STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
CITY OF BRADENTON, a Florida )
municipality, )
)
Petitioner, )
)
vs. ) CASE NO. 92-7161
)
SOUTHWEST FLORIDA WATER )
MANAGEMENT DISTRICT, )
)
Respondent. )
)
RECOMMENDED ORDER
Upon due notice, the Division of Administrative Hearings, by its duly assigned Hearing Officer, William R. Cave, conducted a formal hearing in the above-captioned matter on October 4, 5 & 6, 1993, in Bradenton, Florida.
APPEARANCES
For Petitioner: Barbara B. Levin, Esquire
Davis, Persson, Smith & Darnell 2033 Main Street, Suite 406
Sarasota, Florida 34237
William Lisch, Esquire
519 13th Street West Bradenton, Florida 34205
For Respondent: James A. Robinson, Esquire
Mark F. Lapp, Esquire
Southwest Florida Water Management District 2379 Broad Street
Brooksville, Florida 34609-6899 STATEMENT OF THE ISSUE
Whether the City of Bradenton's (City) petition for a variance from established lawn and landscape irrigation restrictions imposed under the Southwest Florida Water Management District (District) Governing Board Order 92- 12, as amended, should be granted under Rule 40D-21.291(2)(c), Florida Administrative Code.
PRELIMINARY STATEMENT
On October 28, 1992, the District advised the City that its earlier filed Petition For Variance from the District Governing Board Order 92-12, as amended, had been denied. On November 12, 1992, the City filed a Petition For Formal Administrative Hearing with the District. On November 30, 1992, the District filed a Notice Of Referral with the Division of Administrative Hearings
requesting the assignment of a Hearing Officer for the conduct of a hearing and this proceeding ensued. The initial hearing in this matter was scheduled for April 21 - 22, 1993 but due to continuances requested by the parties and granted, and attempted settlement, the matter was not heard until October 4 - 6, 1993. As a result of a Motion To Dismiss filed by District, the issue to be resolved by this proceeding was limited to whether the City could comply with the criteria of Rule 40D-21.291(2)(c), Florida Administrative Code, in order to be granted a variance from the District Governing Board Order 92-12, as amended.
At the hearing, the City presented the testimony of William Evers, Earl Crawley, William Taylor, Harold Bridges, Lloyd Horvat and Jeffery Hottman. The City's exhibits 1 - 4, and 6 - 21 were received as evidence in this case. The City's exhibit 5 was rejected. The District presented the testimony of B. J. Jarvis, Peter G. Hubbell, Donald Rome and Jay Yingling. The District's exhibits
1 - 6 were received as evidence in this case. Official Recognition was taken of the District Governing Board Order Nos. 92-12, 92-21 and 92-60; Chapters 40D-0, 40D-1, 40D-2, 40D-21 and 40D-22, Florida Administrative Code and Chapter 373, Florida Statutes.
A transcript of this proceeding was filed with the Division of Administrative Hearings on November 2, 1993. The transcript as submitted to the Division had a Volume I (pages 1-118), Volume II (pages 119-240), Volume II (pages 241-357), Volume III (pages 358-509, no Volume IV, Volume V (pages 501- 563), Volume VI (pages 564-674) and Volume VII (pages 675-779). Volume II (pages 241-357) has been renumbered as Volume III and Volume III (pages 358-509) has been renumbered as Volume IV. By Joint Stipulation the parties requested and were granted an extension of time for filing their Proposed Recommended Orders with the understanding that any time constraint for entry of a Recommended Order under Rule 28-5.402, Florida Administrative Code, was waived in accordance with Rule 60Q-2.031(2), Florida Administrative Code. The parties timely filed their Proposed Recommended Orders under the extended time frame. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:
BACKGROUND
The District is the agency authorized by Chapter 373, Florida Statutes, and the rules promulgated thereunder to declare the existence of a water shortage within all or part of the District where insufficient surface or ground water is available to meet the needs of the users or when conditions are such as to require temporary reduction in total use within the area in order to protect the water resources, and to impose such restrictions as may be necessary to reduce demand on available water supplies.
The City is located within Manatee County which is within the geographical boundaries of the District and, as such, the City is subject to any water restrictions imposed by the District that covers the area within which the City is located.
The Bill Evers Reservoir, an in-stream reservoir in the Braden River, formerly known as Ward Lake, provides the principle source of potable water for the City. The Bill Evers Reservoir is located within Manatee County.
On August 13, 1991, the District issued Individual Water Use Permit No. 206392.01 to the City authorizing the withdrawal of a combined average annual rate of 5.6 million gallons of water per day from the Bill Evers Reservoir and one well, with a maximum combined rate not to exceed 8.2 million gallons of water per day.
Condition 4 of the permit provides that if the District declares that a water shortage exists pursuant to Chapter 40D-21, Florida Administrative Code, the District shall alter, modify, or declare inactive all or parts of the permit as necessary to address the water shortage.
Condition 10 of the permit requires the City, among other things, to practice water conservation to increase the efficiency of transport, application, and use, as well as to decrease waste and to minimize runoff from the property.
On February 25, 1992, Governing Board of the District adopted Order 92-
12 imposing modified Phase III water restrictions based upon the Phase III water restrictions adopted in Rule 40D-21.641, Florida Administrative Code. This Order, which became effective on March 2, 1992, attached and incorporated by reference Phase III water shortage restrictions as set forth in Chapter 40D-21, Florida Administrative Code, and, except as amended or modified by the Order, declared the same, without exception, to be in effect for all users within DeSoto, Hardee, Hillsborough, Pasco, Pinellas, Manatee and Sarasota counties and those portions of Charlotte, Highlands and Polk counties within the geographical boundaries of the District.
In addition to the conservation measures set forth in Condition 10 of the permit, Rule 40D-21.601(2), Florida Administrative Code, provides that all wasteful and unnecessary water use is prohibited regardless of the phase of water shortage.
Paragraph 11 of Order 92-12 imposed restrictions on, among other things, the irrigation of established lawns and landscaping.
On March 25, 1992, the Governing Board of the District adopted Order No. 92-21 amending Order No. 92-12 to allow for certain non-irrigation, agricultural irrigation and golf course irrigation uses.
By letter dated July 22, 1992, the City petitioned the District for a variance from the District's Water Shortage Restrictions imposed under Order 92- 12, as amended.
On October 26, 1992, the Governing Board of the District adopted Order No. 92-60 amending Order 92-12 and Order 92-21 to allow certain car washing uses.
By letter dated October 28, 1992, the District advised the City that its request for a variance from the District's Water Shortage Restrictions imposed under Order 92-12, as amended had been denied.
Measures Implemented Before Adoption Of Order 92-12
The City in accordance with Rule 40D-21.291(2)(c), Florida Administrative Code, presented a plan to the District entitled "CITY OF BRADENTON, FLORIDA - WATER DEMAND REDUCTION PLAN FOR ISSUANCE OF A VARIANCE FROM
THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT MODIFIED PHASE III WATER RESTRICTIONS - GOVERNING BOARD ORDER 92-12, AS AMENDED" (Plan). The Plan as
revised to reflect the evidence received at the hearing was late filed as Petitioner's exhibit 3.
The City's Plan describes the following historical programs and measures implemented by the City prior to Order 92-12, as amended. The City contends that these programs and measures are available alternative restrictions which are binding and enforceable against the City and, along with other measures, achieve the same level of demand reduction as the restrictions from which the City seeks a variance.
Inverted Rate Structure. In the fall of 1982, The City implemented an inverted rate structure providing for increased costs to all customers from $1.22 per thousand gallons water for the first 3,000 gallons to
$1.74 per thousand gallons of water used in excess of 3,000 gallons of water per month. The City's inverted rate structure is consistent with the water restrictions set forth in Rule 40D-21.641, Florida Administrative Code, and with Condition 26 of the permit which requires the City to adopt a water conservation oriented rate structure no later than January 1, 1993.
Leak Detection and Systems Maintenance/Repair Program & Utility Capital Improvements Program. These measures are one and the same, which were implemented in 1982 to replace deteriorated and old water mains. This measure is consistent with the prohibition of all wasteful and unnecessary water use set forth in Rule 40D-21.601(2), Florida Administrative Code, the water restrictions set forth in Rule 40D-21.641, Florida Administrative Code, and the practice of water conservation as set forth in Condition 10 of the permit.
Water Meter Testing and Replacement Program. This program was established in 1980, and involves the testing, calibration and replacement of water meters. This measure is consistent with the prohibition of all wasteful and unnecessary water use set forth in Rule 40D-21.601(2), Florida Administrative Code, with the restrictions set forth in Rule 40D-21.641, Florida Administrative Code, and the practice of water conservation set forth in Condition 10 of the permit.
In-Home Leak Detection. This measure involves utilization of City staff to investigate citizen complaints or requests for assistance in ascertaining water loss from residential pipe and fixture leaks. This measure implements Rule 40D-21.641(1), Florida Administrative Code, and is consistent with the practice of water conservation set forth in Condition 10 of the permit.
Process Modification. This program was implemented in 1986, and involves the complete capture and recycling of all filter backwash and sludge lagoon supernatant water at the City's new water treatment plant since its construction in 1990. This measure implements Rule 40D-21.641(2), Florida Administrative Code, and is consistent with the practice of water conservation as set forth in Condition 10 of the permit.
Runoff Reduction. The City has encouraged the use of certain materials in construction of parking areas to allow for water percolation and to reduce runoff. This measure implements Rule 40D-21.641(3), Florida Administrative Code, and is consistent with the practice of water conservation set forth in Condition 10 of the permit.
Waste Water Reuse. The City currently uses the advanced waste treated effluent from its Advanced Waste Treatment Plant for on-site irrigation and as a source of plant wash down. This measure implements Rule 40D-21.641(3), Florida Administrative Code, and is consistent with the practice of water conservation set forth in Condition 10 of the permit.
In attempting to show a total water demand reduction of 26.4 percent attributable to measures already in existence before the adoption of Order 92- 12, the City relies on a methodology and comparison of data from 1981 and 1983, as well as from 1981 and 1992 which fail to consider the effects of effective rainfall, net irrigation requirements, inflation and the extent of source substitution (e.g., use of water from private wells or users otherwise going off the system). These are significant factors which must be considered in analyzing the reasons for reduction in total water demand on the City's water system. Additionally, the City's analysis fails to take into account the elements of the principles of price elasticity--the accepted means for distinguishing customer responses specifically attributable to changes in price.
The City did not demonstrate any measurable demand reduction attributable to the inverted rate structure, leak detection and system maintenance/repair, water meter testing and replacement, in-home leak detection, process modification, runoff reduction and waste water reuse.
There was insufficient evidence to establish facts to show that the conservation measures implemented by the City before Order 92-12 resulted in an estimated 26.4 percent demand reduction.
All of the conservation measures that the City contends attributed to an estimated 26.4 percent demand reduction were in effect before the adoption of 92-12 and are in the nature of best management practices for public water supply utilities such as City. These conservation measures are also consistent with the practice of water conservation set forth in Condition 10 of the permit.
Existing Measures Implemented After Adoption of Order 92-12
Process modification, including the recycling of filter backwash and sludge lagoon supernatant water, and various other improvements to the water treatment process, reflect matters which are in the nature of best management practices for water utilities such as the City's, and are common among such utilities and are consistent with the practice of water conservation set forth in Condition 10 of the permit.
Part of the process modification element of the Plan (namely, the recycling of filter backwash) has existed in the new water treatment plant since it was constructed in 1990 and existed in the old water treatment plant before that time. Nevertheless, an analysis of the water treatment records between March, 1992, and March, 1993, indicates a reduction in in-plant use of 110,000 gallons per day which is equivalent to 1.8 percent of total 1992 demand.
In January, 1993, the City implemented the reuse of effluent from its waste water treatment plant for use in chlorine injection into the disinfection process at the plant. This implementation has resulted in a savings of approximately 108,000 gallons per day or 1.8 percent of the total 1992 demand.
The reuse of effluent for use in chlorine injection into the disinfection process is in the nature of best management practice for utilities,
is consistent with the practice of water conservation as set forth in Condition
10 of the permit, and is a standard practice among utilities such as the City's.
A "good" reuse program contemplates a 50 per cent reuse level. The City is presently reusing approximately 1.8 percent of total waste water. Assuming the City was reusing waste water to the fullest extent contemplated under its Plan, the percentage of reuse would amount to approximately 17 percent which is well below a "good" reuse program.
Proposed Measures
The City is proposing construction of reuse facilities by July, 1994, for locations identified as Mixon Groves, the Municipal Golf Course, Pirate City, Tropicana, Red Barn Flea Market, McKechnie Field and Manatee County Boys Club.
With the exception of McKechnie Field, there would be no reduction in demand on the City's water supply system resulting from reuse of water at these facilities since the major recipients of reuse of water would be replacing private well use.
There was no evidence as to the amount of reduction in demand on the City's water supply system which would result from reuse of water in connection with McKechnie Field. Any savings of water from future reuse projects is "undetermined".
The City has determined that it can safely reduce flushing of water lines by approximately 77,400 gallons per day or 1.3 percent of total demand without jeopardizing water quality. Therefore, continued flushing of lines by use of water in excess of 77,400 gallons per day would be an unnecessary and inefficient use of water, and inconsistent with the prohibition of all wasteful and unnecessary water use set forth in Rule 40D-21.601(2), Florida Administrative Code, and inconsistent with the practice of water conservation set forth in Condition 10 of the permit.
General Findings
The City's percentage of water use which is unaccounted for (i.e., the quantity of water which cannot be accounted for after billed and known uses are tallied) is 22 percent of its total water usage and exceeds the industry standard of 15 percent.
The City has analyzed the relationship of water restrictions on demand reduction, and arrived at the conclusion that, except for the months of April and May, water restrictions are not effective in reducing demand.
The methodology employed by the City in support of its proposition that water use restrictions do not result in water demand reduction assumes in part that because the month of August, 1988, was a comparatively wet month, there was very little irrigation during that month by individual homeowners within the City. However, the City's exhibit 3 clearly shows a significant amount of water being used for irrigation by metered customers within the City during the month of August, 1988. In fact, metered irrigation use during August, 1988, was approximately 75 percent of the monthly average metered irrigation use for 1988, which would certainly indicate that nonmetered irrigation use by customers within the city would also be significant. Therefore, the amount of irrigation usage that would result from the City's
methodology that is associated with the estimate of irrigation usage would be understated by the actual irrigation usage in August, 1988. This causes serious doubt as to the soundness of the City's methodology.
The City's conclusion that restrictions do not work and may even increase demand does not consider the principle of net irrigation requirements or its relationship to effective rainfall and evapotranspiration.
Net irrigation requirement is the amount of irrigation required to provide a plant the amount of water it needs to survive over and above the amount provided naturally. To calculate net irrigation requirement, both evapotranspiration requirements (the total amount of water a plant needs to survive) and effective rainfall must be calculated. Effective rainfall is the amount of rain that satisfies evapotranspiration requirements. Because rain can be lost as runoff or can percolate past the rootzone, not all rain is effective at offsetting evapotranspiration (e.g., a two inch rain in one day would not satisfy a 2.0 evapotranspiration requirement for a month). Net irrigation requirement is the evapotranspiration requirement minus the effective rainfall.
The City's analysis and conclusion also fails to consider that people are prone to irrigate more as the net irrigation requirement increases.
Enforcement of the water restrictions by the local government officials plays an important role in the effectiveness of the restrictions in reducing water demand. The City in its analysis and conclusions did not take into consideration the level of enforcement of the water restriction within the City.
The area within the District is experiencing drought-like conditions, and it is during such periods, characterized by higher net irrigation requirements, that water restrictions are apt to be imposed. Water restrictions serve to reduce the rate of increase in water use which would naturally result from less effective rainfall and greater watering needs.
The District commissioned and participated in a study prepared by Brown and Caldwell in association with John B. Whitcomb, Ph.D., entitled Water Price Elasticity Study, August 1993 (Price Elasticity Study), to quantify the relationship between water price and water demand for customers in the District's service area and to develop price elasticities that could be used by utility directors in developing water conserving rate structures.
The Price Elasticity Study selected ten utilities, including the City, to participate in the study and analyzed water use for ten customer classes believed to be relatively common with the District's service area.
The results of the study indicate that for single- family homes customers the imposition of irrigation restrictions, such as the one imposed by Order 92-12, as amended, correlates with water use reductions, and that mean water use dropped during the 2 day per week limitations by 2.3 percent. The study finds the 2.3 percent savings of single-family homes base use applicable to all participating utilities, including the City.
Paragraph 25 of Order 92-12, as amended, requests local government officials to assist the District in implementation and enforcement of the Order pursuant to Section 372.609, Florida Statutes. Furthermore, the District specifically requested the City's assistance by letters addressed to the Mayor,
Public Works Director, City Clerk and Police Chief, as the District does with all local government officials.
Private well users within the City would not be affected by the variance, if granted. Therefore, the City's enforcement of water restrictions against private well users within the City would be more difficult than at present by reason of the difficulty of differentiating between use out of private wells and use off the City's water system. However, while the City admits that enforcement of restrictions on private well users within the City would be more difficult under the variance, there was evidence that the City could, and would, enforce the restrictions on private well users within the City, if the variance was granted.
The District has independent enforcement authority under Chapter 373, Florida Statutes, to enforce the restrictions. However, the District depends heavily on the local government officials to assist in the enforcement of the restrictions, and to that end, advises the local government officials, including the City, of repeat violators of the restrictions. The District has given the City written notice of repeat violators of the water restrictions set out in Order 92-12, as amended which the City's Police Department has investigated. However, some of the notices were for violations outside of the City which the City did not investigate. The City's Police Department, as the arm of the City responsible for enforcing Order 92-12, as amended, has both informational and internal procedures for handling complaints of violations of water restrictions.
Because of the circumstances that may surround a water restriction violation, the issuance of citations for violations of water restrictions is within the sole discretion of the investigating police officer. There has never been a citation issued or an arrest made by the City for water restriction violation during the period of time from March, 1992 through August, 1993. In fact, only 43 calls investigating alleged water restriction violations have been made during the same time period by the City. However, there was no evidence as to how many calls concerning alleged water restrictions within the City were received by the City or that the City had failed to respond to a call or notice of alleged water restriction violation within the City that was received by the City.
Paragraph 26 of Order 92-12, as amended requests and encourages each county and city within the District to adopt or implement, by ordinance or otherwise, such measures as may be necessary to implement and enforce the water use restrictions adopted thereby, and allows each local government the discretion to determine local program emphasis, method of implementation and the enforcement measure appropriate within the local government's jurisdiction. Other than its enforcement of noticed alleged violations of water restrictions, the City has taken no action or initiative in response to paragraph 26 of the Order to actively encourage compliance with the water restrictions.
There is insufficient evidence to support the observation by the City that the imposition of water restrictions result in increased irrigation. Normally, when water restrictions are imposed, the weather conditions are such that there is a higher evapotranspiration with a lower effective rainfall resulting in higher net irrigation requirements which is not a condition brought on by the imposition of water restrictions. Since people are more apt to water when the net irrigation requirements are high, the water restrictions tend to reduce the amount of irrigation. The City's observation is merely speculation. Therefore, any methodology, conclusions or analysis which may rely on this
observation is faulty and without sufficient evidence to support such an observation.
There is insufficient evidence to establish facts to show that any element of the City's water collection, treatment and distribution system is extraordinary or better than average among other utilities within the District's jurisdiction and thereby, entitle any conservation of water (demand reduction) as a result of the City's collection, treatment and distribution system to be considered an available alternative restriction under Rule 40D-21.291(2)(c), Florida Administrative Code.
While the Plan, if accepted by the District, would be binding on, and enforceable by the City, there is insufficient evidence to establish facts to show that the Plan would achieve the same level of demand reduction as the restrictions from which the variance is sought and thereby, meet the criteria for a variance under Rule 40D-21.291(2)(c), Florida Administrative Code.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.
The City agrees that this matter comes within the District's jurisdiction and that the District has the authority under Chapter 373, Florida Statutes, and the rules promulgated thereunder by the District, to declare water shortages within the District, to impose water restrictions on users within the District to address those water shortages and to grant variances from those water restriction. Since the issue of jurisdiction has been resolved, the City, as the applicant for a variance, has the ultimate burden to establish by a preponderance of the evidence entitlement to the requested variance. Florida Department of Transportation vs. J. W. C. Co, Inc., 396 So.2d 778 (1 DCA Fla. 1983); See also, Young vs. State, Department of Community Affairs, 625 So.2d 831 (Fla. 1993).
In accordance with the authority granted the District under Sections
373.044 and 373.113, Florida Statutes, the District adopted Chapter 40D-21, Florida Administrative Code, which sets forth the District's plan for implementation during periods of water shortage as required by Section 373.246(1), Florida Statutes. Users may request relief from the provisions of Rule 40D-21, Florida Administrative Code, by petitioning for a variance from the District. Rule 40D-21.291(2)(c), Florida Administrative Code, provides in pertinent part as follows:
(2) Criteria for Issuance - No petition for variance shall be granted unless the petitioner affirmatively demonstrates that one or more of the following circumstances exists:
* * *
(c) Alternative restrictions which achieve the same level of demand reduction as the restrictions from which a variance is sought are available and binding and enforceable.
These alternative restrictions shall be summarized within a short-term water
reduction plan, prepared by the Petitioner, to submitted to the District for consideration.
Any user who has submitted a short-term water reduction plan in compliance with a Board order shall, upon approval, be bound by such plan unless good cause exists for changes to such plan and the plan is amended accordingly. (Emphasis supplied)
The City has prepared and presented to the District a short-term plan containing what the City contends are alternative restrictions which achieve the same level of demand reduction as the restrictions from which the variance is sought. The measures proposed in the City's Plan would be binding and enforceable on the City if the variance was granted.
Each of the measures proposed in the City's Plan as alternative restrictions: (a) are already required by statute, rule, conditions or terms of the water use permit or Order 92-12; or (b) were already in effect at the time Order 92-12 was adopted by the District; or (c) were in existence at the time the variance was sought even though such measures were implemented after Order 92-12 was adopted; or (d) are in the nature of best management practices for public utilities. Since reduction in demand attributable to alternative water restrictions is intended to be in addition to, and not replaceable by, whatever savings are achieved or achievable through the above measures, such measures cannot be considered as alternative restrictions under Rule 40D-21.291(2)(c), Florida Administrative Code,
Since the City has failed to affirmatively demonstrate that the measures proposed in its Plan are alternative restrictions which will achieve the same level of demand reduction as the restrictions from which the variance is sought , it has failed to sustain the burden imposed upon the City in this matter.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the District enter a Final Order denying the City's petition for a variance from the established lawn and landscape irrigation restrictions imposed under the District's Governing Board Order 92-12, as amended.
RECOMMENDED this 31st day of May, 1994, at Tallahassee, Florida.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 31st day of May, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7161
The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.
Petitioner, City of Bradenton
1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1(7); 2(10); 3(12); 4(11); 6(13); 8-9(3); 12(15a); 16(3); 17(37); 19(38); 23-24(39); 48(40); 49(44); 50,51(42), 53-65(42), 67-70(42); 71(41); 72(42); 76(15a); 77-78(15b); 81- 82(15c); 84(15a); 101(17); 107-119(20-21); 120-126(22-27); 127-131(28); 132- 139(29); 140(25-28); 141(20-24); 142(23-24); 143(47); and 145-146(41).
2. Proposed findings of fact 5, 10, 11, 13-15, 18, 20-22, 25-32, 35-47,
52, 66, 73-75, 79, 80, 83, 85, 87-95, 97, 99, and 102-106 are either immaterial, irrelevant, subordinate or unnecessary.
Proposed finding of fact 7 is covered in the Preliminary Statement.
Proposed findings of fact 33, 34, 86, 96, 98, and 100 are not supported by competent substantial evidence in the record.
Respondent, Southwest Florida Water Management District
The following proposed finding(s) of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding(s) of Fact which so adopts the proposed finding of fact: 1(7); 2(9); 3(7,8); 4(10,12); 5(4); 6(15); 7-8(6); 9(18); 10(17); 11-12(19); 13(20); 14(21); 16(22,23); 17(23,24); 18(25); 19(26); 20(27); 21-22(28); 24(47); 25(46); 26(29); 27(29); 28(30,35); 29-31(31); 32(45); 33(32); 34(33); 35(34); 36(36); 37(37,39); 38(40); 39(41); 40(43); 41(42); 42(43); and 43(44).
Proposed findings of fact 15, 23 and 44 are not supported by competent substantial evidence in the record.
COPIES FURNISHED:
Barbara B. Levin, Esquire Davis, Persson, Smith & Darnell 2033 Main Street, Suite 406
Sarasota, Florida 34237
William Lisch, Esquire
519 13th Street West Bradenton, Florida 34205
James A. Robinson, Esquire Mark F. Lapp, Esquire Southwest Florid Water
Management District 2379 Broad Street
Brooksville, Florida 34609-6899
Peter G. Hubbell Executive Director Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34609-6899
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
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AGENCY FINAL ORDER
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BEFORE THE GOVERNING BOARD OF THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
CITY OF BRADENTON, a
Florida municipality,
Petitioner,
OGC FILE NO. 06492
vs. DOAH CASE NO. 92-7161
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,
Respondent.
/
NOTICE OF ENTRY OF FINAL ORDER
Notice is hereby given that the attached Final Order (No. SWF-94-68) in the above-styled proceeding was entered by the Governing Board of the Southwest Florida Water Management District (District) on June 28, 1994, and was filed with the Agency Clerk and therefore rendered on June 30, 1994. This Notice is given and a copy of the attached Final Order mailed to the attorney or representative of record for each party in the proceeding as required by Section 120.59(4), Florida Statutes
In accordance with Section 120.59(4), F.S., each party is hereby informed that the following administrative or judicial review may be available:
A party to a proceeding who claims that an order of the District is inconsistent with the provisions and purposes of Chapter 373, F.S., may seek review of the order by the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 373.114, F.S., by filing a request for review with the Secretary of the Commission and by serving a copy on the Department of Environmental Protection and on any person named in such order within twenty
(20) days after the rendering of the order by the District.
A party who is adversely affected by final agency action may seek review of the action in the appropriate District Court of Appeal pursuant to Section 120.68, F.S., by filing a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, within thirty (30) days after the rendering of the final action by the District.
Any person who is substantially affected by a final order by the District with respect to a permit on the ground that the final agency action is an unreasonable exercise of the state's police power constituting a taking without just compensation may seek review in the circuit court in the judicial circuit in which the affected property is located by filing a petition for review in such circuit court within ninety (90) days of the rendering of such final order pursuant to Section 373.617, F.S.
PLEASE BE GOVERNED ACCORDINGLY.
Edward B. Helvenston General Counsel
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Entry of Final Order and attached Final Order have been sent by United States mail or hand-delivered to the following this 1st day of July, 1994:
Barbara B. Levin, Esquire William R. Lisch, Esquire Davis, Persson, Smith & Darnell 519 13th Street West
2033 Main Street, Suite 406 Bradenton, Florida 34205 Sarasota, Florida 34237 Attorney for Petitioner Attorney for Petitioner
James A. Robinson William R. Cave, Hearing Mark F. Lapp Officer
Southwest Florida Water Division of Administrative Management District Hearings
2379 Broad Street The DeSoto Building Brooksville, Florida 34609-6899 1230 Apalachee Parkway Attorneys for the District Tallahassee, Florida
32399-1550
Edward B. Helvenston
BEFORE THE GOVERNING BOARD OF THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
CITY OF BRADENTON,
Florida municipality,
Petitioner,
ORDER NO. SWF-94-68
vs. Case No. 92-7161
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,
Respondent.
/
FINAL ORDER
This cause was heard by the Governing Board of the Southwest Florida Water Management District (the District) pursuant to Section 120.57, Florida Statutes (F.S.), for the purpose of considering the Recommended Order of the Hearing Officer and the Exception filed by the District, and for the purpose of issuing a Final Order in the above-styled proceeding.
On May 31, 1994, the Hearing Officer submitted to all parties a Recommended Order, a copy of which is attached hereto and incorporated herein by reference as Exhibit "A". Pursuant to Section 120.57(1)(b)9, F.S., and Rule 40D-1.564, Florida Administrative Code, the parties were entitled to submit written exceptions to the Recommended Order within 15 days of the date of the Recommended Order. On June 14, 1994, the District timely filed an Exception to the Recommended Order. The City of Bradenton did not timely file any exceptions to the Recommended Order.
The Governing Board has reviewed the Recommended Order and the Exception thereto. Those preliminary portions of the Recommended Order regarding date and place of hearing, appearances entered at the hearing, Statement of the Issue and Preliminary Statement are hereby adopted and incorporated herein by reference.
FINDINGS OF FACT
The Governing Board hereby adopts and incorporates by reference the Findings of Fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The Governing Board hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order. Additionally, the Governing Board adopts the Exception filed by the District, and therefore makes the following additional conclusion of law:
Rule 40D-21.291(2)(c), F.A.C., requires that the alternative restrictions achieve a demand reduction at least equal to the level of demand reduction actually
experienced by the applicant as a result of water restrictions, or the level which would be achieved by the applicant through the reasonable enforcement of water restrictions, whichever is greater.
WHEREFORE, based on the foregoing Findings of Fact and Conclusions of Law, it is hereby ordered that the City of Bradenton's petition for variance from the lawn and landscape irrigation restrictions imposed under the Governing Board's Order 92-12, as amended, is DENIED.
DONE and ORDERED by the Governing Board of the Southwest Florida Water Management District this 28th day of June, 1994, in Brooksville, Hernando County, Florida.
By: Charles A. Black, Chairman
Attest: Sally Thompson, Secretary
Filed this 30th day of June, 1994.
Louise Rigsby Agency Clerk
COPIES FURNISHED TO:
Barbara B. Levin, Esquire Davis, Persson, Smith & Darnell 2033 Main Street, Suite 406
Sarasota, Florida 34237
William R. Lisch, Esquire
519 13th Street West Bradenton, Florida 34205
James A. Robinson, Esquire Mark F. Lapp, Esquire Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34609-6899
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AGENCY FINAL ORDER
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BEFORE THE GOVERNING BOARD OF THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
CITY OF BRADENTON,
Florida municipality,
Petitioner,
ORDER NO. SWF-94-68
vs. Case No. 92-7161
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,
Respondent.
/
FINAL ORDER
This cause was heard by the Governing Board of the Southwest Florida Water Management District (the District) pursuant to Section 120.57, Florida Statutes (F.S.), for the purpose of considering the Recommended Order of the Hearing Officer and the Exception filed by the District, and for the purpose of issuing a Final Order in the above-styled proceeding.
On May 31, 1994, the Hearing Officer submitted to all parties a Recommended Order, a copy of which is attached hereto and incorporated herein by reference as Exhibit "A". Pursuant to Section 120.57(1)(b)9, F.S., and Rule 40D-1.564, Florida Administrative Code, the parties were entitled to submit written exceptions to the Recommended Order within 15 days of the date of the Recommended Order. On June 14, 1994, the District timely filed an Exception to the Recommended Order. The City of Bradenton did not timely file any exceptions to the Recommended Order.
The Governing Board has reviewed the Recommended Order and the Exception thereto. Those preliminary portions of the Recommended Order regarding date and place of hearing, appearances entered at the hearing, Statement of the Issue and Preliminary Statement are hereby adopted and incorporated herein by reference.
FINDINGS OF FACT
The Governing Board hereby adopts and incorporates by reference the Findings of Fact set forth in the Recommended Order.
CONCLUSIONS OF LAW
The Governing Board hereby adopts and incorporates by reference the Conclusions of Law set forth in the Recommended Order. Additionally, the Governing Board adopts the Exception filed by the District, and therefore makes the following additional conclusion of law:
Rule 40D-21.291(2)(c), F.A.C., requires that the alternative restrictions achieve a demand reduction at least equal to the level of demand reduction actually experienced by the applicant as a result of water restrictions, or the level which would be achieved by the applicant through the reasonable enforcement of water restrictions, whichever is greater.
WHEREFORE, based on the foregoing Findings of Fact and Conclusions of Law, it is hereby ordered that the City of Bradenton's petition for variance from the lawn and landscape irrigation restrictions imposed under the Governing Board's Order 92-12, as amended, is DENIED.
DONE and ORDERED by the Governing Board of the Southwest Florida Water Management District this 28th day of June, 1994, in Brooksville, Hernando County, Florida.
By: Charles A. Black, Chairman
Attest: Sally Thompson, Secretary
Filed this 30th day of June, 1994.
Louise Rigsby Agency Clerk
COPIES FURNISHED TO:
Barbara B. Levin, Esquire Davis, Persson, Smith & Darnell 2033 Main Street, Suite 406
Sarasota, Florida 34237
William R. Lisch, Esquire
519 13th Street West Bradenton, Florida 34205
James A. Robinson, Esquire Mark F. Lapp, Esquire Southwest Florida Water
Management District 2379 Broad Street
Brooksville, Florida 34609-6899
================================================================= NOTICE OF ENTRY OF FINAL ORDER
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BEFORE THE GOVERNING BOARD OF THE SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT
CITY OF BRADENTON, a
Florida municipality,
Petitioner,
OGC FILE NO. 06492
vs. DOAH CASE NO. 92-7161
SOUTHWEST FLORIDA WATER MANAGEMENT DISTRICT,
Respondent.
/
NOTICE OF ENTRY OF FINAL ORDER
Notice is hereby given that the attached Final Order (No. SWF-94-68) in the above-styled proceeding was entered by the Governing Board of the Southwest Florida Water Management District (District) on June 28, 1994, and was filed with the Agency Clerk and therefore rendered on June 30, 1994. This Notice is given and a copy of the attached Final Order mailed to the attorney or representative of record for each party in the proceeding as required by Section 120.59(4), Florida Statutes
In accordance with Section 120.59(4), F.S., each party is hereby informed that the following administrative or judicial review may be available:
A party to a proceeding who claims that an order of the District is inconsistent with the provisions and purposes of Chapter 373, F.S., may seek review of the order by the Florida Land and Water Adjudicatory Commission (Commission) pursuant to Section 373.114, F.S., by filing a request for review with the Secretary of the Commission and by serving a copy on the Department of Environmental Protection and on any person named in such order within twenty
(20) days after the rendering of the order by the District.
A party who is adversely affected by final agency action may seek review of the action in the appropriate District Court of Appeal pursuant to Section 120.68, F.S., by filing a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, within thirty (30) days after the rendering of the final action by the District.
Any person who is substantially affected by a final order by the District with respect to a permit on the ground that the final agency action is an unreasonable exercise of the state's police power constituting a taking without just compensation may seek review in the circuit court in the judicial
circuit in which the affected property is located by filing a petition for review in such circuit court within ninety (90) days of the rendering of such final order pursuant to Section 373.617, F.S.
PLEASE BE GOVERNED ACCORDINGLY.
Edward B. Helvenston General Counsel
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing Notice of Entry of Final Order and attached Final Order have been sent by United States mail or hand-delivered to the following this 1st day of July, 1994:
Barbara B. Levin, Esquire William R. Lisch, Esquire Davis, Persson, Smith & Darnell 519 13th Street West
2033 Main Street, Suite 406 Bradenton, Florida 34205 Sarasota, Florida 34237 Attorney for Petitioner Attorney for Petitioner
James A. Robinson William R. Cave, Hearing Mark F. Lapp Officer
Southwest Florida Water Division of Administrative Management District Hearings
2379 Broad Street The DeSoto Building Brooksville, Florida 34609-6899 1230 Apalachee Parkway Attorneys for the District Tallahassee, Florida
32399-1550
Edward B. Helvenston
| Issue Date | Proceedings |
|---|---|
| Jul. 05, 1994 | Notice of Entry of Final Order; Final Order filed. |
| May 31, 1994 | Recommended Order sent out. CASE CLOSED. Hearing held 10/4,5 & 6/93. |
| Nov. 29, 1993 | Petitioner City of Bradenton`s Proposed Findings of Fact and Conclusions of Law filed. |
| Nov. 24, 1993 | Petitioner City of Bradenton`s Proposed Findings of Fact and Conclusions of Law w/cover ltr filed. |
| Nov. 24, 1993 | Respondent`s Notice of Filing or Proposed Recommended Order and Final Argument; (unsigned) Recommended Order; District`s Final Argument filed. |
| Nov. 22, 1993 | Order Granting Extension of Time for Submission of Proposed Recommended Orders sent out. |
| Nov. 17, 1993 | (joint) Stipulation filed. |
| Nov. 12, 1993 | Replacement Pages 11, 14 & Appendix E (Petitioner`s Exhibit No. 18) w/cover ltr filed. (From Barbara B. Levin) |
| Nov. 09, 1993 | Petitioner's Late Filed Exhibit No. 3 filed. |
| Nov. 02, 1993 | Transcript (Vols 1-7) filed. |
| Oct. 07, 1993 | Posthearing Order sent out. |
| Oct. 06, 1993 | CASE STATUS: Hearing Held. |
| Oct. 04, 1993 | Respondent`s Witness and Exhibits Lists filed. |
| Oct. 04, 1993 | Petitioner`s Notice of Disclosure of Witness List and List of Exhibits filed. (filed with hearing officer at Hearing) |
| Oct. 04, 1993 | Petitioner`s Notice of Disclosure of Witness List and List of Exhibits filed. |
| Sep. 30, 1993 | Petitioner`s Notice of Taking Deposition Duces Tecum filed. |
| Sep. 28, 1993 | Order Denying Motion to Stay Proceedings sent out. |
| Sep. 24, 1993 | Petitioner City of Bradenton`s Objection to Respondent`s Southwest Florida Water Management District`s Second Set of Interrogs. filed. |
| Sep. 24, 1993 | Respondent`s Motion to Stay Proceedings; Notice of Hearing on Respondent`s Motion to Stay Proceedings (set for 9-27-93; 9:30 am filed. |
| Sep. 24, 1993 | Notice of Taking Deposition Duces Tecum filed. |
| Sep. 13, 1993 | (Respondent) Notice of Taking Deposition Duces Tecum filed. |
| Sep. 10, 1993 | (SWFWMD) Notice of Taking Deposition Duces Tecum (4); Third Amended Notice of Taking Deposition Duces Tecum (1) filed. |
| Sep. 02, 1993 | Petitioner`s Second Amended Notice of Taking Deposition Duces Tecum; Petitioner`s Third Amended Notice of Taking Deposition Duces Tecum; Petitioner`s Notice of Taking Deposition Duces Tecum filed. |
| Aug. 30, 1993 | Respondent Southwest Florida Water Management District`s Notice of Service of Second Set of Interrogatories to Petitioner filed. |
| Aug. 10, 1993 | City of Bradenton, Florida Water Demand Reduction Plan for Issuance of Variance From the Southwest Florida Water Management District`s Modified Phase III Water Restrictions w/cover ltr filed. (From Barbara B. Levin) |
| Aug. 06, 1993 | Order of Continuance and Rescheduling Hearing sent out. (hearing rescheduled for Oct. 4-5, 1993; 11:00am; Bradenton) |
| Aug. 06, 1993 | Order Denying Motion to Dismiss sent out. |
| Aug. 03, 1993 | Second Amended Notice of Taking Deposition Duces Tecum; Amended Notice of Taking Deposition Duces Tecum filed. (From James A. Robinson) |
| Aug. 02, 1993 | (Petitioner) Notice of Service of Petitioner City of Bradenton's Water Demand Reduction Plan for Issuance of a Variance From the Southwest Florida Water Management District, Modified Phase III Water Restrictions, Governing Board Order no.92-12, As Amended |
| Aug. 02, 1993 | Petitioner`s Amended Notice of Taking Deposition Duces Tecum; Petitioner`s Second Amended Notice of Taking Deposition Duces Tecum filed. |
| Aug. 02, 1993 | (Respondent) Notice of Hearing on Respondent`s Motion to Dismiss filed. |
| Aug. 02, 1993 | Petitioner City of Bradenton`s Response in Opposition to Respondent`s Motion to Dismiss filed. |
| Aug. 02, 1993 | Amended Notice of Hearing (as to Location only) sent out. (hearing set for 8/16-17/93; 11:00am; Bradenton) |
| Jul. 28, 1993 | Respondent Southwest Florida Water Management District`s Motion to Dismiss filed. |
| Jul. 26, 1993 | Joint Stipulation for Release of Witnesses From Subpoena filed. |
| Jul. 23, 1993 | Order Granting Respondent`s Motion in Limine sent out. |
| Jul. 19, 1993 | (unsigned) Order Granting Respondent`s Motion in Limine filed. (From Mark F. Lapp) |
| Jul. 19, 1993 | Petitioner`s Amended Notice of Taking Deposition Duces Tecum (3) filed. |
| Jul. 12, 1993 | (Respondent) Amended Notice of Taking Deposition Duces Tecum filed. |
| Jul. 09, 1993 | Respondent`s Objection and Notice of Service of Answers to Petitioner City of Bradenton`s Second Set of Interrogatories filed. |
| Jul. 07, 1993 | (7) Petitioner`s Notice of Taking Deposition Duces Tecum filed. |
| Jul. 02, 1993 | (5) Notice of Taking Deposition Duces Tecum; (2) Notice of Taking Deposition (2); Notice of Substitution of Counsel filed. (From James A. Robinson) |
| Jun. 23, 1993 | Notice of Hearing on Respondent`s Motion in Limine (From James A. Robinson) filed. |
| Jun. 16, 1993 | Second Amended Notice of Hearing sent out. (hearing set for 8/16-17/93; 10:00am on 1st day, 9:00am on second; Bradenton) |
| Jun. 07, 1993 | Notice of Service of Petitioner City of Bradenton`s Second Set of Interrogatories to Respondent Southwest Florida Water Management District filed. |
| May 24, 1993 | Respondent Southwest Florida Water Management District`s Motion in Limine filed. |
| May 03, 1993 | Respondent Southwest Florida Water Management District`s Notice of Service of Supplemental Answer to Petitioner City of Bradenton`s First Set of Interrogatories to Respondent filed. |
| Apr. 19, 1993 | Notice of Serving Petitioner City of Bradenton`s Answers to Respondent Southwest Florida Water Management`s First Set of Interrogatories, Southwest Florida Water Management District filed. |
| Apr. 19, 1993 | Petitioner City of Bradenton`s Response to Respondent Southwest Florida Water Management `s First Request to Produce filed. |
| Apr. 06, 1993 | Second Notice of Hearing sent out. (hearing set for August 16, 1993 at 10:00am and at 9:00am on August 17, 1993; Bradenton) |
| Apr. 02, 1993 | Respondent`s Response to Petitioner City of Bradenton`s First Request to Produce to Respondent Southwest Florida Water Management District; Respondent`s Objection and Notice of Service of Answers to Interrogatories filed. |
| Apr. 02, 1993 | (Respondent) Response to Order of Continuance and Status Report filed. |
| Mar. 18, 1993 | Order of Continuance and Status Report sent out. (hearing date to be rescheduled at a later date; parties to file status report by 4-2-93) |
| Mar. 18, 1993 | Joint Motion for Continuance filed. |
| Mar. 12, 1993 | Letter to WRC from Linda M. Jacobus (re: substitution of counsel) filed. |
| Mar. 12, 1993 | Respondent Southwest Florida Water Management District`s Certificate of Service to William R. Lisch and Alan H. Prather, Attorneys for the Petitioner City of Bradenton, of Notice of Service of First Set of Interrogatories, First Set of Interrogatories and |
| Mar. 10, 1993 | Respondent Southwest Florida Water Management District`s Notice of Service of First Set of Interrogatories to Petitioner City of Bradenton;Respondent Southwest Florida Water Management District`s First Request to Produce to Respondent City of Bradenton r |
| Feb. 26, 1993 | Notice of Service of Petitioner City of Bradenton`s First Set of Interrogatories and First Request for Produce to Respondent Southwest Florida Water Management District filed. |
| Feb. 23, 1993 | Notice of Appearance of Counsel filed. (From Barbara B. Levin) |
| Dec. 18, 1992 | Notice of Hearing sent out. (hearing set for April 21-22, 1993; 9:00am; Bradenton) |
| Dec. 17, 1992 | Joint Response to Initial Order filed. |
| Dec. 07, 1992 | Initial Order issued. |
| Dec. 04, 1992 | Agency referral letter; Petition for Formal Administrative Hearing; Supporting Documents; Agency Action letter filed. |
| Nov. 30, 1992 | Agency Referral letter filed. |
| Nov. 30, 1992 | Notice of Referral filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 30, 1994 | Agency Final Order | |
| May 31, 1994 | Recommended Order | Insufficient evidence to show that petitioner met the criteria for variance from water restrictions imposed under rule 40D-21.291(2)(c). |
