06-002464 Marion County, Florida vs. C. Ray Greene, Iii; Angus S. Hastings; And St. Johns River Water Management District Status: Closed Recommended Order on Tuesday, January 9, 2007.

Summary: Applicant proved the criteria for a Consumptive Use Permit for bottled water had been met. The local comprehensive plan and zoning are not relevant.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARION COUNTY, FLORIDA, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2464

)

C. RAY GREENE, III; ANGUS S. )

HASTINGS; and ST. JOHNS RIVER )

WATER MANAGEMENT DISTRICT, )

)

Respondent s . )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly designated Administrative Law Judge, J.

Lawrence Johnston, held a formal administrative hearing in the

above - styled case on October 4, 2006, in Ocala, Florida.

APPEARANCES

Petitioner Marion County:

Thomas D. MacNamara , Esquire

Marion County Attorney 's Office

601 S outheast 25 th Ave nue

Ocala, Florida 34471 - 2690

Respondent St. Johns River Water Management District :

Vance W. Kidder , Esquire

St. Johns River Water Management

District

4049 Reid Street

Palatka, Florida 3217 7 - 2529

Respondents, C. Ray Greene, III , and Angus S. Hastings:

Wayne E. Flowers , Esquire

Lewis, Longman and Walker, P.A.

245 Riverside Ave nue, Suite 150

Jacksonville, Florida 32202 - 4924

STATEMENT OF THE ISSUE

The issue in this case is whether the portion of

Consumptive Use Permit ( CUP ) Application Number 97106 seeking an

allocation of 499,000 gall ons per day ( gpd ) of groundwater for

commercial/industrial uses ( supply bulk water to bottling

plants) m eets the condition s for issuance as established in

Section 373.223, Florida Statutes, Florida Administrative Code

Rule 40C - 2.301, and the Applicant’s Ha ndbook, Consumptive Uses

of Water. 1 The County does not oppose or contest the portion of

the CUP application authorizing use of 6.0 m illion g p d of

surface water for limerock mining operations.

PRELIMINARY STATEMENT

In April 2006, the St. Johns River Wa ter Management

District (SJRWMD or District ) issued its Notice of Intent to

grant a CUP to Respondents, C. Ray Greene, III , and Angus S.

Hastings (Greene and Hastings, or Applicant) authorizing the use

of 182.14 million gallons per year ( gp y ) (499,000 gpd average)

of groundwater from the Floridan aquifer for

commercial/industrial use (supply bulk water to bottling plants)

and 1,416.0 m illion g p y (6.0 m illion g p d average ) of surface

water for commercial/industrial use (limerock mining operation).

The ground water allocation i s recommended for a 20 - year term ,

and the allocation of surface water is recommended to extend

through the end of 2006. Marion County (County) filed its

Petition for Administrative Hearing (Petition) on June 26, 2006 ,

contesting the Dist rict’s Notice of Intent to issue a CUP to

Greene and Hastings for the amounts of water noted above.

Thereafter, this matter was referred to the Division of

Administrative Hearings for appointment of an Administrative Law

Judge to conduct a formal hearing on the County’s P etition

pursuant to Section 120.57(1), Fl orida Stat utes.

On June 26, 2006, Greene and Hastings filed a Motion to

Dismiss Petition. On September 1, 2006, an Order was entered

denying the M otion to Dismiss . On September 7, 2006, Greene and

Hastings filed a Motion in Limine, seeking exclusion of

testimony and exhibits regarding the County’s Comprehensive Plan

or the County’s Land Development Regulations (LDRs) . An Order

was entered on September 21, 2006 , granting the M otion in

Limine .

A pre - hearing stipulation was filed on September 29, 2006.

At the final hearing, Greene and Hastings presented

testimony from C. Ray Greene, III; Marty Sullivan, an expert in

geotechnical engineering, environmental engineering , and

groundwater modeling; Dr . Marc C. Minno, an expert in wetlands

ecology, and assessment of environmental impacts associated with

groundwater withdrawals; and Dwight T. Jenkins, an expert in

hydrogeology and consumptive use permitting and regulation.

Greene and Hastings introduced the ir E xhibits 1 - 7, which were

received in evidence .

The County presented testimony at the hearing from:

Michael May, an expert in requirements of the Marion County Land

Development Code , whose testimony was received only as a proffer

based on the pre - h earing Order granting the Motion in Limine;

M ounir Bouyounes, an expert in roadway design , whose testimony

was received only as a proffer based on the Order on the Motion

in Limine ; and Troy Kuphal, an expert in water resources

planning. Counsel for the C ounty also presented a summary

proffer of the testimony of Chris Rison, whose testimony was

excluded based on the Order granting the Motion in Limine.

County Exhibits 2 - 6 were received in evidence. An objection to

County Exhibit 1 was sustained, and ruli ng was reserved on

objections to County Exhibits 5 and 6 , which are now overruled.

At the conclusion of the hearing, it was agreed that

proposed recommended orders (PROs) would be filed by the parties

no later than three weeks following filing of the tr anscript of

testimony. A T ranscript of the testimony was filed on

October 24, 2006 , but the parties' request to extend the time

for filing PROs to November 22, 2006, was granted . E ach party

timely - filed a PRO .

On November 27, 2006, SJRWMD filed a Moti on to Strike an

attachment to the County's PRO. The County filed a Response in

opposition on December 6, 2006; Greene and Hastings did not file

a response in the time allotted by Rule 28 - 106.204(1). Based on

the filings, the Motion to Strike is granted.

Except for the attachment to the County's PRO, the PROs

have been considered in the preparation of this Recommended

Order.

F INDINGS OF FACT

The Parties

1. The County is a political subdivision of the State of

Florida. The County operates a water s upply utility that

supplies water for a variety of uses, including providing

untreated water, in bulk, for bottling purposes. The County is

currently engaged in a long - range planning effort designed to

assess water supply demands and sources to supply tho se demands

in the County over the next 50 years. T he County also has

completed a study of the two major springs in the County

( Rainbow Springs and Silver Springs) , and the County’s Board of

County Commissioners is in the process of enacting certain

recomm endations contained in the study.

2. The well for the proposed CUP allocation is located on

approximately 160 acres in northern Marion County. Hastings and

Greene's father owned the property from 1978 until the latter's

death. In 1993, the latter's in terest was transferred to Greene

and two brothers, who now hold title to the property along with

Hastings .

3. The District is a special taxing dist rict created by

Chapter 373, Florida Stat utes , and is charged with the duty to

prevent harm to water reso urces of the District, and to

administ er and enforce Chapter 373, Florida Stat utes , and the

rules promulgated thereunder. The District h as implemented

Chapter 373, Florida Stat utes , in part, through the adoption of

Rule Chapters 40C - 2 and 40C - 20 , and the Applicant’s Handbook,

Consumptive Uses of Water.

Historic Use s of Water on the Mine Site

4. S ince the 1980s, the property where the proposed

withdrawals will occur has been used for mining of limerock and

has been k nown as the “Black Sink Mine . "

5. A ten - inch diameter well has been located on the Black

Sink Mine property for 35 years. The well was originally used

to provide water to augment water levels in canals in and around

the Black Sink Mine property . Later the well was used to

irrigate wate rmelons grown on the property before the mining

operation began.

6. The limerock mining operation at Black Sink Mine uses

approximately 6 m illion g p d of surface water. The mine pit at

the site is divided by an earthen berm that separates a larger,

pre viously mined area from a smaller area where active mining is

occurring. Surface water is pumped from the actively mined

portion of the pit to the larger, previously mined portion of

the pit, to enable mining of the limerock material to be

conducted at le vels below the water table. Dewatering is

necessary in order to remove the limerock. A majority of the

property is mined to a depth of 55 feet below land surface. The

limerock material extracted from the site is transported by

trucks from the site, appr oximately 100 trucks per day, to

various sites across North Florida.

The Need for the Proposed Use of Groundwater

7. If mining of limerock continues at the current pace ,

the limerock material at the Black Sink Mine will be exhausted

within a year. Rec ognizing that the productive use of the

property for limerock mining was nearing an end, Greene and

Hastings began exploring other potential uses for the property,

including use of the existing well on the property for

production of bottled water .

8. T o explore the feasibility of producing water for

bottling from the existing well , in 2004 Greene and Hastings

engaged an engineering firm with expertise in water resources to

conduct a hydrogeologic study of the mine property and well .

The results of the study, showing water of sufficient quality

and quantity for production of bottled water, motivated Greene

and Hastings to submit the CUP application which was the subject

of the hearing. The study also determined that water withdrawn

from the well could b e marketed as spring water.

9. Greene and Hastings also determined through market

research that the demand for bottled water has increased at the

rate of ten percent per year for the last 4 - 5 years and that

Florida bottlers were interested in purchasin g water from the

well on the mine site in bulk for bottling.

10. In order to provide reasonable assurance that the

water use proposed by Greene and Hastings is in such quantity as

is necessary for economic and efficient utilization, Greene and

Hastings must show that the amount to be used is consistent with

what would typically be required for the activity being

supplied; that the water will be used efficiently with loss or

waste minimized; and that there is a demonstrated need for the

water proposed fo r allocation.

1 1 . To demonstrate a need for the 499,000 gpd of

groundwater requested in the application for an allocation of

499,000 gpd of groundwater, Greene and Hastings provided letters

from two businesses engaged in bottling of water stating an

in tent to purchase specific quantities of water produced from

the Greene and Hastings well should the CUP be granted. One of

the letters of intent came from a bottler in Jacksonville,

Florida, stating its intention to initially purchase 100,000 gpd

of Green e and Hastings ’s water . T he other was from a bottler in

Stuart, Florida, dated January 9, 2006, stating its intention to

purchase 125,000 gpd of water from Greene and Hastings within

“the next 12 - 24 months . ” B ased on these letters Greene and

Hastings ini tially requested an allocation of 200,000 gpd of

groundwater for the first year of the permit.

1 2 . Prior to completion of the CUP application, Greene and

Hastings learned that because the Stuart bottler’s facility was

located outside the geographic bou ndaries of the District, to

transport water from the Black Sink Mine to th e Stuart facility

would require additional data and information related to inter -

district transfers of groundwater. Greene and Hastings elected

to reduce the requested allocation fo r the first year of the

permit to 100,000 gpd , relying on the letter from the

Jacksonville bottler .

1 3 . Based on the current market demand for bottled water,

and based on the fact that there are other bottlers of water

with in the boundaries of the Distr ict purchasing water for

bottling , it is reasonable to conclude that Greene and Hastings

can sell 499,000 gpd of water from the well on the Black Sink

Mine property by the end of the fifth year of the proposed CUP.

These facts support the conclusion that there is a need for the

amount of water requested by Greene and Hastings .

14. In addition, the permit is conditioned to r equire a

compliance review at five - year intervals during the term of the

permit. Should Greene and Hastings not be successful in sel ling

the full 499,000 gpd allocated by the fifth year of the permit,

the District h as the ability as part of the five - year compliance

review to modify the permit to reduce the allocation based on

the amount of water actually used for bottled water.

Effic iency of the Proposed Use of Water

1 5. The production of water in bulk for shipment to a

bottler is a highly efficient use of water. There is very

little if any water lost in the withdrawal and loading of the

water; almost all the water goes to the end product. The

evidence establishes that the use proposed by Greene and

Hastings is an efficient use of water.

Potential Impacts from the Proposed Groundwater Allocation

1 6 . The source of the groundwater proposed for use by

Greene and Hastings is the F loridan aquifer. Because there is

no confining layer in the vicinity of the Black Sink Mine that

would retard movement of water between the Upper Florida n

aquifer and the surficial aquifer, both the Upper Floridan

aquifer and the surficial aquifer essenti ally behave as one

unit. Thus, any drawdown in the surficial aquifer associated

with groundwater withdrawals at this location will be the same

as the related drawdown in the Upper Florida n aquifer as a

result of groundwater withdrawals.

1 7 . The Florid a n aquifer is capable of producing the

amount of groundwater requested by Greene and Hastings in the

application.

1 8 . To assess the level of drawdown expected to occur in

both the Florida n aquifer and the surficial aquifer as a

consequence of the propo sed groundwater withdrawals, Greene and

Hastings engaged a consultant , Andreyev Engineering, Inc., to

run a groundwater model to simulate the proposed withdrawal and

predict the anticipated drawdown.

1 9 . The groundwater model selected for use for this

application was the North Central Florida Regional Groundwater

Flow Model, a model developed for the District by the University

of Florida for use in Marion County and surrounding areas. This

model is an accepted and reliable tool for predicting aquifer

d rawdown associated with groundwater withdrawals at the location

of the withdrawals proposed in this application and is used

extensively by the District in its CUP program.

20 . To simulate the drawdown associated with the

withdrawal of 499,000 gpd from the Florida aquifer, Greene and

Hastings ’s consultant inserted a pumping well in the model grid

where the Black Sink Mine is located. The model then simulated

pumping from the well at 499,000 gpd. The model results are

graphically depicted on maps showin g drawdown contours overlain

on the Black Sink Mine Site, illustrating the level of drawdown

in the aquifer and the distance the level of drawdown extends

out from the well site.

21 . The model predicts a drawdown of 0. 0 3 feet in the

Floridan and surfic ial aquifers in the immediate vicinity of the

well on the Black Sink Mine property , and a drawdown of 0. 0 2

feet in the Floridan and surficial aquifers extending out to a

distance of approximately 5,000 feet from the well , less than

1/3 of an inch of drawdo wn . The model results represent a

reasonable estimation of the drawdown th at will occur as a

consequence of withdrawal of 499,000 gpd of groundwater at the

Black Sink Mine as proposed in the application.

22 . The impact of the 0. 0 2 - 0. 0 3 foot drawdown p redicted by

the model was variously characterized by the experts who

testified at the final hearing as “ not practically measurable,”

an “insignificant impact,” “very small,” or “de minimus.”

23 . The use of water proposed by Greene and Hastings will

not cause significant saline water intrusion, nor will it

further aggravate any existing saline water intrusion problems.

The use of water proposed by Greene and Hastings will not induce

significant sa line water intrusion to such an extent as to be

inconsist ent with the public interest.

2 4 . Because the predicted drawdown is so small, it will

not interfere with any existing legal uses of water. Neither

will the predicted drawdown cause serious harm to the quality of

the source of the water proposed for us e by Greene and Hastings .

2 5 . With regard to the issue of interference with existing

legal users, the County argued that the District should have

considered whether there is sufficient groundwater available to

meet all projected needs for water in the County during the 20 -

year term of the permit , as well as the additional cost County

citizens will need to bear to secure alternative water supplies

as a result of any future shortfalls in available groundwater.

2 6 . The County projects, based on plannin g estimates, that

use of groundwater to supply all anticipated uses of water in

the County will be limited within 20 - 30 years from the present .

Such “limits” w ould not become an issue until after the Greene

and Hastings permit expires. Thereafter, water users in the

County will have to rely on alternative water sources,

conservation, reuse of reclaimed water , and surface water. The

anticipated growth in demand in the County’s planning estimates

includes anticipated growth in the commercial/industrial

cat egory of uses. The County’s estimated limits on groundwater

use will occur whether or not the CUP requested by Greene and

Hastings is approved.

2 7 . The District does not base its permitting decisions on

a pending CUP application on the possibility tha t the source of

water may become limited at some future time for water uses not

presently permitted , provided the application m eets all

permitting criteria. The District allocates water for

recognized beneficial uses of water, such as

commercial/industria l uses, as long as the water is available

and the application meets District criteria. The District

allocates water as long as an allocation does not cause harm to

the resource. Based on these facts , the proposed use of water

by Greene and Hastings will not interfere with any existing

legal use of water.

No Evidence of Economic o r Environmental Harm

28. Because the predicted drawdown associated with the

proposed use of water is so small, and because no impacts are

anticipated on any surrounding propert ies or water uses, Greene

and Hastings have provided reasonable assurance that any

economic harm caused by the proposed use has been reduced to an

acceptable amount.

2 9 . For purposes of determining whether an applicant has

provided reasonable assurance that any environmental harm caused

by a proposed use of water is reduced to an acceptable amount,

the District examines modeling results showing the level of

drawdown predicted for the use and also examines the resources

in and around the site of a withdr awal to determine the likely

impact of the drawdown predicted for the withdrawal on those

resources.

30 . T he District’s environmental scientist s examined the

Black Sink Mine site and the surrounding landscape and

determined that , based on the character istics of the landscape

in and around the site of the proposed withdrawal and based on

the negligible drawdown impact predicted for the proposed water

use in both the Floridan and surficial aquifers, there will be

no environmental harm resulting from the a llocation of

groundwater contained in the CUP.

31 . The use of water proposed by Greene and Hastings will

not cause damage to crops, wetlands , or other types of

vegetation. The use of water proposed by Greene and Hastings

will not cause the water table to be lowered so that stages or

vegetation will be adversely and significantly affected on lands

other than those owned, leased , or otherwise controlled by

Greene and Hastings . The CUP will not use water that the

District has reserved pursuant to S ection 373.223(3), Fl orida

Stat utes , and Rule 40C - 2.301(4) .

No Impact on Established Minimum Flows or Levels

32. No minimum surface or groundwater levels or surface

water flows have been establish ed by the District pursuant to

Rule C hapter 40C - 8 for any of the water bodies in Marion County

that may be affected by the proposed water use.

33. The closest water body for which the District has

established a minimum flow is the St. Johns River at the State

Road 44 bridge located more than 50 miles from the Bl ack Sink

Mine property. The closest water body for which the District

has established a minimum level is Star Lake in Northwest Putnam

County, more than nine miles from the mine site. Because of the

distance of these water bodies from the withdrawal site and

because of the negligible drawdown expected to be caused by the

proposed use of water, the use will not cause an established

minimum flow or level to be exceeded during the term of the

permit.

Other Reasonable - Beneficial Use Considerations

34 . All available conservation measures that are

economically, environmentally , and technically feasible are

proposed for implementation in the application by Greene and

Hastings for the uses proposed by them. Greene and Hastings

submitted to the District , as pa rt of the application, a

conservation plan that complies with the requirements of A.H.

Section 10.3(e) .

35 . Reclaimed water, as defined in the District’s rules ,

is not currently available to be used in place of the water

proposed for use by Greene and Hastings in the application.

3 6 . The use of water proposed by Greene and Hastings in

the application will not cause or contribute to a violation of

water quality standards in receiving waters of the state.

3 7 . The use of water proposed by Greene an d Hastings in

the application will not cause or contribute to flood damage.

The Use is Consistent With the Public Interest

3 8 . With regard to the determination of whether reasonable

assurance was provided that the proposed use is consistent with

the p ublic interest, the County contend s that: 1 ) Greene and

Hastings must show that any necessary approvals required by the

County’s Comprehensive Plan and/or its LDRs for use of the site

for producing bottled water have been obtained; 2) that the

District did not properly consider the effect of existence of

lawn watering restrictions affecting citizens in the County in

evaluating the application; and 3) that the District should have

considered the amount of money the applicant may stand to gain

from the use of the water requested in the application.

3 9 . In examining whether an application is consistent with

the public interest, the District considers whether a particular

use of water is going to be beneficial or detrimental to the

people of the area and to water resources within the state. In

this inquiry , the District considers whether the use of water is

efficient, whether there is a need for the water requested, and

whether the use is for a legitimate purpose ; and the inquiry

focuses on the impact of the use on water resources and existing

legal users.

40 . Sale of water for bottling for human consumption is

recognized by the District as a legitimate, beneficial economic

enterprise. Use of water for human consumption is among the

highest and best uses permitted by the District. For reasons

outlined above in the Recommended Order, there a re no

detrimental impacts that will result from this use of water.

41 . The District does not consider whether local

government approvals have been obtained prior t o issuance of a

CUP for purposes of determining whether the application is

consistent with the public interest. Neither does the District

consider impacts related to local roads from trucks transporting

the water or other impacts not related to water reso urces . No

such requirements are included in the District’s adopted

permitting criteria.

42 . There are no water shortage orders in effect in the

District at present . In evaluating a CUP application, the

District considers whether its permitting criter ia will be met

during periods of normal weather as well as during periods of

drought. Withdrawals authorized in CUPs can be restricted by

order of the District during periods of water shortage, such as

droughts. Thus, the possibility of a water shortage order being

entered in the County in the future, or the fact that such

orders may have been in effect there in the past , does not mean

the application is not consistent with the public interest.

43 . The District critically examines the efficiency of al l

water uses for purposes of enacting its regulatory requirements

regarding CUPs and in evaluating CUP applications. The District

has adopted restrictions on landscape irrigation (which apply to

all such users throughout the District’s jurisdiction, not j ust

in Marion County ) limit ing landscape irrigation to no more than

two days per week. The limitations on landscape irrigation

exist because this type of use has been determined to be a

highly inefficient , wasteful use of water without such

restrictions. By contrast, the use of water proposed by Greene

and Hastings is a highly efficient use of water, resulting in

little or no loss or waste of water .

44 . The District does not consider the level of financial

gain or benefit an applicant will derive from a permitted use of

water for purposes of determining whether the proposed use is

consistent with the public interest. Most, if not all permitted

users of water derive some level of economic benefit f r o m the

water they use, and the District’s rule criteri a do not provide

standards for evaluating such gain or that otherwise limit the

amount of such gain.

45 . For the foregoing reasons, the A pplicant has provided

reasonable assurance that the use of water proposed in the

application is consistent with the public interest.

Groundwater is the Lowest Quality Source for this Use

4 6 . The County contends that groundwater is not the lowest

quality source of water available for the use proposed by Greene

and Hastings , in that surface water from the mine pit on the

site could be treated and used for bottling in place of

groundwater.

4 7 . From the testimony, it is clear that Greene and

Hastings ’s ability to market water for bottling fro m the Black

Sink Mine is depende nt on such water being capable of being

labe led as spring water, and on such water being delivered

without having gone through any treatment processes. The

testimony also establishes that because of the connection

between the surficial aquifer and the Upper Floridan aquifer at

the site, using surfa ce water instead of groundwater to supply

the proposed use would result in little if any reduction in

impacts to the Florida n aquifer.

4 8 . More importantly, because the application propose s use

of water for direct human consumption, the District’s rule s do

not require use of a lower quality source of water.

49. For the foregoing reasons, groundwater is the lowest

quality source of water suitable for use for bottled water for

human consumption.

The District’s Noticing Was Adequate and Appropriate

50 . The District provided notice of its receipt of the

Greene and Hastings CUP application by publishing notice i n the

Ocala Star - Banner , a newspaper of general circulation in Marion

County , on January 25, 2005, with an amended notice being

published on February 16, 2005, and also by letters to the

County dated January 20, 2005, and February 10, 200 5 . In each

notice, the location of the proposed use was identified by

section, township , and range. The County responded to the

notice s by sending a letter of objection to the application

dated February 14, 2005. Thus, the County received sufficient

information regarding the location of the proposed use to enable

it to prepare and file a letter of objection to the application ,

and suffered no prejudice as a consequence of the notice .

5 1 . The District provided personal notice of its intent to

issue a CUP to Greene and Hastings by letter dated April 5,

2006. In this notice , the location of the proposed use was

identified by section, township , and ra n ge. The County

responded by filing petitions that have resulted in this

proceeding. Thus, the County received sufficient notice of the

location of the use addressed in the District’s intent to issue

to enable it to initiate administrative proceedings regarding

t he permit , and suffered no prejudice as a consequence of the

notice.

CONCLUSIONS OF LAW

Burden of Proof and Initial Burden of Presenting Evidence

5 2 . Greene and Hastings , as applicants for the CUP in

issue here, have the initial burden of presenting a p rima facie

case of entitlement to the permit. Florida Dept. of

Transportation v. J.W.C. Co. , 396 So. 2d 778, 787 (Fla. 1 st DCA

1981).

5 3 . Applicant ’s burden of proof is to provide reasonable

assurance, rather than absolute guarantees, that the condition s

for issuance of a CUP have been met. See City of Sunrise v.

Indian Trace Community Development District, et al. , DOAH Case

No. 91 - 6036, 1991 Fla. ENV LEXIS 6997, 92 ER FALR 21 (DOAH 1991,

SFWMD 1992); Manasota - 88 Inc. v. Agrico Chemical Co. and

Departme nt of Environmental Regulation , DOAH Case No. 87 - 2433,

1990 Fla. ENV LEXIS 38 (DER 1990). The term “reasonable

assurance” means “a substantial likelihood that the project can

be successfully implemented.” Metropolitan Dade County v.

Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla. 3 r d DCA 1992).

The Applicable Permit Criteria

5 4 . In order for Greene and Hastings to meet the burden of

proof described above, they were required to demonstrate

compliance with the criteria included in Section 373.223,

Florid a Stat utes . This statutory provision establishes a three -

prong test requiring that a proposed use of water : (1) is a

reasonable - beneficial use of water; (2) will not interfere with

any presently existing legal use of water; and (3) is consistent

with the public interest. The District’s Conditions for

Issuance of Permits, which implement the three - prong test, are

contained in Rule 40C - 2.301 . T he Criteria for Evaluation of

Permits are found in Part II, Applicant’s Handbook, Consumptive

Uses of Water. The Applicant’s Handbook has been adopted by

reference in Rule 40C - 2.101(1).

5 5 . Rule 40C - 2.301 (2) - (4) provides in pertinent part as

follows:

( 2) To obtain a consumptive use permit for a use

which will commence after the effective date of

implementati on, the applicant must establish that the

proposed use of water:

(a) Is a reasonable beneficial use; and

(b) Will not interfere with any presently

existing legal use of water; and

(c) Is consistent with the public interest.

(3) For purposes of subsection (2)(b) above,

“presently existing legal use of water” shall mean those

legal uses which exist at the time of receipt of the

application for the consumptive use permit.

(4) The following criteria must be met in order

for a use to be considered beneficial:

(a) The use must be in such quantity as is

necessary for economic and efficient

utilization.

(b) The use must be for a purpose that is

both reasonable and consistent with the

public interest.

(c) The source of the water must be capable

of re ducing the request ed amounts of

water.

(d) The environmental or economic harm

caused by the consumptive use must be

reduced to an acceptable amount.

(e) All available water conservation

measures must be implemented unless the

applicant de monstrates that

implementation is not economically,

environmentally or technologically

feasible. Satisfaction of this

criterion may be demonstrated by

implementation of an approved water

conservation plan as required in

S ection 12.0 . , Applicant's Handbook :

Consumptive Uses of Water.

(f) When reclaimed water is readily

available it must be used in place of

higher quality water sources unless the

applicant demonstrates that its use is

either not economically,

environmentally, or technologically

feasible .

(g) For all uses except food preparation

and direct human consumption, the

lowest acceptable quality water source,

including reclaimed water or surface

water (which includes stormwater), must

be utilized for each consumptive use.

To use a higher quali ty water source an

applicant must demonstrate that the use

of all lower quality water sources will

not be economically, environmentally or

technologically feasible. If the

applicant demonstrates that use of a

lower quality water source would result

in adv erse environmental impacts that

outweigh water savings, a higher

quality source may be utilized.

(h) The consumptive use shall not cause

significant saline water intrusion or further

aggravate currently existing saline water

intrusion problems.

(i) The consumptive use shall not cause or

contribute to flood damage.

(j) The water quality of the source of the water

shall not be seriously harmed by the

consumptive use.

(k) The consumptive use shall not cause or

contribute to a violation of state

water q uality standards in receiving

waters of the state as set forth in

Chapters 62 - 3, 62 - 4, 62 - 302, 62 - 520,

and 62 - 550, F.A.C., including any anti -

degradation provisions of Sections 62 -

4.242(1)(a) and (b), 62 - 4.242(2) and

(3), and 62 - 302.300, F.A.C., and any

sp ecial standards for Outstanding

National Waters set forth in Section s

62 - 4.242(2) and (3) , F.A.C . A valid

permit issued pursuant to Chapters 62 -

660 or 62 - 670, F.A.C., or Section 62 -

4.240, F.A.C., or a permit issued

pursuant to Chapters 40C - 4, 40C - 40,

40C - 42, or 40C - 44, F.A.C., which

authorizes the discharge associated

with the consumptive use shall

establish that t his criterion has been

met, provided the applicant is in

compliance with the water quality

conditions of that permit.

(l) The consumptive use must not cause

water levels or flows to fall below the

minimum limits set forth in Chapter

40C - 8, F.A.C.

5 6 . In addition to the foreg oing, Rule 40C - 2.301(5)(a)

sets forth the reasons for denial of a CUP application,

providing:

(5)(a) A proposed consu mptive use does not meet the

criteria for the issuance of a permit set forth in

subsection 40C - 2.301(2), F.A.C., if such proposed water

use will:

1. Significantly induce saline water

encroachment; or

2. Cause the water table or surface water

level to b e lowered so that stages or

vegetation will be adversely and

significantly affected on lands other

than those owned, leased, or otherwise

controlled by the applicant; or

3. Cause the water table level or aquifer

potentiometric surface level to be

lowered so that significant and adverse

impacts will affect existing legal

users; or

4. Require the use of water which pursuant

to Section 373.223(3), Florida Statutes,

and Rule 40 C - 2.301(6), F.A.C., the Board

has reserved from use by permit; or

5. Cause the rate of flow of a surface

watercourse to be lowered below any

minimum flow which has been established

in Chapter 40C - 8, F.A.C.; or

6. Cause the level of a water table

aquifer, the potentiometric surface

level of an aquifer, or the water level

of a surfa ce water to be lowered below a

minimum level which has been established

in Chapter 40C - 8, F.A.C.

These criteria are also found in A.H. Section 9.4.

The Proposed Use Is a Reason a ble - Beneficial Use

5 7 . R easonable assurance has been provided that the

rea sonable - beneficial use criteria listed in Rule 40C -

2.301(4) (c), ( e), (f), (h), (i), and (k) are met. These same

criteria are found in A.H. Sections 10.3(c), (e), (f), (h), (i)

and (k) .

5 8 . B ottling water for human consumption is a highly

efficient use in that very little if any water devoted to the

use will be lost or wasted. Virtually all of the water

withdrawn will go into the product.

5 9 . Also with regard to this criterion, the amount of

water requested for the use is appropriate for this type of u se ,

and Applicant has the ability to market the water in the

quantities allocated.

60 . In addition to the letter of intent in the permit file

from a Jacksonville bottler stating its intent to purchase the

100,000 gpd allocated for the first year of the permit, Greene

and Hastings presented evidence establishing that the market for

this product is rapidly expanding, supporting the ability to use

the amounts of water allocated through Y ear 5 of the permit.

6 1 . Should Greene and Hastings be unable to use t he full

499,000 gpd allocation of groundwater by the fifth year of the

permit, the District retai ns the ability, as part of the five -

year compliance reviews provided for by condition in the permit,

to review and modify the allocation, to adjust for any par t of

the allocation that is unused.

6 2 . Greene and Hastings provided reasonable assurance that

the proposed us e complies with Rule 40C - 2.301( 4)(a) and A.H.

Section 10.3(a).

6 3 . In order to provide reasonable assurance that t he

proposed use of water is for a purpose that is both reasonable

and consistent with the public interest, Greene and Hastings

presented evidence that bottling of water from the well on the

Black Sink Mine property is a legitimate, economically

beneficial commercial enterprise. In a ddition, Greene and

Hastings presented evidence establishing that there will be no

adverse economic o r environmental impacts resulting from the

proposed use.

6 4 . Greene and Hastings provided reasonable assurance that

the proposed use compli es with Rule 40 C - 2.301(4) ( b) and A.H.

Section 10.3(b).

6 5 . In order to establish that the economic or

environmental harm, if any, caused by the proposed use will be

reduced to an acceptable amount, Greene and Hastings presented

expert testimony regarding groundwater m odeling done in support

of the application. The results of the modeling showed that the

predicted drawdown in the Floridan and surficial aquifers

expected to be caused by the withdrawal of 499,000 gpd of

groundwater is so small that it will have no effect on any other

users of water in the region.

6 6 . Further, the evidence presented by Greene and Hastings

established that, based on the results of the groundwater

modeling combined with an expert field evaluation of the

landscape surrounding the site of t he withdrawals, there will be

no harm to any environmental features on or in the vicinity of

the mine site.

6 7 . The e conomic impacts resulting from the proposed use

will be positive.

6 8 . Greene and Hastings provided reasonable assurance that

the propo sed use complies with Rule 40C - 2.301(4)(d), and A.H.

Section 10.3(d) .

6 9 . In order to provide reasonable assurance that the

proposed use of groundwater represents use of the lowest quality

source of water suitable for the use, Greene and Hastings

prese nted evidence that the use is for human consumption.

Because the use is for human consumption, pursuant to the terms

of Rule 40C - 2.302(4)(g), an applicant is relieved of any

requirement to demonstrate that a lower quality source (lower

quality than ground water) is not feasible for the proposed use.

70 . In addition, the evidence presented by Greene and

Hastings demonst rated that the alternate, lower - quality source

advocated by the County, surface water from the mine pit, could

not be substituted for groun dwater because the surface water

would require treatment to make it suitable for consumption.

Greene and Hastings cannot market water from the property to the

bottlers who have expressed intentions to purchase water from

them if the water has been treated prior to providing it to the

bottlers. Therefore, in addition to increasing the cost of

production , assuming the water from the mine pit could be

treated to levels appropriate for human consumption, Greene and

Hastings would be left with a product that c ould not be sold.

7 1 . In addition to the foregoing, because of the close

connection between the surficial aquifer and the Floridan

aquifer at the site, withdrawing wate r from the open mine pit

would reduce water levels in the Florida aquifer. Thus, ther e

would be little or no reduction in drawdown impacts in the

Floridan aquifer if the withdrawals were made from the mine pit

instead of from the Floridan aquifer.

7 2 . Greene and Hastings provided reasonable assurance that

the proposed use complies with R ule 40C - 2.301(4)(g) and A.H.

Section 10.3( g) .

7 3 . In order to provide reasonable assurance that the

source of the water for the proposed use will not be seriously

harmed by the use, Greene and Hastings presented the previously -

mentioned modeling inform ation demonstrating that the drawdown

in the Floridan aquifers is not predicted to exceed 0.03 feet,

approximately one - third of an inch. This almost immeasurable

drawdown, according to the uncontraverted expert testimony

presented by Greene and Hastings , will have no adverse impact on

the Floridan aquifer.

7 4 . Greene and Hastings provided reasonable assurance that

the pro posed use complies with Rule 40C - 2.301(4)(j) and A.H.

Section 10.3(j).

7 5 . In order to provide reasonable assurance that the

propos ed use will not cause a minimum flow for a surface

watercourse or a minimum level for an aquifer or a surface water

body, established pursuant to Chapter 40 C - 8, Florida

Admin istrative Code , to fall below the established minimum flow

or level, Greene and Ha stings presented evidence that , due to

the inconsequential drawdown predicted for the proposed

withdrawals and due to the distance between the site of the

withdrawals and the few water bodies where established minimum

flows or levels exist, there will be n o such impact.

7 6 . Greene and Hastings provided reasonable assurance that

the proposed use complies with Rule 40C - 2.301(l).

Interference With Existing Legal Users

7 7 . In order to provide reasonable assurance that the

proposed use will not interfere wi th any existing legal use of

water existing at the time of submission of its application,

Greene and Hastings presented the results of the modeling effort

showing a predicted drawdown of 0.03 feet or less as a

consequence of the use. This was supported by expert testimony

that because of the small drawdown expected to be caused by the

use there will be no impact on any existing legal users.

7 8 . Rule 40C - 2.301(3) makes it abundantly clear that , for

purposes of application of the criterion related to

inter ference, “existing legal users” means only legal uses

existing at the time the application is submitted. Thus,

speculative, potential future uses, not presently in existence,

and not permitted by the District are not considered existing

legal uses for pur poses of this test.

7 9 . Greene and Hastings provided reasonable assurance that

the proposed use complies with Rule 40C - 2.301(2)(b).

Consistency with the Public Interest

80. Pursuant to A.H. Section 9.3, “public interest” means:

... those rights and claims on behalf of

people in general. In determining the

public interest in consumptive use

permitting decisions, the Board will

consider whether an existing or proposed use

is beneficial or detrimental to the overall

collective well - being of the people or to

the water resources of the area, the

District and the State.

81 . In order to provide reasonable assurance that the

proposed use of water is consistent with the public interest,

Greene and Hastings presented testimony that the water will be

used for a pr oductive, beneficial economic activity and that

there will no adverse impacts to the source of the water, to

environmental resources , or to any adjoining landowners. These

are the considerations generally encompassed and addressed by

the District’s permit ting criteria. With regard to these

criteria , there was no evidence offered showing any detrimental

impacts resulting from the proposed use of water.

8 2 . The County argues that the District should have

evaluated and considered whether the activity assoc iated with

the proposed use complies with the County’s comprehensive plan

or zoning code , o r that Greene and Hastings should be required

to obtain such approvals or authorizations from the County

before being permitted to proceed with the CUP process.

8 3 . The District has not adopted , either directly or by

reference, any of the County’s land use requirement s as criteria

for which an applicant must provide reasonable assurance in

order to be granted a CUP. N either has the District adopted

rule provisions making any other related approvals , such as

comprehensive plan amendments , a pre - requisite for applying for

a CUP. The District, in fact, is prohibited from requiring

compliance with local government regulations which have not

specifically been adopted as the part of the District’s rule

criteria. See Council of the Lower Keys v. Charley Toppino &

Sons, Inc. , 429 So. 2d. 67 (Fla. 3 r d DCA 1983); Save the St.

Johns River v. St. Johns River Water Management District ,

623 So . 2d. 1193 (Fla. 1 st DCA 1993). The County’s position on

this point, as previously determined in the Order granting

Greene and Hastings ’s Motion in Limine, is without merit.

8 4 . The County’s argument , that the District should

consider the amount of money a permittee stands to make fro m a

use of water as a component of the public interest test, is

equally without merit. Nowhere in the District’s rule criteria

is the amount of economic return a permittee receives from water

use made a test or factor in determining whether an applicant

s hould be granted a permit or not. Further, even if this factor

could be considered by the District, there is no guidance in the

District’s permitting criteria that would instruct the District

or applicants regarding how much a permittee may be allowed to

earn before the use ceases to be consistent with the public

interest. The County’s position on this point is without merit.

8 5 . The County also argues that the District should

consider that , within the County’s 50 - year planning horizon,

there will be limits on the availability of groundwater for all

water uses in the County, and should deny the application

because the alternative water sources will be required for

County water uses at some point in the future. In essence , the

County seeks to have a vi able source of water ruled off - limits

to this particular user, in favor of unpermitted and as - yet

unidentified alternative groundwater uses.

8 6 . If a source of water is available for use, and a

beneficial use can be made of water from the source, and if a

proposed use of the source meets all of the District’s criteria

for such use, the District has no basis on which to deny that

applicant’s request for a permit to use water from the source.

8 7 . Finally, with regard to consistency with the public

intere st, the County suggests that the existence of restrictions

on the frequency of landscape irrigation is a factor that should

have been considered by the District in evaluating the

application. In fact , the restrictions enacted by the District

for all water users , in all counties in the District, are

intended to maximize efficiency for this particular use

(landscape irrigation) . Commercial/industrial uses also have

efficiency standards and the use proposed by Greene and Hastings

is highly efficient. This a rgument has no merit.

Reasons for Recommendation of Denial Not Established

88. None of the reasons for recommendation of denial of a

CUP application list ed in Rule 40C - 2.301(5)(a) or A.H. Sec tion

9.4 were established by the evidence offered at the heari ng. To

the contrary, all applicable criteria have been met by Greene

and Hastings .

Adequacy of the Notices Provided

8 9 . The County contends that the notice of receipt of

application and the notice of intended action on the application

were inadequate b ecause they described the location of the

activity by section, township , and range.

90 . Section 373.229(1) , Florida Statutes , provides that

notices for CUPs shall contain, among other things: 1) the place

of use; and 2) the location of the use. Nothing in the statute

prescribes that such notices must be given by address or

anything more specific than section, township , and range.

91 . The County does not suggest, nor did it present

evidence suggesting that the notices were inaccurate or

misleading. The District complied with the requirements of the

statu t e, in that the notice provides a location for the use.

See Ray, et al. v. St. Johns River Water Management District et

al. , DOAH Case Nos. 97 - 0803 and 97 - 0804, 1997 Fla. ENV LEXIS

121, (DOAH July 14, 1 997, SJRWMD Aug. 13, 1997) .

92 . T he notices did not prevent the County from presenting

its position or asserting its rights during the permitting

process .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDE D that the District enter an order granting CUP

No. 97106 to Greene and Hastings with the conditions recommended

in the District’s Technical Staff Report.

DONE AND ENTERED this 9th day of January, 2007, in

Tallahassee, Leon County, Florida.

S

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 9th of January, 2007.

ENDNOTE

1 / Unless otherwise indicated, all statutory references are to

the 2006 codification of the Florida Statutes, and all rule

references are to the current codification of the Florida

Administrative Code. References to the Applicant’s Handbook,

Consumptive Uses of Water, will use the abbreviation "A.H."

COPIES FURNISHED :

Kirby Green, Executive Director

St. Johns R iver Water Management

District

4049 Reid Street

Palatka, Florida 32177 - 2529

Wayne E. Flowers, Esquire

Lewis, Longman & Walker, P.A.

245 Riverside Avenue, Suite 150

Jacksonville, Florida 32202 - 4924

Thomas D. MacNamara, Esquire

Marion County 's Attorney's Office

601 Southeast 25th Avenue

Ocala, Florida 34471 - 2690

Vance W. Kidder, Esquire

St. Johns River Water Management

District

4049 Reid Street

Palatka, Florida 32177 - 2529

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have th e 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.