, that water only barely meets potable standards.

Lower quality water than that obtained from PZ - 2 would require

extensive treatment to meet potable standards.

44. Reuse or re claimed water is unavailable to Pop's

under any rational cost - benefit analysis. There is a

reclaimed water transmission network in Sarasota County, but

the nearest point of connection is more than one mile away

from Pop's. The wetland lake on Pop's site is unsuitable

because extensive land clearing, pipeline construction, and

intensive filtration would be required to use its water. Such

a project would not be technically or economically feasible

for the small amount of water in question.

45. The evidenc e establishes that Pop's will utilize the

lowest quality water available.

(f) Saline Water Intrusion

46. The evidence demonstrated that the proposed use will

not significantly induce saline water intrusion. Saline water

intrusion occurs in the Avon P ark limestone formation.

Withdrawals must cause a drawdown in the Avon Park formation

to further induce saline water intrusion. DID 1 does not

penetrate into the Avon Park formation. Mr. Brown's modeling

indicated that the withdrawals allowed under the proposed WUP

will not cause any drawdown in the Avon Park formation.

(g) Pollution of the Aquifer

47. The proposed use will not cause pollution of the

aquifer. As noted above, absent a difference in head or some

driving force, there is no potential for water to be exchanged

between the confined producing zones. Any small quantity that

might be exchanged due to the pumping of the well would be

removed by the same pumping.

48. There is no potential for pollution of the aquifer

by storm water moving thro ugh DID 1 or DID 3 because there is

no head differential or driving force to move storm water down

into the wells. The District's historic water level

measurements indicated that during the rainy season, when the

site is most likely to be inundated, water levels in the wells

are 0.15 feet above land surface. The well structures extend

at least one foot above ground level and are sealed with

plates and gaskets.

(h) Adverse Impacts to Existing Off - site Land Uses

49. The proposed use will not adversely imp act off - site

land uses. The District's reasonable practice, when

authorizing renewal of the permit for an existing well, is to

consider off - site impacts only where the applicant seeks to

increase withdrawal amounts. In this case, the applicant is

request ing a substantial decrease in the amount of withdrawals

allowed under the renewed WUP.

(i) Adverse Impacts to Existing Legal Withdrawals

50. The proposed use will not adversely affect any

existing legal withdrawals of water. The District's

reasonable pr actice, when authorizing renewal of the permit

for an existing well, is to consider adverse impacts to

existing legal withdrawals only where the applicant seeks to

increase withdrawal amounts. In this case, the applicant is

requesting a substantial decrea se in the amount of withdrawals

allowed under the renewed WUP.

51. As noted above, Mr. Brown's modeling indicated that

any drawdowns caused by these withdrawals are so small as to

be lost within the natural fluctuations of water levels in the

aquifer, eve n at the edge of Pop's 30 - acre site. Petitioner's

well is more than ten miles away from the wells at Pop's.

(j) Utilization of Local Resources to Greatest Extent

Practicable

52. The proposed use of water will use local resources

to the greatest exte nt practicable, because the water

withdrawn pursuant to the permit will be used on the property

where the withdrawal occurs.

(k) Water Conservation Measures

53. The proposed use of water incorporates water

conservation measures. Pop's uses a commercial irrigation

system with low volume misters, spray tips and sprinkler

heads, and a rain gauge that automatically shuts down the

system if one - eighth to one - quarter inch of rain falls. Mr.

Perna testified that the automatic shutdown system rarely has

the opp ortunity to work, because he manually shuts down the

system if the weather forecast calls for rain.

54. Mr. Perna testified that the typical golf range

irrigates from 30 to 45 minutes per sprinkler head. Pop's

irrigates roughly eight minutes per head. O verwatering can

cause fungus on the Bermuda grass, giving Pop's a practical

incentive to minimize irrigation. Pop's irrigates only the

high traffic areas of the tee box and putting green, not the

landing area.

55. In its Basis of Review, the District has adopted a

water conservation plan for golf courses located in the

Eastern Tampa Bay Water Use Caution Area ("WUCA"). Basis of

Review 7.2, subsection 3.2. Pop's is located in the Eastern

Tampa Bay WUCA, and has implemented the items that golf

courses are required to address in their conservation plans.

(l) Reuse Measures

56. Given the small total irrigated area and the

efficiency of the irrigation methods employed by Pop's, there

is no realistic opportunity to capture and reuse water on the

site. There is no reuse water realistically available from

other sources. Thus, Pop's incorporates reuse measures to the

greatest extent practicable.

(m) Waste

57. Given the reduction in permitted quantities and the

limited scope of the irrigation, the proposed u se will not

cause waste.

(n) Otherwise Harmful to District Resources

58. No evidence was presented that the use of this water

by Pop's will otherwise harm the water resources of the

District.

V. PETITIONER'S EVIDENCE

59. Petitioner testified on her own behalf and presented

the testimony of Ellen Richardson. Ms. Richardson testified

that she had once seen a sprinkler running at Pop's during a

rainfall, though she conceded that it had just begun to rain

when she saw it. Ms. Richardson also testified tha t she had

more than once seen sprinklers running at Pop's during

daylight hours. However, Mr. Brown testified that some

daytime irrigation is permissible under the District's

watering restrictions, where heat stress and applications of

fertilizers and che micals make daytime watering necessary.

These conditions applied to Pop's.

60. Petitioner's chief concern was with her own well.

Since the late 1980s, she has experienced intermittent water

outages. The District has repeatedly worked with Petitioner

on her well problems, and Petitioner feels frustrated at the

District's inability to solve them. However, the District's

evidence established that Petitioner's problems with water

levels in her own well could not possibly be caused or

exacerbated by the w ithdrawals at Pop's, ten miles away. To

the extent that the renewal of this WUP will result in drastic

decreases in permitted withdrawals, Petitioner's position

would be improved even accepting her theory that these

withdrawals have some impact on her wel l.

61. In her petition, Petitioner alleged that there were

disputed issues of material fact as to eight of the fourteen

permitting criteria discussed above. While she engaged in

spirited cross - examination of the District's witnesses,

Petitioner offered n o affirmative evidence showing that the

any of the conditions for issuance of permits were not met.

62. Petitioner's chief attack was that Rule 40D -

2.301(1), Florida Administrative Code, requires "reasonable

assurances" that the permittee will fulfill the listed

conditions, and that the applicant here could not supply

"reasonable assurances" because of his long history of failure

to comply with the conditions of prior permits. As evidence,

Petitioner offered the District's historic record of this

permit, which indeed was replete with correspondence from the

District requesting records related to pumpage and water

quality, and apparent silence from Dr. Kelly in reply.

63. However, the record also explains that the failure

to provide data was not the resu lt of obduracy, but because

farming had ceased on the property. When the less water

intensive use of the driving range commenced approximately

nine years ago, the owner ceased monitoring activities. The

District, under the impression that farming was sti ll taking

place on the property, continued to request pumpage and water

quality data for several years after the conversion. It

appears from the record that

Dr. Kelly, an absentee landlord, simply did not bother to

respond. Dr. Kelly's past discourtesy does not rise to the

level of calling into question the reasonable assurances

provided in this permit renewal application, particularly

where the lessee,

Mr. Perna, has every reason to ensure that the conditions of

the WUP are fulfilled.

64. The evidence did not prove that Petitioner

participated in this proceeding for an improper purpose -- i.e. ,

primarily to harass or to cause unnecessary delay or for

frivolous purpose or to needlessly increase the cost of

licensing or securing the approval of the permit renewal

application. To the contrary, the evidence was that

Petitioner participated in this proceeding in an attempt to

raise justifiable issues as to why the permit renewal

application should not be granted. In particular, Petitioner

raised an important policy issue as to whether an applicant's

history of failure to comply with permit conditions should be

considered by the District in assessing the reasonableness of

the applicant's assurances of future compliance. The District

contended that the applica nt's compliance history is

irrelevant. While the District ultimately prevailed on the

substantive issue, its procedural claim of irrelevance was

rejected, and Petitioner was allowed to attempt to prove her

contention as to Dr. Kelly's noncompliance. It i s not found

that Petitioner's litigation of this claim was frivolous.

CONCLUSIONS OF LAW

65. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to

this proceeding, pursuant to Sections 120.569 and 120. 57(1),

Florida Statutes.

66. The District is a water management district in the

State of Florida created and existing pursuant to

Section 373.069, Florida Statutes, and other applicable law.

The District is the governmental agency charged with the

respo nsibility and authority to review and act upon the WUP

application at issue, pursuant to Chapter 373, Part II,

Florida Statutes, and Chapters 40D - 1 and 40D - 2, Florida

Administrative Code.

67. This permit application is governed by the

conditions for issuance found in Chapter 373, Part II, Florida

Statutes, and Chapter 40D - 2, Florida Administrative Code, and

in the Basis of Review for Water Use Permit Applications,

dated April 18, 2001 (the "Basis of Review"), adopted by

reference in Rule 40D - 2.091, Fl orida Administrative Code.

68. The applicant, asserting an affirmative entitlement

to issuance of a water use permit by the District, has the

burden of showing by a preponderance of the credible and

credited evidence that he is entitled to that permi t.

Department of Transportation v. J.W.C. Company, Inc. , 396 So.

2d 778, 789 (Fla. 1st DCA 1981). In the context of this

proceeding, the District undertook the burden of showing that

the applicant provided reasonable assurances that the

applicable condit ions for issuance of the water use permit

have been satisfied, in accordance with the applicable

statutes and rules and the Basis of Review.

69. If the applicant makes a prima facie showing of

reasonable assurances, the burden shifts to Petitioner to

present evidence of equivalent quality. J.W.C. Company , 396

So. 2d at 789. Petitioner cannot carry the burden of

presenting contrary evidence by mere speculation concerning

what "might" occur. Chipola Basin Protective Group, Inc. v.

Department of Envir onmental Regulation , 11 FALR 467, 480 - 81

(December 30, 1988).

70. The standard for applicant’s burden of proof is one

of reasonable assurances, not absolute guarantees, that the

applicable conditions for issuance of the permit have been

satisfied. M anasota - 88, Inc. v. Agrico Chemical Co. and

Florida Department of Environmental Regulation , 12 FALR 1319,

1325 (February 19, 1990).

71. "Reasonable assurances" contemplates a substantial

likelihood that the project will be successfully implemented.

M etropolitan Dade County v. Coscan Florida, Inc. , 609 So. 2d

644, 648 (Fla. 3d DCA 1992).

72. In the context of potential for harm to state

natural resources, Florida courts have allowed agencies

flexibility in interpreting "reasonable assurances" and in

applying individual permit standards based upon the totality

of the circumstances. Booker Creek Preservation, Inc. v.

Mobil Chemical Co. , 481 So. 2d 10, 13 (Fla. 1st DCA 1986).

73. The applicant is not required to eliminate all

contrary possibil ities or to address impacts which are only

theoretical and could not be measured in real life; rather, an

applicant must provide reasonable assurances which take into

account contingencies that might reasonably be expected.

Hoffert v. St. Joe Paper Co. , 1 2 FALR 4972, 4987 (October 29,

1990).

74. To meet his burden, the applicant must meet the

requirements of Section 373.223, Florida Statutes, which

provides in relevant part:

(1) To obtain a permit pursuant to the

provisions of this chapter, the applicant

must establish that the proposed use of

water:

(a) Is a reasonable - beneficial use as

defined in s. 373.019(13);

(b) Will not interfere with any

presently

existing legal use of water; and

(c) Is consistent with the public

interes t.

75. "Reasonable - beneficial use" is defined in Section

373.019(13), Florida Statutes, as "the use of water in such

quantity as is necessary for economic and efficient

utilization for a purpose and in a manner which is both

reasonable and consisten t with the public interest."

76. The District has adopted Rule 40D - 2.301, Florida

Administrative Code, which implements Section 373.223(1),

Florida Statutes. In relevant part, Rule 40D - 2.301, Florida

Administrative Code, provides as follows:

(1) In or der to obtain a Water Use

Permit,

an Applicant must demonstrate that the

water

use is reasonable and beneficial, is in the

public interest, and will not interfere

with

any existing legal use of water, by

providing

reasonable assurances, on both an

ind ividual

and a cumulative basis, that the water use:

(a) Is necessary to fulfill a certain

reasonable demand;

(b) Will not cause quantity or quality

changes which adversely impact the water

resources, including both surface and

ground waters;

(c ) Will not cause adverse environmental

impacts to wetlands, lakes, streams,

estuaries, fish and wildlife, or other

natural resources;

(d) Will comply with the provisions of

4.3 of the Basis of Review described in

40D - 2.091 [minimum flows and levels];

(e) Will utilize the lowest quality

water the Applicant has the ability to use;

(f) Will not significantly induce saline

water intrusion;

(g) Will not cause pollution of the

aquifer;

(h) Will not adversely impact offsite

land uses existing at the time of the

application;

(i) Will not adversely impact an

existing legal withdrawal;

(j) Will utilize local resources to the

greatest extent practicable;

(k) Will incorporate water conservation

measures;

(l) Will incorporate reuse me asures to

the greatest extent practicable;

(m) Will not cause water to go to waste;

and

(n) Will not otherwise be harmful to the

water resources within the District.

77. The District has also adopted the Basis of Review,

which clarifies and supplements the conditions for issuance of

water use permits set forth in Rule 40D - 2.301, Florida

Administrative Code.

78. Based on the findings of fact set forth above, it is

concluded that the District, on behalf of the applicant,

established a prima f acie case of the applicant's entitlement

to the proposed WUP. Petitioner failed to present any

evidence relevant to the issues related to the proposed WUP or

to prove the facts alleged in her petition.

79. The applicant provided the District with reason able

assurances that the applicable conditions for issuance have

been met and thus has established his entitlement to the

proposed WUP by a preponderance of the evidence.

80. Petitioner did not provide credible evidence that

the proposed WUP would violat e any of the applicable

permitting statutes or rules, or any other applicable law.

81. Subsequent to the hearing, the District filed a

motion for award of attorney's fees and costs, pursuant to

Section 120.595, Florida Statutes. The cited statute provid es

for an award of attorney's fees and costs to the prevailing

party, where it is determined that the non - prevailing adverse

party has participated in the proceeding for an improper

purpose. "Improper purpose" is defined as "participation in a

proceeding

. . . primarily to harass or to cause unnecessary delay or for

frivolous purpose or to needlessly increase the cost of

licensing or securing the approval of an activity." For the

reasons stated in the Findings of Fact above, the District's

motion is deni ed. See , e.g. , Paul Still v. New River Solid

Waste Association and Department of Environmental Protection ,

DOAH Case No. 01 - 1033 (August 7, 2001).

RECOMMENDATION

Upon the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the South west Florida Water

Management District enter a final order determining that Dr.

Thomas E. Kelly has satisfied the requirements of Section

373.223, Florida Statutes, and Rule 40D - 2.301, Florida

Administrative Code, regarding conditions for issuance of

water use permits, and that the District issue Water Use

Permit No. 20005687.003 to

Dr. Thomas E. Kelly.

DONE AND ENTERED this 27th day of November, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

LAWRENCE P. STEVENSON

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

123 0 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 27th day of November, 2001.

COPIES FURNISHED:

Becky Ayech

421 Verna Road

Sarasota, Florida 34240

Jack R. Pepper, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brook sville, Florida 34604

E. D. "Sonny" Vergara, Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609 - 6899

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptio ns 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.