STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MARION COUNTY, FLORIDA,
Petitioner,
vs.
C. RAY GREENE, III; ANGUS S. HASTINGS; and ST. JOHNS RIVER WATER MANAGEMENT DISTRICT,
Respondents.
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) Case No. 06-2464
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RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, J. Lawrence Johnston, held a formal administrative hearing in the above-styled case on October 4, 2006, in Ocala, Florida.
APPEARANCES
Petitioner Marion County:
Thomas D. MacNamara, Esquire Marion County Attorney's Office 601 Southeast 25th Avenue Ocala, Florida 34471-2690
Respondent St. Johns River Water Management District: Vance W. Kidder, Esquire
St. Johns River Water Management District
4049 Reid Street
Palatka, Florida 32177-2529
Respondents, C. Ray Greene, III, and Angus S. Hastings:
Wayne E. Flowers, Esquire Lewis, Longman and Walker, P.A.
245 Riverside Avenue, Suite 150 Jacksonville, Florida 32202-4924
STATEMENT OF THE ISSUE
The issue in this case is whether the portion of Consumptive Use Permit (CUP) Application Number 97106 seeking an allocation of 499,000 gallons per day (gpd) of groundwater for commercial/industrial uses (supply bulk water to bottling plants) meets the conditions for issuance as established in Section 373.223, Florida Statutes, Florida Administrative Code Rule 40C-2.301, and the Applicant’s Handbook, Consumptive Uses of Water.1 The County does not oppose or contest the portion of the CUP application authorizing use of 6.0 million gpd of surface water for limerock mining operations.
PRELIMINARY STATEMENT
In April 2006, the St. Johns River Water Management District (SJRWMD or District) issued its Notice of Intent to grant a CUP to Respondents, C. Ray Greene, III, and Angus S. Hastings (Greene and Hastings, or Applicant) authorizing the use of 182.14 million gallons per year (gpy) (499,000 gpd average) of groundwater from the Floridan aquifer for commercial/industrial use (supply bulk water to bottling plants) and 1,416.0 million gpy (6.0 million gpd average) of surface
water for commercial/industrial use (limerock mining operation). The groundwater allocation is recommended for a 20-year term, and the allocation of surface water is recommended to extend through the end of 2006. Marion County (County) filed its Petition for Administrative Hearing (Petition) on June 26, 2006, contesting the District’s Notice of Intent to issue a CUP to Greene and Hastings for the amounts of water noted above.
Thereafter, this matter was referred to the Division of Administrative Hearings for appointment of an Administrative Law Judge to conduct a formal hearing on the County’s Petition pursuant to Section 120.57(1), Florida Statutes.
On June 26, 2006, Greene and Hastings filed a Motion to Dismiss Petition. On September 1, 2006, an Order was entered denying the Motion to Dismiss. On September 7, 2006, Greene and Hastings filed a Motion in Limine, seeking exclusion of testimony and exhibits regarding the County’s Comprehensive Plan or the County’s Land Development Regulations (LDRs). An Order was entered on September 21, 2006, granting the Motion in Limine.
A pre-hearing stipulation was filed on September 29, 2006.
At the final hearing, Greene and Hastings presented testimony from C. Ray Greene, III; Marty Sullivan, an expert in geotechnical engineering, environmental engineering, and groundwater modeling; Dr. Marc C. Minno, an expert in wetlands
ecology, and assessment of environmental impacts associated with groundwater withdrawals; and Dwight T. Jenkins, an expert in hydrogeology and consumptive use permitting and regulation.
Greene and Hastings introduced their Exhibits 1-7, which were received in evidence.
The County presented testimony at the hearing from: Michael May, an expert in requirements of the Marion County Land Development Code, whose testimony was received only as a proffer based on the pre-hearing Order granting the Motion in Limine; Mounir Bouyounes, an expert in roadway design, whose testimony was received only as a proffer based on the Order on the Motion in Limine; and Troy Kuphal, an expert in water resources planning. Counsel for the County also presented a summary proffer of the testimony of Chris Rison, whose testimony was excluded based on the Order granting the Motion in Limine.
County Exhibits 2-6 were received in evidence. An objection to County Exhibit 1 was sustained, and ruling was reserved on objections to County Exhibits 5 and 6, which are now overruled.
At the conclusion of the hearing, it was agreed that proposed recommended orders (PROs) would be filed by the parties no later than three weeks following filing of the transcript of testimony. A Transcript of the testimony was filed on
October 24, 2006, but the parties' request to extend the time
for filing PROs to November 22, 2006, was granted. Each party timely-filed a PRO.
On November 27, 2006, SJRWMD filed a Motion to Strike an attachment to the County's PRO. The County filed a Response in opposition on December 6, 2006; Greene and Hastings did not file a response in the time allotted by Rule 28-106.204(1). Based on the filings, the Motion to Strike is granted.
Except for the attachment to the County's PRO, the PROs have been considered in the preparation of this Recommended Order.
FINDINGS OF FACT
The Parties
The County is a political subdivision of the State of Florida. The County operates a water supply utility that supplies water for a variety of uses, including providing untreated water, in bulk, for bottling purposes. The County is currently engaged in a long-range planning effort designed to assess water supply demands and sources to supply those demands in the County over the next 50 years. The County also has completed a study of the two major springs in the County (Rainbow Springs and Silver Springs), and the County’s Board of County Commissioners is in the process of enacting certain recommendations contained in the study.
The well for the proposed CUP allocation is located on approximately 160 acres in northern Marion County. Hastings and Greene's father owned the property from 1978 until the latter's death. In 1993, the latter's interest was transferred to Greene and two brothers, who now hold title to the property along with Hastings.
The District is a special taxing district created by Chapter 373, Florida Statutes, and is charged with the duty to prevent harm to water resources of the District, and to administer and enforce Chapter 373, Florida Statutes, and the rules promulgated thereunder. The District has implemented Chapter 373, Florida Statutes, in part, through the adoption of Rule Chapters 40C-2 and 40C-20, and the Applicant’s Handbook, Consumptive Uses of Water.
Historic Uses of Water on the Mine Site
Since the 1980s, the property where the proposed withdrawals will occur has been used for mining of limerock and has been known as the “Black Sink Mine."
A ten-inch diameter well has been located on the Black Sink Mine property for 35 years. The well was originally used to provide water to augment water levels in canals in and around the Black Sink Mine property. Later the well was used to irrigate watermelons grown on the property before the mining operation began.
The limerock mining operation at Black Sink Mine uses approximately 6 million gpd of surface water. The mine pit at the site is divided by an earthen berm that separates a larger, previously mined area from a smaller area where active mining is occurring. Surface water is pumped from the actively mined portion of the pit to the larger, previously mined portion of the pit, to enable mining of the limerock material to be conducted at levels below the water table. Dewatering is necessary in order to remove the limerock. A majority of the property is mined to a depth of 55 feet below land surface. The limerock material extracted from the site is transported by trucks from the site, approximately 100 trucks per day, to various sites across North Florida.
The Need for the Proposed Use of Groundwater
If mining of limerock continues at the current pace, the limerock material at the Black Sink Mine will be exhausted within a year. Recognizing that the productive use of the property for limerock mining was nearing an end, Greene and Hastings began exploring other potential uses for the property, including use of the existing well on the property for production of bottled water.
To explore the feasibility of producing water for bottling from the existing well, in 2004 Greene and Hastings engaged an engineering firm with expertise in water resources to
conduct a hydrogeologic study of the mine property and well. The results of the study, showing water of sufficient quality and quantity for production of bottled water, motivated Greene and Hastings to submit the CUP application which was the subject of the hearing. The study also determined that water withdrawn from the well could be marketed as spring water.
Greene and Hastings also determined through market research that the demand for bottled water has increased at the rate of ten percent per year for the last 4-5 years and that Florida bottlers were interested in purchasing water from the well on the mine site in bulk for bottling.
In order to provide reasonable assurance that the water use proposed by Greene and Hastings is in such quantity as is necessary for economic and efficient utilization, Greene and Hastings must show that the amount to be used is consistent with what would typically be required for the activity being supplied; that the water will be used efficiently with loss or waste minimized; and that there is a demonstrated need for the water proposed for allocation.
To demonstrate a need for the 499,000 gpd of groundwater requested in the application for an allocation of 499,000 gpd of groundwater, Greene and Hastings provided letters from two businesses engaged in bottling of water stating an intent to purchase specific quantities of water produced from
the Greene and Hastings well should the CUP be granted. One of the letters of intent came from a bottler in Jacksonville, Florida, stating its intention to initially purchase 100,000 gpd of Greene and Hastings’s water. The other was from a bottler in Stuart, Florida, dated January 9, 2006, stating its intention to purchase 125,000 gpd of water from Greene and Hastings within “the next 12-24 months.” Based on these letters Greene and Hastings initially requested an allocation of 200,000 gpd of groundwater for the first year of the permit.
Prior to completion of the CUP application, Greene and Hastings learned that because the Stuart bottler’s facility was located outside the geographic boundaries of the District, to transport water from the Black Sink Mine to the Stuart facility would require additional data and information related to inter- district transfers of groundwater. Greene and Hastings elected to reduce the requested allocation for the first year of the permit to 100,000 gpd, relying on the letter from the Jacksonville bottler.
Based on the current market demand for bottled water, and based on the fact that there are other bottlers of water within the boundaries of the District purchasing water for bottling, it is reasonable to conclude that Greene and Hastings can sell 499,000 gpd of water from the well on the Black Sink Mine property by the end of the fifth year of the proposed CUP.
These facts support the conclusion that there is a need for the amount of water requested by Greene and Hastings.
In addition, the permit is conditioned to require a compliance review at five-year intervals during the term of the permit. Should Greene and Hastings not be successful in selling the full 499,000 gpd allocated by the fifth year of the permit, the District has the ability as part of the five-year compliance review to modify the permit to reduce the allocation based on the amount of water actually used for bottled water.
Efficiency of the Proposed Use of Water
The production of water in bulk for shipment to a bottler is a highly efficient use of water. There is very little if any water lost in the withdrawal and loading of the water; almost all the water goes to the end product. The evidence establishes that the use proposed by Greene and Hastings is an efficient use of water.
Potential Impacts from the Proposed Groundwater Allocation
The source of the groundwater proposed for use by Greene and Hastings is the Floridan aquifer. Because there is no confining layer in the vicinity of the Black Sink Mine that would retard movement of water between the Upper Floridan aquifer and the surficial aquifer, both the Upper Floridan aquifer and the surficial aquifer essentially behave as one unit. Thus, any drawdown in the surficial aquifer associated
with groundwater withdrawals at this location will be the same as the related drawdown in the Upper Floridan aquifer as a result of groundwater withdrawals.
The Floridan aquifer is capable of producing the amount of groundwater requested by Greene and Hastings in the application.
To assess the level of drawdown expected to occur in both the Floridan aquifer and the surficial aquifer as a consequence of the proposed groundwater withdrawals, Greene and Hastings engaged a consultant, Andreyev Engineering, Inc., to run a groundwater model to simulate the proposed withdrawal and predict the anticipated drawdown.
The groundwater model selected for use for this application was the North Central Florida Regional Groundwater Flow Model, a model developed for the District by the University of Florida for use in Marion County and surrounding areas. This model is an accepted and reliable tool for predicting aquifer drawdown associated with groundwater withdrawals at the location of the withdrawals proposed in this application and is used extensively by the District in its CUP program.
To simulate the drawdown associated with the withdrawal of 499,000 gpd from the Florida aquifer, Greene and Hastings’s consultant inserted a pumping well in the model grid where the Black Sink Mine is located. The model then simulated
pumping from the well at 499,000 gpd. The model results are graphically depicted on maps showing drawdown contours overlain on the Black Sink Mine Site, illustrating the level of drawdown in the aquifer and the distance the level of drawdown extends out from the well site.
The model predicts a drawdown of 0.03 feet in the Floridan and surficial aquifers in the immediate vicinity of the well on the Black Sink Mine property, and a drawdown of 0.02 feet in the Floridan and surficial aquifers extending out to a distance of approximately 5,000 feet from the well, less than 1/3 of an inch of drawdown. The model results represent a reasonable estimation of the drawdown that will occur as a consequence of withdrawal of 499,000 gpd of groundwater at the Black Sink Mine as proposed in the application.
The impact of the 0.02-0.03 foot drawdown predicted by the model was variously characterized by the experts who testified at the final hearing as “not practically measurable,” an “insignificant impact,” “very small,” or “de minimus.”
The use of water proposed by Greene and Hastings will not cause significant saline water intrusion, nor will it further aggravate any existing saline water intrusion problems. The use of water proposed by Greene and Hastings will not induce significant saline water intrusion to such an extent as to be inconsistent with the public interest.
Because the predicted drawdown is so small, it will not interfere with any existing legal uses of water. Neither will the predicted drawdown cause serious harm to the quality of the source of the water proposed for use by Greene and Hastings.
With regard to the issue of interference with existing legal users, the County argued that the District should have considered whether there is sufficient groundwater available to meet all projected needs for water in the County during the 20- year term of the permit, as well as the additional cost County citizens will need to bear to secure alternative water supplies as a result of any future shortfalls in available groundwater.
The County projects, based on planning estimates, that use of groundwater to supply all anticipated uses of water in the County will be limited within 20-30 years from the present. Such “limits” would not become an issue until after the Greene and Hastings permit expires. Thereafter, water users in the County will have to rely on alternative water sources, conservation, reuse of reclaimed water, and surface water. The anticipated growth in demand in the County’s planning estimates includes anticipated growth in the commercial/industrial category of uses. The County’s estimated limits on groundwater use will occur whether or not the CUP requested by Greene and Hastings is approved.
The District does not base its permitting decisions on a pending CUP application on the possibility that the source of water may become limited at some future time for water uses not presently permitted, provided the application meets all permitting criteria. The District allocates water for recognized beneficial uses of water, such as commercial/industrial uses, as long as the water is available and the application meets District criteria. The District allocates water as long as an allocation does not cause harm to the resource. Based on these facts, the proposed use of water by Greene and Hastings will not interfere with any existing legal use of water.
No Evidence of Economic or Environmental Harm
Because the predicted drawdown associated with the proposed use of water is so small, and because no impacts are anticipated on any surrounding properties or water uses, Greene and Hastings have provided reasonable assurance that any economic harm caused by the proposed use has been reduced to an acceptable amount.
For purposes of determining whether an applicant has provided reasonable assurance that any environmental harm caused by a proposed use of water is reduced to an acceptable amount, the District examines modeling results showing the level of drawdown predicted for the use and also examines the resources
in and around the site of a withdrawal to determine the likely impact of the drawdown predicted for the withdrawal on those resources.
The District’s environmental scientists examined the Black Sink Mine site and the surrounding landscape and determined that, based on the characteristics of the landscape in and around the site of the proposed withdrawal and based on the negligible drawdown impact predicted for the proposed water use in both the Floridan and surficial aquifers, there will be no environmental harm resulting from the allocation of groundwater contained in the CUP.
The use of water proposed by Greene and Hastings will not cause damage to crops, wetlands, or other types of vegetation. The use of water proposed by Greene and Hastings will not cause the water table to be lowered so that stages or vegetation will be adversely and significantly affected on lands other than those owned, leased, or otherwise controlled by Greene and Hastings. The CUP will not use water that the District has reserved pursuant to Section 373.223(3), Florida Statutes, and Rule 40C-2.301(4).
No Impact on Established Minimum Flows or Levels
No minimum surface or groundwater levels or surface water flows have been established by the District pursuant to
Rule Chapter 40C-8 for any of the water bodies in Marion County that may be affected by the proposed water use.
The closest water body for which the District has established a minimum flow is the St. Johns River at the State Road 44 bridge located more than 50 miles from the Black Sink Mine property. The closest water body for which the District has established a minimum level is Star Lake in Northwest Putnam County, more than nine miles from the mine site. Because of the distance of these water bodies from the withdrawal site and because of the negligible drawdown expected to be caused by the proposed use of water, the use will not cause an established minimum flow or level to be exceeded during the term of the permit.
Other Reasonable-Beneficial Use Considerations
All available conservation measures that are economically, environmentally, and technically feasible are proposed for implementation in the application by Greene and Hastings for the uses proposed by them. Greene and Hastings submitted to the District, as part of the application, a conservation plan that complies with the requirements of A.H. Section 10.3(e).
Reclaimed water, as defined in the District’s rules, is not currently available to be used in place of the water proposed for use by Greene and Hastings in the application.
The use of water proposed by Greene and Hastings in the application will not cause or contribute to a violation of water quality standards in receiving waters of the state.
The use of water proposed by Greene and Hastings in the application will not cause or contribute to flood damage.
The Use is Consistent With the Public Interest
With regard to the determination of whether reasonable assurance was provided that the proposed use is consistent with the public interest, the County contends that: 1) Greene and Hastings must show that any necessary approvals required by the County’s Comprehensive Plan and/or its LDRs for use of the site for producing bottled water have been obtained; 2) that the District did not properly consider the effect of existence of lawn watering restrictions affecting citizens in the County in evaluating the application; and 3) that the District should have considered the amount of money the applicant may stand to gain from the use of the water requested in the application.
In examining whether an application is consistent with the public interest, the District considers whether a particular use of water is going to be beneficial or detrimental to the people of the area and to water resources within the state. In this inquiry, the District considers whether the use of water is efficient, whether there is a need for the water requested, and whether the use is for a legitimate purpose; and the inquiry
focuses on the impact of the use on water resources and existing legal users.
Sale of water for bottling for human consumption is recognized by the District as a legitimate, beneficial economic enterprise. Use of water for human consumption is among the highest and best uses permitted by the District. For reasons outlined above in the Recommended Order, there are no detrimental impacts that will result from this use of water.
The District does not consider whether local government approvals have been obtained prior to issuance of a CUP for purposes of determining whether the application is consistent with the public interest. Neither does the District consider impacts related to local roads from trucks transporting the water or other impacts not related to water resources. No such requirements are included in the District’s adopted permitting criteria.
There are no water shortage orders in effect in the District at present. In evaluating a CUP application, the District considers whether its permitting criteria will be met during periods of normal weather as well as during periods of drought. Withdrawals authorized in CUPs can be restricted by order of the District during periods of water shortage, such as droughts. Thus, the possibility of a water shortage order being entered in the County in the future, or the fact that such
orders may have been in effect there in the past, does not mean the application is not consistent with the public interest.
The District critically examines the efficiency of all water uses for purposes of enacting its regulatory requirements regarding CUPs and in evaluating CUP applications. The District has adopted restrictions on landscape irrigation (which apply to all such users throughout the District’s jurisdiction, not just in Marion County) limiting landscape irrigation to no more than two days per week. The limitations on landscape irrigation exist because this type of use has been determined to be a highly inefficient, wasteful use of water without such restrictions. By contrast, the use of water proposed by Greene and Hastings is a highly efficient use of water, resulting in little or no loss or waste of water.
The District does not consider the level of financial gain or benefit an applicant will derive from a permitted use of water for purposes of determining whether the proposed use is consistent with the public interest. Most, if not all permitted users of water derive some level of economic benefit from the water they use, and the District’s rule criteria do not provide standards for evaluating such gain or that otherwise limit the amount of such gain.
For the foregoing reasons, the Applicant has provided reasonable assurance that the use of water proposed in the application is consistent with the public interest.
Groundwater is the Lowest Quality Source for this Use
The County contends that groundwater is not the lowest quality source of water available for the use proposed by Greene and Hastings, in that surface water from the mine pit on the site could be treated and used for bottling in place of groundwater.
From the testimony, it is clear that Greene and Hastings’s ability to market water for bottling from the Black Sink Mine is dependent on such water being capable of being labeled as spring water, and on such water being delivered without having gone through any treatment processes. The testimony also establishes that because of the connection between the surficial aquifer and the Upper Floridan aquifer at the site, using surface water instead of groundwater to supply the proposed use would result in little if any reduction in impacts to the Floridan aquifer.
More importantly, because the application proposes use of water for direct human consumption, the District’s rules do not require use of a lower quality source of water.
For the foregoing reasons, groundwater is the lowest quality source of water suitable for use for bottled water for human consumption.
The District’s Noticing Was Adequate and Appropriate
The District provided notice of its receipt of the Greene and Hastings CUP application by publishing notice in the Ocala Star-Banner, a newspaper of general circulation in Marion County, on January 25, 2005, with an amended notice being published on February 16, 2005, and also by letters to the County dated January 20, 2005, and February 10, 2005. In each notice, the location of the proposed use was identified by section, township, and range. The County responded to the notices by sending a letter of objection to the application dated February 14, 2005. Thus, the County received sufficient information regarding the location of the proposed use to enable it to prepare and file a letter of objection to the application, and suffered no prejudice as a consequence of the notice.
The District provided personal notice of its intent to issue a CUP to Greene and Hastings by letter dated April 5, 2006. In this notice, the location of the proposed use was identified by section, township, and range. The County responded by filing petitions that have resulted in this proceeding. Thus, the County received sufficient notice of the location of the use addressed in the District’s intent to issue
to enable it to initiate administrative proceedings regarding the permit, and suffered no prejudice as a consequence of the
notice.
CONCLUSIONS OF LAW
Burden of Proof and Initial Burden of Presenting Evidence
Greene and Hastings, as applicants for the CUP in issue here, have the initial burden of presenting a prima facie case of entitlement to the permit. Florida Dept. of Transportation v. J.W.C. Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).
Applicant’s burden of proof is to provide reasonable assurance, rather than absolute guarantees, that the conditions for issuance of a CUP have been met. See City of Sunrise v. Indian Trace Community Development District, et al., DOAH Case No. 91-6036, 1991 Fla. ENV LEXIS 6997, 92 ER FALR 21 (DOAH 1991, SFWMD 1992); Manasota-88 Inc. v. Agrico Chemical Co. and Department of Environmental Regulation, DOAH Case No. 87-2433, 1990 Fla. ENV LEXIS 38 (DER 1990). The term “reasonable assurance” means “a substantial likelihood that the project can be successfully implemented.” Metropolitan Dade County v. Coscan Florida, Inc., 609 So. 2d 644, 648 (Fla. 3rd DCA 1992).
The Applicable Permit Criteria
In order for Greene and Hastings to meet the burden of proof described above, they were required to demonstrate
compliance with the criteria included in Section 373.223, Florida Statutes. This statutory provision establishes a three- prong test requiring that a proposed use of water: (1) is a reasonable-beneficial use of water; (2) will not interfere with any presently existing legal use of water; and (3) is consistent with the public interest. The District’s Conditions for Issuance of Permits, which implement the three-prong test, are contained in Rule 40C-2.301. The Criteria for Evaluation of Permits are found in Part II, Applicant’s Handbook, Consumptive Uses of Water. The Applicant’s Handbook has been adopted by reference in Rule 40C-2.101(1).
Rule 40C-2.301(2)-(4) provides in pertinent part as follows:
To obtain a consumptive use permit for a use which will commence after the effective date of implementation, the applicant must establish that the proposed use of water:
Is a reasonable beneficial use; and
Will not interfere with any presently existing legal use of water; and
Is consistent with the public interest.
For purposes of subsection (2)(b) above, “presently existing legal use of water” shall mean those legal uses which exist at the time of receipt of the application for the consumptive use permit.
The following criteria must be met in order for a use to be considered beneficial:
The use must be in such quantity as is necessary for economic and efficient utilization.
The use must be for a purpose that is both reasonable and consistent with the public interest.
The source of the water must be capable of reducing the requested amounts of water.
The environmental or economic harm caused by the consumptive use must be reduced to an acceptable amount.
All available water conservation measures must be implemented unless the applicant demonstrates that implementation is not economically, environmentally or technologically feasible. Satisfaction of this criterion may be demonstrated by implementation of an approved water conservation plan as required in Section 12.0., Applicant's Handbook: Consumptive Uses of Water.
When reclaimed water is readily available it must be used in place of higher quality water sources unless the applicant demonstrates that its use is either not economically, environmentally, or technologically feasible.
For all uses except food preparation and direct human consumption, the lowest acceptable quality water source, including reclaimed water or surface water (which includes stormwater), must be utilized for each consumptive use. To use a higher quality water source an applicant must demonstrate that the use of all lower quality water sources will not be economically, environmentally or technologically feasible. If the
applicant demonstrates that use of a lower quality water source would result in adverse environmental impacts that outweigh water savings, a higher quality source may be utilized.
The consumptive use shall not cause significant saline water intrusion or further aggravate currently existing saline water intrusion problems.
The consumptive use shall not cause or contribute to flood damage.
The water quality of the source of the water shall not be seriously harmed by the consumptive use.
The consumptive use shall not cause or contribute to a violation of state water quality standards in receiving waters of the state as set forth in Chapters 62-3, 62-4, 62-302, 62-520, and 62-550, F.A.C., including any anti- degradation provisions of Sections 62- 4.242(1)(a) and (b), 62-4.242(2) and (3), and 62-302.300, F.A.C., and any special standards for Outstanding National Waters set forth in Sections 62-4.242(2) and (3), F.A.C. A valid permit issued pursuant to Chapters 62- 660 or 62-670, F.A.C., or Section 62- 4.240, F.A.C., or a permit issued pursuant to Chapters 40C-4, 40C-40, 40C-42, or 40C-44, F.A.C., which authorizes the discharge associated with the consumptive use shall establish that this criterion has been met, provided the applicant is in compliance with the water quality conditions of that permit.
The consumptive use must not cause water levels or flows to fall below the minimum limits set forth in Chapter 40C-8, F.A.C.
In addition to the foregoing, Rule 40C-2.301(5)(a) sets forth the reasons for denial of a CUP application, providing:
(5)(a) A proposed consumptive use does not meet the criteria for the issuance of a permit set forth in subsection 40C-2.301(2), F.A.C., if such proposed water use will:
Significantly induce saline water encroachment; or
Cause the water table or surface water level to be lowered so that stages or vegetation will be adversely and significantly affected on lands other than those owned, leased, or otherwise controlled by the applicant; or
Cause the water table level or aquifer potentiometric surface level to be lowered so that significant and adverse impacts will affect existing legal users; or
Require the use of water which pursuant to Section 373.223(3), Florida Statutes, and Rule 40C-2.301(6), F.A.C., the Board has reserved from use by permit; or
Cause the rate of flow of a surface watercourse to be lowered below any minimum flow which has been established in Chapter 40C-8, F.A.C.; or
Cause the level of a water table aquifer, the potentiometric surface level of an aquifer, or the water level of a surface water to be lowered below a minimum level which has been established in Chapter 40C-8, F.A.C.
These criteria are also found in A.H. Section 9.4.
The Proposed Use Is a Reasonable-Beneficial Use
Reasonable assurance has been provided that the reasonable-beneficial use criteria listed in Rule 40C- 2.301(4)(c), (e), (f), (h), (i), and (k) are met. These same criteria are found in A.H. Sections 10.3(c), (e), (f), (h), (i) and (k).
Bottling water for human consumption is a highly efficient use in that very little if any water devoted to the use will be lost or wasted. Virtually all of the water withdrawn will go into the product.
Also with regard to this criterion, the amount of water requested for the use is appropriate for this type of use, and Applicant has the ability to market the water in the quantities allocated.
In addition to the letter of intent in the permit file from a Jacksonville bottler stating its intent to purchase the 100,000 gpd allocated for the first year of the permit, Greene and Hastings presented evidence establishing that the market for this product is rapidly expanding, supporting the ability to use the amounts of water allocated through Year 5 of the permit.
Should Greene and Hastings be unable to use the full 499,000 gpd allocation of groundwater by the fifth year of the permit, the District retains the ability, as part of the five- year compliance reviews provided for by condition in the permit,
to review and modify the allocation, to adjust for any part of the allocation that is unused.
Greene and Hastings provided reasonable assurance that the proposed use complies with Rule 40C-2.301(4)(a) and A.H. Section 10.3(a).
In order to provide reasonable assurance that the proposed use of water is for a purpose that is both reasonable and consistent with the public interest, Greene and Hastings presented evidence that bottling of water from the well on the Black Sink Mine property is a legitimate, economically beneficial commercial enterprise. In addition, Greene and Hastings presented evidence establishing that there will be no adverse economic or environmental impacts resulting from the proposed use.
Greene and Hastings provided reasonable assurance that the proposed use complies with Rule 40C-2.301(4)(b) and A.H. Section 10.3(b).
In order to establish that the economic or environmental harm, if any, caused by the proposed use will be reduced to an acceptable amount, Greene and Hastings presented expert testimony regarding groundwater modeling done in support of the application. The results of the modeling showed that the predicted drawdown in the Floridan and surficial aquifers expected to be caused by the withdrawal of 499,000 gpd of
groundwater is so small that it will have no effect on any other users of water in the region.
Further, the evidence presented by Greene and Hastings established that, based on the results of the groundwater modeling combined with an expert field evaluation of the landscape surrounding the site of the withdrawals, there will be no harm to any environmental features on or in the vicinity of the mine site.
The economic impacts resulting from the proposed use will be positive.
Greene and Hastings provided reasonable assurance that the proposed use complies with Rule 40C-2.301(4)(d), and A.H. Section 10.3(d).
In order to provide reasonable assurance that the proposed use of groundwater represents use of the lowest quality source of water suitable for the use, Greene and Hastings presented evidence that the use is for human consumption. Because the use is for human consumption, pursuant to the terms of Rule 40C-2.302(4)(g), an applicant is relieved of any requirement to demonstrate that a lower quality source (lower quality than groundwater) is not feasible for the proposed use.
In addition, the evidence presented by Greene and Hastings demonstrated that the alternate, lower-quality source advocated by the County, surface water from the mine pit, could
not be substituted for groundwater because the surface water would require treatment to make it suitable for consumption. Greene and Hastings cannot market water from the property to the bottlers who have expressed intentions to purchase water from them if the water has been treated prior to providing it to the bottlers. Therefore, in addition to increasing the cost of production, assuming the water from the mine pit could be treated to levels appropriate for human consumption, Greene and Hastings would be left with a product that could not be sold.
In addition to the foregoing, because of the close connection between the surficial aquifer and the Floridan aquifer at the site, withdrawing water from the open mine pit would reduce water levels in the Florida aquifer. Thus, there would be little or no reduction in drawdown impacts in the Floridan aquifer if the withdrawals were made from the mine pit instead of from the Floridan aquifer.
Greene and Hastings provided reasonable assurance that the proposed use complies with Rule 40C-2.301(4)(g) and A.H. Section 10.3(g).
In order to provide reasonable assurance that the source of the water for the proposed use will not be seriously harmed by the use, Greene and Hastings presented the previously- mentioned modeling information demonstrating that the drawdown in the Floridan aquifers is not predicted to exceed 0.03 feet,
approximately one-third of an inch. This almost immeasurable drawdown, according to the uncontraverted expert testimony presented by Greene and Hastings, will have no adverse impact on the Floridan aquifer.
Greene and Hastings provided reasonable assurance that the proposed use complies with Rule 40C-2.301(4)(j) and A.H. Section 10.3(j).
In order to provide reasonable assurance that the proposed use will not cause a minimum flow for a surface watercourse or a minimum level for an aquifer or a surface water body, established pursuant to Chapter 40C-8, Florida Administrative Code, to fall below the established minimum flow or level, Greene and Hastings presented evidence that, due to the inconsequential drawdown predicted for the proposed withdrawals and due to the distance between the site of the withdrawals and the few water bodies where established minimum flows or levels exist, there will be no such impact.
Greene and Hastings provided reasonable assurance that the proposed use complies with Rule 40C-2.301(l).
Interference With Existing Legal Users
In order to provide reasonable assurance that the proposed use will not interfere with any existing legal use of water existing at the time of submission of its application, Greene and Hastings presented the results of the modeling effort
showing a predicted drawdown of 0.03 feet or less as a consequence of the use. This was supported by expert testimony that because of the small drawdown expected to be caused by the use there will be no impact on any existing legal users.
Rule 40C-2.301(3) makes it abundantly clear that, for purposes of application of the criterion related to interference, “existing legal users” means only legal uses existing at the time the application is submitted. Thus, speculative, potential future uses, not presently in existence, and not permitted by the District are not considered existing legal uses for purposes of this test.
Greene and Hastings provided reasonable assurance that the proposed use complies with Rule 40C-2.301(2)(b).
Consistency with the Public Interest
Pursuant to A.H. Section 9.3, “public interest” means:
...those rights and claims on behalf of people in general. In determining the public interest in consumptive use permitting decisions, the Board will consider whether an existing or proposed use is beneficial or detrimental to the overall collective well-being of the people or to the water resources of the area, the District and the State.
In order to provide reasonable assurance that the proposed use of water is consistent with the public interest, Greene and Hastings presented testimony that the water will be used for a productive, beneficial economic activity and that
there will no adverse impacts to the source of the water, to environmental resources, or to any adjoining landowners. These are the considerations generally encompassed and addressed by the District’s permitting criteria. With regard to these criteria, there was no evidence offered showing any detrimental impacts resulting from the proposed use of water.
The County argues that the District should have evaluated and considered whether the activity associated with the proposed use complies with the County’s comprehensive plan or zoning code, or that Greene and Hastings should be required to obtain such approvals or authorizations from the County before being permitted to proceed with the CUP process.
The District has not adopted, either directly or by reference, any of the County’s land use requirements as criteria for which an applicant must provide reasonable assurance in order to be granted a CUP. Neither has the District adopted rule provisions making any other related approvals, such as comprehensive plan amendments, a pre-requisite for applying for a CUP. The District, in fact, is prohibited from requiring compliance with local government regulations which have not specifically been adopted as the part of the District’s rule criteria. See Council of the Lower Keys v. Charley Toppino &
Sons, Inc., 429 So. 2d. 67 (Fla. 3rd DCA 1983); Save the St. Johns River v. St. Johns River Water Management District,
623 So. 2d. 1193 (Fla. 1st DCA 1993). The County’s position on this point, as previously determined in the Order granting Greene and Hastings’s Motion in Limine, is without merit.
The County’s argument, that the District should consider the amount of money a permittee stands to make from a use of water as a component of the public interest test, is equally without merit. Nowhere in the District’s rule criteria is the amount of economic return a permittee receives from water use made a test or factor in determining whether an applicant should be granted a permit or not. Further, even if this factor could be considered by the District, there is no guidance in the District’s permitting criteria that would instruct the District or applicants regarding how much a permittee may be allowed to earn before the use ceases to be consistent with the public interest. The County’s position on this point is without merit.
The County also argues that the District should consider that, within the County’s 50-year planning horizon, there will be limits on the availability of groundwater for all water uses in the County, and should deny the application because the alternative water sources will be required for County water uses at some point in the future. In essence, the County seeks to have a viable source of water ruled off-limits to this particular user, in favor of unpermitted and as-yet unidentified alternative groundwater uses.
If a source of water is available for use, and a beneficial use can be made of water from the source, and if a proposed use of the source meets all of the District’s criteria for such use, the District has no basis on which to deny that applicant’s request for a permit to use water from the source.
Finally, with regard to consistency with the public interest, the County suggests that the existence of restrictions on the frequency of landscape irrigation is a factor that should have been considered by the District in evaluating the application. In fact, the restrictions enacted by the District for all water users, in all counties in the District, are intended to maximize efficiency for this particular use (landscape irrigation). Commercial/industrial uses also have efficiency standards and the use proposed by Greene and Hastings is highly efficient. This argument has no merit.
Reasons for Recommendation of Denial Not Established
None of the reasons for recommendation of denial of a CUP application listed in Rule 40C-2.301(5)(a) or A.H. Section
9.4 were established by the evidence offered at the hearing. To the contrary, all applicable criteria have been met by Greene and Hastings.
Adequacy of the Notices Provided
The County contends that the notice of receipt of application and the notice of intended action on the application
were inadequate because they described the location of the activity by section, township, and range.
Section 373.229(1), Florida Statutes, provides that notices for CUPs shall contain, among other things: 1) the place of use; and 2) the location of the use. Nothing in the statute prescribes that such notices must be given by address or anything more specific than section, township, and range.
The County does not suggest, nor did it present evidence suggesting that the notices were inaccurate or misleading. The District complied with the requirements of the statute, in that the notice provides a location for the use. See Ray, et al. v. St. Johns River Water Management District et al., DOAH Case Nos. 97-0803 and 97-0804, 1997 Fla. ENV LEXIS 121, (DOAH July 14, 1997, SJRWMD Aug. 13, 1997).
The notices did not prevent the County from presenting its position or asserting its rights during the permitting process.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is
RECOMMENDED that the District enter an order granting CUP No. 97106 to Greene and Hastings with the conditions recommended in the District’s Technical Staff Report.
DONE AND ENTERED this 9th day of January, 2007, in Tallahassee, Leon County, Florida.
S
J. LAWRENCE JOHNSTON Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 9th of January, 2007.
ENDNOTE
1/ Unless otherwise indicated, all statutory references are to the 2006 codification of the Florida Statutes, and all rule references are to the current codification of the Florida Administrative Code. References to the Applicant’s Handbook, Consumptive Uses of Water, will use the abbreviation "A.H."
COPIES FURNISHED:
Kirby Green, Executive Director St. Johns River Water Management
District
4049 Reid Street
Palatka, Florida 32177-2529
Wayne E. Flowers, Esquire Lewis, Longman & Walker, P.A.
245 Riverside Avenue, Suite 150 Jacksonville, Florida 32202-4924
Thomas D. MacNamara, Esquire Marion County's Attorney's Office 601 Southeast 25th Avenue
Ocala, Florida 34471-2690
Vance W. Kidder, Esquire
St. Johns River Water Management District
4049 Reid Street
Palatka, Florida 32177-2529
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Apr. 08, 2009 | Mandate | |
| Mar. 20, 2009 | Opinion | |
| Mar. 13, 2007 | Agency Final Order | |
| Jan. 09, 2007 | Recommended Order | Applicant proved the criteria for a Consumptive Use Permit for bottled water had been met. The local comprehensive plan and zoning are not relevant. |
