STATE OF FLORIDA

SUWANNEE RIVER WATER MANAGEMENT DISTRICT SEVEN SPRINGS WATER COMPANY,

Petitioner,

/

FINAL ORDER

This case comes to the Suwannee River Water Management District (the “District”) upon a Recommended Order (“RO”) from Administrative Law Judge, G. W. CHISENHALL (the “ALJ”) with the State of Florida, Division of Administrative Hearings (“DOAH”). A copy of the RO is attached as Exhibit A. The RO was submitted on January 20, 2021, following a formal administrative hearing held on October 19-21, 2020.

Pursuant to Section 120.57(1)(k), Florida Statutes (F.S.) and Rule 28-106.217, Florida Administrative Code, (F.A.C.), the parties were allowed to file exceptions to the Recommended Order. The District timely filed exceptions to the RO. The Petitioner, Seven Springs Water Company (“Seven Springs”) did not file exceptions to the RO. Seven Springs filed Responses to District's Exceptions.

The matter is now before the District's Governing Board, for final agency action: entry of a final order. In the RO, the ALJ recommended that the District render a Final Order granting permit No. 2-041-218202-3 to Seven Springs. The RO did not recommend conditions for the permit.

STANDARD OF REVIEW

Findings of Fact

Section 120.57(1)(1), F.S., prescribes that an agency reviewing a recommended order may not reject or modify the findings of fact of the ALJ, “unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based on competent substantial evidence.” See also, Charlotte Cty. v. IMC Phosphates Co., 18 So. 3d 1079, 1082 (Fla. 2d DCA 2009); Wills v. Fla. Elections Comm'n, 955 So. 2d 61, 62 (Fla. 1st DCA 2007). The term “competent substantial evidence” does not relate to the quality, character, convincing power, probative value or weight of the evidence. Rather,

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Filed February 24, 2021 1:31 PM Division of Administrative Hearings

“competent substantial evidence” refers to the existence of some evidence as to each essential element and as to its admissibility under legal rules of evidence. See e.g., Scholastic Book Fairs, Inc. v. Unemployment Appeals Comm'n, 671 So. 2d 287, 289 n.3 (Fla. 5th DCA 1996); Nunez v. Nunez, 29 So. 3d 1191, 1192 (Fla. 5th DCA 2010).

A reviewing agency may not reweigh the evidence presented at a DOAH final hearing, attempt to resolve conflicts therein, or judge the credibility of witnesses. See, e.g., Rogers v.

Dept of Health, 920 So. 2d 27, 30 (Fla. 1st DCA 2005); Belle au v. Dep't of Envtl. Prot., 695 So. 2d 1305, 1307 (Fla. 1st DCA 1997); Dunham v. Highlands Cty. School Bd., 652 So. 2d 894, 896 (Fla. 2d DCA 1995). If there is competent substantial evidence to support an ALJ's findings of fact, it is irrelevant that there may also be competent substantial evidence supporting a contrary finding. See, e.g., Arand Constr. Co. v. Dyer, 592 So. 2d 276, 280 (Fla. 1st DCA 1991); Conshor, Inc. v. Roberts, 498 So. 2d 622, 623 (Fla. 1st DCA 1986).

The ALJ's decision to accept the testimony of one expert witness over that of another expert is an evidentiary ruling that cannot be altered by a reviewing agency, absent a complete lack of any competent substantial evidence of record supporting this decision. See, e.g., Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co., 18 So. 3d 1079, 1088 (Fla. 2d DCA 2009); Collier Med. Ctr. v. State. Dep't of HRS, 462 So. 2d 83, 85 (Fla. 1st DCA 1985); Fla. Chapter of Sierra Club v. Orlando Utils. Comm 436 So. 2d 383, 389 (Fla. 5th DCA 1983).

If there is competent substantial evidence to support the findings of fact in the record, the agency may not reject them, substitute its findings, or make new findings. Packer v. Orange County School Bd., 881 So. 2d 1204, 1207 (Fla. 5th DCA 2004) Further, the agency is not allowed to make independent or supplemental findings of fact, even on issues about which the ALJ failed to make any findings. Florida Power & Light Co. v. State, 693 So. 2d 1025, 1026- 1027 (Fla. 1st DCA 1997) (“It is not proper for the agency to make supplemental findings of fact on an issue about which the hearing officer made no findings.”)

Conclusions of Law

Section 120.57(1)(1), F.S., authorizes an agency to reject or modify an ALJ's conclusions of law and interpretations of administrative rules “over which it has substantive jurisdiction.” See Barfield v. Dep't of Health, 805 So. 2d 1008, 1012 (Fla. 1st DCA 2001); L.B. Bryan & Co. v. Sch. Bd. of Broward Cty., 746 So. 2d 1194, 1197 (Fla. 1st DCA 1999); Deep Lagoon Boat Club. Ltd. v. Sheridan, 784 So. 2d 1140 1141-142 (Fla. 2d DCA 2001). However, the agency should not label what is essentially an ultimate factual determination as a “conclusion of law” to modify or overturn what it may view as an unfavorable finding of fact. See, e.g., Stokes v. State, Bd. of Prof'l Eng'rs, 952 So. 2d 1224, 1225 (Fla. 1st DCA 2007). Furthermore, agency interpretations of statutes and rules within their regulatory jurisdiction do not have to be the only reasonable interpretations. It is enough if such agency interpretations are “permissible” ones. See, e.g., Suddath Van Lines, Inc. v. Dep't of Envtl. Prot., 668 So. 2d 209, 212 (Fla. 1st DCA 1996).

RULINGS ON EXCEPTIONS

In reviewing a recommended order and any written exceptions, the agency's final order “shall include an explicit ruling on each exception.” Section 120.57(1)(k), F.S. The agency, however, need not rule on an exception that “does not clearly identify the disputed portion of the recommended order by page number or paragraph, that does not identify the legal basis for the exception, or that does not include appropriate and specific citations to the record.” Id.

A party that files no exceptions to certain findings of fact “has thereby expressed its agreement with, or at least waived any objection to, those findings of fact.” Envtl. Coal, of Fla., Inc. v.

Broward Cty., 586 So. 2d 1212, 1213 (Fla. 1st DCA 1991); see also Colonnade Med. Ctr., Inc. v. State of Fla., Agency for Health Care Admin., 847 So. 2d 540, 542 (Fla. 4th DCA 2003).

However, an agency head reviewing a recommended order is free to modify or reject any erroneous conclusions of law over which the agency has substantive jurisdiction, even when exceptions are not filed. Section 120.57(1)(1), F.S.; Barfield, 805 So. 2d at 1012; Fla. Pub. Emp. Council, v. Daniels, 646 So. 2d 813, 816 (Fla. 1st DCA 1994).

RULINGS ON THE DISTRICT’S EXCEPTIONS

1. The District’s Exception to RO paragraph 8.

   
   

   The District asserts that while RO paragraph 8 is correct that Seven Springs identified itself as a “bulk water provider to the adjacent bottled water facility” in its application, Chapter 373, Fla. Stat., District Rule Chapter 40B-2, F.A.C., and the District’s Applicant’s Handbook do not recognize (or even mention) such a use, and, pursuant to Chapter 373, Fla. Stat., Chapter 40B-2, F.A.C., and the Applicant’s Handbook, such a use does not exist (Joint Ex. 1., Tr. 393:20-24, 394:3-10, 500:17-25, 501:1-6, 561:4-25,

   562:1-3). Since there is no definition of “bulk water” or “bulk water provider” in Chapter 373, Fla. Stat., Chapter 40B-2, F.A.C., or the Applicant’s Handbook – the Application was processed under the statutes and rules applicable to a Beverage Processing Use (Tr. 561:4-25, 562:1-3), pursuant to which Seven Springs’ application was recommended for denial.

   
   

   Ruling

   
   

   This exception does not assert that a finding of fact is not based upon competent substantial evidence or that a proceedings upon which a finding of fact is based did not comply with essential requirements of law. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s finding of fact. Further, this exception does not assert that the ALJ erred concerning a conclusion of law over which the District has substantive jurisdiction or an interpretation of an administrative rule over which the District has substantive jurisdiction. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s conclusions of law or interpretation of of administrative rule.

   
   

   Accordingly, the exception is denied.

   
   

2. The District’s Exception to RO paragraph 10.

   
   

   The District asserts that only part of the first request for additional information (“RAI”) is quoted in RO paragraph 10. The entire first request for additional information (“RAI”) was introduced into evidence during the formal administrative hearing held on October 19 through 21, 2020 (Joint Ex. 2).

   
   

   Ruling

   
   

   This exception does not assert that a finding of fact is not based upon competent substantial evidence or that a proceedings upon which a finding of fact is based did not comply with essential requirements of law. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s finding of fact. Further, this exception does not assert that the ALJ erred concerning a conclusion of law over which the District has substantive jurisdiction or an interpretation of an administrative rule over which the District has substantive jurisdiction. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s conclusions of law or interpretation of of administrative rule.

   
   

   Accordingly, the exception is denied.

   
   

3. The District’s Exception to RO paragraph 11.

   
   

   The District asserts that only part of the first request for additional information (“RAI”) is quoted in RO paragraph 11. The entire first request for additional information (“RAI”) was introduced into evidence during the formal administrative hearing held on October 19 through 21, 2020 (Joint Ex. 2).

   
   

   Ruling

   
   

   This exception does not assert that a finding of fact is not based upon competent substantial evidence or that a proceedings upon which a finding of fact is based did not comply with essential requirements of law. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s finding of fact. Further, this exception does not assert that the ALJ erred concerning a conclusion of law over which the District has substantive jurisdiction or an interpretation of an administrative rule over which the District has substantive jurisdiction. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s conclusions of law or interpretation of of administrative rule.

   
   

   Accordingly, the exception is denied.

   
   

4. The District’s Exception to RO paragraph 15.

   
   

   The District asserts that only part of the second RAI is quoted in RO paragraph 15. The entire second RAI was introduced into evidence during the formal administrative hearing held on October 19 through 21, 2020 (Joint Ex. 4).

   
   

   Ruling

   
   

   This exception does not assert that a finding of fact is not based upon competent substantial evidence or that a proceedings upon which a finding of fact is based did not comply with essential requirements of law. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s finding of fact. Further, this exception does not assert that the ALJ erred concerning a conclusion of law over which the District has substantive jurisdiction or an interpretation of an administrative rule over which the District has substantive jurisdiction. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s conclusions of law or interpretation of of administrative rule.

   
   

   Accordingly, the exception is denied.

   
   

5. The District’s Exception to RO paragraph 18.

   
   

   The District asserts that only part of the third RAI is quoted in RO paragraph 18. The entire third RAI was introduced into evidence during the formal administrative hearing held on October 19 through 21, 2020 (Joint Ex. 8).

   
   

   Ruling

   
   

   This exception does not assert that a finding of fact is not based upon competent substantial evidence or that a proceedings upon which a finding of fact is based did not comply with essential requirements of law. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s finding of fact. Further, this exception does not assert that the ALJ erred concerning a conclusion of law over which the District has substantive jurisdiction or an interpretation of an administrative rule over which the District has substantive jurisdiction. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s conclusions of law or interpretation of of administrative rule.

   
   

   Accordingly, the exception is denied.

   
   

6. The District’s Exception to RO paragraph 25.

   
   

   The District asserts that only part of the Zwanka memorandum is quoted in RO paragraph

   25. The entire Zwanka memorandum was introduced into evidence during the formal administrative hearing held on October 19 through 21, 2021 (Joint Ex. 10).

   
   

   Ruling

   
   

   This exception does not assert that a finding of fact is not based upon competent substantial evidence or that a proceedings upon which a finding of fact is based did not comply with essential requirements of law. Therefore the exception cannot be the basis

   
   

   for a rejection or modification of one of the RO’s finding of fact. Further, this exception does not assert that the ALJ erred concerning a conclusion of law over which the District has substantive jurisdiction or an interpretation of an administrative rule over which the District has substantive jurisdiction. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s conclusions of law or interpretation of of administrative rule.

   
   

   Accordingly, the exception is denied.

   
   

7. The District’s Exception to RO paragraph 26.

   
   

   The District asserts that only part of the staff report is quoted in RO paragraph 26. The entire staff report was introduced into evidence during the formal administrative hearing held on October 19 through 21, 2020 (Joint Ex. 10).

   
   

   Ruling

   
   

   This exception does not assert that a finding of fact is not based upon competent substantial evidence or that a proceedings upon which a finding of fact is based did not comply with essential requirements of law. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s finding of fact. Further, this exception does not assert that the ALJ erred concerning a conclusion of law over which the District has substantive jurisdiction or an interpretation of an administrative rule over which the District has substantive jurisdiction. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s conclusions of law or interpretation of of administrative rule.

   
   

   Accordingly, the exception is denied.

   
   

8. The District’s Exception to RO paragraph 29.

   
   

   The District asserts that while part of the Order partially granting Seven Springs’ Motion in Limine is accurately quoted, the Order is legally incorrect for the reasons set forth in

   1. Respondent’s Response to Petitioner’s Motion in Limine filed on June 25, 2020, in DOAH Case No. 20-1329 and (2) paragraphs 88 through 98 of the DISTRICT’s Proposed Recommended Order filed on December 18, 2020, in DOAH Case No. 20- 3581.

      
      

      Ruling

      
      

      For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, this exception is, under protest, denied.

      
      

9. The District’s Exception to RO paragraph 33.

   
   

   The District asserts that only part of the comments of the DISTRICT Governing Board are quoted in RO paragraph 33. The entire transcript of the August 11, 2020, public hearing was introduced into evidence during the formal administrative hearing held on October 19 through 21, 2020 (SS Ex. 15).

   
   

   Ruling

   
   

   This exception does not assert that a finding of fact is not based upon competent substantial evidence or that a proceedings upon which a finding of fact is based did not comply with essential requirements of law. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s finding of fact. Further, this exception does not assert that the ALJ erred concerning a conclusion of law over which the District has substantive jurisdiction or an interpretation of an administrative rule over which the District has substantive jurisdiction. Therefore the exception cannot be the basis for a rejection or modification of one of the RO’s conclusions of law or interpretation of of administrative rule.

   
   

   Accordingly, the exception is denied.

   
   

10. The District’s Exception to RO paragraph 38.

    
    

    The District asserts that while that part of Seven Springs’ response to the DISTRICT’s Motion to Amend is accurately quoted, the response is legally incorrect for the reasons set forth in (1) the DISTRICT’s Motion to Amend Grounds for Denial filed on August 14, 2020, in DOAH Case No. 20-3581; (2) the DISTRICT’s Reply to Petitioner’s Response to the District’s Motion to Amend Grounds for Denial filed on September 4, 2020 in DOAH Case No. 3581; and (3) paragraphs 88 through 98 of the DISTRICT’s Proposed Recommended Order filed on December 18, 2020, in DOAH Case No. 20- 3581.

    
    

    Ruling

    
    

    For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, this exception is, under protest, denied.

    
    

11. The District’s Exception to RO paragraph 40.

    
    

    The District asserts that while that part of the Administrative Law Judge’s Order issued on September 16, 2020 is accurately quoted, the Order is legally incorrect for the reasons set forth in (1) the DISTRICT’s Motion to Amend Grounds for Denial filed on August 14, 2020, in DOAH Case No. 20-3581; (2) the DISTRICT’s Reply to Petitioner’s Response to the District’s Motion to Amend Grounds for Denial filed on September 4, 2020 in DOAH Case No. 3581; and (3) paragraphs 88 through 98 of the DISTRICT’s Proposed Recommended Order filed on December 18, 2020, in DOAH Case No. 20- 3581.

    
    

    Ruling

    
    

    For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, this exception is, under protest, denied.

    
    

12. The District’s Exception to RO paragraph 42.

    
    

    The District asserts that while that part of the Administrative Law Judge’s Order issued on September 25, 2020 denying the DISTRICT’s Motion for Reconsideration is accurately quoted, the Order is legally incorrect for the reasons set forth in (1) the DISTRICT’s Motion to Amend Grounds for Denial filed on August 14, 2020, in DOAH Case No. 20-3581; (2) the DISTRICT’s Reply to Petitioner’s Response to the District’s Motion to Amend Grounds for Denial filed on September 4, 2020 in DOAH Case No.

    3581; (3) the DISTRICT’s Motion for Reconsideration of Order Denying Motion to Amend filed on September 21, 2020, in DOAH Case No. 20-3581; and (4) paragraphs 88 through 98 of the DISTRICT’s Proposed Recommended Order filed on December 18, 2020, in DOAH Case No. 20-3581.

    
    

    Ruling

    
    

    For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, this exception is, under protest, denied.

    
    

13. The District’s Exception to RO paragraph 44.

    
    

    The District asserts that while that part of the Seven Springs response is accurately quoted, the response is legally incorrect for the reasons set forth in (1) the DISTRICT’s Second Motion in Limine filed on September 28, 2020, in DOAH Case No. 20-3581 and

    (2) paragraphs 88 through 98 of the DISTRICT’s Proposed Recommended Order filed on December 18, 2020, in DOAH Case No. 20-3581.

    
    

    Ruling

    
    

    For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, this exception is, under protest, denied.

    
    

14. The District’s Exception to RO paragraphs 47, 48 and 49.

    
    

    The District asserts that these findings of fact were not based upon competent substantial evidence. As of the date of the formal administrative hearing, only one beverage processing product line was fully operational at the High Springs facility and the second line was being renovated and, as testified to by Seven Springs’ expert witness Adam Thibodeau, P.E., is not always operational (Tr. 666:16-20). Additionally, after the conclusion of the final hearing in this matter, Nestle Waters North America, Inc. (“NWNA”), which owns and operates the High Springs plant (RO paragraphs 5, 14 and

    
    

    19), applied for and was issued Public Water System permit no. 0395114-001-WC (the “PWS Permit”) by the Florida Department of Environmental Protection (“FDEP”).

    Neither NWNA nor Seven Springs provided any notice of the application or the PWS Permit to the DISTRICT. The PWS Permit allows NWNA to refurbish an existing 6 inch well located adjacent to the High Springs plant for a water system to provide water to the High Springs plant. The PWS Permit provides that the permitted maximum daily capacity for this water system will be 100,000 gallons per day (gpd) or 0.100 million gallons per day (mgd). The application for the PWS Permit provides that the water system is to provide water to the High Springs plant for non-bottling uses. However, all of these non-bottling uses of water were considered by the Administrative Law Judge (ALJ) in these proceedings and make up 0.110 mgd of the allocation of 0.954 mgd approved by the ALJ in the RO (see RO paragraph 51). Accordingly, the 0.954 mgd allocation approved by the ALJ for the instant water use permit should be reduced by the permitted maximum daily capacity for the water system approved in the PWS Permit to 0.854 mgd (0.954 mgd – 0.100 mgd = 0.854 mgd). A true and correct copy of the PWS Permit is attached hereto as Exhibit 1, and a true and correct copy of NWNA’s application for the PWS Permit is attached hereto as Exhibits 2A, 2B, and 2C.

    
    

    Ruling

    
    

    Concerning the exceptions raised with regard to the PWS Permit, the PWS permit was not part of the record in this case and therefore may not be considered by the District. Lawnwood Medical Center, Inc. v. Agency for Health Care Admin., 678 So. 2d 421, 425 (Fla. 1st DCA 1996) (“Chapter 120, Florida Statutes, directs an agency to review a recommended order based on the record that was before the hearing officer. An agency is not authorized . . . to reopen the record, receive additional evidence and make additional findings.”) Therefore, the exceptions related to the PWS Permit are denied.

    
    

    The remainder of the exceptions concern findings of fact. There is not a complete lack of competent substantial evidence in the record supporting these findings of fact. Therefore the remaining exceptions are denied.

    
    

15. The District’s Exception to RO paragraph 51.

    
    

    The District asserts that based on a “raw data work up,” the DISTRICT’s expert, Tom Rutledge, testified that an acceptable water allocation is 0.892 mgd or 0.862 mgd on an annual average basis, not the 0.984 mgd requested by Seven Springs and approved in the Recommended Order (Tr. 648:13-25, 649:1-2). Additionally, the actual use of water at the High Springs facility has always been significantly less that the allocation presently requested, 0.984 mgd (Tr. 201:15-21; Joint Ex. 10, p. 3). Seven Springs has reported the actual use of water at the High Springs facility for the years 1995 through 2019, and the highest reported actual use of water was for 2006, which showed an average annual water use of 0.3874 mgd, significantly less than the 0.984 mgd requested allocation (Joint Ex. 10, p. 3, Tr. 428:24-25, 429:1-3). Hence, the 0.984 mgd request should not be approved. Additionally, after the conclusion of the final hearing in this matter, Nestle Waters North

    
    

    America, Inc. (“NWNA”), which owns and operates the High Springs plant (RO paragraphs 5, 14 and 19), applied for and was issued Public Water System permit no. 0395114-001-WC (the “PWS Permit”) by the Florida Department of Environmental Protection (“FDEP”). Neither NWNA nor Seven Springs provided any notice of the application or the PWS Permit to the DISTRICT. The PWS Permit allows NWNA to refurbish an existing 6 inch well located adjacent to the High Springs plant for a water system to provide water to the High Springs plant. The PWS Permit provides that the permitted maximum daily capacity for this water system will be 100,000 gallons per day (gpd) or 0.100 million gallons per day (mgd). The application for the PWS Permit provides that the water system is to provide water to the High Springs plant for non- bottling uses. However, all of these non-bottling uses of water were considered by the Administrative Law Judge (ALJ) in these proceedings and make up 0.110 mgd of the allocation of 0.954 mgd approved by the ALJ in the RO (see RO paragraph 51).

    Accordingly, the 0.954 mgd allocation approved by the ALJ for the instant water use permit should be reduced by the permitted maximum daily capacity for the water system approved in the PWS Permit to 0.854 mgd (0.954 mgd – 0.100 mgd = 0.854 mgd). A true and correct copy of the PWS Permit is attached hereto as Exhibit 1, and a true and correct copy of NWNA’s application for the PWS Permit is attached hereto as Exhibits 2A, 2B, and 2C.

    
    

    Ruling

    
    

    Concerning the exceptions raised with regard to the PWS Permit, the PWS permit was not part of the record in this case and therefore may not be considered by the District. Lawnwood Medical Center, Inc. v. Agency for Health Care Admin., 678 So. 2d 421, 425 (Fla. 1st DCA 1996) (“Chapter 120, Florida Statutes, directs an agency to review a recommended order based on the record that was before the hearing officer. An agency is not authorized . . . to reopen the record, receive additional evidence and make additional findings.”) Therefore, the exceptions related to the PWS Permit are denied.

    
    

    The remainder of the exceptions concern findings of fact. There is not a complete lack of competent substantial evidence in the record supporting these findings of fact. Therefore the remaining exceptions are denied.

    
    

16. The District’s Exception to RO paragraph 52.

    
    

    The District asserts that based on a “raw data work up,” the DISTRICT’s expert, Tom Rutledge, testified that an acceptable water allocation is 0.892 mgd or 0.862 mgd on an annual average basis, not the 0.984 mgd requested by Seven Springs and approved in the Recommended Order (Tr. 648:13-25, 649:1-2). Additionally, after the conclusion of the final hearing in this matter, Nestle Waters North America, Inc. (“NWNA”), which owns and operates the High Springs plant (RO paragraphs 5, 14 and 19), applied for and was issued Public Water System permit no. 0395114-001-WC (the “PWS Permit”) by the Florida Department of Environmental Protection (“FDEP”). Neither NWNA nor Seven Springs provided any notice of the application or the PWS Permit to the DISTRICT. The

    
    

    PWS Permit allows NWNA to refurbish an existing 6 inch well located adjacent to the High Springs plant for a water system to provide water to the High Springs plant. The PWS Permit provides that the permitted maximum daily capacity for this water system will be 100,000 gallons per day (gpd) or 0.100 million gallons per day (mgd). The application for the PWS Permit provides that the water system is to provide water to the High Springs plant for non-bottling uses. However, all of these non-bottling uses of water were considered by the Administrative Law Judge (ALJ) in these proceedings and make up 0.110 mgd of the allocation of 0.954 mgd approved by the ALJ in the RO (see RO paragraph 51). Accordingly, the 0.954 mgd allocation approved by the ALJ for the instant water use permit should be reduced by the permitted maximum daily capacity for the water system approved in the PWS Permit to 0.854 mgd (0.954 mgd – 0.100 mgd = 0.854 mgd). A true and correct copy of the PWS Permit is attached hereto as Exhibit 1, and a true and correct copy of NWNA’s application for the PWS Permit is attached hereto as Exhibits 2A, 2B, and 2C.

    
    

    Ruling

    
    

    Concerning the exceptions raised with regard to the PWS Permit, the PWS permit was not part of the record in this case and therefore may not be considered by the District. Lawnwood Medical Center, Inc. v. Agency for Health Care Admin., 678 So. 2d 421, 425 (Fla. 1st DCA 1996) (“Chapter 120, Florida Statutes, directs an agency to review a recommended order based on the record that was before the hearing officer. An agency is not authorized . . . to reopen the record, receive additional evidence and make additional findings.”) Therefore, the exceptions related to the PWS Permit are denied.

    
    

    The remainder of the exceptions concern findings of fact. There is not a complete lack of competent substantial evidence in the record supporting these findings of fact. Therefore the remaining exceptions are denied.

    
    

17. The District’s Exception to RO paragraph 53.

    
    

    The District asserts that this finding of fact as to the physical capacity of the High Springs plant is legally irrelevant because Seven Springs does not have the legal right to conduct the water use at the High Springs plant. Such right must be demonstrated through property ownership or other property interest, such as a lease, at the project site (SRWMD Water Use Permitting Applicant’s Handbook §§2.1.1. and 2.3.1). It is undisputed that Seven Springs has no legal right to process or bottle the water at the High Springs plant, since it does not own or have other legal control of the plant or the real property on which the High Springs plant is located (Tr. 270:7-10, 271:12-23, 425:8-12, Joint Ex. 10, p. 2, SS Ex. 36 [Amended Memo. of Agmt.], Joint Ex. 7a, p. 1, Tr. 156:6- 10, 552:7-10, 552:16-25, 553:1-3, Joint Ex. 7a, p. 1, Joint Ex. 10, p. 2, Joint Ex. 7a, p.

    1, SS Ex. 36 [Amended Memo. of Agmt., which states “…the Contract provides for the sale and purchase of water between the parties for bottling at the High Springs Plant, a water bottling plant recently purchased and operated by (Nestle Waters North America)…”], Tr. 425:8-12). In the RO, the Administrative Law Judge also finds that

    
    

    Seven Springs does not own or control the High Springs plant (RO paragraph 5 [“After AquaPenn, the High Springs plant was owned and operated by Dannon, Coca-Cola, Ice River, and now Nestle Water of North America”]; paragraph 14; paragraph 19 [recounting that Seven Springs responded to the third RAI by stating “this MOA provides that NWNA and the applicant have entered into a contract in which NWNA is obligated to exclusively purchase spring water from the applicant to serve the NWNA High Springs Plant facility … which NWNA owns and operates”]; paragraph 68 [“Because Seven Springs does not own or control the High Springs facility…”];and paragraph 72 [“Seven Springs does not own or control either of Nestle’s bottling facilities”]. Additionally, after the conclusion of the final hearing in this matter, Nestle Waters North America, Inc. (“NWNA”), which owns and operates the High Springs plant (RO paragraphs 5, 14 and 19), applied for and was issued Public Water System permit no. 0395114-001-WC (the “PWS Permit”) by the Florida Department of Environmental Protection (“FDEP”). Neither NWNA nor Seven Springs provided any notice of the application or the PWS Permit to the DISTRICT. The PWS Permit allows NWNA to refurbish an existing 6 inch well located adjacent to the High Springs plant for a water system to provide water to the High Springs plant. The PWS Permit provides that the permitted maximum daily capacity for this water system will be 100,000 gallons per day (gpd) or 0.100 million gallons per day (mgd). The application for the PWS Permit provides that the water system is to provide water to the High Springs plant for non- bottling uses. However, all of these non-bottling uses of water were considered by the Administrative Law Judge (ALJ) in these proceedings and make up 0.110 mgd of the allocation of 0.954 mgd approved by the ALJ in the RO (see RO paragraph 51).

    Accordingly, the 0.954 mgd allocation approved by the ALJ for the instant water use permit should be reduced by the permitted maximum daily capacity for the water system approved in the PWS Permit to 0.854 mgd (0.954 mgd – 0.100 mgd = 0.854 mgd). A true and correct copy of the PWS Permit is attached hereto as Exhibit 1, and a true and correct copy of NWNA’s application for the PWS Permit is attached hereto as Exhibits 2A, 2B, and 2C.

    
    

    Ruling

    
    

    Concerning the exceptions raised with regard to the PWS Permit, the PWS permit was not part of the record in this case and therefore may not be considered by the District. Lawnwood Medical Center, Inc. v. Agency for Health Care Admin., 678 So. 2d 421, 425 (Fla. 1st DCA 1996) (“Chapter 120, Florida Statutes, directs an agency to review a recommended order based on the record that was before the hearing officer. An agency is not authorized . . . to reopen the record, receive additional evidence and make additional findings.”) Therefore, the exceptions related to the PWS Permit are denied.

    
    

    The remainder of the exceptions concern Seven Springs’ failure to meet the requirements of §§ 2.1.1 and 2.3.1 of the District’s Applicant’s Handbook requiring ownership and control of the High Springs plant. For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, these exceptions are, under protest, denied.

    
    

18. The District’s Exception to RO paragraph 65.

    
    

    The District asserts that the issues of ownership and control of the project site and related matters pursuant to SRWMD Water Use Permitting Applicant’s Handbook §§2.1.1. and

    2.3.1 was properly raised below and should have been addressed by the Administrative Law Judge in the Recommended Order (See paragraph 19 of these exceptions). It is undisputed that Seven Springs has no legal right to process or bottle the water at the High Springs plant, since it does not own or have other legal control of the plant or the real property on which the High Springs plant is located (Tr. 270:7-10, 271:12-23, 425:8-12, Joint Ex. 10, p. 2, SS Ex. 36 [Amended Memo. of Agmt.], Joint Ex. 7a, p. 1, Tr. 156:6- 10, 552:7-10, 552:16-25, 553:1-3, Joint Ex. 7a, p. 1, Joint Ex. 10, p. 2, Joint Ex. 7a, p. 1, SS Ex. 36 [Amended Memo. of Agmt., which states “…the Contract provides for the sale and purchase of water between the parties for bottling at the High Springs Plant, a water bottling plant recently purchased and operated by (Nestle Waters North America)…”], Tr. 425:8-12). In the RO, the Administrative Law Judge also finds that Seven Springs does not own or control the High Springs plant (RO paragraph 5 [“After AquaPenn, the High Springs plant was owned and operated by Dannon, Coca-Cola, Ice River, and now Nestle Water of North America”]; paragraph 14; paragraph 19 [recounting that Seven Springs responded to the third RAI by stating “this MOA provides that NWNA and the applicant have entered into a contract in which NWNA is obligated to exclusively purchase spring water from the applicant to serve the NWNA High Springs Plant facility … which NWNA owns and operates”]; paragraph 68 [“Because Seven Springs does not own or control the High Springs facility…”]; and paragraph 72 [“Seven Springs does not own or control either of Nestle’s bottling facilities”].

    
    

    Ruling

    
    

    For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, these exceptions are, under protest, denied.

    
    

19. The District’s Exception to RO paragraph 68.

    
    

    The District asserts that the ALJ erred as a matter of law in determining that the District was not allowed to raise the issue of whether Seven Springs has the legal right to conduct the water use at the High Springs plant as required by the District’s Water Use Permitting Applicant’s Handbook §§2.1.1. and 2.3.1. The ALJ found that the District was prohibited from raising such issues because these issues had not been raised in a request for additional information pursuant to Section 120.60, F.S.

    
    

    Ruling

    
    

    The District is correct that the ALJ erred in his construction of Section 120.60, F.S. This is because the failure to comply with Section 120.60, F.S., does not mandate the issuance of a permit where the application fails to meet the minimum licensure requirements of

    
    

    the agency. MedPure, LLC v. Dep't of Health, 295 So. 3d 318, 323 (Fla. 1st DCA 2020)

    
    

    Failing to meet the ownership and control requirements in §§2.1.1. and 2.3.1 of the District’s Water Use Permitting Applicant’s Handbook constitutes a failure to meet the District’s minimum requirements for a water use permit.

    
    

    The ALJ found that Seven Springs does not own or control the High Springs plant (RO paragraph 5 [“After AquaPenn, the High Springs plant was owned and operated by Dannon, Coca-Cola, Ice River, and now Nestle Water of North America”]; paragraph 14; paragraph 19 [recounting that Seven Springs responded to the third RAI by stating “this MOA provides that NWNA and the applicant have entered into a contract in which NWNA is obligated to exclusively purchase spring water from the applicant to serve the NWNA High Springs Plant facility … which NWNA owns and operates”]; paragraph 68 [“Because Seven Springs does not own or control the High Springs facility…”]; and paragraph 72 [“Seven Springs does not own or control either of Nestle’s bottling facilities”]. Therefore, Seven Springs does not meet the ownership and control requirements in §§2.1.1. and 2.3.1 of the District’s Water Use Permitting Applicant’s Handbook.

    
    

    Were the District empowered to reject or modify the ALJ’s conclusion of law concerning Section 120.60, F.S., the District would reject this conclusion of law and enter a final order denying Seven Springs’ application for a permit.

    
    

    However, Section 120.60, F.S., is not a statute over which the District has substantive jurisdiction. Therefore, the District is not authorized to reject or modify a conclusion of law dealing with Section 120.60, F.S. See, Section 120.57(1)(l), F.S.

    
    

    Accordingly, this exception is, under protest, denied.

    
    

20. The District’s Exception to RO paragraph 71.

    
    

    The District takes exception to this RO paragraph for the same reasons it took exception to RO paragraph 68.

    
    

    Ruling

    
    

    For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, these exceptions are, under protest, denied.

    
    

21. The District’s Exception to RO paragraph 72.

    
    

    The District takes exception to this RO paragraph for the same reasons it took exception to RO paragraph 68.

    
    

    Ruling

    
    

    For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, these exceptions are, under protest, denied.

    
    

22. The District’s Exception to RO paragraph 74.

    
    

    The Memorandum of Agreement is a contract for the sale of water. The Memorandum of Agreement does not convey to Seven Springs any legal rights of ownership or control of the High Springs facility as required by the DISTRICT’s Water Use Permit Applicant’s Handbook §§ 2.1.1 and 2.3.1. (Applicant’s Handbook §§ 2.1.1. and 2.3.1., SS Ex. 36, Tr. 515:2-9, 600:4-13, 602:9-23). It is undisputed that Seven Springs has no legal right to process or bottle the water at the High Springs plant, since it does not own or have other legal control of the plant or the real property on which the High Springs plant is located (Tr. 270:7-10, 271:12-23, 425:8-12, Joint Ex. 10, p. 2, SS Ex. 36 [Amended Memo. of

    Agmt.], Joint Ex. 7a, p. 1, Tr. 156:6-10, 552:7-10, 552:16-25, 553:1-3, Joint Ex. 7a, p.

    1, Joint Ex. 10, p. 2, Joint Ex. 7a, p. 1, SS Ex. 36 [Amended Memo. of Agmt., which states “…the Contract provides for the sale and purchase of water between the parties for bottling at the High Springs Plant, a water bottling plant recently purchased and operated by (Nestle Waters North America)…”], Tr. 425:8-12). In the RO, the Administrative Law Judge also finds that Seven Springs does not own or control the High Springs plant (RO paragraph 5 [“After AquaPenn, the High Springs plant was owned and operated by Dannon, Coca-Cola, Ice River, and now Nestle Water of North America”]; paragraph 14; paragraph 19 [recounting that Seven Springs responded to the third RAI by stating “this MOA provides that NWNA and the applicant have entered into a contract in which NWNA is obligated to exclusively purchase spring water from the applicant to serve the NWNA High Springs Plant facility … which NWNA owns and operates”]; paragraph 68 [“Because Seven Springs does not own or control the High Springs facility…”]; and paragraph 72 [“Seven Springs does not own or control either of Nestle’s bottling facilities”].

    
    

    Ruling

    
    

    For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, these exceptions are, under protest, denied.

    
    

23. The District’s Exceptions to RO paragraph 75.

    
    

    The District takes exception to this RO paragraph for the same reasons it took exception to RO paragraph 72.

    
    

    Ruling

    
    

    For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, these exceptions are, under protest, denied.

    
    

24. The District’s Exception to RO paragraph 76.

    
    

    The District takes exception to this RO paragraph for the same reasons it took exception to RO paragraph 68.

    
    

    Ruling

    
    

    For the reasons set out in the ruling to the District’s Exception to RO paragraph 68, these exceptions are, under protest, denied.

    
    

25. The District’s Exception to RO paragraph 77.

    
    

    After the conclusion of the final hearing in this matter, Nestle Waters North America, Inc. (“NWNA”), which owns and operates the High Springs plant (RO paragraphs 5, 14 and 19), applied for and was issued Public Water System permit no. 0395114-001-WC (the “PWS Permit”) by the Florida Department of Environmental Protection (“FDEP”). Neither NWNA nor Seven Springs provided any notice of the application or the PWS Permit to the DISTRICT. The PWS Permit allows NWNA to refurbish an existing 6 inch well located adjacent to the High Springs plant for a water system to provide water to the High Springs plant. The PWS Permit provides that the permitted maximum daily capacity for this water system will be 100,000 gallons per day (gpd) or 0.100 million gallons per day (mgd). The application for the PWS Permit provides that the water system is to provide water to the High Springs plant for non-bottling uses. However, all of these non-bottling uses of water were considered by the Administrative Law Judge (ALJ) in these proceedings and make up 0.110 mgd of the allocation of 0.954 mgd approved by the ALJ in the RO (see RO paragraph 51). Accordingly, the 0.954 mgd allocation approved by the ALJ for the instant water use permit should be reduced by the permitted maximum daily capacity for the water system approved in the PWS Permit to 0.854 mgd (0.954 mgd – 0.100 mgd = 0.854 mgd). A true and correct copy of the PWS Permit is attached hereto as Exhibit 1, and a true and correct copy of NWNA’s application for the PWS Permit is attached hereto as Exhibits 2A, 2B, and 2C.

    
    

    Ruling

    
    

    These exceptions are based on the PWS Permit. The PWS Permit was not part of the record in this case and therefore may not be considered by the District. Lawnwood Medical Center, Inc. v. Agency for Health Care Admin., 678 So. 2d 421, 425 (Fla. 1st DCA 1996) (“Chapter 120, Florida Statutes, directs an agency to review a recommended order based on the record that was before the hearing officer. An agency is not authorized

    . . . to reopen the record, receive additional evidence and make additional findings.”) Accordingly, these exceptions are denied.

26. The District’s Exception to RO paragraph 78.

The District takes exception to this RO paragraph for the same reasons it took exception to RO paragraphs 51 and 52.

The District also takes exception to this RO paragraph due to Seven Springs’ failure to meet the requirements of §§ 2.1.1 and 2.3.1 of the District’s Applicant’s Handbook requiring ownership and control of the High Springs plant.

The remainder of the exceptions are based on the PWS Permit.

Ruling

Concerning the exceptions to this RO paragraph based on the same reasons the District took exception to RO paragraph 51, these exceptions are denied for the same reasons the District denied the exceptions to RO paragraph 51.

Concerning the exceptions to this RO paragraph based on the same reasons the District took exception to RO paragraph 52, these exceptions are denied for the same reasons the District denied the exceptions to RO paragraph 52.

Concerning the exceptions related to Seven Springs’ failure to meet the requirements of

§§ 2.1.1 and 2.3.1 of the District’s Applicant’s Handbook requiring ownership and control of the High Springs plant, for the reasons set out in the ruling to the District’s Exception to RO paragraph 68, these exceptions are, under protest, denied.

Concerning the exceptions based on the PWS Permit, the PWS Permit was not part of the record in this case and therefore may not be considered by the District. Lawnwood Medical Center, Inc. v. Agency for Health Care Admin., 678 So. 2d 421, 425 (Fla. 1st DCA 1996) (“Chapter 120, Florida Statutes, directs an agency to review a recommended order based on the record that was before the hearing officer. An agency is not authorized

. . . to reopen the record, receive additional evidence and make additional findings.”) Therefore these exceptions are denied.

RULINGS ON SEVEN SPRINGS’ EXCEPTIONS

Seven Springs filed no exceptions to the RO.

ORDER

Having reviewed the RO and having considered the applicable law and being otherwise duly advised, it is ORDERED that:

A. Under protest, the RO is adopted and incorporated herein by reference. The RO is adopted “under protest” as to those reasons set out in the ruling on the District’s exceptions to RO paragraph 68 above. The RO is being adopted “under protest” to preserve the District’s right to appeal this Final Order as provided in Barfield v. Dep't of Health, 805 So. 2d 1008, 1012-1013

Docket for Case No: 20-003581

Orders for Case No: 20-003581