03-000955 Suwannee River Water Management District vs. Florida Conference Of The Association Of Seventh-Day Adventists, Inc. Status: Closed Recommended Order on Friday, June 4, 2004.

Summary: Respondent`s failure to use its water use permit for two years was excusable due to drought conditions and federal regulations, which prevented it from using spring water for bottling purposes.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUWANNEE RIVER WATER )

MANAGEMENT DISTRICT, )

)

Petitioner, )

)

vs. ) Case No. 03 - 0955

)

FLORIDA CONFERENCE OF THE )

ASSOCIATION OF SEVENTH - DAY )

ADVENTISTS, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the

Division of Administrative Hearings by its assigned

Administrative Law Judge, Donald R. Alexander, on March 10,

2004, in Live Oak, Florida.

APPEAR ANCES

For Petitioner: Bruce W. Robinson, Esquire

Brannon, Brown, Haley,

Robinson & Bullock, P.A.

Post Office Box 1029

Lake City, Florida 32056 - 1029

For Respondent: Patrice F. Boyes, Esquire

Patrice Boyes, P.A.

Post Office Box 358584

Gainesville, Florida 32635 - 8584

STATEMENT OF THE ISSUE

The issue is whether Respondent's water use pe rmit should

be revoked for nonuse of the permit for a period of two years

or more.

PRELIMINARY STATEMENT

On February 4, 2003, Petitioner, Suwannee River Water

Management District (District), filed an Administrative

Complaint and Notice of Intent to Revoke Water Use Permit

(Complaint) seeking to revoke Water Use Permit No. 2 - 99 - 00130

held by Respondent, Florida Conference of the Association of

Seventh - Day Adventists, Inc., "for non - use of the water supply

allowed by the permit for a period of two (2) years or more

pursuant to Florida Administrative Code [Rule] 40B - 2.341, Fla.

Stat. 120.60[,] and Fla. Stat. 373.243."

On March 4, 2003, Respondent filed its Petition for

Formal Administrative Hearing (Petition) requesting a formal

hearing to contest the Distri ct's proposed agency action. The

matter was referred to the Division of Administrative Hearings

on March 10, 2003, with a request that an Administrative Law

Judge be assigned to conduct a hearing. By Notice of Hearing

dated April 4, 2003, a final hearing was scheduled on May 20,

2003, in Live Oak, Florida. On April 23, 2003, the parties

filed a Joint Stipulated Motion to Abate Proceedings (Motion).

The Motion was granted, and the matter was temporarily abated

pending efforts by the parties to settle the case. On July

29, 2003, the parties requested that the matter be rescheduled

for final hearing. Thereafter, a final hearing was

rescheduled for December 4, 2003, and then again to December

10, 2003, at the same location. On December 4, 2003,

Respondent 's unopposed Motion to Abate the case pending

settlement negotiations was granted. On February 13, 2004,

the parties advised that no settlement had been reached and

requested that the matter be rescheduled. A final hearing was

then scheduled on March 10, 2004, in Live Oak, Florida.

At the final hearing, Petitioner presented the testimony

of Jon M. Dinges, District Director of Resource Management and

accepted as an expert, and H. David Hornsby, a District Water

Quality Analyst. Also, it offered Petition er's Exhibits 1 - 7,

which were received in evidence. Exhibits 6 and 7 are the

depositions of Phil Younts and Randee Reynolds. Respondent

presented the testimony of Jon M. Dinges, District Director of

Resource Management; Rand Edelstein, Jr., a professiona l

geologist and accepted as an expert; and Phil Younts, its

executive director. Also, it offered Respondent's Exhibits 1 -

18. All were received in evidence except Exhibits 15 and 16.

Exhibits 6 - 11 are the depositions of Jerry A. Scarborough,

William H. K irk, H. David Hornsby, David Still, Jon M. Dinges,

and Rand Edelstein, Jr. Finally, the undersigned took

official recognition of Section 373.243, Florida Statutes

(2002), 1 Florida Administrative Code Rule 40B - 2.341, 21 C.F.R.

§ 165.110, and the Summary of CS/HB 4060, as adopted by the

House of Representatives in 1972.

The Transcript of the hearing was filed on April 15,

2004. By agreement of the parties, the time for filing

proposed findings of fact and conclusions of law was extended

to May 14, 2004. Th e same were timely filed by the parties,

and they have been considered by the undersigned in the

preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of

fact are determined:

a. Background

1. T he District is a state agency charged with the

responsibility of issuing water use permits under Chapter 373,

Florida Statutes, and Florida Administrative Code Chapter 40B -

2 for the geographic area under its statutory jurisdiction.

Alachua County is withi n that geographic jurisdiction.

2. Respondent is a Florida corporation with offices at

700 Northwest Cheeota Avenue, High Springs, in northern

Alachua County. It owns approximately 700 acres in High

Springs (west of Interstate Highway 75) on which it o perates a

church retreat and summer camping and recreational facility

known as Camp Kulaqua. The property surrounds, and is

contiguous to, Hornsby Spring, a first - order magnitude spring

(having a flow rate of 100 CFS or greater) which, under normal

condit ions, discharges into the nearby Santa Fe River.

Hornsby Spring is one of 296 documented springs within the

District's jurisdiction.

3. After receiving an overture from a representative of

a private water bottling company, on September 28, 1999,

Responde nt filed an application for a General Water Use Permit

in Township 7 South, Range 17 East, Section 26, in High

Springs. In its application, Respondent represented that it

desired a daily allocation of 2,000,000 gallons; that it

intended to install two 12 - inch wells, each having a capacity

of 1,400 gallons per minute, just east of, and upgradient

from, Hornsby Spring; and that all water withdrawals would be

used in conjunction with a privately - owned commercial spring

water bottling facility to be located on its property. The

application also represented that the facility would employ 36

persons and operate 168 hours per week.

4. The application was reviewed by a former District

hydrogeologist, William H. Kirk. During the review process,

and in response to Mr. Kirk's request for more information,

Respondent provided a comparison of the requested allocation

with the overall flow of Hornsby Spring. This was because Mr.

Kirk was concerned that the requested allocation was "a bit

high," and he wanted to ensu re that the issuance of the permit

would not cause harm to, or adversely affect, the water

resources.

5. Under a professional guideline that Mr. Kirk used, if

the applicant could show that the cumulative amount being

withdrawn was to be less than ten pe rcent of what the

available data showed to be the mean spring flow, the District

would consider it to be "an acceptable impact."

Notwithstanding Mr. Kirk's use of this guideline, the District

points out that there is no District rule or policy

sanctioning the ten percent rule, and at hearing it denied

that this standard is used by the District in assessing water

use applications. Further, the Permit itself does not refer

to a relationship between spring flow and the size of the

allocation. Even so, this analysis was considered by Mr. Kirk

in determining whether Respondent had given reasonable

assurance that the spring would not be impacted.

6. In its response to the request for additional

information, Respondent reduced its requested allocation to

750, 000 gallons per day and indicated that if a bottling plant

were to be constructed on its property, approximately 700,000

gallons of the total allocation would be consumed in "bulk

transfer and bottling," with the remainder for camp use. More

specifically, Respondent indicated that it would allocate

490,000 gallons per day for bulk transport, 210,000 gallons

per day for spring bottling water, and 50,000 gallons per day

for incidental uses at its property.

7. By reducing the allocation from 2,000,000 gallon s per

day to 750,000 gallons per day, Respondent's requested average

daily allocation represented only 0.4 percent of the average

daily spring flow as measured over the last 28 years. The

reduced allocation satisfied Mr. Kirk's concern that

Respondent dem onstrate a reasonable demand and a reasonable

need for that allocation, and he recommended approval of the

application. 2

8. On February 25, 2000, the District approved the

application and issued Water Use Permit No. 2 - 99 - 00130

(Permit). 3 The Permit auth orizes an average daily withdrawal

of 0.7500 million gallons per day (750,000 gallons per day) or

a maximum daily withdrawal and use of 0.7500 million gallons

per day with an annual allocation not to exceed 273.750

million gallons (273,750,000 gallons) per calendar year in

conjunction with the operation of a privately - owned water

bottling plant. The Permit expires on February 25, 2020.

9. After the Permit was issued, under the regulatory

process in place, Respondent was required first to obtain a

permit for a temporary test well which would be used to

collect information concerning the site of the proposed

activity, and to then file an application for permits

authorizing the construction and operation of the two 12 - inch

production wells.

10. The Permit contains a number of conditions, two of

which require a brief comment. First, Condition No. 2

provides that "[t]his permit is classified as unconfined

[F]loridan aquifer for privately owned bottled water plant."

This means that all water withdrawals must be made from the

unconfined Floridan aquifer, as opposed to the spring head of

Hornsby Spring. (Respondent's proposed siting of its two

production wells 660 yards east of the spring is consistent

with this provision.) Second, Condition No. 4 provides th at

"[t]he permittee shall submit daily pumpage records on a

monthly basis to the [District]." Pumpage reports are filed

by permittees so that the District can determine whether the

permit is actually being used, and if so, to ensure that the

amount of wat er being withdrawn under the permit does not

exceed the authorized allocation. As it turned out, pumpage

reports were never filed by Respondent. (However, the record

shows that the District has never strictly enforced this

requirement for any permittee.)

11. In late 2002, the District staff undertook a review

of the nine water bottling permit holders within its

jurisdiction, including Respondent. That category of permit

holders was selected for review because of the small number of

permits and the limit ed resources of the District staff. (In

all, the District has probably issued several thousand permits

to other types of users.) On February 4, 2003, the District

served its Complaint under the authority of Sections 120.60

and 373.243, Florida Statutes, and Florida Administrative Code

Rule 40B - 2.341. As grounds for revoking the permit, the

District alleged that there was "non - use of the water supply

allowed by the permit for a period of two (2) years or more."

12. Although Respondent contends that it should have

been given an opportunity to correct the nonuse allegation

before the Complaint was issued, nothing in the Administrative

Procedure Act or District rules requires that this be done.

Until the issuance of the Complaint against Respondent in

ear ly 2003, and similar Complaints against eight other permit

holders at the same time, the District had never invoked this

statutory provision. 4 There

is no evidence to support Respondent's contention that the

Complaints were issued for "purely political r easons."

13. On March 4, 2003, Respondent requested a formal

hearing challenging the District's proposed action. In the

parties' Pre - Hearing Stipulation, the issues have been broadly

described as follows: whether Section 373.243(4), Florida

Statutes, is to be strictly or liberally construed; whether

Respondent's nonuse is based upon extreme hardship for reasons

beyond its control; and whether the District is equitably

estopped from permit revocation. (According to the District,

even if the Permit is r evoked, such revocation is without

prejudice to Respondent reapplying for, and receiving, another

permit so long as it meets all applicable requirements.)

b. Equitable Estoppel

14. Respondent first contends that the District is

estopped from revoking its Permit on the theory that, under

the circumstances here, the doctrine of equitable estoppel

applies. For that doctrine to apply, however, Respondent must

show that the District made a representation as to a material

fact that is contrary to a later asser ted position; that

Respondent relied upon that representation; and that the

District then changed its position in a manner that was

detrimental to Respondent. See , e.g. , Salz v. Dep't of

Admin., Div. of Retirement , 432 So. 2d 1376, 1378 (Fla. 3d DCA

1983) .

15. The District issued Respondent's Permit on the

condition that Respondent operate in conformity with all

pertinent statutes and regulations. This finding is

consistent with language on the face of the Permit, which

states that the Permit "may be permanently or temporarily

revoked, in whole or in part, for the violation of the

conditions of the permit or for the violation of any provision

of the Water Resources Act and regulations thereunder."

16. Respondent relied on the District's representatio n

that it could use the Permit so long as it complied with all

statutes and regulations. In reliance on that representation,

in addition to staff time, after its Permit was issued,

Respondent expended "somewhere around" $70,000.00 to

$74,000.00 for conduc ting water quality testing; sending cave

divers underground to ascertain the correct location of the

portion of the aquifer on which to place its production wells;

drilling a 6 - inch test well in August 2000; obtaining the City

of High Springs' approval in March 2000 for industrial zoning

on a 10 - acre tract of land on which to site a "water plant";

and engaging the services of a professional who assisted

Respondent in "seeking out businesses and getting the right

qualifications of the spring water to make su re that it was a

marketable water."

17. The District has never asserted anything different

from its original position: that if Petitioner complied with

all statutes and rules, it could continue to lawfully make

water withdrawals under its Permit. The issuance of the

Complaint did not represent a change in the District's

position. Because a change in position in a manner that was

detrimental to Respondent did not occur, the necessary

elements to invoke the doctrine of equitable estoppel are not

present .

c. Was the Permit Used?

18. A preliminary review by District staff indicated

that Respondent had never filed the daily pumpage reports on a

monthly basis and had never requested permits authorizing the

construction of the two 12 - inch production wells. These

preliminary observations were confirmed at final hearing,

along with the fact that Respondent has never entered into an

agreement with a water bottling company (although draft

agreements were once prepared); that Respondent has never

constructed a w ater bottling facility; and that no operations

were ever conducted under the Permit. Therefore, the evidence

supports a finding that Respondent did not use its Permit for

the two - year period after it was issued, as alleged in the

Complaint. Respondent's contention that the evidence fails to

support this finding belies the evidence of record.

19. In an effort to show that it actually used the

Permit, Respondent points out that in August 2000 it applied

for, and received a permit to construct, an unmetered 6 - inch

test well in association with its General Water Use Permit.

(Respondent sometimes erroneously refers to the test well as a

test production well. This is incorrect as the well is a test

well, and not a production well.) After the test well was

in stalled, at some point Respondent says it began withdrawing

approximately 50,000 gallons per day of water from that well

for incidental uses associated with the operation of Camp

Kulaqua. 5 These withdrawals were made on the assumption that

the test well p ermit fell under the broad umbrella of the

General Water Use Permit. (Respondent also has a permitted 6 -

inch diameter well and an unregulated 4 - inch well on its

premises, both of which are used for water supply needs at

Camp Kulaqua.)

20. It is true, as Respondent asserts, that its Permit

authorized incidental withdrawals of up to 50,000 gallons per

day for unspecified uses at Camp Kulaqua. However, these

withdrawals are authorized under the General Water Use Permit

and not the test well permit. The two permits are separate

and distinct. On the one hand, a test well is intended to be

temporary in nature and used only for the purpose of test well

development and collecting information regarding the height of

the aquifer and water quality at the site of t he proposed

activity. Conversely, withdrawals for any other purpose, even

incidental, must be made from the production wells, which are

only authorized by the General Water Use Permit.

21. Before a test well can be used for normal

consumptive purposes, the permit holder must seek a

modification of the permit to include it as a part of its

general water use permit. Here, no such modification was

sought by Respondent, and no authorization was given by the

District. Therefore, Respondent's incidental wate r uses

associated with its test well cannot be counted as "uses" for

the purpose of complying with the use requirement in Section

373.243(4), Florida Statutes. In light of the District's

credible assertion to the contrary, Respondent's contention

that it is common practice to lawfully withdraw water from a

test well for incidental consumptive purposes has been

rejected. (It is noted, however, that the District has not

charged Respondent with violating the terms of its test well

permit.)

d. Extreme Hardsh ip

22. Under Section 373.243, Florida Statutes (which was

enacted in 1972), the District is authorized to revoke a water

use permit "for nonuse of the water supply allowed by the

permit for a period of 2 years." However, if the user "can

prove that his o r her nonuse was due to extreme hardship

caused by factors beyond the user's control," revocation of

the permit is not warranted.

23. The phrase "extreme hardship caused by factors

beyond the user's control" is not defined by statute or rule.

In the c ontext of this case, however, the District considers

an extreme hardship to occur under two scenarios. First, if

the aquifer level has dropped so low due to drought conditions

that a permit holder cannot access the water through its well,

its nonuse is ex cusable. Alternatively, if an emergency order

has been issued by the District directing permit holders

(including Respondent) to stop pumping due to certain

conditions, an extreme hardship has occurred. (Presumably, a

severe water shortage would precipit ate such an order.) In

this case, the District issued a water shortage advisory, but

not an emergency order, due to a "severe drought," indicating

that users could still pump water, but were encouraged to

voluntarily reduce their usage. This advisory rem ained in

effect from the summer of 1998 until the spring of 2003, when

a severe drought ended. However, no emergency order was ever

issued by the District.

24. Respondent contends that its nonuse was due to an

extreme hardship caused by factors beyond it s control. More

specifically, it argues that a severe drought occurred in

Alachua County during the years 1998 - 2003, and that under

these conditions, federal regulations prevented it from

withdrawing water for bottling purposes, which was the primary

purp ose for securing a permit. Further, even if it had

withdrawn water during these drought conditions, such

withdrawals could have adversely impacted Hornsby Spring and

constituted a violation of a District requirement that water

resources not be adversely i mpacted. Because an investment of

several hundred thousand dollars was required to drill and

install the two production wells, Respondent contends it was

not financially prudent to make that type of investment and

begin operations until normal spring cond itions returned.

These contentions are discussed in greater detail below.

25. Around September 7, 1999, a representative of a

water bottling company first approached Respondent about the

possibility of the two jointly operating a water bottling

plant and /or transporting water in bulk from Respondent's

property. Prompted by this interest, less than three weeks

later Respondent filed its application for a water use permit

(although at that time it did not mention on the application

that off - site bulk trans fers would occur), and a permit was

eventually issued in February 2000. Later, and through a

professional firm it employed, Respondent had discussions with

representatives of several bottling companies, including Great

Springs Waters of America (Great Spr ings) and Perrier Group of

America. Apparently, these more serious discussions with a

potential suitor did not take place until either late 2000 or

the spring of 2001.

26. Periodic measurements taken by District staff at

Hornsby Spring reflected natural drought conditions from

April 2000 to April 2003. As noted earlier, this was the

product of a "severe drought" which took place between the

summer of 1998 and the spring of 2003; the drought was one of

a magnitude that occurs only once in every 50 to 100 years.

During the years 2000 through 2002, the spring had zero flow

or was barely flowing much of the time. 6 Had Respondent

pumped water during 20 out of the 24 months after the Permit

was issued, it could have potentially violated the requirement

t hat it not harm Hornsby Spring. This fact is acknowleged by

a District witness who agreed that if the "spring is not

flowing, . . . [pumping] would have an [adverse] impact."

Even as late as October 2003, the spring had tannic

discoloration caused by the lengthy drought conditions. The

parties agree, however, that there is no water shortage in the

District at the present time.

27. To illustrate the difficulty that it experienced in

obtaining a joint venture partner for water bottling purposes,

Responden t established that in the spring of 2001, a Great

Springs representative visited the site when the spring was

"barely flowing." For obvious reasons, Respondent could not

"bring a party there who would want to enter into a business

[agreement]" under those conditions. These same conditions

remained in effect during most of the two year period.

28. The District points out, however, that even though

the spring was low or barely flowing, so long as the aquifer

itself was not too low, Respondent could still w ithdraw water

from the aquifer, since Condition 2 of the Permit authorizes

withdrawals from the aquifer, and not the spring. The reason

for this apparent anomaly is that when a spring ceases to

flow, the aquifer has simply dropped below the level of the

s pring vent; even under these circumstances, however, there

may still be a

substantial quantity of water in the aquifer available for

pumping.

29. Assuming that it could still lawfully pump water

when the spring was dry or barely flowing without causing

a dverse impacts to the spring, Respondent was still subject to

federal regulations which govern the bottling of spring water.

See Title 21, Part 165, C.F.R. For spring water to be

marketed as bottled "spring water," 21 C.F.R. § 165.119(2)(vi)

requires tha t the water "be collected only at the spring or

through a bore hole tapping the underground formation feeding

the spring." This means that the bore hole had to be

physically connected with the cave system feeding Hornsby

Spring or produce water of the sam e quality as that

discharging from the spring.

30. The regulation goes on to provide that "[i]f spring

water is collected with the use of an external force [such as

by a pump], water must continue to flow naturally to the

surface of the earth through th e spring's natural orifice."

While this regulation obviously does not prohibit Respondent

from pumping water, since that authority lies within the

District's exclusive jurisdiction, it does provide that in

order to use spring water for bottling purposes, the water

must continue to flow naturally from the aquifer to the

spring. If it does not, the water cannot be used for this

purpose. Because Hornsby Spring had zero flow for parts of

2001 and 2002, and severely reduced flows during most of the

other time during the two - year period ending February 2002,

Respondent was effectively prevented by the foregoing

regulation from using the water for bottling purposes.

31. Therefore, Respondent's nonuse was due to extreme

hardship caused by factors beyond its c ontrol -- a severe

drought lasting throughout the two - year period after the

Permit was issued, and federal regulations which prevented it

from using water for the purpose for which the Permit was

issued. Thus, the nonuse is excusable.

CONC LUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties hereto

pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

33. Because Respondent's Permit is at risk, the District

must prove b y clear and convincing evidence that the

allegations in its charging document are true. Thus, it must

prove that Respondent did not use its Permit during the two -

year period after it was issued. At the same time, Respondent

has the burden of establishing , if necessary, entitlement to

the statutory defense of "extreme hardship" under Section

373.243(4), Florida Statutes.

34. The District's authority for issuing the Complaint

is found in Section 373.243, Florida Statutes, which provides

as follows:

The gov erning board or the department may

revoke a permit as follows:

(4) For nonuse of the water supply allowed

by the permit for a period of 2 years or

more, the governing board or the department

may revoke the permit permanently and in

whole unless the user can prove that his or

her nonuse was due to extreme hardship

caused by factors beyond the user's

control.

35. In addition, Florida Administrative Code Rule 40B -

2.341 provides that

The Board may, at any time after notice and

hearing, revoke a permit, in whole or in

part, temporarily or permanently pursuant

to the provisions of s. 373.243 and s.

120.60(7), Florida Statutes.

36. By clear and convincing evidence, the District has

established that Respondent's Permit was not used between the

time it was iss ued in February 2000 and February 2003, when

the Complaint was filed. Because there was "nonuse of the

water supply allowed by the permit for a period of 2 years or

more," the District has met its burden of proving that the

allegations are true. For the reasons set forth in Findings

of Fact 19 - 21, the undersigned has rejected Respondent's

contention that water drawn from the test well constitutes

"use" under its General Water Use Permit.

37. Although the underlying allegations in the Complaint

have bee n proven, Respondent has established entitlement to

the statutory defense of "extreme hardship." That is to say,

the nonuse of its Permit was due to extreme hardship caused by

factors beyond its control, namely, a severe drought and

Respondent's inability under federal regulations to bottle

water from Hornsby Spring as "spring water" under drought

conditions. Given these circumstances, the nonuse was

excusable, and revocation of the Permit is inappropriate.

Therefore, the Complaint should be dismissed, w ith prejudice. 7

38. Finally, for the reasons set forth in Findings of

Fact 14 - 17, the doctrine of equitable estoppel does not apply.

In view of the conclusion in paragraph 37, it is unnecessary

to reach the other issues raised by Respondent.

Based on the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Suwannee River Water Management

District issue a final order dismissing, with prejudice, the

Administrative Complaint and Notice of Intent to Revoke Water

Use Permit.

DONE A ND ENTERED this 4th day of June, 2004, in

Tallahassee, Leon County, Florida.

S

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flor ida 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 4th day of June, 2004.

ENDNOTES

1/ Unless otherwise noted, all future references are t o

Florida Statutes (2002).

2/ Because of the relatively small allocation being sought by

Respondent, the permit was reviewed and approved by the staff,

rather than by the District Governing Board. In this case,

Mr. Kirk made a recommendation to th e Director of Resource

Management for approval, who then gave final approval for the

issuance of the permit.

3/ The Permit was actually jointly issued to Phil Younts, who

is the executive director of the corporation, and Respondent.

However, the Adminis trative Complaint was filed against Phil

Younts, as the permit holder. At hearing, the parties agreed

that the Florida Conference of the Association of Seventh - Day

Adventists, Inc., is the proper Respondent in this proceeding.

4/ Of the eight other perm it holders against whom a Complaint

was issued, one voluntarily relinquished its permit, while in

return for dismissal of the charges, the other seven agreed to

modify their permits to eliminate the right to transfer water

by bulk transport off their prope rty.

5/ The test well was unmetered until October 2003, and there

is nothing of record to indicate how Respondent determined that

its withdrawals from the test well prior to that date amounted

to around 50,000 gallons per day. In any event, according to

Respondent's expert, the water was used for the "purpose of

construction" of the well itself, "water supply for the

[campground] swimming pool," and a "small volume" for water

sampling purposes.

6/ The record reflects that only a handful of the 296 spri ngs

within the District's jurisdiction experienced the same degree

of impact from the drought that Hornsby Spring did.

7/ It is fair to assume that if Respondent had simply reported

to the District that it was unable to install its production

wells and commence operations due to the drought conditions,

perhaps this proceeding might have been avoided altogether.

Why this information was not conveyed to the District at some

time before February 2002, when the two - year nonuse period ran,

is not of record. However, both Respondent and its consultant

acknowledged that until the Complaint was issued, they were

unaware of the nonuse provision in Section 373.243, Florida

Statutes. (In fairness to them, however, the nonuse provision

had never been used by the District since it began operations

in 1977).

COPIES FURNISHED:

Jerry A. Scarborough, Executive Director

Suwannee River Water Management District

9225 County Road 49

Live Oak, Florida 32060 - 7056

Bruce W. Robinson, Esquire

Brannon, Brown, Haley, Robinson

& Bullock, P.A.

Post Office Box 1029

Live Oak, Florida 32056 - 1029

Patrice F. Boyes, Esquire

Patrice Boyes, P.A.

Post Office Box 358584

Gainesville, Florida 32635 - 8584

NOTICE OF RIGHT TO FILE EXCEPTIONS

All parties have the right to submit writte n exceptions within

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

to this Recommended Order should be filed with the agency that

will render a final order in this matter.