02-000282 Alan Behrens And Desoto Citizens Against Pollution, Inc. vs. Michael J. Boran And Southwest Florida Water Management District Status: Closed Recommended Order on Monday, July 29, 2002.

Summary: Application to modify Water Use Permit to add well and increase use, but decrease overall per acre use, to irrigate sod farm. Evidence proved all conditions for issuance. Request for prevailing party attorneys fees denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALAN BEHRENS and DeSOTO CITIZENS )

AGAINST POLLUTION, INC., )

)

Petitioners, )

)

vs. ) Case No. 02 - 0282

)

MICHAEL J. BORAN and SOUTHWEST )

FLORIDA WATER MANAGEMENT DISTRICT, )

)

Respondents. )

_______________________________ __ __)

RECOMMENDED ORDER

On May 29, 2002, final administrative hearing was held in

this case in Sarasota, Florida , before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner Alan Behrens:

Alan Behrens, pro se

4070 Southwest Armadillo Trail

Arcadia, Florida 34266

For Respondent Southwest Florida Water Management

District:

Mark F. Lapp, Esquire

Mary Beth Russell, Esquire

Southwest Florida Water Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

For Respondent Michael J. Boran:

Douglas P. Manson, Esquire

David M. Pearce, Esquire

Carey, O’Malley, Whitaker & Manson, P.A.

712 South Oregon Avenue

Tampa, Florida 33606

STATEMENT OF THE ISSUE

T he issue in this case is whether Water Use Permit (WUP)

Application Number 20009478.005 meets the conditions for

issuance as established in Section 373.223, Florida Statutes

(2001), Florida Administrative Code Rule 40D - 2.301 (April

2001), and the District’ s Basis of Review for Water Use Permit

Applications.

PRELIMINARY STATEMENT

On September 11, 2000, Respondent Michael J. Boran

(Boran) filed an application with the Southwest Florida Water

Management District (the District), requesting a modification

of h is already existing Water Use Permit (WUP) Number

20009478.004. The application received its own designation:

WUP Number 20009478.005. On November 16, 2001, the District

issued a Notice of Proposed Agency Action for approval of the

application, with fina l approval contingent upon no objection

being filed within the time frames provided in the Notice.

After receiving the Notice of Proposed Agency Action,

Petitioners Alan Behrens (Behrens) and DeSoto Citizens Against

Pollution, Inc. (DCAP), a Florida not - f or - profit corporation,

timely filed a joint petition for administrative hearing on

December 10, 2001. Behrens is the President of DCAP. On

December 18, 2001, the District dismissed the joint petition

for failure to comply with the requirements of Florida

Administrative Code Rule 28 - 106.201(2) but gave Behrens and

DCAP leave to file an amended petition on or before January 2,

2002. Behrens and DCAP filed their amended petition on

December 31, 2001.

The District referred the amended petition to the

Divisi on of Administrative Hearings on January 15, 2002. On

January 18, 2002, Boran moved to dismiss the amended petition

on the grounds that it was not verified as required by Section

403.412(5), Florida Statutes (2001), and that it contained

insufficient alle gations of standing.

On February 5, 2002, the amended petition was dismissed,

with leave given to amend. On February 7, 2002, the case was

set for final hearing on May 29 - 31, 2002, in Sarasota,

Florida. On February 12, 2002, Behrens and DCAP filed the ir

second amended petition. On February 20, 2002, Boran moved to

dismiss the second amended petition, again alleging that

Behrens and DCAP did not verify the petition or raise

sufficient allegations of standing. Boran's motion to dismiss

the second amend ed petition was denied on March 12, 2002.

On April 4, 2002, Boran moved to compel answers to

certain questions asked and production of certain documents

requested during the deposition duces tecum of DCAP’s

designated representative, Alan Behrens, on Fe bruary 28, 2002.

On April 12, 2002, just prior to a hearing on the motion to

compel, DCAP filed a notice of voluntary withdrawal of its

petition.

On May 17, 2002, before entry of an order dropping DCAP

as a party, Boran filed a Motion for Summary Recomme nded Order

and Sanctions, which sought sanctions against both Behrens and

DCAP for filing petitions and participating in this proceeding

allegedly for improper purpose.

Behrens, Boran, and the District filed a Joint Pre -

Hearing Stipulation on May 17, 200 2, which contained a section

stating that Boran's Motion for Summary Recommended Order and

Sanctions was the only one which remained pending as of that

date. By way of response on May 22, 2002, Behrens filed his

own Motion for Summary Recommended Order an d Sanctions. Three

more motions were filed prior to final hearing: Boran's

Motion in Limine; the District's Motion to Quash Subpoenas;

and Boran's Motion to Quash Subpoenas.

At the outset of final hearing on May 29, 2002, the

parties agreed to waive or al argument on the merits of their

respective motions for summary recommended order and

sanctions. The other motions were then resolved on the final

hearing record.

Boran offered the testimony of two witnesses: Todd

Boran; and expert witness Dale Hardin , P.G., who was accepted

as an expert in the fields of hydrogeology and water use

permitting. Boran’s Exhibits 1 through 20 were admitted into

evidence without objection.

The District offered the testimony of expert witness

David Brown, P.G., who was a ccepted as an expert in the fields

of geology, hydrogeology and water use permitting and well

construction. The District’s Exhibits 1 through 10, 13, 14,

17 through 19, 21, 23 through 25, 27, 29, 34 (Behrens’ May 2,

2002 deposition), and 37 through 40 wer e admitted without

objection.

Behrens testified on his own behalf and offered two

exhibits into evidence. Ruling was reserved on the District's

relevance objection to Behrens’ Exhibit 1; the relevance

objection is now overruled, and the exhibit is admitt ed.

Behrens’ Exhibit 3 was admitted over relevance objections at

final hearing.

After presentation of evidence, Boran requested a

transcript of the final hearing, and the parties requested and

were given 15 days from the filing of the transcript in whic h

to file proposed recommended orders (PROs). The Transcript

was filed on June 11, 2002, making PROs due no later than June

26, 2002. On the deadline, Boran and the District filed a

Joint PRO, and Petitioner filed Proposed Findings of Fact and

Conclusion s of Law.

On July 1, 2002, Petitioner filed what he entitled a

Memorandum of Law in Support of Proposed Recommended Order.

Actually, it was a reply to the Joint PRO filed by Boran and

the District, who filed a Joint Motion to Strike on July 3,

2002. Pe titioner did not file a response in the time allotted

by Florida Administrative Code Rule 28 - 106.204(1), and the

Motion to Strike is granted.

FINDINGS OF FACT

The Parties

1. Petitioner, Alan Behrens, owns real property and a

house trailer located at 4070 Southwest Armadillo Trail, in

Arcadia, Florida. Behrens uses a two - inch well as the primary

source of running water for his trailer.

2. Boran and his family operate a ranch and sod farm in

Arcadia, Florida, under the limited partnership of Boran Ranch

and Sod, Ltd. Boran uses several different on - site wells to

irrigate the farm. See Findings 12 - 17, infra .

3. The District is the administrative agency charged

with the responsibility to conserve, protect, manage, and

control water resources wit hin its boundaries pursuant to

Chapter 373, Florida Statutes, and Florida Administrative Code

Rule Chapter 40D.

Permit History

4. Boran’s property is a little over 1,000 acres in

size, on which he has raised cattle and grown sod for

approximately the past four years. Before Boran owned the

property, its prior occupants used the land for growing fall

and spring row crops (primarily tomatoes). Boran's cattle and

sod farm uses less water than was used by previous owners and

occupants.

5. In 1989, the original permit holders could make

annual average daily withdrawals of 309,000 gallons but also

were allowed a maximum daily withdrawal of 6,480,000 gallons.

In 1992, the permitted withdrawals increased to an annual

average daily quantity of 2,210,000 ga llons, with a peak

monthly limit of 3,596,000 gallons per day.

6. On December 14, 1999, Boran received an agricultural

water use permit (WUP No. 20009478.004) from the District.

This current existing permit expires on December 14, 2009.

The current p ermit grants Boran the right to withdraw

groundwater for his agricultural use in the annual average

daily quantity of 1,313,000 gallons, and with a peak month

daily quantity of 3,177,000 gallons.

7. On September 11, 2000, Boran filed an application to

modify his existing water use permit. Modification of Boran's

existing permit does not lengthen the term of the permit, and

the scope of the District's review was limited to those

features or changes that are proposed by the modification.

8. The propo sed modification would allow Boran to

increase his annual average daily quantity by 175,000 gallons,

and increase the peak month daily quantity by 423,900 gallons,

for the irrigation of an additional 129 acres of sod. With

the proposed increase, the new a nnual average daily quantity

will be 1,488,000 gallons, and the new peak month daily

quantity will be 3,600,900 gallons.

9. The proposed modification also provides for the

construction of an additional well (DID #6) on the

southeastern portion of prope rty, which will withdraw

groundwater from the upper Floridan aquifer.

10. The proposed agency action also entails a revision

of the irrigation efficiency rating for the entirety of Boran

Ranch. Irrigation efficiency refers to the ability to direct

wat er to its intended target, which in this case means the

root zone of the sod, without losing water to evaporation and

downward seepage. Under the proposed permit modification,

Boran will increase the entire farm’s water efficiency from 65

percent to 75 pe rcent.

11. As discussed further in the Conditions for Issuance

section infra , the District's AGMOD modeling program uses this

efficiency rating as part of its determination of the

appropriate quantities for withdrawals. The higher the

efficiency rating , the less water received under a permit.

Because the efficiency rating increased, the application rate

for water decreased from 42" per year to 36.4" per year for

the entire Boran Ranch.

Boran's Wells

12. There are six well sites (labeled according to

District identification numbers, e.g. , DID #3) existing or

proposed on Boran’s property.

13. DID #1 is an eight - inch well located in the

northeastern portion of the property. DID #1 provides water

solely from the intermediate aquifer. DID #2 is an eight - inch

well located in the middle of the property. DID #2 withdraws

water from both the intermediate and upper Floridan aquifers.

Both DID #1 and DID #2 were installed in 1968, and predate

both the first water use permit application for the farm and

the District's water use regulatory system.

14. DID #4 is a twelve - inch well located in the north -

central part of the property and solely taps from the upper

Floridan aquifer. DID #4 had already been permitted and

constructed as of the date of the pr oposed modification

application at issue in this case.

15. DID #3 and DID #5 are twelve - inch wells which have

already been permitted for the southern and northern portions

of the property, respectively, but have not yet been

constructed. Both wells wi ll withdraw water only from the

upper Floridan aquifer.

16. DID #6 is a proposed twelve - inch well to be located

on the southeastern portion of the property and to irrigate an

additional area of sod. DID #3, #5, and #6 will all be cased

to a depth of a pproximately 540 feet, and only open to the

upper Floridan aquifer to a depth of approximately 940 feet.

By casing the well with pipe surrounded by cement, these wells

will be sealed off to all aquifers above 540 feet, including

the intermediate aquifer.

17. All the wells on the property are used to irrigate

sod. The wells have artesian flow, but utilize diesel pumps

to provide consistent flow pressure year - round throughout the

fields (some of which can be a mile and a half from a well).

Since runnin g the pumps costs money, there is an economic

incentive not to over - irrigate. In addition, over - irrigation

can lead to infestations of fungi and insects, and eventually

cause the grass to rot and die. As a result, the fields

receive irrigation only when dry areas in the fields appear

and the grass begins to wilt.

Boran Ranch Operations and Management Practices

18. Boran Ranch primarily grows three kinds of grasses:

St. Augustine Floratam; St. Augustine Palmetto; and Bahia.

(Boran also is experiment ing on a smaller scale with common

paspalum and common Bermuda.) The Bahia grass, which is what

also grows in the ranch's cattle pasture, does not require

irrigation; the St. Augustine grasses are less drought -

resistant and require irrigation at times. T he majority of

the sod sold to residential installers (who ordinarily work

for landscape companies) is a St. Augustine grass. Commercial

or governmental roadside installations favor Bahia.

Currently, Boran sells more Bahia than St. Augustine. But

market demand determines which types of grass are produced on

the farm. As residential use and demand for St. Augustine in

southwest Florida increases, so would the proportion of the

farm used for growing St. Augustine grass.

19. Boran grows sod year - round b ecause of a large demand

for the product in Ft. Myers and Cape Coral, and to a lesser

extent in Punta Gorda and Port Charlotte. Sod helps control

erosion and is considered to have aesthetic value. There also

was some evidence that sod lowers the ambient temperatures, as

compared to bare dirt; but the evidence was not clear how sod

would compare to other ground cover in lowering temperatures.

20. When subsurface seepage irrigation is being used, a

sod field must be disked and "laser - leveled" to the prop er

elevation, with a slight slope created in the field to help

ensure proper irrigation and drainage, before it can be used

for sod production.

21. The fields are laser - leveled before the irrigation

system is installed and the crop is planted. The perf orated

irrigation supply lines of Boran Ranch’s subsurface irrigation

system, also known as the "tile," run the opposite direction

of the slope of the field and perpendicular to the main

irrigation line.

22. Once the subsurface irrigation system is inst alled,

the field receives sprigs of sod, which are then watered and

"rolled" to pack them into the ground. Approximately three

months after a field has been rolled, the new sod is then

periodically fertilized, sprayed and mowed. Sod takes

approximately o ne year to grow before it may be harvested.

The sod at Boran Ranch is harvested via tractor with a

"cutter" on its side, which cuts underneath the grass, lifts

it up onto a conveyor belt, and then onto a pallet for

shipping.

23. There are four differen t types of irrigation systems

used for growing sod in Florida: (1) pivot systems which rely

on sprinklers attached to overhead lines that rotate around a

fixed point; (2) overhead rain guns which utilize motorized

hydraulic pressure to spray a field; (3) above - ground seepage;

and (4) subsurface irrigation systems (which can also be used

to drain excess water from fields during large rain events).

The most efficient irrigation system used for sod in Florida

is the subsurface irrigation system.

24. Boran Ranch first started the subsurface irrigation

system approximately four years ago. Since that time, Boran

Ranch has converted almost all its fields to the subsurface

irrigation system, at a cost of approximately $1150 to $1350

per acre. As a result of t his conversion process, Boran Ranch

now uses less water per acre of sod.

25. The subsurface irrigation system delivers water from

a well to a water control structure (also known as the "box")

via the imperforated main irrigation line. The perforated

li nes of the "tile" are connected to this main irrigation line

at a 90 - degree angle.

26. The largest portion of the "box" sits underground.

Once the water in the main irrigation line reaches the "box,"

water builds up behind removable boards contained in the box,

creating the backpressure which forces water out into the

tile. Water flows out from the tile to maintain the water

table level at or near the root zone of the sod.

27. Subsurface irrigation systems only function on

property that has a hardpa n layer beneath the soil. The

hardpan layer acts as a confining unit to minimize the

downward seepage of water, thereby allowing the subsurface

irrigation system to work efficiently. Behrens questioned

whether Boran Ranch has the necessary hardpan based on Todd

Boran's reliance on hydrogeologists for this information. But

the expert testimony of Boran's hydrogeology consultant and

the District's hydrogeologist confirmed Todd Boran's

understanding.

28. Typically, the highest board in the box has the sa me

height as the top of the field. Once the water level inside

the box surpasses the height of the last board, water will

spill over that board into the remainder of the box and then

out another main irrigation line to the next box and set of

tiles. By r emoving some of the boards in the box, Boran can

bypass irrigating certain sections of his fields in favor of

other areas.

29. Excess water from the fields flows into field

ditches which lead to wetlands on the property. If water

leaves the wetlands du ring episodes of heavy rains, it flows

downstream to the Peace River.

Conditions for Issuance

30. Boran Ranch is located in southwestern DeSoto

County, in an area designated by the District as the Southern

Water Use Caution Area (SWUCA). The District created the

SWUCA, which covers 5,000 square miles, after first

determining that the groundwater resources of eastern Tampa

Bay and Highlands Ridge regions were stressed and creating the

Eastern Tampa Bay Water Use Caution Area (ETBWUCA) and

Highlands Ridg e Water Caution Area (HRWUCA). Both the ETBWUCA

and the HRWUCA are contained within the larger boundaries of

the SWUCA. Within the ETBWUCA is an area along the coasts of

portions of Hillsborough, Manatee, and Sarasota counties known

as the Most Impacted Area (MIA). Special permitting rules

exist for new projects located within the ETBWUCA, HRWUCA, and

MIA, but not within the remainder of the "undifferentiated"

SWUCA. Boran Ranch is located in this "undifferentiated" area

of the SWUCA.

31. Behrens too k the position that Boran should not be

permitted any additional water use until special permitting

rules are promulgated for the "undifferentiated" SWUCA. But

Behrens could cite no authority for such a moratorium.

Meanwhile, the more persuasive evidence was that no such

moratorium would be reasonable or appropriate.

32. The evidence proved that the quantities authorized

by the proposed modification are necessary to fulfill a

certain reasonable demand, as required by Rule 40D -

2.301(1)(a). Boran sough t additional water quantities through

the permit modification application in order to irrigate an

additional 129 acres of its sod farm. The application

reflects a need for additional water, associated with

additional acreage added to the farm. Boran used the

District's AGMOD spreadsheet model, which is based on a

mathematical methodology known as the modified Blainey - Criddle

method, to determine the reasonable quantities for Boran's

specific agricultural use.

33. AGMOD inputs into its computations the following

variables: (1) geographic location of the proposed use; (2)

type of crop grown; (3) irrigation (efficiency); (4) pump

capacity; (5) soil type; and (6) number of acres to be

irrigated. AGMOD is a generally accepted tool used for

determining the allocation of water quantities for

agricultural use. In the instant case, the AGMOD calculations

incorporated 87 years of rainfall data and its results reflect

the quantities necessary in the event of a two - in - ten - year

drought. Similarly, the AGMOD calc ulations in the instant

case take into account the change in irrigation efficiency

from 65 percent to 75 percent.

34. Behrens suggested that Boran should not be allowed

to use any more water until minimum flows and levels are

established for the interm ediate aquifer in the vicinity.

However, Behrens could cite no authority for imposing such a

moratorium. Meanwhile, the more persuasive evidence was that

no such moratorium would be reasonable or appropriate. See

Finding 49 and Conclusion 86, infra .

3 5. Behrens also suggested that inputs to AGMOD should

assume more Bahia and less St. Augustine grass so as to reduce

the resulting amount of reasonable demand. He also suggested

that Boran's reasonable demand should not take into account

possible future increases in St. Augustine grass production

based on possible future market demand increases. But it does

not appear that the District requires an applicant to

differentiate among various types of grasses when inputting

the crop type variable into the AGM OD model for purposes of

determining reasonable demand. See Water Use Permit

Information Manual, Part C, Design Aids (District Exhibit 2C),

Table D - 1, p. C4 - 9.

36. The evidence proved that Boran demonstrated that the

proposed use will not cause quanti ty or quality changes that

adversely impact the water resources, on either an individual

or cumulative basis, including both surface and ground waters,

as required by Rule 40D - 2.301(1)(b).

37. Data from water quality monitoring reports indicate

that wa ter quality at Boran Ranch and in the region has

remained fairly consistent. There were no statistically

significant declining trend in water levels in the region.

Behrens admitted that water quality in his well has been

consistently good.

38. One app arent increase in total dissolved solids and

chlorides in DID #1 was explained as being a reporting error.

Boran inadvertently reported some findings from DID #2 as

coming from DID #1. Until the error was corrected, this made

it appear that water quality from DID #1 had decreased

because, while DID #1 is open only to the intermediate

aquifer, DID #2 is open to both the intermediate aquifer and

the upper Florida aquifer, which has poorer water quality.

39. Both Boran and the District used the MODFLOW mo del,

a generally accepted tool in the field of hydrogeology, to

analyze withdrawal impacts. The purpose of modeling is to

evaluate impacts of a proposed use on the aquifer tapped for

withdrawals, and any overlying aquifers including surficial

aquifers con nected to lakes and wetlands. MODFLOW uses

mathematics to simulate the different aquifer parameters for

each production unit determined from aquifer performance

testing.

40. During the permit application process, both Boran

and the District conducted g roundwater modeling by simply

adding the proposed new quantities to models developed for

Boran's permit application in 1999. The models were

comparable but not identical; the District's model was

somewhat more detailed in that it separated predicted

drawd owns into more aquifer producing units. Both models

satisfied the District that the proposed modification would

have no adverse impact on water resources.

41. After the challenge to the Proposed Agency Action,

the District created a new model to assess the impact of only

the additional quantities requested by the modification. This

new model added some aquifer parameters obtained from Regional

Observation Monitoring Program (ROMP) well 9.5, which was

constructed very close to the Boran Ranch in 1999.

(Information from ROMP 9.5 was not available at the time of

the earlier models.) The new model allowed the District to

limit the scope of its review to those changes proposed by the

modification. The results of this model show that impacts are

localized and that most are within the confines of Boran’s

property.

42. The greatest impacts resulting from the proposed

modification would occur in the Suwannee Limestone producing

unit (the upper - most portion of the upper Floridan aquifer),

the unit to be tapp ed by DID #6. The confining unit above the

upper Floridan aquifer in this region of DeSoto County is

approximately 300 - 400 feet thick, and impacts on the

intermediate aquifer, which is above this confining unit, are

much less. When the District's new mod el was run for peak

monthly withdrawals (423,900 gpd for 90 days), the model's 1.0

foot drawdown contour was contained within the confines of

Boran’s property, and the 0.1 foot drawdown contour extended

only approximately two miles out from the well node o f DID #6.

Atmospheric barometric changes can cause fluctuations in

aquifer levels that exceed a tenth of a foot.

43. As minimal as these modeled impacts appear to be,

they are larger than would be expected in reality. This is

because, for several reas ons, MODFLOW is a conservative model -

- i.e. , impacts modeled are greater than impacts that would be

likely in actuality.

44. First, MODFLOW is a mathematical, asyntopic model.

This means it models very gradually decreasing drawdowns

continuing over long distances as predicted drawdowns approach

zero. This tends to over - predict impacts at greater distances

from the withdrawal. In reality, the heterogeneity or

discontinuity of confining units cuts down on drawdown

effects. The steepest drawdowns occur a t a well node and then

decline relatively rapidly with distance.

45. Second, several model inputs are conservative. The

annual average quantities for water use generated under the

AGMOD methodology is based on a two - in - ten - year drought year.

The peak m onth quantity applies to the three driest months

within the two - in - ten - year drought period. The MODFLOW model

applies this 90 - day peak usage continuous pumping under AGMOD

and conservatively assumes no rainfall or recharge to the

aquifers during this peri od. Both of these are extremely

conservative assumptions for this region of Florida.

46. The District's determination of reasonable

assurances "on both an individual and a cumulative basis" in

water use permit cases only considers the sum of the impac t of

the applicant's proposal, together with all other existing

impacts (and perhaps also the impacts of contemporaneous

applicants). The impacts of future applicants are not

considered. This differs from the cumulative impact review

under Part IV of Cha pter 373 (environmental resource

permitting). See Conclusions 80 - 84, infra .

47. Modeling is a component of the District’s assessment

of impacts on a cumulative basis. In addition, the District

reviewed and assessed hydrographs of the potentiometric

s urface from nearby ROMP wells, water quality data, permit

history of the Boran site, and regional hydrologic conditions.

The hydrographs represent the accumulation of all impacts from

pumpage in the area and show stable groundwater levels in the

region. Water quality also is stable, with no declining

trends. The permit history indicates that permitted

withdrawals on the Boran site have declined. For all of these

reasons, the evidence was that Boran's proposed withdrawals

would create no adverse impacts on water resources on a

cumulative basis.

48. The evidence proved that the proposed agency action

will not cause adverse environmental impacts to wetlands,

lakes, streams, estuaries, fish and wildlife, or other natural

resources, as required by Rule 40D - 2.301(1)(c). Due to the

significant confinement between the source aquifers and the

surficial aquifer and surface water bodies, the modeling

results show no adverse impact to the surficial aquifer, and

no adverse impact to wetlands, streams, estuaries, f ish and

wildlife, or other natural resources.

49. The evidence was that there are no minimum flows or

levels set for the area in question. Furthermore, Standard

Condition 9 of the Proposed Agency Action requires Boran to

cease or reduce withdrawals as directed by the District if

water levels should fall below any minimum level later

established by the District. The more persuasive evidence was

that the requirements of section 4.3 of the District's Basis

of Review have been met. (A moratorium on water use permits

until establishment of minimum flows and levels would be

neither reasonable nor appropriate.)

50. The evidence proved that the proposed use will

utilize the lowest water quality he has the ability to use, as

required by Rule 40D - 2.301(1)(e ), because the new withdrawals

are exclusively from the upper Floridan aquifer, which has

poorer quality than the intermediate aquifer. Deeper aquifers

cannot be used because the water quality is poorer than the

upper Floridan aquifer, and it is technical ly and economically

infeasible to use it for agricultural purposes.

51. Behrens suggests that Boran should be required to

discontinue all withdrawals of higher quality water from the

intermediate aquifer as part of the proposed modification.

While an offer to do so might be welcomed (as was Boran's

offer to install subsurface seepage irrigation and apply the

higher efficiency percentage to the entire Boran Ranch),

Behrens could cite no authority for imposing such a condition;

and the more persuasive ev idence was that imposition of such a

condition would be neither reasonable nor appropriate under

the circumstances of this case.

52. The evidence proved that the proposed use will not

significantly induce saline water intrusion, as required by

Rule 4 0D - 2.301(1)(f), because the model results show that the

drawdown contours do not approach anywhere near the ETBWUCA or

MIA areas. Boran's Ranch is located approximately 21 miles

from the MIA boundary and 10.8 miles from ETBWUCA boundary.

Further, Boran m ust monitor the water quality in DID #1 and

DID #4 and document any changes in water quality as a result

of the withdrawals.

53. The parties have stipulated that the proposed use

meets the requirements of Rule 40D - 2.301(1)(g) and will not

cause polluti on of the aquifer.

54. The evidence proved that the proposed use will not

adversely impact offsite land uses existing at the time of the

application, as required by Rule 40D - 2.301(1)(h), because the

modeling showed no impact to the surficial aquifer or land use

outside Boran Ranch. The confinement between the point of

withdrawal and the surface is too great to impact offsite land

uses in the instant case.

55. The evidence proved that the proposed use will not

adversely impact any existing legal wit hdrawal, as required by

Rule 40D - 2.301(1)(i), based on the ROMP hydrographs and

modeling showing minimal drawdowns outside the boundaries of

Boran Ranch.

56. Behrens claims that Boran's proposed modification

will adversely impact his well, which is app roximately 3.5

miles northeast of the northeast corner of the Boran property

and over four miles away from DID #6. But the greater weight

of the evidence was to the contrary. (The wells of other DCAP

members were even further away, making impacts even le ss

likely.)

57. Behrens has no independent knowledge of the depth of

his two - inch well but believes it is approximately 150 feet

deep, which would place it within the intermediate aquifer.

In view of the consistent quality of Behrens' well water, and

the nature of his well construction, it is most likely that

Behrens' well does not penetrate the confining layer between

the intermediate aquifer and the upper Floridan aquifer. If

150 feet deep, Behrens' well would not extend into the deepest

producing unit of the intermediate aquifer (PZ - 3); rather, it

would appear to extend into the next deepest producing unit of

the intermediate aquifer (PZ - 2). But it is possible that

Behrens' well cross - connects the PZ - 2 and the shallowest

producing unit of the inte rmediate aquifer (PZ - 1). (The

evidence did not even rule out the possibility that Behrens'

well also is open to the surficial aquifer.)

58. Assuming that Behrens' well is open to the PZ - 2

only, conservative MODFLOW modeling predicts no impact at all

f rom the proposed modification. (Behrens' well would be

outside the zero drawdown contour.)

59. Meanwhile, hydrographs of PZ - 2 from nearby ROMP

wells show marked fluctuations (five - foot oscillations) of the

potentiometric surfaces in producing units of the intermediate

aquifer. These fluctuations appear to coincide with increased

pumping out of the intermediate aquifer. These fluctuations

in the potentiometric surface are not being transmitted up

from the upper Floridan aquifer or down from the surfic ial

aquifer. The potentiometric surface in those aquifers do not

exhibit matching fluctuations. It appears that the

intermediate aquifer is being impacted almost exclusively by

pumping out of that aquifer. (This evidence also confirms the

integrity of t he relatively thick confining layer between the

intermediate and the upper Floridan aquifers, which serves to

largely insulate Behrens' well from the influence of pumping

out of the upper Floridan.)

60. Behrens seems to contend that, in order to determ ine

adverse impacts on a cumulative basis, the impact of Boran's

entire withdrawal, existing and proposed, which is modeled

conservatively at approximately 0.3 feet, must be considered.

But the District considers an adverse impact to an existing

legal wit hdrawal to consist of an impact large enough to

necessitate modification to the producing well in order for it

to continue to function as intended. The greater weight of

the evidence was that the well on Behrens' property was not

designed to be a free - flo wing well but was designed to use a

pump to operate as intended.

61. At the time Behrens purchased his property, there

was a well and a non - functioning pump on the property. Even

at the beginning of his ownership, he did not always have

running water without a functioning pump. In approximately

1986 or 1987, Behrens installed a new electric pump because it

allowed the well to produce more water. After installation of

the pump, Behrens raised his trailer an additional five feet

(to guard against flood ing) which caused it to be

approximately ten feet high, meaning the water had to travel

that much farther against gravity to reach Behrens' faucets.

For most of the time that he has owned the property, Behrens

has used a pump on the well.

62. Behrens installed a check valve to allow him to turn

off the pump. Sometimes during storm or flood conditions,

electric power failed or was cut off, and Behrens was forced

to rely solely on artesian flow, which was sometimes adequate

in flood conditions during th e rainy season. At other times

when artesian flow was adequate, Behrens would turn off the

pump and rely solely on artesian flow. But it also was

sometimes necessary for Behrens to use the pump to get

adequate water flow.

63. During the summer of 200 1, Behrens' pump failed, and

he had to rely solely on artesian flow. As in prior years,

artesian flow was sometimes inadequate. In order to be able

to get at least some artesian flow for the maximum amount of

time, Behrens lowered the spigot on his well by about two

feet.

64. Although Behrens is aware that the iron casing of

his well could corrode over time, he has never called a

licensed well driller or other contractor to inspect his well.

Behrens did not test his own well for possible blockage tha t

would result in a lower yield. Furthermore, Behrens admits

that his whole outdoor water system needs to be completely

replaced.

65. The evidence proved that the proposed use will

incorporate water conservation measures, as required by Rule

40D - 2.301 (1)(k), based on the water conservation plan

submitted to the District, installation of a state - of - the - art

irrigation system, increase in efficient use of the water, and

decrease in the application rate. (Behrens' arguments that

Boran has been allowed to use too much water and his question

as to the existence of hardpan underlying Boran's fields

already has been addressed. See Findings 27 and 35, supra .)

66. The parties have stipulated that Boran has

demonstrated that the proposed use will incorporate reuse

measures to the greatest extent practicable, as required by

Rule 40D - 2.301(1)(l).

67. The evidence proved that the proposed use will not

cause water to go to waste, as required by Rule 40D - 2.301(m),

because the irrigation method is the most effi cient system

that is economically and technically feasible available for

sod. (Behrens' question as to the existence of hardpan

underlying Boran's fields already has been addressed. See

Finding 27, supra .)

68. The evidence proved that the proposed us e will not

otherwise be harmful to the water resources of the District,

as required by Rule 40D - 2.301(1)(n), based on the review of

all other permit criteria.

Propriety of Behrens' Purpose

69. Behrens did not review the District's permit file on

Boran 's application before he filed his petition. The

evidence suggested that he traveled to the District's Sarasota

office for that purpose but found on his arrival that the

complete permit file was not available for inspection there.

Because of the filing d eadline, he did not find time to make

another attempt to review the permit file of record before he

filed his petition. Behrens also did not contact Boran, the

District or anyone else with any questions about the proposed

agency action before filing his p etition. He also did not

visit Boran’s property, and made no inquiry as to the

irrigation system employed by Boran. Behrens also did not do

any additional legal research (beyond what he had done in

connection with other water use permit proceedings) befo re

filing his petition. Behrens believed he had all the

information he needed to file his petition.

70. Behrens has previously filed at least one

unsuccessful petition challenging the District’s issuance of a

water use permit. See Behrens v. Southwes t Fla. Water

Management Dist. , DOAH Case No. 00 - 4801 (DOAH Jan. 29, 2001).

DCAP, with Behrens acting as its president, has previously

filed at least three unsuccessful petitions challenging the

District’s issuance of a water use permit. See , e.g. , DeSoto

Citizens Against Pollution, Inc. v. Farmland Hydro Limited

Partnership , DOAH Case No. 02 - 232 (Southwest Fla. Water Man.

Dist. June 25, 2002); DeSoto Citizens Against Pollution, Inc.

v. Southwest Fla. Water Management Dist. , DOAH Case No. 01 -

3056 (DOAH Aug . 22, 2001); DeSoto Citizens Against Pollution,

Inc. v. Southwest Fla. Water Management Dist. , DOAH Case No.

01 - 2917 (DOAH Sept. 24, 2001). However, none of those

proceedings involved a project at the Boran site.

71. It is found that, u nder the totali ty of

circumstances, Behrens' and DCAP's participation in this

proceeding was not for an improper purpose -- i.e. , not

primarily to harass or to cause unnecessary delay or for

frivolous purpose or to needlessly increase the cost of

Boran's permit modificatio n. While a reasonable person would

not have raised and pursued some of the issues raised by

Behrens and DCAP in this proceeding, it cannot be found that

all of the issues they raised were frivolous or that their

participation in this proceeding was for an improper purpose.

72. It appears that Behrens based his standing in part

on the requirement in Rule 40D - 2.301(1)(i) that Boran provide

reasonable assurances that the proposed use will not adversely

impact an existing legal withdrawal to be provided "o n both an

individual and a cumulative basis .” (Emphasis added.) Not

unreasonably, Behrens argued that this requirement allowed him

to base his standing on alleged injuries from all of Boran's

withdrawals, existing and proposed, which would create a 0.3 -

f oot drawdown on his well. While his argument is rejected, it

cannot be found to be frivolous or made for improper purpose.

73. Behrens' argument that Boran did not meet Rule 40D -

2.301(1)(i) was based on the 0.3 - foot drawdown and his

position that his well was designed to be artesian free -

flowing. While Behrens' proposed finding was rejected, the

position he took is not found to be frivolous or taken for

improper purpose.

74. Several other arguments made and positions taken by

Behrens have been rej ected. See Findings 27, 34, 35, and 51,

supra , and Conclusions 86 - 87, infra . But they cannot all be

found to have been frivolous or made and taken for improper

purpose.

CONCLUSIONS OF LAW

Burden of Proof and Initial Burden of Presenting Evidence

75. The standard for an applicant’s burden of proof is

one of reasonable assurances, rather than absolute guarantees,

that the conditions for issuance of a permit have been met.

Manasota - 88, Inc. v. Agrico Chem. Co. , 12 F.A.L.R. 1319, 1325

(Dept. Env. Reg. F eb. 19, 1990). The term "reasonable

assurance" means "a substantial likelihood that the project

will be successfully implemented." Metropolitan Dade County

v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3d DCA

1992).

76. As an applicant for a perm it, Boran had the initial

burden of presenting a prima facie case of entitlement to the

permit. Florida Dep't of Transp. v. J.W.C. Co. , 396 So. 2d

778, 787 (Fla. 1st DCA 1981).

Permit Criteria

77. In order for Boran to meet his prima facie burden of

entitlement to modification of his permit, he had to

demonstrate compliance with Section 373.223(1), Florida

Statutes (2001). (All statutory references are to sections of

the 2001 codification of the Florida Statutes.) This statute

establishes a three - p rong test that a proposed use: (1) is

reasonable and beneficial; (2) is in the public interest; and

(3) does not adversely affect existing legal users of the

water resource. The District’s conditions for issuance

contained in Rule 40D - 2.301(1) implement t he three - prong test.

78. The April 2001 version of Rule 40D - 2.301 was in

effect at the time the proposed agency action was issued and

provided in pertinent part as follows:

(1) In order 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 individual 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, est uaries, 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;

(e) Will utilize the lowest water quality the

Applicant has the ability to use;

(f) Will not significant ly 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 lo cal water resources to the

greatest extent practicable;

(k) Will incorporate water conservation measures;

(l) Will incorporate reuse measures to the greatest

extent practicable;

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

(n) Will not otherwise be har mful to the water

resources of the District.

79. Florida Administrative Code Rule 40D - 2.091

incorporates by reference the Basis of Review for Water Use

Permit Applications into Chapter 40D - 2. Section 1.12.1 of the

Basis of Review provides that "ordinar ily, only the modified

aspects of the permit will be addressed in the evaluation of

the application for modification." For that reason, Boran's

existing permitted withdrawals are not at issue in this case

(although they must be considered to determine whe ther certain

reasonable assurances have been given "on both an individual

and a cumulative basis.")

80. Under the State Water Resource Plan outlined in Part

I of Chapter 373, Florida Statutes, which generally applies

throughout Chapter 373, the Florida Legislature declared that

the Department and the water management districts should take

into account cumulative impacts on water resources. Section

373.016(2), Florida Statutes (2001). Section 373.223(1) does

not contain a specific requirement for an app licant to do a

cumulative impact assessment, but the District has implemented

Section 373.016(2)'s requirement by including in Rule 40D -

2.301(1) the requirement that an applicant provide reasonable

assurances "on both an individual and a cumulative basis."

81. In Southwest Florida Water Management District v.

Charlotte County , 774 So. 2d 903 (Fla. 2d DCA 2001), rev .

denied , 801 So. 2d 615 (Fla. 2001), the Rule 40D - 2.301(1)

requirement that reasonable assurances be provided "on both an

individual and a cu mulative basis" was challenged as being too

vague. The court upheld the ALJ's ruling denying that rule

challenge based on the undisputed finding of fact "that the

determination of cumulative impact 'unavoidably involves site -

specific considerations which render it impractical to adopt

rule criteria that can be applied with "cookie cutter"

certainty.'" Id. at 913.

82. As found by the ALJ in the rule challenge, " only

subsections (b), (c), (d), (f), (g), (h), (i), and (n) involve

cumulative analysis and t hat '[w]hile the wording of the rule

is somewhat confusing, the remaining criteria by their very

nature, can only be applied on an individual basis.'" Id. As

also found by the ALJ in the rule challenge, as to the

criteria to which the cumulative analysis applies, "for 'any

regulatory scheme to be effective, there has to be an ability

to take cumulative impact into account.'" Id.

83. As interpreted by the District, the determination of

reasonable assurances "on both an individual and a cumulative

basis " under Part II of Chapter 373 (water use permitting)

differs from the cumulative impact review under Part IV of

Chapter 373 (environmental resource permitting). See Section

373.414(8)(a), Florida Statutes. As explained in Caloosa

Property Owners Ass'n, Inc. v. Department of Envtl.

Regulation , 462 So. 2d 523, 526 (Fla. 1st DCA 1985), the

latter requires consideration of " the precedential value of

granting a permit under the assumption that similar future

permits will be granted in the same locale." (Esse ntially,

instead of allowing a single applicant to create all of the

environmental impacts a certain geographic area can tolerate,

an effort is supposed to be made to apportioned those impacts

among the similar projects determined to be reasonably likely

t o occur in that locale.) In contrast, as found, the

District's determination of reasonable assurances "on both an

individual and a cumulative basis" in water use permit cases

only considers the sum of the impact of the applicant's

proposal together with a ll other existing impacts (and perhaps

also the impacts of contemporaneous applicants). The impacts

of future applicants are not considered.

84. There is no compelling reason not to defer to the

District's interpretation of its own Rule 40D - 2.301(1). While

different from the cumulative impact analysis utilized in

under Part IV of Chapter 373 (environmental resource

permitting ), it appears to be a reasonable and permissible

interpretation.

85. In applying the District's interpretation of the

rule, Bo ran and the District properly considered site

specifics in determining whether Boran provided reasonable

assurances "on both an individual and a cumulative basis."

See Southwest Florida Water Management District v. Charlotte

County , supra at 913.

86. B ehrens takes the position that Boran's permit

modification should not be granted at this time because the

District has not yet established special permitting

requirements for the "undifferentiated" SWUCA, or minimum

flows and levels for the intermediate aq uifer in the vicinity.

But the District's evidence was persuasive that lack of these

things does not require a moratorium on water use permits. To

the contrary, it is concluded that, if no applicable minimum

flows and levels have been established, the p ermit

modification application complies with established minimum

flows and levels. As result, the condition of issuance set

out in Rule 40D - 4.301(1)(d) and the provisions of 4.3 of the

Basis of Review. (In addition, as found, Standard Condition 9

of the Proposed Agency Action requires Boran to cease or

reduce withdrawals as directed by the District if water levels

should fall below any minimum level later established by the

District.)

87. Behrens took the position that Boran is not using

the "lowest w ater quality the Applicant has the ability to

use" under Rule 40D - 4.301(1)(e) because two of the existing

wells on Boran Ranch draw water from the intermediate aquifer

instead of the upper Floridan. Behren asks why Boran should

not be required to deepen t hose wells and close them to the

intermediate aquifer as a condition to the proposed

modification. While the question may not be unreasonable, the

requirement may not be imposed on this proposed permit

modification. It may, however, be raised when those wells

come up for renewal in 2009.

88. In Southwest Florida Water Management District v.

Charlotte County , 774 So. 2d 903, 913 (Fla. 2d DCA 2001), rev .

denied , 800 So. 2d 615 (Fla. 2001), the court affirmed an

Administrative Law Judge's 1997 invalidatio n of Rule 40D -

2.301(1)(j). After issuance of the Proposed Agency Action in

this case, the District repealed this rule provision.

However, Section 373.016(4)(a), Florida Statutes, restored

requirement that the District encourage applicants such as

Boran t o use water from sources nearest the area of use or

application whenever practicable. Boran has complied with

this requirement because DID #6 taps the upper Floridan

aquifer, which is a local source, is located on property

wholly - owned and controlled by B oran and will irrigate sod on

this same property.

Shifting of Burden of Presenting Evidence

89. Under the statutes and rules, as interpreted by the

District, Boran easily met his initial burden to present

evidence. As a result, the burden shifted to B ehrens rebut

the evidence produced by the applicant with contrary evidence

of equivalent quality to that presented by Boran. J.W.C. , 396

So. 2d at 789. Mere speculation concerning what "might" occur

is insufficient. Chipola Basin Protective Group, Inc. v.

Department of Envtl. Protection , Case No. 88 - 3355, 1998 WL

1859947 (Dept. Env. Reg. Dec. 29, 1988).

90. Behrens failed to meet his burden of presenting

evidence. Essentially, he relied on rule interpretation and

legal arguments that have been reject ed.

Applicant Met Ultimate Burden of Proof

91. Based on the Findings of Fact, Boran and the

District have satisfied the standards contained in Section

373.223, Florida Statutes, Florida Administrative Code Chapter

40D - 2, and the Basis of Review for Wa ter Use Permit

Applications.

Behrens' Standing

92. In order to prove his standing, Behrens was required

to prove injury - in - fact resulting from the proposed agency

action. Section 120.52(12)(b) defines a "party" to include

"[a]ny person . . . whose subst antial interests will be

affected by proposed agency action . . . ." (Other parts of

the definition are not applicable to Behrens.) It was held in

Agrico Chemical Co. v. Dept. of Environmental Reg. , 406 So. 2d

478, 482 (Fla. 2d DCA 1981):

We believe th at before one can be

considered to have a substantial interest

in the outcome of the proceeding he must

show (1) that he will suffer injury in fact

which is of sufficient immediacy to entitle

him to a section 120.57 hearing, and (2)

that his substantial in jury is of a type or

nature which the proceeding is designed to

protect.

See also Ameristeel Corp. v. Clark , 691 So. 2d 473 (Fla.

1997).

93. It is concluded that Behrens did not prove his

standing. Conservative MODFLOW modeling indicated that

Boran 's proposed modification will not impact the

potentiometric surface of Behrens' well at all. The

combination of Boran's existing and proposed water use may

reduce the potentiometric surface of Behrens' well by up to

0.3 feet. But it is concluded that, no twithstanding that some

reasonable assurances must be given "on both an individual and

a cumulative basis," the inquiry for purposes of standing is

how the proposed modification will affect Behrens' well.

Propriety of Behrens' Purpose

94. Prehearing, B oran moved for attorney's fees and

costs against both Behrens and DCAP under Section

120.569(2)(e) and under Section 120.595(1), Florida Statutes.

The District did not oppose Boran's motion and joined in the

request in their Joint PRO. Behrens filed a mo tion for

attorney's fees and costs against Boran under Sections

120.569(2)(e) and 120.595(1).

95. Jurisdiction will be reserved to determine the

requests under Section 120.569(2)(e) because DOAH has

jurisdiction to enter the final order under that stat ute . See

Procacci Commercial Realty, Inc. v. Dept. of Health and Rehab.

Services , 690 So. 2d 603, 606 (Fla. 1st DCA 1997); Dept. of

Health and Rehab. Services v. S.G. , 613 So. 2d 1380, 1384 - 85

(Fla. 1st DCA 1993) . Under Section 120.595(1), the procedures

(and, to some extent, substantive law) are different.

96. Section 120.595(1) provides in pertinent part:

(a) The provisions of this subsection are

supplemental to, and do not abrogate, other

provisions allowing the award of fees or

costs in administ rative proceedings.

(b) The final order in a proceeding

pursuant to s. 120.57(1) shall award

reasonable costs and a reasonable

attorney's fee to the prevailing party only

where the nonprevailing adverse party has

been determined by the administrative law

judge to have participated in the

proceeding for an improper purpose.

(c) In proceedings pursuant to

s. 120.57(1), and upon motion, the

administrative law judge shall determine

whether any party participated in the

proceeding for an improper purpose as

de fined by this subsection and s.

120.569(2)(e). In making such

determination, the administrative law judge

shall consider whether the nonprevailing

adverse party has participated in two or

more other such proceedings involving the

same prevailing party and the same project

as an adverse party and in which such two

or more proceedings the nonprevailing

adverse party did not establish either the

factual or legal merits of its position,

and shall consider whether the factual or

legal position asserted in the i nstant

proceeding would have been cognizable in

the previous proceedings. In such event,

it shall be rebuttably presumed that the

nonprevailing adverse party participated in

the pending proceeding for an improper

purpose.

(d) In any proceeding in which t he

administrative law judge determines that a

party participated in the proceeding for an

improper purpose, the recommended order

shall so designate and shall determine the

award of costs and attorney's fees.

(e) For the purpose of this subsection:

1. "I mproper purpose" means

participation in a proceeding

pursuant to s. 120.57(1)

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.

(Emphasis add ed.) Since Behrens did not prevail, he clearly

is not entitled to prevailing party fees and costs under

Section 120.595(1). The only issue under Section 120.595(1)

is whether Boran and the District are entitled to fees and

costs from DCAP and Behrens.

97. It is concluded that Boran and the District are not

entitled to an award against DCAP under Section 120.595(1).

Although no order had been entered dropping DCAP as a party,

DCAP voluntarily dismissed over a month before Boran first

requested sanctio ns against DCAP under Section 120.595(1).

(The District's request was first made over another month

later in the Joint PRO.) Since DCAP voluntarily dismissed, no

final order will be entered as to DCAP in this proceeding.

That leaves the question whether Behrens participated in this

proceeding for an improper purpose.

98. The "definition" of improper purpose in Section

120.569(2)(e) is not identical to the definition in Section

120.595(1)(e)1. Section 120.569(2)(e) provides that

signatures on pleadin gs, motions, or other papers certify that

the signatory has read the document and that "based upon

reasonable inquiry, it is not interposed for any improper

purposes, such as to harass or to cause unnecessary delay, or

for frivolous purpose or needless inc rease in the cost of

litigation."

99. Construing the definition in Section 120.595(1)(e)1

in pari materia with the "definition" in Section

120.569(2)(e), it is concluded that Section 120.595(1) only

references the examples of improper purposes cited in Section

120.569(2)(e), but that participation in a proceeding is for

an improper purpose under Section 120.595(1) only if it is

" primarily to harass or to cause unnecessary delay or for

frivolous purpose or to needlessly increase the cost of

licensing or s ecuring the approval of an activity." (If such

a limitation on the definition is not part of Section

120.569(2)(e), Section 120.595(1)(a) provides that its

provisions are "supplemental to, and do not abrogate, other

provisions allowing the award of fees o r costs in

administrative proceedings.")

100. Boran and the District attempted to use the

rebuttable presumption of improper purpose created by Section

120.595(1)(c). But it is concluded that the statutory

presumption does not apply in this case. The evidence was

that Behrens individually only participated in one previous

proceeding involving the District. (DCAP participated in

three previous proceedings involving the District, but none of

the previous proceedings involved a project on the Boran

site. )

101. Case law holds that an objective standard is used

to determine improper purpose for the purpose of imposing

sanctions on a party or attorney under Section 120.569(2)(e)

and predecessor statutes. As stated in Friends of Nassau

County, Inc. v. Nas sau County , 752 So. 2d 42, 49 - 51 (Fla. 1st

DCA 2000):

In the same vein, we stated in Procacci

Commercial Realty, Inc. v. Department of

Health and Rehabilitative Services , 690

So.2d 603 (Fla. 1st DCA 1997): The use of

an objective standard creates a requ irement

to make reasonable inquiry regarding

pertinent facts and applicable law. In the

absence of "direct evidence of the party's

and counsel's state of mind, we must

examine the circumstantial evidence at hand

and ask, objectively, whether an ordinary

p erson standing in the party's or counsel's

shoes would have prosecuted the claim."

Id. at 608 n. 9 (quoting Pelletier v.

Zweifel , 921 F.2d 1465, 1515 (11th

Cir.1991)). See In re Sargent , 136 F.3d

349, 352 (4th Cir.1998) ("Put differently a

legal positio n violates Rule 11 if it 'has

"absolutely no chance of success under the

existing precedent." ') Brubaker v. City of

Richmond , 943 F.2d 1363, 1373 (4th

Cir.1991)(quoting Cleveland Demolition Co.

v. Azcon Scrap Corp. , 827 F.2d 984, 988

(4th Cir.1987))."[)]

* * *

Whether [predecessor to Section 120.595(1)]

section 120.57(1)(b)5., Florida Statutes

(1995), authorizes sanctions for an initial

petition in an environmental case turns

. . . on the question whether the signer

could reasonably have concluded that a

justiciable controversy existed under

pertinent statutes and regulations. If,

after reasonable inquiry, a person who

reads, then signs, a pleading had

"reasonably clear legal justification" to

proceed, sanctions are inappropriate.

Procacci , 690 So .2d at 608 n. 9; Mercedes ,

560 So.2d at 278.

Although there is no appellate decision explicitly extending

the objective standard to Section 120.595(1), there does not

appear to be any reason why, absent the rebuttable

presumption, the objective standard s hould not be used to

determine whether Petitioner's participation in this

proceeding was for an improper purpose. See Friends Of Nassau

County, Inc., v. Fisher Development Co., et al. , 1998 WL

929876 (Fla. Div. Admin.

Hrgs.); Amscot Insurance, Inc., et a l. v. Dept. of Ins. , 1998

WL 866225 (Fla. Div. Admin. Hrgs.).

102. In another appellate decision, decided under a

predecessor to Section 120.595(1) before the objective

standard was enunciated for cases under Section 120.569(2)(e)

and its predecessor st atutes, the court in Burke v. Harbor

Estates Ass'n , 591 So. 2d 1034, 1036 - 1037 (Fla. 1st DCA 1991),

held:

The statute is intended to shift the cost

of participation in a Section 120.57(1)

proceeding to the nonprevailing party if

the nonprevailing party p articipated in the

proceeding for an improper purpose. A

party participates in the proceeding for an

improper purpose if the party's primary

intent in participating is any of four

reasons, viz: to harass, to cause

unnecessary delay, for any frivolous

pur pose, [FN1] or to needlessly increase

the prevailing party's cost of securing a

license or securing agency approval of an

activity.

Whether a party intended to participate in

a Section 120.57(1) proceeding for an

improper purpose is an issue of fact. Se e

Howard Johnson Company v. Kilpatrick , 501

So.2d 59, 61 (Fla. 1st DCA 1987) (existence

of discriminatory intent is a factual

issue); School Board of Leon County v.

Hargis , 400 So.2d 103, 107 (Fla. 1st DCA

1981) (questions of credibility,

motivation, and p urpose are ordinarily

questions of fact). The absence of direct

evidence of a party's intent does not

convert the issue to a question of law.

Indeed, direct evidence of intent may

seldom be available. In determining a

party's intent, the finder of fact is

entitled to rely upon permissible

inferences from all the facts and

circumstances of the case and the

proceedings before him.

FN1. A frivolous purpose is one which is

of little significance or importance in the

context of the goal of administrative

pr oceedings. Mercedes Lighting &

Electrical Supply, Inc. v. Department of

General Services , 560 So.2d 272, 278 (Fla.

1st DCA 1990).

103. Burke also is of interest because it involves facts

similar in some respects to the facts of this case; in other

respe cts, the facts are different. According to Burke , the

hearing officer found:

6. Petitioner . . . submitted no evidence

to show facts necessary to sustain the

pleadings in the Petition. . . .

Petitioner offered no expert testimony in

support of the plead ings in the Petition.

. . . The testimony of fact witnesses

called by Petitioner was not material to

Petitioner's claims. . . .

7. Petitioner consistently demonstrated a

lack of knowledge of the applicable law,

the proper scope of the formal hearing, and

the distinction between argument and

evidence. Petitioner repeatedly attempted

to establish violations of laws not

relevant to the proceeding. . . .

Petitioner attempted to establish issues by

arguing with witnesses during direct and

cross - examination, and by repeatedly making

unsworn ore tenus representations of fact.

8. There was a complete absence of

justiciable issue of either law or fact in

this proceeding because petitioner failed

to show facts necessary to sustain the

pleadings. Petitioner pres ented no

evidence refuting Respondent, Burke's,

showing that the modifications required by

DER were adequate to assure water quality

and the public health, safety, or welfare,

or the property of others. Evidence

presented by Petitioner was not material to

the issue of whether the modifications

required by DER were adequate for the

purposes of the law applicable to this

proceeding. Therefore, Petitioner

participated in this proceeding for a

frivolous purpose, primarily to cause

unnecessary delay, or to nee dlessly

increase the cost of licensing or approval

of the proposed activity.

Id. at 1035 - 1036. (For reasons unknown, there are minor

discrepancies between the court's version of the findings and

those appearing at Harbor Estates Associates, Inc. v. E.

Burke, et al. , 1990 WL 749394 (Fla. Div. Admin. Hrgs.), and at

DOAH's Internet website, Recommended Order, DOAH Case No. 89 -

2741, entered April 4, 1990.) In Burke , the Department of

Environmental Regulation (predecessor to DEP) accepted the

hearing office r's findings as to the petitioner's conduct but

reversed the hearing officer's award, holding "that the

conduct described in the recommended order cannot, as a matter

of law, evince an improper purpose as defined in Section

120.59(6), Florida Statutes." B urke at 1037. The court

reversed, holding:

Despite acceptance of factual findings

below, the final order characterizes the

conduct of Harbor Estates' representative

as mere "incompetent representation." We

reject that characterization as not

consistent w ith the hearing officer's

findings and, therefore, do not here decide

whether incompetent representation alone

permits a finding of improper purpose.

* * *

We reject appellees' argument that a

qualified lay representative in a Section

120.57 procee ding should be held to a

lesser standard of conduct, as

distinguished from legal competence, than a

licensed attorney. Section 120.62(2),

Florida Statutes, permitting qualified lay

representatives to represent parties in

administrative proceedings, provide s no

basis for holding such representatives to a

lesser standard of conduct. A contrary

rule would permit a party to insulate

itself from the consequences of Section

120.59(6), Florida Statutes, by choosing

lay representation.

Id. at 1037 - 1038.

104. As indicated, the facts in Burke were similar to

the facts of this case in some respects but different in other

respects. First, Behrens was not represented by a qualified

lay person; he participated pro se . (DCAP also was pro se ,

having been represente d by Behrens, one of its officers.)

Second, there was no evidence that Behrens repeatedly

attempted to establish violations of laws not relevant to the

proceeding, argued with witnesses, or repeatedly made unsworn

ore tenus representations of fact during direct and cross -

examination of witnesses. To the contrary, Behrens willingly

conceded some issues. (DCAP voluntarily dismissed.) Third,

Behrens testified and offered two exhibits in evidence

although his evidence was minimal, inadequate, and

insufficie nt under applicable statutes and rules.

105. In addition, as found, there also were other

factors apparently not present in Burke which are relevant to

the determination whether Behrens (or DCAP) participated in

this proceeding for improper purpose. A s found, under the

totality of these circumstances, it was not proven that

Behrens' participation in this proceeding was 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 Boran's permit modification.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the District enter an order granting

Boran’s water use permit application number 20009478.005; and

denying th e motions for attorney's fees and costs under

Section 120.595(1), Florida Statutes.

Jurisdiction is reserved to enter a final order on the

part of the motions for sanctions under Section 120.569(2)(e).

DONE AND ENTERED this 29th day of July, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

J. LAWRENCE JOHNSTON

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 29th day of July, 2002.

COPIES FURNISHED:

Alan R. Behrens, President

DeSoto Citizens Against Pollution, Inc.

4070 Southwest Armadillo Trail

Arcadia, Florida 34266

Mary Beth Russell, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609 - 6899

Douglas P. Manson, Esquire

Carey, O 'Malley, Whitaker & Manson, P.A.

712 South Oregon Avenue

Tampa, Florida 33606

E.D. "Sonny" Vergara, Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34609 - 6899

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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.