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, Florida Statutes.

    
    

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

(904) 488-9675

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.

Docket for Case No: 94-002903

Orders for Case No: 94-002903