91-002704
Wyatt S. Bishop, Jr. vs.
Sarasota County Public Hospital Board, D/B/A Sarasota Memorial Hospital
Status: Closed
Recommended Order on Thursday, September 5, 1991.
Recommended Order on Thursday, September 5, 1991.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8WYATT S. BISHOP, JR. and )
14JOAN JONES, )
17)
18Petitioners, )
20)
21vs. ) CASE NO. 91-2704
26) 91-2706
28SARASOTA COUNTY PUBLIC )
32UTILITIES DEPARTMENT and )
36SOUTHWEST FLORIDA WATER )
40MANAGEMENT DISTRICT, )
43)
44Respondents. )
46_______________________________)
47RECOMMENDED ORDER
49A hearing was held in this case in Sarasota, Florida on July 15 and 16,
641991, before Arnold H. Pollock, a Hearing Officer with the Division of
76Administrative Hearings.
78APPEARANCES
79For the Petitioners:
82Wyatt S. Bishop, Jr. Wyatt S. Bishop, Jr., pro se
925153 Tucumcari Trail
95Sarasota, Florida 34241
98Joan Jones Joan Jones, pro se
104719 East Baffin Road
108Venice, Florida 34293
111For the Respondents:
114Sarasota County Utilities William A. Dooley, Esquire
121Nelson, Hesse, Cyril, Smith,
125Widman, Herb, Causey & Dooley
1302070 Ringling Boulevard
133Sarasota, Florida 34237
136Cathy Sellers, Esquire
139Steel, Hector & Davis
143215 South Monroe Street
147Tallahassee, Florida 32301-1804
150Southwest Florida Water Edward B. Helvenston, Esquire
157Management District Vivian Arenas, Esquire
162Southwest Florida Water
165Management District
1672379 Broad Street
170Brooksville, Florida 34609-6899
173STATEMENT OF THE ISSUES
177The issue for consideration herein is whether Sarasota County Utilities
187should be issued a consumptive use permit to draw water from the 14 wells in
202issue here located in Sarasota County.
208PRELIMINARY STATEMENT
210On March 26, 1991, the staff of the Southwest Florida Water Management
222District, (District), indicated its intention, (revised July 8, 1991), to
232recommend approval of Sarasota County's, (County's), Application No. 208836.00
241for a consumptive use permit to draw water from wells located in the T. Mabry
256Carlton, Jr. Memorial Reserve. On April 8, 1991, after the initial
267recommendation was published, but before the filing of the revision thereto,
278Petitioner, Wyatt S. Bishop filed a Petition in opposition to the permit. On
291that same date, Petitioner Joan Jones filed her Petition in opposition to the
304granting of the permit and by letter dated April 29, 1991, the matter was
318forwarded to the Division of Administrative Hearings for appointment of a
329Hearing Officer. The City of Venice also filed a Petition in opposition, but
342that Petition was subsequently withdrawn, and subsequent to the parties'
352responses to the Initial Order herein, the case was set for hearing in Sarasota
366on July 15 and 16, 1991, at which time it was held as scheduled.
380At the hearing, Sarasota County presented the testimony of several County
391utility employees; a consulting hydrologist expert in that field and in ground
403water modeling; a civil engineer expert in his field; and a County
415environmentalist expert in ecology and hydrology. It also presented witnesses
425in rebuttal to the matters presented by Petitioners. The County also introduced
437County Exhibits 1 through 19.
442The District presented the testimony of an expert in hydrology and ground
454water modeling who reviewed the County's application and recommended its
464approval; and an environmental scientist expert in the area of wetland and
476wildlife habitats.
478Both Mr. Bishop and Ms. Jones appeared pro se and both testified in their
492own behalf. Ms. Jones indicated she would allow Mr. Bishop to question the
505Respondents' witnesses on her behalf. Mr. Bishop also presented the testimony
516of a local well driller; the water division manager for Sarasota County
528Utilities; and a County Commissioner; and also called the District's
538hydrologist, Mr. Basso. Petitioners also introduced Petitioner's Exhibits 1, 3
548- 5, 7, 9 - 12, and 14 - 18.
558A transcript was furnished and subsequent to the hearing, the Petitioners
569submitted joint Proposed Findings of Fact. Respondents also submitted joint
579Proposed Findings of Fact. All submittals have been ruled upon in the Appendix
592to this Recommended Order.
596FINDINGS OF FACT
5991. At all times pertinent to the issues herein, the Respondent, District,
611was the state agency responsible for themanagement of water resources within its
623area of geographical jurisdiction. Included therein was the responsibility for
633the permitting of consumptive water use. The Respondent, Sarasota County, is a
645political subdivision of the State of Florida and operates a public utilities
657division which is charged with meeting, among other things, the potable water
669needs of the residents of the County.
6762. Petitioners Wyatt S. Bishop and Joan Jones are both residents of
688Sarasota County and both draw their potable water from wells which utilize the
701aquifers pertinent to the wells for which the permit in issue here relate. Mr.
715Bishop lives approximately 7.5 miles north of the Carlton Reserve, the property
727on which the wells in issue are located, and Ms. Jones lives approximately 7
741miles from the Reserve, but in a different direction.
7503. Sarasota County filed an application for a consumptive use permit with
762the District on January 28, 1987 requesting an average daily withdrawal of 10.71
775million gallons per day, ( mgd), and a peak monthly withdrawal of 15.55 mgd.
789This application, assigned number 208836.00, was, over the next three years,
800amended by the County four separate times. These amendments reflected revised
811water demand determinations and were submitted to provide additional information
821requested by the District.
8254. The District issued a preliminary staff report and proposed intent on
837March 26, 1991 reflecting an approved withdrawal in the amount of 7.28 mgd
850average daily withdrawal and 11.1 mgd peak monthly withdrawal. These figures
861were revised, however, byan amendment by the District on July 8, 1991, and as
875amended, authorize 7.303 mgd average daily withdrawal and 9.625 mgd peak monthly
887withdrawal.
8885. The County's application was reviewed by an experienced hydrologist in
899the District office with extensive permit review experience who utilized, in his
911evaluation of the permit, the pertinent District rules and policies.
9216. By way of background, to more easily understand the circumstances here,
933Sarasota entered into a contract with Manatee County in 1973 which called for
946the latter to provide up to 10 mgd of water for a period of 40 years, up to and
965including the year 2013. However, in 1979, Manatee County's utilities director
976advised Sarasota County that it, Sarasota County, could not continue to rely on
989Manatee County's water after the expiration of the current contract, and would,
1001therefore, have to become self sufficient in water. Since the MacArthur tract,
1013now known as the Carlton Reserve, had just recently been identified by, inter
1026alia, the United States Geological Service as a potential long term water source
1039for Sarasota County, after Manatee County advised Sarasota County of its future
1051expectations, Sarasota County and the Manasota Basin Board hired a consulting
1062firm to conduct hydrological testing on the Carlton Reserve. This study
1073concluded that the Reserve had sufficient water resources to satisfy the needs
1085of the unincorporated areas of Sarasota County for an extended time into the
1098future.
10997. In 1985, because of its increased water needs and thetime necessary to
1112complete required studies on the utilization of the Myakka River, a surface
1124water resource, Sarasota County concluded that it was suffering a water supply
1136shortage and entered into a supplemental contract with Manatee County to provide
11482 million gallons of water per day over a 5 year period which would expire in
11641990.
11658. Sarasota County had not, however, been idle with regard to the
1177investigation of other water resources. Studies done included not only the
1188Myakka River mentioned above but a reservoir owned by the City of Bradenton, and
1202the Peace River. Nonetheless, it was determined that the Carlton Reserve was
1214the best source available overall, and in 1987, the County filed the application
1227in issue here.
12309. The permit was under consideration for approximately 3 1/2 years before
1242the initial decision by the District to grant it. During that time the County
1256experienced a significant deficiency in its water sources and found it
1267necessary, on February 5, 1991, to enter into another contract with Manatee
1279County to supply an addition 5 mgd. Terms of that contract clearly indicate the
1293expectations of both parties that Sarasota County will take reasonable steps to
1305develop its own water resources. It is not as though Sarasota County sat
1318quietly in the interim, however, and allowed the situation to develop. A
1330building moratorium to halt additional construction was proposed and as a
1341result, economic forces in the County indicated a potential loss of jobs to
1354County residents. None of this would be desirable from an economicstandpoint.
136510. In the course of the permit application process, 12 test wells were
1378sunk to conduct aquifer pump tests; to assess water quality, amounts and
1390availability, aquifer characteristics and drawdown; and to determine the impact
1400of withdrawal on water quality. Eight of these 12 wells are located on the
1414Carlton Reserve. The other 4 are located on property owned by the MacArthur
1427Foundation which is contiguous to the Carlton Reserve property and from which
1439Sarasota has a right by easement to draw water. The 2 wells yet to be
1454constructed will be on Sarasota County property.
146111. Sarasota County currently receives 10 mgd of water under its contract
1473with Manatee County; an additional 5 mgd under the February 5, 1991 contract; 2
1487mgd from the University wellfield, (with a peak withdrawal rate of 3 mgd); and
1501.9 mgd from the Sorrento wellfield, (with a peak withdrawal rate of 1.1 mgd).
1515This latter source is only producing currently .6 mgd of potable water due to
1529constraints imposed by the water treatment requirements. Taken together, the
1539current Sarasota County supply constitutes 18.6 mgd.
154612. The above does not take into account the County's agreement with the
1559City of Sarasota calling for the purchase of up to 2 mgd. Since this source is
1575not reliable, it is not included in the total, and the City is not considered an
1591available water source. In addition, the District and Sarasota County
1601stipulated on July 15, 1991 that within 30 days, the County would apply tophase
1615out routine water production from the Sorrento wellfield, relying on it only in
1628emergency situations with District consent. For this reason, it, too, is not
1640considered an available water supply source.
164613. These currently existing sources, with modifications as described,
1655will be the primary sources of potable water provided to 6 major service areas
1669in Sarasota County when the County's water treatment plant and transmission
1680system are complete in 1993. In attempting to define the County's future water
1693requirements, two major criteria were considered. The first was the County's
1704historical water demand, and the second, modifying it, relates to the demand
1716arising as a result of new water users being added to the system as a result of
1733the County's capital improvements and acquisition program. Water resources are
1743not unlimited.
174514. Current resources come primarily from Manatee County and there are
1756constraints on this supply as it is made available to Sarasota County. For
1769example, the 10 mgd contract expires in 2013. The 5 mgd contract expires in
17832001. Though the latter is subject to renewal, renewal is contingent upon the
1796availability of water supply at that time, and that is not a sure thing. It
1811can, therefore, readily be seen that 15 out of the 18.6 mgd routinely available
1825now comes from Manatee County, and those sources are not perpetual. In
1837addition, it is conceivable that Manatee County may pre-blend the water it
1849delivers to Sarasota County with water of lesser quality, so that the delivered
1862water may exceed the total dissolved solids standard of 500 ppm for potable
1875water. If thewater from Manatee County were reduced to that quality, the
1887University wellfield supply, which currently exceeds standards itself, and which
1897relies on blending with better quality Manatee County water to be potable, would
1910also be removed as a source of potable water to Sarasota County.
192215. In order to comply with the provisions of Section 373.171, Florida
1934Statutes, which requires the District to regulate the use of water by
1946apportionment, limitation, or rotating uses, to obtain the most beneficial use
1957of water resources and to protect the public health, safety and welfare, the
1970District analyzed the available water sources and determined that Sarasota
1980County relies upon its 10 mgd supply from Manatee County and the 2 mgd supply
1995from University wellfield to constitute 12 mgd usable water. The 5 mgd from
2008Manatee County would be used only in an emergency situation, and the Sorrento
2021wellfield would be abandoned.
202516. Future water demands must be predicted relying in great part upon an
2038historic record of prior water use. Utilizing a statistical procedure called
2049linear regression, a methodology accepted by the District, indicated a water
2060demand figure for the period from 1992 to 1997 based upon six use points
2074extending from 1985 to 1990. These use records reflected a low of 9.733 mgd and
2089a high of 12.808 mgd, the former being in 1985 and the latter in 1990. In
2105addition, the County estimated that its capital improvement program would add
2116between 10 and 12 thousand customers who presently use private wells, whose
2128water use would constitute approximately 2 mgd of additional demand. The
2139County's program toacquire some 42 private franchises now serving customers
2149would add an additional demand of 2 mgd. Taken together, these programs would
2162add in approximately 1.8 mgd per year to the need assessment, and it would
2176therefore appear that by 1997, the County's average daily demand, considering
2187all new users, would be 17.84 mgd.
219417. The water to be drawn from the Carlton Reserve is not currently
2207potable and will require some form of treatment to render it so. Sarasota
2220County proposes to use the Electrodialysis Reversal process, ( EDR), because, in
2232the County's judgement, it is more efficient than others such as reverse osmosis
2245and ion exchange. Whereas EDR is rated at up to 85% efficient, the others range
2260between 50% to 75% efficient. In that regard, in order to determine the
2273maximum amount of water to be drawn, providing a safety factor for a treatment
2287plant operation that is not working up to peak capacity in computing the water
2301needs, the EDR process was determined to be no more than 80% efficient.
2314Factoring in that efficiency potential, when the 1997 average daily demand is
2326subtracted from the County's projected water capacity, the withdrawal need in
23371997 is determined to be 7.303 mgd.
234418. However, as a part of its permitting process, the County also
2356calculated its peak month daily demand. This is a figure which represents the
2369maximum amount permitted to be drawn on a daily basis during the peak demand
2383period. This peak period was determined under Section b 3.2 of the District's
2396Basis of Review by taking the 1989 daily flow and using a sliding 31 day
2411calendar to determine the highest historical 31 day flow. Thisresulted in a
2423peak month coefficient of 6.16 which was then multiplied by the 1997 average
2436daily demand of 17.842 mgd which resulted in a peak month daily demand of 20.7
2451mgd. When existing water supplies are removed and the 80% EDR treatment process
2464factor is applied, the amount of raw water needed from the wellfield in issue on
2479a peak monthly basis would be 9.625 mgd. This peak monthly basis figure is
2493considered because of the intermittent periods of low rainfall and high water
2505demand within the County.
250919. Accepting the 1.8 gpd yearly increase; the peak factor of 1.16; and
2522the assumed water supply capacity of 18.6 mgd; Sarasota County's need will
2534exceed its available supplies by 1993. In fact, the County is already
2546experiencing low water pressure in part of its service area during peak demand
2559periods.
256020. County experts estimate that without the requested water from the
2571Carlton Tract, Sarasota County can expect to experience dry periods as early as
25841993 during the periods of peak water usage, generally between April and June.
2597For the above reason, when the application and its supporting information was
2609reviewed by Mr. Basso, the District hydrologist with extensive experience
2619reviewing more than 300 water use application, he determined that the water
2631supplies requested are necessary to meet the County's certain reasonable demand,
2642and that this meets the criteria set out in Rule 40D - 2.301(1)(a), F.A.C.
265621. Turning to the issue of hydrologic and environmental impacts, the
2667District's Basis For Review of Water Permit Applications provides for the use of
2680a "water use model" inevaluating water needs and the appropriateness of a
2692proposed withdrawal. In preparing its submittal to the District, Sarasota
2702County performed certain tests and modeling to derive the statistical and
2713scientific information used in support of its application. Specifically it used
2724the USGS' MODFLOW model utilizing information obtained from the pump tests run
2736on the wells in the pertinent areas. Consistent with the District's rule, the
2749water data and aquifer drawdown were determined by simulated pumping. The
2760tests run also provided the information on water quality in the aquifer and
2773physical characteristics including transmissivity, storage coefficient, specific
2780yield and leakance between aquifers. This data also helped in defining the
2792hydrogeologic framework of the Carlton Reserve.
279822. The Carlton Reserve's hydrogeology listed in descending order from the
2809surface, includes a surficial aquifer which varies in depth between 19 and 70
2822feet across the Reserve; a semi-confining clay unit separating it from the
2834intermediate aquifer; the upper intermediate and lower intermediate aquifer
2843which range in depth from 140 to 180 feet across the Reserve; another confining
2857layer, and the Upper and Lower Floridan aquifers.
286523. The hydrology and groundwater modeling expert who constructed the
2875model used in Sarasota County's permit application concluded that the water
2886table drawdown at the Reserve property boundary in the surficial aquifer would
2898be less than .3 of a foot; less than .4 of a foot in the intermediate aquifer;
2915and 2.9 feet in the Upper Florida aquifer. The water to be drawn consistentwith
2929this instant permit, if approved, would come from the Upper Floridan aquifer on
2942the Reserve.
294424. The County's experts were conservative in the assumptions used in the
2956groundwater model. It was assumed there would be no lateral water flow into the
2970model area and no recharge. In addition, the model called for all pumps to run
2985simultaneously at a maximum drawdown of 12.65 mgd for 90 days rather than at the
3000requested quantity of 9.625 mgd. Utilization of these assumptions provided a
3011scenario wherein "severe" impacts would be encountered. Based on the testing
3022and the modeling done, expert opinion was that there would be no quantity or
3036quality changes that would adversely effect water resources including ground and
3047surface water. This meets the criteria of Rule 40D-2.301. This opinion was
3059concurred in the District's hydrology expert. Nonetheless, in its proposed
3069approval, the District has imposed special permitting conditions which require
3079the County to monitor, analyze, and report water quality and water table level
3092information to the District on a monthly and annual basis.
310225. When it evaluates the information supplied by an applicant relating to
3114ground water monitoring, the District is required to consider certain
3124presumptions set forth in its Basis For Review. For example, the District
3136presumes that if there is a drawdown of more than 1 foot in the surficial
3151aquifer at a wetland, adverse environmental impacts will occur. In the instant
3163case, the County model concluded that the actual drawdown in the surficial
3175aquifer at the Carlton Reserve is less than .6 of onefoot and, therefore, there
3189should be no adverse environmental impact resulting from the withdrawal.
3199Nonetheless, the County has developed several plans designed to provide
3209information on environmental impacts which will continuously monitor such
3218parameters as rainfall and evaporation, wetlands hydroperiod changes and
3227vegetative changes in the wetlands to detect any changes which might be
3239attributed to the water pumping. These plans have been made special conditions
3251to the water use permit, and in the opinion of the County's ecology and
3265hydrology expert, would enable the County to adequately monitor and detect any
3277pertinent changes to the pertinent factors concerned on the Carlton Reserve. If
3289wetland changes are detected, a contingency plan will be in effect which will
3302require an alteration of pumping schedules or other action to minimize any
3314adverse impacts. The District expert in wetlands and wildlife habitat has
3325opined that these measures, with which he is familiar, are adequate to insure
3338that adverse impacts to the wetlands will not occur. This is consistent with
3351the provisions of Rule 40D-2.301(1).
335626. As was stated previously, the water to be drawn pursuant to this
3369permit will be drawn from the Upper Floridan aquifer. This water is not potable
3383but is treatable and is the lowest quality water which can be economically used
3397by the County. Water of a lower quality does exist in the Lower Florida
3411aquifer, but it is not economically treatable, and, in addition, use of this
3424Lower Floridan aquifer might cause vertical movement of the poorer quality water
3436into the upper strata. For all practical purposes,then, the lowest quality
3448water available to it will be used by the County and this is consistent with the
3464District's basis for review.
346827. Expert testimony indicates that saline water will not be infused into
3480the Upper Floridan aquifer. Salt water intrusion generally occurs when
3490groundwater is brought to a level below sea level. Even at the point of maximum
3505actual drawdown as a result of pumping on the Reserve, the fresh water level
3519will remain at least 20 feet above sea level, and as a result of the difference
3535in water level, no saline water intrusion into the fresh water supply will occur
3549even though salt water intrusion can also occur as a result of upward vertical
3563movement of lower quality water due to withdrawal. The District's hydrologist
3574and reviewing official also concluded that because of the confining layer below
3586the aquifer from which water will be withdrawn, there would not be any
3599significant upward movement of lesser quality water.
360628. The District's basis of review also envisions an aquifer pollution if
3618a proposed withdrawal would spread an identified contamination plume. Here no
3629contamination has been identified in the area from which the water will be
3642drawn, and therefore, contamination would not be spread.
365029. The Basis for Review also infers there will be adverse impact to off
3664site land if there is a significant drawdown of surface water bodies or if
3678damage to crops or other vegetation can be expected. Here, the water table
3691drawdown at the boundary of the Carlton Reserve is anticipated at less than .3
3705of one foot and any drawdown further out from the Reserve can be expected tobe
3720even less. As a result, no adverse impact to existing off site land useage is
3735expected.
373630. With regard to Rule 40D-2.301(1)(i), relating to an adverse impact on
3748existing legal uses, the District presumes that no adverse impact will exist if
3761the drawdown in the water table is no more than 2 feet at an affected well, or
3778the potentiometric surface at the well is not lowered by more than 5 feet.
3792Here, again applying the County's groundwater modeling demonstrates that the
3802drawdown at its worst, in the Upper Floridan aquifer, would be no more than 2.9
3817feet at the Reserve boundary and much less at the Petitioners' wells.
382931. Both Mr Bishop's and Ms. Jones' wells are approximately 7.5 and 7
3842miles, respectively, from the closest well on the Reserve property. Ms. Jones'
3854well is drilled into the intermediate aquifer which is above that which the
3867County proposes to use and should not be impacted. Mr. Bishop draws water from
3881the intermediate and surficial aquifers, both of which are above the Upper
3893Florida aquifer identified for use here, and the groundwater modeling would
3904suggest that his well would not be impacted either.
391332. Sarasota County's application contains reference to numerous proposals
3922for water conservation measures which it intends to implement or has already
3934implemented. It has adopted ordinances to enforce the District's watering
3944restrictions and is currently implementing a block inverted use rate structure
3955to promote conservation. It has developed programs for use in the schools
3967outlining water conservation efforts and is developing programs topromote the
3977increased use of treated waste water for golf course irrigation. The
3988requirement for a water conservation plan such as is described and envisioned by
4001the County is a condition of the water use permit proposed, and in addition,
4015the County has adopted an Ordinance, (90-38) which modifies its building code to
4028require installation of water conservation devices in new buildings erected in
4039the County. It has developed proposals for conservation measures such as water
4051auditing, meter testing, leak detection, system looping, and pressure reduction,
4061and has selected the EDR process of water purification as the most efficient use
4075of groundwater resources.
407833. Petitioner, Bishop, testified to his belief that approval of this
4089permit and the resultant water withdrawal on the Carlton Reserve would
4100necessitate an expansion of the boundaries of the District's Eastern Tampa Bay
4112Water Use Caution Area to a point where his property would be encompassed
4125therein. In support of his position, Mr. Bishop offered a notice to the effect
4139that new ground water withdrawals would not be permitted within a certain "most
4152impacted area" within the caution area. There was, however, no independent
4163evidence from hydrologists, geologists, or other conservationists, or
4171individuals familiar with the water conservation process, to support Mr.
4181Bishop's contention that either the boundaries would be expanded or that
4192withdrawal of the proposed permitted amounts of water from the Carlton Reserve
4204would cause the boundaries to be expanded.
421134. By the same token, Mr. Bishop's contention that theproposed withdrawal
4222from the wells here in issue would adversely effect his ability to draw water
4236from his existing well was not supported by any expert testimony or documentary
4249evidence tending to support or confirm his contention. He had no evidence
4261tending to contradict the County's and District's experts, all of whom indicated
4273there would be no adverse impact on the environment or water resources as a
4287result of the instant permit. Similarly, neither Petitioner offered any
4297evidence of a demonstrative nature that would draw any connection between the
4309proposed permitted withdrawals and potential salt water intrusion and water
4319level drawdown in their wells.
432435. The County introduced construction permits issued by its own health
4335department covering 8 of the 12 wells which have been drilled on the Carlton
4349Reserve as test wells. These wells were clearly sunk pursuant to an agreement
4362between the District and the County's public health unit which delegates
4373authority for water well construction permitting to the County. Taken together
4384the documentation indicates that these 12 wells on the Reserve were installed
4396and permitted pursuant to and consistent with appropriate permitting processes,
4406and the testimony of Mr. Bassarab, the County's expert who oversaw the
4418installation of the wells, reflects they are appropriately grouted and sealed.
4429Therefore, there will be no mixing of lower quality water from the lower portion
4443of the Floridan aquifer with the better quality water from the upper portion of
4457that aquifer. The County's evidence clearly refutes the allegation by Mr.
4468Bishop that the 12 test wells currently existingon the Carlton Reserve were
4480neither permitted nor inspected as required by the District.
448936. County Commissioner Hill, who testified on behalf of the Petitioners,
4500indicated that the wells applied for here are unnecessary and an inappropriate
4512expenditure of County funds. She claimed there are other valid sources of water
4525available to the County, including that extracted from excavated shell pits and
4537seawater from the Gulf of Mexico which could be treated and desalinated. The
4550Commissioner's comments as to alternate sources are not specifically rebutted.
4560However, she is neither an expert in hydrology or hydrogeology, and her
4572testimony is not persuasive. While other water sources may exist, the better
4584evidence clearly indicates that those sources are not sufficient to meet the
4596County's needs or are otherwise inappropriate for use by the County in
4608sufficient quantity to satisfy those needs.
4614CONCLUSIONS OF LAW
461737. The Division of Administrative Hearings has jurisdiction over the
4627parties and the subject matter of these proceedings. Section 120.57(1), Florida
4638Statutes.
463938. The County has sought, and the District proposes to issue a permit for
4653the withdrawal of 7.303 mgd average daily demand and 9.625 mgd peak month demand
4667of water for public consumption from 14 wells located on or adjacent to the
4681Carlton Reserve. A permit is required under the provisions of Rule 40D-2.041,
4693F.A.C..
469439. Under the provisions of Section 373.223, Florida Statutes, to
4704successfully apply for a water consumptive use permitthe applicant must
4714demonstrate that the proposed water use is reasonable and beneficial, will not
4726interfere with any presently existing legal use of water, and is consistent with
4739the public interest.
474240. In meeting these requirements, the applicant must provide reasonable
4752assurances that the criteria set forth in Rule 40D-2.301(1)(a) - (n) are met.
4765The criteria, all of which except (d) are applicable here, require a showing
4778that the proposed water use:
4783(a) is necessary to fulfill a certain
4790reasonable demand;
4792(b) will not cause quantity or quality changes
4800which adversely impact ground water
4805resources, including both surface and ground
4811water;
4812(c) will not cause adverse environmental
4818impacts to wetlands, lakes, streams,
4823estuaries, fish and wildlife, or other
4829natural resources;
4831(d) will not cause water levels or rates of
4840flow to deviate from the ranges set forth in
4849Chapter 40D-8;
4851(e) will utilize the lowest water quality the
4859applicant has the ability to use;
4865(f) will not significantly induce saline
4871water intrusion;
4873(g) will not cause pollution of the aquifer;
4881(h) will not adversely impact off site land
4889uses existing at the time of the application;
4897(i) will not adversely impact an existing
4904legal withdrawal;
4906(j) will utilize local water resources to the
4914greatest extent practicable;
4917(k) will incorporate water conservation
4922measures;
4923(l) will incorporate reuse measures to the
4930greatest extent practicable;
4933(m) will not cause water to go to waste; and
4943(n) will not otherwise be harmful to the
4951water resources within the District.
495641. The burden of proof rests upon the applicant to establish his
4968entitlement to the permit, Florida Department of Transportation v. J.W.C., Inc.,
4979396 So.2d 778, 787 (Fla. 1DCA 1981). Once that burden has been met, the burden
4994shifts to the protestant who must establish by competent, credible evidence that
5006the applicant has not demonstrated it is entitled to the permit.
501742. In meeting its burden, the applicant must "provide reasonable
5027assurances which take into account contingencies which might reasonably be
5037expected." Cornwell v. Southwood Properties, Inc., 12 Fla. Admin. L. Rep. 4972,
50494987 (DER Final Order December 6, 1990.) This requirement for "reasonable
5060assurances", however, does not mean "absolute guarantees the permit requirements
5070will be met", Manasota-88, Inc. v. Agrico Chemical Co., 12 Fla. Admin. L. Rep.
5084319, 325 (DER Final Order February 19, 1990), nor does it require the applicant
5098to eliminate all possibility of contrary result or those impacts which can not
5111be detected or measured in real life.
511843. Here, the County and the District, through the testimonyof experts in
5130those fields pertinent to the issues involved, have clearly demonstrated that
5141within the reasonably foreseeable future, additional water supplies will be
5151required to meet the reasonable anticipated needs of the County, increased as
5163they may be expected to be, by population growth and the assumption of
5176responsibility for current residents who now receive their water through other
5187sources. Clearly the current water sources, especially those in Manatee County,
5198can not be relied upon indefinitely. Manatee County has made it abundantly
5210clear that while it expects to fulfill its obligations under the present
5222contacts, it also expects Sarasota County to develop alternate water sources to
5234assume the burden at the expiration of the existing contracts.
524444. Further, the evidence is equally clear that even during the term of
5257the present contracts, the quality of the water received may diminish and may
5270not be of sufficient purity to be used successfully to blend with the lower
5284quality water from some current Sarasota County sources as is the current
5296practice.
529745. Albeit Mr. Bishop and Ms. Jones have passionately disputed the need
5309for the quantities of water proposed to be drawn under the terms of the permit,
5324their arguments are not based on any empirical data or demonstrable evidence of
5337a weight even approximating that of the concise and detailed expert testimony
5349provided by the Respondents.
535346. In short, what appears here is that the County and the District have
5367done that which, unfortunately, is demonstrably soseldom done by government;
5377that is, to plan, sufficiently far in advance, for those contingencies which may
5390be reasonably expected to occur. In this case, the issue involves the
5402anticipated water needs of Sarasota County. That the projected action may
5413increase costs to the taxpayers is regrettable but, reasonably, unavoidable, and
5424in any case, this cost to the taxpayers is not relevant to the issues defined in
5440the permitting of the consumptive use of water resources. Another arena is more
5453appropriate for the addressing of that issue.
546047. The issue in this forum is whether the permit applied for meets the
5474criteria for approval as set out in the statute and the District's rule, and a
5489thorough evaluation of the evidence as a whole, considering both that in support
5502and that in opposition, reveals clearly that it does. Careful examination of
5514the evidence and resolution of the differences therein indicates that the
5525requested permit:
5527Is necessary to fulfill a certain reasonable
5534future demand for potable water for the County
5542use;
5543Is not likely to cause quantity or quality
5551changes adversely impacting both surface and
5557ground water supplies;
5560Is not likely to cause adverse environmental
5567impacts to those protected resources
5572identified in the rule;
5576Will provide the County with the lowest
5583quality water it can use effectively;
5589Is not likely to induce intrusion of saline
5597water into the waterresource;
5601Is not likely to cause pollution of the
5609aquifers from which usable water is currently
5616or likely to be drawn;
5621Will not adversely impact existing off site
5628land uses;
5630Will not adversely impact the existing legal
5637withdrawals of either Petitioners or others;
5643Will utilize local water resources;
5648Will incorporate the County's water
5653conservation and reuse measures to the
5659greatest extent possible and will not cause a
5667waste of water; and
5671Will not likely be harmful in any way to the
5681District's water resources.
568448. In sum, the instant permit application is a reasonable projection of
5696the County's water needs into the foreseeable future. The evidence presented by
5708the parties, taken as a whole, reflects a clear and reasonable need for the
5722water, and reasonable assurance have been given and are supported by the
5734evidence that approval thereof is consistent with the District's criteria for
5745approval and in harmony with the best interests of the public. Properly
5757administered consistent with the conditions proposed for approval of the permit,
5768the permitted withdrawal should not interfere with any legal existing use of
5780water in Sarasota County or within the District.
5788RECOMMENDATION
5789Based on the foregoing Findings of fact and Conclusions of Law, it is,
5802therefore:
5803RECOMMENDED that consumptive water use permit No. 208836.00, providing for
5813authorized quantities as outlined in the intent to issue, subject to conditions
5825contained therein, be issued to Sarasota County.
5832RECOMMENDED in Tallahassee, Florida this 5th day of September, 1991.
5842_______________________________________
5843ARNOLD H. POLLOCK
5846Hearing Officer
5848Division of Administrative Hearings
5852The DeSoto Building
58551230 Apalachee Parkway
5858Tallahassee, Florida 32399-1550
5861(904) 488-9675
5863Filed with the Clerk of the
5869Division of Administrative Hearings
5873this 5th day of September, 1991.
5879APPENDIX TO RECOMMENDED ORDER
5883The following constitutes my specific rulings pursuant to Section
5892120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted
5904by the parties to this case.
5910FOR THE PETITIONERS:
59131. Rejected as not supported by the evidence.
59212. Accepted.
59233. Accepted.
59254. - 8. Resolved against the Petitioners on the basis information presented
5937by Respondents.
59399.- 13. Accepted and incorporated herein.
594514. - 16. Accepted and incorporated herein.
595217. Accepted and incorporated herein.
595718. & 19. Accepted and incorporated herein.
596420. - 23. Accepted.
596824. Accepted but not dispositive of any issue.
597625. Accepted.
597826. & 27. Noted as citation of authority.
598628. Rejected.
598829. & 30. Accepted as restatements of evidence but not as
5999Findings of Fact.
600231. Irrelevant.
600432. Rejected
600633. & 34. Not a error is, in fact, it is such.
601835. - 38. Irrelevant.
602239. - 43. Accepted.
602644. Accepted.
602845. Rejected.
603046. Accepted and incorporated herein.
603547. & 48. Rejected as a mere citation of testimony.
604549. Not understandable. Not a Finding of Fact.
605350. Accepted.
605551. Evidence is acceptable.
605952. Not sufficiently specific to rule upon.
606653. Not proven.
606954. Not specific.
607255. & 56. Rejected.
6076FOR THE RESPONDENTS:
60791. - 4. Accepted and incorporated herein.
60865. & 6. Accepted and incorporated herein.
60937. & 8. Accepted and incorporated herein.
61009. - 14. Accepted and incorporated herein.
610715. - 17. Accepted and incorporated herein.
611418. - 21. Accepted and incorporated herein.
612122. & 23. Accepted and incorporated herein.
612824. Accepted.
613025. - 27. Accepted and incorporated herein.
613728. & 29. Accepted and incorporated herein.
614430. - 32. Accepted and incorporated herein.
615133. Accepted and incorporated herein.
615634. Accepted.
615835. Accepted.
616036. - 37. Accepted and incorporated herein.
616738. Accepted and incorporated herein.
617239. Accepted.
617440. Accepted and incorporated herein.
617941. - 43. Accepted and incorporated herein.
618644. Accepted.
618845. Accepted and incorporated herein,
619346. - 48. Accepted and incorporated herein.
620049. Accepted - not a Finding of Fact.
620850. Accepted and incorporated in substance herein.
621551. Not correct as stated. Sarasota County will not be withdrawing saline
6227water from the upper Floridan aquifer. The remaining discussion is accepted.
623852. Accepted and utilized.
624253. & 54. Accepted.
624655. Accepted and incorporated herein.
625156. Accepted.
625357. - 59. Accepted and incorporated herein.
626060. Accepted.
626261 - 63. Not Findings of Fact but comments on the evidence.
627464. Accepted and incorporated herein.
627965. & 66. Not Findings of Fact.
6286COPIES FURNISHED:
6288Wyatt S. Bishop, Jr.
62925153 Tucumcari Trail
6295Sarasota, Florida 34241
6298Joan Jones
6300719 East Baffin Road
6304Venice, Florida 34293
6307William A. Dooley, Esquire
6311Nelson, Hesse, Cyril, Smith,
6315Widman, Herb, Causey & Dooley
63202070 Ringling Blvd.
6323Sarasota, Florida 34237
6326Cathy Sellers, Esquire
6329Steel, Hector & Davis
6333215 S. Monroe Street
6337Tallahassee, Florida 32301-1804
6340Peter G. Hubbell
6343Executive Director
6345Southwest Florida Water
6348Management District
63502379 Broad Street
6353Brooksville, Florida 34609-6899
6356Edward B. Helvenston, Esquire
6360Vivian Arenas, Esquire
6363SWFWMD
63642379 Broad Street
6367Brooksville, Florida 34609-6899
6370NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
6376All parties have the right to submit written exceptions to this Recommended
6388Order. All agencies allow each party at least 10 days in which to submit
6402written exceptions. Some agencies allow a larger period within which to submit
6414written exceptions. You should consult with the agency which will issue the
6426Final Order in this case concerning its rules on the deadline for filing
6439exceptions to this Recommended Order. Any exceptions to this Recommended Order
6450should be filed with the agency which will issue the Final Order in this case.
6465=================================================================
6466AGENCY FINAL ORDER
6469=================================================================
6470BEFORE THE GOVERNING BOARD OF THE
6476SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
6481ORDER NO. 91-43
6484OGC File No. 03091
6488WYATT S. BISHOP, JR.,
6492Petitioner
6493vs.
6494SARASOTA COUNTY PUBLIC CASE NO. 91-2704
6500UTILITIES DEPARTMENT and
6503SOUTHWEST FLORIDA WATER
6506MANAGEMENT DISTRICT,
6508Respondents.
6509___________________________/
6510JOAN JONES,
6512Petitioner
6513vs.
6514SARASOTA COUNTY PUBLIC CASE NO. 91-2706
6520UTILITIES DEPARTMENT and
6523SOUTHWEST FLORIDA WATER
6526MANAGEMENT DISTRICT,
6528Respondents.
6529____________________________/
6530FINAL ORDER
6532This cause was heard by the Governing Board of the Southwest Florida Water
6545Management District (District) pursuant to Section 120.57, Florida Statutes
6554( F.S.), for the purpose of considering the Recommended Order of the Hearing
6567Officer and the Exceptions filed by Wyatt S. Bishop, Jr. (Bishop) and issuing
6580a Final Order in the above-styled proceedings. On September 5, 1991, the
6592Hearing Officer submitted to all parties a Recommended Order, a copy of which is
6606attached hereto and incorporated herein by reference as Exhibit A. Pursuant to
6618Section 120.57(1)(b)9, F.S., and Rule 40D-1.564, Florida Administrative Code
6627( F.A.C.), the parties are entitled to submit written exceptions to the
6639Recommended Order. On September 20, 1991, Bishop timely filed Exceptions to the
6651Recommended Order. On September 24, 1991, Bishop filed copies of the transcript
6663as required by Rule 40D- 1.564(2), F.A.C.
6670The Governing Board has reviewed the Recommended Order and all Exceptions
6681thereto and finds that it can address each Exception in the manner set forth in
6696the Findings on Exceptions to Recommended Order, attached hereto and
6706incorporated herein by reference as Exhibit B. Those preliminary portions of
6717the Recommended Order regarding date and place of hearing, appearances entered
6728at the hearing, Statement of the Issues and Preliminary Statement are hereby
6740adopted and incorporated herein by reference.
6746FINDINGS OF FACT
6749The Governing Board hereby adopts and incorporates by reference the
6759Findings of Fact set forth in the Recommended Order, with the exception of
6772Findings of Fact 16 and 18, which are rejected in part due to typographical
6786errors which do not otherwise adversely affect the Hearing Officer's Findings of
6798Fact.
6799CONCLUSIONS OF LAW
6802The Governing Board hereby adopts and incorporates by reference the
6812Conclusions of Law set forth in the Recommended Order.
6821Whereas, based on the foregoing Findings of Fact and Conclusions of Law, it
6834is hereby ordered that Water Use Permit No. 208836.00 for Sarasota County be
6847immediately issued in the same form as Exhibit C attached hereto and
6859incorporated herein by reference for a period of six years from the date of
6873issuance.
6874Done and Ordered this 24th day of September, 1991, in Brooksville, Hernando
6886County, Florida.
6888By:_________________________
6889Charles A. Black, Chairman
6893Attest:_________________________
6894Sally Thompson, Secretary
6897(Seal)
6898Filed this 24th day of
6903September, 1991.
6905_________________________
6906Agency Clerk
- Date
- Proceedings
- Date: 09/30/1991
- Proceedings: Notice of Entry of Final Order w/Final Order filed.
- Date: 09/23/1991
- Proceedings: Petitioner Wyatt S. Bishop`s Exceptions to The Recommended Order filed.
- Date: 09/12/1991
- Proceedings: Petitioner Wyatt S. Bishop Notice of Filing of Exceptions to the Hearing Officer`s Recommended Order and Request That Lesser Portion of Transcripts be Filed filed.
- PDF:
- Date: 09/05/1991
- Proceedings: Recommended Order sent out. CASE CLOSED. Hearing held 7/15-16/91.
- Date: 08/15/1991
- Proceedings: Letter to AHP from William A. Dooley (re: Proposed Findings) & attachment filed.
- Date: 08/12/1991
- Proceedings: Petitioner`s Highlited Copy of Permit Staff Report & Petitioner`s Highlited Pages taken from Petitioners Evidence- Attachment D w/cover ltr` Proposed Findings of Fact, Conclusions of Law and Recommended Order by Petitioners, Wyatt S. Bishop and Joan Jon
- Date: 08/08/1991
- Proceedings: Exhibit-15 filed. (From William A. Dooley)
- Date: 08/07/1991
- Proceedings: Letter to AHP from Scott L. Blair (re: denying permits) filed.
- Date: 08/06/1991
- Proceedings: Respondents' Joint Proposed Findings of Fact and Conclusions of Law filed. (From William Dooley)
- Date: 08/05/1991
- Proceedings: Letter to AHP from Joseph P. Hession (re: Objections) filed.
- Date: 08/05/1991
- Proceedings: Letter to AHP from Boyce H. Blackmon (re: ruling against the County on issuing the water use permit) filed.
- Date: 07/29/1991
- Proceedings: Transcript (2 Vols) filed.
- Date: 07/29/1991
- Proceedings: Petitioner`s Motion for Official Recognition of Certain Documents w/ filed. (From Wyatt Bishop, Jr.)
- Date: 07/22/1991
- Proceedings: Post Hearing Memorandum w/Exhibit-19 filed. (From Vivian Arenas)
- Date: 07/22/1991
- Proceedings: Letter to AHP from William Dooley (re: Introduction of additional testimony) & attachment filed.
- Date: 07/19/1991
- Proceedings: Subpoena Ad Testificandum filed. (From Wyatt S. Bishop, Jr.)
- Date: 07/15/1991
- Proceedings: CASE STATUS: Hearing Held.
- Date: 07/11/1991
- Proceedings: Notice of Taking Deposition filed. (from William A. Dooley)
- Date: 07/10/1991
- Proceedings: Respondent Southwest Florida Water Management District`s Motion to Withdraw and Amend Answers to Request for Admissions filed. (From Edward B. Halvenston)
- Date: 07/08/1991
- Proceedings: (Respondent) Motion to Withdraw and Amend Answers to Request for Admissions and Fourth Amended Answers to Request for Admissions; Fourth Amended Answers to Petitioner Wyatt S. Bishop`s Request for Admissions filed. (From Omer Causey)
- Date: 07/03/1991
- Proceedings: Notice of Certificate of Answers to Request for Admissions; Requests for Admissions; Petitioner, Wyatt S. Bishop`s Second Set of Interrogatories to the Sarasota County Public Utilities Department; Petitioner, Wyatt S. Bishop`s Answer to Sarasota County`
- Date: 07/01/1991
- Proceedings: Third Amended Answers to Request for Admission filed.
- Date: 06/28/1991
- Proceedings: Notice of Hearing Via Telephone Conference Call; Motion to Compel Answers to Interrogatories by Petitioner Bishop; Motion to Compel Answers to Interrogatories by Petitioner Jones filed. (From Omer Causey)
- Date: 06/27/1991
- Proceedings: (Sarasota) Motion to Compel Answers to Interrogatories by Petitioner Jones filed. (From Omer Causey)
- Date: 06/24/1991
- Proceedings: Motion to Withdraw and Amend Answers to Request for Admissions and Second Amended Answers to Request for Admissions; Second Amended Answers to Request for Admissions w/(unsigned) Order filed. (From O. Causey)
- Date: 06/24/1991
- Proceedings: Respondent Southwest Florida Water Management District`s Response to Wyatt S. Bishop`s Initial Request for Admissions filed. (from Vivian Arenas)
- Date: 06/24/1991
- Proceedings: The Respondent Southwest Florida Water Management District`s Notice of Service of Answers to Petitioner Joan Jones` First Set of Interrogatories filed. (From Vivian Arenas)
- Date: 06/21/1991
- Proceedings: Sarasota County's Notice of Answers to Interrogatories Propounded by Joan Jones filed. (From William A. Dooley)
- Date: 06/21/1991
- Proceedings: (Respondent) Amended Answers to Request for Admissions; Request to Produce (3); Answers to Request for Admissions; Request for Admissions; Notice of Taking Deposition (2); Sarasota County`s Notice of Second Set of Interrogatories to Jones; Sarasota Coun
- Date: 06/17/1991
- Proceedings: Notice of Service of Answers to Interrogatories; Petitioner, Wyatt S.Bishop`s First Set of Interrogatories to the Sarasota County Public Utilities Department filed. (From William Dooley)
- Date: 06/14/1991
- Proceedings: Petitioner, Wyatt S. Bishop`s Initial Request for Admissions to the Sarasota County Public Utilities Department filed. (From Wyatt S. Bishop, Jr.)
- Date: 06/12/1991
- Proceedings: Petitioner, Wyatt S. Bishop`s Notice of Serving Answers to Sarasota County Public Utilities Department`s Interrogatories to Bishop; Sarasota County`s Notice of Interrogatories to Bishop filed.
- Date: 06/12/1991
- Proceedings: Joint Notice of Interrogatories to Sarasota County w/Interrogatories filed.
- Date: 06/05/1991
- Proceedings: Petitioner, Wyatt S. Bishop`s Response in Opposition to Sarasota County Public Utilities Department`s Motion in Limine filed. (From Wyatt S. Bisop, Jr.)
- Date: 06/03/1991
- Proceedings: Petitioner, Wyatt S. Bishop`s First Set of Interrogatories to the Sarasota County Public Utilities Department filed.
- Date: 05/31/1991
- Proceedings: (Respondent) Motion in Limine; cc: Sarasota Countys Notice of Interrogatories to Bishop filed.
- Date: 05/29/1991
- Proceedings: Order Granting Motion for Consolidation and Setting Case for Hearing sent out. (91-2704, 91-2706 & 91-2707 consolidated; Hearing set for July 15-16, 1991; 9:00am; Sarasota).
- Date: 05/23/1991
- Proceedings: Notice of Appearance; Motion to Consolidate filed. (from W. Dooley)
- Date: 05/23/1991
- Proceedings: (Sarasota County) Request for Oral Argument and Notice of Hearing; Motion to Expedite Hearing & Affidavit filed. (from W. Dooley)
- Date: 05/20/1991
- Proceedings: Joint Response to Notice of Assignment and Initial Order, Joint Motion to Consolidate and Notice of Appearance of Additional Counsel filed.
- Date: 05/08/1991
- Proceedings: Initial Order issued.
- Date: 05/01/1991
- Proceedings: Agency Referral Letter; Notice of Referral and Notice of Related Cases; Petition for Administrative Determination of Substantial Interests;Individual Water Use Permit; Agency Action Letter filed.
Case Information
- Judge:
- ARNOLD H. POLLOCK
- Date Filed:
- 05/01/1991
- Date Assignment:
- 05/08/1991
- Last Docket Entry:
- 09/30/1991
- Location:
- Sarasota, Florida
- District:
- Middle
- Agency:
- ADOPTED IN PART OR MODIFIED