STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
WEST COAST REGIONAL WATER )
AUTHORITY, )
)
Petitioner, )
)
vs. ) CASE NO. 84-2653
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondent. )
)
S. C. BEXLEY, JR., )
)
Petitioner, )
)
vs. ) CASE NO. 84-2654
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, a consolidated administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, on November 13 through 16 and December 11 and 12, 1984, in Brooksville, Florida. The prime issues for determination in this proceeding are whether the consumptive use permit applications of either and/or both petitioners should be granted.
APPEARANCES
For Petitioner Authority: Edward P. de la Parte, Jr.
and Edward M. Chew
705 East Kennedy Boulevard Tampa, Florida 33602
For Petitioner Bexley: L. M. Blain, Thomas Cone
and Hallie Evans
202 Madison Street Tampa, Florida 33602
For Respondent SWFWMD: J. Edward Curren
2379 Broad Street
Brooksville, Florida 33512-9712
For Intervenor James Benjamin Harrill Pasco County: 7530 Little Road
New Port Richey, Florida 33553
For Intervenor Carl R. Linn City of Street 267 75th Avenue
Petersburg: Saint Petersburg Beach, Florida 33706
For Intervenor Ronald D. McCall Pottberg: 100 East Madison Street
Tampa, Florida 33602 INTRODUCTION
The petitioners West Coast Regional Water Supply Authority (Authority) and
C. Bexley, Jr. (Bexley) each filed an application with the Southwest Florida Water Management District (District) to modify their existing consumptive use permits. The contents and rationale for the requested modifications will be more fully described in the Findings of Fact section of this Recommended Order. Both petitioners seek to supply water to Pasco County. In District staff reports dated June 29, 1984, it was recommended that both applications be denied based on a finding that Pasco County presently has a sufficient supply of water to meet its average annual water demands up to and including the year 1990.
Without ruling on its staff's recommendation, the District Governing Board granted pending petitions for intervention, granted consolidation and referred the consolidated proceedings to the Division of Administrative Hearings. The intervening parties include Pasco County, which supports the public supply portions of both applications; the City of Saint Petersburg, which opposes the Bexley application and alleges that the proposed withdrawals would interfere with the City's previously existing legal use of water at the South Pasco Wellfield; and Arlic C. T. Pottberg, as Trustee of the Otto Pottberg Trust, who opposes the Authority's application on the ground that increased pumpage at the Starkey Wellfield may adversely affect the Trust's adjoining property.
In essence, it is the position of applicant Bexley that his application for a consumptive use permit (CUP) sufficiently complies with all statutory and regulatory criteria for approval, and that proof of demonstrated need by the intended user is not a threshold requirement for a CUP. In support of his position, Bexley presented the testimony of Charles A. Arbuckle, accepted as an expert in utility management, including evaluation of future water needs; William Munz, the Director of Public Works and Utilities for Pasco County; John James Gallagher, the County Administrator for Pasco County; Joe Dale Hardin, accepted as an expert in hydrogeology and conducting pump tests for CUPs; Alton Robertson, accepted as an expert in groundwater and surface water hydrology, including the evaluation and assessment of environmental impacts caused by groundwater withdrawals; Roy Silberstein; David Allen Wiley; Robert E. Vaughn, accepted as an expert in the engineering and construction of public water production and supply systems; William Coarser; and Susan Ames. Received into evidence were Bexley's Exhibits 1 through 28.
The position of the applicant Authority is that Pasco County has no current need for additional water and, therefore, both applications, insofar as they request additional withdrawals of water, should be denied. In the alternative, the Authority contends that if a need has been demonstrated for Pasco County, the Authority, rather than Bexley, is entitled to additional withdrawals to
fulfill that need. In support of these positions, the Authority offered the testimony of Gene Albert Heath, accepted as an expert in managing and administering a water utility, including planning, construction, engineering, water demand projections, finances and operations; Thomas V. Furman, accepted as an expert in the planning of water supply systems, including evaluating facilities, sources of supply and water demand projections; Terry Knepper; Jose Ignacio Garcia-Bengochea, accepted as an expert in hydrogeology, surface water hydrology c and engineering; George Cornwell, accepted as an expert in ecology; Lane Craig Cady, accepted as an expert in engineering and utility system cost evaluation; and William Duynslager, accepted as an expert in engineering and water utilities management. Authority Exhibits 1 through 15 and 17 through 44 were received into evidence.
The District's overall position at the hearing was basically identical to that of the Authority. Testifying on behalf of the District were Roy Silberstein, accepted as an expert in hydrology; David Allen Wiley accepted as an expert in hydrology; Theodore Rochow, accepted as an expert in environmental science, particularly biology and ecology; Fritz Musselmann, the Director of Real Estate at the District; and William D. Coarser, accepted as an expert in biology. The District's Exhibits 1 through 11 were received into evidence.
The City of Saint Petersburg presented the testimony of Frank Crum, accepted as an expert in hydrogeology, and Gene Heath. Its Exhibits 1 and 2 were received into evidence.
Intervenor Pottberg testified in his own behalf, and his Exhibit 1 was received into evidence.
No witnesses or exhibits were offered during the hearing by intervenor Pasco County.
During a previously announced evening session, members of the general public were given the opportunity to testify. Ann Denker, Patricia Pieper and Sylvia Young testified, and Public's Exhibits 1 through 3 were received into evidence.
The parties were given the opportunity to file legal memoranda in support of their respective positions, as well as proposed findings of fact and proposed conclusions of law. All parties submitted post-hearing documents within a timely manner after the filing of the hearing transcript, which occurred on June 6, 1985. These documents have been carefully considered by the undersigned Hearing Officer. To the extent that the Findings of Fact proposed by the parties are not included in this Recommended Order, they are rejected as not being supported by competent substantial evidence adduced at the hearing, irrelevant or immaterial to the issues in dispute or as constituting legal conclusions as opposed to factual findings.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
WEST COAST REGIONAL WATER SUPPLY AUTHORITY (STARKEY WELLFIELD)
The Authority is a nonprofit five-member interlocal entity created in 1974, pursuant to Section 373.1962, Florida Statutes, for the purpose of planning, designing and operating new sources of water supply to governmental
entities in Pasco, Pinellas and Hillsborough Counties. Its members include the Counties of Pasco, Pinellas and Hillsborough and the Cities of St. Petersburg and Tampa. The City of New Port Richey also has a seat on the Authority Board. The Authority's revenues are presently derived entirely from the sale of water to its customers. It owns and/or operates five wellfields, some of which are connected by a water transmission pipeline to each other and to wellfields operated or owned by Pinellas County and the City of St. Petersburg. In 1984, the Authority supplied approximately 74 million gallons per day (mgd) to its customers and held consumptive use permits (CUPs) for a total of 94 mgd average and 144 mgd peak or maximum. The Authority anticipates that it will serve approximately 800,000 people in the year 1985. Its master plan, which was last updated in 1982, projects future water demands through 1995 and identifies alternative sources of supply to satisfy those demands.
One of the wellfields presently operated by the Authority is the Starkey Wellfield located in Pasco County. The Starkey Wellfield property, located on some 5,400 or 6,947 acres, was acquired in phases by the Southwest Florida Water Management District (District) over a period of years beginning in the early 1970's. There are two remaining parcels which the District has contracted to acquire in 1985 and 1986. These parcels will be acquired under the "Save Our Rivers" program embodied in Section 373.59, Florida Statutes. The various contracts between the District and the Starkey family contain restrictive covenants which require that "the land remain, as nearly as practicable, in its natural state" and that water withdrawals be restricted so that they "do not substantially and/or permanently damage the lands adjacent to the area." In 1981, the District granted the Authority an exclusive license to operate a wellfield on the Starkey property provided that it maintain the wellfield "as nearly as practicable in its natural state." All cater produced from the property is to be for the water supply needs of the City of New Port Richey and Pasco County, except that those entities can authorize the sale of surplus water.
Prior to the Authority's involvement with the Starkey Wellfield, the City of New Port Richey planned and constructed water supply facilities at the extreme western portion of the wellfield. Four wells were originally permitted for 3 mgd average and 4.5 mgd maximum. In 1979, in conjunction with Pasco County as a co-applicant, the permit was modified to provide for increased withdrawals of 8 mgd average and 15 mgd peak. This increase was not implemented due to contractual problems between the City and the County. Then, in December of 1981, the Authority became involved in the Starkey Wellfield. Pursuant to a Water Transfer and Management Agreement and a Water Supply Agreement, the City of New Port Richey's four existing wells were transferred to the Authority and the Authority was authorized to construct additional wells and sell the water to the City and Pasco County. As noted above, any surplus water could be sold to others. These agreements have a term of 35 years, with an option of a 35-year renewal period. If the agreements are terminated, the facilities are to revert back to the City of New Port Richey and Pasco County.
In 1982, the Authority, the City of New Port Richey and Pasco County obtained the present CUP authorizing the construction and operation of a total of 14 wells and permitting withdrawals at an average annual rate of 8 mgd and a maximum daily rate of 15 mgd. This CUP expires on February 3, 1986. The ten presently operating wells have the capacity to produce 22 mgd. The financing arrangements for the construction of the Starkey Wellfield are not sufficient to complete construction. There is a shortfall of about $720,000, which the Authority plans to make up in revenues from the facility.
On December 20, 1983, the Authority, with the City of New Port Richey and Pasco County as co-applicants, applied to the District for a modification of the 1982 CUP to increase withdrawals from 8 mgd average, 15 mgd maximum to 11 mgd average and 21 mgd maximum. At the time, the Authority believed that the increases were justified by the projected water demands of the City and Pasco County.
In preparing its water supply plan submitted to the District on March 1, 1984, the Authority determined that it would be feasible to interconnect the Starkey Wellfield with the Cypress Creek pipeline and other major production facilities. In order to finance this pipeline interconnection and again believing that there was sufficient demand in Pasco County and the City of New Port Richey to justify increased withdrawals, the Authority, along with the City and the County, amended the application to modify their CUP on March 23, 1984. This amendment sought average annual withdrawals of 15 mgd and maximum daily withdrawals of 25 mgd. Also requested was the relocation of 2 wells that have not yet been constructed.
Between 1971 and 1982, five pump tests have been performed at the Starkey Wellfield, and monitor wells are installed throughout the property. Except for the northwest corner of the property, existing withdrawals have not changed the natural condition of the property. Utilizing these various tests and monitoring results to predict the hydrologic effects of the Authority's proposed increased withdrawals, the District found that the potentiometric drawdown and the water table drawdown at the requested rates would each increase to almost twice the drawdown at the currently permitted rates. The withdrawal of water will cause the level of the potentiometric surface to be lowered more than five feet outside the northern and southern boundaries of the Starkey Wellfield property. The one-foot water table drawdown anticipated from the increased withdrawals could have an adverse effect upon lands immediately adjacent to the north and west. Likewise, this one foot water table drawdown could cause adverse ecological effects on forests and wetlands within the Starkey Wellfield properties. Approximately 40 percent of the Starkey property is high quality wetlands.
In June of 1984, a three-day field validation multi-pump test was performed for the Authority. These test results were not available to the District at the time it performed its evaluation. The June tests showed aquifer characteristics different than those previously thought to exist. A much higher transmissivity level was found and the differing leakance values throughout the property demonstrated that the aquifer beneath the Starkey Wellfield is not homogenous. A higher transmissivity level decreases the extent of potentiometric surface drawdown. After substituting the new aquifer characteristics found from the June pump tests, the Authority's computer modeling demonstrates no violation of District hydrologic rules with respect to potentiometric surface and water table drawdowns at the increased level of withdrawals. The Authority's ecologist did not feel that the increased withdrawals would adversely affect natural conditions on the Starkey property, stating that a one-foot water table drawdown is well within the adaptive range of wetland vegetation. In addition, the Authority will maintain its existing ecological monitoring plan on site.
The District has not established regulatory levels for the rate of flow of streams or other water courses, for the potentiometric surface or for the surface water in the vicinity of the Starkey Wellfield. Deep monitor wells on the property indicate that there has been no increase in chloride concentrations. Increased withdrawals are not expected to induce saltwater
encroachment. If it is found that the potentiometric surface at the Starkey property boundary is lowered more than five feet, an alternative pumping schedule can be put into effect to prevent that occurrence. The pattern of production can be changed by shifting to different wells during the dry season. Increased withdrawals will not lower off-site water tables, lakes or other impoundments by more than one foot, and the potentiometric surface will not be lowered below sea level.
The Authority's proposed consumptive use of 15 mgd average would withdraw 2,777.77 gallons per acre per day if the Starkey Wellfield contains 5,400 acres, and 2,159.13 gallons per acre per day if it contains 6,947 acres. Its present permitted withdrawals average more than 1,000 gallons per acre per day.
The Authority's proposed increased withdrawals will not interfere with any presently existing legal use of water.
BEXLEY (CENTRAL PASCO WELLFIELD)
Bexley owns 14,510 acres of land in Pasco County located immediately east of the Starkey Wellfield. The land contains improved pasture, crops, planted pine and some cypress heads and ponds. He presently holds a CUP authorizing a combined average annual withdrawal of 2,416,000 gallons per day with a maximum withdrawal of 11,520,000 gallons per day. Such withdrawals are permitted for agricultural irrigation purposes and come from five wells.
In August of 1983, Bexley entered into a contract with Pasco County. The contract requires Bexley to produce and supply to Pasco County an average of
9 mgd of public supply water and a maximum of 13 mgd. Pasco County is given the exclusive right to purchase these amounts and, indeed, must pay for the water made available, whether it is accepted or not. The term of the agreement between Bexley and the County is 33 years.
Pursuant to his contract with Pasco County, Bexley applied to the District on December 21, 1983 to modify his existing CUP. A decrease in agricultural withdrawals was requested, as were five additional wells to produce
10.0 mgd average and 13.5 mgd maximum for Pasco County's public water supply. The five additional wells are to be located on 10,848 acres of land, to be known as the Central Pasco Wellfield, located within the 14,510 acres owned or controlled by Mr. Bexley. The modification would result in total (agricultural irrigation and public water supply use) withdrawals of 11,881,000 gallons per day annual average and 23,580,000 gallons per day maximum.
In order to determine the anticipated hydrologic effect of the proposed withdrawals, Bexley's hydrologist reviewed and analyzed previous studies of regional hydrogeology and other wellfields prepared by the District, the United States Geological Survey and private consultants. He also conducted a "slug test" and a single well pump test over a period of six days. The aquifer characteristics of the Bexley property were found to be within the range of values derived from other regional testing. Assuming an homogenous aquifer, these characteristics were used in computer modeling to predict the effect of increased withdrawals on and off the Bexley property. The five-foot potentiometric drawdown is confined to the Bexley property, as is the three-foot water table drawdown. The effects of any potentiometric surface and/or water table drawdowns on agricultural crops in the vicinity of the production wells can be offset by irrigation. No lake or other impoundment off-site will be lowered more than one foot. The proposed withdrawals will not cause the
potentiometric surface to be lowered below sea level. Regulatory levels have not been established by the District for potentiometric surface, stream flows or surface water on the Bexley property. Although there was no deep monitor well testing done, salt water encroachment is not anticipated as a result of the proposed withdrawals. After an independent evaluation, the District staff also concluded that the proposed Bexley withdrawals would not violate the District's hydrologic rules.
The proposed public water supply use of 10 mgd average from 10,848 acres will average 921.80 gallons per acre per day. The combined public supply and agricultural irrigation use of 11.8 mgd from 14,510 acres will average
818.78 gallons per acre per day.
CITY OF ST. PETERSBURG (SOUTH PASCO WELLFIELD)
The City of Saint Petersburg owns and operates the South Pasco Wellfield, located on a 589 acre site to the south of the Bexley property. This wellfield has been in operation since 1973, and the City has a CUP to withdraw water at the rate of 16.9 mgd annual average and 24 mgd maximum as part of a public supply system. This CUP expires on September 1, 1992. The CUP requires the City to balance production from its South Pasco Wellfield equally with its two other well fields -- Section 21 and Cosme-Odessa. Among the terms and conditions of the CUP are that three regulatory wells be monitored so as not to cause the cumulative weekly average elevations of the potentiometric surface of the aquifer to be lower than the regulatory level set for each well. One of the regulatory wells is located on State Road 54, about 1.5 miles south of the Bexley southern property boundary. The regulatory level set for that well is that the potentiometric surface not be below 42.0 feet above mean sea level on a cumulative weekly average basis. On a noncumulative weekly average basis, the elevations may be 37.0 feet above mean sea level. Since 1974, average water levels at the State Road 54 regulatory well have fluctuated from 44.8 feet to
49.4 feet.
Bexley's proposed combined average withdrawals may cause a potentiometric surface drawdown of between 1.3 and 1.9 feet at the State Road 54 regulatory well.
The City of Saint Petersburg presented evidence that if the City pumps at its permitted average of 16.9 mgd and Bexley pumps at its average of 11.8 mgd, the City will only be able to withdraw 14.1 mgd without violating the regulatory level for the State Road 54 well. However, this result was obtained by starting off with the normal water levels in the State Road 54 well as they existed in 1980-81, a particularly dry year, and then comparing them with the results obtained if Bexley were to pump its total combined average of 11.8 mgd. This methodology fails to take into account Bexley's permitted withdrawals of
2.4 mgd as they existed in 1980-81, and in effect, double-counted them by initially ignoring their impact on the 1980-81 water levels and adding them back in as a part of the new combined total. In addition, the exhibits and testimony offered by the City failed to demonstrate that the cumulative weekly average elevations would go below 42.0 feet if Bexley were pumping at its requested average rate. While the City of St. Petersburg did utilize its permitted average capacity in 1975, for the past five years it has averaged only between
10.1 and 12.3 million gallons per day from its South Pasco Wellfield. Even if the regulatory level of the State Road 54 well were in jeopardy of violation, it would be possible to shift the pumpage among the eight production wells to counter such a result. The Bexley property is located approximately 3.5 miles from the center of pumpage at the South Pasco Wellfield.
THE OTTO POTTBERG TRUST PROPERTY
The Otto Pottberg Trust Property, owned by the Pottberg family since 1936, is comprised of 8,000 acres of land located immediately north of the Starkey Wellfield. The property is used for cattle grazing and a nursery operation, and wildlife on the property is abundant. The intervenor Pottberg has observed that since the operation of the well field began on the Starkey property, the cattle ponds on the Pottberg property dry up and vegetation and grasses are adversely affected during the dry seasons. He has observed a noticeable decline in all lake levels. He fears that increased withdrawals from the Starkey well field would diminish the use of his property for cattle grazing and nursery operations, would create a fire hazard and would adversely affect plant, animal and human life on his property.
The Authority's experts found no surface drawdowns which would extend into the Pottberg property. The District determined that the potentiometric surface drawdown resulting from the proposed increased withdrawals from the Starkey Well field would exceed five feet on the northern boundary--thus extending into the property owned by the Otto Pottberg Trust. Likewise, the water table drawdown of one foot extends beyond the property at the northwest corner. However, there was no evidence that there are lakes on the Pottberg property at or near the northwest corner of the Starkey property, or that there is an existing CUP well on the Pottberg property in the area where the potentiometric surface drawdown exceeds five feet.
PASCO COUNTY'S WATER DEMANDS AND SUPPLIES
Pasco County is legally authorized and required to provide an adequate public water supply for its citizens. Based upon per capita use and estimates of population growth, the quantity of public supply water needed by Pasco County has been estimated by various experts as follows:
YEAR | AVERAGE MGD | MAXIMUM MGD |
1985 | 11.3 | 20.3 |
1986 | 12.3 | |
1988 | 12.8 | 28.6 |
1990 | 16.4 | 29.5 |
1993 | 18.8 | 40.8 |
1995 | 21.8 | 39.5 |
2000 | 27.2 | 49.0 |
In the year 1983, the Pasco County Utility Department actually utilized 8.1 mgd for public water supply purposes.
Pasco County has a contract right and obligation to purchase the following amounts of water produced by the Authority at the Starkey Wellfield:
YEAR AVERAGE AND MAXIMUM MGD 1985 7
1986 6.7
1987 6.4
1988 6.1
1989 5.8
1990 and thereafter 5.5
The City of New Port Richey also has an allocated entitlement to the remaining amounts of water withdrawn from the Starkey Wellfield under its current permit. The Water Supply Agreement for the Starkey Well field recognizes that the City and County will have increasing water supply needs, and provides that they may, upon giving the Authority two years prior notice, increase their entitlement.
The Pasco County Utility Department also has 13 CUPs covering public supply wells located on or near the coast. These CUPs, which were renewed in May of 1984 and expire in May of 1992, authorize a total withdrawal of 4.54 mgd average. The majority of these wells are located in coastal areas along and to the west of the 10-foot potentiometric surface contour near the saltwater- freshwater interface. Wells west of the 10-foot contour line generally have high chloride levels. The County has experienced inefficiency in operating some of these wells, and they are considered suitable mainly for fire control and peaking purposes. A condition of the 13 CUPs requires a proportionate, or gallon by gallon, decrease of average day withdrawals should Pasco County acquire another source of public water supply.
Pinellas County is contractually obligated to provide Pasco County with up to 10 mgd upon demand. Pasco County controls how much water it will take from the Pinellas County water system. This water is produced by the Authority from other wellfields located within Pasco County, is purchased by Pinellas County and then is transported to Pinellas County. Upon request by Pasco County, the water is then transported back up north again to Pasco County. The water travels approximately 25 to 40 miles from Pasco County to Pinellas County and back to Pasco County. The Pinellas County water system has sufficient capacity to continue to provide 10 mgd to Pasco County. Pasco County does not currently utilize the full 10 mgd, partially because such use would currently present difficulties in fulfilling its contractual obligation or entitlement from the Starkey Wellfield. The contract between Pinellas and Pasco Counties was not placed into evidence. No evidence was presented as to whether Pasco County is either able to or desires to eliminate or change its contract with Pinellas County. It was the position of the Pasco County Director of Public Works and Utilities that it would be more cost-effective to have an alternative source of public water supply. There was insufficient evidence produced at the hearing to determine if the Pinellas County water provided to Pasco County is more or less expensive than the rates presently charged by the Authority or by the contractual agreement between Bexley and Pasco County.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these consolidated proceedings. Section 120.57(1)(b)(13), Florida Statutes. Each of the intervenors have adequately demonstrated that they have standing to participate as substantially affected persons in these consumptive use permit proceedings. Pasco County is a co- applicant with the Authority and is the intended user of the water proposed to be withdrawn by both applicants. The Pottberg Trust owns 8,000 acres of land adjoining the Starkey Wellfield, and increased withdrawals of water from that wellfield could, depending upon the amount and the location of the withdrawals, have an ecological impact upon the southern portion of the Pottberg property. The evidence demonstrates that withdrawals of water from the Bexley property could, again dependent upon both the amount withdrawn by Bexley and the amount withdrawn by the City, substantially affect the City of St. Petersburg's ability to withdraw previously authorized quantities of water from its South Pasco Wellfield.
The Florida Legislature has declared that the waters in this State are among its basic resources, and has recognized that such waters have not previously been conserved or fully controlled so as to realize their full beneficial effect. To this extent, it is declared Legislative policy to provide for the management of water and "to promote the conservation, development, and proper utilization of surface and ground water." Section 373.016, Florida Statutes. In order to implement this Legislative mandate, water management districts are authorized by statute to require permits for the consumptive use of water. Section 373.219, Florida Statutes.
An applicant for a CUP must establish that the proposed use of water is a reasonable beneficial use, will not interfere with any presently existing legal use of water and is consistent with the public interest. Section 373.223, Florida Statutes. In addition, it is incumbent upon an applicant to demonstrate that the proposed withdrawal of water will meet the hydrologic criteria set forth in the District's Rule 40D-2.301(2) and (3), Florida Administrative Code. In these consolidated proceedings, a determination of noncompliance with the initial threshold criterion -- whether each applicants' proposed use is a reasonable beneficial use, is determinative of all remaining issues.
Counsel for Mr. Bexley and for Pasco County have maintained throughout these proceedings that an applicant is not required to demonstrate a "need" for water as an independent criterion. It is contended that there is no statutory or regulatory authority to deny an application for an alternative source of water supply simply because the intended user has access to other sources of supply which already are permitted. Bexley argues that so long as the water actually applied for is to be used by Pasco County for public supply purposes, the "reasonable beneficial use" criterion has been met. The District and the Authority, on the other hand, contend that if the quantity of water requested is not "necessary" or "needed," it is not a reasonable beneficial use and is therefore not a legally authorized use.
After carefully considering the contentions of counsel and analyzing the statutory and regulatory provisions with respect to the issuance of CUPs, common sense and logic dictates the conclusion that an applicant must demonstrate a need for the quantity of water requested in order to show compliance with the "reasonable beneficial use" criterion. To conclude otherwise would permit an applicant to obtain a permit for unlimited amounts of water, regardless of other permitted sources of water available to the applicant, so long as one drop of the requested water was destined for a reasonable beneficial purpose. This would totally defeat the Legislative policy that our groundwater resources be managed, conserved and properly utilized. If Pasco County, either through separate permits or contractual entitlements, is authorized to withdraw more water than it needs for public supply purposes, that water will either be put to other unauthorized uses or it will be preempted from use by other reasonable beneficial users. Taken to the extreme, it is obvious that one entity authorized to supply public water in an area may not preempt all other water use in that area simply because that entity wishes to have alternative, even if not additional, sources of supply. Such would not be a "reasonable beneficial use" of the water requested.
The quantity of water requested is the cornerstone of the permit evaluation system. A diversion of water which exceeds the amount reasonably necessary for a beneficial use will either be wasted or will be preempted for
use by others. Such a "use" of the water is neither reasonable nor beneficial. Likewise, whether the requested withdrawals interfere with existing legal uses of water or are consistent with the public interest is dependent upon the quantity of water withdrawn.
A demonstration of need for the quantity of water requested is obviously contemplated and required. "Reasonable beneficial use" is statutorily defined in Section 373.019(4), Florida Statutes, 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." (underlining supplied)
Likewise, Rule 17-40.04(2), Florida Administrative Code, lists 16 factors to be given consideration in determining whether a water use is a reasonable beneficial use. Among those factors are the "quantity of water requested for the use" and "the demonstrated need for the use." It is clear that the mere request, either through a CUP application or demonstration of a contractual arrangement, for additional, supplemental or alternative sources of public supply water is not sufficient by itself to demonstrate that the proposed use will be reasonable and beneficial. It is the use of water which is permitted, and use can only be reasonable and beneficial if the quantity requested is needed by the applicant or the intended user. See Village of Tequestra v.
Jupiter Inlet Corp. 371 So.2d 663 (Fla. 1979). Also see Section 373.239(2)(a), Florida Statutes, which allows the District to approve modifications to a CUP requesting less than 100,000 gallons per day if the permittee can establish a change in conditions resulting in the water allowed becoming "inadequate" for the permittee's "need."
The evidence demonstrates that both applicants intend to provide water to Pasco County. 1/ Having determined that a demonstration of need is essential to a finding that the proposed use is a reasonable beneficial use, the needs or demands and existing water supplies of Pasco County must be examined.
Pasco County presently has three sources of public water supply -- the Starkey Wellfield, its 13 permitted wells and its contractual arrangement with Pinellas County. In 1985, the water available to Pasco County from these three sources is 21.5 million gallons per day on an average annual basis. These three sources exceed the County's average demand for 1985 by 10.2 mgd. The permitted or contractual supply from these three sources continues to exceed Pasco County's average annual demand projections for all years for which projections were made up until the year 1995. For the year 1986, supply exceeds demand by
8.9 mgd. In 1988, there is an excess supply of 7.8 mgd. In 1990, the supply exceeds the demand by 3.6 mgd, and in 1993, the excess supply is 1.2 mgd. It is only in the year 1995 that the projected average demand of 21.8 mgd exceeds the supply provided from the currently permitted sources, and then only by 1.8 mgd.
In spite of the overabundant supply of water presently available to Pasco County, the two applicants, with Pasco County's support, are now requesting a combined total of 17 mgd average to be used for Pasco County's public water supply. Bexley has a contractual arrangement with Pasco County for the supply and purchase of 9 mgd. The Authority has no such contractual arrangement beyond the present arrangement as set forth in Finding of Fact 23 above. Presumably, a portion of the additional 7 mgd average requested by the
Authority would go to the City of New Port Richey, though the evidence is not clear on this point. Indeed, the only real "use" shown for the requested increase in withdrawals by the Authority was to help finance the pipeline interconnection proposed in the Authority's long range plans.
It is admitted by all parties that the County's present sources of supply are sufficient in raw quantity t percent satisfy its demands through 1990. However, it is contended that it is within the authority and discretion of the County through its Board of County Commissioners, and not the District, to determine how the County will replace existing sources of supply with new sources of supply. The County urges that it desires to reduce or eliminate its reliance on its coastal wells as a result of environmental and water quality concerns and also as a result of high operational and maintenance costs. The evidence was insufficient in this proceeding to allow a conclusion that all or a portion of these wells present a clear environmental or cost-prohibitive barrier to use. Nevertheless, the County's intention, accepted by the District, to abandon such use is evidenced by the permit conditions placed on these wells requiring a gallon per gallon reduction in the permitted withdrawals should other sources of water be acquired. Thus, the Board of County Commissioner's discretionary authority to replace existing sources of supply with new sources of supply has been recognized. If the County desires to cease using the 4.5 mgd from its 13 permitted wells, it may do so today and still have an adequate supply to meet its needs at least through 1988, and most probably through 1989. By utilizing its entitlement from Pinellas County, it would have a 1988 supply of 16.1 mgd average when its demand for 1988 is 12.8 mgd. Demand projections for 1989 were not made, but the 1990 demand is 16.4 mgd, or 0.9 mgd more than its current supply.
It is further argued that Pasco County desires to reduce its reliance on the Pinellas County contract and gain control of its own destiny with respect to adequate and affordable water supplies. It is urged that the concept of "need" includes more than raw quantity and that environmental and economical considerations must be included. However, there was no evidence presented to demonstrate that the Pinellas County supply is either inadequate, undependable, uneconomical or presents adverse environmental effects. It must be presumed that the District took into consideration the 10 mgd entitlement of water to Pasco County when it issued the CUP covering the source of that water. There is no competent substantial evidence that the Board of County Commissioners of Pasco County intends to formally rescind or eliminate all or any portion of this contractual arrangement with Pinellas County. Should the District ignore this source of water to Pasco County and, at the same time, allow it to be preempted from other uses? To do so would be to disregard its responsibility to provide for the "management" of water resources and the "conservation" and "proper utilization" of groundwater.
In summary, there is insufficient evidence in the record of this proceeding to determine that Pasco County needs additional or alternative sources of water through the year 1990. To authorize a use of water in a quantity which greatly exceeds the demonstrated need of the intended user would be in conflict with the statutory conditions for a permit -- that the proposed use be a "reasonable beneficial use." Since Pasco County does not currently need additional water and its request for alternative sources of water has not been justified, both applicants have failed to demonstrate that the proposed increased withdrawals are for a reasonable beneficial use. Their applications must therefore be denied. Having failed to comply with the threshold criterion
for issuance of a CUP, neither applicant is entitled to a permit and all remaining issues regarding interference with existing legal uses of water, public interest, competing applications and compliance with the hydrologic criteria are rendered moot.
Bexley's renewed motion to strike certain testimony and exhibits as they relate to the "demonstrated need" theory is DENIED for the reasons previously expressed regarding the reasonable beneficial use criterion. The Authority's motion to strike from Bexley's written closing argument references to a violation of federal and state antitrust laws is GRANTED.
The record evidence, both oral and documentary, in these cases related solely to the two applicants' requests for increased withdrawals for public water supply purposes. No evidence was presented regarding Bexley's continuation of agricultural irrigation withdrawals or the request by the Authority in its permit modification application to relocate two wells at the Starkey Wellfield. Consequently, no findings of fact or conclusions of law on the merits of these portions of the pending applications are made or intended in this Recommended Order.
RECOMMENDED ORDER
Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that:
the application, as amended, filed by the West Coast Regional Water Supply Authority to modify its existing consumptive use permit by increasing withdrawals at the Starkey Wellfield from 8 mgd average annual and 15 mgd maximum daily to 15 mgd average and 25 mgd maximum be DENIED, and
the application filed by S.C. Bexley, Jr. to modify its existing consumptive use permit by decreasing its agricultural irrigation withdrawal rate and adding a public water supply at an average annual withdrawal rate of 10 mgd and a maximum daily rate of 13.5 mgd, for a total combined average of 11.9 mgd and a maximum of 23.6 mgd for agricultural and public water supply use, be DENIED.
Respectfully submitted and entered this 26th day of July, 1985, in Tallahassee, Florida.
DIANE D. TREMOR,
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1985.
ENDNOTE
1/ It is recognized that the Authority may also wish to provide water to the City of New Port Richey from the Starkey Wellfield, but no evidence was presented to demonstrate the future public water supply needs of that City.
COPIES FURNISHED:
L. M. Blain
202 Madison Street Tampa, Florida 33602
Edward P. de la Parte, Jr. 705 East Kennedy Boulevard Tampa, Florida 33602
J. Edward Curren 2379 Broad Street
Brooksville, Florida 33512-9712
Carl R. Linn
267 75th Avenue
St. Petersburg Beach, Florida 33706
Ronald D. McCall
100 East Madison Street Tampa, Florida 33602
James Benjamin Harrill 7530 Little Road
New Port Richey, Florida 33553
Gary W. Kuhl Executive Director
Southwest Florida Water Management District
2379 Broad Street
Brooksville, Florida 33512-9712
| Issue Date | Proceedings |
|---|---|
| Jul. 26, 1985 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Sep. 04, 1985 | Agency Final Order | |
| Jul. 26, 1985 | Recommended Order | Applicant must demonstrate need for requested water quantity to show compliance with reasonable/beneficial use criterion. The need was not shown. Comprehensive use permit denied. |
