10-010214 Henry C. Ross vs. City Of Tarpon Springs And Southwest Florida Water Management District Status: Closed Recommended Order on Friday, April 22, 2011.

Summary: City of Tarpon Springs proved it is entitled to Water Use Permit to be issued by SWFWMD to assist in converting brackish water to potable water for which there is public demand.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY C. ROSS , )

)

Petitioner , )

)

vs. ) Case No. 10 - 1 0214

)

CITY OF TARPON SPRINGS AND )

SOUTHWEST FLORIDA WATER )

MANAGEMENT DISTRICT , )

)

Respondents . )

)

RECOMMENDED ORDER

This case was heard by David M. Maloney, Administrative Law

Judge of the Division of Administrative Hearings, on January 18,

201 1 , in Tarpon Springs, Florida.

APPEARANCES

For Petitioner: Henry C. Ross, pro se

1020 Sou th Florida Avenue

Tarpon Springs, Florida 34689

For Respondent City of Tarpon Springs:

Thomas Jask, Esquire

Frazer, Hubbard, Brandt, Trask

& Yacavone, LLP

595 Main Street

Dunedin, Florida 34698

For Responden t Southwest Florida Water Management District:

Adrienne E. Vining, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

BACKGROUND

The City of Tarpon Springs (the "City") a pplied to the

Southwest Florida Water Management District (the "District" or

"SWFWMD") for a Water Use Permit (the "WUP") by submitting

Application No. 20000742.010 (the "Application"). In October of

2010, the District issued its Notice of Proposed Agency Action

approving the Application. Henry C. Ross ("Petitioner Ross")

promptly filed a timely Petition for Administrative Hearing (the

"First Petition") with the District.

After the dismissal of the First Petition "without

prejudice , " Petitioner filed a s eries of documents including a

document entitled "Petition for Administrative Hearing" (the

"Petition"). The District determined the collective filings of

Petitioner Ross to substantially comply with the statutory and

rule requirements governing the initi ation of administrative

proceedings involving disputed issues of material fact.

The District requested that the Division of Administrative

Hearings ("DOAH") assign the matter to an Administrative Law

Judge to conduct all necessary formal proceedings and s ubmit a

recommended order to the District. Originally assigned to

Administrative Law Judge Bram D.E. Canter, the case was

transferred to the undersigned and set for hearing on

January 18, 2011 . It procee ded to hearing as scheduled .

STATEMENT OF THE ISSU ES

1. Whether Petitioner Ross has stan ding to challenge the

issuance of the WUP?

2. Whether the District should approve the Application and

enter a final order that issues the WUP?

PRELIMINARY STATEMENT

The District issued the Proposed Notice of Agenc y Action

for approval of the City's Application on October 20, 2010. The

First Petition was filed by Petitioner Ross on October 22, 2010.

After the dismissal of the First Petition without prejudice and

the subsequent filing of multiple documents by Petit ioner Ross,

the District referred the matter to DOAH.

At the final hearing, the City presented the testimony of

two fact witnesses: Bob Robertson, P.E., Public Services

Program Manager for the City and Project Manager for the Tarpon

Springs Reverse Osmos is Water Treatment Plant ; and Mike

Carballa, P.E., an Environmental Engineer employed by Camp,

Dresser & McKee ("CDM"), who worked for the City on the

project's design. The City also presented the testimony of

three expe rt witnesses: Jeff Trommer, a h ydr o - geologist

employed by Leggette, Brashears & Graham ("LBG"), accepted as an

expert in hydro - geologic activities; Roger Menendez, a Senior

Environmental Scientist, employed by CDM, accepted as an expert

in the fields of biology and ecology; and David Wiley , a h ydro -

geologist employed by LBG, accepted as an expert in hydro -

geology. The City offered 43 exhibits, marked for

identification as City Exhibits 1 - 16, 18 - 35, 38, 39, 41, and 45 -

50. All were admitted into evidence.

The District presented the testimo ny of two experts:

Darrin Herbst, a Water Use Regulation Manager for the District,

accepted as an expert in the fields of water use permitting,

hydro - geology, and groundwater flow modeling; and

Patricia Frantz, a Senior Environmental Scientist for the

Dis trict, accepted as an expert in aquatic and wetland ecology,

wetland assessment and monitoring, habitat assessment as it

relate s to threatened and endangered species, and water use

permitting. The District offered five exhibits. Marked as

District Exhibi t Nos. 1, 2, 17, 36 and 37, all five were

admitted into evidence.

Petitioner Ross testified on his own behalf. He presented

no other witnesses. Petitioner Ross offered four exhibits.

Petitioner Exhibit Nos. 1 - 3 were not admitted into evidence and

were proffered ; Petitioner Exhibit No. 4, a composite, was

admitted over objection from the City.

At the request of the City and the District, official

recognition was taken of s ections 120.569, 120.57 , and 373.019,

Florida Statutes; Part II of Chapter 373, Fl orida Statutes;

Florida Administrative Code Chapter 40D - 2; and the Southwest

Florid a Water Management District Water Use Permit Informational

Manual, Part B, Basis of Review.

The T ranscript of the final hearing was filed on

February 11, 2011. The deadlin e for filing p roposed recommended

orders was agreed by the parties to be 15 days after the

T ranscript was filed. The City filed its P roposed Recommended

O rder on February 25, 2011. The District filed its P roposed

Recommended O rder on February 28, 2011. Both were timely filed

since the fifteenth day after February 11, 2011, fell on

February 26, 2011, a Saturday.

Petitioner Ross was granted an extension of time in which

to file a proposed recommended order. O n April 1, 2011, he

filed an "Amendment to Ad dendum to Proposed Order of

Petitioner." After the expiration of the extension of time for

the filing of a proposed recommended order and no such document

having been filed, an order was entered that treated the

document filed April 1 as P etitioner Ross' P roposed Recommended

O rder. The parties were given seven days to reply . The City

and the District both filed notices that they did not intend to

reply. Mr. Ross's filing w as considered in the preparation of

this R ecommended O rder.

FINDINGS OF FACT

Th e Parties

a. Petitioner Ross

1. Petitioner Ross is a resident of Pinellas County ,

( referred to by him at hearing as " the most urbanized county in

the State of Florida ") . Besides residing there, Petitioner Ross

operates a farm on his property in the Cou nty.

2. The City's experts reasonably projected and mapped a

0.5 foot drawdown contour surrounding the well field that is the

subject of this proceeding . The contour defines "the cone of

depression" associated with the well field. See Tr. 136.

Mr. Ros s' property is outside the cone of depression, to its

south and west.

3. The overall groundwater gradient in the area of the

well field is from the east to the west. The water pumped from

the well field does not pull water from the west because the

pump ing withdrawal will not reduce the potentiometric surface

gradient enough to reverse the current gradient.

4. Mr. Ross' property and the well on his property are

"way outside," tr. 138, the well field and the 0.5 drawdown

contour surrounding the well fie ld. Based on the amount of

drawdown reasonably projected by the well field, the effect on

Mr. Ross' property could not be measured because it would be so

slight. If the water in his well were to rise after the WUP is

implemented, it would be impossible t o tell whether the water

rose "because the pump's turned off or because it rained the day

before." Tr. 163.

b. The District

5. The District is the administrative agency charged with

the responsibility to conserve, protect, manage , and control the

water resources within its geographic boundaries.

6. The District administers and enforces c hapter 373, and

the rules promulgated pursuant thereto. Among those rules are

those that relate to the consumptive use of water found in

c hapter 40D - 2.

c. The City

7. The City of Tarpon Springs is the applicant for the WUP

that is the subject of this proceeding. The City's application

seeks to modify an existing permit.

The Existing Permit

8 . The City has an existing Water Use Permit (the

"Existing Permit") from the District. Originally granted in

1976, it allows for withdrawal of fresh groundwate r for public

supply. The Existing Permit was last renewed in October of 2005

for a ten - year period. It expires in October of 2015.

9 . Under the Existing Permit , the withdrawal capacity is

1.38 million gallons per day annual average and allows for seven

production wells.

The Application and its Modification

10 . The City submitted the Application in July, 2008. The

Application at that time was for 25 wells in a brack ish water

well field for a proposed brackish groundwater reverse osmosis

plant that the City plans to build.

11 . The City's intent originally was to apply for a permit

separate from the Existing Permit . 1/ In September of 2009,

however, the City requeste d that the Application be considered a

modifi cation of the Existing Permit . In honoring the request,

the Dis trict changed the number assigned to the Application to

"20000742.010 ." 2/

12 . The A pplication was also modified with regard to the

number of prod uction wells in the brackish well field . The

number was reduced from 25 to 22 , "due to land acquisition

efforts indicating that the maximum number of wells . . .

required for the project would be 22." Tr. 54.

13 . The Application contains an introductio n that

summarized the City's water supply system and its water supply

plans, a completed Individual Water Use Permit Application f orm,

a completed Public Supply Supplemental form, an d an Impact

Analysis Report (the "Report").

14 . The Report states that t he ground - water flow model

"MODFLOW" 3/ was used to perform the impact analysis. Assessment

of average annual and peak month withdrawal impacts in the Upper

Floridan and surficial aquifers used the SWFWMD District Wide

Regulation Model Version 2 ("DWRM2"). One of the enhancements

the DWRM2 offers over earlier model versions is "integrated

focused telescopic mesh refinement (FTMR) which allows the model

grid user to refine the model grid spacing to focus on specific

areas within the District." 4/

15 . The R eport included the FTMR model grid, total

drawdown scenarios in the Upper Floridan Aquifer and the

surficial aquifer, and a peak month draw down scenario .

16 . The A pplication also included a summary of the

regional hydro - geology, a summary of the City's w astewater

system, a description of the City's potable water supply, an

historical operating protocol and a proposed well field

management plan for the City's new brackish water well field, a

service area and well field location aerial, a table showing the

general hy d rostratigraphy in northern Pinellas County, a summary

of seasonal fluctuations which addressed the conditions for

issuance of a permit as set forth in r ule 40D - 2.381 , a summary

of the City's reclaimed water system, well location maps,

wetland ma ps, Water Use Permit maps and schedules, the City's

well field protection ordinance, maps pertaining to the proposed

service areas, a water conservation letter , and water

conservation information.

17 . The 22 new production wells in the brackish water wel l

fiel d will provide enough water once treated at the proposed

reverse osmosis membrane treatment plant to enable the City to

supply the anticipated potable water demand for all of the

City's customers through the year 2015. Installation of the

additional production w e lls will increase the annual average

quantity of groundwater pumpage to 4,200,000 gallons per day

("gpd") and the peak month quantity to 6,300,000 gpd.

1 8 . Review of the Application by the District led to four

requests by the District for a dditional information. The City

responded to each. The responses included a well construction

and aquifer testing program report, a Water Quality/Water Level

Well Impact Mitigation Plan, a Water Quality Action Plan, a

revised Water Quality/Water Level We ll Impact Mitigation Plan, a

revised Water Quality Action Plan and a second revision of the

Water Quality Action P lan, a second Water Quality/Water Level

Well Impact Mitigation Plan, a proposed Environmental Monitoring

Plan, a third revised Water Quality A ction Plan, a third revised

Water Quality/Water Level Well Impact Mitigation plan, and the

final Environmental Monitoring Plan.

Draft Water Use Permit

1 9 . On October 8, 2010, the District gave notice of its

intent to issue a permit that would modify the City's Existing

Permit for public supply use . Attached to the notice is a Draft

WUP.

20 . The modification includes the development of a

brackish water well field with 22 additional production wells to

allow the City to self - supply the anticipated potabl e water

demand in 2015 for a customer base of approximately 34,259

persons. The annual average quantity authorized by the WUP is

4,200,000 gpd and the permitted peak month quantity increases to

6,300,000 gpd. 5/

21 . Special conditions of the Draft WUP re quire the City

to maintain meters on existing and proposed withdrawal points ;

record and report monthly meter readings; confirm meter accuracy

every five years; monitor and report the water quality and

aquifer water levels; maintain an adjusted per capita rate of

15 0 gpd or less; conduct and report water audits; submit annual

reports of residential water use, reclaimed water supplied, per

capita water use rates , and well field operations; investigate

withdrawal - related well complaints; conduct a well field

inventory prior to the activation of the proposed production

wells; comply with the environmental monitoring plan; set water

quality concentration limits prior to the activation of the

proposed production wells; and submit an Annual Water Quality

Report an d an annual Well Field Report.

Criteria in Rule for Issuance of WUPs

22 . The District utilizes r ule 40D - 2.381 (the "Rule") in

its review of water use permit applications. The R ule opens

with the following :

In order to obtain a Water Use Permit, an

Appl icant must demonstrate that the water

use is reasonable and beneficial, is

consistent with the public interest, and

will not interfere with any existing legal

use of water . . .

R ule 40D - 2.381 (1) , Tab 1 of the Binder Containing the Matters

Officially Reco gnized, pp. 7 - 8 . The Rule requires that the

applicant make the required demonstrations through the provision

of "reasonable assurances, on both an individual and a

cumulative basis that the water use , " id. , will meet 14

conditions listed in subsections (a ) through (n) . 6/

Condition (a)

23 . Condition (a) requires that the City demonstrate that

the water use is necessary to fulfill a certain reasonable

demand. To meet this condition, the City provided a population

estimate through the end of the permit ter m and also provided a

per capita rate that the City had used in the last five years.

C alculation s set forth in a table prepared at the request of the

City show the population projections and projected water demands

over a period from 2008 through 2030. These calculations

provide reasonable assurances that the propose d water use meets

Condition (a) .

Condition (b)

24 . Condition (b) requires that the City must demonstrate

that the water use will not cause quantity or quality changes

that adversely affect the water resources, including both

surface water and groundwater.

25 . The City provided a groundwater model showing the

anticipated groundwater drawdowns within the Upper Floridan and

surficial aquifers. The City also completed a study on the

wells wit hin the sections of the actual proposed well field.

Based upon the modeling, the drawdowns are not large enough to

cause any impacts to quantity or quality of the water in the

area.

26 . The City has a Water Quality/Water Level Well Impact

Mitigation Pla n, should there be any complaints of impact, to

correct any problems after implementation of the WUP.

2 7 . The well field is designed with 22 supply wells. All

22 wells need not be operate d at the same time to meet the water

demand. Wells beyond those needed by demand have been designed

into the well field so that there can be rotational capacity.

Pump ing at lower rates from among the 22 wells on a rotational

basis is a management tool for protecting the resource and

minimizing the effects of the with drawals.

2 8 . The City's monitoring program provides for the

collection of water levels from a large number of wells either

on a monthly or quarterly basis to assess water level

fluctuations in the Upper Florida n and surficial aquifers. The

City also has numerous wells that will sample for chloride

sulfates, total dissolved solids (TDS) and other water quality

constituents on a monthly and quarterly basis to ensure that the

conditions of issuance continue to be met. The City will submit

groundwater pumpi ng data on a monthly basis from all the

production wells so that the District can determine that the

City is indeed adhering to the quantities reflected in the WUP.

2 9 . Groundwater in the Upper Floridan A quifer flows in a

westward direction towards the G ulf of Mexico. The location of

the proposed wells is in an urban land use area near the Gulf

Coast. The well s will capture brackish groundwater that would

otherwise flow westward into the Gulf. Brackish groundwater

from the City's service area is the lo west quality water

available for public supply in the area.

30 . The City plans to construct a reverse osmosis facility

to utilize available brackish groundwater . T he brackish

groundwater pumped from the well field is an alternative supply

source . I sola ted from the regional system , it will be used for

public supply in the service area.

31 . The high number of low - capacity wells will provide

rotational ability for the City to manage the quantity and

quality of the water resource in the area of the well f ield.

32 . Maximum drawdown within the well field area due to the

average annual withdrawal is approximately 3 feet, with an

additional 1.5 feet during peak month withdrawal. This amount

of drawd ow n is not likely to impact other wells in the area.

Condit ion (c)

33 . Condition (c) requires the City to demonstrate that

water use will comply with the provisions of 4.2 of the WUP

Basis of Review, incorporated by reference in r ule 40D - 2.091,

regarding adverse impacts to wetlands, lakes, streams,

estuaries, fi sh and wildlife or other natural resources.

34 . The Anclote River and associated wetlands are tidally

influence d and will not be adversely impacted by the proposed

withdrawal.

35 . Other wetlands in the well field area examined by a

District biologist i dentified several isolated wetlands of

concern. Isolated wetlands are generally more sensitive to

withdrawal of groundwater than wetlands connected to larger

basins.

36 . Initially, the City's proposed drawdowns were deemed

to be unacceptable to the Dist rict because of the impact to the

isolated wetlands of concern. As a first step, the City reduced

the quantities of water to be withdrawn. Subsequently, an

extensive Wetland Monitoring Plan was developed that included a

mitigation plan if adverse impacts did occur to wetlands.

37 . Storm - water runoff will be the primary factor

controlling the functions of the wetland areas . Mitigation

measures , should any adverse impact become too great , include

reduction of well field pumping, augmentation with well wa ter,

potable water and other feasible sources , and the purchase of

mitigation credits.

Condition (d)

3 8 . Condition (d) requires the City to demonstrate tha t

the water use will not interfere with a reservation of water as

set forth in r ule 40D - 2.302.

3 9 . The groundwater modeling that the City provided the

District indicates that there are no adverse impacts to the

minim um flow s and levels ( " MFLs " ) in the Anclote River or the

water level at the Tarpon Road Deep Well. There are, therefore,

no impacts to r eservations of water.

Condition (e)

40 . Condition (e) requires the City to demonstrate that

the water use will comply with the provisions of 4.3 of the WUP

Basis of Review, 7/ regarding MFLs. The closest MFL site is the

Upper Floridan A quifer monitoring well called Tarpon Road Deep ,

located approximately 2.4 miles southeast of the well field.

The impact analysis model results show that at the annual

average withdrawal rate of 4.20 m illion gallons per day ("m gd ")

approximately 0.1 feet of drawdown at this MFL site is currently

projected to occur, assuming static pumping conditions in all

other regional groundwater withdrawals. This amount of drawdown

will not cause the water level at the Tarpon Road Deep Well to

fall below its minimum level.

41 . The Dis trict is in the process of setting an MFL for

the Anclote River. Based on the operation of the new well field

and the City's continued operation of their freshwater discharge

to the Anclote River from their reclaimed water facility, there

will be no impac t to the Anclote River.

Condition (f)

42 . Condition (f) requires the City to demonstrate that

the water use will utilize the lowest water quality the City has

the ability to use, provided that its use does not interfere

with the recovery of a water body to its established MFL and it

is not a source that is either currently or projected to be

adversely impacted.

43 . The City is using brackish water, the lowest water

quality available to be used for public supply . T he City will

be treating it at a revers e osmosis water treatment plant.

Water of this quality is not available for others to use without

special treatment.

44 . Based upon the modeling provided by the City, there

are no anticipated impacts to MFLs or any other water body

resources.

Condition (g)

45 . Condition (g) requires the City to demonstrate that

the water use wi ll comply with section 4.5 of the WUP Basis of

Review , 8/ regarding saline intrusion.

46 . Groundwater in the Upper Floridan A quifer in the area

of the well field is brackish. The well field's design allowing

well rotation minimizes changes in water quality during

operation. The amount of draw down and th e fact that water

levels will remain above sea level suggests that saline water

intrusion will not occur.

47 . The reported potentiometric surface in the area of the

well is approximately five feet NGVD while the land surface is

roughly five feet higher at approximately ten feet NGVD.

48 . The City's monitoring and mitigation programs will

address adverse impacts from saline i ntrusion should they occur.

Condition (h)

4 9 . Condition (h) requires the City to demonstrate that

the water use will not cause the pollution of the aquifer.

50 . Soil and groundwater contamination is documented at

the Stauffer Management Company site lo cated approximately 3,000

feet west of the well field. The drawdown from the well field

is calculated to be about one foot at the Stauffer site. That

level of drawdown will not induce migration of contaminants

because the upward head differential from th e Upper Floridan

Aquifer to the surficial aquifer will be altered and the

Stauffer site is down gradient of the well field.

51 . Testimony from Mr. Wiley established that the aquifer s

should not be contaminated by the City's withdrawals despite the

presen ce of the Stauffer site:

[T]here is a known source of contamination

approximately 3,000 feet from the new well

field to the west, Stauffer Chemical

Company. With the small amount of drawdown

that's caused in the Upper Floridan aquifer

and the surficial aq uifer, there's no

potential for the withdrawals to cause

pollution of the aquifer.

Tr. 254 - 55. Mr. Wiley's opinion was reached primarily based on

the use of the groundwater flow model to determine the drawdown

at the Stauffer site and through review of g roundwater levels in

the Floridan and the surficial aquifers.

52 . The United States Environmental Protection Agency (the

"EPA") is in charge of managing the contamination at the

Stauffer site. A remediation plan has been developed based, in

part, on EPA records. The remediation plan includes the

construction of a barrier wall in the subsurface around the

contaminated area to prevent contaminated groundwater from

migrating.

53 . The City's groundwater monitoring wells will detect

movement of contaminant s toward the well field. The monitoring

of the wells and the mitigation plan will assist in preventing

pollution of the aquifers.

Condition (i)

54 . Condition (i) requires the City to demonstrate that

the water use will not adversely affect offsite land uses

existing at the time of the application.

55 . Primary existing land uses within the City's service

area are residential, commercial , and light industrial. The

proposed withdrawal will not adversely impact these land uses as

shown in Figure 10 of the City Exhibit 1.

56 . Five sink holes are known to exist in the general area

around the well field. The closest is approximately 1,000 feet

from a proposed well location. Maximum drawdown at the distance

is approximately 2 feet. This amount of drawdown does not

significantly increase the potential for sinkhole activity.

Condition (j)

57 . Condition (j) requires that the City demonstrate the

water use will not adversely impact an existing legal

withdrawal.

5 8 . The Pasco County Utilities' wells locat ed to the north

of the well field are listed on the WUP as plugged.

5 9 . Wells owned by Crest Ridge Utility Corp. are located

within 0 . 5 to 0 . 8 miles of the well field. Drawdown at these

wells, due to the average annual withdrawal, is approximately

one f oot, with an additional 0.4 feet during peak month

withdrawal. This amount of drawdown will not create a water

level impact at these wells.

60 . Maximum drawdown at domestic wells in the area due to

the average annual withdrawal is approximately three fe e t , with

an additional 1.5 feet during peak month withdrawal. This

amount of drawdown is not likely to impact other wells in the

area.

61 . The City's mitigation plan addresses any adverse

impact that might occur from the City's withdrawal.

Condition (k)

62 . Condition (k) requires the City to demonstrate that

the water use will incorporate water conservation measures.

63 . The existing per capita use rate for the City's

service area is 110 gpd. Its position well below the district

goal of 150 gpd per person demonstrates that the City's water

conservation measures are effective.

64 . The City uses an inclined block rate structure which

encourages water conservation. It also encourages water

conservation through a reclaimed water system that encourages

conservation of public water supply. It currently uses a little

over one million gallons per day of reclaimed water.

65 . The City also conserves water through a leak

protection program, a water loss audit program, adherence to the

District's watering r estrictions and provision of a low - flow

toilet rebate program through the County, a landscape code , and

the provision of educational materials to users.

Condition (l)

66 . Condition (l) requires the City to demonstrate that

the water use will incorporate the use of alternative water

supplies to the greatest extent possible.

67 . The City has an extensive reclaimed water program. It

provides reclaimed water for its golf course, for residential

irrigation, for public parks and recreation , and for public

sc hools.

68 . The City expanded its reclaimed water storage system

recently by doubling the amount of reclaimed water that it is

able to store for redistribution.

Condition (m)

6 9 . Condition (m) requires the City to demonstrate that

the water use will not cause water to go to waste.

70 . The City performs an unaccounted - for water audit of

its system as required by a special condition of its existing

WUP. The unaccounted - for water use is approximately 4 percent ,

well below the District guidelines. Furthe rmore, the City's per

capita use rate of 110 gpd is well within the District's goal of

150 gpd per person. The City also has an extensive reclaimed

water system which offsets potable water supply and prohibits

wasted drinking water as an irrigation source .

Condition (n)

71 . Condition (n) requires that the City demonstrate that

the water use will not otherwise be harmful to the water

resources within the District.

72 . Facts found above support a conclusion that the City

has provide d reasonable assurance s that it meets this condition.

In addition, the water that is pumped locally by the City will

offset the need for ground water that would have otherwise been

obtained from elsewhere in the region.

Notices

73 . T he District published its Notice of Propos ed Agency

Action in the Tampa Tribune on Octo b er 22, 2010.

74 . T he District published its Notice of Proposed Agency

Action in the St. P etersburg Times on October 24, 2 010.

CONCLUSIONS OF LAW

Jurisdiction

75 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter in this

case. §§ 120.569 and 120.57, Fla. Stat.

Standing

76. Standing is an issue of subject matter jurisdiction,

which is never waived. The issue, therefore, may be raised at

anytime. Dep't of Rev. v. Daystar Farms, Inc. , 803 So. 2d 892,

896. The District raises the issue in its P roposed R ecommended

O rder.

7 7 . In addition to administrative agencies and

"specifically named " 9/ person s whose substantial interests are

determined in a proceeding, se ct ion 120.52(13)(b) provides that

the term "party" includes "[a]ny other person . . . whose

substantial interests will be affected by proposed agency action

. . . . "

78. In Gibby Family Trust v. Blueprint 2000 and Dep't of

Env tl . Prot. , Case No. 10 - 9292 (D OAH April 11, 2011),

Administrative Law Judge Johnston recently wrote the following

with regard to the "standing" standard in a s ection 120.57

administrative proceeding:

32. For years, standing to be a party in a

proceeding under section 120.57 was

determ ined under the standard set out in

Agrico Chemical Co. v. Department of

Environmental Regulation , 406 So. 2d 478,

482 (Fla. 2d DCA 1981):

[B]efore one can be considered to

have a substantial interest in the

outcome of the proceeding he must

show 1) that h e will suffer injury

in fact which is of sufficient

immediacy to entitle him to a

section 120.57 hearing, and 2) that

his substantial injury is of a type

or nature which the proceeding is

designed to protect. The first

aspect of the test deals with the

de gree of injury. The second deals

with the nature of the injury.

Al though Agrico was decided on the second

prong of the test, its first prong also has

been applied make standing determinations.

33. More recent appellate decisions have

clarified the firs t prong of the Agrico

test. In order for a third party to have

standing as a petitioner to challeng e agency

action in an administrative proceeding, the

evidence must prove that the petitioner has

substantial rights or interests that

reasonably could be af fect by the agency's

action. See St. Johns Riverkeeper, Inc., et

al. v. St. Johns River Water Mgmt. Distr.,

et al. , Fla. 5th DCA Case No. 5D09 - 1644, Op.

Filed February 18, 2011; Palm Beach Cnty.

Envtl. Coal. V. Fla. Dep't of Envtl. Prot. ,

14 So. 3d 1076, 1078 (Fla. 4th DCA 2009)

Peace River/Manasota Reg'l Water Supply

Auth. v . IMC Phosphates Co. , 18 So. 3d 1079,

1082 (Fla. 2d DCA 2009); Reily Enters., LLC

v. Fla. Dep't of Envtl. Prot. , 990 So. 2d

1248, 1251 (Fla. 4th DCA 2008). See also §

403.412(5), Fla. Stat. ("A citizen's

substantial interests will be considered to

be determined or affected if the party

demonstrates it may suffer an injury in fact

which is of sufficient immediacy and is of

the type and nature intended to be protected

by this chapter.")

Gibby Family Trust , at 14 - 16.

79 . The Fifth DCA St. Johns Riverkeeper case and the three

cases which preceded it cited above, two of which were decided

by the Fourth DCA and one by the Second DCA, (the " St. Johns

Riverkeeper Line of Cases") appear to h ave relaxed the first

prong of the Agrico test for a party to have standing in a

120.57 proceeding. Rather than prove an actual injury in fact

of sufficient immediacy as required by the first prong of the

Agrico test, a party need only allege such an inju ry and then

prove that it was reasonable to expect that such an injury could

occur. Proof tha t the actual injury would occur should the

agency action be implemented is not necessary under the St.

Johns Riverkeeper Line of Cases for a party to have standin g .

Standing under Agrico

80 . The District advance s the Agrico test as the

appropriate measure to be applied to Petitioner Ross' standing.

If the first prong of the Agrico test applies , then there is no

doubt that Petitioner Ross does not have standing. Petitioner

presented no evidence of his own that demonstrated that his

substantial interests could be affected by the District's

issuance of the WUP to the City . Cross - examination by

Petitioner of Mrommer, one of the City's witness es, showed

that the re was no injury in fact to him or his property.

Futhermore, the witness provided proof that the impact to

Petitioner Ross' property from the implementation of the WUP

would be so de minimis , if it were to exist at all, that one

could not know whether an impact was due to activity under the

WUP or an occurance of a natural event such as a recent

rainfall . See paragraph 4., above.

Standing under the St. Johns Riverkeeper Line of Cases

81 . The evidence showed where Petitioner's farm is in

relation to the well field to be permitted by the WUP. There

was no evidence, however, presented by Petitioner (or that was

admitted through the other parties) that showed that it is

reasonable to expect that Petitioner's property could be

affected by activity conducted under the WUP.

82 . In short, Petitioner's assertion of standing is not

supported under the standard of the St. Johns Riverkeeper Line

of Cases, by the facts that relate to any injury to Mr. Ross.

There is no showing in this record that it is reasonable to

expect that there could be injury to Mr. Ross or his property

th rough implementation of the WUP.

Petitioner Does not Have Standing

83 . Whether under the more stringent first prong of the

Agrico test or the relaxed standard applied by the St. Johns

Riv erkeeper Line of Cases, Petitioner Ross does not have

standing to initiate this section 120.57 proceeding. His

petition should be dismissed.

Burden of Proof and Reasonable Assurances

84 . As the challenger, Petitioner Ross has the burden of

proving stan ding to initiate the proceeding. He has failed to

meet that burden.

85 . The City, as the applicant for the WUP , has the burden

of proof to demonstrate entitlement to the permit , if it is

determined contrary to the recommendation of this Recommended

Orde r that Petitioner Ross has standing. Dep ' t of Transp . v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). The City

must demonstrate the reasonable assurances required by the r ule.

86 . "Reasonable assurance" means a demonstration that

there is a su bstantial likelihood of compliance with standards,

or "a substantial likelihood that the project will be

successfully implemented," not an absolute guarantee. Metro .

Dade C nty. v. Coscan Florida, Inc. , 609 So. 2d 644, 648 (Fla.

3rd DCA 1992).

87 . Once a n applicant has presented evidence and made a

preliminary showing of reasonable assurances, the permit cannot

be denied unless "contrary evidence of equivalent quality" is

presented by the P etitioner. J.W.C. , at 789.

The Merits

88 . The City has met the initial burden of proof in

presenting a prima facie case that demonstrates the Application

complies with all of the Rule's conditions for issuance of a

water use permit.

89 . The City and the District provided evidence through

expert opinion and otherwise of the City's satisfaction of the

conditions contained in sections 1(a) through (n) of r ule 40D -

2.381 for issuance of the modification to the WUP that is the

subject of this proceeding.

90 . The City provided reasonable assurances, on both an

individual an d cumulative basis, that the water use for which it

has applied and that has been approved by the Draft WUP meets

Conditions (a) through (n) as contained in r ule 40D - 2.381 (1).

91 . In his A mendment to the A ddendum to the P roposed

R ecommended O rder, Petiti oner asserts:

Cost is Public Interest. Public Interest is

this Petitioner's payment of his monthly

water bill to the City. Public Interest is

Paragraph 2. Of Rule 40D - 2.381(a) - [end of

the rule], F.A.C.

The word "cost," however, does not appear in r ule 4 0D - 2.381.

Nor is there any mention of the impact of a WUP to the water

bills of consumers.

92 . Petitioner did not present "contrary evidence of

equivalent quality" to that presented by the City and the

District. The WUP should be issued.

RECOMMENDATI ON

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Southwest Florida Water

Management District enter a Final Order determining that

Petitioner Ross lacks standing and that his Petition, therefore,

be dismissed.

Should it be determined in a Final Order that Petitioner

Ross has standing, it is recommended that the Southwest Florida

Water Management District enter a Final Order that issues Water

Use Permit No. 200007 42 .010 to the City of Tarpon Springs.

DONE AND EN TERED this 14th day of April , 2011, in

Tallahassee, Leon County, Florida.

S

DAVID M. MALONEY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32 399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of April , 201 1 .

ENDNOTES

1/ The original application was assigned the number

"200013292.00 0 ." The thr ee zeroes after the decimal point in

the number indicate that it is an application for a new permit.

2/ The "010" after the decimal point in the permit number

indicates that the application is for a modification (the

"tenth" modification) of the Existing Permit, presumably

numbered "2000 0 742.000" when it was issued prior to any

modifications.

3/ City Ex. 1, Attachment 7, p. 2 of the Report.

4/ Id. , at 2.1.

5/ The limits set by the Existing Permit do not meet the public

supply demand for the City. Th e City currently meets the demand

through an interconnect with Pinellas County.

6/ The conditions will be referred to in this Recommended Order

as "Conditions (a) through (n)."

7/ Incorporated by reference in r ule 40D - 2.091.

8/ Incorporated by refere nce in r ule 40D - 2.091.

9/ Section 120.52(13)(a), Florida Statutes.

COPIES FURNISHED:

Henry C. Ross

1020 South Florida Avenue

Tarpon Springs, Florida 34689

Thomas Jask, Esquire

Frazer, Hubbard, Brandt, Trask

& Yacavone, LLP

595 Main Street

Dune din, Florida 34698

Adrienne E. Vining, Esquire

Southwest Florida Water

Management District

2379 Broad Street

Brooksville, Florida 34604 - 6899

David L. Moore, Executive Director

Southwest Florida Water

Management District

2379 Broad Street

Brooksvill e, Florida 34604 - 6899

NOTICE OF RIGHT TO SUBMIT EXCPETIONS

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 wi ll

issue the Final Order in this case.