94-002903 Seacoast Utility Authority vs. Pga National Golf Club And Sports Center, Ltd., And South Florida Water Management District Status: Closed Recommended Order on Monday, February 6, 1995.

Summary: Sewer utility had no standing to challnge cup for golf course on grounds that South Florida Water Management District was not properly requiring reuse of reclaimed water.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SEACOAST UTILITY AUTHORITY, )

)

Petitioner, )

)

vs. ) CASE NO. 94-2903

)

PGA NATIONAL GOLF CLUB & SPORTS )

CENTER, LTD., and SOUTH FLORIDA )

WATER MANAGEMENT DISTRICT, )

)

Respondents. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this matter on

September 22, 1994, in West Palm Beach, Florida, before J. Stephen Menton, a

duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Nathan E. Nason, Esquire

Nason, Gildan, Yeager, Gerson and White

1645 Palm Beach Lakes Boulevard

Suite 1200

West Palm Beach, Florida 33401

For Respondent Cecile I. Ross, Esquire

South Florida Office of the General Counsel

Water Manage- 3301 Gun Club Road

ment District: West Palm Beach, Florida 33416-4680

For Respondent

PGA National E. Lee Worsham, Esquire

Golf Club and Honigman, Miller, Schwartz and Cohn

Sports Center, 222 Lakeview Avenue, Suite 800

Ltd.: West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue in this case is whether Seacoast Utility Authority's challenge to

the South Florida Water Management District's proposed issuance of a water use

permit to PGA National Golf Club and Sports Center, Ltd. in a critical water

supply area should be upheld. As discussed below, the parties have stipulated

that, in deciding to issue the permit, the South Florida Water Management

District has not evaluated or considered whether the use of reclaimed water was

either economically, environmentally or technically infeasible.

PRELIMINARY STATEMENT

On April 12, 1994, the staff of the South Florida Water Management District

(the "District") recommended renewal of water use permit #50-00617-W (the

"Permit") issued to PGA National Golf Club and Sports Center, Ltd. ("PGA") for

golf course irrigation. The existing and proposed source of the water was the

ground water table. The staff recommendation did not include a requirement for

PGA to use reclaimed water as part of its golf course irrigation system.

On April 28, 1994, Seacoast Utility Authority ("Seacoast") filed a Petition

for Formal Administrative Hearing challenging the staff's recommendation to

renew the Permit. The District forwarded the Petition to the Division of

Administrative Hearings to conduct proceedings pursuant to Section 120.57(1),

Florida Statutes. The case was initially assigned to Hearing Officer Joyous D.

Parrish.

By Notice of Hearing dated June 23, 1994, Hearing Officer Parrish scheduled

a formal hearing for September 21 through 22, 1994. Prior to the hearing, the

parties raised a number of legal issues. PGA filed a Motion to Dismiss

Seacoast's Petition and a Motion to Stay and for a Protective Order. The

District filed a Motion to Strike/Motion to Limit the Issues. Seacoast filed a

Memorandum in Opposition to the South Florida Water Management District's Motion

to Strike/Motion to Limit Issues and a Memorandum of Law in opposition to PGA's

Motion to Stay and for Protective Order. Hearing Officer Parrish conducted a

telephone conference hearing on September 6, 1994 on the various legal issues

raised by the parties. The parties apparently agreed during the telephone

conference hearing to bifurcate the hearing process to address certain threshold

legal issues raised in the various motions before embarking on extensive

discovery and hearing preparation.

Following the September 6 telephone conference hearing, Hearing Officer

Parrish entered an Order Granting Motion to Limit Issues dated September 14,

1994. That Order provided as follows:

1. The hearing . . . scheduled for September 22, 1994, shall be limited to

a determination of whether the South Florida Water Management District's

procedures for reviewing water use permits concerning use of reclaimed water

comport with applicable rules.

2. As the resolution of the foregoing issue may be dispositive of the

matter, a recommended order may be entered with jurisdiction being relinquished

to the agency. However, if the resolution of the foregoing does not result in a

recommended order, jurisdiction may be retained to allow further hearing on the

applicant's request for a water use permit (50-000617-W).

Shortly before the commencement of the formal hearing, the case was

transferred to Hearing Officer J. Stephen Menton, who conducted the hearing as

scheduled. During the hearing, the parties agreed that the issue of Seacoast's

standing to challenge the District's proposed issuance of the Permit should also

be resolved in the first phase of the proceeding. Thus, at the hearing on

September 22, all parties were afforded an opportunity to present evidence and

legal argument on the standing issue as well as on the question of whether the

District's procedures for reviewing water use permit applications comports with

the applicable statutes and rules. The parties have deferred presentation of

evidence and argument on the other issues raised by the Petition and the various

motions that have been filed. PGA specifically reserved its right to assert an

entitlement to a backup source of water if it is required to utilize reclaimed

water.

At the hearing, Seacoast presented the testimony of one witness, Rim

Bishop, the executive director of Seacoast. The District presented the

testimony of William Scott Burns, the Director of the Water Use Division for the

District's Regulation Department, who was accepted as an expert in water use

regulation.

At the request of the District, official recognition has been taken of Part

II of Chapter 373, Florida Statutes, Chapter 40E-2, Florida Administrative Code,

the Basis of Review of Water Use Permit Applications within the South Florida

Water Management District (the "Basis of Review") and Chapter 17-40, Florida

Administrative Code (the "State Water Policy"). The District's composite

Exhibit 1 includes all of the matters that were officially recognized. The

parties also submitted a document entitled Stipulated Facts which was marked as

the District's Exhibit 2 during the hearing. That Exhibit was accepted without

objection.

A transcript of the hearing has been filed. All parties have submitted

proposed recommended orders in accordance with the schedule established at the

conclusion of the hearing. In addition, Seacoast filed Seacoast Utility

Authority's Post-Hearing Memorandum which addresses a number of the legal issues

raised in this case. All of the submittals have been reviewed and considered in

the preparation of this Recommended Order. A ruling on each of the parties

proposed findings of fact is included in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon the evidence adduced at the hearing and the entire record in

this proceeding, the following findings of fact are made:

1. Seacoast is a publicly owned water and sewer utility which operates a

wastewater treatment facility in Palm Beach County, Florida. Seacoast's service

area is bounded on the south by Riviera Beach and on the north by the Town of

Jupiter.

2. Seacoast operates four treatment plants: two water plants and two

wastewater plants.

3. Seacoast's regional wastewater facility currently generates

approximately six (6) million gallons per day ("MGD") of reclaimed water and is

permitted by the Florida Department of Environmental Protection ("DEP") as an

eight (8) MGD wastewater treatment plant.

4. As discussed in more detail in the Conclusions of Law below, the

Florida Legislature and DEP have sought to encourage the reuse of reclaimed

water. This policy is one of the many sometimes competing goals that are

supposed to be taken into account in the water use permitting process.

5. Until a few years ago, the treated effluent from one of Seacoast's

wastewater plants was directly discharged to nearby surfacewater. During the

last four years, Seacoast installed a pumping station and five miles worth of

transmission lines to deliver all of its treated effluent to its regional

wastewater facility. Seacoast claims that these efforts were prompted by its

interpretation of changing regulations and a perceived regulatory preference for

reuse of water.1 Although Seacoast claims that there has been a change in

regulatory emphasis in favor of reuse of reclaimed water, Seacoast is not under

a mandate from any court or agency to sell or utilize any specific amount of

reclaimed water. It does appear that a deep injection well used by Seacoast for

disposal of wastewater is not or was not operating as designed. Seacoast was

apparently obligated to construct reclaimed water facilities at its wastewater

treatment plant as part of its permit from DEP for the injection well. There

was no requirement that the reclaimed water be sold or otherwise utilized.

6. The intended primary disposal for Seacoast's reclaimed water is reuse.2

Seacoast's wastewater treatment plant provides irrigation quality reclaimed

water. Seacoast tries to sell the reclaimed water for irrigation use in an

effort to recoup the costs incurred in constructing the facilities necessary to

reclaim the water. Backup disposal is achieved through injection down a 3300

feet deep injection well into the boulder zone. Once the reclaimed water is

injected down the well, it is unavailable for reuse.

7. The evidence suggests that there are other possible utilizations

available for Seacoast's reclaimed water including sale to another utility

and/or backup recharge to preserve wetlands during periods of high pumpage. For

example, Seacoast is apparently in the process of applying for the necessary

permits to utilize a portion of its reclaimed water to prevent harm to wetlands

adjacent to its Hood Road Well Field by constructing an hydraulic barrier.

8. At all times pertinent to this proceeding, only approximately 1.2 MGD

of the reclaimed water generated by Seacoast was being reused. The remaining

approximately 5 MGD was disposed of through the injection well.

9. PGA owns and operates three (3) golf courses in Palm Beach County

within Seacoast's service area. PGA's golf courses are located within an area

that has been designated by the District as a Critical Water Supply Problem

Area. Critical Water Supply Problems Areas are geographical regions where the

available water supply due to the potential for saltwater intrusion, wetland

impacts, or impacts to existing legal uses, is predicted not to meet water

demands that are projected during the next 20 years. See, Chapter 40E-23,

Florida Administrative Code. The use of reclaimed water is not mandated in such

areas. However, the District's Rules seek to insure the optimal utilization of

alternative sources of water in such areas to minimize the potential harm to

water resources.

10. It is not clear from the evidence presented in this case when PGA

first obtained the Permit from the District for golf course irrigation. The

Permit allows PGA to use the groundwater table as the source of water for its

irrigation. Before its expiration, PGA timely sought renewal of the Permit.

11. On April 12, 1994, the District staff recommended renewal of PGA's

Permit. The staff recommendation would allow PGA to continue using the

groundwater table as the source of its water. The recommendation did not

contain a requirement for PGA to use any reclaimed water as part of its golf

course irrigation system.

12. Seacoast became aware of PGA's application to renew its Permit through

a routine review of all water use permit applications made to the District by

"potential reclaimed water users in [its] service area." Seacoast filed a

Petition for Formal Administrative Hearing challenging the District staff's

recommendation to renew PGA's Permit.

13. In its Petition, Seacoast alleged that its substantial interests would

be affected by the renewal of the Permit because Seacoast's ability to achieve

the State of Florida's goals of conservation and environmental protection

depends upon PGA, and other similar country clubs, being required to consume

reclaimed water. Seacoast contends that the staff recommendation immediately

eliminates a major potential consumer of Seacoast's reclaimed water which

purportedly impairs Seacoast's ability to meet state objectives for reuse of

reclaimed water and results in the undesirable continued disposal of reclaimed

water via deep well injection.

14. In connection with its challenge to the proposed renewal of PGA's

Permit, Seacoast has stipulated that PGA's proposed withdrawals from the

groundwater table would not cause harm to the water resources of the District.

15. Seacoast also admits that it has never evaluated whether it would be

environmentally injured by PGA's withdrawals from the groundwater table and/or

whether the proposed use by PGA is wasteful.

16. The District does not currently have any goals for the utilization of

reclaimed water on a regional basis. Instead, the District oversight of the

utilization of reclaimed water is done on a permit by permit basis.

17. As a general policy, the District will not accept a water use permit

application in an area of critical water shortage unless a reuse feasibility

determination is included. The District's rules do not currently contain any

guidelines as to how the determination of feasibility is to be made, nor are

there any criteria for reviewing an applicant's determination of feasibility.

As discussed below, the District does not even consider the applicant's reuse

feasibility determination unless the proposed withdrawal is projected to result

in harm to the resources of the District. Even when harm to a resource is

projected, the District accepts an applicant's feasibility determination

regarding the use of reclaimed water without question or analysis. For the

other consumptive use criteria set forth in Rule 40E-2.301, the District

independently evaluates the applicant's conclusions to confirm that they are

reasonable.

18. In other words, the District treats reclaimed water as an alternative

source of water in the event that an applicant's proposed water use is projected

to cause harm to the water resources of the District. If no harm is expected to

occur to water resources as a result of a proposed use, the District does not

review the applicant's determination of whether or not to use reclaimed water.

If harm is projected, the applicant is required to look at alternatives like

water conservation or utilization of water sources other than those proposed

(such as reclaimed water). The applicant is free to select any alternative that

mitigates the harm. Thus, even in a Critical Water Supply Area, an applicant

can mitigate concerns about harm to the resource without utilizing reclaimed

water.

19. In sum, under the District's current procedures, the use of reclaimed

water is never required. It is simply one alternative an applicant can utilize

to offset or mitigate projected harm to water resources (such as saltwater

intrusion, contamination, wetland drawdowns or existing legal use impacts) from

a proposed withdrawal. Even when the District staff concludes that an

applicant's proposed use will result in harm to water resources, the staff does

not critically review the applicant's determination of whether the use of

reclaimed water is economically, environmentally, or technically infeasible.

With respect to PGA's Permit, the District staff concluded that no harm to the

resource was predicted as a result of PGA's proposed use. Thus, PGA's

determination not to use reclaimed water was not evaluated or even considered.

20. The District explains that its implementation of the permitting

program is based upon its interpretation that its primary responsibility is to

prevent harm to water resources. The District points out that there are a

number of factors to be considered in utilizing reclaimed water. These factors

include, but are not limited to, the cost of the reclaimed water, the cost of

retrofitting an irrigation system, the long-term availability of the reclaimed

supply and the availability of a back-up supply.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has jurisdiction over the

parties to and the subject matter of this proceeding. Section 120.57(1),

Florida Statutes.

22. The Water Management District has been granted the authority to design

and implement a permitting program for the consumptive use of water. See,

Section 373.219(1), Florida Statutes.

23. In deciding whether to issue a water use permit, the District must

apply the criteria set forth in Part II of Chapter 373, Florida Statutes. The

statutory conditions for issuing a permit are set forth in Section 373.223(1).

Under that statute, an applicant must establish that the proposed use is a

"reasonable-beneficial" use as defined in Section 373.019(4), that the use will

not cause adverse impacts to legally existing users, and that the use is

consistent with the public interest.

24. A "reasonable-beneficial use" is defined in Section 373.019(4) as "the

use of water in such quantity as is necessary for economic and efficient

utilization for a purpose and in a manner which is both reasonable and

consistent with the public interest."

25. DEP has the adopted the State Water Policy, Rule 17-40.401, et. seq.,

Florida Administrative Code,3 which delineates a number of factors which a water

management district must consider in determining whether a proposed use is

"reasonable-beneficial." Among the factors to be considered are "the extent and

amount of harm caused," "whether the proposed use would significantly induce

salt water intrusion," "the amount of water which can be withdrawn without

causing harm to the resource," "the demonstrated need for the water," the long

term yield and suitability of the water source, the potential for flood damage

and public health impacts, and the "practicality of mitigating any harm by

adjusting the quantity or method of use." See, Rule 17-40.401(2)(b), (c), (e),

(f), (g), (l), (m), (n), (o), (p), and (q), Florida Administrative Code. In

addition, Subsection (j) provides that consideration should be given to "the

availability of reclaimed water for and the practicality of reuse, or the use of

waters of more suitable quality."

26. To implement its permitting duties under the statute, the District has

adopted Rule 40E-2, Florida Administrative Code, which incorporates by reference

the Basis of Review For Water Use Permit Applications within the South Florida

Water Management District (the "Basis of Review").

27. In reviewing permit applications, the District Water Use Division

applies the conditions for permit issuance set forth in Rule 40E-2.301, Florida

Administrative Code. This Rule sets forth a series of factors that the District

considers in determining whether an application satisfies the statutory

requirements.

28. Many of the considerations delineated in the State Water Policy have

been directly incorporated in the District's Rule. See, e. g., Rule 40E-

2.301(1)(a), (c), and (d). In fact, Subsection (e) of the District's Rule

specifically provides that the factors set forth in the State Water Policy

should be considered.

29. Subsection (f) of the District's Rule incorporates the protection

against interference with presently existing legal uses which is set forth in

the statute. Similarly, Subsection (i) incorporates the "public interest"

considerations provided for in Section 373.223, e t u t a t S a d i r o l F  s .

30. In applying the criteria set forth in the Rule, the District

emphasizes the impact of the proposed water use on the water resources of the

District. According to the District, this is the crux of the determination of

whether a proposed use is "reasonable-beneficial." Thus, Subsections (a), (b),

(c), and (d), of Rule 40E-2.301(1) require an applicant to provide reasonable

assurances that the proposed use will not cause movement of saline water, will

not adversely impact off-site land uses, will not cause adverse environmental

impact (such as wetland impacts) and will not cause pollution of the aquifer.

31. The main issue in this case is Seacoast's contention that the District

has not required PGA to meet the criteria of Subsection (h) of the District's

Rule and the specific provisions of the Basis of Review. Subsection (h)

provides that an applicant must give reasonable assurances that the proposed

water use:

(h) makes use of a reclaimed water source

unless the applicant, in any geographic

location, demonstrates that its use is either

not economically, environmentally or techni-

cally feasible. . . .

The District's Basis of Review (March 1994),

which is expressly incorporated in the District's

Rules, provides:

In those areas of the District which are designated

as critical water supply problem areas pursuant to

Chapter 40(E)-23, reclaimed water is required to

be used unless it is demonstrated by the applicant

that its use is either not environmentally,

economically or technically feasible.

32. Seacoast claims that the District ignored the quoted provisions from

the District's Rule and its Basis of Review when it processed PGA's application

for renewal of its Permit without analyzing the applicant's determination not to

use reclaimed water.

33. Seacoast also claims that the manner in which the District is

implementing its program contravenes a number of statutory provisions. The 1994

Florida Legislature passed legislation specifically encouraging the reuse of

reclaimed water. See, Chapter 94-243, Laws of Florida codified in part at

Section 373.250, Florida Statutes. Section 373.250(1), Florida Statutes,

provides:

The encouragement and promotion of water conserva-

tion and reuse of reclaimed water, as defined by

the Department, are state objectives and considered

to be in the public interest.

34. The Statute directs each water management district to adopt rules to

implement this policy. As of the date of the hearing in this matter, no such

rules have been adopted by the District. It should be noted that Subsection 4

of Section 373.250 provides that "nothing in this Section shall impair a water

management district's authority to plan for and regulate consumptive uses of

water under this chapter."

35. The 1994 Legislation also amended Section 403.064, Florida Statutes,

to specifically recognize that the encouragement and promotion of reuse of

reclaimed water was in the public interest. As amended, Section 403.064,

Florida Statutes, provides in pertinent part:

Reuse of Reclaimed Water.

(1) The encouragement and promotion of water

conservation, and reuse of reclaimed water, as

defined by the Department are state objectives . . .

* * *

(11) In issuing consumptive use permits, the

permitting agency shall take into consideration

the local reuse program.

36. It is not clear at this point what changes, if any, the District will

implement to its permitting program as a result of the 1994 Legislation. The

District does not currently have any ruels implementing a reuse program.

37. DEP has incorporated a policy to encourage reuse in its rules which

direct the water management districts to require "a reasonable amount of reuse

of reclaimed water from domestic waste water treatment facilities . . . within

designated critical water supply problem areas unless such reuse is not

economically, environmentally or technically feasible." See, Rule 17-40.401(5),

Florida Administrative Code.

38. Without question, the statutes and rules set forth above incorporate a

number of important and sometimes conflicting goals into the water permitting

process. These potentially conflicting goals necessarily require some difficult

policy choices. For the reasons set forth below, it is concluded that these

choices are not appropriately made in this Section 120.57 proceeding regrading

the renewal of PGA's permit.

39. There is no dispute that the District has not independently evaluated

whether the use of reclaimed water by PGA is environmentally, economically or

technically feasible. In fact, the District has not even analyzed PGA's

feasibility determination. There is also no dispute that PGA's proposed

withdrawal is not projected to result in any harm to the resources of the

District. For this reason, the District will not second guess Seacoast's

decision not to utilize reclaimed water for irrigation.

40. The District explains that its review of a permit application focuses

on the extent of harm expected from a proposed withdrawal. This approach by the

District has been followed since at least January 1, 1993. Thus, if a requested

withdrawal is projected to result in increased salt water intrusion, the

District will more closely scrutinize an applicant's consideration of

alternative sources available to alleviate the resource harm. If no harm to the

resource is predicted, the District does not critically review an applicant's

decision not to use reclaimed water. The manner in which the District is

applying the criteria in its Rule is not clearly articulated in the Rule itself.

Indeed, it is difficult, if not impossible, to reconcile the District's

procedures with the literal language of the Rule and the 1994 legislation which

mandates that more emphasis be placed on reusing reclaimed water.

41. Seacoast has not challenged the District's application of its Rule

under Section 120.535, Florida Statutes, nor has Seacoast sought a mandamus

action to compel the District to comply with its statutory obligations.

Instead, Seacoast has initiated this proceeding to challenge the issuance of a

permit by the District to a potential user of its reclaimed water. Essentially,

Seacoast is seeking to force the District to take a more critical view of the

applicant's determination not to utilize reclaimed water. This is not the

appropriate forum for Seacoast's attempt to significantly modify the District's

implementation of the regulatory scheme so that it complies with Seacoast's

interpretation of the statutory and Rule requirements.

42. In order to have standing in a formal proceeding pursuant to Section

120.57(1), Florida Statutes, a petitioner must allege that its substantial

interests are being determined by the proposed agency action. The Petitioner

must show that the proposed agency action will result in an "injury in fact" of

sufficient immediacy that is within the "zone of interest" protected by the

requested proceeding.

43. The "zone of interest" is defined by the particular statute

authorizing the challenged proposed agency action. See, Agrico Chemical Company

v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 1st DCA 1981).

The District contends that the "zone of interest" in a proceeding for a water

use permit pursuant to Part II of Chapter 373, Florida Statutes, is limited to

resource related issues involving conservation and protection of water

resources. This argument ignores Section 373.250, Florida Statutes, which

specifically encourages and promotes the reuse of reclaimed water.

44. There can be no real dispute that at least part of Seacoast's

motivation in filing this action was to protect its economic interests. As

noted in City of Sunrise v. South Florida Water Management District, 615 So.2d

746, 747 (Fla. 4th DCA 1993), "competitive economic considerations do not fall

within the zone of protection that the District is authorized to consider."

Consequently, the economic interests of Seacoast in selling its reused water is

not a proper factor to be considered in the permitting process.

45. Seacoast claims that it is not only seeking to protect its economic

interests, but that it is also seeking to further the environmental policies

established by the legislature and DEP. Specifically, Seacoast contends that it

is seeking to foster the legislative goal of encouraging the utilization of

reused water which is set forth in Section 373.250, Florida Statutes. According

to Seacoast, the specific statutory recognition of this goal distinquishes this

case from City of Sunrise, Supra.

46. Even if it is assumed that Seacoast's interests in furthering the

utilization of reclaimed water is within the zone of interest protected by

Chapter 373, Seacoast's claim of injury is not sufficiently immediate to entitle

it to protection in this Section 120.57 proceeding. The possibility that PGA

could potentially purchase reclaimed water from Seacoast is pure speculation.

There are numerous reasons why such reuse may be economically, environmentally

or technically not feasible. Any injury to Seacoast will depend upon a number

of intervening factors. See, Boca Raton Mausoleum v. Department of Banking and

Finance, 511 So.2d 1060, 1063 (Fla. 1st DCA 1987). It is not the agency action

itself, i.e., the issuance of a renewal permit to PGA, which will cause the

injury. Village Park Mobile Home Association, Inc. v. Department of Business

Regulation, 506 So.2d 426 (Fla. 1st DCA 1987). In sum, the potential injury

claimed by Seacoast is too remote to be afforded protection within the context

of a proceeding regarding PGA's Permit. Seacoast can not show a substantial

injury of a sufficient immediacy in fact which is of a type or nature that the

proceeding is designed to protect against. See, Agrico Chemical Company v.

Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), rev.

denied, 415 So.2d 1359 (1982); Town of Palm Beach v. Department of Natural

Resources, 577 So.2d 1383 (Fla. 4th DCA 1991).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that the South Florida Water Management District enter a Final

Order dismissing the Petition filed by Seacoast challenging the renewal of

Permit Number 50-00617-W to PGA for golf course irrigation.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 6th day of

February 1995.

___________________________________

J. STEPHEN MENTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of February 1995.

ENDNOTES

1/ As discussed in the Conclusions of Law below, Seacoast points to certain

provisions in Chapter 373, the State Water Policy and the District's rules to

support its claim that the regulatory structure requires it to develop the

capacity to make treated effluent available for reuse.

2/ The utilization of reclaimed water can not be the sole means for disposing

of wastewater because customers will not utilize the reclaimed wastewater during

times of heavy rainfall. Accordingly, a back-up system of disposal, such as a

deep injection well, is necessary.

3/ At the hearing, the parties stipulated that the Hearing Officer should take

Official Recognition of Chapter 17-40, Florida Administrative Code. Those rules

have subsequently been transferred to Chapter 62, Florida Administrative Code.

APPENDIX TO RECOMMENDED ORDER

All parties have submitted Proposed Recommended Orders. The following

constitutes my rulings on the proposed findings of fact submitted by the

parties.

Petitioner's proposed findings of fact

1. Adopted in substance in Findings of Fact 1 and 3.

2. Adopted in substance in Finding of Fact 8.

3. Adopted in substance in Finding of Fact 6.

4. Rejected as vague and overly broad.

5. Subordinate to Finding of Fact 7.

6. The first two sentences are adopted in substance in Finding

of Fact 5 and Endnote 1. The last sentence is addressed in

Finding of Fact 3 and in the Conclusions of Law.

7. Rejected as vague and overly broad.

8. Subordinate to Findings of Fact 16-20.

9. Adopted in substance in Finding of Fact 18.

10. Adopted in substance in Finding of Fact 15, and in the

Conclusions of Law.

11. Adopted in substance in Finding of Fact 9.

12. Addressed in the Preliminary Statement and in Finding of

Fact 11.

13. Adopted in substance in Findings of Fact 11 and 18.

14. Adopted in substance in Finding of Fact 12.

15. Addressed in Finding of Fact 13, and in the Conclusions of

Law.

16. Rejected as constituting argument. This subject is

addressed in the Conclusions of Law.

Respondent, South Florida Water Management District's proposed findings of fact

1. Adopted in substance in the Preliminary Statement and

Findings of Fact 9-11.

2. Adopted in substance in Finding of Fact 1.

3. Rejected as unnecessary and as a summary of testimony rather

than a finding of fact.

4. Adopted in substance in Finding of Fact 13.

5. Adopted in substance in Findings of Fact 12, 14 and 15.

6. Adopted in substance in Finding of Fact 13, and in the

Conclusions of Law.

7. Rejected as unnecessary and as constituting argument rather

than a finding of fact.

8. Adopted in substance in Findings of Fact 14 and 15.

9. Adopted in substance in Findings of Fact 7 and 8.

10. Addressed in Finding of Fact 5.

11. Rejected as unnecessary and constituting argument rather

than a finding of fact.

12. Rejected as unnecessary.

13. Rejected as unnecessary.

14. Addressed in the Conclusions of Law.

15. Addressed in the Conclusions of Law.

16. Addressed in the Conclusions of Law.

17. Addressed in the Conclusions of Law.

18. Addressed in the Conclusions of Law.

19. Rejected as vague and ambiguous.

20. Addressed in the Conclusions of Law.

21. Adopted in substance in Finding of Fact 9.

22. Subordinate to Findings of Fact 17-20.

23. Subordinate to Findings of Fact 17-20, and addressed in the

Conclusions of Law.

24. Adopted in substance in Findings of Fact 17-20.

25. Rejected as unnecessary.

26. Subordinate to Finding of Fact 17.

27. Rejected as unnecessary.

28. Addressed in the Conclusions of Law.

29. Rejected as unnecessary.

30. Adopted in substance in Findings of Fact 17-20.

31. Adopted in substance in Findings of Fact 17-20.

32. Rejected as unnecessary.

33. Adopted in substance in Findings of Fact 14 and 15.

34. Subordinate to Finding of Fact 19.

35. Rejected as unnecessary and beyond the scope of this

proceeding.

36. Rejected as unnecessary and beyond the scope of this

proceeding.

37. Rejected as unnecessary and beyond the scope of this

proceeding.

38. Rejected as unnecessary and beyond the scope of this

proceeding.

39. Rejected as unnecessary and beyond the scope of this

proceeding.

40. Adopted in substance in Finding of Fact 7.

Respondent, PGA National Golf Club and Sports Center, Ltd.'s proposed findings

of fact

1. Adopted in substance in Finding of Fact 1.

2. Adopted in substance in Finding of Fact 9.

3. Adopted in substance in Finding of Fact 3.

4. Addressed in the Preliminary Statement and in Finding of

Fact 10.

5. Adopted in substance in Finding of Fact 11.

6. Adopted in substance in Finding of Fact 11.

7. Adopted in substance in Findings of Fact 17, 18 and 19.

8. Adopted in substance in Finding of Fact 19.

9. Adopted in substance in Finding of Fact 14.

10. Adopted in substance in Finding of Fact 9.

11. Adopted in substance in Findings of Fact 1, 2 and 5.

12. Adopted in substance in Finding of Fact 3.

13. Rejected as unnecessary.

14. Subordinate to Finding of Fact 6.

15. Subordinate to Finding of Fact 13.

16. Rejected as vague, ambiguous and unnecessary.

17. Subordinate to Finding of Fact 7.

18. Adopted in substance in Endnote 2.

19. Adopted in substance in Finding of Fact 2.

20. Adopted in pertinent part in Finding of Fact 7.

21. Rejected as unnecessary and beyond the scope of this

proceeding.

22. Rejected as unnecessary and beyond the scope of this

proceeding.

23. Rejected as unnecessary.

24. Adopted in substance in Findings of Fact 17-20.

25. Subordinate to Findings of Fact 17-20.

26. Rejected as unnecessary.

27. Adopted in substance in Finding of Fact 17.

28. Addressed in the Findings of Fact 17, 19 and 20, and in the

Conclusions of Law.

29. Rejected as unnecessary and beyond the scope of this

proceeding.

30. Rejected as vague and unnecessary.

31. Adopted in substance in Findings of Fact 17-19.

32. Subordinate to Finding of Fact 14.

33. Subordinate to Finding of Fact 19.

34. Rejected as unnecessary.

35. Adopted in substance in Finding of Fact 16.

36. Rejected as constituting argument.

COPIES FURNISHED:

Tilford C. Creel

Executive Director

South Florida Water Management District

Post Office Box 24680

West Palm Beach, Florida 33416

Nathan E. Nason, Esquire

Nason, Gildan, Yeager, Gerson

and White

Suite 1200

1645 Palm Beach Lakes Boulevard

West Palm Beach, Florida 33401

Cecile I. Ross, Esquire

Office of the General Counsel

3301 Gun Club Road

West Palm Beach, Florida 33416-4680

E. Lee Worsham, Esquire

Honigman, Miller, Schwartz and Cohn

222 Lakeview Avenue, Suite 800

West Palm Beach, Florida 33401

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions

to this Recommended Order. Any exceptions to this Recommended Order should be

filed with the agency that will issue the final order in this case.